Ethics Opinion

Summary: In Sorensen v. Sorensen, 369 Mass. 350 (1975), the Supreme Judicial Court abolished the doctrine of parental immunity and permitted actions on behalf of minor children against their parents. Procedurally, such actions must be brought by a parent or by another adult acting as the child's next friend or guardian. In selecting an appropriate adult to serve as next friend, an attorney must consider whether an action brought on behalf of the children is substantially related to the attorney's current or prior representation of the parents, thus requiring the parents' informed consent pursuant to DR 5-105(C) or DR 4-101. If the attorney finds himself simultaneously representing both the children and the parents, he must also decide whether it is "obvious" that he can adequately represent the interests of each, as required by DR 5-105(C).

Facts: In Case One, a minor daughter was seriously injured while riding in a car driven by her mother. As a result of the accident, the mother was cited for automobile law violations. Attorney A, whose law firm is currently defending the mother against the motor vehicle charges, wishes to bring an action on behalf of the daughter against the mother to recover under the mother's automobile liability policy. Attorney A inquires whether he can represent the child through her mother as next friend in a tort action against the mother in her individual capacity.
In Case Two, a minor son has developed lead paint poisoning after ingesting flaking paint in a home owned by his mother and father jointly. When the parents notified the insurer that issued their homeowners' policy, the insurer brought an action against both parents, seeking a declaration that the policy does not cover the son's illness. Attorney B is now representing all members of the family in the declaratory judgment action. He asks whether he can also represent the mother as next friend of the son in a cross-claim against the father to recover damages for the father's violation of the lead paint law, G.L. c.111, SS197, 199.
In Case Three, two minor children have developed lead paint poisoning from eating paint in a home owned by their parents. As in Case Two, the parents carry homeowners' insurance. Attorney C was originally retained by the parents to represent them and their children in an action against the previous owner. He met briefly with the parents, who made it clear that they were primarily interested in financial security for their sons. Attorney C states that the parents disclosed no confidential information during this initial consultation. After this initial meeting, Attorney C conducted an investigation that convinced him the children had a better chance of recovery under the parents' homeowners' policy. He then referred the parents to another attorney and entered into a new fee agreement with a close relative of the children, who agreed to serve as the children's next friend. Attorney C inquires whether he can bring an action on behalf of the children against their parents through the relative as next friend. Attorney C informs the committee that he has explained his proposed course to the parents, and that the parents, after conferring with their own attorney, have assented.
Discussion: Prior to 1975, the ethical dilemmas posed by the cases described above could not have arisen, because Massachusetts law prohibited minor children from bringing an action for personal injury against their parents. In Sorensen v. Sorensen, 369 Mass. 350 (1975), however, the Supreme Judicial Court abolished the doctrine of parental immunity. Sorensen arose from an automobile accident, and the holding of the case was limited to its facts: in a tort action for negligence arising from an automobile accident, the child was permitted to recover from the parent up to the limit of the parent's automobile liability insurance coverage. 369 Mass. at 352-353. Later decisions have raised serious doubts about whether parental liability will remain limited to automobile torts or to cases where insurance coverage is available. Pevoski v. Pevoski, 371 Mass. 358, 362 (1972) (Quirico, J. concurring); New Hampshire Insurance Co. v. Fahey, 358 Mass. 137, 138 (1982).
In each of the three inquiries described above, the family wishes to take advantage of the Sorensen decision to recover insurance proceeds on behalf of an injured child. Since, however, an unemancipated minor cannot sue in his own name, a suitable adult must be found to bring the action on the child's behalf as next friend or guardian. In many tort cases, the parent who first consults an attorney about the child's injury serves as the child's next friend in the ensuing lawsuit. In cases falling within the Sorensen doctrine, however, it is essential to demonstrate that at least one parent is liable for causing the child's injury under traditional tort law principles. Thus the choice of a parent as next friend or guardian can involve the attorney in simultaneous representation of differing interests, as Cases One and Two, or in successive representation of adverse interests, as in Case Three.
The lodestars for resolving such dilemmas are DR 5-105, which governs cases of multiple representation, DR 4-101, which govern an attorney's duty to protect his client's confidences and secrets, and the common law rules relating to successive representation of adverse interests. DR 5-105 provides, in relevant part:
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interest, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effect of such representahon on the exercise of his independent professional judgment on behalf of each.
DR 4-101(B) provides:
... [A] lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person unless the client consents after full disclosure.
Applying these principles to the three inquiries described above, the committee concludes that the proposed representation would be improper in Case One and Case Two, but not in Case Three.
In Case One, the law firm of Attorney A is already defending the mother against charges of automobile law violations arising from the accident in which the daughter was injured. To represent the mother successfully in the traffic case, the members of Attorney A's firm must strive to minimize or mitigate the mother's role in causing the accident. On the other hand, if Attorney A represents the daughter in a tort action to recover for the daughter's injuries, Attorney A must demonstrate that the mother was negligent and that her negligence was the proximate cause of the accident. DR 5-105(C) permits an attorney to represent multiple clients, but only if it is obvious that the attorney can adequately represent the interests of each client. In this case, it is obvious that Attorney A cannot adequately defend the mother against the motor vehicle violations while at the same time bringing suit against the mother to recover for the daughter's injuries. Accordingly, Attorney A may not bring an action against the mother on the daughter's behalf.
Case Two presents a closer case, but the committee reaches the same conclusion. In Case Two, Attorney B is already representing all three members of the family in the action for declaratory judgment brought by the insurer. The cross-claim Attorney B proposes to bring to recover damages for the son's lead paint poisoning is, in substance, an action by two of his present clients--the mother and son--against the third, the father. Thus the cross-claim would involve Attorney B in representing differing interests within the meaning of DR 5-105(A). Moreover, while the proposed cross-claim is nominally against the father, proof of the father's liability may also establish the mother's because the father and mother were joint owners of the home in which the poisoning occurred. Thus both father and mother appear to be equally responsible for covering or removing lead paint under G.L. c.111, S97, and both will be equally liable for damages under G.L. c.111, S99. Given this welter of conflicting interests, the committee concludes that it is not obvious that Attorney B can adequately represent the interests of the mother and son in the cross-claim while continuing to defend all family members in the action brought by the insurer. Accordingly, Attorney B must decline to bring a cross-claim against the father.
If Attorney B believes that the filing of a cross-claim against the parents is essential to accomplishing the family's objectives, he should withdraw as attorney for the son and permit another lawyer, representing a next friend other than the mother or father, to proceed with suit on the child's behalf. Attorney B should not, however, withdraw as counsel for the parents in order to represent the son in the cross-claim: such representation would undoubtedly require Attorney B to use confidences and secrets disclosed by the parents during B's representation of the whole family to the parents' detriment, in violation of DR 4-101(B).
In Case Three, Attorney C has already terminated his representation of the parents and has referred them to another attorney. Had Attorney C performed substantial services for the parents or had the parents disclosed information subject to the attorney-client privilege, Attorney C's attempt to "change horses in mid-stream" might subject him to the rule of DR 5-105 as a simultaneous representation case. In this case, however, the initial consultation between Attorney C and the parents was brief, the parents disclosed no confidential information, and it was apparent from the outset that the parents sought legal advice primarily to protect their sons' interest. Thus, although the matter is not free from doubt, the committee concludes that the case does not fall within the prohibitions of DR 5-105.
However, to effectuate the policy of DR 4-101, most courts have held that an attorney may not bring suit against a former client in a matter that substantially related to the former representation unless he obtains the consent of both current and former clients after full disclosure. See e.g., Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). This common-law rule of disqualification applies without regard to whether the attorney did in fact receive privileged disclosures during the former representation. Thus, in order to represent the sons, Attorney C must obtain the informed consent of the parents and the next friend of the children after full disclosure of the relevant facts.
Attorney C has wisely referred the parents to another attorney so that they may have independent counsel in deciding whether to give their consent. While full disclosure will vary from case to case, the committee believes that attorneys who find themselves in Attorney C's situation should discuss with the parents through their new attorneys whether the proposed lawsuit on behalf of the children may expose the parents to liability to third parties or to governmental authorities. (Note, for example, that proof of the driver's negligence in Case One might lead to fines or loss of the mother's license.) In appropriate cases, the attorney should also discuss with the parents through their new attorneys the possibility that their liability may not be limited to the available insurance coverage in the light of decisions such Pevoski v. Pevoski, supra. See also the factors identified in Opinion 77-6. If the parents have consented after full disclosure of the relevant circumstances, then the committee believes that Attorney C may bring an action on the children's behalf against the parents.