Ethics Opinions

Opinion No. 77-6

June 1977

Summary: An attorney who has represented a child and her mother in proceedings before the Registry of Motor Vehicles and elsewhere arising out of a collision between the motor vehicle driven by the mother and another vehicle, may not properly thereafter represent the child in an action against her mother, without the consent of the child, her mother and her mother's insurer, after full disclosure. Even with such consent, the attorney should not bring the action for the child by her mother as next friend, if such use of the mother is unwarranted under existing law because of conflict of interest, or would risk the loss of the mother's insurance coverage due to her failure to cooperate with her insurer as required in the "General Conditions" in her policy.

Facts: Attorney A represented his sister-in-law B and her six-year-old daughter C who were involved in an automobile accident on December 13, 1975, and were injured when the automobile which was being operated by B and in which C was riding as a passenger was in collision with another automobile. A represented B and C in dealing with B's insurer, and represented B at a hearing before the Registry of Motor Vehicles which suspended B's license for 10 days. A says that C has sustained substantial injuries and there is little chance of recovery against the operator of the second vehicle. A asks if he may represent C in a claim against B. Since B is divorced and has custody of C, A further asks whether the action could be brought by C through her mother and next friend B, against her mother B as the defendant.

Discussion: In the action against B, she would be represented by her insurer, the real party in interest, and its attorney. Since A represented B and C previously, he has had and still has full access to the facts of the case. He also has previously reported the facts of the accident to B's insurer and to the Registry of Motor Vehicles. B, who was formerly A's client, would become an adverse party in the court action.

As far as C is concerned, she was A's former client and remains his client in the proposed action. It is assumed that she would consent to A's representation of her mother B and herself as plaintiffs.

But does the fact that A's former client B and her insurer now have interests adverse to A's main client C prevent A from representing C against them both?

In our Opinion No. 76-14, we said that an attorney may represent the wife in a divorce proceeding where another attorney associated with him in the same office has previously represented the husband in a substantially related matter, only if both the husband and wife consent to the current representation after full disclosure. In that opinion we referred to the obligations imposed by DR 4-101 to preserve the confidences and secrets of a client so that the former client would not be adversely affected.

In Sorensen v. Sorensen, 1975 Mass. Adv. Sh. 3662, 339 NE 2d 907, decided December 29, 1975, the Supreme Judicial Court for the first time permitted an unemancipated minor child by her mother as next friend, to maintain an action against her father as driver of the motor vehicle which injured her, to the extent of the father's insurance coverage. In support of the action, the plaintiff contended that the insurance company was the true party defendant. The court quoted with approval (at 339 NE 2d 914) from an Arizona opinion which stated that "in reality the sought-after litigation is not between child and parent but between child and parent's insurance carrier."

Nevertheless, as the court also pointed out in its opinion, the issue in such a case is, whether the defendant driver (who is also the parent) was liable for negligence, and the insurance company will have to pay if the plaintiff child can prove liability. The insurance company, however, is entitled to the cooperation of the insured parent driver, and only in this way can it, and its investigators and the court, successfully carry their burden of preventing collusion and fraud.

Since the former representation and the present representation are in substantially related matters, the consent of both sets of clients is required under our Opinion No. 76-14 before the lawyer can properly oppose his former client, B, the driver of the motor vehicle which caused C's injuries. Both B as the defendant whose liability is being litigated, and B's insurer as the ultimate payor of any judgment obtained against B, are entitled to be protected against the use by A on behalf of C of any of B's confidences or secrets which he may have learned of in his earlier representation of B. Therefore, we conclude that attorney A may not properly represent C in the action against her parent B, unless both B and her insurer consent, after full disclosure of A's earlier representation of B.

There remains for discussion, if such consent is forthcoming, the question whether A may properly bring C's action through her mother B as next friend. Since B has the obligation of cooperation with her insurer, we believe there is a serious question whether she could legally act on behalf of C in the litigation. (In the Sorensen case, we noted above that the child's action against the parent-driver was brought by the other parent as next friend.) Whose interests--C's or those of her insurer--should B consider paramount when considering trial strategy or settlement offers?

Whether B may legally act as the plaintiff's next friend in the suit against herself and her insurer is a question of law, which we are not in a position to answer. But A's ethical obligations in such a case are clearly set forth in DR 7-102(A)(2), which provides:
(A) In his representation of a client, a lawyer shall not: ...
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

If it appears as a matter of substantive law that B may not legally act as next friend for C in the case, A may be in deep trouble for thus using her.

Finally, if in the proposed suit by B as next friend it is determined that B by acting as next friend to the plaintiff has failed to cooperate with her insurer as required by the "General Conditions" in her policy, and C loses any claim against the insurer, A may have violated DR 7-101(A)(1), providing:
(A) A lawyer shall not intentionally:
(1) Fail to seek the lawful objective of his client through
reasonably available means permitted by law and the Disciplinary Rules ... .

We believe that even if both B and her insurer consent to A's representation of C, A will still have a heavy burden of showing that suit on behalf of C by B as next friend will not involve him in serious ethical problems.

Permission to publish granted by the Board of Delegates, 1977. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.