Opinion 314
Question Presented
A client employs a lawyer to sue for personal injuries suffered by his minor son, and the lawyer files suit in the district court in the name of the father, both individually and as next friend of his minor son, seeking recovery of a substantial sum for the minor and a lesser sum for the father's loss of his son's services. The lawyer then files in the county court an application for guardianship of the estate of the minor; and, at the lawyer's request, the county court appoints a bank as legal guardian. Such guardian is to be substituted for the next friend as plaintiff in the district-court case to prosecute the claim on behalf of the minor, and the father is to continue as a plaintiff in his own behalf. The guardian requests that the attorney elect to represent either the father or the minor's guardian, but not both. Would it be unethical for the lawyer to represent both the legal guardian and the father in the case without the consent of both?
23 Baylor L. Rev. 838 (1972)
According to Canon 6, it is unethical to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts; and a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose. Under the hypothetical facts stated, we cannot say that it would not become the lawyer's duty to contend, in behalf of the father, for that which his duty to the minor or his guardian would require him to oppose. Therefore, it is this committee's opinion that it would be unethical for the lawyer to represent both parties without the consent of both.
(The inquiry raises law questions which we consider to be outside the scope of this committee's functions, such as whether the subsequently-appointed guardian has an absolute right to be substituted for the next friend in pending litigation, and whether the guardian has the legal right to discharge the lawyer and employ counsel of its own choice to represent the minor's estate.) (9-0.)
CONFLICT OF INTEREST - REPRESENTING BOTH THE LEGAL GUARDIAN OF A MINOR AND THE MINOR'S FATHER
It is unethical for a lawyer to represent both the legal guardian of a minor's estate and the minor's father in a damage suit for personal injuries suffered by the minor and for the father's loss of the minor's services without the consent of both the guardian and the father.
Canon 6.
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 314 (1966)