August 12, 1992
A lawyer representing a client who is a minor should seek to have a guardian ad litem appointed when the interests of the child's parents directly conflict with those of the child, and the lawyer reasonably believes that a minor client cannot adequately act in the minor client's own interest.
References: MRPC 1.6, 1.7(b), 1.8(e), 1.14, 2.1, 5.4(c); RI-76; MCR 8.121; MCL 700.474.
The mother of a child allegedly injured as the result of medical malpractice retained a lawyer to pursue a medical malpractice claim against an orthopedic physician. The natural mother signed a contingent fee contract for investigation and representation in the action. Some weeks later, the mother informed the lawyer that she no longer wished to pursue the claim. The child is almost 13 years of age and has a learning disability that requires the child to be enrolled in special education classes. Due to the statute of limitations, assuming the child is not mentally incompetent, the child's action will run on the child's 15th birthday. The lawyer asks what ethical duties are owed to the minor child.
The first question presented is, who is the lawyer's client? The Committee must initially disagree with the assumption of the inquirer that the lawyer in this instance represents the parent. If it is the child's claim that is being investigated then it is the child who is the client and the lawyer's first responsibility is toward the child. Although the mother in this case may have some influence on the lawyer's direction in the action, the mother is not the client and may not interfere with the lawyer's independent professional judgment regarding the representation. MRPC 5.4(c). It does not matter that the mother selected and retained the lawyer for the matter. Furthermore, since the mother is not the client, the lawyer must remain conscious of the fact that the lawyer owes a duty of confidentiality to the child under MRPC 1.6.
The next question focuses on what duty the lawyer owes the child.
MRPC 1.14 states:
"(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority or mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
"(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest."
MRPC 2.1 states:
"In representing a client, a lawyer shall exercise independent professional judgment and shall render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation."
The fact that the client is a minor is not material unless the client is of such a tender age, or mentally impaired, to clearly indicate that the child is not capable of understanding the nature of the case or the significance of the decisions concerning the representation. The lawyer in this case must make a judgment call as to whether the lawyer thinks that the learning disability under which this thirteen-year-old operates impairs the child's ability to understand the nature of the case or the significance of decisions.
When the child is of a tender age or suffers from a disability, the lawyer generally turns to the parents of the minor child for direction. Here, a conflict exists between the mother of the child, who no longer wishes to pursue the claim, and the minor child. When the mother asks the lawyer to cease representation, and the lawyer believes that course is contrary to the interests of the child, a conflict arises which materially limits the lawyer's ability to represent the child under MRPC 1.7(b). If the lawyer complies with the mother's wishes, the mother may never inform the child of the possible claim, which in all likelihood would cause the child's statute of limitations to run. As a result, the lawyer must take further action to protect the child's interests.
When the parent's interests directly conflict with those of the client, the lawyer would do best to seek the appointment of a guardian ad litem. The failure to do so could subvert the ethical requirement that lawyers zealously represent the lawyer's clients. However, if the lawyer can take other action which would protect the child's interests, the lawyer need not seek the appointment of a guardian ad litem. It is left up to the discretion of the lawyer handling the case to decide whether such other action adequately safeguards the child's interests. However, the better practice, which is strongly urged, would be to petition for an independent guardian ad litem.
Doing so would allow the guardian ad litem to have full authority to order investigation of the facts, to request the filing of a suit, and to make decisions during the course of litigation. The guardian must assist the lawyer in vigorously representing the minor child's interest, and may not take any action prejudicial to the minor. In the end, the guardian ad litem is directly accountable to the court for actions taken on the client's behalf. Although the lawyer is not completely absolved from liability for wrong doing, the lawyer has enormously reduced it with the appointment of a guardian ad litem.
The inquiry also asks who is responsible for the costs of appointing the guardian ad litem. Clearly, the client is responsible for the costs involved in the representation, MRPC 1.8(e). Costs of the guardianship proceeding may be handled as other costs, i.e., deducted from the recovery pursuant to MCR 8.121(C), or the lawyer may petition the probate court for reasonable compensation for filing the petition pursuant to MCL 700.474. See RI-76.