RI-170

September 17, 1993

SYLLABUS

A lawyer who has been appointed next friend to a ward is not per se required to withdraw as next friend when sued by the ward for conspiring with the appointing judge.

References: MRPC 8.4(c).

TEXT

A lawyer was appointed by a judge to act as the next friend for a ward in a divorce case. The ward subsequently retained counsel to file a lawsuit against the judge and the next friend for "conspiring and other actions." Is the next friend required to seek permission to withdraw?

Ethics rules do not directly address the question of whether a lawyer serving in a fiduciary capacity as next friend is disqualified when the ward brings suit against the next friend. Ultimately the judge appointing the next friend will need to be consulted regarding whether withdrawal will be allowed. Cf. MRPC 1.16(c). In considering whether withdrawal is appropriate or required, the judge may analyze the situation by analogizing to ethics rules.

A concern may validly be raised as to whether a ward, who has had a next friend appointed in a legal proceeding, may impair the continued representation by merely filing a lawsuit against the appointed next friend. In RI-84 we opined that a lawyer whose client files a grievance against the lawyer need not resign from the client's matter if a disinterested lawyer would reasonably conclude that the lawyer's representation of the client would not be adversely affected by the pending grievance. Whether the client's grievance required withdrawal depended upon the nature of the grievance and the nature and stage of the main matter, i.e., whether the client fully understood the judicial proceedings, whether the grievance concerned a fee dispute, whether the case was in litigation. In the present inquiry, a judge has already determined the necessity for appointing a next friend; the ward is apparently seeking to challenge that decision through the conspiracy action. If the judge were to allow the next friend to withdraw and appoint a substitute next friend for the divorce action, the ward may add the successor next friend to the conspiracy suit. The interests of the administration of justice would not be served by allowing such manipulation. Cf. MRPC 8.4(c).