Can a lawyer bring a personal injury suit on behalf of a minor child against the child's own parents when the lawyer represents or represented the parents?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
After Sorensen v. Sorensen (1975) abolished parental immunity, a minor child could sue a parent, but only through an adult next friend or guardian. Choosing a parent as next friend can put the lawyer in simultaneous or successive conflict, because the suit must show that a parent's conduct caused the child's injury. The committee analyzed three inquiries under DR 5-105 (multiple representation), DR 4-101 (confidences and secrets), and the common-law rule on successive adverse representation, and reached different results for each.
In Case One, the lawyer's firm was defending a mother on motor-vehicle charges from the same accident in which her daughter was hurt. Defending the mother means minimizing her fault, while suing her for the daughter means proving her negligence. The committee said it is not obvious the lawyer could adequately represent both interests, so DR 5-105(C) was not satisfied and the suit could not proceed. In Case Two, the lawyer represented the whole family in the insurer's declaratory-judgment action; a cross-claim for the son's lead-paint injury would in substance pit the mother and son against the father, and proof of the father's liability might establish the mother's as joint owners. Again it was not obvious the lawyer could adequately represent the conflicting interests, so he had to decline the cross-claim. The committee added that if a cross-claim was essential he should withdraw as the son's counsel and let another lawyer, with a different next friend, proceed; he should not instead drop the parents to represent the son, which would risk using their confidences against them in violation of DR 4-101(B).
In Case Three, the lawyer had already ended a brief consultation with the parents (in which no confidences were disclosed and the parents' clear aim was the children's recovery) and referred them to other counsel. The committee concluded this did not fall within DR 5-105's simultaneous-representation prohibition. But the common-law rule still required, to protect the policy of DR 4-101, that he obtain the informed consent of both the former clients (the parents) and the children's next friend after full disclosure. The committee said full disclosure through the parents' new counsel should cover whether the suit could expose the parents to liability to third parties or government authorities and the possibility that liability might exceed available insurance. With that consent, the lawyer could bring the children's action.
Currency note
This opinion was issued in 1987, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer defending a parent also sue that parent on the child's behalf?
A: Per the opinion, no, where the two representations conflict. In Case One the committee said it was not obvious the lawyer could adequately defend the mother on traffic charges while proving her negligence to recover for the daughter, so DR 5-105(C) was not met.
Q: If a cross-claim against one parent is necessary, what should the family's lawyer do?
A: The committee said the lawyer should withdraw as the child's counsel and let a different lawyer, using a next friend other than a parent, bring the suit. He should not drop the parents to represent the child, which would risk misusing their confidences under DR 4-101(B).
Q: Can a lawyer ever sue parents he previously consulted with?
A: Yes, in a successive-representation case where the prior contact was brief and disclosed no confidences. The committee required informed consent from both the former-client parents and the children's next friend after full disclosure, given through the parents' independent counsel.
Background and rules framework
The opinion applied DR 5-105 (declining or continuing multiple employment, and the DR 5-105(C) consent-plus-objective test), DR 4-101 (confidences and secrets), and the common-law rule barring suit against a former client in a substantially related matter without informed consent. These correspond today to Model Rule 1.7 (concurrent conflicts), Model Rule 1.9 (duties to former clients), and Model Rule 1.6 (confidentiality). The conflicts arose only because Sorensen v. Sorensen allowed children to sue parents.
Citations and references
Rules of Professional Conduct:
- DR 5-105(A), (B), (C) / Model Rule 1.7 (concurrent conflicts; consent and objective test)
- DR 4-101(B) / Model Rule 1.6 and 1.9 (confidences and secrets; duties to former clients)
Cases:
- Sorensen v. Sorensen, 369 Mass. 350 (1975) (abolished parental immunity; child may recover from parent)
- Pevoski v. Pevoski, 371 Mass. 358 (1976) (doubt whether parental liability stays limited to auto torts)
- Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973) (consent required to sue former client in related matter)
Other opinions cited:
- MBA Opinion 77-6: factors in disclosure for consent to adverse representation
See also
- MA Bar Ethics Op. 88-1: A firm representing a school board while opposing town police
- MA Bar Ethics Op. 88-2: A former government lawyer opposing a former agency
Source
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