Can one lawyer defend both a minor driver and the parent sued for failing to supervise the minor in the same auto-negligence case?

Plain-English summary

A legal-services attorney was defending a minor sued for operating a car while unauthorized and unlicensed. About a month into the case, the plaintiff moved to amend to add the minor's mother as a defendant, alleging failure to supervise and control. The inquirer anticipated the mother would ask him to represent her as well and recognized possible areas of conflict, including a possible cross-claim by each defendant against the other for contribution as joint tortfeasors, and the possibility that the mother's defense would undercut the minor's credibility.

The Committee concluded that the existence of these possibilities of conflict immediately foreclosed dual representation, and that the inquirer should not undertake the defense of both the minor and the parent. It relied on Lawlor v. Cloverleaf Park, Inc. for the proposition that a child and a custodial parent sued on these theories are, in effect, joint tortfeasors, and noted that France v. A.P.A. Transport Corp., 56 N.J. 500 (1970), had abrogated parent-child immunity in motor-vehicle cases.

The Committee found that dual representation on these facts would violate DR 7-101(A) and DR 5-105(C), and stressed that the infant could not consent to it. Citing the Supreme Court directive on dual representation and its own Opinions 156, 188, and 248, the Committee held that the potential for conflict was sufficient to bar the attorney from representing both parent and child as co-defendants.

Currency note

This opinion was issued in 1981, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The conflict rules it applied (DR 5-105 and DR 7-101) now correspond broadly to RPC 1.7. Treat this page as historical context, not current guidance.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: Could one lawyer defend both the minor driver and the parent?

A: No. The opinion concluded that the potential for conflict, including cross-claims for contribution and the parent's defense undercutting the minor, immediately foreclosed dual representation.

Q: Did it matter that the parties might consent?

A: Yes. The opinion stressed that the infant could not consent to the dual representation, which was part of why the conflict could not be cured here.

Q: Why were the parent and child treated as adverse?

A: The opinion relied on case law treating a child sued for negligent operation and a custodial parent sued for failure to supervise as, in effect, joint tortfeasors, after parent-child immunity was abrogated in motor-vehicle cases.

Background and rules framework

The opinion applied DR 5-105(C), which limited a lawyer's representation of multiple clients with differing interests, and DR 7-101(A) on zealous representation. In current New Jersey terms the analysis maps onto RPC 1.7 (concurrent conflicts of interest). The Committee treated the realistic potential for cross-claims and for one client's defense to damage the other, combined with the infant's inability to consent, as enough to bar the joint representation.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest); decided under former DR 5-105(C) and DR 7-101(A)

Cases:

• France v. A.P.A. Transport Corp., 56 N.J. 500 (1970) (abrogating parent-child immunity in motor-vehicle cases)
• Lawlor v. Cloverleaf Park, Inc., 101 N.J. Super. 134 (Law Div. 1968) (child and custodial parent as joint tortfeasors)

Other opinions cited:

• NJ ACPE Opinion 156, 92 N.J.L.J. 481 (1969)
• NJ ACPE Opinion 188, 93 N.J.L.J. 789 (1970)
• NJ ACPE Opinion 248, 96 N.J.L.J. 93 (1973)

See also

• NJ ACPE Op. 527: Dual Representation of Defendant Physician and Hospital
• NJ ACPE Op. 556: Representing Both Maker of a Promissory Note and the Guarantors
• NJ ACPE Op. 605: Public Entities and Private Co-Defendants in Multiparty Suits

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp486-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

107 N.J.L.J. 574, June 18, 1981

Representing Parent and Child Co-Defendants in Auto Case

An attorney raises the question "whether a conflict of interest would exist if I were to represent a minor and his mother as parties defendant in an automobile negligence action where the minor was an unauthorized, unlicensed driver and the mother's liability is asserted for failure to adequately supervise and control the minor."

A complaint was filed naming the minor as a defendant who was unauthorized operating the car as well as being an unlicensed driver. The inquiring attorney who is associated with a legal services project, was defending that action in behalf of the minor. Approximately one month after the suit was filed, plaintiff moved to amend his pleadings to add the mother as a defendant, alleging failure on her part to supervise and control. The inquirer anticipates that the mother as a co-defendant will approach him to represent her. The inquirer recognizes that there are "possible areas of conflict" in the event of dual representation. He recognizes that there is a "possibility of cross-claim by each against the other for contribution as joint tortfeasors" and "[s]econd, the possibility that the mother's defense will undercut the minor's credibility."

The fact that possibilities of conflict may arise in the event of dual representation immediately forecloses such representation, and we are of the opinion that the inquirer should not undertake the defense of both the minor and the parent. The inquirer properly cites Lawlor v. Cloverleaf Park, Inc., 101 N.J. Super. 134 (Law Div. 1968), as setting forth a proposition that "where a child and his custodial parent are sued in an automobile negligence action on the theory of negligent operation as to the child and lack of supervision and control as to the custodial parent, the child and parent are allegedly, in effect, joint tortfeasors." The New Jersey Supreme Court in France v. A.P.A. Transport Corp., 56 N.J. 500 (1970), abrogated the parent-child immunity doctrine and overruled the cases which held to the contrary. The decision at that time was limited to motor vehicle cases. To permit dual representation based upon the facts set forth in the present inquiry would be contrary to and in violation of DR 7-101(A) and DR 5-105(C), and particularly so by reason of the fact that the infant involved in this case cannot consent to the dual representation; as well as the New Jersey Supreme Court Directive set forth in 91 N.J.L.J. 81 (Feb. 8, 1968), and as referred to in this Committee's Opinion 156, 92 N.J.L.J. 481 (1969), Opinion 188, 93 N.J.L.J. 789 (1970) and Opinion 248, 96 N.J.L.J. 93 (1973).

Based upon the circumstances set forth in the inquiry, the potential for conflict is sufficient to bar the attorney from representing both parent and child as co-defendants in the auto negligence action.