After a dependency action against a father, can a lawyer keep representing both the father and his injured minor child on the child's injury claim?

Plain-English summary

A lawyer had established an attorney-client relationship with both a father and his minor daughter on a medical malpractice claim arising from substantial injuries to the daughter. The Department of Social Services then initiated a dependency action against the father and stepmother, in which the stepmother was found to have abused the child (the abuse that led to the medical treatment at issue); the father was separately represented in that matter, which was terminated without formal action. The father then directed the lawyer to take no further action regarding the child's injuries.

The committee concluded that RPC 1.7(a)(2), 1.7(b)(2), 1.8(b), 1.9(a) and (b), and 1.15(c) would prohibit the lawyer from continuing to represent either the father or the minor child without a court order or written consent in compliance with RPC 1.7. The committee further was of the opinion that RPC 1.1, 1.4(a) and (b), 1.6(a), 1.13(a) and (b), 1.15(d), and 2.1 obligate the lawyer to seek the appointment of a guardian ad litem to protect the minor child and allow her to act in her own interests, and through whom the lawyer can independently communicate with the child while withdrawing as her attorney. The committee added that, pursuant to RPC 1.6(b), the lawyer may disclose the facts reasonably necessary to prevent the father from committing further criminal conduct, if any, and directed the lawyer's attention to the requirements of RCW 26.44.030 through 26.44.060, or other applicable law.

Currency note

This opinion was issued in 1996, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. Under Washington's pre-2006 numbering, RPC 1.15 corresponds to ABA Model Rule 1.16 (declining or terminating representation); the other rules cited (1.1, 1.4, 1.6, 1.7, 1.8, 1.9, 1.13, 2.1) correspond to the ABA Model Rules of the same numbers.

Common questions

Q: Can the lawyer keep representing both the father and the child after the dependency action?

A: No, not without a court order or written consent. The committee concluded that RPC 1.7(a)(2), 1.7(b)(2), 1.8(b), 1.9(a) and (b), and 1.15(c) prohibit continued representation of either client absent such authority in compliance with RPC 1.7.

Q: What must the lawyer do to protect the minor child?

A: The committee was of the opinion that RPC 1.1, 1.4, 1.6(a), 1.13, 1.15(d), and 2.1 obligate the lawyer to seek appointment of a guardian ad litem to protect the child and through whom the lawyer can communicate with her while withdrawing.

Q: Can the lawyer reveal anything about the father's conduct?

A: The committee said that pursuant to RPC 1.6(b) the lawyer may disclose the facts reasonably necessary to prevent the father from committing further criminal conduct, if any, and pointed the lawyer to RCW 26.44.030 through 26.44.060.

Background and rules framework

The opinion applied a cluster of Washington RPCs corresponding to the ABA Model Rules: competence (1.1), communication (1.4), confidentiality (1.6), conflicts among current clients (1.7), use of client information (1.8(b)), duties to former clients (1.9), organization or impaired-client representation (1.13), declining or terminating representation (1.15, the pre-2006 Washington equivalent of Model Rule 1.16), and the advisor's role (2.1). The committee treated the father's direction to take no action on the child's claim, against the backdrop of the abuse finding, as creating a conflict that bars continued joint representation, and made the guardian ad litem the mechanism for protecting the child and effecting withdrawal.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7(a)(2), 1.7(b)(2)
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9(a), (b)
• ABA Model Rule 1.8(b) (use of client information); Washington RPC 1.8(b)
• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6(a), (b)
• ABA Model Rules 1.1, 1.4, 1.13, 2.1; Washington RPC 1.1, 1.4, 1.13, 2.1
• ABA Model Rule 1.16 (declining or terminating representation); Washington RPC 1.15(c), (d)

Statutes:

• RCW 26.44.030 through 26.44.060 (abuse of children and adult dependent persons), referenced by the committee

See also

• WA Ethics Op. 1659: Checking Conflicts When Changing Firms
• WA Ethics Op. 1633: A Firm's Duties After a Former Member Stole Client Funds

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=733

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1651
Year Issued: 1996
RPC(s): RPC 1.1; 1.4; 1.6; 1.7(a)(2); 1.7(b)(2); 1.8(b); 1.9; 1.13; 1.15; 2.1
Subject: Conflict of interest; representation of minor and parent after dependency action begun against parent

The Committee reviewed your inquiry concerning a situation in which you had established an attorney-client relationship with both a father and a minor daughter regarding a medical malpractice claim arising out of substantial injuries to the minor daughter. Subsequently, the Department of Social Services initiated a dependency action against the father and stepmother [in which the stepmother was found to have abused the child, which led to the medical treatment at issue], and the father is represented by a separate counsel in that matter. That proceeding was apparently terminated without any formal action being taken. The father now has directed you to take no further action with regard to the minor child's injuries.

The Committee concluded that RPC 1.7(a)(2), 1.7(b)(2), 1.8(b), 1.9(a) and (b) and 1.15(c) would prohibit you from continuing to represent either the father or the minor child without either a court order or written consent in compliance with RPC 1.7.

Further, the Committee was of the opinion that RPC 1.1, 1.4(a) and (b), 1.6(a), 1.13(a) and (b), 1.15(d) and 2.1 places an obligation on you to seek the appointment of a guardian ad litem to provide for the minor child's protection and to allow the minor child to adequately act in her own interests; and through whom the attorney can independently communicate with the minor child in withdrawing as her attorney. The Committee was further of the opinion that pursuant to RPC l.6(b), you may disclose the facts reasonably necessary to prevent the father from committing further criminal conduct, if any.

Finally, the Committee directed me to call to your attention the requirements of RCW 26.44.030 through RCW 26.44.060, or other applicable law.