Legal Ethics Opinion #1557

Conflict of Interest  Zealous Representation: Representation of
Minor, Through Next Friend, where Minor's Interests May Diverge
From Next Friend's Interests 

You have presented a hypothetical situation in which an attorney
represents a wife in a heated and bitter divorce action.  The
wife/mother seeks complete custody of the minor child, no
visitation by the husband/father, and a large monetary award. 
While the wife wins the custody and visitation issues through a
separate proceeding, she does not obtain all of her monetary
objectives in the divorce action in chancery.

You state that during the pendency of the divorce proceeding, and
after denying the husband any access to or communication with the
child for seven months, the wife accuses the husband of molesting
the child.  You state that the husband vigorously denies the
wife's accusations and the claim is not resolved through
adjudication during the divorce proceeding.  Upon conclusion of
the divorce proceeding, the ex-wife seeks to file, as the child's
next friend, a tort action against the father/former husband
alleging molestation and seeking monetary damages.

Furthermore, you indicate that the effect of a judgment against
the defendant father/former husband would be to give the
mother/ex-wife, as custodian of the child, control over funds
which the court in chancery declined to award her, either through
the distribution of marital property or through child and spousal
support.  Finally, you inform the committee that the statute of
limitations for the tort action is tolled during minority and
that the child may bring suit upon reaching the age of majority.

You have asked the committee to opine, under the facts of the
inquiry, whether it is proper for a lawyer to accept
representation of a minor, suing by next friend, where the
child's interests may diverge from those of the next friend who
is also the custodial parent.

The appropriate and controlling disciplinary rules relative to
your inquiry are DR 5-l06(B) which provides that a lawyer shall
not permit a person who recommends, employs, or pays him to
render legal services for another to direct or regulate his
professional judgment in rendering such legal services; and DR 7-
l0l(A)(l) which prohibits a lawyer from intentionally failing to
seek the lawful objectives of his client through reasonably
available means permitted by law and the Disciplinary Rules. 
Further guidance is available through EC 5-2l which exhorts that
"the obligation of a lawyer to exercise professional judgment
solely on behalf of his client requires that he disregard the
desires of others that might impair his free judgment". 
[emphasis added]  The committee is of the view that the
mother/ex-wife's status as next friend does not create an
attorney-client relationship.  Thus, the multiple representation
provisions of the Code of Professional Responsibility are not
applicable here.

In the facts you present, the committee believes that it would
not be per se improper for the lawyer to represent the minor,
even where the interests of the minor diverge from those of the
next friend/mother, provided that the lawyer's independent
professional judgment on behalf of the minor is not compromised
by direction or regulation of the next friend and further
provided that the lawyer were able to provide zealous
representation as required by Canon 7.

Committee Opinion
October 20, 1993