Legal Ethics Opinion #1559

Confidences and Secrets: Representing Child in Personal Injury
Claim and Naming Mother as Third Party Defendant After Mother
Served as Next Friend 

You have presented a hypothetical situation in which an infant
was severely injured in a motor vehicle accident.  Law Firm A was
retained by the infant's mother to pursue a personal injury claim
on the infant's behalf.  Law Firm A filed a motion for judgment
against the driver of the other automobile involved in the
accident in the name of the infant, by the infant's "mother and
next friend".  The defendant's insurance carrier retained
counsel, who filed a third-party action against the infant's
mother, father, and the manufacturer of the carseat in which the
infant was riding at the time of the accident.  Subsequently, Law
Firm A filed a separate motion for judgment against the carseat
manufacturer in the name of the infant, also by his "mother and
next friend".

You further indicate that Law Firm B represents the individual
defendant in the first suit; Law Firm C represents the individual
defendants (parents in the third-party action in the first suit);
and Law Firm D represents the manufacturer defendant in both

Law Firm A is in possession of the carseat involved in the
accident and Law Firm D has made a request for production of the
carseat for inspection, which motion Law Firm A has resisted. 
Counsel are interested in deposing the various parties.  Law Firm
A would propose to take the deposition of the mother.  Law Firm A
has also advised other counsel of its intention to name the
mother and father as parties defendant, either by amendment to
the existing actions or by filing a third motion for judgment.

Finally, you indicate that an attorney has been appointed as
guardian ad litem by the court to represent the interests of the
infant.  You state that it is expected that the attorney will
also be substituted, by order of the court, as the infant's next

You have asked the committee to opine, under the facts of the
inquiry, whether Law Firm A can continue as counsel for the
infant, given its stated intention to name the infant's mother
and current "next friend" as a party defendant. 

The appropriate and controlling disciplinary rules relative to
your inquiry are DR 4-l0l(B) which requires a lawyer's
preservation of client confidences and secrets; and DR 4-
l0l(C)(l) which states that a lawyer can reveal confidences and
secrets with the consent of the client or clients affected, but
only after full disclosure to them.  The committee is of the view
that the mother's status as next friend does not create an
attorney-client relationship.  Thus, the Disciplinary Rules
dealing with multiple representation are not relevant here.

The committee has previously opined that, in certain
circumstances, where no attorney-client relationship has arisen
in other respects, a potential client's initial interview creates
an expectation of confidentiality which must be protected by the
attorney.  See LEO #l453.  Thus, under the facts you present, the
committee is concerned that, while discussing the infant's case,
the mother may have divulged confidential or secret information
which may present an advantage to Law Firm A's representation of
the infant and a disadvantage to the mother as a party defendant. 
Therefore, the committee is of the opinion that Law Firm A may
continue representation of the infant after full disclosure to,
and consent by, the mother/next friend.  Representation of the
infant would be proper even without the mother's consent if a
finder of fact should determine that no confidential information
was learned by Law Firm A. See LEOs #637, #1354.

Committee Opinion
October 20, 1993