Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

Home > Actions on Rule Changes and Legal Ethics Opinions > LEO 1893, Representing Child and “Next Friend” as Plaintiffs in Personal Injury Case.

Proposed | LEO 1893, Representing Child and “Next Friend” as Plaintiffs in Personal Injury Case. Comments due Jan. 3, 2023

Update 11/18/22: The comment period has been re-opened. 

Any individual, business, or other entity may submit written comments in support of or in opposition to the proposed opinion with Cameron Rountree, executive director of the Virginia State Bar, not later than January 3, 2023. Comments may be submitted via email to publiccomment@vsb.org.


Update 9/15/22:

The Virginia State Bar Seeks Public Comment on Legal Ethics Opinion 1893

Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar is seeking public comment on proposed advisory Legal Ethics Opinion 1893, Representing Child and “Next Friend” as Plaintiffs in Personal Injury Case.

This proposed opinion addresses possible conflicts of interest when a parent, guardian, or other “next friend” engages a lawyer to represent a minor child in a personal injury case against a tortfeasor, when the parent or guardian may also have a lien for past and future expenses for medical treatment of the child. 

In the proposed opinion, the Standing Committee on Legal Ethics concluded that generally there is no conflict of interest because the interests of the parent and the child are usually aligned and the parent’s relationship with the child raises a presumption that the parent is acting in the child’s best interests. The opinion also gives guidance on the types of conflicts that could arise – when the “next friend” is directing the lawyer’s representation in an unreasonable way that is detrimental to the best interests of the child, or there are inadequate assets to compensate both the parent and the child. If there is a conflict between the parent’s and child’s interests, the child cannot waive any conflict because of their lack of legal capacity, and the lawyer cannot reasonably accept consent of the parent on behalf of the child. In that case, the lawyer may seek appointment of a guardian ad litem to protect the child’s interests, may seek judicial approval of a proposed settlement, or may petition a court to appoint a substitute “next friend.”

Inspection and Comment

The proposed opinion may be inspected below.

Any individual, business, or other entity may submit written comments in support of or in opposition to the proposed opinion with Cameron Rountree, executive director of the Virginia State Bar, not later than November 1, 2022. Comments may be submitted via email to publiccomment@vsb.org.

View proposed LEO 1893 (PDF revised 9/14/22)


Update 3/25/22: Further discussion of this opinion will be carried over to the May 26, 2022, meeting of the committee.


Update 1/21/22:

Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed Legal Ethics Opinion 1893, Representing Child and “Next Friend” as Plaintiffs in Personal Injury Case. This opinion addresses the conflicts of interest that may arise when a parent, guardian, or other “next friend” engages a lawyer to represent a minor child in a personal injury case, when the parent or guardian may also have a claim for medical treatment of the minor child.

The opinion recognizes that there may be circumstances in which the interests of the child and parent/next friend may conflict, for example if the parent’s decision-making, in the lawyer’s judgment, is not in the best interests of the child; or there are insufficient funds to compensate the child fully and pay the parent’s claim or lien for medical expenses. The lawyer may need to seek appointment of a guardian ad litem to waive the conflict on behalf of the child and/or replacement of the parent as next friend. If there appears to be sufficient resources to compensate the child and pay the parent’s claim or lien, there is no conflict and no need for a guardian ad litem to be appointed to confirm that.

Further, if there is a conflict in which the parent’s and child’s interests are directly adverse, the lawyer cannot reasonably accept consent of the parent on behalf of the child. The lawyer must seek appointment of a guardian ad litem for the child since the minor lacks the legal capacity to provide informed consent to conflicts of interest.

Inspection and Comment

The proposed opinion may be inspected below, or by contacting the Office of Ethics Counsel at (804) 775-0557.

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed opinion with Karen A. Gould, executive director of the Virginia State Bar, not later than February 28, 2022. Comments may be submitted via email to publiccomment@vsb.org.

View proposed LEO 1893 (PDF)


The proposed draft Legal Ethics Opinion 1893 has been withdrawn pending further review by the Standing Committee on Legal Ethics.

 

Posted: June 29, 2021
Updated: July 2, 2021
Updated Jan 21, 2022, to open for public comment
Updated Mar 25, 2022, to indicate the committee will have further discussion at its May, 2022, meeting
Updated Sept 15, 2022, to open for public comment

Updated Nov 4, 2022, to remove comment deadline from subhead
Updated Nov 18, 2022, to open for public comment

Updated: November 18, 2022