News and Information
September 16, 2022

VSB Seeks Comments on Conflicts Representing Children and Parents in Personal Injury Cases

The Virginia State Bar seeks public comment on Legal Ethics Opinion 1893, a proposed advisory on representing children and “next friends” as plaintiffs in personal injury cases.

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.”

The proposed opinion may be inspected on the VSB website.  

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.

 

Updated Sept 29, 2022, to correct a typo

Updated: Sep 29, 2022