News and Information
January 21, 2022

VSB Seeks Comment on Conflicts Representing Minors in Personal Injury Cases

The Virginia State Bar’s Legal Ethics seeks comment on proposed Legal Ethics Opinion 1893: Representing Child and “Next Friend” as Plaintiffs in a 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 here, 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.

Updated: Jan 21, 2022