NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinion
Opinion #74 - 03/28/1968
Topic: Conflict of interest
Digest: Representation of injured child in action against injured
parents, Attorney retained by parents
Canon: Former Canon 6
While husband and wife were riding with their infant child in the
wife's car with the husband driving, an accident occurred resulting
serious injury to the child and damage to the automobile. The
parents retained an attorney to recover for the personal injuries to the
child and for the property damage to the wife's automobile.
Following investigation by the attorney, it became apparent that
the accident may have been caused either by the negligence of the
manufacturer of a tire that blew out or by the negligence of the driver.
The question thus arose as to whether or not, in addition to
bringing the action against the tire manufacturer, an action should be
brought directly against the parents, who carried liability
The attorney retained by the parents advised that although an un
emancipated child has been held, in New York, to have no cause of action
against his parents for negligence, there was a remote possibility of
recovery in this case; that the insurance carrier could defend in their
behalf, but that they would be personally liable for any recovery over
the limits of the policy. The parents gave the attorney permission to
commence the action against themselves and the tire manufacturer. The
attorney had a relative of the child appointed guardian ad litem, and
instituted the action. Subsequently, the attorney became concerned
that despite his disclosure and the parents' express consent, there were
conflicting interests among the parties, and he advised the parents to
obtain a substitution of attorneys. The patents informed him that
they do not want a substitution, and have asked him to continue in the
case. The attorney inquires if he may proceed with the matter.
It would be improper for the attorney, who was retained by the
parents to bring an action against the tire manufacturer to recover for
property damage to the wife's automobile, to represent the interests of
the child in an action against the parents for personal injury.
Neither the parents' consent, nor the attorney's withdrawal as
counsel of record in the wife's suit against the tile manufacturer,
would justify the attorney's handling the child's claim against the
Canon 6 reads in part as follows:
"It is unprofessional to represent conflicting interests, except by
express consent of all concerned given after a full disclosure of the
facts. Within the meaning of this canon, a lawyer represents
conflicting interests when, in behalf of one client, it is his duty to
contend for that which duty to another client requires him to
As stated in Drinker's "Legal Ethics", at page 120, Canon 6 "does not
sanction representation of conflicting interests in every case where
such consent is given, but merely forbids it except in such
cases" (emphasis in original). He further points out at there are
"certain cases in which such representation is improper or at least
unwise even with consent".
In this case, the potential conflicts are so serious that it would be
impossible for the attorney to discharge his duty to both sides.
For example, it may become his duty to press for a recovery
against the patents exceeding the limits of their insurance coverage.
Other possibilities of conflict creating problems of divided loyalty
exist in connection with such matters as discovery proceedings,
settlement negotiations, litigation strategy and appeals.
In the absence of insurance, the parents would not consent to the
proposed transfer of allegiance. The situation should be no different,
merely because the parents are covered by insurance. It is
immaterial, so far as Canon 6 is concerned, that an attorney for the
insurance company probably will defend the case, for "interests which
are essentially adverse remain so regardless of any contract of
indemnity a party may have." (N.Y.City 223, 711).
It would, of course, not be improper for an attorney who does not
represent a child's parents to be retained by a guardian ad litem to
institute action against the parents, even though the guardian ad litem
was appointed upon application of the parents, so long as there is no
collusion or conspiracy to mulct the insurance company. This is
distinguishable from a case where an attorney is retained at the
instance of an insured car owner to represent an injured party in an
action against the insured, which has been disapproved as in violation
of the Canons of Ethics. (N.Y.City 603).
In the circumstances described in the inquiry, the attorney should
inform the parents that inasmuch as he was originally retained by them,
he cannot represent their child in an action against them. If they
refuse to agree to a substitution, he should apply to the Court to be
relieved of the case.