MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2018-01
You have asked for an opinion regarding your responsibilities when the parents of a minor child have refused to accept a settlement of the child’s claim that you would believe would be favorable to the child. We believe that you are required to follow the instructions of the parents, as the guardians of the child, but that you may withdraw if you are strongly opposed to the parent’s course of action.
You represent a minor child who sustained a broken leg in an automobile accident, and are pursuing claims against the driver of the striking vehicle. It was not clear form the question whether you also represented the parents for claims directly on their behalf, but the father of the minor child signed the retainer agreement.
The insurer of the adverse party has offered to settle the claim. After medical and legal expenses are deducted from the settlement proceeds, the child will receive in excess of $5,000. In accordance with Maryland’s Estates and Trust’s Article, that amount would be placed in a trust account to be released when the child turns eighteen. The father objected to the trust, and has threatened to walk away entirely from the proposed settlement unless the funds are disbursed directly to him.
You have asked how the Rules of Professional Conduct affect your response to the father’s decision not to accept a favorable settlement of the child’s case. You have proposed two solutions: 1. Petitioning the court for a guardianship for the minor child; 2. Paying the parents some of the settlement proceeds directly to compensate them for medical expenses for which they would have been responsible but in fact never incurred, because the medical expenses were paid by Medicaid.
Two prior ethics opinions, 1994-25 and 1992-36, deal with the abuse of a minor’s settlement proceeds, but offer no particular guidance in this situation. 1994-25 states that the “inquiry cannot be addressed completely without identifying the individual or individuals with whom you have an attorney-client relationship.” However, since MD Code, Family Law Section 5-203 states that the “parents are the joint natural guardians of their minor child,” it makes no difference whether the attorney-client relationship is with the parents or the child. If the relationship is with the parents, then the attorney’s general duty is to abide by their “decision concerning the objectives of the representation.” MRPC 1.2. If the relationship is with the child, the parents, as natural guardians of the minor, are nonetheless responsible for making the decisions about the course of the litigation. Therefore, in either situation, the attorney’s duty is to abide by their decisions, except as otherwise explained below.
Maryland Rule 19-301.14 provides some circumstances in which an attorney representing a client with diminished capacity has an obligation to seek a guardianship or other remedy before the client comes to harm. In this case, however, the parents are already acting as guardians of the child. A court cannot establish a guardianship since one or more of the parents are still alive and their parental rights have not been terminated. See In Re Guardianship of Zealand W., 102 A.3d 837 (2014). Based on the facts that you have presented, we do not believe that you have any obligation or grounds to seek court intervention with respect to the parent-child relationship.
With respect to the second avenue that you propose, it seems as if some payment directly to the parents from the settlement proceeds cannot be done in good faith, since the parents have not actually incurred any expenses.
If you are fundamentally opposed to the decision of the parents not to go forward with the settlement, you may withdraw from the representation. See MRPC 1.16(b)(4). If the parents agree to the settlement, but refuse to have the proceeds held in trust, you may be required to withdraw, to avoid participating in a violation of the statutory obligation to keep such funds in trust. See MRPC 1.16(a)(1).