You have advised us that you represent a minor in a personal injury claim, having been retained by her mother. On behalf of the minor, you initiated suit against, inter alia, the minor's father for his causal negligence. Thereafter, you have learned that the father has been awarded custody of your client, pursuant to a custody action pending without your knowledge. The father has now directed you to drop the lawsuit against himself and the other defendant. Your minor client suffered severe injuries.
You asked for any suggestion [we] may wish to make. Your inquiry is therefore quite diffuse. Nonetheless, there are some ethical issues which we can address and which may be of assistance.
First, it is beyond the scope of this committee to attempt to resolve legal issues. The question of identification of whom is your client is such a legal issue; we note that you have resolved it by declaring that the minor is your client.
From this decision, a number of ethical guideposts are apparent. First, Rule 1.3 requires reasonable diligence in representing a client, and the comment thereto states:
A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.
The comment also notes that this obligation exists despite opposition, obstruction or personal inconvenience to the lawyer.
Further, we note the special obligation under Rule 1.14 regarding Clients Under a Disability, including minority. Subsection (b) of Rule 1.14 permits the appointment of a guardian ad litem after you reasonably believe that the client's interests are not being adequately protected by the mother.
Finally, with regard to communications with the father, any direct communication with the father (as defendant in the pending action) may be prohibited by Rule 4.2, Communication with Person Represented by Counsel.
It seemed to us, therefore, that the conclusion of your November 29 letter (Of course, we may not disobey the instruction of the custodial parent) is incorrect. Having concluded, as you do, that the minor is your client, the ethical considerations above suggest that it is inappropriate to take any instruction from the custodial parent under these circumstances. In fact, the above considerations suggest that it would be inappropriate to follow the instructions of any parent where such instructions are in conflict with your client's best interest.