Navigating client council and guardian dynamics in cases involving minors

Representing an injured minor carries special responsibilities because minors are particularly vulnerable, and the consequences of resolving their cases can last far longer than in a typical case.

It is especially important to meet with the parents and the minor either in person or by Zoom early in the case. Getting to know the minor and the parents while working up the case is important. This includes learning what school the child attends, what grade they are in, their sports and hobbies, and the television shows, movies, music and sports teams they follow. There is an exhaustive list of things to go over with the minor to better understand the child and how they are doing.

As part of that meeting, it is important to evaluate the parents as potential guardians ad litem. Many times, one parent will be selected as the guardian ad litem in the case. Sometimes both parents want to be co-guardians ad litem, but it is usually easier to select one parent. The parent who appears to be the most reliable and responsible may be the better choice. Does the parent have a job? How long has the parent worked? What type of profession is the parent in? These are all relevant questions in ascertaining which parent would be the best guardian for the child.

It should be noted that parents may be divorced or separated, or there may be other types of stress affecting the family. These are issues that need to be explored and discussed with the parents as potential guardians. Questions about legal status and documentation should also be considered. If the guardian is undocumented and gets deported, this could adversely affect the case.

Another important factor in selecting the best guardian is determining which parent is most available and able to respond to discovery and participate in depositions, mediations and trial. The decision is not a test of who is the better parent. In some cases, neither parent may be well suited to serve as guardian ad litem because of a history of drug use, other life challenges or both. In these situations, other family members -- such as grandparents, aunts, uncles or older siblings -- may be better suited to serve as guardian for the minor.

Another area to evaluate is a situation in which the minor is involved in an accident along with one of the parents. What happens when the parent was the driver and could be considered partially at fault for the accident? What happens when the parent is also injured, along with the minor, and there is limited coverage from the defendant?

Under California Rule of Professional Conduct 1.7, a lawyer generally may represent clients with conflicting interests if each affected client gives informed written consent. When the client is a minor, the guardian must provide that consent on the minor's behalf. If the parent involved in the accident is selected as guardian, it may be improper for that parent to sign a conflict waiver for the minor. For that reason, a potential conflict should be considered when deciding who should serve as guardian ad litem in that case.

California Rule of Professional Conduct 1.7(b) essentially states that a lawyer may not represent a client if the representation is directly adverse to another client in the same or a separate matter, unless each affected client gives informed written consent and the lawyer complies with paragraph (d).

Under Rule 1.7(b), if there is a significant risk that a lawyer's representation will be materially limited by duties to another client, former client or third person, or by the lawyer's own interests, consent is required.

Under Rule 1.7(c), even without direct adversity or a significant risk, written disclosure is required if the lawyer has a relationship with a party in the matter or if there is an intimate personal relationship with another party's lawyer.

California law recognizes three categories of conflicts that cannot be waived:

1. The lawyer is unable to provide disclosure due to confidential duties to a third person, or the client lacks capacity to consent;

2. The lawyer representing the client in a matter is directly adverse to the client in a related or separate matter;

3. Other authority  that may recognize statutory or case law precedent.

In the case of a minor where a parent is also hurt in an accident, a written conflict waiver should be obtained. If there is an argument that the parent was a cause or partial cause of the accident, separate counsel may be needed for either the minor or the parent. The issue should be discussed with an ethics lawyer to determine whether the conflict can be resolved.

It is important that the parent who is designated as the guardian be told several things up front in the case, including that any settlement obtained on behalf of the minor must be approved by a judge in a court proceeding known as a minor's compromise.

Most judges will also want to see the minor and guardian either in person or on a Zoom call to evaluate the appropriateness of the minor's compromise petition. Additionally, many judges like to see for themselves the status of the minor's injuries from the accident. The judge may ask to speak with the minor and personally observe any scarring or injuries resulting from the accident. Clients should be prepared for this request early in the case.

The guardian should also be made aware early in the case that the money obtained on behalf of the minor will not be accessible by the parents or other family members unless the funds are to be used for medically necessary treatment of the minor's injuries.

Parents may make requests after a settlement for expenses to cover birthday parties, bar mitzvahs, graduation parties, school tuition, vacations or home purchases. It is important that the guardian be made aware that the judge overseeing the minor's compromise will not approve these types of requests unless a very strong showing can be made that the expense is medically necessary, is for a medically necessary device such as a wheelchair, or is for modifications needed to accommodate a child who uses a wheelchair.

Many severely injured minors will also require a special needs trust that must be approved by the court. The importance of the special needs trust is that it can allow the minor to keep government or disability benefits while also having a trust to hold the settlement proceeds from the case. The minor may also be allowed to use the proceeds for medical needs before reaching the age of majority without losing eligibility for government benefits.

Most moderate or severe injury cases require deciding whether the settlement proceeds should be placed in a structured settlement that distributes funds over time. Typically, the agreed-upon guardian ad litem meets with a structured settlement professional to review options that serve the minor's best interests. The structured settlement terms must also be approved by the judge at the minor's compromise hearing.

If a structured settlement is not selected, the funds must be deposited into an FDIC-insured blocked account and generally may not be accessed until the minor turns 18, unless the court authorizes their use for medically necessary expenses. A blocked bank account may be the least desirable option when the minor receives even a moderate amount of money because many 18-year-olds are not prepared to manage substantial funds. A better practice is to encourage the guardian ad litem to consult with a structured settlement specialist and choose a plan that distributes the minor's funds over time, even if the payout period is relatively short.

This approach can help reduce the risk that the minor will quickly spend the funds on cars, vacations or other discretionary purchases after turning 18.