107 N.J.L.J. 574
June 18, 1981
Representing Parent and
Child Co-Defendants in Auto Case
An attorney raises the question "whether a conflict of
interest would exist if I were to represent a minor and his mother
as parties defendant in an automobile negligence action where the
minor was an unauthorized, unlicensed driver and the mother's
liability is asserted for failure to adequately supervise and
control the minor."
A complaint was filed naming the minor as a defendant who was unauthorized operating the car as well as being an unlicensed driver. The inquiring attorney who is associated with a legal services project, was defending that action in behalf of the minor. Approximately one month after the suit was filed, plaintiff moved to amend his pleadings to add the mother as a defendant, alleging failure on her part to supervise and control. The inquirer anticipates that the mother as a co-defendant will approach him to represent her. The inquirer recognizes that there are "possible areas of conflict" in the event of dual representation. He recognizes that there is a "possibility of cross-claim by each against the other for contribution as joint tortfeasors" and "[s]econd, the possibility that the mother's defense will undercut the minor's credibility."
The fact that possibilities of conflict may arise in the event of dual representation immediately forecloses such representation, and we are of the opinion that the inquirer should not undertake the defense of both the minor and the parent. The inquirer properly cites Lawlor v. Cloverleaf Park, Inc., 101 N.J.Super. 134 (Law Div. 1968), as setting forth a proposition that "where a child and his custodial parent are sued in an automobile negligence action on the theory of negligent operation as to the child and lack of supervision and control as to the custodial parent, the child and parent are allegedly, in effect, joint tortfeasors." The New Jersey Supreme Court in France v. A.P.A. Transport Corp., 56 N.J. 500 (1970), abrogated the parent-child immunity doctrine and overruled the cases which held to the contrary. The decision at that time was limited to motor vehicle cases. To permit dual representation based upon the facts set forth in the present inquiry would be contrary to and in violation of DR 7-101(a) and DR 5-105 (c), and particularly so by reason of the fact that the infant involved in this case cannot consent to the dual representation; as well as the New Jersey Supreme Court Directive set forth in 91 N.J.L.J. 81 (Feb. 8, 1968), and as referred to in this Committee's Opinion 156, 92 N.J.L.J. 481 (1969), Opinion 188, 93 N.J.L.J. 789 (1970) and Opinion 248, 96 N.J.L.J. 93 (1973).
Based upon the circumstances set forth in the inquiry, the potential for conflict is sufficient to bar the attorney from representing both parent and child as co-defendants in the auto negligence action.