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By Chris A. Milne (A version of this article of Article appeared in the Suffolk University Law Review Vol.XXX Winter 1997 No.4; This version appeared in Massachusetts Lawyers Weekly March 2, 1998) Suddenly the case settles. The parent wants the money up front because she "knows what is best for her child." The insurance company insists on a structure with most of the settlement proceeds (purchase of an annuity with payout directly to the child in adult years) and you, on the child's behalf, acquiesce to both. At the settlement hearing, the parent-with a wink and a nod-says all of the right things in front of the judge. "It's my daughter's money, not mine. I hope she will save the money so that she may go to college ... maybe buy books or school clothes, but I know the money is not mine...." Something in your gut makes you feel very uneasy about all of this. You argued during the case, as if your life depended on it, that the child needed the money for special schools; that she should have the best chance in life to be made whole. Even though this doesn't feel right, you go along with it because you represent the mother... or do you? Over the years of representation you had implicitly and explicitly acknowledged to the parents it would be their money to spend... for the child, of course. After the settlement was approved by the court, the child's life continued as it was before and during the litigation. The school system never quite identified her problems. The mother loved her child, but did not know enough to question the minimal services and lack of quality developmental testing she received. With no summer program in place, the child lost the gains of each school year over the summer. She did go home each day, however, to a beautiful new house her parents bought. But after a few years, they lost the house because they were unable to pay the taxes and other costs of maintaining the home. At 18, the child's life is just as you had predicted when you argued "as if your life depended on it" that Christy needed the money for special schools; that she should have the best chance in life to be made whole. Unfortunately, without an independent qualified trustee who had a detailed educational medical plan and some court oversight, the parents ignored the plan and the recommendations. She dropped out of school without adequate education or skills, and is facing a life of unemployment. At a "friend's" suggestion, responding to a cable TV ad, the child sold the right to receive annuity payments for cash at age 18. She spent the money quickly. If, as this child's lawyer, you had the time and opportunity to observe what had become of your "fair settlement," you would recognize now that the uneasy feeling you had was, in fact, well-founded.1 As the above scenario demonstrates, there is a woeful lack of protection for a child's interest in a Massachusetts personal injury case. A new approach toward representing a child is necessary. The child's best interest requires that the lawsuit identify the child's unmet needs and set in place an ongoing support system to ensure those needs are met. Such a new approach, as set forth in this article, will serve to protect both the interests of the child and society in every civil tort case involving minors. Moreover, in light of well documented increases in severe poverty among children coupled with a retrenchment of the public sector's commitment to children, the public policy underlying tort law requires refocusing. The tort system must truly serve to make child victims whole. Statutes should require lawyers to utilize an ethically and socially responsible approach when representing developmentally injured children. Current Massachusetts law must be amended making court approval of minor's settlements mandatory and by setting objective requirements to "ensure that the child will, to the fullest extent medically and educationally possible, succeed in school and attain his or her highest vocational capacity through properly controlled use of the settlement funds ..."2 Representing Parent And Child A child may, through her prochein ami (next of friend), guardian ad litem or other representative, file a civil tort action for damages. The reported cases indicate that this representative is usually one of the child's parents. Often, the child's parents have their own claims for damages or their own self interest in mind when dealing with the child's recovered settlement funds. The lawyer's obligations to his clients, the parent and child, "to seek the lawful objectives of his client through reasonably available means permitted by law" are in conflict. See Sup. Jud. Ct. R. 3:07, DR 7-101(A)(1) (noting attorney must represent client zealously). Thus, the lawyer representing both the parent and child has a conflict of interest that will inevitably interfere with his obligation to protect the child's welfare. A next of friend may be any person who undertakes a lawsuit on the infant's behalf and whose authority is delineated by the cause of action, pro hac vice. "[T]he next of friend is presumed in theory of law to have been appointed by the court, [but in fact], no actual appointment is necessary; and the person who assumes to act as next of friend in instituting the proceedings." In order for the court to remove the prochein ami, the court must become aware of the need for removal. In Massachusetts, there are no reported cases where a child has sought or received a removal of the prochein ami. As a result, any adult may unilaterally choose to exercise a minor's legal rights while defining his or her own authority without oversight or limitation from the court, by filing a civil complaint for money damages. History Of Prochein Ami According to old English common law, "an infant could sue by guardian and could not sue any other way."3 The person who sued on behalf of the child, as guardian, could be the child's guardian or "some 'friend' of the infant."4 The action was the infant's, not the friend's, and the court would protect the infant's interests, which might be adverse to the friend. In 1285 A.D., the English enacted the Statutes of Westminster I, c.48 and II, c.15 due to concerns about the need to protect the infant against the frauds of the guardian, who had the legal custody of his person, which created a more regular procedure for the suits of infants by allowing a "next friend" (prochein ami, prochein amy, proximus amicus) to apply to sue for the infant. It is this concept of prochein ami that has found its way from the time of Edward I to the present. By a rule of the Supreme Judicial Court, a child in 1784 actually had more protection from the prochein ami than a child does today. This rule provided: "No Parsons v. Jones, 9 Mass. (Tyng) 106, 106 (1812). Thus, over 200 years ago, the SJC recognized the need to protect the child from the prochein ami. These requirements of posting a bond-a "well and true accounting" and payment to "such persons as the court may direct"-were necessary in the pre-industrial society of the late 1700s. In 1812, however, the Parsons court unfortunately held that this statute "had become obsolete, not having been practised for many years." Under existing law, as discussed above, presenting a minor's settlement to the court is now discretionary. No Protection For The Child's Interests A prochein ami need only file suit on his or her own or with the aid of counsel, thereby receiving full authority to act on the child's behalf. Once this authority vests, the child's protection from the conflicted parent prochein ami's actions diminishes. A child may challenge a settlement by the prochein ami, even where the prochein ami has filed a petition or agreement for judgment with the court, if there is a showing of "special circumstances, such as fraud, bad faith, or conscious disregard of a minor's interest."5 The child, however, must wait until reaching majority to pursue such an action. In fact, a child may recover from her prochein ami's lawyer where the court finds that "'no reasonable' attorney would have recommended that the client accept an offered settlement." Minors can also disaffirm releases that their next friend made on their behalf where the next friend does not file an Agreement for Judgment or a Petition for Approval of Settlement.6 Each of these avenues of recourse for the child are inadequate to redress a failure of the child's lawyer and the legal system to protect the child. By definition, the child must learn of the prior lawsuit once he or she reaches adulthood, and choose to file a subsequent suit. He or she usually learns about the earlier lawsuit from the same individual who would be a defendant in the child's subsequent lawsuit, and by someone advising the child of his or her entitlement to exercise these legal rights. Furthermore, as discussed previously, the lack of legal objective standards regarding the allocation of a minor's settlement, the range of what "no reasonable" attorney would recommend, is wider than the side of a barn. Therefore, the child's chances of collecting a judgment against a parent prochein ami or parent trustee, for whom there is no insurance coverage, is unlikely. Ethics: The Child's Lawyer In this very difficult conflict of interest situation, the child's lawyer must protect the child in a personal injury lawsuit. At the outset, the lawyer should advise the parent or guardian, both verbally and in writing, of the nature and potential consequences of this conflict situation.7 Furthermore, the attorney should draft a written parent's agreement authorizing: (1) the establishment of a trust for the money recovered with control over disbursements invested in an independent trustee; and (2) the use of a structured settlement and/or guardian ad litem. As set forth in the next section, the lawyer should work as a member of an interdisciplinary assessment team with the child's treating professionals, teachers, parents and experts the lawyer retained for litigation in order to best determine the child's needs. The child's lawyer should make the parent an integral part of the process in "the best interest of the child." Educational/Health Care Plan Ethics require the child's lawyer to "protect the welfare of the child." Research in both early childhood education and juvenile law demonstrates that a comprehensive multi-disciplinary assessment best identifies and addresses a child's needs. The educational/medical plan resulting from this assessment will improve the child's educational attainment, thereby providing a foundation for the child's achievement in life. To provide a foundation for the child's achievement in life, the child's lawyer must form a working multi-disciplinary alliance with treating medical providers, mental health professionals, educators, and experts retained for litigation for the purpose of developing the child's educational/health care plan. Through the development and implementation of this plan, the civil lawsuit itself provides a unique economic vehicle to identify the child's needs and create a support system for the child. A damage theory for a developmentally injured child focused on rehabilitation results in successful outcomes. The author has conducted and transcribed interviews of members of the multi-disciplinary teams to further explain and critically analyze the process. Each of the cases described infra used this multi-disciplinary approach. Case One: J. Lewis: This child's educational health care plan resulted in a $375,000 settlement.8 The educational consultant, Helen J. Kenney, Ed.D., acted as the liaison between the teachers, the pediatrician and the child's lawyer.9 The educational consultant took many steps in the Lewis case. First, Dr. Kenney reviewed the available documentation to ascertain "the clear cut impairments" and "the islands of strength" by looking at "the whole child... in terms of the child's full life space, the family, the community-all of the factors that impinge upon that child's growth and development" to get beyond the printed page. She noted that "[w]hat is important [is] the people who have produced these reports; the physicians, the psychologists, the school people... [I]t's only in direct contact with them that one can arrive at a full bridge, a comprehensive picture of the child from a perspective of that individual." Next, she proceeded to ascertain areas that require future testing-both standardized and more clinically oriented tests-which are typically not done as part of the school routine, but are useful as one element in arriving at an understanding of the child. The settlement funds for this child are in a trust with an independent trustee with power to supplement, but not supplant, existing benefits the family receives for the minor plaintiff. As a result of the multi-disciplinary assessment group's identification of an upcoming difficult transition to middle school, J. Lewis successfully managed that transition. The interview of Joyce Lewis, the mother of this child, exemplifies how a lawyer navigates the conflict of interest. Family involvement, especially by parents, is essential for the development and implementation of the interdisciplinary assessment because family members are the most important people in the child's life. Once the lawyer obtains the written disclosure, the lawyer should advise the parent of his/her critical role in the success of the child's lawsuit. Appropriate comments to the mother or father might include: "You are a good parent. You have brought this case because you care about [your child] and want to give her the best chance in life. You are not doing this for yourself so that you can get a lot of money. You are doing this for Jennifer. This case cannot succeed without your help. You are a good mother. We will work with the school system and Jennifer's treating doctors and the best experts in our country, and [thus] the world's, to identify her needs, obtain what is necessary to ensure those needs are met. The most important person for the success of all of this is you. You are Jennifer's mother. We will need your help each step of the way."10 This theme of empowerment had the desired effect on Mrs. Lewis, who remarked: "It just makes me feel good inside to hear somebody say that about me." Often, developmentally injured children come from poor families where it would be virtually impossible to provide the necessary "tools" for the child.11 As of this writing, J. Lewis has successfully completed a comprehensive summer school program and hopefully will have sufficient money and support to fulfill her mother's dream of "walk[ing] across the stage with a college diploma some day." Case Two: C. Gorham: For this child who sustained severe head injuries, the educational/health care plan resulted in a $2-million settlement, thus providing the trust with sufficient funds to provide for the child over her lifetime.12 Subsequent to the fall, the plaintiff received special education services and had, since the fall, passed each grade. The school, however, overlooked the child's head injury and its effects. Clinical neuropsychological testing revealed that the minor plaintiff was moderately retarded. Examiners communicated the results to her public school, both in writing and in person. These reports enabled a modification to the child's 766 placement during litigation and before disbursement of settlement funds. In January of 1995, the parties settled the case for the plaintiff's pre-litigation demand after a mediation. The centerpiece of the settlement discussions concerned the cost of the educational/health care plan using the multi-disciplinary approach. The settlement funds are presently accumulating in a trust with an independent private trustee. C. Gorham is in a private special needs school in a one-on-one teaching arrangement. This child has moved from substandard housing in the inner city to a new home in a rural setting purchased with trust funds. Settlement Or Verdict: Court Approval Upon settlement of the case or recovery on the verdict, the child's lawyer should establish a support system for implementing the child's educational/health care plan, thereby maximizing the child's educational, vocational and personal fulfillment. The attorney should obtain court approval. In appropriate cases, court oversight of the trust is prudent. Prior to requesting court approval, however, the attorney must prepare significantly. The child's attorney should consult a trust attorney to create an appropriate trust. Further, the trust must incorporate by reference the interdisciplinary assessment report or other relevant reports setting forth the child's short and/or long-term needs. The court should appoint an independent, private, qualified trustee to take title to the property. The "best interests of the child" are better protected when there are two fiduciaries-the guardian of the child and the trustee of the property-involved in the process.13 In Massachusetts, "the trial court may [emphasis added] review and approve a settlement for damages because of personal injury to a minor... in any case before the court where any party has filed a petition for settlement approval signed by all parties." Massachusetts law also provides for, at the discretion of the parties, a civil action instituted solely for the purpose of asking for court approval of a minor's settlement. There is not any substantive criteria, however, that the court must follow when approving the settlement. Ultimately, the parties have discretion to bring the settlement before the court. When the parties present a Petition for Approval of Settlement to the court, counsel should request that the court retain jurisdiction over the trust.14 As recommended herein, respected justices of the commonwealth's trial court have retained jurisdiction and have entered orders requiring trustees to file for periodic hearings for a Petition for Approval of Accounting. In addition to providing the court with periodic accountings of trust fund expenditures, the order should require the trustee to detail in writing the developmental test results in an effort to meet the child's educational and medical needs and specific plans for the upcoming year. Legislative Reform Required To Protect The Child When the lawyer successfully negotiates the conflict with the parent, the lawsuit is a positive vehicle of empowerment for parent and child. Negotiating the conflict, however, is hazardous at best. The negotiation, which occurs between private parties with little or no scrutiny, is between the child's needs and the parents' self-interest in the money. In a situation where the self-nominated prochein ami acts for his or her own financial gain without protecting the child's interest, it may be in the self-interest of the parent prochein ami, the child's lawyer and the defendant to refrain from requesting that the court remove the self-nominated prochein ami. For example, the parent may want the settlement with as few strings as possible. To the entrepreneurial lawyer, the parent is a source of business and it is "bad business" to alienate the clients who may bring you new business themselves, or by word of mouth. The defendant probably wants to resolve the case quickly for the lowest possible cost and would likely not choose to seek more zealous advocacy for his opponent. The party negotiating for the child's interest (when the parent is not) falls into a difficult conflict of interest situation. For the zealous advocate, the end result could be a letter of discharge from the parents' lawyer. Although the difficulty of this entire system is manifest, the potential reward of success in giving hope for a better life to the next generation is the essence of life. Therein lies a tremendous opportunity for appropriate action. Despite all good intentions, the conflict with the parent may result in discharge of the child's lawyer. The child's lawyer must weigh the effect such a discharge will have on the child against the ethics and competence of successor counsel, all of which is out of his control. If the lawyer must placate the parent, the tension caused by the conflict is a compromise of the child's best interest. The degree of compromise is an unknown. Mutuality Of Interest: The Child And Society Public policy is a concept deeply rooted in tort law jurisprudence.15 In fact, the 20th century has brought an increasing realization of the fact that the interests of society will infiltrate disputes in which the parties are private litigants.16 "[I]t is not the interests of the particular litigants alone which are in controversy... it has become commonplace that the interest of society is often involved in disputes in which the parties are private litigants." The interests of society, affected by political trends and changed economic circumstances, should have a controlling effect on the development of tort law. The dismantling of the public sector's financial commitment to indigent families with children and the problems associated with special education are legitimate concerns of society. These concerns should have a "controlling effect" over society's interest in personal injury settlements for children. Where the state has created tort rights for young children, the child's well-being must be determinative and not the parents'.17 Lawmakers must enact legislation to ensure not only that the child's best interests are protected, but also, that society's interests be protected. Conclusion The commonwealth has abdicated its responsibility to young children because it does not require that money damages recovered in personal injury cases contribute to the health and education of the child plaintiff. The commonwealth must permit the child's lawyer to fulfill his ethical obligations without conflict, and further society's interest in the welfare of its children. Current Massachusetts law must be amended making court approval of minor's settlements mandatory and by setting objective requirements to "ensure that the child [who receives a recovery in a tort case] will, to the fullest extent medically and educationally possible, succeed in school and attain his or her highest vocational capacity through properly controlled use of the settlement funds..."18 When the focus of the lawsuit is on developing an educational/health care plan for the child, and the settlement or recovery is used to implement that plan, the civil lawsuit is a vehicle of empowerment for the child and the child's family. Mandating such an approach, by the legislation proposed in this article, resolves the lawyer's inherent ethical conflict in representing the parent and child. This approach allows the lawyer to be socially responsible while maximizing the child's recovery by setting in place a support system for the child's educational and vocational attainment. The search for truth is focused on identifying the child's needs and setting in place a support system to meet these needs. Consequently, the child's tort case is directed towards furthering the mutual interests and dreams of the parents and the society. As Joyce Lewis stated, this dream will be fulfilled when she sees her child "walk across the stage with a college diploma some day." This article was excerpted from "The Child's Tort Case: Ethics, Education & Social Responsibility," which appeared in XXX Suffolk University Law Review, 1097 (1997). Endnotes 1 This hypothetical scenario is a composite of elements of several different cases handled by the author. 2 See Chris A. Milne, "Requiring Court Approval For Minor's Settlements," 24 Mass. Lawyers Weekly, Feb. 12, 1996, at 1123, 1142 (suggesting new language for current statute); infra note 177 and accompanying text (discussing proposed settlement fund disbursement). 3 Tapping Reeve, Historical Writings on Law and Jurisprudence, The Law of Baron and Femme 264 (1816). 4 2 Sir Frederick Pollock & Frederic W. Maitland, The History of English Law Sect. 3, at 441 (1923). 5 See Nagle v. O'Neil, 337 Mass. 80, 81-83, 148 N.E.2d 183, 184-85 (1958) (reaffirming minor's right to challenge approved settlement); Baker v. Binder, 34 Mass. App. Ct. at 292, 309 N.E.2d at 1243 (1993) (reiterating standard for setting aside minor's settlement). 6 See Butler v. Winchester Home for Aged Women, 216 Mass. 567, 569, 104 N.E. 451, 452 (1914) (refusing settlement by infant's next friend unless approved by the court); Tripp v. Gifford, 155 Mass. 108, 110-11, 29 N.E. 208, 209 (1891) holding settlement invalid unless affirmed by court or by entry of judgment). 7 See Sup. Jud. Ct. R. 3:07, DR 5-105© (noting rule permits representation of multiple clients after full disclosure to each client); see also Maddocks v. Ricker, 403 Mass. 592, 597, 531 N.E.2d 583, 587 (1988) (holding plaintiff did not receive full disclosure and thus could not consent to multiple representation); Masiello v. Perini Corp., 394 Mass. 842, 845-46, 477 N.E.2d 1020, 1023 (1985) (reaffirming principle of both clients consenting to multiple representation); McCourt Co. v. FPC Properties, Inc., 386 Mass. 145, 145-47, 434 N.E.2d 1234, 1235 (1982) (declaring consent still required even where attorney can adequately represent parties). On June 9, 1997, the SJC replaced the former Massachusetts Code of Professional Responsibility with the Massachusetts Rules of Professional Conduct, which the court based primarily on the Model Rules of Professional Conduct. Specifically, Rule 1.14 relating to a client under a disability states in pertinent part: "(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of a minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's best interest." Mass. Rules of Professional Conduct Rule 1.14 (Scheduled to go in effect on Jan. 1, 1998). 8 See Trial Report: Lewis v. Roche, 24 Mass. Lawyers Weekly, April 15, 1996, at 1622 (reporting how Lewis' $375,000 settlement fueled by use of IMR); see also Interdisciplinary Medical Report for Jennifer Lewis at 8-11 [hereinafter IMR for Lewis] (summarizing consensus finding and recommendations). 9 Interview with Dr. Helen Kenney, educational consultant (Sept. 20, 1996) transcript on file with author). 10 Interview with Joyce Lewis, Boston (Oct. 8, 1996) (transcript on file with author). 11 Supra at 2. 12 See "Following The Money-Lawyers For A Girl Who Fell From A Public Housing Staircase Use A Unique Argument To Obtain A $2M Settlement," 23 Mass. Lawyers Weekly, June 26, 1995, at 2095 (commenting settlement reached due to unique method). The Gorham case was the largest reported settlement in Massachusetts on behalf of a child in 1995. See 24 Mass. Lawyers Weekly, Feb. 26, 1996, at 1261 (listing settlements over $1 million in 1995). 13 See Charles E. Rounds Jr. & Eric P. Hayes, "Loring: A Trustee's Handbook Sect. 3" (1997) (discussing considerations for trustee and settlement proceeds). 14 G.L.c. 231, Sect. 140C 1/2 (1996). The statute states in pertinent part: "[t]he trial court may make such orders and take such action as it deems necessary to effectuate the disposition of a settlement approval ..." 15 See W. Page Keeton et al., Prosser and Keeton on the Law of Torts, Sect. 3, at 15 (5th ed. 1984) (describing prevalence of public policy and social theory in tort arena); see also Percy H. Winfield, "Public Policy and the English Common Law," 42 Harv. L. Rev. 76, 77 (1928) (suggesting public policy pervaded legal system where substantive law lacking). 16 Keeton et al., supra note 15, at 15; see Francis H. Bohlen, "Fifty Years of Torts," 50 Harv. L. Rev. 725, 725 (1937) (opining society's and litigants' interests influence tort law). 17 See Joseph Goldstein et al., "Beyond the Best Interest Of the Child" 7 (focusing on child's interest and guidelines for creating law). The authors recognize that "[state] law must make the child's needs paramount. It is in society's best interest." 18 See Milne, supra note 2, at 1123 (setting forth new settlement fund disbursement under proposed statute). But see G.L.c. 231, Sect. 140C 1/2 (1996) (setting forth current settlement guidelines). Chris A. Milne is of counsel at the civil trial firm of Shuman & Ross, and also maintains an office in Dover. He is a member of the adjunct faculty in the Department of Psychology at Suffolk University in Boston and recently chaired a Massachusetts Continuing Legal Education seminar on "The Child's Tort Case" setting forth, in detail, the approach described herein (MCLE 1997 98-17.02) Reprinted from Massachusetts Lawyers Weekly. |