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Next Friends: Can the Attorney for the Minor Act as Next Friend in Emancipation Proceedings?

Minors can be wronged, they can wrong, and they can be in need of protection or relief. However, it is well-recognized that minors lack the capacity to bring legal actions or defend against them. What about when minors sue seeking adult status in the real world. Enter the next friend, and more specifically, enter the next friend in an emancipation of mature minor proceeding. In an emancipation proceeding, the petition must be filed on behalf of the minor by his / her next friend, parent, or guardian. Given the reading of the statute, the next friend does not need to be the parent or guardian of the minor. In fact, it would seem inappropriate for the next friend of the mature minor to be the parent or guardian from whom the minor seeks emancipation. Or, a situation could arise where a non-custodial parent attempts to serve as the next friend of a mature minor against the custodial parent in an attempt to circumvent the Illinois Marriage and Dissolution of Marriage Act. Focusing on the mature minor seeking emancipation from his or her parents, the minor turns to the attorney he or she has hired to prosecute the emancipation proceedings and requests the attorney serve as the next friend.

A next friend is not a party to a suit, but represents the real party, who, as a minor, lacks the capacity to sue in his own name. In practice, the next friend is the adult representative of a minor plaintiff, while a guardian ad litem is the adult representative of a minor defendant. The functions and powers of a next friend are the same as those of a guardian ad litem, and with the exception of on which side they represent the minor, the next friend or guardian ad litem is to represent the minor’s interest in the litigation. Id. Given that the next friend is essentially the same as a guardian ad litem, whether the Illinois courts have allowed an attorney for a minor to serve as the minor’s guardian ad litem will shed light on whether an attorney for a minor may also serve as the minor’s next friend.

The most common practice in juvenile court actions in Illinois, at certain points in the history of the Juvenile Court Act, to appoint one person to act as the minor’s attorney and his / her guardian ad litem. In fact, Illinois courts have stated that there is no reason why a solicitor for a party to a suit who is not of legal age should not also be appointed as that party’s guardian ad litem. In fact, the court noted that is common practice in equitable proceedings to appoint solicitors as guardians ad litem. Illinois courts also have not previously felt that, in juvenile court, there is any inherent conflict between the roles of attorney and guardian ad litem. The courts believe that the juvenile counsel and the guardian ad litem have essentially the same obligations to the minor and to society. The courts have considered and affirmed cases in which counsel has acted as guardian ad litem.

Since the roles of next friend and guardian ad litem are, by nature, the same, logic might dictate that the above arguments apply to principle of allowing attorneys for minors to serve as next friends for minors seeking to initiate proceedings in the courts, juvenile, civil, or otherwise. Especially in emancipation proceedings, where the parent and child are technically adverse, the attorney for the minor may be the only party able and / or willing to serve as the next friend for the minor.

Conclusion

Thus, herein lies the dilemma. Just because an attorney can do something, doesn’t always mean the attorney should. Furthermore, taking on the role of attorney for the child in an emancipation proceeding may invoke a possible conflict under the new Supreme Court Rules. Illinois Supreme Court Rule 907(a) requires every “child representative, attorney for a child, and guardian ad litem" to adhere to all rules of professional conduct. Granted, the Emancipation of Mature Minors Act is not mentioned in Illinois Supreme Court Rule 900, however, the ethical conundrum of representing a child and serving as the person bringing the lawsuit on his or her behalf is important to consider. Do you have a client under a disability? As next friend, the attorney may be taking on the added responsibility of acting in a manner in consistent with his or her ethical duties to the child client. Does this multiple role affect the attorney’s ability to represent his or her child client? As next friend, would the attorney possibly be called as a witness as to the child client’s motivations for bringing an emancipation suit?

A child seeking adult legal status to make his or her own decisions needs skilled legal experience. It would appear that there is little case law to say that the attorney should not also serve as next friend. However, the skilled legal experience of the attorney in an emancipation proceedings should step back and keep the lawyer hat on, finding another person to put on the next friend hat (even if the next friend hat fits the lawyer too).

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