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“Next Friend” Lawsuit Creates Legal Problems

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"Next friend"

We have written before about guardians ad litem. A recent Alaska case reviewed the similar — but different — use of a “next friend” in a civil lawsuit. What’s the difference, and why did it matter in the Alaska case?

Helen’s boating accident

Back in 1993, a 17-year-old boat operator collided with another boat on an Alaskan river. The boat she hit included a pregnant passenger named Helen Bravo. Helen hit the back of her head, briefly passed out and may have swallowed water in the accident.

Helen’s baby was born six months later. Though the birth itself was unremarkable, her daughter Ashley had been assessed as eligible for special education services by her third birthday. She evidenced cognitive difficulties, attention deficit / hyperactivity disorder and other problems during her minority.

Helen apparently had long believed that the boating accident contributed to Ashley’s cognitive and developmental difficulties. Of course, Helen’s ability to file a lawsuit for the injuries would have run out within a few years of the incident itself. But Ashley’s ability to file a lawsuit would not run out until two years after her eighteenth birthday.

Helen files a lawsuit on behalf of Ashley

When Ashley turned 18, the statute of limitations began to run on her possible claim. Just a few days before the statute would preclude any lawsuit, a lawyer representing both Helen and Ashley filed against the owner and operator of the other boat. The lawsuit named Ashley as the plaintiff, and Helen as her “next friend”. Helen signed the lawsuit and managed the legal proceeding in consultation with her (their) lawyer.

Under conventional practice, Helen could simply declare herself to be “next friend” but a court proceeding would ultimately be necessary to settle any lawsuit or receive funds. For the moment, though, no one objected to her “next friend” characterization.

The defendants did, however, object to the merits of the case. Discovery quickly established that medical experts could draw no connection between the boating incident and Ashley’s cognitive difficulties. In fact, the defendants filed a motion for summary judgment — that is, to dismiss the lawsuit altogether. The also asked for Ashley and Helen to pay their legal fees and costs to that point in the litigation.

Just before the court heard their motion for summary judgment, the defendants made an offer to Helen and her attorney. Agree to dismiss the lawsuit, they said, and we’ll agree not to ask for our fees and costs. Ashley would be better off than if she proceeded with a lawsuit that she likely couldn’t win.

Helen refuses to dismiss

Though her lawyer advised her that the “walk-away” offer made sense, Helen insisted that the lawsuit should continue. She made the decision on behalf of Ashley, still acting as her “next friend”.

The lawyer was suddenly in a difficult position. He believed that the “walk-away” resolution was in Ashley’s best interests, and he had a duty to protect her interests. His other client, Helen, was insisting that he go forward with an action that he no longer believed had merit. He had an irreconcilable conflict in duties, and so he moved to withdraw as counsel.

In his motion to withdraw, the attorney noted that Helen was “getting away with” representing her daughter’s interest without any legal authority. She had not been appointed as conservator of Ashley’s estate, or guardian of her person. She had not even been appointed as guardian ad litem — an option available through the court.

The trial judge sympathized with the attorney’s dilemma, and let him withdraw from the case. The judge did not, however, appoint a guardian ad litem, or order a conservatorship or other proceeding to assess Ashley’s ability to make her own decisions. He ordered Helen to get a new lawyer or to proceed without counsel.

The case is dismissed, and Ashley ordered to pay fees

Helen apparently could not find new counsel, and she did not respond to the defendants’ motion for summary judgment. She did file documents with the court asking that her attorney be ordered to return and finish the case; the court declined to require him to pick the case back up. Ultimately, the trial judge dismissed Ashley’s lawsuit and ordered her — and Helen — to pay about $5,000 in costs and attorneys fees.

Helen appealed the court’s resolution. Last week the Alaska Supreme Court reviewed the lawsuit and ordered the trial judge to reconsider the role of “next friend” as it played out in Ashley’s case.

The state’s high court noted that Helen had no legal standing as “next friend”. She had not been appointed as her daughter’s surrogate (as she would have been in, say, a conservatorship proceeding). There had not even been a clear finding that Ashley was unable to make her own decisions.

Once the lawyer withdrew, Helen had no legal authority to file anything in the litigation — including, in fact, the appeal itself. Because the judgment was against her personally as well as her daughter, though, the Supreme Court went ahead and considered the case and remanded it for further proceedings.

The trial judge had plenty of evidence, noted the appellate justices, that there were questions about Ashley’s ability to make her own decisions. He should have conducted some sort of evidentiary hearing and appointed a guardian at litem — or perhaps even insisted on a guardianship or conservatorship filing.

The Supreme Court reversed the dismissal and remanded the case back to the trial judge. They ordered the trial court to reconsider the withdrawal of Ashley and Helen’s attorney. That was intended not to keep him in the case, but to determine whether a gaurdian ad litem or other representative should be appointed for Ashley. Bravo and Bravo v. Aker, January 4, 2019.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.