May a lawyer who handled a husband's injury claim contact the former clients to tell them the wife now has her own claim for loss of consortium?

Plain-English summary

A lawyer whose firm did extensive personal injury work asked about an ethical problem created by the Florida Supreme Court's decision in Gates v. Foley, 247 So.2d 40 (1971), which held that a wife may assert a claim for loss of consortium arising from injury to her husband and overruled contrary prior decisions. The firm had handled many tort claims brought on behalf of husbands, or settled on a husband's behalf, "without taking care of the wife's rights." The lawyer wanted to contact those former clients to advise them that the wife had a claim if she wished to pursue it, and asked whether doing so would violate the rules against solicitation of employment or stirring up litigation.

A majority of the committee determined that the lawyer could advise his former clients of the wife's new cause of action if he had established a bona fide attorney-client relationship with the wife, as well as the husband, at the time of the former representation. For example, if the wife had consulted or retained the lawyer to assert any possible claims, she would have the status of a former client within the reach of Florida Opinions 64-61 and 67-31 (the latter since withdrawn), and EC 2-4 supported volunteering such advice to former clients on matters germane to the former employment. Two committeemen would have gone further and allowed advising the husband of the wife's claim even if the wife had never been a client, resting on the husband's interest in his wife's rights. A minority took the opposite view, reasoning that on the stated facts the wife never became a client, so advice prompting a new claim by her would be improper. The committee noted that several underlying questions of law (whether the wife's claim survived prior settlement, release, or merger in a judgment) were beyond its jurisdiction.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (EC 2-4), the subject matter of which is now addressed by Rule 4-7.18. Treat this page as historical context, not current guidance. Verify against current Rule 4-7.18 before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer contact the former clients about the wife's new claim?

A: Under this opinion, a majority said yes, but only if the lawyer had established a bona fide attorney-client relationship with the wife during the earlier representation, so that she was a former client to whom advice on a germane matter could be volunteered.

Q: What if the wife had never actually been the lawyer's client?

A: The majority's condition was an existing attorney-client relationship with the wife. A minority of the committee believed that, if the wife was never a client, advising her of the new claim would be improper solicitation; two members would have permitted advising the husband regardless.

Q: Did the committee decide whether the wife's claim could still be pursued?

A: No. The committee said questions such as whether the claim survived a prior settlement, release, or judgment were questions of law beyond its jurisdiction.

Background and rules framework

The opinion applied EC 2-4 of the former Code, which addressed a lawyer volunteering advice to former clients on matters germane to the former employment, against the rules barring solicitation of employment. That subject is now in Rule 4-7.18, governing direct contact with prospective clients. The Model Rule analogues are Rules 7.3 (solicitation of clients) and 7.2 (communications concerning a lawyer's services).

Citations and references

Rules of Professional Conduct:

• EC 2-4 [Code of Professional Responsibility; subject matter now in Rule 4-7.18(a)]

Cases:

• Gates v. Foley, 247 So.2d 40 (Fla. 1971), recognizing a wife's claim for loss of consortium

Other opinions cited:

• Florida Opinions 64-61 and 67-31 (the latter since withdrawn)

See also

• FL Bar Ethics Op. 73-32: Representing Heir-Finders
• FL Bar Ethics Op. 77-8: Heir-Hunting Service Referrals
• FL Bar Ethics Op. 02-5: Second Opinion, Represented Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-46/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-46-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 71-46
September 21, 1971
Advisory ethics opinions are not binding.
If the attorney who represented a husband in a matter also established a bona fide attorney-client relationship with the wife, it would be proper for him later to advise the clients that the wife has a newly created cause of action for the same matter.
CPR: EC 2-4 [See current 4-7.18(a)]
Opinions: 64-61, 67-31
Case: Gates v. Foley, 247 So.2d 40 (1971)
Chairman Clarkson stated the opinion of the committee:
A lawyer whose firm practices extensively in the field of personal injury litigation seeks resolution of an ethical problem created by the decision of the Florida Supreme Court in Gates v. Foley, 247 So.2d 40 (1971).
The court's holding in the Gates case was that a wife may assert a claim for damages for loss of consortium resulting from personal injury to her husband. The court specifically overruled prior Florida decisions reaching a contrary result. The decision apparently has retrospective application to claims not barred by statutes of limitation.
The inquiring lawyer states that his firm has handled many tort claims "where action was brought on behalf of the husband, or the case was settled on behalf of the husband, without taking care of the wife's rights." In such instances he feels an obligation to contact the former clients to advise them that the wife has a claim if she wishes to pursue it. Our advice is sought whether, under the stated circumstances, the attorney would offend those provisions of the former canons and present code proscribing the solicitation of employment or the stirring up of litigation.
A majority of the Committee has determined that the lawyer may advise his former clients of the wife's new cause of action if he established a bona fide attorney-client relationship with the wife as well as the husband at the time of the former representation. For example, if the wife either consulted or retained the lawyer for the purpose of asserting any possible claims, either in her own right or jointly with her husband, she would now have the status of a former client and, as such, be within the reach of our former opinions 64-61 and 67-31 [since withdrawn], subject to the restrictions therein discussed. Also apposite is EC 2-4, stating that "it is not improper for a lawyer to volunteer such advice and render resulting legal services to . . . former clients (in regard to matters germane to former employment)." [See current Rule 4-7.18(a)]
Two Committeemen go further, and find no impropriety in advising the husband of the wife's newly-created cause of action even though the wife never actually became a client, resting their viewpoint upon the husband's presumably substantial interest in his wife's legal rights. This viewpoint, not adhered to by the majority, presupposes that the husband-wife relationship continues at the present time.
A minority of the Committee believes that the stated basis for the inquiry shows the wife never became the lawyer's client, so that any advice leading to the assertion of a new claim by her would be improper. If, as stated, the husband's claim was disposed of "without taking care of the wife's rights," it seems obvious that the wife was not called upon to execute a release or satisfy a judgment in order to bar collateral claims such as her own personal injuries or damage to her property. Plainly stated, the minority position is that neither her status as wife nor her accompaniment of her husband to the lawyer's office to aid in the assertion of her husband's claim is sufficient to establish the wife as a client.
The Committee recognizes that several questions of law are implicit in the present inquiry. Whether the wife's new cause of action may be pursued without rescinding any former settlement of the husband's claim and whether the wife's claim has been released, merged in a judgment or otherwise barred are questions beyond the jurisdiction of this Committee.