A lawyer represents a wife on a personal injury claim and her husband on a loss of consortium claim, and the husband has vanished. Can the lawyer settle the wife's claim?

Plain-English summary

A lawyer was retained to represent a married woman on a personal injury claim and her husband on a derivative loss of consortium claim. The husband later abandoned the wife, she divorced him, and both the wife and the lawyer lost contact with him. No suit had been filed, but a settlement offer was made to the wife that she wished to accept. The committee was asked whether the lawyer could continue to represent the wife where settlement would prejudice the husband's claim, and how to proceed given that the husband had disappeared.

On the conflict, the committee explains that under DR 5-105 a lawyer may not represent differing interests absent each client's informed consent. Because settling the wife's claim would generally bar the husband's derivative consortium claim (the committee cites Buckley v. National Freight for that proposition of law, while noting the legal question itself is outside the committee's jurisdiction), the lawyer would be forced to choose between settling for the wife and preserving the husband's claim. That is a representation of differing interests, so the lawyer must withdraw from both unless the affected client consents; the lawyer could proceed only with the husband's informed consent after explaining the risk to his claim.

On the missing client, because the husband has neither discharged the lawyer nor been withdrawn from, the lawyer must continue to protect his interests by reasonably available means (DR 7-101(A)(1)). The inability to communicate makes that difficult. Before withdrawing, the lawyer must take all reasonable steps to locate the client, which may include certified mail to the last known address, a personal visit, or a search of directories, public records, or the Internet. Having exhausted those steps, the lawyer may withdraw under DR 2-110, sending written notice to the last known address warning that delay may prejudice the claim and suggesting other counsel, and taking the DR 2-110(A)(2) steps to avoid foreseeable prejudice. The committee adds that even after withdrawing from the husband, the lawyer still could not represent the wife if settling her claim would prejudice the now-former husband client in the same or a substantially related matter, absent the former client's consent (DR 5-108).

In practice

Under the New York Code as it stood at the time, the opinion holds that a lawyer jointly representing a personal injury plaintiff and a derivative consortium claimant cannot settle the injury claim in a way that bars the consortium claim without both clients' informed consent, because that is a representation of differing interests under DR 5-105. The committee makes the duty to a vanished client concrete: the lawyer must keep protecting the missing husband's interests and may withdraw only after a documented, reasonable search (certified mail, a visit, directory and public-record searches), with written notice warning of prejudice. It also flags that withdrawing from the husband does not free the lawyer to act against him as a former client under DR 5-108 absent consent.

Common questions

Q: Can the lawyer settle the wife's claim if it would extinguish the husband's consortium claim?

A: Not without informed consent. The committee concludes that settling in a way that bars the husband's derivative claim creates differing interests under DR 5-105, so the lawyer could proceed only with the husband's informed consent.

Q: What must the lawyer do about the missing husband before withdrawing?

A: Take all reasonable steps to locate him. The committee lists certified mail to the last known address, a personal visit, and searches of directories, public records, or the Internet.

Q: After locating efforts fail, how does the lawyer withdraw?

A: Under DR 2-110, by sending written notice of intent to withdraw to the last known address, warning that delay may prejudice the claim, suggesting other counsel, and taking the DR 2-110(A)(2) steps to avoid foreseeable prejudice.

Q: Once the lawyer withdraws from the husband, can the lawyer then settle for the wife?

A: Only if doing so would not prejudice the now-former husband in the same or a substantially related matter, or with his consent; DR 5-108 still constrains the lawyer.

Background and rules framework

The opinion applies New York's former Code of Professional Responsibility. DR 5-105 governs concurrent representation of differing interests and its consent mechanism (a facet of Model Rule 1.7); DR 5-108 governs duties to former clients (analogous to Model Rule 1.9); DR 2-110 governs withdrawal and the steps to avoid prejudice (analogous to Model Rule 1.16); and DR 7-101(A)(1) reflects the duty of diligence to a client whose representation continues (analogous to Model Rule 1.3). EC 5-15 directs that doubts be resolved against multiple representation.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts; differing interests); NY DR 5-105
• MR 1.9 (former clients); NY DR 5-108
• MR 1.16 (withdrawal); NY DR 2-110
• MR 1.3 (diligence); NY DR 7-101(A)(1)

Cases:

• Buckley v. National Freight, 90 N.Y.2d 210 (1997), settlement of the injured spouse's claim generally bars the other spouse's loss of consortium claim

Other opinions cited:

• ABA Informal Op. 1467 (1981): no duty to file suit to toll the limitations period for a client who cannot be located after reasonable effort
• Rhode Island Op. 1992-94: duty to keep protecting a missing client's interests

See also

• NY State Bar Op. 1163: Duty when unable to locate a missing client
• NY State Bar Op. 1144: Limiting communications and withdrawing from a difficult client
• NY State Bar Op. 1070: Joint clients, confidentiality, and file access

Source

• Landing page: https://nysba.org/ethics-opinion-787/