When a lawyer represents both spouses in one personal injury case, can one spouse demand the other be dropped so a settlement can be taken?

Plain-English summary

A lawyer was retained by a client for a personal injury case. Early on, the client asked that the spouse be added as a plaintiff, and the client reviewed and approved a complaint that included a loss-of-consortium claim for the spouse. The complaint was filed and the action was pending for about two years, during which the lawyer spoke frequently with both the client and the spouse. A settlement offer was on the table, and the client was demanding that the lawyer remove the spouse from the action. The lawyer asked whether the client could demand removal, whether the lawyer should move to sever or remove the spouse's claim, and whether the situation created a conflict.

While noting it does not opine on questions of law, the committee concluded that an attorney-client relationship appeared to have formed between the lawyer and the spouse once the lawyer filed the consortium claim on the spouse's behalf, citing In re Warder and In re Morgan. On that footing, the client did not have the right to have the spouse removed, and the lawyer could not ethically dismiss or move to sever the spouse's claim, or proceed with a settlement, without the spouse's consent. The committee said the lawyer should inform both the client and the spouse of these limits, preferably in writing.

The committee concluded the situation might ripen into an actual conflict requiring withdrawal but could often be resolved without one. For example, the client and spouse could agree to a lump-sum settlement unallocated between their claims (ethically permissible with both clients' consent after consultation under Rule 1.8(g)), with the lawyer then asking the court to allocate the funds, or suggesting mediation or arbitration to allocate them while holding the funds in trust. The committee added that it would even be ethically permissible for the lawyer to act as an intermediary between the two clients under Rule 2.2 to resolve a dispute about allocation fairly.

Currency note

This opinion was issued in 1999, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. The South Carolina rule on lawyer-as-intermediary (former Rule 2.2) was eliminated when the ABA Model Rules were restructured in 2002, so the 2.2 analysis in particular is historical. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can one client force the lawyer to drop a co-client spouse from a joint case?

A: The committee concluded no: once the lawyer filed a loss-of-consortium claim on the spouse's behalf, an attorney-client relationship appeared to exist with the spouse, so the lawyer could not dismiss or sever the spouse's claim without the spouse's consent.

Q: Can the lawyer settle without both clients agreeing?

A: The committee concluded no: the lawyer could not proceed with the settlement unless both the client and the spouse consented, consistent with Rule 1.8(g) on settlements affecting multiple clients.

Q: How could the lawyer resolve the impasse without a conflict?

A: The committee suggested an unallocated lump-sum settlement consented to by both clients under Rule 1.8(g), with the allocation between the two claims then decided by the court or through mediation or arbitration while the funds are held in trust.

Background and rules framework

The opinion interpreted South Carolina RPC 1.8(g) (a lawyer representing two or more clients may not participate in an aggregate settlement without each client's consent after consultation) and former RPC 2.2 (lawyer as intermediary between clients), corresponding to the like-numbered Model Rules then in effect. The threshold formation-of-relationship point rested on South Carolina case law (In re Warder; In re Morgan).

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.8(g) / Model Rule 1.8(g): aggregate settlement of multiple clients' claims requires each client's consent.
• South Carolina RPC 2.2 (former) / Model Rule 2.2 (former): lawyer acting as intermediary between clients.

Cases:

• In re Warder, 316 S.C. 249, 449 S.E.2d 489 (S.C. 1994), cited for formation of an attorney-client relationship.
• In re Morgan, 288 S.C. 401, 343 S.E.2d 29 (S.C. 1986), cited for an attorney-client relationship forming when a lawyer takes legal action on a person's behalf absent notice that none is intended.

Other opinions cited:

• S.C. Bar Ethics Advisory Opinion 95-02.

See also

• SC Bar Ethics Op. 99-11: Out-of-State Loan Terms and Limited-Scope Engagement
• No further sibling opinions yet indexed.

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-99-13/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 99-13

Facts
Client retained Attorney to represent him in a personal injury case and signed a retainer agree­ment. Early in the matter, Client requested that Spouse be made a party plaintiff. Client subsequently reviewed and approved a complaint which included a prayer for damages for Spouse’s loss of consortium. The complaint was filed, and an action is now pending in Circuit Court. During the two years that the action has been pending, Attorney has had frequent conversations with both Client and Spouse.

An offer of settlement is on the table, and Client is demanding that Attorney remove Spouse from the action.

Questions

1. Does Client have the right to demand removal of Spouse as a party?
2. Should Attorney file a motion to have the Spouse removed as a party or Spouse’s claim severed?
3. Does this situation present a conflict for Attorney and clients?

Summary
It appears that a client-attorney relationship exists between Attorney and Spouse. Accordingly, Client does not have the right to have Spouse removed as a party, nor should Attorney take any action regarding Spouse’s claim without Spouse’s consent. The situation may ripen into an actual conflict of interest, but with the assistance of Attorney may be resolved without a conflict developing. For example, Client and Spouse may agree to accept the settlement, with the division of the settlement between the claims of Client and Spouse decided by the Circuit Court or through alternative dispute resolution.

Opinion
While the committee does not issue opinions on questions of law, it appears that a client-attorney relationship was formed between Attorney and Spouse when Attorney filed a claim on Spouse’s behalf for loss of consortium. See In re Warder, 316 S.C. 249, 449 S.E.2d 489 (1994); In re Morgan, 288 S.C. 401, 343 S.E.2d 29 (1986) (when lawyer takes legal action on behalf of a person, an attorney-client relationship is formed if the attorney fails to inform the person that no such relationship is intended).

Assuming Attorney has a client-attorney relationship with both Client and Spouse, Attorney cannot ethically dismiss or move to sever Spouse’s claim without Spouse’s consent. Attorney should inform both Client and Spouse that because Attorney represents both parties, Attorney cannot seek to have Spouse’s claim removed or served without Spouse’s consent. Attorney should also inform Client and Spouse that Attorney cannot proceed with the settlement unless both Client and Spouse consent. See S.C. Rule of Prof. Cond. 1.8(g). It would be prudent for Attorney to provide this information in writing.

At this point it is unclear whether a conflict of interest will develop between Client and Spouse that would require withdrawal by Attorney. It may not be in either Client’s or Spouse’s interest to have Spouse’s claim dismissed or severed. It is likely that the defendant will want to settle the entire case, so dismissal of Spouse’s claim, even with Spouse’s consent, may lead to withdrawal of the settlement offer. Attorney may be able to suggest a method for handling both claims that would not involve a conflict of interest. For example, Client and Spouse could agree to settle their claims for a lump sum payment that is unallocated between the two claims. Such a lump sum settlement is ethically permissible with the consent of both clients after consultation. See S.C. Rule of Prof. Cond. 1.8(g). Attorney could then file a motion with the Circuit Court seeking a judicial determination of the allocation of the settlement between Client’s and Spouse’s claims. In the alternative, Attorney could suggest mediation or arbitration to allocate the funds between the clients, holding the funds in trust until ADR is complete. It would even be ethically permissible for the attorney to act as an intermediary between the two clients, seeking to resolve any dispute about the allocation of the settlement in a fair manner. See S.C. Rule of Prof. Cond. 2.2. Thus, while the situation may ripen into an actual conflict of interest that would require Attorney’s withdrawal, Attorney can offer the clients a number of suggestions that would lead to resolution of the matter without a conflict developing. See also Ethics Advisory Opinion 95-02.