You have asked the Committee for an opinion concerning the ethical implications of the following situation. You represent two clients injured in an auto accident, a father and his child. When the representation was undertaken, the father signed a retention agreement "individually and as parent and natural guardian" of the child. The mother/wife, who was not involved in the auto accident, also signed the retention agreement, but only "as parent and natural guardian" of the child. Since your initial retention, the husband and wife have separated, the wife has left the children with the husband, and the husband and wife plan to divorce. The husband thus has de facto sole custody of the injured child. The husband has informed you that he does not want you to discuss the case with the wife, and he contends that he does not even know where the wife is (although you think that he does). You plan to file suit shortly on behalf of the husband and child with respect to the auto accident.
Your first question is whether you represent the wife with respect to her consortium claim, particularly because she signed the fee agreement only as the child's guardian and not in her individual capacity. Your second question is whether you must contact the wife, advise her of her right to a consortium claim, and inform the wife that she must retain other counsel to represent her interests in view of the anticipated divorce. We have assumed that her consortium claim was never discussed at the time the representation was undertaken, and that the retention agreement is silent with respect to her consortium claims. The issue then becomes whether the wife had and has a reasonable expectation that you would represent her with respect to her consortium claim. It is the consensus of members of the Committee that the wife had such a reasonable expectation and as such, you must take reasonable steps to safeguard her claim from an expiration of the statute of limitations.
At a minimum, such reasonable steps will constitute making reasonable efforts to locate her. You should explain to the husband that for the present you are also the wife's attorney, and that it is imperative for you to get in touch with her. In view of the acrimonious relationship between the spouses, Rule 1.7 may most likely prevent you from continuing to jointly represent them in the litigation. You can explain to the husband that, if able to speak to her, you will simply inform her that she must obtain other counsel if she wishes to pursue the consortium claim before the expiration of the statute of limitations, and that the new attorney should contact you before that date. If the husband refuses to help you locate the wife (or if you are unable to do so even with his assistance), the husband should understand that you will still file a complaint that includes a consortium claim for the wife. As soon as the wife is located, and her intention to pursue the loss of consortium claim is confirmed, you can notify the wife that you will withdraw from representing her on the consortium claim pursuant to Rule 1.16(b), after she obtains other counsel to protect her interests.
With respect to consortium claims generally, in the future, you should explicitly deal with such claims at the inception of the representation. The injured client's spouse should be informed of his/her consortium claim, and should either sign a retention agreement that encompasses the consortium claim, or expressly excludes such a claim from the representation.
Your third question involves whether the husband can act alone on behalf of the child without the wife's involvement. The Committee has concluded that, until you are able to locate the wife, you may follow the husband's instructions with respect to the child's claim. The spouses should eventually reach an agreement that one or the other of them has sole discretion to make litigation and settlement decision on the child's behalf. Failing the parents' agreement, you should seek to have a guardian appointed for the child (who could be the father or a court-appointed neutral). This advice assumes that there is no conflict of interest between the father and child due to any claim the child as passenger may have against her father as driver for any contributory negligence. If the child could make such a claim against the father, then you should immediately seek to have a guardian (and separate counsel, pursuant to Rule 1.7(a) and (b)(2)) appointed to represent the child's interests in the litigation.