The Florida Bar

Ethics Opinion

Opinion 71-46

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:
Opinions:
Case:

EC 2-4
64-61, 67-31
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withdrawn], subject to the restrictions therein discussed.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).”
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.