If a lawyer represents a wife-passenger injured in a car crash, can the same lawyer also handle her husband-driver's derivative loss-of-consortium claim?

Plain-English summary

The inquiry involved a husband-driver and his wife-passenger whose parked car was struck from behind; both were injured. The inquirer was filing suit on the wife's behalf, while the husband was represented by other counsel. The question was whether the wife's attorney could also represent the husband as to his derivative claim for loss of consortium.

The Committee noted that interspousal immunity had recently been discarded by the New Jersey Supreme Court in Immer v. Risko, 56 N.J. 482 (1970), and France v. A.P.A. Transport Corp., 56 N.J. 500 (1970), and that a 1970 Supreme Court directive provided that the policy statement on representation of driver and passenger would not apply to husband and wife, with common representation depending on the circumstances of each case. Drawing on Opinion 248, which held that one attorney may represent both spouses only where the liability question is obvious, the Committee concluded that under the directive and Opinion 248 the wife's attorney may represent the husband's per quod claim provided the husband consents.

Currency note

This opinion was issued in 1973, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The multiple-representation principle it applied is now treated under RPC 1.7, including its consent requirement. Treat this page as historical context, not current guidance.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 lawyer represent both a wife-passenger and her husband's loss-of-consortium claim?

A: Under this opinion, yes, as to the husband's per quod claim, provided the husband consents.

Q: Why did the abolition of interspousal immunity matter?

A: With immunity gone (Immer and France), the spouses' claims could proceed, and the Supreme Court's directive relaxed the driver-passenger policy for husband and wife, making common representation turn on the facts of each case.

Q: What was the limit from Opinion 248?

A: Opinion 248 held one attorney may represent both spouses only where the liability question is obvious; Opinion 253 applied that limit together with the consent requirement.

Background and rules framework

The opinion applied New Jersey's multiple-representation and consent principles, then expressed through the driver-passenger policy and the Disciplinary Rules, to spouses with related claims. In current New Jersey terms the question is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Multiple-representation / consent principles as in effect 1973; now MR 1.7 / NJ RPC 1.7

Cases:

• Immer v. Risko, 56 N.J. 482 (N.J. 1970), abolishing interspousal tort immunity
• France v. A.P.A. Transport Corp., 56 N.J. 500 (N.J. 1970), companion decision

Other opinions cited:

• NJ ACPE Opinion 248, 96 N.J.L.J. 93 (1973): one attorney may represent both spouses only where liability is obvious

See also

• NJ ACPE Op. 350: Reciprocal Wills and Representing the Husband Against the Wife
• NJ ACPE Op. 334: Representing a Husband Against a Former-Client Wife
• NJ ACPE Op. 275: Spousal Confidences in a Later Divorce

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp253-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

96 N.J.L.J. 449, April 19, 1973

OPINION 253

Conflict of Interest Representing Husband - Driver and Wife - Passenger

This inquiry concerns representation of claims of a husband-driver and his wife-passenger in a rear-end collision of their parked car. Each suffered injuries. The inquirer is filing suit on the wife's behalf. The husband is represented by other counsel. The question is whether the wife's attorney may also represent the husband with respect to his derivative claim for loss of consortium?

The doctrine of interspousal immunity has recently been discarded by our Supreme Court. Immer v. Risko, 56 N.J. 482 (1970), France v. A.P.A. Transport Corp., 56 N.J. 500 (1970). A Supreme Court directive, October 8, 1970 (93 N.J.L.J. 712), provides:

Until further order of the Supreme Court, the policy statement with reference to the representation of driver and passenger will not apply with respect to husband and wife or parent and child. The problem of common representation in such situations will depend upon the circumstances of each case.

In our Opinion 248, 96 N.J.L.J. 93 (1973), this Committee stated that one attorney may represent both spouses only where the liability question is obvious. Under the conditions of the above directive and of our Opinion 248, the wife's attorney may represent the husband's per quod claim provided the husband consents.