Does a lawyer representing a parent in a tort case have to protect the children's loss-of-consortium claims?

Plain-English summary

The inquiry arose from interpretations of Ueland v. Pengo Hydra-Pull Corp. and the potential conflict between a parent the lawyer represented and children who might have a loss-of-consortium claim. The committee was of the opinion that a lawyer representing a parent in a case in which adult children might have a loss-of-consortium claim was under no obligation to contact the adult children and advise them of their rights.

If the children were minors, the committee was of the opinion that the lawyer would be obligated to have a guardian ad litem appointed to protect the minor children's interests. The guardian ad litem could, under appropriate circumstances, consent to the lawyer representing both the parent and the minor children, or could obtain independent representation for the minor children. If the minor child determined not to pursue the claim, the committee was of the opinion that the lawyer should obtain that advice in writing. To the extent the parents' and the children's interests conflicted, the committee was of the opinion that the lawyer would have to comply with RPC 1.7.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 1.7 on concurrent conflicts of interest was later renumbered and amended. Treat this page as historical context, not current guidance.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: Must a parent's lawyer warn adult children about their own loss-of-consortium claims?

A: No. The committee was of the opinion that the lawyer was under no obligation to contact the adult children and advise them of their rights.

Q: What changes when the children are minors?

A: The committee was of the opinion that the lawyer would be obligated to have a guardian ad litem appointed to protect the minor children's interests.

Q: Can the same lawyer represent both the parent and the minor children?

A: The committee was of the opinion that the guardian ad litem could, under appropriate circumstances, consent to the lawyer representing both, or could obtain independent representation for the minor children.

Q: What if the minor child decides not to pursue the consortium claim?

A: The committee was of the opinion that the lawyer should obtain that advice in writing.

Background and rules framework

The opinion applies Washington RPC 1.7 (conflict of interest), corresponding to Model Rule 1.7, to a parent and children with potentially competing tort and loss-of-consortium claims. The committee distinguished adult children (no duty to contact) from minor children (a guardian ad litem must be appointed), and conditioned any joint representation on the guardian ad litem's consent, returning to RPC 1.7 to the extent the interests actually conflicted.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.7 (conflict of interest), corresponding to Model Rule 1.7.

Cases:

• Ueland v. Pengo Hydra-Pull Corp. (loss-of-consortium claims), referenced in the opinion.

See also

• WSBA Ethics Op. 1014: a parent who pays for a child's lawyer and guardian-ad-litem consent
• WSBA Ethics Op. 1016: a state-paid guardian ad litem and conflicts in unrelated private cases

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=139

Original opinion text

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

Advisory Opinion: 1028
Year Issued: 1986
RPC(s): RPC 1.7
Subject: Conflict of interest; lawyer representing parent in tort case where child may have loss of consortium claim

The Committee considered your inquiry regarding the potential conflict of interest raised by interpretations of Ueland v. Pengo Hydra-Pull Corp. The Committee was of the opinion that a lawyer representing a parent in a case in which adult children might have a claim for loss of consortium would be under no obligation to contact the adult children and advise them of their rights. If, on the other hand, they were minor children, the Committee was of the opinion that the lawyer would be obligated to have a guardian ad litem appointed to protect the minor children's interests. The guardian ad litem could, under appropriate circumstances, consent to the lawyer representing both the parent and the minor children, or could obtain independent representation for the minor children. The Committee was of the opinion that if the minor child determined not to pursue the claim, the lawyer should obtain that advice in writing. To the extent that the parents' and the children's interests conflicted, the Committee was of the opinion that the lawyer would have to comply with RPC 1.7.