An attorney should not attempt to represent both parties in a divorce action. An attorney may accept the parties’ assurances that they desire no adversity or that there is substantial agreement concerning the manner of termination. Experience has shown, however, that if there is any considerable property or minor children, the prospect of a subsequent dispute is significant. Representation of both parties in a divorce action has long been viewed as being so inherently prejudicial that dual representation is generally prohibited. Some bar associations have advised that it is always improper for a lawyer to represent both spouses in an uncontested divorce while other courts are reluctant to do so. The consequences of an attorney’s failure to recognize a potential conflict, to advise the clients of such a conflict, to obtain the informed consent of the client, or to advise a client to seek independent legal advice, can be the basis for damages, discipline, or having a settlement agreement set aside.
Even if an attorney is willing to represent both parties, litigants should resist the temptation. In the short term, it may save the parties a few dollars. But if there is more than nominal property, if there are minor children, retirement accounts or a substantial disparity in income, it could cost one or both of the parties a lot of money in the long run.
Hypothetical Facts
1. Mr. Smith contacts attorney A with regards to his impending divorce. Mr. Smith tells attorney A that he and his wife are in general agreement with respect to the terms of their divorce but require an attorney to prepare the paperwork. Attorney A evaluates the situation and concludes that the parties are in substantial agreement and wish to cooperate with each other in securing a divorce. Attorney A then advises Mr. Smith that Mrs. Smith may retain her own attorney, but since they are in agreement, it would probably be a waste of time and money.
2. Mr. and Mrs. Smith subsequently make an appointment with attorney A. The parties have written down their basic agreement but then proceed to ask attorney A several questions. Mrs. Smith asks how much she is entitled to for child support. Mr. Smith inquires whether there is any basis for a deviation of this amount? Mrs. Smith wonders if she is entitled to alimony? Mr. Smith inquires whether he must pay for all of the legal costs? Attorney A apparently answers the questions to the parties’ satisfaction and proceeds with the paperwork. Attorney A subsequently secures an uncontested divorce for the Smith’s at a reasonable fee.
3. Mr. and Mrs. Smith meet with attorney A and have their entire agreement in writing. They ask no questions of attorney A, attorney A offers no advice.
Many attorneys practicing in the areas of divorce believe that there is nothing wrong with the above scenarios. In #1, the attorney simply provided the basic law to each party, in the second, he just did what he was asked. It is submitted, however, that the dual representation by attorney A in all of the situations is improper.
It is not uncommon for an attorney to represent both spouses in what appears to be a friendly divorce. Cases in which an attorney is attempting to help both parties in an uncontested divorce, however, often result with anger between the parties and bitterness toward the lawyer whom one or both parties perceive as favoring the other. “A prudent lawyer will avoid even the appearance of impropriety.”
Although there are sometimes no statutory grounds preventing an attorney from representing both parties, it may be unethical or at minimum, a bad idea. Dual representation in an uncontested divorce invites litigation. A lawyer’s primary function is advice giving, any advice would necessarily be averse to the interests of one of the parties. An attorney is supposed to seek maximum share of community property for a client and protect the client’s rights regarding custody, support, alimony, and visitation. A husband and wife on the brink of divorce have obvious divergent interests which often cannot be reconciled. Because the divorce process is one of negotiation, an attorney undertaking representation of both parties in such a proceeding faces an inherent conflict. Generally, the attorney will be in the position of having to advocate for one party over the other and cannot navigate the divided loyalty and obligation.
Potential litigants should be informed of three possible detrimental effects of dual representation. First, although the parties intend a friendly divorce, a dispute may arise. Second, there is a clear basis to have the agreement set aside at a later time, which will ultimately cost the parties more fees. Third, both parties may waive their attorney-client privilege for communications made to the attorney.
It is not argued that dual representation should be prohibited in every case. Some litigants may have legitimate reasons for asking an attorney to represent both parties. Examples when the dual representation may not be improper is when the parties want to save legal fees, the issues are limited and they both trust and have confidence in the attorney. What is being argued, however, is that the disadvantages of dual representation so outweigh the advantages, that cases of dual representation should be the exception and not the rule.
If, as a divorce litigant, you are considering using the same lawyer as your spouse, be sure of the following:
1. The attorney makes full disclosure of possible conflicts and discloses any prior relationship the attorney has had with either party.
2. The parties understand that the attorney will withdraw if conflict develops;
3. The parties consent to the joint representation in writing;
4. The parties are in full agreement about securing a divorce;
5. The divorce does not involve minor children or substantial assets or debts; the attorney should note that he may have an affirmative duty to verify the assets;
6. The disposition of nominal assets and debts has been settled before consultation with the attorney;
7. No other apparent conflict exists.
Generally, when a reasonable person is given complete disclosure and is made to appreciate the nature of the conflict and the potential consequences, he or she will insist on independent counsel. In rare circumstances, however, one attorney, representing both parties, may be okay.