Divorce | Family
Can the Same Lawyer Represent Both Parties in a Divorce?
by Flora Tan
In a divorce, the same lawyer cannot ethically represent two spouses who have competing interests. This is called a conflict of interest, and it is prohibited. The attorney would be forced to choose which party’s interests they prioritize, so the best course of action is for each spouse to seek their divorce lawyer.
Although you and your spouse are on different sides in the divorce proceeding, you should work together and remain respectful. This will make the process of negotiating a settlement agreement much easier, and it will allow both you and your spouse to feel respected throughout the journey.
However, amicable divorces are not always possible. If you feel intimidated or threatened when discussing your divorce with your spouse, seek legal counsel immediately.
Connect with an Unbundled Divorce Attorney in your area for a free consultation on how to best protect yourself during the divorce.
Why One Divorce Lawyer Shouldn’t Represent Both Spouses
The divorce process is already a difficult and emotionally draining experience, so each party should have their representation. A single attorney should not be responsible for representing both spouses in a divorce because it would create an ethical dilemma.
Conflict of Interest
In any divorce case, the potential for a conflict of interest is a significant concern. When you and your spouse share the same attorney, that lawyer owes a duty of loyalty to both clients. This duty can be compromised if the attorney represents opposing interests in the divorce. Each spouse may have different objectives, such as property division, child custody, or spousal support, which can create a conflict that prevents the lawyer from advocating effectively for both parties.
Moreover, the law firm or attorney may inadvertently favor one spouse over the other, which breaches their ethical duty. As a result, most professional conduct rules in the United States forbid attorneys from representing both parties in a divorce, except under very limited circumstances, to avoid such conflicts of interest.
Confidentiality and Privilege Issues
When you have your attorney, the information you share with them is protected by attorney-client privilege, meaning your lawyer cannot disclose it to anyone without your permission. This protection allows you to have candid conversations with your attorney about your legal strategy, goals, and concerns.
However, when you and your spouse share a lawyer, the confidentiality and privilege of communication become much more complicated. Since the attorney represents both of you, they cannot keep any secrets from either party, which means that any information you provide to the lawyer may be shared with your spouse. This lack of confidentiality can hinder open communication and make it challenging to develop tailored legal assistance for your specific needs.
Informed Consent and Waivers
If both parties agree to the same divorce lawyer representing them, they would be signing a joint representation agreement. This is very rare, and the parties must fully understand the implications of this agreement before signing it. Divorce lawyers must also be sure that each party has been properly informed about all issues pertaining to joint representation, such as the possibility that the attorney may not be able to advocate for their best interests as aggressively as they could with separate representation.
The spouses should also be aware of the potential legal fees involved in dual representation. While it may seem more cost-effective to have one lawyer, any conflicts or issues that arise could lead to the need for additional representation, which could ultimately increase the overall cost of the divorce.
Can the Same Law Firm Represent Both Parties in a Divorce?
When multiple attorneys within a law firm work on different cases, they are generally expected to maintain the confidentiality of their respective clients’ information. However, when two attorneys from the same firm represent opposing parties in a divorce, maintaining confidentiality becomes complicated, as the law firm has a duty of loyalty to both clients. This situation can lead to the inadvertent sharing of sensitive information or the perception of favoritism towards one client over the other.
Moreover, if one attorney within the firm becomes privy to confidential information about one spouse that could be detrimental to the other spouse’s interests, this knowledge may be imputed to the entire firm. This situation can create conflicts of interest and undermine the attorney-client relationship.
State Bar Association Guidelines and Opinions
State Bar Associations across the United States maintain guidelines regarding ethical conduct for attorneys, often based on the American Bar Association’s Model Rules of Professional Conduct. One of the critical principles in these guidelines is the prohibition of conflicts of interest, which is central to the question of dual representation in divorce cases.
Rule 1.7 of the Model Rules of Professional Conduct states that one attorney shall not represent a client if the representation involves a concurrent conflict of interest. This rule generally prohibits an attorney from representing both parties in a divorce, as their interests are often directly adverse. However, the rule also provides an exception in cases where the lawyer reasonably believes they can provide competent and diligent representation to each affected client, and each client gives informed consent, confirmed in writing.
In addition to the Model Rules, State Bar Associations may issue opinions and guidance on specific ethical questions related to dual representation. These opinions often emphasize the potential conflicts of interest in such cases and reiterate the need for informed consent and proper documentation.
Variations in State Regulations
While the Model Rules serve as a foundation, individual states may have their own variations on these rules, leading to differences in how dual representation is treated across jurisdictions. Some states may be more restrictive, expressly prohibiting dual representation in divorce cases, while others may allow it under specific conditions, such as when the divorce is uncontested and both parties have agreed on all terms.
As a result, it is essential for you and your spouse’s attorney to be familiar with the regulations in your jurisdiction. This knowledge will ensure that any dual representation arrangements are compliant with state law and minimize the risk of future disputes or challenges related to the attorney’s conduct.
Precedents and Case Law
Courts have occasionally weighed in on the matter, often in cases where one party challenges the validity of a divorce agreement due to alleged conflicts of interest or inadequate representation.
These cases can provide insight into the courts’ perspectives on dual representation and help attorneys and clients understand such arrangements’ potential risks and consequences. Generally, courts tend to be cautious about dual representation, emphasizing the need for clear communication, informed consent, and strict adherence to ethical guidelines.
Safeguards and Best Practices for Dual Representation
One of the first steps in dual representation is setting clear boundaries and expectations for both you and your spouse. Family law attorneys should explain their role and limitations in representing both parties, emphasizing that they cannot advocate for one spouse over the other. It is essential to establish a mutual understanding of the lawyer’s duties, the scope of representation, and the goals of the divorce process.
You and your spouse should also be clear about your respective responsibilities and expectations during the process. This clarity may include discussing how decisions will be made, how disagreements will be resolved, and each party’s objectives regarding property division, custody, and support issues.
Open and transparent communication is vital in a dual representation arrangement. The attorney must keep both parties informed of all relevant information and developments, ensuring that no spouse is at an informational disadvantage. This communication may involve regular updates, joint meetings, or shared documentation that keeps both parties apprised of the progress in their case.
You and your spouse should also maintain open lines of communication with each other and the attorney. By discussing issues and concerns openly, you can address potential conflicts or misunderstandings before they escalate and jeopardize the dual representation arrangement.
Alternatives to Dual Representation in Divorce Process
Given dual representation’s potential consequences and risks, you may prefer to avoid it altogether. Other options may suit your case if you or your spouse are uncomfortable with the arrangement.
Retaining Separate Attorneys
The most common and often recommended alternative to the dual representation is for each spouse to retain their own attorney. This approach ensures that both parties have a dedicated advocate who is focused on protecting their interests and providing personalized legal advice. Having separate attorneys can help you navigate the complexities of the divorce process, address any disputes that may arise, and ultimately work toward a fair and equitable resolution.
Do It Yourself
In some cases, you and your spouse may feel comfortable handling the divorce process without legal representation. This do-it-yourself (DIY) approach may be suitable for uncontested divorces where no minor children, alimony, or property division issues are involved. If you decide to pursue a DIY divorce, you should thoroughly research the laws and procedures in your jurisdiction and carefully complete all required paperwork. It may be helpful to consult with a family law attorney or mediator on a limited basis to ensure that you are on the right track and avoid potential pitfalls.
Legal Clinics and Low-Cost Legal Services
Many communities have legal clinics offering free or low-cost consultations with attorneys specializing in family law. These clinics can provide advice on divorce-related issues, help with paperwork, and even sometimes represent clients in court. Some non-profit organizations and legal aid societies also offer low-cost legal services to individuals who meet income eligibility requirements.
Let An Unbundled Divorce Attorney Help You
The best way to handle a divorce case is by hiring two separate lawyers, one for each party, who can help you through the process while looking out for your best interests.
If you have an amicable divorce case, consider Unbundled Legal Help. Our network of attorneys offers unbundled legal services, so you can select which services are most important for your case and pay only for those services. They can help you with the paperwork, negotiations, and necessary court appearances.
With unbundled services, you could save up to 80% on upfront fees compared to traditional full-representation lawyers.
Get in contact with an unbundled lawyer near you today, and find out if your case is a good fit to be unbundled.