Do my spouse and I need separate attorneys? It’s a question we are often asked. And, the answer is yes!
Many clients contact us and present that their divorce is uncontested and amicable. We hear things like: “We have mutually agreed that our marriage is over. We both want the same thing now – we want a divorce. There is really nothing to contest. We both just want out of our marriage.”
In response to those asking if they can use the same lawyer in a divorce as their spoues, we offer the following: Divorce is emotional. Once the parties do separate and start the divorce process, often there are issues that arise which can lead to disagreements. The parties may disagree over who will stay in the marital home and how to divide the equity. Likewise, the parties may agree on which car each will receive, but perhaps disagree on how to handle the differences in values. Handling these financial issues can be the beginning of many disagreements. If the couple has minor children, then there is even more potential for disagreements. Custody and visitation schedules need to be resolved, along with child support, especially for the sake of the children. Common questions are: who will pay for extra-curricular activities and who decides what those extra-curriculars will be? How will the holidays be shared? Can the children travel out of state or out of the country? Who makes medical decisions? When there are minor children involved, new issues can arise frequently.
As the family unit separates and divides, typically the parties soon realize that living under two separate roofs causes financial burdens. Child support and other financial obligations can be more difficult to make. Thus, tensions can rise, and suddenly, the once amicable divorce is no longer amicable. The parties are no longer agreeing, and the once friendly divorce has become unfriendly and contested.
An attorney has an ethical obligation to do what is best for his or her client. A lawyer cannot negotiate a monthly child support obligation that is best for both the father and the mother. There is an inherent conflict of interest. What works best for dad will not be what is best for mom.
Another way to view this issue is to consider a murder trial. What if the prosecutor also had to be the accused’s attorney? One minute the attorney is arguing that the accused is a killer, but then in another, the lawyer must act as if his client is innocent. The same would apply in a case where an employee is suing their company. While an employer might make promises and want to do the right thing for their employees, it very frequently is not in their best interest to do so, leading some of them to go back on their word. You can immediately see why there would be a conflict of interest if the same attorney represented both parties. These extreme examples illustrate the same ethical dilemma. What is in the best interest of one client is not what is in the best interest of the other – no matter what kind of case they are involved in.
Regardless of what the public thinks about lawyers (“What do you have when you have a lawyer buried up to his head in sand? Not enough sand”), lawyers in every state in the US have mandatory rules of ethics that must be followed. Every state has a prohibition against a lawyer representing parties if there is a conflict of interest. A clear example of a conflict of interest is one attorney representing both the husband and the wife in a divorce. There are even more complex rules regarding how a law firm must maintain and operate a conflict of interests check system. For example, if a wife has a consultation with Lawyer Lawrence, but the wife does not hire Lawyer Lawrence, Lawyer Lawrence cannot represent the husband.
As the American Bar Association mandates: loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Loyalty to a current client prohibits representing an adverse party. In a divorce those parties are the husband and the wife. If a husband has hired an attorney, that attorney cannot represent the wife in the divorce and it is very unlikely that the lawyer can ever represent the wife in any future matters – matters that perhaps have nothing to do with the divorce.
Another dimension to the conflict of interest rule is that an attorney cannot have a personal interest in a case that would have an adverse effect on the representation of a client, as alluded to above. So, an attorney’s obligation to avoid conflicts of interest is multifaceted and multilateral. But, it clearly prohibits a lawyer from representing a husband and a wife in a divorce.
We hope it’s now clear whether or not you can use the same lawyer in a divorce. In case it wasn’t, no, you cannot. The parties can hopefully agree on terms of their issues: property distribution, support, custody, and other matters. However, each spouse needs his or her own counsel to review the terms of their separation agreement and co-parenting contract.
One final word of caution: do not fall into the trap of trying to “pull one over” on the other spouse. One spouse often hires a lawyer to draft an agreement that is very one-sided, hoping that the other spouse will just quickly read over it and sign. Aggressive clients often make the mistake of asking their lawyer to “advise” the other spouse to sign an agreement. These types of clients often remind their attorneys that they “are paying the bill, so do what I request”. In this situation, the lawyer needs to remind the client that he or she cannot advise the other spouse. This is the very type of activity that will likely invalidate the agreement and result in the lawyer perhaps losing their license to practice law. Again, each spouse needs his or her own attorney. Sharing an attorney is not allowed.
