Can a lawyer represent both my wife and me in a divorce?
If you are considering a divorce, you have no doubt wondered what is the most economical way to achieve it. Could I do it without having to hire a lawyer? Do I need to get a lawyer separate from my spouse or can one person handle the entire divorce? Dual representation is certainly cheaper in the short term, but before you go down that path, you may want to consider the implications of a lawyer playing both sides of a divorce.
Under the rules of professional conduct, a lawyer may perform dual representation if both clients give their informed consent and the client’s interests are not in actual or potential conflict. However, this rule is based on the lawyer’s duty of undivided loyalty to the client, which can be difficult to ensure in a divorce proceeding. While many spouses initially believe they share common interests and can come to an amicable agreement on issues of support, property division, and child custody, as the stress and reality of a separation begins to build, maintaining common marital interests becomes difficult. If your separate interests conflict, then you and the attorney will be caught between a rock and a hard place.
Once a conflict has developed, the attorney can obtain your informed consent to continue representation, but this is a bad idea. The development of a conflict means that the procedures are no longer fair and, as is often the case, will result in the husband and father getting the short end of the settlement agreement. Therefore, when faced with dual representation that escalates into a conflict, an ethical lawyer should withdraw from the case. Unfortunately, this will require both you and your spouse to find and retain a new attorney and pay the additional fees to bring those attorneys up to date on your case.
However, finding a new lawyer is better than the tempting alternate situation of continuing to represent two parties in a conflict. Continued representation of conflicting parties will result in compromised representation. Any agreement you sign will be flawed and the courts may not be able to enforce it. In fact, in the case of Klemm v. The Superior Court of California established the above that settlement agreements can be annulled in cases where the lawyer was in conflict for dual representation. It is much better to have separate representation from the start than to pay legal fees to fight a settlement that has been voided by the court.