When couples decide to divorce, they often seek legal advice to navigate the process. A common question that arises is whether a single family law attorney can represent both spouses in the same proceeding. At first glance, this may seem like a cost-effective and convenient option, especially if both parties believe they can agree on terms amicably. However, the answer is a definite no from a legal and ethical standpoint. In this blog, we will explore why family law attorneys are ethically prohibited from representing both spouses, focusing on conflicts of interest. Whether you're at the start of a divorce or engaged in custody negotiations, we will highlight the importance of impartial and individualized legal representation.
The Concept of Representation in Family Law
Representation in family law encompasses more than simply completing paperwork or attending court hearings. When an attorney represents a client, they have ethical and legal obligations to act in the client’s best interest. This involves offering confidential advice, negotiating favorable terms, and advocating for the client’s position in disputes. Nonetheless, divorce—and any family law matter—always involves two parties with conflicting interests. Conflicts can arise even in seemingly straightforward cases, making it impossible for one attorney to adequately serve both individuals simultaneously.
What Are Conflicts of Interest?
A conflict of interest occurs when an attorney's ability to remain impartial or act in one client’s best interest is compromised.
Within the realm of family law, conflicts are almost inevitable because:
- Both spouses have distinct rights, goals, and priorities.
- Negotiations often revolve around contentious issues such as asset division, alimony, child custody, and support.
- What benefits one spouse may disadvantage the other.
For example, imagine a family law attorney working with both spouses to divide shared assets. If one spouse desires a larger portion of the marital property or argues against spousal support, the attorney must make decisions that favor one party’s interest—by definition, disadvantaging the other. Because attorneys cannot remain neutral, they must avoid representing both parties simultaneously.
Ethical Rules Preventing Dual Representation
Family law attorneys must adhere to stringent ethical standards established by the American Bar Association (ABA) and individual state bar associations. The ABA’s Model Rules of Professional Conduct highlights the following reasons why representing both parties in adversarial legal proceedings is prohibited:
- Rule 1.7—Conflict of Interest: Rule 1.7 states that an attorney cannot represent clients with conflicting interests unless both parties agree and the representation does not adversely affect either party. Divorce inherently creates adversity, making such consent practically impossible in most cases.
- Rule 1.6—Confidentiality: Attorneys must maintain client confidentiality. If one spouse shares sensitive information (e.g., undisclosed income or hidden assets), the attorney faces an ethical dilemma about disclosing it to the other spouse, which can create irreversible breaches of trust.
- Zealous Advocacy: The rules also require attorneys to be zealous client advocates. A single attorney cannot equally defend two opposing sides, as doing so would compromise their zeal for one client over the other. These rules ensure the legal system remains fair, impartial, and committed to protecting all parties involved.
Dual Representation in Uncontested Divorces
What about uncontested divorces? If both spouses agree on terms without disputes, you might assume one attorney could handle the legal work for both parties. However, even in these cases, dual representation is not permissible.
Dual representation is not permitted in uncontested divorce because:
- Agreements May Break Down: Initial agreements can unravel during the process. If disputes arise, an attorney representing both spouses would no longer be able to function ethically, possibly leaving both parties unrepresented.
- Advising Both Parties Isn't Neutral: Even if the divorce seems amicable, the attorney may still need to explain the legal implications of the agreement. Doing so will always favor one party, especially if unforeseen complications arise.
- Avoiding Disputes of Fairness: After the divorce, one spouse might claim they were treated unfairly or not represented adequately. This could lead to legal malpractice claims against the attorney, undermining the integrity of the entire process.
In many states, an attorney can represent one spouse and act as a neutral “mediator” for the other. However, the mediator does not provide legal counsel to the unrepresented spouse in these cases—they simply facilitate communication.
The Role of Mediators and Independent Counsel
Mediation is a valuable alternative to dual legal representation for divorcing couples interested in maintaining a cooperative approach. A mediator is a neutral third party who helps both spouses discuss and resolve issues without taking sides. However, mediators are not a substitute for legal representation—each spouse must still seek independent legal advice to protect their individual interests. Hiring separate attorneys does not have to create hostility. Many family law attorneys are experienced in collaborative divorce, which prioritizes amicable solutions while ensuring both parties have fully informed and competent representation.
What Happens if an Attorney Represents Both Spouses?
If an attorney attempts to represent both spouses, they could face serious consequences, including:
- Disciplinary Action: Violating ethical rules can lead to disciplinary hearings, fines, suspension, or disbarment.
- Legal Malpractice: If one or both clients feel their rights were inadequately represented, the attorney could be sued for malpractice.
- Jeopardized Agreements: Agreements facilitated by attorneys with conflicts of interest could be invalidated, requiring both spouses to start the legal process over again.
Why Individual Representation Is the Best Path
Ultimately, the role of a family law attorney is to ensure their client’s interests are protected, no matter how complex or emotional the process becomes. Individual representation offers:
- Clear Communication: You can trust that your attorney communicates solely on your behalf
- Objective Advice: Your attorney can thoroughly analyze and explain the implications of any agreements without facing ethical dilemmas
- Confidentiality: You can securely share all case details, knowing your attorney works solely for you
Moving Forward with Confidence in Your Divorce
Going through a divorce or custody battle is never easy, and the legal complexities of family law can add an extra layer of stress. While it might seem convenient to share an attorney, doing so would jeopardize both parties' rights and interests. Instead, hiring separate attorneys ensures a fair, ethical, and legally sound outcome for all involved. Need help finding a family law attorney? Choosing the right legal representation is crucial. To protect your rights and your family’s future, schedule a consultation with the experienced family law attorney at Matthew Penick Law by calling (410) 618-0863 or leaving a message online.