Is one attorney for both parties a good idea?
Maybe you and your spouse have decided to divorce, but you are not in high conflict and the situation is amicable. The split was not because of betrayal or bad behavior — you just grew apart.
You both feel you can agree on most things involving your children, child support and alimony, and division of your assets and real estate. Couldn’t you just go to an attorney and have them draw up the agreement and file the divorce?
Not so fast, unfortunately. While using the same lawyer for your divorce seems easier, cheaper and faster, ethical issues prevent Florida counsel from doing so. In the long run, it will be in your and your soon-to-be ex’s best interests not to use “dual representation.”
Florida Bar Rule
Florida Bar Rule 4-1.7 concerning conflicts of interest says that a lawyer must not represent a client if it would be “directly adverse to another client.” Given our adversarial legal system, divorcing spouses are by definition in directly adverse legal positions, even if they are personally cordial.
Still, the rule allows representation of clients with conflicting interests if both give “informed consent” in writing or on the record at a court hearing. However, even if the lawyer believes they can competently and diligently represent both and it is not illegal, the rule provides that informed consent is not appropriate where the parties would have opposing positions if both were in court in the same proceeding.
Again, in a divorce, the parties always have opposing legal interests concerning their children, support and property division.
Florida Bar Ethics Opinion
Florida Bar Ethics Opinion 71-45 (reconsidered in 1973 when Florida adopted no-fault divorce) confirms this logic. The opinion explains that divorce proceedings are always potentially adversarial and that representing both spouses with opposing interests can be unethical.
Even if the spouses think they agree and want one lawyer jointly, as “laymen” they can “never fully appreciate all of the complexities inherent in matters dealing with alimony, child support, custody, visitation, property rights, retention of jurisdiction, etc. …”
Their lawyer needs to be able to fully and freely ask questions of each client and provide legal advice about rights and responsibilities BEFORE they each agree to the terms of settlement. But the attorney’s loyalty to each would be compromised by the spouses’ opposing interests.
