If you are planning divorce or dissolution, and you and your spouse are generally in agreement about the terms of your divorce, some variation of this saying may be playing in your head – Why hire two lawyers when one lawyer could (in theory) draw up their agreement and “make things legal.” Can one lawyer represent both parties in a divorce or dissolution without creating a conflict of interest?
As it turns out, you and your spouse can’t share a divorce attorney, and the reason has nothing to do with lawyers wanting to run up their fees. It’s a rule of professional ethics, and it’s designed to protect you, not the lawyers. Let’s take a look at how things could go badly wrong if a divorcing couple shares a lawyer, and what alternatives there are for couples who want to minimize conflict and needless expense in their divorce.
Conflict of Interest in Divorce
Every state, including Ohio, has rules of professional ethics that govern attorneys’ interactions with clients. The rule regarding conflicts of interest stems from a lawyer’s duty of loyalty to a client. An attorney owes his or her client independent judgment. If the lawyer represents two parties whose interests run counter to each other, he or she cannot have truly independent judgment with respect to either of them. As the saying goes, “no man can serve two masters.”
In a divorce, the parties’ interests are directly adverse to one another, creating a conflict of interest. Even if you think you and your spouse are in agreement, as you drill down deeper and actually create a divorce settlement agreement, you are likely to find some disagreement over details.
For instance, you may agree to split property equally, but what if you both want a certain asset in your half of the property? You may agree on shared residential responsibility for your children, but disagree on the exact schedule. You may both acknowledge the need for child support, but disagree on what one party’s income is for purposes of the calculations. In those circumstances, whose interests should the lawyer advance? If one lawyer were allowed to represent both parties, anything he or she did to benefit one client would disadvantage the other.
In some types of cases, clients can waive a conflict of interest. They acknowledge in writing that, for instance, the lawyer they wish to hire once represented the other (adverse) party in a different matter, but that they want to hire the attorney anyway. However, this is not allowed in divorce cases.
An attorney need not represent both clients in a divorce or dissolution for there to be a conflict of interest. If you interview a lawyer for your divorce case and decide not to hire him or her, that lawyer cannot then represent your spouse because he or she may have gotten confidential information about you in that initial interview. By the same token, an attorney in a large firm cannot represent one spouse in a divorce if another attorney in the firm is already representing the other spouse. The potential exists for the second attorney to be able to get confidential information from the other side.
Alternatives to Divorce Conflict
So what is a couple to do when they are largely in agreement about their divorce or dissolution, but just need a little help with the legal process? It is definitely not necessary to hire two lawyers who will stir up conflict (and legal fees).
One great alternative is family mediation, which allows you and your spouse to work with a neutral mediator. The mediator helps you identify any unresolved issues or details in your divorce and facilitates communication so you can find a resolution. The mediator then writes down your agreement in a form the court will accept. Because she is neutral and doesn’t represent either of you, this is not a conflict of interest. One or both of you may choose to hire a lawyer to help with filing and finalizing your divorce in addition to working with the mediator.
Another option is to work out as much of the details of your divorce or dissolution as possible with your spouse, and then for one of you to hire an attorney to write up your agreement in a form that can be signed by both of you and the judge. This will become your divorce or dissolution decree. The lawyer will only represent the spouse who hired him or her, so it is a good idea for the other spouse to at least have a one-time consultation with an attorney to make sure the agreement is fair and that all rights and obligations are clear.
The first attorney may even be able to recommend a colleague (at a different firm) for this purpose. It may sound counterintuitive to hire someone recommended by your spouse’s attorney, but often the best way to find a trustworthy divorce attorney is to ask another professional who they trust and respect.
Not only Divorce or Dissolution
After people have a Court order, it is sometimes appropriate to make changes to it, and people can make agreements on subsequent orders. For example, if child support had been determined for three children, and the eldest graduates from high school after turning 18 years old, modification of support for two remaining minor children could be done by agreement. Again, one lawyer can draft a proposed Agreed Judgment Entry and prepare the appropriate child support worksheet, and the unrepresented party can sign the agreement without the need for a lawyer, or can have a consultation to make sure everything is correct. That agreement is then presented to the Court for approval.
Also, people who have never been married but have children together can make agreements as to allocation of parental rights and responsibilities, parenting time, support, tax benefits associated with children, and everything else concerning those children. The same rules apply as to one lawyer representing both parents – it cannot be done. But, one person can be represented, that lawyer can draft an agreement, and the receiving party can agree to the terms without having a lawyer or after a consultation with a lawyer.
If you have other questions about Ohio divorce and dissolution or divorce conflict of interest, we invite you to contact Graham-Hurd Law to schedule a consultation.