In general, a lawyer cannot represent your spouse in court. There are some exceptions, for example, if both spouses are events of a real estate transaction. There must be a conflict of interest that prevents the lawyer from representing your spouse. Loyalty to a current customer prohibits making a directly adverse representation for that customer without that customer's informed consent.
Therefore, in the absence of consent, a lawyer cannot act as counsel in a case against a person represented by the lawyer in some other matter, even when the cases are not related at all. The client with respect to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the attorney's ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is reasonably made may fear that the lawyer will pursue that client's case less effectively out of deference to the other client,. Similarly, a directly adverse conflict can arise when an attorney is required to question a client who appears as a witness in a lawsuit involving another client, such as when the testimony harms the client who is represented in the lawsuit.
On the other hand, the simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as the representation of competing economic companies in unrelated disputes, does not normally constitute a conflict of interest and therefore may not require the consent of the client respective. Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another unrelated matter, the lawyer could not perform the representation without the informed consent of each client. Even where there is no direct adversity, there is a conflict of interest if there is a significant risk that an attorney's ability to consider, recommend, or conduct an appropriate course of action for the client will be materially limited as a result of the lawyer's other liabilities or interests.
For example, a lawyer who is asked to represent several individuals seeking to form a joint venture, is likely to have the lawyer's ability to recommend or defend all possible positions that each may take because of the lawyer's duty of loyalty to others. The current conflict excludes alternatives that would otherwise be available to the customer. The mere possibility of further harm does not in itself require disclosure and consent. Critical issues are the likelihood of a difference of interest occurring and, if it does, whether it will materially interfere with the lawyer's independent professional judgment when considering alternatives or exclude courses of action that should reasonably be followed on behalf of the client.
In addition to conflicts with other current clients, a lawyer's duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by counsel's responsibilities to other persons, such as fiduciary duties arising from the service of an attorney as a trustee, executor or corporate director. The interests of the lawyer should not be allowed to have an adverse effect on the representation of a client. For example, if the probity of a lawyer's own conduct in a transaction is seriously questioned, it may be difficult or impossible for the lawyer to give a client independent advice. Similarly, when a lawyer has discussions about possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the representation of the client's attorney.
In addition, a lawyer may not allow related commercial interests to affect representation, for example, by referring clients to a company in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific Rules related to a range of personal conflicts of interest, including business transactions with customers. See also Rule 1.10 (personal conflicts of interest under Rule 1.7 are not normally charged to other lawyers in a law firm). A lawyer is prohibited from engaging in sexual relations with a client unless the sexual relationship is prior to the formation of the client-lawyer relationship.
A lawyer may receive payment from a source other than the client, including a co-client, if the client is informed of that fact and consents and the agreement does not compromise the attorney's duty of loyalty or independent judgment towards the client. If the acceptance of payment from any other source presents a significant risk that the representation of the client's attorney is materially limited by the attorney's own interest in accommodating the person paying the attorney's fees or by the attorney's liabilities to a payer who is also a co-client, then the attorney must comply with the requirements of paragraph (b) before accepting representation, including determining whether the dispute is consented and, if so, that the client has adequate information about the material risks of the representation. Clients can normally consent to representation despite a conflict. However, as stated in paragraph (b), some disputes are not consensible, meaning that the attorney involved cannot properly request such an agreement or provide representation based on the client's consent.
When the lawyer represents more than one client, the issue of consentibility must be resolved for each client. Consentability is normally determined by considering whether the interests of customers will be adequately protected if they are allowed to give informed consent to a representation burdened by a conflict of interest. Therefore, under subparagraph (b), representation is prohibited if, under the circumstances, counsel cannot reasonably conclude that counsel may provide competent and diligent representation. See Rule 1.1 (Jurisdiction) and Rule 1.3 (Diligence).
Paragraph (b) () describes conflicts that are not consented to because representation is prohibited by applicable law. For example, in some states, substantive law states that the same lawyer cannot represent more than one defendant in a capital case, even with the consent of clients, and under federal criminal laws, certain representations of a former government attorney are prohibited, despite the informed consent of the former customer. In addition, decision-making law in some states limits the ability of a government client, such as a municipality, to consent to a conflict of interest. Paragraph (b) () describes disputes that are not consented due to the institutional interest in vigorous development of each client's position when clients align directly with each other in the same litigation or other proceeding before a court.
Whether clients are directly aligned with each other within the meaning of this paragraph requires an examination of the context of the procedure. Although this paragraph does not exclude multiple representation by counsel of adverse parties in mediation (because mediation is not a proceeding before a court pursuant to Rule 1.0 (m)), such representation may be excluded by paragraph (b) (. In some circumstances, it may be impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one client refuses to consent to the disclosure necessary to allow the other client to make an informed decision, the lawyer cannot adequately ask the latter to give his or her consent.
In some cases, the alternative to common representation may be that each party has to obtain separate representation with the possibility of incurring additional costs. These costs, together with the benefits of securing separate representation, are factors that the affected client may consider in determining whether common representation is in the client's interests. As mentioned above, both spouses cannot be represented by the same lawyer because it would be a conflict of interest. However, if you trust your spouse and have come to your own terms on how to divide personal property and assets, such as finances, or if you have agreed how to share custody with your child (ren), you can choose the option of having one of the spouses represented by an attorney.
In the first court proceeding, the initial appearance, the judge will briefly review the petition and explain the charges or demands for relief. The judge will also explain what the rights of the parties involved in the cases are, unless the parties are represented by lawyers. In certain cases, the judge will assign an attorney for a person who cannot afford one (see below, Who can get a lawyer) and may issue a summons for the other person to appear. In certain specific circumstances involving serious charges, the judge may order an arrest warrant.
The parties to most proceedings before the Family Court have the right to have a lawyer. You are free to hire an attorney of your choice. If your particular case is one where you are entitled to an attorney, but you cannot afford your own lawyer, the court will usually assign one to the representative representing you. Cornell Legal Aid and some neighborhood legal services groups can also provide legal help at no cost to people whose income is below a certain level.
Because the judge will require detailed information to decide the issues you disagree on, your contested divorce will require that you and your spouse go to the Supreme Court several times. If your divorce is contested, you should seriously consider finding an attorney to represent you. Where can my spouse and I get help in resolving our differences outside of court?. Lawyers Can Represent Your Family Members.
But is it advisable? Not always. Lawyers have a duty to provide objective and impartial representation. However, emotional conflicts can interfere with the proper fulfillment of this duty when family members are involved in the case. When you are facing a potential or certain divorce case, a question that can sometimes arise is whether or not a former lawyer can represent your spouse in the divorce.
Whatever your reason for changing lawyers, make sure you hire a new lawyer first, so you don't go without representation even for a moment. In the case of representing the spouse of a former client, lawyers are required to take a step back and try to assess whether or not they have learned something during their previous representation that could affect the case. Generally, the lawyer will be forced to stop representing all clients if the common representation fails. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn.
The rule defines conflict of interest as a situation where an attorney is involved in representing conflicting interests or when the lawyer's work for one client may be adverse to another client. (A) A lawyer who has previously represented a client in a case shall not represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the previous client, unless the previous client gives informed consent, confirmed in deed. As a result, each client has the right to know the existence and implications of the relationship between lawyers before the attorney agrees to perform representation. Such a brief may consist of a document executed by the client or one that the lawyer records and promptly transmits to the client after oral consent.
In addition, since counsel must be impartial among commonly represented clients, representation of several clients is inadequate when impartiality is unlikely to be maintained. State bar associations have different rules for these situations, and some prohibit you from representing your spouse in court. Similarly, a lawyer seeking to represent an opponent in a class action lawsuit usually does not need the consent of an anonymous class member whom the lawyer represents in an unrelated matter. While you do not need legal representation for a divorce in the states of Missouri and Kansas, if you represent yourself you will be at a disadvantage compared to the represented spouse, especially if the divorce is contested or uncontested.