If you and your spouse have concluded that divorce is in your best interest, you may be wondering if you can both be represented by the same lawyer. While it may seem appropriate to be represented by the same layer, the short answer is no, they cannot both be represented by the same lawyer. 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 respective clients. 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 previous clients under Rule 1.9 or by counsel's responsibilities to other persons, such as fiduciary duties arising from the service of a lawyer as 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.
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.
The Ontario Law Society says a lawyer should be “honest and sincere in advising clients” and prohibits acting in situations where there is likely to be a conflict of interest. Where lawyers representing different clients in the same or substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be disclosed and that the lawyer's family relationship will interfere with both loyalty and independence professional judgment. 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, (i). The lawyer must, at the beginning of the common representation and as part of the process of obtaining informed consent from each client, inform each client that the information will be shared and that the lawyer will have to withdraw if one client decides that any important matter should be retained for the representation of the other.
The rule set out in paragraph (f) of this rule is a corollary of Rules 1.7 and 1.2 (a), and states that, before any plea or plea offer is made or accepted on behalf of multiple clients, counsel must inform each client of all material terms of the agreement, including what other customers will receive or pay if the plea agreement or offer is accepted. The fact that a lawyer has a lien on money or property belonging to a client is generally a matter of substantive law on which ethics rules take no position. The British Columbia Bar Society also describes how the judgment of an attorney who has “a close personal relationship, sexual or otherwise, with a client can be compromised.”. Attorneys representing a class of plaintiffs or defendants, or those proceeding in a derivative manner, must comply with applicable rules governing notice to class members, compensation of class counsel, and other procedural requirements designed to ensure adequate protection of the entire lawsuit collective.
Under that rule, the lawyer must disclose the risks associated with the lawyer's dual role as legal counsel and participant in the transaction, such as the risk of the lawyer structuring the transaction or providing legal advice in a manner that favors the interests of the lawyer at the client's expense. We also offer a professional directory with family lawyers, divorce financial analysts, accountants, therapists and other divorce-related services. The American Bar Association (ABA) states that “an attorney cannot represent a client where that client's representation may be directly adverse to another person to whom the lawyer is closely related. .
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