On January 17th, I posted an article with answers to some frequently asked family law questions I receive. There is another frequently asked question that I could have included, but it is so significant that I felt it deserved an article all by itself. The question is: “Can my spouse and I use the same attorney?”
No! “But wait,” you say. “We have already worked out everything. We are in agreement on property settlement, child custody and support.” If we are in agreement, why can’t we save money and use the same lawyer?” Here are the reasons why it is essential that each party to a divorce or custody proceeding be represented by his/her own independent counsel.
First of all, attorneys in Michigan are governed by the Rules of Professional Responsibility, which tells us that it is unethical for an attorney to represent multiple clients in a case where there is even the potential for a conflict of interest. This includes a prohibition against participating in making a settlement of claims of clients when two or more clients are represented. There are issues of attorney-client privilege, and of course, what happens when the case is over and the parties develop a disagreement over what the terms meant or want the terms changed? Who gets the lawyer then? Does the lawyer become a witness? It is a true Pandora’s Box.
While there has long been talk amongst members of the family law bar to petition for a change in the rules of court pleadings, the fact remains that in a divorce or custody case you have a pleading entitled Wife/Mother vs. Husband/Father (or vice versa). It is that “versus” that is the tell-all. The simple fact is, regardless of whether you have brokered a settlement with spouse/partner, your interests are not aligned. Therefore, the lawyer who takes both of you as clients in the same matter is clearly violating the rules against conflict of interest.
A natural extension of this concern is that each party to a family law proceeding needs the opportunity for independent review of any proposed settlement by an attorney whose sole interest is in protecting his/her client’s legal rights and interests.
I am sure you have heard of many cases where there was only one lawyer. Indeed, I have participated in many such cases. However, those are not cases where one lawyer represented both parties. Rather, they were cases where I represented one party, and the other either did not have an attorney, or may have used independent legal counsel solely as an adviser to ensure that the proposed settlement the parties brokered is fair and equitable. It happens all the time, and is a laudable means of saving money in an amiable case where the parties can negotiate “at arms’ length” without fear of treachery, each by the other.
Even in those friendly cases, though, I always counsel the party not retaining me that it is in his/her own best interests to at least have an attorney review any settlement that is reached. And, you know what? It’s in my client’s best interests also, because it reduces the potential for the unrepresented party to come back later and claim s/he was taken advantage of in reaching the settlement, or that s/he thought I was representing both parties.
When each party is represented by his/her own independent legal counsel, and each party feels s/he can speak freely with the attorney, frankly discuss concerns and ensure that his/her best interests are being protected, then and only then is it fair.
