CONFLICT OF INTEREST- Representation of multiple clients in a no-fault divorce.
The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on two aspects of the representation by an attorney of both parties to a no-fault divorce.
The first request involved the following factual situation:
"A, an attorney, represented both H and W in a no-fault divorce proceeding. The proceeding was concluded by the entry of a decree granting the divorce and incorporating therein the provisions of the separation and property settlement agreement entered into between the parties.
"Subsequent to the entry of the decree, H defaulted in the performance of the obligations imposed upon him by the terms of both the agreement and the decree."
The inquiry is whether A can now represent W against H in an action to compel performance of the terms of the agreement and decree by H.
The second request is whether an attorney may represent both parties in a no-fault divorce proceeding.
A negative response to the second request will, of course, answer the first request; and for that reason, the second request will be first addressed in this opinion.
Canon 5 of the Code of Professional Responsibility generally controls the ethical situation of representation of multiple clients. It provides that:
"A lawyer should exercise independent professional judgment on behalf of a client."
EC 5-14 and EC 5-15 set forth the aspirational objectives of Canon 5 as the same apply to the instant inquiry.
EC 5-14 provides as follows:
Maintaining the independence of professional judgment required of a lawyer precludes his acceptance of or a continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interest be conflicting, inconsistent, diverse, or otherwise discordant.
EC 5-15 provides in part:
If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests.
DR 5-105(A) and (C) provide:
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B) a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation on the exercise of his independent professional judgment on behalf of each.
In the opinion of the Committee, the interests of the parties to a no-fault divorce are conflicting, inconsistent, diverse, and otherwise discordant, no matter what the parties themselves, as laymen, may believe otherwise. Common representation entails parallel duties to both parties; and the lawyer, therefore, cannot place the interests of one client above the interest of the other. Inquiries by one client as to what would be in his best interest if answered would likely involve advice which would not be in the best interest of the other client, i.e., tax consequences of different modes for the payment of alimony. If the inquiry was not answered, the lawyer would fail in his duty to "adequately represent the interest" of the inquiring client. If answered, the interest of the other client would not be adequately represented. Violation of DR 5-105(A) and (C) would result in either event. Consequently, there is simply no way that the lawyer may avoid the possibility that his loyalty will be divided if he accepts or continues such employment.
Further, in keeping with the aspirational goals of the cited Ethical Considerations, the Committee is of the opinion that the no-fault scenario at the very least raises doubts as to the existence of conflicting, inconsistent, diverse, or discordant interests and that the lawyer should resolve this ever-present doubt by rejecting multiple representation.
The Committee is, therefore, of the opinion that the representation of both parties to a no-fault divorce violates the Code of Professional Responsibility in general, and in particular Disciplinary Rules 5-105(A) and 5-105(C) and that it is, therefore, unethical for a lawyer to undertake such multiple representation. Finding as we do as to the second inquiry, the first inquiry presented becomes moot in that the dual representation should not have been undertaken in the first instance.
It should be clear on the face of the pleading or the property settlement agreement in a joint bill for divorce of the parties which party the attorney represents.
SUPPLEMENT TOETHICS OPINION NUMBER 80
OF THE MISSISSIPPI BAR
MARCH 25, 1983
The Committee is of the opinion that No-Fault Divorces may be styled, "In the Matter of the Dissolution of the Marriage of H and W."
There is nothing wrong at all with one of the parties to a No-Fault Divorce being without an attorney, so long as that party, either H or W is properly informed by the spouse's attorney that (1) that party is not represented by the spouse's attorney, (2) the spouse's attorney will not undertake to advise that party on any aspect of the case as to his or her rights, and (3) that party has a right to obtain an attorney to advise him or her and to review any of the agreements, pleadings or decrees which will be prepared.
This opinion is intended in no way to affect the validity of no-fault divorce proceedings, or to limit or impede the filing and ultimate disposition of such proceedings.