Can one lawyer represent both spouses in a Colorado dissolution-of-marriage case?

Plain-English summary

Opinion 47 (adopted February 26, 1972; addendum issued 1995) addressed whether a lawyer may represent both parties in a proceeding under the Colorado Uniform Dissolution of Marriage Act. The Committee recognized that the Act promotes amicable settlement and makes "irretrievable breakdown" the sole basis for dissolution, but observed that it does not eliminate the adversary nature of property, support, custody, and maintenance issues.

The Committee concluded that the Act mooted the old collusion problem and that, in some cases with no conflicting interests, a single lawyer may represent both parties under DR 5-105, which permits multiple representation only if the lawyer can obviously and adequately represent each and each consents after full disclosure. But it emphasized that in most cases conflicting interests over property, support, custody, or maintenance are present or potentially present, whether or not the spouses realize it, so the confidentiality duty (Canon 4, DR 4-101) and the duty of zealous, independent representation (Canons 5 and 7) make dual representation problematic. Quoting EC 5-15, the Committee stated a lawyer should resolve all doubts against the propriety of representing multiple clients with differing interests and should never represent multiple litigation clients with differing interests. Because conflicting interests will nearly always exist in dissolution matters and the confidentiality obligation survives termination, the Committee concluded that no lawyer should undertake or continue to represent both parties when any conflicting interest exists or develops, and that if conflict appears after dual representation begins, the lawyer must withdraw entirely and decline to represent either party.

Currency note

This opinion was issued in 1972 under the Code of Professional Responsibility, before the Colorado Rules of Professional Conduct took effect on January 1, 1993, and before Colorado's 2008 revisions to those rules. A 1995 addendum directed lawyers to Rule 1.6(a) (confidentiality), Rules 1.7, 1.8(b) and (f), and 1.9(c) (conflicts of interest), and Rule 1.16(a) and (d) (declining or terminating representation), noting new waiver language in former Rule 1.7(c). The conflict and confidentiality rules have since changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can one lawyer represent both spouses in a Colorado divorce?

A: Generally no, under this opinion. The Committee concluded that because property, support, custody, or maintenance issues nearly always create conflicting interests, a lawyer should not undertake to represent both parties where any conflict exists or develops.

Q: Is there any situation where dual representation is allowed?

A: A narrow one. The opinion concluded that in cases where no interests conflict, a lawyer may represent both parties under DR 5-105 if the lawyer can obviously and adequately represent each and each consents after full disclosure, while warning that such cases are rare.

Q: What must the lawyer do if a conflict appears mid-case?

A: Withdraw from both. The opinion concluded that if conflicting interests develop after dual representation has begun, the lawyer must withdraw entirely from the case and thereafter decline to represent either party, because the duty to preserve each client's confidences survives.

Background and rules framework

The opinion applied the Code of Professional Responsibility: DR 5-105 (multiple representation), Canon 4 and DR 4-101 (confidences and secrets), Canons 5 and 7 (independent judgment; zealous representation), and EC 4-5, 4-6, and 5-15, in the context of the Colorado Uniform Dissolution of Marriage Act. The 1995 addendum restates the analysis under Model Rules 1.6 (confidentiality), 1.7 and 1.9 (conflicts), and 1.16 (withdrawal).

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.6(a) / Model Rule 1.6 (confidentiality of information)
• Colo. RPC 1.7, 1.8(b), 1.8(f), 1.9(c) / Model Rules 1.7, 1.8, 1.9 (conflicts of interest)
• Colo. RPC 1.16(a), (d) / Model Rule 1.16 (declining or terminating representation)

Statutes:

• Colorado Uniform Dissolution of Marriage Act, 1971 Session Laws, Chapter 130

Other opinions cited:

• ABA Formal Opinion 245 (collusion under fault-based divorce)
• CBA Formal Opinion 68 (supplementing this opinion, per the 1995 addendum)

See also

• CBA Formal Op. 23: Insurer-Picked Counsel for a Minor's Guardian

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_47_2011.pdf