May one attorney represent both spouses in a divorce, or switch to representing the wife after representing the husband?

Plain-English summary

The committee members responding to a member's inquiry believed he could not, with propriety, represent more than one party in a divorce proceeding, and that having represented one party and possibly obtained confidences from him, he should not transfer his allegiance to the wife despite his obvious good intentions.

The committee explained that conflicting interests are governed by Canon 6, which covers two distinct obligations: an attorney should not represent conflicting interests except with the deliberate consent of all concerned, and should not disclose or abuse personal confidences. The Canon does not prohibit representing conflicting interests so long as full disclosure is made and the necessary consent obtained. Apart from Canon 6, the committee noted that a divorce proceeding is in rem and the parties cannot obtain a decree by consent; representation of both parties by one attorney makes circumstances suspicious although no actual impropriety is involved. Because representing conflicting interests requires the strictest propriety, and because divorces by their nature tend to preclude representation of both parties by a single attorney, the responding members felt he should not undertake the joint representation.

Currency note

This opinion was issued in 1960, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canons 6 and 37 of the Canons of Professional Ethics; conflicts of interest and duties to former clients are now addressed by Rules 4-1.7 and 4-1.9 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.9). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could one lawyer represent both spouses in a divorce with their consent?

A: The committee advised against it. Although Canon 6 did not flatly prohibit representing conflicting interests with full disclosure and consent, the committee felt the nature of a divorce tended to preclude one attorney representing both parties.

Q: Could the lawyer switch from the husband to the wife?

A: No. Having represented the husband and possibly obtained his confidences, the committee concluded the lawyer should not transfer his allegiance to the wife.

Background and rules framework

The opinion applied former Canons 6 and 37 of the Canons of Professional Ethics, which addressed conflicting interests and client confidences. Conflicts of interest and duties to former clients are now addressed by Rules 4-1.7 and 4-1.9 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.9). The committee's analysis turned on the husband's confidences and the in rem nature of a divorce.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.7, 4-1.9]
• Canon 37 [Canons of Professional Ethics]

Other authorities:

• Drinker, Legal Ethics, pp. 104 et seq.

See also

• FL Bar Ethics Op. 60-36: Foreclosing on a Partner's Former Client
• FL Bar Ethics Op. 62-9: Representing a New Client Against a Former Client's Matter
• FL Bar Ethics Op. 65-56: Shifting Sides After the Same Accident Defense

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-60-9/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-60-9-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 60-9
August 22, 1960
Advisory ethics opinions are not binding.
In a divorce proceeding it is not advisable for an attorney to represent the wife after the husband has been a client, or to represent both parties despite good intentions and full disclosure.
Canons: 6, 37
Vice-Chairman Smith stated the opinion of the committee:
The Committee members responding to a member's inquiry believe that he cannot, with propriety, represent more than one party in a divorce proceeding and that having represented one party and possibly obtained confidences from him, he should not transfer his allegiance to the wife, despite his obvious good intentions in the matter.
The question of conflicting interests is governed by Canon 6 of the Canons of Professional Ethics which Canon is analyzed in detail in Drinker's Legal Ethics, pages 104 et seq. Canon 6 covers two distinct obligations. First, that an attorney should not represent conflicting interests except with the deliberate consent of all concerned. Second, that an attorney should not disclose or abuse personal confidences. This Canon does not prohibit representation of conflicting interests so long as a full disclosure of the position is made and the necessary consent is obtained. Apart from Canon 6, the lawyer is faced with the fact that a divorce proceeding is in rem and the parties cannot obtain a decree by consent. Representation of both parties by one attorney makes circumstances suspicious although no actual impropriety is involved.
Because representation of conflicting interests in any case requires strictest propriety and because divorces by their very nature tend to preclude representation of both parties by a single attorney, it is the feeling of the members responding that he should not undertake the joint representation.