Can one lawyer represent both spouses in a Florida no-fault dissolution of marriage?

Plain-English summary

After Florida's no-fault divorce law (Chapter 71-241, Laws of Florida) took effect on July 1, 1971, a lawyer asked whether an attorney could ethically represent both husband and wife in a dissolution proceeding, pointing to media coverage suggesting that an action under the new statute was not adversarial and to confusion among the Bar about whether earlier bans on dual representation (such as Florida Opinions 60-9 and 66-8) still applied. The committee agreed that if an actual conflict existed under DR 5-105(B), as discussed in EC 5-14 through 5-17, a lawyer could not represent both. The harder question was whether joint representation was permissible where the parties had already tentatively agreed on property division, support, and custody.

The committee was equally divided. Four members, including the chairman, concluded that proceedings under the new law were not necessarily adversarial, that there should be no ethical requirement of separate attorneys, and that the statute's purposes were better served by allowing joint representation, on the view that the family is the unit being represented; those members added that such a lawyer should meticulously protect both spouses, urge full disclosure of assets, insist on separate counsel if significant disagreement arose, and withdraw if the parties could not agree which one he would continue to represent. The other four members concluded the statute merely eliminated proof of fault and did not change the adversarial nature of the proceeding or the lawyer's duty of undivided loyalty, though they acknowledged that one spouse's lawyer could sometimes prepare pleadings and agreements where there had been full disclosure, no overreaching, and the unrepresented spouse knowingly chose not to retain counsel. Because of the even split, the committee could not give a more definitive answer and advised seeking the court's guidance.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (DR 5-105(B) and EC 5-14 through 5-17), the subject matter of which is now addressed by Rule 4-1.7. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.7 before relying on any specific requirement mentioned here.

Common questions

Q: Did the committee say one lawyer may represent both spouses in a no-fault divorce?

A: No. The committee was evenly divided and could not resolve the question, so it gave no definitive answer and advised any attorney intending to do so to seek the advice of the court with jurisdiction.

Q: Was there agreement on anything?

A: Yes. The committee agreed that if an actual conflict existed under DR 5-105(B), as discussed in EC 5-14 through 5-17, a lawyer could not represent both spouses. The division was over cases where the spouses had tentatively agreed on the terms.

Q: What conditions did the members place on any joint or limited representation?

A: The four members who favored joint representation said the lawyer must protect both spouses, urge full disclosure of assets, insist on separate counsel if a significant disagreement arose, and withdraw if the parties could not agree which spouse he would continue to represent. The opposing four would allow at most preparing pleadings for one spouse where there had been full disclosure and the other knowingly declined counsel.

Background and rules framework

The opinion applied DR 5-105(B) and EC 5-14 through 5-17 of the former Code, which governed accepting or continuing employment that would be adversely affected by representation of differing interests. That subject is now in Rule 4-1.7, governing conflicts of interest among current clients. The Model Rule analogue is Rule 1.7.

Citations and references

Rules of Professional Conduct:

• EC 5-14, 5-15, 5-16, 5-17; DR 5-105(B) [Code of Professional Responsibility; subject matter now in Rule 4-1.7]

Statutes:

• Chapter 71-241, Laws of Florida (the no-fault dissolution of marriage law, effective July 1, 1971)

Other opinions cited:

• Florida Opinions 60-9 and 66-8

See also

• FL Bar Ethics Op. 72-7: Switching Sides After Joint Advice
• FL Bar Ethics Op. 72-50: Joint Criminal Representation
• FL Bar Ethics Op. 72-17: Former Partner Conflict

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-45/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-45-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-45
September 30, 1971
Advisory ethics opinions are not binding.
The Committee was evenly divided on the question whether, in light of enactment of the "no fault" divorce law, the traditional absolute rule against representing both spouses in a divorce should be relaxed.
CPR: EC 5-14, 5-15, 5-16, 5-17; DR 5-105(B)
Opinions: 60-9, 66-8
Statute: Ch. 71-241, Laws of Florida
Chairman Clarkson stated the opinion of the committee:
Florida's well-publicized "no fault" divorce law became effective July 1, 1971. Paramount purposes of the act, Chapter 71-241, Laws of Florida, recited in its first section, were promotion of the amicable settlement of marital disputes and mitigation of potential harm to the spouses and children caused by the process of legal dissolution of the marriage.
We are asked to determine whether an attorney may ethically represent both husband and wife in a proceeding for dissolution of marriage. The lawyer seeking our advice directs our attention to recent media coverage indicating that a dissolution action brought under the new statute is not an adversary proceeding. He suggests that confusion exists among members of the Bar as to whether former bans upon dual representation in this type of court proceeding (see, for example, Florida Opinions 60-9, 66-8) are now laid aside.
Obviously, if an actual conflict, as defined in DR 5-105(B) and discussed in EC 5-14 through 5-17, exists between the spouses, a lawyer may not represent both parties. More difficult, however, is the determination whether representation of both is permissible in those instances, as characterized by the inquiry, "when the parties themselves have discussed and tentatively agreed upon the general terms of property division, support and custody."
The Committee is equally divided on the answer to this question. Four members, the chairman included, have concluded that proceedings under the new law are not necessarily adversary in nature, that there should be no ethical requirement of separate attorneys in order to achieve representation before the court for both spouses and that the laudable purposes leading to enactment of the new law can be better achieved by adoption of these views. The other four members do not believe the "no fault" divorce law has in any way changed the adversary nature of the proceedings. Their view is that a lawyer's responsibilities are the same under the new law as they were under the former statute, so that the same lawyer may not represent both spouses before the court.
The viewpoint stated first above derives from the concept that the family is the unit being represented, both as to source of compensation and as to the entity being submitted to the court for an adjudication of interests. Considered in this light, two members find a similarity to the conventional probate matter and an absence of differing interests requiring representation which is actually dual in character. Another, conceding that the interests may be differing, believes that the administration of justice in routine marriage dissolution proceedings may best be served by a single attorney acting as "father confessor, psychologist, economist and adjudicator" without involving the adversary role and additional expense brought into play by a second lawyer. All four adhering to the first viewpoint believe that an attorney approached to represent both spouses should meticulously protect the interests of both, realizing that he is retained and compensated by the family rather than either spouse. He should caution both as to the necessity of full and fair disclosure of assets when property is involved. Should significant disagreement arise, he should immediately insist that each party be represented by counsel, and he should withdraw entirely if the parties are unable to agree which of them he will continue to represent. Whenever practicable, both husband and wife should appear at the final hearing so that the court may inquire of both as to the irretrievability of the marriage and with respect to any agreements governing matters of property, support and custody.
The contrary viewpoint, shared by four Committee members, is that the new statute merely dispenses with the necessity of alleging and proving fault or guilt and does not change the adversary nature of the proceeding. This view further holds that there is an inherent divergence of interests between the spouses and that the new procedure does not lessen a lawyer's obligation to give undivided loyalty to his client. It is pointed out that adherence to this view does not mean that each spouse must necessarily have separate counsel of record. As in the past, there can be situations in which there has been full and fair disclosure, the affairs are uncomplicated, no overreaching is present and both parties comprehend the significance of what is being done. In such cases it may be permissible for an attorney representing one spouse to prepare pleadings and, if appropriate, a settlement and custody agreement and submit the case to the court. In those instances it should be made to appear that the non-represented party chose not to employ counsel even though apprised of the advantages of doing so.
Because of the equal division of opinion in the Committee, we are unable to provide a more meaningful answer to this inquiry. Any attorney intending to represent both husband and wife in a dissolution of marriage proceeding should seek the advice of the court having jurisdiction.