Can one lawyer represent both spouses in a no-fault divorce or an antenuptial agreement, and may that lawyer answer the other spouse's questions?

Plain-English summary

The Committee addressed four questions about a single lawyer's role when a married couple wants one attorney to handle a no-fault divorce or an antenuptial agreement. It declined to impose a per se ban on joint representation in a no-fault divorce, but concluded that such joint representation should be the exception rather than the rule, undertaken only after full disclosure and the informed consent of both parties under DR 5-105(C), with the disclosure and consent preferably in writing. The opinion catalogued the conflict-of-interest concerns: a lawyer cannot simply accept terms the spouses have agreed to without exploring alternatives, an unresolvable conflict would force the lawyer to withdraw from representing either party, joint representation could waive the attorney-client privilege if the divorce were later contested, and it could heighten judicial scrutiny of the agreement.

On contact with the unrepresented spouse, the opinion applied EC 7-18 and DR 7-104(A)(2), under which a lawyer may not give advice to an unrepresented person whose interests conflict with the client's, other than to secure counsel. It recognized that some flexibility is required because many spouses proceed without separate counsel: the lawyer may prepare a separation agreement or joint petition and submit it for signature, provided it is not coupled with advice and the lawyer makes clear that the lawyer represents only one party. The opinion concluded that "answering questions" posed by the unrepresented spouse would be improper in most instances involving more than innocuous information or simple questions of fact or procedure. As to antenuptial agreements, it cautioned that the agreement must not offend public policy (citing Jackson v. Jackson, 626 S.W.2d 630), and that joint representation is permissible only where each party consents after full disclosure of the potential problems, with consent preferably in writing.

Currency note

This opinion was issued in 1984 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can one lawyer represent both spouses in a Kentucky no-fault divorce?

A: Under this opinion, only by exception. The Committee declined a per se ban but concluded joint representation should be the exception rather than the rule, undertaken only after full disclosure and informed consent under DR 5-105(C).

Q: Can the lawyer for one spouse answer the other spouse's questions?

A: Generally no. The opinion concluded that answering questions would be improper in most instances involving more than innocuous information or simple questions of fact or procedure, because much legal advice is given in the form of answers.

Q: Can one lawyer prepare an antenuptial agreement for both parties?

A: A qualified yes. The opinion permitted joint representation only where the agreement does not offend public policy and each party consents after full disclosure of the potential problems, preferably in writing.

Q: Can the lawyer still draft papers for an unrepresented spouse to sign?

A: Yes, within limits. The opinion allowed the lawyer to prepare a separation agreement or joint petition for the unrepresented spouse's signature, provided it is not coupled with advice and the lawyer makes clear that the lawyer represents only one party.

Background and rules framework

The opinion applied DR 5-105 (declining or continuing multiple representation in the face of conflicting interests), DR 7-104(A)(2) (advising an unrepresented person), and EC 7-18 of the former Code. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 4.3 (dealing with an unrepresented person). The analysis turned on the conflict between the spouses' interests and the line between drafting documents and giving advice to an unrepresented party.

Citations and references

Rules of Professional Conduct:

• DR 5-105; DR 7-104(A)(2); EC 7-18 (former Code)
• MR 1.7 (concurrent conflicts); MR 4.3 (unrepresented person)

Cases:

• Jackson v. Jackson, 626 S.W.2d 630 (Ky. 1981), public policy limits on antenuptial agreements
• Levine v. Levine, 54 N.Y.2d 42, 436 N.E.2d 476 (1982); Klemm v. Superior Court, 75 Cal. App. 3d 893, 142 Cal. Rptr. 509 (1977), joint representation in marital matters
• Lipski v. Lipski, 510 S.W.2d 6 (Ky. 1974), antenuptial agreement prepared by an attorney representing both parties

Other opinions cited:

• ABA Formal Op. 58; ABA Informal Op. 1140; New York Opinion 478; Tennessee Op. 81-F-16; Missouri Op. 9

See also

• KBA Ethics Op. E-307: Counseling-Agency Board Chairman Divorce Conflict
• KBA Ethics Op. E-335: Lawyer Participation in Divorce Mediation
• KBA Ethics Op. E-361: Lawyers in Private Practice Serving as Divorce Mediators

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-290.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-290
Issued: September 1984

This opinion was decided under the Code of Professional Responsibility, which was in
effect from 1971 to 1990. Lawyers should consult the current version of the Rules of
Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org),
before relying on this opinion.
Question 1:

May an attorney ever represent both sides in a "no-fault" divorce?

Answer 1:

Except in rare cases, no.

Question 2:

If not, is it proper for the attorney representing one spouse to "talk with" the other
spouse and "answer questions"?

Answer 2:

Qualified no.

Question 3:

May an attorney represent both parties to an ante-nuptial agreement?

Answer 3:

Qualified yes.

Question 4:

If not, is it proper for the attorney representing one spouse to "talk with" the other
spouse and answer questions"?

Answer 4:

Qualified no.
OPINION

The questions presented address the conduct of counsel in his or her traditional roles as
advocate and advisor. In responding to these questions, we do not address the propriety of
mediation or arbitration in which the lawyer does not "represent" either party. Compare EC 5-20
and ABA Model Rule 2.2.
The practice of both husband and wife going to see a single attorney to secure a dissolution
of their marriage pursuant to the "no fault divorce act is not uncommon. Where the parties have
spoken with one another and desire an amicable divorce, it is also not uncommon for both parties
to want one attorney to assist them in securing their desired divorce and in preparing what they
believe to be their agreement. In such circumstances, the potential clients may believe that having
more than one lawyer is a wasteful luxury, and might even serve to exacerbate problems rather
than solve them. Morgan, The Evolving Concept of Professional Responsibility", 90 Harv. L. Rev.
702 (1977). On the other hand, just because the couple has already "agreed" to certain terms, it
does not follow that there is no conflict of interest, and that a common lawyer need only draft the
papers. Because a lawyer must exercise his or her independent professional judgment on behalf of
a client,

(n)o competent lawyer... would simply accept the terms agreed to by even
an individual client without at least exploring available alternatives; therefore, to
the extent that lawyer for both spouses is precluded from considering all of the
alternatives theoretically available to each, a clear conflict of interest exists.
(Moore, Conflicts of Interest in the Simultaneous Representation of
Multiple Clients, 61 Tex. L. Rev. 211, 250 (1982).)
See also, DR 5-105(A) and (B). In addition to the risk that the lawyer's inability to explore
the available alternatives might result in a settlement that is later perceived to be inadequate by one
or the other of the spouses, joint representation at the outset will likely prove unsatisfactory
because:
(1)
if a subsequent unresolvable conflict develops, counsel would have to withdraw
from representing either of the parties, requiring them to engage separate counsel after all;
(Tennessee Op. 81-F-16 (1981); North Carolina Op. 298 (1981); Missouri Informal Op. 13
(1979) (MARU doc. 11922); Colorado Op. 47 (1972) (MARU doc. 8000))
(2)
proper representation of both parties would require the lawyer to seek out all
relevant information which might otherwise be confidential, and result in a waiver of
attorney client privilege if the divorce were later contested (see, e.g., Connecticut Op. 33
(1982));
(3)
joint representation might heighten the degree of judicial scrutiny given to the
agreement, and ultimately, its nullification (Moore, at 254). But see Levine v. Levine, 54
N.Y.2d 42, 436 N.E.2d 476 (1982); Klemm v. Superior Court, 75 Cal. App.3d 893, 142
Cal. Rptr. 509 (1977).
Because of such concerns we note that many courts and ethics committees continue to
presume that there is "a substantial likelihood of prejudice or profound conflict inherent in every
matrimonial problem", and that "since there is no such thing as a 'fully agreed' uncontested
divorce... any such agreement will always fall apart if counsel does an adequate job of going into
all pertinent matters." Moore, at 248. See particularly Mississippi Op. 80 (1983); South Carolina
Op. 81-13 (1982); West Virginia Op. 77-7 (1977) (MARU doc. 9679); Colorado Op. 47 (1972)
(MARU doc. 8000); New York Op. 258 (1972) (MARU 9018). Accordingly, many jurisdictions
prohibit joint representation of spouses, even in "no-fault" proceedings (see cases previously cited)
or permit dual representation only in situations in which there are no minor children or substantial
assets, or where the disposition of all assets and debts has been settled before consultations with
counsel. See Arizona Op. 76-25 (1976); Oregon Op. 218 (1972) (MARU doc. 9779); Virginia
Informal Op. 296 (1978) (MARU doc. 12928).
While we are unwilling to impose a per se rule prohibiting joint representation of both
spouses in every "no-fault" divorce case, we do conclude that joint representation should be the
exception rather than the rule. Moreover, joint representation should be undertaken only after full
disclosure and informed consent of both parties. DR 5-105(C); Montana Op. 10 (1980). Full
disclosure would include disclosure of all specific areas of potential disagreement. For counsel's
own protection, such disclosure and consent should be in writing. Tennessee Op. 81-F-16 (1981).
If a dispute later arises, the lawyer should carefully explain why joint representation might be
unwise, and if it does not remain obvious" that the lawyer can adequately represent the interests of
each spouse, the lawyer must withdraw from representing either.

Although many jurisdictions continue to prohibit joint representation of spouses, or permit
joint representation only in limited circumstances, many of the same jurisdictions have relaxed the
ban against an attorney's contact with the unrepresented spouse. Moore, at 247. EC 7-18 provides
in pertinent part that
...a lawyer should not undertake to give advice to the person who is attempting to
represent himself, except that he may advise him to obtain a lawyer.
Moreover, DR 7-104(A)(2) provides that a lawyer shall not
give advice to a person who is not represented by a lawyer, other than the advice
to secure counsel, if the interests of such person are or have a reasonable
possibility of being in conflict with the interests of his client.
Pursuant to these standards, the ABA has consistently adhered to the proposition that a
lawyer representing one spouse may not advise the unrepresented spouse or seek to convince that
spouse to pursue a particular course of conduct. ABA Formal Op. 58 (1931), "...limit the
communication as nearly as possible to a statement of the proposed action, and a recommendation
that the adverse party should consult independent counsel."; ABA Informal Op. 1140 (1970), "As
long as these documents are not accompanied by or coupled with the giving of any advice to the
defendant, they would constitute only communication... and ...would be ethical." Nor may the
attorney use his client as a conduit for communicating advice to the unrepresented spouse. New
York Op. 478 (1978).
On the other hand, it is now clear that some flexibility must be permitted in this area given
the fact that many spouses will elect to proceed without separate counsel. For example, counsel
should be permitted to prepare a separation agreement negotiated by counsel's client, and submit it
to the unrepresented party for signature, assuming that care is taken to draw the agreement so that
the other party will understand it. New York Op. 478 (1978). By the same token, it has been
recognized that an attorney ought to be able to draw a joint petition for dissolution provided the
parties are in agreement on all things, and the attorney makes it clear that he or she is representing
only one of the parties. Missouri Op. 9 (1977) (MARU doc. 11773).
Similarly, newer and well reasoned ethics opinions recognize that
Circumstances may arise where it is impossible for a lawyer to fulfill his
professional responsibility without seeking to convince an adverse party to pursue
some course of conduct that he would otherwise not undertake. So it is, when an
adverse party elects to appear pro se in a litigated matter, the lawyer may have
absolutely no choice but to assume the mantel of advocacy for his client's cause
and actively enter into the negotiation process. (New York Op. 478 (1978) MARU
doc. 12243)
Accordingly, there is no reason why an attorney may not draw a proposed property
settlement agreement for his or her client to be presented to an unrepresented spouse who
decides not to be represented, so long as the instrument is not coupled with advice. Missouri Op.
9 (1977) (MARU doc. 11773) ("The opinions do not affect the right to negotiate with the
unrepresented party. They merely preclude the attorney from giving advice to the unrepresented
party.); Connecticut Op. 27 (1976) (MARU doc. 10700) ("...attorney should clearly inform the

second party that he is not being represented by the attorney and may obtain his own counsel at
any time.); Ohio Op. 30 (1975) (MARU doc. 9679) ("...if the other spouse has an independent
opportunity to examine and approve the agreement before it is entered."); Florida Ops 1-2 (1972)
(RU doc. 8126); L.A. Co. Op. 334 (1973) (MARU doc. 7689).
The question is deceptively simple - may the attorney representing one party "answer
questions" posed by the unrepresented spouse? Given the above authorities, and the fact that much
legal "advice" is given in the form of answers to questions, the answer would be no in many, if not
in most, instances involving more than the conveying of innocuous information, or response to
simple questions of fact or procedure. If the interests of the spouses are sufficiently conflicting to
require separate counsel in the first instance, it follows that the door should not be opened that
would allow the "answering of questions" concerning the effect of the proceeding on the rights or
alternatives of the unrepresented spouse. Counsel can be an "advocate for or an advisor to only one
of the contesting parties. New York op. 478, supra.
Regarding antenuptial agreements, we note that separate ethical problems may be presented
if the particular agreement could be construed to violate public policy. In Jackson v. Jackson, 626
S.W.2d 630 (1981) the Supreme Court cited with approval the following language from R. Petrilli,
Kentucky Family Law 13.8:
...Public policy embraces a vital interest in the preservation of marriage.
Any provision that looks toward, provides for, facilitates, or tends to induce a
separation or divorce after marriage is contrary to public policy and void. A
provision for the payment of alimony or a property settlement should a separation
and divorce occur after marriage is void and unenforceable ... . " Kentucky Family
Law, Husband and Wife, Sec. 13.8.
See also, Sousley v. Sousley, 614 S.W.2d 942 (1981); Stratton v. Wilson, 185 S.W. 522 (1916).
Compare New York City Op. 722 (148) (A lawyer may not insert in contracts provisions which
have been held void against public policy by "a court of last resort... as a matter of law.").
Assuming that the agreement contemplated by the parties does not offend public policy,
joint representation may threaten the exercise of counsel's independent professional judgment if
one or the other of the parties is unwilling to be completely forthcoming. Specifically, we note
another passage from Petrilli, at 13.5:
During marriage, or after the death of one spouse an antenuptial agreement may be
avoided unless... (both parties have) knowledge ...of their legal rights, and
knowledge of the effect the antenuptial agreement will have upon their legal rights.
Elsewhere in the same section the author observes that "full frank disclosure to each other
of the property held by each of them" is required, and that "it is good practice to make a recital in
the antenuptial agreement of the parties holdings of property." Compare Lipski v. Lipski, 510
S.W.2d 6 (1974) (upholding antenuptial agreement prepared by an attorney representing both
parties). If counsel is possessed of confidences or secrets of a party that the other needs to know
and that party is not willing to disclose such information, it is obvious that counsel would, at the
very least, violate DR 5-105 by purporting to represent both.

Accordingly, joint representation should be undertaken only if each party consents to the
representation after full disclosure of the potential problems inherent in such representation.
Prudent counsel would obtain such consent in writing. DR 5-105(C).
Finally, we believe that our comments in response to Question 2 are pertinent to Question
4.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.