Can a Mississippi lawyer who handled a client's irreconcilable-differences divorce later represent that same client against the ex-spouse in a modification or contempt proceeding?

Plain-English summary

The Committee addressed a lawyer who had represented Mr. AB in a divorce granted on the grounds of irreconcilable differences, where Mrs. AB was not represented and the pleadings clearly specified that the lawyer represented only Mr. AB, did not advise Mrs. AB of her rights, and that she could obtain her own counsel. Years later, Mr. AB returned to the lawyer to seek a modification of the divorce or to cite Mrs. AB for contempt. The question was whether the lawyer could accept that engagement.

The opinion concluded the representation is permissible. It explained that Ethics Opinion No. 80 (and its supplement) establish that one attorney cannot represent both parties to an irreconcilable-differences divorce, but that prohibition does not interfere with the lawyer representing that same client in a later proceeding against the same opponent, whether or not the opponent had counsel in the first proceeding. The opinion noted this assumes the lawyer followed Opinion No. 80 and revealed to both parties that he represented only one spouse.

The opinion observed that Rule 1.7(b) continues the bar on one lawyer representing both parties to such a divorce, because the lawyer's loyalty to the client would otherwise be compromised and there is no ethical way to undertake that dual representation without adversely affecting one or both parties. It concluded that a conflict does not exist merely by representing the same client against the same opposition in subsequent legal matters.

In practice

Under this opinion, a lawyer who handled one spouse's irreconcilable-differences divorce (representing only that spouse and disclosing that fact) may later take on a modification or contempt proceeding for the same client against the former spouse. Per the opinion, representing the same client against the same opponent in a subsequent matter is not a conflict; the conflict the rules guard against is one lawyer representing both spouses in the divorce itself, which Rule 1.7(b) continues to prohibit.

Common questions

Q: Can a lawyer who handled the divorce later sue the ex-spouse for the same client?

A: Yes. The opinion concluded a lawyer may represent the same client against the same opponent in a later proceeding, such as a modification or contempt action, without a conflict.

Q: Does it matter that the ex-spouse was unrepresented in the divorce?

A: No. The opinion concluded the result is the same whether or not the other spouse had counsel in the first proceeding, assuming the lawyer disclosed that he represented only one spouse.

Q: Can one lawyer represent both spouses in an irreconcilable-differences divorce?

A: No. The opinion reaffirmed that Rule 1.7(b) and Opinion No. 80 bar one lawyer from representing both parties to such a divorce, because there is no ethical way to do so without adversely affecting one or both.

Background and rules framework

The opinion interprets Mississippi Rule 1.7(b) (a lawyer shall not represent a client if the representation may be materially limited by responsibilities to another client, a third person, or the lawyer's own interests, absent the lawyer's reasonable belief that the representation will not be adversely affected and the client's knowing and informed consent after consultation), corresponding to Model Rule 1.7. It read that rule, with Opinion No. 80, to bar dual representation in the divorce but not to bar later single-client representation against the same opponent.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.7(b) (concurrent conflict; material limitation; consent after consultation) (cf. Model Rule 1.7).

Other opinions cited:

• Mississippi Ethics Opinion No. 80 and its supplement (one lawyer may not represent both parties to an irreconcilable-differences divorce).

See also

• MS Bar Ethics Op. 152: Taking a Deed to a Divorce Client's Home as a Fee
• MS Bar Ethics Op. 226: Former Chancellor Representing Parties in Cases He Decided

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/151/
• Original PDF: https://www.msbar.org/media/1042/et_op_151-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 151

OF THE MISSISSIPPI BAR

RENDERED June 02, 1988

AMENDED April 06, 2013

CONFLICT OF INTEREST- It is permissible for an attorney who has represented a person in a divorce granted on the grounds of Irreconcilable Differences to represent that same person in subsequent proceedings against former spouse of the client.

The Ethics Committee of The Mississippi Bar has been asked to render an opinion on the following situation.

Attorney X represented Mr. AB in his divorce action against Mrs. AB. Mrs. AB. was not represented by an attorney in the case. The case was settled and the divorce was granted on the grounds of Irreconcilable Differences. In the property settlement agreement or the pleadings it was clearly specified that Attorney X represented only Mr. AB and not Mrs. AB, that the attorney did not undertake to advise Mrs. AB of her rights or any aspect of the case, and that Mrs. AB had the right to obtain an attorney to represent her or to review the pleadings or proposed judgment. Several years later, Mr. AB consults Attorney X again and seeks his service in order to take Mrs. AB back to court to seek a modification of the original divorce or to cite her for contempt of court concerning the original judgment. Can Attorney X ethically accept such employment?

Such representation is permissible. Ethics Opinion No. 80 rendered on March 25, 1983, and the supplement to Opinion No. 80, rendered on March 25, 1983, make it clear that one attorney make it clear that one attorney cannot represent both parties to a divorce on the grounds of Irreconcilable Differences. That prohibition in no way interferes with the lawyer simply representing that same client in a subsequent proceeding against the same opponent. The result is the same whether the opponent (the other spouse) had counsel in the first proceeding or not. This view assumes that the lawyer followed the ethical guidelines as determined in Ethics Opinion No. 80 and the supplement thereto and that the lawyer revealed to both parties the fact he represented only one party in the divorce.

It should be noted that the Rules of Professional Conduct, under the view of the Ethics Committee, continue the prohibition of one lawyer representing both parties to a divorce on the grounds of Irreconcilable Differences. Rule 1.7(b) contains the following language:

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes:

(1) the representation will not be adversely affected; and

(2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.

The common sense approach of Opinion No. 80 eliminates the lawyer's potential for ethical violations in this area. The Ethics Committee is of the opinion that a lawyer's loyalty and responsibility to his client would otherwise be compromised. There is no ethical way for an attorney to undertake such dual representation without adversely affecting one or both of the parties.

A conflict does not exist by merely representing the same client against the same opposition in subsequent legal matters.