Can one lawyer represent both spouses in a no-fault divorce, and later represent one of them against the other to enforce the settlement?

Plain-English summary

The Committee addressed two questions about a lawyer representing both parties to a no-fault divorce. First, a lawyer (A) had represented both husband and wife in a no-fault divorce that ended in a decree incorporating a property settlement; after the husband defaulted, could A now represent the wife against the husband to enforce the agreement and decree? Second, may a lawyer represent both parties in a no-fault divorce at all? The Committee answered the second question first, because a negative answer resolves the first.

The opinion concludes that representing both parties to a no-fault divorce violates Rule 1.7 and is therefore unethical. Because the dual representation should never have been undertaken, the first question is moot, but the opinion adds that representing the wife against the husband would in any event violate Rule 1.9, which bars a lawyer from later representing another in the same or a substantially related matter materially adverse to a former client without consent.

A supplement to the opinion addresses styling and unrepresented parties. It states that no-fault divorces may be styled "In the Matter of the Dissolution of the Marriage of H and W," and that one party may proceed without an attorney so long as the represented spouse's lawyer informs the unrepresented party, per Rule 4.3, that the lawyer does not represent and will not advise that party, and that the party has the right to obtain independent counsel to review the pleadings and agreements.

In practice

Under this opinion, a single lawyer cannot represent both spouses in a no-fault divorce, and the lawyer who did so cannot later take one spouse against the other to enforce the resulting agreement. The opinion applies Rule 1.7 to bar the joint representation and Rule 1.9 to bar the subsequent adverse representation. The opinion's supplement sets out the alternative the rules allow: one spouse retains the lawyer and the other proceeds unrepresented, provided the lawyer gives the Rule 4.3 disclosures and makes clear on the face of the pleadings which spouse the lawyer represents.

Common questions

Q: Can one attorney handle a no-fault divorce for both the husband and the wife?

A: No. The opinion concludes that representing both parties to a no-fault divorce violates Rule 1.7 and is unethical.

Q: After a joint no-fault divorce, can the lawyer sue one spouse to enforce the settlement on behalf of the other?

A: No. The opinion states that representing the wife against the husband would violate Rule 1.9, which protects the former client in the same or a substantially related matter.

Q: Can one spouse go through a no-fault divorce without a lawyer?

A: Yes. The supplement says a party may proceed unrepresented if the other spouse's lawyer gives the Rule 4.3 warnings: that the lawyer does not represent or advise that party, and that the party may obtain counsel to review the documents.

Q: How should the case be styled?

A: The supplement states no-fault divorces may be styled "In the Matter of the Dissolution of the Marriage of H and W."

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.7 (concurrent conflicts; direct adversity between two clients; Model Rule 1.7) and Rule 1.9 (duties to former clients; Model Rule 1.9), which in turn references Rule 1.6 (confidentiality; Model Rule 1.6). The supplement applies Rule 4.3 (dealing with an unrepresented person; Model Rule 4.3) to the disclosures the represented spouse's lawyer must give.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / MS RPC 1.7(a) (concurrent conflict; representing both spouses)
• MR 1.9 / MS RPC 1.9 (duties to a former client in a substantially related matter)
• MR 4.3 / MS RPC 4.3 (dealing with an unrepresented person)
• MR 1.6 / MS RPC 1.6 (confidentiality, cross-referenced in Rule 1.9)

See also

• MS Bar Ethics Op. 87: Prosecutor's Partner Defending a Criminal Case
• MS Bar Ethics Op. 106: Suing a Former Client

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/80/
• Original PDF: https://www.msbar.org/media/1092/et_op_80-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 80

OF THE MISSISSIPPI BAR

RENDERED March 25, 1983

AMENDED April 06, 2013

CONFLICT OF INTEREST - Representation of multiple clients in a no-fault divorce.

The Ethics Committee of the Mississippi Bar has been requested to render an opinion on two aspects of the representation by an attorney of both parties to a no-fault divorce.

The first request involved the following factual situation:

A, an attorney, represented both H and W in a no-fault divorce proceeding. The proceeding was concluded by the entry of a decree granting the divorce and incorporating therein the provisions of the separation and property settlement agreement entered into between the parties.

Subsequent to the entry of the decree, H defaulted in the performance of the obligations imposed upon him by the terms of both the agreement and the decree.

The inquiry is whether A can now represent W against H in an action to compel performance of the terms of the agreement and decree by H.

The second request is whether an attorney may represent both parties in a no-fault divorce proceeding.

A negative response to the second request will, of course, answer the first request; and for that reason, the second request will be first addressed in this opinion.

Rule 1.7(a) of the Mississippi Rules of Professional Conduct (MRPC), provides that

a lawyers shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:

(1) the representation will not adversely affect the relationship with the other client; and

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

Rule 1.9, MRCP, provides that:

A Lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another in the same or a substantially related matter in which that person's interests are materially adverse to the interest of the former client unless the former client consents after consultation; or

(b) use information relation to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

The Committee is, therefore, of the opinion that the representation of both parties to a no-fault divorce violates the Rule 1.7, MRPC, and that it is, therefore, unethical for a lawyer to undertake such multiple representation. Finding as we do as to the second inquiry, the first inquiry presented becomes moot in that the dual representation should not have been undertaken in the first instance but would, in any event, violate Rule 1.9, MRPC.

It should be clear on the face of the pleading or the property settlement agreement in a joint bill for divorce of the parties which party the attorney represents.

SUPPLEMENT TO ETHICS OPINION NUMBER 80
OF THE MISSISSIPPI BAR
RENDERED, MARCH 25, 1983

The Committee is of the opinion that No-Fault Divorces may be styled, "In the Matter of the Dissolution of the Marriage of H and W."

There is nothing wrong at all with one of the parties to a No-Fault Divorce being without an attorney, so long as that party, either H or W is properly informed by the spouse's attorney that (1) that party is not represented by the spouse's attorney, (2) the spouse's attorney will not undertake to advise that party on any aspect of the case as to his or her rights, and (3) that party has a right to obtain an attorney to advise him or her and to review any of the agreements, pleadings or decrees which will be prepared. See Rule 4.3, MRPC.

This opinion is intended in no way to affect the validity of no-fault divorce proceedings, or to limit or impede the filing and ultimate disposition of such