Can one North Carolina lawyer prepare a separation agreement for both spouses who agree on the terms and want to share one lawyer?

Plain-English summary

The opinion addresses a married couple who agree on the terms of separation, cannot afford two lawyers, and want one lawyer to prepare a separation agreement for both. The committee concludes the lawyer may not do so.

The analysis runs through Rule 1.7. Under Rule 1.7(a), a concurrent conflict exists where the representation of one client is directly adverse to another or may be materially limited by the lawyer's responsibilities to another client. Rule 1.7(b) allows some conflicts to be cured by informed consent, but the opinion stresses that some conflicts are nonconsentable: consentability turns on whether the clients' interests will be adequately protected, and representation is prohibited if the lawyer cannot reasonably conclude he can provide competent and diligent representation (Rule 1.7, cmts. [14] and [15]; Rules 1.1 and 1.3).

The opinion draws on 2013 FEO 14, which found common representation in a commercial loan closing nonconsentable because of the numerous opportunities for a lawyer to negotiate on behalf of the parties and for an actual conflict to arise. The committee finds the same concerns in a separation agreement: even where the spouses believe they agree, there are numerous opportunities to negotiate custody, property division, and family support, and an actual conflict would substantially prejudice the parties. Because the spouses are legally adverse in the same matter and impartiality is rarely possible, the lawyer cannot advise one without compromising the other. The conflict is therefore nonconsentable, and the lawyer cannot prepare the separation agreement for both parties.

In practice

Under the North Carolina rules as they stood at the time of the opinion, one lawyer preparing a separation agreement for both spouses is prohibited as a nonconsentable conflict under Rule 1.7, even if the spouses agree on terms and want to save the cost of a second lawyer. The opinion treats separating spouses as legally adverse parties in the same matter, with numerous points (custody, property division, support) at which the lawyer would have to negotiate for each side.

The opinion holds that the conflict cannot be cured by the spouses' consent, because the lawyer cannot reasonably conclude he can provide competent and diligent representation to both when their interests diverge. Per the opinion, the controlling factors are the likelihood that a difference in interests will eventuate and whether it would materially interfere with the lawyer's independent judgment.

Common questions

Q: Can one North Carolina lawyer draft a separation agreement for both spouses?

A: No. The opinion concludes this is a nonconsentable concurrent conflict under Rule 1.7 because the spouses are legally adverse and there are numerous opportunities for the lawyer to negotiate on behalf of each.

Q: Does it matter that the spouses already agree on the terms and just want to save money?

A: No. The opinion concludes that even where the parties believe they agree, there are numerous opportunities to negotiate custody, property division, and family support, and an actual conflict would cause substantial prejudice.

Q: Can the spouses consent to the joint representation?

A: No. The opinion concludes the conflict is nonconsentable because the lawyer cannot reasonably conclude he can provide competent and diligent representation to both (Rule 1.7, cmts. [14], [15]; Rules 1.1 and 1.3).

Background and rules framework

The opinion interprets Rule 1.7 (Model Rule 1.7, conflicts of interest with current clients). Rule 1.7(a) defines a concurrent conflict as direct adversity between clients or a material limitation arising from the lawyer's responsibilities to another client. Rule 1.7(b) permits a lawyer to proceed despite some conflicts with informed consent, but comments [14] and [15] explain that consentability depends on whether the clients' interests can be adequately protected, and that representation is prohibited where the lawyer cannot reasonably conclude he can provide competent and diligent representation. The opinion ties this to Rule 1.1 (competence) and Rule 1.3 (diligence).

The opinion relies on 2013 FEO 14, which found common representation in a commercial loan closing nonconsentable, and applies the same reasoning to a separation agreement.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / NC Rule 1.7(a), 1.7(b) and cmts. [14], [15] (concurrent conflicts; consentability)
• Model Rule 1.1 / NC Rule 1.1 (competence)
• Model Rule 1.3 / NC Rule 1.3 (diligence)

Other opinions cited:

• 2013 FEO 14: common representation in a commercial loan closing is, in most instances, nonconsentable.

See also

• Alabama Ethics Op. 1989-99: Representing Buyer and Seller in a Real Estate Transaction
• NC State Bar Op. 2021 FEO 1: Contemporaneous Residential Real Estate Closings

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2019-formal-ethics-opinion-1/

Original opinion text

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

Inquiry:

Lawyer represents clients in domestic relations matters. Lawyer has been contacted by a married couple wishing to separate and then later obtain a divorce. No litigation has been initiated. The married couple agree on the terms of separation. The couple does not have sufficient funds to pay two lawyers and wants Lawyer to prepare the separation agreement for both parties. May Lawyer prepare a separation agreement for both parties?

Opinion:

No. Rule 1.7 provides that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client, or the representation of one or more clients may be materially limited by the lawyer’s responsibilities to another client. Rule 1.7(a).

Rule 1.7(b) recognizes that a conflict can be resolved by client consent. However, some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent. Rule 1.7, cmt. [14]. The commentary to Rule 1.7 further provides,

Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).

Rule 1.7, cmt. [15].

In 2013 FEO 14, the Ethics Committee determined that, in most instances, common representation in a commercial loan closing is nonconsentable. Common representation was found to be inappropriate because of the “numerous opportunities for a lawyer to negotiate on behalf of the parties” and “numerous opportunities for an actual conflict to arise between the borrower and the lender.” 2013 FEO 14.

These same issues and concerns are present in the case of a separation agreement. Although the parties may believe they have agreed on the terms of separation, there are potentially numerous opportunities for Lawyer to negotiate on behalf of the parties regarding, inter alia, custody, property division, and family support. In the event an actual conflict arises, the prejudice to the parties would be substantial.

Lawyer has a professional duty to provide competent and diligent representation to each client and ensure that the legal interests of each client are protected. Rules 1.1 and 1.3. When the clients are legally adverse to each other in the same matter and there are numerous opportunities for Lawyer to negotiate on behalf of the parties, impartiality is rarely possible. See 2013 FEO 14. Lawyer, therefore, cannot adequately advise one client without compromising the interest of the other client. Because Lawyer cannot adequately represent the interests of each client, Lawyer has a nonconsentable conflict and cannot prepare the separation agreement for both parties.