Can one lawyer represent a wife in her divorce and also represent, in a separate matrimonial case, the husband of the woman she names as the other party?

Plain-English summary

The committee considered whether a lawyer representing a wife in a divorce action could also represent, in a separate matrimonial proceeding, the husband of the woman the wife alleges is the co-respondent. At first glance the two prospective clients look aligned: their spouses formed a relationship that wronged both of them. The committee found that surface alignment far less significant than the many present and potential issues on which the two clients' interests could differ, and concluded those differing interests would inevitably create problems of impaired judgment and divided loyalty.

The committee identified concrete points of divergence: the grounds the wife asserts against her spouse may involve facts the co-respondent's husband would not want raised against his own spouse; the financial relief the wife seeks may be affected by the financial arrangements between the co-respondent and her husband; and custody and other emotionally charged issues could pull the two cases apart. It applied DR 5-105(A), which requires declining employment likely to involve representing differing interests except as DR 5-105(C) permits, and the Code's broad definition of "differing interest" (Definition 1). EC 5-15 directs a lawyer to resolve all doubts against multiple representation and never to represent multiple clients with differing interests in litigation.

The committee held that the potential conflicts were so inherent that informed consent under DR 5-105(C) would be virtually impossible to obtain: a lawyer could not even gather the information needed to explain the conflict without compromising each client's confidences (DR 4-101). Where one client's consent would logically depend on the other's unforeseeable intentions and choices, that consent cannot be knowledgeable or informed, and so is without ethical meaning. As in N.Y. State 516 (1980), this was not a situation where it is obvious the lawyer can adequately represent each client, so consent could not cure it. The committee answered the question in the negative, adding that in matrimonial disputes doubts should be resolved in favor of separate representation.

Currency note

This opinion was issued in 1980, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the conflict standard now appears at Rule 1.7 and the confidentiality duty at Rule 1.6). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can one lawyer represent both a divorcing wife and the co-respondent's husband in his own matrimonial case?

A: No. The committee held the two clients' interests differ in too many foreseeable ways (grounds, finances, custody), creating divided loyalty that bars the simultaneous representation.

Q: Could the two clients just consent to the dual representation?

A: No. The committee found informed consent virtually impossible to obtain here, because explaining the conflict would require compromising each client's confidences, so any consent would lack ethical meaning.

Q: Does it matter that the two clients seem to be on the same side?

A: No. The committee treated the apparent alignment as far less significant than the present and potential divergences, and said doubts in matrimonial disputes should be resolved in favor of separate counsel.

Background and rules framework

The opinion applied DR 5-105(A) and (C) (declining or limiting representation of differing interests), the Code's broad Definition 1 of "differing interest," EC 5-15 and 5-16 (weighing and disclosing multiple representation), and DR 4-101 (preserving confidences) to a proposed dual matrimonial representation. The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts)
• MR 1.6 (confidentiality)
• NY EC 5-15, EC 5-16, DR 4-101(A), (B), (C)(1), DR 5-105(A), (C), Definition 1

Other opinions cited:

• N.Y. State 516 (1980): consent cannot cure where adequate dual representation is not obvious
• N.Y. County 620 (1972): no litigation for and against the same client, even in unrelated matters

See also

• NY State Bar Op. 519: Insurer staff counsel when coverage is disclaimed
• NY State Bar Op. 525: A prospective client's confidences create a conflict
• NY State Bar Op. 516: Insurance company lawyer preparing a will and estate plan

Source

• Landing page: https://nysba.org/opinion-517/