May one attorney represent both the husband and the wife in a divorce where the pleadings put them in an adversary position?

Plain-English summary

The inquiry arose from a divorce in which the same attorney filed both the wife's petition (seeking divorce on grounds of incompatibility attributed to the husband's conduct) and the husband's answer (generally denying the allegations, demanding strict proof, and requesting that the husband be granted a divorce). The decree recited that the attorney appeared individually on behalf of both the plaintiff and the defendant, found generally for the wife on her petition and for the husband on his cross-petition, and granted each a divorce from the other on incompatibility, along with custody, child support, and a property settlement.

The committee applied Canon 7 (a lawyer should represent a client zealously within the bounds of law) and Disciplinary Rule 7-104(A)(2) (a lawyer should not, during representation, give advice to an unrepresented person whose interests are or may be in conflict with the client's, other than to secure counsel). It found the conflict between the husband and wife apparent from the adversary pleadings filed on their individual behalf. Under DR 5-105(A), an attorney must not accept employment that may impair the independent judgment another client requires, with a limited exception under DR 5-105(C) (and EC 5-17) where clients consent after full disclosure; but the committee held that exception was never intended to let an attorney represent both parties in an adversary proceeding or to create a sham adversary situation.

The committee concluded that when the attorney undertook to represent the wife and filed her petition, he became disqualified to represent the husband in the adversary proceeding and to file a responsive pleading for him, citing Northeastern Oklahoma Community Development Corporation v. The District Court of Mayes County and ABA Informal Opinion 1255. Limiting its opinion to the facts presented, where the attorney represented himself as advising both parties in an adversary proceeding, the committee held the dual representation proscribed by ABA Formal Opinion 224 and answered the inquiry in the negative: the described procedure violated proper ethical conduct.

Currency note

This opinion was issued in 1974, under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The conflict-of-interest rules have since been recast (compare Model Rule 1.7); 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 file both the petition and the answer in a contested divorce?

A: No. The committee held that once the attorney filed the wife's petition he became disqualified to represent the husband and file a responsive pleading in the same adversary proceeding.

Q: Could the spouses consent to the dual representation?

A: No. While DR 5-105(C) allows some multiple representation with consent after full disclosure, the committee held that exception was never intended to permit representing both parties in an adversary proceeding or creating a sham adversary situation.

Q: What made this a true conflict rather than an uncontested matter?

A: The committee found the adversary position was created by the pleadings filed for each party, with each seeking a divorce from the other, so the conflict of interest was apparent.

Background and rules framework

The opinion applied Canon 7 of the Code of Professional Responsibility with Disciplinary Rule 7-104(A)(2) (advice to an unrepresented person with conflicting interests) and Disciplinary Rule 5-105(A) and (C) with Ethical Consideration 5-17 (refusing or limiting employment that may involve a conflict, and the narrow consent exception). It relied on Oklahoma and ABA authority on disqualification and dual representation. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 7 (Code of Professional Responsibility): a lawyer should represent a client zealously within the bounds of law.
• DR 7-104(A)(2) (Code of Professional Responsibility): no advice to an unrepresented person whose interests conflict with the client's, other than to secure counsel.
• DR 5-105(A) and (C); EC 5-17 (Code of Professional Responsibility): refusing employment that may impair independent judgment, with a narrow consent-after-disclosure exception.

Cases:

• Northeastern Oklahoma Community Development Corporation v. The District Court of Mayes County, 510 P.2d 939 (Okla. 1973).

Other opinions cited:

• ABA Formal Opinion 224 and ABA Informal Opinion 1255.

See also

• Okla. Bar Ethics Op. 266: Representing the executrix and the legatee in a will contest
• Okla. Bar Ethics Op. 254: Partner or officemate of an assistant DA defending criminal cases
• Okla. Bar Ethics Op. 113: Switching sides in a school district dispute

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-278/

Original opinion text

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

Adopted April 26, 1974

INQUIRY

May an attorney represent, or purport to represent, both husband and wife in a divorce proceeding in which the pleadings present an adversary position between the parties?

OPINION

The question evolves from a case in which a petition was filed by the plaintiff-wife seeking a divorce on the grounds of incompatibility between the parties directly attributable to the conduct and demeanor of the defendant_ husband. The defendant-husband filed an answer in which he generally denied all the allegations of the petition, except the marriage and birth of three children and the agreement of a settlement of the property rights, demanded strict proof of the allegations of the petition and requested that the defendant-husband be granted a divorce.

The petition and the answer presented a justiciable issue in an adversary proceeding in which each party sought to be granted a divorce from the other. Both the petition and the answer were filed by the same attorney. The decree of divorce recites that the cause came on to be heard upon the verified petition of the plaintiff and the answer of the defendant with the attorney appearing individually on behalf of the plaintiff and of the defendant. The Court "finds generally for the plaintiff upon her petition for a divorce and for the defendant for his cross-petition for divorce, that each should be divorced from the other." The decree grants custody of the children, awards child support and approves the property settlement agreement. The decree further recites "that a divorce should be granted to the plaintiff from the defendant on the grounds of incompatibility, only, and that a divorce should be granted to the defendant from the plaintiff on the grounds of incompatibility, only."

Canon 7 of the Code of Professional Responsibility adopted by the Supreme Court of Oklahoma states "a lawyer should represent a client zealously within the bounds of law". Disciplinary Rule 7_104(a)(2), construing Canon 7, states that during the course of his representation of a client, a lawyer should not:

"Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interest of such person are or have a reasonable possibility of being in conflict with the interests of his client."

The conflict of the interest between the husband and wife in the pleadings is apparent. An adversary position is created between the parties by the pleadings which have been filed on their individual behalf. An attorney must not accept employment that has the potential of impairing the freedom of conduct and detached professional judgment which another of his clients may require him to exercise. DR 5_105A. A limited exception is permitted in certain described circumstances under DR 5_105(C) where the clients consent after a full disclosure by the attorney of the possible consequences. EC 5_17. Obviously it was never intended that subsection (C) would enable an attorney to justify representing both parties in an adversary proceeding or to create an adversary situation which, in truth and in fact, is a sham.

When the attorney undertook the representation of plaintiff-wife in the divorce proceeding and filed the petition on her behalf, he became disqualified to represent the defendant-husband in an adversary proceeding and to file a responsive pleading on behalf of the defendant-husband. Northeastern Oklahoma Community Development Corporation v. The District Court of Mayes County, et al., Okl., 510 P.2d 939 (1973). See, also, Informal Opinion 1255 of ABA.

This Opinion is limited to the facts presented. Under the facts presented it appears that the attorney represented himself as advising both parties in an adversary proceeding. This dual representation is proscribed by ABA Formal Opinion No. 224.

It is, therefore, the opinion of the Committee under the Code of Professional Responsibility that the inquiry must be answered in the negative and that a violation of proper ethical conduct would be involved in the procedure described above.