May two lawyers in the same firm separately represent spouses in an agreed default divorce involving custody and support?
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This page answers the general question as of 1992. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
Two lawyers in one firm proposed separately representing a husband and wife in a default divorce. The spouses had agreed on the division of minimal property and on custody and support of one child. Each had been told about the other spouse's contact with the firm and the proposed representation's potential conflict.
The committee applied Rule 1.10(a) to treat the lawyers' conflicts as if one lawyer represented both spouses. It discussed Rule 1.7(c)'s consent and adverse-effect requirements and Rule 2.2's conditions for intermediation, including impartiality, continuing consultation, and withdrawal if consent or impartiality could not be maintained.
For these facts, the committee concluded that the firm should not proceed because the spouses were likely to become adverse. It said the firm should withdraw from one or both representations under Rules 1.9, 1.10, and 1.16. The committee expressly left open whether Rule 2.2 could allow joint representation in a domestic matter with less potential for conflict.
Currency note
This opinion was issued in 1992, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.
Common questions
Q: Did separate lawyers within the firm avoid the conflict?
A: No. The committee said Rule 1.10(a) imputes the conflict between lawyers in the firm and analyzed the proposal as simultaneous representation of both spouses.
Q: Did the spouses' agreement and advance disclosure permit this representation?
A: The committee still concluded that the firm should not proceed on these facts because of the likelihood of adversity, particularly with custody and support at issue.
Q: Did the committee rule out every joint domestic representation?
A: No. It said it had not been asked whether Rule 2.2 might permit simultaneous representation in a domestic matter with less potential for conflict.
Background and rules framework
The opinion analyzes North Dakota Rules 1.7(c), 1.10(a), and 2.2 and cites Rules 1.9 and 1.16 for withdrawal from the proposed representation.
Citations and references
Rules of Professional Conduct:
- North Dakota Rules 1.7(c), 1.10(a), 2.2, 1.9, and 1.16.
See also
- ND Ethics Op. 05-04: alleged former-client conflict in domestic relations
- ND Ethics Op. 1992-17: lawyer and broker conflicts
Source
- Landing page: https://www.sband.org/page/ethics_opinions
- Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/92-18.pdf
Original opinion text
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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