Can one attorney represent both spouses in an irreconcilable differences divorce?

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions (including Formal Ethics Opinions 81-F-21 and 93-F-130) revisited this line of guidance. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

The Board was asked whether it is proper for an attorney to represent both parties in an irreconcilable differences divorce. It recognized that Tennessee's irreconcilable differences amendment to the divorce laws was meant to do away with fault-based dissolution, minimize the adversarial nature of such suits, and eliminate conflicts between the parties rather than create conflicts where none exist. It also noted that attorneys commonly act for both sides in other kinds of transactions, such as drawing or dissolving partnership agreements, or representing both grantor and grantee, buyer and seller, or landlord and tenant.

Quoting the California Court of Appeal in Klemm v. Superior Court of Fresno County, the Board stated that attorneys who undertake to represent parties with divergent interests owe the highest duty to each to make full disclosure of all facts and circumstances necessary for the parties to make a fully informed decision about the subject matter, including areas of potential conflict and the possibility and desirability of independent legal advice.

Applying that standard, the Board concluded that if no dispute or conflict exists between the parties and none arises regarding any matter in litigation, an attorney may represent both parties in such a divorce after full disclosure to, and informed consent of, both parties, and that such disclosure and consent should be acknowledged in writing for counsel's own protection. If a dispute later arises between the parties regarding the proceedings, counsel would be disqualified from representing either party.

Common questions

Q: Can I represent both spouses in an irreconcilable differences divorce?

A: Yes, under the conditions the opinion sets out. It states "if there is no dispute or conflict existing and none arises between the parties being represented as to any matter in litigation, and after full disclosure to and informed consent of both parties, we see no reason why an attorney may not represent both parties in such a divorce action."

Q: Do I need written consent from both spouses?

A: The opinion recommends it, though it frames written acknowledgment as protective rather than strictly mandatory: "For counsel's own protection, such disclosure and consent should be acknowledged in writing."

Q: What happens if the spouses later disagree about something in the case?

A: The attorney must withdraw from representing both. The opinion states "if, however, at a later date, a dispute does arise between the parties regarding such proceedings, such counsel would be disqualified from representing either party."

Background and rules framework

The opinion did not apply a specific numbered Disciplinary Rule, instead reasoning from the general Canon 5 principle against representing differing interests and from the California Court of Appeal's disclosure standard in Klemm v. Superior Court of Fresno County. The modern correlate is Model Rule 1.7 (conflicts of interest, including current-client conflicts with informed consent), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest), modern correlate

Cases:

• Klemm v. Superior Court of Fresno County, 75 Cal. App. 3d 893, 142 Cal. Rptr. 509 (1977), disclosure duty owed to parties with divergent interests

See also

• Tenn. Ethics Op. 81-F-21: Representing Both Spouses in a Contested Divorce
• Tenn. Ethics Op. 93-F-130: Divorce Mediation

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-16

Original opinion text

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

81-F-16 - Representation of both parties in irreconcilable differences divorce

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-16

Pursuant to Section 26 of Rule 9 of the Supreme Court, the Board has been asked to issue an opinion as to the propriety of an attorney representing both parties in an irreconcilable differences divorce.

We recognize that the purpose of this amendment to the divorce laws of Tennessee was to do away with the idea of fault in dissolving marriages, to minimize the adversary nature of such suits, and to eliminate conflicts between the parties, rather than create conflicts where none exists.

We further recognize that it is not uncommon for attorneys to act for both parties in other transactions such as the drawing and dissolving partnership agreements, for grantors and grantees in real estate transactions, for sellers and buyers, and for landlords and tenants, inter alia.

As stated by the California Court of Appeal in the case of Klemm v. Superior Court of Fresno County, 75 Cal. App. 893, 142 Cal. Rptr. 509, 514:

Attorneys who undertake to represent parties with divergent interests owe the highest duty to each to make a full disclosure of all facts and circumstances which are necessary to enable the parties to make a fully informed decision regarding the subject matter of the litigation, including the areas of potential conflict and the possibility and desirability of seeking independent legal advice.

If there is no dispute or conflict existing and none arises between the parties being represented as to any matter in litigation, and after full disclosure to and informed consent of both parties, we see no reason why an attorney may not represent both parties in such a divorce action. For counsel's own protection, such disclosure and consent should be acknowledged in writing.

If, however, at a later date, a dispute does arise between the parties regarding such proceedings, such counsel would be disqualified from representing either party.

This 26th day of August, 1981.

ETHICS COMMITTEE:

Joseph G. Cummings

F. Evans Harvill

John R. Rucker

APPROVED AND ADOPTED BY THE BOARD