Can a lawyer representing one spouse in a contested divorce alleging cruel and inhuman treatment also prepare the answer for the other spouse to sign?

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 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

An attorney asked whether he could prepare an answer for his client's spouse to sign in response to a divorce petition alleging cruel and inhuman treatment.

The Board explained that the Ethical Considerations and Disciplinary Rules of Canon 5 preclude a lawyer from accepting employment that involves representing "differing interests," a term covering every interest that would adversely affect either the judgment or the loyalty of an attorney to a client, whether conflicting, inconsistent, diverse, or otherwise. It also noted Disciplinary Rule 7-104(A)(2), which bars an attorney from communicating with, or giving advice to, a person of adverse interest who is not represented, other than advice to secure counsel.

The Board distinguished this scenario from Formal Opinion 81-F-16, in which it had held that Tennessee's divorce laws, amended to reduce the adversarial nature of irreconcilable differences divorces, permitted an attorney to represent both parties in an irreconcilable differences divorce under certain conditions. This inquiry concerned a divorce grounded in cruel and inhuman treatment, not irreconcilable differences, and the Board added that a divorce obtained by collusion between the parties, other than for irreconcilable differences, is invalid, and it is improper and unethical for an attorney to assist a party in obtaining such a divorce.

Common questions

Q: Can I prepare the answer for my client's spouse to sign in a contested divorce?

A: No. The inquiry concerned exactly that scenario, and the opinion applies Canon 5's bar on "representing differing interests" to conclude the conduct is improper.

Q: Does it matter that the spouse is not represented by another lawyer?

A: It does not permit the conduct. The opinion cites Disciplinary Rule 7-104(A)(2), which bars an attorney from communicating with or advising "one of adverse interest" who is unrepresented, "other than the advice to secure counsel."

Q: Didn't the Board allow representing both spouses in some divorce cases?

A: Yes, but only for irreconcilable differences divorces. The opinion notes "this committee thus held in Formal Opinion 81-F-16 that under certain conditions an attorney could represent both parties in an irreconcilable differences divorce," a narrower situation than the contested cruelty divorce addressed here.

Q: Is a divorce obtained by agreement between the spouses always valid?

A: Not if it is not an irreconcilable differences divorce. The opinion states "a divorce, other than for irreconcilable differences, obtained by collusion between the parties is invalid," and that assisting a party to obtain such a divorce is "improper and unethical."

Background and rules framework

The opinion applied Canon 5 of the Tennessee Code of Professional Responsibility (barring representation of differing interests) and Disciplinary Rule 7-104(A)(2) (limiting communication with an unrepresented adverse party), read alongside the Board's earlier ruling in Formal Opinion 81-F-16 on irreconcilable differences divorces. The modern correlates are Model Rule 1.7 (conflicts of interest) and Model Rule 4.3 (dealing with unrepresented persons), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• Canon 5 (differing interests) and DR 7-104(A)(2) (communication with an unrepresented adverse party), Tennessee Code of Professional Responsibility
• Model Rule 1.7 (conflicts of interest) and Model Rule 4.3 (dealing with unrepresented persons), modern correlates

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-16: permitted an attorney to represent both parties in an irreconcilable differences divorce under certain conditions

See also

• Tenn. Ethics Op. 81-F-16: Representing Both Parties in an Irreconcilable Differences Divorce
• Tenn. Ethics Op. 93-F-130: Divorce Mediation

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-21

Original opinion text

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

81-F-21 - Representation of both parties in contested divorce

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-21

An inquiry has been made concerning the propriety of an attorney preparing an answer for his client's spouse to sign in response to a divorce petition alleging cruel and inhuman treatment.

The Ethical Considerations and Disciplinary Rules of Canon 5 of the Code of Professional Responsibility precludes acceptance of employment that will involve the attorney in representing differing interests. "Differing interests" include every interest that will adversely affect either the judgment or the loyalty of an attorney to a client, whether it be a conflicting, inconsistent, diverse or other interest.

Disciplinary Rule 7-104(A)(2) provides that an attorney shall not communicate with one of adverse interest or give advice to such a person who is not represented, other than the advice to secure counsel.

The divorce laws of Tennessee have been amended to minimize the adversary nature in suits dissolving marriages involving irreconcilable differences. This committee thus held in Formal Opinion 81-F-16 that under certain conditions an attorney could represent both parties in an irreconcilable differences divorce.

A divorce, other than for irreconcilable differences, obtained by collusion between the parties is invalid. It is improper and unethical for an attorney to assist a party to obtain such a divorce.

This 1st day of October, 1981.

ETHICS COMMITTEE:

Joseph G. Cummings

F. Evans Harvill

John R. Rucker

APPROVED AND ADOPTED BY THE BOARD