In a bar-association divorce-mediation and legal-aid program, may lawyers represent both spouses in an irreconcilable-differences divorce?

Plain-English summary

The Knoxville Bar Association (KBA) sought guidance on conflict, confidentiality, and scope-of-representation concerns raised by its domestic-relations mediation program, which mediated divorces, custody, and grandparent-visitation disputes and then referred parties to pro bono attorneys, sliding-fee panel attorneys, or the Knoxville Legal Aid Society (KLAS) and its Volunteer Legal Assistance Program (VLAP) according to ability to pay. Because KLAS would not represent both parties in an irreconcilable-differences divorce and demand for indigent services outstripped supply, the program asked, in several variations, whether different attorneys (a KLAS staff attorney for one spouse and a VLAP pro bono attorney for the other, or VLAP attorneys for both) could represent the two parties to a mediated agreement, whether an attorney could be retained only to review a mediated agreement, and whether assigned attorneys could continue representing the parties if mediation broke down into a contested matter.

The opinion grounded its answer in Formal Ethics Opinion 81-F-16, which recognized that attorneys commonly act for both parties in matters such as partnership agreements and real-estate transactions, and which quoted the California decision Klemm v. Superior Court for the principle that a lawyer representing parties with divergent interests owes each the highest duty of full disclosure of the facts, the areas of potential conflict, and the desirability of independent advice. Under 81-F-16, an attorney may represent both parties in an irreconcilable-differences divorce if there is no dispute or conflict and none arises, with full disclosure and informed consent (preferably in writing), and the attorney is disqualified from representing either party if a dispute arises. The opinion noted that the irreconcilable-differences divorce laws were designed to reduce the adversarial nature of dissolutions and to avoid creating conflicts where none exist.

Applying that framework, the opinion concluded that the KBA, its Lawyer Referral Service and Sliding Fee Scale Panel, KLAS and its VLAP, and all attorneys in the programs were ethically permitted to represent both parties in an irreconcilable-differences divorce as provided in 81-F-16. It then answered the specific questions: the dual-representation arrangements presented (questions one through four) were permissible, but the answer to whether the respective attorneys could continue to represent the assigned parties once mediation broke down into contested, adversarial litigation was no.

Currency note

This opinion was issued in 1993, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility (including DR 5-105) on which it relied, and before the ABA's 2002 Ethics 2000 revisions. The modern analogs are RPC 1.7 (concurrent conflicts and informed consent), RPC 1.16 (declining or terminating representation), and RPC 2.4 (lawyer serving as a third-party neutral). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could two legal-aid or pro bono attorneys each represent one spouse in a mediated irreconcilable-differences divorce?

A: Per the opinion, yes, in the arrangements presented, as long as the representation followed 81-F-16: no existing or arising dispute, full disclosure, and informed consent.

Q: Could a single attorney represent both spouses in an uncontested divorce?

A: Per 81-F-16 as applied here, yes, where no dispute exists or arises, with full disclosure and informed consent (preferably in writing), and with the attorney disqualified from representing either party if a dispute arises.

Q: If mediation broke down and the divorce became contested, could the assigned attorneys keep representing the parties?

A: No. The opinion answered that question in the negative; once the matter became contested adversarial litigation, the attorneys could not continue to represent the assigned parties.

Background and rules framework

The opinion applied the conflict principles of the former Code (DR 5-105 on representing multiple clients with differing interests) as developed in Formal Ethics Opinion 81-F-16 and the California decision Klemm v. Superior Court. The modern analogs are Model Rule 1.7 / Tennessee RPC 1.7 (concurrent conflicts; consentability; informed consent confirmed in writing), Model Rule 1.16 / Tennessee RPC 1.16 (withdrawal when a conflict arises), and Model Rule 2.4 / Tennessee RPC 2.4 (lawyer as a third-party neutral).

Citations and references

Rules of Professional Conduct (former Code):

• DR 5-105 (representing multiple clients with differing interests). Modern analog: Model Rule 1.7 / Tennessee RPC 1.7

Cases:

• Klemm v. Superior Court of Fresno County, 75 Cal. App. 3d 893, 142 Cal. Rptr. 509 (1977), duties when representing parties with divergent interests

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-16 (representing both parties to an irreconcilable-differences divorce)

See also

• Tenn. Ethics Op. 81-F-16: Representing Both Parties in an Irreconcilable Differences Divorce
• SC Bar Ethics Op. 96-15: Legal Services Referral and Spousal Conflicts
• SC Bar Ethics Op. 95-02: Representing Both Spouses Who Divorce

Source

• Landing page: https://www.tbpr.org/ethic_opinions/93-f-130

Original opinion text

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

93-F-130 - Bar Association Divorce Mediation Program

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 93-F-130

The Knoxville Bar Association seeks guidance on ethical concerns raised by its domestic relations mediation program.

The Knoxville Bar Association (KBA) recently began a service to the community which provides mediation for divorces, child custody disputes and grandparent visitation disputes. There is a small one-time administrative fee and no fee, or reduced fee, for those eligible for pro bono services or legal assistance.

The parties are screened for eligibility and advised of their right to obtain counsel at any time during the mediation process, and also advised of the need of formal court proceedings and judicial action to obtain a divorce. The mediators then formulate the issues to be mediated. When an agreement is reached or when mediation breaks down and there is a need for legal counsel the bar association refers the parties to pro bono attorneys, sliding fee scale panel attorneys, or other attorneys according to the parties' ability to pay.

The parties submit any resulting tentative mediated agreements to their attorneys for review, assurance of understanding, legality and whatever legal advice or counsel required. If differences, disagreements or unresolved issues arise the parties may return to mediation, proceed with litigation in the usual manner or otherwise cease the mediation process. Final mediated agreements are formalized by the attorney for one of the parties in the marital dissolution agreement and an irreconcilable differences divorce or other appropriate proceeding is instituted.

The bar has experienced a greater demand for indigent services than can be met. Some indigent parties who have a mediated agreement are unable to obtain legal assistance through Knoxville Legal Aid Society (KLAS). The problem is compounded by the KLAS policy of not representing both parties in an irreconcilable differences divorce.

The KBA and KLAS are engaged in a joint project, fully funded by KLAS, known as the Volunteer Legal Assistance Program (VLAP). The entire focus of VLAP is to recruit local attorneys to take the overflow pro bono cases which KLAS is unable to handle. A staff attorney of KLAS coordinates the referral of cases to VLAP pro bono attorneys.

There are instances when the KLAS receives initial contact and information from parties who are then referred to the KBA lawyer referral services and/or mediation services. In these instances the initial contact is only with a receptionist who makes no inquiry or record of the information other than name, telephone number and qualifying income information.

Referrals by the KBA mediation program to KLAS go directly to the legal intake staff attorneys and paralegals without pre-screening by KLAS for qualification. The KLAS staff attorney-VLAP coordinator participates in the intake process which involves information as to economic eligibility and review of the mediated agreement. A decision is made as to whether the party will be represented by a KLAS attorney or a VLAP attorney. The VLAP coordinator makes the referrals to a VLAP pro bono attorney if the KLAS attorneys are not available for representation.

KLAS provides malpractice insurance to VLAP pro bono attorneys on the cases referred to them and also pays the court costs for the cases. The pro bono attorneys maintain their own files and are not supervised by KLAS. Pro bono attorneys sometimes receive general information and advice from KLAS attorneys about handling pro bono matters because they have expertise in dealing with indigent persons.

The bar association seeks ethical guidance on providing each indigent party to a mediated domestic agreement with counsel, and/or seeking counsel for both sides of a mediated agreement, when

there are ethical concerns as to conflict of interest, confidential information, scope of representation or other ethical concerns. The bar association has identified the following specific questions and concerns:

• May a KLAS attorney represent one party to the mediated divorce and a VLAP pro bono attorney represent the other party on referral from VLAP, (a) if one party has come directly to KLAS and been turned away in the first instance by the receptionist and both are referred by KBA Mediation Service, or (b) if both parties came directly to KLAS initially and were turned away by the receptionist?

• May a KLAS staff attorney represent one party to the mediated divorce and a VLAP pro bono attorney represent the other party on referral from VLAP if both parties are referred to KLAS by the KBA with a mediated agreement where neither party sought KLAS representation to begin with?

• May KLAS refer to and VLAP attorneys represent both parties on referral by KLAS if KLAS does its Intake Staff process without any consideration of direct KLAS representation of the parties?

• May a participating attorney or an attorney outside KLAS and VLAP accept a client solely for the purpose of reviewing and advising with respect to a mediated agreement for divorce in two situations, (a) where no complaint has been filed for the divorce; or (b) where the opposing party has filed for the divorce?

• If a KLAS attorney and/or a VLAP attorney is involved with parties to mediation, and the mediation ultimately breaks down to the extent that the domestic matter becomes contested, may the respective attorneys continue to represent the assigned parties in the adversarial litigation process?

Tennessee Formal Ethics Opinion 81-F-16 recognized the fact that it is not uncommon for attorneys to act for both parties in certain matters such as partnership agreements, real estate transactions, buyers and sellers, landlords and tenants, etc. The opinion cites and quotes the California Court of Appeal case of Klemm v. Superior Court of Fresno County, 75 Cal.App. 893, 142 Cal. Rptr. 509, 514 as follows:

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.

The opinion states that an attorney may represent both parties in an irreconcilable differences divorce if there is no dispute or conflict existing and none arises, provided there is full disclosure and informed consent of both parties, preferably in writing, and providing that if a dispute arises the attorney is disqualified from representing either party.

The Board recognized in their formal ethics opinion that the irreconcilable differences divorce laws were created to do away with the idea of fault in dissolving marriages, to minimize their adversary nature, and to eliminate conflicts between the parties instead of creating conflicts when none exist.

Accordingly, the Knoxville Bar Association, its Lawyer Referral Service and its Sliding Fee Scale Panel, the Knoxville Legal Aid Society and/or their Volunteer Legal Assistance Program, and all attorneys involved in any of the programs, are ethically permitted to represent both parties in an irreconcilable differences divorce as provided in Formal Ethics Opinion 81-F-16.

The specific questions and concerns are addressed as follows:

• (a) Yes; (b) Yes;

• Yes;

• Yes;

• (a) Yes; (b) Yes; and

• No.

This 11th day of June, 1993.

ETHICS COMMITTEE:

S/Ed E. Williams, III, Chairman

S/C. Richard Dietzen

S/Brenda Y. Hall

APPROVED AND ADOPTED BY THE BOARD