Can one lawyer represent both spouses in a divorce, even when they fully agree on the terms?
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This page answers the general question as of 2019. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-84-3, revised June 26, 2019, answers whether an attorney may represent both spouses in a divorce proceeding. The answer is no. The committee explains that a divorce is a litigation process under Wisconsin Statutes Chapter 767, in which a claim by one spouse is inherently a claim asserted against the other, governed by the rules of civil procedure. SCR 20:1.7(b)(3) provides that a concurrent conflict of interest cannot be consented to when the representation involves the assertion of a claim by one client against another client the lawyer represents in the same litigation. Because divorcing spouses are directly adverse parties in litigation, dual representation is a non-consentable conflict, and is improper even when both spouses fully agree on the marital settlement agreement.
The committee notes that its 2019 conclusion matches the original 1984 opinion, which reasoned that an attorney should never represent two clients with differing interests in litigation, and that the enactment of SCR 20:1.7 did not change the result. It declines to follow authority from some jurisdictions that permits dual representation where the spouses have a full agreement and give informed consent, and cites cases and the Restatement (Third) of the Law Governing Lawyers in support. (A footnote notes the original E-84-3 also addressed withholding a file for unpaid fees, a question now answered by Wisconsin Formal Opinion EF-16-03.)
The committee adds that a 2016 rule change confirms the conclusion while creating a separate lane: under SCR 20:2.4(c), a lawyer may act as a third-party neutral mediator in a family-law matter and may draft, complete, or file documents implementing a resolution the parties reached, provided the lawyer maintains neutrality and both parties give informed consent confirmed in a signed writing. The lawyer-mediator must refrain from giving legal advice, advise the parties of the desirability of independent counsel, make clear the lawyer represents neither party, and may not appear in court for either. The rule states that preparation of post-mediation documents does not create a lawyer-client relationship with either party.
In practice
Under this opinion, a Wisconsin lawyer cannot represent both spouses in a divorce action, even when the spouses agree on every term and would consent, because SCR 20:1.7(b)(3) makes the conflict non-consentable. The opinion identifies one permitted alternative: acting as a neutral mediator under SCR 20:2.4(c), in which role the lawyer may help the couple reach and document a settlement but does not represent either spouse, gives no legal advice, tells the parties independent counsel is advisable, and does not appear in court for either. The opinion cautions that a lawyer acting as a mediator must avoid any suggestion of representing both parties or acting as their lawyer.
Common questions
Q: Can one lawyer represent both spouses in an uncontested divorce where they already agree?
A: No. The opinion concludes the conflict is non-consentable under SCR 20:1.7(b)(3) because divorce is litigation with directly adverse parties, even when the spouses agree.
Q: Does informed consent cure the conflict?
A: No. The opinion states the prohibition is absolute when parties assert claims against each other in litigation, so the conflict cannot be consented to.
Q: Is there any way a single lawyer can help both spouses?
A: Yes, but only as a neutral mediator under SCR 20:2.4(c), drafting documents to implement a resolution while not representing either party and not giving legal advice.
Q: Can the lawyer-mediator appear in court for the couple?
A: No. The opinion states the lawyer-mediator may not appear in court on behalf of either or both parties.
Background and rules framework
The opinion interprets SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts of interest), specifically the non-consentable category in SCR 20:1.7(b)(3), and SCR 20:2.4 / Model Rule 2.4 (lawyer serving as a third-party neutral), as amended in Wisconsin to allow lawyer-mediators to draft family-law settlement documents.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts; non-consentable conflicts)
- Wis. SCR 20:2.4 / Model Rule 2.4 (lawyer as third-party neutral)
Statutes:
- Wis. Stat. ch. 767 (Actions Affecting the Family); Wis. Stat. sec. 767.201
Cases:
- In re Breen, 552 A.2d 105 (N.J. 1989); Walden v. Hoke, 429 S.E.2d 504 (W. Va. 1993)
- Levine v. Levine, 436 N.E.2d 476 (N.Y. 1982)
Other opinions cited:
- Wisconsin Formal Opinion EF-16-03 (surrendering the file); Ohio Supreme Court Ethics Op. 2009-4
- ABA Section of Dispute Resolution Op. SODR-2010-1; Restatement (Third) of the Law Governing Lawyers secs. 122, 130
See also
- WI Ethics Op. EF-16-03: Surrendering the File Upon Termination
- WI Ethics Op. E-09-04: Family Court Commissioner and GAL Conflicts
- WI Ethics Op. E-86-5: Family Law Practice by the Spouse of a Family Court Commissioner
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-84-3%20Joint%20Representation%20in%20Divorces%20Revised.pdf
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