If a lawyer represents a married couple jointly and they then file for divorce, can the lawyer keep representing them in their other lawsuit?

Plain-English summary

A lawyer represented a husband and wife together in a suit against a contractor for damages to the family home, then learned the clients had filed for dissolution of marriage. The committee was unanimously of the opinion that the lawyer must disclose to both clients that the dissolution proceeding creates a conflict of interest between them in the contract action.

The committee said the lawyer should explain the nature of the conflict: that the husband and wife may have differing interests in the outcome of the litigation and in the potential performance on the contract or distribution of damages, and that the issue should be discussed by each of them with their own dissolution attorney.

The committee added that the lawyer should advise the clients that, unless they each consent to the lawyer's continued representation of either of them after they have had the opportunity to consult their own counsel, the lawyer will be required to withdraw from representing either of them.

Currency note

This opinion was issued in 1985, before the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: A lawyer represents a couple jointly; they file for divorce. Is there a conflict?

A: Yes. The committee unanimously concluded that the dissolution filing creates a conflict of interest between the spouses in the matter the lawyer is handling for both of them.

Q: What must the lawyer tell the clients?

A: The lawyer must disclose the nature of the conflict, including that the spouses may have differing interests in the litigation's outcome and in performance on the contract or distribution of damages, and that each should discuss the issue with their own dissolution attorney.

Q: Does the lawyer have to withdraw?

A: The lawyer must withdraw from representing either client unless both consent to continued representation, after they have had the opportunity to consult their own counsel.

Background and rules framework

The opinion addresses a concurrent conflict between two current clients whose interests have diverged, governed by what is now Washington RPC 1.7 and Model Rule 1.7. The source indexes the opinion under RPC 1.9, but the situation it resolves involves two current joint clients, not a former client. The committee's analysis turned on disclosure of the conflict, the clients' opportunity to consult independent counsel, and informed consent as the condition for continued representation.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (concurrent conflicts of interest)
• Washington RPC 1.7 (concurrent conflicts of interest). The source record indexes this opinion under RPC 1.9.

See also

• WSBA Ethics Op. 897: representing opposing counsel in an unrelated matter
• WSBA Ethics Op. 1016: state-paid guardian ad litem and conflicts

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=15

Original opinion text

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

Advisory Opinion: 903
Year Issued: 1985
RPC(s): RPC 1.9
Subject: Conflict of interest; representing both husband and wife in contract action while dissolution pending

The lawyer represented a husband and wife in a suit against a contractor for damages to the family home, and later learned his clients had filed for dissolution of marriage. The Committee was of the unanimous opinion that you must disclose to both of your clients that the commencement of the dissolution proceeding does create a conflict of interest between them in the action on the contract. You should disclose to them the nature of the conflict, specifically that the husband and wife may have differing interests in the outcome of that litigation and the potential performance on the contract or distribution of damages, and that that issue should be discussed by each of them with their own dissolution attorney. You should advise them that unless they each consent to your continued representation of either of them, after they have had the opportunity to consult their own counsel, that you will be required to withdraw from representing either of them.