If you are considering a divorce, you have no doubt wondered what is the cheapest way to get this accomplished? Could I do it without having to hire a lawyer? Do I need to get a separate lawyer from my spouse or can one person handle the whole divorce? Dual representation is no doubt cheaper in the short run, but before you go down that path you may want to consider the implications of one lawyer playing both sides of a divorce.
Under the rules of professional conduct, a lawyer may undertake a dual representation if both clients give informed consent and the client’s interests do not actually or potentially conflict. However, this rule is premised on a lawyer’s duty of undivided loyalty to the client, which can be difficult to assure in a divorce proceeding. While many spouses believe at the onset that they share common interests and can amicably come to terms on the issues of support, property division, and child custody, as the stress and reality of a separation begins to develop it becomes hard to keep spousal interests in common. If your separate interests develop into a conflict, then you and the lawyer will be caught between a rock and a hard place.
Once a conflict has developed, the lawyer may be able to obtain your informed consent to continue representation, but this is a bad idea. The development of a conflict means that the proceedings are no longer fair, and as often is the case, it will result in the husband and father coming up with the short end of the settlement agreement. Therefore, when faced with dual representation that develops into a conflict, an ethical lawyer should withdraw from the case. Unfortunately, this will require both you and your spouse to find and hire new counsel and pay the added fees of bringing those lawyers up to speed on your case.
However, finding new counsel is better than the tempting alternative situation of continuing on in representation of two conflicting parties. Continuing representation of conflicting parties will result in compromised representation. Any agreements that you sign will be tainted, and may not be enforceable by the courts. Indeed, in the case of Klemm v. Superior Court, California set the precedent that settlement agreements may be voided in cases where the lawyer was conflicted by dual representation. It is much better to have separate representation at the outset than pay legal fees to fight an agreement that has been voided by the court.