Potential clients will often call a divorce law firm asking if they can use one attorney for their uncontested divorce. They will often explain that they and their spouse both want the divorce, that they agree on the terms and that there is no reason they cannot just use one attorney to keep the costs down. The concern often relates to a belief that if each party uses their own attorney, the case could spin out of control. In other words, fighting might begin, attorneys fees could accrue, the attorneys might not get along and this could turn an easy divorce into a complex one.
While this thought of using one attorney might make sense to non-attorneys, the Model Rules of Professional Conduct forbid an attorney from representing two parties in a divorce under conflict of interest rules. In Missouri, Rule 4-1.7(a) specifically states the following:
(a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
In other states, the rules are essentially identical as well. And when most people think about it, the rule exists for good reason. For example, potential settlement terms that might be good for one party to a divorce, might be bad for the other party. This would put the attorney in a position of divided loyalty.
The potential examples are unlimited, but here are two possible scenarios. Say one party wanted spousal support for example, and the other did not wish to pay it, what would the attorney do if they represented both parties? If they told the party seeking spousal support that they shouldn’t seek it — when they needed it to simply to get the case settled because the other party doesn’t want to pay it — they would be breaching their duty to that party. Or, if one party wanted wants fifty-fifty custody, and the judge in the case is not a judge who typically awards fifty-fifty custody, what would the attorney do? They would again be in a position of divided loyalty. Advice given to one party would be directly adverse to the other.
What are the options given that an attorney cannot represent both parties? First, it is true that one party can have representation, while the other party can represent themselves pro se. But it is never a good idea for a party to not have an attorney representing their interests. After all, the attorney of the other spouse cannot give them any legal advice to the unrepresented spouse.
The traditional approach is always an option where both parties retain their own attorney. In many instances, contrary to popular opinion, this approach works fine. This is especially truth where both the attorneys and the parties are working together in good faith to reach an amicable settlement.
Mediation is another popular option as well for many clients going through a divorce. Mediation certainly can have its advantages in that the parties may be able to negotiate a settlement that works for both parties outside of court. In some cases, this is a great solution for parties looking to keep the process amicable. However, a mediator is not a judge. Thus, they cannot divorce the parties. The mediator also cannot file the divorce paperwork in court, or appear in court on the case, because they will be bound by the same conflict of interest rules. So, in a case with a mediator, there could ultimately be three attorneys involved: an attorney for husband, an attorney for wife and a mediator who is an attorney. Collaborative divorce is another potential option similar to mediation, but we addressed this topic in a previous article.
If you are going through an uncontested divorce in the St. Louis Metropolitan Area in Missouri or Illinois, Stange Law Firm, PC can help. We have offices throughout the St. Louis Metropolitan Area in Missouri and Illinois. You can contact us at 314-963-4700.