Representation in Divorces – In cases where two married spouses are each getting divorced and planning to marry the other’s spouses after their two divorces are granted, can one new couple save money by sharing the same lawyer?
In a recent case before N.H. Professional Conduct Committee (P.C.C.) the attorney was disciplined for dual representation in such a situation.
Dan and Heather were planning to exchange spouses with Robert and Jennifer and had already swapped houses and moved in. An attorney representing Heather was asked to also represent her live-in boyfriend and future husband, Robert. But Dan filed a conduct complaint arguing there was an ethical problem.
The Ethical Issue
Rule of Professional Conduct 1.7 (a) (2) states that a lawyer can’t represent a client if the representation would be a “concurrent conflict of interest” so that by representing one client the lawyer may be materially limited by the duties owed the other client.
The P.C.C. Finding of Conflict
The attorney’s concurrent representation of Heather in her divorce and Robert in his post-divorce posed a potential conflict of interest because there were overlapping issues involving child support, alimony, and child visitation, especially because Robert and Heather lived in the same household and their finances were intertwined. These circumstances presented a significant risk that the representation of each client would be materially limited by the attorney’s representation of the other. While the attorney involved disagreed on whether obtaining consent was practicable, no effort was made to get written consents, and none of the circumstances permitting concurrent representation enumerated in Rule 1.7 (b) applied. Accordingly, the committee affirmed the Hearing Panel’s finding that the attorney violated Rule 1.7.
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