Can one attorney represent both spouses in a divorce? This issue presents itself in a multitude of scenarios: the proverbial “simple divorce” or merely reviewing a settlement agreement prepared by both spouses. As my colleague noted, if prospective clients request that you represent them both, even if it’s “simple” or merely reviewing their agreement,
A common misconception in New Jersey is that both spouses can use the same attorney for their divorce. My local paper recently had an article about divorces in the current economy. One attorney was quoted as intimating that this was true; the attorney was speaking of uncontested divorces in which the parties agree on issues and the seek the dissolution of their marriage. While I am certain that the attorney’s comments were taken out of context, as one of the points in the article was a concern about legal fees, this is a question that comes to me often. A client will ask me if I can represent both spouses, even if they have an agreement. The answer is a resounding, no.
The ethics rules in our state are very clear that one attorney cannot represent both spouses in a divorce. Simply, it is a conflict of interest. The New Jersey Supreme Court has said on many occasions, that “one of the most basic responsibilities incumbent on a lawyer is the duty of loyalty to his or her clients. From that duty issues the prohibition against representing clients with conflicting interests."( In re Opinion No. 653 of the Advisory Comm. on Prof’l Ethics, 132 N.J. 124, 129 (1993)). Our state has a very strong policy in which there should not be even an “appearance” of a possible conflict of interest. This is to protect the clients.
Imagine a scenario in which one spouse has been home raising children, and the other has been working throughout a twenty year marriage. This is a situation in which alimony will be an issue. Certainly, the non working spouse and the working spouse may have differing positions about the amount and term of alimony. Most people agree that in these circumstances, the parties will want to have their own attorneys. But what about the situations where both parties are working, and they have a house and a couple of retirement accounts. Many people believe that in this situation, they do not need two attorneys and both use the same lawyer. Well, they can’t.