Can one attorney represent both parties in a divorce in Wisconsin? part 2

It has long been the understanding of family lawyers that one attorney cannot represent both parties in a divorce or legal separation action The traditional view has been that the attorney cannot do so as it is an inherent conflict of interest.

However, there is a countervailing view under the Wisconsin’s limited scope rules where some attorneys feel that such representation may be undertaken. The American Bar Association Ethics 2000 Commission, which redrafted the rules governing lawyering, created comments 26-33 to ethical rule 1.7, to permit lawyers to do such dual representation. The comments were adopted within the Wisconsin rule as well.

“One lawyer may represent both parties, if the parties have agreed on the settlement, and if it is unlikely that a disagreement will arise, or if a disagreement does arise, it is unlikely that the clients will be prejudiced by the attempted mutual representation. If the common representation fails, the lawyer must withdraw and cannot represent either of the parties in that or a related matter. The clients must be advised that between them the confidentiality privileges will not apply. The lawyer has an equal obligation of loyalty to both clients.”

This limitation of scope of representation must be fully explained to the clients, and their consent confirmed, in Wisconsin, in writing, pursuant to ethical rule SCR 20:1.29(c).

More than 50% of all family law cases involve litigants without lawyers. In some metropolitan counties, the count may be as high as 70%. Many of these individuals cannot afford lawyers or both parties may feel that they each can’t afford an attorney. With limited scope representation being available as an option to litigants to hire an attorney to perform certain and limited representation as part of a case, do the rules now allow one attorney to represent both parties in a divorce case, assuming full compliance with the SCR 20:1.29(c)?

If a party cannot afford full legal representation in a divorce case, hiring an attorney for limited scope representation may be an option to limit the costs involved. The limited scope representation must be spelled out in a written agreement to be signed by the client. If both parties plan to use the same lawyer for representation, all elements of the Supreme Court Ethical rules as spelled out in SCR 20.1.29 ( c) must be detailed in writing and signed by both parties.

If you have questions regarding limited scope representation, contact the attorneys at Karp & Iancu, S.C. for more information.