The other day I wrote a blog on whether one lawyer can represent both parties in a divorce case. The traditional view has been that the attorney cannot do so as it is an inherent conflict of interest. I subscribe to the traditional view.
However, there is a countervailing view under the new 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 now being available 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).
My view is no, and it is dangerous for any family lawyer to even remotely undertake such representation. Even the most simplest divorce case where it appears that “everything is agreed upon,” can blow up into a hotly contested divorce case where the case goes to trial. The lawyer runs the risk if they undertake the representation, they may have to quickly get out of the case, the minute it appears that there are contested issues, which for the most divorce cases, is practically every divorce. Somewhere along the way, from the most simple issue of who gets the large screen TV in the living room, to how to value and divide up a multi-million dollar business, there will be a contested issue in the case. The parties’ interests are adverse to one another and that is why, while it is permissible to undertake limited scope representation for one of the litigants, it is not permissible in this writer’s opinion, to undertake limited scope representation for both of the litigants in ANY family law matter, divorce, separation, custody case or post judgment matter.
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