A question frequently asked by divorcing spouses is, “Can a couple use the same divorce lawyer?” Although it might seem like this could be a good idea to save money on legal fees, the answer is no — using the same lawyer for divorce is not allowed. Regardless of whether your divorce is contested or uncontested, a lawyer may only represent one party in a matrimonial action.
Using the Same Lawyer for Divorce Creates a Conflict of Interest
If you and your spouse agree on all of the issues and make an effort to divorce as amicably as possible, you are still opposing parties when your case goes to court. Representing both spouses would not only create a conflict of interest for an attorney, but ethically they are prohibited from doing so under the California Rules of Professional Conduct. This rule is in place for several good reasons.
A lawyer has a duty of loyalty, confidentiality, and independent judgment to their client, which could potentially be compromised by representing clients with competing interests. Significantly, the law also recognizes that transparency and trust are fundamental in order for an attorney to effectively represent their client. If attorneys were permitted to represent opposing parties in the same action, there is a risk that confidential information could be inadvertently revealed during the course of the representation.
Importantly, once a spouse consults with a lawyer, the attorney-client privilege attaches and any information discussed with them cannot be disclosed. Notably, the attorney-client privilege applies regardless of whether the lawyer is retained to represent the party.
Unfortunately, sometimes a spouse in a divorce action may engage in unethical tactics and attempt to gain an advantage by “conflicting-out” the attorneys in their area to leave their spouse with few options for counsel. In fact, a party only needs to provide the attorney with enough information during a brief phone conversation to prevent their spouse from even consulting with them. This is why it is essential to retain a lawyer as soon as you realize divorce is imminent.
What Happens When Only One Spouse Retains an Attorney?
Although hiring an attorney for your divorce is highly advisable, it is not required that either or both parties are represented by an attorney. Even if your spouse hired an attorney, you can represent yourself pro se. But it’s important to understand that your spouse’s lawyer will not be able to provide you with any legal guidance or assistance. When you are represented by counsel, your attorney will help you navigate the court process, advocate for you, and make sure that the terms of any agreement are fair before you enter into it.
If the marriage was relatively short and there are no children or assets, it might make sense for only one party to hire a lawyer. In uncontested cases, one attorney may be able to draft a settlement agreement that the spouses reached. However, it’s crucial to be aware that they are not a neutral party — in these cases, the lawyer still only represents the spouse that hired them and cannot provide legal advice to the other.
Representing yourself in a divorce can be extremely risky. Even a simple divorce can quickly become complicated. It’s not uncommon for spouses to think they agree on all of the issues that need to be decided, only for a dispute to arise later in the process. Having counsel on your side from the beginning can help the process run smoothly — and ensure your interests are safeguarded in the event that the divorce goes from an uncontested to a contested matter.
Using the Same Lawyer for Divorce Mediation
Another situation in which only one attorney might be hired is for mediation. If the spouses agree to mediate their divorce instead of litigating their case in court, an attorney may take on the role of a neutral party to facilitate communication between the spouses. As a mediator, they will also encourage collaboration to reach a settlement, but they do not represent the interests of either party or take sides. During mediation, an attorney may:
- Promote compromise in property division
- Help the parties brainstorm ideas for custody arrangements
- Make suggestions and recommendations to assist the parties in reaching a settlement
- Assist the parties with preserving an amicable relationship
- Draft a mediation agreement
If mediation is appropriate for your situation, it can be highly effective. Mediation can potentially minimize the emotional impact of divorce and help the parties maintain an amicable co-parenting relationship. By resolving the case out of court, the parties can also help reduce the substantial expenses that would otherwise be incurred in litigation.
Critically, if you’re planning to mediate your divorce, it is still essential that you know what your legal rights are. In some cases, both parties may opt to hire their own attorneys to ensure their interests are fully protected.
Contact an Experienced Fresno Divorce Attorney
Divorce can be one of the stressful experiences you might ever face. A skilled divorce attorney can help ease the burden and guide you through the process. The Law Offices of Rick D. Banks is committed to providing high-quality representation for matrimonial matters and developing tailored strategies whether the best course of action is pursued through litigation, negotiation, or mediation.
The Law Offices of Rick D. Banks has been helping clients throughout Fresno and the surrounding area obtain favorable outcomes in their divorce and family law matters for more than twenty years. To schedule a no obligation consultation, call (559) 272-8359.