The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 71-45
September 30, 1971

The Committee was evenly divided on the question whether, in light of enactment of the “no fault” divorce law, the traditional absolute rule against representing both spouses in a divorce should be relaxed.

CPR: EC 5-14, 5-15, 5-16, 5-17; DR 5-105(B)
Opinions: 60-9, 66-8
Statute: Ch. 71-241, Laws of Florida

Chairman Clarkson stated the opinion of the committee:

Florida's well-publicized “no fault” divorce law became effective July 1, 1971. Paramount purposes of the act, Chapter 71-241, Laws of Florida, recited in its first section, were promotion of the amicable settlement of marital disputes and mitigation of potential harm to the spouses and children caused by the process of legal dissolution of the marriage.

We are asked to determine whether an attorney may ethically represent both husband and wife in a proceeding for dissolution of marriage. The lawyer seeking our advice directs our attention to recent media coverage indicating that a dissolution action brought under the new statute is not an adversary proceeding. He suggests that confusion exists among members of the Bar as to whether former bans upon dual representation in this type of court proceeding (see, for example, Florida Opinions 60-9, 66-8) are now laid aside.

Obviously, if an actual conflict, as defined in DR 5-105(B) and discussed in EC 5-14 through 5-17, exists between the spouses, a lawyer may not represent both parties. More difficult, however, is the determination whether representation of both is permissible in those instances, as characterized by the inquiry, “when the parties themselves have discussed and tentatively agreed upon the general terms of property division, support and custody.”

The Committee is equally divided on the answer to this question. Four members, the chairman included, have concluded that proceedings under the new law are not necessarily adversary in nature, that there should be no ethical requirement of separate attorneys in order to achieve representation before the court for both spouses and that the laudable purposes leading to enactment of the new law can be better achieved by adoption of these views. The other four members do not believe the “no fault” divorce law has in any way changed the adversary nature of the proceedings. Their view is that a lawyer's responsibilities are the same under the new law as they were under the former statute, so that the same lawyer may not represent both spouses before the court.

The viewpoint stated first above derives from the concept that the family is the unit being represented, both as to source of compensation and as to the entity being submitted to the court for an adjudication of interests. Considered in this light, two members find a similarity to the conventional probate matter and an absence of differing interests requiring representation which is actually dual in character. Another, conceding that the interests may be differing, believes that the administration of justice in routine marriage dissolution proceedings may best be served by a single attorney acting as “father confessor, psychologist, economist and adjudicator” without involving the adversary role and additional expense brought into play by a second lawyer. All four adhering to the first viewpoint believe that an attorney approached to represent both spouses should meticulously protect the interests of both, realizing that he is retained and compensated by the family rather than either spouse. He should caution both as to the necessity of full and fair disclosure of assets when property is involved. Should significant disagreement arise, he should immediately insist that each party be represented by counsel, and he should withdraw entirely if the parties are unable to agree which of them he will continue to represent. Whenever practicable, both husband and wife should appear at the final hearing so that the court may inquire of both as to the irretrievability of the marriage and with respect to any agreements governing matters of property, support and custody.

The contrary viewpoint, shared by four Committee members, is that the new statute merely dispenses with the necessity of alleging and proving fault or guilt and does not change the adversary nature of the proceeding. This view further holds that there is an inherent divergence of interests between the spouses and that the new procedure does not lessen a lawyer's obligation to give undivided loyalty to his client. It is pointed out that adherence to this view does not mean that each spouse must necessarily have separate counsel of record. As in the past, there can be situations in which there has been full and fair disclosure, the affairs are uncomplicated, no overreaching is present and both parties comprehend the significance of what is being done. In such cases it may be permissible for an attorney representing one spouse to prepare pleadings and, if appropriate, a settlement and custody agreement and submit the case to the court. In those instances it should be made to appear that the non-represented party chose not to employ counsel even though apprised of the advantages of doing so.

Because of the equal division of opinion in the Committee, we are unable to provide a more meaningful answer to this inquiry. Any attorney intending to represent both husband and wife in a dissolution of marriage proceeding should seek the advice of the court having jurisdiction.

[Revised: 08-24-2011]