Opinion 71-45 (Reconsidered)
FLORIDA BAR ETHICS OPINION OPINION 71-45 (Reconsidered) Published October 1973 Advisory ethics opinions are not binding. The new “no-fault” divorce law has in no way changed the potential adversarial nature of the proceedings between the spouses with regard to division of property, alimony, child support and child custody. Thus a lawyer cannot represent such potentially divergent interests even though the divorce statute dispenses with the necessity of alleging and proving fault or guilt as a condition precedent to dissolving the marriage contract. CPR: Opinion: EC 4-1, 5-1, 5-14, 5-15, 5-20, 7-8, 7-18 71-45 Committeeman Lunny stated the majority opinion of the committee: The new “no-fault” divorce law has in no way changed the potential conflict nature of the proceedings between the spouses in the area of division of property rights, alimony, child support, custody, etc. Thus, a lawyer cannot represent such potentially divergent interests merely because a new divorce statute dispenses with the necessity of alleging and proving fault or guilt as a condition precedent to the dissolving of the marriage contract. This position is based on the following reasoning: 1. A lawyer may not ignore the existence of potential conflicts of interest not apparent to his clients. EC 4-1 of the CPR provides that not only must a client feel free to discuss whatever he wishes with his lawyer, but also, the lawyer must be equally free to obtain information beyond that volunteered by his client. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. Clearly this means that the lawyer cannot avoid any potential conflict of interest in his efforts to represent both sides of a dissolving marriage. The lawyer must feel free to ask questions of the spouses even if the spouses represent that they have “resolved all of their problems” before coming to the lawyer. If a lawyer is to fully represent the best interests of his client, he must fully inform the client of all of the client’s rights before the client is called upon to make a “business decision”. This is where those approving a single lawyer for no-fault divorce overlook the basic problem by assuming that the spouses come to the lawyer with their own property settlement already “worked out.” The problem, of course, is that the spouses as laymen never fully appreciate all of the complexities inherent in matters dealing with alimony, child support, custody, visitation, property rights, retention of jurisdiction, etc., etc. EC 7-8 provides, in part: A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. Advice of a lawyer to his client need not be confined to purely legal considerations. A lawyer should advise his client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective viewpoint. In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible. 2. Conflicts of Interest may be so subtle as “compromising influences” or “discordant interests”; yet same may not be ignored by the lawyer. EC 5-1 provides that a lawyer should exercise his professional judgment free of compromising influences and loyalties, and that the interest of other clients or third persons should never be permitted to dilute the lawyer’s loyalty to his client. How can the lawyer say that his client is the family and thus he is being totally loyal to “the family” (the very entity being destroyed by the divorce) in not seeking to fully inform the individual spouses of their relative “rights” and “responsibilities”? EC 5-14 precludes a lawyer from accepting representation of two or more clients who have not only obvious conflicting interests but also merely “inconsistent, diverse or otherwise discordant interests.” Are not the interests of a husband and wife in support matters, visitation privileges, division of common property, at very least, discordant, diverse, and inconsistent? 3. A lawyer may not undertake the representation of clients recognizing the “possibility” that his judgment may be impaired or his loyalty divided. EC 5-15 provides that if a lawyer is requested to undertake to represent multiple clients having “potentially differing interests” he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. It is provided that the lawyer should resolve all doubts against the propriety of the representation. How does the fact that the “potentially differing interests” are those of divorcing spouses change the fact that the lawyer should resolve all doubts against the propriety of such multiple representation? How does the fact that the legislature now provides you no longer need prove “fault” in order to be entitled to a divorce remove the potentially differing interests of divorcing spouses on matters dealing with property, child support, visitation, alimony, etc. so as to provide one rule of ethics for all other areas of “potentially differing interests” and yet another rule of propriety for “no-fault divorces”? 4. A lawyer cannot both arbitrate and advocate in the same proceeding. The mere possibility of the latter role precludes the undertaking of the former role. EC 5-20 provides that after a lawyer has undertaken to act as an impartial arbitrator or mediator, he should not thereafter represent in the dispute any of the parties involved. One cannot both mediate and represent. One cannot be both judge and advocate. One cannot represent both the family unit and the potentially differing interests of the divorcing spouses. One cannot undertake to represent both spouses in an uncontested divorce because in reality the “client” is not the marital unit, but rather, multiple clients (the spouses) having potentially differing interests. EC 7-18 provides that the legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. Our system of litigation and client representation has always recognized the inherent adversary position of opposing interests, and it is submitted that we cannot by legislative fiat overlook the opposing interests of divorcing spouses under the guise of expediency or “money-saving.”1 For these reasons it is felt that inquiry no. 71-45 should be resolved in keeping with the above provisions of our Code of Professional Responsibility. Committeeman Beverly stated the minority opinion of the committee: The majority view expressed by Committeeman Lunny contravenes my own to a significant extent. In order to properly frame the predicate for my opinion, let me reiterate that the philosophy of the “no-fault” dissolution of marriage concept by definition abrogates reciprocal accusations or “grounds” which have historically been required in order to support a complaint for divorce. Having segregated the issues in the proceeding to this extent, the singular remaining issue is that of property distribution between the spouses. By way of further predicate, I am assuming for purposes of this opinion that the spouses have been able to maintain an amicable and civilized relationship and have mutually agreed that a dissolution of their marriage is in order, for whatever reason, and have further agreed upon a distribution of the property. Under these circumstances, all that remains is for the legal relationship of husband and wife to be severed. In effect, therefore, the parties have resolved all of the issues between themselves and are simply seeking the services of an attorney to implement the dissolution for them. Within these parameters, it is my opinion that an attorney may ethically represent both husband and wife in a proceeding for dissolution of marriage. Contrarily, I do not think that an attorney may ethically represent both husband and wife when a conflict exists or where the attorney conscientiously feels that one or the other of the parties either has or intends to take unconscionable advantage of the other. In other words, so long as the adversary nature of the proceeding is non-existent by virtue of the genuine absence of 1 Of course, adherence to this view does not mean that each spouse must necessarily have separate counsel of record. 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. conflict between the parties, I can see nothing ethically wrong with an attorney undertaking to assist the couple in achieving a dissolution of marriage. As I have previously pointed out, I feel that this imposes an additional responsibility upon the attorney to see to it that each of the parties receives equitable treatment and, if not, to recommend that one or the other of them seek counsel elsewhere in order to insure his or her interest of protection. Under the circumstances I describe, I can conceive of no ethical reason why separate attorneys and the additional cost thereof to the parties should be required in order to achieve representation before the Court of both spouses. Again, the new statute legislates away the adversary nature of the proceedings on the one hand and the possibility of collusion on the other, thereby enabling a single attorney to accomplish the desired result for his clients at a reasonable fee and in accord with the intent and philosophy of the statute. Everyone on the Committee who has expressed disagreement with the thought that one attorney can conscientiously represent both parties in a marriage dissolution proceeding either directly or inferentially acknowledges that it is perfectly ethical for that attorney to represent one spouse only in the face of an unequivocal announcement by the other spouse that he or she does not intend to employ counsel since there is “no controversy.” When this situation exists, as it frequently does, the attorney has protected himself ethically since he represents only one of the parties although he knows full well that the other spouse will not be represented and will rely on him to do what is right. Under these circumstances, the attorney and his client are in a position to take unconscionable advantage of the other unrepresented spouse and, of course, this also frequently happens. However, if the attorney was permitted to represent both parties in an uncontroverted marriage dissolution, this would necessarily impose upon him an additional ethical, moral and professional responsibility to see to it that neither spouse suffers an inequity. Under these circumstances, advice should be given to the Court at the time of final hearing that the attorney has undertaken to prepare a property settlement agreement for both spouses, thereby giving the Court an opportunity to review the agreement and, if necessary, require the presence of both spouses to see to it that everything that has been done is proper and equitable. It seems to me that this is the logical and reasonable method of handling this situation pursuant to the new statute which makes the marriage dissolution procedure unique among all other forms of litigation and thereby removes it from our somewhat stratified concepts of what is and is not an “adversary proceeding.” In my view the majority position is professionally deficient in that it fails to protect the unrepresented spouse since, unless a single attorney is allowed to represent both spouses, there is no doubt but what one spouse will be completely unrepresented in many of these cases. I cannot conceive that this is either ethical or proper when there is a reasonable solution. For these reasons I subscribe to the viewpoint expressed by the chairman and three other Committee members in our original opinion and dissent from the majority opinion.