We get asked if we can represent both husband and wife in a Charleston divorce with surprising frequency. Largely, it seems, the question comes from a misunderstanding over what it means for a lawyer to “represent” somebody; what they are really meaning to ask is if one lawyer can handle all of the necessary paperwork to accomplish a divorce. In circumstances where the parties have reached a full agreement on all the terms of a divorce, it is definitely acceptable for a single attorney to handle a divorce, just as long as both spouses understand some simple rules and limitations.
All South Carolina lawyers are governed by a set of ethical rules that state, usually with some clarity, what they can and cannot do. There is an ethical rule for just about every situation, from doing business with clients and former clients, to telling the truth to other lawyers and Family Court judges, to how an attorney may advertise. There are two ethical rules that apply particularly to a situation where one attorney is called upon to usher an uncontested divorce through the courts on behalf of both spouses:
Rule 1.7 Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Rule 4.3 Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
Rule 1.7, recited above, is fairly crystal-clear (and it should go without saying) that one lawyer cannot represent both parties to a particular case. What this means is that a divorce attorney will have to represent, technically and in fact, only one spouse in a divorce. If all of the communication has been between us and one particular spouse, that spouse will have to be our client, as we will almost certainly have a conflict which prevents us from representing the other spouse following our communications.
From that point forward, all communication with the other spouse will be in writing, generally via email, and we will make very clear to the un-represented spouse that we cannot provide him or her with any legal advice at all (as is explicitly required by Rule 4.3, quoted above). As part of the transparency of this process, we will inform the un-represented spouse that we are representing his or her spouse, and if they feel it necessary, he or she should immediately consult with independent counsel of his or her own choosing. Frequently we are asked for referrals, but we are simply unable to do so under these circumstances. If the agreement were to fall apart altogether, certainly we would be open to criticism that we had somehow referred that party to inferior counsel or somebody that was in cahoots with us.
It is important to remember, however, that very little (if any) legal advice will be necessary for either party. The parties are substantially, if not completely, in agreement with one another on all the key terms of their separation and divorce, and we as attorneys are acting largely as scriveners in the process. We confirm the terms of the agreement with both parties, draft the agreement, and present it to both parties for signature. We draw up the documents needed to file and have the agreement approved by the Court, as well as certain other documents the Court will require in order to consider the agreement (Financial Declarations, Proof of Service, etc.). And we can draft the Final Order and Decree of Divorce for the judge to sign to make the divorce final.
Along the way, it is ethically permissible for us to provide some limited guidance to the un-represented party. So long as that spouse clearly understands we are not telling him or her what they should or should not do, we can describe the process for that party, what to expect in the courtroom, how things will work, and provide explanation in laymen’s terms as to what is included in all of the paperwork being written and filed. We can make certain that that party has filled in all of the forms properly, and make sure that he or she has everything filed properly and in a timely manner.
What is the advantage to this arrangement? Most importantly, this arrangement can lower the cost of divorce for both parties. Certainly, relying upon a single attorney is less expensive than hiring two. This arrangement can also lower the conflict of a divorce, as the parties feel they can continue communicating with one another and working cooperatively toward the ultimate goal of amicable divorce, instead of each communicating with one another through their own lawyers.
One should keep in mind when considering this arrangement that it probably will only work under limited circumstances. The spouses must be either wholly in agreement with one another or largely in agreement; substantial conflict over the custody of children, whether one spouse will pay the other alimony, and the like, will torpedo the “single attorney” approach. One spouse must feel comfortable protecting his or her own interests, including signing off on irrevocable legal documents, while their spouse may rely upon an attorney. And the un-represented party must feel comfortable with this arrangement in the face of constant reminders from us, as counsel of record for their spouse, that we cannot provide them with any legal counsel whatsoever.
If you feel that these circumstances apply to you, please feel free to contact us to see if we can assist in ushering your family through the separation and divorce process.