An Amicable Divorce: Should a Divorce Attorney Represent Both Spouses?

 This guest post is offered by Allison Strayer, current Regent Family Law and Professional Responsibility student:

Sometimes things just don’t work out. Spouses realize that they are better off as friends—or at least not married—and decide together that they should get a divorce. They can even go as far as creating a list of assets and decide who will take what (cue Rick Logan’s “Who Gets the Family Bible”). Is that enough to retain a single lawyer to represent them both in a no-fault/uncontested divorce? The simple answer is the Model Rules of Professional Responsibility do not disallow it. As long as the lawyer can provide “competent and diligent representation to each affected client,” he or she can represent both parties. But can a lawyer really provide competent and diligent representation to both husband and wife in a divorce proceeding?

Model Rule 1.7 states that a lawyer cannot represent a client when there is a conflict of interest, specifically when the clients are adverse. (1.7(a)(1)). Even if there is no conflict, a lawyer can only represent multiple clients if he believes he can provide “competent and diligent representation to each affected client.” (1.7(b)(3)). Divorcing spouses are considered adverse, even when they desire to file an uncontested divorce and agree on everything. The level of competent and diligent representation cannot be achieved with two clients that are essentially adverse, regardless of their level of amicability.

The adverseness of divorcing spouses is reinforced by case law that holds that couples who sign prenuptial agreements are considered adverse, even though they are getting married. Similar to divorces, “the nature of prenuptial agreements is such that the parties’ interests are fundamentally antagonistic to one another.” Ware v. Ware, 687 S.E.2d 382 (W. Va. 2009). There is no case law disputing this issue in Virginia because the Commonwealth prohibits dual representation in divorces within their Model Rules. It states, “a lawyer can never adequately provide joint representation in certain matters relating to divorce…” Va. Rules of Prof’l. Conduct r. 1.7, cmt. 8 (Va. Bar Ass’n 2021).

Even if other states do not specifically disallow dual representation in divorce proceedings like Virginia, the bottom line is Model Rule 1.3: can a lawyer really be a zealous advocate for both? If there is any disparity during the divorce, the attorney would be nothing more than a mediator, allowing the parties to figure out the solution themselves without any actual zealous representation behind either of them. Virginia Rules of Professional Conduct 2.10-2.11 set guidelines for how a Third Party Neutral (Mediator) will act with both parties compared to a lawyer.

There is one more option. If the parties are truly amicable and desire to save money by not retaining separate counsel, one could retain a lawyer while the other could continue unrepresented. Virginia Rule of Professional Conduct 4.3 allows this and cautions the attorney that he is not to give legal advice to the unrepresented spouse other than the advice to secure his own counsel. Often, it is best to provide a written letter to the unrepresented spouse explaining that the attorney is not his counsel, is instead working in the best interest of the represented spouse, and any communication to this unrepresented spouse will be considered negotiation on behalf of the represented spouse. Despite it being allowed, it is highly discouraged for anyone to be unrepresented in any type of legal procedure, even an “amicable” divorce.

While family restoration may sometimes involve an amicable divorce, legal counsel is always recommended.