Virginia Beach epitomizes a conflict of interest. The office ties you down even as the rumbling roar of the ocean beckons you shore-side. A leisurely, enjoyable life and the necessity of work are often in conflict. Sometimes, husband and wife are in conflict. Sometimes that conflict leads to divorce, but there the conflicts of interests should stop. If you and your wife are considering using the same divorce lawyer, you are inviting a conflict of interest no good lawyer should touch.
Conflict of Interest
A conflict of interest is a position in which you owe two people your allegiance or best effort. A starting pitcher cannot pitch for both teams; a detective cannot investigate a crime she committed. Similarly, a judge should not own stock in a company involved in a trial she is hearing, and a client should not retain a lawyer already working for the client’s adversary. That last component is actually written into the regulations of the Virginia State Bar.
The Virginia State Bar has a whole raft of professional guidelines, and Rule 1.7 puts it all out for everyone to see:
Conflict of Interest: General Rule.
(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 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.
How very lawyerly, that guideline. Let’s put this in practical terms. Say you and your wife are seeking a divorce. You hire a lawyer, and ten minutes after you leave the lawyer’s office, your wife walks into the same lawyer’s office and seeks to retain the same lawyer herself. Rule 1.7 says that the lawyer cannot accept her as a new client if representing her puts the lawyer in conflict with you, the retained client, which it would.
Can You Get Zealous Representation?
You expect your divorce lawyer to guard and protect your interests against those of your wife’s. Even if you two anticipate no conflict with dividing property and making a child visitation schedule, you may have overlooked something. Your wife may have second thoughts about parting with the RV. You may have second thoughts about giving up the hunting lodge. Your divorce lawyer has to keep only one client in mind: you.
You want your attorney, even in seemingly easy situations, to zealously represent you and think of things you may not have considered:
- Retirement benefits
- Insurance policies
- Intellectual property, royalties, patents and inventions
If your lawyer were simultaneously representing you and your wife, whose side is being represented zealously? Neither!
Rule 1.7 … Part B
Rule 1.7 has a part (b). Of course it does; we’re dealing with lawyers here, and if a part (a) is good, having a part (b) is twice as good.
Suppose you and your wife really are in complete agreement. The divorce is uncontested. You have no children. Your assets are clearly divisible. Rule 1.7(b) allows an attorney to take both you and your wife as clients under certain circumstances:
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph(a), a lawyer may represent a client if each affected client consents after consultation, and:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) the consent from the client is memorialized in writing.
Written Consent from Both Parties
Did you really think Rule 1.7(b) would be the end of it? Rule 1.7 (b)(4) clarifies that the attorney must get written consent from both parties. This protects everyone involved, so later on, should the divorce get more difficult, neither you nor your wife can claim to have unknowingly entered into the peculiar arrangement of sharing a lawyer.
And count yourselves lucky that 1.7(b)(4) didn’t have some appendage, like (iii), dangling off it.
Divorce Attorneys Choosing Both Sides?
Still, is it a good idea for a divorce attorney to take both sides of the divorce as clients? Generally, no. Too much is at stake. Consider just one aspect of the arrangement:
- You suspect your lawyer is doing a better job looking out for your wife’s interests than yours.
- Your wife suspects the same thing about the lawyer, assuming you are getting a better deal than she.
Please call The Firm For Men at 757-383-9184 to retain your own Virginia divorce lawyer. You can also contact our offices online, or drop by our Virginia Beach offices. We enjoy representing men in all aspects of family law, so choose the firm that chooses you!