Conflicts of Interest and Divorce
There was a recent decision from the Florida Third District Court of Appeal that addressed an often-overlooked issue in divorce cases. This particular case, Becker v. Becker, involved a husband who sued his wife for divorce. During the course of the proceedings, the husband learned his wife’s attorney had previously represented the trial judge in his own divorce case some years earlier.
As you might expect, the husband moved to disqualify the judge. The husband pointed out that neither the wife’s attorney nor the judge had disclosed their prior professional relationship. And the husband was concerned that even the appearance of bias on the part of the trial judge in favor of the wife’s attorney would compromise his ability to receive a fair trial.
The trial judge declined to disqualify himself. But the Court of Appeal said the husband’s concerns were “objectively reasonable” and ordered the judge off the case. The appeals court explained that while it was not questioning the impartiality of the trial judge, the failure to disclose the wife’s attorney’s former representation was indeed a problem.
Can the Same Lawyer Represent Me and My Spouse?
While this particular scenario may not come up too often in Florida divorce cases, conflicts of interest are still something you need to think about when hiring an attorney. For example, say your estranged spouse speaks with an attorney about your looming divorce but decides to hire someone else. Can you then hire the attorney she rejected?
From a legal ethics perspective, this is problematic. Even if the attorney never agreed to represent your spouse, they may still have received confidential information during the interview process. This can be enough to create a conflict of interest.
And of course, a lawyer cannot represent both parties in the same divorce. This is true even when the divorce is uncontested or both spouses largely agree on the outstanding issues. No matter how amicable a divorce may be, the spouses still have opposing legal interests which prevent the same attorney from effectively representing both parties simultaneously.
The Collaborative Law Alternative
If you are looking for an alternative to a traditional contested divorce, collaborative law may be the answer. Collaborative law is a process where spouses and their attorneys agree not to litigate and instead focus on negotiating a settlement. Collaborative law attorneys usually have special training on how to assist their clients in pursuing a non-confrontational approach to their divorce.
Critically, collaborative law requires an attorney to stop representing a client if the parties choose to abandon the process. In other words, if you hire an attorney for the purposes of pursuing the collaborative law process and later decide to sue your spouse in court, you need to find a new lawyer. The collaborative law attorney cannot legally represent you in litigation. This helps to ensure that parties do not abuse the collaborative law process or put their lawyers in a potentially compromising situation.