It is unethical for a lawyer to prepare a separation agreement for a married couple even though both parties freely consent and lack funds to hire separate counsel.
There is an inherent conflict of interest that can’t be cured by the couple’s consent, the NC State Bar Ethics Committee ruled in 2019 FEO 1, which was approved in April.
“Although the parties may believe they have agreed on the terms of separation, there are potentially numerous opportunities for lawyer to negotiate on behalf of the parties regarding, inter alia, custody, property division, and family support,” the committee held. “In the event an actual conflict arises, the prejudice to the parties would be substantial.”
The opinion is important for family law attorneys, especially those whose practices offer document prep and other unbundled services.
Read the full text of 2019 FEO 1 here.
Two Parties, One Lawyer
Here is the inquiry that prompted the ruling in 2019 FEO 1: “Lawyer represents clients in domestic relations matters. Lawyer has been contacted by a married couple wishing to separate and then later obtain a divorce. No litigation has been initiated. The married couple agree on the terms of separation. The couple does not have sufficient funds to pay two lawyers and wants Lawyer to prepare the separation agreement for both parties. May Lawyer prepare a separation agreement for both parties.”
The State Bar said no: “Rule 1.7 provides that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client, or the representation of one or more clients may be materially limited by the lawyer’s responsibilities to another client.”
Section (b) of Rule 1.7 says some conflicts can be resolved by client consent.
“However, some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent,” according to the opinion. “The commentary to Rule 1.7 further provides, ‘Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation.’”
2013 FEO 14 As precedent, the committee cited 2013 FEO 14, which involved representation of both the buyer and seller in the purchase of foreclosed property. There, the State Bar said common
representation was inappropriate because of the “numerous opportunities for a lawyer to negotiate on behalf of the parties” and “numerous opportunities for an actual conflict to arise between the borrower and the lender.”
In 2019 FEO 1, the committee expressed similar concerns.
“These same issues and concerns are present in the case of a separation agreement,” according to the opinion. “Lawyer has a professional duty to provide competent and diligent representation to each client and ensure that the legal interests of each client are protected. Rules 1.1 and 1.3. When the clients are legally adverse to each other in the same matter and there are numerous opportunities for Lawyer to negotiate on behalf of the parties, impartiality is rarely possible. See 2013 FEO 14. Lawyer, therefore, cannot adequately advise one client without compromising the interest of the other client. Because Lawyer cannot adequately represent the interests of each client, Lawyer has a nonconsentable conflict and cannot prepare the separation agreement for both parties.”
Do you practice family law? What are your thoughts about this opinion?