Article for May 2004: Can One Attorney Represent Both
Parties?
I had already
prepared an article for May, when a potential client came in and presented me
with a situation that cried out for attention. So I scrapped the other
article and began work on this one. The question that she presented is: "Can an
attorney represent both parties in a legal dispute? Good question, let's
see if we can figure out the answer.
Typically this
situation arises in a divorce case and the motive for even considering this
option are the evil twins, greed and revenge. The Chinese are reputed to have a
saying that goes "One who sets out on revenge should first dig two
graves. One for his victim and one for himself." I would strongly
suggest that any of you who are considering allowing the other party to totally
control the negotiations to give this adage considerable thought. You have
to understand that litigation is not a profit making undertaking. One way or
another, It is going to cost you money. The scale of economy favors the
proactive and not the slothful.
Usually one party thinks that they will allow the other
party to get an attorney to do the paperwork. Their soon to be ex, usually
points out how much money they could both save by using one lawyer. Implicit in
this suggestion, is the concept that the attorney in question is going to
be fair to both parties by "just following the law." He or
she is just going to prepare the papers and not take sides. If you believe that,
I have some swamp land that we need to talk about.
In this case the parties were married for over ten years, and had
separated over a year ago. The husband went to see the lawyer and offered
to settle things "fairly." The parties both had
substantial property and retirement accounts, which may or may not have been joined to the
action. The reason for joinder is so that the retirement plan will be bound by
the court's order and to prevent the owner of the retirement fund from removing
the money. Makes sense if you think about it.
Approximately one
year earlier, they had finalized the divorce. As part of the judgment, they had both waived spousal support.
Shortly after the divorce
decree had been signed by the judge, her husband went on disability. What
I found suspicious is the fact that he told her he was going to do that before
he was "injured." Since he wasn't a psychic, my
client was finally prompted to seek legal help. Even that decision was
self-serving. The reason she called was because she wanted to know if she had a right to part of
his
disability payments. The fact that he was committing fraud was completely
ignored by her. Red lights and sirens should have been going off, but they
weren't. If someone will defraud anyone, you are not immune.
It was interesting
that for two years after the separation, the case was filed and after the judgment was signed,
she had no interest in the fairness of what they both had signed. It was only
when she thought she could get something else from her husband, did
she
bother to call an attorney about their case. It was by a purely serendipitous
accident that she called me and I asked the questions that I did.
Otherwise she would never even been aware of the potential abuse by her husband.
Despite being advised of the danger of what she did, she still didn't want to hire
an attorney to advise her because, in her opinion, it would cost her too much.
This turns out to be a
perfect segue into the next part of our answer.
There is an old
saying that goes "an attorney cannot serve two masters."
It is called a conflict of interest. Most ethical attorneys will tell the first
party who contacts them that they can only represent one party and not
both. In fact an ethical attorney will advise the non-represented party of
this fact and recommend that they contact an attorney before proceeding. Once
you go to an attorney and they speak to you about a case, they are your
attorney. That attorney cannot turn around and represent the adverse party after
meeting with you. The only exception to this
situation would be one where the attorney is acting as a mediator and doesn't
take any part in the litigation if mediation fails.
Unfortunately some less than ethical attorneys will take the money and let the
other party think what they want. Doesn't sound real fair does it? Well it
isn't. Some attorneys justify this practice by relying on the axiom that they
are only
"zealously"
representing their clients like they are suppose to.
Since they don't owe the other party a duty of fair dealing, they are within
their duty not to tell the other party anything. While the State Bar sees
this differently, many attorneys will take a chance and screw you over.
While this may not
sound fair, the reality is that they are not totally wrong. An attorney doesn't
owe the other party anything. If you are going to represent yourself, then it is your responsibility to look out for
yourself. It is not your soon to be ex-spouse's responsibility nor is it his
attorney's duty. You should be very clear that if your
ex-spouse's attorney can gain an advantage for your husband, that is the
attorneys duty and he would be negligent if he didn't take full advantage of
your ignorance.
If you ask your ex's attorney if the offer is fair? they will
probably say it is or if they are more scrupulous they will suggest that you
have an attorney look it over for you. But since that will take time and may
cost you a few dollars, many people don't bother to take advantage of checking
out the real impact of the agreement before they sign it. Instead they
foolishly assume that their ex's attorney is being totally fair and you sign on
the dotted line.
If you do this you, not only are you being stupid, you
are also being cheap. Not a good combination. You actually think that you
are the smarter of the two because you didn't have to hire an attorney. Instead
you mooched from his attorney. Wrong. You have just been screwed and don't even
know it. I have seen many clients that are reluctant to initiate a divorce,
instead waiting for the other person to initiate the action.
This kind of
thinking is childish and stupid. Think about it this way. There is a switch in
your head. On one side of the switch is the label "we" and on the
other side is the word "me." If you are still thinking "we" when you should be thinking "me," you are half way to hell. Why, you ask?
Because he has already changed the switch to "me" and he
isn't trying
to look out for you. I see this most often in couples who have been married for
a long time and play games with each other. One party misses the message that
the game is over and that party usually gets screwed with a capital "S." Given the
fact that these people have been playing games for years, I don't really feel
sorry for the victim. After all they asked for it, didn't they?
In today's world you cannot engage in the same childish
behavior that you may have in high school. The world doesn't care what crazy
ideas you have floating around in your head. Or what you thought the law was. If
you act as your own lawyer, then you are held to the same standard as a real
lawyer is. One attorney cannot represent both of you, nor should they. There is
absolutely no excuse for being foolish and cheap. Guess what? No one is going to
save your butt for you. If you are looking for a helping had, you will find it
at the end of your own arm. Use it to pick up the phone and get help.
To be technically fair, there is a legal exception to this rule. Which
means that under certain conditions an attorney can "legally" represent
an adverse party. Although the attorney still cannot represent both parties. For
example, attorney able represented man in a totally different action. The action
could be against the current wife or against someone else. The material fact is
that attorney able represented man and not current wife. Theoretically attorney
able could represent current wife against man, if man waived the conflict in
writing. Why man would consent to this is beyond me, but under this single
situation he could, legally change sides.
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