3. Conflict of Interest
Conflict of interest dilutes a lawyer's loyalty to the client.[33] A lawyer's loyalty may be diluted by personal interests (financial security, prestige, and self-esteem) and interests of third persons (family, friends, business associates, employer, legal profession, and society as a whole). A conflict exists if the representation of a client "may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests."[34] The key to preventing unintentional violations of the conflict of interest rules lies in anticipating the possibility that a conflict situation will develop.
The influences that might dilute a matrimonial lawyer’s loyalty to a client are unlimited.[35] The interests of children, relatives, friends, lovers, employers and the opposing party, along with a perceived obligation to the court and the interest of society, may be compelling in a given case. In family law matters, where “winning” and “losing” in the traditional sense often lose their meaning, determination of the appropriate ethical conduct can be extremely difficult.
3.1 An attorney should not represent both husband and wife even if they do not wish to obtain independent representation.
Comment
The temptation to represent potentially conflicting interests is particularly difficult to resist in family disputes. Often the attorney is the "family lawyer" and previously represented husband, wife, family corporations, and even the children.[36] Representing husband and wife as an intermediary is not totally prohibited by the RPC.[37] However, it is impossible for the attorney to provide impartial advice to both parties. Even a seemingly amicable separation or divorce may result in bitter litigation over financial matters or custody. A matrimonial lawyer should not attempt to represent both husband and wife, even with the consent of both.[38]
The attorney may be asked to represent family members in a non-litigation setting. If separation or divorce is foreseeable or if one of the parents desires defense to a charge of battery, the lawyer may see her role as counselor or negotiator for all concerned. This temptation should be resisted.[39]
Representation of both spouses should be distinguished, however, from mediation of a dispute where the attorney represents neither of the spouses.[40] See 8.1–8.4. While 8.4 permits the attorney-mediator to give advice “that would enable the parties to make reasonably informed decisions,” the mediator must remain impartial, indicate that the participants are free to reject the advice, and advise the participants that the mediator represents neither of them, so they should seek independent legal advice.
Because the attorney-mediator represents neither party, the attorney-mediator may not appear in court on behalf of either. It is the consensus of Academy members, however, that an attorney-mediator who has assisted the participants in reaching a mutually determined agreement, may appear in court “on behalf of the agreement,” solely for the purpose of filing it. Any of the parties may be represented by counsel of their choice at such a proceeding.
3.2 An attorney should not advise an unrepresented party.[41]
Comment
Once it becomes apparent that another party intends to proceed without a lawyer, the attorney should, at the earliest opportunity, inform the other party in writing as follows:[42]
1. I am your spouse’s lawyer.
2. I do not and will not represent you.
3. I will at all times look out for your spouse’s interests, not yours.
4. Any statements I make to you about this case should be taken by you as negotiation or argument on behalf of your spouse and not as advice to you as to your best interest.
5. I urge you to obtain your own lawyer.[43]
3.3 An attorney should not simultaneously represent both a client and a person with whom the client is sexually involved.
Comment
A matrimonial lawyer is often asked to represent a client and the client's lover. Joint representation may make it difficult to advise the client of the need to recover from the emotional trauma of divorce, the desirability of a prenuptial agreement, or the dangers of early remarriage. The testimony of either might be adverse to the other at deposition or trial. In addition, the client may desire to waive support payments because she believes she is going to marry her lover. The inherent conflicts in attempting to represent both the client and her lover render such representation improper. Even when the client's new partner is not represented by the attorney, but wishes to participate in consultations and other aspects of the representation, the attorney must be alert to the danger of the client’s undermining her own best interests in an effort to accommodate her new partner.
3.4 An attorney should not have a sexual relationship with a client, opposing counsel, or a judicial officer in the case during the time of the representation.
Comment
Persons in need of a matrimonial lawyer are often in a highly vulnerable emotional state. Some degree of social contact (particularly if a social relationship existed prior to the events that occasioned the present representation) may be desirable, but a more intimate relationship may endanger both the client's welfare and the lawyer's objectivity.[44]
Attorneys are expected to maintain personal relationships with other attorneys, but must be sensitive to the threat to independent judgment and the appearance of impropriety when an intimate relationship exists with opposing counsel or other persons involved in the proceedings.