We often get telephone calls asking whether a divorcing couple can use the same attorney for their divorce. The short answer is NO!
It is a violation of the lawyer’s rules of ethics to represent both husband and wife in a divorce. The interests of the parties are directly adverse to each other and there is no possible way for the attorney to competent, diligent representation to both. The American Association of Matrimonial Lawyers states that “An attorney should not represent both husband and wife even if they do not wish to obtain independent representation.”
Even if husband and wife have reached an informal agreement regarding the issues of their marriage and solely desire that a lawyer or mediator draft their agreement, it is not possible for one individual to do this without favoring one party over the other.
For example, suppose that husband has a pension and the lawyer has been asked to draft an agreement that divides the pension equally between the parties. The lawyer knows that the agreement can be drafted to provide survivorship benefits for the wife in the event of husband’s death but in doing so it will reduce the monthly amount husband will receive before his death. Without including the clause giving survivorship benefits, the Wife may get nothing upon Husband’s death. Even bringing this issue up to both parties may cause Husband to lose something or the deal to unravel. Its impossible for the lawyer to discuss the pros and cons with both parties and help them reach a decision about this issue and be loyal to both.
Clients are entitled to attorneys they can trust to act with commitment and dedication to their interests in their legal matters. Its simply impossible for an attorney to advise both Husband and Wife.
No attorney in the State of North Carolina can ethically represent both Husband and Wife in a divorce.