PUBLISHED IN OBAR MAY 26, 1975 VOL. XLVIII, NO. 21 FORMAL OPINION NO. 30 (May 1975)
Two inquiries have been received by the Committee on Legal Ethics and Professional Conduct in regards to the appropriateness from an ethical standpoint of a lawyer representing both parties in a Petition for Dissolution of Marriage.
The problem is stated as follows:
"While dissolution of marriage was designed as a non-adversary proceeding, there still remains a question in the minds of many as to whether an attorney may represent both spouses in a dissolution proceeding and sign the Petition for Dissolution as counsel for both."
Question: "May an attorney represent both spouses in drafting a Separation Agreement and rendering professional advice and performing other duties relative to dissolution of marriage, including signing the Petition for Dissolution of Marriage as counsel for both and appearing for both at the final hearing on the petition?"
Dissolution of Marriage is provided for in the following provisions of the Revised Code.
Permits a Court of Common Pleas to grant a dissolution of marriage.
Provides that both parties to a dissolution of marriage be deemed defendants and served as such.
Section 3105.63, Revised Code, provides
"A Petition for Dissolution of Marriage shall be signed by both spouses, and shall have attached and incorporated a Separation Agreement agreed to by both spouses. The Separation Agreement shall provide for a division of all property and, if there are minor children of the marriage, for custody of minor children, alimony, child support, and visitation rights. An amended Separation Agreement may be filed at any time prior to the hearing on the Petition for Dissolution of Marriage. Upon receipt of a Petition for Dissolution of Marriage, the Court may cause an investigation to be made pursuant to Civil Rules."
Section 3105.64, Revised Code, provides
Not less than thirty nor more than ninety days after the filing of a Petition for Dissolution of Marriage, both spouses shall appear before the Court and each spouse shall acknowledge under oath that he has voluntarily entered into the Separation Agreement appended to the petition, that he is satisfied with its terms, and that he seeks dissolution of the marriage."
Section 3105.65, Revised Code, provides
(A) "If at the time of the hearing either spouse is not satisfied with the Separation Agreement, or does not wish a dissolution of the marriage, the Court shall dismiss the Petition and refuse to validate the proposed Separation Agreement.
(B) "If, upon review of the testimony of both spouses, and of the report of the investigator pursuant to Civil Rules, the Court approves the Separation Agreement and any amendments thereto agreed upon by the parties, it shall grant a Decree of Dissolution of Marriage incorporating the Separation Agreement. A Decree of Dissolution of Marriage has the same effect upon the property rights of the parties, including rights of dower and inheritance, as a Decree of Divorce. The Court has full power to enforce its decree, and retains jurisdiction to modify all matters of custody, child support, visitation, and periodic alimony payments."
Thus it will be observed, that the heart of the above procedure for dissolution of marriage is the Separation Agreement of the spouses which must be incorporated in their petition to the Court to dissolve their marriage. That agreement must cover, where applicable, division of property; alimony; visitation rights; support; and custody of minor children. The Court retains jurisdiction to modify custody, support, visitation, and alimony.
Spouses who seek a dissolution of marriage will not necessarily be antagonistic to one another, but, they will have differing interests with respect to all matters which must be covered by the Separation Agreement. Furthermore, even though those matters are not to be litigated in the usual adversary way at the time of the hearing on the petition, (although either party may then express dissatisfaction) they may well be the subject of adversary litigation after the marriage contract is dissolved.
Applicable to this situation are the following provisions of the Code of Professional Responsibility.
A LAWYER SHOULD EXERCISE INDEPENDENT PROFESSIONAL JUDGMENT ON BEHALF OF A CLIENT.
ETHICAL CONSIDERATION 5-14 reads
"Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant."
ETHICAL CONSIDERATION 5-15 reads
"If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason, it is preferable that he refuses the employment initially. On the other hand, there are many instances in which a lawyer may properly serve multiple clients having potentially differing interests in matters not involving litigation. If the interests vary only slightly, it is generally likely that the lawyer will not be subjected to an adverse influence and that he can retain his independent judgment on behalf of each client; and if the interests become differing, withdrawal is less likely to have a disruptive effect upon the causes of his clients."
ETHICAL CONSIDERATION 5-16 reads
"In those instances in which a lawyer is justified in representing two or more clients having differing interest, it is nevertheless essential that each client be given the opportunity to evaluate his need for representation free of any potential conflict and to obtain other counsel if he so desires. Thus, before a lawyer may represent multiple clients, he should explain fully to each client the implications of the common representation and should accept or continue employment only if the clients consent. If there are present other circumstances that might cause any of the multiple clients to question the undivided loyalty of the lawyer, he should also advise all of the clients of those circumstances."
DISCIPLINARY RULES 5-105 provides
"REFUSING TO ACCEPT OR CONTINUE EMPLOYMENT IF THE INTERESTS OF ANOTHER CLIENT MAY IMPAIR THE INDEPENDENT PROFESSIONAL JUDGMENT OF THE LAWYER."
(A) "A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
(B) "A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
(C) "In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
(D) "If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment."
The above Ethical Considerations and Disciplinary Rules make it plain that the lawyer shall not represent differing interests except with the deliberate consent of all concerned. For the reasons stated hereafter, the exception to the general rule stated in EC 5-15, 16, and DR 5-105 (C) does not, in our opinion, apply in a dissolution of marriage case.
The marriage relationship creates duties, rights and responsibilities. It can be and more often that not is an enriching and ennobling status. It also can and frequently does spawn displays of emotion, frustrations, personality traits, and interpersonal and intrapersonal psychological and psychiatric experiences which may plunge a spouse to depths of despair and, ofttimes, degradation. Fear and intimidation are then its handmaidens.
Where a lawyer is asked to undertake the representation of both spouses in a dissolution of their marriage, the existence of fear and intimidation most often would be masked and not readily ascertainable. Revelation of the real problems and reasons prompting the action would not likely be made to the lawyer, nor would a spouse readily repose in him confidences or secrets. Therefore, the professional obligation of the lawyer to obtain full knowledge of his client's cause could not be adequately performed. In effect, the lawyer representing both spouses would be materially shackled in any effort to obtain the information essential to a truly professional performance. Present the factors of custody, child support, visitation rights, alimony, and property division, or any one of them, and the differing interests are apparent.
It is recognized that EC 5-15, 16, would permit a lawyer to make a judgment as to whether differing interests "vary only slightly", and that DR 5-105(C) would permit a lawyer to represent multiple clients if it is "obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." But there is the rub. In a marriage dissolution situation, pragmatics make it impossible for him to make a proper judgment as to the degree of variances in differing interests.
Accordingly, we are of the opinion that a lawyer may not represent both spouses in a dissolution of their marriage, as provided in Section 3105.61-65, inclusive, Revised Code. However, we recognize that the purpose and nature of the dissolution of marriage proceedings is to avoid some of the usual adversary relationships in an action for divorce and that both parties may not choose to be represented by individual lawyers. Therefore, a lawyer may represent one party to the dissolution and prepare the Separation Agreement required by Section 3105.63, Revised Code, provided: (1) the second party is made fully aware that the lawyer does not represent him or her; (2) that the second party is given full opportunity to evaluate his or her need for representation free of any potential conflict and to obtain his or her own counsel; and (3) each spouse consents, in writing contained in or attached to the Separation Agreement, to the lawyer so proceeding. The lawyer shall not appear as counsel of record for both parties in the proceeding.