Fans of the “The Sopranos” or other legal TV shows may already be familiar with how conflicting out an attorney can take place. In one particular episode of The Sopranos a neighbor of Tony’s, who happened to be a lawyer suggested he make appointments with all the top divorce lawyers in North Jersey so Carmela his wife would not able to find legal representation. Later in that episode the audience learns that this dirty trick has worked, when a lawyer tells Carmela that she cannot hire him because all the divorce lawyers she tries to meet with are conflicted out.
Obviously, The Sopranos is a TV show and the setting was in New Jersey in today’s blog post we will examine how such a scenario would play out in Texas and what steps a spouse can take to prevent this dirty trick.
Can Spouses Use the Same Divorce Lawyer in Texas?
So far in my career I have only run into one incidence that I am aware of where a spouse may have been trying to deliberately trying to conflict me out from representing their spouse. I will discuss that later in this article.
What I have run into more frequently is where a spouse will ask about whether I can represent them and their soon to be ex. What I let the potential clients know is that it is unethical and against the rules of Texas Professional Conduct for an attorney to represent both spouses in a divorce. There is a conflict of interest in that what may be good for one spouse is not necessarily good for the other spouse.
The Texas rules regarding a single attorney representing a spouse or the one discussed in The Soprano situation or found in Texas Disciplinary Rules of Professional Conduct as follows:
- Rule 1.05 Confidentiality of Information;
- Rule 1.06(b) Conflict of Interest: General Rule; and
- Rule 1.09 Conflict of Interest: Former Client.
Rule 1.06(b) tells Texas lawyers that they are to forego the dual representation in the followings situations:
- Where the representation of one client is “directly adverse” to the representation of another client if the lawyer's independent judgment on behalf of a client or the lawyer's ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer's representation of, or responsibilities to, the other client.
- The dual representation also is directly adverse if the lawyer reasonably appears to be called upon to espouse adverse positions in the same matter or a related matter.
Rule 1.05 states:
(a) "Confidential information" includes both "privileged information" and "unprivileged information." "Privileged information" refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. "Unprivileged client information" means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
Rule 1.09 which says:
a) Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client:
(1) in which such other person questions the validity of the lawyer's services or work product for the former client;
(2) if the representation in reasonable probability will involve a violation of Rule 1.05; or
(3) if it is the same or a substantially related matter.
This rule has been construed by some courts to include protect potential clients who consult with attorneys regarding representation. This means that a Texas divorce lawyer may possibly be conflicted out representing a wife if her husband consults with them even if they are not hired by the husband just like in The Sopranos.
Ethics Opinions 294 & 494
One ethics opinion I researched regarding the situation examined those rules in relationship to divorce consult and came down on the side of if an attorney meets with a spouse they cannot then represent the other spouse.
In a similar opinion, (Opinion 294, TBJ, September 1964) the committee found that an attorney who represented the wife in a prior divorce action, which was dismissed upon reconciliation, could not ethically represent her husband in a subsequent divorce suit filed against her by her husband. The committee reasoned that an attorney's duty to preserve a client's confidence outlasts his or her employment, and employment which involves the disclosure or use of these confidences to the disadvantage of the client.
A party who seeks to disqualify opposing counsel must file a motion to disqualify. The person bringing this motion, to disqualify an opposing counsel bears the burden of proving that disqualification is proper.
Your spouse will need more than:
- mere allegations of unethical conduct or
- evidence showing a remote possibility of a violation of the disciplinary rules to disqualify an opposing counsel.
To disqualify opposing counsel on the basis of prior representation, a party must prove three elements:
- that opposing counsel previously had an attorney client relationship with the party;
- that the pending litigation is the same as or is substantially similar to the prior representation; and
- that the facts in the pending litigation create a genuine threat that the opposing counsel will reveal confidences.
Waiving the Conflict
One way to waive the conflict is if a party does not file a motion to disqualify opposing counsel in a timely manner than they have waived the complaint. The untimely urging of a disqualification motion lends support to any suspicion that the motion is being used as a tactical weapon.
Alternatively, parties can also choose to waive the conflict of interest of an attorney having met with both parties.
Is this a Good Strategy to Utilize During a Texas Divorce?
In my opinion I do not think that it’s generally a good approach for people to take. Taking this approach is likely to escalate the conflict between spouses and make for a more expensive divorce. Generally, I believe it is better for both spouses to have excellent Texas divorce lawyers. This facilitates reaching a prompt and fair settlement.
When you eliminate the good divorce lawyers from the equation this means the divorce case is likely going to take longer and be more expensive. This has been my experience both when a spouse is trying to represent themselves and when an attorney who does not normally practice divorce accepts a case. In both scenarios, someone is trying to learn divorce law and does not know, what is reasonable, or what a divorce court would likely do.
Although, this dirty trick may be tempting I would advise a spouse to refrain. This is more likely to have some success in towns with fewer attorneys. However, it may still have some degree of success in the city as well.
How can you prevent this from happening to you?
One way to prevent yourself from falling victim to this tactic is at the first sign a divorce may be on the table, is for you meet with a divorce lawyer. That will in most circumstances mean that Texas divorce lawyer will be unable to meet with your ex, and you will have, in effect, have at least one option as far as securing the services of a lawyer for your divorce.
If you are concerned about whether your spouse might do this, it would be a good idea to talk with a divorce lawyer as soon as you can. You may not be sure that you want a divorce or that you are going to get divorced. However, a divorce lawyer can discuss your options with you, make you aware of your rights, and give you some more information regarding the process. We have met with many potential clients who were feeling great distressed and afterwards they said I am so glad I met with you I feel so much better.
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