81-F-16 - Representation of both parties in irreconcilable differences divorce


Pursuant to Section 26 of Rule 9 of the Supreme Court, the Board has been
asked to issue an opinion as to the propriety of an attorney representing
both parties in an irreconcilable differences divorce.

We recognize that the purpose of this amendment to the divorce laws of Tennessee was to
do away with the idea of fault in dissolving marriages, to minimize the adversary nature
of such suits, and to eliminate conflicts between the parties, rather than create conflicts
where none exists.

We further recognize that it is not uncommon for attorneys to act for both parties in other
transactions such as the drawing and dissolving partnership agreements, for grantors and
grantees in real estate transactions, for sellers and buyers, and for landlords and tenants,
inter alia.

As stated by the California Court of Appeal in the case of Klemm v. Superior Court of
Fresno County, 75 Cal. App. 893, 142 Cal. Rptr. 509, 514:

Attorneys who undertake to represent parties with divergent
interests owe the highest duty to each to make a full
disclosure of all facts and circumstances which are
necessary to enable the parties to make a fully informed
decision regarding the subject matter of the litigation,
including the areas of potential conflict and the possibility
and desirability of seeking independent legal advice.

If there is no dispute or conflict existing and none arises between the parties being
represented as to any matter in litigation, and after full disclosure to and informed consent
of both parties, we see no reason why an attorney may not represent both parties in such a
divorce action. For counsel's own protection, such disclosure and consent should be
acknowledged in writing.

If, however, at a later date, a dispute does arise between the parties regarding such
proceedings, such counsel would be disqualified from representing either party.

This 26th day of August , 1981.


Joseph G. Cummings
F. Evans Harvill
John R. Rucker