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

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-16

 

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.

ETHICS COMMITTEE:

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

APPROVED AND ADOPTED BY THE BOARD