81-F-21 - Representation of both parties in contested divorce

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-21

 

An inquiry has been made concerning the propriety of an attorney preparing an answer for his client's spouse to sign in response to a divorce petition alleging cruel and inhuman treatment.

The Ethical Considerations and Disciplinary Rules of Canon 5 of the Code of Professional Responsibility precludes acceptance of employment that will involve the attorney in representing differing interests. "Differing interests" include every interest that will adversely affect either the judgment or the loyalty of an attorney to a client, whether it be a conflicting, inconsistent, diverse or other interest.

Disciplinary Rule 7-104(A)(2) provides that an attorney shall not communicate with one of adverse interest or give advice to such a person who is not represented, other than the advice to secure counsel.

The divorce laws of Tennessee have been amended to minimize the adversary nature in suits dissolving marriages involving irreconcilable differences. This committee thus held in Formal Opinion 81-F-16 that under certain conditions an attorney could represent both parties in an irreconcilable differences divorce.

A divorce, other than for irreconcilable differences, obtained by collusion between the parties is invalid. It is improper and unethical for an attorney to assist a party to obtain such a divorce.

This 1st day of October, 1981.

ETHICS COMMITTEE:

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

APPROVED AND ADOPTED BY THE BOARD