In the simplest divorce cases, the role of the court is little more than to make things official. The couple might get an uncontested divorce because they have already decided how to divide their property or because they own so little property that there is nothing to fight about, and all they need is a judge’s signature to make it legal for each of them to marry someone else. Everyone else goes to family court because they are having a dispute with a family member, and they want to reach a fair resolution, whether by reaching an agreement in mediation or by a judge issuing a decision at trial. This means that the judges should be unbiased, and it also means that the lawyers representing the parties should not have a pre-existing social, familial, or professional relationship with their own clients or with anyone else related to the case. It is considerably easier for family law attorneys in populous metropolitan areas to avoid conflicts of interest in divorce and co-parenting cases than it is for lawyers in small towns where everyone knows each other and where it is more common for one law firm to handle cases in a variety of practice areas.
Common Types of Conflicts of Interest Family Lawyers Face
One of the hardest parts of going through a divorce is that many of your interpersonal relationships feel like conflicts of interest. How should you relate to the friends that you and your ex-spouse met together during your marriage? How should your relationship with your former in-laws be? Which former spouse gets to continue hanging out at which former favorite family hangout?
Family law attorneys must avoid conflicts of interest, too. If you do not, it will cause problems in your relationship with your client and your colleagues, and at worst, it could even result in you being accused of legal malpractice. These are some common types of conflicts of interest that can arise in family law cases:
A lawyer represents one spouse in a divorce case after the client’s spouse has already contacted the same lawyer and had a consultation
- The lawyer or the lawyer’s spouse knows the client’s ex-spouse through work or somewhere else
- The client’s children and the lawyer’s children attend school together or play sports together
- The client and the judge know each other
- You previously represented the client or the client’s spouse in an unsuccessful attempt at collaborative divorce, and now the client wants you to represent him or her in a contested divorce from the same spouse
How to Stop Conflicts of Interest Before They Start
Identifying possible conflicts of interest should happen as early as possible in the attorney-client relationship, preferably within the first few minutes of the first in-person consultation. You should ask your client directly about the name of his or her spouse or co-parent. If it is someone you know, you should immediately explain that you know the client’s spouse or ex, and because of this conflict of interest, you cannot represent the client. The hardest part of doing anything is getting started, so the client may be upset that, after she summoned the courage to contact a family law attorney and found one who was willing to have a consultation with her, she is now back where she started, with no legal representation. If this happens, you should recommend other lawyers that the client should contact since, as far as you know, these lawyers do not have the same conflict of interest.
Practicing Law in a Small World
In big cities, it is easy to find a workaround for conflicts of interest in family law cases; the client can easily get a new lawyer or a new judge. Things are different in rural areas. You might be one of only a few family law attorneys in your family. It is also more common in rural areas to find law firms that practice “door law,” where they are willing to represent any client who walks in the door, regardless of the type of legal matter; this is out of necessity. In a small town with few lawyers, there is a strong possibility that when a client contacts you about his divorce, you have a conflict of interest because, years earlier, you represented his wife in probate court when she was the personal representative of her aunt’s estate. In this case, the best you can do is be honest about the conflict of interest.
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