Let's Go See A Lawyer

Posted on Wednesday, March 30, 2011

Many times people are under the misimpression that an attorney can represent both spouses in a divorce. If your spouse utters the words, "Let's go see an attorney I talked to about the divorce" or something of that nature, you should be a little suspicious because Mississippi doesn't allow an attorney to represent both of you in a divorce.

I certainly wish I could work with both parties directly, gain their trust, represent their respective best interests, and help them resolve their case. I could negotiate the agreement, write it up, and answer questions from both spouses. In this fantasy world, divorces would always be finished by the 60th day after they are filed, ex-spouses would still be friends, the child support check would arrive a week early, everyone would tell the truth, and custody agreements would never need to be modified.

It is just a fantasy, though. It's almost always illegal for an attorney to represent people with adverse interests. In divorce cases, according to the Mississippi Bar Ethics Committee, Opinion 80, "the interests of the parties to a no-fault divorce are conflicting, inconsistent, diverse, and otherwise discordant, no matter what the parties themselves, as laymen, may believe otherwise. Common representation entails parallel duties to both parties; and the lawyer, therefore, cannot place the interests of one client above the interest of the other. Inquiries by one client as to what would be in his best interest if answered would likely involve advice which would not be in the best interest of the other client, i.e., tax consequences of different modes for the payment of alimony. If the inquiry was not answered, the lawyer would fail in his duty to "adequately represent the interest" of the inquiring client. If answered, the interest of the other client would not be adequately represented."

Even when both you and your spouse want a divorce, when everything seems like it's going to be over and done with in a hurry, if your spouse invites you to meet with an attorney he/she has already seen about the case, that attorney does not represent you. That attorney represents your spouse. If you meet with them, your conversation isn't protected by the attorney-client privilege and if you say something that should be kept private, your spouse could freely testify about it in court.

So before you sign something the smooth-talking, smiling attorney asks you to, you might want to read over it again. Better yet, call me to take a look at it with you.

By: Jeremy P. McNinch