Dec. 20, 2017 – Can a lawyer represent both spouses in a divorce? You might be asking yourself why this is even a question, because the answer is so clear and the answer is “no.” The only problem is that your clear answer may depend on where in Wisconsin you practice. In District 3 of the Wisconsin Court of Appeals, the answer appears to be “yes.” The underlying assumption apparently made in some areas is that lawyers may use limited scope representation to represent both spouses in a divorce. That idea sells limited scope representation short and it sells courts, clients, and lawyers short.
In Mahaffey v. Mahaffey,1 the court of appeals affirmed a trial court’s order denying relief under Wis. Stat. section 806.07(1)(h) to a wife whose divorce lawyer represented both her and her husband. This lawyer drafted all the pleadings in the case, including the marital settlement agreement, and went to court with both of his “clients” and conducted the final hearing, questioning both parties. In her section 806.07 motion, the wife alleged that the terms of the marital settlement agreement were grossly inequitable. In a hearing conducted on the section 806.07 motion, the lawyer testified that he acted as the “scrivener” of the clients’ agreements. The lawyer acknowledged running Mac Davis calculations and being present while the clients reached agreements, then drafting the parties’ agreement.
Diane Diel (Wisconsin 1976) of Diane S. Diel S.C. practices family law in Milwaukee. She is a past president of the State Bar of Wisconsin, past chair of the Wisconsin Collaborative Family Law Council, and past president of the International Academy of Collaborative Professionals.
In its decision, the court of appeals does not consider by section number or reference any of the Supreme Court Rules of Professional Conduct for Attorneys. Instead, the court states that the wife “does not dispute the basic proposition that an attorney can limit his or her representation to scrivener duties without running afoul of the ethics code.”2 The court assumed this proposition to be correct “as we do not develop arguments on a party’s behalf.” Further, the court relied on findings in the trial court that the lawyer specifically advised both parties they could seek separate representation, that there was “ample” time to review the terms of the marital settlement agreement before the final hearing, and that the terms of the final agreement were fair and equitable. The trial court concluded that the wife had simply changed her mind about the agreement and that the test for relief under section 806.07(1)(h) had not been met.
Fortunately, this decision is unpublished, and this article will not further rehash the decision. The specifics of this case do not matter, but rather, the point is to persuade lawyers and courts that joint representation of adverse clients is not actually possible. Limiting the scope of one’s representation does not cure an unwaivable conflict of interest.
While a lawyer can ethically limit the scope of representation of a client, the representation of that client must be “reasonable under the circumstances” and the client must give his or her informed consent.3 Before a lawyer can limit the scope of representation, the lawyer must be able to represent the client in the first place. Thus, a lawyer might reasonably limit the representation of a single client to the task of drafting a marital settlement agreement. The concept of limiting representation to the task of representing adverse clients in a divorce is, simply put, unreasonable.
One of the clearest and most fundamental concepts of legal ethics is that it is a conflict of interest to represent one client if that representation is directly adverse to another client,4 unless the representation is covered by the exceptions in SCR 20:1.7(b.) Does 20:1.7(b) salvage the possibility of a lawyer’s representation of both spouses in a divorce case? No, it does not, as it provides:
“Notwithstanding the existence of a concurrent conflict of interest under par. (a), a lawyer may represent a client if: … (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal….” [emphasis provided].5
In May 2010, State Bar of Wisconsin ethics counsel Tim Pierce wrote an article dealing with the topic of mediator drafting. He opined that mediators could not draft agreements arising from mediation. He said: “In a divorce, a lawyer may represent only one party because representation of both presents an unwaivable conflict of interest under SCR 20:1.7(b)(3). Such a conflict is unwaivable even if the lawyer’s representation is limited to preparation of documents.”6 This view is and was the prevailing view.
In the Memorandum of Support filed by the Director of State Courts in support of the Petition to amend SCR 20:2.4 to permit drafting by mediators, an argument in support of the mediator drafting provisions was the prohibition in SCR 20:1.7(b)(3) from representing clients because doing so involves the assertion of claims by one client against another “in the same litigation.”7 The Wisconsin Supreme Court did not dispute this argument and approved the petition allowing mediator drafting.
If a lawyer acts as a joint scrivener for two adverse parties as an exercise of limited scope representation, neither client has the protections afforded by the standards for mediator drafting now set forth in SCR 20:2.4(c). Under that section, the mediator lawyer must explain the limits of the lawyer's role, including advising the parties that the lawyer cannot give legal advice, and the desirability of seeking independent legal advice before signing the documents prepared by the lawyer-mediator. The lawyer-mediator can file the documents with the court, but may not appear in court on behalf of either or both of the parties in mediation.
When lawyers are mediators, clients do not believe they have a lawyer, they believe they have a lawyer-mediator. When lawyers pretend to be scriveners, both clients may believe they are in fact represented when in reality, neither client is represented.
Family lawyers, if trained and competent to act as mediators, may serve as mediators. When the lawyer mediates and drafts, the lawyer must follow SCR 20:2.4(c). With this process, neither client believes they are represented by a lawyer and the lawyer doesn’t take on the final hearing. The mediator admonishes them to have their agreement reviewed by a lawyer. In the mediation context, when the marital settlement agreement contains the inscription required by SCR 20:2.4(c)(5) that it was “prepared with the assistance of a lawyer acting as mediator” the court should make a record that clarifies that both spouses understood the role of the mediator and understood the right to consult an independent decision.
If not mediating, family lawyers should absolutely tell any prospective divorce client that they can only represent one spouse. If a party refuses to engage a lawyer, obviously, the lawyer representing one client should carefully, and in writing, admonish the other client to secure their own lawyer. At the final hearing, the lawyer makes a clear record that the non-represented spouse voluntarily waived representation by a lawyer and understood that the lawyer did not represent them.
The goal of preserving and protecting the finality of divorce judgments is good. It is better achieved when a court makes a record that one lawyer can never represent both clients.
It is better for clients to have the clarity of when they are receiving advice from a lawyer and when they are not. The scrivener is a murky blend of both worlds who seems not to be able to help solve disagreements but can go to court as a lawyer.
Finally, lawyers as a whole are better served when individual lawyers appropriately engage clients in a clear process with a well-defined role.
1 2016 AP 1676 (2017).
3 See, SCR 20:1.2(c).
4 SCR 20:1.7(a).
5 SCR 20:1.7(b).
6 May, 2010, Vol. 2, Issue 10, WisBar InsideTrack.
7 https://www.wicourts.gov/supreme/docs/1604memo.pdf, p.4.