Ethics Committee Formal Opinion #1988/9-6
Conflict of Interest: Representation of Separated Parties
November 10, 1988
ANNOTATIONS:
A conflict of interest may arise for an attorney handling pension and estate planning matters in the dual representation of a husband and a wife who are separating. (Rules 1.7; 1.8(b))
In representing both separating spouses, if the lawyer has gained information from one spouse which could be used in a manner detrimental or adverse to the other, then the lawyer should decline representation of both. (Rule 1.7)
Informed consent by both spouses to a lawyer’s continued dual representation may not be possible if the clients’ interests are fundamentally antagonistic within the scope of the proposed representation. (Rule 1.7; 1.8(b))
An attorney may represent an organization, either incorporated or unincorporated, and any of its members or other constituents subject to the provisions of Rule 1.7, Rule 1.13(e), Rule 2.1. (Rules 1.7; 1.13; 1.13(e); 2.1)
When the attorney representing multiple clients believes that such representation will not be adversely affected, the attorney must still communicate the risks and consequences of common representation to both clients. (Rule 1.7(a))
QUESTION:
Is it ethical for the attorney to represent both the husband and the wife in matters of estate planning and pension planning?