For many separating couples, the goal is to finalise matters as efficiently and as amicably as possible. The daunting prospect of a drawn-out legal battle prompts many of your clients to ask if they can both just, “use the same lawyer”. They believe that this will speed up the process and minimise their legal costs.
Many of our clients believe that once they have reached an agreement, there is no need for both of them to obtain their own independent legal advice. We receive a lot of telephone calls from clients wanting to bring their former spouses to their upcoming legal appointments at our office.
So, can both parties be represented by the same lawyer? The simple answer is no. There are many reasons why this is the case, but the most important reason is that it is to protect you.
In a separation, technically, you and your former spouse are opposing parties in a lawsuit. This is true regardless of whether you have been able to amicably agree on the terms of your parenting arrangements or property settlement. As a result, representing both of you would be considered a “conflict of interest”.
Conflict of Interest
Conflict of interest means, if there is any possibility that the lawyer’s responsibility to a client would be limited by taking on another client, the attorney can only represent one.
Put in simpler terms, if a lawyer acts in the best interests of one party (for example, the wife) then they would be acting to the detriment of the other party.
You and your former spouse may have the same intentions from the start, but what happens if one party changes their mind? For example, one party no longer wants to sell the family home. In this event, the lawyer would need to advise that party of their options and determine what is likely to be the best outcome. If they are also acting for the other party, they cannot adequately provide this advice, without potentially causing detriment to the other party. This results in a very clear, conflict of interest.
The Family law jurisdiction takes conflicts of interests very seriously. There are many protocols designed to avoid these conflicts of interests arising and to ensure both parties are protected. One example of this is in the preparation of a Financial Agreement. Pursuant to the Family Law Act 1975 both parties must obtain independent legal advice before signing the Agreement. If they do not, the Agreement may be found to be null and void.
Conflicts of interest may also arise if one party goes to a lawyer that may be a friend or relative of theirs and is privy to confidential information that may be detrimental to one party. It depends on the particular circumstances, but usually, this lawyer would need to cease acting and refer that party to a different lawyer to avoid any conflicts of interest.