In my last Article “What is Family Law? – A General Overview”, several of my paragraphs noted that although we represent both mothers and fathers in paternity actions, and grandparents and children in grandparent rights, (as well as husbands and wives), a notation was made that we could not represent them in the same case. This article will clarify what a lawyer can and cannot do in the event of two persons needing legal action against each other when they both agree on the outcome.
Attorneys licensed in the state of Idaho are governed by the Idaho Rules of Professional Conduct that provide guidance as to the ethical practice of law. One of the governing canons is that attorneys cannot represent opposing parties in the same action. This most often occurs in family law when a person calls in and explains that they and their spouse agree to get a divorce and agree on every matter of the action. Could they please come in together, to save costs, and have me draft their divorce decree? At that point it is explained to them that one attorney cannot represent both opposing parties in the same action. This always comes as a surprise because the caller explains, “We agree on everything, we just want this done.”
A divorce is a legal action, with one person designated as the Petitioner (the one who initiates the action) and one person designated as the Respondent. Even though the parties may agree in a divorce situation, this is still a law suit. Attorneys cannot represent the opposing parties in the same law suit.
If parties come to an agreeable resolution to the end of their marriage, they should still consult with an attorney to ensure nothing is left out or is contrary to law. (I have seen people leave out significant assets or rights when they try to save money by not hiring an attorney.) One of the two persons can hire a family law attorney to review their agreement and draft an agreed upon Decree or Judgment. Once an attorney establishes an attorney client relationship with one party, they cannot give legal advice to the other. The draft Decree/ Judgement can then be conveyed to the other party. It is still recommended that the other party consult with their own attorney to be advised of their rights and to avoid any potential claims of undue influence.
This procedure can be effective not only in family law matters but with employment contracts, property disputes and any other legal matters where there is agreement. However, it is important to remember that attorneys are not simply scribes to be dictated to by the client. It is our job to point out the law and advise the clients as to their best interests. (It is always up to the client whether or not to follow that advice.)
During our consultations in such situations, we provide legal advice about the details relating to the equitable division of property, what is defined as separate verses community property/debt, accounts, businesses, retirement/investment accounts, and all other assets, as well as debt division. If there are minor children, we can also assist with creating a reasonable schedule that serves the best interest of the children and calculate child support once all the relevant information is known.
Click here for more informative articles or call the Law Office of Merrilee A. Parr at (208) 667-1227 to make an appointment for an initial consultation.
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DISCLAIMER: As always, Articles are not legal advice and are not to be construed as establishing an attorney client relationship.