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OBA Ethics Counsel

Ethics Opinion No. 278

Adopted April 26, 1974

INQUIRY

May an attorney represent, or purport to represent, both husband and wife in a divorce proceeding in which the pleadings present an adversary position between the parties?

OPINION

The question evolves from a case in which a petition was filed by the plaintiff-wife seeking a divorce on the grounds of incompatibility between the parties directly attributable to the conduct and demeanor of the defendant_ husband. The defendant-husband filed an answer in which he generally denied all the allegations of the petition, except the marriage and birth of three children and the agreement of a settlement of the property rights, demanded strict proof of the allegations of the petition and requested that the defendant-husband be granted a divorce.

The petition and the answer presented a justiciable issue in an adversary proceeding in which each party sought to be granted a divorce from the other. Both the petition and the answer were filed by the same attorney. The decree of divorce recites that the cause came on to be heard upon the verified petition of the plaintiff and the answer of the defendant with the attorney appearing individually on behalf of the plaintiff and of the defendant. The Court "finds generally for the plaintiff upon her petition for a divorce and for the defendant for his cross-petition for divorce, that each should be divorced from the other." The decree grants custody of the children, awards child support and approves the property settlement agreement. The decree further recites "that a divorce should be granted to the plaintiff from the defendant on the grounds of incompatibility, only, and that a divorce should be granted to the defendant from the plaintiff on the grounds of incompatibility, only."

Canon 7 of the Code of Professional Responsibility adopted by the Supreme Court of Oklahoma states "a lawyer should represent a client zealously within the bounds of law". Disciplinary Rule 7_104(a)(2), construing Canon 7, states that during the course of his representation of a client, a lawyer should not:

"Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interest of such person are or have a reasonable possibility of being in conflict with the interests of his client."

The conflict of the interest between the husband and wife in the pleadings is apparent. An adversary position is created between the parties by the pleadings which have been filed on their individual behalf. An attorney must not accept employment that has the potential of impairing the freedom of conduct and detached professional judgment which another of his clients may require him to exercise. DR 5_105A. A limited exception is permitted in certain described circumstances under DR 5_105(C) where the clients consent after a full disclosure by the attorney of the possible consequences. EC 5_17. Obviously it was never intended that subsection (C) would enable an attorney to justify representing both parties in an adversary proceeding or to create an adversary situation which, in truth and in fact, is a sham.

When the attorney undertook the representation of plaintiff-wife in the divorce proceeding and filed the petition on her behalf, he became disqualified to represent the defendant-husband in an adversary proceeding and to file a responsive pleading on behalf of the defendant-husband. Northeastern Oklahoma Community Development Corporation v. The District Court of Mayes County, et al., Okl., 510 P.2d 939 (1973). See, also, Informal Opinion 1255 of ABA.

This Opinion is limited to the facts presented. Under the facts presented it appears that the attorney represented himself as advising both parties in an adversary proceeding. This dual representation is proscribed by ABA Formal Opinion No. 224.

It is, therefore, the opinion of the Committee under the Code of Professional Responsibility that the inquiry must be answered in the negative and that a violation of proper ethical conduct would be involved in the procedure described above.