Attorneys often encounter couples or groups who present themselves as having common interests in a matter for which they seek representation. The prudent attorney will take care to clarify at the outset who is the client. Failure to do so risks running afoul of the ethics board, and may have additional consequences.
The “couple-as-client.” Whether you practice criminal law, estate planning, bankruptcy, family law, or in a multitude of other fields, you have no doubt had dealings with many couples. And the representation can take many forms: maybe you represent one of the spouses in a criminal matter; maybe you represent both in an estate-planning matter or an adoption. Perhaps they aren’t yet married, orhave some other nonmarital relationship, such as parent/child. Sometimes, the parties are on good terms but have competing interests, so you represent only one party while the other party is unrepresented. This last scenario is common in drafting prenuptial agreements or other types of contracts.
Regardless of whom you represent and why, there are many traps that the unwary practitioner can fall into when dealing with couples. For instance, oftentimes one person of a couple is more assertive than the other, appearing to act as the representative of the couple-client or the other person. That “representative” may be the person you interact with 95 percent of the time. You may even catch yourself referring to that person as “the client,” even though the client is actually the couple or perhaps the other person. To avoid the unique traps that arise in a couple-client situation, the following tips may be helpful.
Identify the Client
Both for your own sake and for that of the couple, clearly identify the client at the onset of representation. Identifying the client is usually pretty easy, but, when working with the couple-client, it can sometime become ticklish. For instance, let’s say your client contact starts with a phone call from a woman, who identifies herself as Elaine.
Elaine indicates that she is interested in obtaining representation for her son who, it turns out, is involved in what she describes as a nasty divorce, complete with contested custody issues. Elaine explains to you that her son and granddaughter have been living with her since the parties separated, and she feels strongly that her son should stop being such a pushover and demand that the mother start paying child support. Her son doesn’t want to rock the boat, and would like to keep relations as friendly as possible. Elaine asks you if you can force her son to “do the right thing” and file for child support. Whoa — wait just a moment — who’s the client here? Two minutes into the phone conversation, and already it appears that you have a conflict.
Here it becomes absolutely necessary to make clear whom you represent. If you tell Elaine that the person you would be representing is her son and that her concerns are inconsequential, you will likely never get a signed retainer agreement. Nevertheless, you cannot in any way give her false assurances that you are going to represent her interests in this matter. One gentle (yet honest) approach might be to say something like, “Elaine, it sounds like you and your son have some important differences of opinion on the way this matter should proceed. This should definitely be discussed when he comes in for his initial consultation.” Once they are in your office, and you’ve had a chance to woo them with your vast knowledge of Everything Custody, you can take a few moments to explain how you can represent only one person in a contested matter.
If the issue is presented properly, your client and his mother will leave your office understanding that you represent the son, but that Elaine’s concerns are valid and will be taken into consideration. If you do not adequately explain your role and who the client is, Elaine may very well leave your office thinking you are representing both her and her son, and that, of course, is just a recipe for disaster.
Other common couple-client scenarios include bankruptcies, adoptions, prenuptial agreements, and powers of attorney. In some of these instances, such as adoption or the purchase of real estate, you may, in fact, represent the couple, and there is no need to take extra precautions to make sure each individual knows whom you represent. Sometimes, the parties have convergent interests, but your client is only one of the two parties (such as Elaine and her son) and it is advisable to take precautions in order to make clear whom you represent. In other cases, such as drafting a prenuptial agreement, it is vitally important to draw that distinction, because you cannot represent both parties.
As a divorce attorney, I have personally seen countless instances involving prenuptial agreements in which a client explains that “we were both represented by Attorney X in the drafting of the agreement.” Upon further questioning, sometimes it becomes clear that, in fact, only one party was represented by the drafting attorney, but sometimes, unfortunately, it is not so clear. If both parties to the dissolution can argue convincingly that they thought they were being represented by the one attorney, the prenuptial agreement could be set aside as being procedurally unfair. In this situation your client could lose everything the prenuptial agreement was crafted to safeguard. Drafting attorney, beware!
Signed Retainer Agreement
The most important measure you can take to protect yourself against allegations of misconduct or dual representation is to get a signed retainer agreement. If you have a signed retainer agreement, should you ever be accused of representing two parties with competing interests, you will have strong documentation that in fact, you represented only one party.
If the parties have noncompeting interests, but only one party is actually the client, the signed retainer agreement should spell out clearly that Person X is the client and that, if you decide to have Person Y sign the retainer agreement (perhaps because he or she is paying the bill), Person Y is signing only in his or her financial capacity. In addition to identifying Person X as “the client” in the retainer agreement, you may wish to include language referring specifically to Person Y, such as, “The undersigned understand and agree that Person X is this law firm’s client, and it is Person X’s interests that this firm represents. Person Y is signing this agreement solely as guarantor, and is aware that this law firm does not represent Person Y, nor does any attorney-client privilege exist between Person Y and this law firm.”
Prevention: The Best Cure
When you are dealing with two parties with competing interests who are on good terms with each other (such as in the drafting of a prenuptial agreement or other contract), you must beware of doing anything to instill a belief in either party that you represent both. Under these circumstances, it is clearly unwise and/or impractical to have both parties sign the retainer agreement. For instance, if you represent only one party to a prenuptial agreement, you certainly would not want to have both parties sign the retainer agreement.
Given that allegations of improper dual representation generally arise when one party is under the mistaken impression that you represent both parties, your job is to disabuse the other party of that notion,as soon as possible during the representation. First, never invite or allow the other party to your office. Familiarity with you and your office only contributes to the belief that you are representing the other party. Do not permit the other party to use a notary public in your office. You may instruct them to go to their bank to have any documents notarized. As much as possible, communicate only in writing with the unrepresented party. Begin each and every letter to the unrepresented other party with, “[As you know,] I represent [name of client]. I do not represent you.” End each letter with, “if you have any questions about this matter, I urge you to consult independent counsel of your own choosing.”
If you do this consistently, the chances that the other party will misunderstand whom you represent will diminish considerably. If such a misunderstanding about which party you represent never takes hold, your chances of ever having to defend against an ethical complaint will be greatly reduced.
When the parties have similar interests, but you represent only one of the parties, remember Rule 1.6 of the Minnesota Rules of Professional Conduct: “[A] lawyer shall not knowingly reveal information relating to the representation of a client … [unless] the client gives informed consent … .” Even when discussing a client’s legal matters with the client’s spouse, it is always advisable to have a signed release from the client, permitting you to reveal information to the third person. Your client’s verbal authority (“you can discuss anything with my husband/wife.”) is nice, but unlikely to hold much water when you are defending yourself in front of an ethics board. Always get it in writing. The time you save in not having to defend against ethical complaints will have been well worth it.
To sum up: always keep in mind whom you represent, and always act with this in mind. When dealing with unrepresented parties, make sure they know they are unrepresented. When dealing with a client and a person whose interests are aligned with the client’s, but who is not a client, make sure both parties know where they stand with you. And especially, when dealing with one client who is friendly with the other nonclient party with competing interests, never let them forget that you represent your client, and only your client. Finally, always put it in writing. You’ll be glad you did.
PHYLLIS “PHYL” BEAN is an attorney with the firm of Morrison Fenske & Sund, P.A. located in Minnetonka. She was awarded her J.D. in 1991 from George Mason University School of Law, where she served as a staff member of the George Mason University Law Review. She is admitted to practice in Minnesota, Florida, Virginia, and the District of Columbia and concentrates her practice in the area of family law, including adoption, divorce, custody and support.