In Australia, most people consult a family law solicitor when they get divorced (or when they separate permanently from a de facto partner). Solicitors help their clients navigate the legal complexities that often arise in property and parenting matters following the breakdown of a relationship. It is not unusual, especially with an amicable separation, for the former spouses to be tempted to share a divorce lawyer to formalise the divorce and settle property matters and parenting agreements. However, while this may seem convenient and cost-effective, there are ethical concerns when parties who may have different interests share the same lawyer. This article examines the ethical and legal ramifications of sharing a divorce lawyer in Australia.
Motivation to share a divorce lawyer
Some separating couples make every effort to work together to agree amicably on matters of property division, spousal support, and childcare arrangements. In these circumstances, it can seem like a waste of money to engage two lawyers, and some parties may be concerned that getting more lawyers involved will simply increase the adversarial nature of the process.
A separating couple may wish to engage just one family lawyer to help guide them through the administrative procedures and appearances before the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia). These couples assume that it will be smoother and more cost-effective to share the same lawyer to represent both parties. Even so, it is still recommended that each party in a family law matter have their own legal assistance.
Ethical considerations
The legal profession in Australia is held to strict ethical standards. The Australian Solicitors’ Conduct Rules establish a lawyer’s ethical duties to the court, the law and to their clients. Under these Rules, a lawyer has a duty of loyalty to act in their client’s best interests, maintain confidentiality, and avoid conflicts of interest. The Rules specify that a lawyer and law practice must not act for more than one party in a matter if there is even the potential for conflicts to arise. A lawyer can face serious consequences if they are found to have breached any of the Rules and acted unethically, including losing their licence to practice.
Informed consent
A lawyer is only able to act for both parties in a separation if the clients are both aware of the situation and give informed consent. This means that both parties need to understand that their interests may be compromised by sharing a lawyer. For instance, it may make sense for a couple to share a lawyer when it is clear that there is no conflict between their interests because both people want the exact same outcome. Such a degree of common interests is relatively rare when parties are separating unless the legal issue is very narrow. For instance, if a couple has agreed on a property settlement and they only need a lawyer to assist them in executing the legal transfer of the property, then their interests may be identical on this one issue. In those circumstances utilising the same lawyer may make sense.
However, while the parties may be amicable at the outset, there is every potential for disputes and disagreements to arise between former partners. In that case, the shared lawyer may have ethical dilemmas over confidentiality and privileged communication. Confidentiality is a cornerstone of a lawyer-client relationship, and clients must feel able to freely communicate with their lawyer without fear of disclosure to the other spouse.
Contested matters
When the parties to a separation are not amicable at the outset, each party should certainly hire their own lawyer. In that circumstance, there will be negotiations because the parties do not have identical interests, and one solicitor can rarely facilitate such negotiations in a way that protects the interests of both parties equally. Therefore, even if the parties give consent to sharing a lawyer, many lawyers will decline to represent two parties who are involved in a disputed family law matter.
Additionally, lawyers in Australia are expected to provide independent advice and advocacy tailored to each client’s specific circumstances. Divorce and subsequent property settlement proceedings involve complex issues such as spousal support, childcare, and financial settlement, all of which require personalised legal guidance. By sharing a divorce lawyer, the spouses risk compromising the quality of legal representation they receive.
Procedural fairness
The Australian legal system recognises the principle of procedural fairness, ensuring that all parties in a legal proceeding have a fair chance to present their case and challenge adverse decisions. More specifically, the Family Law Act 1975, which governs divorce and family law matters in Australia, emphasises the significance of fairness and equity in the resolution of disputes between spouses. The Act prioritises the welfare of any children and encourages amicable resolution of conflict through negotiation and meditation. However, sharing a divorce lawyer might raise concerns over fairness, especially if one spouse perceives that the lawyer is showing favouritism or bias towards the other party. Such a perception can undermine the credibility of the legal proceeding.
While it might seem convenient and cost-effective to share a divorce lawyer, there are ethical and legal considerations for both the parties and the lawyers involved. Seeking separate legal representation ensures that both parties’ rights and interests are safeguarded throughout the divorce and property settlement process, promoting fairness, equity, and procedural integrity. Please call Taylor Rose on 1800 491 469 for tailored and independent advice on this or any other legal matter.
