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Coping with the Couple-Client 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, or
have 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. Releasing Information 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. |
