There are several ways that a conflict of interest can arise for a divorce lawyer. Depending on the type and level of the conflict, the attorney will either have to resign from the case, or get a conflict of interest wavier from the client's spouse. The most obvious conflict of interest in the divorce setting would be when one lawyer agreed to represent both parties. This is generally always prohibited and any ethical lawyer would refuse to represent both clients. However, conflicts of interest can also arise in more subtle ways during a divorce.
A lawyer has a very strong duty of loyalty and confidentiality to his clients. This means that if a lawyer consults with a potential client during the divorce proceedings, it would be a conflict of interest for the attorney to later decide to represent the other spouse even if the first spouse decided not to hire the attorney after the consultation. This is because sensitive information will often arise during the consultation that could be used against the spouse.
A conflict of interest can also arise if the attorney represented both of the spouses at one point during the marriage, and at separation one spouse wants to retain the attorney during the divorce proceedings. Depending on the nature of the previous representation, the attorney could have information about the opposing party that could be used in the divorce negotiations.
For example, if a divorce attorney previously represented a wife and her new husband in a custody battle with the wife’s ex-husband, the attorney will have had access to sensitive information about both the wife and her new husband. In this case, the attorney would be ethically barred from representing either of them in a later divorce proceeding. However, if an attorney represented the couple in an action that did not reveal confidential information that could be used in a later divorce action, such as during a real estate transaction, a conflict of interest may not arise in this scenario. In this case the attorney may ethically represent one of the spouses during later divorce negotiations or proceedings.
Other situations in which a conflict of interest can arise include when an attorney is a friend to both spouses, or is a family member. Because there has usually been some level of an intimate relationship with both spouses in these scenarios, the divorce lawyer could potentially use information acquired from this intimate relationship against the opposing spouse. While this type of conflict may sometimes be waived in writing by the party whose interests are adverse to the representation, it is otherwise unethical for an attorney to represent a spouse in these situations.
When there is a conflict of interest found, any judgment of a divorce proceeding may be overturned. To ensure that there is no conflict of interest, the best thing to do is to get a referral from the conflicted attorney or find a divorce lawyer that has no relationship to either party.