Office of Bar Counsel, 0421 WYBJ, Vol. 44 No. 2. 12
| Position | Vol. 44 2 Pg. 12 |
Just Say No!
The Perils of Representing Both Spouses in a Divorce
Someone—a friend, perhaps—calls and tells you he and his spouse have decided to split the sheets. It’s going to be an amicable divorce. They have agreed on everything—custody, child support, visitation, an equitable division of marital property and debts. Will you please draw up the decree? Neither spouse wants to spend a bunch of money on lawyers.
Too often, well-meaning lawyers are lured into this potential trap. The first thing that should set off alarm bells is when the lawyer sits down to prepare the engagement letter. Who is the client? Surely, no lawyer with an ounce of sense would agree to represent Dick and Jane in a lawsuit styled Dick v. Jane, any more than a lawyer would agree to represent both the plaintiff and the landowner in a slip and fall case. Yet, this is exactly what lawyers who agree to represent both parties in a divorce are getting themselves into. Consider the sad case of Kenneth R. Wei-land, a divorce lawyer in Fairfax, Virginia. Wei-land agreed to represent Frances and William
Vinson in an “uncontested” divorce. Weiland’s retainer agrems and provided that each party would pay one-half of Weiland’s fee. Weiland met only with Mrs. Vinson, who told him that she and her husband agreed on the distribution of their assets and that they had no disagreements about the divorce. Weiland never spoke with the husband. An associate in Weiland’s firm prepared the agreed-upon property settlement agreement (PSA) and instructed Mrs. Vinson to get her husband’s signature on the agreement, which she did. The associate later met with Mr. Weiland and drafted a will for him.
Enter one David L. Ginsberg, one of Weiland’s competitors in Mark W. Gifford
Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming the bustling Fairfax divorce market. Ginsberg filed a motion on Mr. Vinson’s behalf seeking to have the PSA set aside and to disqualify Weiland as Ms. Vinson’s counsel. The trial court granted Ginsberg’s motion, finding a gross conflict of interest here that was apparent on the face of that [retainer] document.... [Weiland] has conceded that he didn’t really investigate the ethical issue until way, way late in the game.... And I find that [Weiland] did not make a reasonable inquiry into the legal and factual basis for his...
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