Family Matters: Nonwaivable Conflicts of Interest in Family Law

• Publication year: 1998
• Citation: Vol. 22 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 1SUMMER 1998

Family Matters: Nonwaivable Conflicts of Interest in Family Law

Steven H. Hobbs(fn*)

Introduction

The hypothetical prepared for this special symposium issue ask if a lawyer can provide legal services to a family when one family member yields major decision-making authority to another family member. At stake is the disposition of significant individual and family assets. The traditional model of legal representation would require each family member to have an advocate protecting and promoting his or her individual interests while negotiating a reasonable accommodation of the other family members' interests. The challenge presented by the hypotheticals is whether an attorney can simultaneously represent apparent multiple interests without violating ethical provisions.

The hypotheticals assume that the family as a unit has presented itself to a lawyer seeking legal advice and assistance to accomplish a plan already agreed to by the family. Each family presents a plan conceived from the unique perspective of its philosophical, moral, and practical understanding about the nature of family.(fn1) It apparently believes deeply in the presented plan and could accomplish its desires without the aid of a lawyer. In fact, the probability is high that any advice contrary to its plans or the recommendation that each member individually seek separate counsel would be rejected. The question becomes: Can a lawyer ethically provide legal services in a manner which honors both the families' values and the lawyer's professional values? Stated differently, are these multiple-client-conflict-of-interest situations which the lawyer should not allow the client to waive the protection afforded clients under our professionalism rules, even if the clients consent after full disclosure and discussion of representing clients with differing interests?

Proceeding from the premise that a lawyer is contemplating offering legal services in the context of a family unit, the focus of this article is on nonwaivable conflicts of interest in the area of family law. Nonwaivability is suggested by the language in the Model Code of Professional Responsibility(fn2) (Model Code) and the Model Rules of Professional Conduct(fn3) (Model Rules). My interest is whether the Disciplinary Rules and Ethical Considerations of the Model Code and the Model Rules and Comments offer sufficient insight for the lawyer considering multiple current client representation. As a policy matter, which conflicts arising from family representations are nonwaivable?(fn4) As a practical matter, when should it be obvious to a lawyer that he or she should not represent the parties jointly?(fn5)

The rules suggest that a lawyer should not simultaneously represent family members with differing or conflicting interests.(fn6) However, this ethical protection can be waived by the clients after the lawyer has given full and adequate disclosure of the nature, extent, and risks of proceeding with a multiple representation.(fn7) However, the Ethical Considerations in the Model Code and the Comments to the Model Rules advise that in some situations, the multiple representation should not proceed even with client consent-the conflict is nonwaivable.(fn8)

This Article will explore ways of thinking through conflict of interest questions when providing service to family members. Issues of valid consent and adequate disclosure, while extremely relevant to nonwaivability, are not addressed.(fn9) My primary consideration will be on how the language of the ethical rules guides the lawyer in making the decision. While some would argue for a bright-line rule to determine nonwaivability, I recommend a subjective approach to solving the nonwaivability dilemma:(fn10) each lawyer should assess his or her ability to provide legal services to multiple family members that are consistent with the doctrinal principles of loyalty and zealousness. The Article begins with a discussion of the unique challenges of providing legal services to multiple family members. In Section II, the Article moves to an examination of the doctrinal themes that structure conflicts of interest analysis. Particular attention is paid to the descriptive language of the rules. The Article then presents, in Section III, an analytical framework for thoughtfully working through conflict issues to determine if the conflict is nonwaivable. Finally, Section IV concludes by considering the hypothetical problems in terms of the analytical framework developed in Section III and informed by the doctrinal themes presented in Section II.

I. Representing Families

In an earlier work, I presented the following definition of family:A working, formal law-based definition of the family could be: "[A] fundamental [legal] relationship established by birth, adoption or choice in which persons are responsible to each other for basic intellectual, emotional, physical, social[,] and spiritual nurture." This relationship creates a unique species of legal rights and obligations. A legal, domestic relationship is generally classified as a status. Husband-wife, parent-child, and guardian-ward are the universal status relationships that are domestic or familial in nature. These status relationships are created, ordered, and protected by the state. The concept can be expanded to include alternative forms of family relationships, such as cohabitating heterosexual or homosexual couples and surrogate parenting arrangements, which have been given consideration in law.(fn11)

There are times when a lawyer is called upon to represent the interests of a family unit or to provide legal advice to two or more family members who may have differing interests in the outcome of the representation. For instance, one lawyer can assist a couple who seeks to draft an antenuptial agreement.(fn12) In certain limited circumstances, one lawyer can handle a no-fault divorce on behalf of a couple.(fn13) Family members injured in a common accident might sue the alleged tortfeasor in one united action, even if one of the family members might be partially responsible for the accident.(fn14) Finally, there are cases involving parallel proceedings on different matters, such as a personal injury case brought on behalf of the family and handled by the same lawyer who is representing one family member in a divorce.(fn15) Thus, the term "family representation" is used broadly to describe not only the law of domestic relations (marriage, divorce, adoption, etc.), but also legal issues based on the familial relationship of the parties.(fn16) In such instances of multiple representation when the relationships between the parties are familial in nature, the parties' legal interests are generally thought to be united; and yet, the parties have interests that do, or can, become conflicting.(fn17)

Recent scholarship reflects a trend in the expanding and changing nature of family law practice. Thomas Shaffer often urges that the family is a civic community,(fn18) and that a lawyer can provide legal services in pursuit of what is in the best interest of the family.(fn19) Gerald LeVan calls upon lawyers to consider preservation of familial relationships as a vital focus of legal representations.(fn20) Patricia M. Batt has argued for using an entity theory in representing families, much like we use for representing a business.(fn21) Russell Pearce proposes offering families an "option" of deciding whether to obtain representation as a family or as a collection of individuals.(fn22)

On the other hand, Teresa Stanton Collett vigorously opposes treating the family as a unit and recommends against such an engagement.(fn23) Part of her objection is that she does not see where the law recognizes the family as a unit in the same sense that the law gives a legal existence to a business association.(fn24)

Expanding on the notion of family as an entity or unit, other scholars see families as a series of interrelated systems from which a family draws resources to solve problems and address family needs.(fn25)The concept of systems is used to refer to a group of people who interact as a functional whole. Neither people nor their problems exist in a vacuum. Both are inextricably interwoven with broader interactional systems, the most fundamental of which is the family. The family is the primary and, except in rare instances, the most powerful system to which a person ever belongs . . . . The physical, social[,] and emotional functioning of family members is profoundly interdependent, with changes in one part of the system reverberating in other parts of the system.(fn26) A system might include a spouse, a child, extended family members, or a social agency that provides services and problem-solving resources for families. For example, an individual seeking a divorce might call upon his parents for financial support during the divorce.(fn27) Or an individual might turn to her parents to assume custody of her children because the grandparents are in a better situation to meet the needs of the children. These multiple systems create a web of interpersonal, interdependent relationships through which individuals manage their daily lives.(fn28)

I have used this approach in previous work exploring the ethical management of assets for elder clients.(fn29) My focus was on the counseling role the lawyer plays...