Dependency and Delegation: the Ethics of Marital Representation

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

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 1SUMMER 1998

Dependency and Delegation: The Ethics of Marital Representation

Naomi Cahn and Robert Tuttle(fn*)

I. Introduction

The two hypotheticals for this symposium concern a lawyer who is asked to represent a married couple in which one spouse would like to cede decision-making authority to the other. As we have examined the lawyer's ethical responsibilities, we have identified two distinct, but conceptually related, issues of legal ethics.(fn1) The first, a threshold question, deals with the nature of marital representation: May a lawyer simultaneously represent both husband and wife? And if so, how should the representation be structured? The second adds an additional layer of complexity: If a lawyer represents both husband and wife, may the lawyer accept one spouse's delegation of decision-making authority to the other within the representation? And if so, what are the parameters of the delegation?(fn2)

These questions are complicated because they ask us to deviate from the typical structure of legal representation in which a lawyer (or firm) represents one and only one person. In the "typical" representation, the lawyer zealously advances his client's interests, within the bounds of law, and treats all others as strangers-as those who are at least potential foes of the client. The lawyer sees only two kinds of people: clients, to whom the lawyer owes duties of professional care and loyalty; and nonclients, to whom the lawyer owes nothing more than any one random person owes to another.(fn3) These questions are complicated because they ask us to think about the similarities and differences between commercial and marital relationships to determine whether representation in both involves the same set of standards. We believe that any representation involving multiple parties causes problems for the typical account of representation and that marital representation brings its own peculiar difficulties because of the intimacy and dependency that characterize marriage.

Nonetheless, we believe that a lawyer may simultaneously represent both husband and wife(fn4) and that the lawyer can accept one spouse's delegation of authority to the other. In such a situation, however, we would require informed consent to the delegation at the outset, and we would propose that the lawyer be obligated to revisit the delegation in certain contexts. We would also establish four requirements that must define the context of delegation in marital representation where the same lawyer represents both spouses.

First, before a lawyer accepts such a delegation, she must ensure that both spouses understand the powers that will be delegated and the consequences of delegation. Second, the spouses must understand the lawyer's duties within the relationship, including the lawyer's obligation to consult with both spouses. Third, the spouses must understand that the consent to delegation may be withdrawn. Finally, the spouses must understand that the consent to delegation will be revisited when the delegated spouse takes an action that may "substantially harm" the delegating spouse.

In this Essay, we attempt to provide an explanation of why we believe that marital representation involves special requirements and a justification for the requirements that we have developed. In Section II, we begin by examining various problems presented by multiple representation. The third section briefly looks at the nature of delegation in commercial relationships. The fourth section turns to a discussion of the special character of the marital relationship; we try to understand the nature of delegated authority within that relationship. The last section uses a series of hypothetical questions to explore the implications of our account.

II. Multiple Representation

The law of lawyering tries to minimize any ethical problems that might arise when a lawyer represents more than one client by analogizing multiparty representations as closely as possible to the "unitary" model in two different settings. First, Model Rule 1.13, "Organization as Client," allows the lawyer to represent an organizational entity-a single, Active person. Consequently, the lawyer is not required to negotiate between the diverse interested parties within organizations (shareholders, directors, management, and other employees).(fn5) Second, Model Rule 2.2, "Intermediary," allows the lawyer to represent diverse parties whose unity comes from a shared objective, such as the drafting of an agreement.(fn6) As with corporate entity representation, the lawyer represents the unity, not the individual parties.

The Model Rules permit representation of multiple clients, however, even when such representation fails to conform to the "one lawyer for one client" ideal. As long as there is no conflict-no likelihood that the lawyer's representation of one party will materially limit her representation of the other-the lawyer may represent multiple parties simultaneously.(fn7) This is obviously true, since few lawyers would survive financially if they represented only one client at a time. The real issue, of course, is representing multiple parties in the same matter. If there is no conflict, and none is likely to occur, the lawyer may simply accept the multiple parties. Even if the parties have conflicting interests in this matter, the lawyer may still represent the parties if she assures herself that she can provide "independent representation" to each, fully informs the parties of the nature of the conflict, and gains their consent to continue the representation notwithstanding the conflict.(fn8) Under the Model Rules, few representations raise unwaivable conflicts; typically only those involving simultaneous representation of adverse parties in litigation are presumed unwaivable.(fn9)

The ethical analysis of multiple representation, then, usually turns on questions of informed consent. Did the clients receive sufficient information about the conflict? Was the clients' consent freely given? Has the lawyer continued to provide the clients with information relating to the conflict, especially where the information materially changes the extent or nature of the conflict?(fn10)

Marital representation tracks the general ethical analysis of multiparty representation. Courts and bar associations have been somewhat reluctant to permit joint representation of spouses in divorce,(fn11) though many jurisdictions do allow one lawyer to represent both spouses in an uncontested divorce (assuming, of course, fully informed consent).(fn12) In other contexts, such as a married couple's purchase of a home, joint representation seems perfectly normal. Indeed, one would hardly think of suggesting a different form of representation where the spouses' interests are so closely aligned. Between these two polar contexts of complete dissolution or perfect harmony, a lawyer approached for representation by a married couple has four options: a separate lawyer for each spouse, the same lawyer representing each spouse individually, joint representation, and entity representation.(fn13)

One possibility, of course, is that the lawyer can refuse simultaneous representation of spouses and request that one spouse, or both, seek another lawyer. This possibility fits perfectly into the "one lawyer for each client" ideal and may be appropriate where the spouses' interests are in conflict (e.g., the spouses have a serious disagreement about estate planning involving one spouse's children from a prior marriage, or a man and woman who intend to marry want to execute a prenuptial agreement).(fn14)

Apart from such conflicts, the "separate attorneys" model leaves much to be desired. Separate lawyers means additional expense for the clients even though the additional protection is often unnecessary.(fn15) In addition, separate representation may actually be counterproductive. Dueling lawyers may convert an otherwise harmonious process into an adversarial conflict.(fn16)

A second possibility is separate representation by the same lawyer such that the same lawyer establishes two attorney-client relationships-one with each spouse. The Special Study Committee of the American Bar Association's Real Property Section accepts this model as one alternative for marital representation, provided that the relationship is established by express agreement of both spouses.(fn17) In contrast to separate representation by separate lawyers, the Committee believes that separate representation by the same lawyer provides greater coordination of the spouses' mutual interests-especially important in estate planning-while still permitting each spouse the advantages of "independent" advice and confidentiality.(fn18) However, separate representation by the same lawyer presents serious conflicts of interest that informed consent often cannot reliably cure.(fn19) Since it would be extremely difficult even for the lawyer to describe the nature of possible conflicts that might arise between the spouses, the spouses will rarely be able to give sufficiently informed consent to this representation.

Third, the lawyer could represent the spouses as joint clients. Both the Special Study Committee and Professor Teresa Collett approve of this model, but they seem to have quite different understandings of what the choice entails. For Professor Collett, joint...