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When going through a divorce or separation, you may have decided that you want a particular divorce lawyer to act on your behalf. There are, however, some reasons why a divorce lawyer may not be able to represent you.
This comes down to the concept of ‘conflict’. A ‘conflict’ covers situations where it is inappropriate for a solicitor to advise a client because of previous or ongoing work with another person involved in the same case.
If you’ve been rejected by a solicitor due to a conflict, you may be confused about what exactly the conflict is. In this piece, we explain the concept of conflict in a legal setting, and how it applies to family law and divorce.
What is Conflict of Interest?
Conflict of interest, in a legal setting, describes a scenario where a solicitor’s duties cannot be lawfully fulfilled due to a conflict, either in the solicitor’s non-professional interests or their involvement with another party in the case.
It’s crucial for a solicitor to identify any conflicts before taking on a case. Remember, solicitors are not obliged to take on a case when approached by a client. This could be due to capacity concerns within the firm, or indeed the presence of a conflict of interest.
Conflict of Interest in Divorce
Like most areas of the law, divorce cases can cause a conflict of interest. These conflicts commonly come under one of these categories:
Representing Competing Parties
The most obvious conflict of interest in a divorce scenario is one lawyer representing both parties.
This is generally always prohibited, and any ethical lawyer would refuse to represent both clients. The only exception to this would be if the law firm are using the ‘one solicitor, two clients’ approach. This is new dispute resolution process, but it is not currently widely used by law firms.
Conflicts of interest can also arise in more subtle ways during a divorce.
Prior Consultation
Because a lawyer has a very strong duty of loyalty and confidentiality to their clients, if they consult with a potential client during the divorce proceedings, it would be deemed a conflict of interest for them to later decide to represent the other spouse, even if the first spouse decided not to hire them after the consultation. This is because sensitive information will often arise during the consultation that could be used against the spouse.
Representation Prior to Divorce
A conflict of interest can also arise if the lawyer has represented either spouses at some point during the marriage, and when they separate, one spouse wants to keep using the lawyer to carry out the divorce proceedings. This is because of the information about the opposing party they might have that could be used in the divorce negotiations.
How Do Solicitors Check for Conflict of Interest?
All lawyers, including divorce lawyers, carry out a conflict check when first meeting a new client by confirming whether they or their firm has acted on behalf of a client who is related to you.
Sometimes, however, the conflict is not immediately obvious, and it may be later on in the divorce process that some details come to light. This can happen when people have used false names or haven’t provided full details of all the people involved in the divorce.
When a conflict of interest is found, any judgment on a divorce proceeding may be overturned, and you may find yourself back to square one.
What is Conflicting Out?
Sometimes, conflict of interest ethics can be manipulated through a tactic called ‘conflicting out’.
This is when, for example, one partner arranges to have initial consultations with a number (or all) of the specialist family lawyers in an area while trying to find which will suit them and their divorce needs best.
Because of the nature of the information disclosed in these meetings, this makes it very difficult for the other partner to instruct a lawyer to represent them, due to the potential conflict of interest. Conflicting out happens more commonly in celebrity divorces, but it’s becoming more prevalent in other cases as well. .
This highlights the importance of finding a suitable lawyer for you as soon as you decide that divorce will be your route forward.
Divorce Lawyers, Here for You
If you’re in need of a diligent, experienced divorce lawyer, consider the South Wales-based family law experts, Grant Stephens. Our legal services cover most family law disciplines, including divorce. We’ll spend time getting to know you and the specifics of your case, before providing professional legal advice and representation. To talk more about your needs, contact us today.
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