Conflicts of Interest in Family Law Matters
Pullman & Comley Professional Liability attorney Marcy Tench Stovall authored the American Bar Association (ABA) Family Advocate article, “Conflicts of Interest in Family Law Matters.” In the piece, she explores how the duty of loyalty under the ABA Model Rules of Professional Conduct governs conflicts analysis in divorce proceedings, where the personal nature of the litigation heightens both ethical risks and strategic consequences.
At the outset, Marcy underscores the stakes involved, writing, “Conflicts of interest can arise in any practice area, but the personal nature of family law litigation makes it all the more important for lawyers to be careful to avoid taking on representation where a conflict of interest claim could trigger a motion for disqualification or breach of fiduciary duty claim.” She explains that the governing principles stem from a lawyer’s core obligation of loyalty, noting that “If there are other interests at play that pose a risk of adversely affecting the lawyer’s ability to advocate for the client’s best interest and/or give advice untainted by other considerations, there is a conflict of interest.”
The article walks through the most common conflict scenarios in matrimonial matters, including Rule 1.7’s prohibition on direct adversity between current clients and Rule 1.9’s limitations on representing a client adverse to a former client in the same or a “substantially related” matter. In discussing the development of the “substantial relationship” analysis, Marcy cites Geoffrey C. Hazard, Jr., W. William Hodes and Peter R. Jarvis in The Law of Lawyering, “Today, most courts and other authorities hold that the substantial relationship test is not a formalistic inquiry into degrees of closeness, but is in large measure a judgment as to whether former clients are at risk that their confidences will be turned against them.”
Marcy also addresses conflicts arising from service as a mediator or other neutral, as well as the challenges presented by prospective client consultations. She cautions that in the emotionally charged context of divorce, attorneys must exercise particular care during intake, emphasizing that “a lawyer must take special care to keep a prospective client from spilling out unsolicited information in the initial intake conversation and limit the initial intake to only such information as is necessary to run a conflicts check.”
This article originally appeared in the ABA’s Family Advocate; it is republished here with permission.