What Is a Conflict of Interest in a Texas Divorce?
Seeking a divorce can be a lot like untangling a series of knots created over years, sometimes even decades. Unfortunately, it’s not uncommon for new knots to form during the proceedings. Given the significant emotional component and frequently adversarial nature of divorce, there are times when an attorney’s capacity to act independently and fulfill their ethical obligations is compromised. This is known as a “legal conflict of interest,” and it can raise significant issues with a divorce.
To prevent this issue from further complicating your divorce, it’s important to understand what the law says about conflicts of interest in family law attorneys, what constitutes them, and some strategies for avoiding them.
The Texas Legal Framework Governing Conflicts of Interest
Conflicts of interest are a significant component of the Texas Disciplinary Rules of Professional Conduct (DRPC) that all attorneys must adhere to. Attorneys are expected to provide unbiased legal representation uncolored by their personal relationships and beliefs. They’re also expected not to use confidential client information without consent for their own benefit.
The Texas DRPC’s conflict of interest rules include:
General Rule 1.06: Conflict of Interest: General Rule
This rule prohibits attorneys from representing opposing parties in the same matter and any clients in a matter directly adverse to the interests of the attorney, their law firm, or another client.
In a divorce, it would be impossible for an attorney to advocate fully for both clients, even in an amicable divorce. These matters inherently involve opposing interests. Both sides are highly likely to have differing views on the optimal outcome of all issues in their divorce, including asset division, child custody, and spousal support.
Rule 1.09: Conflict of Interest: Former Client
Texas conflict of interest rule 1.09 prohibits a lawyer from representing a new client in any matter that is substantially related to or the same as any matter in which they formerly represented another client. However, if the former client gives written consent, the new representation is permissible.
A conflict of interest can arise if a divorce attorney previously worked with one or both spouses on something like writing a prenuptial agreement or forming a business, or if the lawyer worked in a firm that previously created those documents for the parties at the time they were created. If that attorney were to represent one spouse in their divorce, they might have information on that prenuptial agreement or business that could sway the proceedings in favor of their client. This is deemed unethical and can result in a successful motion to disqualify.
Rule 1.10: Imputation of Conflicts of Interest
This rule states that when one lawyer is disqualified from representation due to a conflict of interest, any lawyer from the same law firm is automatically barred from representing the client in that same matter.
The idea here is that the same conflict of interest that disqualified the initial attorney may find its way to the new attorney. However, exceptions to this rule can be made in certain circumstances, provided stringent screening procedures are implemented to ensure conflict of interest rules are not broken.
Rule 1.05: Confidentiality of Information
This rule prohibits the disclosure or use of confidential information related to a client’s representation. While not directly considered a conflict of interest rule, breaking rule 1.05 can easily lead to a motion to disqualify an attorney for conflict of interest.
This is a particularly important rule in divorce proceedings, as clients must disclose a vast amount of information to their attorney. That information can include financial records, medical records, employment details, private family matters, and details about their parenting. If that attorney had previously represented the other spouse, they may have significant confidential information that could be used to disadvantage that spouse. This can be substantial grounds for attorney withdrawal in Texas.
Strategies to Prevent Conflicts of Interest in Texas Divorces
Ensuring that your attorney does not violate any conflict of interest model rules during your divorce proceedings requires careful consideration. Protect your own interests by doing the following:
Hire Independent Legal Representation
Not only should each spouse seek their own divorce attorney, but neither spouse should hire an attorney who has previously represented the other. The risk of complications, complaints, and disqualification for conflict of interest is simply too high.
Conduct Conflict Checks
It can be easy to overlook a conflict of interest if you’re not extremely careful. Conducting a comprehensive conflict check of the attorney and law firm you work with to ensure they have never represented your spouse is critical. It can help prevent costly conflict as you seek a fair divorce settlement.
Disclose Potential Conflicts Promptly
Should a potential conflict arise, it’s essential to disclose this information to all involved parties. In some cases, both parties can agree to proceed with the case by signing a waiver of conflicts. However, in certain instances, this is prohibited by Texas law, so it’s important to exercise caution when seeking a waiver.
Use Ethical Screens When Applicable
While an attorney may be disqualified from representing you due to a conflict of interest, their law firm may still be permitted to take your case, provided they use strict ethical screens. Ethical screens bar the lawyer and the rest of the law firm from sharing access to files and communicating about the case.
File Motions to Disqualify Promptly
Should you suspect a conflict of interest in the other party, you can file a motion to disqualify that attorney. However, if you wait too long to file your motion, the court may view it as a strategic move to gain an unfair advantage and deny it. It’s critical to act swiftly if you want to avoid an unfavorable outcome.
Contact the Legal Experts at Balekian Hayes Today
Avoiding conflicts of interest in your divorce case starts with choosing a reputable, experienced family law firm. The high-net-worth divorce attorneys at Balekian Hayes, PLLC, are dedicated to helping our clients seek optimal outcomes in their divorce proceedings and doing so ethically. Contact us today for your consultation.