Can both parties to a No-Fault Divorce have the same attorney in the State of Mississippi?

This is a common question that comes to our office, and the simple answer is absolutely not.  Attorneys are bound by certain ethical guidelines, and one of those guidelines requires zealous advocacy of a client; unlike in the real estate context, where a dual agency is permitted under certain circumstances in the purchasing of residential or commercial real estate (as in the buyer and seller can be represented by the same party).  This dual representation is not permitted in divorce in the State of Mississippi or any other state in the United States.  There are certain limited exceptions in which dual representation is possible however, they must be strictly limited due to the inherent nature of divorce and property settlement which entails that both parties have conflicting interests in the matter.  In other words, it’s not possible for an attorney to equally represent the interests of two parties whose interests are diametrically opposed to one another.

A wife, for instance, who has an interest in a property or real estate that was the marital household, would under most circumstances seek to gain as much equity or interest in the property as possible from her husband from whom she seeks a divorce.  Conversely, a husband who maintains interest in that property will have the opposite interests financially upon a dissolution of the marriage, which is to say that he will seek to retain as much interest or equity in the property as possible.  In other words, the interests of the husband and wife in this scenario are diametrically opposed and cannot be congruent under any set of circumstances.

The same can be said for custody of a child or children.  In a marriage the interest of a wife are often to retain as much custodial rights and seek the maximum amount of child support permissible by statue and under current equitable distribution laws and child support guidelines in the State of Mississippi.  A husband would seek to minimize his obligation, or in some cases where a husband retains custody, to maximize the amount of he can obtain from a wife from whom he seeks a divorce.  There’s absolutely no set of circumstances in which a husband and wife can have congruent or similar interests which would not later cause an attorney to be treading in deep water if he/she is faced with a complaint for malpractice.   For this reason, Mississippi and every other state in the union prohibits an attorney from divulging that he has an equal interest  in representing both parties to either a property settlement which is part of a divorce, or a post divorce decree, or the divorce itself.  This is the way the rules should work and any exception to this should be looked upon with extreme scrutiny.  If an attorney tells you, “I can represent you and your husband/ wife in this matter and save you both costs,”  this is a major red flag and should be looked upon with extreme scrutiny as described herein.  Please call our office with any questions about similar scenarios which you or a friend may have experienced.  Hopefully we will be able to iron them out without having to seek the assistance of the Court.  However in many circumstances where an attorney has mislead a client to believe that they can simply hire one attorney to represent the interests of two people (whose interest are by definition opposed to one another) this would likely be grounds for a bar complaint and disciplinary action.  If you have any questions or concerns please call our office at any time.

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