Hiring a highly skilled attorney to handle your divorce helps lead to a favorable outcome. Unfortunately, some individuals manage to block their spouse from hiring the attorney of their choice even if they choose not to use the attorney as their own attorney. You may have heard of this tactic in popular TV shows like “Succession” or “The Sopranos.” In this article, we take a look at what “conflicting out” means, how it can affect your divorce case, and what to do.

How “Conflicting Out” Can Affect Your Divorce Case

What Is Conflicting Out?

After consulting with a divorce attorney to discuss your case, the lawyer is bound by the attorney-client privilege, even if you decide not to hire the lawyer. That means that the attorney you consult with can’t represent your spouse in the matter because they have a conflict of interest preventing them from taking up the case.

The idea is that the attorney cannot legally consult with your spouse or represent them because it might bias the proceedings and result in a more favorable outcome for one of the parties involved. According to the code of professional ethics in practicing law, once a prospective client discusses their case in detail, the attorney can’t reveal the details of it to anyone else or otherwise use those details against them.

Who Does it Apply To?

This rule generally also applies to the other lawyers in the law firm, not just the specific attorney consulted.  For example, if an attorney does a consult with the husband on the divorce case, this attorney could no longer be retained to represent the wife in the divorce case, even if the husband decides not to retain the lawyer for the divorce.  This consult with the husband then also excludes the lawyer’s partner and junior associates from representing the wife, even though they never spoke with the husband personally.  Generally, if one lawyer at a firm does a consultation with one spouse, the whole firm is excluded from being retained by the other spouse, even if the consulting spouse hires a different attorney.

Attorneys must keep records, often known as a conflict log, of whom they consult with and have represented, allowing them to screen prospective clients for conflicts. The conflict rule protects both parties involved in the divorce, ensuring that any details you share with the attorney remain private.

Conflicting out offers protection to prospective clients as it ensures that the lawyer can’t later be retained by the opposing party and use that information against you.

What constitutes the level of detail to conflict out an attorney can depend on the specific situation and type of case.  The tricky cases are often ones where someone just wants “general advice” or has just a “quick question” and often may occur in a social setting or brief interaction.  Other tricky cases may be where the prospective client decides to send specific case information to an attorney unsolicited and outside of a more formal consultation setting.  Although this may not be a technical conflict in some situations, many attorneys will still decline the representation due to the mere appearance of a conflict.

Other situations may occur where the spouse uses their former name or non-legal name for the consultation and thus the conflict log won’t necessarily show a conflict with the other party contacts to schedule a consultation and tells the attorney their spouse’s current or true legal name

Ethics & Conflicting Out

While the conflicting out rule is to protect prospective clients, some prospective clients abuse the rule to try to prevent the other party from finding local representation.  This is easier to do in smaller communities where the number of available attorneys tends to be more limited.

For example, one spouse might attend consultations with all the experienced and affordable attorneys in the area, even if they have already decided which attorney they want to hire.  As a result, the other spouse’s choice of attorneys is now very limited.  Especially if you live in a smaller community, you may be forced to pay a higher retainer to hire an attorney outside of the area as the local attorneys have all been successfully conflicted out by your spouse’s prior consultations.

Not only will you be paying a higher retainer and potentially the attorney’s additional travel time, but your spouse may have a procedural advantage if your attorney is not as experienced with your assigned judge or as familiar with some of the often-unwritten local court processes.

What to Do if You’re Conflicted Out

The good news is that most communities are large enough that there will be many good options for representation and that it would be very difficult and time-consuming for a spouse to conflict out all the top attorneys in a larger community.  However, if you reside in a smaller community or have some very unique facts to your case, the danger of your spouse conflicting out the experienced attorneys can be real.

The best approach to prevent being conflicted out is to prevent it from happening in the first place. Hire your choice of attorney as soon as possible after your spouse notifies you of their intention to file for divorce. Don’t leave the situation to unfold without taking action, or you could find yourself at a severe disadvantage in the divorce proceedings.

Additional Information: § 3-501.10. Imputation of conflicts of interest; general rule. – State of Nebraska Judicial Branch

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.