When a marriage is in trouble, it's not unusual for a spouse to consult with an attorney. Often, spouses do this simply to learn more about their rights, responsibilities, and what their divorce case might involve. If you've already consulted with an attorney, and it looks like a divorce is inevitable, you may very well consider hiring your consulting lawyer to handle your case. The question is whether you can--and whether you should.
What Could Prevent You from Hiring the Consulting Attorney?
Normally, hiring the attorney you previously consulted shouldn't be an issue. In fact, many times it makes the most sense, since the attorney already has an idea of what your case is about, and you've gotten to know each other to some degree.
However, a problem can arise if a conflict of interest exists. For example, let's say that, unknown to you, your spouse spoke with this same attorney at some point. When you both consulted the lawyer, you probably expected that your conversation would be confidential. In that case, and if you both provided specific information about your marriage--whether it be facts surrounding the grounds (reasons) for the divorce, or your finances, or child custody issues--the law prevents the attorney from representing either of you in a divorce.
The reason is that once you share this information with a lawyer, it usually establishes an attorney-client relationship. This could be true even if the consultation was free and you never signed a retainer agreement. And, by law, an attorney can't represent two clients with competing interests. Not only can this lawyer not represent either of you, neither can any other attorneys in that individual's law firm. Normally, even a consulting attorney would check for conflicts before talking to a potential client, so this is an unlikely scenario, but sometimes an intake officer, receptionist, or the attorney may have missed the initial conflict or failed to ask the right questions. The bottom line: If there's a conflict, the consulting attorney can't represent either spouse in the divorce.
There is one widely acknowledged exception to this rule, and that is when one of the spouses signs a written waiver of the conflict of interest. In short, this spouse acknowledges that the possibility of a conflict exists, but, despite that, agrees to allow the attorney represent the other spouse.
Should You Retain the Consulting Attorney?
The fact that you can hire the attorney you consulted with doesn't necessarily mean that you should. The divorce process is usually a lengthy one, sometimes taking a year or more to complete. And, during that period, you'll be spending a lot of time with your lawyer, so it's important you're as sure as possible that you and your attorney are a good fit. In that regard, there are certain things you should look for.
First, the lawyer has to be knowledgeable about divorce law. Dispensing general advice based on what someone may remember from law school is very different from handling the nuts and bolts of a real divorce case. Clients are well within their rights asking potential lawyers about their family law experience.
You'll also want to know that the attorney will listen to you. Divorce is an emotional roller coaster, so it's important that your attorney can empathize with you--yet still be objective. If you're dealing with a lawyer who's constantly talking over you, think twice about the relationship.
In divorce law today, there's an emphasis on establishing a level playing field and ensuring, as best as possible, that the final outcome is fundamentally fair to both spouses. With that in mind, beware of the divorce lawyer who has a "take no prisoners" approach. Obviously, you want an attorney who will protect your interests, but a lawyer can do that without having a "warrior" mentality. In the end, a hostile attitude typically leads to higher legal fees and an end result that's no different than what you'd have achieved had you retained someone more even-tempered.
Finally, keep in mind that it's not a lawyer's job to make choices for you. Your attorney should lay out your options, and then leave the ultimate decision to you. It's your life.
If you have any questions about divorce procedures, you should speak with an experienced, local divorce lawyer.