Can My Ex Hire an Attorney I Consulted? (Conflicting Out)

Once you consult a divorce lawyer, even just for a single session, it's likely they'll have learned some private or sensitive information about you that relates to your divorce. This knowledge would cause a conflict of interest for them were they to go on to represent your spouse. Your spouse probably can't hire them.

A lawyer is allowed to refuse to take on someone as a client. Possible reasons are that the lawyer doesn't feel qualified to handle their issue or that the person can't afford their rate. There are also situations in which they must refuse to take them on as a client, including when the lawyer is aware of a conflict of interest.

Conflicting out divorce lawyers

"To conflict out" a lawyer means for one spouse to intentionally cause the lawyer to be unable or unwilling to represent their ex. When they anticipate that their ex might hire the lawyer, they cause the lawyer to have a conflict of interest that puts that attorney–client relationship out of consideration.

This tactic involves "shopping" to meet with several lawyers who are considered "the best" (in an area with lots of options) or meeting with all the lawyers close by (in a rural area).

Because many lawyers charge for initial consultations, this is an expensive trick to play. Some people spend their money this way because they feel it's worth it to annoy their spouse or because they believe it will lead to a better outcome in their divorce.

Why you shouldn't conflict out a lawyer

Like other mean and dirty tricks, "conflicting out" lawyers is vindictive. While someone may frame it as intended to help themself and their child, mostly it just hurts their spouse.

Preventing your spouse from getting a lawyer may not work in your favor, since lawyers (even your spouse's) are generally helpful to the process overall. By knowing the next court steps and e-filing the proper documents, lawyers can speed the path. Many are also skilled at negotiation and can help reach a reasonable settlement.

If your spouse has trouble finding a lawyer who can represent them well, their side of the court case may be slower and messier. That won't help you or your child.

What counts as a lawyer's conflict of interest

In the U.S. and Canada, each state or provincial bar association has its own rules for what's considered a conflict of interest. For example, the Law Society of Saskatchewan says a lawyer who has "acted for" someone can't "act against" them in the same divorce or any related case, though they can act against them in a "wholly unrelated" case.

In Australia, the Solicitors' Conduct Rules prevent solicitors from using a former client's confidential information if it's "detrimental to the interests of the former client" (unless the former client gives informed consent).

In the U.K., divorce solicitors are conflicted out of working with someone after meeting just once with their spouse within a "working relationship." Similarly, in Ireland, a solicitor can't act for someone after gaining information from a "prior solicitor/client relationship" if it creates "an unfair advantage or the perception of unfair advantage."

The potential conflict may increase if both spouses have or will pay the lawyer; for example, the North Carolina bar has a rule about the "interest of person paying for a lawyer's service."

Some lawyers shy from the mere appearance of a conflict of interest, and so if they've met with one spouse at all (regardless of what was discussed or whether they were paid), they will refuse to represent the other spouse.

When you've shared confidential information

Whether you've conflicted out a lawyer may depend on the details you've shared with them. If you don't share anything sensitive, the lawyer may have no conflict of interest in going on to represent your ex.

For example, if you speak to the lawyer only briefly and provide basic facts like "We were married in this county six years ago, we have two kids and one of us may soon file for divorce," the lawyer may still be able to represent your ex.

But if you provide more sensitive information, especially about something your spouse doesn't know, the lawyer would have a conflict of interest in representing your ex. The lawyer has to honor your confidentiality. For example, you might tell the lawyer:

• "My husband isn't the biological father of our child, and he has no idea."
• "I had an affair, and my spouse never found out."
• "I recently realized I'm gay, and I haven't told my spouse about my feelings."
• "I'm hiding cash for myself so I can walk away from the marriage in financial comfort."
• "I trashed some important mail that was addressed to my spouse."
• "I figured out my spouse's online passwords."
• "I plan to ask for full custody but am keeping that secret."

In these situations, it would be wrong for the lawyer to go on to represent your spouse. Knowing your secrets while representing your spouse would put the lawyer in an impossible ethical situation that's called a conflict of interest.

First, because you shared the information in a confidential context, the lawyer could never directly share it with your spouse.

Even if the lawyer were committed to keeping the secret, they'd be at risk, since if your spouse found out the secret on their own, others would suspect the lawyer of having disclosed it or having subtly guided someone to "discover" it.

At the same time, the lawyer couldn't just go on keeping your secret from your ex if they had your ex as a client. It wouldn't be right for them to pretend they didn't know certain facts that could help their client's case. They'd be required to represent their client's interests to the best of their ability.

There's no way to resolve that dilemma, and that's why they simply wouldn't take on your spouse as a client.

Even if your spouse does already have the information, they may not think to mention it. (Perhaps they don't realize it's legally relevant.) In that situation, the lawyer knows something your spouse isn't saying, which is a bit like knowing a secret, as the lawyer has to decide whether to bring it up. The lawyer suffers the same dilemma.

Agreeing to let a lawyer represent your spouse

Sometimes a lawyer is allowed to take a divorce client despite having previously spoken with the person's soon-to-be-ex, as long as both spouses give their informed consent.

In Florida, for example, under the Rules of Professional Conduct, a lawyer can't "use or reveal" information they got from a prospective client even if they never had a client–lawyer relationship with that person. The exception is if the lawyer gets the written informed consent of both spouses.

Deciding whether to hire a lawyer

Since legal representation is expensive, it's common for people to struggle with how to pay for a divorce lawyer. A relatively cheap approach is to have a brief legal consultation. Anyone can benefit from a legal consultation — if they seek it in good faith. Use a legal consultation to educate yourself about your options, not to hurt your ex.

Many people end up not hiring a lawyer. Though you may find the court process challenging, in principle, you can represent yourself if you know and follow the court rules.

When only one spouse has a lawyer

Having an experienced family lawyer represent you in your divorce gives you an advantage. They advocate for your interests, keeping your child's well-being in mind.

However, that doesn't necessarily mean you'll be better off by preventing your spouse from getting a lawyer.

A Custody X Change study found that cases in which only one spouse had a lawyer (compared to cases in which they both had lawyers) were less likely to reach a settlement, less likely to result in joint physical custody of the child, and on average took much longer.

An unrepresented spouse — especially if the divorce is amicable or at least uncontested — may choose to listen to their ex's lawyer and cooperate with their suggestions. Nonetheless, the lawyer only represents the person who hires them. The unrepresented spouse cooperates at their own risk.

Parenting tools when your spouse is conflicting out lawyers

You need a comprehensive parenting plan and detailed parenting time schedule when you don't trust the other parent.

Creating a plan and schedule on your own can feel overwhelming. Let technology take the guesswork out of the equation.

The Custody X Change app walks you through each step of creating a comprehensive parenting plan. With it, you can easily create a parenting time schedule from templates or from scratch.

Features like the messaging center, expense tracker, parenting journal and parenting time tracker help you stay organized and document everything.

You can customize this with Custody X Change.

Secure your children's well-being with Custody X Change.