During divorces in New Mexico, each partner may need to take independent legal advice at some point during proceedings. This can help spouses settle essential matters, such as child custody and parenting, marital property division, child support, spousal support, and so on.
Under a specific code of ethics, lawyers may be “conflicted out” if they are disqualified from representing clients because of a conflict of interest. Usually, in divorce cases, this means that they are already representing the other party or, at least, have information that may prejudice decisions and preclude them from taking on the client.
Judges can also be “conflicted out” of a case, often because they previously represented one of the parties involved in the case.
How does “conflicting out” affect your divorce?
As soon as you sit down with a lawyer and start discussing private divorce matters, the attorney-client privilege is triggered, meaning that the lawyer cannot discuss the details of the case with any other interested party.
So, if your spouse later calls for a consultation with the same lawyer, the lawyer would be “conflicted out” and would need to turn the request down due to the strict ethical code they work under—even if the lawyer ends up not representing you.
This conflict-of-interest rule usually extends to the law firm that the lawyer is employed by, meaning that no other lawyer from the same firm could represent your spouse, because of the rules.
“Conflicting out” can be a particular problem in highly complex divorces, where specialist legal assistance is required and is in short supply in the region.
The issue may also be more common in smaller towns and cities where the pool of legal talent is more limited and experienced legal representation may be difficult to find. It’s relatively common in these situations for lawyers, law firms, and judges to be “conflicted out” due to past representation or relationships with divorcing parties.
If the lawyer you approach turns down your request for a consultation due to a conflict of interest, it’s best to approach another firm for legal advice and representation. Some simple, uncontested divorces without children or many assets involved may need only minor legal involvement but the majority of divorcing couples need at least some legal guidance.
When “conflicting out” becomes a dirty divorce tactic
Conflict-of-interest rules are designed to protect parties in a divorce but some unscrupulous individuals use them as a devious divorce strategy.
Some separated spouses, aware of the strict code of ethics that law firms must follow, call around all of the best firms in the area, providing just enough information on the call for the “client-attorney” relationship to start. They do this on purpose, sometimes out of anger or spite.
This underhand strategy effectively rules out the lawyer from representing his/her spouse, who may call for legal advice at a later date. This can severely limit the options for the other spouse when looking for a skilled divorce attorney.
However, if it can be proven that the spouse did this on purpose, it may count against them. An experienced divorce lawyer can present corroborating evidence and a judge may consider this if the matter ends up at trial. Many lawyers are members of multiple state bars so an out-of-state lawyer may even be an option.
It’s worth noting that no ethical attorney would recommend trying to “conflict out” your spouse by calling around all the best attorneys in the area.
Most conflicts of interest occur simply out of coincidence and are flagged instantly—both the husband and wife call the same law firm. The lawyer who recognizes the conflict of interest explains to the spouse who calls second that they have already been approached by the other spouse.
What constitutes a conflict of interest in NM divorces?
A conflict of interest refers to the ethical problems that may arise between parties with a preexisting relationship. With lawyers in divorce cases, the American Bar Association’s “conflict rule” protects both parties involved, as well as the lawyer, and helps to ensure that details shared with attorneys remain private.
Under this rule, a lawyer cannot be retained by one party and the information provided be used to benefit the other individual in the divorce. Similarly, a lawyer cannot meet for a consultation with one party in a divorce and later consult with the other party—even if they were not hired by the first party. As soon as the first meeting commences, the attorney-client privilege is triggered.
Attorneys must maintain a “conflict database” detailing whom they meet with so that potential clients can be screened for conflicts.
How do you choose a divorce lawyer?
These days, choosing a divorce lawyer is usually a process of filtering through recommendations from friends and/or family and searching online.
A potential conflict of interest should come up early in the conversation if it is a problem. If nothing is mentioned, a consultation may ensue at which you can discuss details of the divorce and what you’re hoping to achieve, timeframes, availability, rates, strategies, and so on.
You can reduce the likelihood of being conflicted out in your divorce case by meeting with a qualified divorce attorney as soon as possible after you and/or your spouse decide to separate.
For advice on your legal rights, responsibilities, and options, book a consultation with a divorce lawyer from Legal Solutions of New Mexico or call us at 505-445-4444.