89 VTEO, 83-04

• Court: Vermont

83-04 Advisory Ethics Opinion 83-04 Vermont Advisory Ethics Opinions 1983          SYNOPSIS:          Where the husband of one marriage is living with the wife of another, a lawyer may represent both of the spouses of these persons in separate divorce actions. Even if there were an impermissible conflict of interest, the consent of the clients to the dual representation would allow it as long as actual conflicts do not arise.          OPINION:          The facts of this request are somewhat complex but can be reduced to an essential few. Two married couples who we will call H1 and W1 and H2 and W2 were social friends. A couple of years ago H1 left with W2 to live together in another state. The remaining spouses both sought the legal assistance of the lawyer who has requested an opinion, one to begin a divorce action against her spouse and the other to defend a divorce action brought by his spouse. While the divorce actions were pending, H2 and W1 began living together.          During the course of the divorce action brought by W1, the lawyer for H1 suggested that the lawyer for W1 had a conflict of interest because of the contemporaneous representation of H2. The lawyer for W1 discussed the situation with both the clients and, obtaining their consent to continue, declined to withdraw from either case. The W2 v. H2 case has now been tried with H2 receiving custody of the minor children of the marriage and a support order against W2. On the eve of trial, the lawyer for H1 is again questioning the propriety of the continued representation of the lawyer for W1. As a result, the lawyer for W1 has sought the opinion of this committee as to whether he may continue to represent W1. The only issue is whether the lawyer has a conflict of interest because of the contemporaneous representation of H2.          The situation is addressed, if at all, by Code of Professional Responsibility DR 5-105(B) and (C). These provisions state:

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).

(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if

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