The fact of marriage does not by itself suggest a limitation on the lawyer s duties of independent judgment and loyalty. It is appropriate to view the couple as unified in goals and interests until shown otherwise. The marital relationship itself is not in most cases adversarial in nature and no conflict inherently exists in representing both parties. Generally speaking, the fact that the clients are married does not materially limit the responsibilities to either client. Therefore, it is not necessary to advise a couple of the possibility of a potential conflict unless there is evidence suggesting such advisement is appropriate.
Conflict occurs when spouses disagree on issues in which only one spouse can succeed.
The lawyer should explain that if they are represented jointly, the lawyer may assume that either the two spouses will agree or they have independence of property or other rights that do not require agreement. If the couple chooses separate representation by the lawyer, each spouse is entitled separately to the lawyer s counsel for his or her own interest. The lawyer does not mediate between them , but rather, the counseling of each with respect to his or her disposition of assets are separate lawyering transactions. For example, if there is litigation in a joint representation, each spouse is a holder of the attorney- client privilege with respect to confidential information exchanged in that representation. Litigation in the context of separate representation differs significantly because all confidential disclosures by either spouse to the lawyer outside the presence of the other spouse carry the protection of privilege from disclosure to the other spouse, as well as to third parties.