A highly skilled divorce attorney is absolutely necessary for a complex divorce. Finding a top attorney usually means asking friends, checking with attorneys used for other matters, and getting referrals. Then the next step is to take a few meetings and evaluate the options. You then hire an attorney to represent you in the divorce. Unfortunately, some people not only seek out and hire the best attorney for themselves but also manage to block their spouse from being able to hire a top attorney as well.
Choosing Your Attorney
Intricate divorce cases involve complex issues such as custody, identification and division of the couple's assets and debts, business valuation, spousal support (sometimes called alimony), and child support. Attorneys must be skilled in all these areas and have a deep understanding of brand, media, and public image. The more complex the divorce, the smaller the pool of attorneys available who have relevant experience and skills, so couples in these situations may find there are a handful of attorneys to consider who are the best of the best.
When you interview attorneys to represent you in your divorce, you'll want to set aside at least half an hour to an hour to confer with an attorney you are considering.
Make sure to ask about:
- Availability and time frame
- Experience handling high net worth/high visibility cases
An important part of the consultation will be offering some information about your case and your situation so that the attorney can get an idea about the issues involved, how complex the case will be, and which items are unresolved. This also allows the attorney the opportunity to discuss the strategy they will recommend for your case as well as an opinion about the potential outcomes and their evaluation of the strength of your position.
Once you meet with an attorney for a consultation and discuss your divorce case with them, they are bound by attorney-client privilege, even if you do not hire that attorney. This means that once you discuss your case with that attorney, they usually cannot or will not speak with or represent your spouse because there would be a conflict of interest (or at least the appearance of a conflict).
Professional ethics dictate that once a potential client has discussed a case, that attorney cannot discuss the case with anyone else. The rule applies not just to the actual attorney that speaks with the client, but to the entire law firm. If one attorney at a firm speaks with or is hired by one party in a divorce, no one else at that firm can speak with the other party.
Attorneys are required to maintain records (called a conflict database) of whom they meet with so they can screen potential clients for conflicts. If your spouse contacts an attorney with whom you have already spoken, then that attorney or anyone at the firm will not be able to meet with or represent your spouse in your divorce.
This rule is designed to protect everyone. It protects you because any information you shared remains private. It protects your spouse by ensuring that they do not speak with an attorney who may be representing the other side and could use them to seek information to benefit their client. It also protects the attorney from making ethical mistakes, such as letting slip something you told them in confidence if they meet with your spouse.
Conflicting Out and Ethics
While conflicting out is essential to prevent conflicts of interest by an attorney in a divorce case, some unscrupulous clients and attorneys try to take advantage of this rule to gain an advantage. When a couple decides to divorce (or even if only one spouse decides they want a divorce and have not yet told the other spouse), one spouse will be the first to look for an attorney.
Spouse #1 might interview two or three attorneys and choose one. The other attorneys (and anyone at their firm) the spouse spoke with then cannot represent Spouse #2 should they attempt to contact them. To gain an advantage, Spouse #1 might decide to make appointments with all the top law firms in the area to prevent Spouse #2 from being able to retain any of them. Spouse #1 could also hire an attorney immediately, and this attorney could encourage them to make the rounds of the other notable firms to conflict them out. Spouse #2 then would have a very difficult time finding a qualified attorney who could take the case.
It has been reported in the media that supermodel Heidi Klum undertook this strategy in her 2012 divorce from singer Seal. She allegedly met with a large number of top divorce attorneys in L.A. to prevent Seal from hiring them.
This strategy was also recently portrayed in Dirty John: The Betty Broderick Story mini-series (based on a true story). Dan Broderick was a well-known San Diego attorney and president of the area bar association. He divorced his wife Betty and conflicted out so many attorneys that she was forced to hire an attorney from out of the area. She eventually represented herself. The tactic was also portrayed in the 2019 Netflix film, Marriage Story.
Conflicting out can significantly reduce one spouse's options when it comes to adequate legal representation. The more specialized and detailed the case, the fewer attorneys in one city with the experience and ability to handle the case. Once a spouse conflicts out most attorneys and law firms, it can leave the other spouse with very few options for skilled legal representation.
How to Proceed if You Are Conflicted Out
If possible, the best way to deal with being conflicted out is to prevent it. Hire an attorney as soon as possible so you can avoid this problem. As soon as divorce is even something you are considering, set up some appointments to interview some of the best candidates so that you get your name on the books at their firm.
If you find yourself in a situation where you are conflicted out from using the top attorneys in your area, the best solution is to find an even better attorney from out of the area. Many attorneys are admitted to the bar in several states. If you find that all the attorneys or law firms you want to meet with in your city are not available, there are attorneys in other cities and states who could provide excellent representation. You will likely incur additional costs due to the required travel, but your savvy attorney may be able to ask that your spouse pay those costs since they created the situation.
Conflicting out is an unscrupulous tactic that ethical attorneys do not recommend or suggest. You will be best served in your divorce by finding a highly skilled attorney who has the experience, knowledge, and confidence to represent your case on its merits and obtain the outcome you desire without any underhanded tricks.