LEO: Divorce - Multiple Representation -  LE Op. 1156

 

Divorce - Multiple Representation - Unrepresented Party:

Preparation of Tax Returns Not Substantially

Related to Divorce Proceeding.

 

January 31, 1989

 

You have advised that you had represented a wife in a no-fault divorce

action against her husband in which you prepared a stipulation and

property settlement agreement for both to sign. Neither you nor your

client knew whether the husband was represented by counsel at the time.

Later, you learned from your client that the husband had not signed the

agreement in an attempt to delay the divorce proceedings. As there were no

children born of the marriage, the wife decided to wait a year and obtain

a divorce based on the statutory requirements of living separate and apart

for one year. During the course of your representation of the wife, your

client brought a joint tax return which her husband's accountant had

prepared for your review. After reviewing the tax return, you recommended

that the parties file separate returns. At the instruction of your client,

who advised you that her husband had no objection to this method of filing,

you prepared separate returns in lieu of the joint return.

 

You wish to know whether the act of generating separate tax returns for

your client's husband, the adverse party, created an attorney/client

relationship between you and the husband and, further, whether it is

proper for you to now represent the wife in a no-fault divorce action.

 

Under the limited facts presented in your inquiry, the Committee would

opine that preparation of tax returns under the circumstances you have

described may be construed to constitute the practice of law and may

create an attorney/client relationship to the extent that the lawyer is

providing advice and service for another which requires his use of legal

knowledge or skill. However, assuming that the husband is an unrepresented

party, the preparing of the tax return by the wife's attorney with the

consent of both parties may be ethically permissible providing that the

unrepresented party is advised that the aforementioned attorney represents

the interests of the wife whose interests are or may be differing to those

of the husband, and that the husband may secure separate counsel. (See

DR:7-103(A)(2))

 

The Committee is of the opinion that even if the preparation of the

husband's separate tax return did create an attorney/client relationship,

the representation of the wife in the no-fault divorce proceeding is not

substantially related to the tax preparation and, therefore, no conflict

exists in continuing the divorce representation of the wife. (See DR:5-

105(D))

 

Committee Opinion January 31, 1989

 

CROSS REFERENCES

 

See also LE Op. 1313, LE Op. 1326, and LE Op. 1389.