“I need to discuss something about my case, but my divorce lawyer is out of town. Can I just call my spouse’s lawyer?”
You might wish to do this for the sake of convenience, but in fact the answer is no. There are two main reasons for this. First of all, your spouse’s lawyer cannot give you factual information about your spouse’s case, because that information is confidential. Secondly, every lawyer has a duty to avoid a conflict of interest.
Your spouse and his or her lawyer are in a solicitor and client relationship, and this relationship creates a duty of confidentiality in the lawyer. The lawyer cannot render effective professional service to your spouse unless there is full and unreserved communication between them. Your spouse must be able to feel completely secure in the knowledge that matters disclosed to or discussed with his or her own lawyer will be held in strictest confidence. This duty of confidentiality survives the professional relationship and continues indefinitely. While you might have no intention of asking your spouse’s lawyer for confidential information when you call, your spouses’ lawyer would not want to take the chance that such information could emerge in the discussion, or even that your spouse might say that it emerged when it did not.
Conflict of Interest
In Ontario, Rule 2.04(2) of the Rules of Professional Conduct states that: “A lawyer shall not advise or represent more than one side of a dispute.” Accordingly, your spouse’s lawyer must represent only your spouse. There would be a conflict of interest if he or she also gave advice to you, as spouses’ interests often conflict in a matrimonial case.
In adversarial proceedings, a lawyer’s function as advocate is openly and necessarily partisan, and does not involve assisting an adversary.
You may have heard that in a collaborative divorce process, the two spouses and their respective lawyers will meet together at times, to try to work out a solution. In these meetings, the two lawyers might agree to present legal information to both you and your spouse at the same time, about what the law is on a particular issue. Note that neither lawyer is providing legal advice to a non-client, but rather general information about the law. Also note that both lawyers are present in the room, so they both know what was said.
At the end of most matrimonial cases, a Separation Agreement will be signed, and each lawyer will be asked to sign and append a Certificate of Independent Legal Advice. This Certificate includes a statement that your lawyer represented only you, and not your spouse. Likewise, your spouse’s lawyer will certify that he or she represented only your spouse, and not you. Both you and your spouse benefit from having these Certificates appended to your agreement, as they strengthen the settlement and make it harder for either person to try to overturn it.
Jill McLeod is a Toronto area lawyer and mediator who practices family law, mediation and Collaborative divorce. In addition to her Bachelor of Laws (1979), she also holds a Master of Laws, specializing in Alternative Dispute Resolution (2001).