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
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-
Committee Opinion January 31, 1989
See also LE Op. 1313, LE Op. 1326, and LE Op. 1389.