Can My Ex Hire an Attorney I've Consulted With Previously?

Your attorney is your most powerful resource in any Florida family law case. They’ll provide you with legal advice, help you formulate the right strategy for your situation, represent you in court, and guide you through challenging experiences. Naturally, it’s in your best interests to work with the professional that’s right for you.

It may be the case that in your quest to find the right attorney, you’ve previously consulted with other law firms before connecting with your current representation. This is perfectly normal—the other attorney may not have the experience you hoped for or perhaps even your personalities didn’t quite mesh. However, what happens if your ex decides that one of your previous attorneys could be right to represent them?

This can be a concerning situation, particularly if you’re worried about sensitive information you may have divulged to your previous representative. The good news is that there are checks and balances in place to protect your interests. So, let’s take a moment to dive a little deeper into whether your ex can hire an attorney you’ve consulted with previously.

The Short Answer

So, can your ex hire an attorney you’ve consulted with previously? The short answer is yes, technically, they can. But this is only acceptable under certain circumstances. Essentially, before they can hire your former representative, they’ll need your express permission and adhere to certain Florida statutes. 

Given that having your prior attorney represent your ex can result in various complications, you shouldn’t take giving this permission lightly. No matter the case, it is vital to discuss the matter with your current attorney first, as they’ll have more nuanced knowledge of the situation and the issues that can arise. 

Nevertheless, it’s worth getting a good understanding of potential issues and considerations yourself, so you can make more informed decisions.

Conflicts of Interest

Perhaps the most important factor that dictates whether your ex hiring your prior attorney is appropriate is the potential for conflicts of interest. A conflict of interest arises when an attorney's professional obligations or personal interests could clash with their duty to be a committed advocate for their client's best interests. This is a cornerstone of the client-attorney relationship.

Undivided Loyalty

Firstly, your ex hiring your former lawyer could jeopardize the principle of undivided loyalty. Ethically and legally speaking, attorneys owe their clients a duty of undivided loyalty. This means they must prioritize their clients' interests above all others, often including their own. 

When an attorney has previously represented or consulted with one party to a divorce, there is a risk that their loyalty and advocacy may be compromised if they subsequently represent or advise the other party. This potential conflict undermines the trust and confidence that is essential to the attorney-client relationship. Not to mention that it could result in impartiality being compromised.

Florida Bar Standards

The Florida Bar’s Rules of Professional Conduct, which govern attorney conduct in the state, provide explicit guidance on identifying and addressing conflicts of interest. Rule 4-1.7 specifically addresses conflicts arising from a lawyer's personal interests or responsibilities to another client or third party. Effectively, this rule states that attorneys are prohibited from representing a client if there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client, a former client, or a third party.

It doesn’t even have to be the case that a clear conflict of interest has already arisen, either. The Florida Bar’s professionalism expectations also outline that attorneys should avoid even the appearance of impropriety. If your former attorney feels their relationship with your ex might not appear appropriate, they may have a professional duty to decline in order to mitigate the potential for conflicts to arise. Indeed, your current attorney may advise you to decline on the basis that there could be an appearance of impropriety.

Confidentiality Concerns

Perhaps the biggest concern you might have about your ex hiring your former attorney is surrounding confidentiality. During the course of legal representation, it’s not unusual for clients to share sensitive information with an attorney. This is given on the basis that attorney-client privilege will protect the client from their data being disclosed to outside parties. But could your ex be given an unfair advantage if you’ve given their new lawyer such information previously?

Technically speaking, your former attorney is obligated by ethical standards, Florida and American Bar Association rules, and legal statutes to keep your information confidential. But just because your former lawyer can’t explicitly share information with your ex, this isn’t the only way they could gain an unfair advantage. The attorney may be privy to privileged information about you or your circumstances that might affect the case strategies they recommend to your former spouse. Yes, in the best case scenario, your previous attorney will be a fair and ethical legal professional who behaves accordingly. But if you can’t guarantee this, you may well be putting yourself at a disadvantage by agreeing to the relationship.

Providing Consent

Given that your ex hiring your prior attorney can be an ethical, legal, and practical minefield, there are clear processes to follow before your ex can continue their relationship with your former attorney. Following at least these steps can prevent you from making errors that could be costly down the line.

Initiating Discussions

If your ex has chosen to hire your previous attorney, they will usually make an initial decision about whether or not this is appropriate. Should they choose to proceed, though, the next step is to contact you and your current legal counsel to initiate discussions on the matter. Your ex and their attorney should express their intentions for the representation clearly and outline the basis on which they feel the relationship is appropriate.

Assessing Potential Conflicts

You and your attorney should discuss the matter in full, establishing where there may be potential conflicts. Usually, your current lawyer will ask you what conversations you may have had with the previous attorney and what information you may have provided. This helps them to better understand how the information the other attorney has might affect the balance of fairness in the case. In some instances, the attorneys will meet one another to get more information and discuss any concerns. 

Providing Informed Consent

This is the most crucial part of the process. According to the Florida Bar regulation 4-1.7(b), representation can only proceed if both parties give their informed consent. Your attorney should explain to you in full what the potential risks and—in some instances—benefits could arise from your ex hiring your former attorney. If there’s any risk at all, they may well advise you not to agree. However, should you choose to, your attorney can arrange for your consent either in writing or verbally at a tribunal.

Establishing best practices

An experienced Florida attorney will likely inform you that unexpected complications can still arise from this situation as the case progresses. If you agree to the professional relationship continuing, it’s essential that both attorneys work together to establish best practices moving forward. These may include:

• Regular information exchanges: Your attorneys should regularly communicate with each other about progress on the case, including any developments that may complicate matters on a conflict of interest basis. This exchange of information helps prevent misunderstandings, reduces uncertainty, and allows for informed decision-making.

• Conflict resolution procedures: It may be the case that concerns arise as a result of your ex’s hiring of your former attorney. There should be clear pre-agreed conflict resolution procedures in place that are built on mutual communication and cooperation. This may include working with an independent mediator to facilitate resolution.

Effectively, even if you give informed consent, it is the responsibility of all parties involved to maintain a high standard of fairness and propriety at all times. These situations will require delicate handling and vigilance to proceed effectively. If you’re ever in doubt, having a conversation with your lawyer is the first step to get any reassurance you need and to take actions that resolve the matter.

Call The Family Law Attorneys Men Trust (813) 415-3510

In Law We Trust Divorce and Family Lawyers is a premier firm of divorce lawyers representing men in family law proceedings. We have years of experience representing men, including those who are uncertain of their ex’s representation by a former attorney. Our team’s knowledge and skills help to guide our clients through the hurdles of the Florida family law courts. Call us today and get the proper representation men need and deserve.