Dependency and Delegation: The Ethics of Marital Representation

The two hypotheticals for this symposium concern a lawyer who is asked to represent a married couple in which one spouse would like to cede decision-making authority to the other. As we have examined the lawyer's ethical responsibilities, we have identified two distinct, but conceptually related, issues of legal ethics. The first, a threshold question, deals with the nature of marital representation: May a lawyer simultaneously represent both husband and wife? And if so, how should the representation be structured?

The second adds an additional layer of complexity: If a lawyer represents both husband and wife, may the lawyer accept one spouse's delegation of decision- making authority to the other within the representation? And if so, what are the parameters of the delegation?