Ethics Committee seeks views on joint retainers in divorce actions

In 1989 the Ethics Committee (then called the Professional Standards Committee) published an opinion in the Benchers' Bulletin that lawyers should not act for both spouses in bringing a joint action for divorce under then Rule 9.1 of the Divorce Rules. In 2000, after consultation with the CBA Family Law Section, the Ethics Committee reaffirmed that opinion: see the October-November, 2000 Benchers' Bulletin.

The rationale for the Committee's opinion was that the potential for disagreement to emerge between the parties in family law matters, even after both spouses have received independent legal advice, made it unsafe for one lawyer to act for both parties. The Committee was of this view, notwithstanding that section 8 of the Divorce Act and Rule 60(11) of the Supreme Court Rules contemplate the filing of joint actions in some circumstances, although not necessarily by lawyers.

Section 8 of the Divorce Act provides:

8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Rule 60(11) of the Supreme Court Rules states:

(11) Joint Action for divorce - Spouses may commence a family law proceeding jointly, without naming a defendant, if they claim an order for divorce and no other orders except by consent.

Since the opinion of the Ethics Committee on joint retainers in divorce actions was published in 2000, the Committee has received a number of representations from lawyers that the opinion is unnecessarily restrictive and ought to be reconsidered for some circumstances. Before it reviews this issue, the Ethics Committee invites comment from the profession.

Lawyers who wish to comment should contact:

Jack Olsen
Staff Lawyer - Ethics
Law Society of British Columbia
8th Floor, 845 Cambie Street
Vancouver, BC V6B 4Z9
Tel. (604) 443-5711 or 1-800-903- 5300 (toll-free in B.C.)