2023-07-31 06:00:12
Spouses who divorce without a judge can hire two lawyers from the same firm, but this is not recommended. If, after the event, one of them considers himself wronged, he should not complain. This is, in essence, the meaning of a decision that the Court of Cassation rendered on December 1, 2021 (20-16.656), without giving it publicity.
In November 2016, Mr. and Mrs. X initiate divorce proceedings by mutual consent, with a common lawyer, Me Y. In June 2017, to save time, they ask to divorce without a judge, as now allowed by the modernization law of the 21st century justice.
This text requiring them to take two separate lawyers, supposed, in place of the judge, to defend their opposing interests, Me Y asks them if they wish to change counsel. The answer is no. The Xs specify, on their agreement, that they have agreed to call on Me Z, a partner in the same firm as Me Y, to regularize the divorce. On June 22, 2017, the agreement was sent to a notary, who made it enforceable.
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A few days later, the wife, Isabelle X, asks that it be canceled, on the grounds that it would disadvantage her. In court, she assures us that the two lawyers should not have belonged to the same firm. She recalls that under the terms of the law enforcement circular, “the lawyers chosen cannot practice within the same professional structure, in order to prevent any risk of conflict of interest ».
This circular refers to the rules of ethicse of the legal profession, according to which the latter ” can not be (…) the board (…) more than one client in the same case, if there is a conflict between the interests of his clients…”. Me Y opposes the clause she signed.
The Court of Appeal of Nîmes (Gard) finds, April 14, 2020, that the spouses had, as required by law, two lawyers. It further notes that the Board may derogate from the rule stated above, in the event of“written agreement of the parties”. The decree of July 12, 2005 indeed says: “Unless agreed in writing by the parties, [l’avocat] abstains from attending to the affairs of all affected clients when a conflict of interest arises” (between man and woman), « when professional secrecy risks being violated. (lawyers from the same firm, even if they do not speak to each other, can consult all the files) “ or when his independence may no longer be complete » (if a senior lawyer promises him a promotion in return for information). The courtyard therefore dismisses Mrs. X.
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