Representing a couple jointly – Potential Conflicts

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Joint Representation in Estate Planning

It is normal for the estate attorney to represent multiple clients in the same matter. In other areas of the law this is considered a likely source of conflict of interests, especially in criminal defense, and frowned upon. In the estate planning context interests are typically aligned and joint representation is often the most efficient and economical solution.
A prime example is husband and wife preparing an estate plan for themselves and their children. In this manner of speaking the estate attorney becomes the family lawyer.

Potential Conflicts in Estate Planning

Here are some examples how husband and wife may have diverging interests:

1. Discrepancies in Asset Division: Let’s say the husband and wife have different opinions about how they want their assets to be divided after their death. One might want a higher proportion to go to their children, while the other might want to dedicate more to charitable donations. If they can’t reach an agreement and decide to share their disagreements with the attorney, the attorney may face a conflict of interest in trying to support both sides.

2. Allocation of Responsibility: The husband might want the wife to be the sole executor of the estate, while the wife might feel it is too burdensome and want to share the responsibility with one or more of the children. These conflicting viewpoints might require the attorney to advocate for one client’s preference over the other, leading to potential conflict.

3. Confidentiality Issues:  Suppose the husband discloses information to the attorney regarding a hidden asset that he doesn’t want the wife to know about, or vice versa. The attorney would be in a difficult position as the information is not confidential between joint clients. If this was to occur, the attorney would have to disclose the information to both parties which could lead to conflict.

4. Future Marriage Considerations: If a spouse anticipates remarriage following the death of the other spouse, and wishes to make provision in the estate plan for a future spouse, this could create tension. The other spouse may not agree with this and could prefer their estate to go entirely to their children or other designated beneficiaries.

In all these situations, the attorney’s role would become complicated as they would need to manage both the interests of the husband and the wife. Thus, it’s important for joint clients to understand the implications of their consent to shared representation.

Ethics and Confidentiality in Joint Representation

Regardless of the possible benefits of joint representation, California attorneys, and attorneys elsewhere, are required by the ethic rules to inform their joint clients that information imparted to the attorney during the representation is only confidential to third parties (the outside world). There can be no confidentiality between the joint clients, and to this the joint clients must consent in writing. If they do not consent, they must each seek independent representation. CA Rules of Professional Conduct Rule 3-310 Avoiding the Representation of Adverse Interests.

See also: Separate clients

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