Joint representation of married couples—and increasingly, unmarried romantic partners—is a routine practice for most estate planners. Often, this model of representation works well for all parties involved. Marital discord, however, can quickly throw a wrench in a joint representation. It can be hard to predict which romantic relationships will be harmonious and which ones will fall apart. Let’s discuss some of the issues that attorneys should consider when representing spouses or other romantic partners jointly in estate-planning matters.
Joint Representation Appropriate?
Before embarking on a joint representation, the attorney should answer two questions. Is the joint representation permissible? If so, is the joint representation advisable? In answering these questions, attorneys should be on the lookout for relationship red flags.
Is joint representation permissible? Whether a joint representation is permissible is primarily an ethical question. The attorney must first determine whether representing spouses jointly presents a concurrent conflict of interest. More specifically, Rule 1.7 of the Model Rules of Professional Conduct (MRPC) requires a determination of two questions: (1) is there a conflict; and (2) if there’s a conflict, is it consentable or nonconsentable? The first paragraph of MRPC 1.7 provides that a concurrent conflict of interest exists if either the “representation of one client will be directly adverse to another client” or if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”
When a conflict or a potential conflict exists, MRPC 1.7 requires the attorney to determine if it’s consentable or nonconsentable. Consentable conflicts may be waived by the affected parties. If the conflict is consentable, and if the lawyer and the prospective clients want to proceed with joint representation, then MRPC 1.7 requires the clients to give “informed consent, confirmed in writing.”
The prevailing view today is that many spousal joint representations in the estate-planning context present no conflict at all. When the spouses’ expectations and goals are reasonably aligned, a joint representation can work well. But just because potential joint clients are married doesn’t mean that no conflict exists.
Is joint representation advisable? Just because a joint representation is ethically possible doesn’t mean that it’s advisable. In deciding whether to proceed with a joint representation, the attorney should consider whether it’s really a good idea for the attorney and both of the clients. Several factors play into this determination.
The attorney should first consider whether the clients appear to be good candidates for joint representation. Spouses with incompatible estate-planning goals and expectations may not be good candidates. Similarly, spouses with blended families or unconventional family structures sometimes have incompatible estate-planning goals and would be better served by having their own individual attorneys.
Interspousal power dynamics can also complicate or prohibit joint representation. Joint representation works best when both spouses participate equally and meaningfully in making decisions. Spouses who don’t communicate well with each other aren’t good candidates. If one spouse is domineering or even abusive towards the other spouse, then a joint representation isn’t advisable. Conflicts can also arise when the spouses have significant differences in their wealth, earning capacity or views on which assets are shared.
The attorney should also consider whether a joint representation of the spouses may cause the attorney problematic conflicts down the road. For example, if the attorney already represents one spouse in connection with their business, a joint representation of both spouses for estate-planning matters that include dealing with the business may cause conflicts for the attorney later on, particularly if the clients divorce. In some cases, the risk of future marital discord is one the attorney is willing to take. In other cases, the potential for future marital discord seems so likely that the attorney should avoid the joint representation so that the individual representation relating to the business can be preserved.
Tips for Engagement Letters
Regardless of whether engagement letters are required for joint representations in a particular jurisdiction, they’re always a good idea. Here are some tips for engagement letters for the joint representation of spouses or romantic partners in estate planning matters.
Tip #1: Define the scope of the representation as narrowly as possible. To the extent possible, define the scope of representation as narrowly as possible. At first blush, this may seem counter-intuitive from a business standpoint. Why would an attorney want to limit the scope of issues that they can potentially work on and bill clients for? But limiting the scope of representation can make good business sense.
First, limiting the scope of representation helps set good boundaries for the attorney-client relationship. A limited scope of engagement can help to manage client expectations and exclude any potentially problematic conflict-causing issues. Carving out the potential conflict-causing issues from the scope of the representation may save the attorney from some major headaches if the romantic relationship sours.
Second, defining the scope of representation narrowly helps to efficiently convert current clients to former clients. If the scope of representation is open-ended, then clients may be considered current clients for some indeterminate time period. Open-ended engagements cause practical problems for the attorney because the obligations that an attorney owes to current clients are more onerous than the obligations an attorney owes to former clients. For example, the attorney is often obligated to notify current clients about changes in the law that could impact the client’s estate planning. The attorney doesn’t usually owe that obligation to former clients.
Similarly, current clients are more likely than former clients to cause conflicts. That is, current clients are more likely to preclude the attorney from taking on new clients and new representations than are former clients.
One way to define the scope of the representation narrowly is to limit the representation to the preparation and execution of specific documents. The engagement letter can simply provide that the representation is limited to the preparation and execution of certain documents and, on execution of those documents, the relationship and representation will automatically conclude. If, during the representation, the attorney and the clients decide to expand the scope of the representation, then the attorney should update the engagement letter.
Tip #2: Explain how communications and confidentiality work. The engagement letter should explain how communications and confidentiality work in joint representations. Reassurances of attorney-client privilege can help facilitate candor on the part of the clients. For that reason, the engagement letter should emphasize that communications between the clients and the attorney are confidential and subject to attorney-client privilege. That confidentiality, however, should be distinguished from the way communications will work between the attorney and the jointly represented clients.
In particular, the engagement letter might emphasize that the goal of joint representation in estate planning is collaborative. Collaboration requires open and honest communication among the spouses and the attorney. The attorney should make it clear that the attorney can’t keep communications with one spouse confidential from the other spouse. The engagement letter might also point out that the rules of attorney-client privilege may not apply if a controversy later arises between the spouses. Finally, the engagement letter might tell the clients that they’re obligated to notify the attorney if a conflict arises between the clients during the course of the representation.
Tip #3: Explain the attorney’s role. The attorney’s role is a bit different in a joint representation than in an individual representation. The engagement letter should clarify the role of the attorney to the clients to help set good boundaries and manage client expectations. In particular, the letter should tactfully explain that the attorney isn’t going to get into the middle of marital fights or pick sides. Rather, the attorney can explain the pros and cons of various options, but the attorney can’t advocate for one spouse or the other.
Tip #4: Explain what happens if a conflict arises. Finally, the engagement letter should also explain what happens if a conflict arises that can’t be resolved. Generally, an unresolvable conflict between the spouses means that the joint representation must terminate. Pointing out this possibility in the engagement letter can help manage client expectations and make it easier for the attorney to terminate the joint representation if the need later arises.
Whether the attorney can continue to represent either client individually following the termination of a joint representation is a thorny issue that will depend on the facts and circumstances of the specific representation involved.
Ethical Considerations
During the joint representation, the attorney should continue to abide by the general principles set forth in the engagement letter and should continue to keep an eye out for conflicts or red flags that might emerge during the representation.
Communications
Joint representation works best when both clients are fully and equally involved in the process. When one client routinely speaks for both clients, or when the attorney primarily interacts with only one client, problems might arise. The attorney should endeavor to include both clients in all communications to the extent possible. The attorney should include both clients on emails and other communications. Keeping both spouses actively engaged in the representation will also make it easier for the attorney to spot any potential red flags.
Advising Clients of Risks
The attorney should advise both clients of the potential risks associated with any contemplated plans or transactions. Ideally, the attorney will point out the risks associated with death, divorce or misconduct by either spouse without being specifically asked to do so by the clients. For obvious reasons, the clients may be hesitant to raise questions relating to divorce or misconduct in the presence of the other spouse. When appropriate, the attorney might remind the spouses that the scope of the attorney’s representation is somewhat limited because of the nature of the joint representation and that the spouses still have the right to engage outside, independent counsel. If the nature of the estate planning poses a serious risk to one of the spouses, then the attorney might even insist on that spouse receiving outside, independent counsel.
Red Flags
Some red flags aren’t obvious at the outset of a joint representation. The attorney must keep an eye out for any red flags that might emerge as the attorney gets to know the clients better. Any issue that might have precluded the attorney from taking on a joint representation in the first place should also make the attorney consider terminating the joint representation if it emerges later in the representation. If the attorney discovers that the spouses can’t communicate well or have fundamentally incompatible estate-planning goals, then the attorney should re-evaluate the appropriateness of the joint representation. Similarly, if the attorney suspects that one spouse is being harmed financially, physically or emotionally by the other spouse, then the attorney should reconsider the joint representation.
Terminating Representation
A joint representation must terminate whenever an irreconcilable conflict of interest arises. Divorce is probably the most obvious conflict that will usually cause a joint representation to terminate. Whether individual representation of either spouse can continue after the termination of the joint representation is a fact-specific question. The nature of the prior representation and the nature of the contemplated individual representation will determine whether the attorney can retain either spouse as a client.
A second reasonably common scenario is the discovery by the attorney that one spouse is keeping secrets from the other spouse. For example, a spouse may disclose (or the attorney may inadvertently discover) that a spouse is having an affair, hiding assets or planning for a divorce. These discoveries place the attorney in a difficult position. The attorney’s duty of confidentiality to the secret-keeping spouse is at odds with the attorney’s duties of communication and loyalty to the other spouse. Unless the secret-keeping spouse comes clean, the joint representation must terminate. As in the case of divorcing spouses, whether the attorney can continue to represent either spouse individually is a fact-specific determination.
Other issues may also emerge during the representation that make continued joint representation of the spouses untenable or undesirable. For example, unequal power dynamics between the spouses might emerge during the course of the representation that make continued joint representation ill-advised. A client who’s on the unequal end of fraught spousal power dynamics isn’t usually well served by the joint representation. The later incompetence of one of the spouses might also change the nature of the representation.
Is Client Better Served?
Joint spousal representation is a widely accepted practice in estate planning. When done correctly, the joint representation is cost efficient and facilitates a collaborative form of estate planning that can serve clients quite well. Nonetheless, attorneys should remember to always ask themselves if the joint representation is appropriate. A lot of headaches can be avoided if the attorney takes the time to put themself in the client’s shoes. The attorney should ask themself, if I were this client would I be better served by having my own attorney?