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Ethical Implications of Joint Representation in Estate Planning
Attorneys who practice in the area of estate planning are often requested to represent both spouses. Florida Bar Ethics Opinion 95-4 addresses the potential ethical issues which may arise when an attorney represents both spouses in estate planning and one spouse requests the attorney to keep a confidence from the other that negatively impacts the other spouse and the marital relationship. The facts in Ethics Opinion 95-4 were that the attorney had represented both spouses for many years on many personal matters, including estate planning. Both spouses had substantial individual and jointly-held assets and had always shared information with each other and the attorney. The attorney always met with both spouses together about their wills and they had recently executed updated wills prepared by the attorney. The new wills, like the earlier ones, primarily benefited the survivor for life with benefits then shared equally by their children at the death of the survivor. Neither spouse had previously requested the attorney to keep any information secret from the other and there was never any discussion about what attorney would do if one spouse requested that information be kept secret from the other spouse. Several months after the execution of the new joint wills, the husband met alone with the attorney and revealed that he had recently executed a codicil prepared by another law firm which provided substantial benefits to a woman with whom he had been having an extra-marital relationship. The husband wanted advice regarding the wife’s rights of election if she survived him. He told the attorney that his wife did not know anything about the relationship or the new codicil and prohibited the attorney from advising the wife. The attorney was not required to initially discuss issues regarding confidentiality at the outset of the representation since there was no objective indication that the interests of the spouses diverged or that any conflict was reasonably likely to arise until the husband disclosed the codicil and relationship. In addition, the joint representation of spouses in estate planning does not automatically create a conflict of interest under Rule 4-1.7, Rules Regulating The Florida Bar; however, the attorney must discuss any conflicts that are apparent at the onset or become apparent during the representation. Once the husband tells the attorney about the codicil and extramarital relationship and prohibits disclosure to the wife, the attorney's obligation of confidentiality to the husband prohibits disclosure of the information to the wife. The confidentiality obligation to the husband prevails over the duty of communication to the wife and the attorney must immediately withdraw from representing both spouses in the estate planning matter. The attorney must inform both spouses that a conflict has arisen that precludes continued representation of either spouse in the estate planning matters and may also advise them that each should retain separate counsel. Attorneys should also be aware that acquiescence to a spouse or family member's request to keep estate planning decisions secret from the other spouse may be grounds for legal malpractice liability. In a recent Texas lawsuit, a law firm was found liable by a jury for legal malpractice with a $3 million dollar judgment in an estate planning matter where the wife's mother, who was a long time client, requested the firm to prepare a new will for her daughter cutting the husband out and making the mother the personal representative and beneficiary. The firm had previously represented both spouses in preparing the joint wills and did not advise the husband of the changes to the wife's will which removed him as a beneficiary. The better practice would seem to be to avoid such joint representation of spouses in estate planning, if practicable. If joint representation is undertaken, the attorney should initially discuss with both spouses the potential conflict and the attorney's ethical obligations if one spouse wants to secretly change the will. This may prevent the conflict from occurring later and will clearly advise the spouses of the issues and duties involved. A general conflict waiver would not cover this situation since the attorney's duty of confidentiality prevents the disclosure to the other spouse and creates a conflict which cannot be resolved with disclosure and a waiver and consent. If such a conflict arises, the attorney must keep the spouse's confidences and withdraw from representing both spouses. |
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