Elder Law Ethics and Joint Representation

Article written by John C. Newman, Esq.
Posted on Sep 14, 2012

During our seminar at the March 2008 Bar Meeting, we had a lively exchange on the potential ethical pitfalls of joint representation. To further this discussion, we would like to offer some language that you might consider for your estate planning joint engagement letters. As always, this is not intended as legal advice, but rather the starting point for your own reflections.

II. Conflicts; Confidentiality; Communications

A husband and wife might have competing interests when their estate plan is being prepared. If, as you have requested, we are to act as attorneys for the both of you, we must try to balance all interests, under your joint direction, and we cannot, therefore, be an advocate for just one or the other of you. A plan can often be devised that would favor one spouse over the other, but that is not our aim. Our aim is to represent you both, together, as best we can.

In addition, we must necessarily obtain confidential information from each of you. As your joint representative, you have the right to know what we know about both of your estates . Because we will be representing both of you, we wish to inform you that cannot keep information confidential from either of you. If one of you tells information that you do not wish to share with the other, this communication will threaten our ability to represent both of you. Consistent with the Rules of Professional Responsibility, depending on the relevance and significance of the information, we may have to withdraw from representation or inform the other spouse.

We must make recommendations that affect your property interests after your deaths. If you have ever lived in a community property state, a substantial conflict may exist in the determination of what is community property and what is separate property. That determination may be more beneficial for one of you than for the other. The possibility of a divorce must also be recognized. Consequently, our present recommendations could affect the income, property and support provisions in any such divorce.

We feel obligated to inform you about these potential conflicts, so that you can decide whether you want us to represent you both when we prepare your estate plan. Of course, you are each welcome to have your own counsel for any part or all of the matters which we are discussing. Unless we hear otherwise, we will continue to represent both of you as you have requested.

In order to offer the most flexibility and ease of communication for our clients, we typically communicate with our clients via e-mail for those of our clients who utilize the Internet. We do not encrypt our e-mail but believe that we have incorporated current methods for ensuring confidentiality . By your signature below, you are authorizing us to send you communication via e-mail if you provide us with your e-mail address. If you do not wish us to communicate with you or others involved in the subject matter of this retainer letter via e-mail, please advise us specifically; otherwise, after your signature of this engagement letter, we will assume that you have no objection to our utilization of email communication with all parties involved in the matter.

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