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Co-representation of married couples – and increasingly unmarried romantic partners – is routine practice for most estate planners, and the model is often a cost-effective and facilitating collaborative form of estate planning that can serve clients well. Unfortunately, statistics show that nearly half of all marriages in the United States end in divorce. So what happens when things go wrong and what steps should lawyers take to protect themselves and better serve their clients?
Engagement letters
Once the estate planner has overcome the hurdle of ethical considerations such as whether joint representation is permitted and desirable, the use of letters of engagement can help set boundaries and define the scope of representation, as well as explaining what happens if a conflict arises. Regardless of whether letters of engagement are required for joint representation in a particular jurisdiction, it is always a good idea. Here are four engagement letter tips for joint representation of spouses or romantic partners in estate planning matters.
Tip #1: Limit the scope of representation as broadly as possible. To the extent possible, limit the scope of representation as narrowly as possible. At first glance, this may seem counter-intuitive from a business perspective. Why would a lawyer want to limit the range of issues he or she is likely to work on and bill clients? But limiting the scope of representation can make business sense.
First, defining the scope of representation helps set good boundaries for the attorney-client relationship. A limited scope of involvement can help manage customer expectations and rule out any issues that might cause problems. Excluding potential conflict-causing issues from the scope of representation may save the attorney some major headaches if the romantic relationship deteriorates.
Second, narrowly defining the scope of representation helps to efficiently convert existing customers into former customers. If the scope of representation is open, clients can be considered existing clients for an indefinite period of time. Open engagements cause practical problems for the lawyer because the obligations that the lawyer owes to current clients are more onerous than the obligations that the lawyer owes to former clients. For example, the attorney is often obligated to notify existing clients of changes in the law that may affect the client’s estate planning. A lawyer does not typically owe this obligation to former clients.
Likewise, current customers are more likely than former customers to cause conflicts. This means that existing clients are more likely to prevent the attorney from engaging with new clients and new representations than previous clients.
One way to narrowly define the scope of representation is to limit representation to the preparation and execution of specific documents. The engagement letter could simply state that the representation is limited to the preparation and execution of certain documents, and upon execution of those documents, the relationship and representation will automatically end. If, during representation, the attorney and clients decide to expand the representation, the attorney must update the engagement letter.
Tip #2: Explain how communications and confidentiality work. The engagement letter should explain how communications and confidentiality will work in joint representations. Attorney-client franchise guarantees can help facilitate candor on the part of clients. For this reason, the engagement letter must confirm that communications between clients and the attorney are confidential and are at the attorney-client privilege. However, this confidentiality should be distinguished from the manner in which communications between attorney and jointly represented clients will take place.
In particular, the engagement letter might emphasize that the goal of the joint representation in estate planning is collaboration. The cooperation requires open and honest communication between the spouses and the attorney. The lawyer must explain that he cannot keep communications with one spouse secret from the other spouse. The engagement letter may also indicate that the rules of attorney-client privilege may not apply if a disagreement later arises between the spouses. Finally, an engagement letter may tell clients that they are obligated to notify the attorney if a conflict arises between the clients during the representation process.
Tip #3: Explain the role of the attorney. The role of the lawyer is slightly different in joint representation than in individual representation. The engagement letter should explain the role of the advocate for clients to help set good boundaries and manage client expectations. In particular, the letter should tactfully state that the attorney will not get involved in marital quarrels or take sides. Alternatively, the attorney can explain the pros and cons of the different options, but the attorney cannot defend one spouse or the other.
Tip #4: Explain what happens if a conflict arises. Finally, the letter of engagement should also explain what happens if an irresolvable conflict arises. In general, an irresolvable conflict between spouses means that joint representation must end. Indicating this possibility in the engagement letter can help manage client expectations and make it easier for the attorney to end the joint representation if the need arises later.
Whether an attorney can continue to represent either client individually after the joint representation has ended is a thorny question that depends on the facts and circumstances of the specific representation involved.
*This article is an abbreviated version of “Ethical considerations for counseling happily married coupleswhich originally appeared in the September 2023 issue of the magazine Funds and real estate.
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