Joint representation of married couples—and increasingly, unmarried romantic partners—is a routine practice for most estate planners, and the model is often cost efficient and facilitates a collaborative form of estate planning that can serve clients quite well. Unfortunately, statistics show that nearly half of marriages in the United States end in divorce. So, what happens when things go south and what steps should attorneys take to protect themselves and better serve their clients?
Once an estate planner overcomes the hurdle of ethical considerations such as whether joint representation is permissible and whether it is advisable, the use of engagement letters can help set boundaries and lay out the scope of representation, as well as explain what happens if a conflict arises. Regardless of whether engagement letters are required for joint representations in a particular jurisdiction, they’re always a good idea. Here are four 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.
*This article is an abbreviated version of “Ethical Considerations for Advising The (Un)Happily Married,” which originally appeared in the September 2023 issue of Trusts & Estates.