We usually agree to joint representation of spouses in estate planning. Most married couples would be surprised to hear that there is any controversy or concern about that kind of arrangement. But joint representation is actually an ethical challenge for lawyers.
We try to make sure married couples understand that there are tradeoffs in having us represent both spouses. This is true for any lawyer, incidentally. Your lawyer owes you a duty of disclosure AND a duty of confidentiality. That usually works just fine when a married couple is in agreement about their plans, and willing to waive any conflict. But we don’t know that the joint representation will remain appropriate for the long haul. If and when things change, it may be too late to pull away from the dual role.
We are generally comfortable if married couples agree to waive the potential conflict. And we are not interested in creating conflicts where none exist. But it is usually not such a simple concept to create joint representation. Once we do embark on the arrangement, we remain alert to the possibility that things might change.
How do we know that there is a growing problem? Perhaps one spouse calls and asks whether they could unilaterally change their estate plan. Or they tell us that they are separating from their spouse, or that their spouse has become demented. In each of those circumstances, joint representation can be a concern, and we may have a duty to disclose the contact to the other spouse. And that may be true even if there has been a prior waiver of the conflict.
And, by the way — the exact same concerns arise in joint representation of unmarried couples. Except, perhaps, that there is an even higher likelihood of things getting crosswise down the road.
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