As an estate planner and a lawyer, it is important to remember that when creating an estate plan, familial relations may turn negative. It becomes crucial for estate planners to ensure that their instructions are complete, in order to protect themselves in the case of a family fight.
Often, in the process of a married couple jointly retaining a lawyer to prepare their wills, “mirror wills” are prepared. Mirror wills typically provide for all estate assets to pass to the surviving spouse.
An issue arises in the case of a lawyer who prepares mirror wills and one of the spouses decides to make a change, adversely affecting the other spouse. What are the lawyer’s ethical obligations?
Pursuant to the Rules of Professional Conduct, Rule 3.3-1 states that a lawyer has an ethical obligation to hold in confidence all information concerning their clients, and Rule 3.4-1 creates an ethical obligation to avoid conflicts of interest.
It is important, therefore, that when acting for a married couple, the lawyer outlines his or her ethical obligations, and specifically, if applicable, outlines that they are acting in a joint retainer. Rule 3.4-5 outlines the ethical obligations of a lawyer in the case of a joint retainer:
Before a lawyer acts in a matter or transaction for more than one client, the lawyer shall advise each of the clients that:
(a) the lawyer has been asked to act for both or all of them;
(b) no information received in connection with the matter from one client can be treated as confidential so far as any of the others are concerned; and
(c) if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely.
While outlining the joint retainer rules to a client, it is important that the lawyer considers what they would do in the case of one of the spouses asking the lawyer to alter a mirror will. While the lawyer could refuse to draft a new will, the requesting spouse may be able to find another lawyer to do the will, and the lawyer will still have the issue of whether or not to tell the disadvantaged spouse. This may give rise to a conflict of interest.
The second Commentary to Rule 3.4-5 specifically contemplates and guides the lawyer acting for a married couple as to what should happen in this scenario. Simply put, any subsequent communication to change the will by one of the spouses would be “treated as a request for a new retainer and not as part of the joint retainer.” The lawyer would therefore have a duty to decline the new retainer unless the other spouse consented to the change.
The critical issue is that this possibility must be conveyed to the spouses at the outset of the joint retainer.
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