Joint illustration of married couples—and more and more, unmarried passionate partners—is a program apply for most estate planners, and the design is generally charge productive and facilitates a collaborative variety of estate setting up that can provide consumers pretty well. Unfortunately, figures display that just about half of marriages in the United States conclusion in divorce. So, what happens when things go south and what actions ought to attorneys just take to protect by themselves and far better provide their consumers?
Engagement Letters
The moment an estate planner overcomes the hurdle of ethical issues this kind of as whether or not joint representation is permissible and no matter whether it is advisable, the use of engagement letters can assist set boundaries and lay out the scope of representation, as properly as clarify what occurs if a conflict occurs. Regardless of regardless of whether engagement letters are necessary for joint representations in a individual jurisdiction, they are usually a fantastic strategy. In this article are four suggestions for engagement letters for the joint illustration of spouses or passionate partners in estate organizing matters.
Suggestion #1: Outline the scope of the illustration as narrowly as feasible. To the extent achievable, outline the scope of representation as narrowly as probable. At initial blush, this may seem counter-intuitive from a business standpoint. Why would an lawyer want to limit the scope of troubles that they can most likely do the job on and invoice clientele for? But limiting the scope of representation can make great organization sense.
To start with, limiting the scope of representation assists set fantastic boundaries for the lawyer-shopper romance. A restricted scope of engagement can help to control customer expectations and exclude any most likely problematic conflict-causing issues. Carving out the likely conflict-producing issues from the scope of the illustration might save the lawyer from some significant complications if the intimate romantic relationship sours.
2nd, defining the scope of illustration narrowly aids to effectively transform present-day shoppers to previous shoppers. If the scope of representation is open up-finished, then customers may perhaps be deemed present shoppers for some indeterminate time period of time. Open up-finished engagements cause practical issues for the lawyer for the reason that the obligations that an lawyer owes to current shoppers are extra onerous than the obligations an legal professional owes to former consumers. For illustration, the legal professional is typically obligated to notify present-day purchasers about modifications in the regulation that could effect the client’s estate setting up. The attorney doesn’t commonly owe that obligation to former clients.
Likewise, recent clientele are more probably than former shoppers to lead to conflicts. That is, present clients are much more probable to preclude the attorney from having on new consumers and new representations than are previous shoppers.
A single way to define the scope of the representation narrowly is to limit the representation to the preparing and execution of certain paperwork. The engagement letter can basically supply that the representation is minimal to the planning and execution of selected files and, on execution of all those documents, the romantic relationship and representation will quickly conclude. If, throughout the illustration, the lawyer and the customers make a decision to grow the scope of the illustration, then the attorney must update the engagement letter.
Tip #2: Clarify how communications and confidentiality work. The engagement letter should really describe how communications and confidentiality operate in joint representations. Reassurances of legal professional-consumer privilege can help aid candor on the element of the purchasers. For that explanation, the engagement letter ought to emphasize that communications between the consumers and the legal professional are private and topic to lawyer-shopper privilege. That confidentiality, nevertheless, ought to be distinguished from the way communications will do the job involving the attorney and the jointly represented clientele.
In particular, the engagement letter might emphasize that the goal of joint representation in estate arranging is collaborative. Collaboration calls for open up and honest conversation among the spouses and the attorney. The attorney ought to make it distinct that the lawyer can not maintain communications with one husband or wife private from the other wife or husband. The engagement letter may possibly also issue out that the policies of attorney-customer privilege may perhaps not apply if a controversy afterwards occurs in between the spouses. At last, the engagement letter may possibly inform the shoppers that they are obligated to notify the attorney if a conflict arises involving the customers through the study course of the illustration.
Suggestion #3: Make clear the attorney’s function. The attorney’s function is a bit unique in a joint representation than in an particular person representation. The engagement letter really should explain the role of the lawyer to the clientele to aid established very good boundaries and control consumer expectations. In distinct, the letter need to tactfully reveal that the legal professional isn’t likely to get into the center of marital fights or choose sides. Fairly, the legal professional can clarify the execs and downsides of numerous solutions, but the legal professional can not advocate for one particular partner or the other.
Suggestion #4: Clarify what takes place if a conflict occurs. Eventually, the engagement letter need to also describe what takes place if a conflict occurs that just cannot be solved. Commonly, an unresolvable conflict amongst the spouses signifies that the joint illustration ought to terminate. Pointing out this possibility in the engagement letter can assist control consumer expectations and make it simpler for the attorney to terminate the joint representation if the need to have afterwards occurs.
Whether or not the attorney can go on to symbolize both shopper independently pursuing the termination of a joint illustration is a thorny challenge that will depend on the info and situation of the certain representation concerned.
*This article is an abbreviated model of “Moral Things to consider for Advising The (Un)Fortunately Married,” which initially appeared in the September 2023 issue of Trusts & Estates.
