These How-To Kits were originally prepared for the ICLE Partnership and are reproduced by
permission. © 2013 The Institute of Continuing Legal Education, Ann Arbor, MI, www.icle.org.
HOW-TO KIT
Current to 12/13/2013 [what's this?]
Handle Potential Conflicts of Interest in Estate Planning for Couples
By Professor Kimberly E. O’Leary
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CONTENTS
Step-by-Step Guidance
When to Use
Additional Practice Guidance
Forms
FEEDBACK
Step-by-Step Guidance
Step 1: Explain the joint representation policy.
When a couple comes into your office for estate planning representation, greet the
couple and take them to the conference room. Explain that this joint meeting is
informational only and ask that neither party express preferences or ask any questions
just yet. Let them know that they will be separated momentarily and will have any
questions answered at that time. Explain that you will discuss with each person
individually whether joint representation, with its potential forconflict of interest, is what
they want.
While the couple is together:
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Tell them that they should consider having separate counsel and explain the
benefits of separate counsel.
Inform them that you will interview each of them separately so that each person
feels free to fully and completely disclose any and all information.
Let them know the process that will be followed if anything is disclosed during the
individual interview that may be adverse to the other person.
Step 2: Interview the first person in the couple.
Speak to the first person in the couple alone. Confirm that the potential client
understood what you have already told both of them. Provide the potential client with
the Joint Representation Policy. Review the form with him or her and answer any
questions. Have the potential client sign the policy statement if he or she is comfortable
doing so.
Perform an initial client intake with the first person in the couple. If information is
revealed that is adverse to the other party, follow this process.
Ask the person if he or she wants future meetings jointly (both parties with the attorney)
or privately (each party with the attorney). Each has to state a desire for joint meetings;
otherwise future meetings should be private. Explain that even if future meetings are to
be held privately, there must be at least one joint meeting before the estate planning
documents are finalized.
If the first party does not consent to joint representation, do not interview the second
party privately. If you have not obtained confidential information from the second party,
and the first party refuses consent, you can choose to represent only the first party if
you feel comfortable doing so. You will then need to explain to the second party that you
can only represent the first party.
If the first party consents to joint representation, go to step 3.
Step 3: Interview the second person in the couple.
Repeat Step 2 with the second party to the couple.
Step 4: Bring the parties back together.
Conclude the intake.
Have each client sign a representation agreement with mutual waivers.
When to Use
This How-To Kit is designed to take you step by step through the process of consulting
with a couple and deciding whether you can represent both parties in the couple in an
estate planning matter.
Note: While this kit is geared toward married couples who are retaining you for estate
planning purposes, the process outlined in this kit can be applied to other couples
seeking joint representation such as siblings, friends, same-gender couples who cannot
marry, or parent and child.
Using these materials is not a substitute for the attorney’s independent judgment,
drafting, and research.
Other Resources
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Michigan Basic Practice Handbook (see chapter 22)
Michigan Estate Planning Handbook (see chapters 1 and 3)
Other Helpful Links
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Aspirational Standards for the Practice of Elder Law, National Academy of Elder
Law Attorneys
Commentaries on the Model Rules of Professional Conduct, American College of
Trust and Estate Counsel (ACTEC) Fourth Edition 2006
Additional Practice Guidance
Couples
Couples are two people who live together as an economic unit. Usually they are
married, but sometimes they are not. Today, with the high divorce rate, people are
marrying multiple times and assets come in and out of marriages. The model of Fred
and Helen who met and married in their early twenties, raised a family and stayed
together until the end of their lives is no longer relevant to the majority of your clients.
This change in demographics makes it more likely that couples will have competing
estate planning goals. This makes it imperative that you give each client a chance to
talk frankly out of the presence of the other spouse. This way you are more likely to find
out, before representation, whether you can represent both parties in the couple.
Conflict of Interest
The key ethics rule to remember when working with a couple is the rule on conflicts of
interest. MRPC 1.7, Conflicts of Interest, General Rule, provides:
(a) A lawyer shall not represent a client if the representation of that client will be directly
adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the
relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be
materially limited by the lawyer’s responsibilities to another client or to a third person, or
by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a
single matter is undertaken, the consultation shall include explanation of the
implications of the common representation and the advantages and risks involved.
Even where there is no current conflict of interest, an attorney sometimes determines
that the potential for a conflict of interest developing is so great that he or she should
only represent one person. You should trust your instinct if something about the
situation makes you think you should not represent both parties to a couple. If you have
not obtained confidential information from both parties, you can choose to represent
only one of them. Once you have obtained confidential information from both, you may
not represent only one of them in the matter.
Whenever an attorney represents more than one individual in a particular matter, there
is some risk that the interests of one client may be different from the interests of the
other client.
Process on Disclosure of Potential Conflict of Interest
If, during the individual interviews, information is disclosed that may be adverse to the
other person, the disclosing individual will asked to
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personally disclose the information to the other individual, or
allow you to disclose the information to the other individual (this should be in
writing; see Client Consent to Disclosures During Representation).
Depending on the nature of the disclosure, regardless of whether or not the person will
disclose it or won’t allow you to disclose it, you may want to inform the potential client
that you cannot represent either party (or, if later, that you must withdraw from
representing both parties without any disclosures). Inform the potential clients that if
disclosures lead you to believe that their positions are so adverse that, in your opinion,
a conflict of interest precludes your representation of either individual, you will decline
representation or withdraw from representation at that time. Explain that you will
withdraw without disclosure of the nature of the conflict or any of the information that led
to the determination of the conflict of interest.
The process is the same when the disclosure happens during representation. You must
inform the disclosing party that, under the waiver of information, he has authorized you
to disclose the information but that you would prefer that he or she disclose the
information to the other party; offer to be present at such a meeting. However, if the
party wants you to disclose the information, you must do so unless the party withdraws
permission to disclose. If the disclosing party states that he or she no longer wants to
allow the information to be revealed, you must treat that as a revocation of the
confidentiality waiver. Inform the party that you must withdraw from representing both
parties in the couple and that you will not explain to the other party why you are
withdrawing.
Forms
Joint Representation Policy
Engagement Letter -- Joint Representation of Couple (Open Arrangement)
Client Consent to Disclosures During Representation
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