Multiple Representation in Estate Planning: Beyond Advisory Opinion 95-4, Part 2

An article discusses how a legal decision called Advisory Opinion 95-4 affects how attorneys work with married couples in estate planning. It talks about how attorneys and clients can decide on the specific responsibilities of the attorney in the engagement arrangement. Some attorneys may want the option to keep some information confidential from one spouse, while others may prefer to share all information with both spouses. This decision depends on different attorneys’ practices and the preferences of the clients. Lawyers need to be careful when making special agreements with clients about keeping their information confidential. Even if they have a written agreement, it can be tricky if the client shares new private information later on. The lawyer could be stuck in a tough situation where they have to choose between breaking their promise to the client or breaking the rules of professional ethics. It’s important for lawyers to talk to their clients about this agreement regularly, especially when they are working on long-term projects. This can help reduce the chances of the client sharing new private information that they expect to be kept confidential. But even with regular discussions, there’s still a possibility that the client could share new private information at a later time, and it can be hard to argue that they shouldn’t expect it to be kept secret. In estate planning, there can be conflicts of interest when one attorney represents both spouses. To avoid this, the attorney should end the representation after each project and get consent from both spouses if they want to share separate personal information with the attorney. However, some experts think it’s not a good idea for one attorney to represent both spouses because it can cause problems and lead to ethical issues. It’s better for each spouse to have their own attorney. Simply put, estate planning attorneys often represent entire families, including parents, adult children, and their spouses. The attorney must be careful to address conflicts of interest and confidentiality concerns among the different family members. In some cases, informed consent from the clients may be necessary. Conflict of interest should not be assumed in every family representation, as shown in two court cases from Kansas and Mississippi. These cases recognized that, unless there is a disqualifying conflict of interest, the substance of estate planning work done for one family member does not need to be disclosed to other family members whom the attorney also represents. Each family representation situation is unique, and the attorney’s ethical responsibilities can only be determined with reference to the specific circumstances of the family setting. It is also good practice for an estate planning attorney engaging in a multigenerational representation to clarify confidentiality and conflict of interest considerations and obtain each family member’s informed consent to the multiple representation. In conclusion, Advisory Opinion 95-4 provides a useful framework for Florida estate planning attorneys to counsel spouses and family members together. While there may be additional ethics guidance needed, the opinion, along with other authorities, should help attorneys effectively navigate multiple representations in estate planning matters. It’s important for attorneys to obtain informed consent and carefully consider potential conflicts of interest when representing multiple clients in estate planning. Hollis F. Russell is a lawyer who specializes in estate planning, administration, and taxation. He is licensed to practice law in Florida and New York. He received his Bachelor’s degree from Princeton University and his law degree from Cornell University.

Source: https://www.floridabar.org/the-florida-bar-journal/multiple-representation-in-estate-planning-beyond-advisory-opinion-95-4-part-2/