Can An Attorney Prepare A Will Or Estate Plan Jointly For A Husband And Wife?
The question is an interesting one because traditionally the lawyer would represent both the husband and the wife in estate planning. Oftentimes, the lawyer had a jointly opened file for the wills and estate plans of a husband and wife.
There, of course, could be exceptions. If the lawyer was aware of some marital discord or if the lawyer was aware that the estate plan was going to greatly disadvantage one of the spouses, then the lawyer would recognize the conflict and advise one of the spouses to get independent counsel. The general conflict of interest rule, Rule 1.7, is very clear that a lawyer can’t represent one client if the representation would be adverse to another client. If there is going to be a situation where one spouse is going to greatly benefit from the marital planning and the other isn’t, then that is a classic conflict or concurrent conflict of interest. Also, under Rule 1.7, if for instance, the lawyer has been the husband’s business lawyer for years and receives substantial business in the future from the husband, then it might be in the lawyer’s best interest not to look out for the wife if the husband wants to do something different. That is again an example where a conflict could arise where the lawyer would place his or her interest one of the clients.
But, if this is a couple who appears to be happily married and there are no significant problems, a lawyer can represent both the husband and wife in writing wills and estate planning. The question becomes, should there be some explanation to both husband and wife that a conflict could arise at some point in time? The better practice, of course, would be to do so and advise both the husband and wife that the lawyer will represent them, the lawyer doesn’t see any conflict, but conflicts could arise in the future and if they wish to have independent counsel, they have a right to do so.
Reference: Samuel C. Stretton, Special to the Law Weekly, Pennsylvania Law Weekly, 41 PLW 472, (Tuesday, May 22, 2018)
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