Joint illustration of married {couples}—and more and more, single romantic companions—is a routine apply for many property planners, and the mannequin is usually price environment friendly and facilitates a collaborative type of property planning that may serve purchasers fairly effectively. Sadly, statistics present that almost half of marriages in the USA finish in divorce. So, what occurs when issues go south and what steps ought to attorneys take to guard themselves and higher serve their purchasers?

Engagement Letters

As soon as an property planner overcomes the hurdle of moral issues equivalent to whether or not joint illustration is permissible and whether or not it’s advisable, using engagement letters will help set boundaries and lay out the scope of illustration, in addition to clarify what occurs if a battle arises. No matter whether or not engagement letters are required for joint representations in a specific jurisdiction, they’re at all times a good suggestion. Listed below are 4 suggestions for engagement letters for the joint illustration of spouses or romantic companions in property planning issues.

Tip #1: Outline the scope of the illustration as narrowly as attainable. To the extent attainable, outline the scope of illustration as narrowly as attainable. At first blush, this may occasionally appear counter-intuitive from a enterprise standpoint. Why would an lawyer wish to restrict the scope of points that they’ll probably work on and invoice purchasers for? However limiting the scope of illustration could make good enterprise sense.

First, limiting the scope of illustration helps set good boundaries for the attorney-client relationship. A restricted scope of engagement will help to handle shopper expectations and exclude any probably problematic conflict-causing points. Carving out the potential conflict-causing points from the scope of the illustration could save the lawyer from some main complications if the romantic relationship sours.

Second, defining the scope of illustration narrowly helps to effectively convert present purchasers to former purchasers. If the scope of illustration is open-ended, then purchasers could also be thought-about present purchasers for some indeterminate time interval. Open-ended engagements trigger sensible issues for the lawyer as a result of the obligations that an lawyer owes to present purchasers are extra onerous than the obligations an lawyer owes to former purchasers. For instance, the lawyer is usually obligated to inform present purchasers about adjustments within the legislation that would impression the shopper’s property planning. The lawyer doesn’t often owe that obligation to former purchasers.

Equally, present purchasers are extra probably than former purchasers to trigger conflicts. That’s, present purchasers usually tend to preclude the lawyer from taking over new purchasers and new representations than are former purchasers.

One option to outline the scope of the illustration narrowly is to restrict the illustration to the preparation and execution of particular paperwork. The engagement letter can merely present that the illustration is restricted to the preparation and execution of sure paperwork and, on execution of these paperwork, the connection and illustration will robotically conclude. If, throughout the illustration, the lawyer and the purchasers determine to broaden the scope of the illustration, then the lawyer ought to replace the engagement letter.

Tip #2: Clarify how communications and confidentiality work. The engagement letter ought to clarify how communications and confidentiality work in joint representations. Reassurances of attorney-client privilege will help facilitate candor on the a part of the purchasers. For that purpose, the engagement letter ought to emphasize that communications between the purchasers and the lawyer are confidential and topic to attorney-client privilege. That confidentiality, nevertheless, must be distinguished from the best way communications will work between the lawyer and the collectively represented purchasers.

Particularly, the engagement letter would possibly emphasize that the purpose of joint illustration in property planning is collaborative. Collaboration requires open and sincere communication among the many spouses and the lawyer. The lawyer ought to make it clear that the lawyer can’t maintain communications with one partner confidential from the opposite partner. The engagement letter may also level out that the foundations of attorney-client privilege could not apply if an argument later arises between the spouses. Lastly, the engagement letter would possibly inform the purchasers that they’re obligated to inform the lawyer if a battle arises between the purchasers throughout the course of the illustration.

Tip #3: Clarify the lawyer’s function. The lawyer’s function is a bit completely different in a joint illustration than in a person illustration. The engagement letter ought to make clear the function of the lawyer to the purchasers to assist set good boundaries and handle shopper expectations. Particularly, the letter ought to tactfully clarify that the lawyer isn’t going to get into the center of marital fights or choose sides. Reasonably, the lawyer can clarify the professionals and cons of varied choices, however the lawyer can’t advocate for one partner or the opposite.

Tip #4: Clarify what occurs if a battle arises. Lastly, the engagement letter must also clarify what occurs if a battle arises that may’t be resolved. Typically, an unresolvable battle between the spouses implies that the joint illustration should terminate. Declaring this chance within the engagement letter will help handle shopper expectations and make it simpler for the lawyer to terminate the joint illustration if the necessity later arises.

Whether or not the lawyer can proceed to symbolize both shopper individually following the termination of a joint illustration is a thorny situation that may depend upon the info and circumstances of the particular illustration concerned.

*This text is an abbreviated model of “Moral Concerns for Advising The (Un)Fortunately Married,” which initially appeared within the September 2023 situation of Trusts & Estates.