Joint illustration of married {couples}—and more and more, single romantic companions—is a routine follow 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 properly. Sadly, statistics present that just about 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 comparable to whether or not joint illustration is permissible and whether or not it’s advisable, using engagement letters may also 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 all the time a good suggestion. Listed here are 4 ideas 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 potential. To the extent potential, outline the scope of illustration as narrowly as potential. 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 doubtlessly 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 may also help to handle consumer expectations and exclude any doubtlessly problematic conflict-causing points. Carving out the potential conflict-causing points from the scope of the illustration might 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 of 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 might influence the consumer’s property planning. The lawyer doesn’t often owe that obligation to former purchasers.

Equally, present purchasers are extra possible 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 strategy 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 routinely conclude. If, through the illustration, the lawyer and the purchasers resolve 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 may also help facilitate candor on the a part of the purchasers. For that motive, 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, needs to be distinguished from the way in which communications will work between the lawyer and the collectively represented purchasers.

Particularly, the engagement letter would possibly emphasize that the aim 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 might 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 through 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 consumer 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. Relatively, 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 also needs to 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 risk within the engagement letter may also help handle consumer 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 signify both consumer individually following the termination of a joint illustration is a thorny situation that may rely on the info and circumstances of the precise illustration concerned.

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