Joint illustration of married {couples}—and more and more, single romantic companions—is a routine observe for many property planners, and the mannequin is commonly value environment friendly and facilitates a collaborative type of property planning that may serve purchasers fairly nicely. 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 concerns corresponding to whether or not joint illustration is permissible and whether or not it’s advisable, using engagement letters might 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 selected 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 attainable. To the extent attainable, outline the scope of illustration as narrowly as attainable. At first blush, this will appear counter-intuitive from a enterprise standpoint. Why would an legal professional wish to restrict the scope of points that they will 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 might 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 could save the legal professional 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 legal professional as a result of the obligations that an legal professional owes to present purchasers are extra onerous than the obligations an legal professional owes to former purchasers. For instance, the legal professional is commonly obligated to inform present purchasers about adjustments within the legislation that might affect the consumer’s property planning. The legal professional 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 legal professional from taking over new purchasers and new representations than are former purchasers.
One method 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 legal professional and the purchasers determine to increase the scope of the illustration, then the legal professional 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 might 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 legal professional are confidential and topic to attorney-client privilege. That confidentiality, nonetheless, must be distinguished from the best way communications will work between the legal professional and the collectively represented purchasers.
Specifically, 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 legal professional. The legal professional ought to make it clear that the legal professional can’t hold 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 issue later arises between the spouses. Lastly, the engagement letter would possibly inform the purchasers that they’re obligated to inform the legal professional if a battle arises between the purchasers throughout the course of the illustration.
Tip #3: Clarify the legal professional’s position. The legal professional’s position is a bit totally different in a joint illustration than in a person illustration. The engagement letter ought to make clear the position of the legal professional to the purchasers to assist set good boundaries and handle consumer expectations. Specifically, the letter ought to tactfully clarify that the legal professional isn’t going to get into the center of marital fights or decide sides. Fairly, the legal professional can clarify the professionals and cons of varied choices, however the legal professional 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. Usually, an unresolvable battle between the spouses signifies that the joint illustration should terminate. Stating this risk within the engagement letter might help handle consumer expectations and make it simpler for the legal professional to terminate the joint illustration if the necessity later arises.
Whether or not the legal professional can proceed to characterize both consumer individually following the termination of a joint illustration is a thorny difficulty that can rely on the info and circumstances of the particular illustration concerned.
*This text is an abbreviated model of “Moral Issues for Advising The (Un)Fortunately Married,” which initially appeared within the September 2023 difficulty of Trusts & Estates.
