By Vanessa L. Kanaga Esq. On May 21, 2025
The joint representation of couples in estate planning presents a unique set of ethical challenges and considerations for attorneys. Whether dealing with married or unmarried couples, or even other related family members, lawyers must navigate the delicate balance between confidentiality, conflicts of interest, and the best interests of each client. This blog post explores these issues, offering insights into effective practices for managing these ethical dilemmas. For a broader discussion of these topics, view the recent related webinar.
Related Speaker Series Webinar:
The Ethics of Representing Married and Unmarried Couples
March 19, 2025, 4pm ET
Understanding the Ethical Framework
- Model Rules of Professional Conduct: The American Bar Association’s Model Rules provide the primary ethical framework, particularly focusing on conflicts of interest (Rule 1.7) and confidentiality (Rule 1.6). These rules outline the conditions under which a lawyer may represent clients with potentially conflicting interests and dictate the necessity of protecting client confidences. Of course, the lawyer should consult the specific ethical rules adopted by the state in which the lawyer practices, and any cases and rulings on point.
- Conflicts of Interest: Representing couples inherently involves potential conflicts, but this does not necessarily mean that the lawyers should not undertake joint representation of a couple. The American College of Trusts and Estates Counsel (ACTEC) has provided commentary on the ABA rules, providing valuable insight on this subject. The ACTEC commentary notes that couples are often better-served by joint representation for several reasons, even with the potential for conflicting interests. However, there are circumstances in which the clients’ interests are better served through separate representation, or where an existing conflict of interest makes joint representation untenable. For example, if the clients have differing goals in terms of their estate plans, there is a potential for conflicts to arise. The lawyer must weigh the advantages of the joint representation against the possible effects of the differing goals and determine whether separate representation is advisable. If the lawyer determines joint representation is in the best interests of the clients, the clients should waive any current or potential conflicts of interest at the outset of the representation. One instance in which joint representation is almost never appropriate is the negotiation and drafting of marital property agreements, as the interests of the parties are inherently adverse to the extent that the conflict is not waivable.
- Confidentiality Concerns: Confidentiality is paramount in legal representation, but when representing couples, lawyers must make the couple aware that information shared with the lawyer cannot be kept confidential between the two clients (e.g., information shared by one spouse cannot be kept confidential from the other spouse). Attempting to keep information confidential can lead to conflicts of interest, because the couple’s family and financial matters are so entwined that sensitive information relevant to one client often affects the interests of the other. The lawyer’s role becomes particularly complex when one partner discloses information that could impact the other’s estate planning decisions, and asks the lawyer not to share that information with the other partner. In some cases, withdrawing from the representation of both parties may be the only avenue toward complying with the lawyer’s ethical obligations.
Practical Scenarios and Responses
- Representing Married Couples: Often, married couples seeking estate planning services present fewer ethical complications compared to unmarried partners. The presumption of aligned interests often justifies joint representation. However, attorneys must remain vigilant for any developments that might create conflicts, such as changes in the couple’s financial situation or personal relationships. Of course, married couples with a blended family can provide more challenges, since the parties may not have the same objectives for their individual estate plans. Whether their interests actually conflict is often a case-by-case judgment call.
- Handling Unmarried Couples: The representation of unmarried couples requires a tailored approach, considering the lack of legal ties and potentially divergent financial interests. Lawyers need to assess whether joint or separate representation serves the clients’ best interests, and if representing the couple jointly, need to be prepared to address conflicts that may arise during the planning process. Additionally, couples who don’t plan to marry will have different concerns from those who are planning to wed. For some clients, separate (rather than joint) representation by the same lawyer, with appropriate conflict waivers, may be the better option.
- Informed Consent and Waivers: Critical to managing ethical concerns is obtaining informed consent from clients regarding the nature of the representation and any potential conflicts. Attorneys should secure written acknowledgment from both parties, clearly outlining the scope of representation and the handling of confidential information – whether the representation is separate or joint.
Best Practices for Attorneys
- Transparent Communication: Maintain open lines of communication with both clients throughout the estate planning process. Ensure that each party understands the implications of joint representation and the potential for conflicts, as well as the attorney’s inability to keep confidences in a joint representation.
- Documentation and Waivers: Implement robust documentation practices, including detailed engagement letters and conflict of interest waivers. These documents should clearly state the terms of representation and the measures taken to safeguard confidentiality.
- Regular Reassessment: Regularly reassess the dynamics of the client relationship and the applicability of ethical guidelines. Changes in the clients’ personal circumstances or legal standards may necessitate adjustments in the representation approach.
- Educational Resources: Stay informed about the latest developments in ethical standards and estate planning practices by leveraging resources like ACTEC commentaries and continuing legal education programs.
Conclusion
Representing couples in estate planning demands a high degree of ethical sensitivity and adaptability. Lawyers must carefully navigate the interplay between professional obligations and the best interests of their clients. By adhering to ethical standards, maintaining rigorous documentation, and fostering open communication, lawyers can effectively manage the complexities of dual representation while upholding the integrity of their practice.
Special Advisor on Estate Planning and Legal Strategy
Vanessa Kanaga currently serves as InterActive Legal’s Special Advisor on Estate Planning and Legal Strategy. She is the former CEO of InterActive Legal. Vanessa received her J.D. from Cornell Law School and holds a B.A. in Philosophy from Wichita State University, as well as an Advanced Professional Certificate from New York University School of Law. She is licensed in New York, Kansas, and Arizona, and currently lives in Arizona.
Prior to joining InterActive Legal in 2013, Vanessa practiced in New York, at Milbank LLP and Moses & Singer LLP, and in Kansas, at Hinkle Law Firm, LLC. She has experience in a range of estate planning matters, including high net worth tax planning and asset protection planning.
In 2024, Vanessa returned to the practice of law. She is an Associate Attorney at Greengard Law Firm, PLC in Phoenix, Arizona. Vanessa can be reached at vanessa@greengardlegal.com.
