Volume 19, Number 5
Disclosures to Clients
When actual or foreseeable conflicts exist among family members or other interested persons who are all clients of the same lawyer or firm, written disclosure is required by jurisdictional rules. The content of and procedure for the written disclosure vary from state to state, so be sure to consult local rules if you find yourself in such a situation.
If you simply sense that something might go awry in the future and want to warn family members what might happen should conflict arise, nothing in the rules of professional conduct prohibits you from advising the client that you would have to withdraw in the event of conflicts. Although the rules of your jurisdiction may not require such a disclosure in writing, you would be very glad about having proof of your disclosure if family arguments did arise. Withdrawing could be easier psychologically, and you could avoid malpractice claims, however specious, that the client was not informed about what would happen if conflicts arose.
Legal principles are second nature to lawyers but an unexplored foreign country to clients. In addition to protecting your license, putting a disclosure in writing allows clients to review it at leisure and determine whether the representation really is in their best interest. Expecting the client to absorb the ramifications of conflicts by oral disclosure is simply not reasonable or realistic. The client has enough new information on the legalities of estate planning without tackling the subtleties of potential conflicts of interest as well. Put your disclosures in writing so clients can review them at a calmer, less stressful time-for their benefit and for yours.