Volume 19, Number 7
LETTER TO THE EDITOR
Teresa Beasley's article in the July/August 2002 issue of GPSolo was an important heads-up for lawyers doing estate plans for married couples on the conflicts of interest and confidentiality issues they face. Here are some additional thoughts that will be useful to lawyers who face this situation.
First, although when doing a family estate plan and wills there is no present, direct adversity, there is always potential adversity for the very reason stated by Ms. Beasley. So whenever doing a family estate plan, a lawyer must discuss the potential conflict even to the point of describing the typical hypothetical: husband returns and asks lawyer to prepare a codicil making a substantial gift to a girlfriend. At the outset the lawyer must say to both spouses in plain language: "you cannot tell me anything in confidence that you do not wish me to tell your spouse. I have an obligation to share all information with both of you" and follow it with the written disclosure and waiver and consent described by Ms. Beasley.
Second, the disclosure, waiver and consent can and for simplicity's sake probably should be contained in the engagement letter the lawyer prepares setting forth the scope of her engagement and the fee arrangement.
Finally, a word of caution concerning Ms. Beasley's statement that "The lawyer-client relationship begins when a potential client acknowledges a lawyer's professional capacity to act for the client's benefit and the attorney agrees to do so." This correctly states the law. But it contains a hidden trap. A lawyer may have ethical obligations even to a potential client whom the lawyer declines to represent or who chooses to engage a different lawyer.
The ABA Commission on Evaluation of the Rules of Professional Conduct (Ethics 2000) considered that many states prohibit conflicting representation and protect the confidentiality of communications between a prospective client and a lawyer not ultimately engaged by that person. The Commission recommended and the House of Delegates adopted Model Rule 1.18 setting forth Duties to Prospective Clients. The likelihood is that they will be adopted in most if not all of the states and practitioners will be very well advised to protect themselves and their clients by familiarizing themselves with its provisions.
The writer, a past chair of the Section, was liaison from the Board of Governors and from the Center for Professional Responsibility to Ethics 2000 during its entire five-year existence. He is a founder and past president of the Association of Professional Responsibility Lawyers whose practice concentrates on counseling and representing lawyers and law firms in the ethics field.