Ethics for Estate Planning Attorneys

Yesterday, Professor Beyer at Wills, Trusts & Estates Prof Blog wrote (here) about a Dear Abby question with estate planning ramifications.  The case involved a second marriage situation, and a husband ("Girard") who said he would allow his wife to continue to reside in his house for the rest of her life if Girard predeceased her.  The wife wound up discovering that Girard had really signed a Will saying almost the exact opposite (that she would have 90 days after his death to vacate his house).

It appears that the wife found out the contents of Girard's Will from his estate planning attorney.  Professor Beyer then raises the following question, about a lawyer's duty of confidentiality: "how could 'his attorney' ethically reveal to the author of the letter (wife) what Girard (the client) had or had [not] done?"

It may be hard to believe (especially after some of the articles I post here), but attorneys -- including estate planning and probate attorneys -- really are bound by ethics rules, and (I think) most attorneys try to follow these rules.  That being said, the Rules of Professional Conduct (the "Rules") can be fairly tricky for estate planners because many of the rules are aimed at attorneys in other practice areas (like those involving litigation or business deals). 

As an initial matter, it's sometimes difficult for estate planners to even determine whether they can take on a representation without creating a conflict of interest.  This problem can be generational (can I represent mom and dad and their grown son and his wife?), but more often arises in the case of married couples.  The assumption of most members of the general public is that married couples should use the same attorney to prepare their estate plan, and that using separate attorneys (one for each spouse) would be a waste of time and money.  That isn't always the case, particularly in situations where the husband and wife don't have interests that are perfectly aligned (like in the case of a second marriage).

The issue of confidentiality is tied closely to the "conflict of interest" issue.  Maybe I can represent mom and dad and their grown son and his wife, but what if mom and dad tell me that they want to disinherit grown son?  Can I (must I) tell grown son about this?

In the Dear Abby question, I think the answer to the confidentiality question is fairly clear, given that the wife doesn't appear to have been the attorney's client.  In that case, I don't see how the attorney can get away with revealing client confidences to a non-client.

But confidentiality is a much more difficult issue when the attorney is representing both husband and wife.  Early in my career, I was one of the youngest attorneys attending an ABA seminar for estate planners.  A speaker on attorney ethics posed the following question to the audience: "We all have meetings with married couples to discuss their estate plans.  What is the soonest after such a meeting that one member of the couple has contacted you to request 'secret' changes to the plan?"  One answer went something like this: "I met with husband and wife at my office.  At the end of the meeting, wife went to use the restroom, and husband told me to forget everything he said in our meeting -- he wanted to leave everything to his mistress."

In this scenario, must the attorney make the change requested by the husband?  Must he do so without telling the wife about the change?  I try to short-circuit even reaching this issue by sending all of my clients an engagement letter (to be reviewed, agreed to, and signed by them) that sets forth the terms of my representation.  When I represent a married couple, the engagement letter also includes language that I will keep no secrets between them.  I would suspect that most attorneys use the "keep no secrets" approach, although I have heard of some attorneys who employ a "priestly" approach" (and will not reveal one spouse's confidences to the other spouse).