Representing Spouses in Estate Planning

Last year I talked briefly (here) about ethical conflicts in representing a husband and wife.  I was reminded of this post by something Professor Beyer wrote about at his blog yesterday, here.  Professor Beyer's post discusses an attorney who represented spouses in their estate planning, and later prepared a new Will for the wife (a Will in which she disinherited her husband).  The attorney was reprimanded, although there are some pieces missing in the disciplinary report (why was the husband an ex-client?).

What disturbs me is Professor Beyer's introduction to the post, in which he says that "[d]espite repeated warnings of the risks associated with representing both spouses in preparing an estate plan, many attorneys continue the practice."

Here's how I see it:

1. It's not "many attorneys" who continue the practice of representing both spouses in preparing an estate plan -- it's pretty much every estate planning attorney in America.

2. That being said, there are obvious cases where such representation should be stopped after it's started (or shouldn't be started at all) -- the husband and wife seem at odds about the disposition of their property from the outset, one spouse attempts to disinherit the other, etc.

3. The issues mentioned in 2 above can be solved quite easily through the use of an engagement letter that spells out the potential conflicts, and talks about what happens if conflicts actually occur.  The letter should also detail how (or whether) information will be shared by the attorney with each spouse.  I take the approach that anything one spouse tells me can be conveyed to the other spouse.  Other attorneys favor the "priestly" approach -- all confidences are kept.  It doesn't matter which approach you choose, as long as the clients understand and consent to it.

4. "Potential conflicts" are just that -- potential conflicts. For the large majority of married couples, hiring two separate estate planners makes no sense whatsoever.   

5. Most people don't like paying for estate planning, but it's much cheaper to hire one estate planner to do the job for both than to hire two separate estate planners.  In my experience, no one wants to do that.

6. The case discussed above isn't an example of the dangers in representing a husband and wife -- it's an example of the dangers in not dealing with a conflict between clients when it arises.