The elder law attorney may have to represent spouses when there are children from a prior marriage or the spouses’ interests are conflicting. In certain situations, a divorce may be part of Medicaid planning. In this instance, the attorney will not be able to represent both spouses. Actually, the American College of Trust and Estate Council (ACTEC) contemplates the possibility of a separate and independent representation of each spouse in the context of estate planning. But note that there is a significant controversy as to whether this approach is viable. When representing a couple, the attorney should assess the duty of each spouse toward the other and the ability to carry out their instructions. Pre- and Post-marital agreements, contract to make wills, and rights under pension plans should be reviewed. In addition, duties toward third parties should be reviewed such as child support, parental support, obligations or rights to or from prior spouse and others by agreements, prior divorce decrees, or arising under compensation or retirement plans. The attorney will need to explain the potential conflict of interest and how it can be resolved. If a joint representation fails, the attorney may reserve the right to continue to represent one client in the matter or related matters. The basis of longstanding relationship with one of the clients may impact the dual representation. The attorney needs to clearly stipulate whether it is a joint or separate representation or whether only one individual is represented. In the case of joint representation, the attorney needs to address the possibility of a future prohibition on the lawyer’s representation of either one of the spouses. Finally, the attorney needs to inform the clients of the impact of gaining knowledge regarding either spouse, as well as the attorney’s duty to inform each spouse on certain matters. The attorney should incorporate the following disclaimer in the engagement letter and request a waiver of conflict of interest: DISCLAIMER “It is common for a husband and wife to employ the same lawyer to assist them in planning their estates. You have taken this approach by asking me to represent both of you in your planning. It is important to understand that, because I will be representing both of you, you are considered my client, collectively. Ethical considerations prohibit me from agreeing with either of you to withhold information from the other. Accordingly, in agreeing to this form of representation, each of you is authorizing me to disclose to the other any matters related to the representation that one of you might discuss with me or that I might acquire from any other source. In this representation, I will not give legal advice to either of you or make any changes in any of your estate pplanning documents without your mutual knowledge and consent. Of course, anything either of you discusses with me is privileged from disclosure to other parties, except (a) with your consent, (b) for communication with other advisors, or (c) as otherwise required or permitted by law or the rules governing professional conduct. If conflict of interest arises between you during the course of your planning or if you have a difference of opinion concerning the proposed plan for disposition of your property or on any other subject, I can point out the pros and cons of your respective positions or differing opinions. However, if actual conflicts of interest do arise between you, of such a nature that in my judgment it is impossible for me to perform my ethical obligations to both of you, it would become necessary for me to cease acting as your joint attorney.” WAIVER OF CONFLICT OF INTEREST |