Multiple representation in estate planning: beyond Advisory Opinion 95-4.

• Author: Russell, Hollis F.
• Position: Part 2 - Florida

While supplemental ethics guidance may be needed, its conclusions in general provide a useful framework for multiple representations.

The holdings and procedural history of Advisory Opinion 95-4[1] are examined in detail in an earlier article: Joint Representation of Spouses in Estate Planning: The Saga of Advisory Opinion 95-4, 72 FLA. B.J. 39 (Mar. 1998). This article addresses the impact of the holdings of Advisory Opinion 95-4 on engagement arrangements for joint representations of spouses in estate planning and also considers how its holdings affect intergenerational representations in trust and estate matters.

Engagement Arrangement Variation

In general, attorneys and clients may fashion the terms of a particular engagement to define the precise responsibilities of the attorney differently than the responsibilities might otherwise be defined.[2] Following the Study Committee Report[3] and the ACTEC Commentaries,[4] some attorneys may wish to structure estate planning engagements so as to have discretion to reveal a separate confidence.[5] Other estate planners instead may prefer for there to be agreement that all information received during the representation, including any information received by separate conference, is required to be shared with both spouses (notwithstanding any later objection by the confiding spouse).[6] Any agreement along these lines presumably would be structured to take into account different attorneys' standards of practice and individual clients' objectives and preferences.

Practitioners should be careful in undertaking such arrangements, however, since Advisory Opinion 954 does not address the extent to which the fundamental ethical rule enunciated therein may be modified by agreement. Cautious practice would call for sufficient preliminary discussion to ensure client comprehension of the import of the arrangement[7] and for it to be memorialized in a writing[8] indicating that the terms of the engagement differ from the default confidentiality rules which would otherwise govern under Advisory Opinion 95-4. But even when this is done, can an attorney rely on such an agreement when, at some later date, a separate confidence may be imparted?

Separate confidences olden are suddenly made -- sometimes "blurted"[9] -- by the client in the confidential setting of the attorney-client relationship before the attorney has had any meaningful opportunity, at the time the confidence is uttered, to alert the client to the consequences of making a separate confidence. Often, the separate confidence would not have been imparted if the client, when so doing, expected that the attorney would reveal it to the co-client. It may be difficult to argue that the client should have remembered the engagement agreement provision, particularly if it was made years earlier at the outset of the representation and was never addressed thereafter. If the agreement mandates disclosure, the attorney may be trapped unwittingly in an unsolvable dilemma of the attorney's own making. On the one hand, disclosure may result in an ethics violation and potential malpractice liability,[10] while on the other hand, nondisdosure may result in contractual liability for failure to abide by the agreement.[11]

When a modified agreement is reviewed with clients at reasonable intervals during the course of representation, Advisory Opinion 95-4 should not be interpreted to raise the spectre of ethical violation stemming from a separate confidence imparted during an on-going estate planning project. Generally, it should be sufficient to review the subject with the clients at the commencement of each "active" phase of a long-term estate planning relationship.[12] With the discussion relatively fresh in mind, clients should be less likely to impart a separate confidence. Separate confidences may be forthcoming nonetheless, but the significance of the relatively contemporaneous discussion should be that the confiding client may not be warranted in having an expectation of confidentiality. Each client situation is unique,[13] however, and there is no authority in Florida to support the foregoing proposition. Moreover, the practitioner should be mindful that a separate confidence may arise during a "dormant"[14] period in an estate planning representation -- for example, by telephone discussion several years after the last active period in which estate planning work was done. In such a situation, it may be difficult to argue that there may be no reasonable basis for the confiding client to expect confidentiality.

This concern may be avoided when the practitioner structures the attorney-client relationship to terminate at the conclusion of each estate planning project undertaken for the clients. The consequence of termination is that the attorney is dealing with former clients and, given appropriate provision in an engagement letter or an "exit" letter,[15] owes more limited duties to them.[16] The attorney presumably should not be required to take any action if a separate confidence is received from one of them after the most recent estate planning project is completed and the attorney-client relationship has been terminated. According]y, it may be advisable for a practitioner who wishes to undertake a joint representation under a modified arrangement authorizing disclosure of a separate confidence to structure the arrangement to provide for termination of the attorney-client relationship at the completion of each active period.[17]

Another difficult issue is whether an engagement may be structured to permit the attorney to receive separate confidences of material import under a "separate representation" arrangement. The Study Committee Report and the ACTEC Commentaries argue that it is permissible for an estate planner to undertake such a separate representation.[18] Whether or not the clients' situation may otherwise present a conflict of interest at the outset, both clients' informed consent is necessary because a separate confidence of material significance may not trigger a requirement for attorney withdrawal.[19] However, the Study Committee Report states that there are limits to circumstances in which a separate representation may be maintained:

For the lawyer engaging in a separate representation, the prohibition on the use of confidences from either spouse requires careful handling. The decision of one spouse to change his or her will to reduce or defeat the interests of the other after the preparation of mirror wills is one important example. In a separate representation, the lawyer has no duty or power to advise the other spouse of the change. Adverse confidences not disclosed to the other spouse do not require the lawyer to consider withdrawal. At what point will the lawyer's independent judgment, in recommending changes to that other spouse, be affected? MRPC Rule 1.7(b) requires the lawyer to make this assessment by forcing consideration of the lawyer's duty to other clients. The lawyer who chooses this mode of representation must be prepared to define this boundary and to withdraw at that point.[20]

The separate confidence in the situation presented in Advisory Opinion 95-4 is presumably an example of such extreme direct adversity as to require attorney withdrawal even if a separate representation had been structured in the engagement agreement.[21]

One leading commentator,[22] however, maintains that separate representation by a single attorney is fraught with serious difficulty and may be ethically impermissible.[23] Professor Hazard has taken the position that a separate representation by the same attorney may be conceptually flawed because it presumes absence of informed consent by each client with respect to material information (present and/or future) received from one client which must be disclosed to the other in order for each client to give informed consent to the material limits placed on the lawyer's independent judgment in representing each client.[24] An attorney undertaking a separate...