The Morality of Choice: Estate Planning and the Client Who Chooses Not to Choose

• Jurisdiction: United States,Federal
• Citation: Vol. 22 No. 04
• Publication year: 1998

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 1SUMMER 1998

The Morality of Choice: Estate Planning and the Client Who Chooses Not to Choose

Janet L. Dolgin(fn*)

I. Introduction

The Symposium focuses around two hypotheticals.(fn1) The question posed about each-whether it is ethical for an estate lawyer to represent spouses, one of whom chooses subservience to the interests of the other-provokes discussion of a broad set of concerns about the scope and meaning of the contemporary family, and about the appropriate parameters of legal representation of family members.

American law is deeply grounded in an ideology(fn2) that assumes autonomous individuals as the subjects and objects of legal activity. The morality of legal representation is a morality of individualism. Western law generally, and American law specifically, are vastly superior at, and more comfortable with, delineating and elaborating the rights and obligations of individuals than of groups. In general, American law has worked best at protecting individual rights.(fn3) Other goals-for instance, communitarian goals-have been less well served by the law.(fn4) For this very reason, it is essential to guard against sacrificing individual autonomy and liberty in a quest for other, less attainable goals.

Legal ethics specifically, and the law more generally, reflect a society that for over two centuries has increasingly valued autonomy and choice, and has insisted (almost obsessively) on preserving choice in everyday life.(fn5) In such a society, morality favors the elaboration of choice. This has long been evident within the marketplace, where putatively equal, autonomous individuals negotiate the terms of their everyday lives.(fn6)

For the first century and a half after the start of the Industrial Revolution, the comparative absence of choice within the world of home and family contrasted sharply with the significance of choice in the marketplace. Within families, roles followed status, itself understood as the inexorable consequence of natural (e.g., biological) truth. Whereas work was identified with money-the most fungible commodity-home was identified with love and enduring connection.(fn7) The so-called "traditional" family was understood as a pleasing counterpoint to the harsh realities of the marketplace. "Home" (the domain of women and their treasured children) was idealized(fn8) as a sphere characterized by bonding and affection.(fn9) Here, relationships were defined in status terms, delineated largely through differences in age and gender. In contrast, people at work (men) were defined as putatively equal, autonomous individuals.

The law responded to the sharp differentiation between home and work that developed with the Industrial Revolution by regulating domestic relations through a set of rules grounded in religious tradition.(fn10) These rules contrasted as starkly with the rules that regulated behavior in the marketplace as views of home contrasted with views of work. However, family lawyers were expected to act like lawyers, not like ministers, priests, or rabbis. As a result, the role of family and estate lawyers was problematic.

In the second half of the twentieth century, new patterns clearly emerged within the domestic sphere. Egalitarian options, grounded in a world of contract rather than a world of status, increasingly replaced or displaced the hierarchical differences that defined family members in the preceding period. The law responded in kind by redefining family members (at least adult family members)(fn11) as autonomous individuals, connected only insofar as they chose connection. Increasingly, relations within families were understood through the terms of modernity (the terms of choice and autonomous individuality).(fn12)

Thus, as the sharp differences that once conclusively distinguished the worlds of home and work fade, family law merges with the law of the marketplace. In more and more contexts, the task of the family lawyer begins to resemble the task of other lawyers representing clients involved in tort, contract, or property matters.(fn13)

Although the two hypothetical that provide the focus of this Symposium concern an area of practice generally not categorized as "family law," in fact, the estate lawyer, much like the family lawyer, is concerned with law as it affects the "person" in his or her private life, and can, therefore, be seen as one kind of "family lawyer." Indeed, the ideology-and therefore inevitably the morality-of family life informs and defines the role of the estate lawyer. More specifically, as social visions of family have shifted during the past century, so has the law governing wills and estates.(fn14) In estate planning, as in other familial matters, the law has begun clearly to reflect the society by focusing on, and by struggling to protect, the unending elaboration of choice rather than custom.

The stories of Bob and Ruth (Hypothetical I) and Joseph and Susan (Hypothetical II) represent a distinct set of choices by spouses about their relationships. In each story, the spouses ask for legal assistance that will significantly limit the rights of one spouse (Ruth, in Hypothetical I, and Joe, in Hypothetical II) vis-a-vis the other spouse. To ask-as this Symposium does-whether a lawyer should accept either couple as clients is to ask about the moral dimensions of the law as arbiter and director of familial relationships. In responding to the Symposium's questions about these couples, this essay concludes that, at present, for reasons intricately connected to the history of families (and to the connected history of the law's regulation of testamentary dispositions), the risks (to each spouse as well, perhaps, to the couple as such) inherent in one lawyer's representing a wife and husband in estate matters are clear, present, and serious. However, the risks of separate representation in such cases-especially the risk that lawyers will create antagonism among family members where none exists-are real and suggest that estate lawyers should not be prohibited from representing spouses together. If they do so, however, they should be constantly alert to both the potential risks that such representation poses and the parameters of familial relationships within the family groups being represented.(fn15)

The next section (II of this essay) briefly reviews alternative approaches to legal representation of family members in estate matters. Then, in Section III, the essay examines more fully transforming notions of person and group that underlie the reformulation of family law and estate law in the second half of the twentieth century. Finally, Section IV expressly considers the concrete choices facing the couples described in this Symposium's two hypothetical. Throughout, it is assumed that conclusions about the moral dimensions of estate representation must be premised on a clear understanding of the ideologies of American families.

II. Alternative Approaches to Legal Representation of Spouses in Estate Planning

Several approaches to representing spouses involved in estate planning have been described. A few of these are reflected in, or expressly approved by, official codes of ethics.(fn16) Others have been proposed by commentators.

Briefly, these approaches include:(fn17) (1) an "individualist approach" which views each family member as an autonomous individual, and suggests or requires(fn18) that family members be represented separately by different lawyers; (2) a "family approach" which requires lawyers to represent estate clients as familial wholes and that thereby identifies the "family" as the client;(fn19) (3) "joint representation,"(fn20) which identifies both spouses as the clients of one lawyer(fn21) and which treats the spouses as individuals except insofar as they consent to treatment as a unit;(fn22) (4) an "intermediation approach,"(fn23) which also involves joint representation, but focuses more fully on individual concerns of each spouse than the third approach;(fn24) and finally, (5) "optional family representation."(fn25)

Professor Pearce describes optional family representation to "allow[] family members to determine how they will be represented. The approach permits families the option of deciding whether to obtain representation as a family or as a collection of individuals."(fn26) While similar to established doctrine in presuming to recognize group and individual aspects of familial constellations, optional family representation differs from established approaches in giving more control to clients in defining the form of their representation, in encouraging lawyers, together with their clients, to focus on "family harmonies" as well as on "family disharmonies,"(fn27) and in "prohibiting] a duty of confidentiality to any individual family member with regard to information relevant to another."(fn28)

Two of these approaches-the first and the fifth-are preferred to the others. The individualist approach, as envisioned here, best protects family members in their role as putatively equal, independent individuals. The approach mitigates the consequences of, even if it does not entirely preclude, a lawyer's identifying one spouse as the primary client, and harmonizes with the law's individualist orientation as well as with widespread recognition by society of family members as autonomous individuals. Optional family...