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An estate planning lawyer usually serves clients alone, without involving any other lawyers in the estate planning process. In some cases involving married couples, however, one lawyer cannot do the whole job alone because the lawyer’s ethical obligations prohibit the lawyer from serving both the husband and the wife. Sometimes, a lawyer needs to insist on representing only one spouse or the other, and insist that the other spouse hire a separate lawyer for estate planning services. This article explains why and when and estate plan requires two lawyers.
The highest-ranking court of each state licenses and regulates lawyers to practice law in that state. All states have adopted some version of a set of ethical rules called the rules of professional conduct to regulate how lawyers act toward clients, third parties, courts, and other lawyers. The rules protect clients and the public by requiring lawyers to do certain helpful things and prohibiting lawyers from doing certain harmful things, depending on who is involved and what is happening at the time.
One of the most important rules, the general rule for conflicts of interest, prohibits a lawyer from representing to clients against each other in the same matte. The rule exists because a client should be able to hire a trust a lawyer to serve only the client and work to protect the client’s best interests. Even if a couple is friendly toward each other and not battling each other at all, a lawyer cannot represent or advise both people if the lawyer believes that the representation or advice might force the lawyer to play favorites between the two clients.
A lawyer can write an estate plan for a happily married couple when both people want to do the same things and leave money and property to the same group of people when they die. This can even be true if each of the husband and wife has children by a previous relationship. Estate planning for a healthy, mentally strong couple with his and her separate children does not create a conflict if the couple wants to treat all of the children as part of one big family and everyone gets along.
A lawyer cannot help or advise a client to break the law, but the rules of professional conduct require the lawyer to represent the best interests of the client and help the client take advantage of legal opportunities. The slippery slope toward lawyer misconduct exists when one spouse’s superior wealth, knowledge, or mental ability offers that person a chance to influence the estate planning process to give his or her children an advantage over their step-siblings. Even if the stronger spouse does not intend to take advantage of the situation, a potential conflict of interest exists that the lawyer must consider carefully. Estate planning lawyers face this gray area frequently, and they must use great caution in these cases to protect their clients harm and themselves from accusations of misconduct.
The married couple and estate planning lawyer can avoid messy conflict of interest problems if the lawyer recognizes the potential conflict before accepting the estate planning job. The lawyer can advise the couple to consult one or more other experienced estate planning lawyers so that one spouse can hire a lawyer and the other spouse can hire another lawyer.
Separate lawyer representation allows each lawyer to advise the lawyer’s client about the estate plan alternatives without having to worry about the other spouse’s interests. Each person can share problems and concerns with his or her lawyer about relationships with the spouse or the spouse’s children that he or she may not feel comfortable discussing with his or her spouse. This open and honest conversation allows the lawyer to seek solution for those problems and concerns that a single lawyer would never discover in joint representation of the couple. Additionally, a loving couple’s relationship may redirect the lawyers’ naturally, competitive instincts to produce a more creative and effective estate plan than either lawyer could create independently. Therefore, the answer to the question in this article’s title is, yes, two lawyers can be better than one for some married couples.
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation; a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.
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