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Opinion date: Feb. 19, 2002

Ethics issue presented:

Can lawyer undertake joint representation of husband and wife in connection with the preparation of an estate plan where lawyer is aware of a prior consideration of a divorce?

Facts presented by Inquirer:

About one year ago, husband had asked lawyer for a referral for a divorce lawyer. Several names were provided to husband. Lawyer made no detailed inquiry into the husband's intention regarding divorce. Now, the husband and wife have jointly contacted the lawyer regarding the preparation of an estate plan, which would include the preparation of wills, and perhaps a trust agreement and possible re-titling of assets. The current concern for estate planning seems to have been prompted by the deteriorating medical condition of wife. Wife apparently has no knowledge that husband had considered seeking a divorce.

Advice given:

Concern arises over the fact that lawyer has received confidential information from husband regarding an inquiry for divorce consultation. Although lawyer is not provided with detailed information regarding husband's intentions regarding divorce, the fact that the husband has contemplated divorce may affect the advice that would be given to husband in connection with estate planning issues. Likewise, protection of wife's interest in connection with estate planning issues, including re-titling of assets, may be impacted by the possibility that husband has contemplated divorce.

Rules 1.7 and 1.6 are implicated. Under Rule 1.6, a lawyer cannot reveal information relating to representation of a client unless the client consents after consultation (with limited exception). Thus, the information received from husband that a divorce may be contemplated would be considered confidential information and cannot be revealed to wife without permission. However, the information that lawyer has from husband regarding possible contemplation of divorce is information that the wife may need in protecting her interests in estate planning decisions.

Under Rule 1.7, a lawyer shall not represent a client if the representation of the client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests unless the lawyer reasonably believes the representation will not be adversely affected, and the client consents after full disclosure and consultation. Because of the contemplation of divorce, an acute possible conflict exists between the interests of the husband and wife as to estate planning matters. Accordingly, absent disclosure of the husband's contemplation of divorce to the wife, including the implications thereof and the implications of proposed common representation and advantages and risks involved, representation of the husband and wife should not be undertaken in the estate planning matter.

While an acute potential conflict of interest may not exist in all estate planning representations for husband and wife, where one party has actively contemplated divorce, that acute possible conflict of interest does exist, and representation will be prohibited without complete disclosure and meaningful consent.

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