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Keywords

attorney representation, representation, estate planning, Joint representation, ethical considerations, engagement letters, solo representation, married couples, partnerships

Abstract

Attorneys routinely represent married couples jointly in estate planning matters. Joint representation of married couples—and, increasingly, unmarried romantic partners—is a routine practice for most estate planners. This practice was not always so widely accepted. Beginning in the 1990s, scholars, attorneys, and interest groups successfully advocated for the widespread acceptance of joint representation in estate planning. In a joint representation, the attorney represents both individuals in a collaborative form of representation where confidences and goals are shared between both clients and the attorney. Proponents of joint representation in the estate planning setting argue that it reduces costs, is more consistent with client desires, and can better serve the clients by ensuring coordination of their estate plans. Of course, joint representation still has its critics, and it is not appropriate in all circumstances. For the most part, however, joint representation of married or cohabitating romantic partners is considered a routine and ethically sound practice.

Despite its widespread acceptance, joint representation presents a variety of ethical and professional pitfalls for attorneys. While some relationships are egalitarian, copacetic, and enduring, the fact remains that many are not. If a relationship sours, the lawyer can end up in the middle of the crossfire. This Article offers insight to the perils and pitfalls of joint representation of spouses and unmarried romantic partners. Although the Article often refers to married couples in the interest of simplicity, most of the analysis applies equally to unmarried romantic partners. This Article proceeds as follows. Part II offers advice for deciding between sole and joint representations. Part III identifies some key considerations for engagement letters. Part IV considers ethical dilemmas that may arise during a joint representation. Part V considers the circumstances that will cause a joint representation to terminate and the lawyer’s options following the termination of the joint representation.

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