I was recently asked to review several different sample “Consent to Joint Representation” forms that a firm was using with their estate planning clients and I was troubled by what they had written.  To set the stage, this firm was accustomed to providing coordinated estate planning services to families in situations where such a plan was called for.  In other words, they were involved in multigenerational joint representation.  Now I have no problem with this initially as there is nothing inherently wrong with joint representation in and of itself.  My problem was with what the firm tried to do with their waiver documents.

In one set of sample documents, the firm sought to inform the joint clients that a potential conflict exists.  So far so good as in some families disagreements on key decisions may arise after the representation has begun.  Unfortunately it went downhill from there.  The waiver went on to state that each client will be treated as if they were represented by separate counsel and that, absent authorization, no secrets will be shared between clients even if the resulting plans are incompatible or the plan of one client is detrimental to one of the other clients.  Now I’ve got a problem with that. 

To make matters even worse, the document went on to state that each client had the right to loyal and diligent representation.  While true, in the context of the waiver document that the statement was placed, I don’t see how an attorney can view the keeping of secrets in joint representation and the drafting of documents that end up being detrimental to one of the clients as meeting the definition of loyal and diligent representation.  I also don’t think any of their clients would either, particularly the one who eventually discovers that they were the one harmed by their own attorney’s act of drafting estate planning documents that ultimately proved to be detrimental to their interests.  You, as the attorney, don’t get it both ways.

The way that I see it is this; one can’t be partially loyal.  The duty of loyalty is to be equal among all clients, period.  It’s an all or nothing kind of thing.  Should one of the clients insist that a confidence be maintained and as a result an incompatibility in the overall estate plan arises in some fashion, it’s over.  You are out as the attorney and out for all.  Don’t try to pick one family member and continue on all the while maintaining the secret.  Not only would this be unethical (See Rule 1.7 of the Rules of Professional Conduct) but a viable malpractice claim may very well be on the horizon. 

This is one of the risks inherent with joint representation.  Conflicts can and sometimes do arise and when they do, the attorney often must completely withdraw.  We have seen the cases where an attorney lost contact with one of the joint clients in a personal injury suit and proceeded on with the representation of the remaining client/s.  Often the attorney attempted to justify the decision by arguing that too much, in terms of time and money, was invested in the case and he was not about to walk away from that investment.  The decision to remain or withdraw cannot be based upon investment.  It is solely about the client.  If proceeding with the representation of the others can in any way, shape, or form result in harm to the client you wish to no longer represent, it’s over.  You cannot represent any of the clients going forward.