What must a New Hampshire lawyer do before jointly representing a married couple in estate planning, and what consent is required?

Plain-English summary

A married couple asks one lawyer to prepare a joint estate plan, including a joint revocable trust; one spouse also wants to direct an individually owned asset to a charity. Nothing in the initial fact-gathering signals that one spouse's interests would limit the lawyer's ability to represent both. The opinion addresses what the lawyer must do before and during such a joint representation.

The opinion explains that the rules are written around a single client, and "common representation" appears only in the ABA comments to Rule 1.7. On these facts, there is no direct adversity and no significant risk of material limitation, so there is no Rule 1.7(a) concurrent conflict and no Rule 1.7(b) informed consent is required at the outset. But the opinion concludes the lawyer should still obtain the clients' informed consent under Rule 1.6(a) before proceeding, because jointly represented clients do not impliedly give up Rule 1.6 protection just by hiring one lawyer, citing Georgia and Florida opinions. While Rule 1.6 does not require that consent to be confirmed in writing the way Rule 1.7(b) does, the opinion recommends written confirmation and describes a written acknowledgment that information will be shared freely as the better practice.

The opinion ties the analysis to Rule 1.4, requiring the lawyer to keep both clients reasonably informed, and stresses ongoing vigilance: if a concurrent conflict develops during the representation, the lawyer must address it and may have to withdraw under Rule 1.16.

In practice

The opinion holds that, under the New Hampshire Rules as they stood when it issued, a lawyer may jointly represent spouses in estate planning where no conflict exists at the outset, but should obtain informed consent under Rule 1.6(a) to share information between the clients, ideally in writing. It treats the duty to keep both clients reasonably informed (Rule 1.4) and the duty to monitor for emerging conflicts (Rule 1.7) as continuing, and identifies withdrawal under Rule 1.16 as the response if an impermissible conflict arises and cannot be resolved.

Common questions

Q: Does a New Hampshire lawyer need the couple's consent to jointly handle their estate plan?

A: Yes, to share information. The opinion concludes that even without a Rule 1.7 conflict at the outset, the lawyer should obtain the clients' informed consent under Rule 1.6(a) to share information between them.

Q: Must that consent be in writing?

A: Not strictly. The opinion notes Rule 1.6 does not require written confirmation the way Rule 1.7(b) does, but recommends a written acknowledgment that information will be shared freely between the clients and lawyer.

Q: Are spouses assumed to have waived confidentiality toward each other?

A: No. The opinion concludes, citing Georgia and Florida opinions, that jointly represented clients do not impliedly relinquish Rule 1.6 protections merely by engaging one lawyer for joint representation.

Q: What happens if the spouses' interests diverge mid-representation?

A: The opinion says the lawyer must stay vigilant for a concurrent conflict that arises during the representation and, if one develops that cannot be addressed, must withdraw under Rule 1.16.

Background and rules framework

The opinion interprets New Hampshire Rule 1.6 (confidentiality), Rule 1.7 (concurrent conflicts, with common representation addressed in the ABA comments), Rule 1.4 (keeping clients reasonably informed), the Rule 1.0(e) informed-consent definition, and Rule 1.16 (withdrawal). It draws on out-of-state authority that jointly represented clients retain Rule 1.6 protection absent informed consent to share.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NH Rule 1.6 (confidentiality of information; 1.6(a))
• MR 1.7 / NH Rule 1.7 (concurrent conflicts of interest)
• MR 1.4 / NH Rule 1.4 (client communication; 1.4(a)(3))
• MR 1.0 / NH Rule 1.0(e) (informed consent)
• MR 1.16 / NH Rule 1.16 (declining or terminating representation)

Other opinions cited:

• Georgia Bar Formal Advisory Op. 03-2 (2003): confidentiality in joint representation
• Florida Bar Op. 95-4: jointly represented clients and Rule 1.6

See also

• ABA Formal Op. 08-450: Confidentiality When Representing Multiple Clients in the Same Matter
• Florida Bar Op. 95-4: Confidentiality in Joint Representation
• Alaska Bar Op. 91-5: Withdrawal After Dual Representation of Estates

Source

• Landing page: https://www.nhbar.org/ethics/opinion-2014-15-10
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2019/11/14142643/2014-15-10-REFORMATTED-Joint-Representation-of-Clients-in-Estate-Planning.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
NEW HAMPSHIRE BAR ASSOCIATION
Joint Representation of Clients in Estate Planning
Ethics Committee Advisory Opinion #2014-15/10

ABSTRACT: Joint representation of clients in estate planning requires informed consent and
that the lawyer be from those clients and that the lawyer be on guard for impermissible conflicts
arising during the course of the representation which require withdrawal.
ANNOTATIONS:
Joint representation of client requires informed consent.
A lawyer must keep both clients reasonably informed about the representation.
A lawyer must be vigilant to detect if a concurrent conflict of interest arises between the clients
which requires the lawyer’s withdrawal.
RULE REFERENCES:
Rule 1.0(e)
Rule 1.4
Rule 1.6
Rule 1.7
Rule 1.16
Issues Presented:
What ethical guidelines apply when an attorney is asked to represent two clients jointly in the
preparation of estate planning documents? What type of informed consent, if any, must the
lawyer obtain before proceeding?
Factual Background:
Lawyer is asked to meet with Mr. and Mrs. Smith, a married couple, to discuss preparing estate
planning documents designed to manage the couple’s healthcare and financial decisions. The
couple has been married for thirty years and wants to create a joint revocable trust that benefits
each other during life, followed by their mutual children after the second spouse’s death. Mrs.
Smith discloses during the initial meeting that, in addition to planning for shared marital assets,
she wants to direct that a modest financial asset owned by her individually be made payable on
her death to a charity. Nothing during the initial fact-gathering raises a concern for the lawyer
that the interests of either spouse might limit the lawyer’s ability to prepare a joint estate plan for
the couple. At the end of the meeting, the couple wants to engage the lawyer to draft their
documents.
Analysis:
One of the most challenging aspects of an estate planning practice involves the joint
representation of clients. Before entering into joint representation, a lawyer must identify any
potential conflicts of interest between the clients, and clearly communicate the nature of the
client relationship and the lawyer’s ethical obligations. Evaluating potential conflicts of interests
requires the lawyer to assess the type of representation, the confidentiality protection afforded to
information received by the lawyer, the duty of loyalty owed to each client, and either the
existence or risk of adversity between the clients or a material limitation on the lawyer’s ability
to represent all clients involved. The lawyer must ensure the clients understand the
confidentiality considerations and the fact that potential conflicts may arise which could change
the lawyer-client relationship. Furthermore, the lawyer should obtain the clients’ informed
consent to share information at the outset of the representation.
Joint Representation Requires Informed Consent. The New Hampshire Rules of Professional
Conduct (referred to collectively as the “Rules” and individually as a “Rule”) are written as
pertaining to a single client and the only discussion of “common representation” is contained in
the ABA comments to Rule 1.7 [see comments 29 – 33]. Embarking on the joint representation
of two clients in connection with the same subject matter, especially in an estate planning
context, requires a careful analysis of the lawyer’s obligations to each client.
The majority of estate planning cases that involve document preparation for new clients with
common objectives are free of conflicts of interest. In this factual scenario, there is nothing
present that creates a direct adversity between the clients, nor any significant risk that the
lawyer’s representation of a client will be materially limited by the other client’s objectives.
Accordingly, at least at the outset, there is no Rule 1.7(a) concurrent conflict of interest of which
the lawyer must be concerned, and no informed consent is required under Rule 1.7(b). However,
informed consent should be obtained under Rule 1.6(a) before proceeding with the joint
representation.
Preserving the confidentiality of client information is a cornerstone of the lawyer-client
relationship. It is critical that clients involved in joint representation, such as spouses engaging
one lawyer for estate planning, understand the lawyer’s duties with respect to disclosure and
non-disclosure of client-related information.
Since the lawyer must preserve the confidentiality of two clients involved in common
representation, it is paramount that the lawyer’s duties be communicated clearly to both clients.
While neither the New Hampshire Supreme Court, nor this Committee, has opined on the issue
of implied consent to share confidential information in a joint representation context, authority
exists in other jurisdictions for the proposition that jointly represented clients do not impliedly
relinquish the protections afforded under Rule 1.6 merely by agreeing to engage one lawyer to
provide joint representation in the same matter. See Georgia Bar Assoc. Formal Advisory Op.
03-2 (Sept. 11, 2003); and Professional Ethics of the Florida Bar, Op. 95-4 (May 20, 1997).
Accordingly, we conclude that until the New Hampshire Supreme Court opines on the issue, a
lawyer should obtain the “informed consent” of both clients to allow all information protected
under Rule 1.6(a) to be shared between the clients in order to continue with the joint
representation of clients in estate planning matters.1 While this Rule does not require the clients’
informed consent to be “confirmed in writing,” as does Rule 1.7(b), it certainly is recommended
that written confirmation be obtained.
Given the importance of having all requisite information available to effectuate the clients’ goals
when preparing estate planning documents for a couple, a free flow of information among the
lawyer and the clients is essential to ensure the clients’ objectives are accomplished and the
lawyer complies with the Rules throughout the course of the representation. The best practice for
estate planning practitioners is to require clients to acknowledge, in writing, that information will
be shared freely between the clients and lawyer during the joint representation. Such written
acknowledgement establishes an unambiguous understanding, at the outset, as to whom
disclosure of information is permitted and when.
Compliance with Rule 1.4. The lawyer must keep both clients reasonably informed about the
representation under Rule 1.4(a)(3). A client’s failure to authorize a free exchange of information
with a joint client could place the lawyer in the difficult position of being in possession of
information that cannot be used to further the other joint client’s interests. In fact, the interplay
between the need to obtain informed consent under Rule 1.6(a) and compliance with Rule 1.4 is
emphasized in the ABA Comment [31] to Rule 1.7:
• As to the duty of confidentiality, continued common representation will almost certainly
be inadequate if one client asks the lawyer not to disclose to the other client information
relevant to the common representation. This is so because the lawyer has an equal duty of
loyalty to each client, and each client has the right to be informed of anything bearing on
the representation that might affect that client’s interests and the right to expect that the
lawyer will use that information to that client’s benefit. See Rule 1.4.
Rule 1.7 Concerns. It is not a per se conflict to represent two clients in connection with a joint
estate plan. Concurrent representation of spouses in estate planning generally is non-adversarial
and it often is more efficient and economical for spouses to engage one lawyer to assist with all
aspects of a common plan. An alignment of interests may not always be the case. Sometimes
joint clients involved in estate planning have common, but not identical goals, and it is important
for the lawyer to determine at the outset of the representation whether (1) any such divergent
goals exist and, if so (2) does the divergence rise to the level of a conflict of interest under Rule
1.7(a) that may or may not be waived through written informed consent under Rule 1.7(b).
A concurrent conflict of interest exists under Rule 1.7(a) if: “(1) the representation of one client
will be directly adverse to another client; or (2) there is a significant risk that the representation
of one or more clients will be materially limited by the lawyer’s responsibilities to another client,
a former client or a third person or by a personal interest of the lawyer.” When evaluating at the
outset whether joint representation of spouses in estate planning triggers a conflict under Rule
1.7(a), the lawyer must gauge the likelihood that the clients’ interests currently differ or
reasonably may diverge during the course of joint representation. If so, the lawyer must decide
whether such difference or divergence materially would interfere with the lawyer’s independent
judgment and evaluation of estate planning alternatives that otherwise could be pursued for any
one spouse. See Rule 1.7(a)(2) and ABA Model Rule Cmt. 8; see also generally N.H. Bar Assoc.
Ethics Comm. Advisory Op. No. 1988-89/6 (Nov. 10, 1988) (advising a lawyer to weigh all
factors carefully in order to determine whether a lawyer’s independent professional judgment
would be compromised by the dual representation of a husband and wife who plan to live
separately but not divorce).
When assessing joint representation of clients, the lawyer should keep in mind that the failure to
identify a concurrent conflict of interest under Rule 1.7 or obtaining informed consent to what
later is determined to be a non-waivable conflict, is evaluated under New Hampshire’s “harsh
reality” test. The harsh reality test is based on an objective standard under which the lawyer
should inquire “whether, if a disinterested lawyer were to look back at the inception of the
representation once something goes wrong, would that lawyer seriously question the wisdom of
the first attorney’s requesting the client’s consent to this representation or question whether there
had been full disclosure to the client prior to obtaining the consent.” See generally N.H. Bar
Assoc. Ethics Comm. Formal Op. No. 1988-89/24 (Aug. 10, 1989).
Additionally, the existence of a conflict of interest must be evaluated throughout the entire
course of any joint representation. For example, informed consent would be needed if (1) the
interests of the clients diverge, and they now want to benefit different people with different
plans, (2) each client disagrees as to the other’s choices of people to act in various fiduciary
capacities, (3) the clients no longer wish to use a joint revocable trust or (4) one party asks for
information to be withheld from the other party. When new facts develop, the lawyer must assess
whether a conflict exists under Rule 1.7(a), whether lawyer may continue to represent both and,
if so, whether a consent is required and able to be provided under Rule 1.7(b). Under the facts
described in this opinion, there are no conflict of interest concerns that would trigger the need for
a detailed analysis under Rule 1.7. The fact that Mrs. Smith wishes to make a separate, modest
charitable bequest, which was disclosed to the other spouse raises no adversity of interests and
does not constitute a planning nuance that would materially limit the lawyer’s ability to represent
Mr. Smith.
Potential Withdrawal from Joint Representation. If the jointly represented clients later develop
significantly divergent goals or become estranged during the joint representation, then the lawyer
may need to terminate the representation of both clients if effective informed consent is not
feasible under Rule 1.7(b). Notwithstanding the clients’ clear agreement to share all client-
related information at the outset of the representation, if one spouse communicates information
to the lawyer that is relevant to the overall estate plan, but refuses to allow the lawyer to disclose
the information to the co-client, withdrawal will be mandated if the inability to disclose
information would impair the lawyer’s duties under Rule 1.4(a)(3) to the co-client (See ABA
Comment [31] to Rule 1.7). If withdrawal from joint representation is deemed necessary, the
withdrawal must be accomplished in a manner that protects both clients’ interests, and the lawyer
must continue to protect client-related information even after termination of the representation.
Rule 1.16. Additionally, if one joint client asks that material information be withheld from the
other client, the lawyer who reached an agreement with the clients, and obtained informed
consent in conformance with Rule 1.6(a) to share information, has a duty to disclose the
information to the fellow client.
Alternatively, if a lawyer fails to obtain the requisite informed consent under Rule 1.6(a) at the
outset of the joint representation, the lawyer is prohibited from sharing any information that a
client has requested be kept secret. In this latter scenario, the lawyer should attempt to obtain
permission from the disclosing client to share information and explain the ramification of any
resulting denial, specifically that a withdrawal from representation of both clients would be
necessary. If disclosure was not authorized at the outset of the joint representation, the lawyer
also should consider whether a “noisy withdrawal” will be warranted, after evaluating the nature
of the confidence and the harm that could result if the confidence is not disclosed.2
Best Practices for Obtaining Consent. It is essential that the lawyer develop procedures to ensure
clear and unequivocal client expectations as to how the lawyer will handle joint representation of
clients. Best practices dictate that, at minimum, several issues must be discussed at the initial
meeting before the lawyer prepares documents for a joint estate plan, including the following: (1)
there will be full disclosure of all client-related information between the lawyer and the joint
clients; (2) no secrets shall be kept by the lawyer from either client; (3) throughout the course of
the joint representation, both clients must concur with the overall planning goals, despite the fact
that each could, with consent of the other and consistent with the Rules, deviate from original
objectives; (4) should differences arise between the clients’ objectives that reasonably cannot be
resolved, the lawyer may be forced to withdraw from representing both clients; and (5) each
client has the right to request a copy of the client file following termination of the joint
representation. Although not mandated by the Rules, from a risk management standpoint and to
ensure client expectations are clear, the best practice is to obtain the clients’ informed written
consent to the disclosure of all information to both clients involved in the joint estate plan and
what will be communicated by the lawyer between the joint clients.
ENDNOTES:
[1] To obtain “informed consent,” the lawyer must share “adequate information and explanation”
with both clients of the “material risks of and reasonably available alternatives to the proposed
course of conduct.” See Rule 1.0(e).
[2] For example, a “noisy withdrawal” might involve the attorney disclosing to the wife that
information was disclosed by the husband with specific instructions not to share it with the wife,
and the attorney is thereby forced to withdraw from representing either husband or wife. See for
example A v. B, 726 A.2d 924, 158 N.J. 51 (1999).
SUBJECTS:
Joint Representation
Estate Planning
Concurrent conflicts of interest.
• By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its June
18, 2015 meeting.