As families begin planning for the transition of assets, family businesses, and personal legacies, it is natural to approach the process as a shared family undertaking. Everyone may have the same goal: preserving wealth, avoiding conflict, and ensuring a smooth transition to the next generation. From that perspective, it can seem reasonable to assume that one lawyer can simply represent “the whole family.”
In estate planning, however, that assumption can create important legal and ethical questions. Planning for multiple generations simultaneously – whether involving spouses, parents and adult children, or family business owners and their successors – can create uncertainty about whose interests the lawyer represents. Family harmony may be the goal, but experienced estate planning attorneys must carefully respect legal and ethical boundaries to ensure that the resulting plan is both legally sound and defensible.
Who Is the Client?
This question of who a lawyer actually represents can be more complicated in estate planning than in many other areas of law. Estate planning lawyers frequently work with multiple people who have closely connected interests. A lawyer may meet with a husband and wife to prepare reciprocal estate plans, help parents think through a transfer of a family business, or work with several generations as a family develops a long-term wealth transfer strategy.
But close family relationships do not automatically mean that everyone is the lawyer’s client.
The ethical framework governing these situations includes Model Rule of Professional Conduct 1.7, which addresses conflicts of interest involving current clients. Under Rule 1.7, a lawyer generally cannot represent a client when there is a “concurrent conflict of interest.” A conflict may arise when one client’s interests are directly adverse to another’s, or when there is a significant risk that the lawyer’s representation of one client will be materially limited by responsibilities to another client, a former client, a third person, or the lawyer’s own personal interests.
That second category is particularly important in estate planning. Family members may generally agree today while having interests that could diverge tomorrow.
When Can One Lawyer Represent Multiple Family Members?
Multiple representation is not automatically prohibited. In appropriate circumstances, a lawyer may represent more than one client if the lawyer reasonably believes that he or she can adequately represent the interests of each individual client and obtains each client’s informed consent, confirmed in writing.
Clients should expect these conversations.
At the beginning of the representation, an attorney should clearly explain who the attorney represents and what joint representation means. For example, when representing both spouses, the lawyer should explain that the lawyer represents both individuals—not one spouse more than the other.
One important consequence is confidentiality between jointly represented clients. Generally, one client cannot tell the lawyer something and instruct the lawyer to keep it secret from the other jointly represented client. The lawyer may, of course, maintain confidentiality from third parties, but cannot ordinarily serve as a repository for secrets that materially affect the joint representation.
The lawyer also cannot take sides.
These expectations and limitations should be clearly addressed in the engagement letter and discussed before substantive planning begins.
What Happens When Family Interests Diverge?
Even with careful planning and full disclosure, conflicts can develop.
Perhaps spouses discover they have fundamentally different ideas about how assets should be distributed. A parent and child may disagree about the future of a family business. Or one family member may seek advice that directly conflicts with another person’s interests.
When that happens, the attorney cannot simply choose a side based on which client is more likeable, more vocal, or more lucrative. Depending on the circumstances, the attorney may be required to withdraw from representing one or all of the affected clients.
While that may feel inconvenient, it is an important safeguard. A lawyer’s ethical obligations are designed to ensure that each client receives independent and loyal representation.
The Myth of the “Family Lawyer”
These principles are especially important in intergenerational planning.
A “family” is not, by itself, a lawyer’s client. An estate planning attorney represents specific individuals. For example, in preparing a will or trust, the lawyer generally represents the person making the estate plan – not the beneficiaries who may ultimately receive property.
That distinction becomes particularly important when an adult child brings an elderly parent to an attorney’s office to prepare or revise an estate plan. The child may be helpful in arranging the appointment or providing background information, but the parent is the client.
The attorney must be diligent in determining and following the parent’s wishes – not simply implementing the child’s suggestions. Clients and family members should therefore expect that the attorney may ask an adult child or other relative to leave the room for part of the meeting. That private conversation can help the attorney confirm the client’s intentions and ensure that decisions are being made freely.
An attorney generally cannot disclose information about a parent’s estate plan or assets to adult children without the parent’s express permission.
Ethical Boundaries Protect Families
Families can make the process smoother by having open conversations early about who the lawyer represents, whether joint representation is appropriate, how confidentiality will work, and what will happen if interests diverge.
A thoughtful estate plan should account not only for assets and tax considerations, but also for family dynamics and the ethical framework governing the attorney-client relationship. By addressing those issues openly from the beginning, families can reduce misunderstandings and create a stronger foundation for the future.
Michael J. Rossi is a partner and litigation attorney at the Boston-based law firm Conn Kavanaugh.
Mike frequently counsels attorneys on ethical issues and defends them from claims of malpractice.
He can be reached at mrossi@connkavanaugh.com
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