Ethics Questions from Readers.
Legal Ethics Advice and Counsel for Solos and Small Firms.
I was hired by a client to draft a prenuptial agreement. My client’s fiancé decided not to hire his own attorney. So, I had him sign a statement of non-representation explaining that I did not represent him regarding the prenup as well as telling him that I could not give him any legal advice. But the couple now wants me to draft Wills, Living Wills and Health Care Powers of Attorney for each. The parties plan to sign the prenuptial agreement and estate planning documents on the same day. Do I have a conflict of interest in representing both parties regarding the estate planning documents but not with the prenuptial agreement?
Estate Planning Attorney, Westerville, OH
The short answer is yes. Technically, you are representing clients in two matters simultaneously – a single representation of one client for the prenup and a joint representation of both clients regarding the estate planning documents. If the prenup representation had occurred first then the conflict of interest analysis would have been limited to the estate planning representation and less of an issue. But the joint representation regarding the estate planning document creates a current client conflict of interest that, due to timing, extends to the prenup representation as well. So, both clients must give written consent to both representations (the prenup and the estate planning) after you fully explain to each client the respective limitations of your prenup and estate planning representations. I would make sure that the document literally says that the client gives his or her consent. In addition, you must be sure that you can still provide competent and diligent representation to each client. If you cannot get the written consent of both parties, at least you could do the prenup and the estate planning documents for the original client.