Tuesday, April 26, 2005
The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 05-434 which address conflicts which may arise when an attorney represents several members of the same family in estate planning matters.
The Opinion validates the common practice of one lawyer representing several members of the same family. The basis of this authorization is that the interests of the parties may not be directly adverse and that more than conflicting economic interests are needed before the attorney may not represent both.
The Opinion recognizes, however, that current conflict of interest may result even without direct adversity if there is a significant risk that representation of one client will materially limit the representation of another.
Despite the “permission” granted by this Opinion, I continue to think the representation of more than one family member in estate planning matters is problematic. A potential conflict may turn into a real conflict at a later time leaving the attorney in an untenable position. It is simply not worth the risk. I believe it is better for a lawyer to owe 100% of his or her duties to one and only one family member. There will then never be doubt whom the attorney represents or what actions the attorney should take if something “gets sticky,” True, practitioners may lose some business and some clients may have higher legal fees but I believe this is preferable to the alternative.