July 20, 2012
Conflict of Interest
Attorneys, like other professionals, must follow ethical guidelines. Yes attorneys have ethics, or at least some do. Here in California, because we are so special, we have our own ethical rules. The vast majority of states model their rules after the American Bar Association's model rules. California was too cool for the ABA and adopted their own version although the two are similar in many respects.
One fundamental ethics rule is that all attorneys must avoid representation which involves a conflict of interest. Cal Rules of Prof Cond 3-310. While this rule may sound technical, conceptually it is easy to grasp. For example, assume husband and wife engage an attorney to assist with the drafting of their living trust. Invariably husband and wife will have somewhat divergent views as two minds never think exactly alike on every issue. Therefore, the attorney is presented with a conflict of interest situation. On one hand, husband will have his own views on where the marital estate should go while conversely the wife will have her own views. Since the attorney is entrusted with being an advocate for each client, he or she cannot do this to the full extent because if he advocates for husband's viewpoint this logically impairs wife's position and vice versa.
However, the California ethics rules allow for an attorney to cure a conflict of interest and represent the affected parties provided the attorney obtains from each their informed written consent. Cal Rules of Prof Cond 3-310. This consent is obtained after disclosing to the parties the conflict of interest and the dangers associated with it.
In the case of estate planning, few if any couples do not consent to dual representation. One reason might be is that it doubles the cost conceivably if two attorneys are used instead of one. Another reason why couples typically consent is that their interests are often aligned though not perfectly identical. For example, the vast majority of couples mutually agree to leave everything to the survivor and the remainder to the children split equally. Still, even if everything is already understood prior to meeting the attorney, counsel must nonetheless obtain their informed written consent because conflicts may arise.