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.

Disqualifed Donees

Although you can leave your estate to an assortment of persons: your spouse, your kids, your friends, your relatives, a charity, the government, etc., there are certain individuals who you cannot devise your inheritance to, as laid out in Prob C § 21350:

The person who drafted the instrument (e.g. the attorney);

A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of the drafter (e.g. the attorney's spouse);

Any partner, shareholder, or employee of any law partnership or law corporation in which the drafter has an ownership interest (e.g. the attorney's law firm or business partner);

Any person who has a fiduciary relationship with the transferor (e.g. a conservator or trustee) who transcribes the instrument or causes it to be transcribed. 

A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of a person described in the immediately preceding paragraph (e.g. the conservator's spouse);

A care custodian of a dependent adult who is the transferor (e.g. a nurse/in-home care worker); or

A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of a care custodian (e.g. a nurse/in-home care worker's spouse).

However, as is often the case, there are exceptions to this rule. For example, if an otherwise disqualified person is related to the transferring-party by blood (within the fifth degree) or by marriage, or is the registered domestic partner or cohabitant with the transferee or the person who drafted the will, then the devise is permissible. Prob C § 21351(a), (g). For example, wife assists husband in drafting a will and husband leaves his entire estate to his wife.

Furthermore, if an independent attorney who counsels the transferring-party about the nature of the intended transfer, determines that the gift is not a result of fraud, duress, menace, or undue influence, and signs and delivers to the drafter a Certificate of Independent Review, then the devise is permissible. Prob C § 21351(b). For example, Widower decides to leave her entire estate to her in-home care worker of many years. In-home care worker enlists the services of an independent attorney to thoroughly explain the legal ramifications of this transfer to the Widower. Attorney explains the legal situation to the Widower and obtains her signature on a Certificate of Independent Review. 

Finally, a transfer to a disqualified person is also permitted if approved by the court, following full disclosure of the relationships involved and on clear and convincing evidence that the transfer was not the product of fraud, duress, menace or undue influence. Prob C § 21351(d)-(e). Widower decides to leave her entire estate to her neighbor, who also happens to be the drafter of her will. Neighbor petitions Probate Court and states that Widower was competent at death, she had known Neighbor for many years, Widower's family never visited her and that Neighbor was not in financial trouble.