by Francis Burton Doyle, Esq., WealthPLAN
I first experienced the phenomenon of the Family Lawyer while growing up in an Irish neighborhood in San Francisco. His name was James Joseph Sullivan and my mother and my father and all my mother’s relatives who were native San Franciscans used him for all of their legal matters including the making of all of their wills and settling of all of the estates resulting from the deaths of the various family members. He represented everyone and none of our family members were bothered by the fact that his representation of all of the family members put him in a conflict of interest. Likewise the family members knew he would take the family’s secrets and confidences to the grave. In that time, those secrets and confidences were the shadows of the family treasures and jewels and viewed communally. Individual secrets would also be taken to the grave by the parish priest through the seal of confession.
An often-overlooked issue in the area of conflicts between family members is in the area of disclosure. California Business and Professions Code provides, “A lawyer shall keep his client’s confidences inviolate.” Notwithstanding this protection, in the case of a “joint representation” such as the representation of a married couple or the representation of a parent and child, the information imparted by one client to the lawyer is not privileged from disclosure to the other client. In these cases of joint representation, there exists no protection from disclosure of information made by one client to the lawyer relative to the other client. Because of the substantial consequences of such a lack of protection from disclosure, one of the most significant elements of any waiver of conflict in the instance of joint representation is the client’s written acknowledgment that information disclosed to the lawyer cannot be withheld from the other party to the joint representation.
In mourning the death of the Family Lawyer you can easily search for the reasons. Families today are different. This is true. Divorce is prevalent so the representation of today’s family is very likely to involve prior marriages and children from different marriages. Everyone in my Irish neighborhood was Catholic and a person’s relationship to the Parish Church meant something and being divorced was at the very least a stigma. So the conflict of interest issues presented by multiple marriages and children of different marriages were a rarity rather than being commonplace as they are today. Prior marriages present more complex separate property and community property issues, which need to be ferreted out. For instance, a husband has brought a business into the marriage, which was his separate property after his first divorce. And his wife received the house from her first divorce. The conflict of interest in characterizing this property is both inherent and quite apparent.
J. Joseph Sullivan would cavalierly say, “if there was a conflict of interest between the couple, there would be a divorce and then I wouldn’t have a conflict of interest problem because I don’t do divorces.” California Rule of Professional Conduct Section 3-310 simply states, “A lawyer shall not represent parties having a adverse interests.” The interesting interpretation here is that “adverse” has been interpreted to include “potentially adverse”. As consequence of this rule, in order to represent a couple in the context of a joint representation, it is absolutely necessary to obtain a written conflict waiver. The conflict waiver should disclose the potential areas of dispute like the separate property vs. community property characterization of the couple’s property and whether to treat all of the children from both marriages equally and determining which of the children are going to be the executor or trustee.
It should be noted that the conflict rules apply equally to the representation of parents and their children. These conflicts arise when doing family partnerships, LLCs and corporations. It is crucial for the lawyer to obtain conflict waivers and always keep in mind, which one of the family members is really the client.
With the death of the Family Lawyer it is critical to obtain written waivers of conflicts of interest in joint representation situations. Those waivers should include a written warning that the attorney client privilege will not prevent one party of the joint representation from maintaining confidences.
Quote to Ponder
“Work is about a search for daily meaning as well as daily bread,
for recognition as well as cash,
for astonishment rather than torpor; in short, for a sort of life,
rather than a Monday-to-Friday sort of dying.”
~Studs Terkel (1912–2008), American writer, journalist, broadcaster
About the Author:
Francis Burton Doyle, Esq., is the founder of WealthPLAN, with over 30 years of experience in Tax, Estate-Planning Probate, Trust Administration and Litigation. He is Certified Legal Specialist, Taxation Law and Probate, Estate Planning and Trust Law (California State Bar). Frank is the Past President of both the Santa Clara County Estate Planning Council & the Silicon Valley Planned Giving Committee. Frank is also the Past Chair of the Planning Committee, Annual Jerry A. Kasner Symposium, Santa Clara University, School of Law. Mr. Doyle provides all the course development and instruction for the Advanced Legal Training Institute.
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