Joint Representation of Spouses: Privacy and Privilege Issues

Many estate planning practitioners routinely engage in the joint representation of spouses in connection with their estate planning. A joint representation differs from the representation of a single client, and the attorney-client privilege is adjusted accordingly. Joint representations have long been found to preclude a claim that communications between the attorney and one of those being jointly represented are privileged as against the other client of the joint representation. Wallace v. Wallace, 216 NY 28 (1915) (following the rule set forth in Hurlburt v. Hurlburt, 128 NY 420 (1891)).

In explanations of a joint representation to spouses in the estate planning context, the rule of privilege regarding conversations and writings between the attorney and the spouses is often described in the following manner: All communications will be privileged as against third parties, but the attorney will not be permitted to honor any request by one spouse to keep information confidential from the other. As a general proposition, this is true and represents what many practitioners understand to be the scope of their duty to keep client confidences and the circumstances under which the practitioner may be forced to disclose what would ordinarily be privileged information. Engagement or retainer letters often incorporate this understanding.¹ However, the enunciation of this “rule” or general understanding is not exactly an accurate statement, at least not as to certain third parties in a probate proceeding or will contest, as the recent case of Will of Donald Everett Axinn, Jan. 26, 2011, NYLJ 25 (col 2), illustrates.