Do you act for husbands and wives buying a house together,
giving a mortgage together, or preparing family wills? Of course
you do. Who doesn't?
If you do, just remember the joint retainer rules. Even though
the clients are married to each other and doing little more than
buying a house or doing mutual wills leaving everything to the
other with a gift over to their children, rule 2.04(6) of the Rules
of Professional Conduct considers that the lawyer has a joint
retainer i.e. two clients which means that the lawyer must advise
the clients that:
the lawyer has been asked to act for both of them;
no information received in connection with the matter from one
can be treated as confidential so far as the other is concerned;
if a conflict develops that cannot be resolved, the lawyer
cannot continue to act and may have to withdraw.
Subrule 2.04(8) requires that, after so advising the clients,
the lawyer obtain both clients' consent.
The rule also includes special commentary when acting for
spouses making wills about advice to clients should they want to
retain the lawyer to change their wills in the future and the duty
of disclosure and the possible inability to act. Check out the rule
on the Law Society website. And make sure you have the signed
document of consent in your file. The Law Society auditors will be
looking for it.
While many lawyers might consider the rule odd, especially in
the context of a simple residential purchase or will, it is a rule
that requires understanding and compliance
Originally published June 2014
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