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Life partners often engage in joint estate planning, whether they are in common law, first-time or subsequent marriages. Given the generally non-contentious nature of joint estate planning and the partners’ belief in the permanency of their relationship, lawyers can easily be lulled into a false sense of comfort. But when joint retainer situations go bad, issues of solicitor’s negligence, discipline, rules of practice and moral and ethical considerations arise.

The nature, scope and duration of the retainer itself are often overlooked and may give rise to negligence issues. A formal retainer is not required for a solicitor-client relationship to exist; a client’s offer to employ, and a solicitor’s express or implied undertaking to do certain things, is sufficient. To be certain that clients know you are no longer acting for them or looking out for their interests, you should confirm in writing that the work has been completed and the retainer is at an end.

'Mirror wills' are commonly requested by a husband and wife. They provide for all assets of one to pass to the other and are identical in all respects. But what if one spouse comes back and requests changes that adversely affect the other? Do solicitors have an obligation to tell the other spouse? This is clearly a position of conflict and, unless there are prior instructions on how to deal with it, you have a difficult decision to make.

Ontario’s Rules of Professional Conduct create an ongoing obligation to examine whether a conflict of interest exists throughout the retainer as new circumstances or information may reveal a conflicting interest (R. 2.04(3)).

Faced with the ethical dilemma of making changes to a mirror will but not advising the other spouse, lawyers can, of course, refuse to draw the new will. This is neither practical nor satisfactory because the client will get another solicitor to draw the will; this may jeopardize the business relationship. Moreover, it does not solve the problem of whether to inform the other spouse. If you do, you risk being sued for breach of trust and negligence or for acting in conflict of interest.

To address such situations, commentary accompanying R. 2.04(6) provides that a lawyer who receives instructions from spouses or partners to prepare wills based on a shared understanding of what is in them should treat the matter as a joint retainer.

The lawyer should advise at the outset that if one of them were to subsequently communicate new instructions to change or revoke a will: 1) it would be treated as a request for a new retainer; 2) the lawyer would be obliged to hold the subsequent communication in strict confidence; and 3) the lawyer would have a duty to decline the new retainer unless the spouses had permanently ended their relationship, one had died, or the other spouse agreed to the lawyer acting on the new instructions. This commentary brings much-needed clarity and direction to the estates and trusts Bar.

The following checklist provides some best practices when drawing up mirror wills for spouses under a joint retainer. These should be recorded in notes and referred to in a reporting letter:

- Advise spouses that they should consider entering into an agreement not to change their wills without the consent of the other;

- Advise them that you are acting jointly for both, the information between them is not confidential and, if a conflict arises, you may be obliged to advise the other; and

- Remind them that if one dies the other may want to change his or her will and review some second marriage scenarios.

In considering whether to act for both husband and wife, ask the following questions:

- Did they ask you jointly to prepare their estate plans, or did one say 'I would like you to prepare wills and trusts for me and my spouse?'

- Have you represented either in another capacity?

- Is either a relative of another client whose interest may be affected?

- Is there any fiduciary duty that may arise to some third party to whom you may owe a duty of care or disclosure?

Accepting joint retainers requires some advance planning by the solicitor. By recognizing conflicts and fiduciary duties, considering their implications and dealing with them in a reasoned way, lawyers can avoid claims arising out of breach of fiduciary duty.

Suzana Popovic-Montag is a partner at Hull & Hull LLP in Toronto, practising in the areas of estates, trusts, capacity and fiduciary litigation. She is also a specialized estate mediator.