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Anderson: Walking Away From a Mortgage Environmental Nutrition editors: The lowdown on a low-acid diet Pomegranate juice maker used deceptive ads, FTC judge rules Relatives outraged over spoof on Hamas chief's killing The Kosher Gourmet by Megan Gordon: Enjoy a celebration of the most rich and layered flavors: Black bean, sweet potato and quinoa chili May 21, 2012 Mark Clayton: Cybersecurity: How US utilities passed up chance to protect their networks Howard LaFranchi: NATO summit: Who will foot the bill for long-term Afghanistan security? Chris Farrell : Earn Dividends in Emerging Markets with This WisdomTree ETF James K. Glassman: 5 Stock Picks Among Online Retailers Stephen Whiteside, Ph.D. : Mayo Clinic Medical Edge: Social anxiety disorder --- or just shy? 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Jewish World Review May 29, 2007 / 12 Sivan, 5767 Do we need a ‘conflicts waiver’? By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: After I retired, my wife and I moved to another state to spend our "golden years." Because we had not been to a lawyer in years, we decided to wait until after our move to get new documents in our new state of residence. We carefully chose the firm and the lawyer after much research on our part. Our needs, we thought, were relatively simple: We don't have a taxable estate, have been married for 49 years and have two grown children who are both professionals, married and stable. I have a sizable IRA and, together, we own our home and our bank and brokerage account. After we laid this out to the lawyer, he made some suggestions, and then shocked us by telling my wife and me that we would have to sign a "conflicts waiver." He told us that there were possible conflicts in doing the work for both of us, and he was duty bound to explain them to us. While he made a sincere effort to explain it, we still do not understand. Thankfully, your column is also carried in our local paper in our new city. Could you please give us a layman's answer to this conflict silliness? We have been married for a long time and don't see the problem. A: While it may sound silly or strange, the attorney you saw is doing his job correctly. While we all have heard over and over that "no man can serve two masters" — or mistresses, as the case may be, it probably didn't sink in here. But the fact is, whenever a lawyer represents two or more individuals, there is always at least the potential of a conflict of interest, even when the clients agree about everything. The same is true when a married couple sees an attorney because the estate plan decided upon, depending on the circumstances, may well result in one spouse being deprived of a legal right. Whenever a person in a joint representation may be deprived of a legal right, the lawyer must advise that person that he or she is entitled to seek the opinion of an independent attorney and, in fact, must recommend a second attorney. However, when both spouses are adamant that they wish to be represented by the same lawyer, the lawyer should incorporate both spouses' desires in what is called a "joint" or "dual" representation letter that is signed by both spouses. This type of letter is important because both spouses have acknowledged that each was advised of the potential or actual conflict and waived the right to seek independent counsel. There are some situations in which each spouse should be represented by an independent lawyer — such as a premarital or separation agreement and, depending on the circumstances, some second-marriage situations may also require the need for two lawyers. In addition, where assets are transferred from one spouse to another, extra protection may be warranted. The joint representation letter should specifically include the parameters of the lawyer's representation that generally include, in estate-planning situations, 1) review of existing wills, powers of attorney, trusts, etc.; 2) recommendations about how each of you wants to dispose of your property at disability or death; 3) preparation of documents necessary to accomplish your goals, including wills, powers of attorney, health care powers of attorney and the like. The letter should go further to advise you that while in most circumstances one lawyer couldn't represent both of you, your knowledgeable waiver of having independent counsel represent each of you is the reason the lawyer is proceeding. Also, it should include that both of you will provide open and complete disclosures and exchanges of information, and if a conflict does arise in the future, the lawyer must withdraw from any further joint representation and cannot represent either of you Taking the NextStep: In the more than 18 years that we have been writing our columns, this is the first reader request for information about dual-representation conflicts. This lawyer knows what he is doing. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2007, Jan Warner

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