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7 Prob. & Prop. 26 (1993)
Representing Both Spouses: The New Section Recommendations

handle is hein.journals/probpro7 and id is 220 raw text is: Representing Both Spouses: The New Section Recommendations By Malcolm A. Moore and Anne K. Hilker or two years the ABA Special Probate and Trust Division Study Committee on Professional Respon- sibility (Committee)-Malcolm A. Moore, Chair; Jackson M. Bruce Jr.; Christopher H. Gadsden; Anne K. Hilker; Ronald C. Link; Jeffrey N. Pennell; Bruce S. Ross; Clare H. Springs; James R. Wade; and Joseph L. Wyatt Jr.-has been engaged in the study of troublesome but everyday ethical problems besetting the estate planning lawyer. The committee's first set of recommendations, on the lawyer's duties in representing husband and wife, has been approved by both the Division Council and the Council of the Section as a whole. The recommendations have not been approved by any other ABA Division or Section or by the ABA House of Delegates, or by directors of the Ameri- can Law Institutes Restatement of the Law Governing Lawyers project. The recom- mendations therefore are not offered as an official interpretation of the law govern- ing legal ethics, including the ABA Model Rules of Professional Conduct, although the Section believes the recommendations are consistent with the Model Rules- which, in fact, were used by the Committee as its starting point. The recommendations are offered rather as a prescriptive guide (prepared and approved by experienced trust and estate lawyers, both practicing and academic) to the serious ethics issues estate planners routinely face. This article summarizes the major points of the recom- mendations. The essential conclusions of the study are presented in the box on page 28. For some time, estate planners have been hampered by inadequate guidance from the ABA Model Rules of Professional Conduct and other available guidelines. Promul- gated in 1983, the Model Rules recognized that the lawyer may not be always an adversary but rather may serve as counselor. However, the commentary to those Rules did not provide extensive guidance on the handling of day-to-day com- munications between parties and counsel in estate planning. Applica- ble rules include: Probate & Property

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