Acting for Husbands and Wives

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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) 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; and
  • 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 obtains 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.

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