A conflict of interest in estate planning arises whenever your attorney’s loyalty to you is compromised by obligations to another client, to a third party, or by the attorney’s own financial stake in the outcome. These situations show up more often than most people expect, especially when one lawyer represents both spouses, drafts a plan that names the lawyer as executor, or takes payment from a family member other than the person whose plan is being written. The rules governing attorneys treat these problems seriously because a flawed estate plan can quietly cost your family a great deal after you are no longer around to correct it.
What the Ethics Rules Actually Cover
The American Bar Association’s Model Rules of Professional Conduct set the framework most states follow. Rule 1.7 identifies a conflict in two situations: when representing one client is directly adverse to another client, or when there is a significant risk that the lawyer’s representation will be materially limited by duties to someone else or by the lawyer’s own interests.1American Bar Association. Rule 1.7 Conflict of Interest Current Clients The second category is where estate planning conflicts usually live. The lawyer is not overtly working against you, but their judgment is tilted by loyalties you may not know about.
The commentary to Rule 1.7 specifically flags estate planning as an area where conflicts commonly arise, noting that preparing wills for multiple family members can create them, and that during estate administration even the identity of the client can be unclear.2American Bar Association. Rule 1.7 Conflict of Interest Current Clients – Comment
One Lawyer for Both Spouses
The most frequent conflict scenario involves a single attorney representing both husband and wife. It feels efficient. You share finances and children, so why not a lawyer? The problem is that your interests and your spouse’s interests are not identical, even when they feel that way in the conference room.
Blended families sharpen the issue. One spouse may want to protect children from a prior marriage; the other may want everything to flow to the surviving spouse first. Even in a first marriage, disagreements about charitable gifts, unequal shares among children, or asset protection can quietly produce divergent goals that a single lawyer cannot serve at the same time.
The Confidentiality Trap
Joint representation carries a specific hazard that surprises many couples. Communications between jointly represented clients and their shared lawyer are generally not privileged as between the clients themselves. If the two of you later end up in litigation, neither can prevent the other from accessing what was said during the joint representation.2American Bar Association. Rule 1.7 Conflict of Interest Current Clients – Comment
Suppose one spouse privately tells the lawyer about a hidden account or a child from a prior relationship. The lawyer now holds information directly relevant to the other spouse’s plan but has been asked to keep it secret. The ethical rules treat that situation as essentially unworkable. The lawyer owes equal loyalty to both clients, and each has a right to know what affects their own interests. If one client insists on secrecy about something material, the lawyer usually must withdraw from representing both.2American Bar Association. Rule 1.7 Conflict of Interest Current Clients – Comment A careful estate planning attorney will explain this ground rule at the outset and ask both clients to agree that anything relevant will be shared.
Parents and Adult Children
The same tensions apply when a lawyer prepares plans for parents and their adult children at the same time. A parent may want to leave unequal shares, or attach conditions to inheritances. An adult child may want their own plan structured to reduce what flows back to siblings. A single lawyer who knows everyone’s intentions is in an impossible spot when those intentions collide. Separate counsel for each generation is almost always the safer path.
When the Attorney Stands to Gain
A different kind of conflict shows up when the lawyer stands to benefit personally from the plan being drafted. Rule 1.8 prohibits lawyers from soliciting any substantial gift from a client, including a testamentary gift, unless the lawyer is related to the client.3American Bar Association. Rule 1.8 Current Clients Specific Rules The line is a sharp one: a lawyer should not be drafting documents that put money in their own pocket.
Even a gift the client offers on their own initiative is treated with suspicion. The attorney-client relationship is inherently one of trust and dependence, and courts commonly presume that a substantial gift from client to lawyer resulted from overreaching rather than genuine generosity. The burden of proving otherwise falls on the lawyer, and it is a heavy one.
Business dealings between a client and their lawyer face similar scrutiny. Under Rule 1.8, the terms must be fair and reasonable to you, the lawyer must advise you in writing to seek independent counsel, and you must give written consent to the essential terms and to the lawyer’s role.3American Bar Association. Rule 1.8 Current Clients Specific Rules Any real estate deal, loan, or partnership pitched by your estate planning lawyer should trigger real caution.
The Lawyer as Your Executor or Trustee
Clients sometimes ask their estate planning attorney to serve as executor or trustee. This is not automatically prohibited, but it layers a fiduciary role on top of an advisory one, and the two roles can pull in different directions.
As executor or trustee, the lawyer owes duties to the estate’s beneficiaries. As the drafter, they may hold confidential knowledge of the deceased’s intentions that creates tension with those duties. The financial angle makes the conflict concrete. An attorney-fiduciary often collects both fiduciary commissions and legal fees for the administration. When the same person sets and approves their own compensation, the check-and-balance that normally exists between a separate executor and a separate lawyer disappears.
ABA Formal Opinion 02-426 addresses the practice directly. A lawyer may let a client know they are available to serve as fiduciary, but the lawyer’s self-interest cannot interfere with independent judgment in recommending the best person for the role. Where the potential compensation or other factors create a significant risk of compromised judgment, the lawyer must obtain the client’s informed consent, confirmed in writing, and must disclose the expected compensation, whether it is subject to court approval, and how it will be calculated.
When Someone Else Pays the Bill
Estate planning often involves one family member paying for another’s legal work. An adult child may pay for a parent’s new plan; a wealthier spouse may cover both. Rule 1.8(f) allows this arrangement but imposes three conditions: you must give informed consent, the payer cannot interfere with the lawyer’s independent judgment or with the attorney-client relationship, and your confidential information must remain protected.3American Bar Association. Rule 1.8 Current Clients Specific Rules
The distinction matters more than it sounds. If your son is paying the lawyer to draft your plan, the client is you, not your son. Your son has no right to sit in on meetings, review drafts, or direct how your assets are distributed. If the lawyer starts taking instructions from the person writing the checks rather than the person whose name goes on the documents, that is a conflict, and it is a familiar fact pattern in elder abuse and undue influence cases. Ask yourself whether the lawyer ever meets with you alone, and whether the plan reflects what you actually want.
Older Clients and Diminished Capacity
Estate planning frequently involves older clients whose cognitive abilities may be slipping. Under Rule 1.14, the lawyer must maintain a normal attorney-client relationship with a client who has diminished capacity to the greatest extent reasonably possible.4American Bar Association. Rule 1.14 Client with Decision-Making Limitations The client is still the client, even when family members are hovering.
Conflicts intensify here. A relative may contact the lawyer insisting that Mom needs a new power of attorney or trust amendment, but the lawyer’s obligation runs to Mom, not to the relative making the call. The lawyer must identify the client and maintain that relationship directly. If the lawyer reasonably believes the client faces substantial financial or physical harm and cannot protect their own interests, limited protective action is permitted, such as consulting family members or seeking appointment of a guardian. Where a legal representative has already been appointed, the lawyer ordinarily takes direction from that representative, but must intervene if the representative is acting against the client’s interests.5American Bar Association. Rule 1.14 Client with Decision-Making Limitations – Comment
Which Conflicts Can Be Waived
Not every conflict forces the lawyer to walk away. Some are what the rules call consentable. For that to apply, the lawyer must reasonably believe they can still provide competent and diligent representation to every affected client despite the conflict.1American Bar Association. Rule 1.7 Conflict of Interest Current Clients
Waiver requires informed consent, confirmed in writing. Informed consent is more than a signed form. The lawyer must explain the relevant circumstances and the foreseeable ways the conflict could hurt your interests, including effects on loyalty, confidentiality, and attorney-client privilege, and should explain the alternatives, including hiring separate counsel. You need a real chance to ask questions and think it over.2American Bar Association. Rule 1.7 Conflict of Interest Current Clients – Comment
Some conflicts cannot be waived at all. A lawyer cannot represent two clients who are asserting claims against each other in the same proceeding.1American Bar Association. Rule 1.7 Conflict of Interest Current Clients In estate planning this most often surfaces when a joint representation deteriorates into a dispute. If the spouses whose wills you drafted are now divorcing and fighting over what belongs to whom, no amount of consent fixes it. The lawyer must withdraw from representing at least one of them.
What Happens When a Conflict Is Ignored
When a conflict goes unaddressed, the fallout can reach everyone involved.
Contested Wills and Invalidated Plans
An unresolved conflict gives heirs ammunition to challenge the plan. If a court finds that the conflict enabled undue influence over the person who signed the documents, it can strike individual provisions or throw out the entire will or trust. These challenges succeed most often when the lawyer stood to benefit personally, or when one family member had outsized control over a lawyer who was supposed to be representing someone else.
Malpractice Claims
You or your beneficiaries may be able to sue the lawyer for malpractice if a conflict caused real financial harm. Damages can include the cost of the litigation needed to fix the problem and the value of lost inheritances. Most states allow malpractice claims to be filed within one to three years, though many apply a discovery rule that starts the clock when the injured person discovers or should have discovered the negligence rather than when it occurred. In estate planning that matters, because the harm often does not surface until after the client dies.
Discipline and Disqualification
Each state has an agency that investigates complaints against lawyers and imposes discipline, from private reprimands to suspension to disbarment.6American Bar Association. Resources for the Public A court can also disqualify the lawyer from the matter entirely, forcing the client to start over with new counsel at added cost and delay.
How to Protect Yourself
Conflict identification is the lawyer’s job, but you should not rely on that alone. A few practical steps go a long way.
- Ask who else the lawyer represents. If they drafted your spouse’s plan, your parent’s plan, or your business partner’s plan, ask directly whether any conflict exists. An honest lawyer welcomes the question.
- Insist on private meetings. If a family member is paying for your plan or brought you to the lawyer, make sure you get time alone. Resistance to meeting privately is a serious warning sign.
- Read the engagement letter carefully. It should identify exactly who the client is, whether representation is joint or individual, and how confidentiality will be handled. A conflict waiver should spell out the risks in language you can follow.
- Be skeptical of self-dealing. If the lawyer suggests naming themselves as executor, trustee, or beneficiary, ask about alternatives and get a full disclosure of what they would earn in that role.
- Get a second opinion. If something feels off, consult an independent lawyer. The cost is trivial compared with a contested estate plan.
The ethics rules give lawyers clear guidance on conflicts, but the rules only protect you when they are followed. Asking direct questions while you are still in the room is the best defense against a problem that could unravel your plan after you are no longer around to fix it.