It is a delightful part of my practice to meet with married and common law couples to make plans that help protect their families. Invariably, the couples I meet are very much in love and view their interests as entirely compatible. With life being what it is – inherently unpredictable and sometimes messy – many of these couples will later hit a rocky patch, and some of these relationships will eventually break up.

As a lawyer representing two people in a will, I will have what’s called a “joint retainer”. This means that I am not simply representing one of the spouses/partners, but am representing both of them jointly. Potential problems arise when the interests of the spouses/partners no longer align.

One spouse/partner may wish to disclose information to me that is not intended to be shared with the other spouse. The problem with this scenario is that, under a joint retainer, I am legally and ethically obliged to share information received from one spouse/partner with the other spouse/partner. In particular, I am obliged to share any information that may be considered to go against the interests of the other spouse/partner.

When a lawyer is retained individually by a client, what the client says to the lawyer is covered by solicitor-client privilege. All communications are considered to be confidential unless the client specifically allows the lawyer to share information with someone else. This arrangement of an individual retainer does not entirely apply to the circumstances of a joint retainer. While I am still not permitted to disclose information to third parties without your consent, I am ethically obliged to share information with your spouse/partner.

As well, if you break up at a later time, I will need special permission to continue to act for either or both of you. Practically speaking, this arrangement is usually unwieldy, and I typically recommend that spouses/partners who have completed wills with me go to different lawyers in the event that their relationship later breaks down.