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China lawyer client privilege requires us to be careful when representing clients

One of my colleague, also an experienced China lawyer, discussed with me: I represented a client in connection with his prenuptial agreement, and his fiance was represented by another attorney.  The fiancé (now wife) called this week to say that she and her husband would like to see me to do their estate planning.  Can I do this, and if so, what kinds of waivers do I need from them?

I may be in the minority here, but I wouldn't represent a couple after I'd represented just one of them in an agreement with the other spouse, particularly where a prenuptial agreement is involved, due to the high incidence of challenge by an ex-spouse either during lifetime or at death.

One point that you'll have to consider in the representation on estate planning is the likelihood of challenge of the prenuptial agreement down the road, which throws you squarely into an insoluble conflict. I just don't think that there are enough waivers to properly protect you. Courts will punish the sharp lawyer who tries to worm their way out after-the-fact with waivers, particularly where individual clients like your situation are involved. You might (and should) be able to get away with this with corporate clients and very savvy clients, but I don't think that it will work if a rank layman brings an ethics charge.

I'd only represent one spouse because it is cleaner and consistent with the prior representation. I'd politely explain this to the non-client spouse that you're flattered about her inquiry as to your services but your ethics rules limit your ability to properly represent the couple jointly. Probably the only way that I'd even attempt this is to simultaneously represent each spouse separately (and this might be the only time that I'd even consider that tactic, which has always struck me as a fiction), and even then I probably wouldn't attempt to walk that fine line with individual clients.

Another colleague told me: I think you can represent.  The prenup, now that they're married is a closed issue.  You couldn't represent in a divorce, because of your involvement in the prenup, but estate planning is another matter.  You need the same waivers you do for any joint representation for estate planning, indicating no privilege communications as to communications between you and either spouse.  If you want belt and suspenders, you could add a waiver for each indicating they were aware of your involvement with the premarital planning and have no objection to the joint representation, having been informed of the prior representation.

China lawyer client privilege requires us to be careful when representing clients.

 
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