Defining the Client in a Family-Driven Context: Ethical Imperatives for Estate Planning Attorneys

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By Megan Moghtaderi

Estate planning is rarely simple. Blended families, closely held businesses, soaring real estate values, and multigenerational wealth transfers routinely place attorneys in the middle of competing interests. Practitioners are often expected to guide spouses seeking joint plans, parents involving their children, and families looking for a single trusted lawyer to “handle everything”—even when their objectives do not fully align. In this environment, identifying and managing conflicts is not just prudent; it is essential.

Estate planning conflicts are far from theoretical. They arise in probate litigation, trust contests, State Bar complaints, and malpractice claims. A significant number of these disputes could have been avoided with more diligent issue spotting and clearer engagement agreements. This article examines the conflict‑of‑interest scenarios estate planning and probate attorneys encounter most often and offers practical, experience‑based guidance grounded in California’s ethics rules.¹

A natural starting point is California Rule of Professional Conduct 1.7, which governs conflicts of interest and applies squarely to estate planning. The rule bars representation where interests are directly adverse or where representation is materially limited, unless the attorney reasonably believes competent representation is possible and obtains informed written consent.²

Joint representation of spouses is one of the most common—and most overlooked—pressure points. In California, where second marriages, stepchildren, and separate‑property concerns are routine, even seemingly aligned spouses may have very different expectations about asset division, business succession, or control after death. The real risk arises when joint representation is treated as routine. If conflict later emerges and one spouse believes the lawyer favored the other or failed to explain the consequences of shared representation, every intake note and engagement term may be scrutinized. Courts and disciplinary authorities expect attorneys to make clear that information shared by one spouse will generally be shared with the other, and that the lawyer cannot later advocate for one if their interests diverge.³

Because of this, spousal waivers cannot be perfunctory. They must be specific, in plain language, and discussed with both spouses. If a spouse hesitates or seeks individualized guidance, the attorney should pause and consider whether separate representation is the safer path.

Generational planning presents its own ethical hazards. Parents frequently want children or grandchildren present during meetings or ask the attorney to explain how the plan benefits “the family” as a whole. In California—where real estate values, family‑owned businesses, and complex wealth structures can translate into significant financial consequences—those seemingly routine conversations can quickly blur critical professional boundaries.

The governing principle remains simple: the attorney represents the client, not the family. Beneficiaries’ participation does not make them clients, yet their involvement frequently leads to allegations that the attorney owed duties beyond the engagement.⁴ These challenges become even sharper when distributions are unequal a child is excluded. A disappointed beneficiary will scrutinize the process, and any private meetings, individualized advice, or unclear boundaries significantly increase the risk of later claims.

The practical safeguards are straightforward but indispensable. Attorneys should consistently identify the client, avoid providing individualized legal advice to non‑clients, and document the client’s intent—especially where distributions depart from family expectations. When family members seek advice affecting their own interests, referring them to independent counsel remains the safest approach.

Because generational planning so easily blurs professional boundaries, engagement agreements are one of the most powerful tools an estate planner has to prevent ethical problems. ACTEC guidance underscores the need for clear, written definitions of the scope of representation—particularly in family‑centric planning, where assumptions about “who the lawyer represents” tend to multiply.⁵ This is especially true in California, where probate litigation often hinges on alleged misunderstandings about representation.

A clear engagement agreement should identify the client, specify whether representation is joint or separate, address confidentiality, and outline how conflicts will be handled. When non‑client family members are involved in meetings, the agreement should expressly state that they are not represented and are not owed legal advice.

Courts routinely give considerable weight to engagement letters when analyzing conflict‑related claims. In a practice area where family dynamics, competing interests, and high‑value assets regularly intersect, the engagement letter often becomes the strongest evidence of the lawyer’s ethical compliance.

Family entities present another transition point where conflict risks often emerge. Family limited partnerships, LLCs, and closely held corporations are common planning tools in California, but they frequently create confusion about whom the attorney represents. Many clients assume that the attorney represents both the entity and its individual owners; particularly when the same attorney has handled the family's estate planning for years.  However, the attorney represents the entity unless the engagement expressly states otherwise.

Disputes often arise when ownership interests diverge, when succession plans favor one branch of the family, or when minority owners feel excluded. While dual representation may be permissible in certain circumstances, it requires careful analysis and informed written consent.⁶  As with other areas, clear engagement terms—and early recognition of diverging interests—are essential. When those interests fall out of alignment, separate counsel may be necessary.

Even well‑drafted engagement agreements cannot eliminate the dynamic nature of conflicts. Remarriage, declining capacity, business disputes, and shifts in dispositive intent all create potential inflection points. A practical starting point is simply asking: who stands to benefit from this change?

California State Bar Formal Opinion No. 1982-69 recognizes that conflicts frequently arise in probate and trust matters because parties are interconnected and may serve multiple roles as beneficiaries, fiduciaries, or business associates.⁷ That reality requires continuous vigilance, not a one-time conflict check. 

Competence is closely tied to conflict management. California courts have made clear that estate planning competence extends beyond document drafting. In Lewis v. State Bar, the Supreme Court emphasized that attorneys must understand the practical consequences of planning choices.⁸ Similarly, Bucquet v. Livingston imposed liability where negligent planning foreseeably harmed intended beneficiaries.⁹ These cases underscore the intertwined nature of competence, ethics, and clear communication.

Another modern challenge arises when clients expect their attorney to function like a family office, coordinating planning across generations and entities. Although attractive in theory, this model carries significant ethical risk because attorneys, unlike family offices, are bound by strict conflict‑of‑interest constraints. Representing multiple generations is rarely sustainable and is permissible only with narrowly defined scopes of representation and robust disclosures.

In practice, the threshold question is not whether an attorney can represent everyone involved, but whether doing so is consistent with professional obligations and sustainable as facts evolve. The most ethical—and often the safest—course may be to decline certain roles, narrow the engagement, or insist that family members obtain separate counsel.

Despite careful planning, some conflicts become unmanageable. When continued representation would violate Rule 1.7, the attorney may be required to withdraw.¹⁰ Engagement agreements should anticipate this possibility by reserving the right to withdraw and clarifying the limits of restricted representation. When withdrawal is required, the attorney must provide reasonable notice and protect the client’s interests during the transition.

Building these exit provisions into the engagement from the beginning is one of the most effective ways to avoid ethical complications at the end. Planning for the conclusion of the representation is not pessimistic—it is prudent, and often essential to ethical compliance.

Estate planning and administration are deeply relational, which makes the work both fulfilling and fraught. Conflicts of interest are not unusual disruptions—they are inherent in the landscape. By clearly identifying the client, leveraging engagement agreements as essential ethical tools, and staying attentive to evolving family dynamics, attorneys can protect their clients’ objectives while safeguarding their own professional responsibilities. Ethical foresight is not a barrier to effective estate planning; it is one of its defining strengths.

Endnotes 

1. See Ethically Speaking: The Art of Checking for Conflicts, Orange County Bar Association, April 2025. 

2. Cal. Rules of Prof. Conduct, Rule 1.7. 

3. See State Bar of California, How to Avoid Conflict of Interest in Your Law Practice. 

4. See Bucquet v. Livingston (1976) 57 Cal.App.3d 914, 129 Cal.Rptr. 514. 

5. American College of Trust and Estate Counsel (ACTEC), Commentary on Engagement Letters and Conflicts in Estate Planning. 

6. See California Lawyers Association, Unwaivable Conflicts of Interest. 

7. State Bar of California Formal Opinion No. 1982-69. 

8. Lewis v. State Bar (1981) 28 Cal.3d 683, 170 Cal.Rptr. 634. 

9. See Bucquet v. Livingston (1976) 57 Cal.App.3d 914. 

10. Cal. Rules of Prof. Conduct, Rule 1.7; see also Rule 1.16 regarding withdrawal. 

Megan A. Moghtaderi, Esq. is a principal attorney at Offit Kurman and the practice group leader of the Estates and Trusts (West) Practice Group. She specializes in trusts, estates, and wealth management for high-net-worth individuals, entrepreneurs, corporate institutions, and professional athletes. A Certified Specialist in Trusts, Estates & Probates, she advises on estate planning, asset protection, and fiduciary disputes, including complex trust and probate litigation.