Does an 'of counsel' lawyer inherit the conflict of the lawyer they are of counsel to, and can a real estate settlement lawyer later sue the seller for the buyer?
Apply this to your situation
This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 247 (adopted May 24, 1994) addressed a lawyer asked to represent the purchaser of a house in a 1993 latent-defects dispute against the seller. Another lawyer, "Lawyer A," had conducted the 1983 settlement of that house and was the only lawyer in the transaction; he performed some services paid by both sides. The inquirer was listed on Lawyer A's letterhead as "of counsel," shared office space and a shared receptionist with Lawyer A, but kept separate files, phones, and finances and shared no fees. The seller challenged the inquirer's representation.
The committee declined to decide how a single lawyer's role in a residential closing should be characterized (representing multiple clients, an intermediary under Rule 2.2, or representing only the buyer with fiduciary duties to others). Pointing to Rules 2.2 and 4.3, which both stress making a lawyer's role and non-duties clear when participants might misunderstand them, the committee held that because Lawyer A gave no clear contemporaneous statement that he represented only the purchasers and not the sellers, the relationship to the seller was enough to disqualify Lawyer A under Rule 1.9 from later representing the purchasers against the seller in a substantially related matter.
The committee then concluded that the disqualification is imputed to the inquirer under Rule 1.10. Following its Opinion 192 and ABA Formal Opinion 90-357, it concluded that holding oneself out as "of counsel" conveys a close, regular, continuing relationship that gives the public a reasonable impression the lawyers will not represent conflicting interests, so "of counsel" lawyers are treated as "associated in a firm" for imputed-disqualification analysis under Rule 1.10(a). Having resolved the matter on those grounds, the committee did not reach whether a 1993 phone call from the seller to Lawyer A separately disqualified him.
Currency note
This opinion was issued in 1994, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can the lawyer who handled a real estate closing later sue one of the parties for another?
A: Not without a clear earlier disclaimer. The committee concluded that where the settlement lawyer never made a clear contemporaneous statement that he represented only the purchaser, Rule 1.9 bars him from later representing the purchaser against the seller in a substantially related matter.
Q: Does an "of counsel" lawyer share the conflicts of the lawyer they are of counsel to?
A: Yes. The committee concluded that an "of counsel" designation gives the public an impression of a close, continuing relationship, so the lawyers are treated as "associated in a firm" and the disqualification is imputed under Rule 1.10(a).
Q: Did sharing office space and a receptionist matter?
A: It was part of the picture, but the holding turned on the public "of counsel" holding-out. The committee relied on Comment [1] to Rule 1.10, which treats lawyers who share space and hold themselves out as a firm as a firm for disqualification.
Q: Did the committee decide how settlement lawyers should treat the parties generally?
A: No. The committee expressly declined to decide which characterization of the single-lawyer closing role is permissible, deciding only the disqualification question before it.
Background and rules framework
The opinion interpreted D.C. Rule 1.9 (duties to a former client; bar on substantially related adverse representation), Rule 1.10 (imputed disqualification of lawyers "associated in a firm"), and Rules 2.2 (lawyer as intermediary) and 4.3 (dealing with an unrepresented person), which it cited for the duty to make a lawyer's role and non-duties clear. The committee read "associated in a firm" in Rule 1.10(a) to reach "of counsel" relationships, building on its earlier Opinions 151 and 192.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.9 / Model Rule 1.9 (duties to former clients)
- D.C. RPC 1.10 / Model Rule 1.10 (imputed disqualification)
- D.C. RPC 1.7 / Model Rule 1.7 (conflict of interest: general rule)
- D.C. RPC 2.2 (lawyer as intermediary) and D.C. RPC 4.3 / Model Rule 4.3 (dealing with unrepresented persons)
Cases:
- In re First Escrow, Inc., 840 S.W.2d 839 (Mo. 1992), reviewing whether non-lawyer real estate closings are the unauthorized practice of law
Other opinions cited:
- ABA Formal Op. 90-357: an "of counsel" lawyer is "associated" for imputed-disqualification purposes under Model Rule 1.10
- D.C. Bar Opinion 192: "associated" or "correspondent" firms create a reasonable impression they will not represent conflicting interests
- D.C. Bar Opinion 151: "of counsel" can be close enough to a partner or associate to permit fee splitting
See also
- DC Ethics Op. 338: One Lawyer, Two Firm Names
- DC Ethics Op. 255: Former Firm Lawyer on Contract
- DC Ethics Op. 273: Lawyers Moving Between Firms
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-247
Get today's answer for your situation
You just read a 1994 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.