If a seller's attorney prepares all the closing documents in a real estate deal, can the attorney bill the buyer for part of the fee when the buyer never hired or agreed to pay him?

Plain-English summary

A member described a real estate transaction in which A was selling property to B, with part of the price financed by a purchase money mortgage from B to A. A insisted that his own attorney prepare all the legal instruments, while B had a separate attorney who examined title and represented B at the closing. A's attorney prepared the contract for sale, the deed, the promissory note, the mortgage, and the closing statement, and there was no dispute about the form of those documents. After closing, B received a statement from A's attorney for one-half of the cost of preparing the instruments, although fees and costs had never been discussed between the parties or their attorneys.

A majority of the committee construed the inquiry as posing primarily a question of law rather than legal ethics, and noted that the committee is not authorized to answer questions of law. A seller may insist that his attorney draw all the papers, and the buyer may execute or refuse them; who pays the attorney is a matter of contract, and if the seller employs the attorney he is primarily liable for the fees, with the buyer under no obligation unless he contracts to pay. The committee agreed that an attorney should not send a statement for costs and professional services to one who has not become legally obligated to pay that bill. However, because the person receiving the statement may simply refuse to pay it, the committee concluded that no substantial violation of the Canons of Ethics was involved.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 6 and 12 of the Canons of Professional Ethics; fees are now governed by Rule 4-1.5 and conflicting-interest representation by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rules 1.5 and 1.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a seller's attorney bill the buyer for preparing closing documents?

A: The committee said an attorney should not send a statement for costs and professional services to someone who never became legally obligated to pay it; who pays the attorney is a matter of contract, and absent a contract the buyer has no obligation.

Q: Did the committee find an ethics violation?

A: No substantial one. Because the buyer could simply refuse to pay the statement, the committee concluded no substantial violation of the Canons of Ethics was involved, and it treated the underlying dispute as primarily a question of law.

Background and rules framework

The opinion applied former Canons 6 and 12 of the Canons of Professional Ethics. Lawyers' fees are now addressed by Rule 4-1.5 and conflicting-interest representation by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rules 1.5 and 1.7). The committee emphasized that it could not resolve the contract-law question of who was liable for the fee.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests; see current Rule 4-1.7]
• Canon 12 [Canons of Professional Ethics; fixing the amount of the fee; see current Rule 4-1.5]

See also

• FL Bar Ethics Op. 66-37: Sharing Probate Fees With a Will Drafter or Survivors
• FL Bar Ethics Op. 66-29: Fixed Monthly Fee for Mortgage-Lender Closings

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-34/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-34.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 65-34
June 15, 1965
Advisory ethics opinions are not binding.
A seller's attorney who prepares all of the documents used in a real estate transaction should not present a statement to the buyer for a portion of the attorney's fee for these services when the buyer did not employ the attorney or agree to pay him a fee.
Canons: 6, 12
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar poses the following inquiry for our response. A is selling real estate to B. A portion of the consideration is to be financed by a purchase money mortgage to be given to A by B. A insists that his attorney prepare all legal instruments involved. B has an attorney, however, and this attorney examines the title and represents B at the closing. A's attorney prepares the contract for sale, the deed, the promissory note, the mortgage and the closing statement. There is no dispute as to the type of contract, deed, note and mortgage to be used. Subsequent to the closing, B receives from A's attorney a statement for one-half of the costs of the preparation of the instruments prepared by A's attorney. Prior to that time, neither the parties nor the attorneys involved had discussed payment of fees and/or costs.
The position of this Committee is asked regarding the procedure outlined above. Presumably the inquiry is primarily as to the ethical propriety of A's attorney submitting the statement to B without prior contract or agreement.
A majority of the Committee has construed this inquiry as posing, primarily, a question of law and not of legal ethics. This Committee, of course, is not authorized to answer questions of law.
A seller of real estate may, if he wishes, insist that his attorney draw all papers involved in the transaction. The buyer, in turn, may execute or refuse to execute these papers. Who pays an attorney is a matter of contract. If the seller employs the attorney he is primarily liable for the fees. Unless the buyer in some way contracts to pay these fees, he is under no obligation to do so.
The Committee agrees that an attorney should not send a statement for costs and professional services to one who has not become legally obligated to pay that bill. However, since the person receiving the statement may simply refuse to pay it, it is our opinion that no substantial violation of the Canons of Ethics is involved.