Can a lawyer take work from a real estate broker to prepare a deed without ever meeting the parties to the transaction?

Plain-English summary

A lawyer asked whether he could accept employment from a broker to prepare a deed in an uncomplicated real estate transaction, where the deed would be returned to the broker, who would close the transaction, collect a minimal fee from the seller, and remit to the lawyer without the lawyer ever contacting either party.

The committee concluded that Florida law still held that a broker may not draft a deed, citing Keyes v. Dade County Bar Association, Cooperman v. West Coast Title Company, and The Florida Bar v. McPhee. It therefore did not have to decide whether a broker who could properly draft a deed might retain legal assistance, and it distinguished the title-insurance situation in Cooperman. On the facts, which involved the intervention of a broker between the lawyer and the client, the committee had no hesitancy in concurring with ABA Informal Opinion 508 (1962), which disapproved the practice essentially because such a transaction is devoid of the personal contact that should exist between attorney and client.

Currency note

This opinion was issued in July 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 35 on lay intermediaries. The independence of a lawyer's professional judgment from a lay intermediary is now addressed by Rule 4-5.4 of the Rules Regulating The Florida Bar, and aiding the unauthorized practice of law by Rule 4-5.5 (Model Rules 5.4 and 5.5). Subsequent rule amendments, opinions, or case law 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 Treat this page as historical context, not current guidance.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 lawyer prepare closing documents for a broker without dealing with the buyer or seller?

A: Under this opinion, no. The committee disapproved a lawyer preparing a deed for a broker's closing where the lawyer had no contact with either party, because the broker's intervention removed the personal attorney-client contact.

Q: Why did the broker's role matter so much?

A: The committee relied on Florida law that a broker may not draft a deed and on ABA Informal Opinion 508, which disapproved the arrangement as devoid of the personal contact that should exist between attorney and client.

Background and rules framework

The opinion applied the former Canon 35, which barred lay intermediaries from controlling or exploiting a lawyer's services. That concern is now addressed by Rule 4-5.4 of the Rules Regulating The Florida Bar (professional independence of a lawyer), with the related prohibition on aiding the unauthorized practice of law at Rule 4-5.5; the Model Rule analogues are Rules 5.4 and 5.5.

Citations and references

Rules of Professional Conduct:

• Canon 35 [Canons of Professional Ethics; lay intermediaries]

Cases:

• Keyes v. Dade County Bar Association, 46 So.2d 605 (Fla. 1950), a broker may not draft a deed
• Cooperman v. West Coast Title Company, 75 So.2d 818 (Fla. 1954), title-insurance document preparation
• The Florida Bar v. McPhee, 195 So.2d 552 (Fla. 1967)

Other opinions cited:

• ABA Informal Opinion 508 (1962)

See also

• FL Bar Ethics Op. 67-15: Trust-Company Referral to Prepare a Trust
• FL Bar Ethics Op. 69-25: Title Agent Disclosure, Not Solicitation

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-14/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-14-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 67-14
July 24, 1967
Advisory ethics opinions are not binding.
A lawyer may not accept employment by a real estate broker to prepare a deed for use by the broker in closing a real estate transaction when the lawyer would have no contact with either party to the transaction.
Canon: 35
Opinion: ABA Informal 508
Cases: Cooperman v. West Coast Title Company, 75 So.2d 818 (Fla. 1954), Keyes v. Dade County Bar Association, 46 So.2d 605 (Fla. 1950), The Florida Bar v. McPhee, 195 So.2d 552 (Fla. 1967)
Chairman MacDonald stated the opinion of the committee:
We are asked by a member of The Florida Bar whether he may properly accept employment by a broker for the purpose of preparing a deed in an uncomplicated real estate transaction. Such deed would then be returned to the broker who would close the real estate transaction, collecting a minimal fee from the seller and remitting to the lawyer without the lawyer ever being in contact with either party to the real estate transaction.
We conclude that the law of Florida still is that a broker may not draft a deed, Keyes v. Dade County Bar Association, 46 So.2d 605 (Fla. 1950), Cooperman v. West Coast Title Company, 75 So.2d 818 (Fla. 1954), and Florida Bar v. McPhee, 195 So.2d 552 (Fla. 1967). Thus we are not confronted with a consideration of whether, assuming the broker could properly draft a deed, he might properly retain legal assistance in his own right to aid such preparation. Moreover, we are not confronted with a situation such as that described in Cooperman, supra, wherein the issuance of title insurance and the preparation of various documents in satisfaction of the requirements of the insurer were involved.
On the facts before us, which in essence involve the intervention of a broker between the lawyer and the client, we have no hesitancy in concurring in Informal Opinion 508 of the American Bar Association (1962), disapproving this practice in essence on the ground that such a transaction is devoid of the personal contact which should exist between attorney and client.