Ezel / Ethics Opinions / ISBA
ISBA 2017

Can one lawyer represent both the buyer and the seller in a real estate transaction, even if they are related and consent?

Short answer: Almost never. The opinion concludes that representing a buyer is directly adverse to representing the seller under Rule 1.7, and the rare cases where dual representation could be proper depend entirely on the facts, even for related parties.

Apply this to your situation

This page answers the general question as of 2017. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2017
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A mother wants to sell her home to her son. They worked out the deal themselves and ask one lawyer to handle the purchase and sale and represent each of them at closing. The committee is asked whether the lawyer may represent both the buyer and the seller in the transaction and at closing.

The opinion opens by cautioning that many lawyers have been disciplined for representing both sides of a real estate deal (citing In re Scott, Jeffers, Dixon, and Murzyn). It reaffirms ISBA Opinion 86-15's conclusion that, in most circumstances, a lawyer cannot represent both buyer and seller, and that the situations where it would be proper are extremely rare; the committee considers 86-15 still sound under the 2010 Rules. Applying Rule 1.7, the opinion explains (citing Comment 7) that direct adversity can arise in transactional matters and that representing a buyer is directly adverse to representing the seller, creating a concurrent conflict.

The opinion then asks whether the conflict is consentable under Rule 1.7(b)(1). It concludes that if the parties have not already executed a valid sales contract, the lawyer could not reasonably believe she could provide competent and diligent representation to both, because negotiating for one would harm the other. Even where the parties have signed the contract, the opinion says it is highly unlikely the lawyer could properly represent both through closing, since issues requiring unqualified advice often arise before closing. It aligns with opinions from Vermont and New York State Bar Opinion 807, and declines to define the rare circumstances in which dual representation might be proper, leaving that to the facts. If a lawyer does conclude a reasonable lawyer could proceed, informed consent must cover all ramifications, including the likelihood the lawyer would have to withdraw, at the clients' expense, if a conflict develops.

In practice

Under this opinion, a lawyer generally should decline to represent both the buyer and the seller in a real estate transaction, including a sale between relatives; the opinion holds the representation is directly adverse under Rule 1.7 and that the conflict is usually not consentable. It holds that where no sales contract has been executed, the lawyer cannot reasonably believe she can competently represent both, and that even after a signed contract dual representation through closing is highly unlikely to be proper. The opinion declines to specify the rare circumstances that might permit it, and holds that any informed consent must disclose all ramifications, including the prospect of withdrawal at the clients' expense if a conflict arises.

Common questions

Q: Can one Illinois lawyer handle both sides of a home sale?

A: Almost never. The opinion concludes representing the buyer is directly adverse to representing the seller under Rule 1.7, and the circumstances where dual representation is proper are extremely rare.

Q: Does it matter that the buyer and seller are mother and son?

A: No. The opinion concludes the rule applies even to related parties; the conclusion that a lawyer generally cannot represent both holds even when the buyer and seller are related.

Q: What if both parties consent?

A: Consent is not enough by itself. The opinion holds the lawyer must still reasonably believe she can competently and diligently represent both, which it finds she usually cannot, especially before a contract is signed.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.7 (concurrent conflicts, including Comments 7 and 14 on transactional direct adversity and consentability) and Rule 1.0(e) (informed consent). These correspond to Model Rules 1.7 and 1.0.

Citations and references

Rules:

  • Illinois RPC 1.7 and Comments 7, 14 (MR 1.7): concurrent conflicts and consentability
  • Illinois RPC 1.0(e) (MR 1.0): informed consent

Cases:

  • In re Scott, 09 CH 102, M.R. 25453 (2012); In re Jeffers, 08 CH 103, M.R. 23537 (2010); In re Dixon, 07 CH 115, M.R. 22629 (2008); In re Murzyn, 05 CH 73, M.R. 21436 (2007): discipline for dual real estate representation

Other opinions cited:

  • ISBA Opinion 86-15: dual representation of buyer and seller
  • New York State Bar Op. 807 (2007); Vermont Ethics Ops. 78-04 and 2004-03: real estate dual representation

See also

Source

Get today's answer for your situation

You just read a 2017 opinion on this question. Ezel checks the current Illinois Rules of Professional Conduct and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.