Can one lawyer represent both the buyer and the seller in a real estate transaction if both consent after full disclosure?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
A buyer and seller of real estate agreed to be represented by one lawyer after what the inquirer described as full disclosure of possible conflicts, and agreed to share the legal fees. The committee was asked whether a lawyer could ethically represent both parties.
The committee applied former Rule 5-105(a) and (b), which generally barred multiple employment likely to adversely affect the lawyer's judgment on behalf of either client, and Rule 5-105(c), which permitted multiple representation only where (1) it is obvious the lawyer can adequately represent each, and (2) each consents after full disclosure of the possible effect on the lawyer's independent judgment. The primary question was whether it is obvious a lawyer can adequately represent both a buyer and a seller. For a normal arm's-length, unrelated buyer and seller, the committee found it by no means obvious, and concluded dual representation in those circumstances would be improper regardless of consent.
Drawing on its Opinion 644 about representing both lender and borrower in a mortgage loan, the committee declined to say categorically that no factual circumstances could make such dual representation proper, but believed those instances are extremely rare and depend on the facts. Even where appropriate, the lawyer must continuously monitor the adequacy of the representation, must withdraw from both representations if adequacy becomes less than obvious, and must, in the pre-representation disclosure, refer to the possible necessity of that later withdrawal.
Currency note
This opinion was issued in May 1987, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 1.7, with Comments [23] and [29]-[33]), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.
Common questions
Q: Can one lawyer represent both buyer and seller if both consent?
A: The opinion concluded that for an ordinary arm's-length buyer and seller this is generally improper even with consent, because it is not obvious one lawyer can adequately represent both interests.
Q: Is dual representation ever permitted?
A: Per the opinion, it is not categorically barred; the committee found such cases extremely rare and dependent on the particular facts, applying the same fact-specific analysis it used for lender and borrower in Opinion 644.
Q: If a lawyer does take on both clients, what continuing duties apply?
A: The committee required the lawyer to continuously monitor the adequacy of each representation, to withdraw from both if adequacy becomes less than obvious, and to disclose that possibility of withdrawal to the clients before undertaking the representation.
Background and rules framework
The opinion applied former Illinois Code Rule 5-105(a), (b), and (c) (declining conflicting employment and the consent exception requiring that adequate representation be obvious). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.7, with Comments [23] and [29]-[33], corresponding to ABA Model Rule 1.7 on concurrent conflicts of interest.
Citations and references
Rules of Professional Conduct:
- Illinois Code Rule 5-105(a), (b), (c) (conflicting employment and consent, applied in the opinion)
- Illinois RPC 1.7 with Comments [23], [29]-[33] (2010 equivalent per the Board's affirmation)
- MR 1.7 (concurrent conflicts of interest)
Other opinions cited:
- ISBA Opinion 644: representing both lender and borrower in a mortgage loan transaction
- ISBA Opinions 809 and 822: the Rule 5-105(c) consent standard
See also
- ISBA Ethics Op. 99-07: Lender Lawyer Paid by Borrower
- ISBA Ethics Op. 99-03: Soliciting a Represented Borrower
- ISBA Ethics Op. 87-02: Broker Hiring a Lawyer for Seller
Source
- Landing page: https://www.isba.org/ethics/opinions/8615
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