Can a lawyer prepare a deed and transfer documents at a real estate broker's request, for the seller, when the lawyer never deals with the seller directly?
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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 real estate broker asked a lawyer to prepare a warranty deed and a real estate transfer declaration and to send the fee statement to the seller in care of the broker, so the fee could be deducted from the seller's proceeds at closing. The lawyer never interviewed or communicated with the seller; all dealings ran through the broker. The committee was asked whether it is ethical for the lawyer to prepare the documents at the broker's request rather than at the grantors' request.
The committee framed the threshold issue as authority: the broker was retaining the lawyer on the seller's behalf, and preparing the documents would create a professional responsibility to the seller. The lawyer therefore had to first satisfy himself that the broker had the authority to create that attorney-client relationship. The committee said the documentation needed for that assurance would vary by transaction, geography, and custom, but the lawyer had to take whatever steps he found necessary before entering the relationship, consistent with its prior Opinion 302. Absent verified authority, proceeding would be improper.
The committee also cautioned that the lawyer should be wary of acting under the broker's sole direction and control, which could violate former Rule 5-107(c): a lawyer may not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment. Even where authority exists, the lawyer must exercise his own independent judgment, and the same principle applies whenever an agent asks a lawyer to represent a client.
Currency note
This opinion was issued in November 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 5.4(c)), 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: May a lawyer prepare closing documents when a broker, not the seller, makes the request?
A: The opinion concluded the lawyer may, but only after satisfying himself that the broker has authority to retain him on the seller's behalf; without that verified authority, proceeding would be improper.
Q: What must the lawyer do to confirm the broker's authority?
A: Per the opinion, the lawyer must take whatever steps he finds necessary under the circumstances; the committee noted the required documentation varies by transaction, geography, and custom, consistent with its Opinion 302.
Q: Can the broker direct how the lawyer handles the work?
A: No. The committee warned that acting under the broker's sole direction could violate former Rule 5-107(c); the lawyer must exercise his own independent professional judgment even when the broker pays the fee.
Background and rules framework
The opinion applied former Illinois Code Rule 5-107(c) (a third party who recommends, employs, or pays the lawyer may not direct the lawyer's professional judgment) and referenced Rule 6-101(a)(2). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 5.4(c), corresponding to ABA Model Rule 5.4(c) on professional independence.
Citations and references
Rules of Professional Conduct:
- Illinois Code Rule 5-107(c) (third-party direction of judgment, applied in the opinion)
- Illinois Code Rule 6-101(a)(2)
- Illinois RPC 5.4(c) (2010 equivalent per the Board's affirmation)
- MR 5.4(c) (professional independence)
Other opinions cited:
- ISBA Opinion 302: verifying an agent's authority to retain a lawyer
- ISBA Opinion 90-35 (cross-referenced by the Board's note)
See also
- ISBA Ethics Op. 89-17: Insurer's Staff Counsel Client
- ISBA Ethics Op. 98-08: Insurance Defense Duties
- ISBA Ethics Op. 14-03: In-House Lawyer Serving Customers
Source
- Landing page: https://www.isba.org/ethics/opinions/8702
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