Can a lawyer representing a seller accept the buyer's offer to hire her for a later resale of the same property?

Plain-English summary

A lawyer represented the seller in a pending sale of residential property. The buyer, who planned to renovate and resell it, was impressed with the lawyer and, while the current sale was still pending, asked to retain her for his planned resale of the same property. The lawyer asked whether she could continue representing the seller, or agree to represent the buyer, without violating the rules.

The opinion frames the issue as potentially divided loyalties and lays out three choices. If the lawyer declines the buyer's offer, there is no conflict, though the opinion notes she should confer with the seller (under Rule 1.4) about how and when to convey the decision to avoid harming the seller's relationship with the buyer. If she accepts, she faces a Rule 1.7(a) direct-adversity conflict, permissible only if she reasonably believes the seller relationship will not be adversely affected and both clients consent after consultation. If she merely defers a decision, the opinion concludes she still has an immediate Rule 1.7(b) conflict, because the realistic prospect of future work for the buyer could materially limit her current representation of the seller unless she reasonably believes otherwise and the seller consents.

The opinion stresses that Rule 1.7 requires both a subjective and an objective assessment: even with the lawyer's sincere belief and the clients' consent, she may not proceed if a reasonable lawyer would find the conflict too great (citing McCann v. Davis, Malm & D'Agostine). Disclosure sufficient for consent would include the possibility of later disputes over the property's condition, what the lawyer knows about that condition, and the buyer's renovation-and-resale plans, without revealing the seller's confidential information. In all other circumstances the committee concludes the lawyer should decline the buyer's representation, and that regardless of her choice she may not later represent the buyer against the seller in a dispute about the property without the seller's express consent (Rule 1.9(a)), nor use the seller's confidential information for the buyer's benefit without authorization (Rule 1.6(a)).

In practice

Under the Massachusetts rules as they stood at the time of the opinion, the lawyer cannot neutralize the problem by stalling. The opinion holds that an unaccepted but realistic offer of future work from the adverse party is itself a present Rule 1.7(b) conflict, so the lawyer must either reasonably conclude it will not adversely affect the current client and obtain consent, or decline.

The opinion holds that any consent requires both the lawyer's own reasonable belief and an objective reasonable-lawyer assessment, and that disclosure must cover the specific risks (later disputes over the property, the lawyer's knowledge of its condition, the buyer's plans) without revealing the seller's confidences. It further holds that the lawyer may not later act against the former client on the same property, or use his confidences for the buyer, without the seller's consent.

Common questions

Q: My client's opposing party wants to hire me for a future deal. Can I just decide later?

A: The opinion concludes deferring does not avoid the problem. The realistic prospect of future work for the adverse party is an immediate Rule 1.7(b) conflict that could materially limit your current representation, so you must obtain the current client's consent or decline.

Q: If both the seller and buyer consent, can I represent both?

A: Per the opinion, only if you reasonably believe your current representation will not be adversely affected and a reasonable lawyer would agree the conflict is manageable. Rule 1.7 requires both a subjective and an objective judgment, even with consent.

Q: Can I later represent the buyer if a dispute arises over the property?

A: The opinion concludes you may not represent the buyer against the seller in a dispute about the property without the seller's express consent (Rule 1.9(a)), and may not use the seller's confidential information for the buyer without authorization (Rule 1.6(a)).

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 1.7 (concurrent conflicts), both 1.7(a) (direct adversity between clients) and 1.7(b) (representation materially limited by the lawyer's responsibilities or interests), along with Rule 1.9(a) (former-client conflicts) and Rule 1.6(a) (confidentiality). It also references the duty of zealous representation (Rule 1.3) and communication (Rule 1.4), and the consultation standard in Rule 9.1(c). These correspond to the like-numbered ABA Model Rules.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / Mass. R. Prof. C. 1.7(a), (b) (concurrent conflicts)
• MR 1.9(a) / Mass. R. Prof. C. 1.9(a) (former-client conflicts)
• MR 1.6(a) / Mass. R. Prof. C. 1.6(a) (confidentiality)

Cases:

• McCann v. Davis, Malm & D'Agostine, 423 Mass. 558 (1996), standard for permissible dual representation

See also

• MA Bar Ethics Op. 17-2: representing plaintiffs against the same defendant
• MA Bar Ethics Op. 24-1: a conflict arising from a charitable gift

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2006-opinion-06-03/opinion-06-03