If a lawyer represents both buyer and seller in a real estate deal and a dispute breaks out between them, can the lawyer keep representing one of them?

Plain-English summary

An attorney had been retained by both the buyer and the seller in a real estate transaction. Each client had been advised about the problems of dual representation and each had indicated a desire to have the attorney represent both. A serious controversy then arose between the clients, and the attorney asked whether he could continue to represent one of them or had to withdraw from representing both.

The Committee answered that the attorney could no longer represent either party. It treated the possibility of controversy between the clients as one of the principal difficulties with dual representation. Because a lawyer who has acted for a client may not render professional services against that client where doing so might injuriously affect the former client in a matter in which he formerly represented him, and because both parties here had been his clients, the Committee concluded that continuing to represent either would violate Canon 6 of the Canons of Professional Ethics. It cited its earlier Opinion 97.

Currency note

This opinion was issued in June 1971, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee applied the Canons of Professional Ethics. It also predates the 1984 replacement of the Canons/DRs by the Rules of Professional Conduct and all later revisions. The concurrent-conflict and withdrawal principles it applied are now treated under RPC 1.7 and RPC 1.16. Treat this page as historical context, not current guidance.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 a lawyer pick one client to keep when jointly represented buyer and seller fall out?

A: No. The Committee held that once a serious controversy arose, the lawyer could not represent either party and had to withdraw from both.

Q: Why couldn't the lawyer continue for just one side?

A: Because both were his clients, and a lawyer may not act against a client where it might injuriously affect that client in a matter he formerly handled; the Committee found continuing for either would violate Canon 6.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics, addressing conflicting interests, to a lawyer jointly representing adverse parties in a real estate deal who later fell into dispute. In current New Jersey terms the concurrent-conflict and withdrawal questions fall under RPC 1.7 and RPC 1.16.

Citations and references

Rules of Professional Conduct:

• Canon 6, Canons of Professional Ethics (conflicting interests), as in effect 1971; now MR 1.7 / NJ RPC 1.7

Other opinions cited:

• NJ ACPE Opinion 97, 89 N.J.L.J. 507 (1966)

See also

• NJ ACPE Op. 211: Acting Against a Former Corporate Client
• NJ ACPE Op. 304: Multiple-Party Conflict and Fees on Withdrawal

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp212-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

94 N.J.L.J. 553, June 24, 1971

OPINION 212

Conflict of Interest - Representing Conflicting Buyer and Seller

An attorney has been retained by both buyer and seller in a real estate transaction. Each of the clients has been advised with respect to the problems involved in dual representation and each has indicated his desire to have the attorney represent both of them.

A serious controversy has now arisen between the clients and the attorney asks whether he may continue to represent one of them or whether he must withdraw from representation of both.

It is clear that the attorney may no longer represent either party to the transaction. The possibility of controversy between the clients is one of the principal difficulties with dual representation. An attorney who has acted for a client may not render services professionally against him where to do so might injuriously affect his former client in any matter in which he formerly represented him. See this Committee's Opinion 97, 89 N.J.L.J. 507 (1966). Since both parties were his clients, it would therefore be a violation of Canons of Professional Ethics, Canon 6 for him to continue to represent either.