Can a lawyer follow instructions from a client's real estate agent to prepare a different deed than the contract calls for, and how much decision authority belongs to the client?
Ohio BPC Opinion 88-030: Client Decision-Making Authority and Third-Party Influence
Short answer: The Board concluded that decision-making authority over the representation rests exclusively with the client, that a lawyer should keep the client informed and discuss the deed options directly with the client rather than take direction from the client's real estate agent, and that a lawyer should not let a third party impair independent judgment.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
The Ohio Board of Professional Conduct withdrew this opinion by Advisory Opinion 2020-02 on February 7, 2020. It is no longer current guidance and is indexed here for historical research only. The opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.2, 1.4, and 5.4) before relying on any specific rule mentioned here.
Plain-English summary
A not-for-profit legal services corporation lawyer was asked by a union-member client to review an executed real estate purchase agreement (which called for a general warranty deed) and prepare the required deed. The client's real estate agent then instructed the lawyer to prepare a joint-and-survivor deed for the unrepresented purchaser, without modifying the written agreement. The lawyer asked whether preparing the requested deed exposed him to discipline, whether the agent was interfering with his independence, and about potential liability to the unrepresented purchaser.
The Board advised the lawyer to contact the client to discuss the different deeds and their effect, noting that a general warranty deed and a joint-and-survivor deed are not inconsistent, and that lawyers must keep clients fully informed (EC 7-8). It stated that decision-making authority generally rests exclusively with the client (EC 7-7), while a lawyer is authorized to waive or fail to assert a client's right or position where permissible (DR 7-101(B)), and EC 7-7 lets a lawyer decide matters not affecting the merits or substantially prejudicing the client. On the agent's instructions, the Board pointed to DR 5-107 and EC 5-21 and advised lawyers not to take direction from someone other than the client. It declined the questions about the realtor's conduct and the lawyer's legal liability as outside its authority, but called attention to DR 7-104(A)(2), which bars giving advice (other than to secure counsel) to an unrepresented person whose interests have a reasonable possibility of conflicting with the client's.
Common questions
Q: Who decides how the representation proceeds, the client or the client's agent?
A: The client. The Board concluded that decision-making authority rests exclusively with the client (EC 7-7), and advised lawyers not to take direction from someone other than the client.
Q: Could the lawyer prepare the different deed the agent requested?
A: The Board advised discussing the deed options with the client first. It stated that where a change does not affect the merits or substantially prejudice the client, the lawyer may make it (DR 7-101(B) and EC 7-7), but the decision belongs to the client.
Q: What about the unrepresented purchaser?
A: The Board declined the liability question but pointed to DR 7-104(A)(2), which bars giving advice (other than to secure counsel) to an unrepresented person whose interests may conflict with the client's.
Background and rules framework
The opinion applies former DR 7-101(B), EC 7-7 and EC 7-8 (client authority and keeping the client informed), DR 5-107 and EC 5-21 (avoiding third-party influence), and DR 7-104(A)(2) (dealings with unrepresented persons) of the Ohio Code of Professional Responsibility. The current parallels are Ohio Prof. Cond. R. 1.2 (scope and allocation of authority), 1.4 (communication), and 5.4(c) (third-party influence), with Model Rules 1.2, 1.4, and 5.4.
Citations and references
Rules of Professional Conduct:
- Former DR 7-101(B), Ohio Code of Professional Responsibility
- Former EC 7-7 and EC 7-8, Ohio Code of Professional Responsibility
- Former DR 5-107 and EC 5-21, Ohio Code of Professional Responsibility
- Former DR 7-104(A)(2), Ohio Code of Professional Responsibility
See also
- Ohio BPC Opinion 1988-024: Withdrawal, Former-Client Conflicts, and Fees Earned Before Withdrawal
- Ohio BPC Opinion 1988-032: No-Contact Rule at a Real Estate Closing
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-030.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-30
Issued December 16, 1988
Withdrawn by Adv. Op. 2020-02
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: An attorney's client has the exclusive authority to make decisions regarding the representation. Where permissible, however, attorneys may exercise their professional judgment to waive or fail to assert a right or position of their clients. Attorneys should keep their clients informed of all information regarding the representation. Attorneys should not allow the desires of third parties to impair their free judgment regarding the representation of a client.
OPINION: We have before us your request for an advisory opinion regarding not-for-profit legal services corporation attorneys and their involvement in representing a client in a real estate transaction. The legal service corporation serves only members, retirees and dependents of a union. One of the union members entered into an agreement to sell some real estate in Ohio.
The union member asked one of the legal service corporation's attorneys to review the purchase and sales agreement already executed. The union member/client also instructed the attorney to prepare any required deed as stipulated in the purchase and sale agreement. The agreement called for a good and sufficient warranty deed.
The attorney then receives a letter from his or her client's real estate agent with instructions to prepare a joint and survivor deed for the benefit of the purchaser of the real estate who is not represented by counsel. The written purchase agreement between the parties is not modified. Your questions are as follows:
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Is the attorney subject to discipline for preparing the requested joint and survivor deed, irrespective of the fact that the contract calls for merely a general warranty deed?
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Is the attorney subject to discipline by providing the requested joint and survivorship deed by a third party, the real estate agent?
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Is the real estate agent interfering with the attorney's independence or representation of his or her client?
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Does the attorney have any potential liability or exposure in drafting joint and survivor deed, if the purchaser is unaware of the legal ramifications of the same?
In regard to your first question, it is our opinion that the attorney should contact his or her client to discuss the different deeds and their effect. However, it is our understanding that a general warranty deed and a joint and survivor deed are not inconsistent. Attorneys have an obligation to exert their best efforts to insure that their clients remain fully informed of all relevant considerations regarding the representation. See, e.g., Code of Professional Responsibility, EC 7-8. If the client agrees that another deed should be executed then he or she may wish to contact or have the attorney contact the purchaser regarding the change. Whether the contract between the parties has to be changed is a legal question we cannot answer. Bear in mind however, that generally the decision-making authority rests exclusively with the client. Code of Professional Responsibility, EC 7-7.
A lawyer is authorized, where permissible, to exercise his or her professional judgment to waive or fail to assert a right or position of his or her client. Code of Professional Responsibility, DR 7-101(B). However, "the boundaries of what is 'permissible' are not clarified." Annotated Model Code of Professional Responsibility, 299 (1979). Ethical consideration 7-7 does state that "in certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own." Code of Professional Responsibility, EC 7-7. Therefore, if drafting a joint and survivorship deed instead of a warranty deed does not affect the merits of the cause nor substantially prejudice the rights of the client then the lawyer is permitted to do so.
Although the Code does not specifically address your second question, it does encourage lawyers to avoid being influenced by someone other than their client. See, Code of Professional Responsibility, DR 5-107 and EC 5-21. Therefore, we advise lawyers not to take direction from someone other than their client.
Your third question is asking about the conduct of a realtor. We are only authorized to respond to questions regarding the practice of law. See, e.g., Gov. Bar R. V, Sec. 2b.
Your fourth question is a legal question we do not have the authority to answer. However, we do call your attention to DR 7-104(A)(2), which states:
[d]uring the course of his representation of a client a lawyer shall not: ...give advice to a person who is not represented by a lawyer, other than advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.
In conclusion, it is our opinion, and you are so advised that an attorney's client has the exclusive authority to make decisions regarding the representation. An attorney should keep his or her client apprised of any information regarding the representation. An attorney should not allow the desires of a third party to impair his or her free judgment relating to the representation of a client.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.