Can an Ohio lawyer who is also a licensed real estate agent represent the same client as both lawyer and realtor, and how must the lawyer handle letterhead, fees, and office sharing?
Ohio BPC Opinion 90-009: Ethical Obligations of a Lawyer Who Also Acts as a Licensed Real Estate Agent
Short answer: The Board concluded that a lawyer should not concurrently serve one client as both lawyer and realtor, may not advertise the realtor role on legal letterhead under DR 2-102(E), and remains bound by the Code even when acting as a realtor.
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.
Plain-English summary
The Board addressed the dual status of a lawyer who is also a licensed real estate agent, where the realtor compensation would be a percentage of the sale price payable at closing, answering seven questions. On conflicts, the Board applied DR 5-101(A), under which a lawyer shall not accept employment if the exercise of professional judgment may be affected by the lawyer's own financial, business, property, or personal interests except with the client's consent after full disclosure. It concluded that, because the lawyer's professional judgment may be affected by the lawyer's financial interest as a realtor, the lawyer should not represent a client as both lawyer and realtor unless the client consents after full disclosure of the conflicting interests. The Board added that DR 2-103(A) and DR 2-103(C) prevent a lawyer from using the real estate practice as a feeder for the law practice, and stated it does not recommend the dual representation of one client.
On fees, the Board stated that all legal fees must comply with DR 2-106, which bars an illegal or clearly excessive fee. On letterhead and advertising, it applied DR 2-102(E): a lawyer engaged in the practice of law and another business may not so indicate on letterhead, office sign, or professional card, or be identified as engaged in the other business in any publication connected with that business, so the lawyer may not show "real estate sales associate" or "realtor" on legal letterhead, business cards, or public advertising. The Board noted it had observed in a prior opinion (Op. 88-23) that DR 2-102(E) is arguably inconsistent with other advertising rules, but that the rule remains part of the Code.
On the remaining questions, the Board concluded that a lawyer is bound by the Code whether acting in a professional capacity or otherwise, so the lawyer is bound while acting as a realtor; that a realtor's files are not subject to the Code's confidentiality rules under DR 4-101 unless an attorney-client relationship has been established, in which case the files and information are confidential; that a lawyer may not concurrently represent an estate's personal representative and receive a realtor's commission for selling estate property, because that dual capacity would be a conflict of interest and create an appearance of impropriety under Canon 9; and that, while DR 3-103(A) bars a lawyer from forming a partnership with a non-lawyer where any activity is the practice of law, the Code does not prohibit sharing office space with a private business, though a lawyer operating both practices from one office may have difficulty keeping them separate and remains barred by DR 2-102(E) from indicating the other business on an office sign.
Currency note
This opinion issued in 1990 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments or later opinions may have changed the analysis; Ohio's current advertising and conflict rules differ from former DR 2-102(E), DR 5-101, and DR 2-103. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.
Common questions
Q: Can a lawyer represent the same client as both their lawyer and their realtor in a transaction?
A: Under this opinion, only with the client's consent after full disclosure of the conflicting interests, because DR 5-101(A) applies where the lawyer's financial interest as a realtor may affect professional judgment. The Board stated it does not recommend the dual representation.
Q: Can a lawyer list "realtor" or "real estate associate" on legal letterhead or a business card?
A: No. The Board concluded that DR 2-102(E) bars a lawyer from indicating another business on legal letterhead, an office sign, a professional card, or in connected advertising.
Q: Is a lawyer-realtor held to the Code of Professional Responsibility while acting only as a realtor?
A: Yes. The Board concluded a lawyer is bound by the applicable disciplinary rules whether acting in a professional capacity or otherwise.
Q: Can a lawyer representing an estate's personal representative also collect a realtor's commission on the estate's property?
A: No. The Board concluded a lawyer may not concurrently represent the personal representative and take a realtor's commission, because the dual capacity would be a conflict of interest and create an appearance of impropriety under Canon 9.
Q: Can a lawyer run a law practice and a real estate brokerage from the same office?
A: The Board concluded the Code does not prohibit sharing office space with a private business, but DR 3-103(A) bars a lawyer-nonlawyer partnership that involves the practice of law, the lawyer may have difficulty keeping the practices separate, and DR 2-102(E) still bars indicating the other business on an office sign.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility: DR 5-101(A) (conflicts from the lawyer's own interests), DR 2-103(A) and (C) (recommending oneself and using another business as a feeder), DR 2-106 (fees), DR 2-102(E) (holding out a non-legal business on legal materials), DR 4-101 (confidentiality once an attorney-client relationship exists), DR 3-103(A) (partnership with a non-lawyer), and Canon 9 (avoiding the appearance of impropriety).
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 5-101(A), declining employment where the lawyer's own interests may affect judgment
- DR 2-103(A), (C), recommending oneself and use of another business as a feeder
- DR 2-106, illegal or clearly excessive fees
- DR 2-102(E), not holding out a non-legal business on legal letterhead, sign, or card
- DR 4-101, confidentiality where an attorney-client relationship exists
- DR 3-103(A), partnership with a non-lawyer involving the practice of law
- Canon 9, avoiding the appearance of impropriety
Other opinions cited:
- ABA Committee on Ethics and Professional Responsibility, Formal Op. 336 (1974): a lawyer is bound by the Code while acting in another capacity
- Board of Commissioners Op. 88-23 (1988): DR 2-102(E) and the advertising rules
See also
- Ohio BPC Op. 1989-031: Lawyer Employed by a CPA Firm
- Ohio BPC Op. 1990-013: Lawyer Signing Correspondence on a Client's Letterhead
- Ohio BPC Op. 1989-005: Office-Sharing Lawyers on Opposing Sides of a Divorce
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-009.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 90-9
Issued June 15, 1990
[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: A lawyer should not concurrently represent a client as a lawyer and a realtor. Fees for legal services must comply with DR 2-106.
When engaged in a profession or business other than the legal profession a lawyer may not identify himself or herself as a lawyer on his or her letterhead, office sign, or professional card, or be identified as a lawyer in any professional or business publication in connection with a nonlegal profession or business. Code of Professional Responsibility, DR 2-102 (E).
A lawyer is bound by the Code whether acting in his or her professional capacity or otherwise. A lawyer representing the personal representative of an estate may not also perform the customary services of a realtor in selling the estate property. The Code does not prohibit a lawyer from sharing office space with a private business as long as the attorney complies with the applicable disciplinary rules.
OPINION: We have before us your request for an advisory opinion regarding your dual status as a lawyer and a licensed real estate agent. You indicate your compensation as a realtor will be a percentage of the sale price of the property payable at the closing. Your questions are as follows.
- Is there a conflict of interest prohibiting the attorney from representing a given seller or buyer in a real estate transaction both as their attorney and realtor?
A lawyer shall not accept employment if the exercise of his or her professional judgment may be affected by the lawyer's own financial business, property, or personal interests except with the consent of the client after full disclosure. Code of Professional Responsibility, DR 5-101(A). In this case, a lawyer's professional judgment may be affected by the lawyer's own financial interest as a realtor. Therefore, a lawyer should not represent a client as both lawyer and realtor unless the client consents after full disclosure of all the conflicting interests.
A lawyer is also precluded from recommending his or her legal services to a non-lawyer who has not sought the lawyer's advice. Code of Professional Responsibility DR 2-103(A). Therefore, as a realtor, a lawyer may not recommend his or her legal services to any real estate clients. Similarly, a lawyer may not request the real estate firm to recommend or promote his or her legal services. Code of Professional Responsibility, DR 2-103(C). In other words, the real estate practice may not be used as a feeder for the law practice. For these reasons, we do not recommend the dual representation as lawyer and realtor for one client.
- When an attorney represents a buyer or seller as an attorney and realtor or, as one but not the other, what ethical obligations are relevant to the fee agreement with the buyer or seller?
All legal fees must comply with DR 2-106 which states that a lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee. Code of Professional Responsibility, DR 2-106.
- May an attorney show on his letterhead, business card, or public advertising that he is also a "real estate associate" or "realtor"?
A lawyer who is engaged in the practice of law and another profession or business shall not so indicate on his or her letterhead, office sign, or professional card. Code of Professional Responsibility, DR 2-102 (E). A lawyer may not be identified as engaged in another profession or business in any publication in connection with the profession or business. Id. The Code therefore, does not permit a lawyer from indicating on his or her letterhead, business card, or in public advertising that the lawyer is also a "real estate sales associate" or "realtor."
In a prior opinion we noted that DR 2-102(E) is arguably inconsistent with the other Disciplinary Rules relating to advertising. Board of Commissioners Op, 88-23 (1988). However, DR 2-102 (E) remains a part of the Code and prohibits a lawyer from printing a dual practice on his or her letterhead, office sign or professional card.
- Is an attorney, while acting as a realtor only, held to the standards of the Code of Professional Responsibility, even though a realtor is prohibited by Ohio law from engaging in the practice of law?
A lawyer, whether acting in his or her professional capacity or otherwise, is bound by applicable disciplinary rules of the Code of Professional Responsibility. ABA Committee on Ethics and Professional Responsibility Formal Op, 336 (1974). Therefore, a lawyer would be bound by the Code while acting as a realtor.
- Are non-legal files kept at the real estate office considered confidential under DR 4-101.
A realtor's files are not subject to the Code's confidentiality rules if no attorney-client relationship has been established. When an attorney-client relationship is established all the files and information obtained in the legal representation would be confidential under DR 4-101.
- May an attorney representing the personal representative of an estate receive a commission for acting as a realtor and performing such customary services of a realtor in selling estate property?
A lawyer is obligated to exercise his or her professional judgment solely on behalf of his or her clients. A lawyer may not concurrently represent the personal representative of an estate, receive a commission for acting as a realtor and perform the customary services of a realtor in selling the estate property. Such a dual capacity would be a conflict of interest as well as create the appearance of impropriety. Code of Professional Responsibility, Canon 9.
- May an attorney operate his legal practice and real estate brokerage out of the same office?
Disciplinary Rule 3-103(A) states that "[a] lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of law." The Code does not prohibit a lawyer from sharing office space with a private business. However, a lawyer operating his or her legal practice and real estate brokerage out of the same office may have difficulty keeping the two practices separate. Furthermore, a lawyer is also prohibited from indicating another business on an office sign. Code of Professional Responsibility, DR 2-102(E).
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.