Can a lawyer prepare a different deed at the direction of the client's real estate agent instead of the deed the sale contract requires?

Plain-English summary

A lawyer for a legal services corporation reviewed a union member's executed real estate purchase agreement, which called for a good and sufficient warranty deed. The client's real estate agent then sent the lawyer a letter directing preparation of a joint and survivorship deed for an unrepresented purchaser, without any modification to the written purchase agreement. The Board addressed three questions and withdrew Adv. Op. 1988-30.

On the first question, the Board concluded the lawyer should contact the client to discuss the agent's request, the difference between the deeds, their legal effect, and any risks. Reasonable communication is required so the client can participate effectively (Prof.Cond.R. 1.4, cmt. [1]), and the client holds ultimate authority over the objectives of the representation (Prof.Cond.R. 1.2(a)). Distinguishing objectives from means, the Board adopted the guideline of asking whether a decision directly affects the ultimate resolution of the matter or the client's substantive rights, as opposed to being procedural or tactical. The lawyer must analyze whether substituting a joint and survivorship deed for a warranty deed is inconsistent with the contract or would impair its enforceability or the client's rights; if so, the lawyer should not act on the agent's request without the client's consent.

On the second question, the Board concluded that a lawyer must exercise independent professional judgment and may not take direction from someone other than the client (Prof.Cond.R. 1.8(f), 2.1, 5.4(c)), so the legal services lawyer may not take direction from the legal services corporation or the client's real estate agent unless the client has authorized it or the lawyer has consulted the client. The third question, about the lawyer's liability exposure, is a legal question outside the Board's authority; but the Board noted that in dealing with an unrepresented purchaser the lawyer must identify himself or herself as the seller's lawyer, refrain from giving the purchaser legal advice, and may only advise the purchaser to secure independent counsel (Prof.Cond.R. 4.3).

In practice

The opinion holds that, under the Ohio Rules of Professional Conduct as they stood at the time, a lawyer who receives a real estate agent's request to draft a deed different from the one the executed contract requires must consult the client about the request and its legal effect, and should not draft the different deed without the client's consent where the change would affect the resolution of the matter or the client's substantive rights (Prof.Cond.R. 1.2, 1.4). Per the opinion, the lawyer must maintain independent professional judgment and take direction from the client rather than a third party such as the agent (Prof.Cond.R. 2.1, 5.4(c)). The opinion states that with an unrepresented purchaser the lawyer must identify the side represented, give no legal advice, and may only advise the purchaser to obtain counsel (Prof.Cond.R. 4.3).

Common questions

Q: Can a lawyer change the deed because the client's real estate agent asked?

A: The opinion concludes the lawyer should first consult the client, and should not draft a deed different from the one the contract requires, without the client's consent, if the change would affect the matter's resolution or the client's substantive rights.

Q: Can a lawyer take instructions from the real estate agent instead of the client?

A: The opinion concludes no; the lawyer must exercise independent professional judgment and may not take direction from a third party such as the agent unless the client has authorized it (Prof.Cond.R. 2.1, 5.4(c)).

Q: What can the lawyer tell the unrepresented buyer?

A: The opinion concludes the lawyer must identify himself or herself as the seller's lawyer, give the buyer no legal advice, and may only advise the buyer to secure independent legal counsel (Prof.Cond.R. 4.3).

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 1.2 (allocation of authority between client and lawyer; Model Rule 1.2), Prof.Cond.R. 1.4 (communication; Model Rule 1.4), Prof.Cond.R. 2.1 (independent professional judgment; Model Rule 2.1), Prof.Cond.R. 5.4(c) (no interference by a third party who pays for or directs the representation; Model Rule 5.4), and Prof.Cond.R. 4.3 (dealing with unrepresented persons; Model Rule 4.3).

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 1.2(a) and cmts. [1]-[2] (Model Rule 1.2)
• Ohio Prof.Cond.R. 1.4(a) and cmt. [1] (Model Rule 1.4)
• Ohio Prof.Cond.R. 2.1; Prof.Cond.R. 5.4(c); Prof.Cond.R. 1.8(f)
• Ohio Prof.Cond.R. 4.3 (dealing with unrepresented persons) (Model Rule 4.3)

Other opinions cited:

• Ohio BPC Adv. Op. 1988-30: preparation of a deed at a real estate agent's direction (withdrawn by this opinion)

See also

• Ohio BPC Op. 2019-001: Representation of an Adverse Party in Unrelated Matters
• Ohio BPC Op. 2020-003: Duty of Disclosure of a Prospective Client's Fraudulent Conduct
• Ohio BPC Op. 2019-010: Referral Fees From a Financial Services Group

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2020/02/Adv.-Op.-2020-02-Final.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

OPINION 2020-02
Issued February 7, 2020
Withdraws Adv. Op. 1988-30

          Preparation of Deed Upon Direction of Real Estate Agent

SYLLABUS: A lawyer should not draft a deed at the direction of his or her client’s real
estate agent that is different than the deed required by an executed contract, without the
client’s consent, if the new deed will affect the ultimate resolution of the matter or the
substantive rights of the client. When interacting with an unrepresented party in a real
estate transaction, a lawyer must identify himself or herself as the lawyer for either the
buyer or seller, refrain from giving the unrepresented party any legal advice, and may
only advise the unrepresented party to secure independent legal counsel.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

HON. JOHN W. WISE RICHARD A. DOVE
CHAIR DIRECTOR
PATRICIA A. WISE D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                   OPINION 2020-02
                                Issued February 7, 2020
                             Withdraws Adv. Op. 1988-30

              Preparation of Deed Upon Direction of Real Estate Agent

SYLLABUS: A lawyer should not draft a deed at the direction of his or her client’s real
estate agent that is different than the deed required by an executed contract, without the
client’s consent, if the new deed will affect the ultimate resolution of the matter or the
substantive rights of the client. When interacting with an unrepresented party in a real
estate transaction, a lawyer must identify himself or herself as the lawyer for either the
buyer or seller, refrain from giving the unrepresented party any legal advice, and may
only advise the unrepresented party to secure independent legal counsel.

QUESTIONS PRESENTED: A lawyer works for a not-for-profit legal services
corporation that serves only members, retirees and dependents of a union. One of the
union members entered into an agreement to sell real estate in Ohio and asked the lawyer
to review the already executed purchase and sales agreement. The union member/client
also instructed the lawyer to prepare any required deed as stipulated in the purchase and
sales agreement. The agreement called for a good and sufficient warranty deed.

   The lawyer subsequently received a letter from the client’s real estate agent with

instructions to prepare a joint and survivorship deed for the purchaser of the real estate
who is not represented by counsel. The written purchase agreement between the parties
was not modified.
Op. 2020-02 2

   1). May a lawyer prepare and provide a deed, at the request of a real estate agent,

rather than at the request of the seller of real property, his or her client, that is different
than the deed called for pursuant to the contract of sale?

   2). When a real estate agent for a common client/seller of real property requests a

lawyer to draft a deed that is different than the deed called for pursuant to the contract
of sale, is the real estate agent interfering with the attorney’s independence or
representation of his or her client?

   3). Does a lawyer who prepares a deed different than the deed called for pursuant

to a contract of sale have any potential liability or exposure if the purchaser is unaware
of the legal ramifications of the same?

APPLICABLE RULES: Prof. Cond. R 1.2, 1.4, 2.1, 4.3 and 5.4

OPINION:

Communication with Client and Allocation of Authority Between Client and Lawyer

   In regard to the first question, the lawyer should contact his or her client to discuss

the request made by the real estate agent, the difference between the deeds, the legal
effect of the deeds, and any potential risks to the client if a deed is prepared different than
the deed called for pursuant to the contract for sale. Reasonable communication between
a lawyer and client is required in order for the client to participate effectively in the
representation. Prof. Cond. R. 1.4, cmt. [1]. Specifically, the communication required
includes keeping the client reasonably informed about the status of a matter and
consulting with a client about the means by which the client’s objectives are to be
accomplished. Prof. Cond. R. 1.2(a)(emphasis added) and 1.4(a)(2) and (3). The client
has the ultimate authority related to decisions about the objectives of the representation.
Prof. Cond. R. 1.2(a), cmt.[1]. It can be difficult to distinguish whether a particular
decision relates to the objectives of the representation or the means to accomplish the
objectives. The Board agrees with the commentary of the ABA, that a good guideline for
a lawyer analyzing where the authority rests in a particular matter is focusing on whether
a decision directly affects the ultimate resolution of the matter or the substantive rights
of the clients versus whether the decision is procedural or tactical in nature. Bennett,
Cohen & Gunnarsson, Annotated Model Rules of Professional Conduct, 34 (8th ed. 2015). See
also Prof. Cond. R. 1.2, cmt.[2].
Op. 2020-02 3

   In order to reach a conclusion as to whether this decision affects the objectives or

means of the matter, the lawyer must conduct a legal analysis as to whether the general
warranty deed and the joint and survivorship deed are inconsistent and if the execution
of the joint and survivorship deed would impact the enforceability of the contract for sale
or otherwise prejudice the client’s substantive rights. If the lawyer concludes that
drafting a joint and survivorship deed instead of a warranty deed will affect the ultimate
resolution of the matter or the substantive rights of the client, then the lawyer should not
act on the real estate agent’s request without the client’s consent.

Professional Independence of a Lawyer

   In representing a client, a lawyer must exercise independent professional

judgment, render candid advice, and may not take direction from someone other than
the client. Prof. Cond. R. 1.8(f), 2.1 and 5.4(c). Thus, the legal services lawyer may not
take direction from either the legal services corporation or the client’s real estate agent,
unless the client has previously authorized the lawyer to act on such direction or the
lawyer has consulted with the client.

Liability for Preparation of Different Deed

   The third question posed as it pertains to the lawyer’s exposure to liability is a

legal question that the Board does not have the authority to address. See BPC Reg.
15(B)(1). However, assuming the lawyer will have some interaction with an
unrepresented purchaser, the lawyer must identify him or herself as the lawyer for the
seller, refrain from giving the purchaser any legal advice, and may only advise the
purchaser to secure independent legal counsel. See generally Prof. Cond. R. 4.3.

CONCLUSION: A lawyer who receives a request from a client’s real estate agent to
draft a deed different than the specific deed required by a previously executed contract
for sale must contact his or her client to discuss the request and legal ramifications. If the
request for a deed different than the deed required pursuant to the contract for sale will
affect the ultimate resolution of the matter or the substantive rights of the client, then the
lawyer should not draft the deed without the client’s consent. A lawyer must always
maintain independent professional judgment and should not take direction from a third
party, such as the client’s real estate agent, rather than his or her own client. In interacting
with an unrepresented purchaser, a lawyer must identify himself or herself as the lawyer
Op. 2020-02 4

for the seller, refrain from giving the purchaser any legal advice, and may only advise the
purchaser to secure independent legal counsel.