After examining a title for a prospective purchaser and noting defects, may the lawyer take a fee from the seller to cure those same defects?

Plain-English summary

A client (a prospective purchaser) had employed the inquirer to examine an abstract of title; the inquirer wrote an opinion noting objections and defects he considered fatal and making certain requirements. The seller then asked the inquirer whether he could straighten out the flaws and mistakes in the title, work that would probably require court action. The inquirer asked whether it would be unethical to accept employment and a fee from the present owner to perfect the title, given that he had already been employed by the proposed purchaser to pass on it.

The Board answered the inquiry in the negative, citing Advisory Opinion No. 65. It observed, however, that unlike the situation in Opinion No. 65, here it would be entirely proper for the inquirer to accept the employment "by express consent of all concerned given after a full disclosure of facts," quoting Rule 8 of the Rules of Professional Conduct.

Currency note

This opinion was issued in 1937, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The consent-after-disclosure mechanism stated here in Rule 8 corresponds to the modern conflict rules' informed-consent provisions (Model Rule 1.7 and its Oklahoma counterpart). Subsequent rule amendments and later opinions have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Was the dual employment flatly prohibited?

A: No. The Board found it permissible by the express consent of all concerned given after a full disclosure of the facts, distinguishing the situation from Advisory Opinion No. 65.

Q: What did Rule 8 supply here?

A: Rule 8 furnished the consent-after-disclosure path: the inquirer could act for the seller to cure the defects he had identified for the buyer if all concerned consented after full disclosure.

Background and rules framework

The opinion applied Rule 8 of the canon-era Oklahoma Rules of Professional Conduct, which permitted representation of differing interests by express consent of all concerned after a full disclosure of the facts, and relied on Oklahoma Advisory Opinion No. 65. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 8 (1929 Oklahoma Rules of Professional Conduct): a lawyer may represent differing interests only by express consent of all concerned given after a full disclosure of the facts.

Other opinions cited:

• Oklahoma Advisory Opinion No. 65 (Vol. 1, Adv. Op., p. 124).

See also

• Okla. Bar Ethics Op. 134: Office-sharing lawyers and an alienation-suit conflict
• Okla. Bar Ethics Op. 130: Suing an heir's share after withdrawing from the probate
• Okla. Bar Ethics Op. 139: Defense lawyer newly retained by the school board

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-140/

Original opinion text

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

Adopted November 27, 1937

The Board of Governors is in receipt of the following inquiry:

"A client employed me to examine an abstract of title to certain lands in ………. County, and after examining such abstract, I wrote an opinion thereon making certain objections and setting out certain defects which I considered fatal to the title and made certain requirements in connection therewith.

"The party from whom my client, the prospective purchaser, is purchasing the land, has written me asking if I could straighten out the flaws and mistakes in the title. It will probably require court action in order to perfect the title.

"Question: Would it be unethical for me to accept employment and a fee from the present owner of the land to institute, conduct and close whatever court action, and take any other action as may be necessary, in my opinion, to perfect the title, in view of the fact that I have accepted employment from the proposed purchaser to pass upon the title?"

In response:

The inquiry is answered in the negative in Advisory Opinion No. 65, Vol. 1, Adv. Op., page 124. The observation is made, however, that, unlike the condition presented in Advisory Opinion No. 65, it would be entirely proper for the inquirer to accept the employment "by express consent of all concerned given after a full disclosure of facts." (Rule 8 of the Rules of Professional Conduct.)