My client is a borrower closing a bank loan, and the bank wants me, as the borrower's lawyer, to sign an opinion letter saying the loan documents are legal, valid, binding, and enforceable. Can I sign that?

Plain-English summary

An attorney representing a borrower in a loan closing asked the panel whether he could sign an opinion letter, of the kind lending banks commonly require as a closing condition, stating that the loan and guaranty documents "constitute the legal, valid and binding obligations of the Borrower and Guarantor enforceable in accordance with their respective terms," subject to standard bankruptcy and equitable-principles carve-outs.

The panel applied Canon 5, which requires a lawyer to exercise independent professional judgment on behalf of a client, along with EC 5-1 (professional judgment must be exercised "free of compromising influences and loyalties") and EC 5-21 (a lawyer must "disregard the desires of others that might impair his free judgment"). It read DR 5-105(A) as implementing these principles by barring a lawyer from accepting employment that "would be likely to involve him in representing differing interests." The panel cited a Vermont Bar Association Committee on Professional Responsibility opinion (No. 87-18) that read "differing interests" broadly to include any interest that could adversely affect a lawyer's judgment or loyalty to a client, and held that a client's waiver could not cure a DR 5-105(A) violation where the lawyer could not adequately represent both interests. The panel also cited State Bar v. Rockwell, a West Virginia disciplinary decision finding that a lawyer who obtained confidential information in one professional capacity and later acted in another capacity created an appearance of impropriety even without proof that the information was actually misused.

Applying these authorities, the panel concluded that signing the borrower's-counsel opinion letter as submitted would constitute a violation of EC 5-1, EC 5-21, and DR 5-105(A).

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct, and it applies the ABA Model Code of Professional Responsibility's Canons, Ethical Considerations, and Disciplinary Rules that were then in effect. Subsequent rule amendments or later opinions may 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 Treat this page as historical context, not current guidance.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: Can I sign a legal opinion letter for the lender when I represent the borrower on the same loan?

A: No, according to this opinion. The panel held that signing a letter attesting the loan documents are legal, valid, binding, and enforceable would violate EC 5-1, EC 5-21, and DR 5-105(A) because it involves representing differing interests.

Q: Does it matter that the lender's own counsel usually gives this kind of opinion, and the bank is just asking my client's lawyer to give it instead?

A: The opinion does not treat that as a defense; it applies DR 5-105(A)'s bar on representing differing interests regardless of which side's counsel customarily gives the opinion.

Q: What authorities did the panel rely on for this conclusion?

A: The panel cited Vermont Bar Association Committee on Professional Responsibility Opinion 87-18, which construed "differing interests" under DR 5-105(A) broadly, and State Bar v. Rockwell (W. Va.), which found an appearance of impropriety where a lawyer held conflicting roles even absent proof of actual misuse of information.

Background and rules framework

The opinion applies Canon 5 (independence of professional judgment) of the ABA Model Code of Professional Responsibility, then in force in Rhode Island, together with EC 5-1, EC 5-21, and DR 5-105(A), which bars a lawyer from accepting employment likely to involve representing differing interests.

Citations and references

Rules of Professional Conduct:

• RI Canon 5 (independent professional judgment on behalf of a client)
• RI EC 5-1 (judgment free of compromising influences and loyalties)
• RI EC 5-21 (disregarding desires of others that might impair free judgment)
• RI DR 5-105(A) (accepting employment likely to involve representing differing interests)

Statutes:

• None cited.

Cases:

• State Bar v. Rockwell, W. Va. Sup. Ct. App. No. 17679 (decided December 17, 1987), lawyer holding conflicting professional roles creating an appearance of impropriety

Other opinions cited:

• Vermont Bar Association Committee on Professional Responsibility Opinion 87-18: construing "differing interests" under DR 5-105(A)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2088-01.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
Opinion #88-1, Request #1
ISSUED APRIL 15, 1988

An attorney seeks Panel advice as to whether he, as counsel for the borrower should sign an opinion indicating that the documents prepared by the lending bank's counsel are "legal, valid, binding and enforceable." The inquiring attorney suggests that the lender's

in nature, since many banks will not close
counsel gives the opinion specified. The precise language the inquiring attorney submits for Panel review reads as follows:

The loan and all agreements required of the Borrower and Guarantor in connection with the transactions thereunder constitute the legal, valid and binding obligations of the Borrower and Guarantor enforceable in accordance with their respective terms, except as may be limited by any applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditor's rights generally and except as certain remedies thereunder may be subject to equitable principles.

Canon 5 requires a lawyer to exercise independent, professional judgment on behalf of a client. EC 5-1 requires a lawyer to exercise his professional judgment "free of compromising influences and loyalties" and EC 5-21 emphasizes that "the obligation of a lawyer to exercise professional judgment solely on behalf of his client requires that he disregard the desires of others that might impair his free judgment." DR 5-105(A) implements these considerations by prohibiting a lawyer from accepting legal employment if that employment "would be likely to involve him in representing differing interests." In Opinion #87-18 of the Vermont Bar Association Committee on Professional Responsibility, published in the March 2, 1988 issue of the current reports of the ABA/BNA Manual on Professional Conduct, the Vermont Committee on Professional Responsibility reviewed a scenario in which a lawyer represented clients "who purchase property in the same transaction in which mortgages are created." The lawyer did not represent any of these clients after the purchase transaction but was engaged by local banks to initiate foreclosure actions against mortgagors who, in some cases, he had represented earlier.

Reviewing this scenario, the Vermont Committee on Professional Responsibility concluded that the term "differing interests" as used in DR 5-105(A) must include "every interest that will adversely affect either the judgment or loyalty of a lawyer to a client, whether it be conflicting, inconsistent, diverse, or some other interest." The Vermont Committee took the position, further, that the waiver-of-conflict provisions of DR 5-105(C) could not lift the prohibition imposed by DR 5-105(A), because the lawyer could not adequately represent both interests.

In State Bar v. Rockwell, W. Va. Sup. Ct. App. No. 17679, decided December 17, 1987, the Committee on Legal Ethics of the West Virginia State Bar reviewed a convoluted situation in which a lawyer serving in one capacity obtained confidential information relevant to matters handled in another capacity. Reviewing the evidence, the West Virginia Committee specifically noted that it was not clear whether the lawyer actually had used confidential information gained in one capacity when he acted in the other capacity. The Committee nevertheless concluded that the lawyer had involved himself in a situation which "created the possibility of the misuse" and created an appearance of impropriety.

the opinions cited. The Panel therefore advises the to sign a document as counsel for a borrower which contained the specific language submitted for review would constitute a violation of Ethical Considerations 5-1 and 5-21 and a violation of Disciplinary Rule 5-105(A).

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.