I represented the seller at a closing where the buyer was unrepresented, then wrote the buyer about the 'legal services' I provided. Can I now foreclose against the buyer?

Plain-English summary

The inquiring attorney represented the seller at a closing during which the buyer was unrepresented. After the closing, the attorney wrote the buyer a letter discussing the "legal services" the attorney provided the buyer in connection with the purchase of the property. The attorney has since been asked to institute foreclosure proceedings against the buyer, and asked whether a conflict would exist.

The panel took the position that, in light of the letter the attorney sent the buyer after the closing, an appearance of impropriety would exist if the attorney now initiates foreclosure proceedings against the buyer. The panel added that, absent the attorney's letter, which made declarations of legal services provided to the buyer, it would not have found an appearance of impropriety.

Currency note

This opinion was issued in 1992, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Why does the letter to the buyer matter?

A: Per the opinion, the letter made declarations of legal services provided to the buyer, which the panel treated as the basis for an appearance of impropriety in later foreclosing against the buyer.

Q: Would there have been a conflict without the letter?

A: Per the opinion, no. Absent the attorney's letter, the panel would not have found an appearance of impropriety.

Q: Can I bring the foreclosure given the letter?

A: Per the opinion, doing so would create an appearance of impropriety, because the attorney had represented in the letter that it provided the buyer legal services.

Background and rules framework

The opinion cites no numbered Rule of Professional Conduct. The panel resolved the inquiry on the appearance-of-impropriety standard: representing the seller against an unrepresented buyer was not itself disqualifying, but the attorney's post-closing letter claiming to have provided the buyer legal services created the appearance that the attorney had acted for the buyer, which made a later foreclosure against the buyer improper.

Citations and references

Rules of Professional Conduct:

• None cited. The panel resolved the inquiry on the appearance-of-impropriety standard as applied to the attorney's letter claiming legal services to the buyer.

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2017-02: A Nonwaivable Conflict Representing Both Buyer and Seller in a Business Sale
• RI EAP Op. 91-72: An Initial Consultation That Bars Adverse Representation
• RI EAP Op. 88-14: Direct Contact With Unrepresented Bankruptcy Claimants

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%2092-08.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 #92-8, Request #216
Issued January 14, 1992

An attorney seeks Panel advice as to whether or not a conflict would exist in a situation where the attorney represented the seller at a closing during which the buyer was unrepresented. After the closing, the attorney wrote to the buyer a letter discussing the "legal services" the attorney provided the buyer in connection with the purchase of the property. The attorney subsequently has been asked to institute foreclosure proceedings against the buyer.

The Panel is of the opinion that in light of the fact that after the closing the attorney sent the buyer the above-mentioned letter, an appearance of impropriety would exist if the attorney now initiates foreclosure proceedings against the buyer. Absent the attorney's letter, which made declarations of legal services provided to the buyer, the Panel would not have found an appearance of impropriety.