I represented the lender and the buyer in a real estate closing, and another lawyer tracing funds paid to the seller has subpoenaed my file. Do I owe the seller confidentiality, and can I turn over cancelled checks and loan documents?

Plain-English summary

The inquiring attorney had represented a lending institution and a purchaser in a real estate closing and had performed the title work. As in most closings, funds were disbursed to the seller, the lender, the attorneys, and the real estate agents. Another attorney, tracing funds paid to the seller, subpoenaed the file. The inquiring attorney asked (1) whether any confidentiality or representation duties were owed to the seller, (2) whether he could turn over copies of cancelled checks drawn to the seller, lender, and purchaser, and (3) whether he could supply other loan information, such as copies of documents signed by the purchaser.

On the first question, the Panel opined that the attorney did not have a confidential relationship with the seller, because on the facts supplied the attorney's clients appeared to be the lending institution and/or the purchasers.

On the second and third questions, the Panel applied Rule 1.6 (confidentiality of information), which bars revealing information relating to the representation of a client unless the client consents after consultation. The Panel concluded that as long as the clients, who appeared to be the lending institution and the purchaser, consent after consultation, the attorney may supply the requested information. The Panel noted the opinion addressed only the Rules of Professional Conduct and not the question of privilege under the Rules of Evidence.

Currency note

This opinion was issued in 1994 (Opinion 94-15, issued March 23, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.6 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.6. 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 Treat this page as historical context, not current guidance.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: Does a closing lawyer owe confidentiality to the seller?

A: On these facts, no. The Panel concluded the attorney had no confidential relationship with the seller, because the clients appeared to be the lender and the purchaser.

Q: Can the lawyer release the subpoenaed closing file?

A: Under Rule 1.6, yes, as long as the clients (the lender and the purchaser) consent after consultation.

Q: Did the Panel decide whether the documents were privileged?

A: No. The Panel said it addressed only the Rules of Professional Conduct and not the question of privilege under the Rules of Evidence.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.6 (confidentiality of information), the analog of Model Rule 1.6. Rule 1.6(a) barred revealing information relating to the representation of a client unless the client consents after consultation. The threshold question was identifying the client; the Panel found the lender and purchaser, not the seller, were the clients, so the confidentiality duty and the consent requirement ran to them.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / RI RPC 1.6(a) (confidentiality of information; disclosure on client consent after consultation)

See also

• RI EAP Opinion 2020-01: may not disclose a current client's sale information to a third party without consent
• RI EAP Opinion 93-02: a subpoenaed lawyer invokes privilege but obeys a final court order under Rule 1.6

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%2094-15.pdf

Original opinion text

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

0646
FINAL

ETHICS ADVISORY PANEL
OPINION #94-15 REQUEST #468
Issued March 23, 1994

The inquiring attorney represented a lending institution and a purchaser in a real estate closing. The attorney performed the title work in this matter. As in most real estate closings, funds were disbursed to the seller, the lender, the attorneys and real estate agents. The attorney's file regarding this matter is being subpoenaed by an attorney who is tracing funds paid to the seller. The inquiring attorney asks: (1) whether there are any confidentiality/representation issues owed to the seller; (2) whether he/she may turn over to the requesting attorney copies of cancelled checks drawn to the seller, lender and purchaser; and (3) whether he/she may supply other information regarding the loan, such as copies of signed documents by the purchaser.

With respect to the inquiring attorney's first inquiry, the Panel opines that the inquiring attorney does not have a confidential relationship with the seller. It appears from the facts supplied by the attorney, that his/her clients appeared to be the lending institution and/or the purchasers.

With respect to the second and third inquiry the Panel believes that Rule 1.6 "Confidentiality of Information" applies in this situation. This Rule states that (a) "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation . . ." The Panel believes that as long as the clients, which appears to be the lending institution and purchaser, consents after consultation the attorney can supply the requested information.

This opinion addresses the Rules of Professional Responsibility only and does not address the question of privilege under the Rules of Evidence.