May a Vermont seller's lawyer provide limited title-insurance representation to an unrepresented buyer?
Apply this to your situation
This page answers the general question as of 2004. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A seller's attorney proposed to prepare and issue a title insurance policy for an unrepresented buyer, with the buyer paying the attorney and the premium. The lawyer proposed a disclaimer of buyer representation and a conflict waiver. The committee examined the services involved in reporting title conditions and explaining their legal effect.
Applying Vermont Rule 1.7 as it stood in 2004, the committee found an irreconcilable conflict in the proposed limited buyer service. The seller's lawyer could not adequately counsel the seller about a buyer's title objections while also advising the buyer about the title policy's risks. A disclaimer or proposed consent could not satisfy the threshold requirement that the lawyer reasonably believe both clients could be represented adequately.
The opinion distinguished a transaction in which the purchase contract required the seller to deliver a title insurance policy. In that circumstance, seller's counsel could prepare and issue the policy for the seller's contractual performance while representing only the seller. The lawyer would have to refrain from explaining the policy or answering the buyer's legal questions.
In practice
For the proposal described, the opinion rejects a limited representation of the buyer by seller's counsel. Its separate seller-only example turns on the policy being provided to fulfill the seller's contract, with no legal advice to the buyer.
Common questions
Q: Can buyer and seller waive the proposed dual representation?
A: The opinion says the lawyer could not make Rule 1.7's initial finding that both could be represented adequately, so proposed consent did not cure the conflict.
Q: May seller counsel ever issue a title policy naming the buyer?
A: The opinion says yes where doing so is solely part of the seller's contract obligation and the lawyer does not represent or advise the buyer.
Q: Could a disclaimer alone make the buyer's proposed limited service permissible?
A: No. The opinion said delivering a title policy to an unrepresented buyer could invite questions about title problems that seller counsel could not answer as buyer's adviser.
Background and rules framework
The opinion applies the 2004 version of Vermont Rule 1.7 to the proposed concurrent representation. It distinguishes the actual proposal from seller-only contract performance and discusses earlier Vermont opinions on representation of multiple parties in real estate transactions.
Citations and references
Vermont Rules of Professional Conduct:
- Rule 1.7
Other opinions cited:
- Vermont Opinions 78-04 and 73-6, representation of buyer and seller
- Vermont Opinion 2000-2, representation of borrower and lender
See also
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 04-03
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