May a Vermont closing lawyer represent both the mortgage lender and the buyer-borrower?
Apply this to your situation
This page answers the general question as of 2011. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The requesting lawyer asked whether the committee's earlier Opinion 2001-02 still permitted joint representation after changes to Vermont's conflict rule and residential closing requirements. The committee said the 2009 revision to Rule 1.7 did not impose an absolute ban. It required the lawyer to decide, for each transaction, whether competent and diligent representation of both parties was possible and then disclose the material risks and alternatives so each could give informed consent confirmed in writing.
The opinion used an erroneous lender estimate of a closing charge as an example of a conflict that may defeat joint representation. If the lender wants to collect an additional tax while the borrower wants the lender to bear the shortfall, only one party can prevail. A lawyer aware of that conflict cannot assume both interests can be represented adequately.
The committee also described conflicts that may arise later. If the borrower asks the lawyer to conceal a seller concession from the lender, the lawyer may be unable to share the information without the borrower's consent and unable to represent both clients; the opinion says withdrawal may then be required. It separately noted Rule 4.3 duties if the lawyer represents only the lender and the borrower is unrepresented.
In practice
For the closing arrangement described, the opinion requires an individual assessment of both clients' interests and written confirmation of their informed consent. It says that an actual dispute over who bears a closing-cost error can make competent joint representation impossible.
Common questions
Q: Did the 2009 Vermont rule revision prohibit all lender-borrower joint representation?
A: No. The opinion reaffirmed that it can be permitted under Rule 1.7 after a case-specific conflict assessment and informed written consent.
Q: Is a standard consent form enough by itself?
A: The opinion requires meaningful disclosure of risks and benefits to both parties, taking account of their sophistication, and consent confirmed in writing. It says the assessment cannot be presumed from the type of transaction.
Q: What if an actual conflict develops during the closing?
A: The opinion's example of a concealed seller concession would prevent competent representation of both clients and require the lawyer to withdraw. It says Rule 1.9 governs whether one party can remain a client afterward.
Background and rules framework
The opinion applies Vermont Rule 1.7 to concurrent conflicts and Rule 1.0(b) and (e) to written confirmation and informed consent. It also discusses Rule 1.9 after withdrawal and Rule 4.3 when a borrower is unrepresented.
Citations and references
Vermont Rules of Professional Conduct:
- Rules 1.0(b), 1.0(e), 1.7, 1.9, and 4.3
Other opinions cited:
- Vermont Professional Responsibility Committee Opinion 01-02, lender and borrower representation at a closing
See also
- Vermont Ethics Op. 90-08: Borrower and lender representation
- Vermont Ethics Op. 15-02: Buyer counsel and unrepresented seller
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 11-02
What do the rules say today, for your facts?
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