What may a buyer's lawyer say to a seller at closing when the seller's lawyer is absent?
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This page answers the general question as of 2013. 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 represented buyers at closings where sellers' lawyers often did not attend. The committee distinguished a seller still represented in the transaction from one whose earlier limited representation had ended. It expressly declined to assess an absent seller lawyer's conduct because its advisory opinions addressed the requesting lawyer's conduct.
Under Rule 4.2, a buyer's lawyer could not discuss substantive transaction matters with a represented seller outside the seller lawyer's presence without that lawyer's consent. Showing where to sign or taking an acknowledgment was treated as clerical. For substantive questions, the buyer's lawyer needed consent from the seller's lawyer.
Under Rule 4.3, when the seller was unrepresented, the buyer's lawyer had to identify the buyer as the client, correct any misunderstanding of that role, and avoid legal advice beyond suggesting the seller consult counsel. The committee again allowed merely pointing to signature lines or taking an acknowledgment.
In practice
The opinion drew the line at substantive discussion: consent from the seller's lawyer was necessary if representation continued. If it had ended, the buyer's lawyer could perform clerical closing tasks but could not explain documents or advise the seller on their legal effect.
Common questions
Q: Could the buyer's lawyer tell the seller where to sign?
A: Yes. The committee viewed that act and taking an acknowledgment as clerical functions in either scenario.
Q: Could the buyer's lawyer explain a new document to a represented seller whose lawyer was absent?
A: Only with the seller lawyer's consent to substantive communications about the transaction.
Q: Did the opinion evaluate the absent seller lawyer's duties?
A: No. The committee said it would answer questions about the requesting buyer lawyer's conduct only.
Background and rules framework
The opinion applied Vermont Rule 4.2 to a seller represented in the transaction and Rule 4.3 to a seller whose representation had ended.
Citations and references
Vermont Rules of Professional Conduct:
- Rules 4.2 and 4.3.
See also
- Vermont Ethics Op. 94-08: Lender-only closing counsel
- Vermont Ethics Op. 01-02: Lender and borrower representation
Source
- Landing page: VBA real estate opinions
- Original PDF: Vermont Advisory Opinion 13-04
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