May a Vermont lawyer handle a property purchase or sale when the lawyer's spouse is the broker?

Plain-English summary

The committee considered whether a lawyer could represent a real estate client when the lawyer's spouse had acted as broker. It treated a financial benefit to one spouse as at least an indirect benefit to the other and assumed the broker had a substantial interest in the transaction closing. Under former DR 5-101(A), client consent after full disclosure was an exception when the lawyer's financial or personal interest could reasonably affect professional judgment.

For a buyer, the lawyer's duty to assess title marketability could require advising the client not to close. That advice could conflict with the broker spouse's interest in a completed sale. The committee concluded that the lawyer would normally be barred from representing the buyer unless the client consented after full disclosure of the potential conflict.

The committee did not impose the same categorical conclusion for seller representation. It said a seller's lawyer could also encounter a conflict, such as discovering a zoning or financing problem that called for advice against closing, but whether judgment might be affected depended on the particular transaction. The opinion also noted a separate question about interest on client trust funds, but declined further analysis because a recent Vermont Supreme Court amendment to DR 9-102 and DR 9-103 addressed the subject.

Currency note

This opinion was issued in 1984 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement.

Common questions

Q: Did the committee categorically bar every transaction involving the lawyer's broker spouse?

A: No. It said DR 5-101 required review of the particular facts and allowed client consent after full disclosure. The opinion nevertheless said buyer representation would normally be barred without that consent.

Q: Why did the committee distinguish buyer and seller representation?

A: It said a buyer's lawyer had to determine whether title was marketable and might have to advise against closing, contrary to the broker spouse's interest. For seller representation, the committee said the conflict assessment depended on the specific facts.

Q: Did the committee decide how interest earned on client trust funds could be used?

A: No. It identified a recent amendment to DR 9-102 and DR 9-103 and said no further analysis was necessary or advisable.

Background and rules framework

The conflict analysis applied former Code DR 5-101(A). The opinion mentioned DR 9-102 and DR 9-103 only when declining to analyze a second question about client trust funds.

Citations and references

Vermont Code of Professional Responsibility:

• DR 5-101(A); DR 9-102 and DR 9-103 on the separate trust-funds question.

Other opinions cited:

• Vermont Opinions 79-20 and 77-6, and ABA Formal Opinion 340, cited concerning potential conflicts between spouses in separate professional roles.

See also

• Vermont Ethics Op. 84-01: Police association counsel and criminal defense
• Vermont Ethics Op. 84-05: Initial inquiry and later adverse defense

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 84-02
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”