Could a buyer's lawyer sign the seller's declaration describing advice to the buyer and limiting possible later claims?
Apply this to your situation
This page answers the general question as of 1991. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The seller's lawyer made a complex real estate closing conditional on the buyer and buyer's lawyer signing a declaration about the investigation and legal advice the buyer received. The lawyer's portion characterized the advice as detailed and described limitations on the lawyer's warranties about the transaction.
The committee found that the declaration could benefit the buyer's lawyer by limiting potential malpractice exposure while harming the buyer. It might also waive the buyer's attorney-client privilege to the seller's advantage. The committee concluded that the buyer's lawyer should not recommend the buyer sign or execute the attorney portion, even assuming informed client consent.
The committee declined to evaluate whether the seller's lawyer could ethically require the declaration. Its procedure limited the opinion to the requesting lawyer's own contemplated conduct.
Currency note
This opinion was issued in 1991, before Vermont's 1999 adoption of the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Why did the declaration raise a concern for the buyer's lawyer?
A: It described the lawyer's advice in a way that might limit the lawyer's liability to the buyer and could reveal privileged communications in a later dispute.
Q: Did client consent make the attorney portion acceptable?
A: No. The committee said the lawyer should decline to sign even if the buyer consented after full disclosure.
Background and rules framework
The opinion applied former DR 6-102(A) on attempts to limit malpractice liability, DR 4-101 on client confidences, and DR 7-101 on prejudicing a client. It also discussed Canon 9's appearance-of-impropriety concern.
Citations and references
Former Vermont disciplinary rules:
- DR 6-102(A), DR 4-101, and DR 7-101.
Other opinions cited:
- Vermont Opinion 90-8.
See also
Source
- Landing page: VBA real estate opinions
- Original PDF: Vermont Advisory Opinion 91-07
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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