Can the same lawyer draft the documents in a real estate deal and also represent the broker at the closing?
Apply this to your situation
This page answers the general question as of 1969. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-69-3 answered four questions arising from a real estate broker's proposal to retain a law firm for closings in which the buyer or seller had no separate counsel. On Question 1, the committee held that the same attorney cannot prepare the documents and then represent the broker at the closing. In drafting documents for a buyer or seller, especially where that party pays for the service, the attorney acts for the party in interest, and at the closing the attorney is in fact acting on behalf of the seller, the buyer, the broker, and any mortgagee or other party in interest. Canon 6 of the Canons of Professional Ethics, which forbids representing conflicting interests except by express consent after full disclosure, and Canon 35, on intermediaries, applied. The committee concluded that the broker's desire to have a lawyer present at closing, under those facts, conflicted with the canons.
On Question 2, the committee held that different members of the same firm may not perform the services either, because a lawyer may not do what a partner may not do; the injunction against representing conflicting interests applies equally to partners representing clients with conflicting interests. On Question 3, it held that an attorney in private practice who is also an employee of a corporation may perform services for the public on behalf of the corporation, whether or not legal in nature, because under Canon 35 a lawyer may render services to an organization as an entity in matters in which the entity is interested, keeping the interests of the entity paramount.
On Question 4, which described a member of the bar acting as both attorney and real estate broker and seeking commissions in addition to legal fees, the committee declined to opine, explaining that its rules preclude opinions on past conduct unless the request comes from the State Bar of Wisconsin.
Currency note
This opinion was issued in 1969, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies former Canon 6 (conflicting interests) and Canon 35 (intermediaries) of the Canons of Professional Ethics. The current counterparts are SCR 20:1.7 / Model Rule 1.7 (conflicts of interest), SCR 20:5.4 / Model Rule 5.4 (professional independence; a lawyer's services not to be directed by a lay intermediary), and SCR 20:1.13 / Model Rule 1.13 (organization as client). 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 mentioned here.
Common questions
Q: Can one lawyer draft the closing documents and also represent the broker?
A: Under this opinion, no. The committee held that in drafting the documents the lawyer acts for the buyer and seller, so representing the broker at the closing creates conflicting interests under Canon 6.
Q: Can a different lawyer in the same firm represent the broker instead?
A: No. The committee held that different members of the same firm may not perform the services, because a lawyer may not do what a partner may not do.
Q: Can a lawyer who is a corporate employee perform services for the corporation involving the public?
A: Yes. The committee held that a lawyer-employee may render services for the entity itself, keeping the interests of the entity paramount, consistent with Canon 35.
Q: Why did the committee not rule on the broker-commission scenario in Question 4?
A: The committee declined because that question involved past conduct, and its rules preclude opinions on past conduct unless the request comes from the State Bar of Wisconsin.
Background and rules framework
The opinion applied former Canon 6 (conflicting interests, curable only by consent after full disclosure) and Canon 35 (a lawyer's professional services should not be controlled or exploited by a lay intermediary, though a lawyer may serve an organization as an entity). The current counterparts are SCR 20:1.7 / Model Rule 1.7, SCR 20:5.4 / Model Rule 5.4, and SCR 20:1.13 / Model Rule 1.13.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / SCR 20:1.7 (conflicts of interest; current clients); former Canon 6
- Model Rule 5.4 / SCR 20:5.4 (professional independence; lay intermediaries); former Canon 35
- Model Rule 1.13 / SCR 20:1.13 (organization as client)
Cases:
- State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, cited for the point that a broker may draft title documents for his own client
See also
- WI Ethics Op. E-69-1: Municipal Justice of the Peace Conflicts
- WI Ethics Op. E-00-04: Fee to Lawyer for Recommending Service Providers
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-69-3.pdf
Get today's answer for your situation
You just read a 1969 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.