Can a lawyer who is a plaintiff in a partition suit accept appointment as the special commissioner who sells the property, and sell it to a spouse?

Plain-English summary

The Committee was asked about a special commissioner who sold real property to his wife when both the commissioner and his wife were parties to the partition suit in which he had been appointed commissioner. The Committee framed the principal issue as whether the attorney should have accepted appointment as special commissioner at all; no question was raised about procedural improprieties in advertising, accepting bids, or selling the property.

The Committee found DR 5-101(A) on point, which bars a lawyer from accepting employment, absent client consent after full disclosure, when the lawyer's professional judgment may be affected by the lawyer's own financial, business, property, or personal interests. The attorney here clearly had a personal interest because he was a plaintiff in the action. A special commissioner appointed to sell property in a partition suit must give bond and follow statutory procedures (W. Va. Code §§ 55-12-1 through 55-12-8) and is an appointee or officer of the court (citing Bracken v. Everett); a purchase by a special commissioner at his own sale is voidable (citing Robertson Consolidated Land Co. v. Paull).

The Committee noted it had ruled on a similar matter in Legal Ethics Case No. 116, where, quoting Ayers v. Blair, it held that a lawyer holding the dual roles of commissioner and bidder violated Canon 10 of the prior Code. Here the attorney was not the purchaser but had an even more vital prior interest: he was a plaintiff in the partition suit and married to the other plaintiff. His financial interest as a plaintiff conflicted with his duty as commissioner to ensure the property sold at a price advantageous to all parties, and the sale to his wife produced the appearance of impropriety that discredits lawyers and undermines public trust. The Committee observed that courts have long held transactions between husband and wife voidable where they affect a third party to whom a fiduciary duty is owed.

Because the commissioner's duty to the appointing court is at least as high as the duty owed a client, and because the attorney in a sense had himself as a client when he became a plaintiff, the Committee found DR 5-105(A), (B), and (C) applicable. It concluded that the conflict was exactly the kind DR 5-105 was meant to prohibit: an attorney who is a party to an action should refuse appointment as special commissioner in that action, and an attorney-commissioner appointed to sell property should not sell it to a spouse even when the spouse is the highest bidder in a properly conducted sale.

Currency note

This opinion was issued in 1984, before West Virginia replaced its Code of Professional Responsibility (the DR provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. 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: Could a lawyer who is a plaintiff in a partition suit serve as the special commissioner who sells the property?

A: No. The opinion concluded that an attorney who is a party to an action should refuse appointment as a special commissioner in that action, because the commissioner's duty to the court conflicts with the lawyer's own interest as a party.

Q: Why was the sale to the lawyer's wife treated as improper?

A: The opinion reasoned that the attorney's financial interest as a plaintiff conflicted with his commissioner's duty to sell at a price advantageous to all parties, and that a sale to his spouse created an appearance of impropriety; it concluded that an attorney-commissioner should not sell the property to a spouse even if the spouse is the highest bidder in a properly conducted sale.

Q: Which rule did the Committee rely on?

A: It applied DR 5-101(A) (declining employment when the lawyer's own interests may affect professional judgment) and DR 5-105(A), (B), and (C) (declining or discontinuing employment that involves representing differing interests), and noted a prior ruling, Legal Ethics Case No. 116, finding a Canon 10 violation where a lawyer held the dual roles of commissioner and bidder.

Background and rules framework

The opinion applied the conflict-of-interest provisions of the Code of Professional Responsibility then in force: DR 5-101(A), which addresses a lawyer's own financial, business, property, or personal interests, and DR 5-105(A) through (C), which address declining or continuing employment that would involve representing differing interests. It read those rules against the statutory role of a special commissioner under W. Va. Code §§ 55-12-1 through 55-12-8 as an officer of the appointing court.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 5-101(A) (lawyer shall not accept employment, absent client consent after full disclosure, if the lawyer's own financial, business, property, or personal interests may affect professional judgment)
• DR 5-105(A), (B), (C) (declining or discontinuing employment involving differing interests; multiple representation only with adequate representation and consent after full disclosure)

Statutes:

• W. Va. Code §§ 55-12-1 through 55-12-8 (special commissioner to sell property must give bond and follow statutory procedures)

Cases:

• Bracken v. Everett, 95 W. Va. 550, 121 S.E. 713, 715 (1924), special commissioner is an appointee or officer of the court
• Robertson Consolidated Land Co. v. Paull, 63 W. Va. 249, 59 S.E. 1085 (1907), purchase by a special commissioner at his own sale is voidable
• Ayers v. Blair, 26 W. Va. 558 (1885), quoted on the impropriety of a lawyer holding dual roles of commissioner and bidder

Other opinions cited:

• WVSB Legal Ethics Case No. 116 (undated): purchase by a special commissioner of property he was appointed to sell violated Canon 10 of the prior Code

See also

• WVSB Ethics Op. 83-4: Prosecutor representing a claimant before the Court of Claims
• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm
• WVSB Ethics Op. 86-3: Prosecutor representing a client previously investigated

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e4c67bc9fd034b092.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 83-12

(May 11, 1984)

PROPRIETY OF A PLAINTIFF-ATTORNEY SERVING AS SPECIAL COMMISSIONER IN SALE OF REAL PROPERTY

The Committee has been asked to give its opinion regarding the propriety of the sale of real property by a special commissioner to his wife when both the commissioner and his wife were parties to a partition suit pursuant to which he was appointed commissioner.

The principal issue here is whether the attorney should have accepted employment as a special commissioner. No question has been presented regarding procedural improprieties in the actual process of advertising, accepting bids and selling the real property.

DR 5-101(A) appears to be on point:

Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interests.

The attorney here clearly had a personal interest: he was a plaintiff in the action.

A special commissioner appointed to sell real property pursuant to a suit for partition must give bond and proceed according to certain statutory procedures. W. Va. Code §§ 55-12-1 through 55-12-8. Such a commissioner is an appointee or officer of the court before which the suit is pending. Bracken v. Everett, 95 W. Va. 550, 121 S.E. 713, 715 (1924). It is clear that a purchase by a special commissioner at his own sale is voidable. Robertson Consolidated Land Co. v. Paull, 63 W. Va. 249, 59 S.E. 1085 (1907).

A similar matter has already been ruled upon by the Committee. Legal Ethics Case No. 116 (undated) involved a purchase by a special commissioner of real property which he was appointed to sell. The Committee, quoting Ayers v. Blair, 26 W. Va. 558 (1885), held that for an attorney to hold the dual roles of commissioner and bidder is a violation of Canon 10 under the previous Code of Professional Responsibility.

In the matter at hand the attorney was not the actual purchaser of the property but had an even more vital interest prior to his appointment as commissioner: he was himself a plaintiff in the suit for partition and married to the other plaintiff. Clearly, his financial interest as a plaintiff conflicts with his duties as commissioner to ensure that the property is sold at a price advantageous to all parties. Moreover, the sale to his wife brings about the very appearance of impropriety which tends to discredit lawyers and undermine public trust in the entire judicial system. Courts have long recognized the special relationship of husband and wife and have often held voidable transactions between a husband and wife which affect the rights of a third party to whom a fiduciary duty is owed by either husband or wife. See 131 A.L.R. 990.

The relationship established by the appointment as commissioner carries with it a duty to the appointed court which is at least as high a duty as that owed to a client. Since, in a sense, the attorney here had himself as a client when he became a plaintiff to the partisan action, the provisions of DR 5-105(A), (B) and (C) are clearly applicable:

DR 5-105(A) -- A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).

DR 5-105(B) -- A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).

DR 5-105(C) -- In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

In summary, the conflict here is clearly of the kind DR 5-105 was intended to prohibit. An attorney who is a party to an action should refuse appointment as a special commissioner in that action.

Further, to avoid the erosion of public confidence in the legal profession we conclude that an attorney-commissioner appointed by a court to sell property should not sell that property to his or her spouse, even when that spouse is the highest bidder in a properly conducted sale.