REAL ESTATE TRANSACTIONS

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13-04 (1) If a seller is represented in a real estate transaction but the seller’s attorney does not attend the closing, the purchaser’s attorney must obtain the consent of the seller’s attorney to communicate with the seller on any issues that pertain to the transaction.

(2) If the seller was previously represented by an attorney in connection with a real estate transaction but the attorney-client relationship has ended prior to closing, purchaser’s attorney must be satisfied that the seller understands that the attorney represents only the purchaser. The purchaser’s attorney must also refrain from providing legal advice to the seller except the advice to consult with an attorney.

04-03 Attorney may not simultaneously represent a client who is selling a parcel of real property and provide limited representation to the buyer of the same real estate by providing a title insurance policy to such buyer. The scope of the obligations inherent in issuing the title insurance policy creates a contemporaneous conflict of interest that is of such a serious character that the conflict cannot be properly waived under Rule 1.7.

02-04 This Opinion addresses a series of inquiries about handling client trust funds.

01-02 
SYNOPSIS ONE
: The Committee revises its prior position on the propriety of an attorney representing a lender and a borrower in the same transaction. An attorney may represent a lender and a borrower in a real estate transaction if the attorney satisfies the requirements of Rule 1.7 of the Rules of Professional Conduct (the "Rules") by concluding that: (a) the representation of the lender and borrower in the same transaction will not adversely affect the relationship with either client; (b) that the attorney’s judgment will not be materially limited by responsibilities to either client or to a third party; and, (c) that each client agrees to the dual representation after consultation. The consultation must occur sufficiently before the closing to allow either client to obtain separate representation if desired. The consultation must also include a discussion of the implications of the common representation and the risks and benefits of the common representation. The Committee continues to believe that it is not appropriate to represent a seller and buyer in a real estate transaction.
SYNOPSIS TWO: An attorney or law firm may form a title and escrow company to provide title and escrow services, but such services constitute law related services and the Rules apply to each attorney involved in providing these related services.

99-03 With client consent, a supervising attorney may permit a paralegal to conduct a loan closing on behalf of a lender client where the client consents, the paralegal’s role is ministerial in nature, and the attorney is available for questions, at least by telephone.

95-09 An attorney who, either directly or indirectly, performs legal services on behalf of a bank/lender in the closing of a residential real estate transaction, does so at his/her peril when the borrower is not represented by counsel. The attorney must exercise caution to avoid any suggestion that he/she acts on behalf of the borrower. The need to exercise caution is particularly strong with respect to loan packages which provide significant savings to a borrower who chooses to proceed to closing without his/her own attorney

94-08 An attorney may accept an engagement from a lender, who makes loans secured by a mortgage on the borrower's property, to represent the lender in a closing, provided that the attorney does not directly or indirectly undertake to represent the borrower in the same transaction.

93-10 An attorney may conduct a legal practice and real estate brokerage from the same office. An attorney may advertise his or her real estate business by stating he or she is also an attorney and has represented buyers and sellers for a number of years. An attorney may represent to the clients and customers of his or her real estate business that he or she is an attorney with experience in real estate transactions.

91-07 In a complex and unconventional real estate transaction, the Purchaser's attorney should not counsel his client to execute a Declaration drafted by the Seller's attorney which might (1) operate as a waiver of the Purchaser's attorney/client privilege; and (2) limit the Purchaser's potential remedies against his attorney or the Seller in any subsequent dispute arising from the transaction. In addition, the Purchaser's attorney should refuse to execute the Declaration as drafted by the Seller's attorney, since its characterizes the nature, quality and extent of communications between the Purchaser's attorney and his client.

90-08 An attorney may not provide simultaneous representation to a borrower and a lender. An attorney may furnish the lender with title insurance and a proposed mortgage deed or comply with other similar loan requirements on the buyer's behalf so long as the attorney does not enter into an attorney-client relationship with the lender.

88-08 An executor of an estate who is also an attorney may, under strictly limited circumstances, convey estate property to an associate in the executor/attorney's law firm.

87-15 A law firm which employs a paralegal may represent parties adverse to a paralegal's spouse in real estate transactions provided full disclosure is made to the client and the paralegal is not allowed to work on those transactions.

87-13 An attorney may take a mortgage on a client's home to secure payment of unearned but anticipated legal fees and expenses but may not take and record a mortgage unrelated to fees for the sole purpose of frustrating efforts of judgment creditors to collect the client's debts.

87-03 Because the attorney "represents" both the title insurance company and the prospective purchaser of insurance, the rules relating to representation of multiple clients determine when and if such representation is permissible.

84-02 May a lawyer, consistent with the provisions of the Code of Professional Responsibility, represent a client in connection with a real estate transfer in connection with which the lawyer’s spouse who is a licensed Vermont real estate broker or salesman, has acted in the capacity of a broker?

81-09 An attorney may carry on the practice of law while also acting as a real estate broker, as long as he/she observes the restraints on dual professions delineated in DR 2-102(E).

80-15 Two attorneys occupying adjacent offices and sharing library, conference room, and office equipment, and who are not and do not hold themselves out to be partners or associates, are not subject to the same conflict of interest restrictions as attorneys so affiliated and may properly represent opposite sides of real estate transactions and other causes. On the facts stated, it is not improper for one of the two attorneys to sublet from the other.

80-03 Attorney who has certified marketability of title to client later representing that client in an action arising from a boundary dispute

79-23 Bank requiring attorney to represent borrower and bank mortgage in

79-22 Attorney sharing law offices who are not and do not hold themselves out to be partners of associates

79-16 Attorney representing seller or real estate and as agent for sale of title insurance

78-04 Representation of both seller and purchaser in

 

 

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