Ethics Opinions

Opinion 06-03

Summary:  A lawyer who represents a client in a real estate transaction that is adverse to a party who has offered to retain the lawyer with respect to a separate, future transaction involving the same property faces a potential ethical dilemma.  Under Rule 1.7, the lawyer may agree to undertake the representation of both parties only if the lawyer reasonably perceives no risk of an actual or potential conflict in her present engagement and both sides consent after disclosure of all of the facts necessary to permit the client to appreciate the significance of the matter in question.  In all other circumstances, the Committee believes that the lawyer should decline the proposed representation because of its potential adverse effect on the lawyer’s ability to zealously represent her existing client.  Regardless of the course of action that the lawyer ultimately takes, she may not later represent the currently-adverse party in a dispute with the lawyer’s original client concerning the subject matter of her representation of that client without the original client’s express consent, nor may she disclose or utilize any confidential information received from the original client for the benefit of the adverse party without obtaining the original client’s specific authorization.        

Facts:  A lawyer (“Lawyer”) currently represents the seller (“Seller”) in a real estate transaction involving the sale of a residential property.  The expected buyer of the property (“Buyer”) intends to renovate and resell it.  Buyer, impressed with the quality of service that he has observed Lawyer rendering to Seller, seeks to retain Lawyer, while the parties’ current transaction still is pending, for purposes of his planned resale of the property.  The issue arises whether Lawyer now may continue her representation of Seller in the pending transaction, or agree to represent Buyer in his subsequent resale of the same property, without violating the Massachusetts Rules of Professional Conduct. 

Discussion:  The dilemma presented by the situation described is one of potentially divided loyalties on the part of Lawyer.  Under Rule 1.3 of the Massachusetts Rules of Professional Conduct, Lawyer is obligated to represent Seller, her client, in the current real estate transaction, “zealously within the bounds of the law.”  Buyer’s offer of employment with respect to the later resale of the same property creates the risk that Lawyer’s duty of loyalty to Seller may be affected or undermined by her independent relationship, or prospective relationship, with Buyer.  Faced with such an offer, Lawyer has three alternative courses of action.  She may decide to (a) decline the offer; (b) accept the offer; or (c) defer her decision on the offer until a later time.  The severity of the dilemma and Lawyer’s resulting ethical obligations depend upon the course that she chooses. 

If Lawyer chooses to decline the offer, then there is no independent relationship, or prospective relationship, between Lawyer and Buyer, and therefore no ethical conflict.  In such circumstances, however, the Committee believes that when and how the Lawyer’s decision is conveyed to Buyer are issues on which Lawyer should confer with Seller pursuant to Rule 1.4(a) in order to avoid or minimize any possible negative ramifications that Lawyer’s decision could have on Seller’s relationship with Buyer.[1]

If, on the other hand, Lawyer decides to accept Buyer’s offer, then she immediately faces a conflict under Rule 1.7(a), which provides that,

A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1)        the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2)        each client consents after consultation.

Lawyer’s decision to accept the Buyer’s offer of employment in the circumstances presented implicates Rule 1.7(a) because, if she were to agree to provide legal representation to the Buyer, both Seller and Buyer would be Lawyer’s “clients”; one with respect to the current real estate transaction, and one with respect to the anticipated future transaction.  That being the case, Lawyer’s representation of Seller in the current real estate transaction would be directly adverse to Buyer and could not be maintained unless Lawyer (a) reasonably believes that the representation would not adversely affect her relationship with Buyer; and (b) obtains the consent of both Seller and Buyer after consultation.[2] 

On the other hand, Lawyer cannot avoid an ethical dilemma under Rule 1.7 simply by deferring her decision on Buyer’s offer of employment until a later time.  The risk that Lawyer’s current representation of Seller may be adversely impacted by the realistic prospect of a future relationship with Buyer creates an immediate conflict under Rule 1.7(b), which states in relevant part that,

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:

(1)        the lawyer reasonably believes the representation will not be adversely affected; and

(2)        the client consents after consultation….

The Buyer’s offer of employment to Lawyer implicates Rule 1.7(b) in the circumstances presented because that offer, unless and until it is rejected, has the potential to materially limit Lawyer’s ability to “zealously” represent Seller in the current transaction.  Thus, Lawyer’s representation of Seller in the current real estate transaction cannot be maintained unless Lawyer (a) reasonably believes that the prospect of future employment by Buyer will not adversely affect her current relationship with Seller; and (b) obtains the consent of the Seller after consultation. 

It is important to note that Subsections (a) and (b) of Rule 1.7 both require an evaluation of the possible conflict from both Lawyer’s own, subjective perspective and from the perspective of an objective, reasonable person.  Thus, even if Lawyer earnestly believes that she can represent both Seller and Buyer without adversely impacting her ethical and professional obligations to either (and her clients give their consent), she may not do so if a reasonable attorney, faced with the same conflict, would conclude that the actual or potential difficulties posed by the contemplated dual representation are too great to overcome.  See McCann v. Davis, Malm & D’Agostine, 423 Mass. 558, 559-560 (1996) (“[A]n attorney may properly undertake dual representation only ‘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.’” (quoting Canon 5, DR 5-105(C) of the former Massachusetts Code of Professional Responsibility, which the Supreme Judicial Court has described as setting forth “substantially the same principle” as current Rule 1.7 (Id. at 560 n.2)).  

Application of the requirements of Rule 1.7 to the unique factual circumstances described suggests that great caution on the part of Lawyer is warranted.  If Lawyer earnestly perceives no risk of an actual or potential conflict in her present engagement by Seller, and both sides consent after disclosure of all of the facts necessary “to permit the client to appreciate the significance of the matter in question” (see Rule 9.1(c)), then Lawyer may undertake the representation of Seller and the later representation of Buyer.[3]  In the Committee’s estimation, the facts necessary to permit both Seller and Buyer to appreciate the significance of Lawyer’s conflict would include, without limitation, the possibility of subsequent disputes regarding the condition of the property as sold, any information that Lawyer may possess concerning the current condition of the property, and Buyer’s plans to renovate and resell the property, provided however that in making such disclosures Lawyer does not reveal any confidential client information in violation of her obligation under Rule 1.6 to preserve client confidences.[4]

In all other circumstances, however, the Committee believes that Lawyer would be well-advised to decline the proposed representation of Buyer in light of the potential adverse effect that it could have on her continued ability to “zealously” represent Seller in the parties’ current transaction.  Again, when and how that decision is conveyed to Buyer are matters on which Lawyer should confer with Seller so as to avoid or minimize any potential harm to the Seller’s interests. 

Regardless of the course of action that Lawyer ultimately takes, she may not later represent Buyer in a dispute with the Seller concerning the property without the Seller’s express consent (see Rule 1.9(a)), nor may she disclose or utilize any confidential information received from Seller for the benefit of Buyer without Seller’s specific authorization (see Rule 1.6(a)).[5]

 

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[1]  Rule 1.4(a) states that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” 

[2]  This opinion does not address, and the Committee does not comment upon, Lawyer’s ethical obligations and available courses of action in the event that the Seller, after consultation, refuses to give his or her consent to Lawyer’s proposed representation of Buyer with respect to the future transaction.  The Committee notes, however, that Lawyer’s ability to withdraw from her representation of Seller in such circumstances in order to free herself to take on the representation of Buyer would turn, in part, on Rule 1.16(b), which provides that “a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect of the interests of the client….” (emphasis added).  

[3]  Rule 9.1(c) defines the terms “consult” and “consultation” for purposes of the Rules of Professional Conduct as the “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.” 

[4]  Rule 1.6(a) provides, in part, that “[a] lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation….”

[5]  Rule 1.9(a) states that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.” 

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