Opinion 95-9
(July 1995)
You have inquired about whether an ethical problem arises under the Rules of Professional Conduct when you conduct a real estate settlement as the lender's attorney without the presence of a title company representative. Particularly, you are concerned about whether your performance of duties usually done by the title company, e.g., confirming identification and notarizing documents, creates an impermissible conflict of interest.
Because you represent only the lender, the applicable conflict rule is Rule 1.7(b). Under Rule 1.7(b), your actions are permitted only if:
(a) your client consents after a full explanation of the possible implications; and
(b) you reasonably believe that the representation of your client will not be adversely affected by actions on behalf of the title company.
If your client does not consent or if you feel that your client's interest would be adversely affected, you should refrain from doing anything for the title company.
Additionally, the situation you described may implicate Rule 4.3 which regulates dealings with unrepresented parties. To comply with Rule 4.3, you should inform all parties that you represent only the lender and that you cannot offer them any advice about the transaction. You should further inform them that your actions should not be construed as offering any advice. This full disclosure is important to ensure that no party misconstrues your actions on behalf of the title company, especially as you seem to believe that your client's interests may be in conflict with the interests of the title company or with the interests of the buyer and seller.
As long as you comply with the dictates of Rules 1.7(b) and 4.3, you can conduct the settlement as contemplated. 1
Notes1. Because you do not represent the title company, Rule 2.2 which deals with attorneys who act as intermediaries between clients is not applicable. However, you should be aware that some courts have held that representation exists in similar circumstances even when such representation did not appear to be contemplated by the parties.