May a lawyer prepare all the closing documents for a real estate transaction at a broker's request, charging the broker, with no contact with the buyer or seller?

Plain-English summary

A member asked whether an attorney could, at the request of a real estate broker or salesman, prepare all the instruments and documents attendant to a closing, such as the warranty deed, note, and mortgage, and charge the broker, with no contact whatsoever between the attorney and the buyer or seller. In most instances the broker would be reimbursed for the legal fees by the seller or buyer.

A majority of the committee found that such a procedure would not be ethical. It quoted Canon 35: "The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between the client and lawyer," and that a lawyer "should avoid all relations which direct the performance of his duties by or in the interest of such intermediary." The committee found the proposed arrangement appeared to offend the intent of Canon 35. Drawing on Drinker's Legal Ethics, it noted the risk that the broker might pass off the attorney's work as the realtor's own product and stressed the desirability of direct contact between attorney and client; it cited ABA Informal decisions to the same effect. The committee concluded that implicit throughout Canon 35 is that every client has an individual problem based on a particular factual situation, and a lawyer cannot fulfill the obligation to render sound legal advice where an intermediary directs the scope and extent of his services. It was therefore clearly unethical for a lawyer to prepare the closing instruments at the broker's request, charging the broker, with no contact with either buyer or seller.

Currency note

This opinion was issued in 1961, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 35 and 38 of the Canons of Professional Ethics; a lawyer's professional independence from a lay intermediary and the facilitation of the unauthorized practice of law are now addressed by Rules 4-5.4 and 4-5.5 of the Rules Regulating The Florida Bar (Model Rules 5.4 and 5.5). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer prepare closing documents for a broker if he never contacted the buyer or seller?

A: No, under the majority view. The committee concluded that preparing the closing instruments at the broker's request and charging the broker, with no client contact, offended Canon 35's prohibition on a lay intermediary directing a lawyer's services.

Q: What was the committee's concern with the broker as intermediary?

A: It identified the risk that the broker would pass off the attorney's work as the realtor's own and the loss of the direct, personal lawyer-client relationship that Canon 35 requires for sound legal advice tailored to each client's situation.

Background and rules framework

The opinion applied former Canons 35 and 38 of the Canons of Professional Ethics. A lawyer's professional independence from a lay intermediary is now addressed by Rule 4-5.4, and assisting the unauthorized practice of law by Rule 4-5.5, of the Rules Regulating The Florida Bar (Model Rules 5.4 and 5.5). The committee's analysis turned on the intermediary's control over the lawyer's services and the absence of any direct relationship with the client.

Citations and references

Rules of Professional Conduct:

• Canon 35 [Canons of Professional Ethics; see current Rule 4-5.4]
• Canon 38 [Canons of Professional Ethics]

Other opinions cited:

• ABA Informal Opinions 321, 328

Other authorities:

• Drinker, Legal Ethics, pp. 159-161, Appendix A, p. 300

See also

• FL Bar Ethics Op. 67-14: Broker Employing a Lawyer to Prepare a Deed
• FL Bar Ethics Op. 67-15: Trust Company Referral to Prepare a Trust
• FL Bar Ethics Op. 61-26: Foundation Staff Lawyer Drafting Wills for Constituents

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-61-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-61-1-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 61-1
June 15, 1961
Advisory ethics opinions are not binding.
A lawyer may not properly prepare all the necessary documents and instruments for a real estate closing at the request of a real estate broker, and receive a fee from such broker, having no contact with buyer or seller.
Canons: 35, 38
Opinions: ABA Informal 321, 328
Chairman Holcomb stated the opinion of the committee:
The Committee on Professional Ethics of The Florida Bar has considered the problem submitted.
A member of The Florida Bar states that local real estate people were informed by a County Bar Association that they were prohibited from preparing instruments other than the customary purchase and sale agreement on a printed form, and asks if it would be unethical for an attorney, at the request of a real estate broker or salesman, to prepare all the necessary instruments and documents attendant to the closing, such as warranty deed, note, mortgage and the like, and to charge the real estate broker without any contact whatsoever between the attorney and the buyer or seller. The member noted that in most instances the broker would be reimbursed for the legal fees by either the seller or buyer.
A majority of the Committee finds that such a procedure would not be ethical insofar as a lawyer belonging to The Florida Bar would be concerned. Canon 35 provides: "The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between the client and lawyer. The lawyer's responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer's relation to his client should be personal, and the responsibility should be directed to the client. Charitable societies rendering aid to the indigent are not deemed such intermediaries." The arrangements proposed by the letter appear to offend the intent of Canon 35.
In his treatise, Mr. Drinker, on page 161, deals with delegation of professional functions, stating that a lawyer "may not advise an accountant so as to enable him to pass on the advice to his clients as his own." (cf. Drinker, Appendix A, p. 300, No. 321.) Some of the local Committee feel there is a possibility that the real estate broker or salesman, under the circumstances raised by the inquiry, might pass on the work of the attorney as the product of the realtor. Another unreported ABA decision indicates that while a credit bureau may retain an attorney it is the lawyer's duty to get in direct touch with the creditor, and this opinion stresses the desirability for direct contact between the attorney and client. (See Drinker, Appendix A, p. 300, No. 328.)
Henry S. Drinker, in his book Legal Ethics, reviews the entire problem of direct relations with clients, commencing on page 159. He notes that "A lawyer may not properly draw a will on the instructions of a daughter and give it to her to have her mother sign, but should see the testatrix personally. The practice of drawing wills for trust companies to have their patrons sign is wholly improper. . . ." At page 160 appears the following: "He may not make an arrangement with a broker to prepare abstracts for him to be delivered to the broker's client, the broker to arrange for and collect the lawyer's fee, the lawyer not to see the client." Implicit throughout the discussion of Canon 35 is the thought that every client has an individual problem based upon a particular factual situation, and a lawyer cannot fulfill his obligation to render sound legal advice where he permits an intermediary to direct the scope and extent of his professional services.
Based on the foregoing it is our opinion that it would clearly be unethical for a lawyer to prepare the instruments and documents attendant to a real estate closing at the request of the real estate broker or salesman, charging the broker or salesman, and having no contact with either the buyer or seller in that transaction.