Can a lawyer without a real estate license sell estate real estate as part of settling the estate?

Plain-English summary

The committee was asked whether a lawyer not licensed as a real estate broker or salesman under KRS Chapter 324 may sell real estate in connection with the settlement of an estate, and concluded that no ethics question is presented; the matter is one of law it is not authorized to answer.

In explaining, the committee discussed Kentucky Bar Association v. Burbank, 539 S.W.2d 312 (Ky. 1976), where the Supreme Court disciplined a lawyer for violating KRS 324.020, which makes it illegal to act as a real estate broker or salesman without a license from the Kentucky Real Estate Commission. The committee noted that KRS 324.030(3) makes KRS 324.020 inapplicable to any attorney performing his duty as an attorney, and that Burbank did not profess to be acting for a client in legal employment, so the statute applied to him. Whether the conduct in the question is proper, the committee said, depends on the applicability of the attorney exemption: a lawyer's duties vary from time to time and client to client, and in each case it is for the lawyer to resolve his duty within the law. If the lawyer has a duty to perform the function as a lawyer, any fee charged must be within DR 2-106. The committee reiterated that the question presented is one of law, not ethics, and that it is not authorized to answer questions of law.

Currency note

This opinion was issued in 1979 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did the committee say whether a lawyer can sell estate real estate without a broker license?

A: No. It declined, calling the question one of law it is not authorized to answer.

Q: What did the committee say about the real-estate-licensing statute?

A: It noted that KRS 324.020's licensing requirement does not apply to an attorney performing his duty as an attorney (KRS 324.030(3)), citing Burbank, where the lawyer was not acting for a client and so was not exempt.

Q: If the lawyer does the sale as part of legal duties, what governs the fee?

A: The committee said the fee must be within DR 2-106, the reasonable-fee rule.

Background and rules framework

The opinion declines to resolve a real-estate-licensing question of law, addressing only the fee aspect under DR 2-106 of the former Code. The modern analog is Model Rule 1.5 (reasonable fees); the licensing exemption itself is a statutory matter outside the rules of professional conduct.

Citations and references

Rules of Professional Conduct:

• DR 2-106 (reasonable fees); modern analog Model Rule 1.5

Statutes:

• KRS 324.020, KRS 324.030 (real estate broker licensing and the attorney exemption)

Cases:

• Kentucky Bar Association v. Burbank, 539 S.W.2d 312 (Ky. 1976), discipline for acting as an unlicensed real estate broker

See also

• KBA Ethics Op. E-217: Buying Estate Property; Property Fees
• KBA Ethics Op. E-202: Bar Minimum-Fee Schedules
• KBA Ethics Op. E-216: Interest, Advances, and Litigation Costs

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-204.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-204
Issued: January 1979

Question:

May a lawyer, unlicensed as a real estate broker or salesman under KRS Chapter 324, sell real estate in connection with the settlement of an estate?

Answer:

No ethics questions are presented.

References:

DR 2-106, KRS 324.020, 324.030; Kentucky Bar Assn v. Burbank, 539 S.W.2d 312 (Ky. 1976)

OPINION
In Kentucky Bar Assn v. Burbank, 539 S.W.2d 312 (Ky. 1976), the Supreme Court imposed professional discipline on Burbank for violating KRS 324.020. KRS 324.020 makes it illegal for anyone to “act as a real estate broker or real estate salesman” without first obtaining a license issued by the Kentucky Real Estate Commission. KRS 324.030(3) makes KRS 324.020 inapplicable to “[a]ny attorney at law who is performing his duty as an attorney at law.” Burbank did not profess to be acting for a client in the course of legal employment, therefore, KRS 324.020 applies. Whether the conduct described in the question is or is not proper depends on the applicability of KRS 324.020(3). A lawyer’s duties vary from time to time and client to client. In each case it is a question for the lawyer to resolve duty within the law. In the event the lawyer has the duty to perform this function, the fee charge for rendering this service must be within DR 2-106.
The question presented is one of law and not of ethics and we are not authorized to answer questions of law.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.