These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 58 - Real Estate Lawyers
LEO NumTopicsSummaryDate
1151

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6-Lawyers Paid by Third Party

58-Real Estate Lawyers

A bank may insist that a specific law firm handle a real estate transaction as a condition for approval of a mortgage loan. 11/22/1988
0437

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40-Trust Accounts

58-Real Estate Lawyers

A builder's lawyer may undertake a dry closing only if the lawyer explains all the risks to the seller and obtains the seller's consent. 11/17/1981
1391

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58-Real Estate Lawyers

64-Lawyers Acting as Deed of Trust Trustees

A decedent placed a deed of trust on real property. The decedent's lawyer prepared the decedent's will and discussed estate matters with the beneficiaries. The lawyer later was hired to serve as a substitute trustee and foreclose on the deed of trust (with which the lawyer had no involvement). The lawyer could act as substitute trustee unless the advice to the beneficiaries related to the real property or the deed of trust (in which case the beneficiaries would have to consent).1/14/1991
1393

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

10-Former Government Lawyer Conflicts

58-Real Estate Lawyers

A home builder sued the buyer for failure to pay, and the buyer counterclaimed for construction defects. The buyer also complained to the local Board of Building Code Appeals, which was represented by the county attorney. The board found that the builder had complied with the code but its finding was overturned on appeal. The county attorney was later hired to represent the builder in the civil lawsuit with the home buyer. However, the county attorney was barred from the representation because the role was "substantially related" to the work the lawyer did as a public lawyer, and would also place the lawyer in the untenable position of having to challenge the findings of the Board that the lawyer had earlier defended. 3/21/1991
0966

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16-Lawyer's Personal Interests

34-Limiting Liability to Clients

39-Miscellaneous

58-Real Estate Lawyers

A law firm hired to advise on a real estate matter must disclose to the client that the law firm mistakenly failed to obtain an extension of time to file a tax return, even though the law firm was not hired to file the return. 9/30/1987
1797

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40-Trust Accounts

58-Real Estate Lawyers

A law firm may not write checks on a trust account during the period in which the bank put the entire trust account on hold, even though the bank's hold also blocked access to funds other than the checks that had just been deposited, and even though the lawyers had complied with the Wet Settlement Act. Despite what could be seen as the unreasonable nature of the bank's policy, the law firm may not write checks that it knows will bounce.6/30/2004
1494

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A law firm represented a noteholder. When the borrower declared bankruptcy and foreclosure proceedings began, the same law firm represented the trustee under the deed of trust note. The trustee is considering whether to sell the land piecemeal to obtain a better value, although the noteholder opposes such a partial sale. Because the trustee has a fiduciary duty toward both the noteholder and the borrow, the disagreement about the partial sale creates a conflict precluding the same firm from representing both the noteholder and the trustee. Because it is not obvious that the law firm may adequately represent both, disclosure and consent would not cure the conflict. [The Bar's conclusion that consent would not cure this conflict might be different under Rule 1.7(a)'s "reasonably believes" subjective standard rather than the old Code's "obvious" standard.]12/14/1992
1609

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1-Adversity to Current Clients

31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A law firm represents a property-owner wishing to sell the property and resist imposition of a lien on it. The firm receives a letter of intent to buy the property from an individual who is a judgment debtor of another firm client (and against whom the firm obtained the judgments and is attempting to collect them).Although the judgments against the individual are "available in the public record," the firm may not advise the property-owner of the judgments against the individual, and likewise may not advise its judgment-creditor client that the individual has offered to buy the property. Because the assets the individual might use to buy the property from one client might otherwise be used to satisfy the other client's judgments, the law firm had an irreconcilable conflict and would have to withdraw from both representations (without explanation, because the firm "may not reveal specifics to either client with regard to the nature of the conflict"). If the property-owner client sues the law firm, it may defend itself by revealing the conflict, but "only to the extent necessary to rebut any accusation . . . of the firm's wrongful conduct." 9/14/1994
1094

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1-Adversity to Current Clients

58-Real Estate Lawyers

A lawyer for a borrower may sign a stipulation that the loan agreements prepared by the bank are legal and enforceable, because this is a traditional way to handle a closing and does not create a conflict of interests. 10/26/1988
1401

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25-Dealing with Unrepresented People

58-Real Estate Lawyers

A lawyer for a buyer in a real estate transaction asked that the seller execute a power of attorney authorizing the lawyer to sign necessary documents. Such a request would be improper if the seller was represented, and would be proper if the seller was unrepresented only if there was full disclosure of the lawyer's adversarial role and the seller's right to hire separate counsel. 3/12/1991
1840

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A lawyer for a purchaser would knowingly assist a client in committing fraud by helping a relocation company prepare misleading property conveyance documents (which fail to show in the chain of title the relocation company's purchase of the property from its client company's employee and its later sale to a third party -- which has the effect of avoiding the payment of recording fees and taxes). Although the purchaser's lawyer involved in this activity cannot reveal her client's past wrongdoing (except as permitted under Rule 1.6), "the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed." The purchaser's lawyer cannot continue with the closing, because it involves fraudulent conduct by the relocation company and its lawyer. The purchaser's lawyer must report the relocation company's lawyer's conduct (absent some mitigating circumstances), because it clearly involves an ethics violation and raises a "substantial question" as to the relocation company's lawyer's "fitness to practice law in other respects."9/25/2007
0457

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

58-Real Estate Lawyers

A lawyer had represented both the buyer and seller in a real estate transaction. The lawyer should not have later represented one against the other in a dispute over the deed because it was "reasonably likely" that the lawyer might be a witness (having prepared the deed) and because the lawyer had previously represented the defendant in the same transaction. 4/16/1982
1277

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58-Real Estate Lawyers

82-Advertising

A lawyer handling a foreclosure may advertise that the purchaser must pay legal fees for certain specified services. 9/21/1989
1588

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3-Multiple Representations on the Same Matter

8-Bills and Fees

39-Miscellaneous

58-Real Estate Lawyers

A lawyer involved in arranging a real estate transaction has not violated the Code, because the lawyer did not attempt to represent both the buyer and the seller, and fully disclosed that the lawyer might receive a percentage of the purchase price as a fee. Canon 9 did not apply, because the "appearance of impropriety" language "applies only in the limited context of . . . former judges, former government attorneys, and attorneys' improper influence upon a tribunal, legislative body, or public official." 6/14/1994
1153

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A lawyer may act as counsel for both the borrower and as trustee if the borrower consents after full disclosure. As settlement attorney, the lawyer may have an attorney-client relationship with the borrower, lender and seller. This is permissible if all clients consent after full disclosure. 1/4/1989
1152

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may arrange for title insurance for a client through a company of which the lawyer is part owner, as long as the client consents. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]11/16/1988
1055

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2-Adversity to Former Clients

48-Criminal Defense Lawyers

58-Real Estate Lawyers

A lawyer may continue to represent criminal clients (but must act cautiously) if the lawyer's secretary was a part-time magistrate in the same jurisdiction.3/16/1988
1097

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may issue title binders on behalf of a client as long as the client consents after full disclosure. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]7/11/1988
0753

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40-Trust Accounts

58-Real Estate Lawyers

A lawyer may make disbursements from a trust account in accordance with the Wet Settlement Act. 2/13/1986
0281

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40-Trust Accounts

58-Real Estate Lawyers

A lawyer may not advance commissions to real estate brokers either out of a trust account or the lawyer's own funds. 3/25/1976
1116

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40-Trust Accounts

58-Real Estate Lawyers

A lawyer may not disburse a real estate builder's proceeds and a construction loan payoff before recording of the lender's deed of trust. 7/6/1988
1255

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40-Trust Accounts

58-Real Estate Lawyers

A lawyer may not disburse funds from a trust account until they are irrevocably credited to the account. A law firm may agree to waive the right to certified funds in all closings occurring between the lender and the law firm's clients as long as all the transactions comply with the Wet Settlement Act (Va. Code § 6.1-2.10). 7/25/1989
0678

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31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A lawyer may not foreclose on a deed of trust and sue for the deficiency in the transaction in which the lawyer was involved if doing so would reveal confidences or secrets of the client. 4/2/1985
1072

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may obtain title insurance for clients through a company in which the lawyer has an interest as long as the client consents after full disclosure. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]5/31/1988
1138

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50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may own stock in a title company and receive consulting fees that are tied to the number of policies the lawyer arranges for. [This LEO was overruled in LEO 1402.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]8/18/1988
1521

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4-Witness-Advocate Rule

16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may represent a developer in litigation in which an employee of a title company (of which the lawyer is part-owner) may have to testify, because the witness-advocate rule applies only when a lawyer must testify. 5/11/1993
1535

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer may represent a home builder in an action brought by a home buyer even though the buyer had paid a settlement or closing fee to the title corporation of which the lawyer was president. [The Bar indicated that the lawyer did not have an attorney-client relationship with the home buyer, although both the Opinion itself and the summary indicate that the lawyer "represented" the home buyer.] 6/2/1993
0539

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42-Payments to Solicit Recommendations

58-Real Estate Lawyers

A lawyer may represent a party in a real estate settlement upon recommendation of a real estate firm, as long as the client consents to the arrangement and is free to hire any lawyer. [The lawyer would be prohibited from giving the real estate firm anything of value in return for this recommendation.] 1/18/1984
1000

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A lawyer may represent both the buyer and seller in a real estate transaction as long as both consent. The lawyer may not represent either party should a dispute later arise between them. 11/12/1987
1398

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3-Multiple Representations on the Same Matter

7-Family Conflicts

58-Real Estate Lawyers

A lawyer may represent both the buyer and seller in a real estate transaction if both consent. If the lawyer is related to the real estate agent and will be representing the buyer only, the buyer must consent (because of the relationship between the lawyer and the agent). 2/15/1991
1149

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A lawyer may represent the buyer and seller in a real estate transaction as long as both consent and are advised of their right to retain independent counsel. [The lawyer would not be able to represent either the buyer or the seller if adversity developed between them.] 12/19/1988
1216

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A lawyer may represent the buyer and seller in a real estate transaction as long there is consent after full disclosure. Designating a place of settlement or the tendering of a deed on behalf of a party does not necessarily create an attorney-client relationship. [The lawyer almost surely could not represent either the buyer or the seller if adversity developed between them.]5/8/1989
0336

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25-Dealing with Unrepresented People

32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

58-Real Estate Lawyers

A lawyer named as trustee for the benefit of a non-represented seller must resign if the seller later requests the lawyer to do so. 9/20/1979
0553

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

66-Lawyers Acting as "Scriveners"

A lawyer prepared real estate documents for both the buyer and seller, but merely memorialized what the parties had independently negotiated and agreed. The lawyer may now represent the buyer in an action brought by the seller. [This LEO may be incorrect -- normally a lawyer in this situation could not represent either client if a dispute arises between them.][Superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the attorney client relationship would arise between prisoners and lawyers practicing at a state prison if the lawyers did anything more than simply typing up what the prisoner wrote].6/21/1983
1509

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16-Lawyer's Personal Interests

58-Real Estate Lawyers

A lawyer relying on a title insurance agency to search title must fully disclose (before closing) any fees paid to the agency. 2/3/1993
1032

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

58-Real Estate Lawyers

73-Family Law Lawyers

A lawyer represented a couple in the purchase and refinance of their home. The lawyer may now represent the husband in a divorce action because the lawyer has only public knowledge about the home transaction. Although the wife claims that the lawyer will be a witness to the transaction, the lawyer may continue to represent the husband unless it is obvious that the lawyer will be called as a witness and the lawyer's testimony is or may be prejudicial to the husband. 2/2/1988
0332

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A lawyer representing a contractor and performing real estate closings should withdraw if any conflicts arise. 11/26/1979
1436

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3-Multiple Representations on the Same Matter

16-Lawyer's Personal Interests

25-Dealing with Unrepresented People

58-Real Estate Lawyers

63-Lawyers Acting as Corporate Officers or Directors

A lawyer representing a lender who sends documents to the borrower for signature should advise the borrower that the lawyer is representing the lender. Because the lawyer should not give any legal advice to non-clients, the lawyer is not required to advise the borrower of the opportunity to purchase title insurance. If the lawyer is to represent the borrower and lender, the lawyer must advise the borrower (and obtain the borrower's consent) if the lawyer serves on the lender's board of directors. If the lawyer represents both the borrower and lender, the lawyer should advise the borrower about the availability of title insurance. 11/1/1991
0372

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3-Multiple Representations on the Same Matter

32-Lawyers Acting in Other Roles (Miscellaneous)

58-Real Estate Lawyers

A lawyer representing a purchaser in a real estate transaction may act as joint escrow agent if the purchaser and seller consent. 5/15/1980
1022

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

64-Lawyers Acting as Deed of Trust Trustees

A lawyer representing both a real estate buyer and seller may not later represent one against the other without consent. A lawyer representing a borrower may serve as a trustee under a deed of trust without obtaining the borrower's consent if the lawyer "has in no way advised or counseled" the borrower about the deed of trust or note and did not continue a relationship with the borrower after closing. In such circumstances, the lawyer may also foreclose without obtaining the borrower's consent. (Adopted 3/8/88; effective 5/24/88)5/24/1988
0414

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A lawyer representing both the buyer and seller in a real estate transaction may not represent either one in a later dispute. 5/20/1981
0528

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A lawyer representing both the buyer and seller in a real estate transaction may not represent one against the other in a later dispute, or foreclose on the deed of trust (unless the clients consent). [This Opinion was vacated by LEO 824.]9/13/1983
1435

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3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

30-Disclosing Confidences Under Court Order

58-Real Estate Lawyers

A lawyer representing both the buyer and seller in a real estate transaction must advise both clients that "he will not be able to represent either party against the other if a dispute should arise." The lawyer may testify on behalf of one of the parties if the other former client consents or the court orders it. 11/18/1991
0814

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16-Lawyer's Personal Interests

58-Real Estate Lawyers

A lawyer represents the lawyer's aunt in a dispute regarding real estate. The lawyer is interested in purchasing the real estate personally, and therefore must either terminate the representation of the aunt or make full disclosure and obtain her consent. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]7/25/1986
1427

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

58-Real Estate Lawyers

A lawyer represents two clients in a real estate matter. One of the clients is indicted on criminal charges, and wants to retain the lawyer on that matter. The other client is an alleged co-conspirator. The lawyer may not represent the criminal defendant if the criminal matter is related to the real estate matter.9/16/1991
1206

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

76-Trust and Estate Lawyers

A lawyer serving as the executor of an estate and representing three children in an action filed by a fourth may represent all of the children in an unrelated real estate transaction if all consent. 4/3/1989
1720

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2-Adversity to Former Clients

58-Real Estate Lawyers

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer who acted as co-administrator of an estate did not represent the estate or the beneficiaries, but rather "was his own client for practical purposes." After withdrawing as administrator, the lawyer could not represent a beneficiary's executrix in litigation involving estate assets (unless the successor administrator consented) because the representation would be adverse to the estate and was "substantially related" to the lawyer's previous representation of himself or herself as administrator ("substantial relatedness between the matters in a former representation and a current representation is a fact-specific inquiry from case to case . . . in previous opinions, substantial relatedness depended upon whether the same parties, the same subject matter, or the same issues were present. The committee referred to cases to find substantial relatedness in terms of the matters or the issues being essentially the same, arising from substantially the same facts, being by-products of the same transaction, or entailing a virtual congruence of issues of patently clear relationship in subject matter.").On the other hand, the lawyer could represent the beneficiary's executrix in litigation over real estate which was never part of the probate estate and therefore not within the scope of the lawyer's role as administrator. There may also be fiduciary duties or statutes that would apply. 12/2/1998
0267

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A lawyer who filed a specific performance suit against the seller on behalf of the realtor and prospective buyer may continue to represent the realtor after the buyer and seller settle their dispute (as long as the former buyer-client consents). 8/13/1975
1616

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2-Adversity to Former Clients

4-Witness-Advocate Rule

58-Real Estate Lawyers

A lawyer who formerly represented a party in performing a title examination may not now represent someone else in a boundary line dispute with the former client. Although the issue is now moot, the Bar confirms that "an attorney may continue representation of a party, even if called to testify by the opponent, until it is apparent that his testimony is or may be prejudicial to his client." 11/29/1994
0627

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32-Lawyers Acting in Other Roles (Miscellaneous)

58-Real Estate Lawyers

A lawyer who is a full time real estate broker may represent the broker but may not represent other parties to the transaction. 11/13/1984
0302

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16-Lawyer's Personal Interests

58-Real Estate Lawyers

A lawyer who is also a partner in a real estate firm may represent a real estate seller and/or purchaser after full disclosure and consent. 9/23/1978
1469

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40-Trust Accounts

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer who is operating a title company to conduct residential settlements: is subject to the UPL rules if the title company prepares legal documents such as notes and deeds; must comply with the trust account rules if an attorney-client relationship exists by reason of preparation of such documents (including the prohibition on the lawyer or law firm earning interest on client funds held in trust); must obtain clients' consent before retaining any interest earned by client money held by the title company. 6/22/1992
0886

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer who owns an interest in a title insurance company may purchase insurance from the company for the lawyer's clients as long as they consent. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]4/1/1987
1518

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21-Reporting Another Lawyer's Unethical Conduct

58-Real Estate Lawyers

A lawyer who prepared documents necessary to transfer property in violation of an assignment has committed a fraud. Another lawyer learning of the fraud would have a duty to report it if the ethical violation raises a substantial question as to the lawyer's fitness to practice law in other respects. Relevant factors for this determination include: "the recency of the conduct, the seriousness of the offense, the likelihood that the conduct will be repeated, the likelihood that it will affect the attorney's competence, and any mitigating or aggravating circumstances." [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]5/11/1993
0744

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

5-Lawyers Changing Jobs

45-Law Firms - Miscellaneous

58-Real Estate Lawyers

64-Lawyers Acting as Deed of Trust Trustees

A lawyer who represented both the buyer and seller in a real estate transaction may not initiate foreclosure proceedings as trustee. A lawyer with whom the lawyer later merged must likewise withdraw from representing the buyer or seller in their dispute. 4/17/1986
0656

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

A lawyer who represented both the buyer and seller in a real estate transaction may not later represent one in an action against the other, unless both consent. 1/21/1985
1681

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A lawyer who represents a lender in closing residential loans (often at the recommendation of the builder) may not represent a borrower in litigation against the builder, because: (1) the lawyer is administering settlement funds on behalf of other borrowers that the client could use to satisfy the client's claim against the builder; and (2) the lawyer is privy to confidential information about funds owed to or to be disbursed to the builder. Once the lawyer stops representing the borrower in the action against the builder, the lawyer may continue to handle other closings on behalf of other borrowers. 5/16/1996
1351

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

58-Real Estate Lawyers

A lawyer who represents both the buyer and seller in a real estate transaction and who fails to find several judgments against the seller may not, without the seller's consent, purchase the judgments at a discount and then enforce them against the seller, because the lawyer may not be adverse to a former client in a debt collection (other than for legal fees) without the former client's consent. 5/24/1990
0415

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40-Trust Accounts

58-Real Estate Lawyers

A lawyer whose real estate escrow account check was never cashed may withdraw funds from the trust account and place them in a separate interest-bearing account pending resolution of the lost check. 5/20/1981
1564

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

40-Trust Accounts

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

A lawyer's ownership interest in a title insurance agency is not per se improper, but the lawyer must: follow all conflicts rules; completely separate the lawyer's law practice from any title insurance agency; and avoid any revelation of client confidences. The lawyer may not: be compensated by the title insurance agency based on the referrals of clients to the agency; receive a fixed salary unless it is related to the work performed for the agency; receive any interest earned on funds deposited in the agency's trust account; or arrange for the agency to pay for any law firm salaries, services or advertisements.It is per se improper for the lawyer to represent a party in a transaction if the lawyer "directly or indirectly performs the function of a Title Insurance Agent" for the transaction, or holds a license as a Title Insurance Agent. A lawyer may arrange for title insurance through the agency to one of the lawyer's clients only: with consent after full disclosure; and if the transaction is not "unconscionable, unfair or inequitable when made." The Bar indicates that "all doubts regarding the sufficiency of the disclosure must be resolved in favor of the client, and against the attorney." The disclosure should be in writing and accepted by the client in writing, and should include an explanation of the cost and the availability of alternatives. (Revised 2/15/95) [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]2/15/1995
0383

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40-Trust Accounts

58-Real Estate Lawyers

A real estate buyer's lawyer may deliver the proceeds of a settlement to the seller before the deed is recorded, as long as the lawyer has taken appropriate steps to protect the client and the client consents. 7/29/1980
0425

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8-Bills and Fees

58-Real Estate Lawyers

A real estate buyer's lawyer may not impose a fee upon the seller unless the seller and the seller's lawyer consent. 8/14/1981
0663

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40-Trust Accounts

58-Real Estate Lawyers

A real estate closing lawyer may not disburse trust funds before the vesting of title and perfection of liens. 2/27/1985
1073

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13-Marketing - Miscellaneous

42-Payments to Solicit Recommendations

58-Real Estate Lawyers

A real estate developer may advise buyers that it will deduct $500 from closing costs if the buyer uses a designated lawyer, because the offer is not false or misleading. [This arrangement would violate Rule 7.3(a) if the lawyer gives "anything of value" to the developer. Although the Bar did not address this possibility, it seems unlikely that the developer would enter into this arrangement unless it received something in return from the lawyer.] 6/8/1988
1417

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16-Lawyer's Personal Interests

40-Trust Accounts

58-Real Estate Lawyers

A real estate lawyer has no duty to place trust money in a bank that will insure the entire amount, but may deposit money in a bank for which the lawyer acts as a director, shareholder and counsel if the client consents after full disclosure. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]5/14/1991
1220

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8-Bills and Fees

58-Real Estate Lawyers

A real estate lawyer may not include an amount on the closing statement for a title insurance premium fee if part of the amount is for legal fees, unless there is full disclosure. 4/3/1989
0196

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58-Real Estate Lawyers

A real estate lender's lawyer may designate a lender employee as trustee on the real estate deed of trust. 9/27/1968
1177

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6-Lawyers Paid by Third Party

13-Marketing - Miscellaneous

58-Real Estate Lawyers

A real estate purchaser's lawyer may arrange in advance for the seller to pay part of the lawyer's fee, but may not impose such a fee without the seller's prior consent. The lawyer must be careful not to use the communication to steer clients to the lawyer's firm. 12/9/1988
0238

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25-Dealing with Unrepresented People

58-Real Estate Lawyers

A real estate seller's lawyer may prepare a deed and deed of trust as long as the lawyer explains the lawyer's role to the buyer. 1/3/1974
1405

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

53-Office Sharing with Non-Lawyers

58-Real Estate Lawyers

82-Advertising

A title insurance company owned by a lawyer and sharing office space with the lawyer's firm may not pay for the firm's salaries or advertisements. [This LEO was further explained in LEO 1564.] 9/17/1991
1089

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

Absent consent, a lawyer who represented a buyer and seller in a closing may not represent one against the other in a dispute about the closing. 6/8/1988
1148

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58-Real Estate Lawyers

Absent some previous agreement, a real estate purchaser may not charge the seller a fee for legal services. 10/18/1988
1197

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9-Government Lawyer Conflicts

51-Government Attorneys

58-Real Estate Lawyers

An Assistant Commonwealth's Attorney may represent clients in zoning, special use permit or variance matters, because the lawyer would not have had "substantial responsibility" over those matters while a public employee. 1/4/1989
1742

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32-Lawyers Acting in Other Roles (Miscellaneous)

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

As indicated in earlier Opinions, a lawyer representing a real estate purchaser cannot impose fees on the seller absent an agreement or some forewarning. A lawyer designated in a real estate contract as settlement agent may not comply with a title company’s instructions that would involve the title company preparing documents and undertaking other activities that would constitute the unauthorized practice of law (a lawyer who owns a title company may perform legal work for a client, but may not undertake the same activities if working on behalf of the title company -- because “only an attorney engaged in private practice specifically retained by the seller may undertake legal representation of the seller).” [Approved by the Supreme Court of Virginia 11/2/16].6/26/2000
0464

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3-Multiple Representations on the Same Matter

40-Trust Accounts

58-Real Estate Lawyers

As long as all clients consent, a lawyer may conduct a "dry closing." 9/20/1982
1647

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

As long as it does not violate some federal or state law, lawyers may own a title insurance agency with share ownership percentages based upon past premiums paid by each lawyer's client. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]12/15/1995
0939

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

As long as the client consents after full disclosure, a lawyer may purchase title insurance from a company in which the lawyer has an interest. [This LEO was further explained in LEO 1564.] [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]6/11/1987
0783

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16-Lawyer's Personal Interests

58-Real Estate Lawyers

As long as the client consents, a real estate lawyer may buy property for which the lawyer was to be the closing attorney (the transaction fell apart when the buyer defaulted). [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.]4/22/1986
0662

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2-Adversity to Former Clients

58-Real Estate Lawyers

As long as the former client consents, a law firm may represent a party against the former client in a title dispute, when the lawyer's firm performed a title examination twenty years earlier. 2/1/1985
0922

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58-Real Estate Lawyers

As long as the seller consents after being advised at a time when the seller can avoid the charge, a real estate buyer's lawyer may charge the seller for releasing a deed of trust. [The Bar reached the same conclusion about completing an IRS form, although this practice was overruled by a law.] 6/11/1987
0927

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58-Real Estate Lawyers

As long as the seller consents, a real estate buyer's lawyer may charge the seller a fee for completing a tax form. [This was overruled by a 1988 law.]6/11/1987
0911

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58-Real Estate Lawyers

As long as the seller consents, a real estate buyer's lawyer may charge the seller a fee for completing a tax form. [This was overruled by an Internal Revenue Code amendment.]6/11/1987
1228

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58-Real Estate Lawyers

As long as the seller is advised in advance (so the seller can avoid the charges), a real estate settlement lawyer representing the buyer may perform services on the seller's behalf and impose a fee for them. 5/17/1989
0690

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

Even with full disclosure, a lawyer may not execute title binders issued by an agency in which the lawyer is an officer, director or stockholder. [This LEO was further explained in LEO 1564.]5/10/1985
0209

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58-Real Estate Lawyers

If the client consents after full disclosure, a real estate seller's lawyer may receive a portion of the client's real estate agent's commission. 2/3/1971
0747

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6-Lawyers Paid by Third Party

25-Dealing with Unrepresented People

58-Real Estate Lawyers

In a real estate transaction, the seller's lawyer must advise the buyer that the lawyer represents only seller, even if the seller pays the buyer's closing costs. 12/4/1985
1705

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8-Bills and Fees

16-Lawyer's Personal Interests

58-Real Estate Lawyers

Lawyers and clients may amend fee agreements as long as they do not involve "undue influence or coercion by the lawyer." A lawyer may enforce an amended fee agreement prepared after the client in extensive litigation over a cloud on a real estate title indicated that the client could not continue to finance the litigation as originally agreed and instead offered to pay an additional $25,000 upon successful completion of the litigation "in consideration of payment not being made as originally agreed." The change from an hourly-based contract to a contingent fee agreement was not improper because: the outcome was uncertain; the client could not continue to finance the litigation otherwise; and success would produce a "res" out of which to pay the fee. The extra $25,000 to be paid upon successful completion of the litigation was based on the lawyer's agreement to delay collection of the outstanding fees until the case ended. 11/21/1997
0982

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

58-Real Estate Lawyers

Lawyers may not assert that they are real estate noteholders when they do not physically possess the notes (even if they are certain that the notes have been paid), since it would be a misrepresentation. 10/14/1987
1565

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58-Real Estate Lawyers

Questions about a real estate lawyer's ability to forward documents to lending institutions before the expiration of the three-day recision period raises a legal question beyond the Bar's jurisdiction. 12/14/1993
0183

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40-Trust Accounts

58-Real Estate Lawyers

Rules governing disbursement of funds by a lawyer handling real estate closings.10/31/1980
1120

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6-Lawyers Paid by Third Party

58-Real Estate Lawyers

The Bar declines to determine whether a bank may properly select a lawyer for the borrower. 9/9/1988
1373

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40-Trust Accounts

58-Real Estate Lawyers

The Bar declines to resolve a legal dispute about a need to put real estate commissions in a trust account pending resolution of a dispute about the commission. 7/31/1990
1402

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

58-Real Estate Lawyers

The Bar rescinded LEO 1138, which permitted a lawyer who owned stock in a title insurance company to receive consulting fees varying with the number of policies the lawyer's clients obtained through the company. [This LEO was further explained in LEO 1564.]10/21/1991
1301

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4-Witness-Advocate Rule

58-Real Estate Lawyers

64-Lawyers Acting as Deed of Trust Trustees

The Code of Professional Responsibility applies whenever a lawyer is acting in a fiduciary relationship, even if there is no attorney-client relationship (such as a lawyer acting as trustee under a Deed of Trust). A lawyer acting as trustee and acting pro se may testify. 1/4/1990
1644

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39-Miscellaneous

40-Trust Accounts

58-Real Estate Lawyers

The LEO provides guidance to a real estate lawyer whose checks are not cashed: (1) the lawyer should follow the Uniform Disposition of Unclaimed Property Act (Va. Code § 55-210.1 et seq.); (2) a lawyer must "use whatever means are reasonable" to find people entitled to receive trust funds (this would "in almost all instances" include first class mail and -- "if the amount of money involved justified the cost" -- include checking with telephone information or postal records); (3) a lawyer may deduct from the funds held in trust reasonable costs incurred in attempting to locate the party, but may not deduct an attorney's fee; (4) the lawyer may not agree with the client in advance that the lawyer may keep unclaimed funds. 6/9/1995
0424

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3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

The same lawyer may represent both the seller's real estate agent and the purchaser in an action for breach of contract against the seller, but must be ready to withdraw if the ability to adequately represent both clients becomes impaired. 8/14/1981
0900

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40-Trust Accounts

58-Real Estate Lawyers

This LEO provides guidance under the Wet Settlement Act. 3/17/1987
0824

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2-Adversity to Former Clients

58-Real Estate Lawyers

64-Lawyers Acting as Deed of Trust Trustees

66-Lawyers Acting as "Scriveners"

Under certain circumstances, a lawyer may represent a borrower and also serve as trustee without obtaining the borrower's consent (as long as the lawyer has acted as a "scrivener" in the deal, has not given any advice to the borrower, and does not continue to represent the borrower after the closing). If the lawyer (or anyone in the firm) has had any legal role in preparing the terms of any of the documents, the lawyer may act as trustee only with consent [This LEO vacated inconsistent portions of LEO 359; LEO 524; LEO 659; LEO 679.][Superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the attorney client relationship would arise between prisoners and lawyers practicing at a state prison if the lawyers did anything more than simply typing up what the prisoner wrote].10/9/1986
1204

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58-Real Estate Lawyers

Unless the purchaser consents in advance, a real estate settlement lawyer may not impose fees on the purchaser. 3/11/1989
0647

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58-Real Estate Lawyers

Unless the seller and the seller's lawyer agree, a real estate closing lawyer hired by the purchaser may not impose a fee upon the seller in a real estate transaction. 1/14/1985
1346

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58-Real Estate Lawyers

Unless the seller consents in advance, a real estate buyer's lawyer may not impose any charges on the seller, and may not delay closing the transaction until payment is made. 5/4/1990
0878

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58-Real Estate Lawyers

Unless the seller consents, a real estate buyer's lawyer may not impose a charge upon the seller for releasing deeds. 3/11/1987

Copyright 2000, Thomas E. Spahn