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: 64 - Lawyers Acting as Deed of Trust Trustees
LEO NumTopicsSummaryDate
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
0815

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64-Lawyers Acting as Deed of Trust Trustees

71-Representing Corporations

A lawyer may act both as a loan officer and as counsel to a corporation as well as trustee under deeds of trust securing its loans. 9/19/1986
0455

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64-Lawyers Acting as Deed of Trust Trustees

A lawyer may not represent a bank in real estate litigation in which the parties include deed of trust trustees who are the lawyer's partners. 4/12/1982
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
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
0679

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

64-Lawyers Acting as Deed of Trust Trustees

As long as the client consents, and after receiving the advice to seek independent counsel, a lawyer representing the maker of a note may have his client execute an agreement by which the client "waives any objection" to the lawyer also acting as trustee and later proceeding against him under the terms of the deed of trust. [This LEO was vacated to the extent that it is inconsistent with LEO 824; see also LEO 815.] 4/5/1985
0800

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1-Adversity to Current Clients

2-Adversity to Former Clients

64-Lawyers Acting as Deed of Trust Trustees

If both clients consent, a lawyer acting as a substitute trustee may oversee a foreclosure (using an independent lawyer) although the trustee's partner has previously represented "from time to time" and on unrelated matters adverse parties who might try to delay the foreclosure. 5/27/1986
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
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

Copyright 2000, Thomas E. Spahn