[WSBARP] closing agent & party attorney - ethics?

[Josh Grant]

My  practice is to represent one party only from the get go... and I make that clear every stage, in the P&S etc..  if both parties want me to act as closing agent my form states that the other party acknowledges that I represent one client only and that they have had an independent attorney review all documents before signing or that they confirm they had ample opportunity to have it reviewed, that there can be conflicts that arise between the parties etc etc.and I represent buyer or seller only...  and if we do a closing, we never get involved with any discussions or disagreements thereafter.

Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734


From: Andrew Hay 
Sent: Monday, May 02, 2016 10:12 PM
To: WSBA Real Property Listserv 
Subject: Re: [WSBARP] closing agent & party attorney - ethics?

There is a conflict, and it’s probably reasonable to think you can perform the duties for both clients.  Note – there can be no confidentiality and your advanced written consent forms have to make it clear that you cannot maintain confidences between the clients.  If one party discloses anything relative to the transaction to you, you have to share that with the other party.  Between clients working with the same lawyer there can be no secrets.  It is a dicey position – each of them will think you are their lawyer - but sometimes it can help facilitate a deal and help clients close a transaction at reasonable cost and reasonably fast if those are priorities.

My consent form is attached. Comments appreciated.  

 

Andrew Hay

Hay & Swann PLLC

201 S. 34th St.

Tacoma, WA 98418

www.washingtonlaw.net

andrewhay at washingtonlaw.net

253.272.2400 (w)

253.377.3085 (c)

THIS IS A CONFIDENTIAL COMMUNICATION AND IS INTENDED FOR THE DESIGNATED RECIPIENT ONLY.  IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY AND DESTROY ALL COPIES

 

 

 

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Matthew R. Johnson
Sent: Monday, May 2, 2016 5:49 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] closing agent & party attorney - ethics?

 

What is the general consensus of an attorney acting as both a party attorney during negotiations and then service as the closing agent to a real property transaction? 

 

Logically, I think it is well within reason to represent one parties interests until that point where there is a meeting of the minds and then fulfill the duty of impartiality to both sides in carrying out the closing. I have not been able to find clear guidance in any secondary sources that I have access to, but anecdotally I know a few attorneys who do or have done it.  

 

In my case law search for an answer it seems to be allowable in a commercial transaction so long as each party is independently represented. Hurlbert v. Gordon, 64 Wash. App. 386, 398 (Div. 1 1992); see Stiley v. Block, 130 Wash. 2d 486, 501-02 (1996). (also commercial transaction). 

 

Would that change in a non-commercial transaction, or where one of the parties is not represented? 

 

As a practical matter, to those that do it, is it just a matter of getting adequate written disclosures, consents, and encouraging the other side to obtain representation prior to closing?

 

Any thoughts or directions to good articels would be appreciated. 

 

Matthew R. Johnson| Attorney at Law

Gravis Law, PLLC

P.O. Box 182 | 350 E. Main St. 

Dayton, WA 99328

509-382-2030 (office)
Website - LinkedIn

 

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