[WSBARP] closing agent & party attorney - ethics?

Thu May 5 16:33:58 PDT 2016

Andrew, 

Thanks for sharing. Your form looks good and seems to be solidly thorough.
It may be my style, but I would try to word it in layman's terms as much as
possible and keep it as short as possible. Not sure how I would do that in
this regard though. 

As a practical matter, I did talk to a very experienced attorney and he said
yes you can with informed consent, but if there is anyway you can get out of
it, get out of it. Too much risk too little reward. I think I'll find a
closing agent. 

Regards,   

Matthew R. Johnson| Attorney at Law

Gravis Law, PLLC

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

Dayton, WA 99328

509-382-2030 (office)
 <https://www.gravislaw.com/> Website - LinkedIn
<https://www.linkedin.com/pub/matthew-r-johnson/2b/997/87a> 

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From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Andrew Hay
Sent: Monday, May 2, 2016 10:13 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
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 <http://www.washingtonlaw.net/> 

andrewhay at washingtonlaw.net <mailto:andrewhay at washingtonlaw.net> 

253.272.2400 (w)

253.377.3085 (c)

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From: wsbarp-bounces at lists.wsbarppt.com
<mailto: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 <mailto: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)
 <https://www.gravislaw.com/> Website - LinkedIn
<https://www.linkedin.com/pub/matthew-r-johnson/2b/997/87a> 

NOTICE:  This email (including any attachments) is covered by the Electronic
Communications Privacy Act (EPCA), 18 U.S.C., Sec. 2510 - 2522, is
confidential and privileged.  This email is solely for the personal and
confidential use of the recipient(s) named above.  Receipt by anyone other
than the individual recipient(s) is NOT a waiver of attorney-client
privilege.  Any violation of the ECPA is subject to the penalties stated
therein. If you have received this message in error, please notify me
immediately by reply e-mail to  <mailto:matt at gravislaw.com>
matt at gravislaw.com and immediately delete the original message.

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