Bar Counsel Notes: Conflict of Interest: Current Clients

May an Attorney conduct real estate transactions by representing both the buyer and seller, so long as they give informed consent, confirmed in writing?

While conflict of interest matters are usually very fact-specific, Bar Counsel's informal advice would generally be that an Attorney should not represent both the buyer and seller in such transactions, even with each client's "informed consent, confirmed in writing" as defined by M. R. Prof. Conduct 1.0(b)(e). Although M. R. Prof. Conduct 1.7 permits multiple representation with such proper consent, it would appear that Attorney would not normally be able to meet the "consent plus" requirement of 1.7(b)(1) - that Attorney must "reasonably believe that the attorney would be able to provide competent and diligent representation to each affected client" - due to the often adverse interests involved in the purchase and sale of land. See PEC Advisory Opinions #12 and #101.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.