The Florida Bar

June 15, 1965

A seller's attorney who prepares all of the documents used in a real estate transaction should not present a statement to the buyer for a portion of the attorney's fee for these services when the buyer did not employ the attorney or agree to pay him a fee.

Canons: 6, 12

Chairman Smith stated the opinion of the committee:

A member of The Florida Bar poses the following inquiry for our response. A is selling real estate to B. A portion of the consideration is to be financed by a purchase money mortgage to be given to A by B. A insists that his attorney prepare all legal instruments involved. B has an attorney, however, and this attorney examines the title and represents B at the closing. A's attorney prepares the contract for sale, the deed, the promissory note, the mortgage and the closing statement. There is no dispute as to the type of contract, deed, note and mortgage to be used. Subsequent to the closing, B receives from A's attorney a statement for one-half of the costs of the preparation of the instruments prepared by A's attorney. Prior to that time, neither the parties nor the attorneys involved had discussed payment of fees and/or costs.

The position of this Committee is asked regarding the procedure outlined above. Presumably the inquiry is primarily as to the ethical propriety of A's attorney submitting the statement to B without prior contract or agreement.

A majority of the Committee has construed this inquiry as posing, primarily, a question of law and not of legal ethics. This Committee, of course, is not authorized to answer questions of law.

A seller of real estate may, if he wishes, insist that his attorney draw all papers involved in the transaction. The buyer, in turn, may execute or refuse to execute these papers. Who pays an attorney is a matter of contract. If the seller employs the attorney he is primarily liable for the fees. Unless the buyer in some way contracts to pay these fees, he is under no obligation to do so.

The Committee agrees that an attorney should not send a statement for costs and professional services to one who has not become legally obligated to pay that bill. However, since the person receiving the statement may simply refuse to pay it, it is our opinion that no substantial violation of the Canons of Ethics is involved.

[Revised: 08-24-2011]