The Florida Bar

September 23, 1968

A lawyer who asks a party not represented by counsel to sign a quitclaim deed needed to procure an insurable title in his client should state in understandable terms the precise reason for his request.

Canon: 9

Chairman MacDonald stated the opinion of the committee:

Confronting the Committee is a difficult problem relating to the scope of Canon 9 and the nature of the ethical proscriptions imposed upon attorneys by its provisions. A member of The Florida Bar inquires thusly:

My problem arises as follows: “A,” who is retired, and his wife purchased a property in Florida and declared the same as homestead. They have a daughter and a son who never lived in the property. The wife died six months later and the daughter died leaving no children. ‘A’ remarries in less than a year after the deaths of his wife and daughter. The sole surviving son, joined by his wife, executed and delivered a fee simple deed to “A” and his new wife conveying all interest in this homestead property. At approximately the same time “A,” joined by his new wife through a straw conveyance, received back the title to the property as an estate by the entireties. The son several years thereafter died leaving no heirs but did leave his surviving widow. All of these transactions were handled by an attorney who is now deceased. The second wife assumed that she had good title to the property, signed a contract for its sale at a highly inflated price of $90,000. At the time for issuance of title insurance, the title company stated that the wife has only a life estate and cannot make a conveyance without first obtaining a deed from the widow of the deceased son of “A.”

As you are probably aware, many cases hold that the fee simple deed from the son joined by his wife to “A” and his new wife is a nullity, and that all the surviving widow of “A” has is a life estate in this property. I have checked most of these cases and find this to be the law.

The ethical question involved is whether or not I can properly request from the surviving widow of the son a fee simple deed without disclosing to her the circumstances of the purchase. My client, of course, is the surviving second wife of “A.”

Canon 9, although entitled “Negotiations with Opposite Party” and containing provisions precluding direct negotiation or communication with a party represented by counsel, also deals with another and equally vital topic not necessarily suggested by its title, i.e., dealings of an attorney with a party not represented by counsel. In that respect the Canon admonishes lawyers as follows:

It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.

Although the Canon manifestly does not preclude communication or discussion with a party not represented by counsel, so long as it does not constitute the giving of advice as to applicable law, or the making of statements which might reasonably be regarded by the unrepresented party as the giving of legal advice, it is obvious that both the spirit and letter of this Canon require that an attorney exercise extreme caution in any dealings on behalf of a client with another not represented by counsel. In the present instance, it is our judgment that there would be no impropriety per se in the request that a party unrepresented by counsel execute a fee simple deed. However, in the judgment of a majority of the Committee, it is so completely unlikely that any person of reasonable intelligence would not make inquiry as to the reason for this request, that the lawyer in this circumstance should anticipate that such a request would be made. Indeed, it is not at all unlikely that failure of the other party to make any inquiry would indicate such an utter lack of appreciation of the circumstances as to create an affirmative duty on the part of the lawyer to advise the other party to seek disinterested advice. In any event, under the circumstances described, the lawyer in the course of making the request for the deed should anticipate the necessity for giving an appropriate explanation, and while expressly not undertaking to advise as to the applicable law, should state in understandable terms the precise reason for the request, i.e., that the title insurer asked to insure the title in connection with a proposed sale by the second wife has taken the position that she has only a life estate, and that in order for complete title to be vested in her in the judgment of the title company it is necessary that what the insurer regards as a remainder interest in the daughter-in-law of the deceased husband be conveyed to the wife.

It is recognized that the rendition of this advice may well cause the daughter-in-law to decline to grant the deed. However, in our judgment this would be a genuine service to the client wife, because it is not at all unlikely that in the event of later disclosure, a claim might be advanced based upon alleged fraud or similar misconduct, which would prove embarrassing not only to the lawyer, but to his client.

[Revised: 08-24-2011]