Ethics Opinion

Opinion 65-34

FLORIDA BAR ETHICS OPINION
OPINION 65-34
June 15, 1965
Advisory ethics opinions are not binding.
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.