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Conflict of interest? The realtor representing the buyer on

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Conflict of interest?The realtor representing...
Conflict of interest?The realtor representing the buyer on my property is married to a lawyer who represents a contractor trying to sue me. Can the lawyer be disbarred for conflict of interest?
Submitted: 1 year ago.Category: Real Estate Law
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6/9/2016
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago
Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102,694
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Please tell me what state this is in? Thanks.

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

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Customer reply replied 1 year ago
Texas. But does that really matter? Honestly, ethics should not be determined by state lines.
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

Thank you.

Yes, it matters because attorneys follow ethical rules set down by their state bar/commission. Although most are modeled after model ABA rules, they all have their nuances. So for example, a Texas attorney would follow the Texas Disciplinary Rules of Professional Conduct. See HERE.

Unfortunately, this is not a conflict of interest. See 1.06 through 1.09 in the link. Conflict of interest would be if the attorney represented YOU at the same time (or at some time before).

However, they did/do not. They do represent a party that is attempting to sue you, but that does not in any way "conflict" with your interests. The attorney can be related/know another party that has another adverse action against you.

There may be a conflict for the realtor. I cannot say the same for the attorney.

Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

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Customer reply replied 1 year ago
1.7:220 Material Adverse Effect on RepresentationRule 1.7(b) generally prohibits a lawyer from representing a client if "the representation of the client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests" unless two conditions are satisfied. First, the lawyer must "reasonably believe the representation will not be adversely affected" by the other responsibilities or interests. Second, the lawyer must obtain the consent of the client after consultation.The comment to Rule 1.7 focuses upon the loyalty expected by a client of its lawyer. That loyalty is "impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities and interests." Rule 1.7, cmt. A lawyer is not disqualified from handling a matter, however, merely because a conflict is possible. The lawyer must consider the likelihood that an actual conflict will develop and whether any such conflict would "materially interfere" with the lawyer's professional judgment. If the lawyer is not able to conclude reasonably that the there will not be an adverse affect on the representation, the lawyer cannot undertake the representation, even with the client's consent.
Customer reply replied 1 year ago
what about the lawyer's own interests? The wife stands to make much more money on the commission than he would make advising his client with small claims. I also have proof that the lawyer is annoyed by his client & would rather his wife make the commission, so he is purposely ill advising his client as to not cloud the title.
Customer reply replied 1 year ago
I don't know, to me that sounds like a conflict of interest. But what do I know. Maybe logic doesn't apply here.
Customer reply replied 1 year ago
34;Texas Loyalty" ?
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

Hang on a second while I am typing out an answer to your reply - thanks in advance.

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Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

Allow me to explain in simpler terms.

In short, what the conflict rules say is that an attorney is prohibited from representing A, if he intimately knows/is related to/has fiduciary ties to B. Here, the attorney has no such links to B. What is happening is that they are representing A and A happens to have a spouse who is selling their property to you.

Is it an unusual situation? Yes.

However is it a conflict of interest? Arguably no, because the attorney has never represented you, does not represent you, and they have links only to the Plaintiff's side, not yours.

If you wish to attempt to recuse the attorney, you can - this would be via a recusal motion, not a "disbar" motion (disbar means for someone to lose their license).

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Customer reply replied 1 year ago
The wife is representing the buyer who is purchasing my property. She stands to make a commission off the sale.
Customer reply replied 1 year ago
The husband is advising the contractor who wishes to sue me. The lawyer has advised this person to simply wait & wait, so it would be too late for his client to cloud my title before the sale. This is all to my advantage. Am I very happy about this. Post-sale though it would be even better to confront the lawyer & force him to drop the client by accusing him of conflict of interest so his client is completely dumb founded.
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

You keep focusing on the spouses. A conflict of interest attaches only to the attorney, and only if the attorney is essentially involved with both sides of the legal parties.

They are not. They only are involved with Plaintiff's side. They do not nor or have they ever represented you. So there is no conflict of interest, even with these ties. You can of course bluff and threaten to file a motion to recuse against the attorney in a lawsuit, but in the end, this would be up to the court to decide if you go through with it.

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Customer reply replied 1 year ago
The goal is to disable the contractor by forcing the lawyer to drop him.
Customer reply replied 1 year ago
the fact that the lawyer is purposely ill advising his client in order for his wife to touch the commission does not affect his loyalty? I don't understand.
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

Todd,

There is no conflict of interest. The fact that Plaintiff's wife's agent may get a commission from you in a real estate deal does not assume a conflict of interest.

If the attorney is acting in your favor for some reason, then it is up to the Plaintiff to fire their attorney. Not you.

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Customer reply replied 1 year ago
Again:Rule 1.7(b) generally prohibits a lawyer from representing a client if "the representation of the client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests"the lawyer's own interests here would be his wife making money off a sale that if he helped his client block, she would not make the money
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago
Todd,
There is no conflict of interest. The fact that Plaintiff's wife's agent may get a commission from you in a real estate deal does not assume a conflict of interest.
If the attorney is acting in your favor for some reason, then it is up to the Plaintiff to fire their attorney. Not you.
First, you are are stretching Rule 1.7(b). Second, this is up to Plaintiff to decide, not you.
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Customer reply replied 1 year ago
Ok, then. What if the plaintiff conveniently finds out that his own lawyer is working against him, what would be the consequences for the lawyer?
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

The plaintiff can then fire the attorney and have them withdraw from the case, file a bar complaint (where the attorney would be admonished by the bar and possibly lose their license/have it suspended/undergo specific courses/etc), and, sue the attorney for malpractice.

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Customer reply replied 1 year ago
Now we're getting somewhere. And under what pretense?
Customer reply replied 1 year ago
Malpractice is pretty general.
Customer reply replied 1 year ago
Specifically what sort of malpractice?
Customer reply replied 1 year ago
Attorney-Client privilege?
Customer reply replied 1 year ago
what would be the most effective way to create a hornets nest and pit these two against each other?
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

To prevail on a legal malpractice claim, a plaintiff must show that (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, and (3) the breach proximately caused the plaintiff's actual damages. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004).

A duty involves being loyal to the client.

The best way would be to allege any improper activity while meeting with both the attorney and the Plaintiff, and then let them fight it out if there is anything to fight over.

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Customer reply replied 1 year ago
The lawyer's reputation is the main thing here, from what I gather, as he is a prominent figure in the community.
Customer reply replied 1 year ago
is the wife's reputation.
Customer reply replied 1 year ago
I think this answered my question. Ambush them at mediation. Thanks!
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

You are very welcome. Good luck, and please don't forget to RATE my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please use the REPLY or SEND button to keep on chatting – I want you to be satisfied.

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Customer reply replied 1 year ago
Oh one last thing before I rate positive for your answers: how would I go about collecting the information I need to properly ambush? Do I need recorded conversations? My lawyer already confided that the contractor's lawyer was purposely delaying everything, what can I legally say to these two that will catch them by surprise and make them bicker AFTER I close on my property?
Customer reply replied 1 year ago
Meaning, what's the strategy? I've already taunted the contractor by having my local lawyer deliver a message asking them to please send their lawsuit to my high powered attorney out of state, hoping he will look her up and basically bulk. Inviting a lawsuit obviously means that I enjoy litigation, because I always win. And my lawyer is scary as hell.
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

While Texas allows conversations to be recorded without other parties knowing provided at least one is party to the conversation, this is generally not allowed in cases of legal negotiation and/or would be severely frowned upon by the Court. So this is NOT recommended.

So again, it may simply be bringing that up to the Plaintiff's attorney and the client when all are together, and let it go from there. NEVER do anything without your counsel's consent and agreement, however (did not know you had counsel until now).

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

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Customer reply replied 1 year ago
Great. And my strategy to offer up my out-of-state lawyer's info to send their suit, essentially baiting them to sue, how would his attorney perceive this move? Most people are terrified are getting sued, but I actually enjoy it. I've never lost a case.
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

There is no way to know how his attorney would perceive this, I am afraid. Hard to say.

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Customer reply replied 1 year ago
Is this not a common strategy to communicate without saying that the counter suit will be fun & painful?
Customer reply replied 1 year ago
Especially if my attorney is known to be particularly vicious?
Customer reply replied 1 year ago
Are American lawyers that greedy that even when they can clearly see that the client is about to get eaten alive, they encourage to push forward? I guess that would be great, in my case!
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

At this point, we are getting into more philosophical questioning, which I am not prepared to discuss. This is all a matter of personality and philosophy at this point. And every attorney is different.

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Customer reply replied 1 year ago
I disagree, this is an ethical question. And I would like to add that this situation has been presented to two different attorneys that do not have anything to gain from this, and both agreed to a major conflict of interest regarding the husband & wife, affecting the lawyer's ability to maintain loyalty this his client.
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

Hello,

Then you are free to disagree. You can file a motion to recuse and see what the Judge says.

"Are American lawyers that greedy that even when they can clearly see that the client is about to get eaten alive, they encourage to push forward?"

I am not sure how you want me to answer that, since this paints thousands of individuals with one generalized brush.

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Customer reply replied 1 year ago
Very well, so the blanket statement can be narrowed down to this particular case in which a client was significantly handicapped by his own counsel for financial gain to would benefit the counsel. It will be interesting to see the reaction of this poor guy when this is finally all laid out and he realizes that his own lawyer minimized any chance he had to render my transaction difficult and recoup his money. Now it's to finalize the strategy that will have the most psychological damage on the plaintiff.
Customer reply replied 1 year ago
Perhaps I should mail the contractor a copy of the 48 laws of power. Just to pour more salt on the wound.
Customer reply replied 1 year ago
I'm looking forward to this "mediation" which is essentially just a staged setting to unleash on these two.
Customer reply replied 1 year ago
Thank you!
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

Todd,

Nothing is going to happen like you think it is going to happen. You cannot predict how the parties will react. I am going to state what I have stated in this thread several times and I cannot really add to the answer any more:

1) This is not likely a conflict of interest.

2) This is up to the Plaintiff to decide, not you.

3) If you wish to bring this up, you can.

4) Best way is when both of them are in the room.

5) Do not do anything without your attorney's guidance.

Good luck.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

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