Ethics Hotline & Opinions

Ethics Docket No. 1995-13

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1995-13

Fees: May attorney representing buyers of real estate charge sellers represented by separate counsel a settlement or closing fee and a document preparation fee when buyers' attorney was not present to conduct closing?


In your letter, you advise that you recently represented sellers at a real estate settlement. The settlement took place in a lawyer's office; however, the settlement was conducted by a non-lawyer and the lawyer himself was not present. Although you do not state it in your letter, it is assumed that the lawyer in question was retained by the buyer of the property.

At the settlement, you were presented with a settlement sheet which contained two charges to the sellers, one in the amount of $75.00 for a ""settlement or closing fee: and another in the amount of $25.00 for a ""document preparation"". You were advised by the settlement officer that this referred to preparation of the deed of conveyance of the property. You advise that you permitted the settlement to go through but immediately wrote to the buyers' lawyer to request a refund of the $100.00 charged to your clients. You have asked the Committee whether an attorney can ""charge for legal services he did not render at a settlement which the did not attend.""

The Maryland Rules of Professional Conduct contemplate that lawyers may render legal services through the use of non-lawyer assistants in Rule 5.3, which requires a lawyer using non-

lawyer assistants to provide proper supervision and training to ensure that such persons' conduct ""is compatible with the professional obligations of the lawyer"". In your inquiry, you do not question the competence or conduct of the settlement officer. Thus, the mere fact that the lawyer did not attend the settlement himself would not be unethical. Further, the legal services of preparing a deed and conducting closing were presumably performed under the lawyer's direction and supervision, as a consequence of which he would be entitled to charge appropriate fees therefore. You have not questioned the amount of the fees which appear to be relatively modest.

Whether or not these charges should be made to the sellers in the subject transaction would be a question of interpretation of the contract of sale and/or other applicable legal principles - matters upon which the Committee on Ethics does not issue opinions.


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