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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 13
February 16, 1995
UNOFFICIAL
Anthony P. Barone, Esq.
43 New Dorp Plaza
Staten Island, New York 10306
RE: Letter of David Hirsch
Dear Mr. Barone:
In response to your request to review the form letter of one David A. Hirsch, Esq. sent to mortgage brokers, I believe there can be an ethical violation for the arrangement he proposes.
He states that he represents a mortgagee (Prudential Home Mortgage Company), yet in many cases he has “been able to informally assist borrowers on the various steps necessary to close the loan, and thereby save them the trouble and expense of hiring their own attorneys”. Since he gloats that there is no need to hire an lawyer due to his presence, I assume that the “informal assistance” he provides is, in reality, legal advice.
A lawyer shall decline proffered employment or discontinue same, if it is likely to involve the lawyer in representing differing interests. DR 5-l05(A)&(B). However, a lawyer may represent multiple clients if it is obvious that the lawyer can adequately represent the interest of each, and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer s professional judgment on behalf of each. DR 5—105(C).
The New York State Bar Association Committee on Professional
Ethics has issued an opinion (#438) that the lawyer for the
lending institution may represent both the mortgagee and the
mortgagor only if the requirements of DR 5—105(C) are
met. There must be express consent of all concerned after full
disclosure of the relevant facts.
However, a closer reading of the rule shows that the lawyer may represent multiple clients only if it is obvious that the lawyers can adequately represent the ihterest of each. This is the first consideration, but the opinion (#438) does not address how it is obvious that a lawyer can adequately represent both. The terms of the mortgage documents and the language used therein are important in establishing the parties rights and obligations. It is hard to imagine how it is “obvious” that one lawyer can represent different interests in such circumstances.
Assuming that the lawyer can represent both interests, it must nevertheless be done upon express consent after full disclosure. Nothing contained in the letter indicates that the “informal assistance” is given with the consent of the parties after full disclosure of the possible effect of such representation on the lawyer s professional judgment.
If a formal complaint is to be filed (and I believe there is a basis for one), it must be done in the department wherein the lawyer either resides or has an office. His letterhead indicates a Manhattan office, and I don t know if he resides in the Second Department. If not, the complaint must be filed with the First Department Grievance Committee, 41 Madison Avenue, New York, New York 10010.
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Very truly yours,
Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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