Legal Question in Real Estate Law in New York
Conflict of interest?
During closing on a real estate purchase myself and the seller shared an attorney. (Land contract.) We are now in foreclosure and counter suit litigations and the prior owner is using the same attorney as we both used at closing. Is this permitted or should the attorney have to excuse himself being he was also our attorney at closing?
1 Answer from Attorneys
Re: Conflict of interest?
There are two rules that must be used in this instance. First, an attorney can represent two individuals that may have a conflict of interest if (1) a disinterested lawyer would believe that the lawyer can competently represent the interest of each and (2) if each client consents to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved. DR 5-105(c).
Second, a lawyer cannot accept employment if it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client. DR 5-102.
Upon review of the rules, if it is obvious that your prior attorney failed to make the necessary disclosure under DR 5-105(c) or that he is a witness on a significant issue under DR 5-102, then he should disqualify himself.
If you need to make a motion to disqualify the attorney, you must may it timely otherwise you risk waiving your right to the objection.
Mike.
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