COMMENT REGARDING WISCONSIN ETHICS OPINION E-97-1
by James E. Powers, Managing Attorney,
ATG Wisconsin Operations

The practice of drafting deeds on behalf of title companies or Realtors(r) is generally regarded by ATG as not in the long-term interests of the bar. However, we recognize that many attorneys and consumers depend upon this practice as the only available form of legal representation in their area. Here are some guidelines to follow when drafting deeds (or other documents) when not directly engaged by a seller or buyer in a real estate transaction:
 

  1. Remember that you have a client. In the case where you are drafting a deed, the party who is paying for the service (usually the seller) may reasonably expect that you are their attorney. You can't entirely control a party's perception of your role in a transaction. Even if you limit the scope of representation, you still owe duties to that client under the Code of Professional Responsibility.

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  2. Don't unreasonably restrict the scope of representation. Try to anticipate the client's needs and expectations relative to the transaction and address them appropriately.

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  3. Make sure you (or a responsible delegate) are available at your office to assist with questions at the closing. This follows the point raised above, that you have a client and that the client may need more than a simple document.

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  4. Use non-engagement letters. As the formal opinion recommends, you should send a letter to the party paying for the document (e.g., the seller, if you are drafting a deed) describing in detail the parameters of your representation of the client. State that you have been asked by the broker, title company, or lender to draft a deed for the transaction and that your representation is limited to providing this service. Advise the client that you will be available at your office to answer questions at the closing if needed. If you intend to charge a fee for this service, mention it in the letter.

© ATG atgc0598vol22

 

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