92 N.J.L.J. 726
November 6, 1969
Representing Other Party
We have been asked for our opinion as to whether it is ethical
for a New Jersey attorney to participate in a transaction where he
knows or has good reason to believe that the other party to the
transaction will be represented in whole or in part by one not
authorized to practice law in New Jersey, i.e., either an attorney
not admitted to practice in this State or a layman.
This situation arises most frequently in matters involving real estate and there are many variations which may arise. We suggest only a few, in all of which the real estate is in New Jersey: the mortgage money is provided by a New York bank and the closing takes place at the bank with the bank's New York attorney drawing all mortgage papers; the closing takes place in New Jersey and the seller's attorney is a New York lawyer; the closing takes place at the office of the title company and many of the closing papers are prepared by the title company with one party unrepresented by a lawyer.
All lawyers will recognize these transactions as common occurrences. It is not the function of this Committee to say whether all these situations involve the unauthorized practice of law in New Jersey. For purposes of this opinion we assume that some element of the unauthorized practice of law is involved.
In our opinion it is not unethical for a New Jersey attorney to continue to represent his client under these circumstances. To hold otherwise would deprive the client of the legal representation he has sought. There may be an occasion such as that suggested in our Opinion 61, 87 N.J.L.J. 778 (1964), where the attorney knows well in advance that certain persons are practicing law without authorization. The attorneys should avoid participation in these transactions either by insisting that the other party be represented by a New Jersey attorney or, if time permits, by filing a complaint with the appropriate authority. In many cases, however, the attorney will come to the closing unaware that the representation of the other party will constitute the unauthorized practice of law. In fact lawyers may differ as to whether certain actions actually constitute the unauthorized practice of law. Clearly the attorney would do a great disservice to his client if he were to refrain from participating in the transaction at this point, and, accordingly, it is our opinion that it would not be unethical for him to do so.