Ohio Board Advisory Opinion Op 88-030

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-30
Issued December 16, 1988
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: An attorney’s client has the exclusive authority to make decisions regarding the
representation. Where permissible, however, attorneys may exercise their professional judgment to
waive or fail to assert a right or position of their clients. Attorneys should keep their clients
informed of all information regarding the representation. Attorneys should not allow the desires of
third parties to impair their free judgment regarding the representation of a client.
OPINION: We have before us your request for an advisory opinion regarding not-for-profit legal
services corporation attorneys and their involvement in representing a client in a real
estate transaction. The legal service corporation serves only members, retirees and dependents of a
union. One of the union members entered into an agreement to sell some real estate in Ohio.
The union member asked one of the legal service corporation's attorneys to review the
purchase and sales agreement already executed. The union member/client also instructed the
attorney to prepare any required deed as stipulated in the purchase and sale agreement. The
agreement called for a good and sufficient warranty deed.
The attorney then receives a letter from his or her client’s real estate agent with instructions to
prepare a joint and survivor deed for the benefit of the purchaser of the real estate who is not
represented by counsel. The written purchase agreement between the parties is not modified. Your
questions are as follows:
1. Is the attorney subject to discipline for preparing the requested joint and
survivor deed, irrespective of the fact that the contract calls for merely a
general warranty deed?
2. Is the attorney subject to discipline by providing the requested joint and
survivorship deed by a third party, the real estate agent?
Withdrawn by Adv. Op. 2020-02

Op. 88-30 2
3. Is the real estate agent interfering with the attorney's independence or
representation of his or her client?
4. Does the attorney have any potential liability or exposure in drafting joint
and survivor deed, if the purchaser is unaware of the legal ramifications of the
same?
In regard to your first question, it is our opinion that the attorney should contact his or her
client to discuss the different deeds and their effect. However, it is our understanding that a general
warranty deed and a joint and survivor deed are not inconsistent. Attorneys have an obligation to
exert their best efforts to insure that their clients remain fully informed of all relevant
considerations regarding the representation. See, e.g., Code of Professional Responsibility, EC 7-8.
If the client agrees that another deed should be executed then he or she may wish to contact or have
the attorney contact the purchaser regarding the change. Whether the contract between the parties
has to be changed is a legal question we cannot answer. Bear in mind however, that generally the
decision-making authority rests exclusively with the client. Code of Professional Responsibility,
EC 7-7.
A lawyer is authorized, where permissible, to exercise his or her professional judgment to
waive or fail to assert a right or position of his or her client. Code of Professional Responsibility,
DR 7-101(B). However, “the boundaries of what is ‘permissible’ are not clarified.” Annotated
Model Code of Professional Responsibility, 299 (1979). Ethical consideration 7-7 does state that
“in certain areas of legal representation not affecting the merits of the cause or substantially
prejudicing the rights of a client, a lawyer is entitled to make decisions on his own.” Code of
Professional Responsibility, EC 7-7. Therefore, if drafting a joint and survivorship deed instead of
a warranty deed does not affect the merits of the cause nor substantially prejudice the rights of the
client then the lawyer is permitted to do so.
Although the Code does not specifically address your second question, it does encourage
lawyers to avoid being influenced by someone other than their client. See, Code of Professional
Responsibility, DR 5-107 and EC 5-21. Therefore, we advise lawyers not to take direction from
someone other than their client.

Op. 88-30 3
Your third question is asking about the conduct of a realtor. We are only authorized to
respond to questions regarding the practice of law. See, e.g., Gov. Bar R. V, §2b.
Your fourth question is a legal question we do not have the authority to answer. However,
we do call your attention to DR 7-104(A)(2), which states:
[d]uring the course of his representation of a client a lawyer shall not: ...give
advice to a person who is not represented by a lawyer, other than advice to
secure counsel, if the interests of such person are or have a reasonable
possibility of being in conflict with the interests of his client.
In conclusion, it is our opinion, and you are so advised that an attorney’s client has the
exclusive authority to make decisions regarding the representation. An attorney should keep his or
her client apprised of any information regarding the representation. An attorney should not allow
the desires of a third party to impair his or her free judgment relating to the representation of a
client.
This is an informal, non-binding advisory opinion based upon the facts presented and
limited to questions arising under the Code of Professional Responsibility.