Q: Dear Ethics Lawyer, I am an attorney for a company desiring to complete a relatively small real estate transaction with an individual to facilitate a larger development. In order to complete the transaction, the individual needs to document an agreement she has with a third party by which the third party will release their interest. In order to make this happen, she asked me if I could draft a writing to reflect the agreement between her and the third party, that she can then get signed. My client company doesn’t mind. Can I do it and if so under what circumstances?
A: Yes, but it is all about context and clarity about who you are representing when you do so. In order not to create a potential conflict of interest and an expectation on her part that you are advising and representing her as her lawyer in preparing the document (which can occur by the giving of legal advice or performing of legal work in a context in which the recipient reasonably believes you are representing them), specifically advise her that you will prepare the document as the company’s lawyer, not as her lawyer. Suggest that she take the opportunity to obtain advice from a lawyer of her choosing for independent advice or if she has any question or concern about it.