Barely two hours after I posted my blog entry yesterday I had an occasion to illustrate my theme that “CYA is also good lawyering”.
Clients of mine had asked me to e-mail them a contract they could present to the buyer of their home, who was not represented by an attorney as far as they knew. I did so, along with a cover letter that stated, in part: This letter is being sent to you as I have had no contact with counsel representing you. If you are represented by counsel, please excuse my direct correspondence and turn this letter and the remaining paperwork over to your attorney.
My clients were initially unable to open the letter attachment, though they were able to print out the contract. When one of them advised me that she had passed along the contract sans the letter, I urged her to get the buyer the letter post-haste for her protection as well as mine.
Why did I need protection? I am ethically constrained from contacting the client of another attorney, and it would be a grave breach if this buyer had counsel who would deem me unprofessional, at best, for directing the contracts to the buyer rather than the attorney.
Why did my clients need protection? They were entering into a somewhat unusual sales transaction with the buyer, but even if they were not, we never want to create any situation where the buyer could seek to legally renege on the contract, claiming my clients or I took advantage of him and pressured him to sign without benefit of counsel. So besides this language in the body of the contract: Purchaser was given every consideration and urging by Sellers to have an attorney of his own choosing represent him, and he has carefully and with due thought waived his representation by counsel, I wanted it perfectly clear on the letter that accompanied the contracts that the buyer could get counsel if he chose and that we were in no way pressuring him or taking advantage of his lack of legal expertise.
Sellers and I are both equally protected, and I know all concerned are equally pleased.