Since the PAR Legal Hotline went in-house, I don’t get the thousands of calls each year that I once did, but I still get plenty. As you’d expect, the subjects are varied, but many callers seek advice about the provisions of a non-standard contract and how to explain it to their clients.
To these callers I will give an answer, but also a warning. The answer will hopefully reach the client, buyer or seller. The warning I give is that the agent with whom I’m talking is probably not going to give the nuanced answer I gave nor be equipped to answer follow-ups. Think of the game where a phrase is whispered in the ear of one person and passed along in a circle until the last person states the whisper aloud. It is always different than what was first uttered. Even though my advice goes from me to an agent and then to the client, a very short line, it will still be different. It’s like hearing about your upcoming surgery from someone who heard it from your surgeon!
I like examples and here is a good one. A buyer agent called asking my impression of an addendum to the agreement of sale that was not a standard. The addendum was short and simple. It said the sellers had 130 days to locate a replacement property and enter into a binding agreement of sale for it. If that didn’t happen, buyers got their deposit money back and the agreement was terminated. This addendum also set a date for settlement that was to be 30 days after sellers notified they had signed a purchase agreement.
There was lots to be critical of! It didn’t provide that the sellers would make a good faith effort to purchase a home or that they were even looking for a home within a price range for which they had mortgage approval, and that’s just for starters.
After addressing the fifteen or twenty things that I thought should be addressed with the buyers, I asked the agent a few questions. Are you writing this down? No, she hadn’t thought to do this and I speak more quickly than she can transcribe. Are you being paid any more for reviewing this legal document that was not standard and that you are not familiar with? No. How long have you practiced law? I didn’t ask that.
Here is what I suggested. Why not have your clients call me or another attorney who works in this arena. If you tell your clients that the form is not standard, that you never want to broach the unauthorized practice of law and that you think they will benefit from a brief legal review, the client is not likely to turn on you. Explain that you are concerned about advancing their very best interests. I do this all the time when I suggest that my clients engage brokers for all kinds of reasons. There are things you do that I do not and vice versa.
I suppose I could also advise the calling agent that I’ll charge him for my time and would he prefer to pay for the advice or have his client engage me and do so. It is only fair that the client pay for legal advice though that’s a matter of choice.
When you say to a client “let’s get you to a lawyer who can answer this for us,” your less likely to get backlash than you think. If a client refuses, emphasize, in writing, that you advised them to seek legal advice. Presumably your client is as capable of reading the form as you, so let them decide whether they are going to sign. It may be risky to review the form and offer advice but less so if you emphasize that you are not comfortable doing so and that a lawyer is needed. It is also good to identify lawyers to whom you can refer a client and who can turn around a question quickly and at a reasonable rate. They exist and can be life-savers for you and your clients! Best to all!