services and that the protections of the client-lawyer relationship
do not exist. Rule 5.7(a)(2). A lawyer who is working as a real estate
salesperson can take “reasonable measures” by taking special care
to communicate, in writing and prior to the engagement of real
estate-related services, with the real estate client that no client-lawyer
relationship will exist or be formed. A lawyer who is a real estate
salesperson should also take special care to separate providing real
estate services from providing legal services. For example, activities
such as the drafting or editing of contracts;
providing advice on, or interpreting, a contract
or warranty provision; the application of
environmental or zoning laws to a real estate
transaction; and other similar law-related
services that are “closely entwined” with legal
services, would constitute the practice of law
and invoke the application of all of the Rules.
See Rule 5.7, cmt. 6; Utah Ethics Opinion, No.
17-07.
CONCLUSION
The answer to the question presented depends
on the circumstances and cannot be answered
definitively because the lawyer requesting the
opinion is not engaged in any law-related
services and presents hypothetical scenarios. It
is possible that a lawyer who is not practicing
law and is solely providing real estate services,
which are law-related services, may not be
bound by all of the Rules of Professional
Conduct. A lawyer will always be bound to
some aspects of our Rules. See N.D.R. PROF.
CONDUCT Rule 5.7, cmt. 1, and Rule 8.4.
A lawyer who is not practicing law and works
solely as a real estate salesperson should provide
a clear disclaimer, in writing, prior to being
engaged by a real estate client, that an attorney-
client relationship does not exist if the lawyer
desires to limit application of the Rules when
providing only real estate services. Such a
lawyer must take special care to avoid closely
entwining the provision of real estate services
with the provision of legal services.
This opinion was drafted by Zachary Pelham
and was approved by the Ethics Committee on
the 11th day of December, 2019.
This opinion is provided under Rule l .2(B),
North Dakota Rules for Lawyer Discipline,
which states:
A lawyer who acts with good faith and reasonable reliance on a
written opinion or advisory letter of the ethics committee of the
association is not subject to sanction for violation of the North
Dakota Rules of Professional Conduct as to the conduct that is
the subject of the opinion or advisory letter.
EIDE LIKE
I’D LIKE CONFIDENCE ON THE STAND
Come prepared with the data and
knowledge you need for litigation.
Eide Bailly’s experienced and certified
professionals can help you with economic
damage calculations, forensic accounting
and fraud investigations, computer
forensics and eDiscovery management.
What inspires you, inspires us.
701.239.8513 | eidebailly.com/forensics
WINTER 2020
37