ETHICS OPINION 255-1927

ETHICS OPINION 255

NUMBER 255 1927

Question. In 1915, a married man purchased land and immediately thereafter he and his wife joined in executing and acknowledging a deed thereof, with the name of the grantee left blank; the blank deed has remained in the possession of the husband since, undelivered.

Now, the husband employs a lawyer to draw a contract for the sale of the land to a purchaser. The lawyer, upon inquiry, learns that the wife has never been judicially declared incompetent, but that during a period aggregating about ten years prior to her execution and acknowledgment of the deed, she had intermittently been confined in an insane asylum as incompetent; and that she has repeatedly since been so confined, but that she was not so confined at the time of such acknowledgment; and that she is now so confined; but he, is not otherwise advised that she is presently actually incompetent.

In the opinion of the Committee, may the lawyer properly aid the husband to make a contract of sale, without disclosing to the intending purchaser his knowledge respecting the wife, and without acquainting the wife or someone in her behalf with what is contemplated by her husband? May the lawyer at the request of the husband hit in the blank with the name of the purchaser as the grantee, without acquainting the wife, or someone in her behalf with the fact and procuring her authority therefor? Would it make any difference in the Committee’s answer if the name of an intermediary as grantee should be inserted in the deed and the intermediary as a conduit should execute either a contract of sale with or a deed of conveyance to the purchaser?

Answer. The Committee expresses no opinion upon the law; the danger of the perpetration of a fraud upon the vendee, or the wife, is apparent from the question. If the lawyer, after thorough investigation of the facts, is reasonably satisfied that the vendee will be protected against such fraud, either in law or in fact, and that the wife is competent in fact, or that her rights are adequately protected, he may properly proceed with the transaction; otherwise, he should not participate therein without assuring himself that adequate steps to protect the wife and the vendee are taken by disclosure, or otherwise, with the consent of the client, if it be given; and if not given the lawyer should not participate.

The filling of the blank with the name of an intermediary does not vary the answer.