The real estate attorney in a residential closing.

• Author: Gravina, Peter J.
• Position: Letters - Letter to the Editor

I suspect most people's view of a Utopian world is not the same as Douglas Kaplan's as he presented in "Servants of a Masterful Conflict" (February). However, a definition of Utopia that is agreed upon is not essential to the analysis. In the real world utility, economics and a streamlined process are the dictates of the marketplace. The market will move toward consolidation of functions that can be efficiently done by fewer participants. It is here that we find ourselves in the residential real estate market. Neither sellers, buyers or lenders wish to complicate a real estate transaction by injecting multiple parties to do the function that one can do quite adequately.

Let's establish the ethical premise. A lawyer in faithfully representing his or her client does not and may not ethically be complicit, let alone active, in the perpetration of a fraud or the breaking of a law in completing a residential real estate transaction. Yet it is here where the examples set forth by Mr. Kaplan fall. The examples either show a breach of the contract with the lender, for example, withholding a required termite report or withholding financial information or display a breach of the laws regulating residential financing such as dual contracting and making untrue statements on the loan application.

The agonizing over the quandary of having to withdraw mid representation must be fascinating to the criminal attorneys who read the column, but it makes no difference if the laws being broken are state criminal laws or are ones regulating the lending of money. A dilemma is presented in either circumstance, one with which an ethical attorney must wrestle.

The truth is that the conduct suggested to be unethical acting as a title agent and settlement agent actually allows for economic and efficient representation. Currently, the residential real...