1) The basics of real estate law...fundamental difference between the attorney-client privilege and the concept of confidentiality. What is the difference between the two in the real estate law context?
2) Ethical dilemmas that are present in real estate practice. Assume the following fact scenario: Your supervising attorney is representing client CBH Properties, Inc. CBH Properties is in the business of buying and selling real property for investment purposes and has found a commercial property it would like to attain. Rather than purchase the property, CBH properties wants to do a like-kind property exchange, exchanging one of the commercial properties it already owns for the one that it wants. Your supervising attorney hands you some notes pertaining to the two properties in question and asks you to research the relevant tax laws to determine whether the proposed transaction will satisfy the statutory criteria to defer the paying of capital gains taxes on the transaction. Your supervising attorney wants you to provide her with a memorandum on the subject. You have no experience with tax law and once you begin your research you realize that you are over your head, yet you do not want to disappoint her.
What do you do? Can you provide an ethical foundation for your position? What are the consequences of your ethical position to your job and to your supervising attorney and her client?
3) Why is it important to understand the different ways to hold title? What is the form of title ownership where you hold the most rights? The least?
I'll tackle each of your questions one at a time. :)
1) As you might already know, the attorney-client privilege is an evidentiary rule that protects both attorneys and their clients from being compelled to disclose confidential communications between them made for the purpose of furnishing or obtaining legal advice or assistance. The privilege is designed to foster frank, open, and uninhibited discourse between attorney and client so that the client's legal needs are competently addressed by a fully prepared attorney who is cognizant of all the relevant information the client can provide. Most courts generally require that certain elements be demonstrated before finding that the privilege applies. Although the elements vary between jurisdictions, one set of elements was articulated in U.S. v. United Shoe Machinery Corp., 89 F.Supp. 357 (1950), where the court enumerated the following five-part test: (1) the person asserting the privilege must be a client or someone attempting to establish a relationship as a client; (2) the person with whom the client communicated must be an attorney and acting in the capacity as an attorney at the time of the communication;
(3) the communication must be between ...