Just the facts ma'am: A collection lawyer entered into a contingency fee agreement with his client for post-judgment collection representation. The debtor had non-exempt real property that our Sheriff levied, executed, and sold at Sheriff's sale. The lawyer's client appeared at the sale and was the successful bidder on the real property. Now the client is not responding to the lawyer's attempts to contact him regarding payment under his fee agreement. The lawyer requested on his letterhead and copied to his client that the Sheriff name the lawyer as a co-grantee on the deed to assure the lawyer his fee. The lawyer paid all costs associated with the execution and sale of the real property. This gives me a bit of heartburn. The lawyer tells me that other counties have complied with identical requests for him in the past. I am concerned about potential ethical issues I may have in advising the Sheriff to do such as well as potential civil liability to the Sheriff, County, and myself. It seems, according to caselaw, that the County can rely on a collection lawyer's representation in writs of execution. Would the same be true in this type of fact scenario, although not exactly related directly to represtation of various types of property (exempt/non-exempt, etc.)?

My opinion, and that's all it is:

The deed names only the buyer. If the lawyer wants to be named in the deed, all the lawyer has to do is to get the court that issued the writ to issue a written order directing the sheriff to name both. That protects your sheriff and the lawyer. [Now, would I advise the court to actually do that? No, I probably wouldn't. But that's another question.] But, short of that, I know of no authority for the sheriff to name anyone but the buyer in the deed.

A.D.

As usual, Ann is absolutely right. Another reason to stick very closely to the actual structure of the parties is protection of your sheriff. The sheriff conducts an execution sale under auspices of the court's judgment. In all likelihood, that order (and the consequent writ of execution) are not going to authorize the sheriff to alter the terms (or the parties) to the sale conducted under the court's direction. As such, the comfortable blanket of derived judicial immunity for the sheriff could be lost by playing fast and loose with the parties to the sale. As Ann alluded to, the lawyer appears not to be a party. He is, instead, a third-party beneficiary at best. Accommodating that status is simply too risky for your sheriff in my estimation.

"The comfortable blanket of derived judicial immunity..."

Scott, you get style points for that one! But you're right, of course. The blanket is a comfortable one and there is no good reason to crawl out from under it.

Keep warm, kiddies ~

A.D.