(concurring).
In concurring with this opinion, I wish to state that I truly believe the trial court is being affirmed in all but one respect. That matter of reversal pertains to the broker’s fee. Since my first reading of this case, I have been convinced that it was the auctioneer who sold the property, and not the lawyer, and thus the broker was entitled to the fee and not the lawyer. Certainly, the estate should not have to pay a double brokerage fee, or one that exceeds a normal brokerage fee.
It is good that we have legal erudition on the ethics involved in this scenario. We are students of the law, venturing into a *260field which has very little settled law. Under the writing of the majority opinion, the lawyers of this state have a blueprint to follow in the future. This lawyer practiced for some 47 years and has been a well-respected, well-known attorney. By the majority opinion, he has overextended his charge for a brokerage fee.
Not intending to muddy the ethical waters, I call to the Bar and Bench’s attention SDCL ch. 36-21, pertaining to real estate brokers and salesmen. This particular chapter was not cited in the briefs nor brought to our attention in oral argument. SDCL 36-21-19 provides:
Attorneys exempt — Exception. This chapter shall not be construed to include an attorney at law, admitted to practice in South Dakota, unless he holds himself out to be in the real estate business or solicits real estate business, in which event he shall obtain a real estate license without examination but he shall be subject to the provisions of this chapter.
As a lifelong resident of South Dakota and member of the State Bar for 37 years, I have noted many lawyers, particularly in smaller communities, who have a law practice and real estate business together. Some of them have been very prominent and influential lawyers in this state. As I conceptualize this entire situation, a lawyer can act as a broker, and make isolated sales without a real estate license. When a lawyer begins to hold himself out as to being in the real estate business, he must obtain a real estate license. I further visualize that the ethical trap a lawyer can get into when selling real estate is to occupy dual or triple relationships with his client. In other words, a lawyer should not get himself into a position where he is the executor for the estate, then probates the estate by virtue of being the estate’s attorney, and also then sells land for the estate as a broker. It becomes apparent that, acting in several capacities, professional skills become interwoven with commercial gain. Loyalties become muddled or totally antagonistic. Surely, a lawyer should not be a “middleman.”
The South Dakota Rules of Professional Conduct, SDCL ch. 16-18, Appx., effective July 1, 1988, which replaced the former Code of Professional Responsibility, provides that a lawyer shall not represent a client if that representation may be materially limited by the lawyer’s own interests unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. (Rule 1.7(b)). In cases like this, where a lawyer functions in several capacities, his interests diverge from, and inherently conflict with, those of his client.