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The Florida Bar
www.floridabar.org
PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 69-25
July 23, 1969

A lawyer serving as issuing agent for title insurance policies should comply with state regulations that require persons issuing mortgage title insurance policies to apprise the purchasers of real property of the limitation in coverage of such policies and to afford such purchasers an opportunity to procure owner's coverage at the same time. To so comply would not constitute improper solicitation.

Canons: 9 and 28
Opinions: 61-37, 61-60, 63-25

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar has invited our attention to the provisions of Bulletin 449 issued by the Insurance Commissioner of the State of Florida on April 30, 1969, and to proposed Rule 5-21.01 and 5-21.02 of the Insurance Commissioner, presently scheduled for public hearing on July 21, 1969.

In sum, the Bulletin and proposed regulations deal with the responsibilities of persons issuing mortgagee title insurance policies to apprise purchasers of real property of the limitation in coverage of such policies and to afford such persons an opportunity to procure owner's coverage at the same time. We are asked whether a lawyer serving as an issuing agent for title insurance policies in the course of closing a transaction for the mortgagee lender may properly comply with these regulations, the ultimate concern of this inquiry being whether it would constitute solicitation condemned by Canon 28 for the lawyer to comply with the Bulletin and proposed regulations.

It is common knowledge that many members of The Florida Bar serve as issuing agents for title insurance companies; moreover, more than 3,000 members of The Florida Bar are members of the Lawyers' Title Guaranty Fund, as a consequence of which they perform an analogous function by executing title insurance instruments on behalf of the Fund. We have dealt in the past with various problems arising from such services. (See our Opinions 61-37 [since withdrawn], 61-60 and 63-25 [since withdrawn]). It is obvious, therefore, that a lawyer may properly serve in this capacity as an issuing agent.

Although clearly governed by the Canons of Ethics in such service, it is also essential that the lawyer comply with relevant regulatory requirements imposed by the constitutional officer charged by the legislature with the regulation of title insurance. There is no need here for the Committee to apprehend what the duty of the lawyer might be were such requirements to conflict with the Canons because here they may be easily accommodated.

We see no possibility of harm of the type condemned by Canon 28 resulting from the lawyer's complying with the Bulletin and proposed regulations as an incident to the issuance of the mortgagee title policies and attending to the closing of a real estate transaction. It is our conviction that the requirements will, if anything, increase public confidence in lawyers who may be involved in such situations. Doubtless, many persons in the past have not been aware that as owners they did not procure title insurance coverage through the mortgagee title policy. Instances have occurred in which such persons felt this matter should have been specifically called to their attention by the attorney for the mortgagee. Indeed, it may well be that a duty to such effect is found in the requirements that a lawyer not mislead one without counsel as now imposed by Canon 9.

In sum, we see no significant possibility of any infringement upon the provisions of Canon 28. Accordingly, we conclude that an attorney may properly comply with the Bulletin and proposed regulations. It has been suggested that the Bulletin and proposed regulations are too extensive and need not include a positive tender of insurance, but we conclude this is a matter of administrative judgment to be considered by the Insurance Commissioner and not by this Committee.

[Revised: 08-24-2011]