The Florida Bar

Ethics Opinion

Opinion 69-25

FLORIDA BAR ETHICS OPINION
OPINION 69-25
July 23, 1969
Advisory ethics opinions are not binding.
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:
Opinions:

9 and 28
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withdrawn], 61-60 and 63-25 [since withdrawn]).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.