FLORIDA BAR ETHICS OPINION
February 26, 1976
Advisory ethics opinions are not binding.
It does not constitute solicitation for an attorney to request that a title insurance company permit
him or her to examine its work product for a fee in order to give his or her client additional
assurance as to the marketability of the title.
DR 2-106, EC 2-21
Committeeman Wigginton stated the opinion of the committee:
A member of a law firm in a metropolitan area submits an inquiry regarding
attorneys who order title insurance for their clients, examine titles and receive
fees from title insurance companies for such services. He describes the practice in
his community as follows:
1. Orders for title insurance usually originate with attorneys or with mortgage
bankers or brokers or real estate brokers. Bankers or brokers placing orders for
title insurance frequently request that a particular attorney or law firm examine
the title; attorneys or law firms ordering title insurance frequently request that
they be allowed to examine the title. The title companies comply with these
requests if the particular attorneys or law firms are on [their] list of approved
attorneys. Some attorneys in the area qualify, but others do not.
For purposes of this inquiry, we assume that the title company has approved a
request to allow a particular attorney or law firm to examine the title.
2. The title company determines the date which it believes is appropriate for
assuming the validity of the base title, frequently the date as of which that
company previously insured the title. It then obtains copies of every instrument of
record in the clerk’s office after that date and also obtains information about
taxes, special assessments and any judgments of record against any of the parties
whose names appear in the chain of title.
Then a title examiner employed by the title company, a nonprofessional,
prepares a title search sheet, an examination sheet, and a form of title
3. The title company delivers to the examining attorney the title search sheet,
the examination sheet, the form of title commitment and photocopies of the
documents listed in the title search and examination sheets. The attorney assumes
the validity of the title as of the date determined by the title company, and
examines the photocopies of the instruments furnished to him to determine
whether the state of the title is as shown on the documents prepared by the
nonprofessional title examiner.
If the attorney determines from his examination that the title commitment
was properly prepared he signs an opinion to that effect. If he determines that the
title is not as indicated in the title commitment, he returns the documents to the
title company for correction. (Although the inquiry does not expressly say so, we
assume that the examining attorney’s determination controls.)
4. The examining attorney is ultimately responsible for proper examination of
the documents furnished to him, including any damages the title company may
suffer on account of his negligence.
5. The title company pays the examining attorney, as a fee for his services, a
percentage of the gross amount it charges for the title insurance. The examining
attorney discloses to his client that he is examining the title for the title insurance
company and that the company will pay him a fee for those services.
The attorney asks about the propriety of this practice and calls our attention
particularly to Opinion 74-50.
In Opinion 74-50, we disapproved a practice similar in some ways to that in the present
inquiry. In Opinion 74-50, the attorney did not disclose to his client the fact that he was receiving
a fee from the title company, and the “fee” had no necessary relationship to the services
performed and might be little more than a kickback and in violation of DR 2-106.
In the present inquiry, there is disclosure. EC 2-21. The Real Estate Settlement
Procedures Act of 1974 requires it.
The inquiry does not indicate how much time the examining attorney will spend on any
given title examination. Doubtless, the amount of time will vary. However, by endorsing the title
company’s commitment, the attorney becomes jointly liable for the status of the title as set forth
in the title company’s search, and is therefore entitled to a fee for such guaranty on his part. It
must be assumed that the breakdown of the fee in relation to the premium for the title policy
would be equitably agreed upon by the attorney and title company and disclosed to the client.
For the attorney to request that the title insurance company permit him to examine the
title company’s work product in order to give his client additional assurance as to the
marketability of the title does not constitute solicitation, but extends the client’s confidence and
continues the attorney’s responsibility.
The Committee would affirm the propriety of the practice as outlined and conditioned
and would modify its Opinion 74-50 insofar as it may be inconsistent with this Opinion.