Tacking as Question of Standard of Care
Adopted: October 29, 2010
Opinion rules that whether a lawyer rendering a title opinion to a title insurer should tack to an owner’s policy of title insurance or a mortgagee’s (lender’s) policy is a question of standard of care and outside the purview of the Ethics Committee
Inquiry:
RPC 99 holds that the Rules of Professional Conduct do not require personal inspection of all documents in the chain of title so long as a lawyer rendering an opinion on title for real property fully discloses to the client the precise nature and extent of the service being rendered. The opinion further states, “Since title insurers frequently omit exceptions in mortgagees’ policies that would appear in owners’ policies, tacking should be limited to tacking onto owners’ policies.”
May a lawyer render a title opinion to a title insurance company by tacking to a mortgagee’s (lender’s) title insurance policy?
Opinion:
This issue of the appropriate standard of care for rendering a title opinion is outside the purview of the Ethics Committee. To the extent that RPC 99 appeared to opine on the standard of care relative to tacking to an owner’s policy versus a mortgagee’s (lender’s) policy for the purpose of rendering a title opinion, that part of the opinion is withdrawn.
Whether tacking to an owner’s policy or a mortgagee’s policy, a lawyer’s duty is to provide competent representation to his client, consistent with Rule 1.1, and to reasonably consult with the client about the means used to accomplish the client’s objectives. Rule 1.4(a)(2). The lawyer must consult with the client before using a method of rendering a title opinion that might present additional risk for the client