Using the Services of an Independent Title Abstractor
Adopted: July 18, 1997
Opinion rules that a lawyer may use the services of a nonlawyer independent contractor to search a title provided the nonlawyer is properly supervised by the lawyer.
Inquiry #1:
Paralegal is not a lawyer. She proposes to perform real estate title searches for lawyers working as an independent contractor. May Attorney A, who is a real estate lawyer, engage Paralegal as an independent contractor to perform title searches for real estate closings?
Opinion #1:
Yes, subject to certain limitations. A lawyer may use nonlawyers to assist him or her in the rendition of the lawyer's professional services. Comment to Rule 3.3 of the Rules of Professional Conduct. There is no requirement in the Rules of Professional Conduct that such nonlawyer assistants must be employees of the lawyer's firm. However, the lawyer must be able to meet his or her ethical responsibilities with regard to the supervision of a nonlawyer assistant regardless of whether the nonlawyer assistant is employed within the firm or as an independent contractor. The lawyer is responsible for the competent representation of clients, and therefore, the lawyer is also responsible for the work product of nonlawyer assistants. Rule 6(a)(1).
Before hiring or contracting with a nonlawyer assistant to perform title searches, Attorney A should take reasonable steps to ascertain that the nonlawyer is competent. Attorney A must also give the nonlawyer appropriate instruction and supervision. Comment to Rule 3.3 and RPC 29.
Inquiry #2:
Attorney Green has limited experience searching titles to real property and has limited knowledge of real property law. He would, however, like to expand his legal services to include the preparation of title opinions and real estate closings. He plans to expand into this area of practice by contracting with Paralegal to perform title searches and then relying upon her research to prepare an opinion on title. Is Attorney Green's proposal ethical?
Opinion #2:
No. It is impossible for a lawyer to supervise adequately the work of a nonlawyer, pursuant to the requirements of Rule 3.3, if the lawyer is not himself or herself competent in the area of practice. Moreover, it is incompetent representation of a client, in violation of Rule 6, for a lawyer to adopt as his or her own an opinion on title prepared by a nonlawyer or to render a legal opinion on title if the lawyer's opinion is not based upon knowledge of the relevant records and documentation and the lawyer's own independent professional judgment, knowledge, and competence in real property law. See RPC 29.
Inquiry #3:
If Attorney A uses the services of a nonlawyer to search a title, either as an employee of his firm or as an independent contractor, must Attorney A disclose this to the client?
Opinion #3:
Yes, if the client inquires, Attorney A should advise the client that he uses the services of a nonlawyer title searcher.
Inquiry #4:
Does Attorney A have a duty to tell the client the name of the nonlawyer title searcher?
Opinion #4:
No, unless the client requests this information.
Inquiry #5:
Should Attorney A explain to the client how the services provided by Paralegal will be charged to the client?
Opinion #5:
No, unless the client requests this information.
Inquiry #6:
If Attorney A hires Paralegal to perform title searches as an independent contractor, is Attorney A required to check for conflicts of interest?
Opinion #6:
Yes, a lawyer is always required to check for conflicts of interest. See Rule 3.3(b) and Rule 5.1.
Inquiry #7:
May Attorney A disclose to Paralegal the nature of the title search to be performed and the name of the client? Is client consent necessary prior to this disclosure?
Opinion #7:
If Attorney A has determined that Paralegal understands and will comply with Attorney A's duty to safeguard the confidences of his clients, he may disclose confidential information to Paralegal without the prior consent of the client. See Rule 4(c)(1).