Can a lawyer do a savings and loan association's general legal work for free or a nominal fee in exchange for its title-examination work, and how are the title fees handled?

Plain-English summary

A member asked whether an attorney who regularly performs title-examination work for a savings and loan association, with those services charged by the association to the borrower's account, may do all the association's other legal work gratuitously or for a nominal fee in return for receiving the title-examination work.

A majority of the committee said the attorney may perform all the association's work except title examination gratuitously or for a nominal fee. The terms of a lawyer's employment are generally a matter of negotiation between attorney and client, and the title-work fees may properly be considered in the aggregate as compensation for the total services rendered to the association. One member dissented in part, stating that the attorney should make a separate charge for additional legal work that is substantial in volume or responsibility. All members agreed that the title-examination fees must be collected from the association in the absence of a clear agreement between the attorney and the borrower at whose instance the examination is performed, that the fee must in all events be reasonable, and that it should not be increased because the examination costs are passed on to the borrower.

Currency note

This opinion was issued in 1964, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 12 and 35 of the Canons of Professional Ethics; the reasonableness of fees is now governed by Rule 4-1.5 and the lawyer's professional independence by Rule 4-5.4 of the Rules Regulating The Florida Bar (Model Rules 1.5 and 5.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer do the association's other work for a nominal fee?

A: A majority said yes. The title-examination fees could be treated in the aggregate as compensation for the total services rendered to the association.

Q: Who pays the title-examination fees?

A: All members agreed the title fees must be collected from the association absent a clear agreement between the attorney and the borrower at whose instance the examination is performed.

Q: Could the fee be raised because it is passed on to the borrower?

A: No. The committee said the fee must be reasonable and should not be increased because the examination costs are passed on to the borrower.

Q: Was the committee unanimous?

A: No. One member would require a separate charge for additional legal work that is substantial in volume or responsibility.

Background and rules framework

The opinion applied former Canons 12 (fees) and 35 (professional independence) of the Canons of Professional Ethics. Those subjects are now addressed by Rule 4-1.5 (reasonableness of fees) and Rule 4-5.4 (professional independence) of the Rules Regulating The Florida Bar (Model Rules 1.5 and 5.4). The committee treated the overall compensation as a matter of negotiation while insisting the fee remain reasonable and not be inflated because it is charged to the borrower.

Citations and references

Rules of Professional Conduct:

• Canon 12 [Canons of Professional Ethics; reasonableness of fees; see current Rule 4-1.5]
• Canon 35 [professional independence; see current Rule 4-5.4]

See also

• FL Bar Ethics Op. 66-29: A Fixed Monthly Fee for Mortgage-Lender Closings
• FL Bar Ethics Op. 64-74: Representing a Bank While Paid by a Solicited Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-58/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-58.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 64-58
September 29, 1964
Advisory ethics opinions are not binding.
An attorney may perform all work, except title examination work, of a savings and loan association gratuitously or for a nominal fee. The fees received from the title examination must be collected from the association in the absence of a clear agreement between the attorney and the borrower at whose instance the examination is performed.
Canons: 12, 35
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar inquires if:
. . . . an attorney who regularly performs title examination work for a savings and loan association, which services are charged by the association to the borrower's account, (may) do all other legal work of the association gratuitously or for a nominal fee (in return) for receiving the title examination work.
A majority of this Committee believes the attorney may perform all work, except title examination work, of the association gratuitously or for a nominal fee. The terms of a lawyer's employment are generally a matter of negotiation between the attorney and his client. The fees received for title work may properly be considered in the aggregate as compensation for the total services rendered by the attorney to the association.
One member of the Committee dissents in part and states that the attorney should make a separate charge for legal work done in addition to the examinations if such work is substantial in volume or responsibility.
All Committee members agree the fees received for the title examination must be collected from the association in the absence of a clear agreement between the attorney and the borrower at whose instance the examination is performed. The attorney's fee must in all events be reasonable. It should not be increased because the costs of examination are to be passed on to the borrower.