Can a lawyer sign a real-estate title opinion when non-lawyers did the underlying title research?

Plain-English summary

The committee was asked whether a lawyer may sign a title opinion to real estate where the research and title examination was in fact made by others, probably non-lawyers, and answered yes. The crux, it said, lies in the presumption that the lawyer must choose and be reasonably sure of the integrity and ability of those who do the research and on whom the lawyer relies.

The committee placed the practice in context. In many states lawyers rely on abstracts of title prepared by individuals and title companies the examining attorney may never know; in Kentucky lawyers examine the original records, make an abstract, and render an opinion from that examination. When a lawyer places a clerk or other employee in the records office, the lawyer must be sure of that employee's fidelity and ability, but the committee said that judgment is no more formidable than relying on an opinion in the state reports or on annotations in legal texts. Delegation of legal research, fact investigation, and other facets of everyday law work must be shared if the individual lawyer hopes to maintain a viable practice; while the law is a profession and not a business, a lawyer needs reliable help, "always remembering that the buck will stop with him."

Currency note

This opinion was issued in 1978 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. 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 Treat this page as historical context, not current guidance.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 rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer sign a title opinion if non-lawyers did the title search?

A: Yes, under this opinion, provided the lawyer chooses and is reasonably sure of the integrity and ability of those who did the research.

Q: Who is responsible for a title opinion built on delegated research?

A: The lawyer. The committee stressed that the buck stops with the lawyer who signs the opinion.

Q: Is relying on a non-lawyer's search any different from relying on other sources?

A: The committee said the judgment is no more formidable than relying on a reported opinion or on annotations in standard legal texts, so long as the lawyer is sure of the helper's fidelity and ability.

Background and rules framework

The opinion applies EC 3-6 of the former Code, which permits a lawyer to delegate tasks to lay assistants so long as the lawyer maintains a direct relationship with the client, supervises the work, and remains responsible. The modern analogs are Model Rule 5.3 (responsibilities regarding nonlawyer assistance) and Model Rule 5.5 (unauthorized practice of law), under which the lawyer's supervision and responsibility keep delegated work within bounds.

Citations and references

Rules of Professional Conduct:

• EC 3-6 (delegation to and supervision of lay assistants); modern analogs Model Rule 5.3 and Model Rule 5.5

See also

• KBA Ethics Op. E-223: Paralegal Names on Letterhead
• KBA Ethics Op. E-222: Dual Certification on a Title Exam

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-195.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-195
Issued: October 1978

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://ww.kybar.org), before relying on this opinion.

Question:

May a lawyer sign a title opinion to real estate, if in fact, the research and title examination was made by others, probably non-lawyers?

Answer:

Yes.

References:

EC 3-6
OPINION

The crux of the answer lies in the presumption that the lawyer must choose and be reasonably sure of the integrity and ability of those who do the research, and upon whom he relies.
In many states lawyers rely on abstracts of title made by individuals and title companies, whom the examining attorney may never know. In Kentucky, lawyers actually examine the original records and make an abstract and render an opinion from that examination. When the attorney places a clerk or other employee in the records office, he must be sure of that employee’s fidelity and ability. However, that judgment is no more formidable than when he relies on an opinion in the State Reports, or, on annotations in any of the law texts, even C.J.S., or, Am Jur 2d.
The same process applies when any Webster’s Dictionary, or, the Encyclopedia Britannica is consulted. Delegation of authority, legal research, fact investigations, and other facets of everyday law work must be shared, if the individual lawyer hopes to maintain a practice that will maintain the lawyer. While it is always recognized that the law is a profession and not a business, yet, from early times it has been recognized that he who serves the altar, must live by it. Today a lawyer needs reliable help, always remembering that the buck will stop with him.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.