Can a North Carolina real estate lawyer hire an independent (non-employee) paralegal to perform title searches, and what supervision does that require?

Plain-English summary

The opinion addressed whether a real estate lawyer may use a nonlawyer who works as an independent contractor, rather than a firm employee, to perform title searches. It concluded that the lawyer may do so, subject to limitations. The opinion reasoned that a lawyer may use nonlawyers to assist in rendering the lawyer's professional services, and that nothing in the Rules required the nonlawyer to be an employee of the lawyer's firm. Either way, the lawyer had to be able to meet the ethical duties of supervision, because the lawyer is responsible for competent representation and for the work product of nonlawyer assistants. Before engaging the nonlawyer, the lawyer was to take reasonable steps to confirm the nonlawyer's competence and to give appropriate instruction and supervision.

The opinion drew a firm line against using a nonlawyer to paper over the lawyer's own inexperience. It concluded that a lawyer with limited knowledge of real property law could not expand into title work by contracting with a paralegal to search titles and then relying on that research to render a title opinion. The opinion reasoned that a lawyer cannot adequately supervise a nonlawyer in an area where the lawyer is not himself competent, and that adopting a nonlawyer's title opinion as one's own, without independent professional judgment grounded in the relevant records and in real property law, is incompetent representation.

On client-facing questions, the opinion concluded that the lawyer need not volunteer the use of a nonlawyer searcher but must tell the client if the client asks, and likewise must give the searcher's name and explain how the service is charged only if the client requests it. The opinion concluded that the lawyer must always check for conflicts of interest, and that the lawyer may share confidential information (including the client's name and the nature of the search) with the nonlawyer without prior client consent once the lawyer has determined that the nonlawyer understands and will honor the duty to protect client confidences.

Currency note

This opinion was issued in 1997, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a North Carolina lawyer use an independent contractor, not an employee, for title searches?

A: Yes. The opinion concluded that a lawyer may engage an independent-contractor nonlawyer to perform title searches, with no requirement that the nonlawyer be a firm employee, so long as the lawyer can meet the supervision duties.

Q: What supervision does the lawyer owe?

A: The opinion concluded that the lawyer must take reasonable steps to confirm the nonlawyer's competence before engaging the nonlawyer and must give appropriate instruction and supervision, because the lawyer remains responsible for the nonlawyer's work product.

Q: Can a lawyer who is weak in real property law rely on a paralegal's title search to issue a title opinion?

A: No. The opinion concluded that a lawyer not competent in the area cannot adequately supervise the nonlawyer, and that adopting the nonlawyer's title opinion without the lawyer's own independent judgment grounded in the records and in real property law is incompetent representation.

Q: Must the lawyer tell the client a nonlawyer did the title search?

A: Only on request. The opinion concluded that the lawyer should disclose the use of a nonlawyer searcher, the searcher's name, and how the service is charged if the client inquires, but is not required to volunteer that information.

Q: Can the lawyer share the client's confidential information with the searcher?

A: Yes, once the lawyer has determined that the nonlawyer understands and will comply with the duty to safeguard client confidences; the opinion concluded that prior client consent is not required in that circumstance.

Background and rules framework

The opinion applied North Carolina's then-current Rule 3.3, governing a lawyer's responsibilities regarding nonlawyer assistants (corresponding to Model Rule 5.3), together with the competence requirement of Rule 6 (Model Rule 1.1) and the confidentiality protections of Rule 4(c)(1) (Model Rule 1.6). It also referred to Rule 5.1 and Rule 3.3(b) on conflict checking, and relied on RPC 29 for the limits on delegating work to nonlawyers.

Citations and references

Rules of Professional Conduct:

• MR 5.3 (responsibilities regarding nonlawyer assistance)
• MR 1.1 (competence)
• MR 1.6 (confidentiality of information)
• North Carolina Rule 3.3 (nonlawyer assistants), Rule 6 (competence), Rule 4(c)(1) (confidentiality), Rule 5.1 and Rule 3.3(b) (conflicts)

Other opinions cited:

• RPC 29: limits on a lawyer's reliance on nonlawyer work

See also

• NC Ethics Op. 2001-8: lawyer presence at a residential closing
• NC Ethics Op. 2000-10: nonlawyer appearing at a calendar call

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-216/

Original opinion text

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

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).