Can a New York lawyer who owns part of a title agency represent a client in a real estate deal while the agency also acts as title agent in the same deal?
NYSBA Ethics Opinion 1283: A Lawyer Who Owns the Title Agency in the Same Deal
Short answer: The committee concluded that an attorney who owns an interest in a title abstract agency that brokers title insurance may not simultaneously represent a client in a real estate transaction and act as agent for the title insurance underwriter in the same transaction, unless the attorney performs purely ministerial functions for the title agency and does not negotiate on behalf of the underwriter.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquirer practices in a small New York firm concentrating in real estate closings. The inquirer and another partner planned to take an ownership stake in a title agency that would act as agent for a title insurance underwriter, while staying out of the agency's day-to-day operations and underwriting decisions. The firm would occasionally refer clients to the agency, screen the owner-lawyer from those matters, obtain a written conflict waiver, and disclose the ownership in its engagement letter. The inquirer asked whether 2014's Insurance Law section 2113(e), which states that an attorney or firm may represent a client and also act as a title insurance agent in the same matter "subject to applicable law," changed the committee's longstanding view, and whether revised Rule 1.10(a) applied.
The committee reaffirmed its position that an attorney's simultaneous service as counsel and as agent for the title insurance underwriter in the same transaction is a conflict under Rule 1.7(a)(2), because the lawyer's financial interest in the agency creates a significant risk that the representation will be materially limited. The committee concluded that this conflict can be avoided only where the lawyer's functions for the title agency are purely ministerial and involve no negotiation on behalf of the underwriter.
On imputation, the committee identified that under Rule 1.10(a) as amended effective January 1, 2025, a conflict grounded in a lawyer's financial or otherwise personal interest is not automatically imputed to the entire firm; instead, imputation turns on whether there is a significant risk that the representation will be materially limited or that the independent professional judgment of the participating lawyers in the firm will be adversely affected.
In practice
Under this opinion, the dual role of representing the client and acting as the underwriter's agent in the same real estate transaction is prohibited where the owner-lawyer does more than purely ministerial work for the title agency or negotiates for the underwriter. Per the opinion, whether other lawyers in the firm may handle the matter depends on the amended Rule 1.10(a) analysis of material limitation, not on automatic imputation.
Common questions
Q: Did the 2014 Insurance Law provision permitting attorneys to act as title agents change the analysis?
A: Per the opinion, the committee reaffirmed its prior conclusion that the simultaneous roles present a conflict under the Rules, and treated the statutory permission as subject to the lawyer's separate obligations under the Rules of Professional Conduct.
Q: Is there any way for the owner-lawyer to be involved with the title agency in the deal?
A: Per the opinion, only if the lawyer's functions for the title agency are purely ministerial and the lawyer does not negotiate on behalf of the underwriter.
Q: Is the conflict automatically imputed to everyone in the firm?
A: Per the opinion, no, not automatically. Under Rule 1.10(a) as amended effective January 1, 2025, imputation of a financial or personal-interest conflict depends on whether there is a significant risk that the representation will be materially limited.
Background and rules framework
The opinion interprets New York Rule 1.7(a)(2) (a conflict where there is a significant risk the representation will be materially limited by the lawyer's own financial or personal interests), Rule 1.8(a) (business transactions with a client), and Rule 1.10(a) (imputation of conflicts), as amended effective January 1, 2025. These correspond to ABA Model Rules 1.7, 1.8, and 1.10. The opinion also addresses New York Insurance Law section 2113(e).
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.7(a)(2), 1.8(a), 1.10(a) (amended eff. Jan. 1, 2025)
Statutes:
- New York Insurance Law section 2113(e)
See also
- NYSBA Ethics Op. 1285: Imputation of Conflicts in Assigned-Counsel Work
- LACBA Ethics Op. 477: Dual-Profession Attorney Referrals to His Own Clinic
- LACBA Ethics Op. 461: Division of Fees With a Non-Lawyer Property Management Firm