Can a lawyer limit liability to a client for a title opinion that relies on abstracting work done by non-lawyers?

Currency note

This opinion was issued in 1989 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.8(h) on limiting malpractice liability) before relying on any specific rule mentioned here.

Plain-English summary

The request asked whether it was ethically possible to limit a lawyer's liability when the lawyer prepares title opinions based on abstracting services done by non-lawyers. The Board noted there were legal issues in the request it was not authorized to address and confined itself to the ethical question.

On that question, the Board applied DR 6-102, which provides that lawyers may not attempt to exonerate themselves from, or limit, their liability to clients for their personal malpractice. It concluded that lawyers may not limit liability to clients even where there appear to be special circumstances, such as the use of abstracting services for preparing title opinions, and that any exception to the absolute prohibition in DR 6-102 would have to be established by the Ohio Supreme Court or another court, not by the Board through an advisory opinion. Noting an argument that a lawyer who conducts the client's affairs properly need not attempt to limit liability (citing a Maine opinion and EC 6-6), the Board found that argument in keeping with the intent of DR 6-102 and concluded that a lawyer's liability may not be limited even when the services of an outside agency are involved.

Common questions

Q: Can a lawyer cap liability for a title opinion that relied on a non-lawyer abstractor?

A: Under this opinion, no. The Board concluded that DR 6-102 bars limiting liability for the lawyer's own malpractice, with no exception for using outside abstracting services.

Q: Could special circumstances justify an exception?

A: The Board concluded that any exception to the absolute prohibition of DR 6-102 would have to come from the Ohio Supreme Court or another court, not from the Board in an advisory opinion.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility, DR 6-102 (a lawyer may not attempt to limit liability to a client for personal malpractice), together with EC 6-6. The Board limited itself to the ethics question and did not address the related legal issues.

Citations and references

Rules of Professional Responsibility (Ohio):

• Former Code of Professional Responsibility, DR 6-102, no limiting liability for personal malpractice
• Former Code of Professional Responsibility, EC 6-6

Other opinions cited:

• Maine Opinion No. 80-26 (1980): a lawyer who conducts client affairs properly need not limit liability

See also

• Ohio BPC Opinion 1988-031: No Fee Where No Services Are Performed
• Ohio BPC Opinion 1989-011: Non-Lawyer Employee Signing on Firm Letterhead

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-012.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 89-12
Issued April 14, 1989

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: A lawyer may not limit his or her liability when rendering title opinions based on abstracting services done by individuals who are not lawyers.

OPINION: We have before us your request that we prepare an opinion as to whether it is ethically possible to limit a lawyer's liability when he or she prepares title opinions based on abstracting services done by individuals who are not lawyers. There are legal issues associated with your request that we are not authorized to address.

With regard to the ethical matters in your request, DR 6-102 provides that lawyers may not attempt to exonerate themselves from or limit their liability to their clients for their personal malpractice. Lawyers may not limit their liability to clients even when there appear to be special circumstances, such as the use of abstracting services for the preparation of title opinions. Any exception to the absolute prohibition under DR 6-102 would have to be established by the Ohio Supreme Court or other court of law and not by this Board in the form of an advisory opinion.

The argument has been made with regard to limiting lawyers' liability in the issuance of real estate opinions that a lawyer who conducts his clients' affairs properly need not attempt to limit his liability. Maine Opinion No. 80-26 (1980), Code of Professional Responsibility EC 6-6. This argument is in keeping with the intent of DR 6-102. It is our opinion that a lawyer's liability may not be limited even when the services of an outside agency are involved.

In conclusion, it is our opinion and you are so advised that an attorney may not limit his liability when rendering title opinions based on abstracting services done by individuals who are not lawyers.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.