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OBA Ethics Counsel

Ethics Opinion No. 290

Adopted October 29, 1976

THIS OPINION REPLACES LEGAL ETHICS OPINION NO. 281 WHICH IS HEREBY WITHDRAWN.

SYLLABUS

An attorney may recommend to his client the purchase of title insurance, and thereafter act as both title examiner and agent for the title insurance company in a real estate transaction or a loan transaction, so long as the attorney makes full disclosure to his client of the details of the transaction, including the financial remuneration to be received by the attorney from the title insurance company and the restrictions on his ability to represent either of the parties should a claim arise, and does not violate any of the disciplinary rules of the Canons of Professional Responsibility.

OBA Ethics Opinion No. 281, 45 Okla.Bar J. 2173 (9/28/74), revoked, insofar as it prohibits an attorney from acting as an agent for a title insurance company in a transaction involving his client.

OPINION

OBA Ethics Opinion No. 281, adopted by the Board of Governors at its meeting held on September 21, 1974, appearing at 45 Okla.Bar J. 2173 (9/28/74), held that an attorney may not act as an agent for a title insurance company in the placement of insurance covering the title to property purchased by the attorney's client. Commencing immediately after the promulgation of this opinion and continuing until the present time, expressions of disagreement and requests for reconsideration were received from a number of members of the Bar. It was pointed out that such opinion was contrary to Formal Opinion No. 331 of the American Bar Association Standing Committee on Professional Ethics and Responsibility (ABA Committee) dated December 15, 1972.

The Board of Governors ultimately appointed a Special Committee to consider this matter, which Committee recommended that the position of the ABA Committee should be adopted in lieu of that expressed in OBA Opinion No. 281. Essentially, the Special Committee concluded that under DR 5-101(A) and 5-104(A), so long as there was full disclosure to the client both of any compensation to be received by the lawyer from the title insurance company, and that in the event of a claim, the lawyer could be disqualified from representation of both the client and the title insurance company, there should be no prohibition against the lawyer both representing his client in a real estate transaction and acting as agent for a title insurance company in connection with the same transaction.

Therefore, the holding of ABA Opinion No. 331, as summarized and modified in the syllabus set out at the inception of this Opinion, is hereby adopted, and OBA Opinion 281 revoked.

However, any lawyers acting as agents for title insurance companies should be aware of the caveat set out in OBA Opinions 274, 44 Okla.Bar J. 2157 (6/23/73), and 276, 45 Okla.Bar J. 560 (2/22/74), pointing out that a lawyer engaged in a law-related occupation (which we hold the sale of title insurance to be) must conform to the Code of Professional Responsibility in the conduct of such other occupation. This would govern such activities as solicitation, advertising, reasonableness of compensation and other matters.