96 N.J.L.J. 1239
October 25, 1973
Intermediaries - Unauthorized
Practice Reviewing Deeds for Realtors
Our advisory opinion is sought concerning the propriety of a procedure set forth in the following inquiry.
The question involved deals with the propriety of reviewing a deed which has been typed out by the secretary for the real estate agent, upon the conclusion of which I approve the deed and type on the deed "Prepared By (name of our firm)." The deed is then returned to the agent whereupon it is delivered to the title company at settlement. Payment for the review services is paid directly by the real estate agent and not by the seller.
We are informed that the deed is a "Standard New Jersey Special Warranty Deed form"; that the information is taken from the title report and the deed and the title report are submitted to the inquirer for review; that, assuming the deed is in proper order, the name of the law firm is typed thereon preceded by the words "Prepared By" and then returned to the real estate agent; and that there is no direct contact with the seller.
The question brings under consideration DR 5-107(B) and DR 3- 101(A) of the Code of Professional Responsibility dealing with intermediaries and aiding a non-lawyer in the unauthorized practice of law. The Canons of Professional Ethics, Canon 35 and Canon 47, now superseded by the Disciplinary Rates of the Code of Professional Responsibility, contained similar provisions. These ethical problems are discussed in Wise, Legal Ethics 207-228 (2d ed.
1970). Mr. Wise, in his summary, beginning on page 226 says in part, the following:
The relationship between attorney and client should come about without direct or indirect solicitation or advertising on the part of the attorney. It results most properly from recommendation or personal acquaintance. Once established, it should be a confidential relation of undivided loyalty.
No intermediary should intervene. A fortiori the intervener should not exploit the attorney's services to enable the intervening entity to engage in unauthorized practice.
In some cases, the intermediary calls upon the lawyer to aid it in performing services it cannot legally perform, such as the real estate broker who has the lawyer make out legal documents for specific transactions, which the broker uses to "close" a deal. The aid takes more subtle forms, as in the case of the attorney who permits a bank to use his name as an attorney in "ads" soliciting legal work to be done by the bank, or the lawyer-trust officer who displays his legal diplomas or certificates in his office in the bank.
A question similar to the one propounded here was the subject matter of an informal decision by the A.B.A. Comm. on Professional Ethics, Opinion 508 (1962).
In that case the inquirer asked:
whether or not it is proper for an attorney, in connection with real estate transactions, to prepare deeds, contracts and mortgages for a real estate broker or title insurance company when the information pertaining thereto is forwarded by the latter with the request that the attorney prepare and return the appropriate legal documents for execution by the parties.