Quick question if someone could point me in the right direction - I'm looking for information relating to West Virginia and the issue of whether conducting title searches constitutes the unlawful practice of law. Specifically, I have read material detailing that the courts decided that only a licensed attorney could perform these searches and/or an individual working directly with such an attorney. My question is this - if conducting title searches without a license to practice law is illegal, how are title brokers, etc. who use independent contractors in compliance? Any information would be very much appreciated.
-West Virginia State Bar, Committee on Unlawful Practice of Law –
Advisory Opinion 2007-01
ARE LAND MEN PRACTICING LAW?
The answer to the question of whether any of a landmen' s traditional work involves the practice of law seems self-evident if the issue is presented as a question about the activity of others doing the same work as landmen, but without the deference traditionally given to landmen. Assume that a non-lawyer was:
(I) interpreting documents found in a title search:
(2) locating heirs AND having them sign quit claim deeds and leases;
(3) offering advice to Landowners and mineral rights owners of their legal ownership interest and the meaning of contract language;
(4) preparing operating agreements and similar contracts to be executed by other parties;
We do not have a specific complaint before us. Therefore no finding is made that a specific Landman is practicing law. However, the work of a Landmen is neither exempted or excepted from the West Virginia definition of the practice of law. Until the issue is addressed by the West Virginia Legislature, it is the recommendation of the Unlawful Practice Committee that Landmen perform the work, that seems to fit within the prohibition against the unauthorized practice of law, only under the direct supervision and control of an attorney licensed to practice law in West Virginia.
-Stipulation and Agreed Order entered on March 31, 2010 in the case of McMahon v.
Advanced Title Services, Brooke County WV Circuit, CA No. 01-C-121
Exhibit A to the McMahon case states as follows:
(1) Is a lay person not under the direct supervision or control of an attorney licensed to practice law in the State of West Virginia engaged in the unlawful practice of law when performing a title examination, search, review or inspection of records, and providing any certificate, notes (handwritten or otherwise), abstract, summary, opinion, guarantee, verbal verification and/or report of any kind or nature as to the status or marketability of real estate title and/or reflecting matters of record?
(5) Is a lay person not under the direct supervision or control of an attorney licensed to practice law in the State of West Virginia engaged in the unlawful practice of law by mailing or hand-carrying instruments to the courthouse after the real estate closing for recording when the recordation of instruments takes place as part of a real estate transaction?
Advisory Opinion 2010-002 (Amended)
Though individuals have the right to represent themselves, there is no right to represent another in legal matters unless the person seeking to represent that person is a licensed attorney at law. The West Virginia Supreme Court has the inherent power to define the practice of law in this State, and this committee acts as its agent. Prior opinions of this committee have clearly indicated that the activity of conducting a real estate title examination and real estate closing are the practice of law and cannot be conducted by a lay person unless (1) that person is under the direct supervision and control of a licensed lawyer, or (2) the lay person conducts such activities on behalf of his regular employer as set forth herein. An examination of the complaints before the committee over the last several years has demonstrated an alarmingly wide disparity in the degree of such supervision and control of persons engaged in these activities.
By Order of the Supreme Court of Appeals of West Virginia entered November 17, 2010 (Case No. 101027) and modified by Order entered January 27, 2011, the Court refused the petition for appeal and, in the modification Order, further found that the findings of the Circuit Court of Brooke County were "plainly right".
Question 1 from Letter dated August 7, 2014 from the West Virginia State Bar to M. Shawn Lundy, Penn Stuart Law Firm, concerning UPL Questions:
QUESTION: If the client has documentation in its possession which may or may not have been compiled by an attorney or under the supervision of any attorney, but certainly not compiled by myself or my firm, can I review the documentation and give an opinion on the documentation provided by the client with appropriate disclosure. Would the answer change if I am certain the documentation was prepared for the client (but not by my office) in violation of the UPL guidelines?
ANSWER: The McMahon case clearly indicates that title examinations must be conducted by the attorney or another "under the direct supervision and control" of the attorney. The question posed seems to indicate that though there is some attorney involvement, there is not a direct relationship between the attorney giving the ultimate title opinion and those who are actually conducting the field investigation. It is the opinion of the Committee that a disclaimer or disclosure would do nothing but encourage the unlawful practice of law by those conducting the search or generating the documentation as described.
Question 2 from the Letter dated August 7, 2014 from the West Virginia State Bar to M. Shawn Lundy, Penn Stuart Law Firm, concerning UPL Questions:
Are there any nuances or differences in the UPL guidelines for land agents or title searchers/abstractors who are employees of a company? In other words, can an employee of the company compile title information for my review? If so, what disclosures/limitations am I allowed to make in my opinion?
ANSWER: If the examination and opinions are for internal use OF THE COMPANY only then this is similar to self-representation. However, if the "Company" is actually engaged in abstracting and the employees of that company are under the "direct supervision and control" of the Company owners and not the attorney, AND if the abstracts etc. are submitted to others as a statement of title or lien status, this is not "direct supervision and control". See also UPL opinion 2007-I as a cautionary note.
Question 3 from the Letter dated August 7, 2014 from the West Virginia State Bar to M. Shawn Lundy, Penn Stuart Law Firm, concerning UPL Questions:QUESTION: Lastly, I understand I have to supervise anyone that is independent from me and conducting title research upon which I may give an opinion, but is there a rule or definition as to exactly how much/what kind of supervision is required?
ANSWER: This is an open issue. The Committee considered some time ago proposed guidelines, but declined to implement them based, in part, on the recognition that this would be more of a disciplinary committee issue. However, in UPL 2010-002 (Amended) the Committee reserved the right to review matters not judicially resolved in McMahon, including a precise definition for what would be considered "reasonable directs[sic] supervision and control" of lay persons. The Committee has previously determined that distance may, in and of itself, constitute a lack of supervision and control depending on the circumstances. However, simply having the person being supervised within close proximity does not ensure that proper supervision is being conducted.