Can a lawyer provide a title opinion for a loan a bank closes itself, without the lawyer present at closing?

Plain-English summary

A banker asked an attorney to provide a title opinion and legal description for a second mortgage loan or equity line that the banker would close in his own office, with the attorney not present at the closing. The bank usually paid the attorney's fee as part of a "no closing costs" loan. The inquiry raised three questions: whether the bank's conduct was the unauthorized practice of law; whether the attorney would be acting unethically by participating in it; and whether a prior decision (the "Buyer's Service" case) applied only to first-mortgage closings.

The committee declined to answer the first and third questions, explaining that whether the bank's activity is the unauthorized practice of law, and the scope of the Buyer's Service decision, are questions of law for the South Carolina Supreme Court, which it directed should be addressed in accordance with that Court's 1992 opinion In Re Unauthorized Practice of Law. On the second question, the committee concluded that under Rule 5.5(b), which concerns the unauthorized practice of law, it would be unethical for an attorney to assist a person who is not a lawyer in performing an activity that constitutes the unauthorized practice of law.

Currency note

This opinion was issued in 2000, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer help a bank close a loan the lawyer is not present for?

A: The committee concluded that under Rule 5.5(b) it would be unethical for the attorney to assist a non-lawyer in performing an activity that constitutes the unauthorized practice of law; whether the bank's specific conduct crosses that line is a legal question for the courts.

Q: Did the committee decide whether the bank was practicing law without a license?

A: No. The committee declined that question as a matter of law, directing it to the South Carolina Supreme Court under that Court's 1992 In Re Unauthorized Practice of Law opinion.

Background and rules framework

The opinion interpreted South Carolina RPC 5.5(b) (assisting a person who is not a lawyer in activity that constitutes the unauthorized practice of law), corresponding to Model Rule 5.5. The committee treated the underlying question of what conduct is the unauthorized practice of law as a legal question reserved to the South Carolina Supreme Court, citing In Re Unauthorized Practice of Law (S.C. 1992).

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 5.5(b) / Model Rule 5.5: assisting the unauthorized practice of law.

Cases:

• In Re Unauthorized Practice of Law (S.C. 1992), cited as the framework for unauthorized-practice questions.

See also

• SC Bar Ethics Op. 00-01: Seller- or Lender-Paid Closing Counsel

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-00-03/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 00-03

Banker asks attorney to provide a title opinion and legal description for a second mortgage loan or equity line to be closed by banker in his office. The attorney will not be present at closing. The bank usually pays the attorney's fee as part of a "no closing costs" loan.

Questions and Opinions:

Question 1.
Is this the unauthorized practice of law by the Bank?

Opinion 1.
The Committee declines to answer this question, as it is a question of law, and should be addressed to the South Carolina Supreme Court in accordance with that Court's 1992 opinion, In Re Unauthorized Practice of Law.

Question 2.
Is the attorney committing an unethical practice by cooperating or participating in the unauthorized practice of law?

Opinion 2.
Pursuant to Rule 5.5(b) concerning the unauthorized practice of law, it would be unethical for attorneys to assist a person who is not a lawyer in the performance of an activity which constitutes the unauthorized practice of law.

Question 3.
Does the Buyer's Service case pertain only to first mortgage closings?

Opinion 3.
The Committee declines to answer this question as it is a matter of law to be determined by the courts of the state of South Carolina.