Is it unethical for a lawyer to give a bank a copy of a legal description from the lawyer's file for a no-title-work mortgage?

Plain-English summary

A banker asked an attorney to provide only a legal description, with no title opinion, for which the attorney received no fee or a minimal copy-service fee. The attorney had closed a previous transaction for the borrower and already had the legal description in his file. The banker closed a "Blind Mortgage" or "Tax-Smart Mortgage," recording the mortgage against the borrower's home with no title work so as to make the loan interest tax deductible. The questions asked whether the bank's conduct was the unauthorized practice of law and whether the attorney acted unethically by providing copies of public documents already in his files.

The committee declined to decide whether the bank's activity was the unauthorized practice of law, directing that question to the South Carolina Supreme Court under that Court's 1992 opinion In Re Unauthorized Practice of Law. On the second question, it concluded that merely providing a copy of a public record to a requesting party, absent anything further, is not unethical. The committee added the caveat that, to the extent the question inherently inquired into the unauthorized practice of law, it could not opine, because that too is a question of law for the South Carolina Supreme Court under the same 1992 decision.

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 Treat this page as historical context, not current guidance.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: Is it unethical to give a bank a copy of a legal description already in the lawyer's file?

A: The committee concluded that merely providing a copy of a public record to a requesting party, absent anything further, is not unethical.

Q: Did the committee say whether the bank's no-title-work closing is the unauthorized practice of law?

A: No. The committee declined that question and any part of the inquiry that turned on it, treating the unauthorized-practice line as a question of law for the South Carolina Supreme Court.

Background and rules framework

The opinion addressed the line between permissibly providing a copy of a public record and impermissibly assisting the unauthorized practice of law under South Carolina RPC 5.5 (Model Rule 5.5). The committee reserved the underlying unauthorized-practice question 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 / Model Rule 5.5: unauthorized practice of law; assisting non-lawyers.

Cases:

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

See also

• SC Bar Ethics Op. 00-03: Lawyer Aiding a Bank Closing
• 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-00-04/

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 00-04

Banker asks attorney to provide only a legal description with no title opinion. Attorney receives no fee or minimal fee for copy services only. Attorney has closed a previous transaction for the borrower and has a legal description in his file. Banker closes a "Blind Mortgage" or "Tax-Smart Mortgage," which means he records the mortgage against the borrower's home with no title work in order to the make the interest on the loan tax deductible.

Questions and Opinions:

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

Opinion 1.
This 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 providing copies of public documents already existing in his files?

Opinion 2.
It is the Committee's opinion that merely providing a copy of a public record to a requesting party, absent anything further, is not unethical. However, to the extent where this question inherently makes inquiry into the unauthorized practice of law, this Committee is unable to render an opinion, as such inquiry 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.