Serving two masters is a widely accepted legal practice in Maryland and the District when it comes to lawyers being paid to represent both the buyer of a new home and the insurance company selling a policy to guarantee a clear title on the property.
But, just across the state line, the practice is shunned by the Virginia State Bar Ethics Committee as a conflict of interest. Other states and some lawyers in the District and Maryland call the practice inappropriate.
When serving two parties, the attorneys are being paid several hundred dollars by homebuyers for checking on any problems with the title and for handling the closing, while at the same time being paid commissions by title insurance companies for serving as their agents. The commissions can be as high as 70 percent of the premium, which generally is several hundred dollars, title companies said.
The practice is not prohibited by the disciplinary rules of the District of Columbia court of appeals if the attorney discloses to his client the relationship he has to the title insurance company and gets his client's consent. The Maryland State Bar Ethics Committee also does not consider the practice unethical, but has never specifically addressed the question of whether the dual relationship must be disclosed to an attorney's client.
Nonetheless, several attorneys in the area argue that whether the practice is technically "ethical" or not, an attorney representing both a homebuyer and a title insurance company in the same transaction cannot advise his client objectively.
"I don't know about the ethics of it, but I just want to represent the buyer," said Douglas M. Bregman, a Bethesda settlement lawyer, who says that it is a "commonly accepted thing" in the Washington area for attorneys to represent home buyers while serving as agents for title insurance firms.
"I want to be able to objectively give the buyer the pros and cons of buying title insurance without being the one selling the title insurance," Bregman said. "How can you be objective about this when you have a vested interest in it?"
John E. Scheuermann, an attorney with Smink and Scheuermann in the District, agrees.
"There is probably nothing technically or ethically wrong with it," Scheuermann said. "But would I do it? No. If I represent a client, I don't like there even to be a hint that there is a conflict of interest -- that I'm steering a client to something or other."
"It may not be a disciplinary offense," Scheuermann said. "It's just not something that I personally would feel comfortable doing."
Bregman said that he asks another lawyer who is licensed to sell title insurance to be present at settlement. "So when the client turns to me and asks me what I think, I can talk about it without being personally employed by the insurance company to sell the insurance," he said.
"It seems to me that there has to be some subtle feeling on the part of some lawyers that, if they tell their client not to buy title insurance, they are cutting themselves out of some fee or commission," Bregman said.
Some title insurance companies have approached Bregman with offers of commissions for title insurance referrals. "One started at 40 or 50 percent," Bregman said. "When I said no, they went up to 60 percent and then 70 percent. I wasn't even negotiating."
The Maryland State Bar Ethics Committee issued a specific opinion two years ago stating that "it is not a violation of the Canons of Ethics" for an "attorney to handle real estate closings for a bank, and, in the same transaction, place title insurance with a company, which will pay him a percentage of the title insurance premiums as compensation for his functioning as a title insurance agent."
However, the Virginia State Bar Ethics Committee has found that the practice constitutes a conflict of interest, according to Harry Hirsch, assistant bar counsel at the Virginia State Bar.
The North Carolina State Bar Ethics Committee also specifically prohibits the practice of attorneys serving both a home buyer and a title insurance company at the same time, whether they disclose their relationship with the title company or not.
"We don't permit it," said Bobby James, executive director of the North Carolina State Bar. The bar issued an opinion in 1977 that prohibits lawyers and others performing services connected to a real estate settlement or sale from receiving, directly or indirectly, a "kickback, rebate, commission or other payment in connection with the issuance of title insurance for any real property which is a part of such settlement or sale."
Area attorneys who both represent home buyer clients and serve as agents for title insurance companies defend the practice as ethical as long as the information is disclosed to the client.
But recent area home buyers are skeptical about whether disclosure of the attorney/title insurance agent relationship makes the practice any more ethical.
"Even if the relationship is disclosed, there is a conflict of interest, and the attorney is no longer objective," said William Corr, a Capitol Hill attorney who recently bought a house in Northern Virginia. "From a consumer perspective, what you're buying with the attorney is someone who is only going to be concerned about your welfare and advise you about your interest throughout the purchase.
"If my attorney has a relationship with a title insurance company and gets a commission, it may or may not be the best title insurance company," said Corr. "And then, after he discloses the relationship, I would have the additional responsibility in the middle of the settlement of checking out the title insurance companies to see which is best."
Commissions for title insurance agents, who also are attorneys consummating a real estate deal, range from 50 to 70 percent, according to Bernard Goldberg, local manager of Lawyers Title Insurance Corp.
"That's outrageous," said Joseph Sellers, a D.C. attorney who just bought a home in the District.
"Upon the recommendation of our lawyer, we took out title insurance with the company associated with her law firm," said Sellers, who explained that his attorney worked for a law firm that was affiliated with a title insurance company. "We have no reason to believe otherwise, but would be somewhat troubled to discover that the attorney had some personal financial interest in making that recommendation."
Sellers and Corr argued that home buyers are so overwhelmed by the purchase price of a home today that they depend on their lawyers to help them shop competitively for the intermediate costs associated with a settlement.
"If anything, I would hope that a lawyer representing me would help me identify the settlement costs where I could shop around for a competitive rate," Sellers said.
"You're at a very vulnerable time," Corr said. "You have a million things going on, and you expect the attorney you hire to only be concerned about your best interests and place the title insurance with a company that has a good reputation and is financially sound."