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IT IS NOT PER SE UNETHICAL FOR AN ATTORNEY WHO EXAMINES TITLES FOR A SAVINGS
AND LOAN ASSOCIATION TO HANDLE THE CORRECTIVE WORK REQUIRED BY HIS TITLE
OPINION AND CHARGE THE SELLER FOR SUCH CORRECTIVE WORK PROVIDED THE SELLER
HAS REQUESTED HIM TO PROVIDE SUCH SERVICES EITHER DIRECTLY OR THROUGH
THE ASSOCIATION, SINCE THIS IS A MATTER OF CONTRACT LAW RATHER THAN ETHICS.
THE PARTICULAR FACTUAL SITUATION MAY BRING OTHER ETHICAL CONSIDERATIONS
INTO PLAY, HOWEVER, SUCH AS CONFLICTS OF INTEREST OR REPRESENTING SOMEONE
ALREADY REPRESENTED BY COUNSEL AS POSSIBLY MIGHT BE THE CASE IN OBTAINING
A RELEASE OF A CHILD SUPPORT LIEN.
QUESTION
In your letter you asked for an opinion as to whether you could charge
a fee to the seller of real estate for corrective title work performed
by you under the following circumstances:
You are employed by a savings and loan association to examine the title
to real estate for the association (presumably in connection with loans
to buyers); occasionally corrective title work is required such as the
obtaining of an inheritance tax determination, the release of a child
support lien, the obtaining of affidavits or corrective deeds, etc.
You report
that you "have no contract relation with anyone except the association"
and ask if you can "exact from such party for whom the work is done
a reasonable fee."
For purposes of this opinion, we are assuming that the words "such
party for whom the work was done" are intended to refer to the seller
and not to the savings and loan association.
DISCUSSION
If in fact you have no contract relation with the seller you have no
enforceable claim against him for a fee. This is simply a matter of
contract law. As pointed out in Formal Opinion No. 5 of the American
Bar Association:
"An attorney can seek compensation for his services only from those
who employ him."
If, however, the seller requests that you do the work, you would have
a contract with him for the performance of the work and would be entitled
to compensation for those services. The seller could make this request
directly to you, through the association or through some other agency.
The matter of the release of child support liens presents a special problem.
Such liens arise out of court proceedings in which the parties are or
have been represented by counsel. Ethical Consideration 2-30 states:
"If a lawyer knows a client has previously obtained counsel, he should
not accept employment in the matter unless the other counsel approves
or withdraws, or the client terminates the prior employment."
There could also be conflict of interest and practical considerations
involved, depending upon the facts of the particular situation.
CONCLUSION
Your question as stated does not present an ethical issue. As a matter
of contract law, a lawyer cannot ordinarily recover compensation for
services from one who has not employed him.
76-6, June 30, 1976
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