Using Title Insurance to Avoid Malpractice and Protect Clients in a Changing Marketplace

Abstract

The residential real estate market has changed dramatically in the past few years. The changes in this market are having an impact on many lawyers who are finding it increasingly difficult to remain involved in the residential end of the business. Many are finding it increasingly difficult to provide professional counseling in a residential transaction because of competitive pressure from low cost, non-lawyer, service providers. At the same time, these attorneys are discovering that changing market conditions are revising the standard of professional care for residential transactions, and making fee title insurance the norm for avoiding claims of malpractice.

At the outset, it is important to remember that as lawyers we are not immune from the marketplace. The law, legal institutions, and each of us, as practicing lawyers, need to be aware of the ways in which market forces influence and shape our profession. We must respond to and address these changes or we will quickly find that we are outdated, that we have fewer clients, less revenue, and more liability. More importantly, we will soon discover that we are failing to meet the needs of our clients who are operating in a dynamic and market driven world. To the extent that we fail to adjust to changing market conditions we will find more and more accounting firms, real estate brokers, title companies, and escrow agents, among others, taking over the transactions that have traditionally been within our professional domain. And, we will likely see a decline in the quality of legal advice to the individual client, as lawyers are pushed further and further away from the transaction.

Lawyers must also respond to changing market conditions to avoid malpractice. Just as medical doctors and automobile manufacturers need to adjust their standards and practices overtime, so too lawyers must make similar changes.

In this paper, I address some of these market changes and explain how title insurance can be used as one important tool for enhancing and protecting our role in the residential real estate transaction, while simultaneously helping our clients. I also emphasize my professional view that as a result of market changes, a lawyer commits malpractice in failing to obtain fee owner's title insurance for a residential homebuyer.

Keywords: real property, title insurance, malpractice