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FEE ATTORNEYS FIDUCIARY DUTIES & CONFLICTS …

FEE ATTORNEYS . FIDUCIARY DUTIES & CONFLICTS OF INTEREST. BRADFORD W. IRELAN. OF. IRELAN McDANIEL, ATTORNEYS AT LAW. 440 LOUISIANA STREET, SUITE 1800. HOUSTON, TEXAS 77002. Tel: (713) 222-7666. Fax: (713) 222-7669. State Bar of Texas TH. 24 ANNUAL ROBERT C. SNEED. TEXAS LAND TITLE INSTITUTE. December 4-5, 2014. San Antonio, Texas Special thanks go to Debra Hovnatanian, an associate at Irelan McDaniel, PLLC, who contributed extensively to this paper. BRADFORD W. IRELAN. Irelan McDaniel, PLLC. 440 Louisiana, Suite 1800. Houston, Texas 77002. (713) 222-7666. FAX: (713) 222-7669.

fee attorneys fiduciary duties & conflicts of interest bradford w. irelan of irelan mcdaniel, p.l.l.c. attorneys at law 440 louisiana street, suite 1800

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Transcription of FEE ATTORNEYS FIDUCIARY DUTIES & CONFLICTS …

1 FEE ATTORNEYS . FIDUCIARY DUTIES & CONFLICTS OF INTEREST. BRADFORD W. IRELAN. OF. IRELAN McDANIEL, ATTORNEYS AT LAW. 440 LOUISIANA STREET, SUITE 1800. HOUSTON, TEXAS 77002. Tel: (713) 222-7666. Fax: (713) 222-7669. State Bar of Texas TH. 24 ANNUAL ROBERT C. SNEED. TEXAS LAND TITLE INSTITUTE. December 4-5, 2014. San Antonio, Texas Special thanks go to Debra Hovnatanian, an associate at Irelan McDaniel, PLLC, who contributed extensively to this paper. BRADFORD W. IRELAN. Irelan McDaniel, PLLC. 440 Louisiana, Suite 1800. Houston, Texas 77002. (713) 222-7666. FAX: (713) 222-7669.

2 PROFESSIONAL HIGHLIGHTS. o 2008-14, Mr. Irelan has been recognized as a SuperLawyer by Texas Lawyer o 2010-14, Mr. Irelan was voted a Top attorney in Texas Civil Litigation Defense o AV Peer Review Rating with Martindale-Hubbell (highest rating for ethics and ability). o Texas Department of Insurance certified continuing education provider BOARD CERTIFICATIONS (Texas Board of Legal Specialization). o Civil Trial Law o Residential Real Estate Law EDUCATION. o JD, 1986, George Washington University Law School o BA, 1983, Magna Cum Laude, University of Tennessee BAR ADMISSIONS.

3 O All Texas State Courts o District Court for the Southern District of Texas o District Court for the Northern District of Texas o District Court for the Western District of Texas o District Court for the Eastern District of Texas o Fifth Circuit Court of Appeals o United States Supreme Court MEMBER. o State Bar of Texas (since November 7, 1986). o Houston Bar Association, Member, Litigation and Real Estate Sections o Houston Bar Foundation, Life Fellow o Texas Land Title Association, Member Judiciary Committee, Texas Land Title Association (2006-10, 2011, Chairman). Legal Issues Committee, Texas Land Title Association (2009-11).

4 Institute Committee, Texas Land Title Association (2009-11, 2014). o American Land Title Association, Member OTHER PROFESSIONAL DISTINCTIONS. George Washington School of Law Alumni Board of Directors Executive Committee, 2010. President-Elect, 2011. President, 2012-13. President Emeritus, 2014. who are not ATTORNEYS must be licensed by TDI. In I. HISTORY OF THE FEE attorney contrast, ATTORNEYS can close transactions without being licensed as an escrow officer. When an attorney Title insurance has existed for only a little more than a is a licensed escrow officer, the attorney may use the century.

5 Jacobus & Ellis, Texas Title Insurance 2:16 name of the title company in his law practice and have (Thompson Reuters Westlaw 2013-14 ed.). In the days employees who are licensed escrow officers. Licensed before title insurance, licensed ATTORNEYS handled title escrow officers, whether attorney or bona fide transfers, and researched and rendered opinions on the employees of ATTORNEYS , must be appointed by a title status of title. Id. Today, title insurance issues in the company. vast majority of real estate transactions in Texas. Title insurance underwriters stand behind title policies, and With permission of a title insurance agent, a lawyer authorize title insurance agents to conduct may close transactions without being an escrow investigation of title and supervise the closing of officer and receive a fee from a title agent or direct transactions.

6 The Texas legislature recognized, operation. The payment of lawyers who do not have however, that in some areas of Texas, there were not an escrow officer's license is regulated by Section IV, enough real estate transactions to justify the operation Procedural Rule P-22. P-22 prohibits payment for of an abstract plant by a title company. For that closing or title examination to anyone who is not a reason, ATTORNEYS remain authorized under the Texas bona fide employee of a direct operation, agent, or Title Insurance Act to participate in real estate escrow officer, with certain exceptions.

7 Those closings in a number of ways, including: (1) represent exceptions include ATTORNEYS who perform closing or parties to the closing (but not performing the closing), title examination services. P-22 requires that the fee (2) close title transactions on behalf of the title paid to ATTORNEYS be disclosed on form T-00, that the company; and (3) own title companies or agencies that attorney actually perform services, that a schedule of close transactions. fees be filed with the title company in advance, that all premiums be remitted to the title company, and that In the past, fee ATTORNEYS contracted directly with title the attorney charge no fee for referring business to a underwriters, and sometimes they still do.

8 More title company. common now, however, title agents open fee attorney offices in several locations. Further, many title agents When an attorney is a licensed escrow officer and with fee attorney offices close transactions for a chooses to use the name of a title company in his variety of title insurance companies. practice, the operation is known as a fee office. It is not unusual for a fee office to have a number of This article surveys federal and state laws which licensed escrow officers who are not lawyers. In impact fee ATTORNEYS and discusses a fee attorney 's general, fee offices are established with an agreement FIDUCIARY DUTIES , contractual and ethical obligations, between a title agent or direct operation and a lawyer and practical considerations.

9 Or law firm. II. FEE ATTORNEYS AND FEE OFFICES III. LEGAL AUTHORITY THAT GOVERNS. FEE ATTORNEYS . Today, a fee attorney refers to a lawyer who has Several statutes, codes and disciplinary rules impact entered into a contractual relationship with a title fee attorney practice in Texas, including Section insurance company, or an agent of a title insurance of the Texas Insurance Code, its federal company, to close real estate transactions on its behalf counter-part Section 8 of the Real Estate Settlement in exchange for a portion of the title premium. See Procedures Act of 1974 ("RESPA") (12.)

10 Commonwealth Land Title Co. v. Nelson, 889 2607), and Procedural Rule P-22, Procedural Rule P- 312, 314 (Tex. App. Houston [14th Dist.] 1994, 56, and Form T-00 of the Basic Manual for the writ denied). The Texas Department of Insurance Writing of Title Insurance in the State of Texas, as establishes the title insurance premium, and it must be promulgated by the Texas Department of Insurance charged as promulgated. (the Manual ). Like fee ATTORNEYS , escrow officers are individuals A. Texas Insurance Code who are entitled to close transactions on behalf of title companies.


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