The Ethics Advisory Committee has been asked whether a commissioner may issue title insurance through Attorneys Title and, if so, whether the commissioner may issue the insurance in conjunction with an attorney from the commissioner's former law firm.

According to the facts presented in the request, prior to becoming a commissioner the requester issued one or two title insurance policies per year. The commissioner received a commission for this work. A former partner of the commissioner would like to develop a relationship in which the commissioner continues to issue title insurance policies for clients of the attorney. The attorney would do the title search and review the title, while the commissioner would issue the title insurance policy. The commissioner would receive a commission from Attorney's Title. The commissioner would pay the attorney for the legal work connected with the title search.

The applicability section of the Code of Judicial Conduct states that commissioners are subject to the Code to the same extent as full-time judges. Canon 4D(1) states that "a judge shall not engage in financial and business dealing that: (a) may reasonably be perceived to exploit the judge's judicial position; or (b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves." Other Code provisions which might be applicable include Canon 2B, which prohibits lending the judicial office to advance the private interests of others; Canon 4G, which prohibits the practice of law; and Canon 4A, which requires a judge to carefully scrutinize the judge's extrajudicial activities so that they do not interfere with the judge's duties, exploit the judge's position, demean the judicial office or cast doubt on the judge's ability to act impartially.

Several states have dealt with the issue of judges performing abstract and title work. The Alabama Judicial Inquiry Commission, in Opinion 76-12, stated that a district judge could not do abstract work while sitting as a judge. The Commission found that, although the work was not considered the practice of law, the work was an impermissible extrajudicial activity. The Texas Committee on Judicial Ethics, in Opinion 23, stated that a judge could not participate in a title insurance business because it would reflect adversely on the judge's impartiality, exploit the judge's judicial position and involve the judge in frequent transactions with persons likely to come before the court on which the judge serves. Conversely, the Indiana Commission of Judicial Qualifications, in Opinion 1-88, stated that a judge could participate passively in an abstract and title business because the issues in which the business were involved were not frequently litigated, the business would not reflect adversely on the judge's impartiality and the attorney which co-owned the business did not frequently appear in the judge's court.

According to the facts presented to the Committee, the attorney with whom the commissioner would engage in the financial dealings does not engage in litigation that is likely to come before the commissioner. The attorney is mostly engaged in transactional work that is not litigated. The concerns are therefore whether the commissioner would be engaged in the practice of law, or whether the business would reflect adversely on the commissioner's impartiality, demean the commissioner's office or interfere with the commissioner's duties.

Issuing title insurance has not been considered the practice of law by at least one ethics commission, because non-lawyers can participate. See Alabama Judicial Inquiry Commission, Opinion 76-12. However, issuing title insurance through Attorneys Title could be considered the practice of law, and at the very least creates the appearance of such. Attorneys Title accepts only lawyers as members and agents. Members must therefore be licensed to practice law, creating the appearance that insurance issued through Attorneys Title is a product of the practice of law. The commissioner's participation with Attorneys Title would create the appearance that the commissioner continues to practice law. The appearance is compounded by the relationship with the former partner. The relationship creates the appearance that both are serving the same clients.⁽¹⁾

The Committee is also concerned that the relationship between the commissioner and the partner may exploit or demean the commissioner's office. Apparently, the former partner wants to take advantage of the benefits of Attorneys Title without becoming a member through the requirements of training and testing. The public's opinion of the judiciary may be affected when a commissioner assists in an arrangement which allows an attorney to take advantage of a program without submitting to the program's requirements.

In conclusion, the Committee is of the opinion that the commissioner may not issue title insurance through Attorneys Title. The connection with Attorneys Title and the proposed relationship with the former partner create an appearance of impropriety and create the appearance that the commissioner is practicing law.

1. We also note that Utah Code Ann. 78-7-2 prohibits a judge from having "a partner engaged in the practice of law." Although this statutory prohibition does not expressly extend to commissioners, it is at a minimum suggestive of the types of relationships that must be avoided.