SPEAK UP OR QUIT COMPLAINING

When I first got elected as a Bencher many, many of you congratulated me and thanked me for being “the voice of the non-GTA Solicitor” in Convocation. I was flattered and honoured to accept your comments and words of encouragement. I continue to do my best to bring the perspective of a “non- GTA”, experienced, solicitor to the work of the Law Society.

When I first started this Blog it was my intention to post something weekly or monthly updating the profession on what was happening in Convocation. I have always felt that there is a real and perceived “disconnect” between this of us who are “slugging it out” on a daily basis outside of the GTA and those who practice on Bay Street and/or have no idea of what it takes to make a living outside of Toronto.

I have learned the dynamics in both places are unique.

I haven’t posted in a while as others such as Larry Banack have a much more extensive email list and are better at getting the message regarding the general events that happen in Convocation or at the LSO out there than I.

In recent weeks, notices have been posted in many places about a request from the Law Society regarding input from the profession regarding Title Insurance.

On other occasions, I have received complaints from the profession that there hasn’t been sufficient consultation. On Title Insurance, this is your chance to speak up.

Don’t wait until it’s too late to voice your opinion.

While the issue is relatively simple – the solution may not be so simple.

Should a lawyer be allowed to received examining counsel fees and/or incentives from Title Insurers? Some people feel there should be a total ban on both. Other feel fees are acceptable provided a genuine service is provided by the lawyer to the title insurer and there is full client disclosure and consent.

But what happens if the premium would be less to the client if those payments weren’t paid by the Title Insurer to the lawyer? A payment for services rendered that actually reduces the costs incurred by a Title Insurer is one thing – but an incentive to refer work to a Title Insurer is another.

If the cost to the Tile Insurer is more because of incentive payments or excessive fee payments, the insurer’s cost will:

A) be passed on to the client; or

B) swallowed by the insurer.

Most of us are not naive to think B will happen.

Let’s be clear.

The LSO does not permit lawyers to receive incentives for recommending a specific title insurance product or to receive commissions or fees with respect to any title insurance coverage.

The LSO has rules in place that require lawyers to disclose and obtain consent where they are retained to provide services to multiple parties. But, a recent survey revealed at least 30% don’t disclose to their clients that payments are being received from title insurers.

If you do residential purchases (like I do), the client just wants to know the bottom line and when they can get the keys. They want to spend as little time in your office as possible and usually will sign almost anything without taking the time to read it (even when you insist they do so). I am concerned whether genuine disclosure and consent is realistic and I’m also concerned whether the true cost and price of title insurance is being inflated because of payments by title insurers.

A lot of emails have been sent out from various stakeholders/advocates promoting different propositions.

My position on this issue has been clear from the beginning.

Personally, I don’t like the idea of a ban on providing paid services.
But, how to we implement a system that is fair to everyone, including both lawyers and clients?

Yes, I’m a fan of TitlePlus Title Insurance BUT
No
, I don’t use TitlePlus exclusively. Under various circumstances I have used Stewart title, Chicago Title and other Insurers.

Yes, other Title Insurers may be easier to use and get policies from.

Yes, every policy has its pros and cons.

Not all policies and coverage are the same.

If you think the present policy is ok then let the LSO know why you support the present approach. Make suggestions on how to insure “full disclosure” is real disclosure.

It is the LSO’s obligation to ensure the public is being treated fairly. But we are also entitled to be paid fairly for the services we provide.

If you have changes/alterations or suggestions, please, let them know.

The time to speak up is now.

3 thoughts on “SPEAK UP OR QUIT COMPLAINING

  1. Matthew Mayo

    Emphatically yes. I cannot justify increasing my client’s policy cost, just to turn around and put it in my pocket. I do not feel confident enough in my opinions to be able to say that others shouldn’t, but it rubs me the wrong way, so I don’t.

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  2. Jerry needs to be applauded for his efforts. Speak your mind on the subject or don’t complain in the future.

    That said the Rules of Professional Conduct are sufficient and they require a lawyer to be honest and candid and do the best for their client in all respects. Always. Without exeception!

    Are there rule breakers? To quote the eloquent Homer Simpson . . Duh!!!

    But that doesn’t mean honest solicitors doing a proper job for their clients should be prohibitted from charging a fee for a service. Let’s hope the LSO fixes problems that exists and devotes resources to making all lawyers comply with their existing obligations instead of searching for a problem that doesn’t exist.

    All the opinions here are personal and not necessarily those of any group or organization.

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  3. Steven Follett

    I am opposed to the title insurance “kick back”. In my view, most clients will not appreciate the “disclosure” no matter how clear one makes it. They are either overwhelmed by, don’t read or don’t understand what lawyers present to them in “disclosure” documentation. In addition, it just encourages title insurers to chase lawyers with greater monetary incentives. The lawyer’s choice of insurer would be based not upon something like the insurer’s ability or responsiveness to claims or even the lowest premium the client would pay but rather it would be based upon the lawyer’s self interest in obtaining the biggest “kick back”. I understand that title insurers are now also offering bulk incentives to high volume lawyers to use them exclusively… sometimes to the tune of $100K+. There is no way that such a payment could be disclosed to the client in any acceptable fashion. Both incentive practices start to sound like “incentives” corporations give third world officials for taking on a contract.

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