LEO: Real Estate - Release of Trust LE Op. 982

 

Real Estate - Release of Trust.

 

October 14, 1987

 

Your office handles a large volume of real estate closings. At times,

title reports indicate that a trust which should have been released in a

prior settlement was not released. When the previous settlement attorney

is contacted, he assures your law firm that the previous trust has been

paid. When your firm has requested a formal release of record, you have,

at times, received a certificate of satisfaction and lost note affidavit

pursuant to Virginia Code 55-66.1:4. The previous settlement attorney

will sign as noteholder and attach a form affidavit asserting the note has

been lost or destroyed and cannot be produced. You wish to know whether or

not it is ethical for a settlement attorney, who is confident he has paid

a note, to proceed with a release as described above or if the attorney

has a duty to bring a petition pursuant to Virginia Code 55-66.5 or

obtain a release in some fashion other than the method described above.

 

Disciplinary Rule 7-102 [ DR:7-102] states that a lawyer shall not "

knowingly make a false statement of fact or law."

 

The Committee feels it is unethical for a lawyer to assert he is

noteholder when the lawyer does not have the note in his possession.

 

Committee Opinion October 14, 1987