Closure Alert

These Regulations are issued by the Virginia State Bar pursuant to Title 55, Chapter 27.3, Code of Virginia. The Act does not apply to licensed attorneys who provide escrow, closing or settlement services solely for public bodies, as defined in §§ 2.2-4301, Code of Virginia; thus, such attorneys are exempt from the registration, certification and separate fiduciary trust account requirements set forth in these Regulations.

Chapter 27.3 of Title 55 of the Code of Virginia, and therefore these Regulations, applies to transactions involving the purchase of or lending on the security of real estate located in Virginia containing not more than four residential units.  In addition, effective July 1, 1999, a lay settlement agent may provide escrow, settlement and closing services for transactions involving any real property located in Virginia, provided the agent is registered under and in compliance with §§ 55-525.17 and 55-525.18 of the Code of Virginia. Lawyer settlement agents are not required to register under Chapter 27.3 of Title 55 of the Code of Virginia unless the transaction involves the purchase of or lending on the security of real estate located in Virginia containing not more than four residential dwelling units.

The following words and terms when used in these Regulations shall have the following meanings, unless the context clearly indicates otherwise. Unless otherwise defined herein, all terms in these Regulations shall have the meanings set forth in Chapter 27.3 of Title 55 of the Code of Virginia.

• “Attorney” means a person licensed as an attorney under Chapter 39 (§§ 54.1-3900 et. seq.), of Title 54.1 of the Code of Virginia, and who is an active member of the Virginia State Bar in good standing under the Rules of the Virginia Supreme Court.
• “Bar” means the Virginia State Bar.
• “Board” means the Virginia Real Estate Board.
• “Disciplinary Board” means the Virginia State Bar Disciplinary Board.
• “First dollar coverage” means an insurance policy which obligates the company issuing the policy to pay covered claims in their entirety, up to the policy limits, regardless of the presence of a deductible amount to which the company may be entitled as a reimbursement from the insured.
• “SCC” means the Virginia State Corporation Commission.
• “These regulations” means 15 VAC 5-80-10 et seq., Virginia State Bar Regulations of Attorney Real Estate Settlement Agents.

Every licensed attorney now providing or offering, or intending to provide or offer, escrow, closing or settlement services as a settlement agent with respect to real estate transactions in Virginia shall register with the Bar using the registration form available from the Bar for that purpose. Settlement agents beginning to provide or offer such services shall register with the Bar prior to doing so. The registration requirement in this paragraph shall not apply to attorney settlement agents unless they provide or offer to provide escrow, settlement and closing services for real estate subject to Chapter 27.3 of Title 55 of the Code of Virginia, i.e., real estate containing not more than four residential dwelling units.  Thus, for example, attorneys who handle only commercial real estate transactions are not subject to these Regulations.

Every settlement agent shall thereafter reregister after notice on a schedule established by the Bar, providing updated registration information. Every settlement agent shall have a continuing duty to advise the Bar of any change in name, address or other pertinent registration data that occurs between registrations.

The fee for each registration and reregistration shall be $35 for an attorney settlement agent.  The Bar reserves the right to adjust the fee as necessary within the statutory limit of $100. The prescribed fee shall accompany each registration or reregistration in the form of a check made payable to the Treasurer of Virginia.

Registration is subject to revocation or suspension if the Bar or other appropriate licensing authority finds the settlement agent out of compliance with Chapter 27.3 of Title 55 of the Code of Virginia or Regulations issued thereunder.

The Bar will issue guidelines in consultation with the SCC and the Board to assist settlement agents in avoiding and preventing the unauthorized practice of law in connection with the furnishing of escrow, closing or settlement services. In conformity with Chapter 27.3 of Title 55 of the Code of Virginia, the Rules of the Virginia Supreme Court, and the Bar’s UPL opinions, these guidelines will delineate activities which can and cannot be carried out by registered non-attorney settlement agents in conducting settlements. The guidelines will be revised from time to time as necessary.

The guidelines will be available on the Bar’s website and provided by the appropriate licensing authority to each registered settlement agent at the time of initial registration and at each reregistration. The guidelines will also be furnished to the SCC, the Board, and all other state and federal agencies that regulate financial institutions, as well as to members of the general public upon request. The guidelines may be photocopied as necessary.

The Bar will continue to receive and investigate unauthorized practice of law complaints in the real estate settlement area, as well as in other fields, under its unauthorized practice of law rules and procedures.

If the Bar receives complaints against nonattorney settlement agents that do not allege the unauthorized practice of law, it will refer the complaints to the appropriate licensing authority that has jurisdiction over the subject of the complaint. If the complaint involves an attorney settlement agent’s noncompliance with 15 VAC 5-80-30, the Bar will conduct an informal investigation. If the Bar believes a violation has occurred, it will notify the attorney settlement agent in writing. If the apparent violation is not rectified within thirty (30) days, the Bar will investigate the alleged violations pursuant to 15VAC5-80-50(D).

1. Attorney Settlement Agent Certification.

   Each attorney settlement agent shall, at the time of initial registration and each subsequent reregistration, certify on the form available from the Bar for that purpose, that the attorney settlement agent has in full force and effect the following insurance and bond coverages, and that such coverages will be maintained in full force and effect throughout the time the attorney settlement agent acts, offers or intends to act in that capacity:

   1. A lawyer’s professional liability insurance policy issued by a company authorized to write such insurance in Virginia providing first dollar coverage and limits of at least $250,000 per claim covering the licensed attorney acting, offering or intending to act as a settlement agent. The policy may also cover other attorneys practicing in the same firm or legal entity.
   2. A blanket fidelity bond or employee dishonesty insurance policy issued by a company authorized to write such bonds or insurance in Virginia providing limits of at least $100,000 covering all other employees of the attorney settlement agent or the legal entity in which the attorney settlement agent practices.
   3. A surety bond issued by a company authorized to write such bonds in Virginia, on a form approved by the Virginia State Bar, providing limits of at least $200,000 covering the licensed attorney acting, offering or intending to act as a settlement agent. A copy of the approved bond form is available from the Bar. The bond may also cover other attorney settlement agents practicing in the same firm or legal entity. The original surety bond must be attached to the attorney settlement agent's certification form and furnished to the Bar; a surety bond on which a law firm is named as principal may be furnished by the firm or any one attorney settlement agent in the firm, with other such attorney settlement agents in the same firm attaching a copy to their forms.

   The Bar reserves the right to require other evidence of the above insurance and bond coverages beyond the attorney’s certification and surety bond, at its discretion.

   An attorney settlement agent who has no employees other than the attorney settlement agent or other licensed owner(s), partner(s), shareholder(s), or member(s) of the legal entity in which the attorney settlement agent practices may apply to the Bar for a waiver of the coverage required in Section A.2. above, using the waiver request form available from the Bar. Such waiver requests will be acted on by the Executive Committee of the Bar, whose decision shall constitute final action by the agency.

2. Separate Fiduciary Trust Account.

   Each attorney settlement agent shall maintain one or more separate and distinct fiduciary trust account(s) used only for the purpose of handling funds received in connection with escrow, closing or settlement services. Funds received in connection with real estate transactions not covered by Chapter 27.3 of Title 55 of the Code of Virginia may also be deposited in and disbursed from such account(s). All funds received by an attorney settlement agent in connection with escrow, closing or settlement services shall be deposited in and disbursed from the separate fiduciary account(s) in conformity with both the Bar’s disciplinary rules and Chapter 27.3 of Title 55 of the Code of Virginia. These separate fiduciary trust accounts shall be maintained in the same manner and subject to the same rules as those promulgated by the Bar for other lawyer trust accounts, as well as in conformity with Chapter 27.3 of Title 55 of the Code of Virginia. One separate fiduciary trust account may be maintained and used by all attorney settlement agents practicing in the same firm or legal entity.

3. Settlement Statements.

   All settlement statements for escrow, closing and settlement services governed by Chapter 27.3 of Title 55 of the Code of Virginia and these Regulations shall be in writing and identify, by name and business address, the settlement agent.

4. Complaints Against Attorney Settlement Agents.

   The Bar shall receive complaints and investigate alleged violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations by attorney settlement agents.

   If, after investigation, the Bar does not have reasonable cause to believe that one or more violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations have occurred, the Bar may dismiss the complaint as unfounded.

   If, after investigation, the Bar has reasonable cause to believe that one or more violations have occurred, the following procedures shall apply:

   1. The attorney settlement agent shall be notified in writing of the alleged violation(s).
   2. The attorney settlement agent shall have thirty (30) days from the date of such notification to respond in writing to the alleged violations.  If, after receipt of the response, the Bar no longer has reasonable cause to believe that one or more violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations have occurred, the Bar may dismiss the complaint as unfounded.
   3. If the Bar believes the alleged violation presents or presented a risk to consumers protected under Chapter 27.3 of Title 55 of the Code of Virginia, the Bar may request a hearing and issue an order requiring the attorney settlement agent to appear at the hearing, whether or not the attorney settlement agent has responded in writing to the notice of alleged violation(s) or the thirty day time period has lapsed.
   4. In conducting investigations of alleged violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations by attorney settlement agents the Bar, by Bar Counsel, shall have the authority to issue summonses or subpoenas to compel the attendance of witnesses and the production of documents necessary and material to any inquiry.
   5. The following shall be applicable to hearings on alleged violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations:
      1. Hearings shall be held before the Disciplinary Board within sixty (60) days of the issuance of the Bar’s order
      2. The standard of proof of violations of Chapter 27.3 of Title 55 of the Code of Virginia or these regulations shall be clear and convincing evidence.
      3. Hearings shall be conducted in the same manner as attorney misconduct hearings as set out in Rules of Court, Part Six, Section IV, Paragraph 13.
      4. Agreed dispositions may be entered into in the same manner as agreed dispositions at the Disciplinary Board in attorney misconduct cases.
      5. The attorney settlement agent’s prior disciplinary record and prior record of violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations shall be made available to the Disciplinary Board during the sanction stage of a hearing.  The prior record of violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations may be made available to Bar subcommittees, district committees, the Disciplinary Board or a three-judge circuit court prior to the imposition of any sanction for attorney misconduct.
      6. If the attorney settlement agent is found to have violated Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations, the attorney settlement agent may be subject to the following penalties, at the Disciplinary Board’s discretion:
         1. A penalty not exceeding $5,000 for each violation;
         2. Revocation or suspension of the attorney settlement agent’s registration; and
         3. Any other sanction available to the Disciplinary Board in attorney disciplinary proceedings under the Rules of the Virginia Supreme Court, including, but not limited to, revocation or suspension of the attorney settlement agent’s license practice law.
   6. The Disciplinary Board shall assess costs in accordance with the same rules and procedures which apply to the imposition of costs in attorney misconduct cases.
   7. All matters and proceedings pertaining to alleged violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations are public.  Related attorney misconduct cases shall be heard by the Disciplinary Board together with alleged violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations. Any related disability issues shall be heard by the Disciplinary Board separately.
   8. The Clerk of the Disciplinary System of the Bar shall maintain files and records pertaining to ended cases involving alleged violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations. The Clerk shall follow the same file destruction policies which are utilized in attorney misconduct cases.
   9. The Bar may proceed against an attorney settlement agent for alleged violations of Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations notwithstanding the attorney settlement agent has resigned from the practice of law, surrendered his or her license to practice law in the Commonwealth of Virginia or had his or her license to practice law in the Commonwealth of Virginia revoked.
   10. An appeal from an order of the Disciplinary Board imposing sanctions under Chapter 27.3 of Title 55 of the Code of Virginia and/or these Regulations shall be conducted in accordance with the provisions of Rules of Court, Part Six, Section IV, Paragraph 13 pertaining to an appeal of an order of the Disciplinary Board imposing sanctions upon findings of attorney misconduct.