(concurring specially).
In my opinion this is not a proper case for summary judgment. Genuine issues of fact (e. g., the allegation that a fee was charged for the title search and opinion in addition to the insurance premium) are *703presented by the pleadings and left unresolved by the affidavits. Counter affidavits should have been allowed and if the factual issues still remain, such issues should be submitted to a jury before judgment is rendered. Therefore, I concur in the result that the case must be reversed and remanded.
I find. myself in complete disagreement with the remainder of the holding of the majority opinion. The central thrust of the Court’s reasoning is to the effect that the words, “The estate or interest in the land ... is a fee simple, and title thereto is vested in: * * * ”, when taken together with the language as a whole appearing in the commitment, do not constitute the practice of law; and this for the reason that the overall purpose of the document in which this language appears is to commit the Title Insurance Company to insure the title to certain described property upon certain stated conditions. In other words, the majority opinion concludes that since this expression of opinion as to title is part and parcel of a commitment to insure title, such a title opinion is something less than what the words themselves say it is.
Admittedly, the combination of words used by the Title Insurance Company in this commitment is not in the exact classical order as those traditionally employed by attorneys in rendering title opinions; but it could hardly be argued that, “The interest in the land is a fee simple, and title thereto is vested in * * * ”, is not the equivalent of, “In my opinion fee simple title in the subject property is vested in * * * In both instances the words express an opinion as to the legal effect of documents of conveyances and encumbrances relating to real estate.
In my opinion, if the defendant, Land Title Company of Alabama, charges (in addition to its premium) a fee for the issuance of the commitment to insure, and if this commitment contains an expression of opinion as to title, and such expression is not based upon an independent opinion of an attorney duly authorized to practice law in this state, the Title Insurance Company is guilty of unauthorized practice of law. Tantamount to the regulation of the practice of law (as well as the practice of other professions) is the interest of the public and not the self interest of the members of the profession. I am not impressed to a contrary view by the large number of lawyers who appear amicus curiae on behalf of the Title Insurance Company or by their argument (adopted in part by the majority opinion) that this is a long-standing practice which is virtually universally followed by the title insurance industry.
It is beyond the realm of speculation to suppose what position these same lawyers would take if the act complained of as constituting the unauthorized practice of law was the closing of the real estate sale instead of the rendering of a title opinion. How it could be argued that the drafting of deeds, mortgages, etc., constitutes the unauthorized practice of law, but that the expression of an opinion as to the legal effect of such documents is not, is beyond the scope of my understanding. Indeed, as between the two, the former seems less offensive as far as the public interest is concerned since these acts are performed ordinarily by the filling in of certain blanks on a printed form, while the legal expertise required for the latter could hardly be relegated to the perfunctory or the routine.
I believe the position taken by the Alabama State ¿ar, although to the apparent displeasure of a substantial number of lawyers, is on the “side of the angels”, and if on retrial of this cause the allegations of its petition are supported by the proof, I would so hold.
FAULKNER, J., concurs.