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LindaH
Florida
1754 Posts |
 Posted - 04/29/2008 : 6:15:04 PM
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This is the one part that got me..
"Standard 24 is not met by the lawyer being called on the telephone during the course of the closing process for the purpose of responding to questions or reviewing documents. The lawyer's physical presence at a closing will assure that there is supervision of the work of the paralegal which is direct and constant."
I was discussing GA signings with a title company recently - they told me they got around it by having a GA attorney on the telephone - the above looks to me like that's not acceptable at all..
Linda
www.notarydepot.com/notary/lindah
http://www.notary.net/websites/LindaHubbell
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vince
Kansas
324 Posts |
Posted - 04/29/2008 : 11:45:59 AM
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| It is interesting that JH (John) Miller has established another thread named "more signings." He already established this same thread on April 16th. Similar responses. He did not respond to any comments on that thread either. |
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LindaH
Florida
1754 Posts |
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BobbiCT
Connecticut
135 Posts |
Posted - 04/29/2008 : 05:00:47 AM
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Nicely found and put, Linda.
This is very similar to the Connecticut Bar Association's early 1980s opinion when real estate attorneys asked if experienced, senior staff paralegals (aka Legal Assistants) could handle routine real estate matters with an attorney available if a question or issue came up. The Bar answer: no. This is why the non-attorney "closing" in Connecticut is still in question. There are no recent UPL cases brought against a non-attorney for real estate activity, only cases regarding divorce, estate planning and immigration related documents. |
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LindaH
Florida
1754 Posts |
Posted - 04/28/2008 : 7:42:49 PM
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Here's one thing I found real quick, John - give it a read:
Formal Advisory Opinion 00-3
STATE BAR OF GEORGIA
ISSUED BY THE SUPREME COURT OF GEORGIA
ON FEBRUARY 11, 2000
FORMAL ADVISORY OPINION NO. 00-3
For references to Standard of Conduct 24, please see Rule 5.5(a).
For an explanation regarding the addition of headnotes to the opinion, click here.
QUESTION PRESENTED:
Ethical propriety of lawyers telephonically participating in real estate closings from remote sites.
SUMMARY ANSWER:
Formal Advisory Opinion No. 86-5 explains that a lawyer cannot delegate to a nonlawyer the responsibility to "close" the real estate transaction without the participation of an attorney. Formal Advisory Opinion No. 86-5 also provides that "Supervision of the work of the paralegal by the attorney must be direct and constant to avoid any charges of aiding the unauthorized practice of law." The lawyer's physical presence at a closing will assure that there is supervision of the work of the paralegal which is direct and constant.
OPINION:
Formal Advisory Opinion No. 86-5 (86-R9) issued by the Supreme Court states that the closing of real estate transactions constitutes the practice of law as defined by O.C.G.A. §15-19-50. Therefore, it is ethically improper for lawyers to permit nonlawyers to close real estate transactions. Correspondent inquires whether it is ethically permissible to allow a paralegal to be physically present at a remote site for the purpose of witnessing signatures and assuring that documents are signed properly. The paralegal announces to the borrower that they are there to assist the attorney in the closing process. The lawyer is contacted by telephone by the paralegal during the closing to discuss the legal aspects of the closing.
The critical issue in this inquiry is what constitutes the participation of the attorney in the closing transaction. The lawyer must be in control of the closing process from beginning to end. The supervision of the paralegal must be direct and constant.
Formal Advisory Opinion No. 86-5 states that "If the 'closing' is defined as the entire series of events through which title to the land is conveyed from one party to another party, it would be ethically improper for a nonlawyer to 'close' a real estate transaction." Under the circumstances described by the correspondent, the participation of the lawyer is less than meaningful. The lawyer is not in control of the actual closing processing from beginning to end. The lawyer is brought into the closing process after it has already begun. Even though the paralegal may state that they are not a lawyer and is not there for the purpose of giving legal advice, circumstances may arise where one involved in this process as a purchaser, seller or lender would look to the paralegal for advice and/or explanations normally provided by a lawyer. This is not permissible.
Formal Advisory Opinion No. 86-5 provides that "Supervision of the work of the paralegal by the attorney must be direct and constant to avoid any charges of aiding the unauthorized practice of law." By allowing a paralegal to appear at closings at remote sites at which lawyers are present only by telephone conference will obviously increase the likelihood that the paralegal may be placed in circumstances where the paralegal is actually providing legal advice or explanations, or exercising independent judgement as to whether legal advice or explanation is required.
Standard 24 is not met by the lawyer being called on the telephone during the course of the closing process for the purpose of responding to questions or reviewing documents. The lawyer's physical presence at a closing will assure that there is supervision of the work of the paralegal which is direct and constant.
There was a much better discussion of it but I can't find it right now...but this opinion is worth reading.
Linda
www.notarydepot.com/notary/lindah
http://www.notary.net/websit |
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LindaH
Florida
1754 Posts |
Posted - 04/28/2008 : 7:29:00 PM
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Doesn't matter if the price is right or not, John - Georgia is an attorney-only state...you can't do loan signings. As for RESPA signings, I'm not sure if those are included in the legislation or not. You can search the past archives here - there was a great thread here that discussed Georgia and the new laws regarding loan signings. Maybe Jeremy can help a bit and bring that thread to the top again for your quicker reference.
Linda
www.notarydepot.com/notary/lindah
http://www.notary.net/websites/LindaHubbell
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jhmiller
Georgia
8 Posts |
Posted - 04/28/2008 : 6:25:33 PM
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Right now I am semi retired and just do a few respa signings and simple notary work, I am not even sure If it is Legal to do respa
signings in Georgia, because some of the laws in Georgia really suck,
I haven't really gotten into any closing yet but I guess that I would if any came my way and the price was right, but I am not a lawyer.
john h miller |
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