Closing W/o An Attorney...misdemeanor?
Someone posted on my other REI board in my state (Georgia) that he had read somewhere that having a closing without an attorney in GA is a misdemeanor. I have tried to research it a bit and found this quote from the FTC website:
Standing Committee on the
Unlicensed Practice of Law
UPL Advisory Opinions
State Bar of Georgia
104 Marietta Street, NW
Suite 100
Atlanta, Georgia 30303
Re: Comments On Potential Unlicensed Practice Of Law
Opinion Regarding Real Estate Closing Activity
It is very long but does address it in several places like the following:
Moreover, in Georgia, it is a criminal misdemeanor to engage in the unlicensed practice of law.(12) The good faith facilitation of the execution of a security deed for the benefit of a seller, borrower or lender in Georgia could thus become a criminal offense.
As someone getting ready to start purchasing homes using the subject to method, does this necessarily mean I need to use an attorney for every closing? Lets hope not.
Opinions?
Suntzu18
One can practice law for himself (pro se) anywhere, any subject, any time, any kind of law.
So NO, one doesn't have to use a lawyer for anything ever, if he knows how and is comfortable doing his own docs, notes, deeds, etc.*
Ergo, if it's your deal and you're personally involved, you can do the docs you demand and must have, and you can either make that a condition of the deal, or you can put the legal cost on the other guy and tell him he's gotta pay his part of the costs.
In a number of states, one can even pro se his own 1 man corp/LLC, but in others, any corp or LLC is a legal entity that cannot represent itself. So I'd check the local RCP (rules of civil procedure) to see what that state's rules might be on that.
* I once sat in on a slander trial where Geo. Lincoln Rockwell, the American Nazi, was suing a TV station for something they'd said about him, and he was representing himself, in Federal District Court, and doing a danged good job of it.
I knew the station's lawyer, and he was a good trial lawyer, but he had to work hard to finally vindicate his station.
Likely old George had to do that, because none of the local lawyers had the guts to show up and be known for representing him.
Defense of unpopular causes has never been easy, and as I recall even John Adams caused a big stir when he represented some British redcoats who'd shot into a Boston mob.
I also came across this article regarding GA Law in the Atlanta Journal and Constitution:
HEADLINE: Federal Officials Lobby to Loosen Georgia Deed-Handling Rules
BYLINE: By Tinah Saunders
BODY:
The U.S. Department of Justice and the Federal Trade Commission want to help Georgia consumers save money when buying a home.
The FTC and DOJ want to allow non-lawyers in Georgia to prepare and facilitate the execution of deeds, an activity now considered "unlicensed practice of law" by the State Bar of Georgia.
Permitting non-lawyers to provide these services will increase competition and reduce closing costs, according to a letter sent by the DOJ and FTC to the Bar's Standing Committee on the Unauthorized Practice of Law last month.
The committee held a public hearing on the matter March 21 after receiving numerous complaints about non-lawyers conducting closing procedures.
The Georgia Legal Code prohibits anyone other than a licensed attorney from furnishing legal services such as the "conveyance" or transfer of real property or title. Those who do may be charged with a misdemeanor and are subject to up to a year in prison and/or fines.
Bob Hamilton, executive vice president of the Georgia Association of Realtors, said using non-lawyers in real estate closing functions would not guarantee lower costs.
"Allowing non-lawyers to deal in closings would not be beneficial to the consumer at all," Hamilton said. "If you look at the paperwork, you'll see that the lender gets most of the money [from fees at closing], not the lawyer. His fee is nominal --- $450 on the sale of a $300,000 house.
"There are already too many lawyers doing closings and they undercut each other all the time, so there is already competition. Besides, you don't know what a non-lawyer would charge --- and then if there is a problem with the closing, you'd have to hire a lawyer to straighten it out," he said.
Non-lawyers who might prepare and facilitate paperwork include real estate agents, bankers and insurance adjusters. Several states, including Virginia and New Jersey, have rejected bans on non-lawyer closing functions.
The Bar's Standing Committee on Unauthorized Practice of Law will discuss the situation and decide whether to publish an opinion. The opinion, if reviewed by the Georgia Supreme Court, could set legal precedent in the state.
But deciding whether to issue an opinion could take a while.
"The committee has the matter under advisement, but resolution may take several months," said Steven Kaczkowski, the director of Unauthorized Practice of Law for the Georgia State Bar Association.
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