Non-Georgia-Attorney-Owned Recruiting Firms Violate Georgia’s Unauthorized Practice of Law Statute

The Official Code of Georgia (O.C.G.A.) section 15-19-51. (a) (5) makes clear that it is the “Unauthorized practice of law … [and] (a) it shall be unlawful for any person other than a duly licensed attorney at law: (5) to furnish attorneys or counsel” for the purpose of closing personal or real property loans within the State of Georgia.

Thus, all attorney recruiting firms and companies using attorney recruiting firms should beware!

Only companies owned by a Georgia licensed attorney may hire persons to engage in acts that constitute the practice of law, including “conveyancing,” e.g., the transfer or pledge of real property as collateral for mortgage loans.

O.C.G.A. § 15-19-50 (2006) defines the practice of law, and specifies actions that are prohibited as the Unauthorized Practice of Law, including a requirement that only law firms may be involved in conveyancing, e.g., the transfer or pledge of real property as collateral for mortgage loans.

The preparation of court documents; conveyancing; legal instruments of all kinds where legal rights are secured; the rendering of opinions as to the validity or invalidity of titles to real or personal property; the giving of any legal advice; or any action taken for others in any matter connected with the law.

O.C.G.A. § 15-19-51 states that unless otherwise licensed to practice law, it is the Unauthorized Practice of Law in Georgia to furnish legal services, give legal advice or to furnish attorneys or counsel; or to render legal services of any kind.

O.C.G.A. § 15-19-51 (5) prohibits non-Georgia lawyers from furnishing attorneys or counsel as professional recruiters. It is illegal for a non-Georgia lawyer to recruit or to furnish Georgia-licensed attorneys to render legal services for others within the State of Georgia.

Thus, non-Georgia-attorney-owned professional recruiting companies, and the companies that hire professional recruiters for title companies, mortgage brokers, and lending institutions may be in violation of Georgia’s Unauthorized Practice of Law statute and subject to criminal prosecution and civil liability in the State of Georgia.

Unauthorized Practice of Law: O.C.G.A. 15-19-52; 15-19-50; 15-19-51

GEORGIA CODE
Copyright 2006 by The State of Georgia
All rights reserved.

*** Current through the 2006 Regular Session ***

TITLE 15. COURTS CHAPTER 19. ATTORNEYS ARTICLE 3. REGULATION OF PRACTICE OF LAW

O.C.G.A. § 15-19-52 (2006)

§ 15-19-52. Lawful acts by parties involved; banking advice; legal instruments; title papers

Nothing contained in this article shall prevent any corporation, voluntary association, or individual from doing any act or acts set out in Code Section 15-19-50 to which the persons are a party; but, in preparing and filing affidavits in attachments and prosecuting such proceedings, it shall be unlawful for the plaintiffs to act through any agent or employee who is not a duly licensed attorney at law.

Moreover, no bank shall be prohibited from giving any advice to its customers in matters incidental to banks or banking; nor shall any person, firm, or corporation be prohibited from drawing any legal instrument for another person, firm, or corporation, provided it is done without fee and solely at the solicitation and the request and under the direction of the person, firm, or corporation desiring to execute the instrument.

Furthermore, a title insurance company may prepare such papers as it thinks proper or necessary in connection with a title which it proposes to insure, in order, in its opinion, for it to be willing to insure the title, where no charge is made by it for the papers.

HISTORY: Ga. L. 1931, p. 191, § 1; Code 1933, § 9-401; Ga. L. 1937, p. 753, § 1; Ga. L. 1976, p. 1511, § 1.



TITLE 15. COURTS CHAPTER 19. ATTORNEYS ARTICLE 3. REGULATION OF PRACTICE OF LAW

O.C.G.A. § 15-19-50 (2006)

§ 15-19-50. "Practice of law" defined

The practice of law in this state is defined as:

(1) Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body;

(2) Conveyancing;

(3) The preparation of legal instruments of all kinds whereby a legal right is secured;

(4) The rendering of opinions as to the validity or invalidity of titles to real or personal property;
(5) The giving of any legal advice; and

(6) Any action taken for others in any matter connected with the law.

HISTORY: Ga. L. 1931, p. 191, § 2; Code 1933, § 9-401; Ga. L. 1937, p. 753, § 1; Ga. L. 1976, p. 1511, § 1.



O.C.G.A. § 15-19-51

GEORGIA CODE Copyright 2006 by The State of Georgia All rights reserved.

*** Current through the 2006 Regular Session ***

TITLE 15. COURTS CHAPTER 19. ATTORNEYS ARTICLE 3. REGULATION OF PRACTICE OF LAW

O.C.G.A. § 15-19-51 (2006)

§ 15-19-51. Unauthorized practice of law forbidden

(a) It shall be unlawful for any person other than a duly licensed attorney at law:

(1) To practice or appear as an attorney at law for any person other than himself in any court of this state or before any judicial body;

(2) To make it a business to practice as an attorney at law for any person other than himself in any of such courts;

(3) To hold himself out to the public or otherwise to any person as being entitled to practice law;

(4) To render or furnish legal services or advice;

(5) To furnish attorneys or counsel;

(6) To render legal services of any kind in actions or proceedings of any nature;

(7) To assume or use or advertise the title of "lawyer," "attorney," "attorney at law," or equivalent terms in any language in such manner as to convey the impression that he is entitled to practice law or is entitled to furnish legal advice, services, or counsel; or

(8) To advertise that either alone or together with, by, or through any person, whether a duly and regularly admitted attorney at law or not, he has, owns, conducts, or maintains an office for the practice of law or for furnishing legal advice, services, or counsel.

(b) Unless otherwise provided by law or by rules promulgated by the Supreme Court, it shall be unlawful for any corporation, voluntary association, or company to do or perform any of the acts recited in subsection (a) of this Code section.

HISTORY: Ga. L. 1931, p. 191, § 1; Code 1933, §§ 9-402, 9-403.

Georgia Law Controls The Closing Process Within The State of Georgia

In this article, I seek to answer questions regarding the closing of real property transactions in the State of Georgia.

Question: Can a Georgia notary close Georgia property in the State of Georgia?

Answer: No. If a Georgia notary were to close Georgia property, this would be the Unauthorized Practice of Law and result in the notary losing their privileges to notarize documents. The Supreme Court of Georgia decision and State Bar of Georgia Opinions are very clear in this regard.

This activity would violate the notary's commission and result in the forfeiture of the notary's commission as granted by the State of Georgia. Notaries must exercise good moral and ethical behaviors and no person may flout the law of the State of Georgia with impunity!

Likewise, financial institutions are regulated by the State of Georgia and, in addition to risking the loss of privileges to transact business in Georgia, called disbarment, individuals and entities alike are subject to criminal, civil and injunctive actions for illegal or unethical behaviors that violate Georgia law. Financial institutions that do not employ Georgia lawyers throughout the entire signing process are subject to RICO suits.

Question: Can a Georgia notary close non-Georgia property when the owners seek to close in the State of Georgia?

Answer: No. Public policy prohibits notaries from acting as lawyers. Period.

Notaries are not permitted to act outside the parameters of their commission to perform a function reserved for lawyers as expressed by the State Bar of Georgia and the Supreme Court of Georgia.

Notaries are not permitted to give legal advice and a closing may engender a discussion between the notary and borrower that would cause financial harm to the borrower.

Lawyers undergo a more thorough background screening, and are both highly educated and thoroughly examined before and as they practice law. Notaries serve in very restricted roles, usually limited to authentication of documents.

Question: Is it lawful for title companies to refer Georgia property owners to border states to close real estate loans with the goal that attorney fees can be avoided?

Answer: No. This behavior constitutes a conspiracy to commit a misdemeanor called the Unauthorized Practice of Law, and may result in the disbarment of lending institutions from doing business in Georgia.

In addition to disbarment, lending institutions, and notaries, risk criminal prosecution, civil fines, and an injunction. The notary risks the loss of his or her notary commission for failure to uphold the laws and public policy of the State of Georgia.

Possible consequences include the following:

• Criminal Prosecution for Unauthorized Practice of Law
• Civil Suit and Fines
• Civil Injunction
• Loss of Notary Commission
• Loss of State Bar License
• Loss of Lending License
• Criminal and Civil RICO prosecution
• Civil suits by borrowers and heirs
• Civil suits from attorneys for unfair business practices

Public policy and Georgia law prohibit Georgia notaries from performing roles reserved for lawyers. Notaries are not permitted to act outside the parameters of their commission to perform functions expressly reserved for lawyers as designated by the Supreme Court of Georgia.

Please read http://georgia-upl-law.blogspot.com/ and http://thenotaryeagle.blogspot.com/ for supplemental explanations as to the basis for my opinions. As in all matters, the definitive source for information is the State Bar of Georgia (http://www.gabar.org/).

Burton Fletcher, J.D., MBA
Member, State Bar of Georgia, State Bar of California
NNA Certified Notary Signing Agent
Commissioned Notary
Professor, Business Administration (Ret.)
Owner, Georgia Signing Agents.com, LLC
Tel: 229.245.8858
Fax: 310.868.2500
Desk1@GeorgiaSigningAgents.com

Copyright 2007. All Rights Reserved.

Are You Playing With Fire And Don't Know It!

Are you playing with fire, and don't know it?

This is a question that every business in the lending and financial field must ask themselves when closing real estate loans in the State of Georgia. Don't play with fire unless you are prepared for the pain of a nasty burn!

"Witness-only" is a misnomer for what we do; however, the language is so ingrained within the financial and loan services industry that we will not try to change the terminology in this writing.

Many Georgia attorneys are reluctant to handle real estate closings described as "witness-only" closings out of fear that they will face discipline from the State Bar of Georgia.

In fact, when we appear for signings, we are not mere witnesses, or mere notaries. We present ourselves as attorneys with high credentials and the intensive background screening that attorneys must demonstrate to become admitted to the State Bar of Georgia.

Are you playing with fire by not employing a Georgia attorney to pay loan proceeds through an Interest Only Lawyers Trust Account?

The State Bar of Georgia mandates that all loan closing funds must be paid through the trust account of a Georgia lawyer. This rule applies to all financial institutions that secure loans with a property conveyance as collateral. By not paying loan proceeds through the trust account of a Georgia attorney, you are practicing law without a license, a misdemeanor in the State of Georgia.

Georgia law requires that financial proceeds must be paid through an attorney's trust account and we recommend to all financial institutions that they employ a Georgia-licensed attorney within their establishments. We can assist companies by providing names of attorneys in your home state, or in the State of Georgia, who are licensed by the State Bar of Georgia.

Beware: The "witness-only" attorney is not protecting you from the Unauthorized Practice of Law! The signing is only one aspect of a real property transaction that requires the use of an attorney.

I realize that many financial institutions may not want to hire a Georgia-licensed attorney; however, there are very sound reasons for doing so, particularly if you are hiring attorneys to do "witness-only" closings. If you play with fire, don't whine when you feel the stinging tinge of a painful burn. Ouch!

Likewise, title documents must be processed by a professional licensed to prepare property titles. The attorney you hire for a "witness-only" closing is not going to provide you with protection from criminal prosecution for not properly handling the other aspects of a real property closing in accord with Georgia's Unauthorized Practice of Law requirements.

I realize that many other states allow notaries to take actions that are broader in scope than are allowed by the Supreme Court of Georgia. The law is often different from what we might like it to be; however, it is in your best interests, and ours, that you do things right and that you fully comply with Georgia law!

You can comply with Georgia law very easily by hiring a Georgia attorney at your home office or in Georgia. Georgia law requires that a Georgia lawyer oversee the entire loan closing process, including title preparation, HUD signing, and loan closing with the borrower. Funds must be paid through the attorney's trust account too! Shortcuts are like playing with fire!

If you need assistance in locating a Georgia lawyer, please contact us and we will assist you with recruitment.

Lay people cannot practice law in the State of Georgia. Period.

You do not want the State of Georgia seeking criminal and civil actions, including an injunction, against your company, don't play with fire!

For more information on the Unauthorized Practice of Law, please read my other articles in this blog and the State Bar of Georgia Opinions and the Supreme Court of Georgia ruling, also on our website.

You drive with a license and insurance, so why not handle loans without full legal protection? Don't wait and don't get burned!

Burton Fletcher, J.D., MBA
Member, State Bar of Georgia, State Bar of California
NNA Certified Notary Signing Agent
Commissioned Notary
Professor, Business Administration (Ret.)
Owner, Georgia Signing Agents.com, LLC
Tel: 229.245.8858
Fax: 310.868.2500
Desk1@GeorgiaSigningAgents.com

Copyright 2007. All Rights Reserved.

Georgia's Unauthorized Practice of Law

As I write, I remind myself that the law is not always the way I would like for it to be, and whether the law is fair or not depends on whose ox is being gored. This is true for all areas of law, and especially so in the Unauthorized Practice of Law (UPL). What is legal and ethical in one state may be illegal and unethical based upon the tenets of another state. This is the case with the Unauthorized Practice of Law (UPL) in the State of Georgia.

On November 10, 2003, in a per curiam opinion, S03U1451. IN RE UPL ADVISORY OPINION 2003-2, (277 Ga. 472) the Supreme Court of Georgia adopted the State Bar of Georgia’s Formal Disciplinary Opinion, prohibiting non-attorneys from participating in the closing of real estate transactions. It is my opinion that this law is widely violated throughout Georgia and the first persons to be prosecuted under this law will say, “who me!”

I do not want to be the first person prosecuted under Georgia’s UPL restrictions and I hope you feel the same way. We take pride in our work and pride in our profession as a notary, licensed attorney and as a notary signing agent.

The State Bar of Georgia, exercising its authority to control the practice of law in Georgia, published its Final Opinion in 2003. The primary points from that decision, as gleaned by this author, are contained below. I encourage everyone who serves as a “notary,” “notary signing agent,” or “real estate closing attorney,” or “real property lawyer,” to study these points carefully, inform your colleagues and bring your actions in line with Georgia law.

1. “[T]he preparation and execution of a deed of conveyance on behalf of another and facilitation of its execution by anyone other than a duly licensed Georgia attorney constitutes the unauthorized practice of law.”

2. “[O]nly a licensed Georgia attorney may prepare or facilitate the execution of a deed of conveyance.”

3. “[W]e approve UPL Advisory Opinion 2003-2.” (This opinion is posted on www.GeorgiaSigningAgents.com.)

4. “[A] lawyer cannot delegate responsibility for the closing of a real estate transaction to a non-lawyer and required the physical presence of an attorney for the preparation and execution of a deed of conveyance (including, but not limited to, a warranty deed, limited warranty deed, quitclaim deed, security deed, and deed to secure debt).”

5. “[I]t is the unauthorized practice of law for someone other than a duly-licensed Georgia attorney to close a real estate transaction or to prepare or facilitate the execution of such deed(s) for the benefit of a seller, borrower, or lender.”

6. “[A]s it distinguishes a professional service from a purely commercial enterprise, we continue to believe that the public interest is best protected when a licensed Georgia attorney, trained to recognize the rights at issue during a property conveyance, oversees the entire transaction.

7. “If the attorney fails in his or her responsibility in the closing, the attorney may be held accountable through a malpractice or bar disciplinary action.”

* * *

“It is thus clear that true protection of the public interest in Georgia requires that an attorney licensed in Georgia participate in the real estate transaction”

8. “[S]ince at least 1932 it has been the statutory policy in the State of Georgia that only attorneys properly licensed in Georgia are authorized to close real estate transactions.

9. The “practice of law includes conveyancing, preparation of legal instruments of all kinds whereby legal right is secured, rendering of opinions as to the validity or invalidity of titles to real or personal property, and giving of any legal advice.”

10. “[O]nly an attorney duly licensed in this State can prepare and facilitate the execution of a deed of conveyance.”

11. “Accordingly, we hereby approve UPL Advisory Opinion 2003-2.”

UPL Advisory Opinion approved. All the Justices concur.

Decided November 10, 2003 – Reconsideration denied December 12, 2003.

Burton Fletcher, J.D., MBA
Member, State Bar of Georgia, State Bar of California
NNA Certified Notary Signing Agent
Commissioned Notary
Professor, Business Administration (Ret.)
Owner, Georgia Signing Agents.com, LLC
Tel: 229.245.8858
Fax: 310.868.2500
Desk1@GeorgiaSigningAgents.com

Copyright 2007. All Rights Reserved.

Introduction To My Georgia UPL Law Blog

They call it the practice of law because we make our mistakes, learn from them, and then seek to bring our behaviors into line with successful and approved practices that are in line with the State Bar of Georgia, Supreme Court of Georgia and various statutes applicable to the practice of law with the goal that attorneys and notaries alike will avoid the Unauthorized Practice of Law (UPL).

This blog reflects my personal and professional growth as a state licensed member of the State Bar of Georgia (1980) and the State Bar of California (1981). Upon retirement for college and university teaching, I relocated to Georgia from California in 2004 so I could live closer to my family and enjoy the wonderful people in an area we call "the New South." For a more complete review of my personal and professional background, please see my biography on www.CallOurLawyers.com.

Aside from the beauty of the Valdosta, Georgia community, where I live, the people in South Georgia are some of the most wonderful folks anyone will ever meet.

While this blog is not intended to be and should not be relied upon as legal advice, I hope to avert some of my colleagues from possible Unlawful Practice of Law (UPL) criminal or civil charges. As such, I intend to write on subjects that are important to clarify common misconceptions about Georgia Real Property Law.

Stay tuned and please stay in touch. I invite your comments through email to Desk1@GeorgiaSigningAgents.com.

Burton Fletcher, J.D., MBA
Member, State Bar of Georgia, State Bar of California
NNA Certified Notary Signing Agent
Commissioned Notary
Professor, Business Administration (Ret.)
Owner, Georgia Signing Agents.com, LLC
Tel: 229.245.8858
Fax: 310.868.2500
Email: Desk1@GeorgiaSigningAgents.com

Copyright 2007. All Rights Reserved.