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.