MASSACHUSETTS ASSOCIATION OF
BANK COUNSEL, INC., ET ALS,

      Plaintiffs,

      5.

CLOSINGS, LTD.,

      Defendant.

BRIEF OF AMICUS CURIAE
MASSACHUSETTS BAR ASSOCIATION

This court has allowed the motion of the Massachusetts Bar Association ("MBA") for leave to file a brief as amicus curiae in a suit brought by the Massachusetts Association of Bank Counsel, Inc. ("MABC") and certain officers and members of the Massachusetts Conveyancers' Association ("MCA") to enjoin activities of the defendant, Closings, Ltd. ("Closings") which the plaintiffs allege constitute the unauthorized practice of law. The MBA is a voluntary, non-profit, state-wide professional association of attorneys in the Commonwealth of Massachusetts that presently has over 18,500 members including lawyers and judges. Its purpose is to promote the administration of justice and reform the law, to uphold the honor of the profession of law, to seek advancements in the field of jurisprudence in this Commonwealth, to promote the public good and to insure that all citizens of this Commonwealth who seek justice are afforded a full opportunity to obtain it.

Since this litigation will resolve fundamental issues as to when laypersons or corporations (other than professional corporations organized to practice law under Chapter 156A) may perform tasks historically performed by attorneys, or by laypersons directly under the control of attorneys, the MBA has taken the unusual step of seeking permission to file an amicus brief at the trial level. It does so because it believes that its overview of the public interest issues raised by this litigation might be helpful at this stage. Not only must this court resolve conflicting views as to the facts and relevant law, but it must assess the relevance of these conflicting views in terms of the purposes which lie behind the prohibition of the "unauthorized practice of law" found in M.G.L. c. 221, §§ 46 and 46A as well as in the Canons of Ethics and Disciplinary Rules regulating the practice of law in the Commonwealth.

Giving the timing of the filing of this brief, the MBA is of necessity precluded from presenting its views as to what conclusions of law flow from the specific factual determinations which this court will make in the course of these proceedings. Fortunately, however, the positions of the parties to this litigation have been sufficiently refined by the plaintiffs' complaint and defendant's answer and by their joint pre-trial memorandum so that the possibilities of this court's factual determinations are not open-ended. Therefor, the MBA believes it can be useful to this court in expressing its views as to what facts must be found in order for Closings to be found guilty of transgressing the statutory and ethical restrictions on unauthorized practice which form a part of the Massachusetts law.

It is uncontested that the defendant is a corporation whose layperson and attorney employees may not practice law. It is also evident from the agreed statement of facts and defendant's promotional literature, that Closings replicates many of the services which are performed by a law firm conducting a traditional residential real estate closing, Accordingly, the fundamental issue for this court is whether Closings has excluded from the services it performs those which may only be entrusted to an attorney licensed to practice law in Massachusetts or to laypersons under such an attorney's direct supervision and control. The plaintiffs contend that the attorneys and laypersons employed by Closings have held themselves out as being entitled to draw legal documents and give legal advice. In practice, plaintiffs further contend, such employees have not only performed the purely ministerial tasks which are normally associated with a closing, but have also completed closing documents, advised individuals as to the legal significance of closing documents, and have negotiated the contents of closing documents. Plaintiffs also contend that the evidence will establish that, when problems are identified in a review of the title abstract which is completed for each residential real estate transaction closed by the defendant, such issues are resolved by an employee of Closings. Plaintiffs further contend that, at a majority of the real estate transactions closed, the attorney-employee of Closings who is supervising and conducting the closing is the only attorney present. Finally, plaintiffs contend that the facts will show that Closings conducts its business in a manner that results in fee sharing between lawyers and non-lawyers.

Closings paints a very different picture. Closings contends that the evidence will establish that although it provides the premises in which residential real estate transactions are closed and its employees oversee the execution of documents, calculate figures, act as a messenger service and as escrow agent when the need arises, Closings' employees scrupulously avoid performing any of the other tasks associated with a residential real estate closing which are uniquely within the province of the legal profession: its only clients are institutional lenders; its employees, including its attorney-employees refrain from ever giving legal advice to its lender clients or any other party connected to the real estate transaction; although they fill in blank spaces in lender supplied closing documents, they never negotiate or vary any aspect of such forms without obtaining the lender's express approval; and their role in the title certification process is simply to prepare an abstract which is then given to an outside attorney separately retained and paid for by the institutional lenders or their borrowers. In short, Closings asserts that its operation consists of providing physical accommodations and that its employees act only as scriveners, messengers, and escrow agents. Closings further contends that its promotional materials are consistent with this image, although Closings does concede that employees may give brief explanations regarding the documents to be signed.

Before proceeding with a discussion of those elements of a real estate transaction which should be characterized as "practicing law" and the policy reasons for that conclusion, the MBA feels compelled to respond to a suggestion found in both the defendant's answer and in its statement of contested issues of fact, that the plaintiff's suit is somehow tainted because a successful conclusion may inure to the economic advantage of the bar. Although Closings concedes that the plaintiffs have "standing" to maintain this suit, it denies in its answer that MABC and its members are concerned with protecting the public interest and avers that "MABC are in direct economic competition with the defendant and that they are attempting to monopolize the business of residential real estate closing to the detriment of the public."A similar allegation is made with respect to MCA members. These allegations are echoed in Closings' statement of contested issues of fact where it lists as such issues whether the members of the plaintiff organizations are in direct competition with Closings and whether it is to the economic advantage of the members of those of those organizations to prevent Closings from continuing to operate. Whether the plaintiffs prevail in this litigation, the MBA vigorously supports the propriety of it. As is obvious from a quick perusal of the promotional literature, attached as exhibits to the plaintiffs' complaint, which the defendant's answer states "speak for themselves," both the public and plaintiffs might reasonably think that Closings intended to perform tasks which, as this brief will demonstrate, constitutes the practice of law. Defendant's vice president James C. Hessian in announcing the formation of Closings, Ltd. stated:

Closings, Ltd. is dedicated solely to providing efficient processing of loan closings with the highest level of quality and service to borrowers, realtors, and lenders. . . this combination of highly capable staff and computer automation gives us the ability to respond quickly and accurately to any questions a borrower or lender may have. . . your closing documents will be clearly explained and all figures will be concisely summarized and reconciled. A specific attorney and paralegal team is assigned to each loan so all parties deal with the same individuals from the time Closings, Ltd. receives the loan until after the loan has been closed and returned to Danvers Savings Bank.

In a letter from George E. Morse of Ardiff & Morse announcing the agreement with Closings under which it "will assume the responsibility for the management of our residential real estate mortgage closing activity," Mr. Morse stated that, while attorney Ralph E. Ardiff, Jr. will continue to be responsible for the firm's real estate title certification process, he will also "serve as a consultant to Closings, Ltd." Mr. Morse further stated that Attorney James C. Hessian, formally of Ardiff & Morse, "has joined Closings, Ltd. as vice president in charge of operations. The remainder of the former Ardiff & Morse, P.C. real estate conveyancing services attorneys and staff will continue their excellent work with the new corporation." The clear implication of these statements, and other statements made in promotional activities also attached to the complaint, is that, except for the title certification process, the law firm of Ardiff & Morse was turning over that portion of its practice which involved real estate closings to Closings.

Thus, Closings would not be practicing "law" only if one believed that the only part of the Ardiff & Morse real estate practice which consisted of the "practice of law" before the creation of Closings was title certification. Accordingly, the plaintiffs not only had a right conferred upon them by M.G.L. c. 221, § 46B to initiate this suit, they also had an obligation imposed by the Canons of Ethics which states that "a lawyer should assist in preventing the unauthorized practice of law." Rule 3:07 It is simply disingenuous to suggest that this ethical obligation should be vitiated because of the obvious: when a person not authorized to practice law does so, he will be performing services which a lawyer would otherwise be paid to perform.
As the Supreme Judicial Court observed in Matter of Keenan, 314 Mass. 544, 546-547 (1943):

The right to practice law is not one of the inherent rights of every citizen, as is the right to carry on and ordinary trade or business. It is a peculiar privilege granted and continued only to those who demonstrate special fitness in intellectual attainment and moral character. All may aspire to it on an absolute equal basis, but not all will attain it. Elaborate machinery has been set up to test applicants by standards fair to all and to separate the fit from the unfit. . .

To those who acquire and who retain the necessary qualifications is granted a monopoly of the honors and the emoluments of a profession which more than any other is public in nature and intimately connected with the highest functions of the state. Such a monopoly in a quasi-public occupation is in no sense promoted and fostered for the for the personal advantage of individuals. It can be justified only on the ground that long experience has shown it to be absolutely essential to the public welfare.

See also Rosenthal v. Shepard Broadcasting Service, Inc., 299 Mass. 286, 291 (1938) (in a suit to enjoin unauthorized practice brought by three Massachusetts attorneys under 46B the court recognized that "the petitioners brought this proceeding under statutory authority for the public welfare and not for selfish reasons or for pecuniary profit.")

Plaintiffs have brought this suit in the manner expressly contemplated by Massachusetts statutory scheme and consistent with their obligations under the Canons. If the facts demonstrate that the proscription against the unauthorized practice of law is being violated by Closings, the incidental economic advantages which may result to individual members of the bar by having such practices enjoined, serves as no basis for either excusing or mitigating Closings' conduct.

ARGUMENT
What constitutes the unauthorized practice of law proscribed by the statute and the Canons?

In 1916, the Legislative enacted St. 1916 c. 292 which made it a crime for corporations to practice law. Express exceptions were made for banks and trust companies giving legal information or legal advice with respect to investments, taxation or with respect to offerings for the sale of stocks, bonds, notes or other securities as property. Section 4 of the act also excepted from its purview corporations conducting a collection agency, those engaged in the examination and insuring of titles, and personal injury insurance companies. In 1934 the Massachusetts Senate had pending before it a bill which would have required, for the insurance and title examination companies, that the services be performed only by an employee who was licensed to practice law. The bill would also have added an exception for certain activities of accountants. The Supreme Judicial Court, responding to questions posed by the Senate as to the constitutionality of the bill, held that the exceptions created for corporations were all unconstitutional. Opinion of the Justices, 289 Mass. 607 (1934). In so doing, the court provided subsequent Massachusetts courts a framework within which to approach any particular question as to unauthorized practice.

First, the SJC identified those qualities that which attorneys or counselors at law possess, and which are lacking in laypersons and corporations, that provide the justification for the "monopoly in the public interest" that results from such legislation. The Court began by observing that "the practice of law is personal [and] is open only to individuals proved to the satisfaction of the court to possess sufficient general knowledge and adequate special qualifications as to learning in the law and to be of good moral character." Id. At 613. The SJC then noted that "[a]fter one has been sanctioned in these respects, the oath as an attorney must be taken, whereby one becomes an officer of the court and subject to its discipline for violation of his obligations even to the extent of removal from his office." Id. It further noted that there then comes into existence a trust relationship between the attorney and both his or her clients and the courts. Furthermore, attorneys are bound by the Canons of Ethics which impose on the attorney a duty of confidentiality to his clients, a "conspicuous degree of faithfulness and disinterestedness", and "utter renunciation of every personal advantage conflicting in any way directly or indirectly with the interests of his client." Id.

The SJC then proceeded in a general way to set forth those services which an attorney performs which the public interest requires be performed by a person possessing those special attributes. Obviously, its starting point was the attorney's role before courts in the course of litigation. However, it made clear that such a definition was too limited. Recognizing that the "customary functions of an attorney or counselor at law". . . bear an intimate relation to the administration of justice by the courts," the court stated:
Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to any proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering and extensive field of business and trust relations and other affairs. . . . No valid distinction. . . can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. The work of the office lawyer is the groundwork for future possible contests in court. It has profound effect on the whole scheme of the administration of justice. It is performed with that possibility in mind, and otherwise would hardly be needed. In this country, the practice of law includes both forms of legal service; there is no separation, as in England, into barristers and solicitors. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligation to client which rests upon all attorneys. The underlying reasons which prevent corporations, associations and individuals other than members of the bar from appearing before the courts, apply with equal force to the performance of these customary functions of attorneys and counselors at law outside of courts.

Id. at 613-614 while the court noted that the "occasional drafting of simple deeds, and other legal instruments when not conducted as an occupation or yielding substantial income may fall outside the practice of law" (and noted as similar examples the gratuitous furnishing of legal aid to the poor, the search of records of real estate to ascertain what may be disclosed "without giving opinion or advice as to the legal effect of what is found, and the work of an accountant"), it noted that "[a]ll these activities. . . lie close to the border line and may easily become or be accompanied by practice of the law." Id. at 615.

Since this 1934 Opinion of the Justices, the Supreme Judicial Court and Appeals Court have, in a variety of contexts, been called upon to deal with those practices which "lie close to the borderline and may easily become or be accompanied by the practice of law." Although none are directly analogous to the present situation - - where the residential real estate closing activities of a law firm along with that firm's attorneys and staff have been assimilated by a corporation not licensed to practice law - - these cases provide some useful insights as to the specific factors which are relevant to determining whether a layperson or corporation is impermissibly practicing law. See, e.g., Matter of The Shoe Manufacturers Protective Association, Inc., 295 Mass. 369 (1936) (collection agency which drew agreements and other legal documents of various kinds relating to the business of others than itself was impermissibly practicing law) ; Lowell Bar Association v. Loeb, 315 Mass. 176, 185 (1943) (employees of a tax service did not practice law by filling out income tax forms of "least difficult kind" where blank forms were furnished by tax officials and where such forms could be "readily filled out by any intelligent taxpayer whose income is derived wholly or almost wholly from salary or wages and who has the patience to study the instructions."); Goldblatt v. Corporation Counsel of Boston, 360 Mass. 660, 665 n.4 (1971) (doing research at registry of deeds and making reports (and even recommendations) to attorneys would not constitute practice of law because "public interest will not be served requiring that routine duties be performed by attorneys when laymen could adequately and more economically perform the functions."); DeVaux v. American Home Assurance Co., 387 Mass. 814 (1983) (attorney may delegate tasks to clerks, secretaries and other laypersons only where "lawyer maintains a direct relationship with his client, supervises the delegated work and has complete professional responsibility for the work product.")

While it is not possible to distill from these precedents a simple test to determine which legally-related services may be properly performed by laypersons or non-professional corporations, it is apparent that the litmus should be whether the consuming public is best served by having the particular service performed by an attorney. As applied to the present controversy then, the court must identify what services the defendant holds itself out to perform or, in fact, performs in its "closings" activities and ask with respect to each such service whether the unique qualities of the lawyer are involved.
First and foremost those qualities consist of the special legal expertise which only an attorney can bring to bear by virtue of his or her training and experience. Related to that, but conceptually distinct, is the fact that the lawyer is also trained in the art of communicating. to laypersons the legal principles implicated in a given situation and is trained, as well, in the art of advocacy, if advocacy is distinct from the communication of ideas, is required. These attributes, when they coalesce, justify the encomium "counselor" which is bestowed on the attorney.

This court should also consider whether the public is better served by entrusting responsibility for a particular task to an attorney because of the ethical obligations imposed on attorneys. Specifically, lawyers, under Canon 5, must avoid conflicts of interest, between either themselves and their client or other clients and their client, under Canon 4 are also subject to a duty of confidentiality. Also, the lawyer, unlike the layperson, is subject to discipline by the Supreme Judicial Court if he or she violates these standards of conduct and is also subject to a heightened standard of civil liability (malpractice) for transgressions. Finally, attorneys are subject to certain statutory penalties which laypersons are not, such as M.G.L. c. 221, § 51 which provides that "[a]n attorney. . . who unreasonably neglects to pay over money collected by him for and in behalf of a client, shall forfeit to such client five times the lawful interest of the money from the time of the demand." These special obligations imposed on the attorney by the lawyer/client relationship make irrelevant that Closings employs attorneys to conduct or supervise its business. Although they may be skilled in real estate law, their duty is to their employer, Closings, and not to the lenders, sellers and buyers whose interest are affected by their services. Thus, as the Supreme Judicial court observed in Matter of Shoe Manufacturers Protective Association, Inc., 295 Mass. 369, 373 (1936), a corporation which employs attorneys to "practice law" is "selling legal services and destroying the relationship of direct personal confidence and responsibility which ought to exist between attorney at law and client, and attempting to assume that relationship in its own corporate capacity."

While the MBA cannot anticipate what particular services this court will determine are, in fact, being performed by Closings, it can appropriately comment on which of the services that are part of the anatomy of a typical "closing" should be characterized as part of the practice of law. First, at the outset of the typical closing process, the preparation of the necessary closing documents, and indeed the very success of effectuating a closing, depends upon an assessment of the purchase and sale agreement which the parties have negotiated. This has a two-fold aspect: (1) the agreement itself may need interpretation, and (2) once interpreted, a determination must be made as to what legal steps will be necessary to carry out the terms of that agreement. Unfortunately, lawyers frequently become involved in this process only after the buyer and seller, without legal assistance, have already executed a binding agreement. While real estate brokers and laypersons may think in terms of "standard" purchase and sale agreements, any competent attorney knows, often from painful experience, that so-called "standard terms" are not always equally beneficial or appropriate to the needs of both buyer and seller. It is unclear from the pleadings what role the employees of Closings may play in this process. But if the facts establish that they construe provisions in the purchase and sale agreement and give advice concerning its proper interpretation or compliance with its terms to lenders, buyers or sellers, once the closing process is entrusted to them, it is the opinion of the MBA that this constitutes the practice of law, calling as it does for the special expertise of the lawyer and the attendant avoidance by the attorney of any conflict of interest. The latter aspect seems especially significant since it is clearly to the economic advantage of Closings that the transaction be consummated. Its business is to "close". While closing the transaction may be in the best interest of the seller when problems arise, and even the lender, depending on the equity of the buyer, it may clearly not be in the best interest of the buyer. Thus, the MBA believes that only an attorney should be entrusted with giving counsel with respect to the meaning of the contract and compliance with its terms. It is also common place that not all closing documents are on standard forms requiring only a scrivener to fill in the blanks. The terms of the purchase and sale agreement and defects determined by the attorney certifying the title often require that specialized documents or agreements be drafted. Again, it is obvious that such services should only be performed by an attorney. Not only will the attorney possess the requisite legal skill to avoid mistakes which may be costly to one or more to the parties to the transaction, but will also possess the training in communicating the need for particular documents to the parties and, if the parties are not in agreement, as to the solution most appropriate. The lawyer also has special skills in advocacy which may permit him to persuade other parties that a particular solution favorable to his client should prevail.
Even in cases where the ultimate ministerial act consists only of filling in a blank in a standardized form such as a deed, the guidance and advice which leads to that ministerial act can constitute the practice of law requiring the lawyer's special skills and status. A familiar example which illustrates the point is the decision of co-purchasers in deciding in whether they will take as tenants-in-common, joint-tenants, or (in the case of a married couple) tenants-by-the-entirety. The dramatically different consequences which flow from this choice are a matter of indifference to the seller, of some possible consequence to the lender, but of paramount importance to the buyer. See, e.g., Reder v. Kuss, 351 Mass. 15 (1966) where the surviving co-tenant in common sought reformation of a deed to correct a mutual mistake as to necessity of survivorship language in the deed in order for "survivor" to take. It is not in the public interest that advice with respect to the important distinctions between these forms of ownership should come from laypersons who are unqualified to give it or, in the case of lawyer-employees of Closings, who do not have a lawyer/client relationship with the consumer of that information. Other tasks which a lawyer typically performs at a real estate closing which involve the exercise of knowledge, skill and judgment include the recognition of defects in closing documents prepared by counsel for other parties to the transaction, evaluating the potential adverse consequences to the buyer of exceptions to title in the title insurance contract or the certification of title and the proper legal solution to problems which the seller may have encountered in delivering possession.

The legal reports from this and other jurisdictions are replete with examples of mistakes which have been made in the context of a real estate closing which result in economic harm to one of the parties in the transaction and give rise to litigation. Often these cases are malpractice suits against an attorney who has failed to perform to the high standards demanded by the legal profession. Although such suits show that even a lawyer can make mistakes or give bad advice, they also demonstrate that when that unfortunate event occurs, the victim has recourse because the law imposes a higher standard of care and accountability on lawyers with a consequential enhanced liability for such negligence or malpractice. See, e.g., Hendrickson v. Sears, 365 Mass. 83 (1974) (attorney/client relationship provides basis for imposing a "discovery" rule to application of statute of limitations to malpractice claim arising out of title opinion); Fall River Savings Bank v. Callahan, 18 Mass. App. Ct. 76 (1984) (conveyancer has duty to notify purchasers that their title may be subject to contest, even if it appears that resolution of the contest will favor the purchaser/client); Boisdore v. Bridgeman, 502 So.2d 1149, 1151 (La. App. 1987) (in suit against attorney for breach of fiduciary duty arising out of corporate real estate ventures, held "the director of a corporation and an private attorney are not judged by the same standards, and conduct which may be permissible for a director can nonetheless violate an attorney's duty to his client."); Republic Oil Corp. v. Danziger, 9 Mass. App. Ct. 809 (1980) (attorney liable not only for failure to secure discharge of a lien at closing, but for consequential damages resulting from failure to disclose that fact); Becker v. Port Dock Four, Inc., 752 P.2d 1235 (Or. App. 1988) (attorney liable for mistakes made in preparing deeds even where language causing difficulty was so simple as to be understood by layperson); McWhorter Ltd. v. Ervine, 267 S.E.2d 630 (Ga. App. 1980) ( in malpractice suit against attorney for failure to insert proper language in a standard deed form resulting in the client having to assume liability for certain debts, held "the client has a right to rely upon his attorney and is not forced, as he would be in an adversary position, to weigh the effects of every word included in the fine print of the modern deed form") ; Stake v. Harlon, 529 So.2d 1183 (Fla. App. 1988) (attorney sued for malpractice in giving advice at closing that "due on sale" clause in mortgage was not enforceable, held liable even though such advice was legally correct at the time given; attorney had duty to inform his clients of his awareness of a possible change in the law which, in fact, subsequently occurred) ; Drake Moore Investment Co. v. Janik, 784 P.2d 453 (Or. App. 1990) (attorney had affirmative duty to raise and advise client about pre-payment penalty problem in real estate transaction. Even though client had not appraised attorney that it wanted a penalty or pass-through provision in the contract). See also In re: Lanzz, 65 N.J. 347 (1974) (attorney sanctioned under disciplinary rules for failure to withdraw from representing clients at real estate closing when conflict of interest developed between vendor and purchaser because of revelation at closing that purchaser would not be able to pay full price).

Appropriate Remedy if Defendant is Found to be Violating M.G.L. c. 221 46.
In comparing the anatomy of a typical real estate closing transaction with the services which Closings promotional literature offers to the public it is apparent that, at a minimum, Closings is violating the prohibition in M.G.L. c. 221, 46 against a corporation holding itself out to the public or advertising as being entitled to practice law. Furthermore, if the defendant's services are as advertised, it is clearly marketing a product which has, as a component part, the practice of law. While not every real estate transaction it closes will require the exercise of a lawyer's expertise and judgment and implicate the lawyer's obligation of loyalty and confidentiality, it is obvious that if, as advertised, Closings is "doing it all", a significant percentage of such transactions will. If this court determines that, in fact, Closings is only selling scrivener, messenger and escrow services, and agrees with Closings that these do not constitute the practice of law, then the appropriate remedy may be to enjoin it from false advertising. It should be noted, however, that although these aspects of a real estate transaction do not necessarily involve the lawyer's expertise and judgment, the client will be better served if they are performed by someone who is supervised by an attorney who has an attorney/client relationship with the consumer. This is so with respect to escrow services because of the enhanced liability for a failure to pay over such funds imposed on attorneys by M.G.L. c. 221, § 51. Even having employees of Closings record the instruments which have been executed by the parties involves a risk for them if not done under the supervision of an attorney who is responsible to the client if the proper sequence of recording is not followed. See, e.g., South Carolina v. Buyer Service Co., 357 S.E.2d 15 (1987) holding that recording is an integral part of the real estate transaction. and is part of the practice of law.
If the Court finds that Closings is, in fact, conducting a full service real estate closing operation (perhaps minus the title certification component) then the only appropriate remedy is to enjoin its operation in its entirety. Nothing less will fully protect the public interest.

The South Carolina court in State of South Carolina v. Buyers Service Co., 357 S.E.2d 15, after determining that a commercial title company which offered services remarkably similar to those advertised by Closings was illegally practicing law, enjoined the title company from conducting real estate closings. It reasoned as follows:

While some of these cases hold that lay persons may conduct closings, they note that giving advice as to the effect of the various instruments required to be executed, constitutes the unauthorized practice of law. Thus, in Coffee County Abstract and Title Co. v. State Ex rel. Norwood, 445 So. 2d 852 (Ala. 1984) the title company was permitted to conduct real estate closings with the restrictions that no legal advice or opinions be given. Chief Justice Torbert, concurring, gave instructions as to how such a closing should be handled: " If the parties to the transaction raise a legal question at the closing, the title company should stop the proceeding and instruct them to consult their attorneys." 445 So.2d at 857. We agree this approach, in theory, would protect the public from receiving improper legal advice. However, there is in practice no way of assuring that lay persons conducting a closing will adhere to the restrictions. One handling a closing might easily be tempted to offer a few words of explanation, however innocent, rather than risk losing a fee for his or her employer. We are convinced that real estate and mortgage loan closings should be conducted only under the supervision of attorneys, who have the ability to furnish their clients legal advice should the need arise and fall under the regulatory rules of this court. Again, protection of the public is of paramount concern.

Id. at 19.
MBA respectfully submits that, should this court determine that Closings' employees routinely, or even in a substantial percentage of transactions, "give advice" and otherwise violate Chapter 221, 46 by "drawing agreements, or other legal documents not relating to its lawful business," there is no way that this court or the plaintiffs themselves can effectively monitor compliance with an injunction which simply requires them to refrain from the practice of law component of their operation while continuing with the remainder. The entire operation should be enjoined until this court is satisfied the business has been restructured in a way which wholly precludes the unauthorized practice of law.

Massachusetts Bar Association
By Its Attorneys

Barry Y. Weiner BBO# 519700
William E. Ryckman, Jr. BBO# 436380
Shapiro, Israel & Weiner, P.C.
100 North Washington Street
Boston, MA 02114
(617) 742-4200

Date: August 13, 1993