MASSACHUSETTS ASSOCIATION OF
BANK COUNSEL, INC., and
PETER WITTENBORG, JAMES B. McELROY
and MICHAEL P. HEALY, as they are
officers and members of the
MASSACHUSETTS CONVEYANCERS
ASSOCIATION, ) C.A. No. 90-3053-C

Plaintiffs,

5.

CLOSINGS, LTD.,
Defendant.
__________________________________________

PLAINTIFFS' TRIAL BRIEF

1. INTRODUCTION.
This action seeks declaratory and injunctive relief under the unauthorized practice of law statutes [1] prohibiting Closings Ltd. ("Closings") from conducting residential real estate closings in this Commonwealth. In particular, the activities undertaken by Closings are in violation of G.L. c. 221, § 46 which provides that "no corporation or association shall draw agreements, or other legal documents not relating to its lawful business . . . Or give legal advice in matters not relating to its lawful business, or practice law, or hold itself out in any manner as being entitled to do any of the foregoing acts."

In 1988, Bain & Company and Bain Venture Capital Corp. identified the eastern Massachusetts market of residential real estate closing services as a large, profitable, and "without any dominant competitors." Plaintiffs' Trial Exhibit 2, p.1. [2] Closings was incorporated by Bain as a for-profit Delaware corporation for the purpose of conducting real estate closings . Exs. 5-8.

While Bain recognized that it could build a closing business from scratch by delivering service and quality, that approach was "far too slow" Ex. 2, p.3. Instead, Bain preferred to "buy" relationships with mortgage lenders. Ex. 2, p.4. To this end, Closings purchased the residential real estate closing department of the law firm of Ardiff & Morse, P.C. Exs. 1, 9. Closings leased the office equipment used by Ardiff & Morse in its conveyancing practice, sublet space formerly occupied by Ardiff & Morse, employed the former Ardiff & Morse attorneys and support staff, purchased Ardiff & Morse's back title files, and assumed Ardiff & Morse's residential real estate work in progress. Ex. 9.

In its advertisements and solicitations to lenders, brokers and the general public (Exs. 26-28, 31-32), Closings claims to provide a full service closings operation staffed by the former Ardiff & Morse attorneys and the other attorneys it has hired since 1988. [3] Among other activities, Closings completes all closing documents, makes legal judgements regarding title abstracts, municipal lien certificates and plot plans, engages a separate attorney on behalf of the lender to certify title, schedules and conducts the closing, explains the documentation to the parties at the closing, resolves issues that arise in the course of the closing, transfers funds, records the title documents, and returns the documents to the lender. These specific activities undertaken by Closings and the general act of closing a residential real estate loan constitute the practice of law.

As the evidence will demonstrate, it is impossible to perform the range of services provided by Closings without engaging in the practice of law in violation of G.L. c. 221, §§ 46 and 46A. Consequently, the plaintiffs will be entitled to (1) a declaration that Closings is engaged in the unauthorized practice of law and (2) an order permanently enjoining it from such practices.

II THE POLICIES UNDERLYING THE PROHIBITIONS AGAINST THE UNAUTHORIZED PRACTICE OF LAW

The practice of law, which is not capable of clear delineation, embraces those activities that require the professional judgment of a lawyer. Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 180 (1943). The essence of a lawyer's professional judgment is his educated ability to apply the general body and philosophy of the law to evaluate, alter or protect a client 's legal rights. The public interest is served only if lawyers, who have demonstrated such ability by passing the bar examination and are licensed by the Commonwealth and subject to the Court's direct oversight, are permitted to practice law. Lowell Bar Ass'n, 315 Mass. at 180 ('The jurisdiction for excluding from the practice of law persons not admitted to the Bar is to be found, not in protection from the bar of competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons, over whom the judicial department could exercise little control").

Those permitted to advise and represent others as to matters affecting their legal rights are properly "held to a high standard of honor and ethical conduct." Lowell Bar Ass'n, 315 Mass. at 180. To allow a corporation, which by its nature must be beholden first and foremost to its stockholders' interest, to practice law is tantamount to "destroying the relation of direct personal confidence and responsibility which ought to exist between attorney at law and client." Matter of Shoe Mfrs. Protective Ass'n, Inc., 295 Mass. 369, 373 (1936). See also State Bar of Arizona v. Arizona Land Title and Trust Co., 90 Ariz. 76, 88, 366 P.2d 1, 9 (1961) ("[M] any of the Canons of Professional Ethics which attorneys must observe most scrupulously are diametrically opposed to the code by which businessmen must live if they are to survive"). [4]

The practice of the law is personal. It 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. After 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. A dual trust is imposed on attorneys at law: they must act with all good fidelity both to the courts and to their clients. They are bound by canons of ethics which have been the growth of long experience and which are enforced by the courts. [citation omitted]. The relation of an attorney to his client is preeminently confidential. In addition to adequate learning, it demands on the part of the attorney undivided allegiance, a conspicuous degree of faithfulness and disinterestedness, absolute integrity, and utter renunciation of every personal advantage conflicting in any way directly or indirectly with the interests of his client. Only a human being can conform to these exacting requirements. Artificial creations such as corporations or associations cannot meet these prerequisites.

Opinion of the Justices, 289 Mass. 607, 613 (1934)

These statements are as true today as when they were first articulated by the Court. Moreover, in an age of technical wizardry, multinational mega-corporations, disembodied voice mail systems, drive-up windows, facsimile machines, and automated bank tellers, they remain vital to the Court's efforts to ensure that the public is competently advised and represented in matters requiring legal judgments and that the Court retains its ability to oversee those providing such services to the public.

II THE CLOSING OF A RESIDENTIAL REAL ESTATE TRANSACTION CONSTITUTES THE PRACTICE OF LAW

The central issue in this case is whether the activity of closing a residential real estate in Massachusetts constitutes the practice of law. The Supreme Judicial Court has considered a variety of factors to determine whether a given activity involves the practice of law, including whether the activity requires judgements regarding a client's legal rights, whether the activity actually does, or has the potential to, alter the legal rights and obligations of others, and whether the legal nature of the matter is invariably simple or potentially complex. Notably, the actual practices of the community have an "important bearing" in determining what activity constitutes the practice of law. Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 186 (1943).

With reference to these factors, the Court has previously found that the practice of law "embraces conveyancing." Opinion of the Justices, 289 Mass. at 613. See also In re Burton L. Schafer, No. 88-21BD (Jan. 17, 1991) (Wilkins, J.) (Activities which include delivering deed, reviewing computations of closing figures, and making telephone calls to locate missing mortgage discharge, constituted practice of law). See also Coffee County Abstract and Title Co. v. State ex rel. Norwood , 445 So. 2d 852 (Ala. 1983); State Bar of Ariz v. Arizona Land Title & Trust Co., 90 Ariz.76, 366 P.2d 1 (1961), reheard, 91 Ariz. 293, 371 P.2d 1020 (1962); Florida Bar v. Irizarry, 268 So.2d 377 (Fla.1972); Regas v. Continental Casualty Co., 139 Ill. App. 3d 45 (1985); New Jersey State Bar Ass'n v. N.J. Ass'n of Realtor Boards, 452 A.2d 1323 (N.J. 1982); State v. Buyers Service Co., 357 S.E.2d 15 (S.C. 1987); Bowers v. Transamerica Title Ins. Co., 100 Wash.2d 581 (1983).

Conveyancing refers to those activities undertaken to close a residential real estate transaction once the buyer and seller have entered into a purchase and sale agreement. The purchase of a home and the legal consequences that accompany that purchase are of great importance. Calvert v. K. Hovnavian at Galloway, VI, Inc., 607 A.2d 156, 162 (N.J. 1992) (" for many people the purchase of a home will be the most significant financial transaction they will ever undertake"). Consequently, in this Commonwealth. these activities have traditionally been performed by attorneys.

As explained more fully below, services performed in connection with a residential real estate closing range from sophisticated and difficult exercises of legal judgment to ministerial exchanges of paper and collection of documents. Once a purchase and sale agreement is executed, the buyer must ordinarily obtain financing from a lender to purchase the home. Although the parties to the real estate transaction, the buyer, the seller, and the mortgage lender may draft and execute legal documents on their own behalf without engaging in the unauthorized practice of law,[5] the provision of such services by a third party does violate the statutes. However, counsel is generally retained once a lender has made a commitment to the buyer to provide him with a loan to purchase his house. In some regions of the Commonwealth, counsel is retained by the buyer directly. In other regions, counsel is retained by the lender.

Below, the plaintiffs have described the general procedure followed by Closings in the course of closing a residential real estate transaction. Closings's practices are not significantly different from those followed by most real estate attorneys throughout the Commonwealth. Where differences exist, the plaintiffs have noted them.

A. Drafting Legal Documents.
When Closings is retained by a lender, it is engaged to draft the note (Ex. 2, pp.157-61; Ex. 142), the mortgage (Ex. 14, pp.208-15; Ex. 135), consents of beneficiaries (Ex. 93), discharges (Exs. 110, 136-37), petitions to the Land Court (Ex. 138), subordinations (Ex. 147), and all most other legal documents required to close a loan.

Lay-persons are strictly prohibited from drafting documents with legal significance where those documents "relat [e] to the business of others than itself." Matter of Shoe Mfrs. Protective Ass'n, Inc., 295 Mass. 369, 372 (1936) (corporation which completes legal documents for others in the course of in conducting its collection business engages in the unauthorized practice of law).Only where the completion of the document is "merely incidental" to the drafter's "distinct occupation" has the Court been willing to exclude such activity from its definition of the practice of law. Lowell Bar Ass'n, 315 Mass. at 181; Opinion of the Justices, 289 Mass. at 615. In this case, the preparation of documents is not "merely incidental" to Closings's business.

Other jurisdictions have noted that "even with preprinted forms [the activity of completing the form] involves more than mere scrivener's duties. By necessity, the agents pass upon the legal sufficiency of the instruments to accomplish the contractual agreement of the parties." State v. Buyers Service Co., 357 S.E.2d 15, 17. (citing Pioneer Title Ins. & Trust Co. v. State Bar of Nev., 326 P.2d 408 (Nev. 1958)). Consequently, non-lawyers have been "enjoined from drafting, filling in blanks or preparing contracts for the sale of [certain] residential real estate" units on behalf of third parties. N.J. State Bar Ass'n, 452 A.2d at 1327. See also Calvert, 607 A.2d 156 (licensed real estate broker was engaged in the unauthorized practice of law by filling in the purchase agreement and other conveyance forms);Kentucky State Bar Ass'n v. Tussey, 476 S.W.2d 177 (Ky. 1972) (preparation of real estate mortgages by lay-persons constituted the unlawful practice of law); State Bar of Arizona v. Arizona Land Title and Trust Co., 90 Ariz. 76, 366 P.2d 1 (1961), reheard, 91 Ariz. 293, 371 P.2d 1020 (Ariz.1961) (land title companies and real estate brokers may not prepare deeds or conveyances relating to land in which they do not hold absolute or equitably ownership): People v. Sipper, 61 Cal. App. 2d Supp. 844, 142 P.2d 960 (1943) (unauthorized practice of law found when a real estate broker prepared for a fee a document to secure a loan with real property).

B. Title Examination.
In connection with the conveyance of residential real estate, Closings performs a title examination of the property. That process is begun by obtaining a title report or abstract from its staff or from a contract title examiner. The report summarizes certain information regarding the title and references in the right-hand column copies of documents attached to the report that were filed with the appropriate registry and concern the property. Exs. 37-45. The report is sent to Closings to be reviewed.

A review of title to residential property constitutes the practice of law. E.g., In re Behenna, 92-72BD (Jan. 19, 1993) (O'Connor, J.) ("title examination, even without the rendering of advice, would constitute the practice of law"); In re James M. Oates, No. 81-11BD (Aug. 6, 1986) (Liacos, J. ) ("[T]itle searching is commonly perceived by the general public to be a pursuit, if not exclusively within the realm of the legal profession, closely associated with it").

Unlike Closings, a real estate attorney in Massachusetts conducts a title examination by reviewing the report or abstract and the referenced documents himself. In the course of that review, he identifies and resolves title issues to ensure that the seller has good title and whether there are any encumbrances which adversely affect title and which must be removed or cured.

In the closings performed by Closings, the initial phase of the title review, identifying title problems, ordinarily is performed by part-time attorneys who are paid by Ardiff & Morse but hired by Closings. (Although this practice evidences a recognition that this initial phase of the title review constitutes the practice of law, some of these reviews are conducted by Closings's own employees. Ex. 62). The part-time attorneys receive packages from Closings containing a number of title reports for review. During the review of those reports, the part-time attorneys create a list of "Issues to be Resolved," identifying those issues which may have an adverse impact on title. Exs. 46-64.

A number of issues are routine, such as the identification of outstanding mortgages that need to be discharged. However, other issues are more complex, including issues regarding the validity of a tax foreclosure. (Ex. 46); the absence of a recorded power of attorney (Ex. 47); a defective release of a homestead (Ex. 58); and instances of self-dealing by trustees of a trust (Ex. 55). In some instances, the part-time attorney suggests a resolution of the title issue. In many cases, the part-time attorney merely raises the issue without suggesting a resolution. Exs, 51, 54, 57, 59, 61. Even where the part-time attorney suggests a resolution, Closings often decides to resolve the issue in another way (Exs. 47, 56, 58, 60, 63) , or resolves the issue itself (Exs. 54, 61).

In the course of their work, the part-time attorneys have occasion to refer Closings to various reference works, title standards and statutes. Exs. 46, 47, 48, 53, 59, 64. Rarely, if ever, do they speak with any full-time attorney at Ardiff & Morse regarding an issue identified while reviewing the title abstract. Some had never spoken to Ralph Ardiff until the day before her deposition.

When this initial review of the title abstract is complete, the part-time attorneys append the "Issues to be Resolved" sheet and a list of suggested title exceptions to the report and return the entire package to Closings. They have no further involvement with the equally, if not more, significant step of resolving the issues they identified. All of the work to resolve the open issues is completed by Closings employees, who are themselves attorneys. These Closings employees determine among themselves, and only occasionally in consultation with representatives from the mortgage lender, the title insurance company and/or Ardiff & Morse, how to resolve the issues. A significant number of these issues are complex and require substantive knowledge of real estate law. After resolving any open issues, a Closings "OK's" the report (the notation approving the report is placed on the first page; Exs. 37-45) and schedules a closing.

Where the borrower is refinancing a loan, Closings does not go through the procedure outlined above. Instead of sending the title report to a part-time attorney, Closings reviews the title itself and issues a title report to the lender. Exs. 65-69. On some title reports, Closings "certifies" that the lender's mortgage has created a valid lien (Ex. 67) and in others it merely lists the outstanding liens. On at least one occasion, where the lender requested a certification from an "attorney," the Closings employee (who is admitted to the bar) signed the title report with "Esq." following his signature. On another occasion, Closings referred to its services in connection with the title report as "legal services." Ex. 68.

Where the property to be mortgaged concerns a condominium, Closings undertakes to review the legal documentation that creates the condominium and express an opinion regarding its validity. See Ex. 14, p.225 (At a minimum, the condo docs should be reviewed [by a Closings employee] to determine if they comply with chapter 183A. If the bank requires a review for FNMA requirements or FHLMC requirements, you should also do that"). Clearly, rendering such opinions constitutes the practice of law.

C. Preparation Or Review Of Deed.
Massachusetts courts have long recognized that when counsel prepares a deed or reviews a proposed deed in prder to assess its legal sufficiency, he is engaged in the practice of law. Freitas v. Freitas, 349 Mass. 276 (1965) (preparation of deed by real estate broker constitutes the unauthorized practice of law); Opinion of Justices, 289 Mass. 607, 615 (1935) (practice of law includes the examination of real estate records in order to assess the legal validity of those documents and of title). Closings both drafts deeds for sellers and reviews deeds prepared by other attorneys.

In the correspondence which informs the seller of Closings's involvement in closing the loan, Closings offers to prepare the seller's deed for a fee. [7] Exs. 35, 36. If the seller chooses to have the deed prepared by Closings, a Closings secretary types the title description, as identified by one of the part-time attorneys or by a Closings employee, into a word processing program that prints the deed. Examples of instances where a Closings employee has drafted deeds or language to be included in a deed appear at Exs. 94-99.

In these cases where the seller has requested that the deed be prepared, he is charged a fee of $85. Exs. 257-259. Presently, the statement given to the seller indicates that the fee is paid to Ardiff & Morse, which has no role in the actual preparation. The fee is actually split between Ardiff & Morse and Closings in violation of the rules against fee-splitting contained in the Canons of Ethics.

In those cases in which Closings does not prepare the deed, Closings requests that a copy of the proposed deed be forwarded to it. Prior to the time for closing, Closings reviews for accuracy and legal sufficiency the proposed deed and other legal documents to be provided by the seller at the closing. Closings employees have reviewed discharges of attachment (Ex. 205), deeds and powers of attorney (Ex. 206), subordination agreements (Ex. 207), and trustee's certificates (Ex. 210), among others. No attorney employed by Ardiff & Morse reviews such documents.

D. Explanation Of Documents And Providing Legal Advice.

If the documentation is in order, the parties proceed to a closing. At the closing, the Closings employee (who is also an attorney) introduces himself and gives each party a business card that identifies him as an "attorney" or "esquire." Ex. 246. More often than not, the Closings employee is the only attorney present at the closing. The Closings employee will then explain the purpose and legal ramifications of each of the documents that is to be executed, including the note, the disclosure statement, the mortgage, the certificates relating to urea-formaldehyde and lead paint. The Closings employee will review with the buyer the lien certificate, the plot plan and will advise the buyer of the protections and limitations provided by the title insurance. The Closings employee will review with the counsel's certificate of title informing the buyer in particular what aspects of title are and are not covered.

If any of the parties has questions to the process or a particular document, counsel responds to such questions. One of the most common topics discussed at the closing is the manner in which buyer(s) may take title. The Closings employee explains the various ways to hold title. It is not uncommon that a buyer will either change his mind at the closing as to the manner of taking title or will not have indicated his choice prior to the closing. Examples of deeds with handwritten changes made at the closing appear at Exs. 100-109.
In performing this role in explaining the legal effect of the closing documentation, Closings is in direct violation of § 46 which expressly prohibits lay-persons from advising as to the "legal validity" of documents. Goldblatt v. Corporation Counsel of Boston, 360 Mass. 660, 665 (1971) (in reviewing a Civil Service Commission appointment, the Court observed under Section 46 that "[o]nly an attorney may advise as to the legal 'validity' of tax titles"). Only an attorney with the benefit of legal training, is qualified to attest to the legal validity of documents of legal significance such as notes, mortgages, and deeds. To allow laymen to perform this function would be a disservice to the public who have no choice but to rely on the legal judgments of their representatives in the course of the real estate closings process.

E. Resolving Issues Raised At Closing.

Unexpected problems often arise before and at a closing, including issues regarding estate taxes, disputes over the location of various structures on the property, repairs to the property, adjustments to municipal bills, the existence of legal proceedings affecting title, the need for special permits, the presence of lessees who reside on the property, the certificate of municipal liens, various encroachments, and misplaced mortgage discharges. The recognition and resolution of these problems calls for legal judgments, statutory interpretations, drafting of affidavits, agreements and the like, all which constitute the practice of law. Lowell Bar Ass'n, 315 Mass. at 183. When these unexpected issues arise, Closings could require the parties to resolve the problems between themselves, or Closings could suspend the closing until the parties had retained and consulted their own attorneys. In certain circumstances that would be appropriate. However, Closings generally resolves such issues at the closing by drafting affidavits (Exs. 70-82), agreements (Exs. 83-89), certifications (Ex. 92), escrow agreements (Exs. 111-29), holdback agreements (Exs.130-131), indemnification agreements (Ex. 132-34), powers of attorney (Exs. 139-40), releases (Exs. 143-44), and waivers of recission (Exs. 152-54). Occasionally, there is a separate charge to the buyer or seller in connection with the documents drafted by Closings. Exs. 257-258, 260-62.

F. Certification Of Title.
In connection with most mortgages granted on residential real estate, G.L. c. 93, § 70 mandates that an attorney certify that the mortgagor holds good and sufficient record title to the mortgaged premises free from all encumbrances except for enumerated exceptions thereto. In all of the closings conducted by Closings, Closings, rather than the lender, has chosen the attorney who will provide the certification required by statute. Closings claims that all of the real estate transactions it closed were certified by a single attorney, Ralph Ardiff, Esq. of Ardiff & Morse, who also is a shareholder in Closings.

In choosing the attorney who will certify title, as in choosing the part-time attorneys who review the title, Closings creates a relationship which is "against the policy of law." Joffe v. Wilson, 381 Mass. 47, 52 (1980). Canon 5 of S.J.C. Rule 3:22, 359 Mass. 787, 814 (1972), mandates that the client must take part in selecting the attorney, and the attorney should look to the client directly, not an intermediary, for its fee. Joffe, 381 Mass. at 52-53 ("the lawyer should be free of direction by a third [party]").

It is unlawful for a corporation such as Closings to indirectly practice law by engaging attorneys to perform legal service for those with whom the corporation contracts to furnish such services. E.g., People ex rel. Los Angeles Bar Ass'n v. California Protective Corp., 76 Cal. App. 354, 244 P.1089 (1926) (corporation that contracted with patrons to furnish legal services for a fee was engaged in unlawful practice of law). The corporation simply may not act as a middleman to intervene for profit in establishing the professional relationships between the members of the legal profession and the members of the public. The fact that the client-beneficiaries do not select the attorney extinguishes the usual direct personal connection between client and attorney and creates a relationship against the policy of the law. Joffe, 381 Mass. at 52.
The ultimate control must rest with the clients who believe the attorneys are representing their interests, Id. at 53.

In addition, the statements completed by Closings typically show a fee of $150 to Ardiff & Morse in connection with Ralph Ardiff's services for title certification. However, what is not disclosed on the statement or to any of the parties to the transaction is that Ardiff & Morse pays a portion of that $150 fee back to Closings, ostensibly for the provision of a title abstract on which Ardiff & Morse bases its title certification work. Nevertheless, the return of the portion of the fee to Closings constitutes a fee sharing arrangement which is prohibited by the Canons of Ethics.

G. Closings Holds Itself Out As Entitled To Practice Law.
In addition to performing activities that constitute the practice of law, Closings consistently holds itself out to the public as being entitled to practice law by referring to its employees as "attorneys" and "esquire" and by asserting that it is qualified to close residential real estate loans. In correspondence with the buyer, the seller, the lender, the tax collector, title insurers, attorneys and others, Closings refers to its employees as "attorneys" and "esquires."Exs. 214-42. Through the dissemination of its business cards, and by way of introducing itself at the closings, Closings also holds out its employees as "attorney" and "esquire." Even in its internal correspondence, Closings regularly refers to its employees as "attorneys" (Exs. 243-48) and , on occasion, refers to its fee as a "legal" fee. Exs. 264-69.

Significantly, there is no statement made at the closing, or at any other time, that the Closings employee is not able to practice law. Closings advertises that it hires attorneys and paralegals with extensive experience in preparing closing packages, thus leaving the public with the perception that it engages in the practice of law. To a lender evidently concerned with the level of Closings's expertise, Closings expressly assured it that the employee who would handle the lender's closings was an "attorney." Ex. 30.

Consequently, Closings holds itself out as being able to practice law in violation of G.L. c. 221, § 46. See In re Burton Schafer, No. 88-21BD (Jan. 17, 1991) (Wilkins, J.) (Schafer, who had been suspended from the practice of law, "held himself out as an attorney to one of the buyers and participated in [a residential real estate] closing as if he were practicing law"). [9]

III. Conclusion.
For the reasons stated above, the plaintiffs will be entitled to a declaration that Closings is engaged in the unauthorized practice of law and therefore should be restrained from such activities in the future.

MASSACHUSETTS ASSOCIATION OF
BANK COUNSEL, INC., et al.,

By its attorneys,

Thomas F. Maffei (BBO #313220)
Douglas W. Salvesen (BBO # 550322)
Mary Kate Whalen (BBO #557529)
Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, Massachusetts 02109
(617) 227-5020

Date: August 23, 1993

FOOTNOTES:

[1]Copies of G.L. c. 221, §§ 46 and 46A are attached hereto. The Supreme Judicial Court has made clear that, notwithstanding these statutes, only the Court has the authority to determine what activities constitute the practice of law. Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 179-80 (1943).

[2]Hereinafter, the Plaintiffs' Trial Exhibits shall be referred to as "Ex. ."

[3 Although Closings, Ltd. is staffed by attorneys, who themselves would be permitted to practice law, the corporate entity may not itself engage in the practice of law. See G.L. c. 221, § 46.

[4]The Legislature permits lawyers to form professional law corporations in which lawyers may assemble to practice law. G.L. c. 156A, §§ 1 et seq. The strict criteria for classification as a law corporation serve to remedy the lack of accountability to the Bar that corporations otherwise enjoy. Corporations, such as Closings, that do not qualify as law corporations may not engage in the practice of law.

[5]The Court has recognized that, given the wide scope of the law, the definition of the practice of law will not be extended to include distinct occupations, such as architecture or accounting, to which some element of the law is "merely incidental." Lowell Bar Ass'n, 315 Mass. at 181. Although some of the actions necessary to close a residential real estate loan might be incidental to the business activities of a mortgage lender (an issue not before this Court), they are the primary business activities of Closings.

[6]Even in jurisdictions where non-lawyers are permitted some role in preparing conveyancing documents, the courts have often been careful to limit the activity to filling in standardized forms prepared by an attorney (Cultum v. Heritage House Realtors, 103 Wash. 2d 623, 694 P.2d 630, 633 (1985) (en banc)), or to relatively simple transactions, (Gustafson v. V.C. Taylor and Sons, Inc., 138 Ohio St. 392, 35 N.E.2d 435 (1941)), or they have insisted that the documents be preliminary in nature. Chicago Bar Ass'n v. Quinlan & Tyson, Inc., 34 Ill.2d 116, 214 N.E.2d 771 (1966).

[7]After this action was filed, Closings apparently altered its solicitation letter to indicate that it could arrange for a fee to have the deed prepared by Ardiff & Morse. However, the physical manner by which the deed is prepared did not change. Ardiff & Morse has no role in the preparation of the deed.

[8]The fact that Closings only employs persons who are members of the bar to close residential real estate loans is, by itself, compelling evidence that such activities require the knowledge and expertise of a legally trained professional. However, even though the Closings employee is an attorney, the services are being performed by a layperson, a Delaware corporation, and not by an individual subject to the Canons of Ethics and the Court's oversight.

[9]See also The Florida Bar v. Tate, 552 So.2d 1106 (1989) (defendant found to have engaged in the unauthorized practice of law by handing out business cards which did not indicate that he was a foreign attorney not admitted to practice in Florida).