New post on Livinglies’s Weblog
New post on Livinglies’s Weblog
277 Ga. 472
In the Supreme Court of Georgia
Decided: November 10, 2003
S03U1451. IN RE UPL ADVISORY OPINION 2003-2.
We granted the State Bar of Georgia’s petition for discretionary review to consider the opinion of the Standing Committee on the Unlicensed Practice of Law that the 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. UPL Advisory Opinion No. 2003-2 (April 22, 2003). 1 See State Bar Rule 14-9.1 (g) (3) (authorizing this Court to grant petition for discretionary review or review an opinion on its own motion). Because we agree with the UPL Standing Committee that only a licensed Georgia attorney may prepare or facilitate the execution of a deed of conveyance, we approve UPL Advisory Opinion 2003-2. It is well established that this Court has the inherent and exclusive authority to govern the practice of law in Georgia, including jurisdiction over the unlicensed practice of law. Eckles v. Atlanta Tech. Group, 267 Ga. 801, 804 (2) (485 SE2d 22) (1997). See also GRECAA v. Omni Title Services, Ga. (Case No. S03A1030, decided 11/* /03); Huber v. State, 234 Ga. 357, 359 (216 SE2d 73) (1975); State Bar Rule 14-1.1. In this regard, we have issued formal advisory opinions which confirmed that 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
*1 State Bar Rule 14-9.1 (b) empowers the Standing Committee on the Unlicensed Practice of Law to address inquiries regarding the unauthorized practice of law.
(including, but not limited to, a warranty deed, limited warranty deed, quitclaim deed, security deed, and deed to secure debt). In other words, we have consistently held that it 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. See, e.g., Formal Advisory Op. No. 86-5 (86-R9) (May 12, 1989); Formal Advisory Op. No. 00-3 (Feb. 11, 2000).
The proponents of lay conveyancing, *2 or witness-only closings, *3 urge this Court to overturn UPL Advisory Opinion 2003-2 because, they contend, requiring the services of Georgia lawyers for real estate closings and the execution of deeds of conveyances needlessly harms the public interest by increasing price and decreasing choice for consumers. Recognizing that adherence to the public interest is “the foremost obligation of the practitioner,” First Bank & Trust v. Zagoria, 250 Ga. 844, 845 (302 SE2d 674) (1983), as 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. If the attorney fails in his or her responsibility in the closing, the
*2 “Lay conveyancing,” authorized by statute in some states, is generally defined as the practice by which non-lawyers close real estate transactions, provide settlement services, or select, prepare and complete certain real estate closing documents. See Va. Code. Ann. §§ 6.1-2.19 (2003) (consumer protection statute uthorizing lay settlement services); Colo. Rev. Stat. § 38-35-125 (2002) (recognizing authority of nonlawyers to close real estate transactions); Minn. Stat. §§ 481.02 (2002) (exempting non-lawyer real estate closings from statutory definition of unauthorized practice of law). In Georgia, non-lawyers may conduct pro se those transactions set out in OCGA § 15-19-50 and to which they are a party. *3 “Witness-only closings” occur when notaries, signing agents and other individuals who are not a party to the real estate closing preside “over the execution of the deeds of conveyance and other closing documents, but purport to do so merely as a witness and notary, not as someone who is practicing law.” UPL Advisory Opinion 2003-2, p.5.
attorney may be held accountable through a malpractice or bar disciplinary action. In
contrast, the public has little or no recourse if a non-lawyer fails to close the transaction
properly. 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.
Although it is within this Court’s exclusive authority to determine the scope of the practice of law, we note that since 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. See OCGA § 15-19-50 (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). See also Georgia Bar Association v. Lawyers Title Insurance Corp., 222 Ga. 657 (151 SE2d 718) (1966). Although the language of this statute does not control the practice of law in Georgia, we find it is “in aid of the judiciary in the performance of its functions,” Huber, 234 Ga. at 360, and is consistent with our holding that only an attorney duly licensed in this State can prepare and facilitate the execution of a deed of conveyance. This policy was enacted and continues to exist for the benefit of the public and we are unpersuaded that the time has come to change the policy with regard to lay conveyances or witness-only closings. 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.
De Oppresso Liber
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Faith in Jesus Christ is our response to God's elective purpose in our life. These two truths--God's initiative and man's response--co-exist throughout the Bible. The gospel is "the message of truth" because truth is its predominant characteristic. Salvation was conceived by the God of truth (Ps. 31:5); purchased by the Son, who is the truth (John 14:6); and is applied by the Spirit of truth (John 16:13). To know it is to know the truth that sets men free (John 8:32). Believers are people of the truth (John 18:37), who worship God in spirit and in truth (John 4:24), and who obey the Word of truth (John 17:17). People have rejected, neglected, redefined, and opposed God’s truth for centuries. Some cynically deny that truth even exists or that it can be known by men (John 18:38). Others foolishly think that denying truth will somehow make it go away. Truth determines the validity of one's belief. Believing a lie doesn't make it true. Conversely, failing to believe the truth doesn't make it a lie. The gospel is true because Jesus is true, not simply because Christians believe in Him. His resurrection proved the truth of His claims and constitutes the objective basis of our faith (Rom. 1:4; 1 Pet. 1:3). Truth is our protection and strength (Eph. 6:14). Throughout history, people have tried everything imaginable to gain favor with God. Most turn to religion, but religion apart from Christ is merely a satanic counterfeit of the truth. At the heart of every false religion is the notion that man can come to God by any means he chooses--by meditating, doing good deeds, and so on. But Scripture says, "There is no other name under heaven that has been given among men, by which we must be saved" (Acts 4:12). That name is Jesus Christ, and we come to Him by confessing and repenting of our sin, trusting in His atoning death on the cross, and affirming His bodily resurrection from the grave (cf. Rom. 10:9-10). There is no other way to God. False religious leaders and teachers talk much about God’s love, but not His wrath and holiness; much about how deprived of good things people are, but not about their depravity; much about God’s universal fatherhood toward everyone, but not much about his unique fatherhood toward all who believe in His Son; much about what God wants to give to us, but nothing about the necessity of obedience to Him; much about health and happiness, but nothing about holiness and sacrifice. Their message is full of gaps, the greatest of which leaves out a biblical worldview of the saving gospel and replaces it with the worldview of postmodernism with its dominant ethical system of relativism. The Bible describes mankind in the end times: “always learning and never able to come to the knowledge of the truth” (2 Tim. 3:7). Spiritual answers cannot be deduced by human reason alone (1 Cor. 2:14). It’s not that spiritual truth is irrational or illogical, but that human wisdom is defective, because it’s tainted by man’s sinfulness, and unable to perceive the things of God. That is why the Bible is so important. It gives us the answers we can’t find on our own. It is God’s Word to mankind. Scripture is divinely revealed truth that fills the vacuum of spiritual ignorance in all of us. Post-truth is the word of the year for 2016 and also the philosophy of the day, According to the dictionary, “post-truth” means, “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” Simply put, we now live in a culture that seems to value experience and emotion more than truth. In a “post-truth” world, people make choices based on emotion and experience rather than objective fact. So in a post-truth world, truth is irrelevant. What exactly is a post-truth culture? It’s a culture where truth is no longer an objective reality. It has become subjective. It’s what’s true for me—my beliefs, my opinions, determine my truth. So in our post-truth culture, man determines truth. Man makes himself the ultimate authority. This starting point, which rejects God’s Word and the idea of moral absolutes, makes truth subjective. Truth will never go away no matter how hard one might wish. Christianity is grounded in objective truth. “And you shall know the truth, and the truth shall make you free” (John 8:32). Objective truth exists because we have God’s Word. In the Gospel of John, Jesus says, “Sanctify them by Your truth. Thy word is truth” (John 17:17), and Paul and James describe the Bible as “the word of truth” (2 Timothy 2:15; James 1:18). The Psalmist says, “The entirety of your word is truth” (Psalm 119:160). Jesus Himself said, “For this cause I was born, and for this cause I have come into the world, that I should bear witness to the truth. Everyone who is of the truth hears My voice” (John 18:37). When Jesus said, “I am the Way, the Truth, and the Life. No one comes to the Father except by me” (John 14:6), He wasn’t expressing His personal belief or opinion. He was speaking the truth, a fundamental reality that doesn’t change from person to person. It doesn’t matter if our culture thinks all roads lead to God. The truth of the matter is “no one comes to the Father but by [Jesus].” This blogs goal is to, in some small way, put a plug in the broken dam of truth and save as many as possible from the consequences—temporal and eternal. "The further a society drifts from truth, the more it will hate those who speak it." - George Orwell
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