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78 Legal Industry Update State Focus GEORGIA WHAT CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW IN REAL ESTATE CLOSINGS? By: Elizabeth Cruikshank, Cruikshank Ersin, LLC As an attorney who has been practicing in Georgia for the past 13 years and recently admitted to the Florida, it is in the best interest of all parties involved to use an attorney in the states that require either an attorney be present at the closing or limit the actions of a non-law- yer. ere are few closings which occur, if any, where a legal issue or question does not arise. When most people think of the unauthor- ized practice of law ("UPL"), they think about giving legal advice, interpreting a contract, or explaining the consequences to a buyer or seller of their actions. One might not think about permitting a non-attorney settlement service or Title Company to conduct a closing. Two states that require attorneys to be present at the closing are Georgia and South Carolina. Other states, such as Alabama, Delaware, New York, North Carolina, and Massachusetts limit what activities a non-attorney may perform in rela- tion to a closing. e big trend in the last decade has been use nationwide settlement agencies. Although this may work for many states, a number of states, where you may either be acting or assisting in UPL. ere is no one definition for the UPL. in Georgia, the State Bar has worked very hard to narrowly interpret and clarify the defini- tion of UPL in relation to real estate closings. e definition in includes: "Conveyancing: Preparation of legal instructions of any kings whereby a legal right is secured; e render- ing of opinions as to the validity of invalidity of titles to real or personal property; the giving of legal advice; and any action taken for others in any matter connected with the law. " Other attorney states have similar definition. is begs the question how a national settlement agency can draft a Warranty Deed and not commit the UPL. Many times, it is the courts and not the legislature that govern what is and is not the practice of law. e GA Supreme Court in 2014approved the advisory opinion submitted by the Bar. e opinion states four main tenants: (1) It is an ethical violation to assist in a "witness only closing, (2) A violation of the UPL statutes, (3) an attorney must review and resolve title and all other documents related to the closing, and (4) all disbursements must occur through a Georgia IOLTA account. e biggest problem with getting a UPL violation addressed is enforce- ment. Someone has to bring a complaint to the State Bar. e State Bar then has to decide to bring an action against the attorney for ethical violations or UPL or the non-attorney for UPL. is does not happen very often as many people won't want take the necessary steps to make the complaint. ere have been a number of situations where it has cost my client several thousand dollars to clear title because there is no one to hold accountable. In fact, there was at least one situation where an error in the legal description or there was a missing ½ interest. A national title company had handled the closing and was no longer in business. We had to track down the original sellers or in one case, file a Quiet Title Action. When dealing with a local at- torney, I can usually track them down unless they have been disbarred and in many cases, affidavits can be signed and recorded to correct many title issues. Unfortunately, unless there is a Georgia attorney involved in the original closings, affidavits are not permitted to cure most defects. Georgia took it one step further and pro- posed and passed a law known as Act 76 and went into effect July 1, 2015 which gives creates a private cause of action for a citizen to bring against an attorney or a third party who have assisted in the UPL. A consumer may bring an action for damages, treble damages, reasonable attorney's fees and expenses of litigation. is gives rise to the potential liability for a person or company involved in witness only closings.

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