Volume 18, Number 3
April/May 2001

The Chairs Corner

In Defense of the Turf

Wynn A. Genderson

This issue has many informative articles related to handling real estate transactions that should be of interest to many of our members. Lawyers have been involved in handling real property transactions since very early times. Transactions in those early days involved title to real property that was transferred through the symbolic act of the seller handing a piece of sod or a handful of dirt to the buyer to consummate the sale.

Unfortunately, the lawyer's role in real estate matters today is declining, as is the lawyer's role in many other areas of the law. It is ironic that as property transactions have become more complex, lawyers have become less involved. Nonlawyers are now performing many of the tasks handled previously only by lawyers. Sadly for our clients, these unlicensed individuals, e.g., realtors, title company representatives, and paralegals (unsupervised by attorneys), are preparing contracts for deeds, warranty deeds, leases, and other types of real property documents. While properly supervised legal assistants can help meet client needs and enhance a lawyer's practice, when nonlawyers misrepresent to the public that they can prepare legal documents without the need for a lawyer, the best interests of our clients are inevitably jeopardized.

Lawyers have always been vigilant in protecting the rights of their clients but seem to have an aversion to protecting their own interests. This is particularly true when their interests are collaterally involved with the interests of their clients. We seem to stand by and watch with indifference as this encroachment occurs, "one piece of sod or handful of dirt" at a time. We do this despite being aware that the consequences can be damaging to both our client and the profession; in doing so, we seemingly ignore the laws proscribing the unauthorized practice of law. The only times we take umbrage with such transgressions is when we perceive that our very existence is being threatened, as we apparently did when the Commission on Multidisciplinary Practice proposed major changes to how we practice. We don't demonstrate that same concern when our profession is gradually eroded.

I have heard some say that excluding lawyers initially only guarantees that they will be needed to a greater degree later in order to straighten out the mishandled transaction. (Those who support this premise see it as being similar to the well-known Fram oil filter advertisement slogan: " Pay me now or pay me later.") I submit this is an unsuitable justification for not enforcing the unauthorized practice of law statutes for the benefit of our clients and profession. After all, isn't looking out for the best interests of our clients our primary purpose?

It's time to draw a line in the proverbial dirt and stand up for our clients and our profession. Are you willing to defend the turf?

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