FINAL VERSION 277 Ga. 472
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 No. 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
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.
unlicensed practice of law. Eckles v. Atlanta Tech. Group, 267 Ga. 801, 804 (2) (485SE2d22)(1997).
See also GRECAA, Inc. v. Omni Title Svcs., 277 Ga. 312 ( SE2d ) (2003);
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 (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
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 authorizing lay settlement services); Colo. Rev. Stat. § 38-35-125 (2002) (recognizing
authority of non-lawyers 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 No. 2003-2, p. 5.
Court to overturn UPL Advisory Opinion No. 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 &c. Co. 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 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 Ga. Bar Assn. v. Lawyers Title
Ins. Corp., 222 Ga. 657 (151 SE2d718) (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] function[s]," 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
Accordingly, we hereby approve UPL Advisory Opinion No. 2003-2. UPL Advisory Opinion approved. All the Justices
Decided November 10, 2003 - Reconsideration denied December 12, 2003.
Unauthorized practice of law.
William P. Smith III, General Counsel State Bar, Robert E. McCormack III, Assistant General Counsel State Bar, Holland
& Knight, Harold T. Daniel, Jr., Dennis P. Helmreich, for State Bar of Georgia.
Sutherland, Asbill & Brennan, Teresa W. Roseborough, Allegra L. Lawrence, Deborah M. Danzig, Dara L.
Steele-Belkin, James M. Griffin, John P. Fonte, Richard H. Johnston, Edward F. Glynn, Jr., Ronald M. Jacobs, amici
UPL Advisory Opinion No. 2003-2
Issued by the Standing Committee on the Unlicensed Practice of Law on April 22, 2003. Approved by the Supreme
Court of Georgia on November 10, 2003. In re UPL Advisory Opinion 2003-2, 277 Ga. 472 (2003).
Is the preparation and execution of a deed of conveyance (including, but not limited to, a warranty deed, limited
warranty deed, quitclaim deed, security deed, and deed to secure debt) considered the unlicensed practice of law if
someone other than a duly licensed Georgia attorney prepares or facilitates the execution of said deed(s) for the
benefit of the seller, borrower and lender?
Yes. Under Georgia law, the preparation of a document that serves to secure a legal right is considered the practice of
law. The execution of a deed of conveyance, because it is an integral part of the real estate closing process, is also
the practice of law. As a general rule it would, therefore, be the unlicensed practice of law for a nonlawyer to prepare
or facilitate the execution of such deeds.
In answering the above question, the Committee looks to the law as set out "by statute, court rule, and case law of the
State of Georgia." Bar Rule 14-2.1 (a). "Conveyancing," "[t]he preparation of legal instruments of all kinds whereby a
legal right is secured," "[t]he rendering of opinions as to the validity or invalidity of titles to real or personal property,"
"[t]he giving of any legal advice" and "[a]ny action taken for others in any matter connected with the law" is considered
the practice of law in Georgia. O.C.G.A. §15-19-50. Moreover, it is illegal for a nonlawyer "[t]o render or furnish legal
services or advice." O.C.G.A. §15-19-51.
There are certain exceptions to these statutory provisions. For example, "no bank shall be prohibited from giving any
advice to its customers in matters incidental to banks or banking...." O.C.G.A. §15-19-52. A title insurance company
"may prepare such papers as it thinks proper or necessary in connection with a title which it proposes to insure, in
order, in its opinion, for it to be willing to insure the title, where no charge is made by it for the papers." Id. Nonlawyers
may examine records of title to real property, prepare abstracts of title, and issue related insurance. O.C.G.A.
§15-19-53. O.C.G.A. §15-19-54 allows nonlawyers to provide attorneys with paralegal and clerical services, so long as
"at all times the attorney receiving the information or services shall maintain full professional and direct responsibility to
his clients for the information and services received."
In addition to the acts of the Georgia legislature, the Supreme Court of Georgia has made it clear that the preparation
of deeds constitutes the practice of law, and is to be undertaken on behalf of another only by a duly qualified and
licensed Georgia attorney. For example, the Court has issued the Rules Governing Admission to the Practice of Law in
Georgia. Under Part E of those rules, an individual can be licensed as a "foreign law consultant," and thereby be
authorized to "render legal services and give professional legal advice on, and only on, the law of the foreign country
in which the foreign law consultant is admitted to practice...." Since such an individual has not been regularly admitted
to the State Bar of Georgia, the Court prohibits foreign law consultants from providing any other legal services to the
public. For purposes of this discussion, it is noteworthy that Part E, §2(b) states that a foreign law consultant may not
"prepare any deed, mortgage, assignment, discharge, lease, trust instrument, or any other instrument affecting title to
real estate located in the United States of America."
The Committee concludes that, with the limited exception of those activities expressly permitted by the Georgia
legislature or courts, the preparation of deeds of conveyance on behalf of another within the state of Georgia by
anyone other than a duly licensed attorney constitutes the unlicensed practice of law.
The Committee turns its attention to the execution of deeds of conveyance. Pro se handling of one's own legal affairs
is, of course, entirely permissible, and there is nothing in Georgia law to "prevent any corporation, voluntary
association, or individual from doing any act or acts set out in Code Section 15-19-50 to which the persons are a
party...." O.C.G.A. §15-19-52. The Committee instead focuses on "notary closers," "signing agents," and others who
are not a party to the real estate closing, but nonetheless inject themselves into the closing process and conduct, for
example, a "witness only closing." A "witness only closing" is one in which an individual presides over the execution of
deeds of conveyance and other closing documents, but purports to do so merely as a witness and notary, not as
someone who is practicing law.
The Supreme Court of Georgia periodically issues advisory opinions relating to attorney conduct. Under Court rule,
such opinions have "the same precedential authority given to the regularly published judicial opinions of the Court."
Bar Rule 4-403(e). It would be proper, then, for the Committee to turn to any relevant advisory opinions for guidance.
In Formal Advisory Opinion 86-5, the Supreme Court of Georgia interpreted the word "conveyancing" as set out in
O.C.G.A. §15-19-50, and considered what the term meant in relation to the closing of a real estate transaction. The
Court viewed a real estate closing "as the entire series of events through which title to the land is conveyed from one
party to another party...." That being the case, the Court concluded "it would be ethically improper for a lawyer to aid
nonlawyers to 'close' real estate transactions," or for a lawyer to "delegate to a nonlawyer the responsibility to 'close'
the real estate transaction without the participation of an attorney."
In Formal Advisory Opinion 00-3, the Court restated its view that the real estate closing is a continuous, interconnected
series of events. The Court made it clear that, in order for an attorney to avoid possible disciplinary sanctions for
aiding a nonlawyer in the unauthorized practice of law, "[t]he lawyer must be in control of the closing process from
beginning to end. The supervision of the paralegal must be direct and constant." The Court held that "[e]ven though
the paralegal may state that they are not a lawyer and is not there for the purpose of giving legal advice,
circumstances may arise where one involved in this process as a purchaser, seller or lender would look to the
paralegal for advice and/or explanations normally provided by a lawyer. This is not permissible." A lawyer who aids a
nonlawyer in the unauthorized practice of law can be disbarred. Georgia Rule of Professional Conduct 5.5.
The Committee finds that those who conduct witness only closings or otherwise facilitate the execution of deeds of
conveyance on behalf of others are engaged in the practice of law. As noted above, "conveyancing" is deemed to be
the practice of law, and the very purpose of a deed is to effectuate a conveyance of real property. In reviewing the
foregoing opinions of the Supreme Court of Georgia, the Committee concludes that the execution of a deed of
conveyance is so intimately interwoven with the other elements of the closing process so as to be inseparable from the
closing as a whole. It is one of "the entire series of events through which title to the land is conveyed from one party to
another party." To view the execution of a deed of conveyance as something separate and distinct from the other
phases of the closing process--and thus as something other than the practice of law--would not only be forced and
artificial, it would run counter to the opinions of the Court. Such an interpretation would mean that a nonlawyer could
lawfully preside over the execution of deeds of conveyance, yet an attorney who allowed an unsupervised paralegal to
engage in precisely the same activity could be disbarred. An interpretation of Court opinions that leads to such an
incongruous result cannot be proper. Rather, the view consistent with those opinions is that one who facilitates the
execution of deeds of conveyance is practicing law.
Accordingly, the Committee concludes that, subject to any relevant exceptions set out by the Georgia legislature or
courts, one who facilitates the execution of a deed of conveyance on behalf of another within the state of Georgia is
engaged in the practice of law. One does not become licensed to practice law simply by procuring a notary seal. A
Georgia lawyer who conducts a witness only closing does not, of course, engage in the unlicensed practice of law.
There may well exist, however, professional liability or disciplinary concerns that fall outside the scope of this opinion.
Refinance closings, second mortgages, home equity loans, construction loans and other secured real estate loan
transactions may differ in certain particulars from purchase transactions. Nevertheless, the centerpiece of these
transactions is the conveyance of real property. Such transactions are, therefore, subject to the same analysis as set