From the President

From the President’s desk

By Paul F. Alphen

REBA is now the bar association serving the interests of a wide group of transactional lawyers, civil litigators and adjacent professionals.

A few of you have commented that REBA spends too much time and effort on preventing the unauthorized practice of law in the area of residential conveyancing. Do we have an exaggerated commitment to the residential real estate bar? Of course. While residential conveyancers are our first love, our efforts to preserve the integrity of the bar are anything but myopic.

I need not define for you the term “slippery slope.” Those who wish to allow every Tom, Dick and Harriet to perform residential closings also have commercial closings in their gun sights. Our adversary in federal court litigation, National Real Estate Information Services, has recently launched a division to perform commercial transactions.

A residential closing is more complicated that it looks. A single closing is an orchestra of numerous smaller transactions, many of which have the potential for defalcation, fraud and abuse. A moderately busy conveyancer deposits millions of dollars a week into his/her IOLTA account. A closing includes offering legal advice to consumers embarking on their single largest transaction of their lives. If it wasn’t obvious from the national savings and loan crisis of the late ‘80s, the current mortgage crisis should make it patently obvious to anyone that consumers, if mislead or misinformed, can unwittingly unravel the financial fabric of our nation.

Title examination in Massachusetts is both and art and a science. The recorded land system assumes that the title examiner performed a diligent examination of the record, and the closing attorney reviewed the title abstract and prepared or reviewed the transaction documents. While we support efforts to make recent land records available online (at times it is very helpful and saves time and gasoline) we also know that the system is imperfect and a proper title examination requires intimate knowledge of the inside of the registries. Litigators and other non-real estate practitioners have begun to encounter offshore entities performing legal research and document preparation, even local zoning opinions.

As someone who has spent the better part of 35 years hanging around town halls in Massachusetts, I know that it usually takes searching through cartons hidden underneath the second floor stairwell of the Town Hall Annex to prepare a responsible comprehensive commercial zoning opinion. Supporting a multi-million dollar commercial transaction in Massachusetts based on a legal or zoning opinion drafted by someone who doesn’t own all-season-radials is a guarantee of future trouble.

The current national mortgage crisis is a prime example. Shortcuts within important financial transactions can have far-reaching and unfortunate implications for the financial services industry and even the structure of our national economy. Or, as an old-time green-eye-shade-wearing conveyancer one told me: “Anything worth doing is worth doing right.”