GA Supreme Court takes a page from our playbook and prohibits “witness only” closings

On September 22, 2014, The Supreme Court of Georgia issued an opinion approving the State Bar’s Formal Advisory Opinion No. 13-1, which states that a Georgia licensed lawyer may not ethically conduct a “witness only” closing.

The Court indicated a “witness only” closing occurs when an individual presides over the execution of closing documents but purports to do so merely as a witness and notary and not as someone who is practicing law. In order to protect the public from those not properly trained or qualified to render these services, lawyers are required to “be in control of the closing process from beginning to end,” according to the opinion.

The opinion also requires the closing attorney to review the closing documents, resolve errors in the paperwork, and detect and resolve ambiguities in title and title defects, indicating, “A lawyer conducting a real estate closing may use documents prepared by others after ensuring their accuracy, making necessary revisions, and adopting the work.”

The closing lawyer must “review and adopt” the work used in a closing, even if he or she didn’t prepare that work.  Georgia law allows title insurance companies and others to examine title records, prepare abstracts and issue related insurance.  And other persons may 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.”

The obligation to review, revise, approve and adopt documents used in closings applies to “the entire series of events that comprise a closing.”

I’m a South Carolina dirt lawyer, so I don’t have the background to comment at length on this opinion, but from my bank of the Savannah River, it seems this opinion places closing lawyers in a precarious position, not unlike the position of our practitioners. We don’t necessarily have to perform all aspects of closings, but we do have to supervise and take professional responsibility for the entire closing.  We have learned how difficult it is to supervise third parties and take responsibility for their work.  The Georgia Bar asked for this opinion.  I hope they like it!

Surely Dave Whitener is smiling down from heaven at this effort to rein in the unauthorized practice of law!