Real Estate Bar Association for Massachusetts, Inc. v. National Real Estate Information Services
946 N.E.2d 665
Mass.2011Background
- REBA filed suit against NREIS alleging unauthorized practice of law in relation to real estate conveyancing and title insurance activities in Massachusetts.
- U.S. Court of Appeals for the First Circuit certified two questions to this court under S.J.C. Rule 1:03; record involved vendor management and title insurance services by NREIS.
- NREIS is a Pennsylvania-based vendor manager and title insurance agent; no evidence that NREIS employees are Massachusetts-licensed attorneys.
- Massachusetts is a title theory state; conveyancing encompasses a series of activities to transfer title, of which many are performed by nonlawyers.
- The Court treats conveyancing as discrete activities; some preclosing title work is not the practice of law, while others, such as analyzing title for marketability, are.
- The closing requires substantial attorney involvement; the court emphasizes the closing as the point where legal rights are created and protected, with public interests in title integrity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NREIS's vendor management and title-related activities constitute the unauthorized practice of law | REBA asserts these activities involve conveyancing and require attorney supervision. | NREIS contends many activities are clerical/administrative and not the practice of law. | Probable no; some activities may, but record insufficient to decide all. |
| Whether drafting/obtaining deeds and settlement forms by NREIS constitutes the practice of law | Deeds and related forms affect legal rights and require legal analysis. | Drafting totals and standard forms can be nonlegal if no advice or opinion is given. | Deed drafting appears to be within the practice of law; limited record on DeedPro prevents definitive ruling. |
| Whether issuance of title insurance by NREIS constitutes the practice of law | Title examinations and insurance involve legal title analysis. | Issuing title insurance is a standard contractual instrument not inherently legal advice. | Not the practice of law for NREIS; title insurance issuance for underwriters deemed permissible. |
| Whether NREIS's contracting with Massachusetts attorneys to attend closings constitutes the unauthorized practice of law | Intermediary arrangement could enable nonlawyer control over attorney conduct. | Intermediary role may be permissible if genuine attorney-client relationship and independent attorney control exist. | Record insufficient to decide definitively; emphasizing intermediary framework and lack of clear control. |
| What duties of closing attorneys are necessary to protect marketable title and public registry integrity | Closing attorneys must conduct thorough title analysis and ensure proper disbursement. | Closing duties vary; some functions are clerical, others require legal judgment. | Closing attorney must play a meaningful role before, during, and after closing; marketable title analysis is essential. |
Key Cases Cited
- Lowell Bar Ass'n v. Loeb, 315 Mass. 176 (Mass. 1943) (court defines scope of the practice of law and nonlawyers may perform some related tasks)
- Matter of the Shoe Mfrs. Protective Ass'n, 295 Mass. 369 (Mass. 1936) (drafting documents creating legal rights is practice of law)
- Matter of Chimko, 444 Mass. 743 (Mass. 2005) (personalized legal opinions constitute the practice of law)
- Fall River Sav. Bank v. Callahan, 18 Mass. App. Ct. 76 (Mass. App. Ct. 1984) (marketable title analysis involves attorney duties)
- Hrones, 457 Mass. 844 (Mass. 2010) (attorney involvement required in certain legal claims handling)