The Florida Bar
(November 1, 1989)
(November 1, 1989)
A law firm may permit a paralegal or other trained employee to handle a real estate closing at which no lawyer in the firm is present if certain conditions are met.
Case: Cooperman v. West Coast Title Company, 75 So.2d 818 (Fla. 1954)
In Opinion 73-43, this Committee concluded that it was permissible for a lawyer to have a legal assistant prepare real estate documents under the lawyer's supervision, but that it would be improper for the legal assistant to attend closings at which no attorney in the firm was present. The committee reasoned that there was no purpose for the legal assistant to attend closings except to give legal advice and that the legal assistant's presence could be construed by the clients as answering unasked questions about the propriety or legality of the closing documents.
The Unlicensed Practice of Law Committee has requested that we reconsider the issue of whether a legal assistant or other nonlawyer employee with real estate expertise may be permitted to conduct or otherwise participate in a closing in place of a lawyer in the firm. That committee does not agree with the premise of Opinion 73-43: that conducting a closing necessarily involves the giving of legal advice, in fact or by implication. That committee notes that title companies are permitted by the supreme court to conduct closings. Cooperman v. West Coast Title Company, 75 So.2d 818 (Fla. 1954). The committee also points out that the typical residential real estate transaction is nonadversarial and that allowing a trained paralegal to handle the closing will enable a law firm to assist in real estate transactions at a lower cost to clients.
The majority of this Committee (seven members dissent) now concludes that law firms should be permitted to have trained nonlawyer employees conduct closings at which no lawyer in the firm is present if certain conditions are met. Accordingly, this Committee recedes from Opinion 73-43.
Rule 4-5.5(b), Rules Regulating The Florida Bar, forbids a lawyer to assist a person who is not a member of the Bar in the performance of activity that constitutes the unlicensed practice of law. But, as the comment states, this rule "does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work."
The majority of this Committee concludes that under Rule 4-5.5(b), a law firm may permit a nonlawyer employee to conduct or attend a closing if the following conditions are met:
1. A lawyer supervises and reviews all work done up to the closing;
2. The supervising lawyer determines that handling or attending the closing will be no more than a ministerial act. Handling the closing will constitute a ministerial act only if the supervising lawyer determines that the client understands the closing documents in advance of the closing;
3. The clients consent to the closing being handled by a nonlawyer employee of the firm. This requires that written disclosure be made to the clients that the person who will handle or attend the closing is a nonlawyer and will not be able to give legal advice at the closing;
4. The supervising lawyer is readily available, in person or by telephone, to provide legal advice or answer legal questions should the need arise;
5. The nonlawyer employee will not give legal advice at the closing or make impromptu decisions that should be made by the supervising lawyer.
When a law firm's involvement in a real estate transaction is limited to issuing title insurance as an agent for a title insurance company, and does not involve representation of either party to the transaction, condition number 3 does not apply. However, the law firm should take care that the parties understand that the firm does not represent their interests.