By James Havens and Adam Schwartz, Havens Limited

A title agent wears many hats, often worn at the same time, and often put on you by other people. But in the fog created by complexity and time pressures to get deals closed, there are inherently blurry lines that agents must navigate to avoid performing doing things that only lawyers are allowed to.

Only Ohio lawyers are permitted to practice law in Ohio; everyone else is “unauthorized.” The unauthorized practice of law is “the rendering of legal services for another by any person not admitted to practice in Ohio.” And this plainly covers real estate transactions – a process designed to use legal documents to transfer legal title to property.

All of this does not mean, however, that non-lawyers have to bury their head in the sand. Non-lawyers can help, even to the point of actually preparing the documents. But “their activities must be carefully supervised and approved by a licensed practitioner.” And on the flip- side, attorneys can get in trouble for allowing non-lawyers to practice law as well. So both the lawyer and non-lawyer need to protect themselves and each other.

For purposes of this article, I’ll focus on three areas that title agents might find themselves wrestling with – doing title searches, preparing deeds and working  with purchase contracts.

Title Searches: Just the Facts, Ma’am
Dividing line number one:  Only lawyers can perform a title exam or give a title opinion, but a title agent can prepare a title search/report. What’s the difference? An exam/opinion involves an interpretation about the legal status of property –that is a lawyer’s job because it requires taking facts and forming opinions, which requires professional knowledge or skill. The report simply gives facts about what’s in the public record –anyone is allowed to do that. Nor is this distinction new. It’s been this way since at least the 1930’s.

Creating a title report is not the “practice of law” because it simply reports facts from the public record without describing their “legal significance” or giving an opinion on the “validity of title.” In this way, the parties to the deal must draw their own conclusions and make their own interpretations of the facts in the title search.

This principle is one to keep in mind when (not if) title agents are asked to explain issues that the title search reveals. But it is precisely that interpretation that tips the scales in a potentially illegal direction. Bottom line: Keep your opinions to yourself.

A Good Deed Does Not Go Unpunished
Only lawyers can prepare deeds; they are legal documents. The same is true for purchase contracts. And liens. And easements.   And land installment contracts. For the same reason that title opinions are different from title searches, this dividing line is drawn between whether the particular act requires legal analysis, skill, citation, or interpretation. So if those things aren’t being done, you don’t have to be a lawyer to do them.

It has been the law for a long time that a non-lawyer can fill in the blanks or remove parts of a real estate purchase form contract.   Putting in this “simple, factual material such as the date, the price, the name of the purchaser, the location of the property, the date of giving possession and the duration of the offer requires ordinary intelligence rather than the skill peculiar to one trained and experienced in the law.”

So on one hand, filling in data in an already-prepared legal document does not seem to be the practice of law. But on the other hand, Ohio appears to think differently about creating an entire legal document, even if it is copied exactly from a form book, or even if originally created by a lawyer. “The fact that respondents may copy the contracts or use forms from a book does not change the nature of the act ... The drafting or writing of a contract or other legal instrument on behalf of another is the practice of law, even if the contract is copied from a form book or a contract previously prepared by a lawyer.”

There also appears to be a critical but unstated difference between filling in blanks in a purchase contact and doing the same thing in a deed. The Ohio Supreme Court’s decisions do not seem to permit non-lawyers to create deeds, even if simply entering factual data into a form (and even if that form was prepared by an attorney). There is not an obvious reason for the distinction. And filling out corporate formation templates from the Secretary of State also raises similar, unsettled questions. So when it comes to deeds, the safer course, the Court implies, is to have a lawyer review it before it goes out the door. 

At the end of the day, the fundamental takeaway is to simply be aware of where these boundaries exist and to have procedures in place beforehand so the pragmatic pressures of time, revenue, and making clients happy, don’t put you in an unfair (or illegal) position in the future.

1Gov.Bar.R. VIII(2)(A); see also Cleveland Bar Assn. v. CompManagement, Inc. (2006), 111 Ohio St.3d 444, 452.  If the property/transaction is out-of-state, however, that other state’s laws will more likely dictate whether you are practicing law in that other state.

2Cleveland Metropolitan Bar Assoc. v. Davie (2012), 133 Ohio St.3d 202, 206; Disciplinary Counsel v. Brown (2009), 121 Ohio St.3d 423; Columbus Bar Assn. v. Thomas (2006), 109 Ohio St.3d 89 (paralegal drafting pleadings and other legal documents as well as giving legal advice); Cleveland Bar Assn v. Para-Legals, Inc. (2005),106 Ohio St.3d 455; Cleveland Bar Assoc. v. Coats (2003), 98 Ohio St.3d 413; Columbus Bar Assn. v. Purnell (2002), 94 Ohio St.3d 126; Cincinnati Bar Assn. v. Cromwell (1998), 82 Ohio St.3d 255.

3See DR 3-101(A); Columbus Bar Assn. v. Thomas (2006), 109 Ohio St.3d 89, 91-92 (“[A]lthough laypersons may assist lawyers in preparing legal papers to be filed in court and managing pending claims, those activities must be carefully supervised and approved by a licensed practitioner.”).

4Land Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio St. 23, 27 (discussing title “abstracts”).

5Dayton Bar Assoc. v. Lender’s Serv., Inc. (1988), 40 Ohio St.3d 96, paragraph 1 of syllabus.

6State ex rel. Doria v. Ferguson (1945), 145 Ohio St. 12, paragraph 1 of syllabus, 15-16.

7Ohio State Bar Assn. v. Dalton (2010), 124 Ohio St.3d 514 (Precision Land Title Agency); Ohio State Bar Assn. v. Newburn (2008), 119 Ohio St.3d 96, 97; Toledo Bar Assn. v. Chelsea Title Agency of Dayton, Inc. (2003), 100 Ohio St.3d 356, 357; Lorain Cty. Bar Assn. v. Kennedy (2002), 95 Ohio St.3d 116-17; Medina Cty. Bar Assn. v. Flickinger (2002), 95 Ohio St.3d 498; Disciplinary Counsel v. Doan (1997), 77 Ohio St.3d 236, 237.  This is not new news either.  See Land Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio St. 23.

8Ohio State Bar Assn. v. Lienguard (2010), 126 Ohio St.3d 400, 401-02; Disciplinary Counsel v. Brown (2009), 121 Ohio St.3d 423.

9Ohio State Bar Assn. v. Newburn (2008), 119 Ohio St.3d 96, 97.

10Geauga Cty. Bar Assoc. v. Canfield (2001), 92 Ohio St.3d 15.

11Cleveland Bar Assn. v. CompManagement, Inc. (2006), 111 Ohio St.3d 444 (involving third-party administrators who helped employees in workers comp hearings); see also Cleveland Metro Bar Assn. v. Davie, 133 Ohio St.3d 202, 212-13.  Or public policy allows non-lawyers to assist in smaller, less formal legal proceedings.  See Cleveland Bar Assn. v. CompManagement, Inc. (2006), 111 Ohio St.3d 444.  But even in these circumstances, this assistance can’t involve “legal analysis, skill, citation, or interpretation.”  Id.; see also Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc. (2006), 112 Ohio St.3d 107, paragraph 1 of syllabus (a non-lawyer can assist in limited union issues when the advice and services don’t require “legal analysis, legal conclusions, or legal training” or when it is simply distributing prepackaged legal advice without giving advice, analysis, or interpretation).

12Gustafson v. V.C. Taylor & Sons, Inc. (1941), 138 Ohio St. 392, 397; see also Executive Counselors Realty, Inc. v. Sims, 1979 WL 209470 (10th Dist. Ct. App.); but c.f. Sharon Village Limited v. Licking Cty. Bd. of Revision (1997), 78 Ohio St.3d 479 (distinguishing Gustafson when the documents were used in a legal proceeding).

13But this can go too far where it became legal drafting as opposed to inserting “simple factual material.”  See Martineau v. Gresser (1962), 182 N.E.2d 48 (Clinton Cty. Ct. Com. Pl.); Ralph R. Greer & Co. v. McGinnis (1965), 6 Ohio Misc. 264 (Franklin Cty. Mun. Ct. ).

14But see Ohio State Bar Assoc. v. Miller (2014), 138 Ohio St.3d 203 (not clarifying if filling in the name in a purchase contract on its own is unauthorized) and Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc. (2006), 112 Ohio St.3d 107, 112 (which did not distinguish the act of filling in the blanks in contracts, though not real estate purchase contracts, and the act of copying entire contracts or creating their own).

15Geauga Cty. Bar Assoc. v. Canfield (2001), 92 Ohio St.3d 15 (finding that preparing a land installment contract that he copied from a form book was not permissible).

16Ohio State Bar Assoc. v. Miller (2014), 138 Ohio St.3d 203, 207 (quoting Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc. (2006), 112 Ohio St.3d 107, 112).

17Toledo Bar Assn. v. Chelsea Title Agency (2003), 100 Ohio St.3d 356, 356-57 (without much analysis or discussion, however); Lorain Cty. Bar. Assn. v. Kennedy (2002), 95 Ohio St.3d 116.

18See Columbus Bar Assoc. v. Verne (2003), 99 Ohio St.3d 50, 51 (implying that giving legal advice as to the particular entity to be created was what was unauthorized practice, leaving open a future case where simply filing in data into a form without giving advice may be permissible).

19And yes, I understand that having a lawyer tell you need a lawyer is like asking a stylist if you need a haircut.