We Don't Want To Hire Attorneys For Residential Real Estate Transactions
Attorneys have a reputation for being expensive. Those who have been unfortunate enough to hire an attorney know that every bill is an unpleasant surprise. With this aversion to retaining attorneys it should come as no great revelation that we overlook the practice of law by residential real estate agents. Perhaps even more surprising, even the State Bar of California appears to overlook the practice of law by real estate Brokers and Salespersons.
What Constitutes The Practice of Law?
The practice of law includes giving legal advice and drafting contracts.
Can you see the problem?
Real estate agents frequently tell clients why a provision in a boilerplate contract should be included or excluded. Some real estate salespersons think back to their course in real estate law and advise their client on "difficult or doubtful legal questions." Brokers and Agents modify purchase offers and counteroffers that become contracts when accepted. In theory, these Brokers and Agents are not engaging in the unauthorized practice of law if they only perform a clerical role devoid of judgment. The situation would entail the Broker "filling in the blanks" at the clients direction; but everyone knows that this situation doesn't align with reality. In practice Brokers and Agents utilize their own judgment in telling clients why certain provisions should be included in offers and counteroffers and draft the documents accordingly.
Fortunately for Brokers, Agents, and perhaps the public at large, the courts have been silent on this prevalent exercise of the unauthorized practice of law. After all, who wants to hire a lawyer?
