When is a New York real estate broker who fills out a purchase-and-sale contract for clients crossing the line into the unauthorized practice of law?

Subject

Standards under Judiciary Law § 484 and Real Property Law § 441-c for when a licensed real estate broker who prepares a purchase-and-sale contract for parties to a residential transaction engages in the unauthorized practice of law.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/96-F11_pw.pdf

Plain-English summary

The Department of State licenses real estate brokers and oversees broker discipline under Real Property Law § 441-c. Its counsel asked the AG to confirm the standard for when a broker who drafts a purchase-and-sale contract on behalf of clients crosses into the unauthorized practice of law forbidden by Judiciary Law § 484. The opinion focuses on home-purchase contracts because they affect substantial legal rights and brokers typically represent only one party.

The AG built on the Appellate Division's 1978 decision in Matter of Duncan & Hill Realty, Inc. v Department of State. New York has a long tradition of allowing laypersons to draft "simple" contracts, including some real estate purchase contracts, because brokers historically drafted these as a routine part of their work without charging separately for the drafting. But that tradition runs up against the reality that for an average family, a home purchase is the most important legal transaction they will ever undertake, and the broker typically represents only one side. As Duncan & Hill put it, the "simple" residential contract is "in reality not simple."

The AG concluded that a broker can prepare a residential purchase-and-sale contract without violating Judiciary Law § 484 only if certain conditions are met:

• The contract may include a clause expressly making it subject to approval by each party's attorney; OR
• The broker may use a fill-in-the-blanks form approved jointly by a recognized bar association and a recognized realtors' association, and fill in only the non-legal items: names of the parties, date and place of closing, description of the property, consideration, and similar facts.
• In either case the contract must clearly and prominently state on its face that it is a legally binding document and prominently recommend that the parties consult their lawyers before signing.
• Brokers must not provide legal advice, must not discourage the parties from seeking attorney advice, must not insert provisions that require legal expertise (such as detailed purchase-money mortgage terms), and must not charge a separate fee for preparing the contract or share in the attorney's fees.

The opinion relies on Matter of Duncan & Hill Realty, Inc. v Department of State and People v Title Guarantee and Trust Co. It does not analyze later broker-discipline cases.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is "unauthorized practice of law" in New York?
Judiciary Law § 484 makes it unlawful for a person who is not admitted as an attorney to receive compensation for, among other things, "preparing deeds, mortgages, assignments, discharges, leases or any other instruments affecting real estate." Read literally, that statute would block any non-lawyer from touching a purchase contract. New York courts have softened it through the simple-instruments tradition and Duncan & Hill, but the underlying prohibition is real.

What is the "Duncan & Hill standard"?
The Fourth Department's 1978 decision establishing that a broker may prepare a real estate contract without unauthorized practice if (a) the broker does not hold himself out as an attorney, (b) the broker confines drafting to transactions in which he is serving as broker, (c) the broker does not charge a separate fee for the drafting, and (d) the contract is subject to attorney review or uses an approved fill-in form with only non-legal blanks filled in. The 1996 opinion adopts and applies this standard.

Can a broker add legal terms to a standard form?
The AG said a broker may not add provisions to a standard fill-in-the-blanks contract unless the entire contract is subject to review and approval by each party’s attorney. Brokers must not devise terms requiring legal expertise, such as detailed purchase-money mortgage terms. See the original opinion.

Why does the no-separate-fee rule matter?
Because charging a separate drafting fee marks the broker as performing legal services for compensation, the very thing Judiciary Law § 484 forbids. The opinion permits qualifying contract preparation only as an incident of the purchase and sale of real estate and forbids a separate preparation fee or a share of attorney fees.

What is the role of the National Conference of Lawyers and Realtors? The American Bar Association and the National Association of Real Estate Brokers established a joint committee, the National Conference of Lawyers and Realtors, that drafts model purchase-contract forms. State and local bar associations and realtor groups then adapt the model to local custom and law. A broker who uses a locally adopted, jointly approved form is on firmer ground than one drafting from scratch.

Can a broker tell a buyer not to bother with a lawyer?
No. The AG expressly said brokers may not discourage parties from seeking advice from their attorneys. It also recommended that the form prominently advise the parties to seek counsel before signing.

Background and statutory framework

Judiciary Law § 484, the unauthorized practice statute, criminalizes a broad list of activities for non-attorneys. Real Property Law § 441-c addresses broker discipline for untrustworthiness or incompetence. The opinion says the Department of State continued to apply the Duncan & Hill standards in administrative proceedings involving alleged unauthorized practice by brokers.

Duncan & Hill arose from a particularly bad pattern. A broker had been drafting elaborate mortgage terms in residential contracts, well beyond the scope of any simple-instrument tradition. The Fourth Department upheld discipline and used the case to articulate when broker contract drafting is acceptable. The opinion discusses Duncan & Hill and People v Title Guarantee and Trust Co. It does not discuss other later broker-discipline decisions.

The tradition of layperson drafting goes back to People v Title Guarantee and Trust Co. (1919), where the Court of Appeals held that a corporate employee could fill in blanks on chattel mortgages and real estate sales documents as a regular part of the company's business. The 1996 opinion acknowledges the custom of laypersons preparing simple instruments but limits broker drafting because home-purchase contracts affect substantial legal rights.

Citations

• Judiciary Law § 484 (unauthorized practice)
• Real Property Law § 441-c (broker discipline)
• Matter of Duncan & Hill Realty, Inc. v Department of State, 62 AD2d 690 (4th Dept), app dismissed, 45 NY2d 821 (1978)
• People v Title Guarantee and Trust Co., 227 NY 366 (1919)

Original opinion text

JUDICIARY LAW § 484; REAL PROPERTY LAW § 441-c.
Real estate brokers are not engaged in the unauthorized practice of law if they prepare purchase-and-sale contracts that expressly state the documents are subject to review by the parties' attorneys, or if they use forms approved by the appropriate organizations and do not insert any material requiring legal expertise. This limited privilege must be narrowly circumscribed.

November 14, 1996
Hon. Alexander F. Treadwell
Secretary of State
Department of State
Albany, NY 12231-0001

Formal Opinion
No. 96-F11

Dear Secretary of State Treadwell:
Your counsel has requested an opinion regarding the preparation of purchase-and-sale contracts by real estate brokers licensed by the Department. Specifically, your counsel has asked whether preparing such documents constitutes the unauthorized practice of law. Judiciary Law § 484 provides in part:

No natural person shall ask or receive, directly or indirectly, compensation for appearing for a person other than himself as attorney in any court or before any magistrate, or for preparing deeds, mortgages, assignments, discharges, leases or any other instruments affecting real estate, wills, codicils, or any other instrument affecting the disposition of property after death, or decedents' estates, or pleadings of any kind in any action brought before any court of record in this state, or make it a business to practice for another as an attorney in any court or before any magistrate unless he has been regularly admitted to practice, as an attorney or counselor, in the courts of record in this state.

In Matter of Duncan & Hill Realty, Inc. v Department of State, 62 AD2d 690 (4th Dept), app dismissed, 45 NY2d 821 (1978), the court upheld the Department's determination that a broker who was not a licensed attorney demonstrated untrustworthiness and incompetence in violation of Real Property Law
§ 441-c, finding that when he prepared documents that included detailed mortgage terms he had devised, he engaged in the unauthorized practice of law. The court recognized that real estate brokers and agents have drafted "simple" contracts between their clients as a part of their professional work. Duncan & Hill, supra, 62 AD2d at 696. It noted that, historically, as long as brokers had not held themselves out to be attorneys, had confined their activities to transactions in which they were serving as brokers, and had made no additional charge for preparing these incidental and simple documents, courts had held that they were not engaged in the unauthorized practice of law. Id.; cases cited. As noted by the court in Duncan & Hill, 62 AD2d 690, supra, however, a real estate broker typically serves either the buyer or the seller. Therefore, the references in the cases to brokers "serving their clients" in relation to a specific transaction rests on the erroneous assumption that brokers represent both the seller and buyer. Duncan & Hill, supra, at 696. The court relied on People v Title Guarantee and Trust Co., 227 NY 366 (1919), in which the Court of Appeals held that a corporation was not performing legal services when its employees prepared a chattel mortgage and bill of sale for real property by filling in blanks in forms at the customer's direction as an incident to its regular business. The Court noted that under the governing statute, a corporation could not practice law, but that it could perform services "that may be performed by a layman". People v Title Guarantee and Trust Co., supra, at 373. The Court took judicial notice of "a widespread custom which has prevailed from time out of memory in this state" that laymen may draw simple instruments. People v Title Guarantee and Trust Co., supra, at 375. If the Legislature intended to curtail this practice, it would have clearly so stated in the statute governing practice of law by individuals. Id. Because the Legislature had not done so the Court concluded that corporations were not barred from preparing simple instruments.

The court in Duncan & Hill acknowledged the custom that lay persons have been permitted to prepare simple contracts and went on to identify weaknesses in the justifications commonly advanced for the traditional view.

. . . the so-called "simple" contract is in reality not simple. It is often the most important legal transaction that the average person will ever undertake -- the purchase of a home, and it involves very substantial legal rights which deserve the advice and guidance of a lawyer. The argument that the need for expediting such transactions justifies their consummation without reference to an attorney is specious. The protection of the interests of the parties to such contracts is sufficiently important to justify a little delay for reflection and legal advice, so as to guard against a thoughtless drafting of a hastily conceived contract. The personal interest of the broker in the transaction and the fact that he is employed by one of the opposing parties are further reasons to require that, insofar as the contract entails legal advice and draftsmanship, only a lawyer or lawyers be permitted to prepare the document to ensure the deliberate consideration and protection of the interests and rights of the parties. Duncan & Hill, supra, 62 AD2d at 696-97; footnote omitted.

The court noted that the statutes forbidding unauthorized practice of law were enacted to protect the public and concluded that the privilege accorded real estate brokers and agents "must be circumscribed for the benefit of the public to ensure that such professionals do not exceed the bounds of their competence and, to the detriment of the innocent public, prepare documents the execution of which requires a lawyer's scrutiny and expertise." 62 AD2d at 698. The court noted that the American Bar Association and the National Association of Real Estate Brokers had established practical guidelines. Duncan & Hill, supra, at 697 n 2. The court also noted that the National Conference of Lawyers and Realtors (a joint committee of the American Bar Association and the National Association of Real Estate Brokers [Duncan & Hill, supra, at 699, n 4]) had prepared a model form contract of sale for review by State and local bar associations and realtor committees, which may amend the model to conform to local law and custom. Duncan & Hill, supra, at 698 n 4. Recognizing the intent to protect the public, the court went on to state:

It is for this reason that real estate brokers and agents must refrain from inserting in a real estate purchase offer or counteroffer any provision which requires the exercise of legal expertise. Thus it is not proper for such a broker to undertake to devise the detailed terms of a purchase-money mortgage or other legal terms beyond the general description of the subject property, the price and the mortgage to be assumed or given. A real estate broker may readily protect himself from a charge of unlawful practice of law by inserting in the document that it is subject to the approval of the respective attorneys for the parties. Moreover, a real estate broker or agent who uses one of the recommended purchase offer forms referred to above, or one recommended by a joint committee of the bar association and realtors association of his local county, who refrains from inserting provisions requiring legal expertise and who adheres to the guidelines agreed upon by the American Bar Association and the National Association of Real Estate Brokers, above noted, has no need to worry about the propriety of his conduct in such transactions. 62 AD2d at 701.

You have advised us that the Department continues to apply the standards set forth in Duncan & Hill in administrative proceedings where brokers are charged with untrustworthiness or incompetence based on the alleged unauthorized practice of law.

We believe that in setting standards for the unlawful practice of law by real estate brokers regarding the preparation of purchase and sale contracts consideration should be given to the tradition in this State of allowing lay persons to draft simple contracts. However, this factor must be tempered by the fact that the so-called simple contract will in this context affect very substantial legal rights -- the purchase of a home. Also, we take into consideration that typically a broker representing one party to the transaction prepares documents that affect the legal rights of both the buyer and the seller. Under these circumstances, we believe that a broker or realtors' association that prepares a simple fill-in-the-blanks purchase and sale contract can avoid the unlawful practice of law by including in the contract a condition making it subject to approval by each party's attorney. Alternatively, brokers can utilize a fill-in-the-blanks form that has been approved by a recognized bar association in conjunction with a recognized realtors' association. Such an approved form would only require that the real estate brokers fill in non-legal provisions such as the names of the parties, the date and location of the closing, a description of the property, the consideration for sale and any other relevant facts. The brokers would not be required to develop any "legal terms". Further, since the contract establishes significant legal rights and obligations, it should clearly and prominently indicate on its face that it is a legally binding document and clearly and prominently recommend that the parties seek advice and counsel from their lawyers prior to affixing their signature to the document. The brokers must refrain, even with respect to these simple fill-in-the-blanks contracts, from providing legal advice to their clients. Nor may they discourage the parties from seeking advice from their attorneys. Brokers may not add provisions to the standard fill-in-the-blanks contracts unless they make the entire contract subject to and conditioned upon the review and approval of each party's attorney. Brokers may provide purchase and sale contracts, subject to the above conditions, only as an incident of the purchase and sale of real estate and may not charge a separate fee for preparation of the contract or share in the fees of attorneys for preparation or review of these contracts. Very truly yours,

DENNIS C. VACCO
Attorney General