Could a South Carolina real estate agent fill in transaction details on an attorney-prepared sale contract?

Plain-English summary

A legislator asked whether a licensed real estate agent could fill in names, dates, figures, and other transaction details on a preapproved sale form without changing its language. The Attorney General referred to a 2007 opinion saying that merely filling blanks on an attorney-prepared form did not appear to constitute unauthorized practice of law, assuming no legal advice was sought or given. The letter said a proposed amendment to Section 40-5-310 would not change that view, while recognizing that South Carolina’s Supreme Court ultimately regulated the practice of law.

Currency note

This opinion was issued in 2009. 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

Q: Could an agent fill names and prices into the attorney-prepared form? A: The opinion said that merely filling transaction-specific blanks did not appear to be unauthorized law practice under the facts assumed.

Q: Did the answer cover changes to the form’s legal wording? A: No. The request assumed the agent would not alter the preapproved language, and the referenced opinion assumed no legal advice was given or requested.

Q: Did the proposed amendment settle the matter?
A: The Attorney General said the proposed changes to Section 40-5-310 would not change its view. It also said the final resolution belonged to the state supreme court.

Background and statutory framework

The letter did not analyze a completed transaction. It adopted the earlier opinion’s limited premise: an attorney-designed form, simple completion of blanks, and no legal advice. Its discussion of House Bill 3123 concerned proposed statutory language, not a finding that the bill had become law.

Citations and references

Statute discussed: Section 40-5-310. Proposed bill: House Bill 3123.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-17-2009-4/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/smith-j-e-os-8735-2-17-09-unauthorized-practice-of-law.pdf

Original opinion text

H ENRY M CMASTER
ATTORNEY GENERAL

February 17, 2009

The Honorable James E. Smith
Member, House of Representatives
P. 0. Box 11867
Columbia, South Carolina 29211
Dear Representative Smith:

In a letter to this office you questioned whether it is the unauthorized practice oflaw for a licensed real estate agent in this State to complete a contract for the sale of real estate by filling in the names of the parties in the transaction, along with necessary dates, figures or other relevant information on a pre-approved form contract. You indicated that this question assumes that the use of the form contract does not constitute tbe unautho1ized practice of law and that it should be assumed that the real estate agent would not alter or amend the pre-approved language used on the form contract. Your question is only concerned with the addition of th.e information necessary to make the contract specific to the transaction. Enclosed please find a copy of a prior opinion of this office dated May 22, 2007 which I believe is responsive to your inquiry. That opinion was premised on the following facts:
... many real estate agents in this State use a prefabricated contract for the sale of real property. It is your understanding that this contract is designed and, with the exception of the specific information for the specific transaction later filled in, written by a licensed attorney. It was questioned whether the filling in of the blanks on such contract in association with the sale of property constitutes the unauth01ized practice of law. That opinion concluded that

...as to the situation you addressed involving the use of a prefabricated contract for the sale of real property where it is my understanding that all that is done is the mere filling in of the blanks on such a contact, it does not appear that such activity would constitute the unauthorized practice of law. I assume, of course, that absolutely no legal advice is provided or requested in association with the execution of such a contract. However, as explained earlier, the ultimate resolution of your question

REMBERT

c. D ENNIS BUILDING • POST O FFICE Box 11549 • COLUMBI;\, SC 292 11 -J549 • TELEPHONE 803-734-3970 • FACSLMILE 803-253-6283

The Honorable James E. Smith
Page2
February 17, 2009

would be a matter for the State Supreme Court as that body is given the authority to regulate the practice of law in this State. You also questioned whether proposed changes to S.C. Code Ann. § 40-5-310 contained in House Bill 3123 would change this office's opinion regarding the above question. You questioned whether the activity described above would become the unauthorized practice oflaw. House Bill 3123 amends Section 40-5-310 to state that:
[n]o person may either practice law or solicit the legal cause of another person or entity in this State unless he has been enrolled as a member of the South Carolina Bar pursuant to applicable court rules, or otherwise authorized to perform prescribed legal activities by action of the Supreme Court of South Carolina. The practice of law shall be defined by the decisions of the Supreme Court of South Carolina prior to any charge being filed pursuant to this section. A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than five years. Based upon my review, in the opinion of this office, the proposed changes to Section 40-5310 would not change the opinion of this office as expressed in the referenced May 22, 2007 opm10n. If there are any questions, please advise.

Very truly yours,
Henry McMaster
Attorney General

By:

REVIEWED AND APPROVED BY:

Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General