Did attorney review make a nonlawyer real estate document-preparation business lawful in South Carolina?

Plain-English summary

In November 2003, South Carolina's Attorney General declined to decide whether a Conway business-license applicant was unlawfully practicing law by preparing real estate and other legal documents for later attorney review. The office said it needed the exact work performed and a clearer account of what the attorneys reviewed. Those factual findings were outside an AG opinion.

The letter instead pointed the city to South Carolina Supreme Court decisions. Some deed and closing-document work by nonlawyers had been held unauthorized even where lawyers reviewed documents. A later decision recognized a lender's preparation of refinancing documents when an independent attorney reviewed and corrected them. The AG left the applicant's situation unresolved.

Currency note

This opinion was issued in 2003. 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.

Historical summary

City licensing officials and document businesses

The opinion did not approve or reject the particular business license. It described the legal cases the city and its attorney could consider after establishing the facts of the applicant's work and the attorneys' participation.

Common questions

Did the AG decide that this applicant practiced law without a license?
No. The office said it could not determine the necessary facts in an opinion.

Did sending completed documents to an attorney automatically solve the issue?
No categorical answer was given. The opinion cited a case rejecting review as sufficient in one title-company setting and another recognizing independent review and correction in a refinancing setting.

What was missing from the request?
The exact documents and services the business provided, and the nature of the lawyers' review.

Background and statutory framework

Conway's administrator asked about a nonlawyer applicant describing her business as document preparation. The AG declined the fact-specific determination and summarized state Supreme Court rulings on legal document work and attorney supervision.

Citations and references

The opinion discussed State v. Despain, State v. Buyers Service Company, Inc. and Doe v. McMaster.

Official title

Regarding an applicant for a business license, who conducts “document preparation” for real estate transactions and possibly other legal matters who is not a licensed attorney but prepares the documents at her business and then delivers the documents to one or more attorneys for review and execution.

Requester

The Honorable Steven E. Thomas, City Administrator, City of Conway

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-4-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2012/09/03nov-4-Thomas.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
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ATTORNEY GENERAL

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November 4, 2003

The Honorable Steven E. Thomas
City Administrator, City of Conway
Post Office Drawer I 075
Conway, South Carolina 29528-1075
Dear Mr. Thomas:
In a letter to this office you requested an opinion regarding an applicant for a business license. According to your letter, Brenda Dunn ofBD of Conway, Inc. stated in her application for the license that her type of business is "legal" with the main business being "document preparation". It is your understanding that Ms. Dunn conducts legal document preparation for real estate transactions and possibly other legal matters. Ms. Dunn is not a licensed attorney but prepares the documents at her business and then delivers the documents to one or more attorneys for review and execution.

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A response to your letter would require the complete review of all the facts involved and would necessitate a review of the exact type of work performed by Ms. Dunn along with a clearer understanding of the type of review undertaken by the attorneys. You mentioned that she prepares documents for real estate transactions and "possibly'' other legal matters. This office has repeatedly indicated that an opinion of the Attorney General cannot determine facts. A complete review of all the facts involved here would be needed to make a determination and such is beyond the province of this office in the issuance of opinions. Op. Atty. Gen. dated December 12, 1983. However, to be of some assistance, I would refer you to the prior decisions of the State Supreme Court that have dealt with this issue. In State v. Despain, 319 S.C. 317, 319-320, 460 S.E.2d 576, 577-578 (1995) (quoting In re Duncan, 83 S.C.186, 189, 65 S.E.210, 211 (1909)), the State Supreme Court indicated that The generally understood definition of the practice oflaw "embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and the management of such actions and proceedings on behalf of clients before judges and courts.

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~ · ../ ~~ENNIS BUilDING • Posr OFFICE Box 11549 • COWMBIA, S.C. 29211-1549 • TEl..EPHONE: 803-734-3970 • FACSIMILE: 803-253-6283

The Honorable Steven E. Thomas
Page2
November 4, 2003

The Court further stated

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Applying this definition, we have held that the preparation of a deed for another individual, having the deed executed, and filing the deed, without the approval of a licensed attorney, constitutes the unauthorized practice oflaw ... (citing In re Easler, 275 S.C. 400, 272 S.E.2d 32 (1980) ... We have also held that the preparation of deeds, mortgages, notes, and other legal instruments related to mortgage loans and transfers ofreal property by a commercial title company constitutes the unauthorized practice oflaw ... (citing State v. Buyers Service Company. Inc., 292 S.C. 426, 357 S.E.2d 15 (1987). In Despain, the Court ruled that the preparation oflegal documents for other individuals to present in proceedings in family court constituted the practice of law when such preparation included the giving of advice, consultation, explanation, and recommendations on matters of law. In Buyers Service, supra, the Court had ruled that the practice of law " .. .is not confined to litigation, but extends to activities in other fields which entail specialized legal knowledge and ability." 292 S.C. at 430. The Court specifically ruled that "real estate and mortgage loan closings should be conducted only under the supervision of attorneys." 292 S.C. at 434. The Court noted that as to the fact that Buyers Service had retained attorneys to review the closing documents, " ... this does not save its activities from constituting the unauthorized practice oflaw." 292 S.C. at 431. In Doe v. McMaster, 355 S.C. 306, 585 S.E.2d 773 (2003), the Court dealt with various situations involving a lawyer's business association with a lender bank and title insurance company. Included in the transactions reviewed were preparation ofloan documents by the lender bank. The Court recognized that the lender corporation involved in that situation could prepare legal documents for use in refinancing a real property loan as long as an independent attorney reviewed and corrected those documents so as to ensure compliance with the law. You may wish to review these decisions with your city attorney in review of the application for a business license by Ms. Dunn. Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General