August 21, 1997
A lawyer may not agree to be named as the drafter of a deed where the lawyer has no involvement in the drafting of the particular deed and does not review the deed prior to its execution by the grantor and delivery to grantee.
References: MRPC 1.2(c), 5.5; R-1; RI-128, RI-186, RI-191.
A lawyer asks whether a title company is practicing law without a license when it has a nonlawyer employee draft deeds based on general instructions for deed drafting from a lawyer, indicating the lawyer is the drafter of the deed, and the lawyer reviews the deed only after the same has been executed and the closing occurred but prior to recording of the deed. The lawyer indicates the nonlawyer employee of the title company may need to exercise judgment in the drafting. The Committee on Professional and Judicial Ethics does not render opinions on the conduct of nonlawyers such as a title company and its employees. The lawyer should refer that matter to the appropriate authorities. RI-186.
The proposed conduct of the lawyer, however, poses ethical problems. In this situation, naming the lawyer as the drafter of the deed is a violation of MRPC 1.2(c) prohibiting a lawyer from assisting a client in conduct which is illegal or fraudulent. The obvious message intended by naming the lawyer as the drafter of the deed is to imply to the grantor and grantee that the deed was, in fact, drafted by the lawyer or the nonlawyer scrivener was under the direct supervision of the lawyer.
Whether the deed has been recorded is not relevant, as the fraud has been perpetuated on the grantor and grantee at the time of execution and delivery at closing.
The lawyer indicates that the scrivener has only general instructions from the lawyer regarding deed drafting and further indicates the nonlawyer scrivener may have to exercise discretion and use personal judgment in the drafting. A lawyer may use nonlawyer assistants but may not abandon the lawyer's responsibility to exercise his or her independent professional judgment on behalf of the client. MRPC 5.5; RI-128, RI-191, R-1. Where the lawyer has no effective control over the nonlawyer's communication with the client and has no means of judging the client's reliance on the representation of the nonlawyer, the lawyer may not use the nonlawyer. RI-119. A situation similar to the one described herein was discussed in R-1 where it was opined that a lawyer could not ensure that the conduct of the nonlawyer was compatible with the professional obligations of the lawyer when the lawyer was hiring, training and supervising civilian and prison paralegals located in prisons throughout the state of Michigan. The nonlawyer service in this particular request is not the employer of the lawyer scrivener, and the lawyer does not review the document prior to it being presented for execution and delivery.
The lawyer should not allow the lawyer's name to be placed on the deed as drafter under these circumstances.