Personal Reflections on the past 35 years of the Real Property Law Practice in Atlanta, Georgia
Bruce P. Cohen
May, 1999
The Real Property Law Section is 35 years old and facing the new millennium. This presents us with an opportunity to contemplate the future by looking at our past to determine how we got where we are and where we may be heading.
In the early 1960′s, the Georgia Bar Association was reorganized into the State Bar of Georgia and shortly thereafter the Real Property Law Section was created in 1965. Since this was about the time that I started to practice, my career parallels the development of The Real Property Law Section (“RPLS”). At that time, virtually all of the major law firms were located within walking distance of Five Points and the Courthouses. Most real property lawyers knew their colleagues – saw them in the record room, closings, etc. I remember seeing Joe Abraham, who, while short of height, cast a long shadow at my first RPLS meeting held in the Commerce Club Library. By comparison today’s numbers, the Real Property Law Section was a very small but cordial Bar. Manual typewriters were replaced by electric typewriters which were standard. “Xerox” machines were as big as a small jeep although many documents were still prepared using carbon paper for multiple copies. Corrections were made by erasing each copy or by “white ink”, a nail polish-like liquid that was painted over the error. This was hi-tech in the early 60′s. There was a major concern about the possibility of fraud or doctoring of photocopied documents.
The Record Room at the Courthouses were generally located in the basement, had hard floors, and as they were not air conditioned, were musty, mildewy, and very “close”. Even though the ghost of Elvis has never been seen, the ghost of Fred Schrimper has been reported on occasion, still haunting the record room in Fulton County. However, virtually all of the titles were run by attorneys, law school graduates who had completed law school and were waiting to hear if they passed the Bar examination, or others in law offices that the lawyer trained and supervised. Today we have laptop computers, then we had a protractor, compass and straight edge. Titles generally were certified by attorneys to their client or to the title insurance company underwriters who in turn issued the title commitment/binder and title policies respectively. There were virtually no attorney or lay title agencies and no Attorneys Title Guarantee Fund. Lawyers Title’s title plant, the biggest in Atlanta, was used by virtually all attorneys as a starting point and they probably had as much business as all the other title insurance underwriters combined. Pierce Matthews and his son, John, (later an RPLS Award recipient) established and maintained a very cooperative and supporting working relationship with attorneys that helped set the unique tone for our real property bar. Over the years, the memos that Lawyer’s Title issued to attorneys on how to clear title problems for title insurance purposes, laid the foundation for George Pindar’s Treatise, Georgia Real Estate Law and Procedure, which has become the Bible for real property practitioners in Georgia today. It replaced Stephens Mitchell’s (Margaret’s brother) Real Property In Georgia.
The few major law firms that had extensive, large real estate practices or major real estate departments usually had a specialized client such as a savings and loan association. At that time they were “mutuals”, not “stock”. Many of the local savings and loans were usually started by attorneys who were on the Board of Directors, officers, and were usually the sole and exclusive closing agent for loans. The savings and loans were local, i.e., there were none from out-of-state. Local firms such as McCurdy & Candler, Mitchell, Pate, Clark & Anderson, and Hansell Post Brannan & Dorsey grew and reflected their lender clients’ successes. Each lender had its own loan documents, starting with the closing statement, as standardization of even closing statements was non-existent. There was no Truth-in-Lending, RESPA, Bud Law suit “Waiver of Borrower’s Rights”, nor the other host of governmental rule, regulations and legislation that we live with today. All documents and checks were individually typed or blanks filled in on pre-printed forms that varied from lender to lender. Computerized closing programs were years away. Later when APR’s were required, it meant moving from an adding machine to a calculator (this was considered hi-tech back them). A top notch closing secretary who could prepare documents, calculate closing statements manually, prepare legal descriptions drawn from a survey could earn $100.00 a week and frequently stayed with her law firm for years.
Diversity in the Bar was not the general rule. There were very few female attorneys, let alone real estate attorneys. Those that were active, usually worked for firms that represented S&L’s and they did that “captive” work. Other minorities were not very visible. There were a few pioneers such as R. E. Thomas or Doris Paul Brown but they did not initially have significant legal practices. Diversity and integration were virtually non-existent compared to today. As with the rest of society, times were slowly changing in the 60′s, a watershed event occurred when Betsy Hishon brought her historic law suit that resulted in the Supreme Court’s decision that law firm partnerships were subject to Title 7 of the Civil Rights Act, i.e. law firms could not discriminate on the basis of gender, etc. in admitting partners. Opportunities for women accelerated as law firms responded to the clarified rules by admitting women to partnerships. As the profession became more gender and racially sensitive, it also slowly but surely developed different partnership and associate career paths to accommodate family or life style needs – junior partnership, non-equity partnership, delayed partnership, Of Counsel, independent contractors, etc. all became common place over time as firms responded. Today, minorities are actively sought after as they are generally perceived as a positive factor in attracting and retaining clients in addition to possessing good lawyering skills.
Then, many of the banks made construction loans and acted as the correspondent or had exclusive relationships with life insurance companies for commercial permanent loans. However, some of the major life insurance companies bought FHA and VA residential loans for their portfolio but there was not anywhere near the established secondary market existence standardization or domination as there is today.
Virtually all of the real estate brokerage companies, whether residential or commercial, were local companies. However, many of the companies had “connections” (usually for referral purposes) with other out-of-state companies but they were generally loose and did not involve cross-ownership or name identity, i.e., franchises which were to come in later years. Most of the agents, commercial and residential, were male. Only a few women had their own real estate residential brokerage operations. One of my closing secretaries (they were not called legal assistants or paralegals then) left the law firm to become a real estate agent for commercial real estate, but was only allowed to handle residential investment property – duplexes, triplexes, and quadraplexes, not what we would think of today as commercial property. It would still take years before that line would be crossed. Once opportunities became available, women came to dominate the residential sales and became a major force in commercial sales as well. The same was true with lenders, in the origination of loans, branch managers and other managerial and supervisory positions of authority and responsibility.
Most Lenders followed the example set by savings and loans making the majority of the residential loans in areas that were geographically convenient, known to them, and the base of their deposits. Mortgage companies generally small, local, originated primarily FHA and VA loans. The secondary market was just beginning for these kinds of loans. Credit unions made very few loans secured by real estate. Refinances were rare as interest rates hardly moved let alone go up or down. Second mortgages were looked upon as extremely risky. From a financial and cultural standpoint, remembering the Great Depression of the 30′s, second mortgages were considered undesirable by borrowers and they generally had very high interest rates, closing costs, etc. There were no such things as home equity loans, with low or no closing costs, interest rates at “prime” or below prime rate and at that time had no income tax advantages the way we think of them today, as all loan interest, regardless of reason incurred, were deductible. The Courthouse records were relatively current and accurate and there was significantly less volume. In fact, Metro Atlanta’s records were generally recognized, at least by the title insurance companies, as being “better” than other records around the State, resulting in the title insurance company premiums being lower in the metropolitan Atlanta area than they were in other parts of the State. Compare that with the situation today!
One of the most distinguishing features about practicing at that time was the existence of a Bar “Minimum Fee Schedule” that was commonly followed by most practitioners. It established the minimum fee to be charged for various legal services such as incorporating, wills, probate, real estate matters, etc.. Some time in the 70′s, as I recall, fee schedules were abandoned due to anti-trust Federal regulation considerations. In the Appendix are copies of selective pertinent pages which may be of historical interest. My oh my, have times changed!
In 1996, after the celebrated case of Georgia Bar Association vs. Lawyers Title Insurance Corp., 222 GA 657 (1996) the practice changed dramatically. Title insurance companies began to expand on either existing activities or increase the variety of activities in which they were engaged. Other entities and players got involved gradually and ever so slowly in different aspects of the real estate practice.
When the Peachtree Center complex opened on Peachtree Street a few blocks north of Five Points, a few adventurous law firms moved up the street and started the progression from Five Points to offices throughout the City. Some even bought their own buildings or condominiums. It was not long after that branch offices were opened, closer to clients, i.e., real estate developers, brokers, lenders, and other referrers of business or users of legal services. In fact, some of the residential firms started putting offices in various counties and then multiple offices in the same county. Some of them are located in relatively short geographical distances apart but in different major business centers. It is not uncommon now for major residential practices to have ten or more offices and several have many more.
More and more, the law firms gradually developed real property practices, departments or practice groups. As business increased and became more complex, clients became more sophisticated; law firms mirrored these changes as well. In the 1940′s, Mr. Henry “Trot” Ware, of Ware Stern & Griffin, established the basis for the modern way volume residential closings and titles (the envelope system) is still practiced today. It has been expanded, enhanced and become more sophisticated by today’s firms. Before we blinked, the small pick-up truck builder operating out of his house with his spouse as his bookkeeper, if books were maintained instead of the simpler checkbook balance accounting method, was replaced by companies, national developers and builders, building tract homes, condominiums, loft apartments, “gentrification” of older, passed over neighborhoods, development of “in fill” lots, subdivisions with many amenities that we have become accustomed to such as swimming/tennis and “signature” golf courses. Atlanta attracted them all as our business cycle continued on a virtual continuous up swing (albeit with a few hiccups) when other economies went through numerous dips and downtimes. With our unlimited land supply (no natural boundaries), continuous new job creations, relatively cheap land and labor, an abundance of capital that we attracted from around the world, good building climate, a positive and progressive pro-business attitude by government with comparative minimal regulations, and a continuing growing population, we were a magnet to business. At that time there were no sewer moratoriums, Clean Air Act concerns, impact fees, tree ordinances, urban sprawl issues and concerns, etc. with which we have since learned to live.
Commercial activity, likewise, started with a few visionaries such as the Atlanta Merchandise Mart, Regency Hyatt Hotel, Peachtree Center Complex, and what was originally called the Omni but is now the CNN Center. It was not long before the first suburban office park, Executive Park, was also developed. Although the first shopping center was Broadview Plaza (now called Lindbergh Plaza), it was really the success of Lenox Square that spawned retail growth as we think of it today. As the buildings got taller, more interesting architecturally, and became multi-use and multi-building complexes, we were suddenly dealing with 99-year ground leases, air rights, out parcels and covenants, operating agreements, cross-easements, and a potpourri of financing that we never knew existed. Lawyers’ skill became more sophisticated and more responsive to our clients’ needs. Local lawyers such as Travis Brannon were Bar leaders in representing major developers and lenders in establishing the high standards of today’s commercial real estate practice. Law firms added real estate departments, expanded on the existing departments, hired lawyers from around the Country, acted as local counsel for the money center banks, worked with law firms in other cities, etc. There was a new emphasis on financing, zoning, construction law, title insurance claims, leasing, eminent domain, creditors and debtors rights, condominium, time share, or, as it is sometimes called, common interest law, environmental law, and a whole host of other sub-specialties reflecting the business in which our clients were getting involved. As the nature of the practice changed, it opened new opportunities to new law firms such as Hyatt & Rhoads (condominiums, homeowners’ associations, etc.) and Swift, Currie, Hancock & McGhee (construction law) which quickly developed national reputations.
Gradually as growth continued, our highways were widened from two-lane interstates to the current situation, MARTA came on board with other counties looking at mass transit or public transit in one form or another. As growth and development continued, law firms were not far behind and were certainly involved in the activity generated by these developments. Over the years, as the economy turned, there was a tightening of the belt and many branch offices were closed, as they proved to be economically unfeasible. There were all kinds of problems with communication, alienation, and building of the “team” spirit. National firms started moving into Atlanta either by merging with existing firms, hiring local lawyers, moving lawyers that had a “southern connection” to Atlanta to take the Bar or that had taken the Bar and moved to other locations, etc.. In addition, many clients established an internal law departments, growing large enough to have various practice groups and rivaling some of the largest local firms in terms of size, expertise, quality of their lawyers’ work product, diversity and sophistication of work, etc.
Simultaneously with this, there was a splitting off of lawyers from larger practices to open up boutiques that specialize, concentrate, or focus on specific areas of the practice. Today, some firms specialize, for example, in environmental or leasing matters. The causes that led to this varied from lawyer to lawyer, i.e., more money, desire not to do other kinds of work, desire to have an office closer to home, be their own boss, (independence of lawyers is well documented), less bureaucracy, etc. Concurrently, some boutiques, merged into larger firms as their client base grew, or changed, and they need the support or the facilities that a larger practice and firm offers. Interestingly enough, while the practice changed, the State Bar has never established the criteria for specialization as many other States have done even though many lawyers and law firms do limit, focus or concentrate their practices for all practical purposes.
The title insurance business changed likewise as attorneys and some non-attorneys opened title agency relationships with the national title underwriters to issue title insurance directly. More and more title insurance companies came in to Atlanta and throughout the state. Somehow, somewhere, throughout the process, the non-attorney agencies started and began doing other work such as conducting closings, recording documents, and other activities which many feel constitute the unauthorized practice of law. Their position, buttressed by an expanded interpretation of the Lawyers Title case, lack of enforcement of Unauthorized Practice of Law rules, economic pressure from clients, other States’ laws, changing customs and practices, etc. was that anything done incidental with the issuance of title insurance, they were entitled to do. More and more other non-lawyer vendors began providing shall pieces of the real estate process that were the once exclusive domain of attorneys, i.e., preparing and filing material and labor liens, appealing real estate taxes, handling IRS §1031 Tax Free Exchanges, examining titles, etc.
Over the years, changes in the County Courthouse Record Room occurred so that now the Metro Atlanta Counties have fallen from some of the best records in the State to representing some of the worst. Errors, mistakes, omissions, delays, are well documented and present an interesting dilemma to the attorney who is certifying the title, to title insurance underwriting company which thus far has been willing to accept the risk and insure the gap and mistakes, to lenders who are relying on title insurance to protect their loan priority position, and to purchasers and lenders who if they do not get title insurance, are running the risk of being financially responsible for the Record Room’s deficiencies. The post WW II long term employees who were dedicated to their jobs, stayed in these relatively low pay and low popularity jobs, but absolutely essential to the proper functioning of a real estate practice, were not being replaced by equally experienced, trained, and knowledgeable people. Relatively low and static pay, change of culture from the “Depression” standpoint looking for job security, the new personnel was not trained properly, did not seem to understand the Real Property matters, seemed to lack the commitment to making this a career as opposed to a job,lack of funding and vision for modern record room techniques, general change in lifestyle and increased job opportunities. There is constant concern by the Bar, and other parties on one side and the keepers of the public records on the other.
Also, at a state level, it was realized that much money could be made from public records. The Georgia Secretary of State got involved. The Supreme Court’s Clerks Cooperative Association was set up and established to assist with UCC’s and establish standards and procedures by which Clerks should operate, be judged and determine the quality of their work. The Uniform Commercial Code filing is now local or central filing with central record keeping, as opposed to the former local filing – local recording. Efforts continue, albeit slowly, to automate record rooms. The private sector had moved first with companies such as Information America, a leading pioneer. Automation progressed from the typewriter to the photocopy machine to computerizing the Index. This has led to a new problem, i.e., when indices are changed on the computerized Index and there is no paper trail left to indicate the change as they were when the Index was written, typed or photocopied and any changes were dated and initialled. There has even been some suggestion dispense with the paper index and only have a computerized Indices. What happens if a virus or other hacker gets access? How do we insure the integrity and security of the records? What happens if there is a “crash”?
On the horizon, there is optical scanning, complete computerization of the Records so that at some point in time, the hope is, that titles will be able to be examined by remote from an office, home, or anywhere that you can connect with a telephone line through a modem. Whether or not this will be accomplished in a manner to provide a more accurate record search is very questionable. Where the money will come from is also questionable. Thus far, there does not appear to be sufficient “will” to establish either a California or Florida type of additional surcharge to the recording of documents, with the generated funds dedicated solely and exclusively to technological improvements. While the Clerks maintain that Record Rooms make a “profit”, the budgetary process has all of the money going to the County Commissioners which then disburses it on a different priority basis. However, with the increased cost of personnel, rent, floor space, keeping books, etc., the Counties may be forced into a better computerization program because of the increasing cost factor in maintaining records in perpetuity. There is currently a serious shortage of space to store additional records in a number of counties. As things become “more accessible and easier” and go “online” to get information, there is also the risk that the public, being untrained, will have information overload and not know how to sort out what is good or bad, legally sufficient or defective, and may erroneously assume that since it is of record at the Courthouse, that it must be accurate and reliable.
It should be noted, as I was writing this article, the Clerks in Fulton, Cobb and Dekalb were finally allocated funds by their respective County Commissioners to purchase computerized record keeping systems. All three reportedly will use the same system which could lead to a uniform statewide system if it works as projected. As all of us know from the hi-tech equipment in our own practices, having the latest equipment is the first step. It must be properly and adequately installed, maintained, updated, and personnel trained. Additionally, in this case, there must be adequate terminals for the public to use, data must be kept current, and proper training must be provided for users, etc. There must also be security safeguards to protect the integrity of the Public Records. It is not enough to merely purchase and install equipment. Hopefully, this will be the major step in turning the corner on updating the efficiency in storing and retrieving real property information around the State. Much of the credit should go to the Real Property Law Section and, in particular, Bill Dodson, for an effort that goes back at least a decade.
Over the years, title insurance has changed from the traditional commitment followed by a policy with exceptions, to a “short form” Lender’s policy, giving gap survey coverage, without a survey being run, to enhanced residential lenders’ and owners’ policies, and residential owners policies being issued at the closing table under certain circumstances, and a whole host of other assurances that previously were unavailable and thought too risky. This has not occurred for commercial policies because of the inherent problems and increased risk and liability. Some people feel that at some point in time in the future, title insurance may be changed to a “casualty” basis, in order to expedite closings. For years, title insurance legislation has been introduced in the State legislature but it has not been enthusiastically received by any of the other interested parties except the particular bill’s sponsors/supporters. Efforts will undoubtedly continue but the outcome is still very uncertain under current conditions.
For residential loans, we now have an enormous sophisticated and exclusive secondary market, the standardization of documents, electronic data interchange of information, the bundling of services that order title, taxes, survey, appraisal, payoffs, loan documentation and approval and closings, all at the same time. In the future, documents may very well be prepared, signed, placed in escrow, merely awaiting for the buyer to approve the purchase of the home which will done through some type of video, CD computer screen with perhaps a visit to the property to merely affirm and confirm the selection. Escrow closings may be the norm rather than exception, as the title may well already have been “run”, title clearance work undertaken, seller’s documents prepared, signed and placed in Escrow, and the buyer pre-approved for financing. At that point, the real estate agent may push a button on her computer, documents will spew out and be signed by the purchaser. The process will resemble very much what happens with buying a car and simultaneously getting financing from the car dealer. Money can be transferred electronically, i.e., both in and out so the entire transaction takes place virtually instantly. The purchaser may leave the closing without a document in hand but, more likely, a computerized diskette or CD. While this may seem far fetched, please remember that a few years ago appraisers actually physically went out to appraise the house, walk through it, and measured everything. With the computerization, zip coding, etc., we now have a “market analysis” in many instances by zip code without anyone actually looking at the property and certainly not the inside of the house.
Today, some attorneys have dedicated fax machines or computer printer terminals in their offices dedicated to a single client and document receipt. Computerized closing packages have become the norm. Many lenders either prepared their own documents or utilize third party document prep service vendors to do so for them throughout where the lender originates loans. Of course, they charged for this services. Query, does this violate Georgia’s UPL? Faxing documents on fax machines with enlarged memory capacities have became standard equipment. Telephone systems are no longer leased from the telephone company with your telephone number, but require a lease separate from the telephone line, or are purchased. There are so many fax, cell phone, computer modems and new telephone lines that we have expanded from one to three area codes for metro Atlanta. Equipment and features increased so voicemail became S.O.P. with much information being exchanged via voicemail and without ever actually talking to the other party. Documents are frequently prepared by attorneys, using a computer terminal on their desk. Diskettes are exchanged to facilitate corrections, changes, duplication, to contracts, closing documents, agreements, etc. Through the use of the Internet and e-mail, documents are sent and received virtually instantly around the Country. In the past, papers were mailed, hand delivered, sent by overnight commercial courier, faxed, we are now into instant communication! Thirty-five years ago, documents were usually mailed or hand-delivered when the attorney went out for lunch,etc. as everything was in walking distance. Since then, we have moved from mail to overnight courier, to hand-delivery by commercial courier service, to fax machine, and now to e-mail transfer of documents. The exchange of computer disks is commonplace as well as catching an occasional “virus”. What the future holds is anybody’s guess. Fax signatures and documents, were an issue for a while but now the envelope is being pushed further to “electronic signatures”, etc. Will the law ever catch up with technology?
Lenders through EDI (Electronic Data Interchange) are ordering title, appraisals, etc. Library books are being replaced by the computer access. Law directories such as Martindale-Hubbell, while continuing their printed book, are “online”, and assisting individual lawyers and law firms in developing their own Web pages. Instead of retyping documents, they can now be optically scanned into the computer and with some “housekeeping cleanup” are usable. The previous method of dictating to the lawyer’s personal secretary taking shorthand, quickly gave way to dictating machines which in turn are being replaced by voice activated computer dictation systems. The practice that does not have someone who is technologically current, computer literate, has current equipment, properly trained personnel, and the capital or (bank lines of) credit to finance, purchase or lease the equipment, is at a significant competitive disadvantage which may negate superior legal skills.
In addition, presently a new phenomenon, “Business Development Directors” or “Client Liaisons” and an expanded view by many of what is permissible, has come to dominate the residential practice. Replacing the lawyer, are “sales oriented” lay persons who find, pursue, attract, coordinate, interact, assist clients, actual and potential. Previously, an occasional meal, presenting a seminar, or providing tickets to a sporting event, has developed into a full fledged cottage industry with trade association sponsorships, booths at trade association functions, golf/tennis/athletic sponsorships, and a whole arena of other networking relating inducements and incentives as the envelope is being pushed a little more every day. Ever since the restraints against lawyer advertising were removed, each day seems to generate another idea. While many lenders have opened up their approved closing attorney lists so they are no longer exclusive domains, the competition for closings has driven down the fees charged and profit margins despite the corresponding increase in the cost of providing the services lawyers perform and liability, all within shorter and shorter time frames. Why do we do refinances for the same price as purchase and acquisition financing closings? Many times law firms are now being asked to handle “witness only closings”. In these situations, the closing attorney usually does not run the title, issue the title insurance, clear title problems, prepare the documents, disburse the money , clear title objections, record documents, (the lender of other third parties do these things) but only witnesses and notarizes the documents. It is my understanding the State Bar has not officially determined that the closing attorney has corresponding limited liability in these situations. Those that handle this type of closings, with this assumption, may be surprised that in informal discussions, the State Bar has indicated the opposite. This situation represents a possible conflict between the market place pressures and the ethical and liability responsibilities placed by the State Bar. Of course, declining profit margins and the impact on personnel needs and future ability to prepare closings, should not be overlooked. Query, are those attorneys who handle such closings pounding another nail in the coffin of lawyers handling residential closings in the future? By their logic, why does an attorney need to be the witness or Notary?
Nationwide, pressure has been exerted by Fannie Mae and others to decrease closing costs. Unfortunately, lawyers, in part because we practice in generally one state, are not organized on a national basis. Those providers that are national, want to increase the number of states in which they do expanded business. In Georgia, we may find that there is increase competition from builders, lenders, realtors, independent escrow or title companies, and a whole host of other parties, who all want to participate in the “bundling of services”. It appears that the Federal government is going along while changing their anti-kickback, referral fee, conflict of interest, etc., rules. Whether this is good or bad for the consumer is very questionable and debatable. At least one state’s Supreme Court has ruled that while the handling of a closing may be the practice of law, if it is properly disclosed to the buyer, then the buyer should have the choice of whether they want to use an attorney or not. Query, what is the standard of care, duty and liability that the non-attorney closing agent owes the parties? Who regulates them?
When interest rates used to change, it made the headlines in the newspaper and broadcast news reports. Lenders’ instructions did not even include the interest rate (always “faxed” late) or documents to be used as they were all standard by lender only and not in the industry. Once you did one closing, every other document package was the same for that lender only. Each lender had different documents. Today, interest rates and loan programs, i.e., variable rate and different maturities change from loan to loan, from moment to moment, as computer screens are on lenders’ desk as they try to maximize return and profitability. On the residential side, loans are generally not portfolio loans but are not made unless they can be sold on the secondary market and sold at a profit. The usury law was changed years ago to accommodate the constantly changing national money market to help insure our ability to attract outside funding to continue our economic growth. In the commercial area, more and more, the capital markets rather than the traditional portfolio lenders such as S & L’s, life insurance companies, etc. are the new source of funds for increasing variety of loans. Documents are being “standardized” and not subject to negotiation as they used to be. In exchange, the lender’s legal fees are usually “set” so the borrower knows what the cost thereof will be. An interesting trade-off.
Several years ago, in response to these and other activities in other areas of practice, the State Bar asked the Unauthorized Practice of Law Committee, of which I was then a member, to revisit the definition and Unauthorized Practice of Law rules, regulations and procedures. The State Bar also asked the Real Property Law Section as well as all other Sections to review the UPL committee’s recommendation. One major problem was the definition of the practice of law and how it would be enforced. The guidelines regarding the Real Property Law Practice were completely rewritten to deal with the modern practice. These were then approved by the Board of Governors and submitted to the Supreme Court. As several years passed and nothing was done at the Supreme Court level they may now need updating. Recently, the Supreme Court has set up a special Committee dealing with UPL matters. It is in the process of collecting examples of possible UPL violations and submitting them to the Court so as to inform, educate and advise the Court of the current situation so that it can determine what rules need to be adopted or changed in order to protect the public. Contrary to the commonly held view, UPL rules are not designed to protect lawyers and their practices but to protect the public, i.e., to help insure that they have competent legal services. The State Bar responded to UPL issues by centralizing UPL activities in one particular staff attorney instead of rotating the duty to the attorney who answered the telephone that day. Investigators were hired (two for the entire state). While I was Chair of the UPL Committee, a “kit” was developed which was distributed to Clerks, District Attorneys, Solicitors, Judges, etc., and seminars were held to acquaint them with the issues.Unfortunately, the Real Property Law practice continues to change from day to day and what was drafted four or five years ago, may not be as comprehensive enough for today practices let alone meet the future changes.
Volunteers have never been lacking for Real Property Law Section participation. In fact, two of our Chairs, Jim Elliott and John Sammon, moved up the leadership ladder from RPLS Chair to serve as State Bar President. As this is being written, Carol Clark is on the verge of being elected the first female chair of the RPLS. If this year’s Institute, of which she is the Chair, and, which should be the largest seminar in the history of the RPLS and ICLE, is any indication, she should be the best RPLS Chair ever.
Several of the RPLS members have authored or are the current author/editors of books which are very helpful to the practitioner. These include, but are not limited to, 1) Real Property In Georgia, by Stephens Mitchell; 2) Georgia Real Estate Law and Procedure by George Pindar (Daniel F. Hinkel, current author); 3) Georgia Real Estate Sales Contracts by Joseph L. Abraham (Daniel F. Hinkel, current author); 4) Georgia Construction Mechanics and Materialmen’s Liens by Daniel F. Hinkel; 5) Truth in Lending/RESPA and ECOA in Real Estate Transactions by Comer W. Padrick, Jr.; 6) Foreclosures, by Dave Aiken and Greg Ward, now Georgia Real Estate Finance and Foreclosure Law by Frank S. Alexander; 7) Georgia Real Estate Forms by Russell S. Grove, Jr., and Deborah E. Glass (now edited by Bruce P. Cohen); 
Title Examinations by Wendell F. Davis; 9) Georgia Landlord and Tenant by William J. Dawkins; and 10) Residential Real Estate Contracts by Seth J. Weissman and Candyce D. Cavanaugh.
The Real Property Law Section (“RPLS”) has also changed over the years. From a relatively small group of lawyers, the RPLS is now the State Bar’s 2nd largest section with over 2000 members. There are now many functioning standing and special committees. There has been a great involvement in being pro-active in legislation matters rather than just merely reactive which has resulted in several important pieces of legislation being passed to assist the practice of law rather than any one particular client. In addition, we have been able to modify, amend, and change other proposed legislation to make it a better and more efficient legal system. For example, work has been done with the State Revenue Department in conjunction with Intangibles Tax and State Transfer Tax to make them more user friendly and easier to fill out and more certain. RPLS has ongoing communications with the Clerks around the State trying to get a more uniform system, standardization, reliability and consistency in the various record rooms. As mentioned recent developments are beginning to bear fruit as new computer systems are being installed in Fulton, Dekalb and Cobb counties. A RPLS Web-page has been established with information, helpful to its membership, being added on a regular basis: www.gabar.org/sections/section_web_pages/real_property_law/. Check it out and let Doug Selph, Chair, know of any suggestions to improve it. Revised Title Standards (Comer L. Padrick, Jr. Reporter, Bruce P. Cohen and Greg Ward were co-chairs) were rewritten from the original ones that were done some twenty-five years previously. In addition, the most prodigious intellectual work ever undertaken by the RPLS was realized with the publication of the Legal Opinion Report (Betsy Hishon, Reporter, Jim Jordan and Phil Skinner were co-chairs) for secured real estate transactions. These two projects exemplify the best of the RPLS’s volunteers. The numerous ICLE co-sponsored seminars continue providing exceptional value of current pertinent and sophisticated material at very reasonable prices.
Over the years the RPLS responded to changes impacting the Profession. One such example was IOLTA – “Interest on Lawyers Trust Accounts”. Attorneys have always had to keep clients’ money in a separate escrow account and the lawyer or law firm could not earn any interest thereon (which is different from Realtors). IOLTA required interest to be paid by the depositing financial institution to a special Bar related entity to disburse it. This substantially diminished the “value” of the compensating balances which many lawyers used to generate new closings, business, etc. It also subjected lawyers to new regulations and rules on escrow accounts. The RPLS members responded with over 400 negative responses to the new rules, the largest response any program ever generated. Many objected in principal to the concept, others to the purposes the money were to be used, others because the RPLS had no direct input on how the generated funds should be used (i.e., many thought that they should go to the Bar’s Client Security fund to compensate the public for damages by lawyers in their professional capacity, etc., which resulted in some changes from the original proposal and IOLTA is still in force today although there are new national challenges. Stay tuned, more to come.
To recognize life time achievement of various practitioners, in the early 90′s, the RPLS established a George Pindar Award. The recipients of this have been some of the giants of our practice – George Pindar, Comer L. Padrick, Jr., L. Travis Brannen, Jr., William R. Patterson, are those that have been recognized in the past. The 1999 recipient is Robert L. Foreman, Jr. whose professional career continues the tradition of excellence represented by previous Pindar Award winners.
In 1998, the RPLS also recognized three title insurance professionals for their significant contributions, i.e., John Matthews, J. Trammel McIntyre, and Howard Stillwell. Additionally, in 1999 the RPLS presented a Special Recognition of Merit Award to Elizabeth A. (Betsy) Hishon, posthumously, in recognition of her outstanding contribution to the legal profession, including but not limited to being the Reporter of the Section’s Legal Opinion Report.
Real Property Law Section sponsored seminars have been presented to the Superior Court Clerks in the various counties to help them and their personnel understand the importance of maintaining accurate, current, and consistent record. Pamphlets have been written for home buyers as part of the State Bar’s public relations and educational process. This helps explain the role of the attorney in the closing process. These have been updated twice over the years.
Furthermore, the RPLS sponsored the formation of the Bar related title insurance agency, Attorneys Title Guaranty Fund (“Fund”). Over the years, the “Fund” has grown in importance to real property practitioners as the commercial title insurance underwriters increase minimum remittances requirements. Its policies are underwritten by a national underwriter. Continuously, the Fund has expanded its services to include an endorsement of computer document preparation system, personnel leasing, insurance, networking opportunities, financial support to many worthwhile purposes such as the State Bar’s new headquarters, scholarships, monitoring proposed legislation, etc. Its importance will surely grow and expand in the future to reflect the needs of its agents, the real property lawyer.
The RPLS also was very involved in educating the State Bar recording the proper disclosure and collection of recording fees, etc. and once the ruling was made, disseminating that information to our membership to help insure proper handling of this important issue.
The RPLS is one of the most active sections of all. Its other initiatives include a newsletter, an executive director, requests for formal advisory opinions in areas of practice such as “good funds”, the role of paralegals, the role of lenders doing closings in-house, etc. A lot of this information is contained in the RPLS’s Deskbook which is available through ICLE. For all these efforts and others it has been recognized as Best Section in 1993-94, (Eric D. Ranney, Chair), and Special Achievement Awards by the State Bar in 1996-97, (Bruce P. Cohen, Chair).
The future holds no absolutes. The residential practice can expect increased pressure by non-attorneys to obtain, prepare, handle and conduct closings, and issue title insurance. Lower profit margins and a hectic lifestyle are a certainty. Commercial transactions will also likewise become more “standardized” to respond to national financial markets and reduce time and costs. Non-traditional law firms will continue to try to make in roads in the practice. There will probably be pressure to permit the consumer access to services by “financial service companies” of every nature, kind and description, even if not at the same level of competency or liability. More and more there are pressures on the Bar to be business people with legal skills, rather than lawyers with a business sense. One way to measure the changing nature of our life style and public perception is that more and more of our children do not appear to be following in their parents footsteps and entering the profession. It is an exciting but stressful time to be practicing real property law. We can expect more and more change. Those that do not also change are destined to be left behind unless they are extremely lucky.
One thing that has not changed completely over the last 35 years, is the unique collegiability character of practicing in Atlanta and throughout Georgia. As I travel around the Country, talk with lawyers in other parts of the Country, attend meetings with lawyers and others, I have come to appreciate more and more, the Southern characteristic to this side of the practice. It was certainly much easier 35 years ago when we were a smaller, more homogenous Bar and virtually everyone knew each other, etc. However, it still remains strong today and part of a challenge and responsibility for each of us to fully embrace, participate, and enhance this unique and important characteristic of professionals dealing with each other. By doing so, we and our clients all benefit. Jim Jordan, Chair of RPLS, recently wrote about it in the RPLS’s Newsletter. We hear it over and over at ICLE seminars on Professionalism. We experience it every day. It is something that applies to all areas of the practice, regardless of geographical location, size of firm, firm specialty, clients, nature of issues, etc.. With enthusiasm and determination to maintain the character of our interpersonal dealings, we all improve our quality of life, our practices and serve our clients’ interests.
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AUTHOR’S NOTE:
As in any case of personal reminiscing, it is possible to inadvertently omit situations, people or events, or give an incorrect interpretation of events. This could be due to failing memory, inadvertent and inherent weakness of this type of article when compared to one after researching the subject, etc. In the event that any one or any thing that I described is inaccurate or incomplete, I apologize in advance as my intent was to share my interpretations of what has happened over the last 35 years and not judge or attribute ulterior motives to others.
