Saturday, August 18, 2012

acting as a scrivener versus legal counsel

Every state is a bit different.  In Pennsylvania we have licensed title insurance agents who may or may not be an attorney.

Non-attorney title agents are permitted to create documents that are directly related to the title insurance policy being issued for the transaction but they perform this task as a scrivener.  Much care must be taken to assure that the non-attorney title agent does not engage in the unauthorized practice of law.

How do we handle that in our office?  We look at the sales contract and mortgage commitment letter - as applicable - and incorporate the language of any special conditions into the document.  Where such language is not already crafted, we ask the parties to draft it.  Put in writing what you want the document to say and we'll insert it.  Sometimes it is the mortgage lender who crafts language and sometimes it is the buyer or seller who craft language.

The basic rule about being a scrivener is that you are a scribe.  You write what they tell you.  You fill in the blanks.

There are many documents we will not create even when related to our title insurance transaction.  We keep it simple.

Even attorneys often choose to note that they are acting as a scrivener.  We see this on deeds all the time.  It means that the attorney likely did not examine title or act in an advising capacity.  It simply means they acted as a scribe and prepared the deed in the manner requested by the consumer.

So - keeping this explanation useful for a consumer - keep in mind that there are limits in authority or professional relationships and if you expect the person handling your case to act as an advocate or legal adviser, then you need to voice that expectation. You will pay for that service and you will need to formally establish that kind of a relationship with an attorney in writing.  Legal counsel is a special type of service.  It identifies conflicts of interest and specific tasks.  The price for such service is beyond that of simple deed preparation.

The bottom line is that to be a savvy consumer you must understand what you are paying for.  If you are capable of representing yourself by thinking through your transaction and making your own decisions, using a scrivener - attorney or non-attorney title agent is the least expensive path.  If you expect and desire legal advice or advocacy - someone to think for you, then expect to pay for services beyond simple document preparation and/or title insurance.

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