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REBA Shuts Down Out-Of-State Notary Closing Company U.S. POSTAGE Columnist Paul PAID BOSTON, MA Judge Cutler to Alphen says PERMIT#: 1323 speak at Land Boston’s future is Use meeting looking brighter. PAGE 2 PAGE 3 WWW.REBA.NET SEPTEMBER 2012 THE NEWSPAPER OF THE Vol. 9, No. 4 news REAL ESTATE BAR ASSOCIATION A publication of The Warren Group ALTA counsel off ers insider’s view of CFPB at Annual Meeting & Conference Steve Gottheim, Conference on Monday, Oct. 29, 2012, tection Bureau for comment. Steve will Emergency Economic Stabilization Act regulatory and leg- at the Best Western Royal Plaza Hotel off er a detailed insider’s view of the po- of 2008. In his spare time his interests islative counsel for in Marlborough. litical process leading up to the promul- include cooking, tennis and his beloved American Land ALTA is the trade association and gation of the 1,200-page draft rule. New York Mets. Title Association national voice of the abstract and title Steve is a graduate of the University For more information about the (ALTA), will de- insurance industry. As ALTA’s regula- of Maryland – College Park and the REBA Annual Meeting & Conference, liver the luncheon tory point person in Washington, Steve University of Maryland Law School. turn to page 6. keynote address has been involved in crafting the pro- He was a Capitol Hill staff er working To register for REBA’s Annual STEVE GOTTHEIM at REBA’s all-day posed rule and disclosures recently is- as a legal fellow for the Senate Bank- Meeting & Conference, go to www. Annual Meeting & sued by the Consumer Financial Pro- ing Committee during passage of the reba.net. Economic REBA shuts down out-of-state Development notary closing company Act of 2012 Highlights for land use, EBA’s continuing battle to end After REBA learned that National Superior Court. Th e Superior Court the unauthorized practice of Loan Closers was providing notaries will be asked to recognize that notaries environmental, municipal and law recently secured an agree- public for “witness only” closings in public are public servants performing development attorneys Rment from National Loan Closers, Inc., Massachusetts, REBA sued in Supe- public duties by administering oaths, one of the country’s largest providers of rior Court in April 2012 to enjoin the taking acknowledgements, issuing sub- BY GREG D. PETERSON “professional notaries” for witness clos- practice. Th e Real Estate Bar Association poenas, and acting as independent wit- ings, to stop doing business in Mas- for Massachusetts, Inc. v. National Loan nesses in a variety of situations. Private sachusetts. In a “witness only” closing, Closers and Linda L. Audet, C.A. No. parties, like National Loan Closers, On Aug. 7, 2012, which are not permitted in Massachu- SUCV2012-01609.) REBA also sued cannot aggregate the services of nota- Gov. Deval Patrick setts, the individual presiding over the Linda Audet, one of the Massachusetts ries public, or any other public offi cials, signed into law the settlement of the real estate transaction attorneys who had been hired as a to sell those services as a commer- Economic Develop- acts only as a witness to the transac- notary public for “witness only” cial good. Th e parties have also ment Act, Chapter tions and not as an attorney. closings, thereby enabling Na- agreed to ask the Superior 238 of the Acts of National Loan Closers, which is tional Loan Closers’ illegal Court to enter a judgment 2012. Th e act ex- based in Cincinnati, Ohio, advertised practice. that private parties, like pands and extends a itself as “the nation’s leader” in provid- Within a few weeks after National Loan Closers, GREG number of existing ing “professional notaries and attorneys the complaint was fi led, Na- cannot sell the services of PETERSON programs to support for your mobile and witness closings.” tional Loan Closers agreed an attorney. Th e Superior infrastructure devel- It maintains a database of “signing to a settlement by which it Court judgment is opment and enhance agents,” including notaries public and would stop providing expected in a competitiveness, provides new funding some attorneys, who are willing to notaries public few weeks. and adds new programs supporting eco- preside over “witness only” closings. in the com- nomic development. National Loan Closers’ notary manage- monwealth. ment systems, known as “My Closing REBA and EXPANDING AND Tracker” and “Closing Board,” together National EXTENDING THE PERMIT with its notary public database, are used Loan Closers EXTENSION ACT by title companies and mortgage lend- have also agreed ers across the country to locate and hire to fi le a joint re- Under the act, applicable permits have notaries public for “witness only” clos- quest for the entry been expanded to include any permit in ings. of judgment in the eff ect at any time between Aug. 15, 2008, and Aug. 15, 2012 (a two-year expansion of the scope of permits aff ected). Th e pe- riod of time for which applicable permits A dual in the sun are extended has been increased from two years to four years. REBA Ethical Standard No. 4: Attorney Acting in Dual Capacity as Attorney and Real Estate Broker Th is impacts not only state per- BY JAMES S. BOLAN mits (wetlands order of conditions and in the same transaction.” Th e purpose of the lawyer’s own interests, unless: ◆ groundwater discharge permits) but also this article is to highlight the reasons for the lawyer reasonably believes the local permits (special permits and local In May 2012, the the standard and the potential risks for representation will not be adversely wetlands orders of conditions) and re- Real Estate Bar As- not appreciating its eff ect. aff ected; and ◆ gional permits. In essence, virtually any sociation adopted a Th e comments to Standard No. 4 the client consents after consulta- property development permit is within new ethics standard, note, fi rst, a lawyer’s general fi duciary tion.” the scope of the Permit Extension Act No. 4, to memorial- duty under Mass. R. Prof. C. Rule 1.3 (40B Comprehensive Permits are the no- ize the policy that to zealously represent one’s client within If a lawyer is acting as a broker in table exception). “an attorney shall the bounds of the law. A concomitant to the same transaction in which she/he Th e Executive Offi ce of Housing and not act as both at- that duty is the obligation, under Rule is acting as counsel, then it is not pos- Economic Development (EOHED) has JIM BOLAN torney for a party in 1.7(b) not to represent a client if that sible that the representation will not be updated its Permit Extension Act FAQ a real estate transac- representation “may be materially lim- adversely aff ected. As a part of the rea- website to refl ect the new law. tion and as a real es- ited by the lawyer’s responsibilities to sons cited in the comment to the new tate broker to a party another client or to a third person, or by standard, lawyers need to be aware of See EDA, page 8 See DUAL CAPACITY, page 2 PAGE 2 REBAnews SEPTEMBER 2012 Englander joins State Land Surveyor Board Gov. Deval Patrick tions which includes rules of professional gator with more than 30 years of expe- has appointed long- responsibility. The group also serves as a rience. He possesses particular expertise time REBA member gatekeeper for licensing new land survey- on rights in the intertidal zone and beach Ed Englander to the ors and engineers. disputes. In addition, Englander is litiga- 10-member Board of “The board serves the engineering tion counsel to the Boston Redevelop- 50 Congress Street, Suite 600 Professional Engi- profession – as well as the general public’s ment Authority on an array of land use Boston, Massachusetts 02109-4075 neers and Land Sur- welfare – in much the same way that our and contract cases, including zoning, www.reba.net veyors. Board of Bar Overseers and our Board of affordable housing, urban renewal, dis- ED ENGLANDER The board estab- Bar Examiners acts for the legal profes- crimination and Chapter 121A. He also lishes, monitors and sion,” Englander said. “It is an honor to represents the Hull Redevelopment Au- President: enforces quality stan- serve as the public’s representative in the thority on a contract matter. Englander is Christopher S. Pitt dards for the engineering and land sur- board.” a partner in the Boston law firm of Eng- [email protected] veying professions. The board regulates A member of REBA’s Litigation lander, Leggett & Chicoine P.C. and can the practice through a code of regula- Committee, Englander is a veteran liti- be contacted at [email protected]. President Elect: Michael D. MacClary [email protected] Immediate Past President: Land Court Judge Judith Cutler to speak at Edward M. Bloom [email protected] Treasurer: land use meeting Michelle T. Simons [email protected] Land Court Associate Justice Judith Cutler, appointed to the bench in Clerk: C. Cutler will address a luncheon meeting 2009, was a principal in the Boston law Christopher L. Plunkett of the REBA land use and zoning com- firm of Kopelman & Paige, P.C., where [email protected] mittee at 12:00 noon on Tuesday, Oct. she represented municipalities in a vari- 2, 2012. The luncheon program, which ety of land use matters including zoning, Executive Director, Editor: is open to all REBA members, will be subdivision control, public and private Peter Wittenborg hosted by Greg D. Peterson, committee ways and affordable housing. [email protected] co-chair, at Tarlow, Breed, Hart & Rogers, To register for this program, please P.C.
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