MBA supports SJC decision on REBA v. NREIS

Issue June 2011

On April 25, the Supreme Judicial Court announced its decision in REBA v. NREIS concerning the unauthorized practice of law. The decision is beneficial to both the legal profession and the consumer, and it supports the various tenets of the 2010 Massachusetts Bar Association amicus brief filed in this case.

"The SJC affirms the MBA's longstanding position that it is essential that attorneys be actively involved in real estate closing transactions," said Martin W. Healy, MBA chief legal counsel. "The interests of private clients and the public alike are safeguarded when an attorney participates in real estate conveyancing," added Healy.

The decision asked for further finding regarding the actual employ and use of attorneys hired by NREIS.

The MBA filed an amicus brief on Oct. 8, 2010, for the Real Estate Bar Association for Massachusetts seeking "to vindicate the longstanding public policy governing conveyancing as the practice of law and requested that the court declare that NREIS is engaged in the unauthorized practice of law in violation of G.L. c. 221, §46."

In July of 2010, the 1st U.S. Circuit Court of Appeals overturned an April 2009 ruling of U.S. District Court Judge Joseph Tauro. The 1st Circuit held that the unauthorized practice question should be certified by the Massachusetts Supreme Judicial Court. The 1st Circuit also found that the fee award violated the First Amendment and reversed the fees.

Tauro sided with NREIS, limiting the role of lawyers in residential real estate closings. He also sided with NREIS in their counterclaim that REBA's interpretation of the unauthorized practice of law issue violates the U.S. Constitution's Dormant Commerce Clause, and awarded fees and costs to NREIS totaling more than $900,000.