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January 02, 2007

Real Estate Certification A Death Knell To Solos

This column set off a firestorm of responses from those who agreed and disagreed with my opinion.  Please read and then reread before you make any comments. I strongly believe certification in the areas traditionally reserved for the generalists and young solos will make starting your own practice at anytime in your career virtually impossible.

Connecticut Law Tribune - June 26, 2006

Eugenics is a social philosophy which advocates the improvement of human hereditary traits through various forms of intervention. The purported goals have variously been to create healthier, more intelligent people and lessen human suffering. Earlier proposed means of achieving these goals focused on selective breeding while modern ones focus on genetic engineering. Historically, eugenics has been used as a justification for coercive state-sponsored discrimination and severe human rights violations, such as forced sterilization (e.g., of those perceived to have mental or social defects) and even genocide.

Why am I writing about state-sponsored discrimination, genetically engineered weeding out of the perceived "less desirables" and genocide? It was the first thing that came to mind when I read the recent article in the Connecticut Law Tribune discussing the newest Connecticut Bar Association Real Property Section’s efforts to create a certification in residential Real Estate. Eugenics is unconscionable in its worst form, genocide, and ethically questionable in its purported loftiest goals, selection of gender and traits when creating a new life. The end result is the same, it is thinning out of the herd but by a small group’s definition of "defective" and "desirable."

Applying "specialization" status to real estate law is just ludicrous, discriminatory and serves no higher purpose than protecting those currently overweighted in their practice from new lawyers entering the field. Since when has "I’ve been doing this forever" a suggestion of expertise and a guarantee of consumer protection?

This quote says it all. "We think, with the increase in competition to get on approved attorneys lists, that (a certification program) is going to make a difference. We just want to demonstrate to the public how committed we are to consumer protection." Well, here is the reality. Banks will start marketing, "we only use lawyer’s certified in real estate." Realtors are going to want to align themselves with certified lawyers to make themselves look good to their clients and will have to have a short list of certified lawyers. So now all buyers will be shifted to "certified" attorneys. Consumers will be stripped of their choice of lawyer under the guise of "protection."

If consumer protection were really the heart of this push for certification then there would be no prequalifier of "having been admitted to the bar for at least five years and devoted a substantial percentage of their practice to real estate." Certification would be comprised of continuing legal education and possibly an examination to ensure you have a certain skill set beyond your law degree. If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck.

Once you start applying certification or specialty status to areas of law which were once the province of a small town lawyer you are attempting to lock out new lawyers, period. It is the proverbial "certification" slippery slope. And the lawyer who typically starts out offering a panoply of legal services is the solo.

Representing a client in a residential real estate closing is not brain surgery. If it was, most of the "detail" work could not be done by a paralegal while the lawyer shows up in his tennis whites on a Friday afternoon to sign the papers. (I've already been chastised on my choice of words...please do not comment further.) This is exactly what happened at our closing. We hired a new solo for the purchase. The seller hired an "established" real estate firm. Our lawyer showed up in his fresh-pressed suit, painstakingly went through every document with us to our level of understanding while the other lawyer, who was late and dressed in shorts and a polo shirt, drummed his fingers on the conference table. My lawyer was thorough; the "experienced" lawyer was yawning and looking at his watch. We, the buyers, understood all the documents we were signing thanks to this "inexperienced" lawyer who was not heavily weighted in real estate law. The bank representative was so impressed she asked him to submit his credentials right then and there while she sought a waiver to their own requirement a lawyer be admitted to the bar for at least five years. And there is the rub. Most lenders already require a minimum amount of time after admission to the bar in order to get on their approved attorneys lists so the consumer has protections.

This particular "certification" in residential real estate, is nothing more than a ploy to lock up the playing field. It will toll a death knell to the new attorney and solo who is no less committed to his clients and no less talented. And because solos tend to do the work themselves, the client is getting the lawyer’s time and work product. You do the math. The real estate bubble has burst. There are fewer clients per lawyer. If you are overweighted in real estate and that’s all you’ve been doing (to your own detriment), you are going to take a massive hit.

How do you save yourself besides learning new areas of law to expand your business? Get the Connecticut Bar Association and the judiciary to go along with your plan to close out the competition by playing the "consumer protection" card. And to assuage other members of the bar say, "but it’s totally voluntary." Whatever happened to competing for business on integrity, professionalism and good customer service?

Susan Cartier-Liebel is solo practitioner, adjunct professor at Quinnipiac University School of Law and a business consultant for solo and small firms. She can be reached at SCartier_Liebel@comcast.net. Copyright © Susan Cartier-Liebel (2006) All Rights Reserved. No portion of this material may be copied, transmitted, posted, duplicated or otherwise used without the express written approval of Susan Cartier-Liebel

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