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The practice of law does not, on the other hand, encompass drafting the ordinary run of agreements used in the every day activities of the commercial and industrial world. Legal training and knowledge are not necessary to properly compose them. Drafting simple documents, which drafting does not entail giving advice or counsel as to their legal effect and validity, is not the practice of law. Specifically, the preparation of ordinary leases, mortgages and deeds do not involve the practice of law. They have become so standardized that to complete them for usual transactions requires only ordinary intelligence rather than legal training. To insist that only a lawyer can draft such documents would impede numerous commercial transactions without protecting the public, would not further the purpose of restricting the practice of law to trained and licensed attorneys.
Plaintiffs obtained from defendant Ameribank a real estate loan secured by a mortgage on their home. Defendant charged the plaintiffs a fee for the completion of the standard mortgage documents. Plaintiffs brought suit alleging that the charging of a fee for completing the mortgage documents constituted the unauthorized practice of law and violated the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq. In March of 1999, the case was certified as a class action to provide potential relief for other borrowers who also had been charged a document preparation fee by lending institutions. The circuit court granted summary disposition to defendant under MCR 2.116(C)(10) and denied reconsideration. On appeal, the Court of Appeals held that the charging of a separate fee for the preparation of the standard mortgage form by the defendant for the plaintiffs constituted the unauthorized practice of law. Defendant appealed.
Could the act of charging a fee for the preparation of the standard mortgage form be considered as an unauthorized practice of law?
The state supreme court reversed. The state supreme court held that a person was engaged in the practice of law under Mich. Comp. Laws § 450.681 when he counseled or assisted another in matters that required the use of legal discretion and profound legal knowledge. As the lender did not counsel or assist the borrowers in matters requiring legal discretion or profound legal knowledge, the lender did not engage in the practice of law and did not violate § 450.681.