Wisconsin Lawyer: President’s Message: Who Are They Kidding?:

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    President’s Message: Who Are They Kidding?

    The State Bar missed an opportunity to include an attorney’s consent clause in the standard offer to purchase real estate form.

    Douglas W. Kammer

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 82, No. 12, December 2009

    Douglas W. KammerThose of you younger than 50 have to take my word for the truth of this paragraph. Forty years ago, the mainstay of a small town lawyer’s practice was the residential real estate transaction. The same was true of big city solo and small firm practitioners. New people moving to town were buying houses and hiring lawyers to handle the transactions. It was a chance to make a new client – maybe two new clients. It was a great way to pick up a couple hundred dollars (the equivalent of a thousand dollars in today’s money) on a deal that was noncombative and left everyone happy. Lawyers were in charge of passing all real estate titles – this was done with things called “abstracts” before the days of title insurance. Those days are long gone, but the residential transaction is still great business if you can get the clients. But getting the clients in the door is no easy matter.

    Standard in many states is a provision in the boilerplate realtors’ forms called the “attorney’s consent” paragraph. It essentially allows the buyer a three- or five-day window to withdraw from the transaction after consulting with a lawyer. It allows the buyer to take a sober and calm look at the deal with benefit of expert consultation, and if buyer’s remorse is to set in, to get it done early on and cheaply. This opens the door to the lawyer’s office for the unskilled and naïve buyer. Some buyers want to proceed without counsel even though the provision is present. Some don’t understand what a lawyer can do for them. But some of them will correctly perceive the provision is in there for their protection and avail themselves of legal help early on in the transaction – while the deal can be fixed if there are problems.

    Banks and other folks involved in the transaction expect the deal to be “inked” on a familiar and standard real estate form, generally called an “offer to purchase.” It is rare indeed that a residential deal gets done, even if lawyers are working without any realtor involvement, on tailor-made documents.

    Form WB-11 (the standard offer to purchase) is being redrafted. The Secretary of the Department of Regulation and Licensing updates the forms from time to time. Anyone can participate in the process. (These standard real estate forms are approved by the Department of Regulation and Licensing, and their use is mandatory for realtors.) A draft of WB-11, in near final form, was presented at the Bar’s Annual Real Estate Update seminar on Oct. 21. The lawyers in the room protested that there was no attorney’s-approval provision in the form. I called this to the attention of the Legislative Oversight Committee, but the committee was powerless to act without directive from the Board of Governors. Never mind that the Board had no idea this opportunity was in the offing. The final draft (without the attorney’s-approval provision) was sent to the Secretary last week. Ever try to put toothpaste back in the tube? This is a terrific opportunity missed. Think what a difference it would make if even half of the homebuyers in Wisconsin sought advice of counsel before becoming committed to the largest transactions in their lives!

    We had the opportunity to put an attorney’s-acceptance clause in the standard real estate contract, and blew it!

    Where was the State Bar in all this? The Secretary of Regulation and Licensing ultimately passes judgment on these forms, and she is open to input from all directions – in fact, she welcomes it. But you weren’t at the table. You weren’t at the table because the State Bar wasn’t at the table. The State Bar wasn’t at the table because it is out of touch with your needs.

    I have lost track of our employees (we had 93 of them at last count). And we have several committees and sections that could have jumped on this.

    I’m not trying to point the finger at our dedicated staff, nor at the sections or committees whose volunteers give selflessly of their time. My point is that a major change is taking (took?) place and somehow we were not involved. It is a question of allocation of resources and priority of effort.

    I only know of one kind of wake-up call. This article isn’t going to do it – a dozen of them won’t either. Our employees need to understand the ultimate importance of member satisfaction. Our sections need to understand that they are the eyes and ears of the members – if they fail to keep the members abreast of governmental projects, opportunities will be missed. This message is only going to become our driving principle if the top management and Bar leadership makes it so. The threat of members seeking other associations (and taking their dues with them) is the only one that will be heeded. As long as that option is precluded by mandatory membership, the Bar will have no incentive to put its members first.