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Friday, July 22, 2016

The Last Line of Defense Against Anarchy

“Next caller, please!” My Cousin Vinnie, the suburban real estate attorney, yelled in his best exaggerated-talk-show-host-imitation-voice. “It seems that some days I am running a radio talk show, taking call after call from people with semi-serious ideas equipped with insufficient intellectual capital. This week alone I’ve talked to people that want to submit a bid to buy a package store that lacks a liquor license, and people who want to cut down trees in the wetlands, and a seller that just wants me to show up at a closing with 2 hours notice without me having had anything to do with the P&S. Thankfully I talked the guy out of submitting the bid on the package store.” I agreed with Vinnie that we are seeing a lot more activity from amateurs that do not appreciate that the sale of alcoholic beverages is the second most highly regulated form of retail business (with the sale of firearms being the first). It also seems that the amateurs think it is perfectly logical to submit liquor license applications, or wetlands notices of intent, without the assistance of counsel and then call counsel the day before the public hearing and expect counsel to attend the hearing and perform miracles.  You have to love their enthusiasm.
“That’s not the craziest thing going on!” Vinnie exclaimed. “Remember zoning opinions? Remember spending the better part of a week going through the cartons of old files in the basement of town hall, drafting a 30 page opinion, with 2 pages of caveats, only to have lender’s counsel spend the next week nit-picking every sentence and sending you back for re-write after re-write?” I certainly do. “Well, it seems that we aren’t being asked to draft those opinions much these days. It is my impression that too many lenders would rather purchase a $200.00 ‘zoning letter’ from Larry’s Zoning Emporium and Pet Shop, than risk the chance that we will unearth some dead body from the town hall archives. Can’t say that I blame them, as too many towns tossed out their old files, not to mention that too many towns failed to compile good records or prepare clear decisions in the first place, so the sufficiency of the documentation is lacking.”
“It’s funny…” continued Vinnie, “…the things that the world takes seriously and the things that don’t seem to matter to some people. I have to lock up my office like it’s the Federal Reserve Bank at the end of the day to comply with TRID, but nobody seems to care if a mortgage discharge is signed by an entity that does not have the authority to execute discharges. I have to remind myself weekly that my role is to be a guardian of the law and serve as the last line of defense against anarchy. Almost every other day somebody wants me to ignore this or ignore that; don’t notice that a sole trustee was also the sole beneficiary; disregard the ZBA conditions of approval; just assume the non conforming use is lawful; ignore the foreclosure deed signed by somebody without any apparent power to act on behalf of the mortgagee. How many times have I heard someone argue that the issue that I am raising was not a problem for the last attorney who closed on the property?”  I agreed with Vinnie that we get asked a lot to pretend we don’t know what we know, but I also said that I realize that if you act like a dummy , then don’t be surprised if thereafter your client and everyone else in the deal will think you ARE a dummy. Vinnie was more philosophical. “Remember what our classmate Barry said to the late, great Professor Jerry Healy when Jerry asked him what should be the ultimate goal of counsel when representing a client; Barry said ‘Don’t end up in a case published in a law school text book!’  Those are words to live by; and to me it means that when we give advice to our clients, and issue written opinions, we have to anticipate that our advice and opinions may be subject to intense scrutiny and surgical dissection in a court someday. The court is not going to care that that your client asked you to be ‘expedient’; the court will only care if the advice was precise and based on the facts and ALL the law.”  
Once again, Vinnie spoke the truth.  
Paul F. Alphen, Esquire
Alphen & Santos, P.C.
Westford, MA


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