72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
Senate Bill 43
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Committee on
Judiciary for Oregon State Bar Unlawful Practice of Law
Committee)
CHAPTER ................
AN ACT
Relating to the unauthorized practice of law; creating new
provisions; and amending ORS 9.160, 9.166 and 9.241.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 9.160 is amended to read:
9.160. { + (1) + } Except { - for the right reserved to
litigants by ORS 9.320 to prosecute or defend a cause in
person - } { + as provided in this section + }, { - no - }
{ + a + } person { - shall - } { + may not + } practice law
or represent that person as qualified to practice law unless that
person is an active member of the Oregon State Bar.
{ + (2) Subsection (1) of this section does not affect the
right to prosecute or defend a cause in person as provided in ORS
9.320.
(3) A person licensed under ORS 696.022 acting in the scope of
the person's license to arrange a real estate transaction,
including the sale, purchase, exchange, option or lease coupled
with an option to purchase, lease for a term of one year or
longer or rental of real property, is not engaged in the practice
of law in violation of subsection (1) of this section.
(4) A title insurer authorized to do business in this state, a
title insurance agent licensed under the laws of this state or an
escrow agent licensed under the laws of this state is not engaged
in the practice of law in violation of subsection (1) of this
section if, for the purposes of a transaction in which the
insurer or agent provides title insurance or escrow services, the
insurer or agent:
(a) Prepares any satisfaction, reconveyance, release,
discharge, termination or cancellation of a lien, encumbrance or
obligation;
(b) Acts pursuant to the instructions of the principals to the
transaction as scrivener to fill in blanks in any document
selected by the principals;
(c) Presents to the principals to the transaction for their
selection any blank form prescribed by statute, rule, ordinance
or other law; or
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(d) Presents to the principals to the transaction for their
selection a blank form prepared or approved by a lawyer licensed
to practice law in this state for one or more of the following:
(A) A mortgage.
(B) A trust deed.
(C) A promissory note.
(D) An assignment of a mortgagee's interest under a mortgage.
(E) An assignment of a beneficial interest under a trust deed.
(F) An assignment of a seller's or buyer's interest under a
land sale contract.
(G) A power of attorney.
(H) A subordination agreement.
(I) A memorandum of an instrument that is to be recorded in
place of the instrument that is the subject of the memorandum.
(5) In performing the services permitted in subsection (4) of
this section, a title insurer, a title insurance agent or an
escrow agent may not draft, select or give advice regarding any
real estate document if those activities require the exercise of
informed or trained discretion.
(6) The exemption provided by subsection (4) of this section
does not apply to any acts relating to a document or form that
are performed by an escrow agent under subsection (4)(b), (c) or
(d) of this section unless the escrow agent provides to the
principals to the transaction a notice in at least 12-point type
as follows: + }
________________________________________________________________
{ + YOU WILL BE REVIEWING, APPROVING AND SIGNING IMPORTANT
DOCUMENTS AT CLOSING. LEGAL CONSEQUENCES FOLLOW FROM THE
SELECTION AND USE OF THESE DOCUMENTS. THESE CONSEQUENCES AFFECT
YOUR RIGHTS AND OBLIGATIONS. YOU MAY CONSULT AN ATTORNEY ABOUT
THESE DOCUMENTS. YOU SHOULD CONSULT AN ATTORNEY IF YOU HAVE
QUESTIONS OR CONCERNS ABOUT THE TRANSACTION OR ABOUT THE
DOCUMENTS. IF YOU WISH TO REVIEW TRANSACTION DOCUMENTS THAT YOU
HAVE NOT YET SEEN, PLEASE CONTACT THE ESCROW AGENT. + }
________________________________________________________________
{ + (7) The exemption provided by subsection (4) of this
section does not apply to any acts relating to a document or form
that are performed by an escrow agent under subsection (4)(b),
(c) or (d) of this section for a real estate sale and purchase
transaction in which all or part of the purchase price consists
of deferred payments by the buyer to the seller unless the escrow
agent provides to the principals to the transaction:
(a) A copy of any proposed instrument of conveyance between the
buyer and seller to be used in the transaction;
(b) A copy of any proposed deferred payment security instrument
between the buyer and seller to be used in the transaction; and
(c) A copy of any proposed promissory note or other evidence of
indebtedness between the buyer and seller to be used in the
transaction.
(8) The notice and copies of documents that must be provided
under subsections (6) and (7) of this section must be delivered
in the manner most likely to ensure receipt by the principals to
the transaction at least three days before completion of the
transaction. If copies of documents have been provided under
subsection (7) of this section and are subsequently amended,
copies of the amended documents must be provided before
completion of the transaction.
Enrolled Senate Bill 43 (SB 43-A) Page 2
(9) Failure of any person to comply with the requirements of
subsections (3) to (8) of this section does not affect the
validity of any transaction and may not be used as a basis to
challenge any transaction. + }
SECTION 2. { + ORS 9.160 is added to and made a part of ORS
9.162 to 9.166. + }
SECTION 3. ORS 9.166 is amended to read:
9.166. { - (1) - } If the board has reason to believe that a
person is practicing law without a license, the board may
maintain a suit for injunctive relief in the name of the Oregon
State Bar against any person violating ORS 9.160. The court shall
enjoin any person violating ORS 9.160 from practicing law without
a license. Any person who has been so enjoined may be punished
for contempt by the court issuing the injunction. An injunction
may be issued without proof of actual damage sustained by any
person. The court may also order restitution to any victim of any
person violating ORS 9.160. The prevailing party may recover its
costs and attorney fees in any suit for injunctive relief brought
under this section in which the board is the plaintiff.
{ - (2) A person licensed under ORS 696.022 acting in the
scope of the person's license to arrange a real estate
transaction, including the sale, purchase, exchange, option or
lease coupled with an option to purchase, lease for a term of one
year or longer or rental of real property, is not engaged in the
practice of law in violation of ORS 9.160. - }
SECTION 4. { + The amendments to ORS 9.160 by section 1 of
this 2003 Act apply only to activities of title insurers, title
insurance agents and escrow agents as described in the amendments
to ORS 9.160 by section 1 of this 2003 Act that take place on or
after the effective date of this 2003 Act. + }
SECTION 5. ORS 9.241 is amended to read:
9.241. (1) { + Notwithstanding ORS 9.160, + } the Supreme
Court may adopt rules to govern the appearance in judicial and
administrative proceedings by attorneys who have not been
admitted to practice law in this state. Subject to those rules,
an attorney
{ - of the highest court of record in any other state or
country - } { + who has not been admitted to practice law in
this state + }may appear as counsel for a party in an action or
proceeding before a court, or may appear as counsel for a party
in an administrative proceeding, if the attorney is associated
with an active member of the Oregon State Bar.
{ + (2) Notwithstanding ORS 9.160, the Supreme Court may
adopt rules pursuant to the procedures established by ORS 9.490
that allow attorneys who have not been admitted to practice law
in this state to practice law in Oregon on a temporary basis,
including performing transactional or prelitigation work. + }
{ - (2) - } { + (3) + } The Supreme Court may by rule
require the payment of a fee by an attorney appearing as counsel
for a party in an action or proceeding before a court under the
provisions of subsection (1) of this section. All amounts
collected from any fee imposed by the Supreme Court under the
provisions of this subsection shall be deposited with the Oregon
State Bar and are continuously appropriated to the Oregon State
Bar. Amounts appropriated to the Oregon State Bar under this
subsection may be used only for the funding of legal services
provided through the Legal Services Program established under ORS
9.572 and for expenses incurred by the Oregon State Bar in the
administration of the Legal Services Program and in collecting
fees imposed under this subsection.
Enrolled Senate Bill 43 (SB 43-A) Page 3
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Enrolled Senate Bill 43 (SB 43-A) Page 4
Passed by Senate April 3, 2003
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 19, 2003
...........................................................
Speaker of House
Enrolled Senate Bill 43 (SB 43-A) Page 5
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled Senate Bill 43 (SB 43-A) Page 6