(dissenting) — I respectfully dissent. The majority affirms the trial court’s dismissal of the Perkinses’ class action suit against CTX Mortgage Co. (CTX), finding that although CTX engaged in the practice of law by preparing legal documents, such practice was authorized because CTX bifurcated the process between its lay employees and lawyers. The majority is persuaded that CTX’s bifurcation limits the risk of public harm and promotes convenience and low costs. The majority’s general policy considerations, however, cannot be reconciled with the fact that the practice of law in this case is conducted by unqualified lay employees and unlicensed (in Washington) lawyers who are drafting, selecting, and completing legal documents. Washington case law clearly prohibits lay persons from preparing legal documents, such as those at issue in this case, unless specifically exempted by this court, or certified by the Limited Practice Board. Moreover, Washington’s Admission to Practice Rules (APR) strictly prohibit unlicensed lawyers from practicing law in Washington. Nevertheless, the majority holds that mortgage lenders, such as CTX, are authorized to prepare legal documents because lay employees participating in such document preparation do not exercise any legal discretion. I dissent because bifurcation of a real estate loan transaction between unqualified lay persons and unlicensed lawyers circumvents the rules of legal practice in our state, particularly APR 12, and as a result compromises, rather than promotes, the public interest.
Drafting, selecting, and completing legal documents is a process that entails the exercise of legal discretion at each stage.8 Indeed, Washington holds that the practice of law even includes the selection and completion of preprinted *108form legal documents. Washington State Bar Ass’n v. Great W. Union Fed. Sav. & Loan Ass’n, 91 Wn.2d 48, 55, 586 F.2d 870 (1978); In re Discipline of Droker, 59 Wn.2d 707, 370 F.2d 242 (1962); Washington State Bar Ass’n v. Washington Ass’n of Realtors, 41 Wn.2d 697, 251 F.2d 619 (1952). The only exceptions to this prohibition are closing officers certified by the Limited Fractice Board,9 and real estate brokers or salespersons who are both licensed under RCW 18.8510 and held to the standard of care demanded of a lawyer. Cultum v. Heritage House Realtors, Inc., 103 Wn.2d 623, 627, 694 F.2d 630 (1985) (in addition to the licensing requirements of RCW 18.85, the court held real estate brokers and salespersons to a lawyer’s standard of care). I note it is not surprising that our series of unauthorized practice of law cases involve real estate transactions and that we have traditionally applied a strict analysis where lay persons participate in the selection and comple*109tion of legal documents.11 This is because the preparation of legal documents such as deeds, mortgages, and promissory notes fix the various parties’ legal rights and duties. Cultum, 103 Wn.2d at 627.
In this case, there is no question that CTX engaged in the practice of law by preparing legal documents for the Perkinses’ real estate loan transactions. However, in determining whether CTX was authorized to practice law, the majority does not analyze the nature of how CTX drafts, selects, and completes its legal documents. Instead, the majority is persuaded that CTX’s bifurcation of the process is proper, simply characterizing such practice as “consistent with our historical approach to the unauthorized practice of law.” Majority at 102. The majority states that Cultum “left open” whether mere clerical entry of objective data on legal forms is prohibited.
Contrary to the majority’s view, however, Washington has never held that the practice of law may be severed into two categorically separate tasks of legal discretion and scrivener-like activities. Such a position construes the practice of law as an easily divisible process whereby the skill of legal analysis may be divorced from application of the facts.12 Instead, our line of unauthorized practice of law cases actually demonstrates that completion of legal docu*110ments not only constitutes the practice of law, but the act itself, which includes the entry of a customer’s profile, entails the exercise of legal discretion. Indeed, the facts in Cultum clearly demonstrate that merely entering information on the blanks of standardized legal forms constitutes the exercise of legal discretion, which thereby prompted the creation of a narrow exception for real estate agents.
Responding, to the majority’s view is made difficult in this case because the majority adopts an inconsistent view of whether CTX lay employees are engaged in the unauthorized practice of law. The majority initially treats the conduct of CTX lay employees as mere scrivening that does not involve legal discretion and is, therefore, not an activity that constitutes the unauthorized practice of law. In articulating its policy-based holding, however, the majority supports the opposite proposition by suggesting that even if inserting data on legal forms does constitute the unauthorized practice of law, in Cultum this court already authorized some lay persons to do so based on the strong public interest in convenience and limiting costs. Cultum, 103 Wn.2d at 630. Herein lies the majority’s contradiction: when CTX lay employees complete legal forms, they merely act as scriveners who do not exercise legal discretion; but when a licensed real estate agent engaged in the same activity, Cultum implicitly found that completion of legal forms involves legal discretion.13 Because of this fundamental inconsistency, the majority provides no clear guidance for later courts to determine how and when legal discretion is effectively parceled out from the entry of “objective” information.
In its desire to uphold CTX’s bifurcation of the real estate loan transaction, the majority purports to rely on Cultum. Because Cultum permitted real estate brokers and salespersons to complete forms prepared by lawyers, the majority, *111on policy grounds, would extend that principle to other lay persons such as CTX employees. The analogy, however, overstates the policy announced in Cultum and overlooks a critical distinction between that case and the majority’s resolution here. In Cultum, a real estate agent completed a standardized earnest money agreement and addendum, which involved filling out forms drafted by lawyers. Cultum, 103 Wn.2d at 625-26. The majority finds that CTX is similarly engaged in completing preprinted legal forms. However, it gives short shrift to the critical fact that Cultum authorized only licensed real estate brokers or licensed salespersons to prepare, i.e., fill out, preprinted legal documents in connection with real estate transactions. Id. Unlike the majority’s resolution here, Cultum did not authorize an overbroad class of lay persons to prepare such documents without standards of accountability.
The majority fails to realize that the conduct at issue here is the same as in Cultum, and that the court authorized the practice only because the group of newly exempt lay persons were licensed real estate agents subject to RCW 18.85 and held to a lawyer’s standard of care.14 Here, the majority’s broad holding offers no protection of the public interest. Although the majority holds that lenders must comply with the standard of care of a practicing attorney when preparing such documents, the majority goes far beyond Cultum, allowing any lay person to prepare and complete legal documents even though the lay person is neither a real estate agent nor a certified closing officer under APR 12. Thus, contrary to the principles articulated in Cultum, the majority expands the class of nonlawyers to practice law without regard to the limitations established in both Cultum and APR 12.15
The Cultum court’s reluctance to create the exception *112for real estate agents must be understood in light of both the court’s ruling in Hagen & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 635 P.2d 730 (1981) and the stringent language which followed in APR 12. In Hagen & Van Camp, the court ruled unconstitutional a statute that authorized escrow agents and officers to select, prepare, and complete documents and instruments. Not only did the court find the statute an invasion of the Supreme Court’s exclusive power to regulate the practice of law, but the court also found that the statute was dangerously flawed because “it virtually [gave] free reign to almost anyone of any degree of intelligence to perform any task related to real property or personal property transactions.” Id. at 448. In a similar vein, the Cultum court’s reluctance stemmed from the concern that not all lay persons possess the skills and training required to properly perform the tasks related to real estate transactions. To this end, the Cultum court reasoned that authorizing hcensed real estate brokers and hcensed salespersons is proper given RCW 18.85 and provided that preparation of documents is limited to those documents related to the main business of real estate transactions, and that such individuals adhere to the standard of care of a practicing lawyer. Cultum, 103 Wn.2d at 631.
In January 1983, after Hagen & Van Camp, and just two years prior to Cultum, APR 12 was adopted to authorize certain lay persons, deemed “closing officers,” to select, prepare, and complete legal documents. APR 12 not only defines specific prerequisites and application procedures for closing officers, but it also limits a closing officer’s scope of practice to selecting, preparing, and completing documents for specific use in closing a loan, extension of credit, or sale or other transfer of real or personal property. See APR 12(d). Moreover, the rules further provide that prior to the performance of services, all parties must have agreed in writing to the basic terms and conditions of the transaction. See APR 12(e). The closing officer must also advise the parties that a closing officer is not an advocate for either party; the documents will affect the parties’ legal *113rights; the parties’ interests may differ; the parties may obtain counsel; and inform the parties that a closing officer cannot provide legal advice as to the manner in which the documents affect the parties. Id. Contrary to Hagen & Van Camp and APR 12, the majority expands the class of exempt lay persons by authorizing mortgage lenders’ lay employees to participate in legal document preparation. Such a view renders the requirements of both APR 12 and Cultum superfluous.
CTX claims that documents which require the exercise of legal discretion are prepared by lawyers or closing officers, and that all documents are reviewed by a closing officer prior to their execution by CTX. Decl. of Larry J. Smith Re Exs. in Supp. of Def.’s Summ. J. Mot., Ex. H at 2-4. CTX concedes that a closing officer participated in the entire loan process in only some of the loans provided to the plaintiff class. Id. Otherwise, CTX’s lay employees are assigned the primary task of completing legal documents on the computer prior to a closing officer’s review. Id. Presumably, although not clear from the record, CTX loan officers conduct the interviews and consultations with customers to determine the type of loan that best fits the needs of customers. From there, however, the computer-generated forms require CTX’s lay employees to input data based on customers’ credit reports, intake forms, and other information gained from the “loan qualification process” and “credit investigation.” Id. CTX further admits that some of its lay employees who participate in the document preparation process are not certified closing officers, and are neither licensed real estate brokers nor licensed salespersons. Based on CTX’s own description of its bifurcated process, CTX fails to demonstrate that its lay employees who complete form legal documents satisfy either the requirements of APR 12 or the Cultum exception. Thus, I would hold CTX’s lay employees are engaged in the unauthorized practice of law.
Still, the majority is convinced that CTX should be authorized to prepare legal documents because, to the extent *114that CTX exercises legal discretion, the task is delegated to in-house counsel in Dallas, Texas. In this regard, the majority finds that CTX lawyers perform all tasks requiring the exercise of legal judgment.
In order to practice law in Washington, however, an individual must pass the Washington State bar examination, be an active member of the Washington State Bar Association, and be admitted by order of the Washington State Supreme Court. APR 1(b). Out-of-state lawyers who wish to appear as a lawyer in the trial of any action or proceeding in this state, must apply for special admission with the court or tribunal where the action is pending. APR 8(a), (b). Thus, even if this court were to adopt the bifurcation model advanced by CTX, the Admission to Practice Rules dictate that CTX must retain counsel who either have been admitted to the Washington State Bar or granted special permission.
CTX does not claim that its legal work is conducted by licensed Washington lawyers or Texas lawyers granted special admission. Rather, CTX simply defends its practice on grounds that it retains in-house counsel in Dallas, Texas where much of the legal discretion is exercised in preparing legal documents for use in Washington real estate transactions. Given that CTX is engaged in the practice of law but has delegated legal discretion to lawyers who have neither been shown to be admitted to the Washington Bar nor granted special permission by a Washington tribunal, this court should conclude that CTX’s in-house counsel are unauthorized to practice law in Washington.
CTX fails to demonstrate how bifurcation of the real estate loan transaction ensures that qualified individuals exercise legal discretion. If CTX’s lay employees do not exercise legal discretion because their task is reduced to scrivening, and if CTX’s in-house counsel are unlicensed to practice law in Washington, then CTX is improperly drafting, selecting, and completing legal documents. It is at this juncture where CTX’s bifurcation model collapses and the circumvention of our rules of legal practice becomes most apparent.
*115Despite the concerns expressed in our cases and the restrictive language dictated by our rules of practice, however, the majority argues that the inquiry in this case turns on an analysis of competing policy interests: the risk of public harm and the promotion of convenience and low cost. The majority believes that CTX’s activities are unlikely to result in uncertain legal rights, and that the public interest in convenience and low cost weigh in favor of permitting mortgage lenders to prepare legal documents. To justify this dual policy, the majority cites the pragmatic concerns and policy interests expressed in Cultum. However, in Cul-tum the court found that public policy was in conjunction with its narrow holding permitting licensed real estate brokers and licensed salespersons to complete preprinted legal forms, provided such individuals comply with the standard of care of a practicing lawyer. Cultum, 103 Wn.2d at 631. This heightened standard of care was in addition to the licensing requirements already in place for real estate brokers and salespersons. Id. at 628, 631. Thus, the court furthered the public interest by specifically requiring that only licensed real estate brokers and salespersons would be permitted to prepare legal documents which arise in the usual course of their business, and in completing those documents would be held to the same standard as a practicing lawyer.
In this case, the bifurcated real estate loan transaction provides no similar protection to the public. CTX’s lay employees are not subject to the standard of care of a practicing lawyer because they are presumed to exercise no legal discretion. Moreover, there is no assurance or indication in the record that CTX’s in-house counsel have been properly admitted to practice Washington law and are beholden to the local standard of care. Hence, the majority’s general policy considerations cannot be reconciled with the fact that CTX employs unqualified lay persons and unlicensed lawyers to prepare legal documents in connection with real estate loan transactions. See Washington State Bar Ass’n, 91 Wn.2d at 60 (“[i]t is our duty to protect the public from the activity of those who, because of lack of professional *116skills, may cause injury whether they are members of the bar or persons never qualified for or admitted to the bar.”).
As the majority itself points out, Washington’s unauthorized practice of law cases are replete with instances of lay exercise of legal discretion causing public harm; and each case is directly within the context of real estate transactions. Although the majority attempts to distinguish CTX from those cases on grounds of public policy, those cases present similar facts where lay persons were found to exercise legal discretion in the completion of legal documents.16 The only distinguishing feature of CTX’s practice is that lay employees enter data into a more sophisticated computerized system. Thus, because the nature of the real estate loan transaction remains the same as our prior cases, the facts here do not warrant authorizing such an over-broad class of individuals to engage in the practice of law— especially where there is great difficulty ascertaining the extend to which CTX’s lay employees actually refrain from exercising legal discretion.
That the plaintiff class in this case demonstrates little or no harm was suffered should not color the issue of whether all mortgage lenders should be authorized to practice law. Moreover, that the Perkinses hired their own lawyer can neither preclude the plaintiff class of declaratory relief, nor discount the prospect of future harm to customers of other mortgage lenders. For it is not this court’s function merely to redress past injury but to prevent future harm where possible. Washington State Bar Ass’n, 91 Wn.2d at 60-61 (citing In re Discipline of Droker, 59 Wn.2d at 721).
Finally, the majority discusses at great length the $250 fee which CTX charged as part of its document preparation costs. This fee is just further evidence that CTX is engaged in the unauthorized practice of law. Contrary to the majority’s reading of their argument, the Perkinses and Amicus Washington State Bar Association (WSBA) do not concede that CTX’s lay employees could properly fill in *117legal forms as long as no fee is charged. Bather, the class action argues that CTX is engaged in the unauthorized practice of law, and that, even if CTX were to assert a potential pro se defense under Washington State Bar Ass’n, it is barred from charging such a fee. WSBA further clarifies the issue objecting to the document preparation fee on grounds that the charge makes CTX’s conduct even more egregious.17 Granted, the majority correctly explains, at length, the condition of a fee for what appears to be legal services is not dispositive.
Compensation for such services, however, is conclusive evidence that the recipient is acting on behalf of another. See Washington State Bar Ass’n, 91 Wn.2d at 57. Here, there is no question but that CTX is acting on behalf of its customers to secure real estate loans.18 The Perkinses and WSBA object to CTX’s practice of law because they contend that it is unauthorized and that the fee further demonstrates how the public interest is harmed. Thus, that CTX charged $250.00 for its document preparation services19 does not determine whether the nature of the service was unauthorized, but rather the fee underscores the egregious nature of CTX’s unauthorized practice of law.
Given the well-established case law strictly prohibiting lay persons from preparing legal documents, and that *118bifurcation of the real estate loan transaction both circumvents our rules of legal practice and harms the public interest, this court should conclude that CTX engaged in the unauthorized practice of law and that the trial court improperly dismissed the Perkinses’ class action suit against CTX.
Alexander, J., concurs with Madsen, J.
Reconsideration denied February 22, 1999.
See, e.g., Hagen & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 446, 635 P.2d 730 (1981) (“The ‘practice of law’ does not lend itself easily to precise definition. However, it is generally acknowledged to include not only the doing or *108performing of services in the courts of justice, throughout the various stages thereof, but in a larger sense includes the legal advice and counsel... by which legal rights and obligations are established.”).
Washington’s Admission to Practice Rules provide that certain persons may select, prepare and complete legal documents incident to the closing of real estate and personal property transactions upon certification and approval by the Limited Practice Board. Certification requires that such person be at least 18 years of age; be of good moral character; satisfy the examination requirements established by the Board; and undergo continuing education to retain his or her certified status. Upon certification such person is deemed a “closing officer” and is authorized to select, prepare and complete documents for use in a loan, extension of credit, sale or other transfer of real or personal property. Such documents shall be limited to deeds, promissory notes, guaranties, deeds of trust, reconveyances, mortgages, satisfactions, security agreements, releases, Uniform Commercial Code documents, assignments, contracts, real estate excise tax affidavits, and bills of sale. A certified closing officer may render those services provided that, prior to the performance of the services, all parties to the transaction agree in writing to the basic terms and conditions of the transaction; and that the closing officer advise the parties of the limitations of the services rendered in addition to advising the customer in writing that the closing officer is not acting as an advocate of either party; the documents to be prepared affect the legal rights of the parties; the parties’ interests may differ; the parties have a right to be represented by an lawyer; and the closing officer cannot give legal advice as to how the documents affect the legal rights of the parties. Washington Court Rules, Admission To Practice Rules, Rule 12(a), (c), (d), (e), (f) (1998).
RCW 18.85.090 provides the licensing requirements for real estate brokers and RCW 18.85.095 provides similar licensing requirements for real estate salespersons.
See Hogan v. Monroe, 38 Wn. App. 60, 62, 684 P.2d 757 (1984) (lessors’ repossession rights inadequately protected by lease-option agreement drafted by real estate agent); Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 591-92, 675 P.2d 193 (1983) (seller unable to execute against property upon buyer default because escrow agent prepared unsecured promissory note); Hagen & Van Camp, 96 Wn.2d 443 (escrow agents’ and officers’ preparation of documents in connection with real estate transactions constitutes unauthorized practice of law, and Legislature’s enactment of statute authorizing escrow agents and officers involved with real estate transactions to select, prepare, and complete legal documents violated the Supreme Court’s exclusive power to regulate the practice of law); Hecomovich v. Nielsen, 10 Wn. App. 563, 518 P.2d 1081 (1974) (escrow company and its manager engaged in unauthorized practice of law when they determined which forms to prepare to effectuate earnest money receipt and completion of preprinted legal forms). But cf. Cultum, 103 Wn.2d at 626 (permission given licensed real estate brokers or licensed salespersons to complete standard earnest money agreements provided they comply with the standard of care of a practicing lawyer).
See Hagen & Van Camp, 96 Wn.2d at 446 (the practice of law “ ‘is generally acknowledged to include not only the doing or performing of services in the *110courts of justice, throughout the various stages thereof, but in a larger sense includes the legal advice and counsel ... by which legal rights and obligations are established.’ ”).
The court was thereby compelled to create a specific exception for licensed real estate brokers and salespersons.
Cultum, 103 Wn.2d at 631 (real estate brokers and salespersons authorized to complete form legal documents but must comply with the standard of care of a practicing attorney in addition to real estate licensing requirements).
This decision may have implications for the practice of law that reach far beyond the real estate industry.
See footnote 12, supra.
See Br. of Amicus Washington State Bar Ass’n. In Cultum, the Washington State Bar Association (WSBA) took the position that the public interest was best served by allowing licensed real estate agents to complete standard form earnest money agreements, whether or not such activities technically constitute “the practice of law.” Br. of Amicus WSBA at 15.
As amicus WSBA points out, many of the documents at issue significantly affect the legal rights of CTX’s customers: assignment of lien from CTX to Texas Commerce Bank, mortgage loan closing instructions, deed of trust, borrower’s affidavit, etc.
CTX claims that its document preparation fee is not based directly upon the creation of any particular document, that CTX does not charge the $250.00 fee for legal services, and that the fee is charged to recoup some of CTX’s overhead costs associated with the paperwork necessaiy for mortgage loans. Br. of Resp’t at 7. However, the U.S. Department of Housing and Urban Development clearly defines the document preparation fee as a separate fee some lenders or title companies charge to cover their costs of preparation of final legal papers, such as a mortgage, deed of trust, note or deed. U.S. Dept, op Housing & Urban Development, Buying Your Home: Settlement Costs and Helpful Information (June 1997).