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Notary Basics: Avoiding The Unauthorized Practice Of Law

Learn the basics of avoiding the unauthorized practice of law as a Notary.

Updated 5-19-17. As a Notary, you serve the public by identifying signers and acting as an impartial witness. But sometimes customers ask for other services Notaries are not trained or allowed by law to provide, such as unauthorized legal advice. 

Notaries engage in the unauthorized practice of law (UPL) when they step beyond this clear role by offering legal advice, answering questions about what a document means or preparing documents.

UPL can carry serious consequences for a Notary, which can include a hefty fine; a suspended or revoked commission; and even conviction for a criminal offense. It’s crucial to understand exactly what services are considered to be the unauthorized practice of law — and how to avoid them.

What Is The Unauthorized Practice Of Law?
 

The unauthorized practice of law means offering legal services without being licensed as an attorney. Statutes, court opinions and ethics rulings from the State Bar often define the boundaries of “legal services.”

These authorities usually say that giving advice about a document a customer needs, recommending the type of notarization required or offering an opinion about the legality or effect of a document is considered the practice of law. Only attorneys licensed by the Bar in a particular state may perform these services. Nonattorney Notaries may not.

Avoiding Unauthorized Practice Of Law
 

To help you avoid UPL, The Notary Public Code of Professional Responsibility urges nonattorney Notaries who are not duly trained or certified in a relevant field to refrain from the following:

  • Prescribing or determining the particular document a customer may need
  • Selecting the type of notarization or certificate for a given document
  • Preparing a document or giving advice on how to fill out, draft or complete a document
  • Providing legal counseling or advice in a legal matter that may or may not involve a notarial act

And, no person may represent someone in court or a legal proceeding, or charge and collect a fee for such representation unless they are licensed to practice law in that state.

How Notaries May Advertise Notary Services
 

One of the more publicized examples of UPL involves bad actors who advertise as a Notario Publico, pretending to have legal qualifications when they actually don’t. They do this to scam unsuspecting immigrants into paying large fees for bogus services.

Notaries in many other countries, including notarios publicos in Latin American nations, have legal training and credentials similar to attorneys in the U.S. They may draft and archive documents, advise parties to the legal effect of a transaction, serve as mediators or arbitrators, and issue judicial opinions.

In order to combat so-called “notario” scams, Notaries in most states are prohibited from using the misleading phrase Notario Publico in their ads. Furthermore, many states require Notaries to include a carefully prescribed notice explaining they are not attorneys licensed to practice law, cannot offer legal advice, or accept fees for legal services.

For example, Texas Notaries are required by law to include the following disclaimer in their ads: "I am not an attorney licensed to practice law in Texas and may not give legal advice or accept fees for legal advice.”

Consult your state laws to see if you must include a specific disclaimer in your advertising.

How Notaries Can Assist Signers Without Offering Legal Advice 
 

While you must never offer legal advice or services, here are some ways you can assist signers without engaging in the unauthorized practice of law:

  • Set appropriate expectations with signers by explaining what you can and cannot do as a Notary
  • Describe to signers the types of notarial acts and certificates — generally jurats and acknowledgments — and the differences between the two whenever a document doesn’t contain a notarial certificate; however, require the signer to always choose which act you will perform​ for them
  • Refer signers to the receiving agency of a document or an attorney if they have questions, so they can receive proper advice

Rules For Nonattorney Notaries Who Work With Immigrant Clients

  • Never use the words “notario” or “notario publico” in your advertisements, or on your business cards, website, social media postings or storefront.
  • When required by law, include a disclaimer in both English and the foreign language in which you are advertising, explaining exactly what you are and are not authorized to do.
  • Include your specific fees in your advertisements in English and the foreign language.
  • Know what type of immigration assistance services you are allowed to provide

Kelle Clarke is a regular contributor to the National Notary Association.

18 Comments

Add your comment

John Clark

13 Jul 2015

I agree, except I don't send poor baffled ignorant people away who hold out documents to get notarized (perhaps to do with their employment.) What I do is to hold up different kinds of forms, tell them what they do, and only then say that I cannot choose for them. Or Is this just a way to get lawyers involved? Huh!

Rosemary Mathews

13 Jul 2015

Often a client will want a notarized note that gives a grandparent permission to travel with a child. If I tell her to write what she wants the note to say, and ask her to choose the jurat or the acknowledgement, will I be doing it right?

National Notary Association

13 Jul 2015

Hello Rosemary. If you are not an attorney, you should not advise the signer in any way regarding what to write in her document. Advising a signer how to prepare a document is considered legal advice.

James

13 Jul 2015

I carry with my a list of all the notary acts and have the client select from the list which one they feel works best for them. I hate though how many times the document they want notarized is blatantly obvious that you can only attach a certain type of notarization to and yet you can't just tell them what it is.

Sybil C. Boudreaux

13 Jul 2015

Exceptions to the Rule: Louisiana notaries have extensive powers, such as: Draft, execute, and record documents such as sales, mortgages, and donations of immovable properties; draft and execute collateral mortgages; draft and execute powers of attorney, last wills and testaments; draft, execute, and record affidavits of any nature or kind; draft and execute provisional custodies by mandate, and revoke and record the same; draft, execute, and record, if immovable bills of exchange, sales of movables (Title Transfers), donations of immovables and movables and many more types of notarial paper work that other states prohibit their notaries from drafting and executing. Louisiana notaries must pass the state's notarial examination, and, in so doing, they receive a statewide lifetime commission. LA notaries can choose to utilize their lifetime commission by posting a bond with the Secretary of State to be an active notary, retire the use of their commission, regain an active status by posting a state bond (no other testing is required), and whether active or inactive, are considered notaries by the state until their deaths. The Louisiana notary can lose their commission or be placed on probation for violating any of the state's notarial laws listed under Title 35 of the Louisiana Civil Code.

Robert Gostl

13 Jul 2015

The law regarding Louisiana Notaries Public is different from the other 49 states. Louisiana Notaries can draft documents and offer notarial advice. The duties of the Louisiana Notary are based on the Napoleonic Code which is not used in any other state.

Rockell

14 Jul 2015

So if a Notary in Louisiana has all those powers, why not just become an attorney or a distinguished paralegal. Most of those actions are still considered the practice of law; Louisiana or not. How can one draft affidavits and wills, mortgages, and other legal documents unless they are a practicing attorney or paralegal. I think that law is archaic.

Rochelle Karter

14 Jul 2015

The article above states " Providing services that step beyond this role such as [...] explaining documents is considered the unauthorized practice of law". Why did we Notaries recently have to become "Notary Signing Agents", take courses and exams and be required to follow the "script" which explains or interprets each doc if it is against the law? And as for the signer who is absolutely uneducated in our notary laws, I as a notary do not think I should use an incorrect certificate when signers do not understand which one to choose. Performing a notarization on an incorrect certificate just because someone asks me to should be considered "unauthorized" in my opinion.

Julie Brickley

18 Jul 2015

Providing blank forms is very tricky. We do a lot of Wark at hospitals and are often asked to bring blank documents with us. When asked which document they need...I always tell them to ask the requesting party. Requests for General/Financial POA are most common. I tell callers that they can get documents from lawyer or a variety of online legal sources. We do carry the ones published by the state if they choose that one. So often asked "will that give me the power to take care of things at the bank/bills/rent, etc?". I always respond with...I do not know and cannot advise you. You can view the form online and determine if it is what you need.

tara

23 Jul 2015

tis the day when there will only be ONE type of notary, why cant there just be a jurat and then cover both that way

Shelley Reeve

19 Aug 2015

I service several nursing and rehab homes. Families have frequently asked me to provide them with Power of Attorney forms (both for healthcare for for finance). I generally tell them they can get them online or from one of the "big box" office supply stores, and they are generally dissatisfied with this answer. I get the impression that some notaries do provide these documents, or that I am expected to. This makes me uneasy as I'm pretty clear that this is practicing law. Comments, anyone?

Angela Robinson

18 Dec 2016

What about a notary that notarized my dissolution papers then got engaged to my ex within a month of the divorce?

Jack Crawford

16 Jan 2017

Coincidentally I just had a lady come in with a "Cremains Placement and Burial Authorization" form from a mortuary in Ceres, CA. There was a cover letter stating that she should get it notarized. Nothing in the letter or the document itself indicated what type of notarization. I showed her both Jurat and Acknowledgment attachments and explained the difference and said either she could decide which one for me to complete, or she could call the mortuary. She called the mortuary. I could hear the response. He said to just do an attachment. I told her I needed to know which one. When she asked him he said whichever one I think is right. I told her I could not make the decision so she handed me the phone. I told him I needed to know if he wanted me to attach a Jurat or an Acknowledgment. He said an Acknowledgment. I suggested that it would simplify things if they were to state that in their cover letter. He seemed very irritated and said that in his 14 years there I am the first notary that has ever asked that question. While this kind of situation doesn't happen often, it does occur more often than it should. I can understand the general public not being knowledgeable, but if a business is going to require that a document be notarized it's reasonable to expect that they know what they're doing and that they do it properly. In this situation, my question should have been asked by other notaries numerous times over the past 14 years.

Angela Varvi

18 Jan 2017

Jack, I run across that problem all the time. People are always telling me they have no idea which form to use or no one has ever asked them that question! Unfortunately California's two different notary forms are confusing to those who are not trained notaries. I too, wish they would just make it one, preferably a jurat. I like the idea of the person being required to sign in front of me, which many people do not realize is NOT required on a California acknowledgement. In the meantime, I also require them to choose as that is the law.

Diane

24 Jan 2017

As part of my job for a CA public agency, I draft easements and agreements all the time, and I often have to discuss the various provisions of these documents with the other party. Most of the time the language is taken from templates that at one point in time were vetted by our City Attorney's office. Sometimes I'll search the internet for language that other public agencies use in similar agreements. Sometimes I come up with stuff on my own based on the many documents I've read and if I have concerns about the impact, I will ask our City Attorney's office to review. I am not an attorney. When I became a notary and was informed of this supposed restriction about "practicing law", I immediately contacted my City Attorney's office to express my concern. He laughed at me and said that what I was doing was not practicing law. If I was freelancing as a notary, it would be a different story and I would more closely adhere to the recommendations in this article.

National Notary Association

25 Jan 2017

Hello Diane. The California 2016 state Notary Public Handbook, page 6, describes unauthorized practice of law by Notaries as the following: "California notaries public are prohibited from performing any duties that may be construed as the practice of law. Among the acts which constitute the practice of law are the preparation, drafting, or selection or determination of the kind of any legal document, or giving advice in relation to any legal documents or matters. If asked to perform such tasks, a California notary public should decline and refer the requester to an attorney." If you are providing information or services as you describe,"on your own" without instructions from a qualified attorney, we strongly recommend that you do not do this. If you provide unauthorized advice that invalidates a signer's document or causes financial problems or other issues to a signer, you could be leaving yourself vulnerable to serious potential legal and financial consequences.

Kim

11 Apr 2017

I am a Notary Signing Agent and also carry a Certificate of Completion in preparing legal documents from The Florida Assoc.of Legal Document Preparers. I have recently started preparing legal documents on the side. The course talked about UPL in great detail. I do not choose the document for the customer, they tell me what they want prepared, I simply fill in the blanks and will not and do not give legal advice. I was also told that it was ok for me to notarize the document I prepare. I just want to make sure this is all correct, don't want to do something I shouldn't be doing?

National Notary Association

11 Apr 2017

Hello. A Notary Public must always avoid the unauthorized practice of law, and not offer legal advice. However, sometimes a Notary either is employed by a company, or owns a business in which the Notary also prepares documents. If document preparation is specific to the Notary’s duties, the Notary may generate as well as notarize the documents.

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