Notaries and the Unauthorized Practice of Law (UPL)

Notaries are public officials appointed by their states’ commissioning authorities to serve the public as impartial witnesses to the signing of important documents. In most jurisdictions, notaries have three primary duties:

1. Administering oaths and affirmations. This involves receiving affirmation from the signer that the content of the document is true to the best of the signer's knowledge.
2. Certifying copies. Notaries in some jurisdictions may certify that copies of non-recordable documents are true and accurate reproductions of the originals.
3. Taking acknowledgments. This requires the notary to confirm that the person signing the document did so voluntarily and for the purposes stated in the document.

The notary’s role varies by jurisdiction. In some states, notaries may have additional responsibilities or different limitations.

While notaries perform valuable services to society, they must be cautious not to overstep their boundaries and engage in activities that constitute the unauthorized practice of law (UPL). Notaries engage in UPL, for example, when they:

1. Provide legal advice. Notaries must refrain from giving legal advice, even if it seems minor or straightforward. Explaining the implications of signing a document or advising which type of notarial certificate to use can be considered legal advice.
2. Draft legal documents. Notaries should not draft legal documents for clients, as this task is reserved for licensed attorneys. This includes creating wills, contracts, powers of attorney, and other legal instruments.
3. Interpret legal documents. Notaries should refrain from interpreting or explaining the contents of legal documents. Clients should be referred to licensed attorneys for any questions about the meaning or implications of their documents.

Examples of situations in which notaries engaged in UPL:

1. A notary was fined and lost her commission for drafting and notarizing real estate documents and advising her client how to complete the transaction. Although the client trusted her, the notary lacked the legal knowledge required, leading to significant legal complications for the client.
2. A notary was charged with UPL after drafting and notarizing a will for a neighbor. The will was later contested in court, and the notary's lack of legal expertise was a key factor in the will being invalidated. This case underscores the importance of understanding the boundaries of notarial authority.

Implications of engaging in UPL

When notaries engage in UPL, they expose themselves to significant legal and professional risks that may include:

1. Legal penalties. Engaging in UPL can result in fines, criminal charges, and other legal penalties. These penalties vary by jurisdiction but can be harsh.
2. Civil liability. Notaries who engage in UPL may face civil lawsuits from clients and other parties who suffer harm due to the notary’s unauthorized actions.
3. Professional discipline. Notaries found guilty of UPL can face disciplinary action, including suspension or revocation of their notary commissions. This can have long-term implications for their professional careers.
4. Damage to the notary’s reputation. The consequences of being charged with UPL can be severe. Such charges can damage a notary’s reputation and result in a significant loss of business. Clients rely on notaries for their expertise and trustworthiness, and any engagement with UPL can tarnish a notary’s credibility. Charges of UPL will not only impact a notary’s current client base but also deter potential clients from seeking the notary’s services.

Here are some best practices for notaries to steer clear of UPL:

1. Stick to notarial acts. Notaries should focus solely on their authorized duties, such as taking acknowledgments and administering oaths and affirmations. They should not engage in activities that involve preparing or interpreting legal documents.
2. Communicate clearly. Notaries should engage in clear communication with clients when describing the services they can provide. This helps manage client expectations and prevents misunderstandings.
3. Refer clients to attorneys when necessary. When clients seek legal advice or services beyond the scope of a notary’s duties, notaries should refer them to licensed attorneys. Building a network of dependable attorneys for referrals can be beneficial.
4. Adhere to guidelines. Notaries should adhere to notary guidelines set forth by their jurisdictions. This includes staying updated on any changes in notarial laws and regulations.
5. Keep accurate records. Maintaining accurate records of notarial acts in a notary journal can help protect notaries from allegations of UPL. Detailed records demonstrate compliance with notarial duties and provide evidence in case of disputes.
6. Seek guidance when uncertain. If a notary is unsure whether a particular act constitutes the practice of law, they should seek guidance from a legal professional or the appropriate regulatory authority.

Notaries play an essential role in the day-to-day functioning of our legal and commercial systems, but they must be vigilant to avoid crossing into the territory of unauthorized practice of law. By understanding their limitations, adhering to legal guidelines, and referring clients to qualified attorneys, when necessary, notaries can perform their duties effectively while safeguarding the public and themselves.