Showing posts with label Legal. Show all posts
Showing posts with label Legal. Show all posts

Tuesday, February 25, 2020

Notaries and the Unauthorized Practice of Law

Unless a notary is also a licensed attorney, he or she may not give legal advice or accept fees for legal advice. In civil-law jurisdictions, and in most common-law jurisdictions outside the United States, notaries are essentially lawyers who have extensive training in the drafting of documents. However, American common-law notaries do not have any legal authority unless they happen to also be a licensed attorney. As a result, it would be considered the unauthorized practice of law for a non-attorney notary to give legal advice.

Many notaries often worry about inadvertently engaging in the unauthorized practice of law. This confusion is understandable because although notaries are not attorneys, non-attorneys can provide some legal services. Generally, a non-lawyer can sell blank legal forms, act as a transcriber (by typing information completed in writing by a client), sell general printed legal information, and perform their notary services for the fees established by law. A non-attorney cannot, however, advise a client how to complete a legal form or make changes to a legal form completed by a client.

Of course, notaries employed in the legal field, such as paralegals and legal secretaries, often draft or edit legal documents within the scope of their employment. In this case, these actions would not constitute the unauthorized practice of law because the person is not acting as a notary when performing these tasks but is acting under the supervision of a licensed attorney.

Always consult your state's laws regarding what a non-lawyer can do. Be sure to exercise caution when performing any act which might be construed as the unauthorized practice of law.

By Robert T. Koehler, a Contributing Writer with the American Association of Notaries, Inc.

Sunday, November 10, 2019

It's legal if you notarize it, right?

I honestly cannot count the number of times I've been asked the question, Once you notarize my document, will it be legal? If I were to guess, I'd say I'm asked at least once a week (during a slow week). It seems people feel that a notary public can do the same thing an attorney does, but at a cheaper price.

There is a general misconception that a notary public stamp on any document automatically makes the document legally binding, and the document is able to hold up in court. I am not sure where or when this myth started, but as notaries, at least in the state of Texas, we need to make sure we are not doing anything to perpetuate that myth. I warmly refer to this myth as the Legal by Notarization myth or LBN.

I first encountered the LBN myth several years ago. I received a phone call from an individual who was in the process of selling a vehicle, and he wanted the bill of sale notarized. When I arrived at the meeting location we exchanged pleasantries, and I asked to see the bill of sale. I was handed a handwritten document explaining the terms of the sale of the vehicle. The document did not include any notarial wording, so I explained to the gentleman who had hired me (Mr. Client) that I would need to attach a certificate to the document, either an Acknowledgement or a Jurat. I explained the purpose of the documents and asked which he would prefer to use. Of course, Mr. Client's next question was which is more legal? Mr. Client then went on to explain the purpose of getting the document notarized was to make sure the document was legal and would hold up in court.

To avoid unauthorized practice of law (UPL) situation, I had to explain to Mr. Client that if he wanted a legally binding document that would hold up in court, then he would need to contact an attorney. I also explained the notary public's role (in the state of Texas) was to serve as a disinterested party, properly verify the identity of the document signers, administer an oath, or acknowledge that the document was signed willingly by the person(s) who were required to physically appear before the notary public, and record the signing of the document in the notary public's journal. After I explained all of this, Mr. Client finally chose a certificate, and we were able to proceed with the signing and notarization of the Bill of Sale.

I'm pretty sure that even though I was not able to guarantee Mr. Client that his bill of sale would hold up in court, he still felt more comfortable about the sale after having the document notarized. I'd like to think that this was attributed to the fact he was able to make an informed decision about the notarization process.


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-- Phyllis Traylor, U.S. Army Retired is a Contributing Writer with the American Association of Notaries