6.1 Unauthorized Practice of Law (UPL)
Key Takeaways
- The unauthorized practice of law (UPL) is the most common and serious ethical violation for notaries
- UPL includes drafting documents, giving legal advice, choosing notarial acts, and explaining document effects
- Notaries who are not licensed attorneys must never perform any function reserved for lawyers
- The "notario publico" fraud exploits immigrants who confuse American notaries with foreign legal professionals
- UPL can result in commission revocation, fines, and criminal charges
Unauthorized Practice of Law (UPL)
The unauthorized practice of law (UPL) is the most serious ethical violation a notary can commit. It occurs when a notary — who is not also a licensed attorney — performs functions that are reserved exclusively for lawyers. UPL is illegal, can harm the public, and can destroy a notary's career.
What Constitutes UPL?
UPL includes any activity that requires legal knowledge, judgment, or training. For notaries, the most common UPL violations include:
Drafting Legal Documents
- Creating wills, trusts, powers of attorney, contracts, or deeds from scratch
- Filling in blanks on legal forms (unless the notary is acting as a separate document preparer and the state allows it)
- Modifying existing legal documents
Giving Legal Advice
- Explaining the legal meaning or effect of a document
- Recommending one document over another
- Advising a signer about their legal rights or obligations
- Interpreting legal terminology for a signer
Choosing the Notarial Act
- Selecting whether an acknowledgment, jurat, or other act is needed
- Recommending which type of notarization a signer should use
- Determining which document a customer needs for their situation
Representing Parties
- Appearing on behalf of someone in a legal proceeding
- Negotiating on behalf of a party
- Filing documents with a court or agency on behalf of a client
The "Notario Publico" Problem
In many Latin American countries, a "notario publico" is a highly trained legal professional — similar to an attorney — who can:
- Draft and certify legal documents
- Provide legal advice
- Mediate disputes
- Archive official records
In the United States, a notary public has NONE of these powers (unless they are also a licensed attorney). Some unscrupulous individuals exploit this confusion by:
- Advertising as "notario publico" to attract Spanish-speaking immigrants
- Charging high fees for services they are not authorized to perform
- Drafting immigration documents without legal authority
- Giving immigration advice that is often wrong and harmful
This "notario fraud" has caused devastating consequences for immigrants who rely on these unqualified individuals for legal services, often resulting in:
- Deportation due to improperly filed documents
- Loss of money paid for unauthorized services
- Missed deadlines for legal filings
- Denial of immigration benefits
State Responses to Notario Fraud
Many states have enacted laws specifically targeting notario fraud:
- Prohibiting the use of "notario" or "notario publico" in advertising
- Requiring notaries to include disclaimers in non-English advertising stating they are NOT attorneys
- Imposing criminal penalties for notarios who practice law without a license
- Creating civil causes of action for victims of notario fraud
What Notaries CAN Do
While the line between permitted and prohibited activities can seem narrow, notaries CAN:
| Permitted | Why It's OK |
|---|---|
| Explain the notarization process | This is your job — describe what will happen during the notarization |
| Identify the type of certificate on a document | You can READ the certificate wording already on the document |
| Suggest the signer consult an attorney | Referring to appropriate professionals is always proper |
| Describe your fees | You're providing information about your own services |
| Decline to notarize | You always have the right to refuse a notarization |
Penalties for UPL
| Consequence | Description |
|---|---|
| Commission revocation | Loss of your notary commission |
| Criminal charges | UPL is a misdemeanor or felony in most states |
| Civil liability | The notary may be sued for damages caused by UPL |
| Fines | Monetary penalties imposed by the state |
| Professional reputation | Permanent damage to your career |
| Bond claims | The surety bond may pay claims from victims of UPL |
On the Exam
UPL is one of the most heavily tested topics:
- Never draft, choose, or explain documents — refer to an attorney
- Never choose the notarial act for the signer
- "Notario publico" advertising is prohibited in many states
- Penalties include revocation, criminal charges, civil liability
- When asked a legal question, always refer to an attorney
A signer asks the notary to explain what a "power of attorney" means. The notary should:
What is "notario fraud"?
Which of the following activities is a notary public PERMITTED to do?