6.5 Criminal Liability
Key Takeaways
- Serious notary misconduct can be prosecuted as a crime, not just disciplined administratively
- Knowingly notarizing a false or forged document can support fraud or forgery charges
- Administering or making a false statement under oath can constitute perjury
- A criminal conviction tied to notarial duties can trigger commission revocation
- The best protection against criminal exposure is to refuse suspicious acts and keep an accurate journal
When Misconduct Becomes a Crime
Most notary problems are handled administratively (fines, suspension, revocation). But when a notary knowingly lends the office to deceit, the conduct can be prosecuted under the Hawaii Penal Code. The dividing line is intent: a careless error is administrative; a knowing or willful act of deceit can be criminal. Exam questions key on words like "knowingly," "intentionally," or "you are aware the ID is fake."
Major Categories of Criminal Exposure
| Crime | Notary Conduct That Triggers It |
|---|---|
| Fraud / theft by deception | Knowingly notarizing a document used to deceive or steal |
| Forgery | Signing another's name, fabricating an acknowledgment, or altering a notarized instrument |
| Perjury / false swearing | Making, or knowingly accepting, a false sworn statement |
| Unauthorized practice of law | Practicing law without a license; charging for legal services |
| Identity-related offenses | Helping a signer assume another person's identity |
Scenario Walk-Throughs
Scenario 1 - Fake identity. A man presents an ID the notary recognizes as counterfeit but notarizes anyway because the customer is in a hurry. By proceeding with knowledge of the fraud, the notary can be charged as a participant, not merely disciplined.
Scenario 2 - Backdating a deed. A signer offers an extra $100 to date a deed "last Tuesday" so it appears recorded before a lien. Backdating to deceive a third party is document fraud; the small bribe does not legalize it.
Scenario 3 - The notario trap. A notary advertises as a "notario publico" and prepares immigration forms for a fee. This is both unauthorized practice of law and potential fraud against immigrants who believe they hired an attorney, and it can draw federal as well as state attention.
Administrative Versus Criminal Consequences
| Track | Typical Result |
|---|---|
| Administrative only | Fine, suspension, or revocation by the Attorney General |
| Criminal | Prosecution, fines, possible imprisonment, criminal record |
| Both | The same act can produce administrative AND criminal penalties |
A conviction for a crime connected to notarial duties also supports revocation of the commission - the administrative and criminal systems reinforce each other.
Protecting Yourself From Criminal Liability
| Practice | Protection It Provides |
|---|---|
| Identify every signer with acceptable ID | Avoids knowingly aiding impersonation |
| Refuse any act you suspect is fraudulent | Removes you from the criminal scheme |
| Never backdate, postdate, or notarize blank forms | Prevents document-fraud charges |
| Decline to draft documents or give legal advice | Avoids UPL exposure |
| Keep a complete, contemporaneous journal | Documents your good faith if questioned |
If You Suspect a Crime
- Do not perform the notarization.
- Document your observations factually in the journal.
- Consider reporting to law enforcement.
- Consult an attorney if you are unsure of your obligations.
Common trap: "Notarize now and report later" is always wrong. Once you notarize a document you believe is fraudulent, you have arguably joined the scheme. The correct move is to refuse first, then document and, if appropriate, report. Good faith is preserved by declining, not by completing the act and hoping authorities sort it out.
Knowledge Is the Hinge
Return to the intent element, because nearly every criminal-liability question on the Hawaii exam turns on it. Criminal statutes use words like "knowingly," "intentionally," or "with intent to defraud." A notary who is genuinely deceived by a high-quality fake ID, identifies the signer in good faith, and follows procedure has not committed a crime even if fraud later surfaces - the knowing element is absent. The same notary becomes criminally exposed the moment they recognize the deception and proceed anyway. This is why honest procedure and a clean journal are protective: they document that the notary acted without guilty knowledge.
The Notario Trap in Depth
The "notario" problem deserves special attention because it blends three wrongs at once. First, it is unauthorized practice of law if the notary prepares legal or immigration documents. Second, it is fraud if the notary implies attorney-level expertise to people who, drawing on the meaning of notario in their home countries, reasonably believe they have retained a lawyer. Third, false immigration filings can draw federal liability. A Hawaii notary must never advertise as a notario, never prepare immigration forms for a fee, and should explicitly clarify that a notary public is not an attorney and cannot give legal advice.
This single rule prevents a cascade of administrative, civil, and criminal exposure.
Reporting Without Becoming a Participant
If a notary forms a reasonable belief that a transaction is criminal, the protective sequence is: refuse, document, then consider reporting. Refusing removes the notary from the scheme. Documenting - factual observations in the journal - preserves evidence and demonstrates good faith. Reporting to law enforcement may be appropriate, and consulting a private attorney clarifies the notary's obligations and protections. What a notary must never do is reverse the order: completing the act first and reporting later means the notary has already lent the office to the fraud.
Exam takeaway: criminal liability requires knowing, willful misconduct; the cure for every suspicious scenario is to refuse before acting; and a clean, contemporaneous journal is the notary's best evidence of innocent good faith if a transaction later proves fraudulent.
A signer presents identification the notary clearly recognizes as counterfeit but asks the notary to proceed quickly. If the notary notarizes anyway, what is the most accurate risk?
What single factor most clearly separates a criminal notarial offense from an honest administrative mistake?