Posted by Robert Koehler on 4/22/09 10:59am
Msg #285904
What I hate about UPL
All states have regulations about notaries and UPL. And I'm sure that the Bars in all of those states are the main forces behind this obsession with no one being allowed to "practice law" other than attorneys. In Florida, the handbook says we can't even advise somebody what kind of notarial act to use on a document. Before we add any notarial certificate, we have to ask the customer whether it is an oath or acknowledgment. 90% of the time they won't know. The law says that we aren't allowed to know either, even if we really do. The law says you should have an attorney look at it.
So the Bars say "oh well this is great... then more people will come to attorney's for advice". No. Instead, the notary tells them what to do, except not in their capacity as a notary public. Since nearly all notaries are also skilled in a certain profession (i.e. most of you are signing agents, and therefore have a great deal of knowledge about loans/mortgages/real estate transcations, and many notaries like myself are in the legal profession and so know a lot about wills, etc.), so we wind up explaining the document anyway, but not in our capacity as notary public.
So what makes me mad about UPL is that it's just in place to keep us from stealing "attorney's work". But instead, it just makes everything more inconvenient. Because we as notaries should all have a vast understanding of notary law, and we should all have a vast understanding as to the difference between acknowledgments and oaths, we should be able to explain this to our customers without them forking over big bucks for an attorney. We know that if a document is labeled "AFFIDAVIT" that we need to add a jurat, but the law would say that we can only do what the customer instructs us to do. If the customer stupidly says to use an acknowledgment, the law says we have to do that, even though we in our capacities as notaries public no that this is not proper procedure.
Sorry for my ranting!
| Reply by Stamper_WI on 4/22/09 11:23am
Msg #285906
Yesterday I had a young man show up at my door looking for a notary. He told me he was from Palestine and needed something notarized because he was being called up for service in the army there. In his hand he had a letter from the international student services confirming that he was a student at the university. I told him I could not notarize that as the signer was not in front of me. After some back and forth I figured out that what he was looking for an affidavit for him to swear to that he was a student. I told him to go back to the university because I could not draw the document he needed and they had more resources to draw from to help him. I told him to take whatever his governement request was with him when he went back and he shook his head and mumbled something.
Well, I made a courtesy call to the university and they told me there were no Palestinian students at that time. Hadn't been for awhile. I talked to the lady whose signature was on the letter and she hadn't written it. So glad for UPL at this point. This guy had the official letterhead paper and a wet signature in blue ink on the letter. All very real looking.
He tracked me down on the internet and had my address and phone number written down on a piece of paper. I live in a different town than the university.
| Reply by davidK/CA on 4/22/09 11:31am
Msg #285909
Great story. The tragedy is that he probably easily found another Notary to do exactly what he needed.
| Reply by Stamper_WI on 4/22/09 11:37am
Msg #285910
He had to write an affidavit first. Wish that I knew it was a fake letter at the time, at the very least I would have gotten the license plate of the silver 2008 mustang his freind drove him up in.
My guess is that he came on a student visa and didn't go to school. So he's here illegally. Since he didn't seem to have written instructions for the documentation he needed, it was probably verbal, over the phone from who knows who.
| Reply by davidK/CA on 4/22/09 11:43am
Msg #285912
Not to worry
Our Attorney General says illegal immigration is a civil matter not a crime.
| Reply by Stamper_WI on 4/22/09 12:20pm
Msg #285918
Re: Not to worry
As my lawyer freind just pointed out Palestine is not a country.
| Reply by Stamper_WI on 4/22/09 2:11pm
Msg #285931
FBI just called
I repeated my story
| Reply by BrendaTx on 4/22/09 4:07pm
Msg #285942
Re: FBI just called - Wow! Keep us posted! n/m
| Reply by Becca_FL on 4/22/09 12:11pm
Msg #285916
Florida Notaries Public are also prohibited
from taking an acknowledgment in lieu of an oath if an oath is required. ss 117.03.
Use the document itself as a clue to guide you and the signer to the proper certificate. Does the document say I hereby acknowledge or before me...who after being duly sworn. Usually, the first sentence on a document will give you a clue as to what certificate is required. This does not work in every situation and sometimes you will see a doc that has wording for both an ack and a jurat. Most people are smart enough to realize that if the doc states "being duly sworn" the proper cert would be a jurat...or at least that's is my experience.
| Reply by BrendaTx on 4/22/09 4:00pm
Msg #285941
UPL laws are to make sure no one steals the lawyer’s work?
Nope...have to disagree...it's to make sure no one harms the public by pretending to be educated and licensed to practice law.
UPL laws could also be thought of as a means to keep notaries out of trouble and from doing things which they have no business doing, while protecting the public from people (notaries) who think they know how to handle things which are not their duty nor within their expertise or training.
Notaries don’t need to know anything about the documents people bring them to sign. Just the notary certificate.
They need to know their notary law/rules and leave the rest alone until they go to law school and pass the bar.
That’s what UPL laws are for…keeping overly helpful notaries on a shorter leash.
| Reply by Philip Johnson on 4/22/09 4:07pm
Msg #285943
I don't like their brown uniforms. n/m
| Reply by BrendaTx on 4/22/09 8:52pm
Msg #285995
Yeah, Philip, and dogs don't like those trucks. n/m
| Reply by SharonMN on 4/22/09 4:17pm
Msg #285946
Agree with Brenda. Particularly because in many countries, notaries ARE like lawyers or secretaries of state - someone coming from another country may well expect a notary to be capable of providing additional services outside the scope of a US notary.
As far as UPL, I don't think explaining "a jurat is where you swear to a certain statement, and an acknowledgment means you just say you signed the document willlingly - which do you want?" is UPL. I'm even comfortable in many cases saying that if you're not sure, go with the jurat, which kind of covers both. You're getting closer to UPL when you say, "well, the IRS generally requires you to testify to this information under oath, so I would recommend a jurat." The difference, IMO, is whether you're just explaining the difference between the two acts or whether you are opining on which will help them accomplish what they need to do (be it transfer property, get a green card, etc.) - that's a job for a lawyer or other specialist.
| Reply by Stamper_WI on 4/22/09 5:13pm
Msg #285963
I would rather no Practice Law
It's easier not to.
| Reply by Linda_H/FL on 4/22/09 8:49pm
Msg #285994
Re: What I hate about UPL....Sharon
You had me - up til this:
"I'm even comfortable in many cases saying that if you're not sure, go with the jurat, which kind of covers both"
I disagree here...and would never tell a signer that.....#1 the jurat does NOT cover both, at least not in Florida, and requires and entirely different procedure....and #2 the reliance on your expertise, and just the fact that you steered the signer to the proper form, may (and I stress MAY) be construed as UPL....get to court, did you choose the certificate? Yes; How?that's what she told me to do....
Explain the difference in the two, yes - but that's it..they're on their own beyond that.
MHO
| Reply by JanetK_CA on 4/22/09 10:16pm
Msg #286007
"The difference, IMO, is whether you're just explaining the difference between the two acts or whether you are opining on which will help them accomplish what they need to do ."
I agree with Brenda, too, and the statement above pretty well sums it up, imo. I normally give them a couple of sentences about what the differences are, then pull out a blank certificate of each type and let them pick which one they want. Then I repeat the differences while they mull it over and they make a decision. I find it's easier for most people to absorb info if they have a visual. Seems to help, anyway.
| Reply by PAW on 4/22/09 7:46pm
Msg #285989
>>>> So what makes me mad about UPL is that it's just in place to keep us from stealing "attorney's work". But instead, it just makes everything more inconvenient. Because we as notaries should all have a vast understanding of notary law, and we should all have a vast understanding as to the difference between acknowledgments and oaths, we should be able to explain this to our customers without them forking over big bucks for an attorney. We know that if a document is labeled "AFFIDAVIT" that we need to add a jurat, but the law would say that we can only do what the customer instructs us to do. If the customer stupidly says to use an acknowledgment, the law says we have to do that, even though we in our capacities as notaries public no that this is not proper procedure. <<<<
Apparently (in my opinion) you don't fully understand your role as a notary in FL nor what UPL is in Florida. Unlike many states, UPL in Florida is defined as the "Unlicensed Practice of Law." Having a "vast understanding" of notary law is what you are charged with. Explaining the different things that you, as a notary public, can do is what you are obligated to do. If a document does not contain a valid or identifying notarial certificate, it is your responsibility to explain what options are available to the signer. You cannot direct the signer to choose one or the other except in the case where it is clear that an oath is required, then a jurat is required as specifically addressed by Florida notary statutes.
UPL is not specific to notaries either. Anyone can be guilty of UPL by "the giving of advice and counsel and the performance of services in legal matters for compensation," (see note below) even tax practitioners, paralegals, accountants, etc. Explaining YOUR roles and responsibilities without advising the signer what to do, but offering only what can be done, is not UPL by any stretch of the imagination. Enforcing UPL is the bar's way of protecting the public by untrained people who think they know the law. That's why lawyers are licensed, just like plumbers and electricians. You wouldn't want a sous chef working on your leaking faucet, would you? Obviously, you can fix your own faucet, just like you can create your own will, POA, etc.
BTW, just because a document is titled or labeled "Affidavit", doesn't mean that a jurat is required. A jurat is required only if the document states that the signer must be placed under oath and swears (or affirms) to the content of the document.
NOTE: Taken from the Florida Bar Board Information Paper concerning UPL. It can be found at: http://tinyurl.com/yo7bka
Note also that the preceding applies to Florida. I don't know of any other state that actually has statutes stating that a "notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required." (FS 117.03)
| Reply by MW/VA on 4/22/09 9:09pm
Msg #285998
As Paul has pointed out, UPL "the giving of advice and counsel and the performance of services in legal matters for COMPENSATION". The key word is "compensation". So if I, like Lucy in the Peanuts cartoon, set up a booth giving advice on divorce matters & charge a fee, I am guilty of UPL. That is very different from our knowing & operating under the notary laws of our particular state.
| Reply by CA/Notary on 4/23/09 12:11am
Msg #286015
Make it easy on yourself.
Offer them the Jurat or the Ack or both. No upl there. You are on your way to the next doc.
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