Is it ethical to supply the client with the forms you will be notarizing?
Reply by John/CT on 12/8/11 11:50am Msg #406041
RE: Providing forms. I wouldn't ===> UPL? n/m
Reply by desktopfull on 12/8/11 11:52am Msg #406043
NO n/m
Reply by desktopfull on 12/8/11 11:54am Msg #406045
Got cut off. John is right about UPL. n/m
Reply by HisHughness on 12/8/11 11:54am Msg #406044
Even as a retired attorney, I would not do that. It makes sense to me that if providing the form of the notarial certification is considered the unauthorized practice of law, then certainly so would providing the underlying document. The most I do is direct a signer to web sites.
Reply by Linda_H/FL on 12/8/11 12:02pm Msg #406049
Okay...I have to ask...
did you mean provide the actual forms they need? Or did you mean letting them see the docs they'll be signing and that you'll be notarizing in advance?
Reply by FlaNotary2 on 12/8/11 12:17pm Msg #406054
In Florida, yes.
Governor's Reference Manual for Notaries (2001 ed.), p. 58:
Now, exactly what services can you provide without engaging in the unlicensed practice of law? Generally speaking, ***a nonlawyer may only sell legal forms and then type those forms which have been completed in writing by the customer.*** As an example, you could sell a will form to an individual. The customer would have to fill in the blanks for the factual information customizing the will to his or her own needs. You can have no oral communication with the customer regarding how the form should be completed, and you may not correct mistakes. You may simply type the information written down by the customer.
The Supreme Court of Florida has approved several forms for use by individuals or by attorneys. These forms pertain to matters of family law, landlord-tenant law, and certain residential leases, and allow the notary to provide additional, but limited, assistance. When using one of the forms approved by the Supreme Court, you may engage in limited oral communication with the customer to elicit the factual information that goes in the blanks on the form. For example, if using the form for a simplified dissolution of marriage, you may ask for the name of the husband and wife, what county they live in, when and where they got married, and whether the wife wants her former name back, and then complete the form accordingly. But, under no circumstances may you give legal advice about possible remedies or courses of action.
Reply by FlaNotary2 on 12/8/11 12:18pm Msg #406055
Didn't finish
So, a notary in Florida - and I can't speak for other states - may validly keep on hand a number of blank legal forms and sell forms to customers. We just can't advise the customer how to fill them out.
Reply by desktopfull on 12/9/11 12:18am Msg #406119
Re: Didn't finish
"We just can't advise the customer how to fill them out."
And in message 406054 above you state the opposite.
Reply by desktopfull on 12/9/11 12:10am Msg #406117
Re: In Florida, yes.
"The Supreme Court of Florida has approved several forms for use by individuals or by attorneys. These forms pertain to matters of family law, landlord-tenant law, and certain residential leases, and allow the notary to provide additional, but limited, assistance. "
Robert, please provide the statue that permits a notary to give assistance in filling out pre-printed legal forms.
"When using one of the forms approved by the Supreme Court, you may engage in limited oral communication with the customer to elicit the factual information that goes in the blanks on the form. "
Also provide the statute that permits a notary to fill in the blanks on a legal document.
Reply by desktopfull on 12/9/11 8:47am Msg #406134
Re: Page 58 of the manual DTF
Absolutely incredible that in one paragraph the state supremes rule you can assist in filling out forms and in the paragraph immediately before that they rule that you can't.
I believe I'll leave the legal forms, filling them out and whatever else to those with their JD's.
Reply by Linda_H/FL on 12/9/11 9:23am Msg #406138
I agree with you... n/m
Reply by FlaNotary2 on 12/9/11 9:25am Msg #406139
You are reading it wrong
When it says "assist" in filling out forms - they don't mean "help the person decide what answers to put", they are meaning the actual filling out, which is explained in the next paragraph as transcribing exactly what the customer wants into the form.
Please tell me how transcribing is now considered UPL? Because there are a whole lot of court reporters in trouble if it is...
Reply by Les_CO on 12/8/11 2:55pm Msg #406074
I carry a number of different blank forms. From a ‘bill of sale’, to an ‘affidavit of permission’, to a durable POA, to QCD’s. All CO approved forms available at almost any stationary store or online. I GIVE them to my clients at no charge if they want or need them. I let them fill them out. Please tell me how this is UPL?
Reply by HisHughness on 12/8/11 3:24pm Msg #406078
***Please tell me how this is UPL?***
A client has a specific issue that he/she wishes a form to resolve. When you provide the form, I think you are implicitly claiming the form will resolve that issue. This is true whether the signer fills in the details, or you do, or the signer does it with your assistance. There are, for example, several matters that can or cannot be covered with a POA.
I believe it unwise to expose yourself to a complaint, however invalid or ill-motivated, that you had a role in the signer's choice of form. If you don't provide the form, that issue never validly arises.
Reply by Les_CO on 12/8/11 4:59pm Msg #406084
Thanks...I do see the contingent liability...I would agree that by never providing any forms or never notarizing anything ever presented to me at a nursing home or hospital I would be less likely to be involved in any litigation that could arise down the road. However I believe that by having certain forms available to my clients should they need or ask for them to be part of my “Mobile Notary” service. I am careful not to suggest that the forms I have will accomplish what they need to get done, they are what they are, they are free, and it’s up to the client to decide if they want them or not. I can’t see where telling a client you can go buy a form, or hire a lawyer to draft one, or use this one if you like, your choice. Is in any way UPL…but I have been wrong before.
Reply by pat/WA on 12/8/11 5:16pm Msg #406086
I know of a notary that is a paralegal. She not only provides the documents to the signer but she sells them to them and then notarizes their signatures on the documents. Isn't that a real Gray area?
Reply by Buddy Young on 12/8/11 5:36pm Msg #406089
Paralegals can not give legal advice either.
Reply by pat/WA on 12/8/11 6:03pm Msg #406093
pretty risky
Pretty risky - not only give the signer the documents but sell them to them and then turn around and notarize them!
Reply by MW/VA on 12/8/11 7:36pm Msg #406099
IMO if she is providing & receiving money it is definitely UPL.
Reply by HisHughness on 12/8/11 6:19pm Msg #406096
In any lawsuit, as in any marriage, you NEVER want to have to explain your conduct. You want to be able to say "I did it" or "I did not do it," and not have to say anything else.
Reply by Claudine Osborne on 12/8/11 9:18pm Msg #406102
Giving or selling forms to clients is risky and I believe UPL..I would not put myself into a situation where a client could say "that notary told me to use this form" if something goes wrong..You are asking for trouble!
Reply by FlaNotary2 on 12/8/11 9:47pm Msg #406106
Thank God Florida doesn't have such a limited and paranoid
definition of UPL.
Reply by HisHughness on 12/8/11 9:54pm Msg #406107
Thank God that most states feel protective enough...
...of their citizens that they do not allow NNA-trained notaries public with possibly a 10th-grade education to choose what may be critical legal forms affecting people's lives.
Reply by Claudine Osborne on 12/8/11 10:03pm Msg #406108
Re: Thank God that most states feel protective enough...
Well said Hugh!
Reply by FlaNotary2 on 12/8/11 10:04pm Msg #406109
We don't choose the form for the customer.
If the customer says "I want to purchase a Quit Claim Deed form", I will sell it to them... Just because I sell them the form does not mean I am giving legal advice. Just like selling a brochure on birth control is not giving medical advice.
This is covered as part of our state-mandated (NOT NNA-based) training, and we are also expected to be able to draft affidavits.
Reply by HisHughness on 12/8/11 10:29pm Msg #406110
Re: We don't choose the form for the customer.
***Just because I sell them the form does not mean I am giving legal advice. Just like selling a brochure on birth control is not giving medical advice.***
That's a ridiculous comparison, Robert. When a person says "I need a quit claim deed," and you sell or provide that quit claim deed and they then use that deed to accomplish a legal purpose, it is like a person taking a medical brochure and using it as the basis for prescribing themselves birth control pills. You want to give someone a quit claim deed solely for information purposes, that's fine. When you provide a quit claim deed to effect a legal transaction, I think that crosses the line.
Reply by FlaNotary2 on 12/9/11 8:18am Msg #406131
If someone says "I want to buy a quit claim deed form"
and I sell it to them, how is that any difference than a Kinko's office selling a blank quit claim deed form to a customer? Is Kinko's now committing UPL?
Reply by Linda_H/FL on 12/9/11 10:01am Msg #406142
People are coming to you in reliance of your position
They go to Kinkos they know they get what they pay for - they pick it up, pay and go.
People come to you, tell you they need a Quit Claim Deed and you hand them one, they rely on the fact that you know what you're doing and that you're providing them with what they need - and you're not authorized to determine that...THAT is UPL...
I'll let Kinkos be at the other end of the lawsuit...not me thank you kindly. Let them get the forms on their own - it's their decision to make, not mine.
Reply by Linda_H/FL on 12/9/11 5:14am Msg #406122
Re: We don't choose the form for the customer.
"and we are also expected to be able to draft affidavits"
Seriously?? Where does it say that? We are not "expected" to draft or provide anything other than our signature and our stamp.
Also, if someone asks you for a Quit Claim Deed, would you make sure you provide the correct one? ...yes, there are different title vestings.....I'll also add here that I've been told that you can't "convey" title in FL with a Quit Claim Deed - it must be a Warranty Deed or Special Warranty Deed. Now, I don't know about you, but I don't want to be responsible for THOSE decisions....yes, they reek of UPL and my pay scale's not high enough to assume that liability.
I agree that although there are certain forms the Supreme Court has approved, *I* don't want to be the one to give it to them so later they say "gee, the notary gave it to me, I thought it was okay". Let them go online and get the forms themselves - the state-approved forms are available on the Court websites.
JMO
Reply by FlaNotary2 on 12/9/11 8:27am Msg #406132
§ 92.50(1), Florida Statutes:
[...] ***affidavits*** [...] may be taken or administered by or before any [...] notary public within this state. The jurat, or certificate of proof or acknowledgment, shall be authenticated by the signature and official seal of such officer or person taking or administering the same;
Key words: "Affidavits may be TAKEN by any notary public". Definition: "TAKE" -- "to get in writing". http://dictionary.findlaw.com/definition/take.html
Reply by Linda_H/FL on 12/9/11 9:23am Msg #406137
Disagree with your interpretation of this..does not mean
we are authorized to draft affidavits.
Reply by Moneyman/TX on 12/8/11 11:37pm Msg #406115
Re: Thank God that most states feel protective enough...
Reply by desktopfull on 12/9/11 12:16am Msg #406118
Re: Thank God that most states feel protective enough...
I agree with you Hugh, I would recommend they visit an attorney where any question that they may have can be answered appropriately.
Reply by FlaNotary2 on 12/9/11 9:27am Msg #406140
Done with this topic
I am going to keep on doing what I do, consistent with the Florida notary handbook and the ruling of the Supreme Court.
Anyone else who wants to disagree with these authorities can do what they want.
MHO.
Reply by jnew on 12/9/11 11:09am Msg #406148
Re: Done with this topic
I guess I would put this down as to how you want to conduct your business. If you are making a decision on behalf of the signer, which the signer would not ordinarily make, you may be demonstrating your own expertise to the signer. I think that the way courts have been ruling on lending issues, I would not want to do or say anything which would require me to dress up and raise my right hand.
Reply by HisHughness on 12/9/11 11:27am Msg #406149
Stick a fork in Robert. He's done.
Robert…
You can be an opinionated chap on occasion, and that’s coming from someone who is intimately acquainted with that trait.
Sometimes, whether one has crossed the line into UPL is dependent upon the expectations of the parties. When a customer walks into Office Depot or Kinkos, and asks the clerk whether the store sells deeds, there is no expectation that the clerk will be versed in what sort of deed is required in a particular transaction. Conversely, when a signer asks <you> if you have deeds, there is a likelihood that he has the expectation that you know what you are doing.
An analogous situation obtains in Texas, which has a large population of Mexican nationals. In Mexico, a notario publico can perform some functions traditionally performed only by attorneys in the U.S. When a Mexican goes to a notary public, there is a substantial possibility he may expect the notary to do what a notario publico would do in Mexico. Consequently, Texas law places restrictions on the use of the term “notario publico,” because of those expectations.
What you do may not be UPL in Florida, and if I had the cover of law, I might do as you do. I tend to doubt it, though. You have exposed yourself, if not to unnecessary liability, then certainly to the possibility of complaints. Being proven right seldom matters much if you are also broke from paying attorney fees.
