Unauthorized Practice of Law

Transcription

1 Unauthorized Practice of Law Massachusetts Laws, Regulations and Procedures for How To File A Complaint Against a Notario Publico COMBATING NOTARIO FRAUD Co-Sponsored by: The American Bar Association Commission on Immigration The Political Asylum Immigration Representation Project & Boston Bar Association Immigration Law Committee Materials created by Erin J. Finsten, Esq., ABA Commission on Immigration

2 Overview Notary v. Notario Publico Consequences to Victims Individuals Authorized to Undertake Representation in Immigration Court Limits On What a Notary May Do State Penalties for Unlawful Practice of Immigration Law How to Lodge a Complaint

3 Notary vs. Notario Publico Notary A Notary may: Take acknowledgements; Administer oaths; Take depositions; Certify copies of documents not recordable in the public records; Show that a disinterested party duly notifies the validity of a document; Show that a signer is indeed who s/he says s/he is and that his/her reasons for signing are genuine. May charge a fixed fee for services, established by the State of Massachusetts, not to exceed $2. Notario In Latin American countries, a notario publico is considered a high ranking official that must be a legal professional with the title of lawyer. A Notario Publico (outside of the U.S.) may: Be an arbitrator; Be a mediator; Issue judicial proceedings; Ensure that documents such as by laws of companies, wills, deeds, powers of attorney, real estate purchases and establishment of trusts do not include any legal inconsistencies. Must charge based on an established fee schedule, which can reach thousands in U.S. dollars.

4 Notary v. Notario Publico (The Problem) Although notario, or the equivalent, in many other countries means that an individual is an attorney, this is not the case in the United States. Thousands of immigrants are victimized by people who exploit this confusion and falsely represent themselves as notarios. Common schemes include: Promising a quick work permit, then filing a fraudulent asylum application, leading to an order of removal (deportation). Important to know whether removal ordered in absentia Falsely representing that a notario can reduce sentences on convictions or prepare complex appeals. Filing petitions for people barred by law from getting the benefit they seek.

5 Consequences Removal orders Applications for relief considered abandoned Persons made vulnerable to denial of benefits for allegedly providing false information (e.g., where the victim didn t see or sign what the notario filed on their behalf) Thousands of dollars extorted from victims

6 People Who May Undertake Representation in Immigration Court A licensed attorney A law student supervised and accompanied by an attorney A BIA Accredited Representative (associated with a BIA accredited Organization) (see 8 CFR 292.2) To verify whether a person (non-attorney) or agency is authorized to provide immigration legal services check the website of the Executive Office for Immigration Review (EOIR) at for the most current list of agencies and individuals authorized to provide immigration legal services. A reputable individual who has a relationship with the immigrant which pre-exists the representation and who receives no payment for their assistance See: 8 C.F.R (a)(1)-(6)

7 Limits of What a Notary May Do Regarding Immigration Matters May not prepare legal documents or act as a legal advisor unless he or she is a licensed attorney. Can provide clerical, secretarial, or translation assistance with immigration forms, so long as they don t provide legal advice, and they may notarize these forms.

8 State Penalties For Unlawful Practice of Immigration Law

9 Basic Charging Statute for UPL The Unauthorized Practice of Law is governed by the General Laws of Massachusetts, Chapter 221, Section 41 Unauthorized practice of law; solicitation of business; penalty. Whoever holds himself out, or who represents or advertises himself as an attorney or counselor at law, or whoever, not having been lawfully admitted to practice as an attorney at law, represents himself to be an attorney shall be punished for a first offence by a fine of not more than $100 or by imprisonment for not more than 6 months, and for a subsequent offence by a fine of not more than $500 or by imprisonment for not more than one year.

10 Executive Order No. 455 (Standards of Conduct for a Notary) Section 9: Prohibition Against the Unauthorized Practice of Law A non-attorney notary public shall not assist a non-attorney in drafting, completing, selecting, or understanding a document or transaction requiring a notarial act, rendering legal advice, or otherwise engage in the practice of law.

11 Executive Order No. 455 (Standards of Conduct for a Notary) Section 10: Advertising Disclaimer Required A non-attorney notary public who advertises notarial services in a language other than English shall include in the advertisement, notice, letterhead, or sign the following, prominently displayed in the same language the statement: I am not an attorney and have no authority to give advice on immigration or other legal matters.

12 Executive Order No. 455 (Standards of Conduct for a Notary) Section 15: Revocation of Commission A notary public s commission may be revoked for official misconduct as defined by this Executive Order, or for other good cause, as determined by the Governor with the consent of the Governor s Council as set for in Article XXXVII of the Articles of Amendments to the Massachusetts Constitution.

13 Senate Bill No House Bill No There is currently legislation pending in both the House and the Senate of the Commonwealth of Massachusetts. The Bills are almost identical to Executive Order 455

14 Larceny Other Causes of Action M.G.L. Ch Imprisonment and/or fine; Court may order restitution be paid to victim. Untrue & Misleading Advertisements M.G.L. Ch Fine and/or may be enjoined by a petition in equity brought by AG or aggrieved party Forgery M.G.L. Ch Imprisonment Uttering False or Forged Records M.G.L. Ch Imprisonment

15 Examples August 2002 Jorge M. Dias, a notario who told clients that he could keep them in the US using loopholes in the law and charged his clients up to $2500, was ordered to pay $75,000 in restitution to 30 clients he represented on immigration matters. June 2003 Gaspard Francois had been indicted in 2002 on 4 counts of forgery and uttering false or forged records for taking advantage of unsuspecting Costa Rican citizens. He was sentenced to 3 years in prison after pleading guilty in Suffolk Superior Court.

16 How to Lodge a Complaint

17 How to Lodge Complaints Immigration Court (EOIR) Submit written complaint (form E-44) to EOIR Office of the General Counsel, ATTN: Bar Counsel, 5107 Leesburg Pike, Ste. 2600, Falls Church VA US Citizenship and Immigration Services Submit E-44 to USCIS Office of the Chief Counsel, ATTN: Bar Counsel, 70 Kimball Ave., Room 103, S. Burlington, VT 05403

18 How to Lodge Complaints Office of the Attorney General Brings complaints to protect public interests, not to advance monetary interests of individuals. Complaint form online at: Send to Office of the Attorney General, Consmer Complaints and Information, One Ashburton Place, Boston, MA Or AG s Public Inquiry and Assistance Center Hotline (617)

19 How to Lodge Complaints Better Business Burearu Address BBB, 23 West Central Street, Suite 1, Natick, MA Phone: (508) Fax: (508)

20 Some Things to Keep in Mind When Filing A Complaint The purpose of filing this type of complaint is not necessarily to get money back from the immigration consultant but to notify the state agency about possible deceptive and unfair business practices. If enough complaints are filed about the same immigration consultant, the state agency might take action against the individual to stop the deceptive or unfair practices. Remember: it is the client s decision as to whether to file a complaint against an immigration consultant. If you decide to assist a client, you should make sure that the client understands the pros and cons of filing such a complaint. For example, the anti-immigrant sentiment that is apparent in many states might lead some state officials to question whether they should report undocumented people to the Department of Homeland Security.