Unauthorized Practice of Law

Transcription

1 Unauthorized Practice of Law Califonrnia 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 Office of the County Counsel, County of Santa Clara & Pro Bono Project Materials created by Erin J. Finsten, Esq., ABA Commission on Immigration. Also including materials created by Julianne Donnelly from Catholic Legal Immigration Network, Inc

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 California, not to exceed $10. 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 Business and Professions Code No person shall practice law in CA unless the person is an active member of the State Bar. ( 6125) Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized to practice law in this state at the time of doing so, is guilty of a misdemeanor ( 6126(a))

10 Basic Charging Statute for UPL (Penalties) Up to one year in jail or $1000 fine, or both ( 6126(a)) Contempt of Court sanctions ( 6127) Additional remedies and penalties in any enforcement action brought in the name of the people of the State of CA by the AG, a DA or a city attorney, acting as a public prosecutor. : Actual Damages Restitution of all amounts paid Amount of penalties and tax liabilities incurred Reasonable attorney s fees and costs Prejudgment interest Appropriate equitable relief ( ) The Court is to award relief in directly to victims. ( (b))

11 Definition of Practice of Law Neither 6126 of the B & P Code, no any other CA statute, defines the practice of law. However, the CA Supreme Court and court of appeals have developed a definition that serves the purpose of definitively establishing, for the jurisprudence of this state, the meaning of the term practice law. Birbower,Montalban, Condo & Frank, P.C. v. Superior Court, 17 Cal.4 th 119, (Cal. 1998)

12 Definition of Practice of Law Practice Law as used in 6125 and 6126 means: the doing and performing services in a court of justice in any matter depending therein throughout the various stages and in conformity with the adopted rules of procedure. It includes legal advice and counsel and the preparation of legal instruments and contracts by which the legal rights are secured although such matter may or may not be pending in a court. Id.

13 Notary Act Government Code Any notary public who is not an attorney, and advertises in a language other than English, shall post with that advertisement, a notice in English and in the other language: The statement: I am not an attorney and, therefore, cannot give legal advice about immigration or any other legal matters. The fees set by statute which a notary public may charge. ( ) Literal translation of the phrase "notary public" into Spanish, hereby defined as "notario publico" or "notario," is prohibited. ( ) The Secretary of State may suspend or revoke the notary s commission for failure to comply with these provisions. ( )

14 Notary Act No notary public who holds himself or herself out as being an immigration specialist, immigration consultant or any other title or description reflecting an expertise in immigration matters shall advertise in any manner whatsoever that he or she is a notary public. ( 8223)

15 Notary Act Whenever it appears to the Secretary of State that any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter or any rule or regulation prescribed under the authority thereof, the Secretary of State may apply for an injunction, and upon a proper showing, any court of competent jurisdiction has power to issue a permanent or temporary injunction or restraining order to enforce the provisions of this chapter ( 8222)

16 Notary Act It shall be a misdemeanor for any person who is not a duly commissioned, qualified, and acting notary public for the State of California to do any of the following: Represent or hold himself or herself out to the public or to any person as being entitled to act as a notary public. Assume, use or advertise the title of notary public in such a manner as to convey the impression that the person is a notary public. Purport to act as a notary public. ( )

17 Permissible Non-Representation, CA Immigration Consultant Act Calif. Bus. & Prof. Code Permits immigration consultants to perform nonlegal immigration assistance: Transcribing answers on forms Translating Q&As on forms Getting supporting docs Submitting completed forms Referrals to legal representation Must pay a $50K bond to CA Rules re files, contracts, written notice i.e.-contract must include provision that client may report complaints to the Office of Immigrant Assistance of the DOJ and UPL complaints to the State Bar of California

18 Immigration Consultant Act An IC must conspicuously display a sign in boldface type, in English and in native language of clientele: A statement that the IC is not an attorney. Additional requirements An IC shall not, with the intent to mislead, literally translate, from English into another language, the words or titles, including, but not limited to, notary public, notary, licensed, attorney, lawyer, or any other terms that imply that the person is an attorney Literal Translation translation w/out regard to the true meaning of the word. Id.

19 Penalties for Violating Consultant Act Civil penalties ( and ) Fine of up to $100,000 per violation Case may be brought by any person injured for injunctive relief or damages or both. Actual damages; treble damages; reasonable attorneys' fees Case may be brought by the AG, a DA or a city attorney (does not preclude an action brought by an injured person.) Injunctive relief; restitution; other equitable relief Criminal penalties (don t apply to minor violations-- i.e. failure to post notice) First violation = misdemeanor w/ $2K to $10K fine per offense OR imprisonment for not more than 1 year Second violation = felony punishable by state prison SOL = 4 years from discovery of the commission of the offense.

20 CA Penal Code False or Misleading Statements in Preparing Immigration Matters Cal. Penal = misdemeanor Punishable by up to 6 mo.s jail / $2.5K fine; Civilly enforceable Action may be brought by AG, DA, County Counsel, City Attorney, or City Prosecutor. Action may be brought upon the complaint of any person injured May recover greater of actual damages or $500; and Costs of the suit, including Attorneys fees. Grand Theft Cal. Penal 487 Elements: (1) false statements (2) w/ intent to defraud V and (3) V defrauded Max sentence varies based on whether value of property taken is > $400 (felony) or < $400 (misdem.)

21 Illegal Practice Bus. & Prof. Code Every person who practices, offers to practice, or advertises any business, trade, profession, occupation, or calling, or who uses any title, sign, initials, card, or device to indicate that he or she is qualified to practice any business, trade, profession, occupation, or calling for which a license, registration, or certificate is required by any law of this state, without holding a current and valid license, registration, or certificate as prescribed by law, is guilty of a misdemeanor.

22 False Advertising Bus. & Prof. Code et seq. It is unlawful for any person with the intent directly or indirectly to dispose of real or personal property or to perform services to make or disseminate any statement which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading Governed by the capacity to deceive legal standard. Not necessary to prove intent to defraud, reliance, or actual injury. Committee on Children s Television v. General Foods, 35 Cal.3d 197 (1983). Criminal Penalties fine up to $2500 and up to 6 months in jail Civil Penalties up to $2500 per violation for public agencies Injunctive Relief Restitution Costs for specified public agencies

23 Unfair Competition Bus. & Prof. Code et seq. Any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising Civil liability up to $2,500 per violation Injunctive Relief Restitution If the victims included senior citizens or disabled persons, up to $2,500 additional penalty per violation

24 Sample Cases The People of the State of CA v. Trust International (2004) AG obtained temp. restraining orders against 3 Sacramento Immigration Consultants The People of the State of CA v. Immigration World Wide Services (2003) Settled lawsuits against 13 individuals violating state laws regulating business of Immigration consulting. Judgments included closure of one of the firms and more than $200,000 in civil penalties, costs and restitution.

25 How to Lodge a Complaint

26 How to Lodge Complaints CA State Bar Association Submit written complaint form to: Office of the Chief Trial Counsel, Intake State Bar of CA, 1149 S. Hill St., LA CA ; 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

27 How to Lodge Complaints CA Dept. of Justice, Office of Immigration Assistance ; Online Consumer Complaint Form Better Business Bureau ; County of Santa Clara Consumer Protection Division

28 Some Things to Keep in Mind When Filing A Complaint With the Secretary of State s Office, the UPLC and/or the Attorney General s Office 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.