Unauthorized Practice of Law

Transcription

1 Unauthorized Practice of Law Maryland, Virginia and the District of Columbia - Laws, Regulations and Procedures for how to file a complaint against a Notario Publico

2 Overview Notary v. Notario Publico Consequences to Victims Individuals Authorized to Undertake Representation in Immigration Court Limits On What a Notary May Do Maryland Virginia District of Columbia

3 Notary vs. Notario Publico Notary An individual appointed by the state government to witness the signing of important documents and administer oaths. A notary may not prepare legal documents or act as a legal advisor unless he or she is a licensed attorney. Notario In Latin American countries, a notario publico is considered a high ranking official with considerable legal skills and training. Unlike a US Notary, they draft documents, provide legal advice and settle disputes.

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. Can provide clerical, secretarial, or translation assistance with immigration forms, so long as they don t provide legal advice, and then may notarize these forms.

8 MARYLAND

9 Maryland Unauthorized Practice of Law Except as otherwise provided by law, a person may not practice, attempt to practice, or offer to practice law in the State unless admitted to the Bar. MD Code, Business Occupation & Professions, (a) Unless authorized by law to practice law in the State, a person may not represent to the public, by use of a title, including lawyer, attorney at law, or counselor at law, by description of services, methods, or procedures, or otherwise, that the person is authorized to practice law in the State. MD Code, Business Occupation & Professions,

10 Penalties Maryland Unauthorized Practice of Law a person who violates any provision of this title is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year or both. MD, Business Occupations & Professions, (c)

11 Maryland Immigration Consultant Act An immigration consultant is a person that provides non-legal advice, guidance, information, or services to a client on an immigration matter for a fee. MD Code, Commercial Law,

12 Maryland Immigration Consultant Act Does not apply to: (1) An attorney licensed to practice law in the State; (2) An individual authorized to represent individuals in immigration matters under 8 C.F.R ; (3) A nonprofit organization that has been recognized under 8 C.F.R ; (4) A representative of a nonprofit organization that has been recognized under 8 C.F.R ; or (5) A clinic affiliated with a law school in the State. MD Code, Commercial Law,

13 Maryland Immigration Consultant Act An immigration consultant may not: (1) Provide legal advice or legal services; (2) Make a misrepresentation or false statement to influence, persuade, or encourage a client to use services provided by the immigration consultant; (3) Make a statement that the immigration consultant can or will obtain special favors from or has special influence with the United States Department of Homeland Security, the United States Department of Labor, the United States Department of State, the United States Department of Justice, or the United States Department of Commerce; (4) Collect any fees or other compensation for services not yet performed; (5) Refuse to return documents supplied by, prepared by, or paid for by a client, at the client's request; or (6) Represent, advertise, or communicate in any manner that the immigration consultant possesses titles or credentials that would qualify the immigration consultant to provide legal advice or legal services. MD Code, Commercial Law,

14 Maryland Immigration Consultant Act An immigration consultant must execute a contract with the client that includes, among other requirements, the statement: "I am not an attorney licensed to practice law in Maryland, and may not provide legal forms, provide legal advice, or provide legal services The contract must be in English, and in each language in which the immigration consultant provides services. MD Code, Commercial Law, The immigration consultant must also display a sign that states: "I am not an attorney licensed to practice law in Maryland, and may not provide legal forms, provide legal advice, or provide legal services. MD Code, Commercial Law,

15 Maryland Immigration Consultant Act Violation/Penalties (a) An immigration consultant that violates this subtitle is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year or both, in addition to any civil penalties imposed under subsection (b) of this section. (b) An individual injured by a violation of any provision of this subtitle may bring an action to recover: (1) Any fees or other compensation paid to the immigration consultant; and (2) Reasonable attorney's fees in an amount equal to the greater of: (i) $2,000; (ii) One-third of the amount obtained under item (1) of this subsection; or (iii) One-third of the amount obtained under subsection (c) of this section, if applicable. (c) The court may award up to three times the amount of damages authorized under subsection (b)(1) of this section.

16 VIRGINIA

17 Virginia State Bar s Standing Committee on Unauthorized Practice of Law The Standing Committee was established to review and act upon complaints alleging the unauthorized practice of law; and issue advisory opinions explaining what activities constitute UPL. The ethics counsel and staff screen incoming complaints and open files for investigation if there is probable cause to believe that a nonlawyer is holding himself or herself out as authorized to practice law or is engaging in UPL. The complaint form can be found on their website at: or you can contact Michelle Townsend by phone or to request that the form be mailed or faxed. (804) ; townsend@vsb.org The completed complaint form should be mailed to: James M. Mcauley, Ethics Counsel, Virginia State Bar, 707 E. Main Street, Suite 1500, Richmond, VA

18 Additional Ethical Implications The Virginia Code of Professional Responsibility Are attorneys ethically required to report to the Standing Committee nonattorneys who represent themselves as attorneys? Probably not. Disciplinary Rule Obligation to Report Misconduct: (A) A lawyer having information indicating that another lawyer has committed a violation of the Disciplinary Rules that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness to practice law in other respects, shall report such information to the appropriate professional authority, except as provided in DR Should a Virginia attorney consider the reporting of a non-attorney who represents themselves as an attorney as part of their ethical obligation? Yes. Ethical Consideration 1-2. The public should be protected from those who are not qualified to be lawyers by reason of a deficiency in education, ethical standards or of other factors... Are there any ethical implications when a bona fide Virginia attorney advertises themselves as being a notario publico? Potentially. Disciplinary Rule 2-101(A). Publicity and Advertising. A lawyer shall not, on behalf of himself or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim.

19 Virginia State Bar s Standing Committee on Unauthorized Practice of Law Possible Outcomes: The committee may: (1) dismiss the complaint if there is insufficient evidence of UPL; (2) enter into a consent agreement in which the defendant agrees to cease engaging in the activity at issue; (3) refer the complaint to the office of the attorney general for a writ quo warranto seeking to enjoin the defendant from further engaging in UPL; or (4) or refer the complaint to a commonwealth's attorney for criminal enforcement

20 Virginia Notary Act A notary is empowered to: (i) take acknowledgments; (ii) administer oaths and affirmations; (iii) certify that a copy of any document, other than a document in the custody of a court, is a true copy thereof; (iv) certify affidavits or depositions of witnesses; and (v) perform such other acts as may be specifically permitted by law. A notary shall not: perform any official act with the intent to deceive or defraud; and A non-attorney notary shall not assist another person in drafting, completing, selecting, or understanding a document or transaction requiring a notarial act. Va. Code Ann and

21 Virginia Notary Act Liability A notary public shall be liable for all damages proximately caused by his official misconduct. Va. Code Ann Official Misconduct means any violation of this title by a notary, whether committed knowingly, willfully, recklessly or negligently. Any notary who knowingly and willfully commits any official misconduct under Chapter 5 of this title shall be guilty of a Class 3 misdemeanor. Va. Code Ann Any person who shall willfully act as, or otherwise impersonate, a notary public while not lawfully commissioned as a notary public or other official authorized to perform notarial acts, shall be guilty of a Class 6 felony. Va. Code Ann

22 Virginia Unauthorized Practice of Law Va. Code Ann Penalty for Practicing Without Authority. Any person who practices law without being authorized or licensed shall be guilty of a Class 1 misdemeanor

23 District of Columbia

24 District of Columbia Committee on Unauthorized Practice of Law The Committee on UPL is created under the D.C. Court of Appeals under DC R A CT Rule 49. They investigate complaints against persons who are engaging in the unauthorized practice of law. When a complaint is filed with the Committee the matter is assigned to a Committee member for a preliminary investigation. If the Committee determines that it is necessary, it will initiate formal proceedings. There is no provision in Rule 49 for any other person or party to take legal action for enforcement, however, an injured party may initiate proceedings to seek civil damages.

25 District of Columbia Committee on Unauthorized Practice of Law Rule 49. Unauthorized Practice of Law. (a) General Rule. No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules.

26 District of Columbia Committee on Unauthorized Practice of Law Actions taken by the Committee: May dispose of the matter at any point during investigation if there is no evidence of UPL; Matter may be closed by formal agreement or consent order if responded agrees to cease and desist; and May also refer cases to the Office of the United States Attorney for investigation and possible prosecution.

27 District of Columbia Committee on Unauthorized Practice of Law The Committee may initiate original proceedings before the Court of Appeals for violation of Rule 49. Violations of Rule 49 are punishable by the Ct. of Appeals as contempt and/or subject to injunctive relief. The Court may also include within it s remedy compensation to persons harmed by violation of Rule 49.

28 Additional Information and Last Thoughts

29 Some Things to Keep in Mind When Filing A Complaint With the VA State Bar s Standing Committee on UPL and/or the DC Committee on UPL 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.