New right of action; criminal consequences for immigration notario fraud in Massachusetts

Previously, notaries public in Massachusetts were bound by an Executive Order, issued by Gov. Mitt Romney. These executive orders have been enacted as state law in the amended M. G. L. c. 222. The executive order contained many oft-ignored provisions, including prohibiting a notary from calling themselves a “notario,” and requiring that a person conducting business as a notary in a second language post a sign stating that they are not qualified to give immigration advice (I’ve yet to see such a sign in person). But, as an executive order, the worst consequence was for the Governor to revoke the notary’s commission.

But the Legislature added criminal and civil penalties, as of January 4 2017, up to a $5,000 fine or one year in prison. The statute allows either the Attorney General or a District Attorney to enforce the law. The immigration-related provision warns that a notary who is not an attorney or employed by an attorney:

“(i) shall not offer legal advice or advise a client as to the immigration status of a client, secure or attempt to secure supporting documents including, but not limited to, birth certificates, necessary to complete a client’s immigration forms or submit completed immigration forms on a client’s behalf to any governmental agency;

(ii) may translate questions presented on an immigration form for another person and may complete those forms at the explicit direction of such other person only if the translation of such other person’s answers is necessary; and

(iii) prior to providing services of any kind related to an immigration matter or any matter that could influence or affect a person’s immigration status, shall provide a client with a written statement that states “I am not an attorney licensed to practice law. I may not give you legal advice or advise you about immigration policies or procedures. You should seek the advice of a qualified attorney to assist you with any legal questions or with questions about legal status under immigration law.” M.G.L. c. 222 s. 17 (Jan 4, 2017).

The law is explicit but broad. If a notary public is not an attorney, the notary’s pen cannot touch the immigration form. The notary cannot suggest a form to use. The notary cannot help get evidence. The notary cannot submit the form. Notaries even needs to affirmatively warn the “client” (poorly worded in the statute, since a notary is a public official performing a statutory act, and not providing a “service” to a “client”), and warn the client in writing.

This reporter safely assumes that the odds of immigration “notario”/notaries distributing written warnings to their victims is exactly zero (0), and it is probably also a safe assumption to assume that prosecuting rogue notaries is not a high priority for either the Attorney General or the District Attorneys. The most interesting part of the statute, therefore, is the new civil cause of action:

“ (b) A person having an interest or right that is or may be adversely affected by a violation of section 17 may initiate an action for private remedies and, if the attorney general or district attorney has not done so, for injunctive relief. Such person may be awarded actual damages and, if the court finds that the person against whom the action is brought either knew or should have known the conduct would be in violation of said section 17, punitive damages of not more than $5,000 per violation, attorneys’ fees and court costs.

(c) A violation of section 17 shall constitute an unfair or deceptive act or practice pursuant to chapter 93A.” M.G.L. c. 222 s. 18

Four very interesting things:

• That the private cause of action exists. It has already been unlawful in Massachusetts for a non-attorney to practice law, upon penalty of enjoinment. However, it has typically not been a within the realm of the public to enforce via a civil action. This marks a change in perspective from the unauthorized practice of law being a crime against the courts, and therefore enforced by the courts, to a perspective that the unauthorized practice of law is, in reality, a crime against a consumer.
• Second, that the statute does not target all unauthorized practice of law, just unauthorized practice of law by commissioned notaries public.
• Third, the introduction of punative civil damanges.
• Fourth, that a violation of the notary’s newfound statutory duties, including the duty to provide a written advisement to the “client”, is an unfair act or deceptive act under 93A and therefore might see sporadic enforcement from private parties.

© 2017 Jamie Gorton