When a person in New Jersey is commissioned as a notary public, he
or she is given a copy of the New Jersey Notary Public Manual
(New Jersey Division of Revenue). This manual explains the function of a notary
and states that a notary is authorized to: administer oaths and affirmations; take
acknowledgments; execute jurats for affidavits and other verifications; take proof of deeds; execute
protests for non-payment or non-acceptance. The manual cites the statutory requirement that a
notary be 18 years of age or older. A person desiring such appointment
must make application on a form prescribed by the State Treasurer who authorizes
such appointments. The notary public manual states specifically that a notary public may
not prepare a legal document, give advice on legal matters, or appear as
a representative of another person in a legal proceeding. Notary fees are set
by the regulations and are relatively modest.
We emphasize that the practice of law includes the preparation or drafting of
any kind of legal document and the giving of legal advice with regard
to any document or matter. (See UPLC Opinion 40 of the Committee on
the Unauthorized Practice of Law, 176 N.J.L.J. 1195 and 13 N.J.L. 1311, June
21, 2004). Investigations of various complaints by the Committee have revealed that unsuspecting
consumers, many of whom are unfamiliar with the English language, have paid substantial
fees to persons holding the title of notary public to have pleadings, affidavits,
briefs and other submissions to the court prepared for them. Misunderstandings may arise
from cultural or language differences among consumers, many of whom may not realize
that notaries public in this country differ in powers and duties from their
counterparts in other lands; the title of notary public may encompass broader duties
in other countries where the notary may be the equivalent of a legal
advocate. (See Milagros Cisneros, Notorious Notaries How Arizona Is Curbing Notario Fraud in
the Immigrant Community, 32 Ariz. St. L. J. 287, .)
Considerable confusion has resulted when notaries in New Jersey have advertised themselves in
the language of the potential consumer, with such words as notario. In Mexico
and other civil law countries, notario has a very different meaning from a
notary public in the United States. While notario or notario publico in civil
law countries may be synonymous with attorney, in the United States notaries public
hold strictly a witness position. There have been many victims of notario fraud
because persons come to notaries thinking that they will receive legal advice as
they may have received in their native land. (Id., at 299)
The incidence of notario fraud whether intentional or otherwise perpetrated against persons seeking
immigration representation resulted in the enactment of a statute in New Jersey which
focuses on the unauthorized practice of law in the immigration area (N.J.S.A. 2C:21-31).
No such specific statute exists to warn the unwary consumer of the fraud
that may occur if a notary who is not an attorney prepares legal
documents, such as a complaint for divorce, for a person seeking remedies in
a court of law.
In many cases investigated by this committee, notaries public have charged fees for improper services. Many of the fees are in addition to the normal charge for witnessing a signature and are highly excessive considering the permitted witnessing fee of two dollars and fifty cents ($2.50) allowed by law. This Committee has seen incidents of hundreds of dollars charged by notaries to consumer-litigants who were told merely to sign what was put in front of them. They received only a cursory explanation by the non-lawyer notary who had prepared the papers.
Often mistakes of fact or law result from this illegal representation particularly when the documents are submitted pro se in the name of a consumer-litigant and merely appear to be witnessed by the notary. This practice is a disservice to the consumer-litigant whose submissions may be rejected by the court for inaccuracy or insufficiency. Moreover, the papers may result in omissions or errors which impede proper relief.
As stated in UPLC Opinion 40, supra., the Do-It-Yourself Kits opinion, although a non-lawyer seller may assist the purchaser [of Do-It-Yourself kits] by typing, transcribing, or translating, the rendering of any other assistance with the preparation, review, analysis, or completion of materials included in these kits in person, in writing, electronically, or otherwise constitutes the unauthorized practice of law and is therefore prohibited.
We conclude that it is beyond the scope of the permissible duty and
authority of a notary public of the State of New Jersey to give
legal advice concerning the preparation of documents, or to perform services other than
those approved by statute.
Specifically, the Committee deems it to be an unauthorized practice of law for
any notary public of the State of New Jersey to render assistance by
giving advice or by preparing, reviewing, analyzing, or completing any forms, writings, pleadings,
or other documents in person, in writing, electronically or otherwise.
We recommend that the commissioning authority advise applicants and
commissioned notaries public about the contents of this opinion in order to minimize
abuses. In the future, any violation of this opinion called to our attention
will be referred
by this committee to the commissioning authority or county prosecutor for appropriate