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Tuesday, December 06, 2005

Ind. Decisions - Supreme Court issues unauthorized practice decision against woman providing "immigration services"

Some quotes from a 24-page per curiam ruling issued today by the Supreme Court, "On Petition To Enjoin The Unauthorized Practice Of Law," in State of Indiana ex rel. Indiana State Bar Assoc., et al v. Ludy Diaz:

On December 1, 2003, Relators filed a verified petition to enjoin Diaz from the unauthorized practice of law (“Petition”). The Petition alleged Diaz engages in the unauthorized practice of law by: (a) selecting and completing immigration forms for individuals seeking immigration assistance; (b) advising individuals on immigration matters; (c) giving advice that is legal in nature and exceeds filling in blanks on a legal document; (d) using the title “Notario” or “Notario Publico,” which is inherently misleading to Spanish speaking people; and (e) advertising and promoting her services without disclaiming she is not an attorney. The Petition seeks to enjoin Diaz from: (1) selecting immigration forms for individuals seeking immigration assistance; (2) advising individuals on immigration or other legal matters; (3) using the title “Notario” or “Notario Publico;” and (4) advertising, affirmatively self promoting, or calling to public attention her services without disclaiming she: (i) is not an attorney; (ii) cannot tell individuals what immigration forms they need; (iii) cannot tell individuals which immigration benefits they may be eligible for; and (iv) cannot give advice on how to complete an immigration form. * * *

The requirements to become a notary public in Indiana are not stringent. * * * A notary’s powers consist primarily of certifying acknowledgments of deeds and other legal instruments, administering oaths, and certifying affidavits and depositions. A notary public may charge no more than two dollars ($2) for each notarial act.

By contrast, in many Latin American countries “notarios publicos” are a select class of elite attorneys, subject to rigorous examinations, regulation, and codes of professional responsibility, who perform quasi-judicial and other functions, including certifying and authenticating legal acts that they witness. Some notaries public in the United States have exploited Latinos’ expectations about their functions and legal knowledge, creating an illusion of expertise to mislead those who depend on them. Plying on the implicit misrepresentation of their credentials, some notaries charge excessive amounts for services that should be free or nominal in cost, in some cases destroying immigrants’ ability to pay for legitimate legal assistance. * * *

[T]his Court finds Diaz’s use of the title “Notary Public” or “Notario Publico” to be inherently misleading. One of her business cards contained the title not once, but twice. The title was prominently displayed after her name on the awning of her office. She displays her notary certificate prominently in her office, akin to the manner one might display a diploma. Although Diaz corrects people who refer to her as an attorney by telling them she is a notary public, not an attorney, there is no indication Diaz corrects any misperception those people might have about the authority that comes with that title in Indiana. There is no indication that any substantial part of Diaz’s business involves legitimate services as a Notary Public, and the fees she charges for her services are far above those permitted for notarial acts. Under these circumstances, the Court concludes Diaz’s use of the titles “Notary Public” and “Notario Publico” in advertisements, on business cards, on her office wall, and on her awning constitutes the unauthorized practice of law. [citations omitted]

The ruling concludes with an injunction listing specific practices in which Diaz may no longer engage, followed by:
This injunction does not prevent Diaz from providing clients with translation and other services that do not constitute the unauthorized practice of law, as long as clients are advised of the limits of Diaz’s services consistent with the above injunction.

The costs and expenses of the hearing before the Commissioner shall be borne by Diaz.

Posted by Marcia Oddi on December 6, 2005 11:15 AM
Posted to Ind. Sup.Ct. Decisions