NOTARY PUBLIC—WHAT YOU THINK YOU KNOW CAN HURT YOU!
By Toni Maschler, Esq., Bromberg, Kohler Maya & Maschler, PLLC
WHAT IS THE ROLE OF A NOTARY PUBLIC OR “NOTARIO PUBLICO" IN THE U.S VERSUS IN COSTA RICA AND OTHER LATIN AMERICAN COUNTRIES?
This term, used in numerous countries, can mean completely different things, leading to serious misunderstandings, and, at times, abuses (largely suffered by Latinos in the U.S.) or needlessly delayed and difficult transactions (largely suffered by Americans in Latin America).
In the United States of America, a notary public is an individual permitted by a particular state to witness signatures and affix a signature and seal verifying that the document was signed in the notary’s presence. An American notary’s only obligation is to examine an identity document of the person signing the document (such as a passport, identity card, or driver’s license), and verify that he or she has seen the person sign the document. In general, an American notary does not examine the document being notarized or have any knowledge of the accuracy of its contents. Some states permit notaries to certify the accuracy of a photocopy, although they still have no authority to certify the authenticity of the original. Notaries are permitted to charge a small fee (set by the state which certified them as notaries) although many banks and attorneys will provide the service free of charge to their own clients. Only a few types of documents, such as real estate purchases, wills, and sworn affidavits to be presented in legal cases, require notarization.
In Costa Rica, and in many other Latin American countries, a Notary Public is a trusted public officer, working in a private capacity as well as a trained attorney. A Costa Rican notary is required to be familiar with the contents of a document before notarizing it, and is expected to exercise due diligence in verifying its accuracy. A Costa Rican notary may have to conduct research prior to notarizing a document, and is attesting to the substance of the notarized document by placing his signature and seal on the document.
WHO CAN BECOME A NOTARY PUBLIC OR “NOTARIO PUBLICO?"
· While the exact requirements vary slightly state by state, generally, in the U.S. anyone can become a notary so long as the person is at least 18 years old, lives or works in that state, and can read and write English. The application process is generally the completion of a simple form and payment of a nominal fee to the licensing agency. No particular educational level is required, other than, in some cases, an extremely brief orientation or training, ranging from a few hours to a day or two. An American notary public is not an attorney, and it is illegal for a notary public to provide legal advice, represent an individual in Court, or otherwise act as an attorney. To be a licensed attorney, authorized to serve as such, in the United States, an individual must have earned a law degree, and passed a state bar exam. Only in the rare case that a trained and licensed attorney happens to ALSO be a notary public, may a notary public prepare legal documents, offer legal advice, or represent an individual in court, and these activities are then undertaken in the capacity of a licensed attorney (and not as a notary).
· In Costa Rica every “Notario Publico" MUST be an attorney as a prerequisite for becoming a Notary Public. A Notary Public in Costa Rica is an attorney who has completed at least one year of additional training after receiving a law degree, and generally the “Notario Publico" must pass an exam to be recognized as such. Unlike the United States, in which a notary public need not have even a high school diploma, a Notary Public in Costa Rica, Mexico, and many other Latin is not only a trained and licensed attorney, but an especially respected member of the legal profession.
PROBLEMS CAUSED BY THE SAME WORD HAVING DIFFERENT MEANINGS
· In the U.S., Costa Ricans and other Latin Americans may be misled by Notaries who present themselves as if they were attorneys qualified to offer legal advice. Due to the different meaning of “Notary Public" in Costa Rica, Mexico, and many other Latin American countries, it is understandable that an individual from Latin America would expect that an American Notary Public would have legal training and expertise. Particularly an individual with little knowledge of English is likely to turn to a Spanish-speaking “Notario Publico." An unethical notary public may advertise “immigration services" or “legal consulting," and provide advice about immigration or other legal transactions without any knowledge of the relevant law. Many times, these “immigration consultants" do not even have a high school diploma, much less any special training in law, immigration, or ethics.
· Frequently, individuals who seek assistance from such notaries/consultants are taken advantage of due to the misplaced respect they have for a “Notario Publico." Individuals visiting a notario may be given misinformation about the nature of the applications they are filing, or the benefits to which they are entitled. They may be asked to sign blank documents, and are rarely given copies of any documents filed or supposedly filed on their behalf. Some notaries/consultants encourage clients to file fraudulent documents, or simply fill in the already signed document with fraudulent information. Some collect application fees from their clients, but then fail to submit the applications, and simply pocket the fees. An unethical notary may also charge notarization fees beyond those permitted, or may suggest that their clients notarize tax returns, payment receipts, photocopies, or other documents which do not require notarization, charging a fee for each unnecessary notarization. At times, advice from ignorant or unethical notary publics has resulted in criminal charges or deportation proceedings being filed against foreigners who have hired notaries to assist them with various transactions.
· In Costa Rica, Americans may misunderstand the role of a Notary Public in undertaking complex legal transactions. They may fail to understand that without the services of an attorney who is also a recognized Notary Public, undertakings such as incorporating a business, purchasing property, or applying for legal residence will take longer and be much more inconvenient. Such transactions normally require that the individual travel personally to the relevant government offices and wait in line, often for many hours, in order to file the necessary documents and have the original of all documents examined. A Notary Public can save an individual or business considerable time, by eliminating or simplifying some of the many steps required for complex transactions and by eliminating or reducing the number of in-person transactions required. It is therefore usually cost-effective to hire a recognized Notary Public to assist in most legal endeavors.
Toni Maschler is a partner of Bromberg, Kohler Maya & Maschler PLLC, and an active member of the American Immigration Lawyers Association. Bromberg, Kohler Maya & Maschler, PLLC is a boutique firm focusing exclusively on immigration and nationality law, and is listed in US News and World Report as one of the top immigration law firms in the Washington DC area.
For more information about immigration topics, or to schedule a consultation see www.bromberglaw.com