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6 hour course_ Lesson 8 Copy

14th February, 2022

Giving Legal Advice/Practicing Law 

A notary public is prohibited from practicing law, unless the notary public is also a licensed California attorney. (California Government Code section 8214.1(g); California Business and Professions Code section 6215.) Since a notary public comes into contact with a large number of legal documents, from deeds to wills to contracts, among many others, there may be a temptation to offer advice or comment on legal aspects of the documents instead of carrying out the notarial activities alone. But it is very important to remember that a notary public cannot undertake any acts that constitute the practice of the law. Among the acts that constitute the practice of law are the preparation, drafting, or selection of legal documents, or giving advice with relation to any legal document or legal matter. For example, if a customer brings a document to a notary public without a notarial certificate and asks the notary public to “notarize” it, the notary public cannot provide advice or decide for the customer whether a certificate of acknowledgment should be completed or whether a jurat would be in order. The customer must decide.

Best practices tip: If the customer is unsure, the notary public should recommend that the customer confer with the party receiving the document or that the customer consult with an attorney.

Reasons for Commission Revocation or Suspension, or Application Denial

Notary public applicants must disclose on their application all arrests for which trials are pending and all convictions. (California Government Code section 8201.1 and 8201.5.) The California Secretary of State can deny an application for failing to disclose any convictions, either felonies or misdemeanors, including convictions dismissed under California Penal Code sections 1203.4 or 1203.4a(California Government Code section 8214.1(a).) 

If the California Secretary of State either denies an application or proceeds to revoke or suspend the commission of a notary public, the person affected has a right to a hearing on the matter. (California Government Code section 8214.3.) However, there are two exceptions. The first exception occurs when the California Secretary of State already has denied an application or revoked or suspended a commission in a proceeding within the previous year. (California Government Code section 8214.3(a).) The second exception is if a notary public’s commission has already expired, and after a proceeding in which the person had an opportunity for a hearing, the California Secretary of State makes an order that there were or were not grounds for revoking or suspending the notary public’s commission for misconduct. (California Government Code section 8214.3(b).) 

Even if a notary public’s commission has expired or the notary public has resigned, if the notary public has committed acts that could be grounds for suspension or revocation of the commission, the California Secretary of State can still go ahead with an investigation or disciplinary action following the expiration or resignation of a commission. (California Government Code section 8214.4.) 

The reasons the California Secretary of State may refuse to appoint someone to act as a notary public or revoke or suspend a notary public’s commission are found in California Government Code section 8214.1. They are:

  • Substantial and material misstatement or omission in the application submitted to the California Secretary of State to become a notary public.
  • Conviction of a felony, a lesser offense involving moral turpitude, or a lesser offense of a nature incompatible with the duties of a notary public. A conviction after a plea of nolo contendere is deemed to be a conviction.
  • Revocation, suspension, restriction, or denial of a professional license, if the revocation, suspension, restriction, or denial was for misconduct based on dishonesty, or for any cause substantially relating to the duties or responsibilities of a notary public.
  • Failure to discharge fully and faithfully any of the duties or responsibilities required of a notary public.
  • When adjudicated liable for damages in any suit grounded in fraud, misrepresentation or for a violation of the state regulatory laws, or in any suit based upon a failure to discharge fully and faithfully the duties as a notary public.
  • The use of false or misleading advertising wherein the notary public has represented that the notary public has duties, rights, or privileges that he or she does not possess by law.
  • The practice of law in violation of California Business and Professions Code section 6125.
  • Charging more than the allowable maximum statutory fees.
  • Commission of any act involving dishonesty, fraud, or deceit with the intent to substantially benefit the notary public or another, or substantially injure another.
  • Failure to complete the acknowledgment at the time the notary public’s signature and seal are affixed to the document.
  • Failure to administer the oath or affirmation as required by California Government Code section 8205(a)(3).
  • Execution of any certificate as a notary public containing a statement known to the notary public to be false.
  • Violation of California Government Code section 8223. This section of the California Government Code primarily makes it illegal for someone holding himself or herself out as an immigration specialist or immigration consultant to advertise in any way that he or she is a notary public.
  • Failure to submit any remittance payable upon demand by the California Secretary of State or failure to satisfy any court-ordered money judgment, including restitution.
  • Failure to secure the sequential journal of official acts, pursuant to California Government Code section 8206, or the official seal, pursuant to California Government Code section 8207, or willful failure to report the theft or loss of the sequential journal, pursuant to California Government Code section 8206(b).
  • Translating “notary public” into Spanish or advertising in a language other than English in violation of California Government Code section 8219.5.
  • Commission of an act in violation of California Government Code sections 6203 (delivery of a certificate known to be false), 8214.2 (willful fraud in connection with a deed of trust), 8225 (soliciting as notary public to perform a known improper notarial act), or 8227.3 (non-notary placing encumbrance on real property single family residence); or of California Penal Code sections 115 (knowingly filing false or forged document placing an encumbrance on single family residence), 470 (forgery), 487 (grand theft), 487a(a) (grand theft of specified animals, or the carcass or portion of a carcass of any such animal), or 530.5 (willfully obtaining personal information of another for criminal purposes).
  • Willful failure to provide access to the sequential journal of official notarial acts upon request by a peace officer.

Part D. Civil Penalties

Section 1. $1,500 Penalties Imposed by California Secretary of State on Notaries Public

In general the civil penalty typically assessed by the California Secretary of State is up to $1,500 per violation for notarial misconduct. These penalties may be in addition to denial of an application or suspension or revocation of the notary public commission. (California Government Code section 8214.15(a).) The penalties of up to $1,500 may apply in the following circumstances:

  • The use of false or misleading advertising wherein the notary public has represented that he or she has duties, rights, or privileges that he or she does not possess;
  • Commission of any act involving dishonesty, fraud, or deceit with the intent to substantially benefit the notary public or another, or substantially injure another;
  • Execution of any certificate as a notary public containing a statement known to the notary public to be false;
  • Violating the prohibition against a notary public who holds himself or herself out as an immigration specialist or consultant advertising that he or she is a notary public or violating the restrictions on charging to assist in the completion of immigration forms; and
  • Violating the restrictions on advertising notarial services in a language other than English or literally translating the words “notary public” into Spanish.
  • Willfully failing to discharge fully and faithfully any of the duties or responsibilities required of a notary public.

A separate provision of the law permits local and state prosecutors to recover up to $1,500 in a civil action from violators of the provisions relating to the unauthorized manufacture, duplication, or sale of the notary public seal and related offenses, including a failure to notify the California Secretary of State that a notary public seal is lost, stolen, destroyed or damaged. (California Government Code sections 8207.4, 8207.1, 8207.2 and 8207.3.) 

Section 2. $750 Penalties Imposed by California Secretary of State on Notaries Public

The California Secretary of State may levy penalties of up to $750 for other notarial misconduct and these too could also result in either denial of an application or revocation or suspension of a commission (California Government Code section 8214.15(b)): 

  • Charging more than the maximum fees for notarial services;
  • Failing to complete the acknowledgment at the time the notary public’s signature and seal are affixed to the document;
  • Failing to administer the oath or affirmation; and
  • Negligently failing to discharge fully and faithfully any of the duties or responsibilities required of a notary public. Negligent violations would include, but are not limited to, failing to maintain the notary public journal as required by law, taking improper identification, and failing to provide information to the California Secretary of State within 30 days of a written request.

Section 3. Other Substantial Civil Penalties

Several substantial civil penalties are possible if a notary public fails to either provide his or her notary public journal to a peace officer when requested to do so (California Government Code section 8214.21) or obtain the thumbprint in the notary public journal as required by California Government Code section 8206(California Government Code section 8214.23.) The failure to provide the journal to a peace officer is also grounds for denial of an application or revocation or suspension of a notary public commission. (California Government Code 8214.1(r).) The failure to obtain a required thumbprint is also a violation of a notary public’s duties and is a ground for denial of an application or revocation or suspension of the notary public’s commission. The civil penalty for either notarial failure is up to $2,500. The failure to provide the journal to a peace officer must be willful. In both cases, either the California Secretary of State or a public prosecutor may seek the civil monetary penalty.

A notary public may be subject to a civil penalty not to exceed $10,000 in two situations. First, if a notary public fails to obtain the satisfactory evidence required to establish the identity of a credible witness, the California Secretary of State or a public prosecutor may seek a penalty of up to $10,000. (California Civil Code section 1185(b)(1)(B).) Second, if the notary public willfully states as true a material fact that the notary public knows is false in a certificate of acknowledgment, the California Secretary of State or a public prosecutor may seek a civil penalty of up to $10,000. (California Civil Code section 1189(a)(2).) 

Part E. Felonies or Possible Felonies

Section 1. Frauds Relating to Deed of Trust; Single-Family Residence

A notary public who knowingly and willfully with intent to defraud performs any notarial act in relation to a deed of trust on real property consisting of a single-family residence containing not more than four dwelling units, with knowledge that the deed of trust contains any false statements or is forged in whole or in part, is guilty of a felony. (California Government Code section 8214.2.) 

Section 2. Unlawful Acts by One Not a Notary Public; Deeds of Trust on Single-Family Residences

Any person who is not a duly commissioned, qualified, and acting notary public who does any of the acts prohibited by California Government Code section 8227.1 in relation to any document or instrument affecting title to, placing an encumbrance on, or placing an interest secured by a mortgage or deed of trust on, real property consisting of a single-family residence containing not more than four dwelling units, is guilty of a felony. (California Government Code section 8227.3.) 

California Government Code section 8227.1 provides that it is a misdemeanor for any person who is not a duly commissioned, qualified, and acting notary public for the State of California to do any of the following:

  • Represent or hold himself or herself out to the public or to any person as being entitled to act as a notary public;
  • Assume, use or advertise the title of notary public in such a manner as to give the impression that the person is a notary public; or
  • Act as a notary public.

Section 3. Filing False or Forged Documents Relating to Single-Family Residences; False Statements to Notary Public

Every person who files any false or forged document or instrument with the county recorder which affects title to, places an encumbrance on, or places an interest secured by a mortgage or deed of trust on, real property consisting of a single-family residence containing not more than four dwelling units, with knowledge that the document is false or forged, is punishable, in addition to any other punishment, by a fine not exceeding $75,000. (California Penal Code section 115.5(a).) 

Every person who makes a false sworn statement to a notary public, with knowledge that the statement is false, to induce the notary public to perform an improper notarial act on an instrument or document affecting title to, or placing an encumbrance on, real property consisting of a single-family residence containing not more than four dwelling units is guilty of a felony. (California Penal Code section 115.5(b).) 

Section 4. Forgery; Signatures or Seals; Corruption of Records

Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery. (California Penal Code section 470(b).) 

Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: …or falsifies the acknowledgment of any notary public, or any notary public who issues an acknowledgment knowing it to be false; or any matter described in the above paragraph. (California Penal Code section 470(d).) 

Forgery is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year. (California Penal Code section 473.)

 

Section 5. Perjury

Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury. (California Penal Code section 118.) 

Persons who appear before a notary public who do not tell the truth under oath or affirmation may be guilty of perjury.

Applications for appointment as a notary public are executed under penalty of perjury. Misrepresentations or omissions in the application may be perjury.

Perjury is punishable by imprisonment in the state prison for two, three or four years. (California Penal Code section 126.) 

Section 6. Conviction

If a notary public is convicted of a crime related to notarial misconduct (including the false completion of a notarial certificate) or of any felony, the court must revoke the notary public’s commission and require the notary public to surrender his or her notary public seal to the court, to be forwarded to the California Secretary of State with a certified copy of the judgment of conviction. (California Government Code section 8214.8.) 

Part F. Misdemeanors or Possible Misdemeanors 

Section 1. Failure to Deliver Records to County Clerk

If the notary public willfully fails or refuses to deliver all notarial records and papers to the county clerk within 30 days of resignation or removal from office, or within 30 days of commission expiration if the notary public fails to be reappointed, the person is guilty of a misdemeanor and shall be personally liable for damages to any person injured by that action or inaction. (California Government Code section 8209(a).) 

Section 2. Destruction, Defacement or Concealment of Records or Papers

Any person who knowingly destroys, defaces, or conceals any records or papers belonging to a notary public is guilty of a misdemeanor and is liable in a civil action for damages to any person injured as a result of the destruction, defacing, or concealment. (California Government Code section 8221.) 

Section 3. Improper Notarial Acts, Solicitation, Coercion or Influence of Performance

Any person who solicits, coerces, or in any manner influences a notary public to perform an improper notarial act knowing that act to be an improper notarial act, including any act relating to maintaining the official journal, shall be guilty of a misdemeanor. (California Government Code section 8225(a).) 

Violations of this section include, but are not limited to:

  • Coercing or influencing a notary public to complete a false certificate of acknowledgment or jurat;
  • Coercing or influencing a notary public to not enter required information in the official journal;
  • Coercing or influencing a notary public to enter false information in the official journal; and
  • Coercing or influencing a notary public to falsely modify a journal entry.

Section 4. Willful Failure to Perform Duty Relating to Official Journal or Control Notarial Seal

Any notary public who willfully fails to perform any duty required of a notary public relating to the official journal, or who willfully fails to keep the seal of the notary public under the direct and exclusive control of the notary public, or who surrenders the seal of the notary public to any person not otherwise authorized by law to possess the seal of the notary public, shall be guilty of a misdemeanor. (California Government Code section 8228.1(a).) 

Violations of this section include, but are not limited to:

  • Willful failure to maintain the official journal;
  • Willful failure to notify the California Secretary of State within the time required by law if the official journal is lost, stolen, rendered unusable or surrendered to a peace officer;
  • Willful failure to permit a lawful inspection or copying of the official journal;
  • Willful failure to keep the seal under direct and exclusive control; and
  • Surrendering the official journal to any person not authorized to possess it.

Section 5. False Certificate or Writing by Officer

Every officer, including notaries public, authorized by law to make or give any certificate or other writing is guilty of a misdemeanor if the officer makes and delivers as true any certificate or writing containing statements, which the officer knows to be false. (California Government Code section 6203.) 

Section 6. Unlawful Practice of Law

Any person practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to $1,000, or by both fine and imprisonment. (California Business and Professions Code section 6126.) 

Part G. Infractions by Notaries Public 

Both of these possible infractions require that the notary public willfully or deliberately fail to perform an action required by law. This is different from failing to perform an action through negligence.

Section 1. Change of Address

Willful failure to notify the California Secretary of State of a change of principal place of business address or residence address is punishable as an infraction by a fine of up to $500. (California Government Code section 8213.5.) 

Section 2. Name Change

Willful failure to notify the California Secretary of State of a name change is punishable as an infraction by a fine of up to $500. (California Government Code section 8213.6.)