Combating the Unauthorized Practice of Law in Tennessee

[Editor’s Note: Today’s article is authored by Ms. Caitlin Doty, Assistant Attorney General, State of Tennessee.*  Ms. Doty discusses the efforts the State has made in the past few years to combat rising unlawful practice of law by individuals in the state of Tennessee.]

Getting inaccurate legal advice can have long lasting and devastating consequences. Lawyers everywhere are entirely too familiar with the problem of non-attorneys committing the unauthorized practice of law. How many of you have consulted with potential clients with botched immigration petitions filed by notarios, when in fact the client didn’t qualify for the benefits requested? Take a drive down a main street in a predominantly immigrant area of any city, and undoubtedly you will see businesses advertising “Notario Publico” and “Tramites de Inmigracion”. With the promise of lower prices than what attorneys charge and “connections” with USCIS, notarios sometimes blatantly engage in the unauthorized practice of law. Tennessee addressed this problem in 2002 with legislation. The Notary Public statute was enacted, making it illegal to advertise the services of a notary public in any language without a clear disclaimer that a notary public is not a licensed attorney and may not provide legal advice. Tenn. Code Ann. § 8-16-401 et seq. also prohibits notaries from assisting in selecting or completing forms relating to a person’s immigration status. Any failure to comply with the statute constitutes an unfair or deceptive act under the Tennessee Consumer Protection Act (“TCPA”).

The Tennessee Attorney General’s office is charged with the responsibility of enforcing the TCPA in conjunction with the Division of Consumer Affairs (“DCA”), as well as the Unauthorized Practice of Law (“UPL”) statute. Consumer restitution, significant civil remedial penalties, injunctive relief, and attorneys’ fees and costs are all available in bringing a successful action under both statutes. The UPL statute provides for a $10,000 civil penalty for each violation, while the TCPA provides for a $1,000 penalty per violation. As you can see, the Tennessee Attorney General’s office is armed with significant enforcement mechanisms to address the constant plague of UPL. The UPL statute also makes it a Class A misdemeanor for any person to engage in the practice of law or law business without a valid license to practice law in Tennessee. The Tennessee District Attorney General is charged with the criminal enforcement.

Over the past decade, this office has brought a plethora of actions targeting the unauthorized practice of law by not only notarios, but also independent “paralegals”, document preparation companies, attorneys who have lost their license to practice law but who keep practicing anyway, and the occasional scammer who falsely claims to be an attorney. Although the frequency of new actors popping up in this context resembles a game of whack-a-mole, Tennessee has taken a hard stance against UPL.

To start the process, consumers file UPL complaints directly with the Attorney General’s office. The Consumer Protection division handles UPL issues, and is statutorily provided the authority to investigate claims of UPL prior to making a determination of whether to pursue litigation. Complaints about other types of misleading and deceptive trade practices should be filed instead with DCA. As would be expected, the State is absolutely dependent upon consumers making complaints in order to take action. Private practice attorneys are essential in this process; frequently complaints originate from attorneys who realize that their clients have been victims of UPL. Because attorneys have their clients’ trust, they are in a unique position to guide their clients through the complaint process.

By way of example, the State of Tennessee brought a UPL action against Elmer Virula, a notario who targeted the Hispanic community. A sign outside of his business read “TPS” in large letters, with “Tax Preparation Services” written underneath. The connotation in terms of immigration law is obvious (“Temporary Protected Status”), and the lawsuit alleged that Mr. Virula used this acronym to purposefully mislead the target population. He had an additional sign advertising “notario publico” without making the required disclaimer that he was not an attorney and could not provide legal advice. In late 2010, the state entered into an Agreed Final Judgment with Mr. Virula, wherein he was permanently enjoined from engaging in UPL or violating the Notary Public statute, and agreed to pay $25,000 in restitution to consumers, $33,000 in civil penalties, $25,000 in attorneys’ fees, and $12,000 in costs. In 2011, Mr. Virula was federally charged and sentenced to two years in prison for preparing and filing fraudulent tax returns on behalf of consumers in the United States Middle District Court for Middle Tennessee.

Currently, the Tennessee Attorney General’s office is litigating a UPL action against Martha Salazar, d/b/a Comunidad Hispana. The State’s complaint alleges that Ms. Salazar prepared numerous legal documents on behalf of consumers, including immigration petitions, custody agreements, contracts and leases. Ms. Salazar is not an attorney in any state, and does not have any attorneys working for her or otherwise supervising her alleged practice of law. Unfortunately, this scenario is all too common in Tennessee. Stay tuned to the Tennessee Attorney General’s website for updates on this and other UPL cases, which can be found athttp://www.tn.gov/attorneygeneral/upl/uplfilings.html.

Investigating these cases is tremendously difficult. The reality is that there are many individuals engaged in UPL, particularly notarios. Law enforcement cannot investigate them all. In Tennessee, every city and most rural areas have streets infested with notario offices. Tennessee is not alone in experiencing this issue. Law enforcement needs help. The private bar’s importance in combating this problem should not be underestimated. By reporting instances of violations of the law and providing victims and witnesses to law enforcement, the private bar helps combat the problem tremendously. Additionally, Tennessee provides for a private right of action under both the TCPA and UPL statute, including treble damages under both. Every immigration attorney should become familiar with their state’s applicable laws in preparation for the inevitable victims of notario fraud that will seek the assistance of an attorney to fix a botched petition. Know the protections that your state offers, both through the appropriate channels of law enforcement and any private rights of action that may be available to your client. If we are ever to exterminate this pesky issue, it will take significant efforts from both law enforcement and the private sector. Thankfully, a solution is within reach if everyone will do their part.

* The opinions expressed in this article are solely those of Ms. Caitlin Doty, and should not be construed to reflect the opinions or positions of the Attorney General, the Consumer Advocate and Protection Division, the Director of the Division of Consumer Affairs, or the Division of Consumer Affairs.

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We thank Ms. Caitlin Doty and the Tennessee Attorney General’s Office for generously providing us with a detailed update on its efforts to combat notario fraud.  To all our readers, please share this article with colleagues and clients to encourage reporting of UPL.  Please subscribe to theCase Management Guru Blog for more updates related to the practice of immigration law.