by Jennifer A. Grady, Esq.
New consumer-protection legislation was signed into law on October 5, 2013 by Governor Jerry Brown in response to reports from law enforcement that the federal debate over immigration reform was prompting scams aimed at undocumented immigrants. The new law, Assembly Bill 1159, prohibits attorneys and immigration consultants from demanding or accepting money to assist undocumented immigrants with applying for lawful status under alleged federal immigration reform until Congress has actually passed such a law. One such example is the pending “Border Security, Economic Opportunity, and Immigration Modernization Act,” or Senate Immigration Bill 744, which was introduced in the Senate on April 16, 2013, but must be sent to the House of Representatives for consideration.
AB 1159 was authored by Assemblywoman Lorena Gonzalez, D-San Diego, and was a top priority this year for outgoing California State Bar President Patrick M. Kelly and incoming President Luis J. Rodriguez.
The new bill could protect the more than 2.5 million Californians from fraud, unnecessary mistakes, and the unauthorized practice of law by non-lawyers who claim that they will perform services under the pending federal immigration reform act. Such unauthorized practice of law often jeopardizes a client’s pursuit of citizenship, and can even result in deportation. In promoting the bill, Assemblywoman Gonzalez asked that the Legislature crack down on the unscrupulous practice of demanding advanced payment for immigration reform services with the promise that clients could “cut to the front of the line” when federal immigration reform is eventually enacted.
In addition to prohibiting advanced fees for services related to the federal reform effort, the law also:
1. Requires Transparency or the Refund of Deposit Funds
The bill will make it illegal for attorneys or consultants to demand money from clients who are seeking immigration reform act services before the federal reform bill becomes law and is enacted. The new law requires that attorneys and immigration consultants account for any money already accepted for immigration reform services and either refund the money or deposit it in a client trust account.
These provisions regulate the fraudulent practice of advising clients based on a law for which the exact regulations have not become law yet.
2. Prohibits of the Use of the Misleading Word “Notario” and Provides a Civil Penalty for Each Day of Its Use
AB 1159 Prohibits the use of the term “notario,” by expanding the current law to prevent “anyone who is not an attorney” from advertising as a “notario.” This ban prevents confusion that has oftentimes been capitalized upon by non-attorneys hoping to present themselves as attorneys by calling themselves a “notario”, which is a word used in many Latin American nations to connote a type of lawyer.
Notarios often use false advertising and fraudulent contracts, hold themselves out as qualified to help immigrants obtain lawful status, or perform legal functions such as drafting wills or other legal documents. Unethical notarios may charge a significant amount of money for help that they never provide. Often, victims permanently lose opportunities to pursue immigration relief because a notario has damaged their case. Under AB 1159, however, it will be unlawful to use any translated word that may imply that a person is an attorney, including the literal translation of the word “notario”.
In addition, AB 1159 provides that a person who violates the ban on the use of the term “notario” is subject to a civil penalty of up to $1,000 a day for each violation.
3. Creates a Process for Reporting of Complaints
AB 1159 requires that attorneys inform clients receiving immigration reform act services with written notice of where they can report complaints. A notice for attorneys to use has been posted on the State Bar’s website. Clients may report their California attorney to the State bar, or report their non-California licensed attorney to the United States Department of Justice. The forms are also provided in 16 other languages.
4. Requires a Detailed Contract Outlining the Attorney’s Fees, Costs, and Scope of Services.
Pursuant to AB 1159, attorneys and consultants must provide a client with a written contract in the client’s language. Contracts must describe the services being performed for the client, the attorney’s or consultant’s compensation for the services, and where a client can report complaints for unsatisfactory or fraudulent performance of those immigration reform act services. This requirement is to provide transparency to what services a client would be paying for and, equally important, what is not provided for in the contract.
Additionally, non-attorneys performing immigration reform act services are required to itemize each service to be performed, provide an explanation of the purpose of each service, and itemize the cost of preparing each document specified in the contract.
5. Increases the Amount of Bond that “Immigration Consultants”/“Notarios” Must Carry
AB 1159 increases the required bond for consultants performing immigration reform act services from $50,000 to $100,000 as of July 1, 2014. The increased bond amount will allow a greater opportunity for immigrants to recover damages related to immigration fraud.
AB 1159 gained early support from the State Bar of California, labor groups, the faith community, and organizations dedicated to advocating for immigrant rights and equitable access to justice.
Have you heard stories from friends or relatives who were victims of “notario” fraud? Post your comments below.
The Grady Firm, P.C. provides a complimentary 15-mintue consultation to discuss your immigration case. To schedule an appointment, call (949) 798-6298.
Disclaimer: this material is provided for informational purposes only, and should not be construed as legal, financial, tax, or accounting advice. It should not, and cannot, be used for the purpose of avoiding U.S. federal, state, or local tax penalties.