Is it always unauthorized practice of law for a notary to suggest which notarial act?

Question

If you look at the notary manuals from many of the states, or you look at the advice on some of the advice on notary training websites like the National Notary Association, you see advice like this:

A Notary may not even choose for the signer what type of notarial act to perform, because this decision has important legal ramifications.

I wonder if this advice is taking advice that is sound in some areas, like preparing wills or conveyancing land, and trying to turn it into a universal prohibition that isn't really true. I'm inclined to think that if the document being notarized is of a type that only a lawyer may prepare (or it could be prepared by an individual acting for himself), then it would be unauthorized practice of law for a notary who isn't an attorney to suggest which kind of notarial act should be performed on the document.

On the other hand, if the document is of a type that anyone may give another person advice about, such as a school permission slip, an application form to obtain a birth certificate, or an absentee ballot application, does the mere fact that a notarization is needed magically transform it into a legal document, so the notary is prevented from suggesting which notarial act should be used?

Answer 1

Whether this constitutes the practice of law is a close call, and would be somewhat context specific and jurisdiction specific. Generally speaking, the Northeast United States is the most jealous of actions that could be the practice of law committed by non-lawyers, while rural states in the Great Plains and Mountain West are most lenient.

Normally, it boils down to a choice between an acknowledgement and an affidavit. One relevant issue is that in many states there is statutory short form language for each, arguably removing the issue of the drafting of the jurat as the practice of law if the statutory short form is used.

One of the risks would include the use of a notarization when it doesn't achieve the desired purpose (for example, to valid a Last Will and Testament that isn't witnessed), creating false hope.

The other issue is that if the client is someone from a civil law tradition, or a place like India (in both cases, a notary must have training equivalent to a lawyer admitted to practice engaging in transactional law and/or probate law) the risk of the client assuming that the notary has more legal knowledge that the notary actually does, is very severe. Notaries without legal training acting as civil law notaries is one of the primary areas where there is active enforcement of unauthorized practice of law, so caution would be in order.