MA Senate Bill 2064

Legislation

State: Massachusetts
Signed: October 06, 2016

Effective: January 04, 2017
Chapter: 289

Summary

Senate Bill 2064 puts most of the Governor’s Executive Order of 2004 into statute, and makes additional changes to the statutes related to Notaries Public.

Affects

Amends Massachusetts General Laws (MGL) Chapter 183, Sections 30 and 42; replaces Chapter 222, Sections 1, 8, 8A, and 12; amends Chapter 222, Section 11; and adds Chapter 222, Sections 13-26.

Changes

Definitions and General Provisions

Defines “notarial certificate.”
Defines “official misconduct” to include a violation of MGL Chapter 222, Sections 13-24, or any other general or special law in connection with a notarial act, in addition to a grossly negligent act or an act against the public interest, as the current definition in Executive Order 455 states.
Clarifies that one’s “regular place of business” is a place where an individual spends a substantial portion of their working or business hours.
Clarifies that Notaries and justices of the peace who perform notarial acts must perform their duties subject to MGL Chapter 222, Sections 8-26.
Clarifies that persons serving in the armed forces of Massachusetts or other reserve component commands when conducting mobilization exercises and soldier readiness processing may acknowledge any document before a commissioned officer in the active service of Massachusetts or the United States, and any such document must contain a statement that the individual is serving in the armed forces of Massachusetts or other reserve component commands when conducting mobilization exercises and soldier readiness.

Notary Commission

Clarifies that a person qualified for a Notary commission must simply reside (instead of “reside legally” as in Executive Order 455) or have a regular place of work or business within Massachusetts.
Clarifies that the Governor may deny a Notary commission to an applicant convicted of operating a vehicle, motorboat, vessel, recreational vehicle, motor vehicle or aircraft while intoxicated. (Note: The Governor’s Executive Order simply stipulated “drunk driving.”)
Clarifies that the Governor may deny the commission application of an applicant who commits official misconduct.

Notarial Acts

In notarizing a signature by mark, no longer requires the Notary to write near the mark, “Mark affixed by (name of signer) in the presence of (names and addresses of witnesses) and the undersigned Notary pursuant to Executive Order No. 455.” (Note: the new law does not require any such notice to be added for a signature by mark.)
Clarifies that in notarizing a self-proving affidavit to a last will and testament, a Notary is not required to use the notarial certificate forms prescribed in Chapter 222, Section 15. (Note: the new law adds this as a new provision in addition to other specified cases.)
Clarifies that a Notary may not perform a notarial act if the Notary will receive as a direct result of the notarial act any fee exceeding the maximum fee in MGL Chapter 262, Section 41 (fees related to protests), or any other general or special law or executive order as well.
Clarifies that a Notary shall not refuse to perform a notarial act solely based on the principal’s gender identity. (Note: The Governor’s Executive Order only mentions “gender.”)
Clarifies that a Notary may not charge a fee to notarize a signature on an absentee ballot identification envelope or other voting materials or on any application or claim by a U.S. military veteran for a pension, allotment, allowance, compensation, insurance or other veterans’ benefit.

Official Seal

Clarifies that the official seal of a Notary must contain the words “My commission expires ____.” (Note: The Executive Order allowed the format for the commission expiration date to also read, “commission expires on ____” or commission expires ____.

Immigration Assistance, Unauthorized Practice of Law, and Real Estate Closings

Prohibits a notary from advising clients, offering legal advice or representing or advertising the as a legal specialist or consultant unless the Notary is an attorney licensed in Massachusetts.
Prohibits a Notary from stating or implying in any communication that the Notary can or will obtain special favors from or has special influence with a government agency.
Prohibits a Notary who is not licensed to practice law in Massachusetts from making a literal translation of the Notary’s status as “licensed” or as a “Notary Public” into a language other than English without regard to the true meaning of the word or phrase in that language or using any other term that implies that the Notary is a licensed attorney. This prohibition applies to any document, including an advertisement, stationery, letterhead, business card or other written or broadcast material describing the Notary or the Notary’s services.
Prohibits a Notary who is not an attorney licensed to practice law in Massachusetts from offering legal advice or advising a client as to the immigration status of a client, securing or attempting to secure supporting documents necessary to complete a client’s immigration forms, or submitting completed immigration forms on a client’s behalf to any governmental agency.
Permits a Notary to translate questions presented on an immigration form for another person and complete those forms at the explicit direction of such other person only if the translation of such other person’s answers is necessary.
Requires a Notary, prior to providing services of any kind related to an immigration matter or any matter that could influence or affect a person’s immigration status, to provide a client with a written statement that states: “I am not an attorney licensed to practice law. I may not give you legal advice or advise you about immigration policies or procedures. You should seek the advice of a qualified attorney to assist you with any legal questions or with questions about legal status under immigration law.”
Clarifies that #4-6 above do not apply to: (a) an attorney licensed to practice law in any state or territory of the United States or in a foreign country when authorized by the Supreme Judicial Court, to the extent the attorney renders immigration assistance service in the course of the attorney’s practice as an attorney; (b) a paralegal, legal intern or law student employed by an attorney so licensed and rendering immigration assistance in the course of the intern’s or student’s employment; and (c) an organization employing or desiring to employ a person who is not a citizen of the U.S. if the organization, its employees or agents provide advice or assistance in immigration-related matters to noncitizen employees or potential employees without compensation from the individuals to whom such advice or assistance is provided.
No longer allows a Notary who is directly supervised by an attorney to conduct a real estate closing or act as a real estate closing agent. (Note: The new law prohibits conducting a real estate closing unless the Notary is an attorney licensed to practice law in Massachusetts.)
Clarifies that #1-9 above applies to any Notary and to any person who employs, contracts with or otherwise uses the services of a Notary with knowledge or reason to know of conduct that is in violation of these provisions.

Journal of Notarial Acts

Clarifies that any Notary who is an attorney or who is employed by an attorney and by virtue of his or her employment performs Notary duties is not required to keep a journal.
Clarifies that if an attorney or person employed by an attorney elects to maintain a journal, it shall not be construed to impair or infringe on the attorney-client privilege or the attorney work product doctrine.
Clarifies that a Notary who works for a government entity is not required to maintain a journal for the notarial acts performed in the course of employment.
Clarifies that the Secretary of the Commonwealth (and not the Governor) may direct a to Notary surrender or destroy his or her journal.

Violations, Penalties, and Private Remedies

Authorizes the Attorney General or a district attorney to prosecute any person for a violation of Chapter 222.
Provides that the penalty for a conviction of Chapter 222 shall be punished for a first offense by a fine of not more than $1,000 or by imprisonment for not more than 6 months, or by both the fine and imprisonment.
Provides that the penalty for a conviction for a second or subsequent offense shall be punished by a fine of not more than $5,000 or by imprisonment for not more than 1 year, or by both the fine and imprisonment.
Authorizes the Attorney General or a district attorney to file a petition for injunctive relief against any person who violates Chapter 222.
Provides that if the Attorney General, a district attorney or the Secretary of State has cause to believe that, as a result of official misconduct, a Notary is unsuitable to hold that office, the Attorney General, district attorney or Secretary of State shall provide notice to the Governor of the official misconduct.
Provides that any conviction based on a violation of Chapter 222 is grounds for the revocation of a Notary appointment.
Provides that if the court finds that a person convicted of a violation of Chapter 222 either knew or should have known that the conduct would be in violation of this chapter, the court may require such person to pay a civil penalty of not more than $5,000 for each such violation and may also require the person to pay the reasonable costs of investigation and litigation of the violation, including reasonable attorneys’ fees.
Provides that a violation of Section 17 (see “Immigration Assistance, Unauthorized Practice of Law and Real Estate Closings” above) is an unfair or deceptive act or practice under MGL Chapter 93A.
Provides it is not be a defense in an action for an offense under Section 17 (see “Immigration Assistance, Unauthorized Practice of Law and Real Estate Closings” above) that the conduct that is the subject of the action, in whole or in part, occurred primarily or substantially outside the Commonwealth.
Permits a person having an interest or right that is or may be adversely affected by a violation of Section 17 (see “Immigration Assistance, Unauthorized Practice of Law and Real Estate Closings” above) to initiate an action for private remedies and, if the Attorney General or district attorney has not done so, for injunctive relief.
Provides that a person who initiates an action for private remedies under Section 17 (see “Immigration Assistance, Unauthorized Practice of Law and Real Estate Closings” above) may be awarded actual damages and, if the court finds that the person against whom the action is brought either knew or should have known the conduct would be in violation of Section 17, punitive damages of not more than $5,000 per violation, attorneys’ fees and court costs may be awarded.

Analysis

It has been thirteen years since then-Governor Mitt Romney issued an Executive Order regulating the conduct of Massachusetts Notaries. In virtually every year since, the Massachusetts General Court has had legislation pending that would put the Executive Order into statute. Finally, on October 6, 2016, this became a reality and Massachusetts Notary statutes — which date back to the late 1800s — have been thoroughly modernized. Senate Bill 2064, as the Executive Order which preceded it, was based substantively on the NNA's Model Notary Act of 2002. The new law incorporates most of the Executive Order into Chapter 222 of the Massachusetts General Laws.

While S.B. 2064 doesn't change most of the law in force under the Executive Order, it has changed some provisions and added new changes not in the Executive Order. These changes have been listed above. One important change to the Executive Order in the new law is clarification of the persons who may conduct real estate closings. The Executive Order allowed a Notary under the direct supervision of a licensed Massachusetts attorney to conduct a real estate closing. The new law removes this provision, and clarifies that only licensed Massachusetts attorneys may conduct a closing or agent as a closing agent.

The most important and substantive new additions are numerous rules related to the provision of immigration assistance. The new law allows a non-attorney Notary to translate answers and complete immigration forms with the answers provided. It does not allow a non-attorney Notary to obtain supporting documents to support the filing of immigration forms or submit the forms to a government agency on a client's behalf. It also does not allow a non-attorney Notary to provide legal advice or to advise a client on their immigration standing.

Read Senate Bill 2064.

Note: Effective January 4, 2017, Executive Order 571 rescinds Executive Order 455.