State Ex Rel. Indiana State Bar Ass'n v. Diaz

ATTORNEYS FOR RELATORS ATTORNEY FOR RESPONDENT

Thomas R. Ruge Patrick F. O’Leary

Todd A. Richardson Goshen, Indiana

Suzanne L. Robinson

Indianapolis, Indiana

Stephen Carter

Attorney General of Indiana

Gary Secrest

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE

Karl L. Mulvany

Nana Quay-Smith

Indianapolis, Indiana

________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 94S00-0312-MS-589

STATE OF INDIANA EX REL. INDIANA STATE BAR ASSOCIATION

AND ATTORNEY GENERAL FOR THE STATE OF INDIANA,

Relators,

v.

LUDY DIAZ,

Respondent.

_________________________________

On Petition To Enjoin The Unauthorized Practice Of Law

_________________________________

December 6, 2005

Per Curiam.

This is an original action brought by the Indiana State Bar Association and the

Attorney General for the State of Indiana (together “Relators”) in the name of the State of

Indiana pursuant to Indiana Admission and Discipline Rule 24. 1 Relators seek an order

enjoining Respondent, Ludovina Emila Diaz (“Diaz”), who does business under the name

Ludy Diaz, from the unauthorized practice of law. This Court has original and exclusive

jurisdiction over matters involving the unauthorized practice of law. See IND. CONST. art.

7, § 4; Ind. Code § 33-24-1-2(b)(2) (2004). The Court finds Diaz has engaged in acts

constituting the unauthorized practice of law and concludes an injunction is appropriate

and necessary.

Procedural Background

On December 1, 2003, Relators filed a verified petition to enjoin Diaz from the

unauthorized practice of law (“Petition”). The Petition alleged Diaz engages in the

unauthorized practice of law by: (a) selecting and completing immigration forms for

individuals seeking immigration assistance; (b) advising individuals on immigration

matters; (c) giving advice that is legal in nature and exceeds filling in blanks on a legal

document; (d) using the title “Notario” or “Notario Publico,” which is inherently

misleading to Spanish speaking people; and (e) advertising and promoting her services

without disclaiming she is not an attorney. The Petition seeks to enjoin Diaz from: (1)

selecting immigration forms for individuals seeking immigration assistance; (2) advising

individuals on immigration or other legal matters; (3) using the title “Notario” or

“Notario Publico;” and (4) advertising, affirmatively self promoting, or calling to public

attention her services without disclaiming she: (i) is not an attorney; (ii) cannot tell

individuals what immigration forms they need; (iii) cannot tell individuals which

immigration benefits they may be eligible for; and (iv) cannot give advice on how to

complete an immigration form.

1

Rule 24 states, in part: “Original actions . . . to restrain or enjoin the unauthorized practice of law in this

state may be brought in this court by the attorney general . . . the Indiana State Bar Association or any duly

authorized committee thereof, without leave of court . . . .”

2

Diaz filed a verified return denying most of the material allegations in the

Petition. This Court appointed the Honorable Jenny Pitts Manier, a judge of the St.

Joseph Superior Court, as Commissioner to hear the evidence in this case and to provide

the Court with detailed findings of fact. Trial was held on September 13, 2004. The

Commissioner filed her findings of fact on October 6, 2004. The Court then received

briefs from the Relators and Diaz, as well as an amicus curiae brief from the Consulado

de Mexico en Indianapolis in support of the Relators.

A Brief Summary Of Immigration Law

Various agencies and players. As of March 1, 2003, the effective date of the

Homeland Security Act of 2002, the Immigration and Naturalization Service (“INS”) was

abolished and its functions were transferred to the Department of Homeland Security.

Under the Deputy Secretary of Homeland Security is the Bureau of U.S. Citizenship and

Immigration Services (“USCIS”), and under the Undersecretary of Border and

Transportation Security are the Bureau of Immigration and Customs Enforcement

(“ICE”) and the Bureau of Customs and Border Protection. See Richard D. Steel, Steel

on Immigration Law, § 2:1 (2d ed. 2004) (available at Westlaw database “STEEL”).

ICE assumed the enforcement jurisdiction and role of the former United States

Customs Service and those functions of the former INS involved in investigations,

detention, and removal. See id. § 2:3. The USCIS assumed many of the adjudicatory

functions of the former INS, including such matters as visa petitions, applications for

adjustment to permanent status, applications for waivers, and applications for asylum.

See id. § 2:2.

The Executive Office of Immigration Review is subject to the supervision of the

Attorney General and is headed by a director who is responsible for supervising the

Board of Immigration Appeals (“BIA”) and the Office of the Chief Immigration Judge.

See id. § 2:5. The BIA is the appellate body charged with the review of administrative

adjudications under the Immigration and Nationality Act (the “Act”). See id. The Chief

3

Immigration Judge is responsible for the supervision of immigration judges, who conduct

exclusion and deportation hearings and other proceedings the Attorney General may

assign them to conduct. See id. § 2:8.

Aliens seeking to remain in the United States. Among the grounds an alien may

assert to remain in the United States are: (1) the alien has a relative who is a citizen or

permanent resident of the United States (a “family-based” or “relative” petition), see 8

U.S.C. § 1153(a) (2000); (2) the alien has employment skills needed in the U.S. (an

“employment-based” petition), see 8 U.S.C. § 1153(b) (2000 & Supp. 2002); and (3) the

alien has fled his or her country of citizenship due to the fear of political persecution (a

petition for asylum), see 8 U.S.C. § 1158 (2000 & Supp. 2002).

In specifying the qualifying relationships for a family-based petition, the Act uses

words of otherwise common meaning but which in this context are subject to significant

statutory, judicial, and administrative definition and interpretation. See Steel, supra, §

5:1. Most, but not all, relative petitions are filed on a Form I-130. See id. § 5:32.

The availability of visas to persons who qualify as relatives can be limited by

several factors, including quotas. See id. § 4:2. When a quota applies, the alien is

assigned a priority date, which establishes the person’s place in the waiting line. See id. §

4:17. Monitoring one’s progress in the line is done through consulting the monthly Visa

Bulletin issued by the Department of State. See id. § 4:18. Approval of a relative visa

petition does not guarantee the beneficiary will receive permanent resident status. The

beneficiary still must apply for permanent residence through the USCIS and show he or

she is not inadmissible to the United States. See id. §§ 4:8 & 5:42. Grounds for

inadmissibility include convictions of certain crimes, fraud or misrepresentation of fact to

obtain admission into the U.S., falsely claiming U.S. citizenship, entering as a stowaway,

and having been previously ordered removed. See 8 U.S.C.A. § 1182(a)(2), (6) & (9)

(West 1999 & Supp. 2005).

4

“Adjustment of status” is a procedure by which certain aliens physically present

in the United States can obtain permanent resident status without leaving the United

States. See Steel, supra, § 7:1. Form I-485 is the basic application for adjustment of

status. See id. § 7:23. In some cases, an application for adjustment of status may be filed

concurrently with a visa petition, but in other cases, as when the applicable quota is not

current, the visa petition must be filed first. See id. § 7:24. Some requirements for

adjustment of status were temporarily suspended for certain aliens if the underlying

qualifying application or petition was filed on or before April 30, 2001. To take

advantage of this provision, the alien must submit a Supplement A to the Form I-485 and,

with some exceptions, pay a filing fee of $1,000. 2 See id. §§ 7:9 & 23.

The initial interview of an immigration client and the other parties involved is a

crucial stage of the case and ascertaining all relevant facts is essential. Adequate

communication must be established, especially if the client does not speak English. It is

essential to ensure only true documentation is utilized and to advise the client of the

consequences of using fraudulent documentation. Many times a problem arises because a

person lied or used false documentation when the truth or true documentation would have

been sufficient. See id. § 1:7.

Non-attorney representation. Federal law allows for limited non-attorney practice

of immigration law in administrative proceedings. See 8 C.F.R. § 292.1 (2005). To

qualify to practice as an “accredited representative,” an individual must first be affiliated

with an organization recognized by the BIA as a “non-profit religious, charitable, social

service, or similar organization” that charges individuals only nominal sums for

assistance rendered and has at its disposal adequate knowledge, information, and

experience. 8 C.F.R. § 292.2(a) (2005). Second, the organization must petition on behalf

of the individual, including in its application detailed information on the individual’s

“experience and knowledge of immigration and naturalization law and procedure . . . .” 8

C.F.R. § 292.2(d) (2005). If the petition is approved, the individual is legally allowed to

2

The forms discussed above and accompanying instructions are available on the USCIS website

(http//uscis.gov).

5

practice immigration law before the BIA (also called “the Board”) and/or various bureaus

(“the Service”). Such practitioners are subject to rules of professional conduct and

discipline. See 8 C.F.R. § 292.3 (2005).

The “practice” of immigration law is defined as:

the act or acts of any person appearing in any case, either in person or

through the preparation or filing of any brief or other document, paper,

application, or petition on behalf of another person or client before or with

the Service, or any officer of the Service, or the Board.

8 C.F.R. § 1.1(i) (2005).

The practice of immigration law does not include merely helping someone fill in

blank spaces on forms for nominal remuneration, as long as the person offering assistance

does not hold himself or herself out as qualified in legal matters or in immigration or

naturalization procedure. See 8 C.F.R. § 1.1(k) (2005). However, the selection of the

proper form is a different matter:

[The] selection by a visa consultant of a Form I-130 for a client’s use

could constitute a legal judgment that the client and/or his alien relatives

are not eligible to apply for any other immigration benefit(s). An accurate

determination of such eligibility requires extensive knowledge of often

complex immigration laws and their applicability to individual cases.

....

By selecting a Form I-130 for a lay client, translating it,

transcribing the responses, and then assisting in securing supporting

documentation, a visa consultant implicitly suggests to a client that this is

the form that will best satisfy the request of securing legal immigration

status for his or her relatives.

INS Gen. Couns. Op. No. 93-25, 1993 WL 1503972 (Apr. 20, 1993). Non-lawyers who

are not accredited representatives (and fail to qualify under other nonlawyer categories),

but nevertheless practice immigration law, are in violation of federal rules. See 8 C.F.R.

§ 292.1 (2005).

6

Findings Of Fact

Although Diaz challenges a number of the Commissioner’s findings and offers

different accounts of some events, the Court finds the Commissioner’s findings are

supported by clear and convincing evidence and hereby adopts them. 3 The

Commissioner’s findings of fact (“Findings”) are summarized below.

Diaz’s background and business generally. Diaz was born in Puerto Rico and

moved to Indiana when she was 14 or 15 years of age. She is fluent in both English and

Spanish. Diaz graduated from high school in Indiana, after which she attended

cosmetology school. Diaz has been appointed and commissioned as a notary public by

the State of Indiana, but she does not have a law degree and is not licensed to practice

law in Indiana or any other jurisdiction in the United States. Neither Diaz nor her

business has ever been certified to represent persons before the INS, the USCIS, the ICE,

or the BIA. (See Findings 6-12.)

Diaz does business as a sole proprietorship at offices located at 125 East Lincoln,

Goshen, Indiana. Diaz identified her occupation as “immigration counselor” on the

federal income tax returns she filed for tax years 1996 through 2002. After Relators filed

their verified petition against Diaz, she identified her occupation as “translation services”

on her 2003 federal income tax return. Diaz has attended two seminars on immigration

law. The first, a two-day immigration law seminar in Omaha, Nebraska, was put on by

Catholic Charities, and the second, a one-day workshop on immigration law, was held in

Chicago. Diaz uses software from which she can generate immigration applications and

other immigration forms. This software is updated periodically through a subscription

service. Diaz relies on this software to learn about changes in immigration law. (See

Findings 14, 20, 22.)

3

The burden of proof in an action charging the unauthorized practice of law is not specified by rule. See

Admis. Disc. R. 24. The burden of proof in attorney discipline cases and judicial discipline cases is clear

and convincing evidence. See Admis. Disc. R. 23, § 14(h); Admis. Disc. R. 25(VIII)(K)(6). We need not

decide today whether a standard lower than “clear and convincing” should apply in unauthorized practice

of law cases because the evidence against Diaz satisfies the “clear and convincing” standard.

7

Diaz has been in business for herself for about seven years. Prior to opening her

business, Diaz worked for La Casa of Goshen (“La Casa”) from 1965 until 1978, and

again from 1985 until 1995. Diaz’s title while at La Casa was “immigration specialist.”

(See Finding 19.) La Casa is a social service agency operating in Elkhart County,

Indiana, that is authorized to practice before the BIA and USCIS. As a part of achieving

accredited status, La Casa was required to have a resource library and attorney resources

available to it. (See Findings 106, 110-11.) It does not appear that Diaz was ever

certified as an “accredited representative” of La Casa to practice before the BIA and

USCIS, see 8 C.F.R. §§ 292.1(a)(4), 292.2(d). (See Diaz Dep. at 97-98, 152.)

Diaz’s use of the titles “notary public” and “notario publico.” The literal

translation of the English words “notary public” are the Spanish words “notario publico.”

As described in more detail below, the term “notario publico” or “notario,” as used in

Mexico and other Latin American countries, however, indicates an official who is an

experienced lawyer who has passed additional rigorous examinations. (See Findings 180-

81.)

The awning outside her office is imprinted with the following text: “Ludy Diaz,

Notary Public.” Her Notary Public commission hangs, framed, on the wall of her office.

Prior to the filing of the Petition, Diaz used a business card advertising her business in

Spanish. The business card used the designation “Notario Publico” twice and did not

advise whether or not Diaz was a lawyer. Diaz no longer uses the term “Notario Publico”

on her business cards. (See Findings 15-16, 190-91.)

Prior to the filing of the Petition initiating this proceeding, Diaz had advertised

her business in El Puente, a Spanish language publication in Elkhart County. This

advertisement designated her as a “Notario Publico” providing “Servicios de

Immigration” (immigration services). The advertisement stated Diaz had 17 years of

experience and warranted absolute confidentiality. Diaz acknowledges the advertisement

could have been used by her in the year 2002. The advertisement contains no disclaimer

8

advising that Diaz is not an attorney. Diaz ran a similar advertisement in 2001 in La

Prensa, a Spanish language publication in Elkhart County. (See Findings 188-89.)

Diaz corrects persons whom she hears refer to her as an attorney by stating “I am

not an attorney, I am a notary public,” but it is unclear whether this correction is made in

English, Spanish, or both. (See Finding 192.)

The Neighborhood Christian Legal Clinic (“NCLC”) is a non-profit corporation

offering pro bono legal representation and education to low-income inner city and Latino

clients operating within the Indianapolis metropolitan area. NCLC clients have

experienced problems with notaries holding themselves out as “notarios” in the areas of

immigration, real estate, and tax law. The services these notaries provide are often

deficient. The Mexican Consul in Indianapolis has received numerous complaints from

individuals who have been confused by persons using the term “notario publico.” There

is, however, no evidence the NCLC or the Mexican Consul in Indianapolis ever received

a complaint or inquiry concerning Diaz. (See Findings 186-87, 194-201.)

The scope of immigration services provided by Diaz. Diaz provides immigration

services not only to Spanish speakers, but also to English speakers, non-Spanish speakers

and other individuals who do not require translations or interpretations. Diaz selects the

immigration forms she believes are appropriate to address the particular need of the

individual client. Diaz’s immigration services have involved preparation of family-based

immigration petitions, an occasional employment-based petition, at least one asylum

appeal, and applications for becoming a naturalized U.S. citizen. Diaz explains to her

clients the process by which USCIS may waive certain conditions that would otherwise

bar approval of an alien’s immigration application. In some instances, Diaz has

accompanied her clients to the immigration office. (See Findings 133-37.)

Diaz has advised clients on such issues as seeking citizenship for minor children,

visa priority dates, the implications of being married for less than two years, the

procedure to follow if one does not fall within any of the eight bases listed on form I-485

9

for which an adjustment to status may be sought, status adjustment based on having a

relative who becomes a U.S. citizen, and the process for completing employment-based

immigration petitions. (See Findings 150-54.)

Diaz uses form letters, prepared by her, in connection with immigration cases.

She writes letters for clients that attempt to serve as notices of appeal, motions to reopen

cases closed or denied by the USCIS, requests for the withholding of deportation, and

letters of explanation concerning previous deportations. Diaz’s letters are generally in

the nature of a “shot in the dark” or an appeal for mercy. Diaz does not know the legal

requirements for appealing an immigration decision or the circumstances under which an

appeal may be granted. There is no evidence Diaz advises her clients of this fact. Diaz

does not know whether the contents of her letters will be helpful to her clients with their

immigration matters. Diaz does not know the circumstances under which a deportation

will be withheld. Diaz does not know how criminal convictions are treated by

immigration officials. (See Findings 138-46.)

Diaz refers clients to attorneys when she feels she cannot handle their cases, when

they must appear in court, or when immigration specifically states the client needs to be

represented by an attorney. (See Finding 168.)

Diaz charges a fee for assisting and advising individuals regarding immigration

matters. The fee for her services is based upon how many forms are used and whether or

not any translation is required. Diaz advises her clients as to what she expects the

immigration filing fees to be. After the applications are completed, Diaz tells clients how

much money needs to be sent to the immigration office and that the client will need to get

that amount in a cashiers check or money order. Diaz does not maintain a separate trust

account for money that is given to her by clients for the purpose of paying a filing fee,

obtaining a money order or paying postal expenses. Diaz keeps track of the money that

flows in and out of her office by writing receipts. (See Findings 156-63.)

10

Diaz’s dealings with Anjelica Hernandez and Fructuoso Espinoza Rivera.

Anjelica Hernandez (“Hernandez”) is a citizen of the United States who describes her

ethnicity as Hispanic. She is fluent in both Spanish and English. Hernandez married

Fructuoso Espinoza Rivera (“Espinoza”) on March 25, 2000, and they have one child,

born December 7, 2001. Hernandez also has another child, born October 4, 1998, who is

not Espinoza’s biological child, but who views Espinoza as a father. (See Findings 40-

45.)

Espinoza is a citizen of Mexico. Espinoza attempted to enter the United States in

early 1998 by falsely claiming U.S. citizenship using the birth certificate of another

person who was in fact a citizen of the United States. Espinoza was subjected to

expedited removal proceedings at that time, an administrative removal order was issued,

and he was returned to Mexico. Espinoza married Hernandez after a subsequent illegal

entry into the United States. At the time of the marriage, Hernandez was aware that

Espinoza was residing in the United States illegally and that he had been previously

deported or removed from the United States for attempting to enter the United States

using the birth certificate of another person. (See Findings 48-51.)

Hernandez and Espinoza wished to secure legal U.S. resident status for Espinoza.

Hernandez knew of Diaz because members of Hernandez’s family had previously hired

Diaz to assist them with immigration matters and Hernandez had seen advertisements in a

local Spanish-language newspaper advertising Diaz’s services. Hernandez did not know

what title, qualification or certification, if any, Diaz held, but she understood Diaz to be

an immigration expert. (See Findings 52-55, 94.) Hernandez, therefore, scheduled an

appointment for herself and Espinoza with Diaz in May 2000. Hernandez was told to

bring with her to the appointment a filing fee of $130 and the $100 fee Diaz would be

charging for her services. (See Findings 52-57.)

At the appointment, Hernandez explained to Diaz that Espinoza was in the U.S.

illegally, that they had just married, and that they were seeking to obtain residency status

for Espinoza. Diaz advised Hernandez and Espinoza that Diaz would fill out the

11

appropriate application and send it to the INS. Diaz spoke in English and in Spanish

during the meeting. Diaz asked if Espinoza had any other relatives who were U.S.

citizens. Diaz did not ask Hernandez or Espinoza about any other immigration filings

they previously may have made. Diaz did not ask whether Espinoza previously had been

deported or removed from the United States and neither Hernandez nor Espinoza

volunteered that information. Diaz selected and prepared for Espinoza a Form I-130,

Petition for Alien Relative. In completing the Form I-130, Diaz asked about Espinoza’s

work history. Diaz advised Hernandez and Espinoza it would be better to indicate on the

form that Espinoza was working as a seasonal worker for cash, rather than to

acknowledge that he was working under someone else’s authorization or status.

Hernandez and Espinoza were not advised in detail as to the significance of the form

completed by Diaz, were not asked to review it, and were not provided with a copy of the

completed form. After Espinoza signed the form, Diaz advised Hernandez and Espinoza

that she, Diaz, would finish the form and mail it to the INS. Hernandez tendered to Diaz

$130 for the filing fee and $100 for Diaz’s services, for which Hernandez was given a

receipt. (See Findings 61-70.)

Hernandez later came to believe that a new program existed whereby illegal

immigrants would be permitted to gain lawful residency status simply by paying a fine. 4

Hernandez contacted Diaz’s office for a second time, spoke with a young woman who

advised Hernandez of the cost, told Hernandez to bring the filing fee with her, and

scheduled an appointment for a date about thirty days later. At this appointment,

Hernandez explained to Diaz what she had heard about a new program and explicitly

questioned Diaz as to whether Espinoza would be eligible for this benefit notwithstanding

his earlier deportation. 5 Diaz completed a Form I-485, Application to Register

Permanent Resident or Adjust Status. Diaz spoke to Hernandez in Spanish and English

4

This may have been the temporary suspension of some requirements for adjustment of status that applied

to qualifying applications or petitions filed on or before April 30, 2001. See Steel, supra, § 7:9.

5

Diaz testified that neither Hernandez nor Espinoza told her about Espinoza’s deportation or his use of

false documents. The Commissioner found Hernandez’s testimony to be more credible. (See Finding 71.)

Even if Diaz’s version of events is correct, however, it would not change this Court’s conclusion that Diaz

engaged in the unauthorized practice of law.

12

as she completed this form. Diaz gave neither Hernandez nor Espinoza information as to

the purpose of the Form I-485. Hernandez, however, trusted Diaz and had the impression

Diaz knew what she was doing. Diaz did not give Hernandez or Espinoza a copy of the

Form I-485 when they left the office. Diaz did not ask them to review the form prior to

having Espinoza execute it, or thereafter. Diaz instructed Espinoza to sign the form, even

though she had additional work to do to complete the form. Hernandez did not know at

that time that the answer to one question incorrectly indicated that Espinoza had never

been deported or removed from the U.S. Hernandez and Espinoza paid Diaz $200 for the

services provided by Diaz in connection with the completion of the Form I-485. (See

Findings 72-79, 82.)

Hernandez returned to Diaz’s office a few days later to pick up the completed

Form I-485, which Hernandez mailed to the INS, with a check for $1,425, which she had

been told by Diaz’s receptionist was the required filing fee. 6 Hernandez mailed the Form

I-485 herself, rather than having Diaz do so, because Hernandez and Espinoza believed

Diaz was very busy and they did not want the processing of the application to be delayed.

(See Findings 80-81.) After Hernandez retrieved the Form I-485 and mailed it to INS,

Hernandez had no expectation that Diaz was assisting Espinoza further with the I-485

application. (See Finding 95.)

Espinoza and Hernandez attended an interview at the INS office in Indianapolis

approximately six months after submitting the Form I-485. They were advised to submit

materials to verify Espinoza’s employment. Hernandez sent to INS a copy of Espinoza’s

pay stub without the assistance of Diaz. Espinoza and Hernandez returned a second time

to the Indianapolis INS office to inquire about the status of the I-485 application and to

renew his work authorization. They questioned Espinoza’s INS caseworker about the

status of his I-485 application. The caseworker questioned them about Espinoza’s prior

deportation. Hernandez and Espinoza explained to the INS caseworker the details of the

prior deportation and that they had advised Diaz expressly of the deportation. Espinoza

6

This apparently was intended to include a $1000 filing fee to accompany a Supplement A to Form I-485,

a copy of which is included in Diaz’s file for Espinoza. The Form I-485 Supplement A was signed on

April 23, 2001.

13

and Hernandez were separated and Hernandez was then told Espinoza had been detained

and would be deported. Diaz had not warned Hernandez or Espinoza that this might

occur. (See Findings 83-87.) Espinoza has not seen his child since his deportation. (See

Finding 101.)

After Espinoza was detained, Hernandez contacted Diaz but did not advise Diaz

about Espinoza’s detention. Hernandez asked Diaz for copies of the documents

completed by Diaz for Espinoza and told her they were seeking legal assistance due to

the delay in processing Espinoza’s I-485 application. Diaz advised Hernandez to just

“send a letter” and that a lawyer “would charge a lot of money and it would not do any

good.” Hernandez eventually obtained from Diaz a copy of the file Diaz maintained for

the services she provided to Espinoza. (See Findings 88-90.)

Diaz did not recognize at the time she assisted Espinoza that his prior use of false

documentation in connection with an immigration matter was a serious offense. It would

have been predictable to a person in the practice of immigration law that the filing of the

Form I-485 for Espinoza would have lead to negative consequences for him. (See

Findings 98-100.)

Services Diaz provided to other clients. The record shows Diaz provided

immigration services far beyond mere translation assistance and Diaz provided services

in legal fields besides immigration. (See Findings 120-32.) We will briefly summarize

those services here. She completed immigration applications for individuals who do not

speak the Spanish language. (See Finding 120.) She composed letters for clients to send

to the USCIS seeking action on pending immigration matters. (See Findings 121-22.)

She composed letters for an applicant and the applicant’s father expressing the

applicant’s remorse and the father’s apology for an offense committed by the applicant as

a juvenile, even though a juvenile adjudication is not a conviction for immigration

purposes. (See Finding 123.) She prepared a Notice of Appeal to the BIA following a

decision to deny one of her clients an asylum application, issued checks to the U.S.

Department of Justice in connection with this appeal, and composed a letter seeking the

14

withholding of the deportation of the client. (See Finding 124.) She assisted a client,

born in the United States, with an immigration application for his wife, who had entered

the United States without permission, but did not advise the client about the

consequences of his wife’s leaving the United States and trying to re-enter using false

documents while her immigration petition was pending, resulting in the wife’s being

apprehended at the border and returned to Mexico when she tried to do so. (See Finding

127.) She completed a Form I-485, Petition for Adjustment of Status, for a client,

indicating her current nonimmigrant status as “I-130 approved,” even though she had

entered the United States as a stowaway. (See Finding 125.) She assisted a married

couple in connection with the I-130 immigration petition filed on behalf of the wife, and

later, when the parties separated and planned to divorce, composed a letter to

immigration officials, executed by the husband and notarized by Diaz, requesting that

processing of the I-130 petition be halted. (See Finding 130.) She drafted various forms

of a contract between individuals for the purchase and sale of a mobile home, including a

form or agreement written in Spanish. (See Finding 124.) She drafted an answer to a

complaint for a client, which was filed in the Elkhart Superior Court. (See Finding 123.)

She drafted a single Last Will and Testament for two clients, which was not properly

executed. (See Finding 131.)

The Unauthorized Practice Of Law

This Court’s authority to set standards for and to supervise the practice of law

emanates from the need to protect the public from those who are not properly licensed or

otherwise qualified to act as attorneys. See State ex rel. Disciplinary Comm’n v. Owen,

486 N.E.2d 1012, 1014 (Ind. 1986). The practice of law without a license is not a

“victimless crime” because the legal interests of people assisted by those who are not

qualified to act as attorneys can be irreparably damaged. See State ex rel. Indiana State

Bar Ass’n v. Miller, 770 N.E.2d 328, 331 (Ind. 2002) (Shepard, C.J., dissenting). This is

especially true in immigration cases, where the consequences of incompetent

representation may be the lost opportunity for permanent residence, deportation, and

perhaps even death for unsuccessful asylum seekers.

15

It is the province of this Court to determine what acts constitute the practice of

law. See In re Mittower, 693 N.E.2d 555, 558 (Ind. 1998). This Court has not attempted

to provide a comprehensive definition of what constitutes the practice of law because the

infinite variety of fact situations each must be judged according to its own specific

circumstances. See Miller v. Vance, 463 N.E.2d 250, 251 (Ind. 1984). Although there

may be a “twilight zone” between those acts that are and those that are not permissible

for persons who are not lawyers, see State ex rel. Indiana State Bar Ass’n v. Indiana Real

Estate Ass’n, 244 Ind. 214, 217, 191 N.E.2d 711, 715 (1963), it is clear the core element

of practicing law is the giving of legal advice to a client. See Owen, 486 N.E.2d at 1013.

In fact, merely entering into such relationship constitutes the practice of law. See id. The

practice of law includes making it one’s business to act for others in legal formalities,

negotiations, or proceedings. See Mittower, 693 N.E.2d at 558. In addition, holding

oneself out as an attorney by the use of misleading labels, such as “esquire,” when one is

not licensed to practice law may constitute the unauthorized practice of law. See id.

This Court has had occasion to address whether assisting persons in filling out

documents with legal ramifications constitutes the practice of law. In State ex rel. Indiana

State Bar Ass’n v. Indiana Real Estate Ass’n, the issue presented was whether licensed

real estate brokers and salespersons were engaged in the unauthorized practice of law

when they used form legal documents prepared by attorneys, selected which forms to be

used, and inserted words within the printed forms in connection with the real estate

transactions. See 244 Ind. at 217, 191 N.E.2d at 713. This Court stated:

Generally, it can be said that the filling in of blanks in legal instruments,

prepared by attorneys, which require only the use of common knowledge

regarding the information to be inserted in said blanks, and general

knowledge regarding the legal consequences involved, does not constitute

the practice of law. However, when the filling in of such blanks involves

considerations of significant legal refinement, or the legal consequences of

the act are of great significance to the parties involved, such practice may

be restricted to members of the legal profession.

244 Ind. at 220, 191 N.E.2d at 715. The Court then assessed the potential for errors by

nonlawyers and the practicalities of the situation:

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We are aware of the dire consequences which might, in isolated instances,

result from the use of an improper form, by persons not skilled in law, but

such speculative consequences cannot be made to outweigh the

practicalities of the situation.

. . . . It cannot be urged, with reason, that a lawyer must preside

over every transaction where written legal forms must be selected and

used by an agent acting for one of the parties. Such a restriction would so

paralyze business activities that very few transactions could be

expeditiously consummated. . . . The possibility of an occasional

improvident act in the use of such forms may not, with reason, be made

the basis for denying the right to perform the same act in a thousand

instances where the public convenience and necessity would seem to

require it. Lawyers, themselves, on rare occasions have been known to

make errors in the drafting of such forms.

The legislature has . . . recognized that the real estate brokers and

salesmen perform an approved function in our business society, and has

established a procedure whereby their qualification is ascertained. No

issue has been raised as to the sufficiency of this examination. By this

method, the legislature has attempted to establish reasonable standards for

the safeguard of the public in their real estate transactions. We consider it

expedient that we attempt a reconciliation of the overlapping services

performed by the real estate brokers and members of the bar.

244 Ind. at 221-22, 191 N.E.2d at 715-16. The Court concluded the execution of deeds is

restricted to attorneys but real estate brokers and salespersons may fill in the forms of

other legal instruments prepared by attorneys, including listing agreements, offers to

purchase, purchase agreements, and short form leases. See 244 Ind. at 226, 191 N.E.2d at

717.

In Miller v. Vance, this Court considered whether the preparation of a mortgage

instrument by a bank employee who was not an attorney constituted the unauthorized

practice of law. See 463 N.E.2d at 251. This Court reasoned:

The instant case . . . involves the lay employees of banks

performing the routine service of filling in information on standard real

estate mortgage forms. This service is incidental to and directly connected

with the bank’s regular business of making loans. The bank employees

here were involved in preparing documents for routine business

transactions with which they were thoroughly familiar in the same manner

in which real estate brokers were involved in preparing documents

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routinely associated with their real estate transactions. While it is true that

the preparation of mortgage instruments might be classified as the practice

of law in some circumstances, that is not the case here.

Id. at 252. The Court, however, cautioned:

We emphasize that there are certain limitations which apply to bank

employees similar to those placed upon real estate brokers. . . . The lay

bank employee may not give advice or opinions as to the legal effects of

the instruments he prepares or the legal rights of the parties. The bank

may not make any separate charge for the preparation of the mortgage

instrument.

Id. at 253.

Thus, in both Indiana Real Estate and Miller, the Court permitted nonlawyers to

fill out legal forms in situations in which the chance for legal error was low. The forms

were used in routine transactions in the course of the jobs for which the nonlawyers were

trained in Miller and for which the nonlawyers were both trained and licensed in Indiana

Real Estate, and the forms were prepared by lawyers for use in such transactions.

Immigration And Other Services Provided By Diaz

Diaz’s use of immigration forms is not analogous to the use of forms by non-

lawyers permitted by this Court in Indiana Real Estate and Miller. Immigration services

cannot be considered “routine transactions.” Rather, each case is unique and the

procedures can be complex. The choice of a form and the information to include in its

blanks can turn on subtle facts that may not be apparent to those without legal training.

Moreover, Diaz’s immigration services went far beyond the use of forms. She

held herself out as providing immigration services. She advised clients on many aspects

of immigration law, she wrote letters, motions, and appeals to immigration officials on

behalf of clients, and she accompanied clients to the immigration office. Beyond

immigration law, she ventured into drafting contracts, a pleading, and at least one will.

In many cases, her understanding of the underlying law was incomplete, her advice or the

documents she prepared were faulty, and her clients suffered.

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The Court also notes that Diaz promised absolute confidentiality to her clients.

However, because she is not an attorney, the sensitive information her clients disclose to

her regarding their immigration status and other matters is not protected by the attorney–

client privilege. The fact that she promised such confidentiality further suggests she was

holding herself out as a “notario,” rather than a “notary,” discussed in more detail below.

The Court is cognizant of the unmet needs of immigrants, particularly those from

Latin America, for aid with immigration problems and procedures. Because of the high

poverty rate of recent immigrants and the dearth of affordable legal counsel, an estimated

fifty to eighty percent of all non-citizens have unmet legal needs. See Anne E. Langford,

Note, What’s In A Name?: Notarios In The United States And The Exploitation Of A

Vulnerable Latino Immigrant Population, 7 Harv. Latino L. Rev. 115, 118 (2004).

According to a study of the civil legal problems among low-income, foreign-born

households, one in five Latino immigrants reported having sought help for a legal issue

from a non-attorney immigration consultant, many of whom use the misleading title of

“notario publico.” See id. at 122. The study noted a disproportionate use of “notarios”

by those whose immigration status was most precarious, including undocumented

immigrants and asylum-seekers. See id. at 123.

The answer to these unmet needs, however, is not permitting unqualified

practitioners to provide inadequate services. Incompetence in the complexities of

immigration law can have disastrous results because filing the wrong document, missing

a deadline, or misjudging the relief available to a client can mean the difference between

legal status and deportation (which, for asylum seekers, may carry the risk of death if

returned to their native lands). See id. Although some non-attorneys may provide

competent and welcome services to immigrant communities, see id. at 125, without any

licensing or oversight of non-attorney practice, clients must trust to luck when using such

services.

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It was perhaps in response to the vast unmet legal needs of immigrants that

federal law now allows for non-attorney “accredited representatives” associated with

qualified non-profit organizations to practice immigration law before BIA and the

Service. See id. at 126; 8 C.F.R. § 292.2 (2005). La Casa is such an organization. But

while accredited representatives are not lawyers, they are subject to qualification

requirements based on their experience and knowledge of immigration and naturalization

law and procedure, they are subject to federal rules of professional conduct and

discipline, and the organization for which they work must have at its disposal adequate

knowledge, information, and experience. See 8 C.F.R. §§ 292.2 & 292.3 (2005).

Although a state may not interfere with the federal government’s authority to permit non-

lawyers to practice before its agencies, a state “maintains control over the practice of law

within its borders except to the limited extent necessary for the accomplishment of the

federal objectives.” Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379, 402 (1963). This

Court expresses no opinion on whether any of the services offered by La Casa or those

who work for La Casa may exceed the scope of their federal authorization and thus

constitute the unauthorized practice of law in Indiana. The Court simply notes that Diaz

does not offer services as an accredited representative under the auspices of a qualified

non-profit organization. Her clients enjoy none of the protections such an arrangement

offers and she may claim none of the privileges. Her practice of immigration law appears

to be in violation of federal as well as state law.

Diaz’s Use Of The Titles “Notary Public” And “Notario Publico”

The requirements to become a notary public in Indiana are not stringent. An

applicant for a notary public commission must be at least eighteen years of age, a legal

resident of Indiana, and must secure an official bond in the sum of five thousand dollars

($5,000). See Ind. Code § 33-42-2-1(a) & (e) (2004). No specific education or training is

required. The notary public application, found on the website of Indiana’s Secretary of

State, is just four pages long, including instructions. See

http://www.in.gov/icpr/webfile/formsdiv/40889.pdf. A notary’s powers consist primarily

of certifying acknowledgments of deeds and other legal instruments, administering oaths,

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and certifying affidavits and depositions. See I.C. § 33-42-2-5 (2004). A notary public

may charge no more than two dollars ($2) for each notarial act. See I.C. § 33-42-8-1

(2004).

By contrast, in many Latin American countries “notarios publicos” are a select

class of elite attorneys, subject to rigorous examinations, regulation, and codes of

professional responsibility, who perform quasi-judicial and other functions, including

certifying and authenticating legal acts that they witness. See Langford, supra, at 116.

Some notaries public in the United States have exploited Latinos’ expectations about

their functions and legal knowledge, creating an illusion of expertise to mislead those

who depend on them. See id. Plying on the implicit misrepresentation of their

credentials, some notaries charge excessive amounts for services that should be free or

nominal in cost, in some cases destroying immigrants’ ability to pay for legitimate legal

assistance. See id. at 124. See also Milagros Cisneros, Legislative Development, H.B.

2659: Notorious Notaries-How Arizona Is Curbing Notario Fraud In The Immigrant

Community, 32 Ariz. St. L.J. 287 (2000); Alexandra M. Ashbrook, Note, The

Unauthorized Practice Of Law In Immigration: Examining The Propriety Of Non-

Lawyer Representation, 5 Geo. J. Legal Ethics 237 (1991).

Indiana is not the first state to be confronted with the misleading use of “notary

public” or “notario publico.” See, e.g., Florida Bar v. Lugo-Rodriguez, 317 So.2d 721

(Fla. 1975); McCarthy v. Panaccio, 49 Pa. D. & C.2d 501 (1969); Langford, supra;

Cisneros, supra. By 1999, eleven jurisdictions had enacted legislation specifically aimed

a curbing this practice. See Cisneros, supra, at 311. On July 1, 2001, the following

Indiana statute took effect:

A person who:

(1) is not an attorney in good standing admitted to practice law in Indiana;

and

(2) knowingly or intentionally:

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(A) advertises the person’s services in a language other than English;

(B) represents in the advertisement that the person is a notary, notary

public, notario, notario publico, or another designation that indicates in

a language other than English that the person is a notary public; and

(C) fails to conspicuously state in the advertisement, both in English

and in the language of the advertisement, that the person is not an

attorney in good standing admitted to practice law in Indiana;

commits a Class A misdemeanor.

I.C. § 33-42-2-10 (2004) (formerly I.C. § 33-16-2-10 (Supp. 2001), added by P.L. 64-

2001, § 1).

None of Diaz’s advertisements presented to the Commissioner contained the

disclaimer required by the above statute. At least one of Diaz’s advertisements could

have been published after the effective date of the statute and thus would have been in

violation of the statute. The statute notwithstanding, however, this Court finds Diaz’s use

of the title “Notary Public” or “Notario Publico” to be inherently misleading. One of her

business cards contained the title not once, but twice. The title was prominently

displayed after her name on the awning of her office. She displays her notary certificate

prominently in her office, akin to the manner one might display a diploma. Although

Diaz corrects people who refer to her as an attorney by telling them she is a notary public,

not an attorney, there is no indication Diaz corrects any misperception those people might

have about the authority that comes with that title in Indiana. There is no indication that

any substantial part of Diaz’s business involves legitimate services as a Notary Public,

and the fees she charges for her services are far above those permitted for notarial acts.

Under these circumstances, the Court concludes Diaz’s use of the titles “Notary Public”

and “Notario Publico” in advertisements, on business cards, on her office wall, and on

her awning constitutes the unauthorized practice of law. See Mittower, 693 N.E.2d at

558 (holding oneself out as an attorney by the use of misleading labels may constitute the

unauthorized practice of law).

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Conclusion, Injunction And Other Relief

The evidence clearly established that Diaz has engaged in the unauthorized

practice of law. This Court has jurisdiction to issue restraining orders and injunctions in

cases involving the unauthorized practice of the law. See IND. CONST. art. 7, § 4; I.C. §

33-24-1-2(b)(2) (2004).

The Court therefore enjoins Diaz from:

(1) selecting immigration forms for individuals seeking immigration

assistance;

(2) advising individuals both on how to fill in the blanks on immigration

forms specifically and on immigration or other legal matters generally;

(3) using the title “Notario” or “Notario Publico”;

(4) using the title “Notary” or “Notary Public” in advertisements (including

business cards and displays outside and within her office) without a conspicuous

disclaimer, in both English and Spanish, that she is not an attorney admitted to

practice law in any jurisdiction;

(5) offering or providing any services to any client related to immigration

without disclaiming, in English or Spanish (whichever is best understood by the

client), that she: (a) is not an attorney; (b) cannot tell individuals what

immigration forms they need; (c) cannot tell individuals which immigration

benefits they may be eligible for; and (d) cannot give advice on how to complete

an immigration form;

(6) drafting wills, contracts, pleadings, or other legal documents for clients;

and

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(7) permitting any person working for her to do any act in violation of this

injunction.

This injunction does not prevent Diaz from providing clients with translation and

other services that do not constitute the unauthorized practice of law, as long as clients

are advised of the limits of Diaz’s services consistent with the above injunction.

The costs and expenses of the hearing before the Commissioner shall be borne by

Diaz. See Admis. Disc. R. 24.

SHEPARD, C.J., and DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ.,

concur.

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