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By Charles Coffey, Senior Claims Counsel

Many essential tasks that we once took for granted are quite difficult during this time of required social distancing. Many lawyers and other practitioners rely on notaries on a daily basis for the execution of wills, documents transferring real property, and the swearing of witnesses. Thankfully, various states have taken affirmative actions to ensure that business can continue even in remote environments. What follows is a discussion of notarization requirements of the states in which The Bar Plan serves lawyers by providing lawyers’ professional liability policies.

Please note that this is a constantly developing issue and we recommend that you verify the information provided herein by reviewing your particular state’s statutes, rules of law, and/or executive/administrative orders.

Missouri Executive Order 20-08

On April 6, 2020, Governor Mike Parson signed Executive Order 20-08, which relaxed the requirement of many Missouri statutes that a signer personally (i.e. physically) appear before a notary.  As stated by the Press Release from the Governor’s Office, this order

“… allows for the use of audio-video technology to complete the personal appearance requirement protecting the health and safety of both notaries public as well as Missourians who otherwise would have been required to have close contact with the notary.”

There are various requirements set out in Executive Order 20-08, including the presentation of a valid photo ID, the  presence of the signer and the notary in the state of Missouri at the time of the notarization, and that the audio-video communication between the notary and the signer be live. This Executive Order is scheduled to terminate on May 15, 2020, unless revoked prior to this time or extended in whole or part.

At the outset, it is important to determine what type of document is being notarized, i.e. an electronic one or a physical one. In order to have the authority necessary to perform what the Secretary of State calls an electronic notarization, a person must already be a commissioned notary in the State of Missouri and must register with the state as an Electronic Notary. The parties must also use one of the electronic platforms approved by the Missouri Secretary of State to perform the notarization. These programs provide for the signer to sign electronically and the notary to affix their seal electronically.

If the document that is being signed is a paper one, the Executive Order does not require that the software used is approved by the Secretary of State. However, the software must allow “…for observation, direct interaction, and communication at the time of signing.” Additionally, the signer must ensure that the signed document is “…mailed or otherwise transmitted to the notary within five business days…” The notary then can affix their seal to the document and use language approved by the Secretary of State that the notarization was performed pursuant to Executive Order 20-08.

You can find Executive Order 20-08 at https://www.sos.mo.gov/library/reference/orders/2020/eo8

You can find more information about becoming an Electronic Notary at https://www.sos.mo.gov/ElectronicNotary

New Mexico Executive Order 2020-015

Like Missouri, New Mexico Governor Michelle Lujan Grisham has enacted Executive Order 2020-015, entitled “Order Temporarily Permitting Notarial Acts Through Audio-Visual Technology Under Certain Conditions.” This Order is similar to Missouri’s, in that the “presence” requirement is satisfied if the technology used provides for direct interaction between the notary, the signer,  and any required witnesses. However, the signer must transmit by fax or electronic means a legible copy of the signed document directly to any required witnesses and to the notary on the same day it was signed.  The notary then notarizes the document and transmits it back to the signer. This Order remains in effect until June 20, 2020.

You can find Executive Order 2020-015 at https://www.newmexico.gov/wp-content/uploads/2020/03/Executive-Order-2020-015.pdf

Remote Notarization in Indiana

Indiana has already enacted a statute allowing for remote notarization, and same was set to take effect July 1, 2020. However, the Secretary of State accelerated the implementation of the statute to March 31, 2020. A person must already be a commission notary in the state and then can apply to be a Remote Notary. Please note that remote notarization deals with electronic notarization through a specific platform provided by approved outside vendors. The outside vendors have not yet been identified and thus, at the time of the writing of this article, it appears that notarizations in Indiana still require in-person presence. Indiana does allow for notarization using electronic media, but this still requires physical presence.

However, please note that the Indiana Supreme Court has entered an order suspending the in person requirement in certain situations. This Order is in effect until further notice by the Court, and stated that its purposes was to relax the requirement that any actual or implied requirement that notaries, court reporters, and other persons qualified to administer an oath in the State of Indiana, must be in the presence of a witness for purposes of administering an oath for depositions and other legal testimony, so long as the notary or other qualified person can both see and hear the witness via audio-video communications equipment for purposes of readily identifying the witness.

You can read more about remote notarization in Indiana at http://iga.in.gov/legislative/laws/2019/ic/titles/033#33-42-17

Suspension of Tennessee’s Online Notary Public Act

The Online Notary Public Act, TCA 8-16-301 et.seq, took effect in Tennessee on July 1, 2019. It allows for “…a notarial act performed by means of two-way video and audio conference technology…” The Act provides that all other rules regarding notarization apply, and a person must be an active notary public to apply to be an online notary. Unlike other states, however, Tennessee does not name specific vendors that an online notary must use. Rather, the electronic platform must provide the online notary with:

  1. The technology to be used in attaching or logically associating an electronic notarial certificate, signature and seal to an electronic document;
  2. The technology to be used in conducting identity proofing and credential analysis;
  3. The technology to store and maintain a recording of the video and audio conference of the online notarization session.

However, on April 9, 2020, Governor Bill Lee signed Executive Order 26, which suspends the Online Notary Public Act. This Order allows for any notary to remotely notarize a document using “…real-time audio and visual communication…including, but not limited to…Skype, FaceTime, Zoom, Webex, and other similar communication technologies.” It requires, among other things, that both the notary and the signer be present in the state, that the identity of the signer be verified, and that the document contain a specific provision “…stating that it was executed in compliance with Executive Order No. 26…”  A document may be executed, witnessed, or notarized in counterparts or the original document can be physically notarized within 10 days. This Order expires May 18, 2020.

You can view the Online Notary Public Act by using the link on the following webpage: https://www.tncourts.gov/Tennessee%20Code

You can read Executive Order No. 26 at https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee26.pdf

Kansas Executive Order No. 20-20

Normally Kansas law requires the physical appearance of the signer before the notary. Like Tennessee, Kansas does allow for notarization using electronic means, but this still requires physical appearance before the notary.

However, on April 9, 2020, Kansas Governor Laura Kelly signed Executive Order No. 20-20. This Order suspends the personal appearance requirement of any Kansas statute if the notary “…performs a remote notarization via two-way audio-video communication technology…” It requires, among  other things, that the notary and signer both be physically present in the state, that the platform they are using provides for “direct, contemporaneous communication” between the notary and the signer, and that the signer be properly identified. Witnesses can also be remote, but the signer must transmit by fax or other electronic means a legible copy of the document for the witness to also sign no later than the day after the document is signed. The witness can sign the original document within 30 days of the remote notarization, provided that they were timely provided an electronic copy. The Order expires the earlier of May 1, 2020 or upon the expiration of the Kansas State of Disaster Emergency proclamation.

You can read more about the Kansas notary requirements at https://www.ksrevisor.org/statutes/chapters/ch53/053_005_0003.html

You can read Executive Order No. 20-20 at https://governor.kansas.gov/executive-order-no-20-20/

How do these executive orders and other laws align with lawyers’ professional liability policies?

In this unprecedented time, there is understandable concern with later challenges to the above-referenced orders and the acts performed by notaries thereunder. Most lawyers’ professional liability policies have exclusions related to improper acts by a notary insured. For example, Exclusion D of The Bar Plan’s policy states as follows:

III. EXCLUSIONS

THIS POLICY DOES NOT PROVIDE COVERAGE FOR ANY CLAIM BASED UPON OR ARISING OUT OF:

****

D. The Insured’s notarization of a signature, the signing of which was either not personally seen by the Insured or was not acknowledged to the Insured by the signer, or both.

While we are unable to opine on the effect of similar language in other carriers’ policies, please note that Exclusion D above contemplates excluding claims arising out of an Insured notary’s failure to properly witness a signature that he/she notarizes, as required by law. It does not require physical presence. Thus, rest assured that The Bar Plan’s policy does not exclude notarizations performed remotely as long as they are performed in accordance with laws and rules in effect at the time of the notarial act.

 

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