Say “Yes” to Notaries
By Tami Kamin-Meyer
Your client just signed a lucrative contract to build a million widgets
that you spent hours negotiating. Your client is thrilled with your work,
and you’re about to enjoy a well-deserved vacation. You are just about
to stroll out of your office wearing a wide smile when your newly elated
client calls with a question that stops you dead in your tracks: “Does
it matter the signatures to the contract were not notarized?”
What? You didn’t have the signatures to the contract notarized?
Big mistake, says Tim Reiniger, executive director of the National Notary
Association in Pasadena, California. According to Reiniger, having a notary
public witness a signature is a “powerful risk management tool to
prevent fraud and identity theft.”
A notary public is a person with a special commission from a state or county
government that allows him or her to acknowledge the official witnessing
of another person’s signature on a document. According to Reiniger,
there are 4.5 million notaries in the United States. That figure does not
include the millions of lawyers nationwide who by virtue of being an attorney
are also vested with that authority. Each state maintains its own rules
about whether attorneys are automatically notaries.
He says having a contract signature notarized is important for a few reasons.
Chief among them is that under the Federal Rules of Evidence, a notarized
document is considered “self-authenticating.” The same is true
under the rules of evidence in effect in each state, although there are
a few states that don’t follow this norm. When a document is self-authenticating,
the signers of the contract do not need to testify in court to verify the
authenticity of their signatures. That saves a lot of time and money. Having
a document notarized is, says Reiniger, “a huge strategic advantage” in
litigation.
Although the duties of a notary public might seem simple to execute, they
are extremely important. First, notaries cannot attest to witnessing
a signature unless the signer signs the document in their presence.
To ensure the parties signing the document are the real people
who are supposed to do so, some states require signers to present
identification to the notary. The notary must also ascertain whether
people are signing the document voluntarily or under duress. This
is especially crucial when a senior citizen or someone with limited
English skills is signing a document, says Reiniger. In some states,
notaries are required to maintain a journal of the documents they notarize.
The journal details the type of identification presented to the notary and
a basic description of the document they notarized.
While in the distinct minority, a handful of states require notaries to
attend educational courses prior to becoming commissioned. States imposing
these restrictions are North Carolina, Pennsylvania, Florida, Missouri,
Oregon, and California. Reiniger says he sees this educational requirement
a trend in the industry, one he wholeheartedly supports. “Notaries
should receive basic training about their duties,” he says.
He also notes that simply by virtue of being lawyers, attorneys in 11 states
are granted notarial authority, although with a few caveats. For example,
in Missouri, a state that requires its notaries to undergo educational training
prior to becoming commissioned, lawyers wishing to also become notaries
are not exempt from that educational requirement. However, in North Carolina,
another state that requires precommission education for notaries, attorneys
are exempt from participating in those same courses. In New Hampshire, state
laws grant broad yet not total notarial authority. However, in Ohio, New
York, New Jersey, Connecticut, Louisiana, Maine, North Dakota, and Wisconsin,
lawyers are granted full notarial authority.
In one state, California, notaries are also required to obtain the thumbprint
of signers in a notary journal, but only in three specific situations. They
are when a deed is signed, when a quitclaim deed is signed, or when deeds
of trust affecting real property are notarized.
“Prosecutors love it because it leaves an evidence trail,” says
Reiniger. Having the thumbprint of a person who fraudulently signed a contract
gives “absolute proof of the frauder’s identity,” should
that become an issue, he says. Journal entries require a detailed description
of the notarial act and are even considered public records.
The determination of venue is another important reason behind
getting contractual signatures notarized, says Aronson. Venue
identifies the “proper or possible place for a lawsuit
to proceed, usually because the place has some connection either
with the events that gave rise to the lawsuit or with the plaintiff
or defendant,” Aronson says.
However, venue is not the deciding factor for where a case
is tried. A court decides the jurisdiction of a case, which
determines who has the legal authority to preside over a legal
matter. Therefore, jurisdiction may be different from the venue,
says Aronson.
Therefore, for many reasons, it’s important to say yes
to having signatures to a contract notarized. That simple act
could go a long way in saving your client money and aggravation
and you a huge malpractice payout.
Tami Kamin-Meyer is an Ohio attorney and writer.
© Copyright 2008, American Bar Association.
