Updated 6-20-23. Rules for notarizing may vary from state to state, but common Notary mistakes still happen...from California to Florida...and are usually unintentional.
Michael Closen, Professor Emeritus at The John Marshall Law School in Chicago, Illinois, shares his insights about the common mistakes that land Notaries in legal trouble. He is also the author of the new book, “Professor Closen’s Notary Best Practices: Expert's Guide to Notarization of Documents.”
Prof. Closen, you have spent decades becoming one of the foremost experts in Notary-related legal issues in the country. What inspired you to dedicate so much time and energy to the world of Notaries?
One of my research assistants at the law school came in one day and asked me a question about Notary law and practice, and I didn’t know the answer. The two of us did some research and found that there was very little written about Notary law, ethics and best practices. That led the two of us to do something that should be done to correct this gap in the law and in the publications. That snowballed into 25 years of work in the Notary field.
It was that big gap that I had discovered. It was an interesting field and an important one, as we know. That’s why I got into it and have been doing it all this time.
How many court cases or disputes have you been involved with?
Over the last 25 years, I would estimate probably about 50 times I have been consulted in one form or another.
What are the most common issues that come up in these court cases?
There are some specific issues that come up all the time and probably account for at least 80 percent or more of all cases about which I have consulted.
One situation that happens tragically often is where an imposter manages to get a Notary to perform a notarization. There are some things that obviously have gone wrong in the identification process.
Identification has either been lacking altogether, and somehow a Notary has allowed the imposter to sign a document and obtain a notarization, or perhaps a Notary has been faced with a forged identification document and has been duped by that document. Unfortunately, there are situations where Notaries don’t inquire into the identification as much as they should have.
In the real world, imposters are around a lot. And with a lot of frequency, they get past Notaries. So we have to be very cautious as Notaries to try and prevent that.
The second setting is even more prevalent. Those are cases where document signers have been very elderly and/or quite ill. Sadly, there are many circumstances where people try to take financial advantage of the elderly. After it’s discovered by others, someone on the signer’s side of the matter will find out about the notarization and challenge it.
Apart from that, the other cases run the gamut, every conceivable thing that could go wrong has gone wrong.
Do you find that the Notaries involved in these cases knew they were doing something they shouldn’t? Or were they gullible and poorly informed about their duties?
In my experience, and I think this is the case across the board in reading hundreds of legal cases and hearing anecdotal accounts, rarely are Notaries guilty of intentional wrongdoing. In the great majority of cases, Notaries are simply unaware of proper procedures, a statute doesn’t clearly cover a matter or a Notary doesn’t understand what the best practice would be for a notarization.
The next largest group of cases are ones where Notaries are gullible. They are not diligent gatekeepers in protecting signers and protecting the public interest. They will occasionally allow sympathetic stories to convince them to take shortcuts or abbreviate the procedures that they should be employing to protect the notarization.
What can Notaries do to protect themselves?
The best two things Notaries can do to keep themselves out of legal disputes are Notary education and keeping a Notary journal. If Notaries learn the statutes and regulations — and understand that the statutes are incomplete and that they need to follow best practices to fill those gaps — they won’t make mistakes and won’t get into trouble.
The other thing to do is to document their diligence by keeping a Notary journal. If a Notary records every single notarization, and if there is a dispute, all of a Notary’s journal entries will go before a judge or jury. It won’t be just the entry for the one notarization, but their entire body of notarizations where they’ve shown time after time how diligent and thorough they have been.
What one thing would you like to say to every Notary in America?
I am trying to convey the message that notarization is very important. It is not child’s play. It is becoming more and more important and more complicated. Twenty years ago, we weren’t judging the mental awareness of document signers. Nowadays, Notaries need to do that. They need to assess whether signers are acting willingly.
In this day and age of document fraud and identity theft, we’ve got to be more and more cautious about identifying document signers. And documents are becoming more and more valuable. The transactions behind them are not just for a few dollars, but hundreds of thousands or millions of dollars. So what I’m suggesting is that Notaries ought to take that into account.
I also would like to emphasize to every Notary, regardless of what state or territory they reside in, that their state Notary laws and regulations are incomplete. No state’s statutes are complete. And in many cases they’re quite incomplete. So Notaries ought to have as much education as they can.
Rarely are Notaries guilty of intentional wrongdoing.
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