Don’t let notary statutes turn you into “that guy” during social distancing

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This past week, we’ve all been adjusting to the new normal of virtual society.  Yesterday morning, I hopped on a video call with my team to hammer out the day’s priorities.  I worked all day at my remote office, which is a fancy way of describing a monitor on top of my kitchen table.  Once the workday was done, I “hit the gym” via Zoom with my Crossfit buddies.  Then it was onto digital happy hour on Google Hangout.  And, of course, I’m writing this blog post from home.

If there’s one thing we’re learning collectively, it’s that much of what we do can be done at a distance.  But what about in a traditional field like the law, notorious for being stuck in its ways?  Unfortunately, vestiges of a pre-internet society remain embedded in our legal system, one of which being the concept of the notary.

How does one get a document notarized during this period of social distancing?  I wish the answer was this cute:

For starters, you may not really need a notary.  The universe of documents that actually require a notary is very small.  While state laws vary, generally speaking it includes real estate and testamentary instruments.  However, many legal documents end up with a notary seal slapped on them.  Guess why?

Ah yes, the legal field’s reason for everything.  So, you may find yourself working with, say, a template settlement agreement where there’s a notary block on the signature page.  Chances are, that notary block isn’t required…it’s just there, because reasons.

If you determine that your document doesn’t require notarization, there are plenty of remote signing options.  One of my personal favorites is HelloSign.

For affidavits in lawsuits, enter into a stipulation with opposing counsel.  A big category of documents requiring notarization is affidavits.  You may be able to get around this requirement through a good old fashioned stipulation.  If both parties agree to the admissibility of an affidavit without notarization, then you should be good.

Online notarization may be an option.  Google “online notary” and you’ll be bombarded with websites offering virtual notary services.  Instead of getting together in a room, the parties sign the document in the virtual presence of a notary via live video.  The question is whether this constitutes valid notarization under a particular state’s laws. In South Carolina, a valid notary “acknowledgement” requires that “the individual signed the record while in the physical presence of the notary and while being personally observed signing the record by the notary.”  Arguably, digital presence would not suffice.  Some states have enacted virtual notary statutes.  South Carolina has been considering the measure, but has not passed any legislation to date (get on it, guys!).  There is still a colorable argument that, under the Full Faith and Credit Clause of the United States Constitution, a state lacking a virtual notary law could be required to recognize a virtual notarization in another state as valid–but that’s another blog post for another day.

Hopefully these tips will help you keep keeping your distance.  And if you’re bored in self isolation, contact your legislator about enacting a virtual notary law!

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