Notaries and Their Functions
To understand the extent of permissible notary services, it is paramount to first understand notarial function. Under California notary law, notarization is defined as an officiation during the signing of a document, usually by the use of an official stamp ("notarial seal"), performed by a notary public (Government Code § 8201, subd. (b)). In other words, the primary purpose of notarization is to serve as a means for the impartial and independent verification of the identity of individuals signing an instrument , by means of interviewing the signers and observing their signatures and demeanor (Roddy v. Superior Court (1999) 69 Cal.App.4th 316, 318). The rationale behind notarial function is that a notary acts as a disinterested witness to deter fraud and forgery. Seemingly, having an impartial overseer to the signing process should promote legitimacy to the execution of documents and transactions.
Can Lawyers Serve as Notaries?
In most cases, attorneys are not prevented from notarizing documents. The State Bar of California Ethics Opinions 2000-101 and 2011-174 state that "merely notarizing a document is insufficient to constitute the provision of legal services in and of itself." However, notarizing real estate documents can be prohibited under California law. A California attorney may become a licensed notary public, but can run into difficulties when it comes to real property.
California law (Cal. Bus. & Prof. Code § 6205) prohibits an attorney who is acting as a notary from notarizing a document that contains a mortgage or deed of trust. Similarly, when notating such a document, an attorney who notarizes a document containing a mortgage, deed of trust, agreement of sale or conveyance for real property should not represent both parties to the transaction because they could be "deemed to have a conflict of interest."
When performing notarization duties outside of real property, an attorney must meet the same requirements as any other notary. They must complete an application, submit fingerprint cards, and pass an examination. Upon approval, an attorney will have to get a notary seal and notary journal. An attorney does not have immunity from civil liability arising from their actions as a notary, so they should also consider carrying errors and omissions insurance.
Why Lawyers Offer Notary Services
The convenience factor is obvious. Imagine a senior citizen who has mobility issues or a single parent without child-care assistance who needs to get several documents notarized before proceeding with an important transaction. They can save substantial time and energy by visiting their family attorney who already knows the details of their situation. Not only is this more affordable (often $15-100 per trip), it is usually a substantial time saver and avoids unnecessary hassle for the client. Most often, attorneys and clients already know each other well enough so that there is usually no need for an identification checklist or for any extensive communication. Since they are already familiar with each other, they are both generally much more comfortable during the transaction. Personal knowledge of the client can also help in risky situations. For example, the attorney can make sure that a senior is making an informed decision about appearing for a real estate closing or a bank transaction, when capacity is in issue. The attorney can make sure that the signer is not being unduly influenced by a third party to sign a deed or other document. Offering this additional service at a reasonable fee not only gives the attorney an extra source of income, but it can also be a good marketing tool for the attorney. The ability to combine notary services with other legal services provided at the same time can make it more economical and convenient for the client.
Restrictions/Limitations for Lawyer Notaries
Attorneys who wish to perform notary duties are subject to restrictions – by law, the rules of their state’s bar, and the American Bar Association. Some of the most pertinent limitations and restrictions for attorney notaries public are as follows:
Conflict: The ABA has a provision in its Formal Opinion 405 stating that an attorney, as a notary, must not notarize for a person whom he or she may be representing in a legal matter. These conflicts need to be disclosed to the clients he or she is representing and being an impartial notary is key. Speaking generally, ethical matters are best avoided.
Jurisdictional Limitations: Some states, like California, do not provide any special authority for attorneys to act as examiners of the document and check for the subscribing witness of the signer. If the signer is not present to sign the document, an attorney can review the document. Some states do not allow attorneys to notarize documents if they are interested in a legal decision. Attorneys may not act as witnesses and then notarize the document relating to the witness, but they are permitted to do notarization in addition to other services outside of the capacity of witnessing.
Confirming a Lawyer’s Notary Status
To determine whether an attorney can legally notarize documents, start by checking the state’s online notary database. Most states have a searchable, public database of all active notaries from which the public may request a verification. Check the Notary Public Administrator Directory at the National Association of Secretaries of State website for a link to the appropriate database for each state. Enter the attorney’s name and, if required, the attorney’s county of commission in the fields provided. The search results should show the attorney’s name, commission number and expiration date, and provide contact information for the issuing authority. For some states, the information is provided by letter of the law, and is therefore not what is commonly known as a "database . " If a search does not return the expected results, or to confirm the information found in a database search, verify the notary’s status with the appropriate state authority.
If you cannot conduct a search on the state’s notary website, ask the attorney for her notary commission number and the name and address of the authority that issued the notary commission. Then contact the authority directly to verify her status as an active notary for the state. If the search returns information confirming the attorney is currently commissioned in another state, and you are concerned as to whether she is authorized to perform notarial acts in your state, confirm with her state or local bar association whether she is an active member eligible to perform notarial acts in your state.
When a Lawyer’s Notarization Is Preferred
Certain legal documents may benefit from the specialized knowledge that a notary public may not have. For example, while a general durable power of attorney may be easily notarized, a real estate power of attorney (to grant another individual the authority to sell real property in Florida) requires certain statutory language to be included in the power of attorney and may require additional formalities. Adherence to these requirements is not discretionary and a failure to comply can invalidate the grant of power. In these circumstances, the use of an attorney who understands the statutory requirements for the execution of the document may be prudent.
Similarly, a requirement exists that all powers of attorney conveying an interest in Florida homestead must use specific statutory language and that the deed or writing must be recorded according to the formalities required of conventional documents. An experienced attorney would understand what it takes to have a power of attorney or deed conveying Florida homestead interest properly witnessed and recorded. Another example of a document where the attorney’s expertise may be beneficial is in the context of revocable and irrevocable trusts. A trust is not valid until it is funded with the assets intended to be held by the trust. For example, real property must be owned in the name of the trustee (not the settlor of the trust), and any mortgages on the property must be foreclosed before the beneficiary of the trust has access to that property. The attorney’s knowledge of the requirements for title to pass affects the employer’s willingness to accept the attorney’s execution of the form.
Conclusion: Making an Informed Choice
The use of attorneys as notaries can indeed represent a convenient and cost-effective option when it comes to the signing and witnessing of important legal documents. However, as with many areas of the law, there are important risks and considerations involved in the process. As a hypothetical scenario, imagine the attorney who serves as notary public fails to properly witness the signing of a document or even witnesses the signature of a person who did not actually appear before them to execute it. A major legal problem could arise with significant consequences. Simply because an attorney is authorized to act as a notary does not automatically absolve them from any mistakes made in this capacity. The consequences of such mistakes could lead to professional liability exposure and may open the attorney up to being held responsible for any sort of harm resulting from the inaccurate witnessing of documents. In short , these established boundaries and limitations of an attorney acting in a dual capacity are an important consideration for those seeking services of a legal nature. For attorneys considering utilizing their notary public status, there are also important logistics and practical considerations and potential downsides to be aware. For example, some law firms forego the option of having their attorneys serve as notaries altogether, since they may prefer to simply outsource this service to a third party and focus on their actual legal work. Before any actions are taken, it is therefore essential to have detailed information on what your particular jurisdiction allows when it comes to attorneys acting as notaries. From there, it is then possible to make an informed and well-reasoned decision about whether this is the best option for your or your legal practice.