The Ethics of Notarization

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

Many of us are notaries and have been for years. We notarize documents without a second thought. However, just as you should regularly read articles and attend CLE regarding paralegal ethics, you should also regularly review educational materials provided by the Secretary of State with your official notary commission.
One of the prohibitions that is often overlooked is that a notary who is not an attorney cannot determine which type of notarial certificate should be attached to a document. That would be considered UPL (unauthorized practice of law). If you receive a document that doesn’t include a notarial certificate, always let your attorney determine which type certificate should be included.
A notary should also be familiar with the various types of notarial certificates and the differences between them. In particular, a notary should aware of the notarial certificates that require the person signing the document to swear or make an oath. These certificates include the following:

• Affidavit
• Affirmation (affirming the truth of the document, not an oath)
• Oath
• Verification

Any notarial certificate that includes the term sworn, swear, or affirm indicates the notary should have the person raise his right hand and swear to whatever is in the notarial certificate. If a notary neglects to actually have the person swear to a notarial certificate that calls for it, the validity of the notarial certificate and the document to which it is attached may be called into question.

An attorney friend told me recently of a real estate transaction that may be invalidated because the paralegal notary, like most of us, did not specifically ask the person signing the document to swear to what was in the notarial certificate. The opposing counsel is now questioning the validity of the signature on this document, and the validity of the entire transaction, because of this oversight. Imagine being deposed or sitting in the witness box and having to explain why you didn’t require the person to swear. Insisting that “everyone does it that way” is probably not going to come across very well, especially to a jury. A possible defense to this is that when the person signed the document, he should have read everything, including the notarial certificate, and known that he was swearing or making an oath. However, that may not be adequate, particularly if the person signing the document does not have much experience signing legal documents of that sort.

You will probably need to discuss how best to handle these situations with your attorney. Your attorney may want to make a distinction between notarizations for attorneys in your firm, who should be expected to know they are swearing or making an oath, and clients and witnesses, who may need to be asked to raise their right hands and actually swear. Of course, if in doubt, it is always better to be safe. Have all those individuals signing notarial certificates requiring the signer to swear or take an oath do just that.

Ellen Lockwood, CLAS, is the Chair of the Professional Ethics Committee of the Legal Assistants Division, a position she has held since 1997. She is Treasurer of LAD and a past president of the Alamo Area Professional Legal Assistants in San Antonio.