Notary code

7/30/2019 Notary code

1/39

The

NoTary Public

codeof

ProfessioNalresPoNsibiliTy


2/39

Published as a public service by the National Notary

Association for all Notaries and the public they serve.

July, 2009


3/39

ii TheNoTary Public codeof ProfessioNal resPoNsibiliTy


4/39

Introduction...............................................................................................................................................................v

The Guiding Principles..........................................................................................................................................1

Guiding Principle I ................................................................................................................................................. 3

Article A: Refusal to Notarize

Article B: Fees

Article C: Dignity of OfficeArticle D: Advertising and Endorsement

Article E: Ability and Availability to Serve

Guiding Principle II ................................................................................................................................................ 7

Article A: Improper Gain

Article B: Improper Personal Interest

Article C: Avoiding Appearance of Partiality

Article D: Proper and Improper Influence

Article E: Notarization for Employer

Guiding Principle III ............................................................................................................................................10

Article A: Physical Presence

Article B: Screening for Identity and Willingness

Article C: Screening for Awareness

Article D: Qualification of Witnesses

Guiding Principle IV ............................................................................................................................................14

Article A: Certificate Mandatory

Article B: Fraudulent Certificate

Article C: Certificate Completion and Attachment

Article D: Potentially Fraudulent Documents

Article E: Fraudulent Notarization or Transaction

Guiding Principle V..............................................................................................................................................17

Article A: Precedence of Law

Article B: Commission of Employee

Guiding Principle VI ..............................................................................................................................19Article A: Prescribing Notarial Act

Article B: Prescribing or Preparing Document

Article C: Providing Unauthorized Advice

Article D: Providing Unauthorized Services

Guiding Principle VII...........................................................................................................................................21

Article A: Affixation of Seal

Article B: Control of Seal

Article C: Disposal of Seal

Guiding Principle VIII .........................................................................................................................................23

Article A: Record of Notarial Acts

Article B: Public InspectionArticle C: Disposal of Journal

Guiding Principle IX.............................................................................................................................................26

Article A: Needless Intrusions

Article B: Unauthorized Use of Information

Guiding Principle X ..............................................................................................................................................28

Article A: Seeking Knowledge

Article B: Dispensing Knowledge

Article C: Maintaining Standards

The Drafting Commission ..................................................................................................................................30

CONTENTS

The NoTary Public codeof ProfessioNal resPoNsibiliTy iii


5/39

iv TheNoTary Public codeof ProfessioNal resPoNsibiliTy


6/39

TheNoTary Public codeof ProfessioNal resPoNsibiliTy v

Purpose o te Code

The Notary Publics key role in lending integrity to important transactions of commerceand law necessitates sound standards for the performance of notarial acts.

While many occupations pose professional and ethical norms for their practitioners, theneed for guidelines is particularly acute with persons holding the office of Notary because oftheir unusual status as both public and private functionaries. In few offices is the practitionermore subject to conflicting pressures. Yet, in few offices are the guiding statutes so scant andinadequate.

The purpose ofThe Notary Public Code of Professional Responsibility is to guide NotariesPublic in the United States when statutes, regulations and official directives fall short.

The standards in this Code are of two types. The majority are principles, policies andpractices that have proven over the years to be effective in helping Notaries perform theirprimary function of detecting and deterring fraud; in minimizing fraud, these standards alsowork to reduce the Notarys exposure to lawsuits. The remainder are standards derived fromthe conviction that a public officer in a democracy must serve all persons equally, withoutregard to such distinctions as race, nationality, ethnicity, citizenship, religion, politics, lifestyle,age, disability, gender or sexual orientation.

Because the acts of Notaries affect individual rights and property under both civil andcriminal law, it is imperative that professional standards for Notaries be widely acknowledgedas just, fair and well-developed. To that end, the standards in this Code were drafted with inputfrom representatives of occupational fields with a large constituency of Notaries Public. Alsocontributing were state and local officials who regulate the activities of Notaries, as well aslegal, business and surety experts.

Orgniztion o te Code

This Code of Professional Responsibility is based upon 10 widely accepted GuidingPrinciples that clarify the multiple roles of the Notary Public in the United States. They aregeneral rules for responsible conduct.

Each Principle in turn embraces particular Standards of Professional and Ethical Practicefor the Notary. Each Standard works to maximize the public utility of the notarial office, whileminimizing the Notarys exposure to liability.

The Standards of Professional and Ethical Practice are exemplified by Illustrations posingproblematic situations that are common or typical for Notaries. Details are provided to help thereader visualize each situation.

For each Illustration, The Ethical Imperative or The Professional Choice indicates thecourse of action best exemplifying the pertinent Guiding Principle and Standard of Professionaland Ethical Practice.

The Ethical Imperative identifies an action that, if not taken, would constitute a clear andserious violation of the Notarys fundamental role as an impartial witnessing official, as definedin the Guiding Principles.

The Professional Choice identifies an action that, if not taken, would undermine or lessen

the Notarys effectiveness as a fraud-deterring public servant.The 10 Commentary sections supplement the Code by explaining the drafters views,concerns and rationales in shaping important provisions, and by discussing certain pertinentother matters not directly addressed by the Code.

Bsis o te Code

The Guiding Principles and Standards of Professional and Ethical Practice are thedistillation of decades of interaction between the National Notary Association and thousandsof Notaries from every walk of life and from every state and U.S. jurisdiction. They address

INTRODUCTION


7/39

vi TheNoTary Public codeof ProfessioNal resPoNsibiliTy

INTRODUCTION

the common problems, issues and questions encountered by Notaries, particularly matters ofconflicting interest.

The Principles and Standards reflect the conviction that Notaries must operate in abusinesslike fashion, basing their actions on proven practices of business and government, andalways carefully documenting their official activities.

Sttutor Requireents

In some jurisdictions, a particular Standard of Professional and Ethical Practice may alreadybe a requirement of statute, such as the common but not universal legal mandate to keep arecord of all notarial acts performed. In most cases, however, the Standards do not carry theforce of law. Therefore, throughout the Code, the word shall does not necessarily denote alegal obligation for the Notary, but it always constitutes a compelling recommendation.

In rare cases, the Standards may contradict provisions in a states Notary statutes oradministrative regulations, particularly when these rules stipulate procedures for disposal ofthe seal or journal upon termination of the Notarys commission. In these instances, of course,pertinent statutes and regulations must be obeyed by the Notary.

For the overwhelming majority of Notaries, no statute or administrative rule will preventadherence to any and every Standard of Professional and Ethical Practice in the Code.

Epoer Expecttions

The Standards frequently will contradict not the provisions of law but the policies, practicesor expectations of the Notarys employer. This is often the case when an employer wishesto discriminate between customers and noncustomers by providing or withholding notarialservices that the Code stipulates should be available to all.

Notaries should understand that the Code is a model for preferred conduct and not a gaugeof unlawfulness or criminality.

Uses nd Beneits o te CodeThis Code may serve as a tool to guide and educate not only Notaries Public, but also

lawmakers, public administrators, private employers and any users of notarial services.It is a moral imperative for progressive change, and a catalyst for improving notarial

statutes and conventions in commerce and law.Widespread implementation of the Code will reduce fraud and litigation.Any Notarys adherence to the Codes Standards brings confidence that he or she is acting

in accord with the highest professional and ethical traditions of the notarial office.Widespread adherence to the Standards by Notaries in the United States will engender

heightened respect and recognition for their notarial office in the enterprises of government andbusiness, both in this nation and abroad.

Revision o te Code

The Notary Public Code of Professional Responsibility is not intended to be static andunchangeable. Its organization allows the separable Standards to be added, deleted or amendedwith little or no disruption of other elements in the Code.

While the 10 Guiding Principles of the Code are sufficiently general to embrace considerablechange in the duties and practices of the Notary office without amendment to their currentform, it is likely that the Codes 85 Standards may in time need revision or supplement toaccommodate technological developments.

Periodic review and revision of the Code are intended.


8/39

Guiding Principes

IThe Notary shall, as a government officer and public servant, serve all of the

public in an honest, fair and unbiased manner.

II

The Notary shall act as an impartial witness and not profit or gain from anydocument or transaction requiring a notarial act, apart from the fee allowed by

statute.

IIIThe Notary shall require the presence of each signer and oath-taker in orderto carefully screen each for identity and willingness, and to observe that eachappears aware of the significance of the transaction requiring a notarial act.

IVThe Notary shall not execute a false or incomplete certificate, nor be involved withany document or transaction that the Notary believes is false, deceptive or fraudulent.

V

The Notary shall give precedence to the rules of law over the dictates orexpectations of any person or entity.

VI

The Notary shall act as a ministerial officer and not provide unauthorized

advice or services.

VIIThe Notary shall affix a seal on every notarized document and not allow

this universally recognized symbol of office to be used by another or in anendorsement or promotion.

VIII

The Notary shall record every notarial act in a bound journal or other securerecording device and safeguard it as an important public record.

IXThe Notary shall respect the privacy of each signer and not divulge or use

personal or proprietary information disclosed during execution of a notarialact for other than an official purpose.

XThe Notary shall seek instruction on notarization, and keep current on the

laws, practices and requirements of the notarial office.

NOTaRy PUBlIC CODE Of PROfESSIONal RESPONSIBIlITy

The NoTary Public codeof ProfessioNal resPoNsibiliTy 1


9/39

2 TheNoTary Public codeof ProfessioNal resPoNsibiliTy


10/39


Standards of Professional and Ethical Practice

Article A: Refusal to Notarize

I-A-1: Refusal without Due CauseThe Notary shall not refuse to perform a lawful and

proper notarial act without due cause.

Illustration: The Notary is asked by a stranger to notarizethat persons signature on a document. However, the

Notary is hesitant to notarize for any unknown individual

because of a presumed increased likelihood of fraud and

liability.

The Ethical Imperative: As a public officer and servant, the

Notary notarizes the strangers signature after identifying this

individual, if no improprieties are requested or detected.

I-A-2: Refusal for Reasonable SuspicionThe Notary shall refuse to notarize if the Notary has

knowledge, or a reasonable suspicion that can be articulated,that the transaction is unlawful or improper.

Illustration: The Notary is asked by a stranger tonotarize that persons signature on a document. As proof

of identity, the stranger presents a single identification

card, a state drivers license. The Notary notices that the

photograph on the license is raised from the surface of the

card and appears to overlay a state seal and the signature

of a DMV official.

The Ethical Imperative: The Notary refuses to notarizethe strangers document, since there is strong evidence

that the ID has been tampered with and bears a false

photograph, and that the stranger is an impostor.

I-A-3: Undue Cause for RefusalThe Notary shall not refuse to perform a lawful

and proper notarial act because of the signers race,nationality, ethnicity, citizenship, religion, politics, lifestyleage, disability, gender or sexual orientation, or because ofdisagreement with the statements or purpose of a lawfuldocument.

Illustration: The Notary is asked by a stranger to notarizethat persons signature on a document. While identifying

the stranger, the Notary notes that this person is a member

of an ethnic minority group. The Notary has heard that

most persons in this ethnic group are untrustworthy

through stories that family and friends have told over the

years. The Notary hesitates to perform the notarization.

The Ethical Imperative: The Notary notarizes the strangers

document, if no improprieties are requested or detected

Ethnicity here is irrelevant and, by refusing, the Notary

may become liable for violating the strangers civil rights.

I-A-4: Improper Refusal Due to Nonclient StatusThe Notary shall not refuse to perform a lawful and

proper notarial act solely because the signer is not a client orcustomer of the Notary or the Notarys employer.

GUIDING PRINCIPlE I

The Notary shall, as a government officer and public servant, serve all of thepublic in an honest, fair and unbiased manner.

CommentarY

GENERALGiding Principle I ses he one or he enireCode. By ideniying he Noary as a pblic oicial, he Principle makes clear ha a Noary Pblic has cerain obligaion

o he general pblic, and ms lill hose obligaions in a air, hones and consiionally accepable manner. Conseqenly, many o heCodes85 Sandards direc Noarieso exece heir oicial dies consisen wih he demands p pon pblic oicers.

PuBLIC OffICIAL StAtuSNoaries have he power o impar an oicial imprimar o a docmen or ransacion. there are a plehora o jdicial opinions ha declare Noaries are pblic oicer

(See, e.g., Britton v. Nicolls, 104 u.S. 757, 765 (1881); Werner v. Werner, 526 P.2d 370, 376 (Wash. 1974); andCommercial Union Ins. Co. v. Burt Thomas-Aitken Const. Co.230 A.2d 498, 499 (N.J. 1967).) B pblic oicial sas is dieren or a Noary han or many oher pblic oicials. unlike some pblic oicials,e.g., eleced oicers, appoinedadminisraors or policemen, a Noary is no a governmen employee,per se. this disincion can have ar-reaching ramiicaions, especially in he area o personal liabiliy

usally Noaries are no aorded he sovereign immniy proecion roinely available o pblic oicials acing wihin he scope o heir ahoriy. Indeed, in some jrisdiciohe enabling sae ideniies he Noary as a qasi-pblic oicial(see, e.g., Kan. Stat. ann. 53-101; and Mo. Rev. Stat. 486.220.3) and in ohers he same resl has beereached by cor decision (see, e.g., Transamerica Ins. Co. v. Valley Natl Bank, 462 P.2d 814, 817 (Ariz. C. App. 1969); andEly Walker Dry Goods Co. v. Smith, 160 P. 898900 (Okla. 1916)). these classiicaions, however, are primarily or liabiliy prposes, and do no derac rom he cenral hesis ha a Noary is a pblic oicial empowered he saes o perorm speciied dies.

the Principle ideniies he Noary as a pblic servan becase noarial services are rendered o he pblic a large nder he ahoriy o sae saory rles. thPrinciple ses he pblic servan designaion o reinorce he view ha Noaries are imporan ncionaries who are obligaed o serve individal members o he pblAlhogh noarial acs benei he pblic a large by osering reliance on varios ypes o docmens and acs, Noaries neverheless are disingishable rom oher pblservans whose primary obligaions are o he pblic as a whole, insead o individal members. Addiionally, he draers recognize ha a sbsanial majoriy o saecommissioned Noaries are employees whose noarial services are only incidenal o heir principal job dies. for some o hese Noaries, obligaions o heir employers, josie locaions removed rom pblic access, or boh, raise imporan isses concerning heir abiliy o serve members o he pblic a large. theCodeaddresses his problemconsisen wih he view ha, absen special sae legislaion o he conrary, Noaries are pblic and no privae servans. (SeeSandard I-4-A and accompanying Commenary.

ARtICLE A: Resal o Noarizethe Sandards inerpre he Principle consisen wih he role expeced o a pblic oicial. they are drawn rom heModel Notary Act, Secion 3-103(b), which reads, A

Noary shall perorm noarial acs in lawl ransacions or any reqesing person Conseqenly, Sandard I-A-1 saes he overarching proposiion ha a Noary shold never reo ac based pon he Noarys personal inclinaion or bias. As a pblic servan, he Noary is obligaed o perorm noarial services or all members o he pblic, regardles


11/39


Illustration: The Notary operates a business. A strangerwalks in and requests notarization of a document. The

Notary is reluctant to take time away from business to

notarize for anyone but customers.

The Ethical Imperative: After identifying the stranger,

the Notary notarizes the document, if no improprieties

are requested or detected. Notaries are commissioned

to serve the public at large, not just the patrons of a

particular business. While no document signer is justifiedin demanding that a Notary drop everything to perform

a notarial act, the Notary should try to accommodate

the request for notarial services within a reasonable

time. However, for any sudden request that would be

particularly time-consuming or disruptive to business (e.g.,

notarize 100 documents immediately), it is reasonable for

the Notary to reschedule the services to a more convenient

time or to refer the signer to another nearby Notary

available to perform the acts at once. Accommodating the

publics need for notarial services is paramount for the

publicly commissioned Notary.

Article B: Fees

I-B-1: Improper Assessment of FeeThe Notary shall not base the charging or waiving

of a fee for performing a notarial act, or the amount of thefee, on the signers race, nationality, ethnicity, citizenship,religion, politics, lifestyle, age, disability, gender or sexualorientation, or on agreement or disagreement with thestatements or purpose of a lawful document.

Illustration: The Notary is asked by a stranger tonotarize that persons signature on an affidavit for a ballot

initiative the Notary opposes. The Notary is inclined to

punish this proponent of the initiative by charging for

the notarization, even though the Notary has never before

charged for notarizing.

The Ethical Imperative: The Notary notarizes the strangers

affidavit without charging a fee. If it has been a consistent

policy not to charge for performing notarial acts, the

ethical Notary will not assess a fee as a punitive measure

against a political opponent. The publicly commissioned

Notary must strive to serve the public evenhandedly; thus

the best policy is for all to be charged the same, or for

none to be charged. However, the Notary may waive the

fee for ill or impoverished persons or for other charitable

or pro bono causes.

I-B-2: Improper Assessment Due to Nonclient StatusThe Notary shall not base the charging or waiving

of a fee for performing a notarial act, or the amount ofthe fee, on whether the signer is a client or nonclient, ora customer or noncustomer, of the Notary or the Notarysemployer.

Illustration: The Notary operates a business. A strangerwalks in and requests notarization of a document. The

Notary performs the notarization but wants to discourage

future notarial services for noncustomers that take time

away from business. Though never before charging fornotarizations, the Notary ponders whether to charge the

stranger and to impose a policy of charging noncustomers

but not charging regular customers for notarial services.

The Ethical Imperative: The Notary does not charge

the stranger for the notarization. Because Notaries are

commissioned to serve the public evenhandedly, the

ethical Notary does not punish persons who do not

patronize a particular business by charging a fee for

notarial services that are offered free to patrons of the

same business. All should be charged the same, or none

should be charged.

Article C: Dignity of Office

I-C-1: Dignity Befitting Public Office

o any signers belies or personal aribes. Mos sae saes are silen on his isse. Many jrisdicions merely ahorize or empower Noaries o perorm speciic acs(seee.g., aRK. Code ann. 21-14-104; Colo. Rev. Stat. 12-55-110; and tex. Govt Code 406.014), which can be inerpreed o mean Noaries are no reqired o honor all reqesthere are, however, noable excepions. (See, e.g., Utah Code ann. 46-1-8(2), providing a noary shall perorm noarial acs in lawl ransacions or any reqesinperson; and Cal. Govt Code 8205(a), imposing he dy o a Noary Pblic, when reqesed o perorm acs ahorized in he secion.) Someimes Noaries arspeciically given discreion in exercising heir ahoriy. (SeeIowa Code 9E.8, allowing a Noary o exercise reasonable discreion in deciding wheher or no o perormnoarial services; and Conn. Gen. Stat. 3-94, providing ha a Noary shall no nreasonably rese o perorm a noarial ac.And compareN.M. Stat. ann. 14-12-1 and 14-12-10, he ormer secion authorizing he Noary o perorm varios noarial acs b he laerrequiringhe Noary o perorm proess.)

Alhogh Noaries serve he pblic, Sandard I-A-2 makes clear ha a paramon ncion o he Noary is o deer rad. ths, i he Noary knows or has reason believe ha a ransacion is illegal or improper, he or she shold rerain rom providing noarial services.(AccordGa. Code ann. 45-17-8(b)(1).) the Illsraion o SandardI-A-2 applies he Sandard o an imposor-signer siaion.(Note, i he Noary proceeds, he or she may be liable o hird paries injred by he radlen ransacion.See, e.g.va. Code ann. 47.1-26; and Tutelman v. Agricultural Ins. Co., 25 Cal.App.3d 914 (1972). I he Noary acally knows he ransacion is radlen, providing noarial serviceconsies a criminal ac. See, e.g.,n.C. Gen. Stat. 10A-12; and n.M. Stat. ann. 14-12-18.)

the Codeakes he posiion ha he Noary canno se personal bias as he basis or deciding wheher or no he ransacion is ained wih an irreglariy. the Sandais wrien o be as expansive as possible in ideniying poenial biases. O pariclar noe is he proscripion agains sing saemens made in or he prposes or an oherwlawl docmen as he basis or resing o provide noarial services. Nowihsanding he goal o deerring rad, he Sandard does no anicipae ha a Noary will make independen invesigaion o he ransacion. theCodemerely posis ha a Noary shold rese o p his or her oicial seal o approval on a ransacion ha he Noary hareason o believe is radlen or oherwise illegal. the Noary is expeced o exercise he same care as wold an ordinary, reasonable person nder like circmsances. thhe Codeneiher imposes a special sandard o care nor reqires legal raining or Noaries. this posiion has saory sppor. (SeeIdaho Code 51-111(1), providing Noariesare o se reasonable care in lilling heir general dies.)

Perhaps he mos roblesome isse concerning a Noarys decision eiher o render or wihhold services arises in he case o he employee-Noary. Qie oen employedicae ha he employee-Noary only provide noarial services or he employers cliens or csomers. Argably his pracice has been approved by saory rle (seeCalGovt Code 8202.8), b i is no a niversally acceped posiion (seeIowa Code 9E.8).

Absen saory ahoriy o he conrary, heCodeadops he view ha Noaries as pblic servans are reqired o serve all individals who reqes noarial serviceundersandably his posiion raises a nmber o diicl logisical problems. As demonsraed in he Illsraion or Sandard I-A-4, here is no expecaion ha a Noary eihbe on-call or a he beck and call o he pblic. the operaing principle is reasonable availabiliy. (See14 Op. Ay. Gen. 250 (Cal. 1949).)

the hornier side o his isse is wheher or no he pblic has access o he Noary-employee. theCodes posiion is well-sied o siaions wherein he Noaryemployee works in an esablishmen convenienly open o he pblic or oher commercial prposes, sch as a drg sore, saionery spply shop or spermarke. B in qapblic (e.g., banks or real esae oices) or privae (e.g., law irms or bsiness oices) venes, applicaion o he Sandard is more problemaic. the draers ndersand hNoary-employees are no a libery o esablish bsiness policy. thereore, hey canno be reasonably expeced o jeopardize heir jobs by disobeying employer direcives h


12/39


The Notary shall conduct himself or herself with adignity befitting a public officer and in a manner that doesnot bring disrepute or discredit upon the notarial office.

Illustration: The Notary is employed in an office withone other Notary, both notarizing affidavits for coworkers.

Each affidavit requires administration of an oath to the

affiant. The Notary has heard the colleague say to affiants

at the start of an oath, I know this is stupid, but will you

please raise your right hand...; jokingly, the colleaguemay also have the signer swear by placing a hand on a

magazine. The Notary considers whether to be similarly

flippant about notarial duties in order to fit in better with

coworkers.

The Ethical Imperative: The Notary refrains from adopting

the officemates attitude toward notarization. The Notary

cautions the colleague that such improprieties undermine

the effectiveness of the notarial act, discredit the office of

Notary and may jeopardize or invalidate the document.

The Notary decides to report any further such improper

liberties with official duties to a supervisor and, if

the actions persist, to the state Notary-commissioning

authority.

Article D: Advertising and Endorsement

I-D-1: Undignified AdvertisementThe Notary shall not advertise notarial services in an

undignified or excessively commercial manner.

Illustration: The Notary advertises in the telephonebook a willingness to notarize Anytime, Anywhere.

To compete against other traveling Notaries, the Notary

considers running a new ad that would state, I Will Not

Be Undersold! and, Im Crazy Ill Go Anywhere At

Any Hour!

The Ethical Imperative: The Notary does not place the new

advertisement, since it treats the public office of Notary

in both an undignified and an excessively commercial

manner.

I-D-2: MisrepresentationThe Notary shall not misrepresent the notarial office;

claim or advertise powers, authority, advantages or rights thatthe office does not give; nor use language that is likely tomislead non-natives of the United States about the powers ofthe office.

Illustration: The Notary owns a shop in an area witha large concentration of Latin-American immigrants

The Notary wants to put a sign in the shop window to

advertise notarial services, but ponders whether it should

read Notary or Notario.

The Ethical Imperative: The Notary does not advertise

using the Spanish termNotario Publico orNotaria Publica

because this is the title of an attorney-like officer in Latin

nations and it may mislead immigrants into thinking that

U.S. Notaries have the same powers and are entitled to the

same fees.

I-D-3: Endorsement ImproperThe Notary shall not use or allow use of the Notarys

seal or title (Notary Public) to endorse, extol or denigratea product, service, program, proposal, individual, candidateorganization or contest, or to corroborate or disprove claimsabout them.

Illustration: The Notary is a volunteer for a charity thatwill raffle off a new car to raise funds. So that the raffle

is perceived as honest and aboveboard, the president

of the charity wants to advertise that the contest will be

Notary-Supervised and Guaranteed, using the name ofthe Notary.

The Ethical Imperative: The Notary does not allow the

inclde providing noarial services only or he employers csomers. theCodedoes no encorage Noary-employees o disregard heir employers policies, even ones hamay seem inappropriae, hogh sch employees are rged o ry aclly o edcae heir employers. Also, in hose insances where he Noary-employee works inresriced area, i will be eiher impossible or impracicable or he pblic o gain access o he Noary-employee. throgh is silence, heCodedoes no seek o inerere inhese siaions. Indeed, he Inrodcion saes ha heCodeis designed o be a model, no a mandae, or preerred condc. Noneheless, heCodeadheres o he generaview ha Noaries are pblic servans and shold be available o perorm heir services or he pblic a large. By ocsing on his problem, he draers hope appropriae saahoriies will ac o clariy he siaion in heir respecive jrisdicions.

ARtICLE B: feesMos sae Noary saes esablish a schedle ha ses o he allowable charges or he dieren noarial services ha may be provided. Generally here is n

reqiremen ha a Noary charge or providing a noarial service. (AccordGa. Code ann. 45-17-11(c).) Charging excessive ees, however, can be gronds or having onecommission revoked. (SeeohIo Rev. Code ann. 147.13.) Alhogh no addressed in heCode, preerred pracice sggess ha a ee schedle be posed in he viciniy whernoarial services are provided. (Accord5 Ill. CoMp. Stat. 312/3-103(b); and del. Code. ann. i. 4, 310(c).)

Someimes a Noarys decision on wheher o charge a ee may carry an improper bias. Sandard I-B-1 posis ha personal bias shold never be sed as a basis deermining wheher or no a ee shold be charged. this is consisen wih he view ha a Noary may no se personal bias in deermining wheher or no o render noaservices. (the Illsraion demonsraes he applicaion o he Sandard on his maer.)

Sandard I-B-2 addresses a dieren ype o discriminaory pracice, ha o basing he decision o charge a ee on wheher or no he signer is a clien o eiher he Noaor he Noarys employer. this is a common problem becase Noaries end no o be exclsively in he rade or bsiness o being a Noary. Consisen wih he view haNoary is a pblic servan, he Codeadops he posiion ha he Noary shold rea all members o he pblic evenhandedly. I he Noarys primary bsiness csomers ano charged or noarial services, hen non-csomers shold be reaed similarly.

Again, as is he case wih providing noarial services, Noary-employees may be sbjec o employer policies ha preclde hem rom ollowing he Sandard. thIllsraion o Sandard I-B-2 speciically addresses Noaries who can conrol or se policy. these Noaries are admonished no o discriminae on he basis o csomer saBy no providing a corresponding Illsraion or Noary-employees sbjec o heir employers dicaes, draers o heCodeacily accep ha discriminaory pracices imposepon he Noary are an nornae realiy and ha imposing an ehical obligaion on Noary-employees in sch sensiive and enos posiions may be nair. Each scNoary-employee ms decide wheher o olerae sch discriminaion, aemp o edcae he employer, dey he policy, or volnarily erminae employmen.

In developing Aricle B, he draers were no nmindl o he raionale spporing csomer sas ee discriminaion. there are coss associaed wih providing noarservices ha ms be paid (e.g., licensing ees, spplies and los bsiness ime). Bsinesses ms absorb hese coss and accon or hem in some way. I is no nreasonabo consider he expenses and cos o doing bsiness and allocae hem o he general bsiness overhead. these coss are hen bil ino he pricing o goods and serviceoered by he bsiness. ths, csomers in a sense pay or he Noary-relaed ees, b non-csomers do no. from his perspecive, i may be regarded as boh appropriaand air o charge non-csomers or he noarial services. failing o do so cold be arged as discriminaory o he csomers who are paying or he non-csomers oherwi


13/39


notarial office to be used to lend seeming integrity or

credibility to a contest, regardless of the nobility of its

cause. Guaranteeing and certifying the integrity of contests

is not an authorized notarial act. Further, the Notary

should not notarize any document (e.g., an affidavit

signed by the president of the charity) with knowledge

that the notarial seal or title will be used in a solicitation

or endorsement, since some persons associate any

involvement by a Notary with official government

certification.

Article E: Ability and Availability to Serve

I-E-1: Resignation if ImpairedThe Notary shall resign from office if any permanent

change in the Notarys physical status would prevent orsignificantly impair the proper performance of notarial duties.

Illustration: The Notary is a retiree whose eyesight hasdeteriorated considerably in recent years. Even with

glasses, the Notary is only able to read if the letters are

unusually large and bold; distinguishing faces is very

difficult.

The Ethical Imperative: The Notary must immediately

resign the commission, since such poor eyesight

prevents the careful scrutinizing of ID cards and faces

required for proper performance of notarial duties and

protection of the public from document fraud. Any

physical condition that prevents a Notary from directly

and personally gleaning information about a signers

identity and about the circumstances of a particular

notarization, without reliance on an assistant or

intermediary to make such determinations, is a

disqualifying one.

I-E-2: Refusal for Lack of KnowledgeThe Notary shall decline to notarize if the Notary

does not feel sufficiently knowledgeable or competent toperform properly any requested notarial act.

Illustration: The Notary is asked to execute a protestby a stranger who presents a technically-worded notarial

form. When the Notary admits to having no idea how to

complete the form, the stranger says, Dont worry, Ill

walk you through it.

The Ethical Imperative: The Notary declines to notarize

without the knowledge to proceed competently and

confidently. Only a specially trained or experienced

Notary who is familiar with pertinent provisions of

the Uniform Commercial Code should undertake the

technically complex notarial act of protest.

I-E-3: Reporting Pertinent ChangeThe Notary shall report to the commissioning agency

any pertinent change in personal status including changeof name or address, conviction of a felony, or adjudicated

liability in a lawsuit involving a notarial act affecting theNotarys availability to the public and the repute of theNotary as a person of integrity.

Illustration: The Notary is planning a permanent move tolive and work in another state. There are two years

remaining in the commission term.

The Ethical Imperative: The Notary reports the move to the

state Notary-commissioning authority and resigns the

commission. State officials must know the whereabouts of

all Notaries and be kept apprised of their availability to

serve the states citizenry.

ree receip o he noarial services. Nowihsanding he economic appeal o his argmen, heCodealls back on is general posiion ha Noaries are pblic servans anshold deal wih all members o he pblic similarly. Addiionally, i can be arged ha a privae bsiness ha has a Noary available or is own ses a all imes shold por he convenience by reaing all sers eqally. the Sandard does no sgges he employer shold provide ree noarial services or he pblic; i only asks ha all membeo he pblic be reaed in he same manner.

ARtICLE C: Digniy o Oicethe Sandard adops he view ha Noaries are obligaed o compor hemselves in a proessional manner. Noaries oen play an essenial role in validaing docmen

or ransacions. I is imperaive ha he Noary ndersand ha hose acions ha end o denigrae he oice may limaely impac he eicacy o a docmen or ransacA lippan aide or disrespec or he oice shold no be conenanced.

ARtICLE D: Adverising and Endorsemen

the Codedoes no disapprove o Noary adverisemens, b rowns pon hose ha are no done in a proessional and asel manner. As a pblic oicial, he Noashold no resor o hckserism in an eor o generae noarial bsiness.the Codeakes a mch sronger sance agains misrepresenaion and endorsemens. Noaries are only empowered o perorm speciied acs. Misrepresening ho

powers is a serios breach o ones proessional obligaion and, in some insances, may violae he law. (See, e.g., oR. Rev. Stat. 194.162; and tex. Govt Code ann. 406.017(d).) O pariclar concern is he ac ha many oreign conries coner broader ahoriy pon heir Noaries han is given o Noaries in he unied Saes. theCodemakes clear ha any aemp by a unied Saes Noary o deceive non-unied Saes ciizens ino believing he Noary can perorm cerain acs no ahorized by sae sais nehical. (SeeIllsraion or Sandard I-D-2 andCal. Govt Code 8219.5 (prohibiing decepive non-English adverising o noarial services).)

Any improper se o he noarial oice is wrong. theCodeocses on he endorsemen qesion. I concldes ha endorsemens and esimonials are improper, anadmonishes Noaries no o make hem. this posiion has boh saory and reglaory sppor. (See, e.g., Utah Code ann. 46-1-10; and waSh. adMIn. Code 308-30-160.)

ARtICLE E: Abiliy and Availabiliy o ServeSandards I-E-1 and -2 reinorce he proessional role o he Noary. the Illsraions are sraighorward. A Noary whose healh makes proper noarizaions problema

is advised o resign he commission. A Noary who does no ndersand he echnicaliies o a speciic noarial service is direced no o ac. these are commonsensreasonable resricions ha are beyond dispe.

Sandard I-E-3 addresses availabiliy, b ses his erm o mean physical presence. A Noary who leaves he jrisdicion in which he or she is commissioned o servas a Noary is obligaed o resign he commission. this direcion is in accord wih a nmber o saes ha rle on his maer. (See, e.g.,oKla. Stat. i. 49, 9; and Idaho Code 51-115(2).)


14/39



Article A: Improper Gain

II-A-1:Actual or Potential Gain ImproperThe Notary shall decline to notarize in any

transaction that would result, directly or indirectly, in anyactual or potential gain or advantage for the Notary, financialor otherwise, apart from the fee for performing a notarial actallowed by statute.

Illustration: The Notary sells machinery and relatedmaintenance contracts, which must be notarized. The

Notarys receipt of a sales commission depends on theemployers receipt of a notarized contract signed by the

customer. After convincing a customer to purchase a

contract, the Notary then often quickly notarizes the

customers signature out of fear that the persons mind will

change, even though there usually are other employees

available who could notarize.

The Ethical Imperative: The Notary decides not to notarize

while profiting financially from a transaction, letting an

uninvolved person perform the required notarization. The

roles of impartial witness and advocate are incompatible.

Notaries should never take actions to deter signers from

changing their minds; one of the major purposes of

notarization is to ensure that signers are acting freely.

II-A-2: Commission or Fee Improper

The Notary shall not notarize for a client or customerwho will pay the Notary a commission or fee for the resultingtransaction, apart from the fee for performing a notarial actallowed by statute.

Illustration: The Notary is an attorney preparingdocuments for an ailing client who will pay a fee for the

task. Several of the documents require notarization. Since

the attorney must go to the home of the bedridden client

to secure the needed signatures, there will be no paralegal

or secretary on hand to notarize the papers. The attorney

considers the propriety of serving as Notary in this

situation.

The Ethical Imperative: The Notary decides not tonotarize, lest it be falsely alleged that a financial interest in

the documents resulted in undue influence or the

overlooking of lack of mental capacity. Instead, the

attorney arranges to have a truly impartial Notary visit the

clients home to notarize the documents.

Article B: Improper Personal Interest

II-B-1: Notarization of Own Signature ImproperThe Notary shall not notarize his or her own

signature.

Illustration: The Notary is about to sign an insuranceaffidavit of loss for a fire in the Notarys house. At the end

of the document is a jurat with blank space for a Notarys

GUIDING PRINCIPlE II

The Notary shall act as an impartial witness and not profit or gain from any documentor transaction requiring a notarial act, apart from the fee allowed by statute.

CommentarY

GENERALGiding Principle II ennciaes he Noarys primary role: being an imparial winess. the Principle is consisen wih oher oicial inerpreaions on his poin. (See

e.g., Notary Public Information, 2nd ed., Wis. Sec. o Sae (1994), which reads, A noary pblic iso serve he pblic as an imparial winess ) the Noary is irs anoremos an imparial winess. I is he Noarys imparialiy ha lends credence o oher paries acions, wheher i be signing a docmen or some oher paricipaion in ransacion. Imporanly, he Principle does no sgges ha a Noary garanees he genineness o he paries inenions or re perormances. the Noary only servas a winess o oher paries presen acions wih respec o a docmen or ransacion. (for an early jdicial prononcemen spporing his proposiion,see Coffin vBruten, 95 S.W. 462 (Ark. 1906).)

In order o ensre imparialiy, he Principle mandaes ha a Noary no provide noarial services in any siaion where he Noary wold inancially proi or oherwibenei rom he noarized docmen or ransacion. In his respec he Principle mirrors he rle ond in preerred legislaion. (See, e.g., Model Notary Act, Secion 3102(2), which disqaliies a Noary rom acing when any benei, apar rom he saory ee, wold be received. Several saes provide similar resricions.See, e.g.

W. va. Code 29C-3-102.) the prohibiion does no apply o ees allowed by sae or rendering noarial services.

ARtICLE A: Improper Gainthe Sandards, hrogh heir Illsraions, demonsrae a variey o ways in which a Noary cold improperly gain rom providing a noarial service. the Sandard

make clear ha he Noary shold rerain rom acing i a benei wold low eiher direcly or indirecly o he Noary. ths, he Sandards embrace he noion ha a Noashold no ac i a close relaive raher han he Noary himsel or hersel will gain rom he ransacion. frhermore, he Principle ses he word gain o spplemen proand conemplaes ha a Noary shold rerain rom acing i he or she wold receive any advanage or benei, inclding non-inancial ones, rom he ransacion. thmessage is clear. the only way o ensre imparialiy is o make sre he Noary wold have no reason whasoever o provide services, oher han o lill his or heobligaions as a pblic servan. By ailing o ollow his pracice a Noary will nnecessarily creae acal or perceived conlics o ineres and breaches o ehical condc

the Illsraion or Sandard II-A-1 provides a simple example o how a Noary cold improperly proi rom a noarized docmen. Aer highlighing he Noaryconlic o ineres, he Illsraion sresses he poin ha []he roles o imparial winess and advocae are incompaible. Alhogh he conlic in he Illsraion appeasraighorward, here noneheless may be some ahoriy or he Noary o ac. (See, e.g., 5 Ill. CoMp. Stat. 312/6-104(a); and N.C. Gen. Stat. 10A-9(c)(2).) Irrespeciveo any conervailing view, he Codeadops he posiion ha ehical concerns dicae a Noary ake all reasonable seps o avoid a conlic o ineres, nowihsanding hac ha he acion a isse may oherwise be legal.

Sandard II-A-2 addresses a more direc conlic o ineres. the Illsraion presens a siaion in which he Noary will acally receive a ee or acing in a capacoher han a Noary in a ransacion ha reqires he Noary o render noarial services. the gravamen o he problem is ha here is a grea likelihood he Noary will more ineresed in seeing he ransacion compleed han in ollowing proper noarial procedre. this is so becase he noarial ee will be insigniican as compared o h


15/39


signature and seal. The Notary ponders whether the

insurance company will mind or even notice if the affiant

and the Notary are the same person.

The Ethical Imperative: The Notary finds another person to

notarize the signature. There is no greater breach of the

Notarys requisite role as impartial witness than

notarizing ones own signature. Indeed, the very concept

of notarizing for oneself is as much a contradiction in

terms as marrying oneself or pardoning oneself.

II-B-2: Notarization of Cosignature ImproperThe Notary shall not notarize a signature on a

document that the Notary has cosigned.

Illustration: The Notary and the Notarys business partnerneed to have their signatures notarized on a document.

Aware that notarizing ones own signature is improper, the

Notary ponders whether to notarize the partners

signature.

The Ethical Imperative: The Notary does not notarize the

partners signature because, as a cosigner, the Notary has

an obvious personal interest in the document that isincompatible with a requisite impartial role. The two

partners arrange to have another Notary notarize the two

signatures.

II-B-3: Notarization of Document Naming Notary ImproperThe Notary shall not notarize a document that bears

the name of the Notary or of a close relative, as definedbelow in Standard II-B-5.

Illustration: The Notary is asked by a friend to be thenamed agent on a document giving the Notary authority

to make health care decisions for the friend in case of

severe illness. The friend then asks the Notary to notarizethis same document.


because, being named in the document as the individual

who is thereby given certain life-and-death decision-

making powers, the Notary has an obvious personal

interest in it that is incompatible with a requisite impartial

role.

II-B-4: Notarization of Personal Document ImproperThe Notary shall not notarize a document that will

affect or involve the Notarys personal affairs.

Illustration: The Notary is informed by the Notarys

roommate that the roommate will receive the gift of acondominium from a grandmother. Promising that the

Notary may live in one of the bedrooms rent-free, the

roommate asks the Notary to visit the grandmother to

notarize her signature on the gift-deed.


because the Notary will personally benefit from the

transaction. Such a beneficial financial impact on ones

personal affairs is incompatible with the Notarys requisite

impartial role. The roommates arrange to have an

uninvolved Notary visit the grandmother.

II-B-5: Notarization for Close Relative Improper

The Notary shall decline to notarize the signatureof a close relative or family member, particularly a spouse,parent, grandparent, sibling, son, daughter or grandchild ofthe Notary, or a stepchild, stepsibling, stepparentstepgrandparent or stepgrandchild of the Notary.

Illustration: The Notary is asked by the Notarys fatherto notarize a document that specifies desired medical

treatment in the event the father becomes unable to

make such decisions. The Notary is not mentioned in the

document.


and asks the father to have a Notary who is unrelated andtruly disinterested notarize the document. It will thereby

be rendered less open to challenge and the charge that

undue influence was exerted on the signer by a family

member.

remneraion o be had in he Noarys oher capaciy. the conlic perhaps mos visibly arises wih aorney-Noaries, b real esae brokers and oher Noaries who servcliens also can become involved as dal-capaciy acors in ransacions.

the basis or he posiion aken in he Codeis he recogniion ha i is diicl o reain imparialiy when one has an ineres in he ransacion. theCodedoes nosgges ha being a dal-capaciy acor ipso factobreaches a dy. the Codeis concerned wih he risk ha i will happen. the ear is ha he Noarys oher ineres he ransacion may move he Noary o be less rigoros in ollowing reqired noarial procedres, sch as applying he reqisie proo o ideniy sandard. this, in rcan lead o an increased nmber o legal challenges o noarized ransacions a pariclarly nornae conseqence given ha one o he beneis o a propnoarizaion is o validae a ransacion in a way designed o minimize re dispes.

the conlic isse is perhaps mos conroversial in he case o aorney-Noaries. Many aorney-Noaries will noarize a cliens docmens or ransacions in whiche aorney represens he clien. the conlic is readily apparen. Since, mos probably, he aorneys ee will exceed he saory Noary ee, here is a greaer inanc

incenive or he aorney o see he ransacion compleed, han here is o comply sricly wih proper noarial procedres. this is no o say ha he mere presence oconlic will resl in bad noarizaions. Acally, o he conrary, i is qie likely ha he aorney will know he clien beer han wold anoher Noary. ths, one o principal dies o a Noary, proving ideniy, is probably beer accomplished by he aorney-Noary or a clien, han by a Noary o whom he clien is nknown. B hCodeis no overly concerned wih he Noarys personal knowledge o he cliens ideniy. Presmably every Noary wold ake he necessary seps o veriy he signerideniy. the greaer isse is wheher he aorney-Noarys inancial incenive will resl in a ransacion ha does no bes serve he clien and hose who rely pon hnoarizaion isel. the Codeonly views he siaion in he conex o he Noary-clien relaionship. Qesions concerning he aorney-clien relaionship are governed bhe appropriae rles o aorney ehics.

there is saory ahoriy or boh aorneys and ohers o noarize docmens or heir cliens. (See, e.g.,Cal. Govt Code8224; and Kan. Stat. ann. 53-109(c).Noneheless, he Codeseeks o impose an ehical mandae ha will eliminae he risks inheren in conlic siaions. the limae goal is no o penalize he dal-capacacor, b o beer serve he pblic by garaneeing more reliable ransacions ha are less sscepible o legal challenge.

ARtICLE B: Improper Personal IneresSandards II-B-1 hrogh -5, and he Illsraions hereo, are designed o reinorce he view ha imparialiy is compromised when he Noary has a personal inere

in he ransacion o be noarized. the Sandards cover a wide range o poenial conlics, rnning he gam rom he obvios (Sandards II-B-1 and -2: noarizing oneown name as eiher sole or cosigner) o he less eviden (Sandard II-B-4: noarizing a docmen ha may och pon he Noarys personal aairs even hogh he Noais neiher a signer o nor a pary named in he docmen). Each Sandard has saory sppor. (See,generally, Conn. Gen. Stat. 3-94g; Idaho Code 51-108(2) hrogh(4); and va. Code ann. 47-1.30.)


16/39


Article C: Avoiding Appearance of Partiality

II-C-1: Compromise of ImpartialityThe Notary shall decline to notarize in any

transaction that would impugn, compromise or call intoquestion the Notarys impartiality or propriety, or has thepotential for doing so.

Illustration: The Notary is asked by the godmother of theNotarys children to notarize a document that will create a

trust fund to benefit the children. The godmother will

endow the trust with her own funds. The Notary is not

mentioned in the document.

The Ethical Imperative: The Notary declines to notarize,

since impartiality and undue influence may otherwise

become issues in a transaction that will greatly benefit

the Notarys own children. The Notary asks the

godmother to have an uninvolved person notarize the

document.

Article D: Proper and Improper Influence

II-D-1:Avoidance of Influence in Lawful TransactionThe Notary shall not attempt to influence a person to

sign or not sign, to act or not act, nor to proceed or notproceed in any lawful transaction requiring a notarial act thatis to be performed by the Notary.

Illustration: The Notary is asked by an acquaintance tonotarize that persons signature on documents related to

the purchase of a restaurant. Aware of the high failure

rate of such businesses, the Notary considers whether to

urge the acquaintance to reconsider the decision to

purchase.

The Ethical Imperative: The Notary notarizes the

documents, if no improprieties are requested or detected.

It is not the role of the impartial Notary to argue for or

against a signers participation in a lawful transaction.

II-D-2: Refusing Unlawful TransactionThe Notary shall refuse to participate and shall

attempt to influence a person not to sign, not to act or not toproceed in any unlawful transaction requiring a notarial actthat is to be performed by the Notary.

Illustration: The Notary is asked by an acquaintanceto notarize that persons signature on an affidavit for an

immigration petition. The affidavit contains false

statements that the Notary knows are fabrications by thesigner.

The Ethical Imperative: The Notary refuses to notarize and

thereby abet the unlawful act of perjury. The Notary urges

the acquaintance not to sign an untruthful affidavit.

Article E: Notarization for Employer

II-E-1: Notarization by Employee ProperThe Notary who is an employee shall be

permitted to notarize for any officer, executive, supervisorcoworker, subordinate, client or customer of the employing

organization, as long as the Notary will not gain acommission, bonus or other consideration as a result of thenotarial act, other than the regular salary or hourly wage andthe statutory notarial fee.

Illustration: The Notary is employed in an office andevery day notarizes the signature of a supervisor on

dozens of documents. The Notary wonders whether it is

proper to be notarizing for the person who supervises

ones work and signs ones paycheck.

The Ethical Imperative: As long as the in-house Notary

receives no special compensation as a result of any

notarization and is not asked to notarize improperly, thatNotary may notarize company documents.

the Code also singles o wo oher qesionable aciviies. Sandard II-B-5 admonishes he Noary no o noarize he signare o a close relaive. A simiprohibiion can be ond in he saes o a nmber o jrisdicions. (See, e.g.,Me. Rev. Stat. ann. i. 4, 954-A; andFla. Stat. ann. 117.05.) the Sandard ideniies anmber o speciic close relaionships, b he preerred view is o rea he lis as illsraive raher han inclsive, and consider any close relaionship as being wihhe prview o he rle. Sandard II-B-3 warns he Noary agains noarizing a docmen ha conains he name o eiher he Noary or any close relaive o he Noa(Accord5 Ill. CoMp. Stat. 312/6-104(b).) Boh Sandards are jsiied on he heory ha he siaions presened consie a conlic ha may compromise he Noaryabiliy o ac imparially.

ARtICLE C: Avoiding Appearance o ParialiySandard II-C-1 is in a sense a cach-all provision designed o preserve he inegriy o he noarial ac. I calls or he Noary o rerain rom acing in any insanc

where o do so wold raise he appearance o a conlic ha cold compromise he Noarys inegriy. Like Caesars wie, he Noary ms be no only above reproach, babove he hogh o reproach. (AccordConn. Gen. Stat. 3-94a(7)(B) (deining Noary miscondc o inclde any acion agains pblic ineres).)

ARtICLE D: Proper and Improper InlenceSandard II-D-1 presens he simple general rle ha a Noary shold no inlence he person seeking he noarizaion. to do so clearly compromises he Noary

imparialiy. (AccordUtah Code ann. 46-1-8(1).) Sandard II-D-2 provides a proacive excepion o he rle ha posis a Noary may properly ry o inlence someonelse rom execing a proposed illegal ransacion. theCodedoes no conemplae ha he Noary will make deerminaions as o he legaliy or illegaliy o any speciransacion. the Sandard is direced o obvios irreglariies apparen on he ace o he docmen o be noarized.

ARtICLE E: Noarizaion or EmployerSandard II-E-1 addresses he someimes conroversial isse o wheher or no a Noary may render noarial services or he Noarys employer. following he lea

o he saes ha speciically permi his acion (see, e.g.,Ind. Code 33-16-2-7; and S.C. Code ann. 26-1-120), he Codesimilarly condones sch noarizaions. Howeverhe Sandard spplies an imporan caveat. the noarizaion is nehical i he Noary receives addiional special compensaion or acing. (AccordW. Va. Code 29C-3102.) Receip o any addiional paymen over and above he Noarys normal salary and Noary ee consie a conlic and poenially compromises he Noaryimparialiy. Also, Noaries who are bank employees, sockholders, oicers or direcors are advised o review local law o deermine hose siaions wherein hey arprohibied rom rendering noarial services or heir employers or corporaions. (SeeoR. Rev. Stat. 194.100(b); aRIz. Rev. Stat. ann. 41-32A and B; and Ga. Code ann 45-17-12(b) (each ahorizing Noaries o ac provided hey are no a pary o he insrmen o be noarized).)


17/39

10 The NoTary Public codeof ProfessioNal resPoNsibiliTy


Article A: Physical Presence

III-A-1: Insisting That Signer AppearThe Notary shall insist that the signer and any

witness identifying the signer be present before the Notaryat the time of the notarization.

Illustration: The Notary is telephoned by a client whohas just signed and mailed several documents for the

Notary to notarize without personal appearance. You

know my signature, so there shouldnt be any problem,the client says over the telephone.

The Ethical Imperative: The Notary declines to perform a

telephone notarization without the physical presence of

the signer, since it would be a clear violation of the law,

even though the Notary feels relatively certain about the

identity, volition and awareness of the signer.

Article B: Screening for Identity and Willingness

III-B-1: Three Identification MethodsThe Notary shall carefully identify each signer

through either personal knowledge, at least one reliableidentification document bearing a photograph, or the sworn

word of a credible witness.

Illustration: The Notary is approached by a friend and astranger identified by the friend as a business associate.

The friend requests notarization of the associates

signature on a document, but is not involved in the

transaction. When the Notary asks the associate for

identification, the friend becomes indignant that you

wont take my word as my bond.

The Ethical Imperative: The Notary continues to insist

either that the associate produce a reliable form of

identification bearing a photograph or that the friend be

formally sworn in as a credible witness vouching for the

associates identity.

III-B-2: Deterring Undue InfluenceThe Notary shall not notarize for any person if the

Notary has a reasonable belief that can be articulated that theperson is being bullied, threatened, intimidated or otherwiseunduly influenced into acting against his or her will or interest.

Illustration: The Notary is called to the hospital room ofa patient to notarize that persons signature on several

documents. The patient appears disinterested in the

documents and expresses a desire to be allowed to sleep.

Also present is the patients spouse, who insists that the

patient first attend to signing the documents. The spouse

places a pen in the patients hand and directs it to the

signature space on one of the documents, but the patient

makes no effort to sign.

CommentarY

GENERALGiding Principle III prescribes appropriae condc on a nmber o inerrelaed isses ha, aken ogeher, address he very essence o noarizaion. Some o he pracice

addressed are mandaed by sae in mos jrisdicions. ths, heCodeonly serves o reinorce hem. Oher isses, pariclarly regarding he proper role, i any, he Noary shoplay in deermining a signers capaciy, are more problemaic. Since mos noarial sae is silen on hese isses, heCodeakes a more proacive posiion wih respec o hem

Sandards III-A-1 and III-B-1 principally resae he acceped pracice necessary or a proper noarizaion. Sandards III-B-2 and III-C-1 hrogh -3 address he Noaryobligaion o assess he capaciy o he person or whom he noarizaion is perormed. Wheher or no a Noary is reqired o be concerned abo capaciy and he ramiicaiono imposing sch a reqiremen have proven o be a conroversial sbjec. theCode adops a posiion ha orces he Noary o ake a hoghl, proessional approach noarizaions, and recognizes ha a Noary may exercise some discreion wih respec o wheher or no he noarizaion shold be perormed. Sandards III-D-1 hrogh -7 oer hNoary gidance on how o properly handle noarizaions ha involve he se o winesses conirming he ideniy o he person who signed he docmen o be noarized.

ARtICLE A: Physical Presencethe Codemandaes ha he Noary reqire he physical presence o a signer or any person serving in a winess capaciy. the se o shall makes his a mandaory chargthe se o insis leaves no room or discreion. Physical presence is he only reliable way a Noary can veriy he ideniy o he signer or winess. this veriicaion is he essence he noarial ac isel, and is roinely reqired by sae. (See, e.g.,n.J. Rev. Stat. 46:14-2.1(b); tex. CIv. pRaC. & ReM. Code ann. 121.004; and MICh. CoMp. lawS 565.264.failre o mee his direcive is no only nehical, b probably nlawl as well. (See, e.g., S.D. CodIFIed lawS 18-1-11; and n.C. Gen. Stat. 10A-12(b).)

ARtICLE B: Screening or Ideniy and WillingnessSandard III-B-1 reminds he Noary ha he ideniy o every signer ms be carelly esablished. Indeed, some jrisdicions impose a higher sandard o care or provin

ideniy han or perorming oher noarial ncions. (See, e.g.,Idaho Code 51-111(1).) the applicable sae in every jrisdicion reqires proper ideniicaion. Some saeenmerae he dieren ypes o accepable ideniicaion (see, e.g.,Cal. CIv. Code 1185; and Fla. Stat. ann. 117.05(5)), ohers merely call or saisacory evidence (see, e.g.ohIo Rev. Code ann. 147.53; and Iowa Code 9E.9.6). the Sandard emphasizes ha he Noary ms properly ollow he sae-imposed rles. the key word is properly. thIllsraion makes clear ha alhogh a signers ideniy can be proved by a credible winess, he winess ms ormally swear o he signers ideniy. the ac o esablishing hideniy o and swearing in he winess becomes he noarial ac. As sch, he Noary ms perorm he ac in conormiy wih esablished rles o law. A persons ideniy cannproperly be esablished by he nsworn esimony o a winess, regardless o how highly regarded or well-known he winess is o he Noary.

theCodesaes ha reliable ideniicaion is accepable proo o ideniy. theCode, however, neiher speciies nor aemps o deine wha is reliable ideniicaion. Noarieare presmed o know wha consies accepable proo o ideniicaion nder he law o heir respecive jrisdicions. for hose Noaries who do no, he Sandard implicily direhem o ascerain wha is reqired.

GUIDING PRINCIPlE III

The Notary shall require the presence of each signer and oath-taker in orderto carefully screen each for identity and willingness, and to observe that eachappears aware of the significance of the transaction requiring a notarial act.


18/39


The Ethical Imperative: The Notary respects the patients

wish to sleep, promising to return later and to notarize if

the patient appears alert and willing to sign the

documents.

Article C: Screening for Awareness

III-C-1:Awareness Essential in SignerThe Notary shall not notarize for any person if the

Notary has a reasonable belief that can be articulated that theperson at the moment is not aware of the significance of thetransaction requiring a notarial act.

Illustration: The Notary is called to the home of anelderly person to notarize that individuals signature

on several documents. The Notary is introduced to the

would-be signer by the persons relative. Acting in a

childlike manner, the elderly person appears disinterested

in the documents. Though the relative urges the Notary to

act, the Notary is unable to get a coherent response to

simple questions regarding the notarial act (e.g., Is that

your signature, and have you signed this document

willingly?).

The Ethical Imperative: The Notary does not notarize the

documents, since the persons conduct indicates a strong

likelihood that the individual is not at the moment capable

of responsible action.

III-C-2: Coherent Communication NecessaryThe Notary shall not notarize for any person unable

to communicate coherently with the Notary at the time ofnotarization.

Illustration: The Notary is called to a nursing home tonotarize documents for a bedridden patient, whose friend

is also present. The patient is awake and sitting up, with

both documents signed and resting on a tray table.

However, the patients speech is slurred and the individual

is not coherently responsive to the Notarys greeting and

questions. The friend urges the Notary to notarize.


because, without clear and direct two-way communication

with the signer, the Notary cannot be sure of the

individuals awareness. The Notary must not rely on an

interpreter who may have a motive for misrepresenting

the signers condition or intent.

III-C-3: Direct Communication NecessaryThe Notary shall not notarize for any person with

whom the Notary cannot directly communicate in the samelanguage, regardless of the presence of a third-partyinterpreter or translator.

Illustration: The Notary is approached by a client and astranger who does not speak English, but offers a foreign

passport as proof of identity. The client says the stranger

wants to have a signature notarized on an English-

language power of attorney authorizing the client to

conduct business on the strangers behalf. With no

knowledge of the strangers language, the Notary must

rely on the client to communicate.

The Ethical Imperative: The Notary declines to notarize for

the stranger, since there can be no certainty of this

individuals intent or awareness without direct

communication. Further, the client has a clear interest in

the transaction that compromises reliability as a truthful

interpreter. The safest policy would be to direct the two to

a Notary who speaks the strangers language or to the

nearest consulate of the strangers country.

Article D: Qualification of Witnesses

III-D-1: Honesty, Capacity and Disinterest EssentialThe Notary shall require any witness identifying

a principal signer to be honest, mentally capable and

In hose jrisdicions where a jra does no reqire he Noary o veriy he signers ideniy, he Noary may legally proceed wiho doing so. (See, e.g.,Cal. CIv. Code1185, which siplaes ideniicaion reqiremens or acknowledgers b no or aians.) However, good pracice dicaes ha he Noary noneheless screenallsigners or ideniythis deers rad and provides imporan inormaion or he Noary who mainains a noarial jornal. (See, Sandard VIII-A-2 and accompanying Commenary.)

Sandard III-B-2 ackles a more diicl and, perhaps, conroversial isse: deerring nde inlence. Alhogh recognized as a ladable goal, here are hose who sggeha his aciviy is no wihin he prview o perorming a noarial ac. today, noarial ahoriy is exclsively a prodc o sae. Saes sally do no speciically direc a Noo ascerain wheher or no a pary o a noarizaion is sbjec o nde inlence, b here are excepions. (See, e.g.,Ga. Code ann. 45-17-8(b)(2) (providing a Noary is noobligaed o ac i he eels he person seeking he noarizaion is being coerced).) Conseqenly, here is lile direc ahoriy or a Noary o rerain rom acing i nde inlenis sspeced.

theCodeadops he posiion ha he Noary, as a pblic oicial who perorms a ncion relied pon by innocen hird paries no privy o he noarizaion, shold be proacin execing his or her obligaions. Consisen wih he view ha noarizaions in general are designed o deer rad, i logically ollows ha Noaries shold srive o srenghen lawdocmens so ha hey will no all vicim o challenge. While a Noary does no and canno garanee he eicacy o a docmen, sers o ha docmen ogh o be able o reon he ac he signare is wha i prpors o be. theCodeavors he view ha a signare no volnarily provided is sspec.

the Code does no obligae he Noary o invesigae all o he acs srronding every ransacion. Insead, i assmes he Noary will rely on personal observaion deermine wheher or no he signer is acing nder his or her own ree will. the Sandard ses he erms bllied, hreaened and inimidaed or illsraive prposes only. tdraers recognize ha rom a legal perspecive hese erms imply acing nder dress, and no nde inlence. Alhogh he wo conceps are relaed, hey are disinc. In ndrawing he legal disincion, heCodesends he general message ha he Noary shold no paricipae in a ransacion ha on is ace involves an nwilling signer, regardless how ha ac is maniesed. theCoderecognizes ha here is no brigh line es as o when a person has been deprived o his or her own ree will. Each siaion is special nisel, and he Noary is le o se his or her bes jdgmen as o wheher or no o proceed wih he reqesed noarizaion. the Sandard serves o aler Noaries o he ndinlence isse and admonishes hem o avoid becoming involved in hese siaions.

ARtICLE C: Screening or AwarenessSandards III-C-1 and -2 wresle wih perhaps he hornies isse conroning Noaries: signer awareness. this problem is disingishable rom he willingness isse

Sandard III-B-2, alhogh boh sandards address capaciy. the willingness problem arises when a person wih ll conrol o his or her menal aclies is being impropepersaded or orced o ac. the awareness problem involves only he signer, and ocses on wheher or no he signer ndersands wha he or she is doing.

Boh in earlier dras o heCodeand in oher exs, he awareness isse has been reerred o as signer compeence. Alhogh he same maer is being addressed,i.e.he signers abiliy o ndersand his or her acs, heCodeadops he view ha esing or awareness is a more meaningl and reasonable ncion.

Proponens o a sric es or compeence res heir posiion on he ac ha he law allows no less. Alhogh i is re ha by deiniion an acknowledgmen implicily reqhe Noary o deermine he signers compeence (seeaRIz. Rev. Stat. ann. 33-505; Ind. Code 26-3-60; and Poole v. Hyatt, 689 A.2d 82 (Md. 1997)), no all noarizaions areacknowledgmens. Indeed, many are no. (See, e.g.,waSh. Rev. Code 42.44.090.100.) Noneheless, his camp sggess ha he very nare o every noarial ac implies h


19/39

12 The NoTary Public codeof ProfessioNal resPoNsibiliTy

unaffected by the transaction requiring a notarial act.

Illustration: The Notary is asked by a former schoolclassmate to swear that person in as a subscribing

witness vouching for the signature of an absent business

associate on a deed. Over the years, the Notary has

developed a poor opinion of the classmates integrity,

having knowledge of a conviction for trafficking in stolen

goods.

The Ethical Imperative: The Notary declines to accept the

former classmate as a reliable subscribing witness, urging

this individual to have the absent business associate

appear in person before a Notary.

III-D-2: Oath or Affirmation Necessary for IdentifyingWitness

The Notary shall administer an oath or affirmation toany witness identifying a principal signer in order to compeltruthfulness.

Illustration: The Notary is telephoned by a client who

promises to stop by later in the day with a deed to benotarized. The client mentions that the deed requires one

witness in addition to the Notary, and asks if a friend may

witness the signature on the document before it is brought

in.

The Professional Choice: The Notary explains that the

client may sign the deed and have the signature witnessed

outside of the Notarys presence prior to appearing before

the Notary to acknowledge the signature. The Notary also

explains that it will not be necessary for the witness to

appear and take an oath, since the Notary will positively

identify the client based on personal knowledge of

identity and not rely on the witness to make the

identification.

III-D-3: Personal Knowledge of Identifying Witness Essential

The Notary shall personally know any individualserving as the sole witness identifying a principal signer inthe Notarys presence, and the witness shall personally knowthe principal signer.

Illustration: The Notary works in an office. An elderlystranger walks in and requests notarization of a document

However, the stranger no longer drives and cannot

present a drivers license or other reliable ID card as

identification. At that moment, a longtime coworker of theNotary enters and greets the stranger by name. The

coworker has known the individual for years.

The Professional Choice: The Notary notarizes the signature

of the elderly stranger, who is identified through the

vouching under oath of the coworker. The critical chain o

personal knowledge exists: the Notary personally knows

the identifying witness and the identifying witness

personally knows the signer. State law may provide

assistance in usefully defining personal knowledge of

identity.

III-D-4: Identifying Witness Must Be UnaffectedThe Notary shall disqualify any person from serving

as an identifying witness if that individual is named in oraffected by the document signed by the principal.

Illustration: The Notary is asked by a married couple tonotarize their signatures on a document. The Notary

personally knows one of the two as a former college

classmate, but has never met the other, who does not

drive nor have a drivers license or other photo ID. The

couple suggests that the Notary swear in the classmate as

a witness to identify the spouse.

The Professional Choice: The Notary agrees to notarize the

signature of the spouse who is personally known, butdeclines to notarize the signature of the unknown spouse

since identification would be based on the word of a

reqiremen o screen or compeence. Nowihsanding his belie, i he signer merely seeks o have a docmen winessed, here is no ahoriy reqiring he Noary o deermhe signers compeence. (But seeFla. Stat ann. 117.107(5) (reqiring a Noary o rerain rom acing i i appears he signaory is menally incapable o ndersanding he naand eec o he docmen); andGa. Code ann. 45-17-8(b)(3) (giving he Noary he opporniy o decline o ac i he has compelling dobs abo wheher he signer knowhe conseqences o he ransacion reqiring he noarial ac).) to sel-impose a sandard o deermining signer compeence cold expose he Noary o legal liabiliy i he Noases a perceived lack o compeence as a basis or improperly resing a noarizaion, and harm resls.

the Codeacceps he posiion ha deermining compeence is problemaic. No only is i o dbios legal necessiy, b i also may reqire abiliies beyond he ken o maNoaries. Moreover, when compeency is esed or legal maers sch as a will or a conrac, mch more han a crsory examinaion is made. Aorneys have saory and jdicgidance deailing how hey shold proceed on hese maers. Moreover, he process can be qie ime-consming. ths, even or hose Noaries who wold eel comorable perorming sch a review, he ime involved or sch a ask is probably prohibiive.

the Codedoes no posi ha he Noary shold mindlessly proceed wih any noarizaion pon reqes. Insead, i erecs an awareness sandard. Noaries are expeced jdge or hemselves wheher he signer has he reqisie awareness o proceed. Sandard III-C-1 calls or he Noary reasonably o believe he signer o be aware o he signiicano he ransacion reqiring a noarial ac. the Sandard does no reqire he signer o ndersand deailed legal ramiicaions o he ac, or o be able o recie rom memory a

par o he docmen. the key o he awareness sandard is he signers sel-recogniion ha he or she is engaged in a ransacion sicienly signiican o reqire proo o signers paricipaion in i.In meeing he awareness es, he signer need no divlge pariclars o he docmen nor provide he Noary wih an overview o he ransacion. Sch a reqiremen mig

violae conidenialiy rles esablished in Giding Principle IX o heCode. (SeeSandards IX-A-1 and B-2.) Insead, i is sicien or a signer o indicae, or example, ha hdocmen is a will or a conrac, alhogh sch speciiciy is no reqired. Indeed, a Noary ehically cold proceed pon hearing he signer say he needs an imporan docmenoarized, i he signers demeanor conveyed o he Noary ha he signer ndersood he signiicance o he ac. Recognizing ha here is no js one exclsive mehod odeermining awareness, he Codedoes no oer any mehodology on how a Noary shold proceed, parially o o concern ha he sggesions migh become he only onesed. Sch a resl clearly wold be conrary o heCodesposiion ha deermining awareness is no an exac science. Insead, heCoderelies pon he Noarys abiliy o jdgrom he acs and circmsances presened wheher or no he signer saisies he awareness sandard.

the Illsraion or Sandard III-C-1 presens a ypical dilemma aced by many Noaries. the signer demonsraes a sicien disorienaion o raise a qesion in he Noarymind as o wheher he signer is aware o wha is ranspiring. the Noary asks some simple, ye sraighorward qesions o deermine he signers willingness. I a signer cannideniy or acknowledge a signare as his or her own, he Noary shold no proceed. I he signer responds ha he or she did no sign he docmen willingly, he Noary ms nproceed. In he laer siaion, he Noary who proceeds no only acs nehically, b also may be considered a pary o a rad.

the essence o he Codesposiion is ha while being commissioned as a Noary does no qaliy one o deermine legal compeence, a Noary may noneheless make basic assessmen as o wheher or no he signer is willing and aware enogh o proceed. theCodedoes no reqire he Noary o acally prove awareness, b asks only hahe Noary ormlae a reasonable belie ha he signer has awareness. the isse will no arise in many noarizaions. theCodeseeks o provide gidance or hose siaions inwhich he signers acions raise dob in he Noarys mind as o wheher he signer can proceed.


20/39


witness who is clearly involved in and affected by the

transaction. The Notary suggests that the unknown spouse

visit a Notary who personally knows that spouse, or rely

on a disinterested credible acquaintance who personally

knows a Notary to make the identification.

III-D-5: Personal Knowledge of Subscribing Witness EssentialThe Notary shall personally know any individual

offering to serve as a subscribing witness to identify a

principal signer who is not in the Notarys presence.

Illustration: The Notary is asked by a stranger to take aproof of execution for the signature of the strangers

absent spouse. The stranger explains that the spouse was

suddenly called out of town on emergency business, but

that the stranger saw the spouse sign the document.

The Professional Choice: The Notary declines to allow the

stranger to serve as a subscribing witness for a proof of

execution because this individual is not personally known

to the Notary. Because proofs have a high potential for

fraud, Notaries must know well any individual they trust

to vouch for an absent signers identity, volition and

awareness.

III-D-6: Subscribing Witness Must Be UnaffectedThe Notary shall disqualify any person from serving

as a subscribing witness if that individual is named in oraffected by the document signed by the absent principal.

Illustration: The Notary is asked by a friend to perform

a proof of execution for the signature of the friends

parent on a health care power of attorney naming the

friend as attorney in fact. The parent is described as too

sick to appear before the Notary.

The Professional Choice: The Notary declines to allow the

friend to serve as a subscribing witness for a proof of

execution because this individual is named in and affected

by the document and the persons credibility as a reliable

witness would be compromised.

III-D-7: Two Witnesses to Mark Must Be DisinterestedThe Notary shall require that two individuals in

addition to the Notary witness the affixation of a mark, andneither witness shall be named in or affected by the markeddocument.

Illustration: The Notary is called to the bedside of apatient to notarize this persons signature on a power of

attorney naming a spouse as attorney in fact. Ill and

extremely weak, the patient is only able to affix an X

rather than a normal signature. The spouse offers to sign

as a witness to the mark.

The Professional Choice: The Notary explains that two

persons in addition to the Notary must witness the making

of the mark. The Notary disqualifies the spouse as a

witness, since this individual is both named in and

affected by the document. Instead, the spouse finds two

neighbors, both of whom present reliable ID cards, to

witness the patients mark.

Sandard III-C-2 and -3 address a dieren aspec o he awareness isse, ha o he signer being able o commnicae eecively wih he Noary. the Illsraion Sandard III-C-2 cies a siaion wherein he physical condiion o he wold-be signer raises dobs as o he signers awareness o he ransacion. Alhogh he Illsraion insrhe Noary no o proceed, i ms no be mindlessly applied o all similar siaions. Individals wih slrred speech or who canno speak a all oen may noneheless eecivecommnicae heir wishes in a variey o oher ways. the resl reached in he Illsraion ress largely on he ac ha he wold-be signer cold no respond eecively o he Noarqesions. Sandard III-C-3 akes he commnicaion problem a sep rher by admonishing Noaries no o perorm noarizaions hrogh an inerpreer, even hogh several saallow ranslaors o explain he nare and eec o an English-langage docmen o a non-English-speaking signer. (See, e.g., Fla. Stat. ann. 117.107(6).) Draers o heCodeconsidered he inheren risk o rad o be oo grea when he Noary relies on he words o a hird pary who may have a moive or dissembling. there are oher ways or personwho speak a oreign langage no ndersood by he Noary o obain noarizaions, inclding aking advanage o conslar services. Advising he clien o ake one o hose opiois he ehical pah o prse.

ARtICLE D: Qaliicaion o WinessesSandards III-D-1 hrogh -7 oer advice on he proper se o winesses in noarizaion. Alhogh no mandaory, aken ogeher he Sandards creae a proocol o go

pracice.Sandard III-D-1 saes he hree minimm reqiremens or a winess: honesy, menal capaciy and disineres. the Noary will have o draw pon his or her personknowledge o he winess o assess hese qaliicaions. As o disineres, he Noary will have o ascerain his ac a he ime o noarizaion. Sandard III-D-4 addresses his issmore direcly. Any winess wih a direc ineres in he docmen o be noarized ms be disqaliied. (AccordCal. CIv. Code 1185(c)(1)(E).) Sandard III-D-6 provides he samerle or sbscribing winesses. (for gidance as o wha may consie an improper personal ineres,seeGiding Principle II, Aricle B.)

Sandards III-D-3 and 5 se o he ondaion or he Noarys knowledge o he winess ideniy. the ormer relaes o ideniying winesses in general, he laer o sbscribwinesses. In boh insances he Noary ms have personal knowledge o he winess ideniy. Sandard III-D-3 indicaes ha sae laws may selly deine personal knowledo ideniy (see, e.g., aRIz. Rev. Stat. ann. 41-311 (deining personal knowledge o ideniy as amiliariy wih an individal resling rom ineracions wih ha person over a sicieime o eliminae reasonable dob ha he individal has he ideniy claimed)). Noaries are advised o review he relevan law in heir respecive jrisdicions on his maer.

Sandard III-D-2 reqires ha an ideniying winess be p nder oah, an acion dicaed by many saes. (See, e.g., Fla. Stat. ann. 117.05(5)(b).) this simple procedreis designed o provide he assrance needed o veriy he nknown signers ideniy. I is an essenial link in he noarial process needed o deer rad.

Sandard III-D-7 addresses he se o marks as signares. this siaion can arise when he signer is physically incapable o wriing his or her own signare, or does nknow how o wrie he signare. In eiher even, a mark (e.g., X) can consie a valid signare, as long as proo is provided o he marks aheniciy. the Sandard sggesha he Noary always se a leas wo disineresed winesses when noariz