Have you ever been asked by a client or someone else to “notarize” something? Do you regularly perform notarial acts? Occasionally? When you do, are you following the proper procedures?
It’s been several years since we wrote about notary public duties and what responsibilities go along with being a notary, so a refresher course is in order, especially if you have not recently looked at the Wisconsin Department of Financial Institution’s brochure on the dos and don’ts of being a notary.
Sally Anderson, vice president-claims at Wisconsin Lawyers Mutual Insurance Co. (WILMIC), says it’s important that lawyers take notary responsibilities seriously. “I think lawyers need to understand that although they have the opportunity to enjoy a ‘forever’ notary in the state, they also have an obligation to read the rules and apply them properly. Most lawyers are not taught how to be a notary. Lawyers are expected to learn that information, understand it, and apply it. I think that is part of valuing the law license you worked for and may still be paying for.”
Notary Errors Can Lead to Malpractice Claims
Anderson says she has never seen a claim alleging a negligent error by a lawyer regarding a notary. She has, however, seen instances of intentional acts that are not covered by malpractice insurance policies. One involved a lawyer who notarized a second mortgage as a favor to a client. The client claimed his wife signed the document at home because she could not come to the law firm that day. The lawyer later learned that the client and his wife were separated and her signature had been forged. The lawyer was subsequently named in the litigation, but his malpractice insurance did not cover the claim because the lawyer knowingly violated the rules.
Permanent Notary Public Commission Revoked
If Law License is Suspended
Attorneys will lose a permanent notary public commission if their law license is ever suspended or revoked, according to the Wisconsin Department of Financial Institutions (DFI), which has responsibility for enforcing laws related to such commissions.
Under Wis. Stat. section 137.01(2), a U.S. resident who is licensed to practice law in Wisconsin is entitled to a permanent commission as a notary public upon application to the DFI and payment of a $50 fee. However, under Wis. Stat. section 137.01(2)(c), the Wisconsin Supreme Court must notify the DFI if a lawyer’s license is suspended or revoked. This notice is deemed a revocation of the commission.
Under Wis. Stat. section 137.01(2)(am), a lawyer is entitled to receive a certificate of appointment as a notary public upon reinstatement of his or her law license, but only for a term of four years. Thereafter, the lawyer must reapply every four years and pay a $20 fee.
For the full story, please see “Wisconsin Law License Suspensions Will Impact Permanent Notary Public Commissions,” in the Aug. 1, 2012 issue of InsideTrack (updated Aug. 3, 2012).
In another instance, Anderson says a lawyer notarized a document but was not registered as a notary public with the state. The lawyer learned that the law firm where he began his career many years earlier had supplied him with a notary seal but never submitted his application for a permanent commission as a notary public.
Anderson says having an assistant become a notary makes sense, “provided that person understands the rules and responsibilities. Just because it is easy to do does not mean it should be done easily. It makes a lot of sense for a firm with a need for notarized documents to have someone who can do that for documents signed at a client’s home or business location, rather than to put the onus on the client to find a notary and send the documents back. Depending on the work done at the firm, providing these services legally and correctly could be a big client benefit.”
But then there is outright fraud. “We have seen situations where a lawyer told an assistant or secretary to notarize an already signed document returned in the mail. We saw one instance where an assistant was being sued for millions of dollars by a former firm client whose signature she had notarized. It turned out that her boss had forged the client’s signature and asked for her notary. That is the best example I have of how to do it both wrong and bad.” Anderson provides the not-very-surprising epilogue to that story. “The lawyer lost his license.”
In addition, Anderson says don’t be afraid to ask for identification, even if you think you know the person. “If you have never met the client’s wife before, it may make sense to ask for identification from her even though you know the husband. We learned of one instance where the husband had his ‘friend’ sign documents as his wife, as he did not wish to have his wife know about a mortgage on the family home. Lawyers must take the duties imposed on them as notary publics seriously.”
Test Your Knowledge
How well do you know the rules for attorney-notary publics? See how well you do with this true-false quiz.
1) ______ You automatically became a notary public when you were licensed to practice law in Wisconsin.
2) ______ You must use a notary seal or stamp when you notarize a document.
3) ______ You can notarize a transcript of a client’s deposition in Illinois.
4) ______ You can witness the signatures of your spouse or relatives.
5) ______ A signer must appear before you in person for you to authenticate his or her signature.
6) ______ Neither you nor your office assistant need to be bonded as notaries.
7) ______ As long as you have a notary commission, you can perform notarial acts in any Wisconsin county.
8) ______ Either you or your assistant who also has a notary commission can help people prepare the papers they need notarized.
9) ______ You should never witness your own signature.
10) ______ You can charge a reasonable fee for notary services.
11) ______ A notary bond is protection in the event you get sued.
12) ______ You are prohibited from making a certified copy of a birth certificate.
13) ______ If your address changes, you must notify the Wisconsin Department of Financial Institutions within a reasonable time, usually 30 days.
14) ______ An oath or affirmation must be both sworn to be true and signed in your presence for you to notarize it.
15) ______ A signature stamp or digital signature rather than a handwritten signature is acceptable, so long as it was applied in your presence.
16) ______ You can lose your permanent notary public commission if your law license is suspended.
1) False. You must submit an application to the Wisconsin Department of Financial Institutions. Licensed attorneys can apply for permanent commissions.
2) True. Wisconsin statutes require all notary publics, including attorneys, to affix a clear impression of their official notarial seal or stamp every time a notarial act is performed, unless the document states that no seal is required.
3) False. As a Wisconsin notary public, you can perform notarial acts only in the state of Wisconsin.
4) True. A notary is not prohibited from witnessing the signatures of a spouse or relatives. However, if the document is questioned for any reason, the notarial act might be scrutinized more closely. And if the document is one from which you might derive a benefit, your right to receive that benefit might be jeopardized.
5) False. If the lawyer knows the person’s signature, the person does not have to be present for the lawyer to authenticate his or her signature. Authentication – as opposed to notarization or acknowledgment – applies only to documents relating to lands in Wisconsin. (See Wis. Stat. § 706.06.)
6) False. A $500 surety bond is required for all applicants applying or reapplying for a four-year notary public commission. No bond is required for U.S. residents who are licensed to practice law in Wisconsin.
8) False. As a lawyer licensed to practice in Wisconsin, you can engage in providing legal services by assisting with the preparation of legal papers. However, if your assistant is not a licensed attorney, he or she is prohibited from doing so.
9) True. Because a notary must always be an objective witness, the validity and effectiveness of notarizing your own signature is questionable, and, therefore, not advised. Most filing officers (registers of deeds, county clerks, and state offices and courts) will not accept documents on which a notary has notarized his or her own signature.
10) False. You can charge no more than $5 for performing most notarial acts. (See Wis. Stat. § 137.01(9).)
11) False. A bond protects the parties injured by misconduct or neglect, not the notary. You cannot collect from the bond. On proof of misconduct, all or part of the bond would be awarded to the party suing you. In addition, the bond company might sue you to recover the money it had to pay out. If you are sued, the damages are your personal responsibility.
12) True. In fact, a notary is prohibited from making copies, certified or uncertified, of “vital records,” which include certificates of birth, death, divorce, annulments, and marriage, among others.
13) False. The statutes require that a notary give written notice of any change of address to the Wisconsin Department of Financial Institutions within 10 days after the change.
15) False. Every official act of a notary should be attested by handwritten signature.
16) True. Attorneys will lose a permanent notary public commission if their law license is ever suspended or revoked. (Please see the accompanying sidebar.)
So how did you do? I didn’t cover everything in this short quiz, so if you think there is more you want to know to be sure you are providing notary services in accordance with the law, read the DFI brochure. It can be found at www.wdfi.org.