Remote Notarization is Vital in the Age of Social Distancing

Over the past few months, lawyers around the world have had to adjust how they practice their profession, and legislatures and the judiciary have had to adapt to make access to the legal system as safe as possible.

Historically, documents that needed notarization required the notary to be present in the same room as the signer. In recent months, acting under 26 V.S.A. § 5364, the Vermont Secretary of State has adopted Emergency Rules permitting remote notarization. The law provides lawyers and the public with a vital tool in this age of social distancing. Remote notarization allows notaries and clients to accomplish this task from their own homes.

The process can seem intimidating, but with a simple set of procedures in place it is easy to adapt to doing notarizations remotely. However, there are two critical things to note about the law:

Location is Vital

Both the notary and the signer need to be physically present within the State of Vermont for the notarization to be valid.  If you are travelling out of state, then you cannot remotely notarize something for someone in state.  Nor can a client who is traveling out-of-state request that you remotely notarize something for them.  They would need to seek a notary licensed in the state in which they were present.

Remote Notarizations Must be Recorded

The statute that authorizes remote notarization procedures requires that notarization be done via a videoconferencing tool like Zoom, and that the entire session be recorded.  The recording must then be kept on file by the notary for seven years.

Most, if not all, of the standard videoconferencing apps allow for easy recording of a session.  It is helpful to do a few trial runs with whatever program you will be using so that you have the flow of setting up the conference, recording it, and saving it.  This makes things much less stressful when you do your first remote notarization as it gives you a chance to try to work out any possible bugs in the system. 

Our Remote Notarization Procedures

We have developed a simple set of procedures to follow to make this process easier for all of our notaries.  These procedures satisfy both critical requirements noted above.  Sample remote notarization certificate language can be found in the Emergency Rules

  1. The Notary must be physically present in Vermont
  2. Have the person mail or email an exact copy of the document that they need notarized to you
  3. If emailed, print out before the conference call so that you have the physical copy in hand for the call
  4. Set up a video conference call with the person who needs something notarized
  5. Be sure to inform your client that in order to do remote notarization the conference will need to be recorded and that recording will be retained on file by your office for at least 7 years as required by law
  6. Make sure your video conference is set up to record and record the entire call – web cameras may need to be adjusted to get the actual signing on screen and recorded
  7. When the call begins, verify the signer’s identity
    • If you have personal knowledge and can attest to the identity of the person, then say so
    • If you do not have personal knowledge of the person, then you should verify the person’s identity with two different forms of identification
    • You can also rely on the attestation of a credible witness
  8. Once you have verified the identity of the signer, verify that the document you have in front of you is the same as the document they will be signing
  9. Have the signer adjust their camera so that you can see them signing the document easily and then have the sign the document
  10. Once they have done so, adjust your camera so that it can fully see you signing the document
  11. Complete the Certification for Remote Acknowledgement (sample language for this Certificate can be found on pages 4 and 5 of the Rules)
  12. Save a copy of the recording and keep it on file for at least 7 years

The coronavirus pandemic has changed much for our practice, but we can still provide critical services to our clients without endangering ourselves or our clients.  Remote notarization is just one tool that we can add to our skillset to provide the best services we can during these unusual times. 

Our Legislature could make life easier for litigators by adopting the Uniform Unsworn Declarations Act.

Rich

Many thanks to my Associate, Amanda Lee, for doing the research and preparing a near final draft of this post!

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