Notarizing and Executing Legal Documents While We Shelter-In-Place

BACKGROUND

The COVID-19 pandemic has resulted in stay at home orders and social distancing requirements in almost every state in the country. This, in turn, has led to challenges for notaries public to conduct their obligation to witness execution of legal documents. Some states have addressed this issue by passing laws or issuing temporary regulations authorizing “virtual” notarization without in-person meetings.

LESSONS TO LEARN

Lawyers’ professional liability (LPL) policies protect law firms and lawyers from claims of negligence in the rendering or failure to render legal professional services – including notary services. The breadth of coverage provided by an LPL policy varies from carrier to carrier. Some LPL policies contain exclusionary language specific to the provision of notary services. For example, the policy may not apply to claims “[a]rising out of notarized certification or acknowledgment of a signature without the physical appearance before such notary public of the person who is or claims to be the person signing said instrument.” Even if your firm is in a state that has passed a law removing the “physical appearance” requirement, your LPL policy may not respond to claims arising from notarization that takes place virtually.

TIPS AND TAKEAWAYS

Below are a few tips and takeaways as you consider the potential impact of working in this current environment:

• Evaluate the Impact: First and foremost, determine whether your firm provides notarization services to clients? Who within your firm is involved in providing these services? And, how frequently do you provide such services?
• Review Your Lawyers Professional Liability Insurance Policy: As noted above, some policies contain exclusionary language.
• Review State Requirements in Which You Conduct Business: States are taking different positions on permitting (or not) remote online notarization or some form of waiver. It is imperative that you review the requirement within your relevant jurisdiction and understand the manner in which the law will be applied, specifically the effective dates. We expect that states may modify their positions so we recommend monitoring state legislative activity regularly.
• If notaries are called upon to provide essential notarial services in states that require “in person witness”, such as California, we suggest visiting the National Notary Association website and local notary affinity groups for health and safety procedures to consider.

EPIC’s National Law Firm Team is monitoring the situation and stands ready to answer any questions you may have.

For more of EPIC’s coronavirus coverage, visit epicbrokers.com/coronavirus 

This material is for informational purposes only and not for the purpose of providing legal or insurance advice. Insurance coverage, and the terms and conditions relating to such coverage, will vary. Lemme/EPIC is not a law firm and does not provide legal advice. If such advice is needed, consult with a qualified adviser.