Paralegals often serve their employers in a dual role as both a legal assistant and a notary public. Our work as a notary public is typically performed entirely at the employer’s direction, at the employer’s place of business and as part of our salaried job. The employer will often pay all of the costs associated with the notary commission because it wants to provide notary services to its clients.
So what happens when clients or even nonclients ask to have documents notarized that have nothing to do with the employer’s business? Is the notary required to notarize any and all documents presented for notarization? Or can an employer limit the notary’s scope to company documents only?
In Pennsylvania, a notary public is a public official appointed and commissioned by the secretary of the commonwealth and, as such, a notary should perform any notarial power to any individual who makes a reasonable and lawful request for notarization. Obviously, a notary may refuse to notarize a document if the notarization would result in an illegal or improper act or the notary knows that the transaction is fraudulent. A notary generally should not refuse to notarize a document solely because the individual requesting notarization is not a client or customer of the notary or the notary’s employer.
Notaries are bonded subject to the condition that they faithfully execute their functions. If a notary breaches this duty, the surety on the bond is liable to the individual who suffered harm as a result of the notary’s misconduct. The notary’s employer is also potentially liable for such losses if the notary is acting as an employee of the company when the notarization took place (or even if the notary was notarizing on company time).
Under the common-law doctrine of respondeat superior (Latin for “let the master answer”), an employer is liable for the actions of an employee when the actions take place within the scope of employment. The doctrine historically has been thought to be fair for several reasons. It provides a better chance for an injured party to actually recover damages, since the employer is liable for the injuries caused by an employee who is working within the scope of his employment relationship, and employers usually have far more resources with which to compensate the victim of business-related misconduct than do employees. In addition, employers choose their employees and therefore assume responsibility for those who do their bidding. Employers are in control of the employees and thus accountable for employee conduct; employees act to benefit their employers and so the employers must accept the bad along with the good.
The National Notary Association’s Model Notary Act of 2010, at § 13-1(c), provides as follows: “An employer of a notary is liable to any person for all damages proximately caused that person by the notary’s negligence, intentional violation of law, or official misconduct in performing a notarization during the course of employment, if the employer directed, expected, encouraged, approved, or tolerated the notary’s negligence, violation of law, or official misconduct either in the particular transaction or, impliedly, by the employer’s previous action in at least one similar transaction involving any notary employed by the employer.”
Many a notary has witnessed a frantic attorney dashing about to find a notary on short notice or after business hours and has likely heard the request to “just notarize this for so-and-so who is busy down the hall; he signed in front of me earlier.” Or even worse, sometimes notaries are presented with an unsigned document and asked to notarize it for Mr. Client who “forgot” to sign this one document at the closing. A notary employee may feel pressure to accede to these requests since he or she fears losing the job.
Employers need to provide the proper support for their notary employees in order to reduce their own liability exposure. A notary’s supervisor should be aware of sound notarial practices and how to supervise an employee to ensure that he or she is adhering to the basic rules of proper notarization. Such basic rules of notarization include:
• Require that the signer personally appear before the notary.
• Verify, through photo identification or personal knowledge, that the person is who he or she purports to be.
• Obtain the oath or acknowledgment of the signer that he or she has signed the document willingly and is aware of its contents.
• Sign the document and affix the notary stamp seal, which must show clearly the words “Notarial Seal,” the name and surname of the notary public and the words “Notary Public,” the name of the municipality and the county in which the notary maintains an office, and the date on which the notary’s commission expires.
• Keep and maintain custody and control of an accurate chronological register of all notarial acts.
• Ensure that notary employees carry errors and omissions insurance. If a notary is bonded, the bond company will pay a claim, but the notary will then have to repay the bond company the amount of the claim. Without errors and omissions insurance, the notary may be held liable for thousands of dollars in damages caused by an improper act.
Employers should also document that each notary employee has received proper training, that supervisors understand notarial responsibilities and that each notary is complying with statutory and common law duties. An employer should also maintain objective indicators of adequate training and supervision, including such items as certifications, test results and journal records.
A company policy regarding the conduct of the notary employee’s actions in the workplace is also highly recommended. If an employer is going to limit the notary employee’s duties during business hours, a policy should be developed that ensures that the actions of the notary employee are within the scope of Pennsylvania’s notary law and that no improper discrimination will occur. The availability of the notary employee’s services to the public, charging of notary fees and the consequences of the unauthorized use of a notary seal should also be addressed.
Make no mistake: Failure to follow the proper procedures of notarization can carry real consequences. For the notary public, his or her commission could be revoked or suspended, and the secretary of the commonwealth may also, for good cause, impose a civil penalty for each act or omission and order a notary public to attend education classes. For notary employers, the stakes are much higher since an organization’s reputation and profitability can be jeopardized by notary employees who take shortcuts or do not follow the letter of the law. •
Vivian Luckiewicz is a corporate paralegal with The Children’s Hospital of Philadelphia and has over 25 years’ experience in business and securities law, corporate governance and regulatory compliance. Luckiewicz is a graduate of Peirce
College and sits on the board of directors of the Philadelphia Association of Paralegals.
Vivian Luckiewicz is a corporate paralegal with Archer & Greiner in Haddonfield, N.J. She is a graduate of Peirce College and sits on the board of directors of the Philadelphia Association of Paralegals.