The 5 most influential Model Notary Act provisions
This article is the second in a series of articles celebrating the 50th anniversary of the publication of the Model Notary Act. For more about Notary law history, please see part 1, “5 important first Notary laws.” We’ve been reflecting on the accomplishments of the Model Notary Act (MNA) over the last 50 years. We’ve done that by counting the states that have enacted the MNA and creating an adoption map. Equally as important, we’ve reflected on the MNA’s influence in intangible ways affecting change in Notary laws and standards of practice. The MNA’s effect can’t be measured by counting wins posted on a map. Instead, its impact must be evaluated in how it shaped the discussions and trends that led to progressive change in Notary laws. The 5 provisions of the MNA that we will discuss in this article demonstrate the influence of the MNA over the last half-century. Signer mental competence The NNA believes that a Notary assessing a signer’s mental competence before performing a notarial act is so fundamental to the integrity of a notarial act that no conscientious Notary would perform a notarization for anyone who lacked it. In 2002, when a requirement for the Notary to assess a signer’s mental competence first appeared in the MNA, only two states had laws predating it. It was a fringe issue that people were just beginning to discuss. Many questioned whether the average Notary could ascertain a signer’s mental awareness without medical, psychological, or legal training. Some believed it was a needless expansion of the Notary’s authority. North Carolina and New Mexico enacted statutes based on the 2002 MNA signer competence provision, but it wasn’t until 2010 that the issue hit a tipping point. 2010 was when the Revised Uniform Law on Notarial Acts (RULONA) was published. The RULONA included a provision that permitted a Notary to refuse to notarize for a signer who is not mentally competent. In contrast, the MNA prohibited the Notary from performing the notarization in the first place. To date, the RULONA signer competence provision has been enacted in over half of all states and the District of Columbia. Even though the RULONA provision has proven more popular, the MNA laid the groundwork by bringing national attention to the issue in 2002, when only two states had considered it. Notary education and testing The 1984 MNA first included a mandatory examination requirement as a qualification for a Notary commission. In the 1980s, New York and California formally proctored examinations for Notaries, and North Carolina enacted a new Notary training requirement. But they were outliers. The 2002 MNA was the first model or uniform Notary act to add a training requirement for traditional paper and in-person electronic notarizations. But it wasn’t until remote online notarization began to take off in 2012 that states, fearing consumers faced heightened risks from the new technology, saw the need for Notaries to be trained. There were 10 states with mandatory training laws in 2012. From 2016-2022, 20 more were added. The MNA’s influence in sowing the seeds of change decades earlier finally took hold. Looking back, the MNA’s vision in mandating training for in-person electronic notarization likely contributed most significantly to the change. Notary recordkeeping Our first article in this series — 5 important “first” Notary laws — chronicles how keeping records of notarizations has been in the DNA of Notaries from our nation’s colonial times. Sadly, in the centuries that followed, most states came to view Notary recordkeeping as an outdated practice and removed recordkeeping laws from their statutes. The NNA’s first model statute, the Uniform Notary Law of 1973, called for the Notary community to recommit to the practice of documenting notarial acts. Still, most lawmakers considered Notary journal laws to be excessive regulation that only increased business costs. But like mandatory Notary training, the return of Notary recordkeeping laws was jumpstarted by technology-based notarization. Suddenly lawmakers saw Notary recordkeeping as essential consumer protection. Before 2012, 15 states required Notary journals for traditional notarial acts and 8 for in-person electronic notarizations. There have been 60 journal enactments since — 36 for remote notarization alone — and states with remote notarization laws almost unanimously require Notaries to make an audio-visual recording for each remote notarization. This change was only possible with the consistent influence of NNA model acts promoting the benefits of Notary recordkeeping for several decades. Notary conflicts of interest The impartiality of a Notary Public is the bedrock of a notarial act. Conflicts of interest, such as notarizing one’s own signature, undermine the objectivity required of a Notary and tempt the Notary away from strictly following proper notarial rules. Most early Notary conflict of interest statutes centered mostly on clarifying when Notary-employees of banks and corporations could notarize for its stockholders, officers, or employees. Then, the NNA’s 1973 Uniform Notary Law disqualified the Notary from performing a notarial act for personal conflicts of interest. These included when the Notary was named individually in a transaction and received a direct financial benefit more than the fee for the notarial act. The NNA’s 1984 act (renamed the Model Notary Act) added relational conflicts of interest — notarizing for a spouse, sibling, or direct ancestor or descendant of the Notary. States began to amend their statutes with conflict of interest rules starting in the late 1970s. Today, most states now contain these essential provisions. Once again, NNA model acts influenced the enactment of these laws, even if the words did not come directly from them. Employer liability Most of the 4.4 million Notaries counted in the NNA 2022 Notary census become Notaries to perform notarizations at work. To receive their Notary commission, they have sworn an oath to follow the law when they notarize. As employees, they are answerable to a supervisor. Sometimes these two accountabilities clash, squeezing the Notary-employee in the middle. Suppose a supervisor directs them to notarize a forgery. In that case, the Notary-employee is put in the difficult spot of choosing to follow the law or disobeying a superior and possibly being fired. This is why the NNA’s 1973 Uniform Notary Law created an employer liability provision for Notary-employee official misconduct. An employer would be liable for a Notary-employee’s misconduct if the Notary-employee were acting within the scope of employment while performing the notarial act and the employer consented to the Notary’s official misconduct. Subsequent NNA model acts expanded the scope of an employer’s liability and made the employer liable to the Notary-employee for damages incurred from these improper notarizations. Eight states currently have an employer liability statute like the MNA. Of the 5 MNA provisions surveyed in this article, the NNA believes this employer liability provision could influence future enactments because employee rights and protections are very much a part of the current national debate post-COVID-19, and legislators are looking for positive solutions.
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