I’ve recently published many posts discussing iPad styluses, apps that let you write or draw and PDF management apps — all tools that make it easy to create a digital signature on a document. This led a friend of mine who is an attorney to ask me last night about the role of digital signatures in the context of a notary. A high-quality digital signature might even look better than a “real” signature made by a pen on paper. Can a person just sign a document on their iPad and then e-mail the document to a notary?
This is an issue of state law that will vary from state to state. For example, in Louisiana we have something called an “authentic act” which refers to signing a document in the presence of two witnesses and a notary. La C.C. art. 1833. The Louisiana Supreme Court held in Hardin v. Williams, 478 So. 2d 1214 (La. 1985) that it was insufficient to have the notary just outside of the room in which the signing took place even though the notary knew the parties. If being in the next room isn’t enough, I suspect that e-mailing a digital signature to a notary would never work without a change in Louisiana law.
The National Notary Association published an article last year called Personal Appearance In A Digital World in which they take the position that the person signing must always physically appear before the notary so that the notary can see the person, check the ID, etc. The article critiques a Virginia law which apparently allows appearance before a notary via video and audio conferencing. A FAQ on the Commonwealth of Virginia’s website explains: “While the signer must still appear personally before an Electronic Notary, beginning July 1, 2012, an approved Virginia Electronic Notary may perform acts online using audio-video conference technology.”
New Orleans attorney Ernest Svenson, who publishes the PDF for Lawyers website, has written about digital signatures several times. For example, late last year he mentioned the new Adobe EchoSign eSignature app for the iPhone and iPad that is supposed to allow the creation of legally-binding electronic signatures. But I’m not sure what that has to do with notarial requirements.
As you can tell, this is an area of law that I know very little about, and I would never pretend that the links that I included above are representative of the full — and I’m sure emerging — body of law in this area. I am interested to learn more, so if any iPhone J.D. readers would like to share what they know on this issue, I encourage you to post a comment. In the meantime, if any of you plan to ask me to serve as a notary, I encourage you to bring your iPads, styluses and drawing apps so that we chat about the latest and greatest technology … but when it comes time to sign the document, I’m going to hand you a real pen.
Indiana appears to take the position that the signer must be physically present before the notary. I seem to recall a disciplinary opinion where an attorney notarized a document that he did not see signed, or at least the signer did not appear and confirm he signed it.
As a notary, I’d be comfortable notarizing an electronic signature (assuming I had some electronic means of adding my notary stamp, which I presently don’t) as long as I still physically verified the signer’s identity, in person, and witnessed the “signing”, be it electronic or physical. I certainly wouldn’t do it sight unseen, and I’d have a problem doing it via teleconference unless I personally knew the person well. Considering that the sole purpose of a notary is to independently verify the authenticity of the identity of a signatory to a document, it would seem a shame to remove the requirements for physical witnessing. If you don’t need or want a physical witness, then a digitally signed document should suffice sans notary.
According to the ESIGN Act signed on June 30, 2000, electronic signatures have the same legal status as handwritten signatures and electronic records & contracts have legal validity.
IF A SIGNEE WISHES TO USED AN ELECTRONIC SIGNATURE FOR NOTARIZATION, I WOULD HAVE TO HAVE A COPY OF HIS SIGNATURE ON FILE FROM PREVIOUS USE….