REMOTE INK NOTARIAL ACTS REAL ESTATE AND GENERAL TOPICS PRESENTED BY MICHAEL KENNEDY, ESQ. JAMES KNAPP , ESQ.
KEY INFORMATION - • Emergency Rules for Notaries Public and Remote Notarization • 180 days from March 24, 2020 • Guidance on Emergency Rules for Notaries Public and Remote Notarization • VBA Covid-19 Resource Page • Questions - rely on the official information – not these notes
REMOTE NOTARIZATION • Rule 1.1 (competence) • Rule 1.4 (communication) • Rule 1.6 (client confidences) • Rule 5.7 (law-related services)
COMPETENCE • Know the rules. • State Ethics Commission refers complaints against lawyers to PRB.
COMMUNICATION • Explain a matter so as to provide sufficient information to make informed decision about representation.
CONFIDENTIALITY • Duty to take reasonable precautions to protect against unauthorized access to or inadvertent disclosure of information relating to the representation. • Not going to get into specific technologies or platforms.
THE COMMENTS • Rule 1.1 - Comment [8] – competence includes understanding the risks and benefits of relevant technology • Rule 1.6 - Comment [16] - No matter where a lawyer stores client information, a lawyer must act competently to protect the information against inadvertent or unauthorized disclosure. • Rule 1.6 - Comment [17] - When transmitting client information, a lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.
REQUIREMENTS FOR REMOTE NOTARIAL ACT • Secure Communications Link • Signer and notary must both be in Vermont • Identification of Signer Known to the notary • • Identified by 2 forms of ID (1 of which is government issued) • Proof by witness who knows the signer and who is known to the notary • Provision for Recorded Session and 7 years storage
SECURE COMMUNICATIONS LINK • No definition • Guidelines • Allow interaction between notary and signer • Sufficient quality to allow visual observation of signer • MUST HAVE RECORDING CAPABILITY
SOME OTHER CONSIDERATIONS • Lender Permission – Verify that the Lender allows Remote Notarization – Get permission in writing from the Lender – Investor Challenges • E & O/Professional Liability Insurance – Check with your carrier to verify your coverage with respect to remote notarizations – Memo from ALPS
SELECTING A PROVIDER • T echnology changes rapidly • Be aware of developments – x is secure, x is not secure, x is secure again, x got hacked …
WHAT ARE REASONABLE PRECAUTIONS? • ABA Formal Opinion 477 • “What constitutes reasonable efforts is not susceptible to a hard and fast rule, but rather is contingent upon a set of factors.” • Rejects the idea of regulators setting specific measures/methods. • Encryption Example
ABA FORMAL OPINION 477 Instead, lawyers and firms should adopt a: 1. process to assess risks, 2. identify and implement appropriate security measures responsive to those risks, 3. verify that they are effectively implemented, and 4. ensure that they are continually updated in response to new developments.
PEOPLE ARE USING • Zoom – not the free one, the one you pay for • Periodically the press suggests Zoom has security issues • Basic Plan - $14.99 per month – per host (person with power!) • GoT oMeeting – professional conferencing and webinar software • Professional - $12.00 per month per organizer • WebexVideo Conferencing – professional conferencing software • Starter - $13.50 per month per organizer • Google Meet – Part of the Google Suite of applications
LIVE ZOOM SESSION -
ZOOM SESSION RECORDING • T otal File Size ~ 20MB • Format is .mp4 video and audio
RECORDING AND STORAGE • Secure Communication System must be capable of recording entire conversation • (We used the free version of Zoom – not recommended) • Prepare to store the recording for 7 years • Management of recording • One place for all recordings • Store recordings with client files (you have digital client files right?)
WHERE ARE U, WHERE IS YOUR SIGNER • Signer and notary must both be physically located in Vermont • This was not included in the sample session and presents a significant defect in the procedures.
IDENTIFYING THE SIGNER • Identification of the Signer is critical step • Known to the notary • Personal dealings sufficient to provide a reasonable certainty of identity • TWO forms of Identification • One Government issue • One a reasonable source of identification (picture + name, name + signature) • Clearly deficient in the sample video!!!!! • Identified by credible witness known to the notary and knows the signer • Signed affidavit for the record • Witness may also appear in the secure communications link conference
WHAT ARE YOU NOTARIZING? • Must be a paper document • Signer and notary must have shared document in advance of signing • Notary (attorney) sends document to signer • Signer sends document to notary • Signer holds each page of document up to camera so notary can identify • Not recommended for real estate closing package
PROCEDURE FOR REMOTE NOTARIAL ACT – • Set up communications link and begin recording • Confirm the signer is in Vermont • Identify the signer • Have the signer identify the documents being signed • Watch the signer sign the documents • End the recording session and store the file
POST -COMMUNICATIONS ACTIONS Signer sends the original documents to notary (mail, delivery, digitally [fax, scan and email, cellphone camera]) on the same day • • Notary compares the documents submitted by signer to documents identified before communication • Notary completes the notary certificate (ink signature) on the documents transmitted to notary by the signer Cellphone camera images are the LEAST preferred transmission • • Record the original documents
NOTARIAL CERTIFICATES • Recommended – use the form on the VBA Website • Form of Certificate • Securely attach the separate page to the document sent by the signer to the notary. • OR - Use the certificates in the Emergency Rules • CRITICAL – the Notarial Certificate MUST include a statement that the signer’s acknowledgement was completed remotely
STATUTORY CHANGES • 27 VSA 341(d) – New Section Authorizes the recording of documents without wet ink signatures if notarized under the Emergency Rules. • • In theory you can use printed cell phone camera pictures with a wet ink acknowledgement BUT it is not recommended! • • 14 VSA 3503 – New Section. For powers of attorney notarized under the emergency rules, the witness is deemed present even if not actually • in the presence of the principal.
QUESTIONS
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