Ohio’s New Notary Law, Plus Some Ethics Tips for Attorney Notaries

Ohio vaulted into the vanguard with a new notary statue, signed into law last December.  The Notary Public Modernization Act, codified in O.R.C. Ch. 147, adds on-line notarization to traditional “wet stamp” notarization – a technological twist that only a handful of other states have adopted.

About 50,000 Ohio lawyers are notaries, and the advent of the new notary law is a good opportunity to revisit ways to stay out of ethics trouble when it comes to using that stamp, whether in person or virtually.

“Wet stamp” and on-line

Once the statute becomes fully effective on September 20, 2019, documents will be able to be notarized online using live audio-video conferencing, electronic signatures and electronic notary seals. (O.R.C. §147.60; all references are to the new statue.)  A document notarized through the online process will be considered an original document. (O.R.C. §147.591(B)(1).)

Current notaries who want to journey to this new frontier will be required to be trained and tested. (O.R.C. § 147.63.) Lawyers seeking a “wet-stamp”  notary commission for the first time after September 20, 2019, will be required to take a course in addition to the technology training required to become an on-line notary. (O.R.C. § 147.01(B)(4)(b).)

Although a lawyer’s “wet-stamp” notary commission never expires, under the new law lawyers will be required to renew their on-line notary authorizations every five years. (O.R.C.§ 147.63(D)(4).)

In advance of the September 20 effective date for the whole statue, the Ohio Secretary of State’s office will be establishing rules and systems to implement the act. (O.R.C. § 147.62.)  Important details remain up for decision, including technology standards, training and testing content, and fees.   Draft rules went out for public comment on april 15; the comment period closes May 15.  You can view the proposed rules and their status at https://www.sos.state.oh.us/notary/.

Other states with some form of remote or on-line notarization include Michigan, Minnesota, Montana, Nevada, Texas and Virginia.  Indiana, Tennessee and Vermont have statutes set to go into effect later this year, according to the National Notary Association.

What about the ethics?

Has your brother-in-law ever brought you a car title he’s already signed and asked you to notarize it?  Have you ever felt pressure from a client who is “too busy” to sign the affidavit you need to support a motion?  On-line notarization may offer convenience for lawyers and clients — but the ethics principles involved are not going to change.  Falsely notarizing any document, in any way, is a way to get into ethics trouble under several rules.

For instance, in In re Fisher, 175 A.3d 490 (R.I. 2018), the lawyer represented a homeowner’s association in foreclosure matters.  When necessary, the lawyer would prepare a foreclosure deed to be exacted by an association officer, witnessed by a notary public, and recorded.  Eventually, however, the lawyer began signing the name of the association’s officer on the deeds, notarizing the signature, and recording the falsely executed documents.  The lawyer acknowledged that the conduct violated rule 4.1 of the state’s Rules of Professional Conduct (“Truthfulness in statements to others”) and Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).  the state supreme court publicly censured the lawyer.

Ohio also has disciplined notarial misconduct under Rule 8.4 of the Ohio Rules of Professional Conduct. In Disciplinary Counsel v. Koehler, 132 Ohio St. 465 (2012), the lawyer tried to get the client’s written authorization to obtain unclaimed funds being held by a bank.  With a deadline looming, the lawyer executed an authorization letter in the client’s name, used his secretary’s notary stamp to notarize the authorization, and signed both the secretary’s and the client’s names, before presenting the false document to the bank.  The Supreme Court entered a stayed six-month suspension, writing that the lawyer had circumvented, for convenience, the requirements for notarizing a document and thereby perpetrated a fraud upon all those who relied on [it]…His actions violated the duty he owed to his client, the public, and the judicial system to ensure the authenticity of the documents executed at his direction.

See also Akron Bar Ass’n v. Finan, 118 Ohio St. 3d 106 (2008) (public reprimand for lawyer who signed her client’s name and notarized her own signature on affidavit presented to court); Cincinnati Bar Ass’n v. Thompson, 129 Ohio St. 3d 127 (2011) (public reprimand for lawyer who notarized unsigned documents).

Another ethics rule relevant to notarization is Rule 5.3(b), which requires lawyers to make reasonable efforts to ensure that the conduct of staff members they directly supervise is “compatible with” the lawyer’s own professional obligations.  it goes without saying that lawyers should never ask a staff member to falsely execute or notarize a document.

Whether you are a wet-stamp notary, on-line notary or both, complying with the statute and the relevant ethics rules is the way to stay out of disciplinary trouble.

 

Karen E. Rubin is counsel at Thompson Hine LLP, focusing her practice on business litigation, legal ethics, and professional responsibility.  she is co-editor of the firm’s legal ethics blog, The Law for Lawyers Today (www.thelawforlawyerstoday.com), named by the ABA Journal as one of the 35 best law blogs of 2018.  Karen is currently vice-chair of the Ethics Committee and has been a CMBA member since 1985.  She can be reached at (216) 566-5815 or Karen.Rubin@ThompsonHine.com.

*Republished by permission of the Cleveland Metropolitan Bar Association. Originally appeared in the June 2019 issue of the Cleveland Metropolitan Bar Journal.