Notary Public Beware

• Publication year: 2000
• Pages: 71

29 Colo.Law. 71 Colorado Lawyer 2000.

2000, March, Pg. 71. Notary Public Beware

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71

Vol. 29, No. 3, Pg. 71

The Colorado Lawyer
March 2000
Vol. 29, No. 3 [Page 71]

Specialty Law Columns
Young Lawyers Column
Notary Public Beware
by Joel S. Thompson

Because of the frequent need in law offices for a variety of pleadings or documents to be notarized and the convenience of having a notary public readily available to perform this task, many lawyers or their support staff have been commissioned as notaries under the Colorado NNotaries Public Act ("Act").1 An applicant for a notary commission must take an oath, which states: "I have carefully read the notary law of this state, and if appointed and commissioned as a notary public, I will faithfully perform to the best of my ability, all notarial acts in conformance with the law."2

Many applicants take this oath without reading the Act or understanding and appreciating the duties and responsibilities they assume in accepting the commission After becoming notaries, some notaries do not review or consider their duties and responsibilities when they perform notarial acts. The purpose of this article is to outline the duties and responsibilities of notaries, and discuss the criminal, civil, and regulatory consequences of notarial misconduct

Responsibilities and Rules for Notaries

A notary or notary public is an individual appointed or commissioned by the Colorado Secretary of State to perform acts authorized by Colorado law.3 For example, notaries are empowered to take acknowledgments, administer oaths and affirmations, certify documents, and take depositions.4 The performance of notarial acts is called notarization.5

Part of the attraction for lawyers of becoming notaries or having their staff members become notaries is the ease with which applicants can be appointed and maintain the appointment. There are few qualifications for appointment. To qualify, applicants must be United States citizens, eligible to vote in Colorado, read and write the English language have no felony convictions, and have had no notary commissions previously revoked.6 After applicants submit an application that states they meet these requirements, provide business and residence addresses and telephone numbers, submit a sample of their official signature, and take an oath of office, their appointment as notaries is virtually ensured.7The requirement that a fidelity bond be obtained and submitted before appointment was repealed in 1992.8

There are some restrictions on the exercise of notarial powers, and there are regulations that govern the conduct of notaries. For example, a notary may not complete a certificate of acknowledgment or oath unless the person executing the document attests to the document in the physical presence of the notary and the person is personally known to the notary as the person named in the certificate, or the notary receives satisfactory evidence of the identity of the person.9 In addition, a notary may not perform any acts in connection with transactions in which the notary has a disqualifying interest.10 Notarization of a blank document also is forbidden.11 A notary must keep a journal of every acknowledgment taken to an instrument affecting title to real property.12 The violation of any of these rules or other misconduct by a notary may result in the revocation of a notary commission.13

Other acts of misconduct that may result in revocation include submitting an application for notary commission that contains substantial and material misstatements or omissions of fact, being convicted of a felony, engaging in the unauthorized practice of law, using false or misleading advertising, charging a fee in excess of the amount prescribed by law, or no longer fulfilling the requirements of appointment.

Given the large number of commissioned notaries, the number of revocations each year is relatively small. The majority of commission revocations have involved the notarization of documents that had not been signed in the presence of the notary, although a couple of revocations have resulted from notarizing a document in which the notary had a disqualifying interest. For less serious violations, such as simple errors in completing the notarial certificate, the Colorado Secretary of State sends letters of admonition.14

Most of the rules and restrictions pertaining to notarial activities are straightforward and easily understandable. One area of confusion, however, is what constitutes a disqualifying interest. The Act provides that a disqualifying interest exists in a transaction if the notary "(a) may receive directly, and as a proximate result of the notarization, any advantage, right, title, interest, cash, or property exceeding in value the sum of any fee properly received [under CARS § 12-55-121]; or (b) is named, individually, as a party to the transaction."15 In many cases, it is obvious when a notary has a disqualifying interest in a transaction. For instance, a notary may not notarize a document in which the notary is a payee or that the notary has signed on behalf of another by power of attorney.16

Other situations in which a disqualifying interest exists may be less obvious. For instance, the Colorado Supreme Court has held that it is improper for attorneys involved in litigation to notarize an affidavit to be used in that litigation.17 Because this holding is found in cases that were decided more than 100 years ago, lawyers might...