OLTA Task Force Makes Recommendations to SB 263 Sponsors
Wednesday, March 21, 2018
Posted by: Lori Landry
SB 263, which would codify electronic notarization, has been introduced in the Senate and assigned to the Insurance and Financial Institutions Committee and had a sponsor hearing. OLTA's Electronic Notarization Task Force met to review the bill and make recommendations to the bill's sponsors. Those recommendations include the following:
• Guidance on what a “credible witness” means. We believe it would create an area for a judgment call for a notary that could be questioned and the source of litigation if more explicit guidance is not provided on what does and does not constitute a credible witness. Additionally, the witness is not subjected to the same credentialing process as the principal. We believe the witness should be subject to the same credentialing verification process as the principal absent a credible witness.
• Could the bill provide a “papering out” option for counties where electronic documents cannot be recorded? In other words, could a certified paper copy of the electronic document be printed to be reviewed by county agencies? We believe that a person with access to the securely stored electronically executed document could attach a “wet” certification, sworn before a notary, that the document presented for record is an unaltered copy of the electronically executed document, and thus conveniently allow for recording in counties where e-recording is not available or where the document must be walked through the auditor’s office. There should be language which clearly indicates the document so certified is deemed an “original” for purposes of presentation for transfer and recording. It may be prudent to include a draft of the form of certification.
• Should the Secretary of State’s rules promulgated in SB 263 be subjected to Chapter 119? We believe this would be appropriate.
• There is a separate e-notary commission. This commission expires when the notary’s commission expires. Commissions awarded to attorneys do not expire. Does this mean that e notary commissions issued to attorneys also do not expire? We believe it may be prudent to provide for expiration of even attorney notaries for e-notary commissions because continued education will be more important for compliance in this dynamic electronic notarization environment.
• E-notary records entries maintained by an attorney for client matters would be considered public records. Any person can make a request for inspection of the log. Also, a police officer can obtain access without a subpoena or court order if they are investigating “any matter” not just a crime or other matter involving a client. We would believe that such broad access merely upon request could conflict with matters subject to an attorney-client privilege but also provide the opportunity for abuse of the request process by unscrupulous solicitors. We believe it would be appropriate to limit the request to a person who either was or acted on behalf of the principal in the notarial act. We would also suggest that the investigation should be with regards to a criminal matter rather than merely any investigation, and for attorney notaries, that the request may be declined on the grounds of privilege.