In Coronavirus-Stay-at-Home Orders, I talked about the Colorado Symphony’s performance of Beethoven’s Ode to Joy, made with each musician performing from home. At the time, stay-at-home orders and compiled orchestra performances like that were a new thing.
Now, staying at home feels like the norm. And orchestras worldwide have found similar ways to share their music despite the pandemic. I assumed the musicians simply played the music at the same time on Zoom or a similar platform with a record function.
I learned differently last week when one of my son’s orchestras was creating a virtual performance. Instead of being a simultaneous Zoom meeting, musicians had to create videos of themselves playing their parts alone. The videos then were combined into a single performance with audio and video from each of the 100 musicians.
To make his recording, my son needed two cell phones and a Bluetooth headset, plus his instrument and music. On one cell phone, he played a YouTube video of the conductor conducting while performing the melody on the piano. To prevent feedback, my son listened to the video with the headset while he used the second cell phone to record him as he played with the video.
My son positioned the second phone so he appeared in the video but wasn’t so far away that he couldn’t see the conductor video or his music. Each time he started a take, my son had to loudly say “clap” at the same time as the clapperboard on the conductor’s video.
It took several tries to determine the rhythm of starting the YouTube on one phone, pressing record on the other phone, backing up so he would be in camera range, saying “Clap!” and starting to play on time, all in just a couple of seconds. However, it was worth it because the result looked and sounded terrific.
The pandemic also has changed how legal documents are distributed, signed, and notarized. Like the orchestra recording, this is much more complicated than meets the eye. This article, part of a series about how coronavirus has affected business and real estate, discusses remote notarization.
Background on Notarization
Most of us have had a legal document, such as a real estate deed, mortgage, or power of attorney, notarized. Many people don’t realize is that there are two categories of notarized documents: sworn statements (or affidavits) and acknowledgements.
When someone signs an affidavit or other sworn statement, they are swearing under oath that the contents of the document they are signing are accurate. Mortgages and other documents are notarized, but they use acknowledgements. With an acknowledgement, the signer is swearing that they signed the document freely and that the signature is authentic
Traditionally, a sworn statement must be signed in the notary’s presence. A document need not be signed in the notary’s presence for an acknowledgement. However, even if the notary didn’t witness the person signing the document, the signer must acknowledge the document in the notary’s presence to swear the signature is authentic.
With this distinction, all notarized documents share the following requirements:
There must be a physical, paper document, which is manually signed by the signer.
The signer must appear before the notary in person.
The notary must be satisfied of the signer’s identity, either from a driver’s license or passport, or because the notary knows the signer personally.
The notary must manually sign the document and affix their notarial seal.
In most states, the notary must keep a written record book of documents they notarize.
As with virtual orchestra performance, it’s easier to meet some of these requirements electronically than others. With today’s technology, it’s easy for the signer and notary to “meet” online via videoconference. And the notary can maintain their written record book, even if a notarization occurs online.
But it may be challenging for a notary to confirm the authenticity of a driver’s license, passport, or other identification documents via an emailed document or webcam than it is if the documents are handed to the notary in person. And it’s logically impractical to conduct a notarization online if the notarized document must be in paper format and manually signed by both the signer and the notary.
Electronic notarization does away with the paper document and manual signature requirements. However, until recently, electronic notarization was allowed only if the signer appeared in person in front of the notary. That’s called an “in-person electronic notarization” (IPEN).
With IPEN, the notary can personally view the signer’s identification documents for authenticity. But with IPEN, the signer uses an electronic signature, and the notary also affixes their signature and seal electronically, also. Documents notarized with IPEN still must comply with federal or state laws regarding electronic signatures.
IPEN has value where a recording office accepts electronic filings because the electronic document easily can be transmitted to the recording office online. But IPEN doesn’t involve social distancing, which is a concern with the COVID-19 pandemic.
Remote notarization allows the notary and signer to meet on an online platform where they each can see and hear each other. But not all remote notarizations are the same.
With remote ink-signed notarization (RIN), the notary and signer still manually signs the legal document and affixes their seal by hand (or stamp). Remote online notarization (RON) combines electronic notarization and a remote meeting between the notary and signer.
As if the distinctions between IPEN, RIN, and RON aren’t confusing enough, each state has its own notary law. For interstate transactions, the notarization must comply with the law of the state where the signer and notary are located. However, recording offices might be hesitant to accept an out-of-state IPEN, RIN, or RON notarization that doesn’t comply with local notarization standards.
Remote and electronic notary laws have been evolving for several years. In 2018, the Uniform Law Commission amended the Revised Uniform Law on Notarial Acts (RULONA) to allow online notarizations. The year before, the National Notary Association (NNA) adopted the Model eNotarization Act of 2017 (MENA) regarding the notarization of electronic documents. Earlier, in 2010, in its Model Notary Act (MNA), NNA included an entire article dedicated to electronic notaries. Although the RULONA, MENA, and MNA contain similarities, their differences may have contributed to variations among state laws.
Although some states adopted laws allowing IPEN, RIN, or RON before the pandemic, many states had not. Recognizing that many people still need to conduct estate planning, sign advance health directives, and conduct business despite the pandemic, most states that didn’t have RON quickly adopted it through laws or governor or court orders. By the end of March, 45 states had authorized remote notarization authorizations.
Unfortunately, specific RON requirements vary from state to state. And so far, an effort to pass a national RON law has not progressed.
Remote Notaries in Maryland
The notary must have a current commission in good standing.
The notary must notify the state Secretary of State they intend to use remote notarizations.
The notary must use a vendor that allows not only for the notary to meet in-person with the signer but also to verify the identification documents. The state won’t recommend technology vendors but has said Zoom isn’t acceptable because it is not secure (this may change after May 30, 2020, when Zoom expects to have implemented security upgrades).
The notary must create an audio-video recording of the notarization.
The notary still must record the notarization in their notary log.
The notary still may not charge more than $4 for notarization.
In 2019, Maryland adopted RULONA RON provisions, which will take effect on October 1, 2020, making RON permanent in the state.
The Future of Remote Notarization
The COVID-19 pandemic has forced orchestras to embrace technology and change how they rehearse and perform. Composite performances like the one my son’s orchestra did may not continue after the pandemic. But with improved home audiovisual equipment and subscription services, many concert performances may include an online subscription or pay-per-view option.
The pandemic also has forced businesses to shed their previous reluctance to adopt technology and allow remote work. Having invested in technology and seen that many businesses can operate well with remote workers, it’s likely that at least partial remote work will become the norm.
It follows that now that states have invested the time to create a workable RON process, most will adopt RON laws. Just as it took my son several tries to become accustomed to the process for recording his orchestra performance, there may be some missteps before states find RON processes that work in the long run.
Before the pandemic, there wasn’t a clear leader among the RULONA, MENA, and MNA. However, given the Uniform Law Commission’s 100+-year history and reach to 49 states with the Uniform Commercial Code, I believe the RULONA likely will take the lead in the RON law race.
RON not only streamlines business and real estate transactions. RON also can help individuals who are homebound, hospitalized, or in nursing homes sign important legal documents. If combined with captioning or other technological communication tools, RON also has the potential to assist individuals who are hearing-impaired or have communication disabilities in signing legal documents. RON also can make it easier for individuals whose first language isn’t English to sign documents by enabling a qualified interpreter, notary, and the signer to meet together online. Given these business and societal benefits, it’s likely RON is here to stay.
© 2020 by Elizabeth A. Whitman
Any references clients and their legal situations have been modified to protect client confidentiality
DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless a written contract is signed by all parties and any conditions in such contract are satisfied.