The North Carolina State Bar has issued a proposed Ethics opinion addressing notorial acts by an attorney representing parties involved in a non-litigation matter. An attorney acknowledged a petition to reopen an estate for clients that had signed the petition, but failed to get it acknowledged. The clients did not sign the petition in the attorney’s presence, nor did they acknowledge their execution to him at any time. The opinion quotes North Carolina Gen. Stat. §10A-3(1), which provides that "acknowledgment" of a signature on a document is "a notorial act in which a notary certifies that a signer, whose identity is personally known to the notary or proven on the basis of satisfactory evidence, has admitted, in the notary’s presence, having signed a document voluntarily."

The opinion rules that it is unethical for an attorney to fail to follow the law and therefore to notarize a document when the signer has not acknowledged its execution in the attorney’s presence. The opinion would also rule that it is unethical for an attorney to direct an employee to do the same thing. The opinion also recognizes that "this provision of Chapter 10A is widely ignored."

The posing of this inquiry is extremely troublesome. NCGS Sec. 10A-12(c) provides that a "notary who takes an acknowledgment or performs a verification or proof knowing it is false or fraudulent is guilty of a Class I felony." This wording is ambiguous in that, arguably, it can be construed to apply to the act of falsely taking an acknowledgment. It would certainly be a Draconian measure to apply such a penalty to the practice described in the inquiry, particularly where the instrument was in fact executed as acknowledged. The belief that the casual practice of taking acknowledgments informally is widespread would not abrogate the penalty provision of the Chapter if it were construed to apply.

There is also the title issue regarding the validity of deeds that are improperly acknowledged. Our law is well settled in this state that the " ‘registration of an improperly acknowledged or defectively probated deed imports no constructive notice, and the deed will be treated as if unregistered.’ Supply Co. v. Nations, 259 N.C. 681, 131 S.W.2d 425 (1963)", HI-FORT, INC. v. Burnette, 42 N.C.App. 428, 257 S.E.2d 85. Our Supreme Court made this quote from Supply in ruling that there was "sufficient evidence in the record to indicate that the deed was not properly acknowledged in that the grantors did not actually appear before the notary public as recited on the face of the deed. An acknowledgment before an appropriate officer is a prerequisite to the valid registration of a deed or any other instrument presented for recordation. G.S. 47-17. Furthermore, in Allen v. Burch, 142 N.C. 524, 55 S.E. 354 (1906), it was held that the registration of an improperly acknowledged deed was invalid and the deed, therefore, not admissible in evidence to prove an essential link in the record chain", HI-FORT, INC. v. Burnette, 42 N.C.App. 428, 257 S.E.2d 85.

If, in fact, the practice described in the proposed opinion is widespread, then there exists a veritable minefield of void conveyances out there waiting to explode in the face of unsuspecting title examiners. Now may be the time for our Legislature to reassess the requirement of acknowledging in the actual presence of a notary. NCGS Sec. 66-308.10 of the new Uniform Electronic Transactions Act, makes provision for electronic notarization and acknowledgment. If a signature or record relating to a transaction is required to be notarized, acknowledged, verified, or made under oath, that requirement is satisfied if the electronic signature of the official, and all other information required to be included by applicable law, is attached to or logically associated with the signature of record. This would seem to permit an electronic version or image of a notarial seal. While this Act paves the legal portion of the Electronic Highway, a large number of practical and technological obstacles stand in the way of its full implementation across all forms of commerce. This is particularly true in the case of real property transactions. Still, if electronic commerce makes sense at all, it is not a far stretch to permit electronic acknowledgment (i.e. telephone, e-mail or fax) where the provision of NCGS Sec. 10A-3(1) requiring that a "signer be personally known to the notary or proven on the basis of satisfactory evidence" is satisfied. This change would provide a reasonable solution to the problems that give rise to the "widespread practice" referred to in the proposed opinion. If a curative provision were included in any such legislation, a significant majority of those lurking land mines might be defused.

The full text of the proposed opinion follows.

Lawyer as Notary Public

Proposed opinion rules that a lawyer acting as a notary must follow the law when acknowledging a signature on a document.

Inquiry #1:

Prior to 1999, Attorney H represented the co-executors of the SL Estate. During the administration of the SL Estate, Attorney H failed to repair a deed to convey certain real property located in South Carolina to a trust that was created by SL. In October 1999, this oversight was detected and Attorney H agreed to reopen the estate. On October 28, 1999, the co-executors delivered to Attorney H’s office the original petition requesting the estate to be reopened. The co-executors had signed the petition but neglected to have their signatures notarized. Thereafter, Attorney H notarized the petition himself, although he had not witnessed either of the co-executors sign the document and neither had acknowledged his signature on the petition to Attorney H. Attorney H was familiar with both co-executors’ signatures, however, and the co-executors did in fact sign the petition.

Gen. Stat. §10A-3(1) provides that "acknowledgment" of a signature on a document is "a notorial act in which a notary certifies that a signer, whose identity is personally known to the notary or proven on the basis of satisfactory evidence, has admitted, in the notary’s presence, having signed a document voluntarily." It is believed that this provision of Chapter 10A is widely ignored. Did Attorney H’s conduct violate the Revised Rules of Professional Conduct?

Opinion #1:

Yes, compliance with the law is the most basic requirement of professional responsibility. Although convenience and "common practice" might suggest shortcuts are appropriate, a lawyer serving as a notary must comply with the legal requirements for proper acknowledgment of a document. See Rule 8.4(a) and (d).

Inquiry #2:

Would the answer to inquiry #1 be different if Attorney H merely directed an employee to notarize the document instead of doing it himself?

Opinion #2:

No. See Rule 8.4(a) prohibiting a lawyer from violating the Revised Rules of Professional Conduct through the acts of another.