Notary Bulletin

Notaries Have 'A Common Law Duty To Keep Records Of Their Official Acts,' Says Article In Prominent Law Review

LOS ANGELES - Laws in most states do not require that Notaries Public maintain records of their official acts. But in a recent 230-page article in a prominent law review, a case has been made that America's Notaries have a "common law" duty to keep a journal record of all their notarizations - further underscoring the effect of a recent landmark Illinois Appellate Court ruling that asserts Notaries have responsibilities to the public that go beyond what is specified in existing state laws.

Published in the winter 2009 edition of The John Marshall Law Review, "The Case That There Is a Common Law Duty of Notaries Public to Create and Preserve Detailed Journal Records of Their Official Acts - states that only one-third of the nation's 4.8 million Notaries are required by statute or rule to maintain a record of their notarizations - even though officials in virtually every state highly endorse the public benefits of Notary recordkeeping.

The article maintains that the advantages of recordkeeping by public officials are so deeply embraced and entrenched in the standards of English common law (the foundation of the American legal system), the practice cannot be set aside. The article is co-authored by Michael L. Closen, Professor Emeritus of The John Marshall Law School of Chicago, and Charles N. Faerber, Vice President of Notary Affairs of the National Notary Association.

Professor Closen had earlier served as an expert witness in the case of Vancura v. Katris, which inspired a precedent-setting December 2008 ruling by the Illinois Appellate Court. In its much-noted decision, the Court held that both Notaries and their employers have a common law duty not to harm the public they serve, regardless of what is specifically required by local statute. In the absence of statutory rules, the Court said, Notaries must be guided by such recognized standards as the National Notary Association's Model Notary Act.

The Appellate Court also ruled that employers are obliged to train and supervise employee-Notaries to ensure they do no harm to the public for whom they provide notarial services. In the Vancura case, an Illinois Notary was so ill-informed about his notarial duties that he believed the identification process consisted merely of comparing signatures. He also felt it was acceptable practice to surrender his seal to an employer for safekeeping when not in use.

The John Marshall Law Review article, in citing the benefits to the public of maintaining notarial records, states: "The authors know of not a single reported court decision in all of U.S. history involving a notarization in which the Notary, who had not prepared and retained a journal record, could recall the specific circumstances about the notarization in question." While the Law Review article makes an exacting and persuasive case that Notaries must keep a record of what they perform, the message of the Vancura case is even more sweeping: Notaries must apply notarial best practices to everything they do as a public official, regardless of the limited requirements of statute.

About the National Notary Association

Established in 1957, the National Notary Association (NNA) is the leading authority on the American Notary office and is dedicated to educating, serving and advocating for the nation's 4.8 million Notaries. The NNA imparts comprehensive notarial knowledge and understanding, promotes a positive public perception of the Notary professional, and bolsters consumer protection by promoting best practices. The Association's accredited professional programs, services, model legislation and groundbreaking eNotarization technology initiatives help Notaries advance their careers and serve the American public with the highest level of professionalism and ethics. To learn more, visit www.nationalnotary.org.

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Quiz: The Many Types Of Notarial Acts

Notaries perform many different duties for the public — and it’s easy to lose track of the different acts and what states they’re authorized in. Test your familiarity with common — and uncommon — notarial acts.

(A link to the correct answers is provided at the end of the quiz.)

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