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Q&A: Handling Improper Notarial Requests

Notaries employed in the financial or corporate sector are sometimes asked by their supervisors to commit notarial acts that don’t comply with state laws or best practices. Managers may simply be unaware of the rules, or, may, in some cases, be willing to knowingly violate them. The Financial & Corporate Services Section spoke with Professor Paul Fiorelli, Director of the Cintas Institute for Business Ethics and Professor of Legal Studies at Xavier University, and also a Notary, about how Notaries might respond when confronted with this ethical dilemma.

What advice would you give a Notary who has been asked to commit an improper notarial act?
The first thing you have to do is familiarize yourself with the rules of being a Notary, and also the exceptions to those rules. If you are unsure whether or not the act meets legal or best practice guidelines, you might contact the NNA Hotline for clarification. You are certified to authenticate a document, and there is a certain process to doing that. If you’re pressured to do otherwise, you have to push back.

How would you advise a Notary if, after explaining the ethical issue to the boss, the boss still tells the Notary to do the notarial act?
One thing I suggest in ethics training is to ask the person: would you be proud of having this action broadcast on the front page of the newspaper? People in higher positions might pressure or bully you, but if you come back and say, “I understand that you want this done and you don’t have the proper paperwork, but what would your boss say if they found out that you were bullying a Notary into violating her or his duty?” Once you’ve clarified what it is they’re asking for, one of the best comebacks is to simply say, “I’m not comfortable with this, because it’s not legal or appropriate.”

What steps can a Notary take if he or she ends up losing their job for refusing to perform an improper notarial act?
If they are asking me to authenticate a document I know to be false, do I have any recourse for getting my job back or getting financially recompensated? This is a question that would have to be answered on a state-by-state basis. You might have a case for wrongful discharge against your employer, but wrongful discharge lawsuits are time-consuming, costly, and often don’t work. However, the Dodd-Frank Act came out recently stating that whistleblowers that tell the FCC or government about fraud might actually collect a bounty fee from whatever settlement comes of the case. In these cases, a person doesn’t have to report the incident internally first, they can go directly to the FCC. So if you’re asked to notarize a document you know to be fraudulent for, say, a federally administered mortgage, or if a bank is asking you to commit fraud, you could actually report them directly to the FCC and possibly collect a percentage.

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