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A Notary Mistake Can Be Criminal

Gavel2-resized.jpgIt’s an all-too-common occurrence: skipping a step in a notarization. Especially if it doesn’t seem to be important, and you’re dealing with your boss. But it is the kind of situation that should be avoided like the plague because it could land you in more trouble than you want — including possible criminal charges.

The case in question involved a Notary who worked for the owner of a business and performed notarizations as part of her job. The owner decided to apply for an appointed position with a government agency and filled out the required application, including an attached supporting affidavit.

The owner handed the signed application and affidavit to the Notary-employee, who filled out a jurat certificate but did not administer an oral oath or affirmation.

Notary Requirements
 

Notaries are required by law to administer oral oaths or affirmations when performing jurats or verifications on an oath or affirmation. When the certificate says it has been “signed and sworn to,” or words to that effect, the Notary is required to administer an oral oath or affirmation.

No exact language is prescribed for the oath or affirmation, so I ask this question of the document signer: “Do you solemnly swear or affirm, subject to the law of perjury, that the information contained in this document is true and correct?” The signer should answer orally, “Yes.”

In addition, almost all states have laws that make it “official misconduct” (or something comparably titled) for public officials, including Notaries, to fail to carry out their official duties — and that could include a willful or negligent failure to administer a required oral oath or affirmation.

The Lie And The Risk To The Notary

It was discovered that the business owner had lied on the application about some important background information. The local prosecutor charged the boss with the felony crime of perjury, for lying in the affidavit. Then, the prosecutor considered charging the Notary with official misconduct.

The Notary was granted immunity to get her cooperation, and she admitted that she failed to administer the required oral oath or affirmation.

I was asked by defense counsel to provide my expert opinion about whether the business owner was guilty of perjury since no oral oath or affirmation had been administered. Unhesitatingly, I concluded that the boss had not committed perjury because the boss had not been placed under oath or affirmation. The boss had lied, but not under oath. Ultimately, the boss avoided prosecution for felony perjury, and the Notary avoided being charged with official misconduct (although the Notary had clearly failed in her duty).

Nevertheless, this experience was very bad for both the business owner and Notary. They were embarrassed by the negative publicity in the media, they had to pay a lot of money for legal and expert services, and they lost a lot of their time to the legal process.

Even though the Notary escaped criminal charges, she faced disciplinary proceedings from the Notary oversight agency, which filed an administrative complaint against her.

The Lessons
 

This case illustrates several lessons for Notaries:

  • Know when an oath or affirmation is required, and administer it orally.
  • Record the fact that an oral oath or affirmation was administered in your Notary journal entry.
  • Do not take shortcuts in performing notarizations for the boss or anyone else.
  • Be aware of the crime of official misconduct, and avoid it like the plague.

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Michael Closen is Professor Emeritus at the John Marshall Law School in Chicago, Illinois. A respected consultant on model Notary statutes and legislation, Closen served on the drafting committees for The Notary Public Code of Professional Responsibility and various editions of the Model Notary Act, and recently authored Professor Closen’s Notary Best Practices: Expert's Guide to Notarization of Documents.

Related Articles:

How To Complete A Jurat

8 Comments

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Yuktia Manuel

09 Apr 2018

I created a check sheet to use with each client and check off type of services were needed etc... Its a headache but it has kept me out of trouble plus I video all oaths I have to do.

Brandy Palau

09 Apr 2018

Would you mind sharing your spreadsheet? I agree the extra work is tedious but I'm sure it's well worth it.

Shelly

26 Apr 2018

If an attorney who is also a notary drafts the marriage settlement agreement and 9 warranty deeds for their client and the clients spouse does not have legal counsel but goes to attorney/notary’s office and signs all the documents that have the attorney’s name and law firm name on them and the attorney notarizes for the clients spouse who is not a client. Is this criminal and are those documents consider invalid public records after they are filed?

National Notary Association

26 Apr 2018

Hello. We are sorry, but we cannot offer legal advice or opinions on whether documents are valid or invalid in a court of law, and we cannot offer you a legal opinion whether a crime has taken place or not. You would need to contact a qualified legal professional such as attorney for legal advice on this issue.

MisterJ

19 Jun 2018

I am always very careful to make sure and administer the oral portion of the notarization if the notary certificate calls for it. Apparently, many notaries are neglecting this and the public is not aware of it, as every time I do so, the signer is absolutely flabbergasted at the very notion of swearing or affirming anything. Also, when I have taken a document to another notary public for notarization, they have never administered the oral portion. Dear notaries, please make sure you are following all the necessary steps, and that you are actually familiar with the different types of notary acts!

Aarono Cooper

26 Jun 2018

Every day I hear, I have bought and sold many houses and not once have I had to do that.". This response us when I administer the verifications upon oath, affirmations, and take the acknowledgments. It is a sad commentary on the education level of Notaries Public in WA. I have even had major title companies ask, why did you put my client under oath? The enquiring persons are the ones who gave me the document that included a jurat!

Brian

30 Nov 2018

A Notary knowingly was using a False document in my own expence , did not respect the signed PROMISE TO PURCHASE Agreement and illegally and by thread took portion of my money forcing me to sign that I had accept it voluntiarely. What happens next ?

National Notary Association

30 Nov 2018

Hello. If you have reason to believe a Notary has committed an illegal act and wish to report it, you should contact local law enforcement or submit a complaint with the CA Secretary of State's office at https://www.sos.ca.gov/notary/file-complaint/.

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