The notary public and Mitt Romney's minor legacy

Henry J. Lane, Attorney, Lane & Hamer LLC

The role of the notary public in the United States has been fairly consistent over the last several centuries. The duties primarily consist of acknowledging signatures and administering oaths. In both cases the notary is responsible for determining that the person who has signed a document is in fact the person who is identified in the document and also that the signature was a voluntary act. Documents that require notarization include deeds, mortgages and self-proving wills. In both cases the notary must personally know the person who is signing the document or must examine documents to establish the person's identity such as a driver’s license, passport or other government issued identification. If such documents are not available, the notary public may rely on identification provided by witnesses the notary public considers to be reliable. In addition to confirming the identity of the individual signing the document, the notary must also determine that the document is being signed voluntarily and that the person signing the document, whether a deed or a will, was not being pressured or forced to sign the deed by another person. In both cases the notary must also be satisfied that the person signing the document understands what the document is although the notary is not responsible for investigating or determining the legality, propriety, accuracy or truthfulness of the document that is being notarized. The second category of documents that require notarization are affidavits and related sworn statements. Affidavits and similar documents are often required when administering estates, applying for public benefits and providing evidence in legal proceedings. When notarizing such documents the notary also has to confirm the identity of the person signing the document and then must administer an oath by requesting the person signing the document to swear or affirm that the contents of the document are truthful and accurate to the best of the person's knowledge.

Although the role of the notary public in United States is generally limited, the term is used much differently in many other countries, including Canada, Mexico and much of Europe. In many other countries the term "notary" or a local variation thereof is used to identify a person engaged in the practice of law. In those countries the term is used to identify a lawyer who prepares deeds, wills, mortgages and handles real estate transactions and the probating of estates. A lawyer in those countries who conducts trials is often referred to as a "barrister" in English-speaking countries or as an "abogado" in Spanish- speaking countries. The distinction between the use of the term "notary" in the United States and the use of the term in foreign countries was of little consequence until large numbers of immigrants from Latin American countries arrived over the last several decades. Many people from Spanish- speaking countries assumed that a "notary public" in United States had the same qualifications as a "notario" in their home countries. And, to add to the confusion, apparently in some communities notaries held themselves out as having the ability to provide legal services with respect to immigration issues.

So, after several hundred years with very little regulation of notaries public, Governor Mitt Romney issued an executive order in December of 2003 which significantly changed the way notary public services were provided in Massachusetts. The Executive Order had three basic components. First, it updated the language used to notarize documents that had traditionally been used and made the requirement to confirm the identity of the party whose signature was being notarized more explicit. Secondly, it formalized the requirement that notaries public who are not attorneys are required to record every notarial act in a bound ledger so that there is a permanent record of those transactions. Thirdly, it reinforced the prohibition against notaries public providing legal advice or services unless they are also attorneys. In the case of notaries public using the term "notario" or other foreign-language equivalent of notary public, an express disclaimer is required indicating that the individual is not an attorney and cannot give advice on immigration or other legal matters.

Mitt Romney may be off pursuing a larger dream but his footprint in Massachusetts remains in the form of his Executive Order modernizing the role of the notary public, a copy of which is available on the website of the Massachusetts Secretary of State.