May 31, 08

NEWS / Notary Public Commissioning; Registration as Electronic Notary

Description: Adopts substantive portions of Article III of the Model Notary Act of 2002 and institutes important new changes to paper-based Notary laws as well. Includes the adoption of a seal requirement, for both paper-based and electronic notarizations and requires that Notaries performing eNotarizations keep a journal of electronic acts.

State: Virginia

Effective: July 1, 2008

Signed: March 12, 2007

Chapter: 269

Affects: Amends Sections 2.2-409, 47.1-2, 47.1-3, 47.1-4, 47.1-5, 47.1-8, 47.1-9, 47.1-10, 47.1- 11, 47.1-12, 47.1-13, 47.1-14, 47.1-16, 47.1-17, 47.1-18, 47.1-19, 47.1-20, 47.1-21, 47.1- 22, 47.1-23, 47.1-25, and 47.1-30 of the Code of Virginia; adds new Sections 47.1-7, 47.1-11.1, 47.1-15 and 47.1-29.1; and repeals Sections 47.1-31, 47.1-32, and 47.1-33.
Changes:

Notary Public Commissioning; Registration as Electronic Notary

1. Raises the fee for a Notary Public commission from $25 to $35, establishes a $35 fee for registration as an electronic Notary and authorizes the Secretary of State to charge an additional $10 technology fee per Notary commission and electronic Notary registration.

2. Prohibits any person from applying for a Notary commission who has committed a felony unless the person has been pardoned for such felony, has had his or her rights restored or has had the conviction vacated by the granting of a writ of actual innocence.

3. Authorizes a Virginia Notary to perform electronic notarizations upon registering with the Secretary of State on a registration form created by the Secretary.

4. Specifies that this registration must include a description of the technology(ies) the registrant will use to create an electronic signature. The Secretary of State must subsequently be notified of any changes to the technology(ies) within 90 days.

5. Specifies that all commissioned Notaries and electronic Notaries shall receive a registration number assigned by the Secretary.

Definitions

6. Adds 20 new definitions – many of which are based in whole or in part on the Model Notary Act – including “acknowledgment,” “affirmation,” “copy certification,” “credible witness,” “electronic notarial act,” “electronic notarial certificate,” electronic notary seal,” “notarial certificate,” “notary public,” “personal knowledge of identity,” “principal,” “record of notarial acts” and “seal.”

7. Defines “record of notarial acts” as “a device for creating and preserving a chronological

record of notarizations performed by a Notary” and requires Notaries to record all electronic notarizations in the journal. (Note: journal-keeping for paper-based acts is not required.)

8. Defines “personal knowledge of identity” or “personally knows” as “familiarity with an individual resulting from interactions with that individual over a period of time sufficient to dispel any reasonable uncertainty that the individual has the identity claimed.”

9. Expands the definition of “satisfactory evidence of identity” to include the oath or affirmation of a credible identifying witness unaffected by the document and who knows the individual appearing before a Notary.

10. Defines “seal” and “electronic notary seal” and requires seal use for both paper and electronic notarizations.

Notarial Acts; Electronic Notarizations

11. Permits an employee of the federal government who is authorized to perform notarial acts to perform notarial acts in the Commonwealth without being expressly commissioned as a Virginia Notary Public.

12. Prescribes that on a paper document, the Notary shall affix a legible, permanent and photographically reproducible seal, and that on an electronic document, the Notary shall attach an official electronic seal. (Note: the law also states that a failure to affix a physical seal shall not in any way affect the legality or efficacy of the document.)

Notarial Acts; Electronic Notarizations

13. Allows an electronic Notary to act as a Notary Public in all respects upon being commissioned as an electronic Notary.

14. Requires a Notary performing electronic acts to take reasonable steps to ensure that any registered device used to create an electronic signature is current and has not been revoked or terminated by the registering authority.

15. Requires any Notary whose electronic signature or seal has been lost, stolen or used by another person to inform law enforcement in the case of theft or vandalism and to notify the Secretary of State in writing.

16. Prescribes that a notarial act – paper-based or electronic – must be evidenced by a notarial certificate signed by the Notary in a manner that attributes such signature to the Notary identified on the commission.

17. Requires that the Notary’s electronic signature or seal must be capable of independent verification and able to render any subsequent changes or modifications to the electronic document evident.

18. Requires that the Notary’s electronic signature and seal must conform to generally accepted standards for secure electronic notarization.

19. Requires a Notary to take reasonable steps to ensure the integrity, security and authenticity of electronic notarizations.

Notary Journal

20. Specifies the required entries for each record of an electronic notarial act entered in the Notary’s journal.

21. Permits Notaries to retain a photocopy of an ID card accepted for identification in lieu of entering the information in the journal.

22. Requires any Notary whose journal has been lost, stolen or used by another person to inform law enforcement in the case of theft or vandalism and to notify the Secretary of State in writing.

23. Requires a Notary to maintain a backup of an electronic journal and ensure protection of the backup from unauthorized use.

Ethical Standards, Prohibited Acts; Penalties

24. Prohibits a Notary from notarizing if the signer is not in the presence of the Notary at the time of notarization.

25. Prohibits a Notary from performing an official act with the intent to deceive or defraud.

26. Prohibits a Notary from using the Notary’s title or seal to endorse, promote, denounce or oppose any product, service, contest, candidate or other offering.

27. Prohibits a Notary from notarizing a document without notarial certificate wording on the same page as the signature.

28. Prohibits a Notary from affixing the Notary’s signature or seal on a notarial certificate that is incomplete.

29. Prohibits a nonattorney-Notary from assisting a principal in selecting, drafting, completing or understanding a notarized document or transaction, but permits a Notary who is trained, qualified or experienced in a given field to select, draft, complete or advise on a document or certificate related to a matter within that field.

30. Permits a Notary to decline a notarization.

31. Permits a Notary to add a notarial certificate or electronic notarial certificate to a paper or electronic document at the direction of a principal or lawful authority.

32. Clarifies that a Notary may not perform an electronic notarization if the Notary or the Notary’s spouse is a party to the document or has a direct beneficial interest in the electronic document.

33. Authorizes the Secretary of State to revoke the commission of a Notary who performs a prohibited act pursuant to COV Section 47.1-15.

34. Authorizes the Secretary to revoke the commission of a Notary who fails to keep the Notary’s physical or electronic seal, journal, or device, coding, disk, certificate, card, software or passwords used to affix the Notary’s electronic signature under the exclusive control of the Notary when not in use.

35. Authorizes the Secretary of State to revoke the commission of a Notary who is adjudged mentally incompetent.

36. Authorizes the Secretary to revoke the commission of a Notary who has been convicted of a felony, unless the Notary has been pardoned for the offense, has had his or her rights restored or has had the conviction vacated by a granting of a writ of actual innocence.

37. Authorizes the Secretary to revoke the commission of an attorney-Notary whose law license has been suspended or revoked.

Status Changes

38. Requires an electronic Notary who legally changes his or her name to submit an application for registration as an electronic Notary in the new name within 90 days of the change.

39. Permits a Notary who changes a residence address to submit notice of the change to the Secretary of State in an electronic format.

Fees for Electronic Notarizations

40. Authorizes an electronic Notary to charge a fee not to exceed $25 for performing an acknowledgment on an electronic document, certifying an oath, affirmation, electronic affidavit or deposition, or certifying a copy of an electronic document.

Authentications

41. Authorizes the Secretary of State to authenticate the electronic signature and seal of an electronic Notary with an electronic certificate of authority that is independently verifiable and will be invalidated if the underlying document is improperly modified.

Analysis:

Virginia becomes the second state after North Carolina to adopt substantive portions of Article III of the Model Notary Act of 2002 and provides important new changes to its paper-based Notary laws as well. In a rare change, Virginia actually adopts a Notary seal requirement, both for paper-based and electronic notarizations and requires that Notaries performing eNotarizations keep a journal of electronic acts. NNA Executive Director Tim Reiniger was recruited by the committee adopting standards for electronic recording in Virginia to provide expertise on notarization, and he recommended that for electronic recording to be successful, there had to be changes to the Commonwealth’s Notary laws as well, leading to this successful legislation.

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