Here is a recent Daily Record column. My past Daily Record articles can be accessed here.
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NY Makes Notaries More Accessible By Passing Online Notary Law
Over the past few years, there has been a significant transformation in the way that work gets done. Hybrid and remote work has become commonplace, resulting in a growing need for new and innovative approaches to conducting business online. How we work is evolving, and in many cases, the changes will be permanent.
One example of this evolution is online notarization. During the pandemic, steps were taken to facilitate various types of remote work, including the passage of temporary regulations that permitted documents to be notarized remotely using online tools like videoconferencing software.
As the effects of the pandemic recede, some states have taken steps to extend the temporary regulations by passing laws that establish permanent online notary procedures. These newly codified laws have the potential to revolutionize the way that legal professionals work, making it easier than ever for lawyers to practice law from any location.
Most recently, New York enacted new rules regarding online notaries on February 1st. Executive Law Section 135-c was passed and authorizes notaries to perform electronic notarial acts as long as they registered with the Department of State and comply with the newly promulgated rules. The notary must be located in New York when the documents are signed, but the signer may be located elsewhere.=
The new law defines electronic notaries as “a notary public or notary who has registered with the secretary of state the capability of performing electronic notarial acts in accordance with section 135-c of the Executive Law and this Part.”
Under this law, notaries must identify remote document signers in one of three ways: 1) the notary may have personal knowledge of the signer; 2) the notary may use technology that allows for the signer to provide an official, acceptable form of proof of identity; or 3) by taking the oath or affirmation of a witness who personally knows the signer, where the notary either personally knows or is able to identify said witness as a result of previous remote identification verification.
Once the document is signed, the law requires notaries to enter into a journal the notarial act performed and the type of identification provided. Journal records must be retained for 10 years after completion of the notarial act, as does the audio-visual recording of the notarization, along with a backup recording.
I’ve advocated for the increased use of cloud-based technology in the legal profession for over a decade now, and from my perspective, the rapid uptick in its adoption driven by pandemic forces has been nothing short of miraculous. The passage of this regulation and others like it is a wonderful step forward and a heartening sign of things to come.
That being said, there have been some legitimate issues raised regarding the long-term effects of this new law. First, the complexity of the procedural requirements has been criticized. Second, the required length of the record-keeping requirements has been perceived as unduly burdensome, especially as it relates to the electronic data.
Finally, there are concerns about the long-term impact that this new law will have on the availability of notaries. The fear is that the 24/7 online availability of electronic notaries will reduce the demand for in-person notaries locally, while the stringent and oppressive record-keeping requirements will dissuade people from becoming electronic notaries in the first instance.
Only time will tell whether this prediction comes to pass. In the short term, however, this new law will have a beneficial effect, and people seeking a notary will have increased flexibility and more options available to them. As far as I’m concerned, the immediate benefits outweigh the potential negative impact down the road, and I have faith that any issues with the law as promulgated will ultimately be ironed out over time
Nicole Black is a Rochester, New York attorney, author, journalist, and Senior Director of SME and External Education at MyCase legal practice management software. She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-author of “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authored “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.
Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.