A Notary Mistake Can Be Criminal

By Michael Closen on April 05, 2018 in Best Practices

Update: 9-25-19. Shortcuts may save time but they rarely save the Notary whose notarization comes into legal question. Take your time, take the steps, and avoid potential misconduct. 

It’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.

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.

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