My late father practiced law in Illinois for 53 years as a self-described “small town [Champaign] lawyer.” While Champaign-Urbana may be a micro-urban area and he litigated many complex cases for high-profile clients, he prided himself most for his work on behalf of individuals and small business clients.
So, when he found himself at a bar association golf outing in a foursome with three other trial attorneys, he was ready to demonstrate his modesty with a joke. The other lawyers talked up their complex, high-value cases and judgments for the first few holes as my dad kept quiet. They eventually turned to him.
“So, Charlie… what kind of practice do you have in Champaign?” to which he replied, “Oh, I keep pretty busy… mostly notaries and some small stuff.”
All joking aside, the ability for parties to execute, witness, and notarize documents is essential to many forms of business operations. Laws and rules determine strict guidelines to address security concerns and fraud prevention in transactions. So, along with all other difficult challenges created by the COVID-19 pandemic and stay-at-home orders, uncertainties over witnessing and notarizing documents call for special considerations.
Concerns over Requirements in Illinois
In Illinois, the Notarization Task Force on Best Practices & Verification Standards to Implement Electronic Notarization issued its Report to the Governor and General Assembly in December 2019 recommending the allowance of electronic and remote notaries. A bill was subsequently introduced in the Illinois Senate (SB3698) to amend the Illinois Notary Public Act concerning electronic notarization and electronic notaries public, among other things.
Nevertheless, without a new law and guidelines yet in place, Governor J.B. Pritzker was compelled to issue an Executive Order to address the services of notary publics and the remote witnessing of document signings. He was not alone, as over 20 other governors have issued similar executive orders (see list below) regarding notarizing and/or witnessing documents due to the pandemic.
Issued on March 26, Executive Order 2020-14, along with guidance from the Illinois Secretary of State for remote notaries and consumers, outlines the procedures and limitations to observe during the duration of the Gubernatorial Disaster Proclamation related to the outbreak of COVID-19. Yet, several Illinois attorneys have expressed concerns about the requirements under the order, some deciding to forego implementing its allowances.
For example, section 2(h) of the Order requires the signatory to “transmit by fax or electronic means a legible copy of the entire signed document directly to the witness” (emphasis added). Circumstances exist where a signatory may not want witnesses to see the entirety of a document such as a will or trust. In addition to privacy concerns, many people may not have devices or resources at home to scan or fax documents.
Sticking to Traditional Methods
Some Illinois attorneys are sticking to the traditional methods while conforming their practices to remain in compliance with the stay-at-home order and social distancing. “I personally feel the remote notarization protocol is vague and not clear-cut, raises questions as to whether the Governor has the authority to issue this order, and is forever on record for future scrutiny as to whether or not it is deemed to conform to the requirements,” says Oak Brook attorney Colleen L. Sahlas. She is sticking to alternative options, such as using notary services found at various UPS locations when necessary.
Others say that if they must proceed under the order, they will be sure to expressly reference the order in the document itself and even attach a copy to reassure authority and compliance. In addition, some say they will “update” any such transactions once the stay-at-home order is lifted.
“I do plan on having clients re-sign/witness/notarize Estate Planning docs regularly at a later date for free,” says Byron attorney Maria N. Berger. “I understand that it might raise some problems, but I think they can be overcome for the most part, and when a lot of people need their estate planning done now, in case they contract the coronavirus, I think it’s a reasonable approach to take.”
What steps have you taken in your practice to execute certain transactions when witnesses or notarization is required?
Executive Orders by State Related to Notary Acts and/or Witnesses Documents (as of 4/8/2020)
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