The notary public who wishes never to be sued in civil, criminal or administrative court
might adopt as a motto the title of that most celebrated of legal writs: habeas corpus.1
“You have the body” would be an apt imperative for any cautious and conscientious
notary intent both on deterring fraud and staying out of court. The “body,” of course,
would be that of the signer of any document presented for notarization, for it is the
frequent failure of notaries to ensure the signer’s physical presence before them at the
time and place of the notarial act that has been a major cause of their legal problems in
recent decades.
Knowing their purpose is to detect and deter fraud, most notaries are well prepared for the
threat posed by impostors with false identification documents. They are on high alert
when a stranger approaches, requests a notarial act and presents a driver’s license or other
identification to prove identity.
However, their guard is down when it is a friend, relative, associate, client or supervisor
who requests their notarial services. And when that friend, relative, associate, client or
supervisor presents a document apparently signed by an absent third party, assuring the
notary that the signature is genuine, that the signer is ill or unavailable, and the urgency
such that immediate notarization is essential, the notary will frequently waive normal
precautions and procedures as a favor to this trusted person. Too often, that trust is
misplaced and the signature a forgery.
Today it is a sad and ironic reality that notaries are much more likely to be fraudulently
exploited by trusted acquaintances, family members and business associates than by
perfect strangers. The notary’s trust and friendship are readily discarded by the in-
dividual whose overriding priority is to gain control of joint assets in a crumbling
marriage or business relationship.
Court dockets, surety firm files and a staggering volume of anecdotes amassed through
the National Notary Association’s “Information Service”
chronicle two common illegal
scenarios:
Scenario A
The exploiter, well known to the notary, introduces a stranger with little or no identification as a
spouse or associate, then pressures the notary to notarize the stranger’s signature on a property
deed or other valuable paper and to ignore the inadequate documentary identification as a favor
(e.g., “She forgot her purse—don’t make us drive home to get it!”), sometimes hinting at or
threatening repercussions for not notarizing (i.e., loss of job, business or friendship). The
complying notary must complete a false acknowledgment certificate containing a statement such
as, “. . . Jane Doe, whose identity is personally known to me . . .,” or, “. . . Jane Doe, whose
identity was proven to me on the basis of satisfactory evidence. . . .”
SCENARIO B
The exploiter, well known to the notary, presents a property deed or other valuable document
bearing the signature of an absent spouse or associate, often also well known to the notary, then
pressures the notary to notarize the signature and to ignore the signer’s absence as a favor (e.g.,
“You know his signature—you’ve seen it many times.”), sometimes hinting at or threatening
repercussions. The complying notary must complete a false acknowledgment certificate
containing a statement such as, “. . . acknowledged before me by Richard Roe . . .,” or, “. . .
before me personally appeared Richard Roe, who acknowledged . . . .”
Both scenarios spell major trouble for the complying notary. In both, the notary, at the
least, is guilty of the criminal act of making a false certificate, a felony or misdemeanor
for a public officer, depending on state law; if the signature proves a forgery, the notary
may further be charged with participating in a criminal conspiracy to defraud, possibly
facing additional fines and/or imprisonment.
Because there is a high likelihood in both scenarios that the signature is indeed a forgery,
the victim whose signature was
forged will almost certainly sue the notary to recover losses, imposing the major costs of
a settlement or judgment on the notary, not to mention attorney and court costs.
In addition, criminal and civil actions against the notary, however disposed, often reveal
misconduct that imposes administrative fines and/or penalties of revocation, suspension
or denial of a current or future notary commission, while also threatening current and
future licenses of all kinds (e.g., law, real estate, insurance) in all states.
In describing and discussing misconduct by notaries, this article will focus on Scenario B,
perhaps the least excusable of any type of notarial impropriety. With Scenario A the
notary may at least claim to have a body on hand, though it is the wrong body, and there
may be mitigating circumstances, such as the stranger’s presentation of some
identification, albeit flimsy, and perhaps no exact statutory definition of “known to me”
or of “satisfactory evidence of identity.” These conditions may make the notary’s act
seem less egregious to a judge or jury.
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