Commercial Litigation

Alabama Adopts Temporary Remote Notarization to Encourage Business and Social Distancing

Under typical procedures in Alabama and many other states, notary publics, or “notaries,” must confirm in person the identity of the individual signing a document, and had to provide what is referred to as a “wet signature” to effect a valid notarization of that document. In contrast, some states including Virginia, Texas, Nevada, Minnesota, Montana, Ohio, Tennessee, Florida, Idaho, Kentucky, Oklahoma, North Dakota, and South Dakota, have enacted and fully implemented permanent remote online notarization laws and/or rules, known as “RON.” In response to the Coronavirus emergency and the “stay-in-place” orders designed to stop the spread of the virus, many states have enacted temporary emergency procedures to allow notaries to carry out their duties remotely in these unprecedented times.  As of March 26, 2020, Alabama joined the states implementing emergency procedures for RON when Governor Kay Ivey issued a Fourth Supplemental State of Emergency (COVID-19) Proclamation. To temporarily address the concerns associated with the Coronavirus and in-person meetings, the Proclamation provides in pertinent part:

III. Notaries and Witnesses

  • Because person-to-person contact increases the risk of transmitting COVID-19, I find that it would promote the safety and protection of the civilian population to adopt measures that reduce the necessity of in-person meetings. To that end:
  • Notaries in Alabama who are licensed attorneys or operating under the supervision of licensed attorneys may notarize signatures through videoconferencing programs and confirm the signatures of witnesses who participate virtually through videoconferencing as though they were physically present at the signing.
  • Any person who witnesses a document through videoconference technology may be considered an “in person” witness, provided that the presence and identity of such witnesses are validated by the notary at the time of the signing by the same identifications required under current law.
  • The official date and time of the notarization shall be the date and time when the notary witnesses the signature via the videoconference technology. All documents must be returned to the notary for certification and execution.

Pursuant to the Proclamation, any notary who is a licensed attorney or who is supervised by a licensed attorney may notarize signatures using videoconferencing programs as if the notary was physically present at the signing. Notaries must validate the identity of the signers at the time of the signing using the same identifications required under current law. The executed document(s) shall be returned to the notary for certification and execution. The Proclamation further provides that the official date and time of the notarization shall be the date and time the notary witnesses the signature via the videoconferencing technology. In addition, the Proclamation provides a mechanism for remote “witnessing” of documents by providing that that any person who witnesses a document through videoconferencing will be considered an “in person” witness as long as the notary validates their identity by the same identifications required under current Alabama law at the time of the signing.  

While Alabama’s Proclamation does not provide much practical guidance, reviewing best practices in states that have enacted permanent RON laws is informative. If possible, the notary should record and securely save the videoconference, a feature that is available on many commercial videoconferencing platforms such as Zoom. During the videoconference, the notary must be able, in real time, to compare visually the signer of the document with the information presented on a government-issued photograph identification document (usually in the form of a driver’s license or passport). If the videoconference is not being recorded, the notary should record “screenshots” of the valid government identification presented, the signer of the document, and the documents being signed and notarized. If the government identification presented is a valid driver’s license, the notary should record “screenshots” of the front and back of the driver’s license. If the videoconference is being recorded, the signer of the document should identify him or herself by name, address, and date of birth and should confirm the form of the identification presented. When the required documents are sent to the notary for certification and execution, copies of the government-issued identification relied upon in the videoconference should also be included.

As always, our team at RumbergerKirk is here to assist you as we all work through this crisis together.

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