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COLuMN BarJournal

JULY/AUGUST 2015

SIGnED, SEaLED anD DELIvErED

Ohio’s New Notary Law, Plus Some Ethics

Tips for Attorney Notaries

Karen E . Rubin ETHIcS PErSPEcTIvE

hio vaulted into the on April 15; the comment period closes May 15. letter in the client’s name, used his secretary’s
vanguard with a new notary You can view the proposed rules and their status notary stamp to notarize the authorization, and
statute, signed into law last at https://www.sos.state.oh.us/notary/. signed both the secretary’s and the client’s names,
December. The Notary Public Other states with some form of remote or on- before presenting the false document to the bank.
OModernization Act, codified line notarization include Michigan, Minnesota, The Supreme Court entered a stayed six-month
in O.R.C. Ch. 147, adds on-line notarization Montana, Nevada, Texas and Virginia. Indiana, suspension, writing that the lawyer had
to traditional “wet stamp” notarization — a Tennessee and Vermont have statutes set to go circumvented, for convenience, the
technological twist that only a handful of other into effect later this year, according to the National requirements for notarizing a document and
states have adopted. Notary Association. thereby perpetrated a fraud upon all those
About 50,000 Ohio lawyers are notaries, and the who relied on [it]. … His actions violated the
advent of the new notary law is a good opportunity What about the ethics? duty he owed to his client, the public, and the
to revisit ways to stay out of ethics trouble when Has your brother-in-law ever brought you a car judicial system to ensure the authenticity of the
it comes to using that stamp, whether in person title he’s already signed and asked you to notarize documents executed at his direction.
or virtually. it? Have you ever felt pressure from a client who See also Akron Bar Ass’n v. Finan, 118 Ohio
is “too busy” to sign the affidavit you need to St. 3d 106 (2008) (public reprimand for lawyer
“Wet stamp” and on-line support a motion? On-line notarization may offer who signed her client’s name and notarized her
Once the statute becomes fully effective on convenience for lawyers and clients –– but the own signature on affidavit presented to court);
September 20, 2019, documents will be able ethics principles involved are not going to change. Cincinnati Bar Ass’n v. Thompson, 129 Ohio St.
to be notarized online using live audio-video Falsely notarizing any document, in any way, is a 3d 127 (2011) (public reprimand for lawyer who
conferencing, electronic signatures and electronic way to get into ethics trouble under several rules. notarized unsigned documents).
notary seals. (O.R.C. § 147.60; all references are to For instance, in In re Fisher, 175 A.3d 490 Another ethics rule relevant to notarization
the new statute.) A document notarized through (R.I. 2018), the lawyer represented a home- is Rule 5.3(b), which requires lawyers to make
the online process will be considered an original owner’s association in foreclosure matters. reasonable efforts to ensure that the conduct
document. (O.R.C. § 147.591(B)(1).) When necessary, the lawyer would prepare of staff members they directly supervise is
Current notaries who want to journey to this a foreclosure deed to be executed by an “compatible with” the lawyer’s own professional
new frontier will be required to be trained and association officer, witnessed by a notary obligations. It goes without saying that lawyers
tested. (O.R.C. § 147.63.) Lawyers seeking a public, and recorded. Eventually however, should never ask a staff member to falsely execute
“wet-stamp” notary commission for the first time the lawyer began signing the name of the or notarize a document.
after September 20, 2019 will be required to take association’s officer on the deeds, notarizing the Whether you are a wet-stamp notary, on-line
a course in addition to the technology training signature, and recording the falsely executed notary or both, complying with the statute and
required to become an on-line notary. (O.R.C. documents. The lawyer acknowledged that the relevant ethics rules is the way to stay out of
§ 147.01(B)(4)(b).) the conduct violated Rule 4.1 of the state’s disciplinary trouble.
Although a lawyer’s “wet stamp” notary Rules of Professional Conduct (“Truthfulness
commission never expires, under the new law in statements to others”) and Rule 8.4(c)
lawyers will be required to renew their on-line (conduct involving dishonesty, fraud, deceit Karen E. Rubin is counsel at Thompson Hine
notary authorizations every five years. (O.R.C. or misrepresentation). The state supreme LLP, focusing her practice on business litigation,
§ 147.63(D)(4).) court publicly censured the lawyer. legal ethics and professional responsibility. She is
In advance of the September 20 effective date Ohio also has disciplined notarial misconduct co-editor of the firm’s legal ethics blog, The Law for
for the whole statute, the Ohio Secretary of State’s under Rule 8.4 of the Ohio Rules of Professional Lawyers Today (www.thelawforlawyerstoday.com),
office will be establishing rules and systems to Conduct. In Disciplinary Counsel v. Koehler, 132 named by the ABA Journal as one of the 35 best
implement the act. (O.R.C. § 147.62.) Important Ohio St. 465 (2012), the lawyer tried to get the law blogs of 2018. Karen is currently vice-chair
details remain up for decision, including client’s written authorization to obtain unclaimed of the Ethics Committee, and has been a CMBA
technology standards, training and testing content, funds being held by a bank. With a deadline member since 1985. She can be reached at (216)
and fees. Draft rules went out for public comment looming, the lawyer executed an authorization 566-5815 or Karen.Rubin@ThompsonHine.com.
June 2019 Cleveland Metropolitan Bar Journal | 41