Changes to Notary Act and Rules That Affect Attorneys Now

By Ann B. Wall

Emergency Video Notarization (EVN) Alert

EVN expired on June 30, 2024, at 12:01 a.m. House Bill 556, which would have extended EVN until July 1, 2025, has been vetoed over a matter unrelated to notarization. Unless the General Assembly should override the veto or another legislative action is taken to extend EVN, it is not law. Do not perform or request an EVN by a North Carolina notary public until this changes. Current law requires both traditional and electronic notarization to be done in person.

Changes to the Notary Act and Rules Affecting Attorneys

Attorneys who are themselves notaries public and attorneys who supervise notaries have to comply with new rules that go into effect on July 1, 2024. These rules are the first step towards implementing the Remote Electronic Notarization Act. The Department of the Secretary of State adopted the rule changes after a nearly two-year process of drafting, receiving public comments and going through the formal rulemaking processes of the Administrative Procedures Act, Chapter 150B of the General Statutes. The Department is drafting other rules (yet to be put out for public notice and comment) necessary to implement the Remote Notarization Act. The Department has expended more than 8,000 hours in the rulemaking process, without additional funding from the General Assembly, and has had to divert resources to do so.

Significant Amendments to the Act and Accompanying Rules

The Notary Act, Chapter 10B of the General Statutes, has been amended three times in the last two years, in ways that affect notary-attorneys and notaries public working for attorneys outside the remote electronic notarization context. The accompanying rules clarify existing notary requirements and add new requirements to implement amendments to the Act. The new rules will be posted on the Department’s website and the OAH website. Changes include:

1.  Lack of personal appearance by a principal means commission revocation.

Under the new rules, if a notary notarizes a signature without the personal appearance of the principal, the notary commission will be revoked automatically. The Notary Act requires personal appearance of the principal. G.S. § 10B-20(c). Personal appearance is a defined term. G.S. § 10B-3(16). Reportedly, some attorneys have not been aware of this requirement and are obtaining the signature of a client on a document and then walking into their paralegal/notary’s office and saying “notarize this signature.” The Act requires that the principal (in this case the client), personally appear before the notary public at the time of the notarization. Effective July 1, 2024, the rules require the Department to revoke a notary’s commission for failure to require personal appearance of the principal. 18 NCAC 07B .0608(3). Coercing or influencing a notary to act in violation of the law is its own violation of the law. G.S. § 10B-60(j). The Department is required to notify the State Bar of final findings of violations of the Notary Act by an attorney. G.S. § 10B-60(l). Moreover, in some circumstances, the Act makes it a crime to notarize a document without the personal appearance of the principal. It is also a crime for anyone to knowingly solicit, coerce or in any material way influence a notary to commit official misconduct. G.S.10B-60(j).

2.  Confidentiality.

Attorneys, governed by strict confidentiality rules, may not be aware that the Act did not previously have a specific confidentiality provision applicable to notaries. The Act now specifically requires that notaries public maintain the confidentiality of the principal’s documents and information at all times. G.S. § 10B-20(p). The Department of the Secretary of State is seeking further amendments to clarify when notaries can release principals’ documents or information.

3.  Journals.

Journals are a protective measure for notaries, as well as the principals and public that notaries serve. All electronic notaries public are now required to keep journals. Effective July 1, 2024, there are rules governing the minimum contents of journals and how long journals must be maintained. 18 NCAC 07I. Traditional notaries public who follow the journal rules are deemed in compliance with the Notary Act.

4.  Attorney rules.

New section for attorneys: The Department has added clarity to the rules for attorneys by creating a new section of the rules specific to attorneys, 18 NCAC 07C Section .0700, Attorney Notaries. Here, you will find the basic rules for being commissioned or recommissioned as a notary public or registered as an electronic notary public. Commissioning requires certain acts of every notary, even of attorneys. Remember, you cannot perform a notarial act if your commission has expired even if you remain an active and licensed member of the bar. You must be sworn in at the register of deeds office in your county of residence for your initial and each subsequent commission prior to performing notarizations. You can never notarize your own signature.

* “Licensed member of the North Carolina State Bar” is defined to match the State Bar’s definition of “active member.” This means that an attorney who is not an active member of the State Bar is not exempted from taking the notary class or exam. No one is exempt from the electronic notary course and exam. 18 NCAC 07C .0704. Remember that the Notary Act prohibits the Department from commissioning an individual as a notary public within five years after completion of a disciplinary order. G.S. § 10B-5(d)(4). Also, the Department is required to notify the State Bar of final findings of violations of the Notary Act by an attorney. G.S. § 10B-60(l).

5.  New forms.

The Department has modified its forms to apply for initial appointment as a notary public and to apply for recommissioning, as well as the forms for electronic notaries public. The forms require more detailed information from an applicant than earlier editions. The forms will be available on the Department’s website.

6.  Fraud prevention and seals.

As an additional fraud-prevention measure, the Act now bars manufacturers of notary seals from providing a seal to an individual in North Carolina unless the individual presents a valid North Carolina notarial commission certificate. G.S. § 10B-36(e). The manufacturer must identify the individual using “personal knowledge” or “satisfactory evidence,” both defined terms in the Act. There is a mandatory fine for violations of the new provision.

Other Updates:

1.  Remote electronic notarization.

The Department is in the final phase of its rulemaking. This phase focuses on approving and licensing the technology providers that will provide the technology electronic notaries will use to perform remote electronic notarizations. It will also include rules for electronic notaries who perform remote notarial acts. The Department presently anticipates meeting the statutory deadline of July 1, 2025.

2.  Searchable database of notaries.

The Department anticipates rolling out a searchable public database of notaries public and electronic notaries public later this year so that the public may confirm whether a person has been commissioned as a notary and whether that commission is active. Subject to the exception for the limited information on notaries who choose to be listed in the Find-a-Notary feature, the database of all notaries will not include the information required for commissioning, as specified in G.S. § 10B-7(b).

For more information, email: [email protected]; Notary Division website; Telephone: 919-814-5400.