E-Signature, Electronic Endorsement of Notary Temporarily Acceptable in COVID-19

By Savannah Walker Smith and Ryan French

Louisiana law ordinarily requires that notarial acts be signed in the physical presence of the relevant notary. Pursuant to the Uniform Electronic Transactions Act (La. R.S. 9:2601 et. seq), an electronic signature satisfies any legal requirement of a signature. La. R.S. 9:2607. Likewise, if the law requires a signature to be notarized, the requirement is satisfied by the electronic endorsement of the notary. La. R.S. 9:2611. The use of electronic signatures does not, however, eliminate the requirement that the document be signed in the presence of the notary.

The requirement of the notary’s physical presence creates an obvious challenge during the coronavirus pandemic. In light of the CDC’s social distancing guidelines, most offices providing notarial services (including banks, the Office of Motor Vehicles, and many law offices) are either closed or not allowing in-person meetings with close contact.

On March 26, Governor Edwards issued Proclamation 37 to address the current impediment to consummation of notarial acts in Louisiana. The Proclamation provides that a commissioned notary (including an attorney) may perform notarization for an individual not in the notary’s physical presence if certain safeguards are satisfied. First, the individual, any witnesses, and the notary must be able to “communicate simultaneously by sight and sound” through an electronic device or process at the time of the notarization. Electronic phone or device applications like Zoom or FaceTime satisfy this requirement. Second, the notary must reasonably identify the individual. Third, the notary, either directly or through an agent, must create an audio and visual recording of the performance of the notarization and must keep the recording as a notarial record for a period of at least ten years from the date of execution, unless the law requires a different period of retention. The recording is, of course, subject to any other applicable Louisiana law governing the content, retention, security, use, effect, and disclosure of similar records and the information included therein. The fourth and final requirement is that the person appearing, the notary, and all witnesses must use digital signatures that render any subsequent change or modification of the remotely-consummated notarial act to be evident.

The language of the fourth requirement is rather vague, but the purpose seems to be to ensure that the document cannot be modified after it is signed. Given the concern evident in this requirement, best practice would probably be to time stamp the completed document following execution and immediately distribute the document such that a clear record exists of the instrument at the time of execution.

Notwithstanding Proclamation 37’s loosening of physical presence requirements, certain instruments still cannot be notarized remotely. In particular, Proclamation 37 specifically excludes testaments, trust instruments, donations inter vivos, matrimonial agreements, authentic acts, and acts modifying, waiving, or extinguishing an obligation of final spousal support. Consequently, the notary’s physical presence is still required for the formal execution of those instruments or acts.

It should lastly be noted that Proclamation 37 is only a temporary modification of the traditional notarial requirements. Unless and until Proclamation 37 is extended further, is applies only to acts executed between March 11, 2020, and April 30, 2020 (as extended by Proclamation 41).

While Proclamation 41 is set to expire on April 30, we would expect the temporary notarization rules to extend to at least May 15, given the Governor’s extension on Monday of the Louisiana Stay at Home Order. Click here to view the latest Proclamations issued by the Office of the Governor.

Accordingly, any notarizations that occur outside of that date range must comply with the ordinary, physical-presence requirements.

About Savannah Walker Smith: Savannah Walker Smith practices in various areas of commercial litigation, general/tort litigation, insurance defense, criminal defense, and family law. Savannah is admitted to practice in all Louisiana state courts, in the United States District Courts for the Middle, Eastern, and Western Districts of Louisiana.

About Ryan French: Ryan French practices in commercial litigation, complex litigation, property rights, church property law, and white collar criminal defense. Ryan has been ranked by his peers for six consecutive years (2015-2020) among Louisiana Super Lawyers “Rising Stars” in Business Litigation, and also by Best Lawyers in America (2020) in Commercial Litigation.

Taylor Porter attorneys continue to monitor the legal developments pertaining to COVID-19. For the latest legal news and developments, please visit the Taylor Porter Coronavirus – Legal News and Business Resources section of our website.