Notaries must know and follow laws to avoid potential liability problems.
Colorado notary law CRS 12-55-116 defines Official Misconduct by a Notary Public. It states that:
(1) A notary public who knowingly and willfully violates the duties imposed by Part 1 of the Colorado Notaries Public Act commits official misconduct and is guilty of a class 2 misdemeanor.
(2) A notary public and the surety or sureties on his bond are liable to the persons involved for all damages proximately caused by the notary’s official misconduct.
(3) Nothing in this article shall be construed to deny a notary public the right to obtain a surety bond or insurance on a voluntary basis to provide coverage for liability.
A Colorado notary is required to make an affirmation when he/she applies to become a notary that he/she has carefully read the notary law of Colorado and that he/she will faithfully perform all notarial acts in conformance with the law.
Colorado Notary Training
Notaries that have attended a Colorado notary training class also learn Colorado notary law and industry best practices.
It would be difficult for a current notary to claim that he/she did not know the notary law. A notary may also decline or refuse to perform a notarization for valid reasons, such as lack of satisfactory identification, lack of awareness or understanding by the signer, or a transaction that appears to be illegal, unauthorized, false or fraudulent.
A notary would be acting knowingly and willingly, unless it is some type of notarial act that the notary is attempting without proper knowledge or training, or in a case where a notary is being forced to notarize, while acting under duress, such as a threat of physical or economic harm or coercion by a customer, employer, criminal or another person.
Handling an Unlawful Notary Request
Keep a copy of the notary laws readily available. If asked to do an unlawful notary act, the person making the request may not know the law. Show the relevant law if needed and explain that the request cannot be performed because it is a violation of the law. The notary has a sworn duty to follow the law.
Warn an aggressive person that they may be charged with a crime for attempting to influence a public official to perform an unlawful act, or for hindering, obstructing or assaulting a public official in the performance of their duties. Warn an employer that they may be held liable for forcing or allowing an employee notary to perform an unlawful notary act while on the job.
Explain how the requested act may be performed in a lawful manner. If needed, seek help from a higher authority or attorney. Keep a record or incident report of attempts to threaten, intimidate, influence or coerce the notary. Report crimes to the authorities.
Under the Law of Agency, an employee (agent) has no duty to perform an unlawful act for an employer (principal).
The most common signed complaint against Colorado notaries, about 70% of all complaints, is for a document that was notarized without the presence of the signer.
Handling Threats or Violence
If an aggressive person becomes threatening or violent because the notary refuses to comply with an unlawful demand, the National Notary Association (NNA) recommends that the safest course of action may be to comply with the demand, to avoid harm, damage, assault or injury. Remove yourself from the threatening or dangerous situation as soon as possible, try to get a suspect and vehicle description and license plate number, gather evidence, report the incident to the police, and make a note of the circumstances in the notary record book.
For physical defense, consider keeping a desk, table or countertop as a separation between the notary and the customer. A witness or security camera may be useful to gather video and audio evidence of the aggressor.
Liability in Notary Court Cases
A notary employee at a car dealership in Lycoming County Pennsylvania refused to notarize motor vehicle documents without the physical presence of the signers. She informed the employer that the requested act was illegal. She was fired for refusing to break the notary law. She sued the employer for wrongful termination and won her lost back wages. Commonwealth of Pennsylvania, Bureau of Commissions, Elections, and Legislation v. Dorothy Toner
1. Dickey v. Royal Banks of Mo., 111 F.3d 580, 582 (8th Cir. 1997) discussing a bank officer who directed a bank employee-notary to notarize a customer’s signature even though the customer was not present.
2. Transamerica, 462 P.2d at 815 discussing allegations that bank officials had requested that a notary-employee notarize without signers being personally present to sign.
3. Johnson v. State, 238 N.E.2d 651, 655 (Ind. 1968) convicting a notary for falsely attesting an affidavit.
4. Lewis v. Agric Ins. Co., 82 Cal. Rptr. 509, 512-13 (App. 1969) finding that a notary’s act of falsely certifying the purported signature of individual who did not personally appear constituted official misconduct.
5. California notary was directed by employer to notarize a document without signer being present. Notary declined because it was an illegal act. The notary was wrongfully terminated and awarded $155,000.
Employer Liability in Model Notary Act
The Model Notary Act, published by the NNA, states:
An employer of a notary is liable to any person for all damages proximately caused that person by the notary’s official misconduct in performing a notarization related to the employer’s business, if the employer directed, encouraged, consented to, or approved the notary’s misconduct, either in the particular transaction or, impliedly, by previous actions in at least one similar transaction.
Notaries must use prudent and reasonable care to learn and obey notary laws and industry best practices. Notaries may be found liable for damages proximately caused due to errors and omissions and official misconduct.
Proximate cause means a cause that directly produces an event and without which the event would not have occurred. [Black’s Law Dictionary, 8th edition]
Prudent notaries should attend initial notary training and continuing education, attend webinars, read notary publications and websites, and learn and follow notary best practices. Notary education is a great way for a notary to increase knowledge, reduce liability risk, and better serve the public.
Since errors and omissions may occur, a notary should double-check his/her work and also have the customer check the work before leaving. A notary should buy notary liability insurance, known as errors and omissions (E&O) insurance, to protect against mistakes. It is inexpensive compared to the protection that it provides. Colorado notaries are not required to be bonded.
Notaries must seek education, use prudent and reasonable care, and keep proper records to avoid liability and official misconduct.
[Last-Modified Date 2018-02-10] replaced blank images