UIC Law Review

Volume 32 Issue 4 Article 3

Summer 1999

New Technology and a Global Economy Demand That American

Notaries Better Prepare for the Future: Upgrading the Current
Common Law System May Mean Establishing a New Class of
Cyber Professional, 32 J. Marshall L. Rev. 935 (1999)
Milton G. Valera

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Milton G. Valera, New Technology and a Global Economy Demand That American Notaries Better Prepare
for the Future: Upgrading the Current Common Law System May Mean Establishing a New Class of Cyber
Professional, 32 J. Marshall L. Rev. 935 (1999)

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 NEW TECHNOLOGY AND A GLOBAL
ECONOMY DEMAND THAT AMERICAN
NOTARIES BETTER PREPARE FOR THE
FUTURE: UPGRADING THE CURRENT
COMMON LAW SYSTEM MAY MEAN
ESTABLISHING A NEW CLASS OF CYBER
PROFESSIONAL

MILTON G. VALERA*

INTRODUCTION

One of the Louvre Museum's most treasured ancient artifacts

is the famous statue of a seated Egyptian scribe from the Fifth
Dynasty, over 4,000 years old.' In stunning life-like color, the
shirtless male figure sits on the floor with spread knees supporting
a papyrus sheet over which is poised a stylus held in the right
hand. The scribe's eyes' engage the onlooker across the
millennia-or are the eyes focusing on Pharaoh and the hand
poised to write down the god-king's next word?
The "Seated Scribe" of the Louvre may be history's first
artistic representation of a notary. It is also a visual reminder
that notary-like officers existed long before the Roman Empire,
when the functionary known as a notarius, a kind of public
stenographer or note taker, continued the custom; indeed, the very
word notarius derives from notae'-notes.

* Milton G. Valera is the President of the National Notary Association.

He has been with the organization since 1969 as Vice President, Executive
Director and close collaborator with founder, Raymond C. Rothman. Mr.
Valera holds a B.A. in Journalism from California State University,
Northridge.
1. See LAROUSSE ENCYCLOPEDIA OF PREHISTORIC AND ANCIENT ART 127
(Rene' Huyghe ed., 1968) (providing a history of ancient art including one of
the first representations of a scribe).
2. Id. "With pupils of crystal, each inset in a thin capsule of copper, the
statue's eyes retain their vital spark after 4,000 years." Id.
3. See N.P. READY, BROOKE'S NOTARY 2 (10th ed. 1988) (chronicling the
origin and history of notaries public).
In the last century of the Republic, probably in the time of Cicero, a new
system of shorthand was invented, and instead of abbreviations, called
sigla, certain arbitrary marks or signs, called notae, were substituted for
 The John MarshallLaw Review [32:935

The concept of a specialist dedicated to writing documents is as old

as writing itself,for we find scribes or note takers in most
ancient cultures.4
Many of the pre-Roman scribes had duties beyond the strictly
secretarial functions that correspond to post-Roman notarial
authenticating roles.5 Besides the ancient Egyptians, the
Babylonians, Hebrews and Greeks of antiquity relied on scribes of
different authority to give public character to otherwise private
documents through affixation of an official seal; often these scribes
were also priests and their authenticating acts were thereby
invested with supernatural authority.6 It took the organizational
genius of the Romans to place such authenticating officials within
the context of a lasting code of civil law. That code today imprints
the laws and notariatsof most of the non-English-speaking world.
The fact that most notaries public in the English-speaking
world today-namely, the nearly 4.3 million notaries of the United
States-operate under a system of law different from that
governing the notarios and notaires of the Latin world has proven
at times to be a significant obstacle to the free exchange of
documents and the smooth conduct of business across
international borders. The impediment springs largely from the
reluctance of the highly qualified and trained, attorney-like
notarial officers of Latin nations to accord respect to the official
acts of the minimally screened and trained ministerial notaries of
the United States. There is an unfortunate tendency abroad to
overlook the many shared principles and practices of the civil and
common law notaries and to forget that ministerial status is no

words in common use. A writer who adopted the new method was called
notarius. Originally, therefore, a notary was one who took down
statements in shorthand and wrote them out in the form of memoranda
or minutes.
Id. (footnotes omitted). Ready explains that notae tironianae, a Roman
shorthand, derived its name from Cicero's secretary, a freedman and orator
named Marcus Tullius Tiro, who was said to have invented the system to
transcribe his master's speeches. Id. See also John Robert Gregg, Julius
Caesar'sStenographer, J. CT. REPORTING, Jan. 1992, at 32-34 (describing the
use of shorthand in the time of the caesars). Gregg's Julius Caesar's
Stenographer article is a shortened version of an article that originally
appeared in the May 1921 issue of The Century Magazine. Id. at 32. It should
also be noted that John Robert Gregg invented Gregg Shorthand. Id.
4. Pedro A. Malavet, Counsel for the Situation: The Latin Notary, A
Historical and Comparative Model, 19 HASTINGS INT'L & COMP. L. REv. 389,
403 (1996).
5. See EDUARDO BAUTISTA PONDE, ORIGEN E HISTORIA DEL NOTARIADO 1-
30 (1967) (providing an overview of the history and origin of notaries).
6. Id.
7. See Marc A. Birenbaum, The 1997 NNA Notary Census, NA'L NOTARY
MAG., May 1997, at 30 (providing statistics for the NNA notary census in the
United States for the last 25 years).
1999] EstablishingA New Class of Cyber Professional

more a guarantee of incompetence than advanced education is of

high integrity.
The advent of electronic data interchange (EDI) may prove a
watershed opportunity for American notaries. In this nascent era
of "electronic documents" and "digital signatures," a trusted
impartial functionary will be needed to authenticate certain
sensitive EDI transmissions-now a relative rivulet in volume but
likely to become a deep and wide river, and to take over many
transactions conducted today through exchange of paper
documents. This functionary could be the notary public. But
"electronic notaries" must be much more highly trained and
professional than current paper-oriented notaries, and specialized
computer expertise will be their strength and stock-in-trade.
The new, and to many, daunting language of the computer
can provide the means for the notaries of the United States to win
a new prestige in this nation and abroad. And because in a similar
way the priest-scribes of antiquity were revered for their mastery
of a daunting written hieroglyphics, an apt talisman and icon for
the 21st century American notary might be the Louvre's "Seated
Scribe," his thighs bearing not an unfurling papyrus but an
unfolding laptop.

I. THE PAST: TWO STRANDS WITH A COMMON SOURCE

It is convenient, but a bit misleading to divide the notaries of
the modern world into two camps based on their allegiance to
either the civil or common law. Many common law notarial
officers--the notaries of British Columbia or the Scrivener's
Company notaries of London, for example'-have arguably much
more in common with Latin notarios than with the notaries of the
United States. It may actually make a lot more sense to bifurcate
the ranks of the world's notaries in another way: (1) the notaries of
the United States and (2) all the rest.

A. Notaries of the Rest of the World

The Latin notarial practice is a private, liberal profession
requiring extensive legal education and/or apprenticeship, passage
of a challenging competitive examination, and membership in a
professional association or college. 9 Performing "a nonadvocacy
counseling function," ° members of the Latin notariat have
exclusive legal authority and often exclusive geographic

8. See Milton G. Valera, The National Notary Association: A Historical

Profile, 31 J. MARSHALL L. REV. 945, 972-73 (1998) (describing the significant
duties afforded notaries of London, England and British Columbia, Canada).
9. See Malavet, supra note 4, at 429-30 (discussing the requirements for
notarial status, notarial jurisdiction, as well as, notarial geographic
limitations and duties).
10. Id. at 391.
 The John Marshall Law Review [32:935

jurisdiction" to put private transactions into proper legal form and

then to authenticate them as publicly enforceable. They must
keep a permanent register, or protocolo, of all public documents
executed before them, and are closely supervised by governmental
and professional bodies." Notably, Latin notaries serve as
"counsels for the situation" and owe a duty to the transaction
rather than to any individual; they serve "interested parties"
rather than "clients."13
Unlike advocates, who are free to refuse to serve a client, the [Latin]
notary must serve all comers. This added to his functions as a
record office and his monopoly position, tends to make him a public
as well as private functionary. Access to the profession of notary is
difficult because the number of notarial officers is quite limited.
Candidates for notarial positions must ordinarily be graduates of
university law schools, and must serve an apprenticeship in a
notary's office. Typically, aspirants for such positions will take a
national examination, and4 if successful, will be appointed to a
vacancy when it occurs.1

1. The Ancient Roman Notaries

Both civil and common law notaries claim the same ancestor
in the notarius of ancient Rome. Ironically, the office of the highly
prestigious and professional modern Latin notary may bear less
resemblance to that of the Roman notarius than does the office of
the ministerial notary of the United States." The notarius, after
all, was not a discretionary official of any prestige, but a
stenographer, an underling-often a slave or freedman -serving
persons with authority.
Eventually, low-level Roman note takers ceased to be called
notarii and this title was later applied to loftier positions,
including registrars in the courts of provincial governors, the
secretaries of emperors and to the highest class of officials in the
imperial privy council and chancery. 7 Over the centuries-long

11. Id. at 430.

12. Id.
13. Id. at 392.
14. JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION 115 (1969).
15. Perhaps the modern American functionary most closely resembling the
notarius is the shorthand or court reporter. In most states, reporters must
have notary commissions in order to swear in deponents; however, several
states do not. See, e.g., MO. REV. STAT. § 492.010 (1996) (giving certified
reporters automatic ex-officio power to administer oaths).
16. See READY, supra note 3, at 1.
17. Id. at 2-3. Ready's footnote 10 states:
[o]n the re-organization of the empire by Constantine, notarii were
constituted into an imperial chancery, the members of which, in
addition to their regular duties, were frequently employed by the
Emperor on important public missions. The first of them in rank was
1999] EstablishingA New Class of Cyber Professional

duration of the Roman Empire, two other public officials-scribae

and tabularii-also performed certain record-keeping and
authenticating functions akin to those of the modern Latin
notary, 8 as "the notary function [was] dispersed and attributed to
a multitude of various public and private officials, without
originally accumulating all the attributes in a single person." 9
It was the private Roman officer known as a tabellio that the
modern Latin notary most closely resembles. ° Regulated by law,
the tabelliones "took their stations, stationes, in the forum or
market place, where the public applied to them for professional
advice and assistance."" They prepared such documents as deeds,
wills and transfers of property.22
The acts of a tabellio were styled instrumenta publice confecta, and
commanded a degree of credit and authenticity not accorded to
instrumenta privata, or documents executed by private individuals
without the intervention of a tabellio. They were not, however, in
Roman law accorded the full credit and authenticity that attached to
an official record .... Full probative force [fides publica] could only
be conferred on the instrument following a special judicial
procedure.... [I]f the instrument was accepted, copies of the judicial
proceedings had full evidentiary weight. The act of the tabellio thus
passed from being an instrumentum publice confectum to become an
instrumentum publicum, a status otherwise enjoyed• • only 23 by
documents issued by public authorities or from public archives.
In the latter days of Rome's empire, tabelliones increased in
number and importance, and they were eventually able to deposit
and register their acts directly into the public archives without a
court proceeding.24
Even after the fall of the Western Roman Empire to
barbarians in 476 A.D., the Roman Empire in the East, with its
capital at Constantinople, would continue the traditions of Roman
law until the Turkish onslaught of 1453.25 Indeed, under the sixth-
century Eastern Roman Emperor Justinian, "the tabelliones were
in their heyday."26 In ensuing centuries in the Eastern Empire,
the titles tabelliones and tabularii became virtually synonymous

called primiceriusnotariorum. Codex Theodosianus, (A.D. 438) 6, 10.

Id. at 3 n. 10.
18. See Malavet, supra note 4, at 408-11 (providing a background on scribae
and tabularii).
19. See ENRIQUE GIMENEz-ARNAU, DERECHO NOTARIAL ESPANOL 69 (1964).
20. See READY, supra note 3, at 3 (stating the duties of the tabellio).
21. Id. at 2-3.
22. Id. at 3.
23. Id. (citations omitted).
24. Id.
25. See WILL DURANT, CAESAR AND CHRIST 670 (1944) (providing a history
of Roman civilization).
26. See Malavet, supra note 4, at 412.
 The John Marshall Law Review [32:935

and applied to private legal professionals, who often employed a

scribe known by the generic term of notarius.27
As the Middle Ages commenced, the conquered provinces of
what was once the Western Roman Empire integrated the legal
customs of Rome into their civil institutions.28 In the lands that
would become modern-day France, Spain, Germany and the other
nations of continental Western Europe, the custom of the notary
was widely adopted. In the land of the Franks, for instance,
notaries were often registrars at the district justice courts,
recording official proceedings and affixing the court's seal on deeds
and other documents in order to render them as public and
authentic acts; these officials were generally known as "palatine"
notaries because they were appointed by the local palace-dwelling
count.2 9 In addition, there were imperial notaries appointed by
emperors, and papal notaries appointed by the Pope in Rome, who
enjoyed no territorial restrictions. °
The Renaissance inspired a renewed study of ancient Roman
law3 and the Scuola di Notariato, started in Bologna, Italy, in
1228,32 developed and refined notarial law and practice.
The School of Bologna placed great emphasis on the legal and
technical qualifications of the notary and drew up formularies to
facilitate the preparation of notarial acts in a correct form of law. It
is as a result of the studies made at Bologna during that era that
the concept of the notary as a qualified jurist arose and to the school
is due the expansion of the notarial system throughout medieval
Europe.33
In the Renaissance, notaries were weaned from the
imprimatur of the courts and their sealed independent acts were
in time given publica fides (public trust) in their own right.34
Gradually the laws relating to the execution of legal instruments
became so technical that European courts gladly ceded the
authenticating of this arcane activity to highly trained notaries.35

2. The Development of the English Notariat

In the British Isles, the common law evolved on its own,
largely independent of civil law developments across the Channel.

27. See id. (describing the European notary profession during and after the
middle ages).
28. See READY, supra note 3, at 4.
29. Id.
30. Id.
31. Id.
32. See PONDE, supra note 5, at 152.
33. See READY, supra note 3, at 7.
34. Id. at 6.
35. Id. at 8.
1999] EstablishingA New Class of Cyber Professional

Four phases in the establishment of an English notariat" are

described in condensed form below:
(1) Before 1279. Notaries were virtually unheard of in
England prior to this date, though there were occasional
visits by imperial or papal notaries, usually Italians. In place
of notarization, private deeds and contracts could be given
authenticity by the affixation of the seal of an important
official, such as a bishop or mayor, or they could be filed in
court and "cast in the form of a judicial decision."'

(2) 1279-1533. In 1279 the Archbishop of Canterbury was

granted power to appoint notaries by the Pope; while in time
other English churchmen and secular authorities were also
given this power, by 1533 the Archbishop was the only
authority to retain notary-appointing authority. Though
notaries were involved in both ecclesiastic and secular affairs,
they were as a rule members of the clergy or under their
guidance or control; at length, however, laymen unaffiliated
with the church took on notarial functions, serving as
conveyancers and attesting to the execution of wills, deeds,
contracts and other documents. While common law courts
did not give weight to notarial acts, they were useful with
documents that would take effect on the Continent. 38

(3) 1533-1801. As a result of King Henry VIII's dispute with

the Pope over a royal divorce, the King took over the power to
appoint notaries through the Ecclesiastical Licenses Act of
1533, and an appointing Court of Faculties attached to the
Archbishop of Canterbury was created. To this day, the
Court of Faculties retains the power to appoint notaries. 39

(4) 1801-Present. "With the passing by Parliament of the

Public Notaries Act 1801, the notarial profession began to
evolve into something akin to its present form and to
concentrate its activities almost exclusively on the
preparation
4 and authentication of instruments to be used
abroad." 1
Pursuant to the Courts and Legal Services Act of 1990,
British notaries today are classified "as Ecclesiastical Notaries,
Scrivener Notaries, Solicitor Notaries or other Notaries."' The

36. See READY, supra note 3, at 8-17 (providing an overview of the

development of English notariats). The author credits H.C. GUTTERIDGE, THE
ORIGIN AND HISTORICAL DEVELOPMENT OF THE PROFESSION OF NOTARIES
PUBLIC IN ENGLAND (P.H. Winfield &A.D. McNair eds., 1926).
37. READY, supra note 3, at 10. See id. at 9-11 (providing background for
the period prior to 1279).
38. See id. (providing background for the period from 1279 to 1533).
39. See id. (providing background for the period from 1533 to 1801).
40. See id. (providing background for the period after 1801).
41. G.E. DELAFIELD, THE PROVINCIAL NOTARY 3 (3d ed. 1991).
 The John Marshall Law Review [32:935

monopolistic Scrivener Notaries, who have a colorful history 2 and

operate under the jurisdiction of the Scrivener's Company, hold
the exclusive right to notarial practice within the city of London
and "within the circuit of three miles of the said city,"3 and are
extensively involved with international commerce. Notaries
outside of London are termed "provincial" notaries."" As a "civil
lawyer practicing in non-contentious matters,"5 the British notary
today bears a strong resemblance to civil law notarial officers
around the world: "[h]e will advise and assist the client like any
other lawyer but when he is carrying out his public duty he can be
said to have a responsibility to the transaction itself
6 rather than
only to an individual personal or corporate client."
A well-equipped English notary needs a pen, a seal, a ribbon
or tape, wafers and a register. "He may if he so wish robe and
equip himself with an inkhorn and pencase suspended from his
girdle, but this accoutrement ceased in late mediaeval times."4
The author also recommends use of a nibbed pen and permanent
ink, in preference to a ballpoint, because "a Notarial act may have

42. See READY, supra note 3, at 14.

The connection of notaries public with the Scriveners' Company ...
dates from the fourteenth century. Scriveners were originally public
scribes, exercising their calling as letter-writers and expert copyists.
From these activities they became skilled in the drawing of deeds ...
[and] developed into 'a body of legal practitioners exercising the function
of conveyancers.' In 1373, the Scriveners of the City of London formed
themselves into a company for the purpose of preserving to themselves a
monopoly of the activities of their profession. From then until 1760,
when the right of London solicitors to practise conveyancing was
established, members of the Company of Scriveners, enjoyed within the
City of London and a circuit of three miles of the City, a monopoly of the
'art or mystery' of preparing all deeds, charters, and other writings
which by the common law or custom of this realm required to be
confirmed or attested by a seal. Since part of his practice would include
the drawing of deeds and conveyancing, a notary wishing to exercise his
calling within those geographical limits was obliged to become a member
of the Company. Although the Company's monopoly in conveyancing
was ultimately lost, it is still the invariable rule that no notary public is
allowed to practise in the City of London ...until he has become a
member of the Company of Scriveners.
Id. (footnotes omitted).
43. READY, supra note 3, at 14.
44. Hence the title of G.E. Delafield's book THE PROVINCIAL NOTARY, which
focuses largely on the duties of solicitor and other notaries.
45. READY, supra note 3, at 1.
46. Id.
47. DELAFIELD, supra note 41, at 6.
48. Id. See READY, supra note 3, at 12 n.30 (stating "[a]n inkhorn and
pencase attached to a silken cord suspended from his girdle formed the
distinguishing badge of the medieval notary. Hence the remark of Jack Cade:
'[a]way with him, I say; Hang him with his pen and inkhorn about his neck.'
Shakespeare, Henry VI, Pt. 2.")
1999] EstablishingA New Class of Cyber Professional

to go into damp or tropical climates. 9 Indeed, from the

Elizabethan Age onward, Britain dispatched notarial documents-
and countless notaries themselves-to every corner of the earth,
damp and tropical, to help administer an empire on which the sun
never set. One of these corners, of course, was the eastern
seaboard of the North American continent where the English
colonists brought their common law mores, including the custom of
the notary public.

B. Notaries of the United States: A Distinctive and

MinisterialNotary
At the start of the 21st century, the American notary is a
largely ministerial officer whose public commission is generally
viewed as a useful or necessary adjunct to a primary profession or
career, be it legal secretary, court reporter, escrow officer,
attorney, police officer, clerk, real estate agent or any of a host of
other vocations at every level of American society. The ministerial
role of the modern American notary may have begun to take shape
in colonial times.
In the English colonies, notaries had a less central and more
ministerial role [than in the Spanish colonies], having largely
surrendered important land conveyancing and document drafting
functions to solicitors under British law. Still, notaries functioned
as trusted official witnesses, recorders, scribes and de facto
paralegals in private and public transactions.... Not the least of
the notary's contributions was execution of protests, particularly the
maritime protest whereby damage to a ship's cargo would be
verified and documented under seal to satisfy the vessel's owner an
ocean away. In the age before transoceanic electronic
communication, notaries engendered confidence in the integrity and
reliability of seaborne commerce.50
In 1639, the Massachusetts Bay Colony and the New Haven
Colony witnessed appointment of the first two notaries in the
English-speaking New World.5 As did their counterparts in the
mother country, early colonial American notaries drew authority
from the Archbishop of Canterbury's Court of Faculties. After the
American Revolution, however, each of the new states appointed
its own notaries and enacted statutes to govern them.
Today in the United States, most often it is the secretary of
state (e.g., Colorado, Missouri, Oregon) or the governor (e.g.,
Maryland, Minnesota, Utah) who commissions notaries, though, in
particular states, such officials as the attorney general (Hawaii),

49. DELAFIELD supra note 41, at 6.

50. Deborah Thaw, The Feminization of the Office of Notary Public: From
Feme Covert to Notaire Covert, 31 J. MARSHALL L. REv. 703, 706-07 (1998)
(footnotes omitted).
51. Id. at 707 & n.15.
 The John Marshall Law Review [32:935

lieutenant governor (Alaska), licensing director (Washington) or

county judges (Alabama, Georgia, Vermont) perform this
function." In most states where the governor is the commissioning
authority, the actual involvement of the governor's office is
nominal or ceremonial and it is the office of the secretary of state
(e.g., Delaware, Nebraska, South Carolina) or department of
commerce (Minnesota) or corporations (Utah) that administers the
state's notary program on a day-to-day basis."
Though it does share certain important principles and
practices with other notarial offices around the globe, the
American notary public office is singularly distinctive in a number
of ways. One source of distinction, of course, is America's
unparalleled number of notaries: with 346,548 notaries in the
state of Florida alone," and 327,000 in Texas,55 many medium-
sized American cities have more notaries than entire European56
and Asian57 nations. Indeed, it is likely that either Florida or
Texas by itself more than matches the world's current population
of notaries outside the United States. Another evident and
singular characteristic of the notary office in the United States is
that its practitioners are not segregated in a particular
socioeconomic stratum; anyone in any walk of life may find it
useful to become a notary.
The duties of notaries commissioned in the fifty states" are
relatively narrow and typically include the power to take
acknowledgments and proofs of execution; to administer oaths and
affirmations; to execute jurats, also known as verifications upon

52. See National Notary Association, National Index of Notary Officials,

NAT'L NOTARY MAG., May 1998, at 33-34 (listing state notary commission
grantors and administrators).
53. Id.
54. See Birenbaum, supra note 7, at 30 (stating that in a 1997 NNA census,
as was the case in a 1992 census, Florida was the most notary-populous state).
55. See id. (stating that in a 1997 NNA census, Texas was the second most
notary-populous state).
56. See Malavet, supra note 4, at 474 (comparing the number of notaries
with the number of lawyers and total populations of Belgium, France, Italy,
the Netherlands and Spain; the largest number of notaries (7500) in these
countries exists in France).
57. There are 540 notaries in Japan, a nation of over 115 million people,
according to Shin-Ichi Tsuchiya, Vice Chairman of the Foreign Affairs
Committee of the Japan National Notaries Association. Shin-Ichi Tsuchiya,
Remarks at the National Notary Association's 19th Annual Conference of
Notaries Public in Newport Beach, California (June 19-21, 1997). However,
Japanese notaries, who are required to be former judges or public prosecutors,
do employ numerous assistants. Id.
58. See Charles N. Faerber, 1998-1999 NOTARY SEAL & CERTIFICATE
VERIFICATION MANUAL (providing a specific recitation of notarial duties in the
fifty states, the District of Columbia and the jurisdictions of American Samoa,
Guam, Northern Marianas, Puerto Rico and the U.S. Virgin Islands)
[hereinafter VERIFICATION MANUAL].
1999] EstablishingA New Class of Cyber Professional

oath or affirmation;59 and, in some states, to certify a copy as

identical to an original." Many state codes still empower notaries
to make or note a protest of a negotiable instrument, 61 a duty
rarely performed today, and "to take depositions and affidavits," 2
a transcribing function that normally only trained, shorthand
reporters are qualified to perform. Not included among the
American notary's duties is the drafting or preparation of legal
documents or the advising of others about the completion or effect
of legal documents. The American notary's main focus and
accountability is the accuracy of statements within the "notarial
certificate" wording printed or attached at the end of each
notarized document. These statements rarely attest to more than
that an individual appeared before the notary on a certain date
within a particular county and state, was identified by the notary
and, in the notary's presence, freely affixed or acknowledged a
signature in a particular capacity (e.g., as an individual, attorney-
in-fact, partner, etc.) and/or took an oath or affirmation.
While the "ministerial" label on the American notary's duties
belies some often tough discretionary choices (e.g., about what
constitutes satisfactory evidence of a given signer's identity, or
about whether a particular signer is aware of the significance of a
document) in the face of often minimalist statutory guidelines,
generally any literate, conscientious, honest and moderately
intelligent adult is capable of effectively handling the notarial

59. The UNIFORM LAW ON NOTARIAL ACTS (ULONA), approved by the

American Bar Association in 1983, describes the notarial duty of executing a
jurat as follows: "[i]n taking a verification upon oath or affirmation, the
notarial officer must determine, either from personal knowledge or from
satisfactory evidence, that the person appearing before the officer and making
the verification is the person whose true signature is on the statement
verified." UNIFORM LAW ON NOTARIAL ACTS § 2 (1983). The ULONA also
defines the acts of acknowledgment, of "witnessing or attesting a signature," of
"certifying or attesting a copy of a document or other item," and of "making or
noting a protest of a negotiable instrument," omitting the act of taking a proof
of execution by subscribing witness because of its increased potential for
fraud. Id.
60. Not all states authorize notaries to certify copies. The state of New
York, for example, provides no statutory authority for the act, while California
only allows notary certification of copies of powers of attorney and notarial
journal pages. See VERIFICATION MANUAL, supra note 58, at 34, 243.
61. See, e.g., CAL. GOvT CODE § 8205(a) (West 1999).
It is the duty of a notary public, when requested [t]o demand acceptance
and payment of foreign and inland bills of exchange, or promissory
notes, to protest them for nonacceptance and nonpayment, and, with
regard only to the nonacceptance or nonpayment of bills and notes, to
exercise any other powers and duties that by the law of nations and
according to commercial usages, or by the laws of any other state,
government, or country, may be performed by notaries.
Id.
62. Id. at § 8205(a)(3).
 The John MarshallLaw Review [32:935

responsibilities imposed by each state. Thus, the education and

training required for an applicant of no readily detectable
criminality to obtain a notary commission in the United States
typically need only be sufficient to allow that applicant to read and
legibly complete the application form.63
The lack of requirements for a notarial commission has been
reflected throughout American history in the growth of the notary
population. From the birth of the United States, the population of
notaries has grown almost exponentially. 4 In Connecticut, for
example, there were fifteen notaries in 1800, thirty-two in 1812,
sixty-four in 1827, 10,789 in 1932 and approximately 48,000 in
1990.65 In one sense, this unparalleled proliferation of notaries is a
positive-an opening up or "democratization" of a perhaps overly
tradition-encrusted office.
Yet, in another sense, the explosion of the notary, population
can be regarded as something of an uncontrolled cancer, for far too
many of the thousands of new notaries minted across the nation
every day have not the slightest idea of the seriousness of their
duties, nor how to perform them effectively.
Sadly, helping spur the metastatic growth in the ranks of
American notaries in this era of governmental belt-tightening is
an attitude in some states-as evidence suggests in the next
section-that notary programs are at least as important as
income-generating "profit centers" as they are as agencies for
protecting the public from document fraud.

II. THE PRESENT: ANACHRONISM AND APATHY

Since the birth of the American republic, there has been a
trend to pare or whittle away the functions of an English colonial
notary office, functions that were modest to begin with. Any legal
claim by the modem American notary to an archiving function, for

63. The sole exception is the state of North Carolina, which requires
applicants for a notary commission to take and pass a community college
course. See N.C. GEN. STAT. § 10A-4(b) (1991) (stating the qualifications for
North Carolina notaries). Several other states do require applicants to pass
some kind of written or oral examination, including Alaska, California
(proctored), Connecticut, District of Columbia (oral), Hawaii, Louisiana,
Maine, New York (proctored), Ohio, Oregon, Utah (proctored) and Wyoming.
See National Notary Association, Guide to Notary Commission Eligibility,
NAT'L NOTARY MAG., May 1998, at 30 (listing states that require applicants to
pass a written or oral examination). The remaining states typically send each
applicant or newly commissioned notary a pamphlet or booklet reprinting or
paraphrasing pertinent notarial statutes and hope that the notary reads and
absorbs it.
64. See Thaw, supra note 50, at 718 (discussing the growth of notaries in
urban areas).
65. See CONNECTICUT SECRETARY OF THE STATE, NOTARY PUBLIC MANUAL
§ 1.2 (1995) (providing a brief history on notaries).
1999] EstablishingA New Class of Cyber Professional

example, has long since been given over to county recording

officers; any claim to conveyancing or document preparation
powers was long ago ceded to attorneys; and any practical" claim
to a stenographic function to shorthand reporters.
Beyond an oath-administration function shared with
countless other officers, what remains for the American notary is
the core duty of screening document signers for identity, volition
and basic awareness 6 7-though many maintain that even the
determination of basic awareness is beyond the notary's ken,
because it is tantamount to judging competence, a notoriously
difficult task."
Part and parcel of the notary's duty to ascertain a signer's
identity has been the duty to verify any representative status
claimed by that signer, whether as attorney-in-fact, partner,
corporate officer or the like. Yet even this function has purposely
been stripped away from the notary by some states in recent
decades, in the belief that notaries have neither the aptitude nor
the training to scrutinize such legal documents as powers of
attorney to determine who is thereby empowered, with what
authority and under what circumstances. 6 9 In 1982, for example,
California reworded three statutory representative-capacity
acknowledgment forms so notaries would no longer be obliged to
verify a signer's capacity."0 Below are portions of the "before" and

66. In a number of states, notaries still retain the legal power to "take"
depositions and affidavits, though realistically only trained and certified
shorthand reporters are in a position to do so. See, e.g., CAL. Gov'T CODE §
8205(a)(3) (West 1999) ("[it is the duty of a notary public, when requested
.... [t]o take depositions and affidavits, and administer oaths and
affirmations, in all matters incident to the duties of the office, or to be used
before any court, judge, officer, or board").
67. Florida is the first and, so far, only state whose statutes expressly
require notaries to judge awareness: "[a] notary public may not notarize a
signature on a document if it appears that the person is mentally incapable of
understanding the nature and effect of the document at the time of
notarization." FLA. STAT. ANN. § 117.107(5) (West 1998).
68. However, THE NOTARY PUBLIC CODE OF PROFESSIONAL
RESPONSIBILITY, GUIDING PRINCIPLE III (1998) declares that "[t]he Notary
shall require the presence of each signer and oath-taker in order to carefully
screen each for identity and willingness, and to observe that each appears
aware of the significance of the transaction requiring a notarial act." The
Code further states: "[t]he Notary shall not notarize for any person if the
Notary has a reasonable belief that can be articulated that the person at the
moment is not aware of the significance of the transaction requiring a notarial
act." Id. at § III-C-1. It is the conviction of the NNA that any moderately
intelligent layman can make a common-sense judgment about whether a
signer appears aware of what is going on at that moment.
69. See Charles N. Faerber, Being There: The Importance of Physical
Presence to the Notary, 31 J. MARSHALL L. REv. 647, 766 (1998) (providing a
description of the transformation to a ministerial notary) [hereinafter Being
There].
70. Id. at 766-67. The three California acknowledgment certificates
 The John MarshallLaw Review [32:935

"after" partnership certificates:

BEFORE: "... personally appeared -, known to me (or
proved to me on the oath of ) to be one of the partners
_

of the partnership that executed the within instrument.... 07'

AFTER: "... . personally appeared -, personally known to

me (or proved to me on the basis of satisfactory evidence) to
be the person that executed this instrument, on behalf of the
partnership ..."
Ten years later, California further reduced the notary's role
by introducing a so-called "all-purpose" acknowledgment
certificate that does not oblige the notary even to note any signer's
representative capacity:
All-Purpose Form: "... personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their
authorized capacity(ies)....
"In the space of 10 years, ... three statutory forms arguably
demarcate the transformation of the California notary office from
a quasi-judicial position (pre-1982) to a ministerial position (pre-
1993) to a quasi-secretarial position (post-1993)."7
Of course, some traditional and once important functions of
the notary office have been pared away not by legislative action
but by the advance of technology and the refinements of
commercial usage. This is true of the notarial act of protest.
Before the era of electronic banking and commerce, notaries were
trusted in such matters as verifying the condition of shipped goods
(marine protests)5 or protesting the nonacceptance or nonpayment
of foreign and inland bills of exchange.70 Today notarial protests
are so rare that they are recognized neither in the Uniform Law on

amended in 1982 so that the notary would no longer have to ascertain

representative capacity were: the corporate acknowledgment form, CAL. Civ.
CODE § 1190 (West 1997), the partnership acknowledgment form, CAL. CIV.
CODE § 1190(a) (West 1997), and the form for an acknowledgment by a public
corporation, agency or political subdivision of the state, CAL. CIV. CODE § 1191
(West 1997).
71. See CAL. CIV. CODE § 1190(a) (West 1997) for the California
Partnership Acknowledgment Form before January 1, 1983.
72. See id. for the California Partnership Acknowledgment Form after
January 1, 1983.
73. See CAL. CIV. CODE § 1189(a) (West 1999).
74. Being There, supra note 69, at 767.
75. See Thaw, supra note 50, at 707 (discussing the role of the notary in the
English colonies).
76. See CAL. GOv1T CODE § 8205(a) (West 1999) for an example of a state
statute that was in effect prior to the electronic banking and commerce era.
1999] EstablishingA New Class of Cyber Professional

Notarial Acts 77 nor the Model Notary Act 7 and, as a result, are
increasingly being eliminated from state notary codes.
The technical advent of the shorthand and court reporter's
stenograph, whose operation requires a highly refined skill,
signaled the true passing of the notary as scribe-a heritage that
began with the Roman notarius. And the advent of the photocopy
machine was perhaps the final nail in the coffin of the notary as
archivist/copyist.
Yet, if the functions of the American notary have been
whittled away by technical advance and legislative action, a few
things related to the office have seen far too little change. For one,
the maximum fees that notaries are allowed to charge by statute
have remained so embarrassingly low in some states that many
notaries do not even bother to ask for a fee. A South Carolina
notary, for example, may charge no more than fifty cents for
taking an acknowledgment and twenty-five cents for executing a
jurat. California, Florida and South Dakota do permit a charge of
$10 per signature notarized, but most states allow a fee of only $1
to $2 per signature.79 Until the National Notary Association
through its Uniform Notary Act and its Model Notary Act " began
a drive for notary fees that more fairly reflect the notary's
expenditure of time and exposure to unlimited liability, many
states had seen little or no change in their notary fees since
gaining statehood. Of course, with every passing year that notary
fees remain unfairly suppressed, the perceived value of the
notarial act inches downward, both in the eyes of the citizenry and
of notaries themselves. This immeasurably harms the societal
status of the notary and the professionalism with which notarial
acts are performed.
However, there is nothing in the states' current notary laws
that is as anachronistic as the shamefully low level of notary
surety bonds. Surety bonds protect the public in two ways. First,
they professionalize notaries and motivate them to be attentive to
their duties. Bonds distinguish career fields in which the financial
stakes are high and the practitioners are in a position to do great
damage to private citizens' rights and property. Surety firms will

77. See supra note 59 for a discussion of the UNIFORM LAW ON NOTARIAL
AcTs.
78. The MODEL NOTARY ACT was published by the National Notary
Association (NNA) as "a resource for lawmakers seeking to draft effective
statutes that are in step with modern commerce." MODEL NOTARY ACT,
PREFACE (1984). Drafted by a national committee of officials and attorneys,
the MODEL NOTARY ACT is a revision of the NNA's UNIFORM NOTARY ACT
(1973), drafted with the assistance of Yale Law School. 'Id.
79. See National Notary Association, Guide to Notary Fees, NAT'L NOTARY
MAG., May 1998, at 31 (listing the 50 states' costs for notary fees).
80. See MODEL NOTARY ACT Art. III, Commentary (discussing the need for
higher notary fees due to increased cost of living).
 The John Marshall Law Review [32:935

seek monetary recovery from the notary whose misconduct causes

financial harm. A bond is the enforcing "hammer" that applies
pressure to keep notaries on the straight and narrow. Second,
bonds protect the public by helping victims recover their financial
losses in the event of the notary's negligence or intentional
misconduct. If a person harmed by a notary's impropriety is
unable to find and recover against the notary, the surety company
will reimburse the victim for financial losses up to the dollar value
of the bond.
Unfortunately, in more than a few states the dollar value of
the notary surety bond has changed little or not at all since the
attainment of statehood. The bond remains at $500, for example,
in the states of New Mexico, Wisconsin and Wyoming, and at
$1,000 in Alaska, Hawaii and Oklahoma.81 Even in California,1
which now imposes the nation's highest notary bond at $15,000, 2
the bond remained fixed for 128 years, from 1850 to 1978.83
A bond of $500 to $1,000 is all but useless as protection for
the public, since what rare attorney could be interested in helping
a client recover $500 or $1,000 from a surety company in the event
a miscreant notary is fundless or cannot be found? This question,
of course, is moot in those twenty states which require notaries to
post no bond at all and leave victims of a notary's misconduct
without surety funds to secure to pay legal fees in recovering such
property as an automobile or home. If, in all states, construction
bonds are regarded as necessary to protect the public-when the
financial stakes are often higher with the documents handled by
notaries, why then isn't a notary bond required, too, in all states?
Clearly, the greatest shame of state notary laws is not in their
anachronism, but in their absence. All but a handful of states
have established no meaningful statutory program for qualifying,
educating,84 testing, investigating and disciplining notaries. In
some states, it is actually impossible to revoke the commission of a
notary for misconduct 85-if notary misconduct is even defined!

81. See National Notary Association, Comparison of Notary Provisions,

NAT'L NOTARY MAG., May 1998, at 32 (listing the 50 states' bond
requirements).
82. Id.
83. Id. Shortly after attaining statehood in 1850, California established a
notary bond of $5,000. See National Notary Association, Notary Home Study
Course-CaliforniaSupplement (1989), at 56-57 (chronicling the history of the
California notary). The bond remained at $5,000 until 1978, when the
Legislature, enacting certain provisions of the National Notary Association's
Model Notary Act, raised it to $10,000, where it remained until 1997. Id.; see
also CAL. GOv'r CODE § 8212 (West 1999) (providing that the current bond
requirement in California is $15,000).
84. See supra note 63 and accompanying text for a discussion of the lack of
statutory notary programs throughout the United States.
85. The state of Arkansas, for example, does not give its Secretary of State
power to revoke a notary commission. However, a bill currently pending
1999] EstablishingA New Class of Cyber Professional

It must also be noted that some states seem to show perhaps

too much interest in commissioning as many notaries as possible
in order to add revenue to state or departmental coffers, and too
little in training a truly professional corps of notaries to defend the
public from fraud. Of sixteen state notary-regulating agencies
responding to a recent National Notary Association survey, twelve
said they are compelled to pour all of their collected commissioning
fees into the state's general fund, with ten of these receiving back
less than they take in-and in one case "far less." 8 It is
particularly revealing that three of the four states that the survey
indicates control or largely control their own collected
commissioning fees (Hawaii, Louisiana, Oregon) impose some form
of test 7 on notary commission applicants, while only one of the
other twelve states does. This suggests that when notary program
administrators are given sufficient financial resources, these funds
will be used intelligently and to the benefit of both notaries and
the public they have been commissioned to serve and protect.

before the Arkansas General Assembly would give the Secretary of State that
power. An Act to Establish the Revocation of a Notary Public's Commission;
and for Other Purposes, S. 469, 82nd Gen. Assem. (1999).
86. The National Notary Association's scripted telephone survey of March
1999 (on file with the author) asked state Notary administrators the following
four questions:
(1) Are commissioning fees and other funds collected by your notary
program kept for the exclusive use of notary administration or are they
shared with other programs? (2) Are moneys collected by the notary
program put into the state's General Fund? (3) If the commissioning
fees are not put into the General Fund, what agency or officer controls
the fund that they are put into? (4) Are the funds made available to
operate your notary program more or less than the funds taken in by
your notary program?
Responses to Question (1): 12 states share the notary-commissioning fees they
collect with other state programs, three had no response to this question, and
one state (Hawaii) has a self-funding notary program. Responses to Question
(2): 12 states contribute all of their collected notary-commissioning fees to the
General Fund, and four states contribute it to other funds (one state, Oregon,
mentioning that the notary program receives the lion's share of this fund;
another, Vermont, that it contributes 75% to the General Fund and 25% to the
notary's local county; and another, Hawaii, controlling its own self-funding
program). Responses to Question 3: Of the 4 states not contributing their
collected notary-commissioning fees to the General Fund, only two mentioned
what officer or agency controlled this other fund: in Louisiana, it is the
Secretary of State; in Hawaii, it is the Department of the Attorney General.
Responses to Question (4): 10 states receive less funds back from the state
than they take in (Nevada reported taking in "far less"), three states said they
receive back about as much as they take in, one (South Carolina) reported
receiving more back from the state than it takes in, and two states had no
idea. All Responses are on file with the National Notary Association in
Chatsworth, California.
87. See supra note 63 and accompanying text for a discussion of states that
require some form of written or oral examination.
 The John Marshall Law Review [32:935

The office of notary is one of the most underutilized of our

nation's manpower resources. For two centuries, the functions of
the American notary office have been incrementally pared and the
rigor of its qualifications undermined by official apathy. State
legislators have generally acceded to the demands of law and
commerce that notaries be powerless factotums--if not lapdogs--
in legal and commercial offices. The "notaire covert, the lower-
level office notary, often young and female, who feels tremendous
pressure to defer to the will of superiors in all matters notarial, is
a very real dilemma in America today. Such "in-house" notaries
may not even regard themselves as independent public officers,
nor understand their duty to accord precedence to state law over
any conflicting notarial demands of an employer. Their ignorance
is the fault of the state legislators and notary-regulating officials
who have given a low priority to notary competence and
professionalism. 9
Yet more remarkable than the apathy of officialdom is the
public-spirited conscientiousness of the many notaries who
transcend this official neglect. In the ranks of American notaries,
there is a significant percentage of true professionals as dedicated
and competent in their range of duties as any Latin notary-and
many of them are counted among the National Notary
Association's 150,000 members. There is also a very large
percentage of well-meaning notaries who perform as best as their
limited training allows. As in any calling, only a tiny percentage-
consisting of the unscrupulous and the uncaring-account for the
majority of incidents of misconduct.
At this juncture in American history, social needs and
technological advances present an unusual opportunity for the
nation at long last to fully utilize its largely dedicated but
unchallenged corps of notaries.

III. THE FUTURE: TWO NEW ROLES

American and Latin notaries are divided by specifics but
united by principle. Both are impartial witnessing officers. Both
are expected to serve as pillars of fairness, lawfulness and
propriety. And both have a responsibility to the situation rather

88. See generally Thaw, supra note 50.

89. The National Notary Association's MODEL NOTARY ACT (1984) provides
a two-part solution to the problem of the notaire covert. Thaw, supra note 50,
at 733. "First, each state must have statute language in place expressly
putting employers on notice that they will be punished for requiring improper
notarial acts of employees." Thaw, supra note 50, at 733; see MODEL NOTARY
ACT §§ 6-101(c), (d). "Second, each state must make it a statutory requirement
that notaries take and pass a course of instruction on their duties before
becoming commissioned." Thaw, supra note 50, at 733; see MODEL NOTARY
ACT § 2-101(b)(4).
1999] EstablishingA New Class of Cyber Professional

than to the needs of any employer or client. Above all, the notary's
"stock in trade" in any nation is integrity.
In matters of integrity, American notaries are no more
suspect than the notarial officers of any other nation. Their
deficiency is in their professional training, though many make up
for the lack of state-provided instruction through their own
initiative: studying notarial laws and instruction books, attending
seminars and joining professional associations.
The undertrained, underestimated and underutilized
American notariat is capable of a larger role. Fortuitously, a
confluence of social and technological developments has provided
new and increasingly urgent needs that notaries could be asked to
fill, with the proper training. These possible new notarial roles
fall into two categories.

A. The FactVerifier
First, there is a societal need for a trusted, impartial officer to
serve as a verifier of certain important and easily ascertainable
facts, often in the context of international exchange. The State of
Washington has already paved the way for such an expanded role
by creating the statutory notarial power to certify that "an event
has occurred or an act has been performed."9 ° As suggested to the
National Notary Association from numerous sources, here are only
a few of the areas in which simple but helpful determinations and
certifications could be entrusted to an appropriately trained
American notary public:
(1) Foreign adoptions. Americans increasingly are adopting
foreign-born children. A frequent snag in these adoptions is
the lack of an official, impartial verifier of certain facts about
the adoptive parents, such as their marital status. Much of
this information could be verified quite simply by an
American notary.9"

(2) Foreignpensions. Many foreign pensioners residing in the

United States must annually file a "certificate of life" proving
they are alive in order to continue receiving their pension.
While a notary is typically listed on the certificate as one of
the American officials who may verify certain information
about the pensioner, many notaries correctly refuse to help

90. See WASH. REV. CODE § 42.44.080(7) (1998) (stating "[i]n certifying that
an event has occurred or an act has been performed, a notary public must
determine the occurrence or performance either from personal knowledge or
from satisfactory evidence based upon the oath or affirmation of a credible
witness personally known to the notary public.").
91. During a March 1999 visit to the People's Republic of China, the author
learned firsthand from Chinese notaries that this lack of a reliable,
government-appointed American verifier of fact complicates the foreign
adoption of many Chinese children.
 The John MarshallLaw Review [32:935

because they have no authority to confirm and certify such

information as the pensioner's address. This verification,
however, could be easily done by a notary.

(3) Representative capacity. Not every state gives its notaries

authority to confirm a signer's representative capacity as a
partner, corporate officer, attorney-in-fact, trustee or the like.
This has proven to be a significant impediment to
interstate commerce,93 since attorneys, insurers and lenders
in State A often insist that notaries in State B confirm and
certify a signer's capacity using the statutory certificates of
State A-an act that may be unauthorized if not expressly
disallowed in State B. The result is often a time-consuming
and costly interstate "ping-pong match" in which a document
is notarized, mailed, rejected and returned, and then
notarized, mailed, rejected and returned again before a
solution is worked out that typically involves finding a notary

92. The state of Florida is a notable example. See supra note 67 and
accompanying text for further discussion.
93. See MICHAEL L. CLOSEN ET AL., NOTARY LAW & PRACTICE: CASES &
MATERIALS 234 (1997).
There has been a recent and serious problem with certain California
notarized documents because some parties and agencies in other states
would not accept such notarizations. The reason was that California
had adopted legislation requiring the use of an all-purpose form, which
was deemed too general and thus unacceptable in some other places.
Id. See also National Notary Association, Out-of-State "All-Purpose'Solution
Set, CAL. NOTARY BULL., Dec. 1996, at 1 [hereinafter Out of State].
For four years, one of the most troublesome and common complaints to
the California Notary Public Section and the National Notary
Association has been: 'They won't accept the 'all-purpose'
acknowledgment form out of state-what should I do!?' As a result of
enactment of Assembly Bill 3304 earlier this year, there is now a
solution available in most cases. Effective January 1, 1997-exactly
four years after the unique-but-problematic form became mandatory for
all acknowledgments taken in California-California Notaries may use
acknowledgment forms from another U.S. state or jurisdiction on
documents that will be filed in that other state or jurisdiction.
Id. at 1-2. Specifically, CAL. CIV. CODE § 1189 (West 1999) has been amended
by the new law, with a new subsection (c) created, stating:
[o]n documents to be filed in another state or jurisdiction of the United
States, a California notary public may complete any acknowledgment
form as may be required in that other state or jurisdiction on a
document, provided the form does not require the notary to determine or
certify that the signer holds a particular representative capacity or to
make other determinations and certifications not allowed by California
law.
CAL. CIV. CODE § 1189(c) (West 1999). This "solution," however, has only
reduced some of the document rejections, because it does not apply to
documents filed in non-U.S. jurisdictions or filed in California itself, nor does
it change the fact that California notaries are not authorized to confirm and
certify a signer's representative capacity. See Out-of-State, infra at 2 (listing
several questions that have already been raised and responses related to §
1189(c)).
1999] EstablishingA New Class of Cyber Professional

in State B who will ignore local notarial law. There is no

reason that notaries in all states cannot be taught the
relatively simple techniques for verifying any signer's
representative status.
(4) Certified copies. Not every state gives its notaries
authority to certify copies of original documents that cannot
otherwise be certified by an appropriate public records
custodian (e.g., a birth certificate by a custodian of vital
records, or a property deed by a county recorder).94 Yet,
notaries in every state regularly are asked to certify copies of
such documents as diplomas, licenses and passports for a
host of legitimate purposes. Notaries in all states could be
given the helpful power to certify copies.

(5) Certified photographs. Notaries are frequently asked to

certify the genuineness of the photograph of an individual
seeking to renew a foreign passport95 or to apply for or
transfer a medical license, 9s but no state yet expressly defines
photo-certification as a notarial power. Yet, in a sense,
notaries perform a photo-certification every time they
compare a picture on an ID card against the physical
appearance of a document signer. Photo-certification of facial
appearance would impose no taxing new responsibilities on
the notary and might be authorized by law as a valuable
public service.
(6) Age verification. Companies have already begun to use
notaries to verify adult age for direct mail purchasers of

94. See supra note 60 and accompanying text for further discussion.
95. Renewal of an Indian passport in the United States normally requires
such verification of the renewer's photograph.
96. See Charles N. Faerber, Identifying the Doctor, NAT'L NOTARY MAG.,
July 1995, at 14-15 (discussing the identification form presented at testing
centers by doctors taking the United States Medical Licensing Examination
(USMLE), which bears a "notarized" photograph of the test-taker overprinted
with a notary seal). A former version of the USMLE identification form, which
bore the notarial language, "I certify that the photograph and signature on
this form accurately apply to the individual named above," was often rejected
by notaries in the correct belief that they had no statutory authority to certify
photographs. Id. at 14. In 1994-95, compromise notarial language was
worked out between the National Notary Association and the National Board
of Medical Examiners so that notaries could notarize the identification form
without appearing to certify a photograph:
I certify that on the date set forth below the individual named above did
appear personally before me and that I did identify this applicant by: (a)
comparing his/her physical appearance with the photograph on the
identifying document presented by the applicant and with the
photograph affixed hereto, and (b) comparing the applicant's signature
made in my presence on this form with the signature on his/her
identifying document.
Id. at 15. Of course, such verbal contortion would be unnecessary if notaries
simply had authority to certify photographs.
 The John MarshallLaw Review [32:935

tobacco.97 Age verification is a simple procedure that

normally entails looking at a photo-bearing ID that contains
a date of birth.
A number of states already give notaries minor roles as
verifiers of information. In Florida, for example, notaries may
confirm vehicle identification numbers. In California, notaries
may confirm the age of certain affiants.98
The above new roles would necessarily require educational
and certification programs to teach notaries the techniques of
confirming representative capacity, marital status and the like.
But these are not exceedingly complex tasks, and the procedures
might be imparted through classroom sessions, a home study
program or a study course on the Internet.
Depending upon a state's preference, this certification as a
verifier of fact need not be a qualification that every notary would
have to achieve, or it could be made a mandatory facet of every
notary's repertoire of powers. However, because the confirmation
of certain facts might take considerably longer than the execution
of such currently authorized notarial acts as jurats and
acknowledgments, fact verification would best be made a power of
full-time, self-employed notaries whose time is not restricted by
any one employer.

B. The Self-Employed Modern American Notary: Emergence of

the CyberNotary
Would the verification of facts, along with the performance of
such traditional notarial acts as jurats and acknowledgments,

97. See National Notary Association, Notarized Form Developed To Order

Tobacco Via Mail, CAL. NOTARY BULL., Dec. 1997, at 8 (describing the new
role of the notary in mail-order tobacco purchases). One company using
notaries to ascertain that mail-order tobacco purchasers are at least 18 years
old is New Mexico's Santa Fe Natural Tobacco. Id. Accommodating the fact
that notaries have no express statutory authority per se to confirm and certify
age, Santa Fe Natural Tobacco's notarial form requires the notary to identify
the purchaser, take the individual's acknowledgment of a signature and then
to insert a date of birth on the form taken from the purchaser's. Id. Again,
such verbal contortion would be unnecessary if notaries had authority to
confirm and certify such simple facts as date of birth and age.
98. See CAL. GOV'T CODE § 8230 (West 1999).
If a notary public executes a jurat and the statement sworn or
subscribed to is contained in a document purporting to identify the
affiant, and includes the birthdate or age of the person and a purported
photograph or finger or thumbprint of the person so swearing or
subscribing, the notary public shall require, as a condition to executing
the jurat, that the person verify the birthdate or age contained in the
statement by showing either: (a) A certified copy of the person's birth
certificate, or (b) An identification card or driver's license issued by the
Department of Motor Vehicles.
1999] EstablishingA New Class of Cyber Professional

provide sufficient income for a notary to be self-employed full-

time? It would if duties are added from a second category of
prospective new roles for the modern American notary. These
roles have emerged over the past decade with the burgeoning
growth of the Internet and the increasing importance of electronic
data interchange (EDI) in commerce, law and government. It has
become apparent that many of the notary's traditional witnessing
and authenticating functions with pen-and-ink signatures and
paper documents are transferable to the arena of digital
signatures and electronic documents.
These EDI authenticating functions might be gathered under
the title "CyberNotary,"9' though this term was coined with a
relatively narrow, specific and, currently, unrealized application in
the field of international commerce. "So far ... there exist no
CyberNotaries, as envisioned by the ABA's Information Security
Committee. To a great extent, the CyberNotary is a hypothetical
office in search of a real-world purpose. " "°°
In 1997,01 Florida became the first American state to try to
give the CyberNotary a real-world purpose, but it did so by
breaking up the office into two separate notarial offices-the
"Florida international notary" 0 2 (renamed in 1998 as "civil-law

99. See Charles N. Faerber, Book Versus Byte: The Prospects and
Desirability of a Paperless Society, 17 J. MARSHALL J. OF COMPUTER & INFO.
L. 797, 798 (1999) (pointing out that the CyberNotary was conceived by the
American Bar Association's Information Security Committee as a new legal
specialization for facilitating international electronic commerce, one in which
technical and legal expertise would be combined in a single officer)
[hereinafter Book Versus Byte]. "The CyberNotary was envisioned as an
American notary with both a law degree and an expertise on digital signatures
who would be regarded as a professional equal by the attorney-like notarial
officers within the International Union of Latin Notariats (IULN)." Id. See
Theodore S. Barassi, The CyberNotary: A New U.S. Legal Specialization for
FacilitatingInternational Electronic Commerce, Bulletin of Law, Science &
Technology, 1995 A.B.A. SEC. SC. & TECH. 5-7. See also the report issued by
the CyberNotarial Group of the Meeting of the Information Security
Committee of the American Bar Association, Wash. D.C., Nov. 9-11, 1994 (on
file with the author).
100. Book Versus Byte, supra note 99, at 798.
101. Florida Statute provisions creating two new notarial offices were
enacted in 1997 through Committee Substitute for House Bill 1413 (Chapter
241) and Committee Substitute for Senate Bill 1754 (Chapter 278). See FLA.
STAT. chs. 117.20, 118.10 (1998) for comparison and history of the acts.
102. Florida legislation enacted in 1998 (Committee Substitute for House
Bill 1125 (Chapter 246)) changed the title of the new "Florida international
notary" to "civil-law notary." The governing rules for the civil-law notary are
in FLA. STAT. ch. 118.10 (1998). To qualify for appointment by the Florida
Secretary of State as a civil-law notary, an applicant must have been a
member in good standing of the Florida Bar for at least five years. FLA. STAT.
ch. 118.10(1)(b). The civil-law notary is authorized to issue "authentic acts," in
the manner of foreign Latin notaries, but also has authority to perform the
same acts as ordinary Florida notaries, including the power to solemnize the
 The John MarshallLaw Review [32:935

notary") and the "electronic notary,""3 who will operate within a

public key infrastructure (PKI)."' Florida legislators, apparently,
did not want to restrict electronic notarizations just to attorneys.
There are at least three potentially considerable roles for the
electronically sophisticated notarial officer that we will call the
CyberNotary. These distinct roles include the internet knowledge
navigator, the digital signature authenticator, and a certification
authority.
1. Internet Knowledge Navigator
The effectiveness of the notary as a confirmer of fact, as
outlined above, can only be enhanced by the infinite reach of the
Internet. It is just a matter of time before every public record is
online and, thus, accessible to the electronically adept notary. In
Brunswick County, North Carolina, for example, a web site is now
being developed to provide Internet users with access to property
records and vital records such as birth, death and marriage
certificates.' The notary might serve as an "Internet Navigator"

rites of matrimony. FLA. STAT. ch. 118.10(3). The civil-law notary must
maintain a protocol containing original documents. FLA. STAT. ch.
118. 10(1)(c). The new officer has global jurisdiction to take acknowledgments
and proofs concerning real property. FLA. STAT. ch. 695.03. Not surprisingly,
the roving authority of the Florida civil-law notary has already drawn
criticism from notaries in IULN nations, who resent the invasion of their own
jurisdictions.
103. Provisions regarding "electronic notarization" are contained in FLA.
STAT. ch. 117.20(2) (1998):
[a]n electronic notarization shall include the words 'Notary Public-State
of Florida,' the name of the notary public, exactly as commissioned, the
date of expiration of the commission of the notary public, the
commission number, and the notary's digital signature. Neither a
rubber stamp seal nor an impression-type seal is required for an
electronic notarization.
Id. To become an electronic notary, an applicant must already have been
commissioned as a regular Florida notary and have had a private/public key
pair certified by a certification authority; the Florida Secretary of State then
would issue an amended commission to any qualifying applicant. FLA. STAT.
ch. 117.20(3). Electronic notaries must abide by all laws governing regular
notaries, including that requiring each document signer to appear in person
before the notary at the time of notarization. FLA. STAT. chs. 117.20(3),
117.05. Unlike other Florida notaries, however, the electronic notary must
"keep a sequential journal of all acts performed;" if the journal is "stolen, lost,
misplaced, destroyed, or rendered unusable," the state must be notified
immediately. FLA. STAT. chs. 117.20(5), 117.20(5)(c).
104. See Jane Kaufman Winn, Open Systems, Free Markets, and Regulation
of Internet Commerce, 72 TULANE L. REv. 1177, 1201-04 (1998) (describing the
use of a public key infrastructure to provide a reliable public key distribution).
105. See National Notary Association, County in NC Offers Internet Record
Access, FOR THE RECORD, Mar.-Apr. 1999, at 3 (describing the ongoing effort in
one North Carolina county to standardize recordable documents). FOR THE
RECORD is an NNA publication issued on behalf of the Property Records
1999] EstablishingA New Class of Cyber Professional

of sorts for certain information-hungry citizens who lack the

resources or technical confidence to plug in to this encyclopedic
information pathway.

2. Digital SignatureAuthenticator
Electronic data interchange has not eliminated fraud.
Rather, it has given the resourceful criminal new venues and
techniques for exploitation. "[D]igital signatures will make many
types of fraud much easier, by eliminating the annoying need for
personal presence [and the possibility of detection and arrest].""'
The closed system of public key cryptography that is supposed to
"make information safe from eavesdropping, tampering, or forgery,
regardless of the security of a communication channel,""' is still
subject to imposture. "The main problem with the public
key/private key technology is that a private key may be stolen,
borrowed or coercively taken and then used to create a fraudulent
electronic message, without the knowledge of the message
recipient, who may be on the other side of the earth." 8
Thus, there is a role for an impartial digital authenticator-
an "electronic notary"-who would be in the presence of the
signer/transmitter of an electronic document to screen that person
for identity, lack of coercion and basic awareness, and then to
authenticate the transmission by adding the witness's own digital
signature. "A digital signature is just a new kind of pen, and
consumers still need professional co-signer witnesses in their local
communities to protect them from fraud, overreaching, and duress
in life changing transactions, such as the sale of their home ...""
Florida and Utah"' have led the way in creating statutory

Industry Joint Task Force.

106. See Frank W. Sudia's Written Comments, Submitted as a Member of
the National Notary Association's Model Notary Act Revision Committee,
March 25, 1999 (on file with the National Notary Association) [hereinafter
Sudia's Written Comments].
107. See Winn, supra note 104, at 1241 (discussing cryptography's role in
keeping information safe).
108. Charles N. Faerber, Electronic Notarization: Florida, Utah Lead the
Way, NAT'L NOTARY MAG., July 1998, at 20.
109. Sudia's Written Comments, supra note 106.
110. Through enactment of Senate Bill 107 (Chapter 63) in 1998, qualifying
Utah notaries may now take acknowledgment of digital signatures:
[a] notary acknowledgment on an electronic message or document is
considered complete without the imprint of the notary's seal if: (a) the
electronic message or document has been digitally signed pursuant to
Section 46-3-401 in the presence of a notary; (b) the notary has
confirmed that the digital signature on the electronic message or
document is verifiable by the public key listed in the certificate issued to
the signer in accordance with Section 46-3-403; (c) the notary
electronically signs the acknowledgment with a digital signature
pursuant to Section 46-3-401; and (d) the following information appears
 The John MarshallLaw Review [32:935

provisions to commission and regulate such "electronic notaries,"

while three other states"'-Georgia, Virginia and Wisconsin-
currently have briefer statutory sections merely recognizing use of
a digital signature by a notary. As of this writing, no state has yet
commissioned any citizen as an electronic notary.
At present, a broad and well-defined role for the American
notary as a "Digital Signature Authenticator" awaits the
regularizing of electronic procedures for executing and filing such
commonly notarized documents as real property deeds. and motor
vehicle titles. It also awaits a consensus that public key
cryptography has more to offer than other technologies, such as
biometrics, in linking a given person with a given electronic
message. Specifically, "[u]ntil a reliable, inexpensive key
distribution system that facilitates identification of the private key
holder is created, public key cryptography will probably not be
very useful in electronic commerce applications."' But the
CyberNotary, in the function described below, could well be part of
that inexpensive key distribution system.
3. CertificationAuthority
Some analysts view the American notariat as an obvious
human resource to tap in creating that new officer, so vital to the
public key infrastructure, who would be called a "Certification
Authority" (CA).
A certification authority is a trusted third party who is in the
business of associating a public key with a particular individual.
The certification authority associates an individual with a public
key by issuing a certificate that at a minimum contains a copy of the

electronically within the message digitally signed by the notary: (i) the
notary's full name and commission number exactly as indicated on their
commission; and (ii) the words 'notary public,' 'state of Utah,' and 'my
commission expires on (date)'; and (iii) the address of the notary's
business or residence exactly as indicated on their commission.
UTAH CODE ANN. § 46-1-16(7) (West 1998).
111. See Charles N. Faerber, 1998 Notary Public Laws in Perspective, NAT'L
NOTARY MAG., May 1999, at 20 (describing Florida and Utah's comprehensive
notary reform and the recognition of digital signatures in several states). At
the end of the states' 1998 legislative sessions, Georgia, Virginia and
Wisconsin recognized a notary's use of a digital signature. Id. However, in
early 1999, Arkansas enacted its "Electronic Records and Signatures Act,"
which also allows a notary to use a digital signature. Electronic Records and
Signatures Act. 1999 Ark. Acts 718.
112. A committee now drafting a proposed Uniform Electronic Transactions
Act for the National Conference of Commissioners on Uniform State Laws has
recommended inclusion of real estate documents in the Act only upon the
devising of a reliable electronic equivalent to a notary's signed and sealed
paper acknowledgment certificate (30-page interim report circulated for
discussion purposes only, on file with the author).
113. Winn, supra note 104, at 1201.
1999] EstablishingA New Class of Cyber Professional

public key in question and the identity of the person associated with
it. It may also contain information about how long the certificate
will be valid or special characteristics identifying the context in
which the public key will be used. The certification 4 authority then
signs the certificate with its own digital signature.1
As screened and trusted impartial witnesses, notaries would
be well-positioned to qualify with the state as CAs, or they might
serve as local agents of a CA, though some see a potential problem
with the notary being the CA rather than the agent:
[i]n theory there is no bar to allowing them also to act as a
Certification authority ...that signs the subscriber's certificate
directly in their own name, as contemplated by the Utah [Digital
Signature] Act. My reservation is that the duties of CA also require,
in my opinion, the maintenance of a 24x7x365 online revocation
capability, in case the customer's key is stolen, whereas the notary
needs to sleep, go on vacation, etc. This might, however, be
contracted out, with the customer being given an 800 number to call
during non-business hours."' 5
Conceivably, notaries could associate in firms, just as lawyers
currently do, so that one or more would always be "on duty" to
handle certificate revocation chores. Notably, VeriSign, Inc. of
Mountain View, California, the first commercial CA in the nation
to offer its services to the public," 6 already uses notaries as an
alternative to local registration agents in issuing its highest class
of digital ID, used in such applications as e-banking, corporate
database access, personal banking and membership-based on-line
services." 7

C. A New Dual Role for the American Notary?

If the American notary is to undertake a new dual role as a
confirmer of critical information and as CyberNotary, the office
will necessarily become more professional but notaries will become
fewer in number. Intensive classes, study and testing on the

114. Id. at 1202 (citations omitted).

115. See Sudia's Written Comments, supra note 106.
116. See Winn, supra note 104, at 1211-12 (describing VeriSign's role as a
certification authority).
117. A state's mere imposition of a test on notary commission applicants, or
the toughening of a current test, normally will cause the number of
commissionees to fall off in that state. For example, when California changed
its open-book test to a closed-book proctored exam on January 1, 1992, the
California notary population plummeted from 161,000 in 1992 to 130,000 in
1997. See Birenbaum, supra note 7, at 31 (showing the drop in the number of
notaries in California). See also National Notary Association, New Qualifying
Exam Begins January 1, CAL. NOTARY BULL., Dec. 1991, at 1 (stating that a
new California notary qualifying exam was to begin on January 1, 1992);
NATIONAL NOTARY ASSOCIATION, PREPARING FOR THE CALIFORNIA NOTARY
PUBLIC EXAM (1995).
 The John Marshall Law Review [32:935

subjects of computer science, business and law will be a sine qua

non. Many individuals who currently own notary commissions
will not have the personal resources to qualify, and the total count
of notaries in any state that chooses to restyle its notary program
in this new direction will doubtlessly fall"--a turn of events that
many observers would applaud."9 Of course, with the law of
supply and demand ever in force, fewer notaries would mean more
business and higher fees for the individuals who qualify.
It is likely that the advent of the notary in one or both of the
above-described roles will be incremental rather than sudden. It
is also possible that the American notary office may articulate into
two or more different classes of notary, either on a transitional or
a permanent basis. Below are described three possible future
classes of notary.
In the least selective class would be the traditional, strictly
ministerial, paper-oriented notary office that we have known for
decades; functionaries in this office would continue to administer
oaths and take acknowledgments, most often as lower-level
"notaires covert" in an office setting. But states must do much
more to address the dilemma of these so-called "lapdog" office
notaries who, out of ignorance or fear, tend to defer to the wishes
of employers and clients, even when they conflict with
requirements of notarial law. One part of the solution may be to
eliminate or find alternatives to the "production line" notarizations
that many corporate notaries perform by the hundreds every day.
Do we really need all these notarizations? Another part of the
solution is enactment of stiff statutory penalties for employers who
request or require improper notarial acts,' coupled with clear
state instructions and warnings for notaries on what may and may
not be done in an office environment. Further, private employers
must be put on notice by the state that the price of the convenience
of having a state officer, a notary public, at one's beck and call in
house is strict adherence to all notarial laws. Accordingly, the
state should not be reluctant to take away the privilege to employ
notaries on one's premises if notarial laws are broken, compelling
these employers to use the services of more scrutinous,

118. See Michael L. Closen & R. Jason Richards, Notaries Public-Lost in

Cyberspace, or Key Business Professionals of the Future?, 15 J. MARSHALL J.
COMPUTER & INFO. L. 679, 757 (1997).
There is simply no sound business or policy reason for so many
individuals to hold notary commissions in this country. The explosion of
notary commissions since the mid-1800s has seriously diluted the
quality of services rendered by notaries and destroyed the special
stature of the office. If there are some 4.5 million notaries in this
country today, the authors believe there are at least 4 million too many.
Id.
119. See supra note 89 and accompanying text.
120. See generally Malavet, supra note 4, at 475-82.
1999] EstablishingA New Class of Cyber Professional

independent notaries.
These more scrutinous, independent notaries might comprise
the middle tier of the envisioned three transitional classes of
notary. They would be self-employed, highly professional and
well-trained-perhaps college graduates. In being self-employed
and independent, this class of notary would not be subject to the
often overwhelming pressure applied to salaried employee/notaries
to follow their supervisor's improper notarial directives-e.g., by
not requiring signers to appear or to show proper identification-
rather than to follow the law. They would have all the powers of
the traditional notary and serve as a confirmer of fact, a digital
signature authenticator and perhaps as a local agent for a
Certification Authority, but would not handle the discretionary
functions of an attorney and steer clear of the unauthorized
practice of law.
On the top tier of the three classes of notary might be the
attorney/notary, who would have all the powers of both the
traditional and mid-tier notaries, but would perhaps serve
primarily in the international arena and be accepted as an equal
by civil law notaries of other countries.
One can envision firms in which all three types of notary
would be employed, with perhaps those on the lower rungs serving
apprenticeships before moving up; just as the tabelliones of the
Eastern Roman Empire employed notarii as clerk-scribes,1 1 so the
mid-tier and attorney/notaries might employ lower-level
traditional notaries and hire them out as "temps" in corporations.
One can also visualize firms run on somewhat of the Japanese
model-one notary with many less experienced assistants.

CONCLUSION
It is difficult to visualize a continuation well into the 21st
century of the American notary office as it currently operates.
What we have today in the United States is an underutilized and
often denigrated, but nonetheless quietly effective notarial system
whose weaknesses stem from two sources. First, there are
constitutional weaknesses that minimize the office's powers,
authority and potential societal usefulness, and relegate most
notaries to an in-house role rather than a function as a self-
supporting and independent practitioner. Second, there are
weaknesses in the American notary office stemming from official
apathy, particularly about the need for education and testing. It
has, of course, been the mission of the National Notary Association
(NNA) since its founding in 1957 to address that need and attempt
to fill the educational void for the American notary. The NNA has
striven to inculcate understanding and acceptance on the part of

121. See supra note 27 and accompanying text for further discussion.
 The John MarshallLaw Review [32:935

notaries that what they do is critical to the integrity of legal and

commercial activity in this nation, and that they will be held
accountable for their failure to uphold certain standards. Our
challenge has been to imbue in notaries a professionalism and care
that will reflect that understanding and accountability. We have
also worked hard to win from government administrators,
lawmakers, the media, attorneys, academia and the general public
an acknowledgment of the importance of the notary office and a
respect for the duties notaries perform.
The two new roles presenting themselves for notaries-as
confirmers of critical information and as Internet navigators-
offer a rare opportunity and an impetus to further professionalize
the office. It is also an opportunity to enhance public recognition
and respect for the significant role of the notary as society's
impartial witness. Too few people realize that, without the notary
to screen document signers for identity, volition and basic
awareness, the security of our reliance on important and sensitive
documents like real property deeds and powers of attorney would
be breached, with devastating results on our lives and fortunes.
Welcomed and needed changes are in the offing for the notary
office in this country. In the future, there will likely be fewer
American notaries, but they will be better paid and much more
highly trained, competent, independent, professional, respected
and useful. For the notaries public of the United States on the
threshold of a new century and millennium, it is a bright future
indeed.