Six Mistakes That Can Get a Notary Sued for Fraud and Malpractice

The role of a notary public, while often viewed as merely procedural, comes with significant legal responsibilities. Notaries act as impartial witnesses to the signing of documents, and by so doing, they help to deter fraud and ensure that signatories are entering into agreements knowingly and willingly. However, despite the seemingly straightforward nature of notarial duties, there are pitfalls that, if not carefully avoided, can lead to serious legal consequences including allegations of fraud and malpractice. This article explores some of the most serious mistakes notaries make.

1- Notarizing for someone who isn’t present at the time

The primary purpose of notarization is to deter fraud and ensure the trustworthiness of signed documents. Notarizing in the absence of the signer eliminates the opportunity to perform essential checks and facilitates fraud and document tampering. Notarizing for someone who isn’t present undermines the legal foundation of notarization and violates the principles of identity verification, voluntariness, and document integrity. Engaging in such practices exposes the notary to significant legal risks, including criminal charges for fraud, revocation of their notary commission, and civil liability for damages resulting from reliance on the notarized document.

2- Backdating or postdating a notarial certificate

Backdating or postdating a notarial certificate is considered fraud because it involves intentionally altering the actual date of notarization to a past or future date, thereby creating a false record. This act undermines the integrity of the notarial process, which relies on accurate and truthful documentation of when notarial acts occur. The date on a notarial certificate is a crucial element that signifies when the notary public officially performed the notarial act. Altering this date misrepresents the factual timeline of events, which can have significant legal implications.

3- Delegating a notarial duty to another person 

Delegating notarial duties to another person who is not authorized to perform notarial acts constitutes fraud and a serious breach of a notary public's legal obligations. Notary publics are appointed by their state and are granted the exclusive authority to perform specific notarial acts such as administering oaths or affirmations. These duties require the notary to personally ensure that all legal requirements are met, including verifying the identity of signatories and ensuring their understanding and willingness in signing documents. When a notary delegates these responsibilities to an unauthorized individual, that notary undermines the integrity of the notarial process and the legal validity of the documents involved. A notary who delegates their duties to an unauthorized person can face legal penalties including fines, criminal charges, and the revocation of their notary commission.

4- Notarizing a document that the notary knows is fraudulent

Laws governing notarial acts are designed to prevent fraud and protect the integrity of signed documents. The role of a notary involves serving as an impartial witness to the signing of documents, verifying the identity of signers, and ensuring that signers are entering into agreements knowingly and willingly. When a notary knowingly participates in the notarization of a fraudulent document, they are complicit in the fraud and betray the trust placed in them as public officials.

5- Engaging in false or misleading advertisement

Notaries should ensure that their advertisements accurately describe the services they are authorized to provide and avoid using terms that could mislead someone about their legal authority or qualifications. For example, in the United States, advertising as a "notario publico" is considered deceptive and potentially fraudulent, especially when targeting the immigrant community. This misunderstanding stems from the difference in the role of "notarios" in Latin American countries compared to notaries in the U.S. In many Latin American countries, a "notario publico" is a highly trained legal professional, akin to an attorney, with the authority to provide legal advice and make legal decisions. In contrast, in the U.S., a notary public is an individual authorized to witness the signing of documents and administer oaths, but not to provide legal advice or make legal decisions. Notaries must familiarize themselves with and adhere to all laws and regulations related to notarial practice and advertising in their jurisdictions. This includes any specific prohibitions against misleading titles or claims.

6- Allowing coercion or duress

Coercion occurs when an individual is forced to act against their will under threat of harm or other penalties, while duress involves pressure that compels someone to execute a document they would not have signed of their own free will. Notaries are legally obligated to ensure that signers are acting of their own free volition. Ignoring signs of coercion compromises the integrity of the notarial act and can have legal repercussions for notaries,. Upon suspecting coercion or duress, a notary should refuse to notarize.

Notaries must avoid these serious mistakes if they are to perform their duties effectively and without legal risk. Continuous education, adherence to ethical practices, and a thorough understanding of notarial laws are crucial for notaries to protect themselves and maintain the integrity of the documents they notarize. Notaries serve as guardians of trust in legal document execution, and by steering clear of these pitfalls, they uphold the law and their responsibility to the public.