Is the oldest legal profession out of date?
The notary profession is the oldest legal profession in the world. What can be done to modernise the profession and keep up to date with the new wave of ABSs that is forecast? What, if anything, is holding the profession back and what can be done to push it forwards?
Simon Jackson • I write as a qualified solicitor and as a practising notary and attorney outside of the UK, and wonder whether the following expresses the thoughts of other practising notaries.
Electronic signatures are now legal, enabling affidavits to be signed even when the deponent is far away from the attorney. Safety mechanisms are in place to guard against forgery. We live in the age of the Internet. Numerous local and international transactions are conducted using the Internet. Trillions of dollars are transferred each year over the Internet, using personal credit cards, yet in a safe and customary manner. Yet the argument is made that the Electronic Signature Law should not apply to notarial acts “in light of their great importance and value” and due to the importance of identifying the signatory “only in person.”
This argument is based on the alleged importance of identifying signatories on the basis of their ID cards containing a picture or other similar document. Yet why cannot a person’s ID card be scanned and e-mailed? The sender’s ID particulars could be received by e-mail; the notary would be able to expand and sharpen the images on his computer; the client could simply open his webcam and present his ID card (that was previously scanned); and the notary could then expand the size of the person’s picture who appears in the camera, at ease and without undue pressure, using tools ten times more professional than the notary’s own eyes.
The argument is also made that it is possible that an electronic signer might be threatened by a person brandishing a gun behind the screen. Yet, surely it is possible to film the person signing as well as his surroundings and to observe the picture through the Internet? The notary can see that the signer is alone, that no one is threatening him with a gun; and can satisfy himself (including by speaking to him and observing his body language) that the signer is composed and not under duress. And let’s say someone is holding a gun to the person’s head – how many cases of this can there be as opposed to the normal and usual cases? One in a billion? It seems that this one hypothetical case is uppermost in the minds of those who are against progress, who refuse to allow the rules to be changed or interpreted in such a way that would enable notaries to exploit the immense potential of the Internet.
And let’s say that the signer was threatened and coerced somehow into signing, surely at the first opportunity thereafter he would expose this and the signature would then be voided? Moreover, when a signer appears before the notary in person, is it not possible for him to be threatened also? Say, for example, the coercer affixes a ticking bomb to the body of the signer, which can be activated by remote, and tells him that his refusal to sign will result in the bomb’s activation. In such a case, too, the notary can properly identify the signer and can approve the fact that the signer has signed ostensibly out of his own free will; when in practice he may, in fact, be coerced into doing so.
In summary, the question needs to be asked whether the time has not come to welcome the Internet and its potential into the offices of notaries, as a tool intended to preserve and strengthen the accuracy of their work – and not the other way round.
Joanne Cowie • I think Simon makes some excellent comments. I fear that unless we as a profession start to plan to adapt and enhance our approach to reflect more of what Simon outlines that we will be left behind. I do not advocate change for the sake of it, but unless we embrace the advantages technology lays at our door, (being utilised far more imaginatively more and more by clients, other professions etc) what lies in store for the long term future of our profession? Just think how notarial acts were performed and completed 20 years ago, 10 years ago, 5 years ago…..many aspects do and should remain the same but just think what has changed in how we go about fulfiling our role.
A very interesting topic!
Jonathan Kemp • A topical point. Ultimately, whatever we do is to satisfy a documentary need of someone, perhaps unknown in order to enable out client’s transaction. We have a business because many people and organisations around the world perceive notarial attestation to add security to the documentation. The good news is that the need for a notary’s work appears to be increasing - even within the UK (e.g. certified copies of document for the Border Agency). One significant difficulty is that those demanding notarial attestation often have no idea what they are really asking and are really after legalisation. Hence the recent discussion on NotaryTalk about AMC applications.
I agree wholeheartedly that we should use IT to its full advantage, both in the preparation stages of a notarial act, as Simon has suggested, and also in the act itself, e.g. e-notarisation. The first stage is a matter of professional practice and the second is a matter of trying to inform recipients of notarial acts of e-notarisation.
Robin Stephenson • I think like every part of the legal profession with increasing deregulation etc there is alot of uncertainty as to what the future holds. On the flip side however with a real emphasis on companies trying to export the country out of recession, there is likely to be an increasing need for Powers of Attorney and the appropriate companies house documents which usually require notarisation in order to permit our companies to trade overseas.
Is the oldest legal profession out of date?
The notary profession is the oldest legal profession in the world. What can be done to modernise the profession and keep up to date with the new wave of ABSs that is forecast? What, if anything, is holding the profession back and what can be done to push it forwards?
Simon Jackson • I write as a qualified solicitor and as a practising notary and attorney outside of the UK, and wonder whether the following expresses the thoughts of other practising notaries.
Electronic signatures are now legal, enabling affidavits to be signed even when the deponent is far away from the attorney. Safety mechanisms are in place to guard against forgery. We live in the age of the Internet. Numerous local and international transactions are conducted using the Internet. Trillions of dollars are transferred each year over the Internet, using personal credit cards, yet in a safe and customary manner. Yet the argument is made that the Electronic Signature Law should not apply to notarial acts “in light of their great importance and value” and due to the importance of identifying the signatory “only in person.”
This argument is based on the alleged importance of identifying signatories on the basis of their ID cards containing a picture or other similar document. Yet why cannot a person’s ID card be scanned and e-mailed? The sender’s ID particulars could be received by e-mail; the notary would be able to expand and sharpen the images on his computer; the client could simply open his webcam and present his ID card (that was previously scanned); and the notary could then expand the size of the person’s picture who appears in the camera, at ease and without undue pressure, using tools ten times more professional than the notary’s own eyes.
The argument is also made that it is possible that an electronic signer might be threatened by a person brandishing a gun behind the screen. Yet, surely it is possible to film the person signing as well as his surroundings and to observe the picture through the Internet? The notary can see that the signer is alone, that no one is threatening him with a gun; and can satisfy himself (including by speaking to him and observing his body language) that the signer is composed and not under duress. And let’s say someone is holding a gun to the person’s head – how many cases of this can there be as opposed to the normal and usual cases? One in a billion? It seems that this one hypothetical case is uppermost in the minds of those who are against progress, who refuse to allow the rules to be changed or interpreted in such a way that would enable notaries to exploit the immense potential of the Internet.
And let’s say that the signer was threatened and coerced somehow into signing, surely at the first opportunity thereafter he would expose this and the signature would then be voided? Moreover, when a signer appears before the notary in person, is it not possible for him to be threatened also? Say, for example, the coercer affixes a ticking bomb to the body of the signer, which can be activated by remote, and tells him that his refusal to sign will result in the bomb’s activation. In such a case, too, the notary can properly identify the signer and can approve the fact that the signer has signed ostensibly out of his own free will; when in practice he may, in fact, be coerced into doing so.
In summary, the question needs to be asked whether the time has not come to welcome the Internet and its potential into the offices of notaries, as a tool intended to preserve and strengthen the accuracy of their work – and not the other way round.
Joanne Cowie • I think Simon makes some excellent comments. I fear that unless we as a profession start to plan to adapt and enhance our approach to reflect more of what Simon outlines that we will be left behind. I do not advocate change for the sake of it, but unless we embrace the advantages technology lays at our door, (being utilised far more imaginatively more and more by clients, other professions etc) what lies in store for the long term future of our profession? Just think how notarial acts were performed and completed 20 years ago, 10 years ago, 5 years ago…..many aspects do and should remain the same but just think what has changed in how we go about fulfiling our role.
A very interesting topic!
Jonathan Kemp • A topical point. Ultimately, whatever we do is to satisfy a documentary need of someone, perhaps unknown in order to enable out client’s transaction. We have a business because many people and organisations around the world perceive notarial attestation to add security to the documentation. The good news is that the need for a notary’s work appears to be increasing - even within the UK (e.g. certified copies of document for the Border Agency). One significant difficulty is that those demanding notarial attestation often have no idea what they are really asking and are really after legalisation. Hence the recent discussion on NotaryTalk about AMC applications.
I agree wholeheartedly that we should use IT to its full advantage, both in the preparation stages of a notarial act, as Simon has suggested, and also in the act itself, e.g. e-notarisation. The first stage is a matter of professional practice and the second is a matter of trying to inform recipients of notarial acts of e-notarisation.
Robin Stephenson • I think like every part of the legal profession with increasing deregulation etc there is alot of uncertainty as to what the future holds. On the flip side however with a real emphasis on companies trying to export the country out of recession, there is likely to be an increasing need for Powers of Attorney and the appropriate companies house documents which usually require notarisation in order to permit our companies to trade overseas.