On Friday, April 3, 2020, Rhode Island Secretary of State issued revised Standards of Conduct for Notary Publics in the State of Rhode Island and Providence Plantations, adding Section 8, which authorizes Remote Online Notarization (RON) of legal documents during the COVID-19 crisis. This revision aligns with Governor Gina Raimondo’s Executor Order 20-13 mandating that Rhode Islanders stay at home and only leave for essential tasks, like going to necessary doctor’s appointments and the grocery store.
The new Section 8 cites the following requirements for RON, which are more broadly outlined below: (i) properly identifying the person whose signature is being notarized, referred to as the principal, (ii) creating and retaining an audio/visual record of the entire process, (iii) returning the signed documents to the notary, and (iv) registering with the Secretary of State’s office. In an effort to validate their authority, the Standards state that nothing stated in the Standards supersedes the Rhode Island Notarial Act, which can be found in the General Laws at Section 42-30.1.
Identification: A remotely located individual is defined as anyone who is not in the physical presence of the notary. This is accomplished by expanding the definition of “personally appear” as set forth in the Standard prior to revision to mean communicating between the notary and principal simultaneously by sight and sound through an electronic device at the time of the notarization.
The remote notary must be able to reasonably identify the principal through one of three ways. First, the remote notary can have personal knowledge of the principal. Under existing law personal knowledge is defined as dealings sufficient to provide reasonable certainty regarding the legal identity of the individual.
The second method is for the remote notary to obtain satisfactory evidence of the identity of the principal through two different types of identity proofing. The requirement for two different types of identity proofing is more stringent than the statutory requirement for in-person notarizations. Identity proofing in this context is defined as a review of personal information from public or private data sources. Presumably this means that during the electronic communication, a remote notary that does not have personal knowledge of the principal can review the same types of documents that would be provided during an in-person notarization. Those include a passport, driver’s license, or government-issued identification card that is either current or expired not more than three (3) years before performance of the notarial act.
If the remote notary does not have personal knowledge of the principal or the principal does not have two different types of qualifying identity proof, the third method the remote notary can use to identity proof is to take the oath or affirmation of a credible witness who is either (i) in the physical presence of the remote notary or the principal at the time of the notarization, or (ii) is remotely located but able to communicate with the notary and the principal through an electronic device at the time of the notarization. The credible witness must have personal knowledge of the remotely located individual and must also be identity proofed by the notary using one of the first two methods above. This third category of remote notarization creates the possibility for the notary, the principal, and the witness to be in three different physical locations while communicating only through the electronic device.
Creating an A/V Record. The notary must create an audio/visual recording of the performance of the notarization and retain the recording or cause the recording to be retained by a repository designated by or on behalf of the notary public for at least ten years. At present, the Secretary of State’s website identifies two designated repositories. In a somewhat obtuse fashion, the Standards state that if Rhode Island law requires a different time period, the record must be retained for that different period of time.
If the principal is physically located outside of the geographic boundaries of the State of Rhode Island, a Rhode Island notary can only remotely notarize the document if (i) the record is intended for filing with or relates to a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of the United States or, (ii) involves property located in the territorial jurisdiction of the United States or a transaction substantially connected to the United States. Presumably this would include notarizing a self-proving affidavit to a Will. In both cases, the notary public must have no actual knowledge that the act of making the statement or signing the record is prohibited by the laws of the jurisdiction in which the remotely located individual is physically located.
Mailing the Signed Document(s) Back to the Notary. Once the document has been signed, the Standard requires that the principal mail the signed document(s) to the notary public for certification and execution with the notary’s signature and official stamp. The term “mail” is not defined. A literal reading of this requirement suggests that, at least potentially, the notarization aspect of a document that was hand delivered after being electronically notarized could be invalidated. To comply with the Standard, and protect the integrity of the documents, once the signing process is completed the notarized document should be placed in the envelope that is used to mail it and sealed as part of the visual record and the envelope should be retained with the document when received by the notary. Once the document is received by the notary, the notary should complete the notary clause and place their stamp on the document. The Standards make clear that the official date and time of the notarization is the date and time when the notary public witnessed the signature via the electronic devices that provided the audio/video presence and not when it is completed by the notary.
Registering with the Secretary of State. Before a Rhode Island notary can offer remote online notarization services, he or she must register with the Secretary of State’s office and provide the name of the approved repository and an exemplar of the notary’s signature and official stamp. The Standards make clear that the ability to remotely notarize is only applicable as of the effective date of the revised Standards (April 3, 2020) and will cease automatically when the state of emergency declared by the Governor in response to COVID-19 is terminated.
Pannone Lopes Devereaux & O’Gara attorneys will continue to monitor the RON and other important issues to keep you informed. For further information and answers to your questions, please contact PLDO’s estate, trust and tax attorneys, Gene M. Carlino, Partner, and Bernard A. Jackvony, Of Counsel, in the firm’s Rhode Island office at 401-824-5100 or in our Florida office at 561-362-2030 or email [email protected] and [email protected].
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