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Long-Term Impacts of COVID on the Legal Profession: Part III

We are discussing the long-term impacts of COVID-19 on the legal profession, the courts, practicing law, and the life of a lawyer. Our first installment was broadly and generally on working remotely. It’s likely to continue to spread, just as it was pre-pandemic. Our second installment dealt with virtual conferences, hearings, and meetings. Face-to-face exchanges are invaluable in some circumstances, but virtual meetings are here to stay. But when are they really necessary?

One area that presented repeated challenges during the pandemic shutdown was with some of the mainstays of the legal profession – executing documents.

The profession did not find a ready alternative or viable solution to the challenges associated with real estate closings, will signings, and the execution of other legal documents which require a notary’s attestation. The steps taken to prevent the spread of a deadly virus border on comical in hindsight. All were taken because of statutory requirements for the witnessing of signatures or because that is the way we’ve always done it. To the non-lawyers in the world, this seems absurd and probably needs to be reviewed and revisited.

Today you can buy cars, boats (even yachts), and houses (with cash) over the internet with your smartphone. We walk around with the keys to our identity and our assets in our pocket – on that same smartphone. But we feel that they are protected because of the security measures that have become readily accepted by the billions of people who use them. First, there were passwords, then fingerprints, now facial recognition.

Yet we are still going to require people to sign a piece of paper in the presence of others to create a legally enforceable document?

In 1999, the National Conference of Commissioners introduced the Uniform Electronic Transactions Act (UETA). Congress adopted the Electronic Signatures in Global and National Commerce Act (ESIGN) in 2000. This milestone recognized the significance of electronic transactions and updated many commerce-related regulations. Both recognize the legality and enforceability of digital documents and signatures. Alabama adopted its version of the UETA in 2001 (Ala. Code § 8-1A-1 et seq.) and the Uniform Real Property Electronic Recording Act (Ala. Code § 35-4-120 et seq.) in 2009. Both recognize the efficacy of electronic documents and signatures, even specifically those of notaries, but they do not excuse any requirement that a signature is acknowledged before a notary public. But is that really necessary?

In the last 20 years, the ability to secure and authenticate electronic signatures has proliferated. The electronic signature acts require more than a digital image of someone’s signature. They require that the electronic signature be authenticated in some very specific ways, ensuring the identity of the signer and creating a certificate of authenticity.

DocuSign and Adobe are just two of many software programs and applications which can be used to obtain verified electronic signatures. But this feature is also creeping into other software, such as law office management software (for example, Clio Grow), and general office software, such as Microsoft Office 365 (Word, Excel, and PowerPoint). But, again, any document requiring a signature acknowledged before a notary must still conform with that act.

Perhaps our experience during the pandemic will encourage some modifications of the uniform acts to loosen or remove the requirements of other statutes that a signature be acknowledged before a notary public.[1] After all, digital authentication is in many ways superior to a notary’s acknowledgment anyway. And, doing so will allow us to better meet the needs and expectations of our clients, saving precious time and inconvenience. Meanwhile, one thing is for certain. Not all documents on which we routinely slap a notary clause actually require a signature acknowledged before a notary. Check the applicable statute.

What do you think?

[1] The legislature passed Act 2021-319 this year, which allows individuals to appear before a notary public virtually. It still requires wet ink signatures.


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