Valparaiso University Law Review Volume 36 Number 3 Summer 2002 pp.505-627 Summer 2002 Family Ties That Bind, and Disqualify: Toward Elimination of Family-Based Conflicts of Interest in the Provision of Notarial Services Michael L. Closen Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Michael L. Closen, Family Ties That Bind, and Disqualify: Toward Elimination of Family-Based Conflicts of Interest in the Provision of Notarial Services, 36 Val. U. L. Rev. 505 (2002). Available at: https://scholar.valpo.edu/vulr/vol36/iss3/1 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Closen: Family Ties That Bind, and Disqualify: Toward Elimination of Fam VALPARAISO UNIVERSITY LAW REVIEW VOLUME 36 SUMMER 2002 NUMBER 3 Article FAMILY TIES THAT BIND, AND DISQUALIFY: TOWARD ELIMINATION OF FAMILY-BASED CONFLICTS OF INTEREST IN THE PROVISION OF NOTARIAL SERVICES Michael L. Closen* and Trevor J. Orsinger** I. INTRODUCTION "In dubiis non est agendum."' Over 4.2 million United States notaries public perform tens of thousands of notarizations every day.2 Day after day, notaries *Michael L. Closen, Notary Public, State of Illinois. Professor of Law, John Marshall Law School. B.S., M.A., Bradley University; J.D., University of Illinois. ** Trevor J. Orsinger, Notary Public, State of Illinois. J.D. Candidate, John Marshall Law School. B. PhiL, Catholic University. I Latin maxim that means "in dubious cases, you should not act" Latin Maxims, at http://www/user.tninet.se/-dfr732s/show-off.html (last updated Jan. 20,1999). 2 See CLOSEN ET AL, infra note 17, at 2 ("Hundreds of millions of documents are notarized in this country each year...."); Marc A. Birenbaum, The 1997 NNA Notary Census, NAT'L NOTARY, May 1997, at 30 (indicating that there were 4,290,634 United States notaries in 1997); Michael L. Closen & Trevor J. Orsinger, Potential Identity Crisis, CI. DAILY L. BULL, Sept. 19, 2000, at 6 [hereinafter Closen & Orsinger I]. "Statutes require that many types of documents be notarized. Millions of business transactions are handled daily that involve processing, signing and filing of loan applications, business licenses, credit applications, applications for college admissions and visas, service contracts, and real estate transactions." NEBRASKA NOTARY REFERENCE GUIDE (n.d.), at Z see also Linda S. Adams, Out and About with Mobile Notaries, AM. NOTARY, 4th Qtr. 2000, at 18 (pointing out that "of the twenty or so documents. .. required for a mortgage dosing... five or six... require notarization"); Michael L. Closen, Why Notaries Get Little Respect, NAT'L U., Oct. 9,1995, at A23 (referring to the "preposterous overabundance" of United States notaries) [hereinafter Closen I]. Indeed, in this country, more and more documents seem to get added to the list of those to be notarized. See, e.g., NFL: Notarize If You Want To Be A Star, NOTARY BULL, April 2001, at 8 (reporting that the National Football League now requires "notarized 505 Produced by The Berkeley Electronic Press, 2002 Valparaiso University Law Review, Vol. 36, No. 3 [2002], Art. 1 506 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 36 authenticate signatures on a cornucopia of documents ranging from titles for automobiles to multi-million dollar loan instruments.3 It is the central function of the notary public to serve as an impartial witness to authenticate and date the signatures of parties to these transactions and, in many cases, to administer oral oaths or affirmations to the documents' signers.4 As attorney Peter Van Alstyne, one of this country's leading authorities on notarial law, ethics, and practice, has remarked: "Impartiality on the part of a notary is universally expected."5 He is requests from college juniors to enter [the] player draft," thereby foregoing their college playing eligibility). 3 John C. Anderson & Michael L Closen, Document Authentication in Electronic Commerce: The Misleading Notary Public Analog for the Digital Signature Certification Authority, 17 J. MARSHALL J. COMPUTER & INFo. L. 833, 847 (1997) (commenting about "the enormous volume of commercial and governmental instruments required to be notarized") [hereinafter Anderson & Closen f]. A notary is "a public official whose chief function in common-law countries is to authenticate contracts, deeds, and other documents .... " 7 ENCYCLOPAEDIA BRrrANNICA 416 (15th ed. 1979). "Many significant commercial documents must be notarized before the transaction can be completed, and many legal documents must be notarized before filing." CLOSEN Er AL., infra note 17, at ix (quoting Nevada Attorney General Frankie Sue Del Papa). "Documents which are notarized often deal with great sums of money and invaluable personal rights." Id. Califoria notary Linda Kodis commented that "my typical [real estate] loan package contains 60 documents, of which I notarize signatures on two to six." David S. Trin, Springing Forwardwith the Real Estate Market, NAT'L NOTARY, May 2001, at 14. Every day millions of documents are prepared, signed and submitted for processing and filing for countless transactions: real estate deeds, automobile titles, loan applications, buy/sell agreements, applications for visas or college admission, credit applications, business licenses, service contracts and thousands more. Billions of dollars are at stake in these transactions." WYOMING NoTARIEs PUBUC HANDBOOK 1 (June 1999); see also supranote 2, and infra note 8. 4 Dating a certificate of notarization is a vital feature of the notarial process. Many notary statutes require the affixation of the present date at the time each certificate of notarization is filled out. See, e.g., N. D. CENT. CODE § 44-6-13.1(5) (1999 Supp.) (providing that "[a] notary public may not notarize a signature on a document if . The date of the jurat or certificate of acknowledgment is not the actual date the document is to be notarized"). See generally Lisa K. Fisher, Dates and Documents, AM. NOTARY, 2d Qtr. 2000, at 1 (discussing the various dates on documents and certificates of notarization). The oath or affirmation administration function of the notary is also of importance for a number of reasons. See generally Michael L Closen, The Lost Art of Administering Notarial Oaths, AM. NOTARY, 2d Qtr. 2001, at 6 [hereinafter Closen II]; Administering Oaths, Affirmations and Jurats, NAT'L NOTARY, March 1999, at 22. 5 VAN A srrjE infra note 17, at 4. "Notaries should not notarize for any of their known family members of any and all degrees to avoid even the possible appearance of impropriety.... [A] court or arbitrator could find a notarization of a relative's signature invalid for violating the standard of impartiality and due care demanded of Notaries.' Michael L Closen & Trevor J. Orsinger, Is Blood Thicker Than ... Professional Responsibility?, NAT'L NOTARY, July 2001, at 26-27 [hereinafter Closen & Orsinger III; see also infra notes 196-206. https://scholar.valpo.edu/vulr/vol36/iss3/1 Closen: Family Ties That Bind, and Disqualify: Toward Elimination of Fam 2002] FAMILY TIES THAT BIND 507 absolutely correct. But, the more important concern to be addressed in this Article is how closely that expectation has been achieved. The notary's role in United States governmental and commercial transactions can genuinely be described as paramount and essential.6 The historic "affixation of a [notary] seal [has] impartfed] an appropriate sense of officiality." 7 The sheer volume of documents requiring notarizations of signatures is monumental. Consider, as just a few examples from place to place: candidates' petitions in public elections, real estate deeds for filing in recorders' offices, affidavits in arbitrations and litigations, wills and powers of attorney in estate planning, disclosure statements in firearm owner identification procedures, and applications to sit for bar examinations or for admission to the bar itself.8 6RICHARD B. HUMPHREY, THE AMEWCAN NOTARY MANUAL 7 (4th ed. 1948) (characterizing the work of notaries as "indispensable for ...business"); Michael L Closen, The Public Official Role of the Notary, 31 J. MARSMHALL L REv. 651, 701 (1998) (concluding "that notaries in their role as public officials are absolutely vital to both commerce and government") [hereinafter Closen III]. 7 Do Use a Notary Seal on Each Document, NOTARY BULL, Aug. 1995, at 11. "Historically, the notary has symbolized genuiness and truth." CLOSEN ET AL, infra note 17, at 1. "For more than 2000 years, the Notary seal has symbolized genuineness." Douglas M. Fischer, The Seal: Symbol of Security, NAT'L NOTARY, Nov. 1995, at 10. "[Every notarization we perform is an act of law, prescribed by law." The Unauthorized Practiceof Law Isn't the Boogie Man!, THE NOTARY, May/June 2000, at 3. Similarly, the performance of oral notarial oaths and affirmations with appropriate ceremony (standing and raising of the right hands, with the oath-taker's left hand upon a Bible - unless the oath-taker objects on religious grounds) instills respect for the notarial procedure and the significance of the instruments on which notarizations are performed. See generallyClosen II,supra note 4, at 6. S See Carole Clarke & Peter Kovach, Disqualifing Interests for Notaries Public, 32 J. MARsHALL L REv. 965, 973 (1999) (pointing out that "[a] significant number of jurisdictions require the notarization of election related documents such as absentee ballots, nomination petitions, recall petitions and referendum petitions"); Bruce Lambert, What Happens If Process Server Doesn't Serve?, N.Y. TIMEs, April 4,1999, Sect 14LI, at I (noting the need for notarizations of signatures on affidavits of service of process in litigation matters). "Several states, including Pennsylvania, require the seller of a vehicle to have his or her signature acknowledged on the vehicle title ..