in our last thread on the subject... Isn't it one of the notary's basic duties to prevent fraud? How can a notary perform this duty if he/she notarizes a statement that he/she knows to be fraudulent?
Good practices have to pick up where the laws leave a "gray area"... and there is no question, in my mind, that a Credible Witness should not even be OFFERED to a client that has an ID but doesn't have it with them at the moment (or the ID contains errors, etc.). If the person tells me "Yes, I have an ID but I don't have it with me, so I would like to use a Credible Witness", then I would KNOW that the statements the CWs are swearing to are FALSE, and it is my duty to prevent this fraud.
This is, again, related to how the California SOS makes assertions that have no legal basis - especially the SOS's claim that the notary's function relates only to the signature. This is simply incorrect and there is no California law which backs this claim up. Yes, in most circumstances the contents of a sworn statement are not the notary's concern, but if the notary KNOWS that the sworn statement is false, the notary is a perpetrator of the crime as well by notarizing that statement.
Picture yourself in front of a judge over this - I doubt that the judge will be impressed by your "I can't refuse a lawful request!" assertion. He will probably be much more concerned that you notarized a statement you knew to be false. Using the "UPL" excuse is another cop-out. People are way too paranoid about UPL. The instances in which a state bar association will actually prosecute UPL are for extreme circumstances, not "I determined that the person before me was the person named in the document".
The California SOS has tried to way oversimplify a notary's duties. I understand your dilemma, Marian - you feel like you must follow the handbook because that is what you are given. I would argue that, unless your oath of office required you to read the handbook (and our oath in Florida does not), you are bound by the LAWS themselves, and not the handbook. The handbook is a GUIDE - it is not intended to be a supplement to professional legal advice. The SOS herself does not write your handbook - the handbook is written by people who likely have no legal education. Their handbook is only one person's interpretation of the actual laws.
When a law is confusing to the notary, the notary must make his/her own interpretation of the law and put it into practice, unless a legal opinion to the contrary is made by an attorney, a court, or the attorney general.
Thank God that I am not in California. |
