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Will E&O Policies Protect Attorneys for Claims Arising Out of Remote Notarization During the COVID-19 State of Emergency?

Posted on: April 2nd, 2020

By: Kathleen Cusack

As stay-at-home orders increase in number, duration, and severity across the country, many businesses have moved to remote functions to avoid business interruption and limit in-person contact.  Most states, though, require that notaries public acknowledge the signing of a document in person.  Attorneys in many practice areas are routinely called upon to acknowledge documents. Even though attorneys providing services such as real estate closings or estate planning have been deemed in some states to be “essential” and are permitted to continue operations, they and their clients are understandably looking for alternatives to face-to-face meetings. One such alternative being considered is remote notarization, which utilizes audio-visual technology to see and communicate with a signor rather than being physically present with the signor. Currently, 23 states allow for remote notarization.  Four other states have authorized plans for remote notarization in the future and ten states are considering legislation to allow for remote notarization.  In addition, federal legislation regarding remote notarization was introduced on March 18, 2020, by Sen. Kevin Cramer (R, ND) in bill S.3533.    

In response to COVID-19, several states that do not permit remote notarization are considering implementing temporary emergency measures to allow for it.  Attorneys who plan to notarize documents remotely should take note of the language in their relevant insurance policies, including their errors and omissions (“E&O”) policy, to determine whether claims arising out of a document that was acknowledged remotely will be covered.  Many E&O policies exclude from coverage claims that arise out of documents that were acknowledged when the signor was not present “in person”.  Whether the term “in-person” will be interpreted to include signors that were present by audio-visual technology may depend on the insurance provider.  Thus, for attorneys acknowledging documents remotely – even on a temporary basis – it is important to know whether their policy contains such exclusion and, if so, seek guidance on how the exclusion is being or has been interpreted.            

You can review guidance for which states allow for remote notarization here. As stated herein, some of the states that do not currently allow for it are considering temporary emergency measures in direct response to COVID-19.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on the construction industry, employment issues arising from the virus, the real-world impact of business restrictions, and education claims. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

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