RHODE ISLAND SENATE BILL 2560 AND HOUSE BILL 7502

The Rhode Island legislature recently enacted a Uniform Law on Notarial Acts (“Act”), effective January 1, 2019.

“Acknowledgment” means a declaration by an individual before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record.

"Commissioning agency" means the Rhode Island office of the secretary of state.

"Commissioning officer" means the governor of the state of Rhode Island.

"Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

"Electronic signature" means an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.

"In a representative capacity" means acting as:

• An authorized officer, agent, partner, trustee, or other representative for a person other than an individual;
• A public officer, personal representative, guardian, or other representative, in the capacity stated in a record;
• An agent or attorney-in-fact for a principal; or
• An authorized representative of another in any other capacity.

"Notarial act" means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the law of Rhode Island. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, noting a protest of a negotiable instrument and transact, do and finish all matters and things relating to protests and protesting bills of exchange and promissory notes, and all other matters within their office required by law, take depositions as prescribed by law, and acknowledgments of deeds and other instruments.

“Notarial officer” means a notary public or other individual authorized to perform a notarial act.

“Notary public” means an individual commissioner to perform a notarial act by the commissioning officer.

"Official stamp" means a physical image affixed to a tangible record or an electronic image attached to or logically associated with an electronic record.

"Person" means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

"Sign" means, with present intent to authenticate or adopt a record:

• To execute or adopt a tangible symbol; or
• To attach to or logically associate with the record an electronic symbol, sound, or process.

"Signature" means a tangible symbol or an electronic signature that evidences the signing of a record.

"Stamping device" means:

• A physical device capable of affixing an official stamp upon a tangible record; or
• An electronic device or process capable of attaching to or logically associating an official stamp with an electronic record.

"State" means a state of the United States of America, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

"Verification on oath or affirmation" means a declaration that a statement in a record is true, made by an individual under oath or by affirmation before a notarial officer.

A notarial officer may perform a notarial act authorized by the Act or by Rhode Island law other than this Act.

A notarial officer who takes an acknowledgment of a record must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the signature of the individual.

A notarial officer who takes a verification of a statement on oath or affirmation must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the notarial officer and making the verification has the identity claimed and that the signature on the statement verified is the signature of the individual.

A notarial officer who witnesses or attests to a signature must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the notarial officer and signing the record has the identity claimed.

If a notarial act relates to a statement made in or a signature executed upon a record, the individual making the statement or executing the signature must appear personally before the notarial officer.

A notarial officer has personal knowledge of the identity of an individual appearing before the notarial officer if the individual is personally known to the notarial officer through dealings sufficient to provide reasonable certainty regarding the legal identity of the individual.

A notarial officer has satisfactory evidence of the identity of an individual appearing before the notarial officer if the notarial officer can identify the individual:

• By means of:
  • A passport, driver's license, or government issued non-driver identification card, which is current or expired not more than three (3) years before performance of the notarial act; or
  • Another form of government identification issued to an individual, which is current or expired not more than three (3) years before performance of the notarial act, contains the signature or a photograph of the individual, and is satisfactory to the notarial officer; or
• A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the notarial officer of the identity of the individual.

A notarial officer may refuse to perform a notarial act if the notarial officer is not satisfied that:

• The individual executing the record is competent or has the capacity to execute the record; or
• The individual's signature is knowingly and voluntarily made.

A notarial officer may refuse to perform a notarial act unless refusal is prohibited by law other than this Act.

If an individual is physically unable to sign a record, the individual may direct an individual other than the notarial officer to sign the individual's name on the record. The notarial officer must insert "Signature affixed by (name of other individual) at the direction of (name of individual)" or words of similar meaning.

The signature and title of an individual performing a notarial act in Rhode Island are prima facie evidence that the signature is genuine and that the individual holds the designated title.

A notarial act performed in another state has the same effect under the law of Rhode Island as if performed by a notarial officer of Rhode Island, if the act performed in that state is performed by:

• A notary public of that state;
• A judge, clerk, or deputy clerk of a court of that state; or
• Any other individual authorized by the law of that state to perform the notarial act.

"Foreign state" means a government other than the United States of America or a state not including the state of Rhode Island.

If a notarial act is performed under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state, the act has the same effect under the law of Rhode Island as if performed by a notarial officer of Rhode Island.

If the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.   The signature and official stamp of an individual holding such office are prima facie evidence that the signature is genuine and the individual holds the designated title.

A consular authentication issued by an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

The official stamp of a notary public must:

• Include the notary public's name, the words "notary public," jurisdiction, and other information required by the rules of the commissioning agency; and
• Be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated;
• This provision does not preclude a notarial officer who is a member of the Rhode Island general assembly from notarizing a document without the use of a stamp on the floor of the general assembly during open session.

A notary public may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. A person may not require a notary public to perform a notarial act with respect to an electronic record with a technology that the notary public has not selected.

Before a notary public performs the notary public's initial notarial act with respect to an electronic record, a notary public must notify the commissioning agency that the notary public will be performing notarial acts with respect to electronic records and identify the technology the notary public intends to use. If the commissioning agency has established standards for approval of technology, such technology must conform to the standards. If the technology conforms to the standards, the commissioning agency must approve the use of the technology.

A qualified individual may apply to the commissioning officer for a commission as a notary public. The applicant must comply with the requirements and pay the sum of eighty dollars ($80.00).

An applicant for a commission as a notary public must:

• Be at least eighteen (18) years of age;
• Be a citizen or permanent legal resident of the United States;
• Be a resident of or have a place of employment or practice in Rhode Island;
• Be able to read and write English;
• Not be disqualified to receive a commission under § 42-30.1-16; and
• Demonstrate sufficient knowledge of the powers and duties pursuant to the requirements of the Act.

A member in good standing of the Rhode Island bar and certified public accountants may, regardless of residence, be appointed a notary public upon application and presentment of a certified copy of their certificate of admission to the bar or certificate of public accountancy.

Before issuance of a commission as a notary public, an applicant for the commission must execute an oath of office and submit it to the commissioning agency.

On compliance with these provisions, the commissioning officer must issue a commission as a notary public to an applicant for a term of four (4) years. Every notary public appointed by the commissioning officer and not reappointed, may continue to officiate for a space of thirty (30) days after the date on which their commission expires.

A commission to act as a notary public authorizes the notary public to perform notarial acts. The commission does not provide the notary public any immunity or benefit conferred by law of Rhode Island on public officials or employees.

The commissioning officer may deny, refuse to renew, revoke, suspend, or impose a condition on a commission as notary public for any act or omission that demonstrates the individual lacks the honesty, integrity, competence, or reliability to act as a notary public, including without limitation:

• Failure to comply with the Act;
• A fraudulent, dishonest, or deceitful misstatement or omission in the application for a commission as a notary public submitted to the commissioning officer and/or agency;
• A conviction of the applicant or notary public of any crime which involves fraud, dishonesty, or deceit; provided that in determining whether to deny, refuse to renew, revoke, suspend or condition the commission, the commissioning officer must consider such factors as the seriousness of the crime; whether the crime relates directly to the training and skills needed for the commission of a notary public; how much time has elapsed since the crime was committed; and the applicant's actions and conduct since the crime was committed;
• A finding against, or admission of liability by, the applicant or notary public in any legal proceeding or disciplinary action based on the applicant's or notary public's fraud, dishonesty, or deceit;
• Use of false or misleading advertising or representation by the notary public representing that the notary public has a duty, right, or privilege that the notary public does not have;
• Denial, refusal to renew, revocation, suspension, or conditioning of a notary public commission in another state; or
• Termination or revocation of a certificate of admission to the Rhode Island bar or a certificate of public accountancy.

If the commissioning officer denies, refuses to renew, revokes, suspends, or imposes conditions on a commission as a notary public, the applicant or notary public is entitled to timely notice and hearing.

The authority of the commissioning officer to deny, refuse to renew, suspend, revoke, or impose conditions on a commission as a notary public does not prevent a person from seeking and obtaining other criminal or civil remedies provided by law.

The commissioning agency must maintain an electronic database of notaries public:

• Through which a person may verify the authority of a notary public to perform notarial acts; and
• Which indicates whether a notary public has notified the commissioning agency that the notary public will be performing notarial acts on electronic records.

A commission as a notary public does not authorize an individual to:

• Assist persons in drafting legal records, give legal advice, or otherwise practice law;
• Act as an immigration consultant or an expert on immigration matters;
• Represent a person in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship, or related matters; or
• Receive compensation for performing any of the activities listed above.

A notary public may not engage in false or deceptive advertising.

A notary public, other than an attorney licensed to practice law in Rhode Island, may not use the term "notario" or "notario publico".

A notary public, other than an attorney licensed to practice law in Rhode Island, may not advertise or represent that the notary public may assist persons in drafting legal records, give legal advice, or otherwise practice law. If a notary public who is not an attorney licensed to practice law in Rhode Island in any manner advertises or represents that the notary public offers notarial services, whether orally or in a record, including broadcast media, print media, and the Internet, the notary public must include the following statement, or an alternate statement authorized or required by the commissioning agency, in the advertisement or representation, prominently and in each language used in the advertisement or representation: "I am not an attorney licensed to practice law in this state. I am not licensed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities." If the form of advertisement or representation is not broadcast media, print media, or the Internet and does not permit inclusion of the statement required by this subsection because of size, it must be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed.

Except as otherwise allowed by law, a notary public may not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the notary public.

Except as otherwise provided, the failure of a notarial officer to perform a duty or meet a requirement specified does not invalidate a notarial act performed by the notarial officer. The validity of a notarial act does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on the law of Rhode Island other than this Act or law of the United States of America. This Act does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.

A fee of five dollars ($5.00) will be charged and collected by the office of the secretary of state for the authentication or certification of the signature of a notary public. In any event where the office of the secretary of state authenticates or certifies the signatures of a notary public upon multiple relevant documents presented simultaneously, and all of which documents pertain to the same matter or transaction and are to be filed at one time, the aggregate fee charged for said authentications or certifications will be the lesser of the above-referenced fee charged per each authentication or certification, or one hundred fifty dollars ($150).

A notary public, who in the exercise of the powers, or in the performance of the duties of such office, practices any fraud or deceit, the punishment for which is not otherwise provided for by law, will be guilty of a misdemeanor and fined not more than one thousand dollars ($1,000), or imprisoned not more than one year, or both.

A commission as a notary public in effect on January 1, 2019 continues until its date of expiration. A notary public who applies to renew a commission as a notary public on or after January 1, 2019 is subject to and must comply with this Act. A notary public, in performing notarial acts after January 1, 2019, must comply with this Act.

This Act does not affect the validity or effect of a notarial act performed before January 1, 2019.