Liability & Record Keeping
Notary and Employer Liability
Although as a notary you are bonded, you may be held personally liable for any misconduct or
negligence in the performance of your official duties. This means that you could be sued if an
improper notarization causes loss to another individual or company. However, if you perform your
duties correctly and carefully, always exercising reasonable care, you probably don’t have to worry
about being sued.
“Reasonable care” is that degree of care which a person of ordinary prudence and intelligence would
exercise in the same or similar circumstances. Failure to exercise such care is negligence.
Florida law provides that the notary’s employer may also be held liable if the notarization in question
was done within the scope of the notary’s employment. See §117.05(6), Florida Statutes. A government
agency may or may not be held liable for the misconduct of their employee-notaries depending on the
circumstances and the laws governing such issues. Please read page 24 for additional information on
government employees as notaries.
The best protection for you and your employer against a lawsuit or a claim filed against your notary bond is simple:
- Know the laws governing your duties.
- Use reasonable care in notarizing.
- Don’t make any exceptions.
- Keep accurate records.
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Keeping Records of Your Notarial Acts: The Notary Journal
Notaries are not authorized to keep copies of the
documents they notarize. The best way to protect yourself is to
document your notarial acts in a journal (record book or log).
Florida law does not require the use of a notary journal; however, you may be interested to know that
the Governor’s Task Force on Notaries Public in 1989 recommended the mandatory use of journals.
Although the Legislature did not follow that recommendation, many notaries in Florida are beginning to
voluntarily use a journal. You may want to consider this option as well. Each time you perform a
notarial act you should record the event your journal.
Numerous notary journals are available on the market today, and they all have similar features. We
recommend that your journal be bound (not loose-leaf) and have consecutively numbered pages, so that
a page could not be removed without being detected. Important information should be recorded in the
- the date of the notarial act;
- the type of notarial act: oath, acknowledgment, attested photocopy, marriage;
- the name or brief description of the document;
- the party’s printed name, exactly as he or she signed the document;
- the party’s address;
- the party’s signature;
- the type of identification relied upon in identifying the party, including the serial number, expiration date, date of birth, etc.;
- the fee charged for the notary service; and
- any additional comments you consider important; for example, the person is blind and you read the document to him.
When using a journal to record your notarizations, it is a good idea to complete the journal entry
prior to the notarization to ensure that the party does not leave before the necessary information is recorded.
Other important considerations:
- Journals can be used to refresh your memory about an event that occurred years earlier, and if kept consistently, may be relied upon for court testimony.
- Journals may also prove your compliance with the law.
- To be reliable, make sure that you record every notarial act and any special circumstances of the notarization.
- Do not share a journal with another notary.
- Guard your journal. Keep completed journals for at least 5 years.
Notary journals are usually available from your bonding agency, an office supply store, or one of the
two national organizations that provide educational assistance to notaries. Even though journals are not
required, any notary who is concerned with liability may want to consider this protective measure to
provide a permanent record of his or her notarial acts.
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Order in the Court
A recent court decision should be of special interest to Florida notaries and their employers. In
Ameriseal of North East Florida, Inc. v. Leiffer (673 So. 2d 68 [Fla. 5th D.C.A. 1996]), the Court ruled
that a notary public and the law firm that employs her may be held liable for damages resulting from an improper notarization.
A notary employed by a law firm agreed to notarize signatures on several documents as
a favor to a co-worker’s husband. Neither of the document signers was present. Unknown to the notary, the husband was
engaged in a fraudulent bond transaction involving the documents, and the individuals whose signatures were notarized did not actually have
authority to sign the documents. A highway subcontractor lost a contract with the state
Department of Transportation as a result of the fraudulent transaction.
The company sued the husband, the law firm, and the notary and won a default judgment for more
than $350,000 against the husband. However, the trial court granted summary judgment in favor of the
law firm and the notary, concluding that the improper notarization was not the proximate cause of the
contractor’s losses. The District Court of Appeal reversed, saying the contractor relied on documents
without knowing that the notary (Ellis) had failed to verify the signers’ identities.
The Court stated, “Ellis’ obligation as a notary is quite simple: she must either know or have properly
identified the affiants that appear before her and she must administer the proper oath. If business cannot
depend on notaries doing this simple task, then there is no place for notaries in the world of commerce.”
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Because notaries are appointed by the Governor, it is the responsibility of the Governor’s Office to
investigate allegations of misconduct by notaries. The Notary Section investigates hundreds of
complaints each year and takes disciplinary action against those notaries found to have been negligent
in their duties. Most complaints involve business deals gone awry, persons involved in legal disputes,
or friends who asked the notary for a special favor.
The majority of the complaints, about 75 percent, are violations of the presence requirement, and most
of those also involve allegations of forgery or fraud. Although the notaries are not usually involved in
the forgery or fraud, they facilitate the commission of these crimes by not requiring the document signer
to be present. Other common complaints are related to incomplete notarial certificates.
Once a complaint is received, a copy is forwarded to the notary requesting a sworn written response
to the allegations. The notary’s response is then sent to the complainant, giving him or her an opportunity
to reply. The Notary Section may find it necessary to request additional information from either
party or from other sources. Once all information is gathered, the complaint file is reviewed in its
entirety by the Governor’s legal staff.
If the allegations against the notary are unfounded, the complaint is dismissed. If the allegations
prove to be true, the Governor’s Notary Section recommends disciplinary action. The most common
actions include a letter of advice in which the notary is advised of his or her improper action and the
method for correcting the error; a written reprimand in which the notary is informed of the findings and
issued a warning that any further violation or negligence of duties will result in stronger disciplinary
action; and a request for the notary’s resignation. When the notary resigns, the complaint is closed
without any further action. However, in most cases, the notary will not be appointed again. If the
complaint allegation involves a criminal violation, the complaint is referred to the appropriate State
Attorney’s Office for investigation.
A rarer, but stronger, form of disciplinary action is suspension from office by the Governor. Suspensions
are typically done when a notary is convicted of a felony while commissioned, when the notary
refuses to resign when requested by the Governor’s Office, or when the notary cannot be contacted for a
response. The process to accomplish a suspension requires the Governor to issue an executive order,
filed with the Secretary of State, and the notary to appear before The Florida Senate for a hearing or trial.
The Senate makes the final determination as to whether the notary should be permanently removed
If you ever have a complaint filed against you, it is best for you to provide a timely and honest
response to any request from the Governor’s Office. Of course, the best way to avoid a complaint is to
know and comply with the notary laws.
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