Remote Online Notarization Helps Notaries Address Coercion

One of the enumerated duties of a notary public is to help ensure that document signers act of their own free will, without evidence of duress or undue influence. Among its many benefits, Remote Online Notarization (RON) can help notaries fulfill this duty more easily and effectively than in-person notarizations, with an auditable record including a recording of the signing session. 

Duress or undue influence can render documents unenforceable

Being coerced or manipulated into signing a document goes against a core principle of contract law—that a signer must possess free will, and sign of their own volition. Therefore agreements and other documents that are proven to have been signed under duress or undue influence are generally void or voidable under state law. Duress is any wrongful pressure applied to a person in order to coerce that person into performing an act. Undue influence differs from duress in that it requires the existence of a special relationship between the signer, who is typically vulnerable, and the influencer who is generally in a position of power or authority.

It can be difficult for a notary to detect duress or undue influence during their limited interaction with the signer. For example, family or financial pressure exerted over time may not be evident during the notarial act itself, and signers may simply be nervous or excited to sign an important life document, settle a debt, or enter a contract even in the absence of duress. Notaries public do not review legal documents or diagnose medical or psychological conditions, nor do they receive special training to detect coercion, duress, or undue influence. Nevertheless, a notary is expected to exercise their best judgment, and reasonably attempt to detect and prevent coercion from interfering with the free will of a signer.

Notaries have authority to act if they detect coercion 

When a notary public performs an in-person notarization, they may evaluate the signer's speech, behavior, and conduct to determine whether duress or undue influence exists. The notary may also review the document with the signer and ask them to verbally confirm that they understand the content and are acting willingly, without coercion or duress. The notary may also assess the presence of any other person present during the notarial act, and their influence on the signer. 

Typically, if a notary public has reasonable grounds to believe that the signer is being coerced or appears incapable of understanding the nature of the document, the law in most states requires or permits them to refuse to conduct the notarial act or, in extreme cases, report the matter to local law enforcement. Since in-person notarial sessions are generally not recorded, a notary public’s subjective determination is not documented or recorded, thereby leaving the parties or the notary without any evidentiary documentation for future reference.

Today, states that have adopted the Revised Uniform Law on Notarial Acts (RULONA) give notaries public the specific right to refuse to perform a remote notarial act if the notary is not satisfied that the signer is signing of their own accord. Notably, some states, such as Tennessee, also require signers to demonstrate “to the satisfaction of the online notary public” that they are not under duress or otherwise being coerced—in order to preserve the integrity, security, and authenticity of online notarizations. Additionally, at least one state requires that the notary view “the entire physical location of the notarial act” as well as all persons physically present with the signer, and compel all such persons to identify themselves and their role, if any, in the transaction.

RON creates a more complete and auditable record of the notarial session

When a notary public performs a remote online notarization using audio/video communication technology, the notary must still assess whether the signer is freely signing the document, and whether duress or undue influence exist. When a remote online notarization is performed in accordance with state laws and regulations using a RON platform such as DocuSign Notary, the notary is able to interact remotely with signer(s) using continuous audio/video communication. 

While RON enables notaries to accomplish the same duties they have in-person, platforms such as Notary also generate additional evidence of the signing ceremony and the notary’s activities, which are not available for in-person notarial acts. In particular, a notary performing a RON is able to document and record the entire process including the signer’s demeanor throughout the notarial act, and specific interactions the notary had with the signer. Unlike with traditional notarization, these additional records may be independently evaluated long after the notary’s recollection may have otherwise faded, even years after completion of the original notarial act.

Using a RON platform can help prevent duress or undue influence

When notaries public use DocuSign Notary to conduct RONs, they can take full advantage of available technology to assess the signer and any witnesses or participants throughout the notarial session. Additionally, a full recording of the transaction provides valuable independent evidence of any subtle cues to duress or undue influence, and provides much more information regarding the notarial act than a traditional in-person notary's journal entry.