Title Matters – Vol. March 2013

As a service for LAILTA members and subscribers, you can expect an email each month with a short discussion on  matters of interest to the real estate attorney and title agent.  This is be a monthly service, except for the months in which seminars are scheduled.  LAILTA will email you recent cases of interest, notes on legislation and reminders of seldom thought of statutes and rules that affect our day to day work. 

This month’s contribution is presented by:
Brad Allen Thompson, Attorney
Bulldog Title Insurance Agency, LLC
1810 Roselawn Avenue
Monroe, Louisiana  71201
Email:  brad@bradallenthompson.com


Last year’s legislative session passed several revisions to the law pertaining to Louisiana notaries public. Among that legislation was House Bill 1192, which enacted R.S.35:191(W).  Among other things, this new law allows for the provisional appointment of notaries public in certain circumstances, even though the notary candidates had not passed the performance assessment component of the notary exam.

This bill was a compromise between proposals by the Louisiana Bankers Association, which had pushed for the elimination of the performance assessment component of the notary exam, and the opinion of the Office of the Louisiana Secretary of State, which stands by the legitimacy of the exam in its current form.

Because of our civil law tradition, Louisiana notaries public enjoy a much broader spectrum of authority and responsibility than notaries in most common law jurisdictions throughout the nation.  There is a great public interest in allowing Louisiana citizens to benefit from the skills and expertise of qualified notaries public, who often can provide a range of services analogous to those provided by licensed attorneys, but at a presumably lower cost.

However, there is also a great public interest in ensuring the quality and integrity of the work product produced by Louisiana notaries public.  This is true not just for the direct clients of a notary, but also for the public in general, which relies upon the documents generated by notaries and placed into the public record.  Given the importance of the work product generated by Louisiana notaries, it is necessary for any person performing such tasks not only to be fully qualified for the position, but also to be subject to the requirements of mandatory continuing education so that they can stay abreast of significant changes in the law that impact their area of practice.

House Bill 1192 is not a permanent fix for the problem of the (real or perceived) insufficiency of qualified notaries public in this state.  It contains a sunset provision stating that the authority of all provisional notaries public will expire on August 1, 2016, unless the notary has passed the entirely of the notary examination, which puts us back at square one unless the issue is more permanently addressed in the interim.  Also, the new law only applies to notary candidates who are working in the course and scope of their employment with a non-notary, raising issues of fairness for notary candidates who would otherwise qualify for provisional status, but who do not work for the particular industries this compromise bill was designed to benefit.

Additional legislation will certainly be necessary to address the persistent conflict between Louisiana tradition and the practicalities of doing business efficiently in this state.  The notary examination is notoriously difficult, and for good reason—the duties of a notary are tantamount to the practice of law.  Because of the inertia inherent in the civilian legal tradition, there is much resistance both to easing the requirements for becoming a full-fledged notary, and to the creation of a second-tier notary more analogous to those in other states, which would have authority solely to administer oaths and to witness and attest to the authenticity of certain executed instruments.

In the very near future, several questions will need to be given strong consideration.  Should anyone enjoy the authority of a traditional Louisiana notary public, despite his or her inability to pass the full notary examination?  Other than giving lip service to “tradition” alone, is there any substantial legal or commercial justification for Louisiana not joining the rest of the nation in having a tier of notaries public whose authority is limited to witnessing and attestation?  And if such a “second tier” of notaries public is accepted in this state, why shouldn’t that limited tier remain under the auspices of the Governor through the Secretary of State?  Would it then make more sense, legally and logically, for the oversight of traditional, full-fledged civilian notaries public to be transferred to the Louisiana Supreme Court, recognizing that Louisiana notaries are engaged in what is substantially the practice of law, and requiring specific mandatory continuing education for the areas of their practice?