How Chief Justice Beasley’s Emergency Directive Following COVID-19 Impacts Authorization of Court Documents

Times have changed a lot since the outbreak of COVID-19 in the United States, and the courts ability to administer justice has been hindered by the pandemic. To alleviate the hardships that COVID has imposed upon both the people and the court, Chief Justice Beasley of the North Carolina Supreme Court issued an order specifying special emergency directives geared towards limiting contact between attorneys and their clients to ensure safety. Emergency Directive 5 states:

• When it is required that any pleading, motion, petition, supporting affidavit, or other document of any kind to be filed in the General Court of Justice be verified, or that an oath be taken, it shall be sufficient if the subscriber affirms the truth of the matter to be verified by an affirmation or representation in substantially the following language: “I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true. (Signed) _______” This emergency directive does not apply to wills to be probated, conveyances of real estate, or any document that is not to be filed in the General Court of Justice.

Because of COVID, Chief Justice Beasley recognized the difficulties some might face in getting document notarized during these times. Prior to this directive, documents that were filed with the court needed to be notarized to ensure authenticity and protect against fraud. Of significant importance to this blog post is the last sentence of that directive. As it states, wills to be probated, conveyances in real estate, or any other document that is filed with the Court do not get to enjoy the benefit and extra safety of skipping the notary.

It can be surprising that in a time of telehealth, Zoom schooling, and social distancing that our system of notarizing documents still requires people to come together to verify identity and physically sign documents in the presence of a notary.

Getting a document notarized can elicit both a feeling of accomplishment, by completing the final step of a necessary process, and an anachronistic one: the process is surprisingly similar to that employed by the Romans.  It can be surprising that in a time of telehealth, Zoom schooling, and social distancing that our system of notarizing documents still requires people to come together to verify identity and physically sign documents in the presence of a notary.  Some places, such as North Carolina, have responded to the Coronavirus pandemic by instituting suggested safeguards to the traditional way documents are notarized, by not sharing pens during the process of notarizing a document for example. 

I (Alex Rutgers), as an attorney with Legal Aid of North Carolina, recently traveled two hours to see a client and her family to get a document notarized, along with a paralegal from our office.  We all met in the client’s yard, stayed socially distanced, wore masks, didn’t share pens, etc., the whole gambit.  As far as I know, no one was sick before or after the signing- but it got me wondering whether there might be a better way, while still authenticating documents properly.

It turns out that North Carolina has started to move in this direction, instituting eNotary services, and the time could not be better to encourage more people to take advantage of these technological developments to the traditional notary system. The eNotary system offers more safety than the traditional process. In addition to limiting physical contact, eNotary still has the authenticity of the traditional approach because the process still requires the signer and the notary to be in the same location. In trying times like these, the willingness and ability for the court to respond to the unanticipated need for safety has been great. The use of eNotary processes – which will limit contact between individuals – should allow the courts to continue to authorize documents through the notary process.

Alex Rutgers, Staff Attorney of Legal Aid of NC

Tage Rustgi, JD Candidate, 2022, UNC School of Law