The Renewal-in-Progress Seal
Kevin's Delaware notary commission expired on April 30. He submitted a renewal application on April 20, but the Secretary of State's office has not yet issued the new commission, and his check has not cleared. On May 6, a longtime client asks Kevin to notarize a commercial lease. Kevin still has his old seal, which shows "My Commission Expires April 30." He tells the client, "My renewal is in the pipeline, so it's basically fine." The client needs the lease notarized today for a bank. Kevin considers using the old seal and dating the certificate May 6, or dating it April 29 to match the seal. He has a journal and has kept all prior entries. He has not received any notice of denial, but he also has not taken any new oath or received a new commission certificate.
1. Is Kevin authorized to perform notarial acts on May 6? Explain.
Read the worked answer
No. A Delaware notary commission has a fixed expiration date. Filing a renewal application before expiration does not extend the prior commission, and Kevin has not received a new commission or completed any required new oath or filing. A pending application is not authority to act. Using the old seal after April 30 would be unauthorized practice, even if Kevin expects approval soon. The client's bank deadline does not change the legal requirement. Kevin should tell the client he cannot notarize until the new commission is issued and refer the client to another notary. He may check the status of his application with the Secretary of State's office, but he should not perform notarial acts in the meantime.
2. What is wrong with each of Kevin's proposed dating options?
Read the worked answer
Dating the certificate May 6 would falsely imply that Kevin held a valid commission on May 6, when his commission had expired. Dating it April 29 would be even more clearly false: the notarial act would actually occur on May 6, but the certificate would state an earlier date to match the old seal. Both options are false certificates and can constitute notarial misconduct. Backdating also creates a misleading record that could affect the lease's enforceability or the bank's acceptance. Kevin should not make either date. He should not make a journal entry for an act he did not lawfully perform. Once the new commission is issued, he should use the new commission information and seal and record the true date of the act.
3. What should Kevin do with the old seal while his renewal is pending?
Read the worked answer
Kevin should stop using the old seal immediately. He may keep it in a secure place for identification or historical purposes, but he should not apply it to any document or hold himself out as authorized to notarize. He should not lend the seal to anyone or allow another person to use it. Once the new commission is issued, he should follow the commissioning authority's instructions for the new seal, including the correct commission expiration date. If the renewal is denied, he should not perform notarial acts at all. Kevin should also review his journal to ensure it reflects only acts performed while his commission was valid and should not alter prior entries.