The Apostille Request for an Alabama Notary
A Mississippi law firm asks notary public Karen to help a client obtain an apostille for a document that will be used in Spain. The document is an affidavit signed by the client. It was notarized last week by Karen's colleague, a notary commissioned in Alabama, at a meeting in Biloxi, Mississippi. The Alabama notary used an Alabama seal and wrote State of Alabama, County of Harrison on the certificate. The client now brings the document to Karen and asks her to fix it by adding her Mississippi seal and a new certificate so the Secretary of State will apostille it. Karen is also asked to backdate the certificate to last week so the timing matches the affidavit. Karen knows the client is anxious because a Spanish bank is waiting.
1. Can Karen add her Mississippi seal and a new certificate to the already notarized affidavit? Explain.
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No. Karen did not witness the client's signature or receive the client's acknowledgment, so she cannot truthfully certify that the client appeared before her. Adding a new certificate would create a false notarial record, and backdating it would be a separate misrepresentation. The fact that the client is anxious or that a foreign bank is waiting does not justify a false certificate. Karen should decline and explain that the document must be handled through the proper chain. If the client needs a Mississippi notarial certificate, the client must appear before Karen, or another Mississippi notary, and acknowledge the signature at that time.
2. What is the correct path to an apostille for this affidavit if it is to be used in Spain?
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Spain is a member of the Hague Apostille Convention, so the document needs an apostille, not a consular legalization chain. The notarial act must be valid in the state whose official will authenticate it. Because the affidavit was notarized by an Alabama notary, the normal path would be authentication by the Alabama Secretary of State, but the notary purported to act in Mississippi, which raises a serious authority problem. The safer course is to have the client re-execute or acknowledge the affidavit before a Mississippi notary, then submit the properly notarized document to the Mississippi Secretary of State for an apostille. The firm should confirm the recorder's and foreign recipient's requirements.
3. What ethical issues does the request raise for Karen?
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The request asks Karen to certify an appearance that did not occur, to use her seal to fix another notary's defective act, and to backdate a certificate. Each is a misrepresentation. A notary must not notarize without personal appearance, must not make false certificates, and must not use the seal to validate a transaction she did not properly handle. Karen should explain the limits of her role, avoid giving legal advice about the Spanish transaction, and refer the client to a properly commissioned notary or to counsel. She should document her refusal and not accept pressure from the law firm.