Remote Notarial Acts Executive Orders (NY 2020)

This explanation used to be hosted on my Remote Swearing page. It is now hosted here on this page.

On or about March 19, 2020, the governor issued an Executive Order 202.7 allowing all notarial acts to be done over audio-video technology until April 18, 2020.  In 2020, when the New York State Court Reporters Association sought guidance from the Department of State on oaths, the Department of State sent back the Executive Order. From this, I conclude that oaths falls under “all notarial acts.” If a notary is administering an oath under the Executive Order, they should probably follow all the guidelines under 202.7.

Order 202.7 was extended by Executive Order 202.14 until May 7, 2020.

Order 202.14 was extended by Executive Order 202.28 until June 6, 2020.

Order 202.28 was extended by Executive Order 202.38 until July 6, 2020.

Order 202.38 was extended by Executive Order 202.48 until August 5, 2020.

Order 202.48 was extended by Executive Orders 202.55 and 202.55.1 until September 4, 2020.

Order 202.55 and 202.55.1 were extended by Executive Order 202.60 until October 4, 2020.

Order 202.60 was extended by Executive Order 202.67 until November 3, 2020.

Order 202.67 was extended by Executive Order 202.72 until December 3, 2020.

Order 202.72 was extended by Executive Order 202.79 until January 1, 2021.

Order 202.79 was extended by Executive Order 202.87 until January 29, 2021.

Order 202.87 was extended by Executive Order 202.92 until February 26, 2021.

Order 202.92 was extended by Executive Order 202.96 until March 28, 2021.

Order 202.96 was extended by Executive Order 202.100 until April 30, 2021.

Order 202.100 was extended by Executive Order 202.105 until May 27, 2021.

Order 202.105 was extended by Executive Order 202.106 until June 5, 2021.

Remote Swearing NY Archive (Old Article)

In an effort to help WordPress accurately reflect the reading time of my article, Remote Swearing of Witnesses, I am going to bounce the old article to this page, and keep the new one where it is. This was originally published November 15, 2017. The new one is published March 9, 2020.

Old Article:

You Can Swear Witnesses Remotely

But Only If You Follow The Rules.

It’s tough being a court reporter and notary public. We’re expected to know the law, and expected not to violate the law, and we are in a position where if and when we do violate the law, we may or may not be held accountable for that. Well, many moons ago a grand discussion was held as to whether we New York notaries are allowed to swear witnesses remotely. I can tell you pretty squarely that the Notary Law of New York State says no. That’s what it says. A big, fat, resounding no. It says that because in 1915 the Appellate Division ruled that the taking of acknowledgments over the phone was unlawful. Matter of fact, some stenographers called the Department of State, which issues our notary public licenses, and the Department of State said no.

But, of course, being the most annoying person on the face of the Earth, I wrote Department of State an e-mail. Why would I do that? Succinctly, under CPLR 3113(d) we are allowed to swear witnesses via telephone. You see the problem here, right? So relatively soon I got an e-mail back from Department of State, and I’m going to link it right here in this really long string of words so that nobody can say I didn’t link it. My initial e-mail was something like: There’s the Notary Law which says no. The CPLR says yes. What is it? Sum and substance, CPLR 3113(d) allows it but you must follow the rules exactly as they are in CPLR 3113(d), which I won’t interpret for you because I’m lazy and not a lawyer. Just kidding. The parties need to stipulate to the way it’s being done. There’s a popular line, “attorneys can’t stipulate away the law.” Thanks to CPLR 3113(d), they can! The main idea is the 1915 case of taking acknowledgments over the phone occurred about 90 years before CPLR 3113(d) came into effect, effectively altering the law for taking oaths.

As a closing note, don’t be too confused by the second half of the e-mail. In the Notary License Law packet it states depositions may not be taken on Sunday. It states this in the glossary towards the end. I’m not kidding. Well, I asked if that was still good law, and as you can see, I was given a stellar answer by the Department of State which said that that determination came out of a 1964 interpretation of law by the Attorney General of the State of New York. All we can do now is petition the Attorney General of the State of New York to change this terrible interpretation of law. Gasp.

Any interesting facts about the law or licensing you want to share? Write in the comments below or ask to write for Stenonymous directly! It’s the best unpaid hobby/volunteer writing assignment you will ever do.

June 9, 2019 update:

This issue came up again. Understandably, some people are skeptical about my claims and conclusions, so I wrote the Department of State the following letter. If I receive a response, it’ll be posted. Let me just say that my take on this is as follows: The reason this is important is because we are promulgating a fear that does not need to be by telling people they cannot swear remotely. It’s not about being smart, or pedantic, or whatever. The law was the same for 90 years, and but for this CPLR provision, would still be. Also, for clarification, the notary license law referred to here is the notary license law packet produced by the Department of State. There is not, as far as I know, actual notary law, but there is notary law from other laws, such as the Real Property Law and CPLR. See my Law for Stenographers post if you want more of that. There’s actually really cool stuff in there. As a matter of fact, there’s stuff like errors in the oath are waived unless a timely objection is made pursuant to CPLR 3115. How cool is that?

My contact form submission to DOS:

“Hello. My name is Christopher Day. I had written the Department of State a few years ago for clarification. The Notary Law packet says a notary may not swear a witness remotely, but CPLR 3113(d) has a special provision for swearing witnesses remotely. In my correspondence with DOS, it was stated that a notary could swear in a witness remotely under CPLR 3113(d). I am writing today because many of my contemporaries rely on the notary license law packet, last revised June 2016, I believe, as a guide for their notarial duties. I am just making a suggestion that the next time that the packet is revised, it be specifically stated that if a witness is sworn remotely, it must be pursuant CPLR 3113(d).

I am sorry for this wordy request. Thank you very much for considering what I have to say and all the hard work you do for New York State.”

June 12, 2019 update:

For the sake of completeness, I did receive a response from the licensing services division on my request. It was not very satisfying, and only said that they would take my comment about the notary lawbook, revised June 2016, into consideration.

January 16, 2020 update:

A reader wrote in and mentioned that CPLR 3116(d) may not apply to New York proceedings that do not occur under the CPLR. That’s true! Definitely cover your bases and make sure you have some kind of justification. While I support notaries doing whatever they’re legally entitled to do, I also don’t want anyone facing disciplinary charges for an odd scenario.

RE: Remote Judicial Reporting, WUNCRA

WUNCRA recently put out an article labeled NCRA/NCRF For Sale. I don’t reblog many of Frank’s articles for a few reasons, but I do feel that there are some things that need to be said. First of all, WUNCRA has apparently enabled comments. In months past, the option to comment was available but blocked. I, for one, will applaud WUNCRA for enabling comments, and urge that forum to continue to embrace transparency and honest discussions on the issues presented. May this be a sign of a paradigm shift towards discourse and solutions.

Now that we’ve got that out of the way, Frank touches on two very important issues, but I feel doesn’t explain it as well as it can be explained, so I will take a shot at it. The issue centers around the JCR’s May 2019 edition which, in addition to Dave Wenhold’s fantastic article about change, features an article from NCRF and its chair, Tami Keenan. The article touches briefly on NCRF’s work to educate lawyers on how to make a better record, and then dives into the meat of the article and this post, RJR.

What is RJR? It’s remote judicial reporting. It’s the idea of having a stenographer attend proceedings remotely. I happened to have had the privilege of talking with Esquire’s General Counsel about their efforts to bring remote reporting to the freelance field in March, and I was overall impressed with its potential applications and the amount of work they’ve done in figuring out where it’s legal.

So on its face this sounds like a great opportunity. Decrease the amount of time reporters have to commute and increase the amount of work they can take. It’s simple math. Here is the flip side of the coin and why Frank is cautioning people about this: If you open up these remote proceedings and make them more commonplace, we will become more distant and faceless, and therefore easier to replace in the market. Today, a lot of markets demand a stenographer. That may not be so if we get a good ten years of reporting over the phone and no face time with what are essentially our customers. Remote reporting is a great idea, but it needs to promote stenography.

The second issue that Frank puts out is this idea of the national notary. The national notary idea would effectively create a national notary that could swear in people over state lines or swear people remotely, something forbidden in some states and allowed in others. This too is an idea that could be both beneficial and harmful to stenographic reporters. On the one hand, allowing people to travel seamlessly and without restriction to cover work would be a boon to many. On the other hand, there is a very real concern that stenographers in locations with a lower cost of living could undercut stenographers in markets with high cost of entry and cost of living.

All that said, Frank’s ostensible paranoia with the idea may be unnecessary. National notary does not seem to be a big topic from all I’ve been able to gather. In an exchange with a boot camp attendee that spoke on the condition of anonymity, when asked if the national notary was on the agenda, the attendee stated, “I do not remember that at all. It may have come up, but if it did, I was completely entrenched in our legislative task, so it went in one ear and out the other. I certainly do not remember that being the focus of any discussion. Or my focus, I should say.” A second attendee, writing to me under the same conditions, stated, “I don’t even remember the term ‘national notary’ coming up at all…” In my view, if two people who were there and care deeply about this field can hardly remember that coming up, it’s probably not going to be a major initiative unless and until we’ve worked out the problems I have described. As I have been told, the focus of boot camp, NCRA’s 2019 legislative boot camp, was the inclusion of court reporting schools in the Higher Education Act.

NCRA is in a tough position when it comes to these WUNCRA posts. On the one hand, if it comes out with a counter to each and every one, it ends up giving airtime to someone who just hasn’t been all that friendly towards the organization. I too worry about that. But I worry more about the cost of ignorance. If we do not take the time to introduce these ideas with some pros and cons laid out for brain food, we risk students and reporters stumbling across these ideas with no other reference or perspective. I’m happy to let my blog serve as one of many in the long run. And my personal conclusion? NCRA for sale? Not likely!

Indeed, if we are not somewhat careful in how we approach the issues, we may find ourselves in a hard position. Taking the time out to educate each other on the issues is always worthwhile, and it is important for all of us to weigh the pros and cons, and come up with ways we might influence the market, keep our skills sharp, and our customers happy. If I can pull a little bit off of Wenhold’s article, I’d say change is coming, not all of it bad. But I’d say this: We can all, in our markets and profession, be agents of change, and work to ensure change is for the better.

Shortage Solutions 1: Remote Proceedings

One of the reasons given for stenographer shortage is that many reporters have a strict coverage area, and type or amount of work they will cover. Nothing inherently wrong with that. People have standards. Esquire put out a Georgia article about remote deposition proceedings. Photo archive. We’ll note that in the original article it says 70 percent of stenographers to retire by 2023, but the Ducker Report seems to suggest 2033. The basic idea is to increase the coverage area and reduce commute time by using video or audio to have the stenographer attend. We first came across that idea in SoCalReporters’s blog post, There Is No Evil Empire and mirrored it in There Is No Rebel Alliance.

Though we haven’t jumped into every state’s laws, we did spend quite a good amount of energy and time on learning our own state’s laws, and we think it would be feasible in New York. Remote swearing is allowed under the circumstances described in the CPLR. If you have a choice between agencies using digitals or patching us in remotely to these things, we hope you’re smart enough to choose being patched in. We hope agencies are smart enough to keep choosing stenographers first and coming up with creative solutions for complex problems. We hope that stenographers continue to recognize when they’re not being chosen first and go out to build bigger, better business.

We reached out to Esquire about this initiative and article, and for a brief interview with Avi Stadler, Esquire’s General Counsel, about the program.

Might be worth talking with your own agencies about these ideas. If you have or are building your own company or book of business, the investment in remote capability might be something to look at. They want stenographers. We want them to use stenographers. And the consumer pressure in many cases is for there to be a stenographer. All that’s left is for stenographers to get themselves in the mix and make sure we adapt to the market if this is how steno sells. Some important tips from an ex-freelancer:

  • Get immediate contact information from other attendees in case you’re cut off or lose contact. You need to be able to call the others and let them know you’re no longer there taking the record.
  • Learn how to hotspot your cellphone in the event of a site service disruption OR have some kind of backup plan or call service for technology failure. Adaptability can seize the day.
  • Unexpected things will happen. Let’s say an entire unrelated party gets linked into yours by mistake? Take charge. Be a leader. Explain to the other conference that they should call into the agency. Try to communicate with the agency that there’s an issue. Have emergency numbers or contacts saved directly into your phone so that internet errors don’t stop you from communicating vital information to clients and agencies.

We are thankful that there are so many entities and independents brainstorming and coming up with ideas for the field. We encourage working reporters to join the discussion. Make your concerns known. Have your ideas be heard. We understand that this isn’t the newest idea out there, and that various companies have promoted virtual depositions, even as far back as 2017. Archive. But the best we can do is acknowledge that work and ask for more promotion of stenographic services coast to coast. Hopefully in a year or two we’re eating our words on previous articles that told stenographers certain agencies were not their friends and watching the steno renaissance continue full swing.

For now, consider this one potential shortage solution in what may end up a series of many dependent upon reader feedback.