Must a lawyer who is a notary, or who employs a notary, file the notary journal publicly when doing so would reveal confidential client information?

Plain-English summary

Montana's notary statute (section 1-5-416(1)(g), MCA) requires every notary to keep an official journal recording the date, type of act, document details, and the name, address, signature, and identification of each person whose signature is notarized. A companion statute (section 1-5-419, MCA) requires the journal be transferred to the county clerk and recorder when the notary's commission ends. A lawyer asked whether these requirements force attorney-notaries (and attorneys who employ notaries) to make public disclosures that would breach the duty of confidentiality.

The committee concludes that much of the journal's mandated content is confidential information, and that the confidentiality rule, adopted under the judiciary's inherent constitutional power to define and regulate the practice of law, overrides a general legislative statute governing the witnessing of documents. Rule 1.6(b)(4) permits, but does not require, a lawyer to reveal information to comply with other law. Because the rule is permissive, the lawyer has a choice. The Montana Supreme Court holds original and exclusive jurisdiction over the professional conduct of bar members, and the committee finds the Rules of Professional Conduct provide ample protection for journal information through the confidentiality rule and a lawyer's file-transition protocols.

The committee notes the statute derives from a larger model act that addressed attorney-confidentiality concerns, and that the full impact on attorney-notaries was not appreciated when Montana enacted its version; it observes Arizona's version of the model act treats a journal containing confidential entries as the employer's property, retained at the employee-notary's departure. While the committee offers practical alternatives in a footnote (for example, sealing the journal by district court order, or using general terms of art instead of naming the document type), it states those suggestions do not change its answer to the question presented: a general regulatory statute does not trump the Rules of Professional Conduct, and the confidentiality rule overrides this particular statute.

In practice

Under this opinion, a Montana attorney-notary (or an attorney who employs a notary) may decline to file the notary journal with the county clerk and recorder when filing would disclose confidential client information, because Rule 1.6(b)(4)'s "comply with other law" exception is permissive, not mandatory. Per the opinion, the lawyer may instead choose, as a matter of comity, to follow the statute, or may protect the information under the office's file-transition protocols. The opinion frames this as the lawyer's choice and does not direct one course over the other.

Common questions

Q: Does the notary statute require a lawyer-notary to file the journal even if it reveals client confidences?

A: No. The opinion concludes the confidentiality rule overrides the general notary statute, so the lawyer is not required to file the journal where doing so would breach confidentiality.

Q: Why isn't the lawyer required to comply with the statute?

A: The opinion reads Rule 1.6(b)(4) as permissive: a lawyer "may" reveal information to comply with other law, so the lawyer has a choice rather than a mandate.

Q: What is the basis for the rule overriding the statute?

A: The opinion grounds the confidentiality rule in the judiciary's inherent constitutional power to regulate the practice of law (Mont. Const. art. VII, sec. 2) and the Montana Supreme Court's exclusive jurisdiction over attorney conduct.

Q: Does the opinion suggest any alternatives for handling notary journals?

A: Yes, in a footnote, including sealing the journal by district court order and using general terms of art for the document type; but the committee says these suggestions do not change its answer to the question presented.

Background and rules framework

The opinion interprets Rule 1.6 (Confidentiality of Information; Model Rule 1.6), in particular 1.6(a)'s general prohibition and 1.6(b)(4)'s permissive exception for disclosure "to comply with other law or a court order." It situates the rule within the Montana Supreme Court's exclusive jurisdiction over the practice of law (Mont. Const. art. VII, sec. 2). The statutes at issue are section 1-5-416(1)(g), MCA (notary journal contents) and section 1-5-419, MCA (transfer of the journal on the end of a commission).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Mont. R. Prof. Cond. 1.6(a), 1.6(b)(4) (confidentiality; permissive disclosure to comply with other law)

Statutes:

• Section 1-5-416(1)(g), MCA (notary journal recording requirements)
• Section 1-5-419, MCA (transfer of notary journal to county clerk on end of commission)
• Mont. Const. art. VII, sec. 2 (Supreme Court jurisdiction)
• Ariz. Rev. Stat. 41-317, 41-319 (model-act treatment of confidential journal entries)

See also

• State Bar of Montana Ethics Op. 050621: Confidentiality and Call-In Bond Conditions
• ABA Formal Op. 98-412: Disclosure When a Client Violates a Court Order
• ABA Formal Op. 94-385: Subpoenas of a Lawyer's Files

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/Site Resources/Ethics Opinions/1.6 confidentiality/100310.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION 100310

Facts:

Section 1-5-416(1)(g), MCA provides that all Montana notaries "keep and maintain an official notary journal recording the details of each notarial act performed" including the date, the type of notarial act, the type and date of the document, name, address and signature of the individual and type of identification used, among other information. Section 1-5-419, MCA mandates transfer of a notary's journal to the county clerk and recorder upon a notary's expiration, resignation, death or removal.

Question Presented:

Does 1-5-416(1)(g) require attorneys who are notaries or notaries who work for attorneys to make public disclosures which violate their duty to maintain the confidences of their clients?

Short Answer: Yes, but attorneys may choose to exercise their responsibilities under the Rules of Professional Conduct and may choose to not file the journal with the clerk and recorder as required by the statute.

Discussion:

The issue presented pits the obligations and responsibilities of lawyers, who are constitutionally authorized officers of the court, opposite notaries, who are statutorily mandated witnesses of executed documents. It is this Committee's opinion that the Montana Rule of Professional Conduct on confidentiality, adopted pursuant to the judiciary's inherent constitutional power to define, regulate and control the practice of law, overrides a legislatively enacted general statute regulating the witnessing of documents.

Much of the mandated information in a law office's notary journal is considered confidential information. As explained by the requesting attorney, clients have little interest in having the required journal information filed in the public arena:

"Within the last several weeks, as I have notarized clients' signatures, I have asked a number of clients about delivering to the local clerk and recorder their names, addresses, signatures, and a description of the document notarized. Without exception, each client responded with "no" or a stronger, earthier variation of "no" which I will refrain from putting in this letter."

Rule 1.6 of the Montana Rules of Professional Conduct provides, in relevant part:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(4) to comply with other law or a court order.

(emphasis supplied). In short, the rule provides that a lawyer may reveal confidential information to comply with other law. The rule does not contain a mandate, it contains permission. The lawyer has a choice.

The Montana Supreme Court possesses original and exclusive jurisdiction in the enforcement of professional ethics and conduct of the members of the Unified Bar of Montana, as provided in the Montana Constitution, Art. VII, section 2, and the Montana Rules of Professional Conduct. It is not within the purview of this Committee to address the statute's constitutionality. The Rules of Professional Conduct provide ample protection for information contained in the notary journals. The legislature intended by the statute to protect the information contained in the journal by having it filed with the clerk and recorder. The information contained in an attorney's or attorney's staff's notary journal is protected by the confidentiality rule and protocols lawyers have in place for the orderly transition of their files in the event their practice is closed. Lawyers may choose, as a matter of comity, to follow the direction provided by the legislature. However, lawyers may also choose, as contemplated by the permissive language of Rule 1.6 (b), to not comply with the legislative direction and protect their client's confidential information in accord with their office's protocols.

This statute, 1-5-416(1)(g), MCA, is taken from a much larger model act which addresses the attorney confidentiality issues. While the attorney confidentiality issue was briefly raised in the legislative hearing on the Montana statute, it is clear the full extent of the impact of the statute on attorney notaries and attorneys who employ notaries within their offices was not fully understood or appreciated. The Committee also understands this statute may be amended in future legislative sessions. At least one state utilizing the model act, Arizona, has specifically provided that the journal containing entries subject to attorney client confidentiality is the property of the employer of the notary and the journal is retained by the employer at termination of employment.[1]

The Committee also proffers a number of suggestions to address the concerns about violations.[2] But these suggestions do not address the issue presented: Does a general regulatory statute trump the Montana Rules of Profession Conduct? We believe attorney core rules of professional conduct, most specifically the rule on confidentiality, override this particular general legislative regulatory mechanism.

THIS OPINION IS ADVISORY ONLY

[1] Arizona Revised Statutes 41-317, 41-319. Section 41-319 (E) provides: If one or more entries in a notary public's journal are not public records, the notary public may keep one journal that contains entries that are not public records and one journal that contains entries that are public records. A notary public's journal that contains entries that are not public records is the property of the employer of that notary public and shall be retained by that employer if the notary public leaves that employment. A notary public's journal that contains only public records is the property of the notary public without regard to whether the notary public's employer purchased the journal or provided the fees for the commissioning of the notary public.

[2] In summary, alternatives available to safeguard confidential information contained in notary journals of notaries who resign, die, are removed or whose term expire include: 1. Request that the journal be sealed by the District Court, with language specifying that access to the journal is only via Court ordered access to a particular page of the document: "In re Sealing the Notary Journal of [the notary]." 2. The Secretary's Office also agreed that one signature per page in the journal is acceptable, as long as the page reflects that the other entries were left intentionally blank. It is not appropriate to keep two journals. 3. Not all documents require notarization. Confirm the necessity prior to recording otherwise confidential information. 4. Prior to notarizing a document, distinguish whether the lawyer is performing the service as a witness or as a lawyer. The witness/lawyer rule potentially preempts future representation. 5. In the journal, use general terms of art. Instead of writing "Prenuptial Agreement" write "contract" or "agreement." Those seeking additional information about Montana's current notary statutes can visit the Secretary of State's website.