With the advancing age of technology, paralegals can’t help but wonder if hard copies of legal documents will vanish in the near future. If so, will the need for wet ink signatures disappear as well?
Not yet. Some legal practices still require securing original wet ink signatures, such as financial transactions, wills, or other local rules subject to judges’ orders, but electronic signatures are also legally binding by law and can be authenticated.
Types of Signatures
The executing party of a contract physically marks the document, signs his/her full name with an “X,” a symbol, thumbprint or anything that authenticates the terms of the contract are acceptable.
The signer places a symbol or other data in digital form attached to an electronically transmitted document as verification of his/her intent to sign the document. Electronic signatures can be a typed name at the end of email, an image of a handwritten signature on a transmitted fax, a personal identification number (PIN) entered into a bank ATM, clicking “agree” or “disagree” on an electronic terms and agreement contract, or a handwritten but digitally captured signature made on a tablet.
While electronic and digital signatures are used synonymously, digital signatures are unique to each signer and include the time and date of the signature. If you prefer digital signatures, software such as DocuSign and Adobe Acrobat can be used for extra authentication. Some digital signature providers follow a protocol called Public Key Infrastructure (PKI), which requires the provider to use a mathematical algorithm to generate two long numbers, called keys. One key is public and another is private. The private key is only accessible and used by the signer so the resulting digital signature will include encrypted data.
Federal Law and California E-filings
On June 30, 2000, the U.S. Congress passed the Electronic Signatures in Global and National Commerce Act (E-SIGN). Its intent was to ensure that a contract or signature “may not be denied legal effect, validity, or enforceability solely because it is an electronic form,” as outlined in Sec.101(a)(1). While state laws exist on signature requirements, E-SIGN is the federal law that governs interstate transactions.
For California court e-filings, see Rule 2.257 of the California Rules of Court regarding documents signed or not signed under penalty of perjury. If a document is not signed under penalty of perjury, then the document is considered signed when e-filed. As for documents signed under penalty of perjury or those requiring signatures of opposing parties, wet signatures must be obtained, although not e-filed, and must be presented to the court or another party upon request.
According to E-SIGN, any document signed by electronic means has the same validity as a “wet ink” original document. It is best for the paralegal on the transaction to run due diligence before submitting documents or entering into a new contract.
About the author:
Annie P. Ye, Annie Ye is a paralegal at Holland & Knight with a focus on business law and a member of BASF’s Paralegal Section Executive Committee.