Over the past 15 months, all three branches of our state government have confronted the challenges of the COVID-19 pandemic with efforts facilitating our courts and our state economy to function remotely, including the ongoing administration of professional legal services throughout Georgia. As of June 30, 2021, Gov. Kemp’s executive order declaring a public health state of emergency and the Supreme Court of Georgia’s order declaring a statewide judicial emergency have terminated. However, some pandemic-related regulatory suspensions have been extended through separate orders. Please read the information below regarding the governor’s continuation of certain COVID-19 regulatory suspensions and the extension of the Supreme Court of Georgia’s March 27, 2020, order on remote closings.

Continued COVID-19 Regulatory Suspensions—Notarization and Witnessing

On June 30, 2021, Gov. Kemp issued Executive Orders 06.30.21.01 and 06.30.21.02. The first of these two orders, 06.30.21.01, declares a state of emergency for continued COVID-19 economic recovery, which is set to expire on July 30, 2021, unless renewed by the governor. The second executive order, 06.30.21.02, provides for specific regulatory suspensions pursuant to the governor’s statutory emergency authority.

Executive Order 06.30.21.02 continues the suspension of the purported requirement that a notarial act be performed in the physical presence of a notary public and additionally provides that a notary may use real-time audio visual technology if the notary is a Georgia-licensed attorney or under the supervision of a Georgia-licensed attorney. This executive order also suspends the purported requirement that certain legal documents be executed, witnessed, attested or acknowledged in the physical presence of another individual. The suspension of these regulations and others outlined in 06.30.21.02 will continue until the governor terminates or ceases to renew Executive Order 06.30.21.01 declaring a state of emergency for continued COVID-19 economic recovery.

The language on page five of Executive Order 06.30.21.02 is substantially the same as the governor’s early pandemic executive order suspending in-person notary and witnessing requirements on April 9, 2020 (Executive Order 04.09.20.01). Practitioners should carefully read Executive Orders 06.30.21.01 and 06.30.21.02 before deciding how to act. The State Bar continues to maintain a page with best practices and frequently asked questions on Executive Order 04.09.20.01 that can be found here. We will continue to update that page as the governor renews or terminates Executive Orders 06.30.21.01 and 06.30.21.02.

Our Bar is grateful for Gov. Kemp’s willingness to work with the legal community throughout the pandemic to ensure that legal services are readily and safely available to Georgians.

Supreme Court of Georgia Extends Order on Remote Participation in Real Estate Closings

On June 30,2021, the Supreme Court of Georgia extended the terms of its March 27, 2020, order on remote real estate closings. While the statewide judicial emergency order expired on June 30, 2021, the Court extended the terms of the March 27, 2020, order through Dec. 31, 2021. In the extended order, the Court expressed no opinion on whether the Georgia Rules of Professional Conduct actually impose a requirement of physical presence for a lawyer to ethically participate in and supervise a real estate closing. A copy of the extended order can be found here. The original March 27, 2020 order can be found here.

Pending Legislation Permitting Remote Notarization – HB 334

In the wake of the executive orders issued during the pandemic, several practitioners statewide have asked whether there would be legislation to codify remote or virtual notarization, including remote real estate closings. During the 2021 legislative session, the General Assembly reviewed and debated HB 334, a bill that would permit remote online notarization in Georgia. That legislation received a vote in the House and the Senate, but ultimately both chambers could not agree on final language by the conclusion of the 40-day session and the bill did not pass. Because 2021 was the first year of a two-year legislative cycle, HB 334 will still be viable next year.

If you have any questions regarding these executive orders, the extension of the Supreme Court’s March 27, 2020, order or the pending legislation on remote notarization, we ask that you direct them to Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org.

Sincerely,

Elizabeth Fite
President, State Bar of Georgia
president@gabar.org