Electronic or digital “signatures” have been in use for decades. Many in the legal profession have been slow to embrace the technology, but now see its value as COVID-19 has separated them from their clients, and from each other. In response to member demand, the MSBA produced a new webinar, E-Signatures: Managing the New Reality, featuring attorney Adam Spence (Spence Brierley PC). This 80 minute presentation is designed for both the uninitiated and for attorneys looking to learn more about electronic document execution. In it, Mr. Spence reviews the applicable law and available technology, compares several platforms, and provides an on screen e-signing demonstration.
Mr. Spence first observes that the use of “wet signatures” is becoming an old reality. The new reality, he mused, is that “ink is for tattoos.” Although there are some documents that by law still require wet signatures, many more, like court filings using MDEC, are required to be signed electronically. For the vast majority of legally binding agreements either will suffice, but e-signing has many advantages over its old-school counterpart. It is convenient, fast, simple, efficient, can be accomplished anywhere with mobile phone or internet access, and with the right technology, can be more reliably authenticated than a traditional signature. And the obvious benefit during an era of social distancing is that it is done remotely, without the risks now associated with interpersonal contact. Mr. Spence and his firm started using electronic signatures in their litigation practice before the pandemic for engagement letters, HIPAA consents, settlement agreements, settlement distribution approval letters, leases and lease amendments, and other documents.
Before addressing technological and practical considerations, Mr.Spence reviews the applicable law, most notably the federal Electronic Signatures in Global and National Commerce Act (E-Sign Act) and the Maryland Uniform Electronic Transactions Act (MUETA). While both provide that electronic “signatures” (which can range from a facsimile signature to an audible electronic utterance) are valid for most purposes, they each list exceptions, such as wills, notices of eviction and other consumer related transactions. He cautions that there are also some documents, such as powers of attorney, that are legally valid when signed electronically, but might not yet be accepted by banks, lenders and other third-parties, so caution and advance planning is always indicated. That said, e-signatures can be used with the same force and effect as wet signatures for the vast majority of legal instruments
Mr. Spence then turns to the 5 steps that lawyers should take to begin using e-signing in their practice. First, “know Adobe,” the “gold standard” for publishing immutable .pdf documents. Second, select a platform after considering several factors (e.g., document volume, number of users, cost, and user reviews). He presents a slide that compares many of these factors and discusses advantages and disadvantages for several e-signature software vendors. Third, he suggests learning and testing the platform, as he walks viewers through a brief tutorial to highlight some of the features to look for. Fourth, understand the reassignment, delegation and audit trail features available on the platform (that regulate and report on who can and did have access to the document), all of which he explains in detail. And finally, the attorney should witness a signing in action. Toward that end, Mr. Spence provides a live e-signing demonstration that takes the viewer through the entire process, screen by screen, from the conversion of a Word to a .pdf file, loading it for transmission and signature, signing, sending and receiving the document, and producing an audit trail that shows who did what with the document, and when.
The May 18, 2020 webinar can be viewed below, in its entirety. Additional handouts and e-signing resources are available from Mr. Spence’s supplementary blog post.