Signing Contracts using Electronic Signatures

On this edition of Tech Law Tips podcast, we're going to talk about a question we receive very, very often, which is: can I sign a document electronically or does it need that handwritten signatures?

This podcast is sponsored by Whitehouse & Cooper. Your host is Daniel Whitehouse, who is a technology attorney with Whitehouse & Cooper based in Orlando, Florida.

We are often asked whether a document can be signed electronically or if it needs an actual handwritten signature that is either hand delivered, emailed, or faxed. The answer most of the time is yes. Yes, you can sign a document electronically, whether you want to use DocuSign or any of the other platforms that are out there. Most legal documents can be signed electronically. There is both federal law and state law that allows the signing of documents electronically. The ESIGN Act is the federal law that many states have adopted at their local level. This allows for many state-based contracts to be effective and enforceable when signed electronically. There's one catch to electronic signatures, though: if you're doing business electronically, you may inadvertently create a contract with someone by communicating electronically.

For example, if you say during an email exchange, “Do you want me to do this?” They reply with, “Yes, I will do that in exchange for X.” That exchange provides the basic components of a contract that may inadvertently have been formed via email, even without a separate signature. Our advice is always to create a contract that has all of the terms spelled out for you so you are not leaving anything to chance in an email. Then the final version of the contract can be signed electronically. You wouldn't believe how many times we get asked that question: should we just agree to this via back and forth via email? We never advised that sending an email is the appropriate mechanism to form the basis of the contract. So sign those documents electronically.

There are some documents, however, that based on state law require a notary signature and many times a notary has to be done in person. So electronic signatures do not work with these types of documents. (Estate documents such as wills and trusts, or real estate documents such as deeds are good examples.)

In Florida as of January 1st, 2020, we have an electronic/remote notary option that has been by our legislature. Some of the online providers haven't necessarily caught up to comply with the statute yet, so do your research on which providers are appropriate for your remote notary options.

Whitehouse & Cooper has used DocuSign for years, and it has streamlined our internal processes considerably. It also helps our clients execute their documents with their customers. We have the option to send documents to both sides for signatures. We've had multimillion-dollar contracts signed using DocuSign, and we really do enjoy the product. (Maybe they should be a sponsor of this podcast! Where are you at, DocuSign??).

If you have any questions or if you'd like to submit a topic for a future episode, you can reach us through the various social media platforms or email us at TLT (at) whitehouse-cooper.com. We will do our best to address your questions in future episodes.