Lockdown and social distancing measures have led to an increase in the use of e-signature platforms. Without the ability to meet in person to put pen to paper, or to access scanners and printers to sign and return legal documents remotely, e-signature platforms such as DocuSign, Adobe Sign and HelloSign have come into their own. These platforms (and the e-signatures they create) have been available for some time, but it’s encouraging to see their use becoming more widespread.
Stevens & Bolton LLP has used DocuSign for a while and we’re impressed how, in the right circumstances, it can simplify and improve the signing process in a secure and efficient way. We’re well versed in setting up “envelopes”, guiding clients through the e-signing process and managing completions. If you have not have encountered DocuSign (or other e-signature platforms) in action before, we’ve addressed 10 FAQs below, based on our experience.
1. How are documents sent out for signature?
Final form documents are circulated for signature in a virtual “envelope”. This envelope can contain just one agreement or a suite of documents. The sender will attach DocuSign placeholder tabs throughout the documents in each place that a signature, approval or information is required and will assign a number in the “signing order” to each recipient. Each stage in the signing order must be completed in numerical order. There can be more than one recipient allocated to each stage, but the documents will not move to the next stage until the prior step is complete. A link to access the envelope is emailed to all recipients who need to sign, approve, date or ‘do something’ else within the envelope before completion. Recipients can click the link to open the envelope and access the documents on any internet-enabled device (like a mobile phone, tablet, or computer). Tabs and simple instructions guide each user through their personal signing process (or the actions required from them). Signatories sign the same electronic copy using DocuSign. This can be accessed via different devices, but creates one ‘original’.
2. How do recipients sign?
Signatories apply their signature by clicking each tab assigned to them, marked “Sign”. The first time they sign, DocuSign requires the signatory to either:
- select from a list of predefined signature styles (these will not reflect the individual’s actual signature)
- draw their signature using a mouse or, for a touch-screen, their finger or a stylus
- upload their signature (they will need to have saved it as an image file on their device, in advance)
3. Do signatories need a DocuSign account?
No, only senders need an account. But if you know in advance that signing will be managed via DocuSign, it’s easy to set up a free account using the app, which means your actual signature can be photographed and applied to your account in advance. If there are list(s) of specimen signatures in place (common on banking transactions), it will be particularly important that the e-signatures used match the signatories’ wet-ink signatures.
4. Can every recipient see every document?
Yes, unless “document visibility” rules are applied. Using this tool it is possible to restrict what recipients can see to only those documents which require their signature (or other action). The existence of the other documents (but not their content) will remain evident from the envelope data.
5. Do DocuSign e-signatures carry the same weight as wet-ink signatures?
Yes. A signature (in any electronic or physical form) is valid, including for deeds, so long as:
- It is easily attributable to the person purporting to enter into the document, and
- That person intended their signature to give authenticity to the document as a whole.
E-signatures applied within a signing platform also have added benefits over wet-ink. DocuSign tracks and maintains a time-stamped audit trail of every viewing, printing, sending, signing or declining activity in respect of each document. Once an agreement is fully signed, it remains secure and encrypted while on the DocuSign system. If downloaded, DocuSign secures the document and signatures with a tamper-evident seal.
6. Are there any documents that should not be DocuSigned?
Yes - there are still some documents that should not be signed using an e-signature platform. For example, the Land Registry does not accept e-signatures, so anything that needs to be registered or filed with them should be wet-ink signed. HMRC is also cautious of e-signatures (although it appears to be coming around to the idea, through necessity). The use of e-signature platforms must therefore be considered on a case by case basis.
7. How does witnessing work?
If a signature requires a witness, the witness must still be physically present to observe the signatory insert their electronic signature into the deed (as they would for a physical signing). The signatory nominates their witness immediately before signing (it’s not necessary to know the identity of the witness when setting up the envelope) and the witness will then fill in their name and email address. Once the signatory has finished their actions, an email is sent from DocuSign to the witness, prompting them to provide their address and occupation, and to sign the document with their own electronic signature. If the witness has their own account, they will have access to the basic audit trail of the envelope (what DocuSign calls the “envelope history”), but no access to the e-signed deed after they have completed their part.
8. Can envelopes be corrected?
Yes – senders can make corrections to envelopes that are in progress. Both recipient and envelope information can be corrected (e.g. recipient email address, name, signing order, action, message) but only for recipients that have not finished signing. If any recipient has completed signing the document, files can’t be deleted or reordered. New files can still be added and fields can be modified, added to or removed from existing documents.
9. How are the documents dated?
Documents can be dated automatically on signature, or as separate distinct action and stage in the signing order. Dating is often the trigger for the delivery of deeds, so the lawyers will usually want to retain control over this. Our preferred approach is to insert text fields for the dates which can be populated on completion.
10. What happens once all the stages in the process are complete?
Each recipient will receive a notification that the signing process is complete, along with a locked, pdf of each signed document. A pdf “signing certificate” detailing who signed, when and (if location data is provided by the signatories) from which IP address / GPS location. It is possible, to require that documents are automatically deleted from the DocuSign cloud after completion of the envelope. The signing certificate remains but can be redacted of all personal data. This will not affect the copies received by email. Each signatory will receive a notification by email before the deletion/redaction takes place allowing them to download and save the documents locally, if for any reason the copies received by email were not saved initially.
It’s really important to fully consider the legal, practical and technical implications of using an e-signature platform in the context of the specific documents that require signing. Doing this well ahead of completion, and communicating early with all other parties to share and agree best practice, is key to paving the way for what will hopefully become a ‘new norm’ of smoother, more efficient signings.