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Improper Notary Practice May Lead to Attorney Discipline

By John W. Joyce, Litigation News Associate Editor – January 26, 2011

Notarial practice is not generally taught in law school or tested on the bar, but, in many states, attorneys receive a notary commission without an exam. Notarizing an affidavit or other document is often seen as a simple administrative task delegated to junior attorneys, paralegals, or staff. Attorneys who take shortcuts or engage in sloppy notary practice, however, subject themselves to potential disciplinary action and other liability.


In light of the well-publicized allegations about mortgage industry “robo-signers,” the Disciplinary Board of the Pennsylvania Supreme Court recently cautioned attorneys regarding the consequences of attorneys using improperly notarized documents or directing employees to improperly notarize documents.


The board explained that “[s]ome in legal practice may come to view notarization as a technicality, but each affidavit or verification is a sworn legal document with serious implications for the signer, the notary . . . , and the lawyer who prepares or uses it.” Later, the board also noted that an attorney who pressures an employee to improperly notarize a document violates Rule 8.4 of Pennsylvania’s Rules of Professional Conduct, among other rules.


A Common Problem for Young Lawyers
While alleged “robo-signers” are an extreme example of notary abuse, many young attorneys may encounter situations that could put them in danger of violating notary rules or statutes. The situation is common enough. The senior partner charges a young attorney with notarizing the crucial affidavit or other document in the case. But the document was signed prior to the young attorney’s involvement.


In a continuing effort to contribute in any way possible, the young attorney notarizes or instructs a paralegal to notarize the document. Has the attorney violated the law? The answer may vary depending on what state’s law applies.


Notary Law and Standards Vary from State to State
“Notary law is state statutory law, and may differ from state to state,” says Michael H. Rubin, Baton Rouge, LA, immediate past chair of the Ethics and Professionalism Committee of the ABA Real Property, Trust, and Estates Law Section. “Generally speaking, in some states, the notary verifies that the document was signed in his presence, while in others the law permits the notary to verify essentially that ‘I know this to be the signature of the person,’ even if that person did not personally appear before the notary and sign in the notary’s presence,” he says.


Attorneys must be careful to read the applicable statute and the terms of the document being notarized. “If you say in the document, or the statute requires, that someone appeared before you and signed a document, that person should in fact have appeared before you and signed the document, or you should not notarize it,” says Daniel E. Shaw, New York, cochair of the Newsletter Subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee.


If there is a violation, the consequences may reach beyond violation of a notary statute. According to Shaw, “an attorney who improperly notarizes a document submitted to a court potentially violates Model Rule of Professional Conduct 3.3(a), which prohibits offering evidence that is false, Federal Rule of Civil Procedure 11 or similar state pleading rules, and possibly state fiduciary duty law. The attorney may also face exposure to state malpractice claims, he notes.


Instructing a paralegal or staff member to notarize a document improperly may also violate Model Rule of Professional Conduct 5.3, according to Shaw. That rule regulates supervision of non-attorney employees.


So what does the young attorney who knows that he cannot notarize a document not signed in his presence tell the senior partner? “Tell him, ‘I’ll be glad to take care of it.’ Then create a new document and have the person sign again in your presence,” says Rubin.


Keywords: notary practice, practice tips


 

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