March 1998
Much Ado About Notarizing
by Constance V. Vecchione
First Assistant Bar Counsel
Lawyers and their support staffs often
are also notaries public. We all need to notarize affidavits, deeds, wills,
and hosts of other types of documents. Indeed, the Secretary of State's
office considers being a lawyer to be an adequate reason for appointment
as a notary.
Why, then, is the interaction of the two roles too frequently
problematic? Since the inception of the Board of Bar Overseers in 1974, more
than 40 attorneys have been disciplined, with sanctions ranging from private
admonition through suspension and even disbarment, for offenses arising at least
in some part from improprieties in taking acknowledgments. And while the more
severe sanctions tend to involve obvious fraud in the notarization or otherwise
(Matter of Silver, 9 Mass. Att'y Disc. R. 295 (1993)
; disbarment for, among other issues, fraud in business dealings with clients),
the more troubling line of cases involves lawyers who notarized or caused another
to notarize a document wrongfully but without fraudulent intent. It is this
latter situation, so very preventable, that is the focus of this article.
In the usual situation in which the
problem arises, the attorney for convenience notarizes or causes to be
notarized (or simply witnesses) what purports to be the signature of an
individual who has not personally appeared before the notary. Sometimes
the signature is in fact genuine and the problem is that the signatory
was not present when the document was notarized. (Private Reprimand
93-23, 9 Mass. Att'y Disc. R. 394 (1993)). Sometimes the lawyer has
mistaken relied upon the representation of a third party (often the lawyer's
client, once in a while a law partner or associate) that another person's
purported signature, already on the document, is genuine when in fact it
is a forgery. (Matter of Weitz, Public Reprimand 94-07, 10 Mass.
Att'y Disc. R. 286 (1994); Private Reprimand 93-41, 9 Mass. Att'y
Disc. R. 430 (1993)). This last group of cases often involves family
members, such as a husband claiming that his wife has signed a document
or vice versa. Occasionally, the problem will be that the jurat misrepresents
some fact other than the signatory's presence, such as where (Admonition
93-35, 9 Mass. Att'y Disc. R. 472 (1993) or when (Private Reprimand
91-4, 7 Mass. Att'y Disc. R. 328 (1991) the document was signed.
In all these situations, the attorney notarizing the document
generally is trying to be helpful and to save time or do the client or associate
a favor by taking a shortcut. The shortest way there, however, turns out to
be the longest way back when the misrepresentation surfaces down the road. Litigation
may ensue, documents may be invalidated, and clients find themselves in trouble
which, even if of their own making, was avoidable. A bit more care from the
lawyers could have saved the clients from themselves and the lawyers from civil
liability or discipline.
We therefore offer three simple rules, from a pamphlet published
by the Secretary of State entitled "Guidelines for the Notary Public," for avoiding
this type of problem:
1. Notaries should always require document signers to appear
before them personally at the time of the notarization.
2. Notaries should positively identify all document signers.
3. The notary should be certain that the document is complete
before performing a notarial act.
These same guidelines apply equally to the lawyer acting
as witness to a document.
The road to discipline or malpractice
liability is often paved with good intentions. When notarizing or witnessing
documents, resisting pressure to take deceptively benign shortcuts, and
hewing instead to the line is in the interests of lawyers and clients alike.
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