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Commonwealth of Massachusetts

December 2004

What’s in a Statement? Truth and Accuracy in Preparing and Executing Sworn Documents

Christa A. Arcos

It is Friday afternoon and you are an associate preparing an emergency motion for an ex parte real estate attachment in a pending Massachusetts Superior Court lawsuit for your firm’s most important client. The client had notified your firm earlier in the week that the defendant had executed a purchase and sale agreement to transfer a commercial property the following Tuesday at 10:00 a.m. If this commercial property is sold, the client believes that the proceeds will disappear and that there will be no other assets from which to satisfy a potential judgment in the pending lawsuit. You speak with the client by telephone at 3:00 p.m. on Friday afternoon and read the affidavit to him. He verifies its content; however he is in his car speaking to you by cell phone and will not have access to a fax machine within the next hour. The client demands that the motion and affidavit be filed immediately. Accordingly, he authorizes you to sign his name and to file the motion and affidavit before the close of business that day.

Pursuant to Rule 4.1(f) and (h) of the Massachusetts Rules of Civil Procedure and Superior Court Rule 9A(a)(1), the motion must be supported by an affidavit signed under the penalties of perjury. Can you sign the client’s name to the affidavit in support of the motion? The short and unequivocal answer is, no.

When specifically authorized to do so, it is a commonly accepted practice for a lawyer to sign another individual’s name to a letter, pleading or motion, along with the lawyer’s initials. However, the same is not true with respect to an affidavit or any other pleading or document signed under the penalties of perjury. The purpose of such an affidavit is to present the sworn statement of the client, not the lawyer. When you sign a client’s name to a document under the penalties of perjury, you are also misrepresenting your signature to be that of the client. Your client’s authorization does not cure this problem.

Mass. R. Prof. C. 8.4, in relevant part, provides that it is professional misconduct for an attorney to:

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice; . . .

(h) engage in any other conduct that adversely reflects on his or her fitness to practice law.

Signing the client’s name to this affidavit and filing it in court would constitute a violation of these rules. You would also be making an intentional misrepresentation to the court in violation of Rule 3.3(a)(1), which prohibits making a false statement of material fact or law to a tribunal. See Matter of Molloy, SJC No. BD-2003-067 (November 5, 2003)(three-month suspension for, among other misconduct, signing or directing someone else to sign the client’s name to an affidavit and then filing it with the court). Even if the affidavit were not going to be filed in court or used in litigation, signing another’s name to a document under the penalties of perjury would still be a misrepresentation in violation of Mass. R. Prof. C. 8.4(c).

What if the associate in this hypothetical had signed the client’s name to the affidavit and then added his own initials, indicating to the court that it was he, the attorney, and not the client that had signed the affidavit? Although there would then be no misrepresentation concerning who signed the affidavit, the document obviously has not been signed under oath by the putative signatory, as required. The court may reject the filing, which potentially could create other problems for the associate and the client.

Misrepresentations in sworn documents filed with a court can result in discipline even where the attorney is not the actual signatory and even if those misrepresentations do not relate to the substance of the litigation. In Matter of Cross, 15 Mass. Atty Disc. R. 157 (1999), a lawyer was publicly reprimanded for filing a return of service with the court that she knew or should have known was not true or correct. On the last day of the 120-day time limit for service, and unable to find a constable, the lawyer decided to serve the complaint herself. She and a friend drove to the corporate defendant’s office, where the lawyer left a copy of the complaint while the friend remained in the car. The lawyer filled out the return of service and directed her friend to sign it, thereby implying that the friend had made service at the corporate defendant’s office.

Exigent circumstances are not a defense to signing a client’s name to a sworn document. Similarly, the constraints of a busy schedule will not excuse the attorney’s signing a client’s name to a sworn document. In Matter of Guinane, SJC No. BD-2004-0038 (March 8, 2004), an attorney received a one-month suspension after he prepared and signed an affidavit in his client’s name to support a motion to suppress evidence in a criminal case. In that case, the motion had to be filed in court within seven days of the hearing and the attorney found himself “too busy to drive sixty-five miles” to obtain his incarcerated client’s signature.

What then should you do when faced with the impossibility of obtaining your client’s signature to an affidavit or other sworn statement prior to the expiration of an impending deadline? The most straightforward option is to file a motion to extend the deadline so that you will have sufficient time to meet with the client and obtain his or her signature. The other available options may vary from case to case. If permitted by the particular court, and preferably by agreement with opposing counsel, you can file an unsigned affidavit with the understanding that you will substitute or supplement it with a signed affidavit on the day of the hearing.

In other instances, lawyers have filed affidavits of counsel, making statements based upon “information and belief.” However, anytime you file an affidavit of counsel, you run the risk of becoming a witness in the case, which obviously is its own problem. It is also imperative that you not disclose privileged or confidential information and that you read the affidavit to the client, and review its content together, before it is filed. In Guinane, the attorney not only prepared and signed the client’s affidavit, but also did so without discussing the content of the affidavit with the client.

In our hypothetical, your options are limited. If the court will not allow you to file the motion with an unsigned affidavit from your client for the purposes of scheduling the hearing for early Monday morning, you will have to obtain the client’s signature over the weekend and file the motion and supporting affidavit on Monday morning.

In sum, when a document must be signed under the penalties of perjury, resist the pressure to take shortcuts. Leave plenty of time to draft the required affidavit and to obtain your client’s or the witness’s signature. Require the affiant to read sworn statements carefully. It is advisable that you be available to answer questions at the time that your client or the witness reviews the sworn document. Emphasize how important it is that each statement be truthful and accurate because the document is being signed under the penalties of perjury. Keep in mind also that any affidavit and the circumstances of its creation and execution may well be the subject of a later deposition or cross-examination at trial. Always ensure that the signature on a sworn statement does, in fact, belong to the affiant. As other Bar Overseer articles have pointed out, the road to discipline or malpractice is often paved with good intentions.

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