Opinion  CJE Opinion No. 2012-2

Date: 09/18/2012
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

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Committee on Judicial Ethics

Table of Contents

Duty to report attorney identified as "robosigner" to Board of Bar Overseers

You seek advice as to whether you have a duty to report an attorney to the Board of Bar Overseers.  This issues arises from a civil action regarding foreclosure. One issue in the case was whether the lender had complied with the mortgage foreclosure requirements and whether the Notice of Foreclosure was valid and operative under the mortgage. The plaintiff submitted signed affidavits from both the First Assistant Register and the Register of the Southern Essex District Registry of Deeds (county other than the one where the documents were recorded) in which they both attested to the presence of a "robo-signed" signature by the Attorney on the assignment of the mortgage from MERS to U.S. Bank National Association.  (The defendants argued that the affidavits merely state that the Attorney is on a list of "robo-signers," not that the Register has any actual personal knowledge that the signature is a "robo-signature.")  Plaintiff claimed that these "robo-signed" documents show that the chain of title had been corrupted.

The Register and First Assistant Register based the statements in their affidavits regarding the presence of the "robo-signed" documents on a list of "robo" or "surrogate" signers provided to them by the Register's forensic analyst.  According to the analyst, a "robo-signer" is a "person on a legal document processing assembly line whose only task is to sign previously prepared documents affecting title to real property in a robotic-like fashion without reading the documents or verifying the facts contained therein by reviewing primary source evidence."  Attorney is an alleged "robo-signer" whose name appears on the list given to the Register of Deeds by their analyst.  The Register of Deeds states in his affidavit that the assignment of the mortgage signed by Attorney was signed by "an identified robo-signer."  The Register of Deeds instituted a policy requiring independent verification of documents signed by an alleged robo-signer.

The Attorney submitted his own affidavit disputing the allegation that he "robo-signed" the assignment of the mortgage.  In his affidavit, Attorney stated that he was "not aware of any revocation, amendment or rescission" to the Corporate Resolution that would have impaired his authority or ability to execute the assignment of the mortgage.  However, the Attorney provided no information about how many assignments of mortgages or other documents he signed that day.  Attorney also did not explain what, if any research or verification process he went through, or what personal knowledge he had about the assignment of mortgage at issue in this case before signing it.  You ask whether you are obligated to report Attorney to the BBO.

Analysis:  Using the three prong requirement of 3D(2), we inquire whether (i) the judge has knowledge of facts; (ii) indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct; and (iii) that raises a significant question as to that lawyer's honesty, integrity, trustworthiness, or fitness as a lawyer.

Submission of false documents to a court would be a violation of the Rules of Professional Conduct that raises a significant question as to a lawyer's honesty, integrity, trustworthiness or fitness as a lawyer.  The challenge is that while you have actual knowledge that the lawyer has been labeled as a robo-signer by the Registry of Deeds (of a county other than the one where the documents were recorded), which raises a red flag that the lawyer had not undertaken the presumed review of the underlying documents, being a robo-signer alone does not prove that the lawyer has submitted false documents to the court. Even the Register's own procedures require that cases involving robo-signers require independent verification of documents signed by an alleged robo-signer.  In other words, there is additional factual analysis and review to determine if the documents are accurate.

It is also noted that at this time, unlike at least one other jurisdiction, Massachusetts has not made robo-signing itself improper.  Cf. Administrative Order, Chief Administrative Judge of the Courts of New York, AO/431/11, available at http://www.nycourts.gov/attorneys/pdfs/AdminOrder_2010_10_20.pdf  (in residential foreclosure actions, requiring lawyers to submit an affidavit that the lawyer "has communicated with the following representative or representatives of the Plaintiff, who informed me that he/she/they (a) personally reviewed plaintiff's documents and records relating to this case for factual accuracy; and (b) confirmed the factual accuracy of the allegations set forth in the Complaint and any supporting affidavits or affirmations filed with the court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith.")           

In this case, mere knowledge that a lawyer is on a list of robo-signers alone is not sufficient to know that the lawyer has submitted false documents.  Under these facts there is no mandatory duty to report under 3D(2). 

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