Sunday, December 5, 2010

Notaries Notarizing Documents Not Signed in Their Presence

  The most recent scandal in the mortgage industry includes notaries notarizing documents not signed in their presence. When lawyers compel notaries to engage in this (mal)practice, the lawyers run afoul of the Rules of Professional Conduct. Here is a statement from the Disciplinary Board of the Supreme Court of Pennsylvania. The Pennsylvania ethics rules that are mentioned are the same or similar to those in virtually every state:

In response to our item last month about the increasing scrutiny of notaries in the aftermath of the mortgage meltdown, reader Dana Pirone Carosella writes to note that many attorneys put pressure on their employees who are notaries to notarize documents not signed in their presence, or otherwise inconsistently with their duties as notaries.

Ms. Carosella notes, and we agree, that this is an unacceptable practice. An attorney who directs or encourages an employee-notary to notarize documents not signed in the notary’s presence commits serious misconduct and could face discipline. Rule 8.4 of the Rules of Professional Conduct states that it is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, do so, or do so through the acts of another . . . ;

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

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

Being a party to an improper notarization violates all of these rules. In addition, the lawyer who files or uses a document knowing it was improperly notarized may “offer evidence that the lawyer knows to be false,” in violation of Rule 3.3(a)(3).

(ljs)

http://lawprofessors.typepad.com/legal_skills/2010/12/notaries-notarizing-documents-not-signed-in-their-presence.html

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Comments

You are welcome. But I have no additional information other than Notaries are regulated by the Az Sec of State, so its website may have some background.

Posted by: mahtso | Dec 13, 2010 10:58:17 AM

Thanks for the info on Arizona law. I wonder how many other states bifurcate the rule like this. I haven't run into it before. Do you know the history?
(ljs)

Posted by: ljs | Dec 11, 2010 12:02:23 PM

This post may be misleading as it relates to some notary’s acts: In Arizona a notary may perform an Acknowledgement showing that the purported signer actually did sign. Although the signer must appear before the notary, it is not necessary for the signing to be done at that time (i.e., the person could sign and then bring the document to the notary for the acknowledgement.) This is in contrast to a Jurat in which the notary must see the person sign.

Posted by: mahtso | Dec 10, 2010 11:31:35 AM

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