Just because you did, don’t.
It hurts to report on lawyer-friends, and yet they too provide lessons for us to learn. Larry Beeson is a good lawyer from a neighboring county. We have tried a few cases against each other over the nearly 35 years we have been here. Larry just got a public reprimand, and included was a strong warning from the Chief Justice that the act should have resulted in a suspension.
After seeing this, I called Larry and we discussed the ruling. The case was an older couple, blended family, and a transfer of the Power of Attorney from the elderly wife to wife’s children. Husband’s children later objected to everything and among the things in the objection was the handling of the POA. Husband signed it, wife returned it to the drafting lawyer who added his notary. He had known the couple for more than 20 years, was familiar with the signature, but did not see it signed, and did not return to have the signer acknowledge before him that the signature was his.
Later there were problems between the various family members, a disciplinary complaint filed, and this issue stood out. Beeson admitted the violation early. The 2007 incident resulted in the 2013 ruling.
A lively discussion was had on the Indiana State Bar discussion list, with a few confessions from lawyers admitting doing the same things, but most notably, a defense of the Supreme Court’s ruling was in a comment by Indianapolis lawyer Jon Pactor reminding the profession that the legal system depends on honest documents, and as officers of the court, it is critical that no document breaks down at the hands of a lawyer.
Don’t notarize documents when you don’t see the signer sign, and as a lawyer, don’t count on the warning from the CJ remaining the minority view in your case. And if you did it before, or had staff do it before, stop!
Get a Retainer or stay quiet
Harry Tun was talking to a witness in a murder case he was defending when the witness asked if she could invoke the 5th Amendment to avoid testifying. Rather than say “you need to talk to a lawyer of your choosing about that.” Tun answered that she could not invoke the 5th Amendment. Someone else in the room (M.B.) also told the witness the same information. M.B. was later charged with obstruction of justice.
Tun should not have offered legal advice to a non-client. There was a conflict of interest between his client’s position and the witness’s, and the advice was a concern for the panel. He got a public admonition from the District of Columbia Bar.
Deposition Fights – Suspension?
Lawyers should be the professionals in the room when a deposition is going on. Cliff Van Syoc forgot that, and ended up calling the opposing lawyer names such as “stupid” and “bush-league.” (Apparently DC does not allow Joe Jamail deposition tactics from Texas, as shown here) When he told his deposition witness clients to leave the room, the inquiring lawyer said that he would call the judge to supervise the deposition. Van Syoc then said that the “presiding judge is corrupt,” and told an employee to call 911 to have the New Jersey police evict the opposing lawyer.
Van Syoc did give an apology, but the court did not give him much credit since he continued to criticize the judge in his apology. The court reporter testified at the disciplinary hearing, not to Van Syoc’s advantage.
New Jersey discipline is heard by a board that makes recommendations to the Court. The DRB split on the recommendation: four for a six month suspension, one for a three-month suspension, and two for a censure. The Court will determine the final sentence.
Regarding Mr. Beeson, the assumption that a notary can only notarize a document when the person who executes the document is present before the notary, is not correct. Only the first part of IC 32-4-2-2l(a)(6)(B) requires the person be present. There is a second option for notarization that does does not require the presence of the person executing the document…it only requires that the person affirm that the signature on the document is his or her own.
(a) A notary public may not do any of the following:
(6) Acknowledge the execution of:
(A) an affidavit, unless the affiant acknowledges the truth of the statements in the affidavit; or
(B) an instrument, unless the person who executed the instrument:
(i) signs the instrument before the notary; or
(ii) affirms to the notary that the signature on the instrument is the person’s own.
As long as the person whose name appears on the document confirms that he signed the document (let’s say via an email or phone call) Beeson is free to notarize it under IC 32-4-2-2(a)(6)(B)(ii) without any legal (and hopefully ethical) violation.
The tricky parts of your analysis, if you are not physically present with the client are: 1) assuring all that the document the notary is looking at is the same document that was signed by the person claiming to have signed the document; 2) assuring all that the person on the end of the communication is also the person who signed the document, not an impostor (how well do you know the voice on the phone, or the email address of the response?); or, 3) taking risks that now at least three lawyers have been called out on.
Beeson did not call back and ask the client if that was his signature, relying on his long history and knowledge of prior signatures. When things go bad in families, complaints fly. And nobody anticipated that things would go bad.
Notaries are society’s guarantors of the legitimacy of the signature on the documents. Follow the better practices.
You’re wanting to read a “before the notary” requirement into the second option under the statute. If the legislature would have wanted that, the legislature could have included that but obviously did not for a reason…there are circumstances where the notary and the person signing the document might not be in the same room. I’m not convinced by your extremely unlikely scenarios such as someone imitating the voice of a long-time client or using a fake email to confirm a forged signature. Nonetheless, your argument is for a change in the law to always require in the presence, not an argument for finding an notary violated current law.
Of course, in interpreting the disciplinary rules the Supreme Court is free to adopt a higher standard for attorneys and always require that those signing documents be “in the presence” of attorney notaries, contrary to what the law actually says. I think it would be unwise to do that, but then I’m not on the Supreme Court.
My jurat says “Before me, AB and CD appeared… acknowledged the execution of this [instrument name]”. If your’s says that, then you need to have the signatories “before me.” If you want to walk the wild side….you may choose to do so. Good luck.
BTW, see 33-42-2-2.
On their homework, I have always admonished my children to do the BEST they can do, not the “least they can get away with.” Attorneys should also be held to at least that high a standard on THEIR “homework.” Using technicalities to excuse careless work is not what I want in an attorney.