July 18, 2018 – We’re all busy, and notarizing documents involves a lot of time. Is it wrong to send pre-notarized documents to a client for a signature?

Question

I represent an elderly client as a surviving spouse in a probate matter.

The client lives some distance from me but near the courthouse, so to spare her the effort of having to come to my office to sign the necessary petitions, I told the client I would notarize the petitions and mail them to her for her signature. She could then mail the signed petitions back to me, and I would file them with the probate court.

One of my colleagues at the firm told he thought my plan was improper and could result in trouble for me.

Is it a violation of the disciplinary rules to mail pre-notarized documents to a client for signature?

Answer

These are the basic facts of OLR Private Reprimand 2012-22, wherein a lawyer was disciplined for violating SCR 20:8.4(c), which prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The reprimand states that, rather than mailing the petitions back to the lawyer, the client took the petitions to the registrar in probate, who then notarized the petitions after witnessing the client’s signature. While the lawyer stated he took the actions for the convenience of the client and was certain that the client would be the one signing the petitions, he also acknowledged that his actions were not appropriate under Wis. Stat. section 706.07.

This private reprimand is but one of a many examples of lawyers disciplined for notarizing documents without witnessing the signature:

• In Public Reprimand 2017-OLR-1, a lawyer was found to have violated SCR 20:8.4(c) for notarizing and back-dating a document that the client had signed at home and mailed to the lawyer.

• In Private Reprimand 2007-15, a lawyer was disciplined for violating SCR 20:8.4(c) for notarizing an affidavit of the client’s therapist that was signed outside of the lawyer’s presence.

• In Disciplinary Proceedings against Roethe,¹ a lawyer was disciplined for violating SCR 20:8.4(c) and SCR 20:5.3(a) for permitting his secretary to notarize documents that had been signed outside the presence of the secretary.

It is noteworthy that in none of these cases was it alleged that the notarized documents were false. Rather, the lawyers were disciplined for notarizing documents that were not subscribed sworn to before the lawyer (or the lawyer’s assistant).

A lawyer who notarizes a document stating that the document was signed and sworn to before the lawyer must ensure that that is actually true.²

Endnotes

¹ 2010 WI 19, 780 N.W.2d 139 (2010).

² For notarization of electronically filed documents, see Wis. Stat. section 801.18(11)(e).