Guest Column: Notarial Misconduct By Attorneys
By Michael Closen
As a Notary and an attorney, I am sorry to report that lawyers as a group are among the worst violators of Notary laws and sound notarial practices. There have been hundreds of reported cases of lawyer discipline for notarial misconduct, but this is just the tip of the iceberg for lawyer wrongdoing. This conclusion is particularly disturbing because lawyers are bound not only by the Notary laws that govern all individuals, but also by their special code of ethics to obey Notary statutes and to serve their clients and to protect client interests. Yet almost always when attorneys violate Notary laws, they do so while representing clients, and thereby breach their professional ethics and jeopardize their clients’ legal interests.
Even though notarization is important to countless legal matters, lawyers receive no training in Notary law while in law school. No state tests Notary law on bar examinations. Nevertheless many lawyers, knowing almost nothing about Notary law and sound notarial practice and without studying their state Notary laws, become Notaries themselves and/or supervise and direct paralegals, law clerks and legal assistants who are Notaries.
Sometimes, attorneys involve their own clients in misconduct by asking their cooperation to carry out the notarial misdeeds – such as seeking client consent to sign and notarize clients’ names when the clients are not present for notarizations or to backdate documents. More often, attorneys order or ask their subordinates (paralegals, law clerks, legal assistants, and junior lawyers) to engage in Notary law violations – such as forging signatures to be notarized, notarizing for absent signers, backdating documents, and so on.
Although the legal community is aware of the problem of widespread and serious ethical and statutory violations by attorneys, most attorneys, judges, bar associations and state officials continue to ignore it. There are resources out there to help remedy this. The NNA published an extensive legal casebook appropriate for teaching Notary law to law students and lawyers, and has offered seminars for lawyers and paralegals on Notary law and practice at its annual Conference. Efforts to educate attorneys about Notary laws and practice and to more rigorously enforce notarial laws should continue, because this matter is too serious to be ignored.
Michael Closen is Professor Emeritus at The John Marshall Law School in Chicago, Illinois. A respected consultant on model Notary statutes and legislation, Closen served on the drafting committees for the 1998 Notary Public Code of Professional Responsibility, the 2002 Model Notary Act, and the 2010 Model Notary Act.