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What Not To Do: The Case Of An Errant Lawyer And A Gullible Notary

shady-situation-resized.jpgAll too often, people try to get Notaries to do something they shouldn’t. When the Notary knows the person, it can be hard to say no. Such was the case of a Florida Notary who lost his commission because he fell for a bogus explanation offered by an attorney.

The case serves as a cautionary tale that offers a number of lessons for Notaries. Here are the facts:

Fooling The Notary

The case began when a Miami lawyer drafted and prepared a power of attorney that would give her control over the financial and legal affairs of an elderly neighbor who was ill and suffering from dementia, according to court documents. The attorney then went to a local nursing home to get the neighbor’s brother to sign the power of attorney.

The attorney took the signed POA to a Notary at a local shipping store whose services she had used previously, but the brother was not with her. The attorney said that he was ill and in the hospital.

The Notary objected and insisted that the brother needed to be present at the notarization. But the lawyer falsely claimed that state law had recently changed, that the brother did not need to be present and that the Notary could satisfy the new law by speaking by phone with him.

The Notary accepted the lawyer’s assertion and spoke by phone with someone who identified himself as the brother. Even though the Notary did not know the brother and had no way to verify the individual’s identity, he notarized the power of attorney.  

The lawyer almost immediately used the POA to attempt to take control of the neighbor’s affairs, but it was discovered that the brother’s niece had a power-of-attorney over the brother because he had been found to be mentally incompetent. At this point, the lawyer lied to the police and claimed the Notary had performed the notarization at the nursing home in the presence of the brother.

Police also discovered that the lawyer had borrowed substantial sums of money from the neighbor.

Hard Lessons For Notaries

The Notary, who lost his commission as result of performing an improper notarization, suffered worse consequences than the attorney. While a disciplinary complaint was filed against the lawyer in the Florida Supreme Court, her law license was neither revoked nor suspended. Instead she received a public reprimand for her misconduct.

The case also offers crucial takeaways for all Notaries:

Take extra care with high-stakes notarizations. You always should be especially careful of situations involving elderly and/or seriously ill signers; highly unusual circumstances; or documents potentially involving substantial sums of money such as powers of attorney, wills, and real estate transactions. All of these red flags were present in this case, but the Notary still allowed himself to be duped.

Never believe those who claim to have special knowledge of Notary law. Employers, supervisors or even lawyers may try to tell you what Notary law says you can do. They may be misinformed or dishonest. You’d think that attorneys would know Notary law, but there are literally hundreds of published court disciplinary cases about both the negligent and intentional misconduct of licensed attorneys in connection with notarizations.

As a Notary, it’s your responsibility to know the law better than anyone else.

You must exercise independent due diligence to confirm the law. Check the Notary Public handbook issued by your commissioning agency, or contact them directly. You also can contact the NNA Hotline for assistance in determining how to find the current law. 

Claiming that you were misinformed by a boss or attorney is not a defense against a misconduct claim. After all, you are the commissioned public official and are responsible for your official actions.

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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 Notary Public Code of Professional Responsibility and various editions of the Model Notary Act, and recently authored Professor Closen’s Notary Best Practices: Expert's Guide to Notarization of Documents.

 

4 Comments

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Frank Bagnato

16 Jul 2018

Describing that notary as "gullible" is a huge compliment. "Not very bright" is more in line with what he did. Better off he lost his commission--he shouldn't be entrusted with such responsibility. as for the attorney not losing his licence. One shouldn't ever think lawyers can police themselves.

James

16 Jul 2018

"Gullible"? You mean, "stupid". Or at least "ignorant". I've been in situations before where someone asked me to notarize something for someone else, and that "someone else" was not there. They even put a lawyer on the phone and told me to talk to his "lawyer". I said, "nope, maybe he's a lawyer but he's not MY lawyer!" and repeatedly refused until the guy got the point. As notaries, we need to protect ourselves, we can't just entrust our lives to some "lawyer" we never met and who doesn't act ethically.

Mary Susan Gesualdi

16 Jul 2018

Disgraceful that lawyer wasn't reprimanded, but it is Florida.

Arline Culbertson

17 Jul 2018

The Notary needs to remember the oath taken when becoming a Notary and always look up new laws and refresh on old laws . Seems to me that the Notary didn’t take their job seriously.

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