Nonlawyer assistant’s failure to properly notarize is attorney’s responsibility, disciplinary commission advises

Attorneys are responsible for ensuring that their nonlawyer assistants properly notarize documents, a new advisory opinion from the Indiana Supreme Court Disciplinary Commission says. If not, supervising attorneys can face discipline.

The commission on Tuesday issued Opinion #1-21 “Lawyers’ Responsibility for their Nonlawyer Assistants’ Notarial Acts,” posing the question of whether a lawyer can be subject to discipline for their nonlawyer assistant’s or notary’s failure to properly notarize a document.

The short answer, it concluded, is yes.

“Too many lawyers have learned that cutting corners and failing to properly notarize documents can lead to serious repercussions. When performing notarial acts, attorneys must ensure not only their own compliance with the Indiana Code and the Indiana Rules of Professional Conduct, but also the compliance of any nonlawyer assistant/notary they oversee,” the commission advised.

Specifically, it cautioned that lawyers should pay careful attention to Rules 3.3(a)(1), 5.3(c)(1)-(2), 8.4(a), 8.4(c) and 8.4(d), in addition to the Indiana Code.

First addressing Rule 5.3, the commission pointed to the attorney’s responsibility to adequately oversee any nonlawyer professional in the notarization process to ensure the assistant’s conduct will not put the attorney at risk for violating the rules. It further reminded that Guideline 9.1 for the Use of Non-Lawyer Assistants “provides that lawyers should take reasonable measures to ensure that a non-lawyer assistant’s conduct is consistent with the lawyer’s obligations under the Rules of Professional Conduct.”

“If a nonlawyer assistant/notary fails to properly notarize a document, the supervising lawyer could be subject to multiple rule violations,” it wrote.

As to Rules 5.3(c)(1) and (2), the commission noted that a supervising lawyer could violate the rules by having knowledge but failing to take remedial action when a nonlawyer assistant habitually has notarized affidavits prior to the principal’s signature.

“Although no Indiana lawyer has been disciplined yet for a nonlawyer assistant’s notarial conduct, this issue could arise in the future, and lawyers would be wise to supervise assistants carefully with respect to notarial activities,” the opinion says.

Improper notarization could also amount to a Rule 3.3 violation, the commission wrote. For example, if a client’s signature is forged by a nonlawyer assistant/notary on a document filed with the court, the supervising lawyer could be responsible for that assistant’s misconduct.

“Discipline could be imposed whether the lawyer: instructed the nonlawyer assistant in the misconduct, directly supervised the nonlawyer assistant who improperly notarized the document, or assumed responsibility for the misconduct by virtue of the lawyer’s managerial authority,” the opinions says.

Rule 8.4(a) could also be violated if a lawyer induced a nonlawyer assistant to notarize a document without witnessing the principal’s signature.

“It is pivotal that lawyers and their nonlawyer assistants abide by the proper notarization process and refrain from making efforts to cut corners for the sake of their time and convenience,” the opinion continues.

The commission further warned that improperly notarizing a document, regardless of motive, can amount to a Rule 8.4(c) violation. It cited Matter of Beeson, 43S00-1305-DI-00306, Order (Oct. 31, 2013), where the respondent violated Rule 8.4 with the absence of dishonest or selfish motive.

However, the opinion warned that those with selfish motives, similar to Matter of Szilagyi, 969 N.E.2d 44 (Ind. 2012), can face “more severe” disciplinary action.

Finally, the opinion addressed Rule 8.4(d), adding that actions that are prejudicial to the administration of justice could include the nonlawyer assistant/notary filing pleadings containing false notarizations, false attestations or fictitious signatures.

“Additionally, supervising lawyers and lawyers in a position of managerial authority should be thorough in their instruction and supervision of nonlawyer assistants so that misconduct can be avoided altogether, or so that they retain the requisite time to mitigate the consequences,” the opinion concluded.

The Disciplinary Commission in 2018 began offering advisory ethics opinions, which are nonbinding.