That signature moment

May 2014 Eye on Ethics

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You are a lawyer with a busy real estate and bankruptcy practice. You employ two paralegals and a legal secretary to help with the huge amount of paperwork required. This practice generates many pleadings and affidavits that require your signature. You would like to authorize your paralegal to sign your name with your oversight. Will this pass muster under the ethics rules?

You have a great deal of correspondence that goes out of your office every day, and it is difficult for you to be there to personally sign each piece. What types of correspondence can you delegate to your paralegal to be sent out under the paralegal’s signature?

Asking your paralegal to sign your name on official documents is easy to do and hard to clear up later if a problem surfaces. At the time, it feels like a stress-reducing means to an agreed-upon end: getting the paperwork in order, filed and handled. But what you are also doing is potentially a violation of any applicable laws or rules of civil procedure that require your signature on particular documents. Depending on the facts, asking your employee to sign your name to a document might also be viewed as a violation of Rules 3.3 Candor Toward the Tribunal and 8.4 (c) and (d) Misconduct and 5.3 Responsibilities Regarding Nonlawyer Assistant in that you are encouraging your employee to act in a way that is not compatible with your own professional obligations. See Vermont Opinion 2001-05 (undated) (lawyer may not permit a nonlawyer assistant to sign the lawyer’s name with the assistant’s initials on a pleading to be filed in court).

Compare 2006 North Carolina Opinion 13 (2006), which appears to leave the door open for paralegals to sign pleadings, but only under very narrow circumstances:

… if exigent circumstances require the signing of a pleading in the lawyer’s absence, a lawyer may delegate this task to a paralegal or other nonlawyer staff only if 1) the signing of a lawyer’s signature by an agent of the lawyer does not violate any law, court order, local rule or rule of civil procedure, 2) the responsible lawyer has provided the appropriate level of supervision under the circumstances and 3) the signature clearly discloses that another has signed on the lawyer’s behalf [FN1].The following two rules are relevant to a lawyer’s responsibilities under the circumstances.

In Attorney Grievance Comm’n of Md. v. Geesing, 80 A.3d 718 (2013), a lawyer was suspended from practice for 90 days when it came to light that he regularly asked his nonlawyer staff to sign his name to pleadings and other documents. A similar case, Attorney Grievance Comm’n v. Dore, 73 A.3d 161 (2013) involved another situation where a lawyer was suspended from practice for 90 days after it was discovered that he authorized his employees to “robo sign” his name on thousands of affidavits in foreclosure actions. Without his knowledge, his employees also notarized the false signatures. The court found violations of Rules 3.3, 5.3 and 8.4(d) (conduct prejudicial to the administration of justice). The court did not find that there was a violation of 8.4(c) (fraud, deceit misrepresentation) because in its view the lawyer in good faith was under the false impression that applicable Maryland law permitted him to authorize his employees to sign his name on the affidavits. The lawyer voluntarily self-reported to the Maryland Bar Counsel when he realized the error of his ways.

To illustrate the devastating consequences of such a practice, the lawyer spent six weeks and up to $500,000 to re-execute and resubmit afffidavits for each affected file.

Some authorities permit lawyers to allow paralegals to use a lawyer’s signature stamp on checks to be deposited into the lawyer’s trust account, but the lawyer remains ultimately responsible for the integrity of the account. See the following digest of New York State Bar Opinion 693 (1997) as it appears in the “ABA/BNA Lawyers’ Manual on Professional Conduct”:

A lawyer may allow a paralegal employee to use the lawyer’s signature stamp on checks drawn on the lawyer’s escrow account at real estate closings if the lawyer can reliably forecast the events that will occur at the closing. The lawyer is responsible for client funds and the escrow account and that responsibility cannot be delegated.

Asking your employee to sign his or her name on firm correspondence

In general, secretaries or paralegals can send out routine nonsubstantive correspondence over their signature so long as they are properly supervised and so long as their nonlawyer status is made clear. See New Jersey Opinion 720 (2011), a digest of which appears in the “ABA/BNA Lawyers’ Manual on Professional Conduct”:

A paralegal may sign routine, nonsubstantive correspondence, including emails, to firm clients, adverse lawyers or courts if the supervising lawyer is aware of the exact nature of the correspondence. The paralegal’s identity and nonlawyer status must be set out in the correspondence along with the supervising lawyer’s name.

However, to the extent that the correspondence involves substantive areas of the law, some authorities suggest that allowing the paralegal to send out such correspondence may be considered to be aiding the unauthorized practice of law. See State Bar of Georgia Opinion 2000-2 (2000). The opinion stated:

… a lawyer is aiding a nonlawyer in the unauthorized practice of law when the lawyer allows a nonlawyer member of his or her staff to prepare and sign correspondence which threatens legal action or provides legal advice or both. Generally, a lawyer is aiding a nonlawyer in the unauthorized practice of law whenever the lawyer effectively substitutes the legal knowledge and judgment of the nonlawyer for his or her own. Regardless of the task in question, a lawyer should never place a nonlawyer in situations in which he or she is called upon to exercise what would amount to independent professional judgment for the lawyer's client …
Compare Philadelphia Opinion 90-5 (1990), an excerpt from which states:
… It is the opinion of the Committee that there is no ethical prohibition in the Rules which prevents paralegals from engaging in a variety of functions, including the drafting of demand letters as long as the attorney supervising has reviewed the work product for accuracy and completeness and the paralegal has identified his/herself as a paralegal. However, the Committee felt that while it is appropriate and helpful for your paralegal assistant to prepare a draft of a demand letter including the compilation of the facts and damages calculations used, judgements concerning the application of the law to the facts, especially in a case involving disputed liability which will be sent to an attorney as opposed to an insurance adjuster may require that you consider whether, for reasons other than ethics, it is in the best interests of your client for you to sign the letter rather than the paralegal.

For further information on professional responsibility issues as they relate to paralegals, visit the ABA Standing Committee on Paralegals website. The standing committee publishes the 2012 edition of the “Model Guidelines for the Utilization of Paralegals,” information about which is located here. See also the third edition of the “Paralegal’s Guide to Professional Responsibility,” American Bar Association (2012). Some state bar associations have also written articles on this topic. See, e.g., “Paralegal Ethics for Attorneys” 69 TXBJ 880 (2006) and “Ethical Considerations for Lawyers Employing Paralegals,” FLETH FL-CLE 20 (2006).

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A signature is said to be the act of signing one’s own name coupled with the intent of affirming or authenticating the document signed.Clearly, another person cannot possess that intent on your behalf.The individual’s signature is a hallowed thing in our system of law, and the better course of action is always to sign yourself.

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