Popular Threads - February 2020

A 1099 Lawyer and a Non-Compete Clause

I am about to hire a contract attorney to work on a matter. I want a clause that says he or she will not take any of my clients for 3-5 years after working for me. Can someone supply me with such a clause?

Were it here, such a restriction is not enforceable. Maybe it works differently in other jurisdictions.Darrell G. Stewart, Texas

In most jurisdictions such a clause would be unenforceable because we are ethically required to permit the client to make the choice of who go to with when an attorney leaves. I would strongly urge you to consult with your bar's ethics hotline or ethics counsel before trying to incorporate such a provision into an agreement with another attorney.

Kevin Grierson, Virginia

While that sounds like a straightforward noncompete, I think you’re probably running afoul of your state’s ethics rules. I don’t think you can prevent a client from going to any attorney they want … And if they just happen to want to go with the attorney that worked with them on their project before they left your firm, I think you are SOL.

Peter Clark, Massachusetts

Would a non-solicitation agreement with the contract attorney work?

John Varde, Illinois

Highly doubtful that clause is enforceable since the legal system leans heavily on it is the client's choice on which lawyer to hire.

I would lean more towards the other attorney agrees not to actively solicit or use your client database to solicit versus saying they cannot take any of your clients.

Erin M. Schmidt, Ohio

I think you got a second problem; not only can client choose who they want but most states have bar rules to the effect of a lawyer will not enter into an agreement restricting who he can work for or what he can do.

 See, for instance:

 https://www.floridabar.org/etopinions/etopinion-93-4/

 And rule 4-5.6

 Here's ABA model rules but most states have similar one

 Rule 5.6: Restrictions on Rights to Practice

Share this:

[https://www.facebook.com/sharer/sharer.php?u=https%3A%2F%2Fwww.americanbar.org%2Fgroups%2Fprofessional_responsibility%2Fpublications%2Fmodel_rules_of_professional_conduct%2Frule_5_6_restrictions_on_rights_to_practice%2F]

[https://twitter.com/home?status=Rule%205.6%3A%20Restrictions%20on%20Rights%20to%20Practice%20-%20https%3A%2F%2Fwww.americanbar.org%2Fgroups%2Fprofessional_responsibility%2Fpublications%2Fmodel_rules_of_professional_conduct%2Frule_5_6_restrictions_on_rights_to_practice%2F]

Law Firms And Associations

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.

Ronald A Jones, Florida

I agree with what Erin said. It might be permissible to have a clause prohibiting solicitation of clients as long as the clause did not bar the attorney from accepting work from clients who want to retain that attorney on their own initiative.

On the other hand, trying to enforce a breach could be problematic. For example, you might need the client to testify regarding who solicited who. If the client states that the client was the initiator, you could end up facing a bar complaint.

The better approach would be to hire an attorney who understands that it is not appropriate to steal clients. I think this would be an implicit understanding for attorneys who do a lot of contract work or who accept a lot of referrals.

Bert Krages, Oregon

I have watched the thread here. Couldn't you put a no-solicitation clause into the agreement prohibiting the contract attorney from soliciting your clients. The clients are free to reach out to him, but he should not be free to poach your clients.

Kenneth A. Sprang, Pennsylvania

Also, 3-5 years is overbroad and will probably be unenforceable. I recommend not longer than 2 years -- unless the rules in CT are wildly different from GA.

Sheri Oluyemi

In CA, a departing attorney from a firm may announce that he has left and may be contacted at his new address.

In CA, an attorney cannot "solicit" clients, non-compete or not. It is against our Rules of Professional Conduct.

I don't believe that in CA the hiring attorney could find a way to restrict the former employee, from announcing to clients of the hiring attorney that he has left and may be contacted at his new address.

But as to a contractor, if the hiring attorney and contracting attorney have a valid agreement that the contracting attorney will not disclose to the client that the contracting attorney is performing services for the hiring attorney that relate to the client [maybe such an agreement might ethical, depending upon the situation, and depending upon the billing arrangements] then, maybe a provision that prohibits the contracting attorney from contacting the hiring attorney's clients might be viable.

Just musing here.

Roger Rosen, California

I don't think so. You are talking about 2 separate rules. One rule says client is free to choose their attorney; that rule would allow non solicitation clause.

But Rule 5.6 prohibits an attorney from entering into an agreement restricting their right to practice.

See, for instance, this opinion by DC bar on facts that are similar to what is proposed.

 https://www.dcbar.org/bar-resources/legal-ethics/opinions/opinion291.cfm

Ronald A Jones

I do not read that case to be as pertinent to these facts or that it bans restricting the lawyer from active solicitation or using client lists once employment is finished. The case cited prevented the lawyer from accepting employment with the law firm they were temping in or any of the law firms clients for one year. And it banned the lawyer from actively applying to jobs with those folks.

That is not the same thing as saying a temp lawyer cannot actively solicit clients of a firm or that a lawyer cannot use, what is essential, that firms IP to obtain clients. Those are different matters.

In some ways, other rules may apply here as well, including the footnote in this case that the client should be informed that the lawyer is temporary but also, in some states, you may look at the rules on fee splitting and consider of counsel status versus temp status.

Erin M. Schmidt

The case is not the rule. The case discusses the rule. I realize the facts in the case are not identical to this; however the rule itself is broader than the case.

This is the rule:

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.

The original question was:

> I am about to hire a contract attorney to work on a matter. I want a 

> clause that says he or she will not take any of my clients for 3-5 

> years after working for me. Can someone supply me with such a clause?

And then the follow up question was

couldn't you put a no-solicitation clause

> into the agreement prohibiting the contract attorney from soliciting 

> your clients. The clients are free to reach out to him, but he should 

> not be free to poach your clients.

And, under rule 5.6, the answer to both of those questions would seem to be "no". The rule is mandatory; "shall not". It applies to BOTH the attorney who is being asked to restrict their practice AND the attorney who is asking for the restriction (shall not particiapte in OFFERING or MAKING: It applies to both attorneys). It applies to what happens after termination of the employment relationship; of course if the relationship is ongoing they can restrict employmnet, if I'm working for someone I can't run my own side practice taking clients.

But, after the employment relationship ends, you cannot "restricts the right of a lawyer to practice after termination of the relationship" .

Non competiion agreement is a restriction on right to practice; even a 'non solicitation' agreement is a restriction on the right to practice. Both violate the rule.

If you are contemplating entering this sort of deal I would suggest calling your bar office and running it past them.

True story; Back when I was first admitted but hadn't opened my practice I considered working for legal temp agency; I looked into it and they had a restrition to the effect that I would not be hired by where I was working unless the hiring firm paid a finders fee; this is actually pretty standard language in temp agency work. But it set off red flags; I called bar and asked and they said no, it was a violation of the rules. They were also VERY interested in knowing what law firm I would have been working at; because they seemed to think the law firm that was using these temps was in violation of the rules by agreeing not to hire without paying a finders fee; not that they can't pay a finders fee; that would be fine for a headhunter firm, but because they knew it was a restriction on the right to practice by the hired attorney. I told them I didn't know who it was as I didn't sign on. But the point is, the rule is clearly designed to protect the "newbie' attorney. 

Ronald A Jones

Hence why the limitation is on the temp lawyers' use of the law firms intellectual property, which is the client list.

Not being able to take, access, or use my intellectual property when you are no longer working at my firm is not a limitation on your right to practice

Erin M. Schmidt

Backup Recommendations [Tech] 

For a Millennial (albeit elder), I am a curmudgeon dinosaur and prefer to do my backups on wired physical media that I can hold in my hand and verify. I do my files weekly on an encrypted thumb drive and had been until recently doing daily full drive backups on a Western Digital MyBook encrypted drive. The WD product has stopped making backups and after much effort and troubleshooting, appears to have just stopped working as soon as the warranty expired.

Rather than waste more time on that, I am going to buy a new physical backup medium. Until now, I'd had good luck with WD but am now definitely willing to entertain other options, including options that include both a wired onsite backup and a cloud backup. Any recommendations?

I own a half-dozen external hard drives. They have come down in price and size. I do a weekly backup and keep them off premises. This is works fine for me. In addition, certain programs are backed up nightly by one of my staff members, typically to another computer on the network. For me the main thing to do is to make sure you're doing a ghost copy of your drive. I've had to reinstall two or three times from the ghost copy after a drive has failed. It's a hassle but it works. Some would suggest you also have a copy in the cloud, but I've never felt comfortable doing that

Jim Winiarski

My pitch would be to get several items, whether traditional hard drive, SSD, or others and rotate them. If you have at least 3, and rotate, you are better off for life's travails. Keep at least one offsite (carry it home with you, for example).

Unless you are only backing up a small amount of data, restoring it online takes a long time. Some services will burn and overnight a hard drive to you, but I still look at online backup as a tertiary approach. 

Any drive can fail, regardless of manufacturer. All of the drives will fail, at some point. If you buy three alike, then one has a problem, buy three more. The cost of the drives is negligible compared to the costs of the data generally.

If you want to be a nerd, there are studies on particular hard drives and the longevity of same. SSD drives appear to last a long time, if a good brand. Flash drives can be a bit hit or miss, so I have never relied on them myself. 

If you use an online backup, or any other approach, you need to practice recovery. Automated backups can be problematic, because many people don't check them regularly and are unaware of problems until a failure occurs.

All of the foregoing is just my view. Feel free to express your own.

Darrell G. Stewart, Texas

Following up from Darrell’s points, I don’t trust third party servers - there’s just too much exposure to hacks and I don’t want to fuss with the latest patches and firewalls. I have two external hard drives (G Drive) that back up my entire computer system (all software, apps, operating system, as well as docs, music, photos) and I rotate them in and out of my safe deposit box regularly, at the least once a month. 

When the hard drive of my main computer died suddenly, I had no idea if the backup drive would work because I had neglected to test it. Happily, in a few hours after buying a new computer, I had everything from my former computer installed and up and running. Did not lose a single bit. 

Every time I travel, I load my entire legal file onto my laptop. I am vigilant about theft but of course that’s a weak link. Other times I load just the files I need on the laptop or on a thumb drive that I keep as secure as possible. 

Flann Lippincott,New Jersey

Just to piggy back on this thread:

What do you all recommend for Backup, and Ghost or Mirror Drive software?

I've got several portable hard drives, but I'm not sure how to actually set up the backup system.

Michael D. Caccavo, Vermont

I have a Macintosh.

I have Time Machine backing up my entire hard drive to a local backup hard drive, and I have Backblaze (for a cloud backup).

Henry Park, New York

I use Acronis for my ghost copies. You have the option of making a ghost copy. As for the hard drives, I was using Western Digital passports that are very small in size. Recently I've switched to a Toshiba simply on a recommendation from someone else. There was some formatting necessary with the Western Digital passports but the Toshibas are plug-and-play. Simply tell the software to copy onto the hard drive. So, in the event of a hard drive failure, you're really copying the operating system, programs, and all data back into the new hard drive. Newer versions of the software claim it could even be put on a new computer, but I haven't tried that. 

Jim Winiarski

Definition of Evidentiary Hearing

I have tried, without success, to find authority, from any source, for the proposition that an "evidentiary hearing" requires live testimony from witnesses [unless waived].

If you have any such authority or can point me in the right direction, I would appreciate it.

Thank you.

What a trippy question. Since some evidence is self-authenticating, you'd think it would be possible by definition to have an evidentiary hearing without witnesses.

Michael Kaczynski 

I cannot think of any source, but the point of an evidentiary hearing is to take evidence. That would be done through submitting certain documents that would not be hearsay and through witnesses. How else does the court take evidence?

The alternative is what we refer to here as by representation. The attorney represents what the evidence is. Here, they are done a lot with contempt and restraining order hearings. All too often the judge presumes the hearing is waived and have the attorneys proceed.Phil A. Taylor, Massachusetts

I get Roger's question, though I don't have an answer for him. Something like a summary judgment motion is based on evidence, but (typically) it isn't an evidentiary hearing.

James S. Tyre, California

Hearings on a MSJ are not evidentiary as you can use an affidavit, however, the evidence contained in the affidavit must be admissible at trial and there cannot be "much" conflicting evidence.

Phil A. Taylor

From a Google search:

An evidentiary hearing is a formal examination of charges by the receiving of testimony from interested persons, irrespective of whether oaths are administered, and receiving evidence in support or in defense of specific charges which may have been made.

And then there is

40 CFR § 78.14 Evidentiary hearing procedure.

(a) If a request for an evidentiary hearing is granted, the Presiding Officer will conduct a fair and impartial hearing on the record, take action to avoid unnecessary delay in the disposition of the proceedings, and maintain order. For these purposes, the Presiding Officer may:

(1) Administer oaths and affirmations.

(2) Regulate the course of the hearings and prehearing conferences and govern the conduct of participants.

(3) Examine witnesses.

(4) Identify and refer issues for interlocutory decision under § 78.19<https://www.law.cornell.edu/cfr/text/40/78.19> of this part.

(5) Rule on, admit, exclude, or limit evidence.

(6) Establish the time for filing motions, testimony and other written evidence, and briefs and making other filings.

(7) Rule on motions and other pending procedural matters, including but not limited to motions for summary disposition in accordance with § 78.15 <https://www.law.cornell.edu/cfr/text/40/78.15> of this part.

(8) Order that the hearing be conducted in stages whenever the number of parties is large or the issues are numerous and complex.

(9) Allow direct and cross-examination of witnesses only to the extent the Presiding Officer determines that such direct and cross-examination may be necessary to resolve disputed issues of material fact; provided that no direct or cross-examination shall be allowed on questions of law or policy or regarding matters that are not subject to challenge in the evidentiary hearing.

(10) Limit public access to the hearing where necessary to protect confidential business information. The Presiding Officer will provide written notice of the hearing to the parties, and where the hearing will be open to the public, notice in the Federal Register no later than 15 days (or other shorter, reasonable period established by the Presiding Officer) prior to commencement of the hearings.

(11) Take any other action not inconsistent with the provisions of this part for the maintenance of order at the hearing and for the expeditious, fair and impartial conduct of the proceeding.

(b) All direct and rebuttal testimony at an evidentiary hearing shall be filed in written form, unless, upon motion and good cause shown, the Presiding Officer, in his or her discretion, determines that oral presentation of such evidence on any particular factual issue will materially assist in the efficient resolution of the issue.

(c)

(1) The Presiding Officer will admit all evidence that is not irrelevant, immaterial, unduly repetitious, or otherwise unreliable or of little probative value. Evidence relating to settlement that would be excluded in the Federal courts under the Federal Rules of Evidence shall not be admissible.

(2) Whenever any evidence or testimony is excluded by the Presiding Officer as inadmissible, all such evidence will remain a part of the record as an offer of proof. The party seeking the admission of oral testimony may make an offer of proof by means of a brief statement on the record describing the testimony excluded.

(3) When two or more parties have substantially similar interests and positions, the Presiding Officer may limit the number of attorneys or authorized representatives who will be permitted to examine witnesses and to make and argue motions and objections on behalf of those parties.

(4) Rulings of the Presiding Officer on the admissibility of evidence or testimony, the propriety of direct and cross-examination, and other procedural matters will appear in the record of the hearing and control further proceedings unless reversed by the Presiding Officer or as a result of an interlocutory appeal taken under § 78.19<https://www.law.cornell.edu/cfr/text/40/78.19> of this part.

(5) All objections shall be made promptly or be deemed waived; provided that parties shall be presumed to have taken exception to an adverse ruling. No objection shall be deemed waived by further participation in the hearing.

Walter D. James III, Texas

Few thoughts:

The word "hearing," when couple with "evidentiary," implies taking in evidence live.

To take in evidence (in any form), you need materially disputed facts.

Most local rules of courts require materially disputed facts before the court would agree to take in evidence or further evidence from the parties.

Val Loumber, California

OK, so I'm being compelled (by myself) to tell a relevant war story. (I've told it here before, but probably not in the last decade).

One major independent oil company sued another major indie and a Big Oil company for antitrust and various other alleged sins. All three had their own regular counsel. But the complaint alleged (frivolously) that the reason why Big Oil made a deal with Defendant indie without even giving plaintiff indie a chance to bid was that the officers in charge of the deal for Big Oil were bribed. So they needed independent counsel, and I was retained to represent one of the officers.

It was years before the litigation ever got within a country mile of the merits. That's because defendant indie made a motion to disqualify counsel for plaintiff indie, on the basis that counsel had represented defendant in the past (not disputed) and that the nature of the representations created a conflict (disputed).

The federal district judge considered all of the evidence in support of and against the motion, then denied the motion to disqualify. Not satisfied, defendant indie took it up to the 9th Circuit. It reversed and remanded, finding that the district judge hadn't given sufficient consideration to certain factors, and ordering the judge to hold an (wait for it) evidentiary hearing.

The district judge had an extremely well-deserved reputation for being a major curmudgeon. He did what only a district judge can do: he ordered the evidentiary hearing to begin at 5 pm on Friday of a three-day holiday weekend. I might not have cared, I had no dog in that hunt. But he ordered further that all counsel of record be present.

So, I go to the hearing, planning on doing nothing other than registering my appearance. It drags on, and on, and on. And on. Around 8 pm, the star witness, the senior partner of plaintiff's law firm, finally takes the stand. He's a force of nature, and the unenviable task of doing his direct falls to a junior partner in the firm. One might think that those two would have gone over the questions and answers in great detail. But, whatever happened, senior partner was getting frustrated, and repeatedly answered the questions he had wanted asked instead of the ones actually asked.

No doubt in a moment of temporary insanity, fueled by the fact that I didn't have a chance to grab a bite to eat before, I stood up.

"Your Honor, the witness is leading the attorney."

I said that the judge was a major curmudgeon, didn't I? He gave me the Stare of Death, I knew my life was forfeit. But then, after what seemed like several eternities,

"Mr. Tyre, did you mean to object on the basis that the answers of the witness are not responsive to the questions?"

"Yes, Your Honor, that's EXACTLY what I meant."

"OK then, objection sustained."

I sat down quickly uttered nary a peep for the rest of the long hearing.

And that, my friends, is an evidentiary hearing.

James S. Tyre

Roger, perhaps you could analogize to Family Code section 217(a), which provides, " At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

And you should definitely read the discussion in (Elkins v. Superior Court (2007) 41 Cal.4th 1337, about the differences between declarations and live testimony to help you come up with a definition. FC 217 was enacted in response to Elkins, but the principles the Supreme Court stated in Elkins continue to be relevant.

Wendy C. Lascher, California

I think your phrasing of the objection was perfect. That judge must have really upset many court staff with the scheduling as well.

Phil A. Taylor

How to Sign a Will if Testator Has No Ability to Hold a Pen

Hello Firm!

42 years as an attorney, and I still haven't seen everything! :-)

Testator is in a nursing home. She has no motor skills, so she can't hold a pen in her hands, feet, or mouth to sign a the document. She IS lucid and able to understand what is happening around her. She is able to read and can communicate by indicating her preferences by learning toward "Yes"and "No" cards (and other cards with appropriate words on them).

I know the Florida statute provides

1. The testator must sign the will at the end; or 2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

But what is the proper manner. Should the "other person" guide the testator's hand to sign the document, or simply sign the Testator's name to the document?

And should I indicate in the language of the Will that the "will was subscribed by JOHN DOE in the testator's presence and by the testator's direction?

Anything different for the Power of Attorney, Health Care Surrogate, Living Will and Pre-Need Guardian Designation?

BTW....I *will* be making a video of the signing to have visual evidence that she was lucid and aware of what was happening, and to show her assent and direction to the other person signing the will (and other estate planning documents) on her behalf.

I will look forward to your input on this matter.

This may be covered under the rules for notarizing a document that cannot be physically signed by the person. You might start there. In Texas, a book comes with the notary commission that covers how to notarize all sorts of things. There is a section in the book on how to notarize a person's signature who cannot sign. I can't recall why I was looking at that section, but I didn't have to use it after all--it turned out the person could sign. Maybe FL also has an instructional book sent to all notaries.

Carla Peevey

I have no opinion on the amanuensis as I'm not in FL, but in my opinion you should double check the statute and see if it allows a "mark." Many people can make a "mark" even if it is not legibly their name and even if you have to tape a pen to their hand to help.

Erik Hammarlund, Massachusetts

Good of you to ask before proceeding. Of course, the answer is Sunshine state specific. Here, being unable to physically sign is not an issue. I had a client who could not write or speak. We communicated by her squeezing my assistant's hand. I read the entirety of each document to her. She even stopped me at one point to clarify something for her. We require two witnesses. I had a third person present to act for her. Here is the language I used in my self-proving affidavit and notary block.

We, CLIENT, the Testatrix, _________________________________ and _________________________________, the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the Testatrix directed another to sign and execute the instrument as her last Will after it was read aloud to her in its entirety, that it was executed as her free and voluntary act for the purposes therein expressed; and that each of the witnesses in the presence and hearing of the Testatrix, signed the Will as witness and that to the best of our knowledge the Testatrix was at that time eighteen (18) or more years of age, of sound mind and under no constraint or undue influence.

Subscribed, sworn, and acknowledged before me by CLIENT, the Testatrix, who directed that __________________________ sign on her behalf, and subscribed and sworn before me by _________________________________ and _________________________________ , witnesses, this xx day of xx, 20xx.

Notary Public

Now on that videotaping. Remember that everything will be recorded. I do not record. Sophisticated clients who fully understand documents and planning will hiccup when asked about documents they are about to sign.

Thus, I do not record.

Deb Matthews, Virginia

From the post it looks like Florida has a statute similar to the Texas one at Texas Estates Code 251.051, which, inter alia, permits someone to sign for the testator if testator is present and is under testator's direction and it is attested to by two or more credible witnesses who are at least age 14. From the post it appears Florida is the similar except looks like the witness age must be 18.

Nothing saying she cannot use more than two witnesses. My guess is the facility staffers are reluctant to serve as witnesses and your state law may discourage that. If I were handling this I would try for more than two witnesses.

From reading the Florida post I think it means they do as stated by Deborah Matthews, debomatt@GMAIL.COM.

Does this testator know of people who may challenge or contest her will? Counsel may want to document discussion about this, or may not want to .document . . . .

Rob Robertson

Yes. Just like you thought it should go.

Robert "Robby" W. Hughes, Jr., Georgia

Amanuensis. Good one. Had to look that up.

Amy A. Breyer, California

I'm addressing a couple of points raised by others in response.

First, Florida does allow signature by mark; provided it was intended to be a signature on a will; so if she can make a mark, even with her normally non writing hand, that is sufficient.

In re Estate of Williams, 182 So. 2d 10 (Fla. 1965)

Which may shed a bit of light on your questions of having someone else sign it:

We have not ignored respondent's contention that public policy, which is to protect testators and their heirs from fraud, would be best served by refusing to accept as properly executed under the statute a will signed by the testator with only [**6] his mark. In support of this contention respondents argue that it is impossible for handwriting experts to determine the authenticity of a mark as might be done with a handwritten alphabetical name. They also argue that if a testator cannot write his name and is not permitted to sign by mark, he will be forced to have another person subscribe his name for him. This they say will be added protection because a person requested to sign the name of another will not be likely to do so without first determining the identity of the purported testator.

It is true that even a handwriting expert would have difficulty determining who made a mark in the absence of distinguishing [*13] characteristics by which certain comparisons can reasonably be made. If proof of the execution of a will rested entirely upon the identification of the mark or signature of the testator the respondents' argument would be difficult to overcome. But such is not the case. The greatest protection against fraud, and the greatest aid in proof that a testator did in any manner sign his will as his, is furnished by the statutory requirement that it be done in the presence of, or acknowledged in the presence [**7] of, at least two attesting witnesses.

Furthermore, the alternative method for the execution of a will, by which some other person may subscribe the testator's name, really seems to offer even less protection than the testator's mark.

This is so because the statute does not require the person signing for the testator to be identified in the document. True, a careful lawyer supervising the execution of a will would see that such person's identity was reflected in some manner at the end of the will. Nevertheless, the statute does not require it nor does it prescribe how it shall be made known that the testator's name was subscribed by another or how such person is to be identified in the document.

But, c.f. Bitetzakis v. Bitetzakis, 264 So. 3d 297 (Fla. 2d DCA 2019) which, in a nutshell, held that where TX started to sign his name; signed his first name and then stopped signing, did not sign his name for the purposes of the statute but the court concedes it was very specific facts. 

Now, as to your question, IF she can't sign her name at all nor make a mark, then see 117.05(14)

(14) A notary public must make reasonable accommodations to provide notarial services to persons with disabilities.

(a) A notary public may notarize the signature of a person who is blind after the notary public has read the entire instrument to that person.

(b) A notary public may notarize the signature of a person who signs with a mark if:

1. The document signing is witnessed by two disinterested persons; 2. The notary public prints the person’s first name at the beginning of the designated signature line and the person’s last name at the end of the designated signature line; and 3. The notary public prints the words “his (or her) mark” below the person’s signature mark.

(c) The following notarial certificates are sufficient for the purpose of notarizing for a person who signs with a mark:

1. For an oath or affirmation:

 (First Name)   (Last Name) 

His (or Her) Mark 

STATE OF FLORIDA

COUNTY OF 

Sworn to and subscribed before me by means of ☐ physical presence or ☐ online notarization, this day of , (year) , by (name of person making statement) , who signed with a mark in the presence of these witnesses:

(Signature of Notary Public - State of Florida) 

(Print, Type, or Stamp Commissioned Name of Notary Public) 

Personally Known OR Produced Identification 

Type of Identification Produced 

2. For an acknowledgment in an individual capacity:

 (First Name)   (Last Name) 

 His (or Her) Mark 

STATE OF FLORIDA

COUNTY OF 

The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this day of , (year) , by (name of person acknowledging) , who signed with a mark in the presence of these witnesses:

 (Signature of Notary Public - State of Florida) 

 (Print, Type, or Stamp Commissioned Name of Notary Public) 

Personally Known OR Produced Identification 

Type of Identification Produced 

(d) A notary public may sign the name of a person whose signature is to be notarized when that person is physically unable to sign or make a signature mark on a document if:

1. The person with a disability directs the notary public to sign in his or her presence by verbal, written, or other means; 2. The document signing is witnessed by two disinterested persons; and 3. The notary public writes below the signature the following statement: “Signature affixed by notary, pursuant to s. 117.05(14), Florida Statutes,” and states the circumstances and the means by which the notary public was directed to sign the notarial certificate.

The notary public must maintain the proof of direction and authorization to sign on behalf of the person with a disability for 10 years from the date of the notarial act.

(e) The following notarial certificates are sufficient for the purpose of notarizing for a person with a disability who directs the notary public to sign his or her name:

1. For an oath or affirmation:

STATE OF FLORIDA 

COUNTY OF 

Sworn to (or affirmed) before me by means of ☐ physical presence or ☐ online notarization, this day of , (year) , by (name of person making statement) , and subscribed by (name of notary) at the direction of (name of person making statement) by (written, verbal, or other means) , and in the presence of these witnesses:

 (Signature of Notary Public - State of Florida) (Print, Type, or Stamp Commissioned Name of Notary Public) 

Personally Known OR Produced Identification 

Type of Identification Produced 

2. For an acknowledgment in an individual capacity:

STATE OF FLORIDA

COUNTY OF 

The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this day of , (year) , by (name of person acknowledging) and subscribed by (name of notary) at the direction of (name of person acknowledging) , and in the presence of these witnesses:

(Signature of Notary Public - State of Florida) 

(Print, Type, or Stamp Commissioned Name of Notary Public) Personally Known OR Produced Identification 

Type of Identification Produced 

So, the Notary is the one who signs the name. 

Ronald A Jones, Florida

Interesting Potential Scam re Mexican Company as Purchaser.. Thoughts?

Client has a timeshare in Colorado, and has received an offer from a broker to purchase it for around $60,000, supposedly on behalf of a Mexican company. It seemed fairly legit, until a telephone call with the broker (which I am still currently on). The money is allegedly escrowed with a bank, and I was frankly rather confused about why this was relevant in any way. I kept saying to the broker: "when my client receives the funds, he will provide the documents." The broker claimed that, (1) a 10% tax applies under Mexican tax law, and (2) under NAFTA, paying that tax exempted my client from paying capital gains tax on the sale in the U.S. Finally, after going through various tax documents on the telephone, came the "aha" moment: my client is supposed to pay the $6,000 tax up front and verify that with the escrow bank, who will only *then* release the funds. Supposedly the tax cannot be withheld from the payment because my client is not a Mexican resident.

Payment can be made either electronically, or by flying down to Mexico City and having the closing there, which the broker claimed "60%" of people do.

Red flashing lights are, of course, appearing before my eyes, but I am wondering if I am just naive, and this is the way that international transactions customarily progress. First, why in the world would someone want to scam money to be paid the Mexican government? (My theory: they send a URL to a fake website, which client pays into.) This also seems like a *lot* of trouble to try to scam $6,000, but what do I know.

I still have a hard time seeing how the Mexican government would have any jurisdiction whatsoever to tax an American citizen selling a real estate interest in America, even to a Mexican citizen. Sure, perhaps there is a tax on those funds leaving Mexico; but why in the world would my client, the seller, have any liability for that?

Other alarm bells: "you can ask for a certified check, but that will take a couple of months to clear internationally."

The whole thing to me stinks to high heaven; but again, perhaps since I do not have a degree in International Law (as the broker queried) I just do not understand how these transactions work.

Has anyone seen this sort of thing?

No offense intended, but a timeshare worth $60,000? That automatically makes my antenna come up, since so many timeshares have a resale value close to zero after taking into account the maintenance fees, taxes, etc. Unless you or the client has some sort of independent evidence that the timeshare has that sort of value, that certainly sounds like a scam of the “to good to be true” variety. 

If the client thinks there really is a value of $60,000 in this timeshare, then have you considered speaking to the bank where this escrow is allegedly open? I’m not quite sure how only one party can establish an escrow that is binding on another unrelated party. I would describe that more as “buyer has cash in the bank”—which may or may not be true, but it is more accurate than describing it as an “escrow.” 

Brian H. Cole, California

The facts fit a well-established scam. I have had clients who ran into it before. Last I knew there was a company in Alabama with a web presence that was propagating it.

Darrell G. Stewart, Texas

I practice real estate in Miami, I've seen a lot of these scams, but I haven't seen this one. Thank you for sharing.

Bob Arnold, Florida

Incidentally, I did a Google search for “Colorado timeshare resale. The first result that came up was for “My Resort Network.” They have a page entitled “Scam Alert” (https://www.myresortnetwork.com/scamalert.html). 

The first entry on that page says "WHEN SELLING YOUR TIMESHARE: NEVER wire or send any funds directly to the Buyer or the “Buyer’s Agent.” … There is NO legitimate reason to send any funds to the buyer or some other party when selling your timeshare.” 

Take that for what it’s worth.

Brian H. Cole

Agreed. I found this, which sounds pretty familiar:

https://www.azcentral.com/story/money/business/consumers/2019/02/25/scammers-promising-purchase-mans-timeshare-mexico-dupe-him-out-24-000/2952459002/

The bank alleged to be the escrow agent is Santander, and we have a letter supposedly from them about the amount. The branch is in Mexico City, and the number given is 011-52-551-163-8682. Looks to me like Mexican phone numbers are commonly listed as 52-XXXX-XXXX, so that's another interesting point. I put a redacted copy of the escrow letter up here: http://koeneckelaw.com/temp/Escrow_Letter_Redacted.pdf . I figure if I were to call the number on the letter, I would in any event get someone claiming to be the escrow officer.

I'm about 99% sure it's a scam, but do still wonder how they could profit from funds supposedly paid in taxes to the Mexican government. 

The broker himself is in Oregon. There are a lot of squirrelly things about this proposed transaction; heck, just talking to the broker at all made me very suspicious. But, as I said, perhaps there are factors I just am unfamiliar with.

Mike Koenecke, Texas

Now that I think about it a bit more, it is also suspicious that the number the broker gave provides a busy signal. This may actually be scammers in Mexico, spoofing an Oregon number, having created a reasonably convincing Web site. I figure the next step will be that the $6,000 needs to be paid to the "escrowing" bank, which very well may be in Mexico City, but the account will be the scammer's.

Only reason I stuck with this for so long: up until today, the contracts and the representations were "we will pay the money, then you provide the documents." I was thinking more along the lines of a forged certified check, where it would be deposited then Client told to wire the broker's commission. Two weeks later, the check is found to be fraudulent and the account is charged back. When they said "oh, no, the funds will be wired into your account, and many of our clients set up a separate account for that purpose," it at least sounded somewhat plausible.

The Web page is http://millennia-propertymanagement.com , supposedly at

920 Southwest 6th Avenue, Suite 520, Portland. I checked the building:

https://www.commercialcafe.com/commercial-property/us/or/portland/public-service-building/

The fifth floor appears to be unleased.

Mike Koenecke

The fact the purchase price is $60k raised red flags for me. It is near impossible to sell timeshares to third parties for more than a pittance.

Seriously, look up what other timeshares at the resort in question are going for. I would be shocked if they approached $60k.

Lesley Hoenig, Michigan

Yeah, that caught my eye right away. Highly unlikely the "broker" is in Oregon as pretty much anything is spoof-able.

Amy A. Breyer, California

Did you by any chance to an image search on the pictures in their Web site? The one of “our people” is a ShutterStock photo. You can find it here: https://www.shutterstock.com/image-photo/group-business-people-team-isolated-over-133234424 <https://www.shutterstock.com/image-photo/group-business-people-team-isolated-over-133234424>

Brian H. Cole

1. 52 is the country code for Mexico. The numbers after that are the lada (area code) and number. 011 is what you would dial (yeah, like who dials today?) when you are making a call to Mexico from the U.S.

2. The area code for CDMX is 55, followed by 4 digits, followed by another 4 digits. As in 52.55.3000.4040 or +52 55 5533 0040

2. The address is not correctly written.

3. The date is not correctly written. In Mexico, it would appear as "18 February 2020."

4. The bank name is not spelled out as Banco Santander (México), S.A., or some variant.

5. The language in the letter is just plain odd. 

In Mexico, if you want to verify that a physician, lawyer, or even a special ed teacher is what they say they are, you can check to see if they've received a cedula at https://www.buholegal.com/consultasep/

jennifer j. rose, Mexico