“Ethox,” Paradox said, “I have a question. We had a document the client needed to sign and file today. But we could not reach the client,” Paradox explained. “Right before the deadline,” Paradox continued, “the client finally responded. We got the document signed and filed. I was wondering whether I could just sign for the client.”
“You would be surprised how often lawyers sign for a client, and sometimes get a notarization as if it is the client’s actual signature,” Ethox responded. “This can result in ethics trouble.”
“Really?” Paradox asked.
“Yes. There are two sets of problems,” Ethox responded. “The first set relates to whether the client received adequate information and chose to sign the document.
“ABA Model Rule 1.2 allocates decision-making between the lawyer and client. It directs that a lawyer should ‘abide by a client’s decisions concerning the objectives of representation’ and ‘consult with the client as to the means by which they are to be pursued.’
“Rule 1.4, meanwhile, discusses a lawyer’s obligation to communicate with a client,” Ethox continued. “This includes informing clients of any decision requiring their informed consent, consulting with clients regarding the means by which their objectives will be accomplished, and keeping clients reasonably informed regarding the status of matters.”
“I knew the client was fully informed about and happy to sign this pleading,” Paradox said.
“That is good,” Ethox confirmed, “but you may first want to get that confirmation in writing, even if just a text or email, before signing for a client.”
“Good point,” Paradox agreed. “What is the second potential ethics issue?”
“The often more dangerous ethics issue relates to misrepresenting the client’s participation in signing the document,” Ethox said. “A person is often asked to sign a document to indicate they received adequate information or approved of some action. If a lawyer signs for a client, there is a greater risk the client will later disavow the action or decision, or a court or other decision maker will conclude the client did not actually authorize or take the action.
“For this reason, a person signing another’s name to a document should make clear who is actually signing,” Ethox advised. “The person can sign the client’s name followed by a slash and the signer’s initials, or the signer can sign his or her own name and indicate the signer’s capacity—for example, as attorney for the person. Simply signing someone else’s name clearly indicating this action may constitute a violation of a lawyer’s candor obligations contained in Rules 3.3, 4.1, and 8.4(c). It may also constitute forgery.”
“What if having another person sign will not be effective?” Paradox asked.
“You must have that person or a duly authorized agent sign,” Ethox responded. “Anything else is potentially a material misrepresentation.”
“What about notarizing?” Paradox asked. “I know sometimes lawyers ask notaries to notarize a signature the lawyer witnessed but the notary did not. Or sometimes a notary will notarize when the lawyer signed the client’s name.”
“The whole point of a notarization is to confirm that a signature is valid and authentic,” Ethox responded. “A lawyer should never request—and a notary should never notarize—a document in circumstances inconsistent with the notarization.
“If the notary block says the person appeared before the notary and signed the document,” Ethox said, “that is what the notary should demand. If the person is to take an oath, the notary should confirm he or she does. A notary should carefully comply with requirements for and document any use of virtual notarization or the like.
“People can often find notaries at banks, real estate companies, and other businesses, or hire a mobile or online notary,” Ethox noted. “Lawyers should take care to follow requirements regarding notarizations. Too many lawyers get in trouble for cutting corners or making misrepresentations regarding the signing and notarization of documents.”
