06
Mar
12

Attorney Receives Public Reprimand Arising Out of Notary Duties

"King George won't accept this Declaration unless it is notarized? What is he going to do? Go to war?"

The Supreme Court accepted a voluntary petition for a public reprimand of an attorney with an interesting fact pattern.

The attorney was preparing an irrevocable trust for a client’s father who was in a hospital outside the state of Georgia.  The client went to the hospital and obtained the signature of the father, but it was not witnessed or notarized.  Time was of the essence, and the client could not return to the hospital with the document in a timely manner.  The attorney called the father on the phone with two witnesses and asked the father if he signed the irrevocable trust.  The father confirmed that he signed the document.  The attorney and the witnesses signed the document, and the attorney notarized the document.

The attorney petitioned for the discipline in question.  He acknowledged the wrongdoing of the conduct, and noted that no one was defrauded nor was there any effort to defraud anyone.

The statute that primarily defines the duties of a notary is as follows:

§ 45-17-8.  Powers and duties generally 

   (a) Notaries public shall have authority to:

   (1) Witness or attest signature or execution of deeds and other written instruments;


(d) A notary public shall not execute a notarial certificate containing a statement known by the notary to be false nor perform any action with an intent to deceive or defraud.

(e) In performing any notarial act, a notary public shall confirm the identity of the document signer, oath taker, or affirmant based on personal knowledge or on satisfactory evidence.

The opinion does not state what about the attorney’s notarization of the document was deceptive.  At least as to the issues raised in this statute, it would appear that the attorney confirmed the identity of the document signer “based on personal knowledge or on satisfactory evidence.”  A notary power is a power of the state, and a Georgia notary is only permitted to notarize a signature in the state of Georgia.  Thus, there would be deception to the extent that the notary seal implied that the signature was done in the state of Georgia.  There does not appear to be a requirement that the notary actually witness the signature however.

In defending attorneys, our office has had to defend a number of law firms arising out of disputes related to notary public seals and allegations of forgery.  While the statute appears to be more forgiving than many people may realize, it is wise to follow a strict procedure when notarizing documents, especially if you have any question about the authenticity of a signature.

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