73 J. Kan. Bar Assn. 8, 18-22 (2004). Notarize This: The Notary's and the Lawyer's Liability for Forged Signatures.

• Author: By J. Nick Badgerow

Kansas Bar Journals

Volume 73.

73 J. Kan. Bar Assn. 8, 18-22 (2004).

Notarize This: The Notary's and the Lawyer's Liability for Forged Signatures

Kansas Bar Journal 73 J. Kan. Bar Assn. 8, 18-22 (2004) "Notarize This": The Notary's and the Lawyer's Liability for Forged Signatures By J. Nick Badgerow I. Introduction - Overview

For thousands of years, parties' signatures on important documents have been verified by an independent witness, often called a notary public. The use of a notary's seal provides other people with the assurance that the person named actually signed the document, thereby avoiding later argument that the signature was forged. The notary public also provides the receiver of the document with a bonded third party in case the signature is later proven to be forged.

Lawyers are called upon to use the services of notaries public every day, in documents as diverse as warranty deeds,(fn2) wills,(fn3) and interrogatory answers. Lawyers are also increasingly busy and are required to be efficient in their use of time.

Despite the increasing complexity of the practice of law, and despite the appearance of a declining level of trust in lawyers and their profession generally, the fact remains that people trust lawyers and generally believe that a lawyer's word is his or her bond. Clients trust lawyers to do the "right thing." Employees (including employees who happen to be notaries) trust lawyer-employers not to place them in untenable or inappropriate circumstances or to expose them to civil and criminal liability. And the public places its trust in lawyers to be honorable and trustworthy.

Against the backdrop of the public trust, on the canvas of an ever-increasing complexity and "busy-ness" in the practice of law, a lawyer may be tempted to bend the rules related to notarized signatures. Lawyers may be tempted to induce an employee-notary to notarize the signature of a client or other person whom the notary has not personally witnessed signing the document. Lawyers may even be tempted to forge a client's name to a document, with the excuse that the client approved the terms of the document, would want to have signed it, and would want to avoid the trouble of traveling to the lawyer's office or of making other arrangements to sign the document before a notary public.

When those circumstances arise, what considerations should occur to the notary and to the lawyer? The purpose of this article is to explore the ramifications of notarizing a signature without observing the signature and verifying the signer's identity. Civil and criminal liability on the part of the notary (See Section III, infra) and the lawyer (See Section IV, infra) are discussed.

II. Notaries Public - History and Background

The importance of scribes and recorders goes back at least to biblical times.(fn4) At the height of their Empire, the Romans developed a profession of "notarii" to witness public and private documents.(fn5)

This practice was carried to the outer parts of the Empire, and was retained by the conquered nations after the Empire collapsed.(fn6) Notaries were appointed by the popes in the Middle Ages to witness documents in various countries of Europe, and the position has often been associated with an ecclesiastical appointment.(fn7)

In the 13th century, the Italian city of Bologna developed a special school, the Scuola di Notariato, for the purpose of training notaries for their tasks.(fn8)

Even today, notaries public are appointed in England by the Archbishop of Canterbury.(fn9) The Public Notaries Act of 1801 established notaries public to be appointed and overseen by the archbishop.(fn10) Scriveners notaries (a position somewhat different from notaries public) are appointed and overseen by the Worshipful Company of Scriveners of the City of London, for the purpose of preparing legal documents mostly to be utilized in countries outside of England.(fn11) Just two years after the British Act of 1801, Napoleon established for his empire a similar act,(fn12) which set down rules and procedures for the conduct of a notary's business.

The appointment and use of notaries were brought to the Americas by the British and French settlers.(fn13) And after the establishment of the United States of America, the 10th Amendment to the Constitution vested with the states the power to appoint and oversee the conduct of notaries public.

III. Notaries' Liability

The office of notary public is established by statute. In Kansas, the statute can be found at Chapter 53 of the Kansas Statutes Annotated. In Missouri, the statute appears at Chapter 486, Revised Statutes of Missouri.

A. Kansas

In Kansas, a notary appointment is issued upon submission and approval of a qualified application, oath, and a bond in the amount of $7,500 (with the appropriate application fee).(fn14)

Among the specific duties assigned to notaries public in Kansas is the determination of the signer's identity:

(a) In taking an acknowledgment, the notarial officer must determine, either from...