Ethics Opinions Every South Carolina Attorney Should Know: Part XVIII, Don’t Cut Corners on the Notary Rules

It’s pretty hard to be a litigator in South Carolina without also being a notary.  There’s affidavits and other documents that are required to be witnessed and executed before a notary.  There’s interrogatories and (sometimes) pleadings to verify.  If one practices family law, financial declarations need to be verified.  I probably notarize ten or more documents a week.

A document that has been signed and sworn before a notary is subject to perjury penalties if it wilfully contains false, misleading, or incomplete information. See S.C. Code Ann. §16-9-10.  Thus, certain formalities must be observed. While litigants and witnesses often treat the notarization process as inconsequential, it isn’t meant to be.  The witness needs to personally appear before the notary and verify his or her identity before the notary can verify the document.

It can be very inconvenient to follow proper notary procedures.  Often attorneys are under a tight time deadline and it can be difficult to get the witness and a notary together in the same location.  Other times a document needs to be verified before it can be filed or served and the verification cannot take place before the document is satisfactorily completed.  Witnesses will sometimes ask if they can leave a signed document with the attorney and have the notary “witness” it later.  Clients will sometimes ask if they can provide their executed “verification” prior to the document that’s being verified actually being completed.  Claims and defenses can be weakened, and it’s possible for a claim to actually be time-barred, because obeying the notarization formalities delays the execution of paperwork. There’s clearly the temptation to cut corners on the notarization requirements.

The December 6, 2010 Supreme Court opinion in In the Matter of Fred Wallace Woods, Jr., 390 S.C. 446, 702 S.E.2d 562 (2010) highlights the risks of such corner cutting.  Mr. Woods was publicly reprimanded for allowing his staff to notarize affidavits when the witnesses were not present and, for two of the affidavits, when the purported witnesses had not actually signed the documents.  The Supreme Court found this violated South Carolina Rules of Professional Conduct Rule 3.3(a) (lawyer shall not knowingly offer false evidence) and Rule 5.3 (lawyer shall make reasonable efforts to ensure that non-lawyer employee’s conduct is compatible with professional obligations of lawyer; lawyer shall be responsible for conduct of non-lawyer employee if lawyer knows of conduct at time when its consequences can be avoided or mitigated and fails to take reasonable action).

In addition to his public reprimand, Mr. Woods was also required to read, and have each of his employees read, the South Carolina Notary Public Manual published by the South Carolina Secretary of State.  Actually, it’s not a bad idea of any attorney who’s also a notary or employs notaries to occasionally reread that manual.

The lesson of Woods: know and follow (and make certain your staff follows) the proper procedures regarding the notarization of documents.

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