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ARDC Hearing Board Recommends Censure for Attorney For Signing Will As Witness Where He Did Not Witness Signatures

There appears to be near 100% enforcement for lawyers who wrongfully notarize or witness documents that where the lawyer did not personally witness the signature. This case illustrates that trend. It also shows that the ARDC Hearing Board can be merciful where the error did not cause harm to anyone.

Count I – Failing to Consult with the client in violation of Rule 1.4(a)(2).

The ARDC Hearing Board voted to censure an attorney for a series of deceptive actions regarding estate planning documents. The lawyer originally met with a William Theobald in December 2013 concerning his estate plan. The lawyer agreed to prepare the estate plan, but, apparently little or nothing was done for some time.

On March 27, 2014, a family member contacted the lawyer and told him that Theobald was hospitalized and was not in good health and asked him to prepare a revised estate plan. The Hearing Board summarizes the evidence as follows:

On Thursday, March 27, 2014, Bill Shutt telephoned Respondent’s office and spoke with Respondent’s secretary, Lori Rakes. Bill told Rakes that William Theobald was hospitalized, they did not know how much longer William would live, and they wanted William to sign the paperwork to change William’s estate plan. Rakes then contacted Respondent who directed Rakes to tell Bill that he could pick up the paperwork on March 28, 2014, but that Respondent would be out of the office that day. Respondent was traveling out of state on March 28, 2014. Rakes then informed Bill to come to Respondent’s office on the following day, Friday, March 28, 2014, and pick up the paperwork. (Compl. and Ans., par. 7).

On March 28, 2014, Bill Shutt went to Respondent’s office and picked up the documents, consisting of a Deed in Trust, a Will, and a Declaration of Trust (Adm. Exs. 4-6), that Respondent had prepared on the previous day. Later on March 28, 2014, Bill Shutt telephoned Respondent’s office and spoke with Rakes. Bill asked her if the family could “assist” William in signing the documents. She told him that Respondent was out of the office, put Bill’s call on hold, while she called Respondent and informed him of Bill’s question. Respondent told Rakes to tell Bill that the family could “assist” William in signing the documents. Rakes then relayed Respondent’s statement to Bill. During his telephone conversation with Rakes, Respondent did not ask to speak with Bill; did not inquire or direct Rakes to inquire about why William could not sign the documents; did not direct Rakes to inquire about William’s health; and did not advise Bill to have disinterested witnesses present at the signing of the legal documents. William Theobald died at approximately 1:00 p.m. on March 28, 2014. (Compl. and Ans., pars. 9-14,).

Note: Bill Shutt was the husband of Theobald’s daughter Judy Shutt.

On the basis of this evidence, and the fact that the lawyer never consulted with Theobald about the nature of the changes to his estate plan, the Hearing Board found that the lawyer violated Rule 1.4(a)(2) (failing to communicate with the client and to discuss the matter in which the client’s objectives were to be pursued).

Count II – Rule 1.4(a)(2)

Here the ARDC charged the lawyer with failing to confirm that the client was able to (had the capacity) to sign a will. The Hearing Board found that this charge was also proven. Here the problem is that the lawyer did not speak with Theobald to make sure he was competent to sign new estate planning documents.

Count III – Rule 8.4(c)

In Court II, the ARDC charged the lawyer with wrongfully signing the Will as a witness when he did not notice the will and wrongfully instructing his secretary to notarize the will.

On Monday, March 31, 2014, Respondent returned to his office. He directed his secretary, Lori Rakes, to sign as a witness to William Theobald’s purported signature on a Will and Trust. Respondent also signed as a witness on the same two documents. (Adm. Ex. 5 at 4; Adm. Ex. 6 at 23). However, neither Rakes nor Respondent had witnessed the placing of William’s signature on either document. Respondent also notarized William’s signature on a Deed in Trust and on a Trust, stating thereon that William had appeared before him on March 28, 2014, and signed the documents. (Adm. Ex. 4 at 3; Adm. Ex. 6 at 24). The Illinois Notary Act, 5 ILCS 312/6-102, requires that notary publics witness the signature being notarized or verify that the signature on the document is that of the person whose signature is being notarized. (Compl. and Ans., pars. 19, 20, 21, 24).

Based on this evidence, the ARDC found the respondent guilty of a violation of Rule 8.4(c).

Discipline

Because the lawyer was remorseful and apologetic and because he appeared to understand the gravity of the violations and because he was trying to help his client, the Hearing Board found that he should be censured. The ARDC had requested a 30-day suspension.

Altogether this is an excellent result for the attorney.

Source In Re Michael Glenn Barton, 2015 PR 00074