Can an Indiana lawyer be disciplined for a nonlawyer assistant's improper notarization?

Plain-English summary

Opinion 1-21 applies Rule 5.3 and Indiana's nonlawyer-assistant guideline to notarial acts performed by law-office staff. A lawyer is responsible when the lawyer orders or knowingly ratifies conduct that would violate the rules if done by a lawyer. Responsibility also attaches when a manager or direct supervisor knows of the conduct in time to avoid or mitigate its consequences but fails to act.

Improper notarization can create a false statement to a tribunal under Rule 3.3(a)(1). The opinion uses a forged client signature on a filed document as an example and explains that the lawyer's instruction, direct supervision, managerial responsibility, or ratification can connect the lawyer to the false attestation.

Rule 8.4(a) bars inducing another person to violate the rules or doing so through another person's acts. Rules 8.4(c) and (d) address dishonesty or misrepresentation and conduct prejudicial to the administration of justice. The opinion states that motive does not eliminate the violation and cites Indiana discipline involving improper notarization with and without a selfish motive.

In practice

Under this opinion, responsibility turns on the lawyer's authority, direction, knowledge, ratification, and opportunity to correct the conduct. The notarial act can implicate supervision, candor to a tribunal, dishonesty, and prejudice to the administration of justice at the same time.

Common questions

Q: Is a lawyer automatically responsible for every staff notarization error?

A: The opinion ties responsibility to ordering or ratifying the conduct, or to managerial or direct supervisory authority combined with timely knowledge and failure to take reasonable remedial action.

Q: What if the assistant notarizes before the signer appears?

A: The opinion identifies notarizing without witnessing the principal's signature as improper conduct that can expose a lawyer who induces or is otherwise responsible for it.

Q: Can an improper notarization violate candor duties?

A: Yes. A false notarization filed with a court can constitute a false statement of material fact under Rule 3.3(a)(1).

Q: Does lack of a selfish motive prevent discipline?

A: No. The opinion cites Matter of Beeson, where discipline was imposed despite the absence of a dishonest or selfish motive.

Q: What remedial duty does Rule 5.3 impose?

A: A manager or direct supervisor who knows of the conduct while consequences can be avoided or mitigated must take reasonable remedial action.

Background and rules framework

The opinion applies Indiana Rules 3.3, 5.3, and 8.4 together with Guideline 9.1 for the Use of Non-Lawyer Assistants. It treats proper notarization as conduct for which instruction, supervision, and remediation can become the lawyer's disciplinary responsibility.

Citations and references

Indiana Rules of Professional Conduct:

• Rules 3.3(a)(1), 5.3(c)(1), 5.3(c)(2), 8.4(a), 8.4(c), and 8.4(d)
• Guideline 9.1 for the Use of Non-Lawyer Assistants

Cases:

• Matter of Beeson, No. 43S00-1305-DI-00306 (Ind. Oct. 31, 2013), public reprimand for improper notarization without selfish motive
• Matter of Szilagyi, 969 N.E.2d 44 (Ind. 2012), suspension involving dishonest and selfish conduct

See also

• Florida Bar Ethics Op. 70-62: Delegating Tasks to Nonlawyer Staff
• Virginia LEO 1600: Supervision of Nonlawyer Personnel
• LSBA Public Op. 08-RPCC-017: Office Sharing With Nonlawyers

Source

• Landing page: Indiana attorney advisory opinions
• Original PDF: Opinion 1-21