There are certain things that ought to be ingrained in lawyers that they know they cannot do. Maybe we could reach agreement on all of what should be on that list of things, but that task is far too ambitious for any Friday, much less this Friday.
I would hope we could agree that an item on that list though is not to sign someone else’s name to something and claim that they were the one who actually signed it. In a lot of circumstances, this is called… and I’m going to use the technical term here, “forgery.” (Fun fact: this is also something that people who are not lawyers really shouldn’t do as well. This includes if you were [hypothetically-speaking] an 18-year old filling out a permission form that they think their parents would likely have signed.)
Now, admittedly, lawyers in collegial litigation practice settings certainly will, on many occasions during their professional career, end up signing opposing counsel’s name to an order for entry with the Court. But, the key of course in doing so is that the lawyer (a) always indicates that it is being done with the other lawyer’s permission; and (b) doesn’t try to make the signature look at all like that lawyer’s actual signature.
Earlier this week, a lawyer in Kansas has been visited with a weighty suspension from practice, in part, for signing names of folks for whom she should not have been doing that. Unfortunately, examples involved falsifying the signature of a judge on a court filing as well as a separate instance of a court clerk’s signature. Although it was the aspect that garnered the media attention, forging signatures was just really the tip of the iceberg regarding the findings of misconduct against that lawyer. Many others involving misrepresentations to other lawyers and clients and neglect of several different matters. A full read of the order imposing a two-year suspension also reveals that, as is often true of lawyers who make very bad decisions, the lawyer suffered from severe depression and anxiety.
But, also recently and in my own backyard, there was an instance of what turned out to be a much grayer area of a lawyer’s ability to sign someone else’s name to something that resulted, after prolonged disciplinary proceedings, in a determination that the lawyer did not commit any professional misconduct. If you are not at all familiar with the concept of a “conformed signature,” then reading the case will provide you with a bit of an education on that front.
But, the short version to walk away from that case though I think is still that the lawyer really should have gone about things in a markedly different fashion. Perhaps it is only true with hindsight, but I tend to think that even in real time, a lawyer would think that doing something more to clearly denote when placing a “/s [someone else’s name]” onto a document to then be used in litigation exactly what the lawyer is doing. For that particular lawyer, doing it the way they did certainly did not ultimately result in actual discipline, but it certainly ended up costing an awful lot of time and money to have to get all the way through the process to the Tennessee Supreme Court before being fully exonerated.
(P.S. Tomorrow is the 5th anniversary of this blog. In celebration, go treat yourself to something nice. It’s on you.)