March 2007
Ethics and the Law
The Perils of Signing for Clients: Why Shortcuts Are Not Worth It
by Kevin Bank and Debra Slater
It’s Friday afternoon. You’re alone in your office. The clock reads 15 minutes to five. You think to yourself, “Where is my client?” You dial the client’s telephone number. No answer. You pace the floor in your office. The clock now reads 10 minutes to five. You dial the client’s cell phone number. No answer. Time is running out. “This declaration is based on my client’s personal knowledge, but it must be filed today,” you mutter under your breath. “If I don’t file this declaration, I will lose an important motion and the case.” You grab the declaration and sign your client’s name. “I know this client fairly well and am certain she wouldn’t mind,” you rationalize. “Furthermore, it’s in her best interest.” Is it permissible to sign your client’s name on the declaration to be filed with the court?
Tempting though it may be to do so, the answer is no. Although General Rule 13 and RCW 9A.72.085 permit the use of unsworn declarations in lieu of notarized affidavits,1 such unsworn declarations must be signed by the declarant, certifying under penalty of perjury that the contents are true and correct.2 RCW 9A.72.085 specifically delineates the requirements for a declaration in lieu of affidavit. The declaration must: (1) recite that it is certified or declared by the person to be true under penalty of perjury; (2) be subscribed by the person; (3) state the date and place of its execution; and (4) state that it is so certified or declared under the laws of the state of Washington. Through his/her signature, the declarant certifies or declares “under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.” 3
By signing the client’s name on the declaration in the scenario above, you could violate several Rules of Professional Conduct. RPC 8.4(b), which prohibits criminal conduct, is implicated, because the conduct constitutes a crime, such as forgery, false swearing, or offering a false statement for filing. RPC 8.4(c), which does not require evidence of criminal conduct, prohibits a lawyer from engaging in conduct involving dishonesty, fraud, or misrepresentation. RPC 3.3(a)(1) prohibits a lawyer from knowingly making a false statement of fact or law to a tribunal,4 while RPC 3.3(a)(4) prohibits a lawyer from offering evidence the lawyer knows to be false. Furthermore, a lawyer is prohibited from making a false statement of material fact or law to a third person under RPC 4.1.
Two recent discipline cases indicate that misrepresentation of signatures is very serious misconduct. In In re Disciplinary Proceeding Against Guanero, 152 Wn.2d 51, 93 P.3d 166 (2004), the lawyer was disbarred for, among other things, forging his client’s signature on an unsworn declaration. Guanero had received the original declaration (signed under penalty of perjury) from his client for filing in support of an opposition to a summary judgment motion. The signature page of the declaration was mistakenly not copied by Guanero’s assistant. Therefore, the copies received by the judge and opposing counsel were missing the signature page. Two days after Guanero filed and served the opposition motion, Guanero’s opposing counsel moved to strike the declaration for improper form. The next day, based on Guanero’s assurance that he could produce a signed copy of the declaration that day, the judge allowed argument on the motion to go forward. The judge denied the summary judgment motion but directed Guanero to fax a copy of the executed signature page to the court and opposing counsel by 4:30 p.m. on the day of her ruling. Guanero returned to his office at around 3:30 p.m. and asked his secretary to call the client to come in and sign another declaration. The client could not be reached and Guanero could not locate the original signature page, so he printed out a new blank signature page and signed an imitation of the client’s signature on the declaration. He then faxed copies to the court and opposing counsel.5 Opposing counsel suspected a forgery, and after consulting a document examiner, asked to see the original of the fax.
After upholding the hearing officer’s findings that Guanero had in fact affixed his client’s signature on the document without her permission, the Court concluded that Guanero had violated RPC 8.4(b) (based on committing the crimes of forgery and offering a false instrument for filing), 8.4(c), 8.4(d) (conduct prejudicial to the administration of justice), as well as 3.3(a)(1) and 3.3(a)(4).
In a subsequent stipulated case, R. Stuart Phillips was disbarred after admitting that he had signed his client’s name under penalty of perjury on various documents submitted to the court in a domestic-relations case, including a trial affidavit and Child Support Worksheet. Phillips had not received authorization from his client to sign the documents, and the client had not reviewed them before they were signed.6 Although In re Disciplinary Proceeding Against Christopher, 153 Wash.2d 669, 105 P.3d 976 (2005) did not involve misuse of a client signature, it provides another example of the perils involved when lawyers forge signatures. Christopher was suspended for 18 months for forging her secretary’s signature on a Declaration of Mail Service (without the secretary’s knowledge or approval) and falsifying other documents submitted in support of a motion for attorney’s fees.
When specifically authorized to do so by the client, and in the absence of any evidence of misrepresentation by the lawyer, it may be possible for a lawyer to sign the client’s name to a letter or other non-official document without running afoul of the RPCs as long as it is clear to the recipient that the signature is that of the lawyer and not the client (for instance, by writing the client’s name along with the lawyer’s initials or name). You should still be aware that anytime you sign for a client, you may be binding the client, and the client may subsequently dispute that he provided the necessary authorization, or that he received adequate explanation of the document you signed on his behalf. You should therefore make sure that the client not only has granted you express permission to sign, but also that he is fully informed as to the terms of the document. And make sure to document it.
When a lawyer is submitting a declaration, there is simply no acceptable substitute for the client’s original signature. In the example above, you may just have to wait until you can meet with the client and obtain her signature before filing the declaration. If permitted by the court, you may be able to file the unsigned declaration with the understanding that you will substitute or supplement it with a signed version on the day of the hearing. But no matter how urgent the timeline or just the cause, signing a client’s name is a shortcut not worth taking.
Kevin Bank has been disciplinary counsel at the Washington State Bar Association since 1999, and prior to that, worked in a private firm and as a consumer-protection attorney for the Federal Trade Commission. Debra Slater is disciplinary counsel at the Washington State Bar Association. Prior to that, she worked for the Federal Deposit Insurance Corporation and was in private practice. The opinions expressed in this article are the authors’ and are not official or unofficial positions of the WSBA.
NOTES
1. An affidavit is defined as a “written declaration of facts, voluntarily made, and confirmed by the oath of the party making it.” See Clay v. Portik, 84 Wn.App. 553, 561, 929 P.2d 1132 (1997). Affidavits must be sworn or affirmed to in the actual presence of a licensed notary. Karl B. Tegland and Douglas J. Ende, Washington Handbook on Civil Procedure, § 62.6 (2007 ed.).
2. Declarations not signed under penalty of perjury are not considered competent proof of the facts stated. Wilkerson v. Wegner, 58 Wn. App. 404, 408 n.3, 793 P.2d 983 (1990); Washington Handbook on Civil Procedure at § 62.7. Such declarations are properly subject to motions to strike. Washington Handbook on Civil Procedure at § 62.10.
3. Unsworn declarations that comply with RCW 9A.72.085 will be treated as if they are signed under oath. See, e.g., Manus v. Boyd, 111 Wn. App. 764, 768, 47 P.3d 145 (2002).
4. Note under the revised RPC adopted September 1, 2006, this rule no longer requires that the false statement to the court be “material.” Thus, even if the lawyer were to sign the client’s signature on a declaration that is not likely to affect the outcome of the case, he/she could still violate this rule. Materiality is also not required for RPC 8.4(c), and is not an element of certain crimes involving misrepresentation, like false swearing (RCW 9A.72.040) and offering a false instrument for filing or record (RCW 40.16.030).
5. In fact, the original signature page had been filed with some other loose pleadings at the court clerk’s office.
6. In re R. Stuart Phillips, Review No. 03#00067 (March 16, 2005).
