In February 2022, the Florida Supreme Court rendered The Florida Bar v. Davis, SC22-105. The situation is intriguing, and came to me in a roundabout manner from my old friend Horace Middlemier, III. In Davis, the Court entered a 91 day suspension and ordered the attorney to reimburse the bar $2,558.80 for costs of prosecution.
This is one of those disciplinary matters in which one must admit respect for the attorney. I do not know, nor have I met, Ms. Davis to my knowledge. However, a great many investigations by The Florida Bar include hearings, evidence, and a great deal of time is spent. Ms. Davis instead filed a Conditional Guilty Plea and expedited the resolution of the situation. Every person makes errors and mistakes. I have great respect for those who admit that, strive to remediate the impacts, and move forward. I believe owning any error demonstrates great character.
In the Plea, Ms. Davis admits that she met with a client and the client
"sign(ed) a blank page with the exception of a signature block whereby signing (the client) affirmed under oath the truthfulness of the claims made in the petition."
She then returned to her office
"and drafted, improperly notarized, and filed with the court the Emergency Petition for Temporary Custody attaching the page (the client) had signed."
She admitted that the client
"did not review the contents of the Emergency Petition for Temporary Custody prior to the document being filed with the court."
Similarly, an affidavit form was partially completed by the client during this meeting. The lawyer later "completed the rest of the remaining information required" and "improperly notarized the document and filed it with the court." A third document was also partially completed by the client, and the attorney made additions thereto "then improperly notarized the document and filed it with the court." These were compounded by other errors in not "properly communicating with" the client, advising of potential legal remedies, and missing a hearing due to an email difficulty.
The Plea states that as to those actions the following Bar Rules "provide the basis for respondent's guilty plea and for the discipline to be imposed":
"3-4.3 Misconduct and Minor Misconduct; 4-1.3 Diligence; 4-1.6(a) Consent Required to Reveal Information; 4-8.4(c) Misconduct- conduct involving dishonesty, fraud, deceit, or misrepresentation; and 4-8.4(d) Misconduct - conduct in connection with the practice of law that is prejudicial to the administration of justice."
In a second instance, the attorney represented a party in a case involving a pro-se opponent. A document was prepared and filed with the court, and a hearing ensued. At the hearing, the pro-se party expressed disagreement with that document, and the attorney noted that party had "signed the agreement and had it notarized before sending it back to" the attorney. However, it was then revealed that the attorney in fact notarized the pro-se party's signature, and had done so without that party present based upon that pro-se adverse party "authorizing her to notarize the . . . signature. The Plea notes that this "violated Florida Statutes§ 117.1 07(9)."
The Plea states that as to those actions in the second instance, the following Bar Rules "provide the basis for respondent's guilty plea and for the discipline to be imposed":
"3-4.3 Misconduct and Minor Misconduct; 4-8.4(c) Misconduct - conduct involving dishonesty, fraud, deceit, or misrepresentation; and 4-8.4(d) Misconduct - conduct in connection with the practice of law that is prejudicial to the administration of justice."
The Plea notes aggravating factors including "a pattern of misconduct," "multiple offenses," and "substantial experience in the practice of law." The mitigating factors included "absence of a prior disciplinary record," "timely good faith effort to make restitution or to rectify the consequences," "full and free disclosure to the bar or cooperative attitude toward the proceedings," and "remorse."
Those mitigating factors are critical, as noted at the outset. There will be errors and accidents in any profession, occupation, or even endeavor. But having the wherewithal to admit, to strive to remediate, and to be cooperative and remorseful is in itself notable and admirable.
The proceedings in The Florida Bar v. Davis were brought to my attention in light of the many documents that are necessary in the prosecution of a workers' compensation claim. Whether for instigating a case, resolving a case, or in a variety of situations in the midst of a case, there are ample occasions when documents must be signed, verified, or notarized. Due to confusion, the OJCC even added a rule defining "verified" in the 2022 revisions, see Rule 60Q6.102(13).
An easy example is the requirement in section 440.192(4).
"The petition must include a certification by the claimant or, if the claimant is represented by counsel, the claimant’s attorney, stating that the claimant, or attorney if the claimant is represented by counsel, has made a good faith effort to resolve the dispute and that the claimant or attorney was unable to resolve the dispute with the carrier."
Long ago, even in the days before electronic filing, I can recall when we wrote such certifications on papyrus paper. We used a concoction of burnt wood or oil mixed with water as ink (OK, that is an exaggeration, and I am not that old). But, back when the "good faith" requirement was added to the statute, the practice quickly evolved to printing of a certificate of good faith that was attached to the Petition for Benefits. An attorney might prepare a petition and send to the client for review. Upon approval, that pre-printed and signed certificate might have a current date added, and then be filed with that new petition. There is administrative ease in that, but note it is based still upon the client first reviewing and approving the petition.
I opened a random case recently and found a petition for benefits filed in January 2022. That petition included a certificate of good faith signed by the injured worker on November 6, 2021. The certification asserts that a good-faith effort was made to resolve the matter. But, it was signed two months before the petition was filed? Is it possible that the particular petition was not reviewed by the injured worker before it was filed? With that two-month-old signature, might an injured worker be attesting to something she/he has not seen? Is that compliant with the law and the Bar Rules?
In terms of the notarization of documents, there are a variety of requirements that apply to notaries. They are obligated to know them and to follow the strictures of the law. Those laws are often, in a word, inconvenient (I have heard other words over the years, but I digress). The notary process is not intended as a convenience. It is a legal process that helps to assure that what appears to be signed by someone was in fact signed by that person. The rules and constraints are a challenge sometimes, but they are required for the protection of people, and for the efficacy or our legal system and processes. We must be able to trust the discretion and compliance of notaries, without question. When a notary bends a rule in any instance, that may impugn the integrity of the entire legal system in the eyes of the public. Lawyers bear the same burden.
When a verified motion is required, counsel should remember the point of verification. When an attestation is necessary, one might consider the implications that might arise with the attachment of a document that long precedes the present. The compliance with both spirit and letter of the law would perhaps be both necessary and appropriate. The alternative, it appears, can be quite disquieting.
