On October 26, 2018, the Disciplinary Commission determined an attorney should receive a public reprimand without general publication on September 6, 2019, for violating Rules 3.3(a) [Candor Toward the Tribunal],…
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Date: 9/6/2019
Discipline Imposed: Public Reprimand Without Publication
Description:
On October 26, 2018, the Disciplinary Commission determined an attorney should receive a public reprimand without general publication on September 6, 2019, for violating Rules 3.3(a) [Candor Toward the Tribunal], 5.3 [Responsibilities Regarding Non-Lawyer Assistance], 8.4(c), 8.4(d), and 8.4(g) [Misconduct], Alabama Rules of Disciplinary Procedure. An attorney was hired to probate an estate in 2016. His secretary initially notarized and filed consents and waivers dated September 12, 2016. Because the administrator died, the probate court appointed a new administrator, after which the attorney obtained new consents and waivers from the heirs at law. His secretary allegedly notarized the new consents and waivers in December 2016. There was only one piece of real property in the estate, and the attorney filed a petition for sale, along with consents and waivers from the two heirs, dated August 21, 2017. Again, the attorney’s secretary notarized these documents. The probate court granted the petition for sale on December 18, 2017. On January 5, 2018, the widow of one of the heirs called the probate court and spoke with the clerk, who informed her that she would receive the money from the sale. In that conversation, the widow advised the clerk that her husband passed away in February 2017, seven months before the attorney’s secretary notarized his signature. As a result, the clerk contacted the attorney and forwarded the matter to the Chief Clerk and the Probate Judge. The judge immediately issued a show cause order, cancelled the order for the petition for sale, and suspended letters of administration. After investigating, the attorney believed the deceased heir signed the consent and waiver in December 2016, but it was not notarized. When his secretary was filing the petition for sale, she observed that the consent and waiver were not dated or notarized, and took it upon herself to notarize and back-date them to August 21, 2017. At the show cause hearing, the attorney testified he thought the deceased heir signed the consent and waiver in December 2016, but it was not notarized until August 17, 2017, and attributed this to "an administrative oversight." His secretary admitted the deceased heir was not present on August 21, 2017, when she notarized his signature. On January 30, 2018, the probate court issued an order noting there was no evidence offered that the heir was ever present when he signed the consents and waivers. The court offered the attorney’s secretary an opportunity to resign her notary, which she did at the conclusion of the hearing. The attorney is also required pay any costs taxed against him pursuant to Rule 33, Alabama Rules of Professional Conduct, including but not limited to a $1,000 administrative fee.