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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

FORMAL OPINION 1995-4

COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS

February 22, 1995

ACTION: FORMAL OPINION

OPINION:

TOPIC: Pre-signing Documents in Blank; False Statements.

DIGEST: A lawyer may not sign judgment execution forms in blank or allow his or her name to be affixed to letters containing statements that are not true.

CODE: DRs 1-102(A)(4), (5), (8); 1-104(A).

QUESTIONS

May a lawyer engaged in collections work (a) sign judgment executions "in blank" or (b) allow his or her signature to be affixed to dunning letters that may not be entirely accurate in the factual statements they contain?

OPINION

Lawyers who engage in collecting judgments on behalf of a client have been asked to pre-sign judgment execution forms "in blank" and to provide those pre-signed execution forms to a sheriff in order to facilitate the judgment collection process. We understand the inquiry to refer to printed execution forms contemplated by CPLR 5230(a), which leave spaces for certain information to be filled in, including: the names of the parties, the court in which judgment was entered, the amount of the judgment entered and against whom, and the amount of the judgment that remains due and unpaid at the date of the execution. In a "blank" execution form, none of these items has been completed or filled in.

Further, the client of those same lawyers has a policy of sending letters -- upon which one of the lawyers' names but not his or her signature is printed -- to judgment debtors stating, in each case, that the sheriff is in receipt of an execution. The letter is sent irrespective of whether a sheriff is actually in receipt of an execution.

Canon 1 states that "A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession." Under that Canon, Disciplinary Rules 1-102(A)(4), (5) and (8) prohibit lawyers from:

(4) Engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.

(5) Engag[ing] in conduct that is prejudicial to the administration of justice.

* * *

(8) Engag[ing] in any other conduct that adversely reflects on the lawyer's fitness to practice law.

It is these disciplinary rules that have been read by the New York State courts to set the standards that must be satisfied before an attorney may affix his or her signature to a document or counsel a client to do the same. Numerous court decisions have confirmed that the disciplinary rules in no way tolerate false affirmations, or even true affirmations signed under circumstances designed to imply or convey some false impression.

For example, in Matter of Seidman, 194 A.D.2d 269, 606 N.Y.S.2d 477 (4th Dep't 1993), the court upheld censure of an attorney for, among other things, violation of DRs 1-102(A)(4) and (5), where the attorney had signed his client's name on affidavits falsely representing that the client had sworn to the truth of the statements contained in the affidavits and had signed those affidavits in the attorney's presence. Accord, Matter of Friedman, 196 A.D.2d 280, 609 N.Y.S.2d 578 (1st Dep't 1994) (attorney disciplined for filing knowingly false and misleading affidavit); Matter of Singh, 195 A.D.2d 197, 607 N.Y.S.2d 250 (1st Dep't 1994) (falsifying date of client's signature on affidavit and verification resulted in discipline of attorney); Matter of Hughes, 153 A.D.2d 278, 551 N.Y.S.2d 151 (4th Dep't 1990) (placing false signature on bail assignment release and using stamp of notary to notarize false statement warrants attorney suspension from practice).

Perhaps even more directly on point is the recent decision in Matter of Hamby, 197 A.D.2d 140, 611 N.Y.S.2d 254 (2nd Dep't), leave to appeal denied, 84 N.Y.2d 805, 618 N.Y.S.2d 6 (1994). In that case a collections attorney prepared and served on a purported debtor a fictitious default judgment under his stamped signature after having received information that a debt had been satisfied. For that and other acts the Appellate Division suspended the attorney from the practice of law for five years.

Most of these cases involve situations in which the attorney wrongfully affixed his or her signature to a document knowing that he or she was affirming untrue facts or with the intent of misleading or deceiving as to the facts set forth or as to the circumstances under which the document was signed. However, the courts have found violations of DR 1-102(A)(8) (previously numbered DR 1-102(A)(6)) where an attorney swore to facts about which he or she had no personal knowledge or information, direct or indirect, and where the attorney acted with reckless disregard for the truth without making an effort to verify the facts to which he or she attested. Matter of Friedman, 196 A.D.2d at 283, 284; 609 N.Y.S.2d at 580.

Under the circumstances of the inquiry it is the Committee's view that attorneys signing blank execution forms would be liable for the same violations found by the court in Friedman. This is because the lawyer's signature appearing on a judgment execution carries with it the unavoidable implication that the lawyer has personally verified the facts as set forth in the judgment execution, or that some person, who is both responsible to the lawyer and for whom the lawyer takes responsibility as a matter of law and ethics, see DR 1-104(A), has verified those facts. The reality is that when a lawyer pre-signs a blank judgment execution and provides that signed form to the sheriff he or she is not and cannot be taking responsibility for the facts and statements subsequently written on the execution form. Therein lies the misrepresentation.

In the view of the Committee there would be a misrepresentation -- and hence, it would be unethical -- any time a lawyer pre-signed a document in such a way that incorrectly implied that the lawyer completed the document or it was completed under the direction and supervision of the lawyer. That would be so regardless of the consequences. Under the circumstances, however, the Committee notes that the consequences of error in completing the execution form could be severe. The wrong defendant could be identified as the one responsible for satisfying the judgment. The wrong judgment amount could be filled in. Prior satisfaction of the judgment could be overlooked or ignored.

In addition to the principal inquiry regarding the propriety of pre-signing executions "in blank," further inquiry is made regarding the propriety of lawyers' printed names being affixed to letters advising judgment debtors that executions have been transmitted to the sheriff in situations where that is not, in fact, the case. For all the reasons set forth at length above, this Committee is of the view that such a letter might well place the attorney whose name was so used with his knowledge and without his objection in violation of DR 1-102(A)(5) which prohibits an attorney from, "knowingly mak[ing] a false statement of law or fact."

CONCLUSION

The questions presented are answered in the negative.