The Supreme Court of Ohio today ruled a Mahoning County attorney should not be sanctioned for notarizing a document without actually witnessing it being signed.

A divided Supreme Court found that Joseph Macejko of Poland, Ohio, never intended for the document he notarized before meeting with a client to be signed out of his presence, and he did not engage in conduct involving misrepresentation. In a per curiam opinion, the Court stated a violation of the rule for engaging in dishonest behavior “requires an element of intentional wrongdoing that is absent from this case.”

Chief Justice Maureen O’Connor and Justice R. Patrick DeWine joined the opinion.

Justice Sharon L. Kennedy concurred with the per curiam opinion, but wrote separately to respond to the dissenting justices’ contention that Macejko deserved to be disciplined. Justice DeWine also joined Justice Kennedy’s concurrence.

Justice Melody J. Stewart concurred in judgment only.

In a dissenting opinion, Justice Jennifer Brunner wrote Macejko’s actions had the potential of creating a document that could be forged or used for illegal purposes, causing other unlawful actions to occur.  There was no disagreement that his actions violated the rules.  Based on similar caselaw, the dissent stated that he deserved a public reprimand as recommended by the Board of Professional Conduct.

Justices Patrick F. Fischer and Michael P. Donnelly joined Justice Brunner’s opinion.

Assistance with Estate Planning Leads to Error
In June 2017, Robert Durick was a client of Macejko and asked the lawyer to review the estate planning of his parents. Macejko prepared updated wills and power-of-attorney forms for the Duricks. The documents named Robert Durick as the attorney-in-fact for his parents, allowing him to conduct business on their behalf.

On his way home from his office, Macejko personally delivered the final drafts of the estate documents to the elder Duricks. Lawyers have the power to notarize documents, and for his own convenience, Macejko notarized the powers-of-attorney documents he prepared for the family at his office. He did so to avoid having to take his notary stamp and seal with him. He said in the past, he has taken his notary tools out of the office and forgotten to promptly bring them back.

Macejko testified that he had planned to review the documents with Joseph and Mary Lou Durick at their home that day and planned to have the couple complete and sign the documents if they met their satisfaction.

When Macejko arrived, their daughter, Janet, told him that Mary Lou did not feel well and asked if Macejko could come back another time. Macejko agreed and left the documents for the Duricks to review with the expectation that one of the two Durick children, Robert or Janet, would call him to arrange another meeting. A few weeks later, Robert called Macejko, asking to change the documents to make his sister the attorney-in-fact.

Macejko made the change on the documents on his computer. Because he was waiting for information from the family for additional changes they requested, Macejko intended to complete all revisions before making another trip to the Durick home.

Relationship Between Siblings Sours
A short time later, Macejko learned the relationship between Robert and Janet had deteriorated and their parents hired another attorney to handle their estate planning. Macejko never billed the Duricks for his services.

Mary Lou died in October 2017. Her husband died that December. The will left the entire Durick estate to Janet.  Her brother contested the will in probate court.

During the will contest, the issue of Macejko notarizing the documents in advance became an issue because it appeared at some point Mary Lou signed the power-of-attorney form without Macejko being present to witness. During the proceedings, Macejko testified he had not seen the document with Mary Lou’s signature until it was presented it to him that day. He said he did not think the couple used any of his documents because they hired another lawyer to handle their estate.

Macejko said he went to his office and wrote a letter to the Mahoning County Bar Association, reporting that his notarizing the document in advance may have violated the rules governing the conduct of Ohio lawyers.

Bar Association Seeks Sanction
The county bar association filed a complaint with the state Board of Professional Conduct in 2020, alleging Macejko violated the rule against engaging in conduct involving misrepresentation by notarizing the power-of-attorney form, which was later signed outside of his presence. The board recommended the Supreme Court publicly reprimand Macejko.

Macejko objected to the proposed reprimand, arguing that a rule violation requires proof that he intended to make the misrepresentation that he witnessed the signature. He maintained his intention was to meet with the Duricks, review the documents, and have the documents signed in his presence.

The opinion noted Macejko admitted he did not follow R.C. 147.541, which requires that the notary knew or had satisfactory evidence that a person signing a notarized document was the person named in the document. He admitted the power-of-attorney form was a misrepresentation because he did not see Mary Lou sign it.

The Court cited several cases in which attorneys have been publicly reprimanded for notarizing a document without witnessing the signing of the document or the attorney knew a signature was being forged. The opinion noted the difference between Macejko and the previously sanctioned attorneys, is those attorneys had no intention of witnessing the signature of the person that was required to sign the document.

The opinion noted the preamble to the Rules of Professional Conduct state discipline for rule violations “depend on all circumstances, such as the willfulness and seriousness of the violation; extenuating factors, and whether there have been previous violations.”

The Court stated that there is “no doubt that Macejko exhibited poor judgment” in notarizing the documents in advance and relinquishing control of the documents without voiding or removing his authorization. The opinion stated the Court has warned that notaries “must not take a cavalier attitude toward their notary responsibilities,” especially because notarized documents are admissible in court without further evidence to prove they are authentic.

“Because Macejko always intended that the Duricks’ estate-planning documents would be executed in his presence, we find that his conduct did not amount to a willful breach of the rules,” the Court concluded.

Intent Required for Rule Violations, Concurrence Asserted
Justice Kennedy noted that the Rules for the Government of the Bar pertaining to “professional responsibility” state, “The willful breach of the Rules shall be punished by reprimand, suspension, disbarment, or probation as provided in Gov. Bar R. V.”

To discipline Macejko, there must be evidence showing that he willfully and intentionally misrepresented that he witnessed his client sign a power of attorney in his presence, the concurrence stated. Because the evidence indicates that Macejko never intended the document to be signed outside of his presence, he did not willfully and intentionally commit professional misconduct, the concurrence concluded.

2020-1513. Mahoning Cty. Bar Assn. v. Macejko, Slip Opinion No. 2022-Ohio-322.

View oral argument video of this case.

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