If one partner in a law firm files a divorce complaint, can another partner in the same firm notarize the client's verification, or does that violate the rule against attorneys taking oaths in their own cases?
Plain-English summary
A Guilford County notary public who was also a partner in a law firm asked the AG about a common back-office shortcut: one partner files a divorce complaint, and another partner in the same firm (who is also a notary) notarizes the client's verification of the complaint. Is that arrangement safe? And if it is not, what is the consequence?
The AG advised against the practice, with a warning that the divorce complaint could be dismissed if it goes through.
The two key statutes:
- N.C.G.S. § 50-8 requires the verification of a divorce complaint to be signed by the party filing. A verification is essentially an affidavit, governed by Rule 11(b) of the Rules of Civil Procedure. It has to be sworn to before someone authorized to administer oaths.
- N.C.G.S. § 47-8 has been on the books since 1905. It says no practicing attorney has "power to administer any oaths to a person to any paper-writing to be used in any legal proceedings in which he appears as attorney."
Notaries are authorized to take affidavits and administer oaths under G.S. 10-5(a)(2) and (3), so the notary part is fine in the abstract. The problem comes from the second statute and the partnership-agency overlay.
Under G.S. 59-39(a), the acts of one partner in carrying on the partnership's usual business bind the partnership. Barnes v. Campbell Chain Co., 47 N.C. App. 488 (1980), confirms the rule. Representing a divorce client is firmly within "the usual business of a law firm partnership." So when one partner of Firm A appears as attorney for the divorce plaintiff, every partner in Firm A is in legal effect "appearing" too. That brings every partner under G.S. 47-8's prohibition. A partner who notarizes the client's verification has, in effect, administered an oath in a proceeding in which he appears as attorney, even if he never personally walked into court.
The AG noted that no North Carolina appellate decision has tested this specific scenario, and that courts in other jurisdictions split on the question (21 A.L.R. 3d 483 § 14(b)). With unsettled law and a flat statutory prohibition staring back from G.S. 47-8, the AG recommended the firm avoid the practice. An attorney/notary who proceeds anyway "proceeds at his own risk."
What is the downstream risk? If the divorce complaint's verification turns out to be invalid because the notary was conflicted, the complaint can be dismissed under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure. Boyd v. Boyd, 61 N.C. App. 334 (1983), made that explicit: an improperly verified divorce complaint is subject to dismissal. The Court of Appeals there noted that there is no statute of limitations on a divorce action, so the plaintiff can refile with a proper verification. But the cost of doing it twice (delay, expense, possible service issues, possible counterclaim leverage) is real.
For pleadings that do not require party verification under Rule 11(a), the same statutory prohibition still seems to apply to the partner-notary, but the consequence is different: the attorney's signature on the pleadings is enough to make it valid even if the notary act was improper.
Currency note
This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The Notary Public Act in Chapter 10 was rewritten in 2005 as Chapter 10B, with significant changes to conflict-of-interest rules. Partnership law has also been updated. The basic AG concern (a partner-notary should not notarize a client's verification when the firm represents the client) probably still tracks, but the specific statutes have moved. Any law firm setting up a notary protocol today should consult Chapter 10B, the current Rules of Civil Procedure, and the State Bar's ethics opinions.
Common questions
Q: Why can't a partner notarize his firm's client's signature when other notaries do similar things all the time?
A: The AG's read of G.S. 47-8 is that the prohibition is broad. Any practicing attorney who "appears" in the proceeding cannot administer the oath. Partnership agency law treats every partner as appearing whenever one partner does. The AG could have read "appears" more narrowly (only the partner who actually signs the pleadings), but went the safer way.
Q: What if a paralegal who is also a notary takes the verification?
A: The opinion is about partner-notaries. A non-attorney staff notary is not subject to G.S. 47-8 at all because they are not a "practicing attorney." That is the cleaner solution and the one most firms use.
Q: What if my firm is a professional corporation or LLP, not a partnership?
A: The AG's analysis turns on partnership-agency law (G.S. 59-39). The same conflict logic may apply by analogy to other forms (PA, LLP, LLC, PC), but the exact path is different. Better practice in any firm form is to have non-attorney notaries handle verifications, especially for divorce filings where the verification is statutorily required.
Q: I already filed and my divorce was notarized by my lawyer's partner. Am I in trouble?
A: Maybe. If the other side challenges the verification, the court could dismiss under Rule 12(b)(1). Boyd v. Boyd makes clear that the dismissal is without prejudice (since there is no statute of limitations on divorce), so the plaintiff can refile with a proper verification. The practical consequence is delay and extra cost, not permanent loss of the action.
Background and statutory framework
Three threads run through this opinion: notary authority, divorce verification, and partnership agency.
On notary authority, G.S. 10-5 says notaries may take affidavits and administer oaths. Verifications of pleadings are affidavits under Rule 11(b), so notaries are the right professionals to handle them in general. Nothing in the notary statutes specifically bars a notary who happens to be a lawyer from notarizing in a particular case.
The barrier is in G.S. 47-8, a 1905 statute that prevents a practicing attorney from administering oaths in cases in which the attorney appears. The policy reason is clean: oaths are supposed to be sworn before a neutral officer who has no personal stake in the matter. An attorney representing the affiant in the underlying case is not neutral.
The partnership overlay extends G.S. 47-8 from the single attorney who actually files the case to all partners in the same firm. G.S. 59-39(a) makes partners' acts in the firm's usual business bind the partnership. Barnes v. Campbell Chain Co. confirms the general agency principle. The AG was unwilling to draw a line that would let one partner do indirectly what another partner cannot do directly.
The verification of a divorce complaint is required by N.C.G.S. § 50-8. A failure to verify properly is jurisdictional, which is why dismissal runs under Rule 12(b)(1). Boyd v. Boyd analyzed exactly that problem and held the complaint could be refiled with a proper verification.
The AG noted that no NC appellate decision has tested the specific partner-notary scenario, and other jurisdictions are split (citing 21 A.L.R. 3d 483, § 14(b)). The cautious recommendation reflects that uncertainty: when a statutory prohibition is broad and the consequence of crossing it is dismissal of the case, the prudent move is to avoid the conflict.
Citations
- N.C.G.S. § 10-5(a)(2) (notary's power to take affidavits)
- N.C.G.S. § 10-5(a)(3) (notary's power to administer oaths)
- N.C.G.S. § 47-8 (practicing attorney cannot administer oaths in his own case)
- N.C.G.S. § 50-8 (verification of divorce complaint required)
- N.C.G.S. § 59-39(a) (partner's act in usual business binds partnership)
- Rule 11(a), N.C. Rules of Civil Procedure (signature of attorney sufficient for most pleadings)
- Rule 11(b), N.C. Rules of Civil Procedure (verification in form of affidavit when required)
- Rule 12(b)(1), N.C. Rules of Civil Procedure (dismissal for lack of jurisdiction)
- Barnes v. Campbell Chain Co., 47 N.C. App. 488, 267 S.E.2d 388 (1980) (partnership agency)
- Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569 (1983) (improperly verified divorce complaint dismissed; can be refiled)
- 21 A.L.R. 3d 483, § 14(b) (split of authority across jurisdictions)
Source
- Landing page: https://ncdoj.gov/opinions/notary-publics-verification-of-divorce-complaint-notary-of-counsel-to-plaintiffs-attorney/
Original opinion text
Requested By:
James Lee Knight
Notary Public, Guilford County
Question:
Is it advisable from a notary who is also a partner in a law firm acting of counsel to an attorney filing a divorce complaint to notarize the verification of the client? If not, is the complaint subject to dismissal?
Conclusion:
No.
Yes.
Rule 11(b), North Carolina Rules of Civil Procedure, describes the requirements for verification of a pleading if it is mandated by the rules or by statute. The verification must be in the form of an affidavit. As such, it must be sworn to before a person authorized to administer oaths. G.S. 10-5(a)(2) expressly authorizes a notary public to take affidavits and subsection (a)(3) authorizes a notary to administer oaths. G.S. 50-8 does require verification by the party involved when filing for divorce. G.S. 47-8 provides that no practicing attorney has "power to administer any oaths to a person to any paper-writing to be used in any legal proceedings in which he appears as attorney." That prohibition has been in effect since 1905, but has apparently never been the subject of an appellate decision.
This question requires in addition to the statutory references an examination of the rules regarding the relationship of attorneys in a general partnership. In the situation presented, one partner of Firm A signed the complaint as attorney for the plaintiff and the partnership was listed as "of counsel" to that partner. Another partner of Firm A notarized the verification of the plaintiff. G.S. 59-39(a) sets out a basic premise of agency law that the acts of one partner, including the execution of any instrument in the partnership name, for the purpose of carrying on the usual business of the partnership is binding on the partnership unless he has in fact no such authority and the person with whom he is dealing is aware of that fact. See Barnes v. Campbell Chain Co., 47 NC App 488, 267 SE 2d 388 (1980). Representing a client in a divorce proceeding would obviously be the usual business of a law firm partnership. Thus, when one partner of Firm A appears as attorney for a plaintiff in a divorce proceeding, the other partners in the firm also "appear" and they could be prohibited under G.S. 47-8 from notarizing the verification of the client. This would be true whether or not the firm appears as "of counsel" to the individual partner on the face of the complaint or answer.
The courts which have considered this type of question are divided. 21 ALR 3d 483, § 14(b).
Therefore, it is the recommendation of this office that the practice should be avoided and that an attorney/notary who acts in this fashion proceeds at his own risk.
If the divorce complaint is not properly verified, it is subject to dismissal. Boyd v. Boyd, 61 NC App 334, 300 SE 2d 569 (1983). As the Court of Appeals noted in that case, the plaintiff may refile the complaint with a proper verification since there is no applicable statute of limitations and the complaint is subject to dismissal under Rule 12(b)(1), North Carolina Rules of Civil Procedure.
Pleadings not requiring verification by one of the parties are not subject to dismissal if they are verified anyway and a partner of the firm representing that client acts as the notary. However, G.S. 47-8 would still seem to say that partner is without power to act as a notary in that situation. The signature of the attorney signing the pleadings would be adequate under Rule 11(a), North Carolina Rules of Civil Procedure.
LACY H. THORNBURG
Attorney General
Jane P. Gray
Special Deputy Attorney General