Can a licensed North Carolina attorney notarize a document for a client and then represent that client in a legal matter about the same document?
Plain-English summary
Sheila Stafford Pope, the Secretary of State's General Counsel, told the AG that notary classes had been teaching attorney-notaries that they could not administer an oath to an affidavit or take a proof of execution for a client they were representing in a legal proceeding. The instruction relied on a 1988 AG opinion (58 N.C.A.G. 35) and N.C. Gen. Stat. §§ 10A-9(c)(1) and (c)(2). Pope asked whether that was still good law.
Senior Deputy AG Reginald Watkins and Assistant AG Jill Cramer answered that no statute prevents an attorney from notarizing a document for a client and then representing that client on a legal matter about the same document.
The 1988 advisory opinion that taught attorneys otherwise was decided under N.C. Gen. Stat. § 47-8, which had said 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." The General Assembly repealed § 47-8 in 1991 (Session Laws 1991, c. 543, s. 1). With the statute gone, the 1988 opinion lost its statutory hook and was no longer good guidance.
The only remaining notary restrictions in the 2001 reading of N.C. Gen. Stat. § 10A-9 are general and apply to every notary, lawyer or not. Under § 10A-9(c)(1), a notary cannot notarize a document in which the notary is a signing party (except as a trustee in a deed of trust). Under § 10A-9(c)(2), a notary cannot notarize a document in which the notary holds a right, title, interest, or monetary profit. Importantly, § 10A-9(c)(2) explicitly carves out legal fees: an attorney-notary may receive compensation for legal services connected to a notarized document without triggering the self-interest bar.
The AG also pointed to the State Bar's RPC 136 (July 17, 1992), titled "Attorneys as Notaries," which says a lawyer may notarize documents to be used in legal proceedings in which the lawyer appears. Alice Neece Mine, the State Bar's Assistant Executive Director, confirmed that RPC 136 permits a lawyer to notarize documents as allowed by law.
The bottom line in 2001: subject to the universal "no signing party" and "no personal interest" limits, an attorney could notarize a client's document and then handle the litigation on that document.
Currency note
This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The North Carolina Notary Public Act in Chapter 10A was reorganized and substantially rewritten by the Notary Public Act of 2005 (S.L. 2005-391), which renumbered many of the provisions discussed here. The State Bar's Rules of Professional Conduct have also been overhauled. Anyone currently practicing should verify the current text of Chapter 10B (the current notary chapter) and current State Bar guidance before relying on this opinion.
Background and statutory framework
The repealed § 47-8. Before 1991, North Carolina forbade practicing attorneys from administering oaths to any "paper-writing" that would be used in legal proceedings where the attorney appeared as counsel. The 1988 AG opinion at 58 N.C.A.G. 35 advised that, under that prohibition, even a notary who was only "of counsel" to the lawyer filing a divorce complaint should not notarize the verification page for the client. The thinking was anti-self-interest: the notary's oath should come from a neutral hand, and an attorney about to file a paper-writing was not neutral about its contents.
The 1991 repeal. Session Laws 1991, c. 543, s. 1 wiped § 47-8 off the books. The General Assembly did not move the prohibition to another section; it removed it entirely. After that, the only restrictions on attorney-notaries that the AG could locate in 2001 were the general § 10A-9 restrictions on all notaries.
The general § 10A-9 restrictions. Section 10A-9(c)(1) prevented any notary, attorney or not, from notarizing a document in which the notary was a signing party. The carve-out was for deed-of-trust trustees, who often appear on the deed and were treated as a recognized exception. Section 10A-9(c)(2) prohibited a notary from notarizing a document in which the notary had a right, title, interest, or monetary profit. The legal-fees carve-out at the end of § 10A-9(c)(2) confirmed that an attorney's contingent or hourly fee for legal work related to the document did not count as the kind of interest that disqualified the attorney from notarizing.
State Bar RPC 136. The State Bar's separate ethics review reached the same conclusion. RPC 136 (1992) said a lawyer-notary may notarize documents to be used in legal proceedings in which the lawyer appears, subject to whatever law otherwise constrains the notary. With § 47-8 repealed, the only law left was § 10A-9, and § 10A-9 did not block the practice.
Why notary classes were still teaching the old rule. Pope's inquiry came up because notary instructors were still relying on the 1988 AG opinion and on a strict reading of § 10A-9. The AG explained that the 1988 opinion's reasoning had been pulled out from under it by the 1991 repeal and that the conclusions in 58 N.C.A.G. 35 were no longer valid.
Common questions
Q: Could an attorney notarize a document where the attorney is also a signing party?
A: No. That limit applied to all notaries equally. The only exception in 2001 was for a deed-of-trust trustee, where the trustee's signature was an unavoidable part of the document's structure.
Q: Could an attorney notarize a document in which the attorney had a financial interest beyond legal fees?
A: No. Section 10A-9(c)(2) blocked any notary, attorney or not, from notarizing where the notary had a right, title, interest, or monetary profit. An attorney's straightforward legal fee for the client's matter did not count, but a personal interest in the underlying transaction did.
Q: Did the State Bar separately discipline attorney-notaries who notarized for their own clients?
A: Not based on the act of notarizing itself. RPC 136 expressly allowed it. Discipline could still attach for other Rules of Professional Conduct violations, such as conflicts of interest or self-dealing, if the underlying transaction implicated them.
Q: Was a notary class instructor's continued teaching of the older rule unlawful?
A: The opinion did not address that. It addressed only what the law permitted. Instructors who continued to teach the pre-1991 rule were simply teaching outdated guidance.
Citations from the opinion
- N.C. Gen. Stat. § 10A-9(c)(1)
- N.C. Gen. Stat. § 10A-9(c)(2)
- N.C. Gen. Stat. § 47-8 (repealed by Session Laws 1991, c. 543, s. 1)
- 58 N.C.A.G. 35 (1988)
- North Carolina State Bar RPC 136 (July 17, 1992)
Source
Original opinion text
Reply to: JILL F. CRAMER INSURANCE SECTION
(919) 716-6610 Fax: (919) 716-6757
August 9, 2001
Ms. Sheila Stafford Pope General Counsel
N.C. Secretary of State Post Office Box 29622 Raleigh, North Carolina 27626-0622
RE: Advisory Opinion; Attorney acting as notary and legal counsel;
N.C. Gen Stat. §§ 10A-9(c)(1) and 10A-9(c)(2)
Dear Ms. Pope:
You inquired whether there are any legal or ethical issues that would prevent a licensed attorney, who is also a notary public, from notarizing a document for a client and then representing that client in a legal matter relating to the same document. Under current law, there are no legal or ethical requirements that prevent such action by a North Carolina licensed attorney.
Your inquiry references a previously published opinion of the North Carolina Attorney General. That opinion, found at 58 N.C.A.G. 35 (1988), concluded that it was not advisable for 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. It was based on N.C. Gen Stat. § 47-8 which was repealed by Session Laws 1991, c. 543, s. 1. The repealed statute provided "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.'" 58 N.C.A.G. 35, 36 (1988).
You state that applicants in notary classes have been instructed that "notary attorneys" are not allowed to administer an oath to an affidavit or administer a proof of execution to a document for persons they are representing in a legal proceeding based on both 58 N.C.A.G. 35 (1988) and N.C. Gen Stat. §§ 10A-9(c)(1), (2). With the repeal of N.C. Gen Stat. § 47-8, N.C. Gen Stat. § 10A-9 must be read exclusive of that former prohibition. To the extent the conclusions reached in 58 N.C.A.G. 35 (1988) rely on N.C. Gen. Stat. § 47-8, those conclusions are no longer valid.
We have identified no statutory limitations specific to lawyer notaries. Lawyer, as well as non-lawyer, notaries are restricted from notarizing documents in which they are also a signing party (other than as a trustee in a deed of trust). N.C. Gen. Stat. § 10A-9(c)(1). All notaries are also prohibited from notarizing documents in which they might have a right, title, interest or monetary profit. N.C. Gen. Stat. § 10A-9(c)(2). Attorney notaries may receive compensation for legal services in connection with the notarized documents. Id.
Subject to these limitations, we find no statute prohibiting an attorney from notarizing a document for a client and then representing that client in a legal matter relating to the same document.
With respect to your inquiry about potential ethical problems, the North Carolina State Bar is the body primarily responsible for responding to inquiries regarding ethical questions relating to licensed attorneys. Under RPC 136, Attorneys as Notaries, July 17, 1992, a lawyer may notarize documents which are to be used in legal proceedings in which the lawyer appears. A copy of RPC 136 is enclosed for your convenience. According to Ms. Alice Neece Mine, Assistant Executive Director of the Bar, RPC 136 permits a lawyer to notarize documents as allowed by law.
Sincerely,
Reginald L. Watkins Senior Deputy Attorney General
Jill F. Cramer Assistant Attorney General
Enclosure
cc: Michael J. Brown, Investigator, N.C. Secretary of State