Can a lawyer sign affidavits for a client on formal or procedural matters even when the client is available locally to sign?

Plain-English summary

A member asked about the propriety of an attorney signing affidavits for a client in connection with legal proceedings, such as affidavits for suit, attachment, garnishment, and involuntary petitions in bankruptcy, when the client's signature is available locally.

The committee framed the question under two canons: Canon 19, which prohibits an attorney from serving as a witness for his client except as to merely formal matters, and Canon 22, which requires complete candor and fairness before a court and with other lawyers and applies to the preparation of affidavits. The committee concluded that in some instances an attorney may ethically prepare such affidavits, particularly where the affidavit relates to largely formal matters, and noted there may be circumstances where the attorney is the only person qualified to make an affidavit pertinent to a proceeding. In all instances, the attorney should have personal knowledge of the matters stated. Because the inquiry was general, the committee answered it in the affirmative as to formal or procedural matters; in other cases, or where there is the slightest doubt, the better and preferable practice is for the client to execute the document.

Currency note

This opinion was issued in 1964, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 19 and 22 of the Canons of Professional Ethics; the lawyer-as-witness rule is now Rule 4-3.7 and candor toward the tribunal is now Rule 4-3.3 of the Rules Regulating The Florida Bar (Model Rules 3.7 and 3.3). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer sign an affidavit for a client when the client is available?

A: Yes, as to formal or procedural matters, and where the attorney has personal knowledge of the matters stated.

Q: When should the client sign instead?

A: In other cases, or where there is the slightest doubt, the committee said the better and preferable practice is for the client to execute the document.

Q: Which rules framed the analysis?

A: Canon 19 (a lawyer should not be a witness for his client except on merely formal matters) and Canon 22 (candor and fairness before the court, applied to affidavits).

Background and rules framework

The opinion applied former Canon 19 (lawyer as witness) and Canon 22 (candor and fairness) of the Canons of Professional Ethics. Those subjects are now Rule 4-3.7 (lawyer as witness) and Rule 4-3.3 (candor toward the tribunal) of the Rules Regulating The Florida Bar (Model Rules 3.7 and 3.3). The committee tied the permission to the affidavit's formal character and the lawyer's personal knowledge.

Citations and references

Rules of Professional Conduct:

• Canon 19 [Canons of Professional Ethics; lawyer as witness; see current Rule 4-3.7]
• Canon 22 [candor and fairness before the court; see current Rule 4-3.3]

See also

• FL Bar Ethics Op. 64-39: When the Adversary May Call the Lawyer as a Witness
• FL Bar Ethics Op. 67-19: A Lawyer Acting as Notary for a Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-36/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-36.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 64-36
July 3, 1964
Advisory ethics opinions are not binding.
It is proper for an attorney to sign affidavits for a client on formal or procedural matters, even if the client is available locally.
Canons: 19, 22
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar inquires as to the propriety and good judgment of an attorney signing affidavits for a client in connection with legal proceedings, such as affidavits for suit, attachment, garnishment and involuntary petitions in bankruptcy, when the signature of the client is available locally.
Canon 19 prohibits an attorney serving as a witness for his client except as to merely formal matters. Canon 22 requires complete candor and fairness in the conduct of a lawyer before a court and/or with other lawyers. The latter Canon is applicable to preparation of affidavits.
It is the opinion of this Committee that in some instances an attorney may ethically prepare affidavits such as described. This is particularly true when the affidavit relates to matters which are largely formal. Further, there may be some circumstances when the attorney is really the only person qualified to make an affidavit which is pertinent to a particular proceeding. Of course, in all instances, the attorney should have personal knowledge of the matters to which he refers.
Because the inquiry is quite general, the Committee believes that it may be answered in the affirmative as to formal or procedural matters. In other cases, or when there is the slightest doubt, the better and preferable practice would be for the client to execute the document.