Can a lawyer act as the notary administering the oath to his own client on pleadings?

Plain-English summary

A lawyer asked whether he could properly serve as a notary to administer an oath to a client in connection with the client's execution of pleadings such as answers to interrogatories. The committee found no definitive ethical prohibition, noting that ABA Informal Opinion 46 held a lawyer or his partner or associate may act as notary in a case he is conducting if no local statute forbids it, and that whether Florida law forbade the practice was a question of law beyond the committee's jurisdiction. The committee traced the relevant Florida statutes: former Section 90.03 had appeared to bar attorneys from administering oaths in judicial proceedings, but Section 55.071 (1945) and a 1957 repeal nullified that prohibition, so the practice now had legislative sanction.

The committee then discussed Savage v. Parker (Fla. 1907), in which the Florida Supreme Court, without resting on the statute, said the practice of having affidavits sworn before a solicitor of record was "not to be commended," especially in bills seeking injunctions. The committee read that as withholding positive approval rather than forbidding the practice. Given that nearly 60 years had passed without the Court repeating the view, that the legislature had sanctioned the practice, and that thousands of lawyers had served as notaries, the committee declined to find an ethical ground for disapproval. It cautioned that a lawyer could be put in an awkward position, for example if summoned to establish the administration of the oath in a perjury prosecution, and concluded that a prudent practitioner should limit notary service to instances where no alternate was available and avoid administering an oath where later judicial scrutiny of the administration was probable.

Currency note

This opinion was issued in September 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canons 15 and 32. The concern it identified, a lawyer potentially being called to testify about the oath, is related to the lawyer-as-witness rule now at Rule 4-3.7 of the Rules Regulating The Florida Bar (Model Rule 3.7). Subsequent rule amendments or later opinions may have changed the analysis, and the cited statutes (Section 55.071, former Section 90.03, Florida Statutes) and case law may have changed. Treat this page as historical context, not current guidance. Verify against the current rules and statutes before relying on any specific provision mentioned here.

Common questions

Q: Is it against the rules for a lawyer to notarize his own client's pleadings?

A: Under this opinion, no. The committee found no definitive ethical prohibition against a lawyer serving as notary to administer an oath to a client on pleadings, and noted the practice had legislative sanction in Florida.

Q: Why does the opinion still counsel caution?

A: The committee pointed to the older Savage v. Parker admonition and the risk that the lawyer could be put in an awkward position, such as being summoned to establish the administration of the oath in a perjury prosecution.

Q: When did the committee say a lawyer should avoid notarizing?

A: It said a prudent lawyer should limit the service to when no other notary is available and should avoid administering an oath where later judicial scrutiny of the administration is probable.

Background and rules framework

The opinion applied the former Canons 15 and 32. It treated the validity of a lawyer-administered oath as a question of Florida law, governed by Section 55.071 and former Section 90.03, Florida Statutes, rather than a matter the committee could resolve. The ethical concern the committee flagged, the lawyer potentially testifying about the oath, is related to the lawyer-as-witness restriction now found in Rule 4-3.7 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 3.7.

Citations and references

Rules of Professional Conduct:

• Canon 15 [Canons of Professional Ethics]
• Canon 32 [Canons of Professional Ethics]

Statutes:

• Section 55.071, Florida Statutes [validity of oath administered by an attorney]
• Former Section 90.03, Florida Statutes [repealed; prior restriction on attorneys administering oaths]
• Chapter 22843, Laws of Florida (1945); Chapter 56-196, Laws of Florida

Cases:

• Savage v. Parker, 35 Fla. 1002, 43 So. 507 (1907), declining to commend the practice of swearing affidavits before a solicitor of record

Other opinions cited:

• ABA Informal Opinion 46

See also

• FL Bar Ethics Op. 72-2: Lawyer Called as a Witness by an Adversary
• FL Bar Ethics Op. 67-27: Client Conducting a Supplementary-Proceedings Examination

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-19/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-19-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 67-19
September 29, 1967
Advisory ethics opinions are not binding.
Although there is no ethical prohibition against a lawyer administering an oath as a notary to a client in connection with the execution of pleadings, it is prudent to limit such service to instances in which no one else is available to serve as notary, and particularly to avoid administration of an oath in circumstances suggesting a probability of judicial scrutiny of the actual administration of the oath.
Canons: 15, 32
Opinion: ABA Informal 46
Cases: Savage v. Parker, 35 Fla. 1002, 43 So. 507 (1907)
Statute: F.S. 55.071
Session Laws: Ch. 22843, Laws of Fla. (1945), Ch. 56-196, Laws of Fla.
Chairman MacDonald stated the opinion of the committee:
We are asked by a member of The Florida Bar whether he may properly serve as a notary for purposes of the administering of an oath to a client in connection with execution by the client of pleadings such as answers to interrogatories, etc.
We are aware of no definitive ethical prohibition against a lawyer so serving. Informal Opinion 46 of the American Bar Association Committee on Professional Ethics held that a lawyer or his partner or associate may act as notary in a case which he is conducting provided no local statute forbids this. Whether Florida law forbids this action is a question of law, which questions are ordinarily beyond our jurisdiction.
In this instance we do wish to draw attention to former Section 90.03, Florida Statutes, which appears to have precluded attorneys from administering oaths required in a judicial proceeding except to a witness before a jury in open court. This statute, which dated back at least to 1906 (Section 1732, General Statutes 1906), was repealed not later than 1957 by Chapter 57-196, Laws of Florida, which contains a preamble reading:
WHEREAS, section 55.071, Florida Statutes, adopted by the Legislature in 1945, completely nullifies the prohibitions against attorney administering oaths as provided by section 90.03, Florida Statutes, a 1906 act, . . .
Section 55.071, Florida Statues, adopted originally as Section 1, Chapter 22843, Laws of Florida, 1945, clearly constitutes legislative sanction of the validity of an oath administered by an attorney in connection with execution of pleadings by his client.
Accordingly, it would appear that there is no legislative prohibition now effective in Florida. However, in Savage v. Parker, 35 Fla. 1002, 43 So. 507 (1907), decided after adoption of the predecessor of Section 90.03, our Supreme Court without mention of such statute commented:
We call attention to the fact that every one of the affidavits, including the one appended to the bill, was sworn and subscribed to before J. H. Jones, one of the solicitors of record for the appellees, as a notary public. No point is made here as to this; but, as it becomes important, as we shall see later on, to know when the affidavits were obtained and that their existence was known to the solicitors of the appellees, we think it well to say that the practice, which prevails in this state to some extent, is not to be commended, especially in bills seeking injunctions. (Emphasis supplied.)
We do not regard this admonition as one necessarily based upon Section 90.03, and thus it may be as meaningful today as in 1907 without regard to the adoption of Section 55.071, Florida Statutes. Certainly there is room to suggest that a lawyer is well advised on occasion to avoid service as a notary. As an officer of the Court and as a representative of his client he might, for example, be in an awkward position if summoned to establish the administration of the oath in a perjury prosecution. On the other hand, it is manifest that daily lawyers are required to obtain oaths which must be administered by them or an employee directly under their control. Keeping in mind that Savage did not forbid, but only withheld positive approval, and that nearly 60 years have elapsed apparently without reiteration of this view by the Court, during which time the legislature has sanctioned the practice in issue, and literally thousands of lawyers have served as notaries, we would not be inclined to find in Savage a ground for positive disapproval on an ethical basis of the act of a lawyer in serving as notary for his client. On the other hand, to the extent, if any, that Savage poses a question of law, it obviously is one beyond our jurisdiction. Thus in our judgment a prudent practitioner would be well advised to limit his service as a notary to those instances wherein no alternate party was available, and to endeavor particularly to avoid administration of an oath in circumstances suggesting a probability of later judicial scrutiny of the actual administration of the oath.