Can a North Carolina lawyer notarize a document without witnessing the signers sign it or taking their acknowledgment, if the lawyer knows their signatures?
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This page answers the general question as of 2001. Ezel answers yours: whether it's allowed on your facts, under the current North Carolina Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer notarized co-executors' signatures on a petition to reopen an estate even though he had not witnessed them sign and they had not acknowledged their signatures in his presence; he was, however, familiar with their signatures, and they had in fact signed. The inquiry noted that G.S. section 10A-3(1) defines an "acknowledgment" as a notarial act certifying that a signer, known to or proven to the notary, admitted signing voluntarily in the notary's presence, and observed that this requirement is widely ignored.
The opinion concluded the conduct violated the Revised Rules. Compliance with the law is the most basic requirement of professional responsibility, and even though convenience or "common practice" might suggest shortcuts, a lawyer serving as a notary must meet the legal requirements for a proper acknowledgment. The committee cited Rule 8.4(a) and (d).
The opinion added that the answer is the same if the lawyer directs an employee to notarize the document instead of doing it himself, because Rule 8.4(a) prohibits a lawyer from violating the Rules through the acts of another.
Currency note
This opinion was issued in 2001, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the rule numbering then in effect. Subsequent rule amendments or later opinions, and any changes to the notary statutes, may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.
Common questions
Q: Can a lawyer-notary skip the acknowledgment if he knows the signers' signatures?
A: No. The opinion held that a lawyer serving as a notary must comply with the legal requirements for a proper acknowledgment; familiarity with the signatures did not excuse it, and notarizing without an acknowledgment violated Rule 8.4(a) and (d).
Q: Is notarizing without witnessing really an ethics violation, given how common it is?
A: Yes. The opinion treated compliance with the law as the most basic requirement of professional responsibility and rejected "common practice" as a justification for the shortcut.
Q: Does having an employee do the notarization avoid the problem?
A: No. The opinion held the answer is the same, because Rule 8.4(a) bars a lawyer from violating the Rules through the acts of another.
Background and rules framework
The opinion applied North Carolina Rule 8.4(a) and (d), the analogue to Model Rule 8.4, which makes it misconduct to violate the Rules (including through another's acts) or to engage in conduct prejudicial to the administration of justice. The acknowledgment requirement came from N.C. Gen. Stat. section 10A-3(1).
Citations and references
Rules of Professional Conduct:
- MR 8.4 (misconduct) / NC Rule 8.4(a) and (d)
Statutes:
- N.C. Gen. Stat. section 10A-3(1) (definition of acknowledgment)
See also
Source
- Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2000-formal-ethics-opinion-8/
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Inquiry #1:
Prior to 1999, Attorney H represented the co-executors of the SL Estate. During the administration of the SL Estate, Attorney H failed to repair a deed to convey certain real property located in South Carolina to a trust that was created by SL. In October 1999, this oversight was detected and Attorney H agreed to reopen the estate. On October 28, 1999, the co-executors delivered to Attorney H's office the original petition requesting the estate to be reopened. The co-executors had signed the petition but neglected to have their signatures notarized. Thereafter, Attorney H notarized the petition himself, although he had not witnessed either of the co-executors sign the document and neither had acknowledged his signature on the petition to Attorney H. Attorney H was familiar with both co-executors' signatures, however, and the co-executors did in fact sign the petition.
Gen. Stat. section 10A-3(1) provides that "acknowledgment" of a signature on a document is "a notorial act in which a notary certifies that a signer, whose identity is personally known to the notary or proven on the basis of satisfactory evidence, has admitted, in the notary's presence, having signed a document voluntarily." It is believed that this provision of Chapter 10A is widely ignored. Did Attorney H's conduct violate the Revised Rules of Professional Conduct?
Opinion #1:
Yes, compliance with the law is the most basic requirement of professional responsibility. Although convenience and "common practice" might suggest shortcuts are appropriate, a lawyer serving as a notary must comply with the legal requirements for proper acknowledgment of a document. See Rule 8.4(a) and (d).
Inquiry #2:
Would the answer to inquiry #1 be different if Attorney H merely directed an employee to notarize the document instead of doing it himself?
Opinion #2:
No. See Rule 8.4(a) prohibiting a lawyer from violating the Revised Rules of Professional Conduct through the acts of another.
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