Can a lawyer who notarizes a client's affidavit still represent that client at a hearing or trial in the same matter?

Plain-English summary

A landlord-tenant lawyer wanted to notarize affidavits signed by his landlord clients, file them in pending eviction cases, and then represent the clients at hearing or trial. The question was whether notarizing the affidavit triggers the advocate-witness rule, Prof.Cond.R. 3.7(a), which bars a lawyer from being an advocate at a trial in which the lawyer is likely to be a necessary witness.

The Board surveyed Ohio appellate law on disqualification under the rule. Disqualifying a party's chosen lawyer is a drastic measure courts impose only when absolutely necessary, and only when real harm is likely to result. A lawyer is a "necessary witness" only after the trial court finds the proposed testimony material and relevant and the evidence unobtainable elsewhere; being a merely potential witness, or an opponent's stated intent to call the lawyer, is not enough (City of Akron v. Carter; State v. Johnson). The case law also requires the trial court to hold a hearing, oral or non-oral, before disqualifying a lawyer under Prof.Cond.R. 3.7.

Applying that framework, the Board concluded notarizing a document for a client does not transform the lawyer into a necessary witness or even make it likely the lawyer will be called. A lawyer notarizing an affidavit is not vouching for the facts in it; the lawyer is confirming that the client appeared and signed. The facts in the affidavit are obtainable elsewhere, such as from the landlord. So the rule supports no automatic or blanket bar. If specific questions later arise, such as whether the affidavit was properly executed or who the affiant was, the trial court may hold a hearing to decide whether the lawyer has become a necessary witness; the determination is fact-based and case-by-case.

In practice

Under this opinion, a lawyer may notarize a client's affidavit, file it in a pending matter, and continue to represent the client, because the act of notarizing does not by itself make the lawyer a necessary witness under Prof.Cond.R. 3.7(a). Per the opinion, disqualification is not automatic; it requires a court finding, after a hearing, that the lawyer's testimony is material, relevant, and unobtainable elsewhere. The opinion holds that if a genuine question arises about the affidavit's execution or the affiant's identity, the trial court may hold a hearing to determine whether the lawyer must be disqualified.

Common questions

Q: Can a lawyer who notarized a client's affidavit still represent the client at trial?

A: The opinion concludes yes. Notarizing a client's affidavit does not by itself make the lawyer a necessary witness, so Prof.Cond.R. 3.7 does not impose an automatic bar.

Q: When does notarizing turn a lawyer into a "necessary witness"?

A: Per the opinion, only if a trial court finds, after a hearing, that the lawyer's testimony is material and relevant and the evidence is unobtainable elsewhere, for example if a real question arises about how the affidavit was executed or who signed it.

Q: Does the opposing party's threat to call the lawyer require disqualification?

A: No. The opinion relies on case law holding that a party's mere declaration of intent to call opposing counsel, or the lawyer being a potential witness, is an insufficient basis for disqualification.

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 3.7 (lawyer as witness; Model Rule 3.7), the advocate-witness rule, and reads it against Ohio appellate decisions defining "necessary witness" and the procedure for disqualification. It also notes Prof.Cond.R. 3.3, cmt. [3], that an advocate is generally not required to have personal knowledge of matters asserted in litigation documents.

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 3.7(a) (Model Rule 3.7)
• Ohio Prof.Cond.R. 3.3, cmt. [3] (advocate not required to have personal knowledge of document contents)

Cases:

• City of Akron v. Carter, 190 Ohio App.3d 420, 2010-Ohio-5462 (9th Dist.), standard for "necessary witness"
• Puritas Metal Prods., Inc. v. Cole, 2008-Ohio-4653 (9th Dist.); Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 1998-Ohio-439, disqualification standards
• State v. Johnson, 197 Ohio App.3d 631, 2011-Ohio-6907 (6th Dist.), potential witness is not enough
• Reo v. Univ. Hosp. Sys., 2019-Ohio-1411, 131 N.E.3d 986 (11th Dist.); Brown v. Spectrum Networks, Inc., 180 Ohio App.3d 99, 2008-Ohio-6687 (1st Dist.), hearing required

Other opinions cited:

• Tex. Adv. Op. 439 (1987): lawyer notarizing and representing

See also

• Ohio BPC Op. 2021-003: Lawyer-Shareholder as Advocate and Witness in Arbitration
• Ohio BPC Op. 2020-005: Law Director as Advocate When an Office Lawyer Is a Witness
• Ohio BPC Op. 2003-005: Law Director as Advocate When a Colleague Testifies

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2022/06/Adv.Op_.-2022-05-Final.pdf

Original opinion text

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

OPINION 2022-05
Issued June 10, 2022

                   Lawyer Notarization of Affidavit of Client

SYLLABUS: A lawyer may notarize an affidavit of a client that will be filed in a pending
matter and represent the client at a subsequent hearing or trial in the matter. If questions
arise as to the execution of the affidavit or the identity of the affiant, then the court must
hold a hearing to determine if a lawyer must be disqualified under Prof.Cond.R. 3.7.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
HON. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                  OPINION 2022-05
                                 Issued June 10, 2022

                   Lawyer Notarization of Affidavit of Client

SYLLABUS: A lawyer may notarize an affidavit of a client that will be filed in a pending
matter and represent the client at a subsequent hearing or trial in the matter. If questions
arise as to the execution of the affidavit or the identity of the affiant, then the court must
hold a hearing to determine if a lawyer must be disqualified under Prof.Cond.R. 3.7.

QUESTION PRESENTED:

   May a lawyer notarize an affidavit of a client that will be filed in a pending matter

and subsequently represent the client at a hearing or trial in the matter?

APPLICABLE RULES: Prof.Cond.R. 3.7

OPINION:

   The requesting lawyer practices landlord-tenant law and handles the eviction of

tenants on behalf of landlords. The lawyer wishes to notarize affidavits, signed by his
landlord clients, that will be filed in pending cases. The affidavits are likely to include
information such as a whether a written or oral lease agreement exists, whether the tenant
is behind in rent or has violated another term of the lease, and whether the tenant still
resides in the property. The landlord will have personal knowledge of the facts contained
in each affidavit while the lawyer representing the landlord is unlikely to have personal
knowledge of the facts set forth in the affidavit.

   Prof.Cond.R. 3.7(a), commonly known as the “advocate-witness” rule, prohibits a

lawyer from serving as “an advocate at a trial in which the lawyer is likely to be a
Op. 2022-05 2

necessary witness,” unless one of the exceptions stated in the rule applies. (Emphasis
added.) Ohio appellate courts have extensively addressed the advocate-witness rule in
establishing parameters as to the disqualification of counsel for a party.

   Disqualification of a party’s chosen lawyer is a “drastic measure [that] courts

should hesitate to impose except when absolutely necessary.” City of Akron v. Carter, 190
Ohio App. 3d 420, 2010-Ohio-5462, ¶19 (9th Dist.) quoting Puritas Metal Prod. Inc. v. Cole,
2008-Ohio-4653, 2008 Ohio App. LEXIS 3900, ¶25 (9th Dist.) and Kala v. Aluminum
Smelting & Refining Co., 81 Ohio St. 3d 1, 1998-Ohio-439. Disqualification is absolutely
necessary only if “real harm is likely to result from failing to [disqualify].” Carter at ¶9
quoting Puritas at ¶28. A lawyer is a necessary witness after a trial court “determine[s]
that the proposed testimony is material and relevant to the issues being litigated and that
the evidence is unobtainable elsewhere." Carter at ¶20 citing Puritas at ¶39. “A finding
of necessity takes into account such factors as the significance of the matters, weight of
the testimony and availability of other evidence * * * .” Carter, citing Puritas ¶34. It is not
enough that a lawyer be a “potential” witness in order to disqualify the lawyer. See State
v. Johnson, 197 Ohio App. 3d 631, 2011-Ohio-6907, ¶20 (6th Dist.). Further, “[a] party’s
mere declaration of an intention to call opposing counsel as a witness is an insufficient
basis for disqualification even if that counsel could give relevant testimony.” Cater ¶20,
quoting Puritas ¶34.

   It is important for trial courts to follow the proper procedures in determining

whether disqualification is necessary. Reo v. Univ. Hosp. Sys., 2019-Ohio-1411, 131 N.E.3d
986, ¶17 (11th Dist.) citing Fordeley v. Fordeley, 2015-Ohio-2610, 2015 Ohio App. LEXIS
2642 (11th Dist.) The case law establishes that a trial court is required to hold a hearing,
either oral or non-oral, to consider whether a lawyer should be disqualified under
Prof.Cond.R. 3.7. Reo at ¶34 citing Brown v. Spectrum Networks, Inc., 180 Ohio App.3d 99,
2008-Ohio-6687, ¶11 (1st. Dist.). The trial court must make factual and/or legal
determinations relevant to the required Prof.Cond.R. 3.7 analysis for granting
disqualification. See King v. Pattison, 2013-Ohio-4665, 2013 Ohio App. LEXIS 4880, ¶23
(5th Dist.).

   The Board concludes that the act of notarizing a document on behalf of a client

does not immediately transform the notarizing lawyer into a necessary witness or even
make it likely the lawyer will be called as a witness. Lawyers regularly notarize
Op. 2022-05 3

documents on behalf of clients in many areas of law, such as landlord-tenant law,
domestic law, or probate law. “An advocate is responsible for pleadings and other
documents prepared for litigation, but is usually not required to have personal
knowledge of matters asserted therein, for litigation documents ordinarily present
assertions by the client, or by someone on the client’s behalf, and not assertions by the
lawyer.” Prof.Cond.R. 3.3, cmt. [3]. The fact that a lawyer − having no personal
knowledge of the matters asserted therein − notarized a document is typically not
material or relevant to the underlying litigation.

   Further, the information contained in the affidavit is obtainable elsewhere, for

example, from the landlord or property manager. In notarizing an affidavit, a lawyer is
not taking responsibility for or verifying the facts contained therein any more so than
does a notary unknown to the client. The lawyer is simply confirming the client appeared
before him or her and signed or acknowledged the document in his or her presence.
When, at the time the lawyer notarizes the affidavit, there is no question as to the identity
of the affiant and the lawyer follows proper notarization procedures, the likelihood of the
lawyer being called as a necessary witness is remote. There is no harm likely to result
from a lawyer representing a client in a hearing or trial under these circumstances.

   The application of Prof.Cond.R. 3.7 does not support an automatic or blanket

prohibition of a lawyer representing a client when the lawyer has notarized an affidavit
in a matter. If specific questions arise, such as whether the affidavit was properly
executed or the identity of the affiant, then a trial court may determine it is necessary to
have a hearing to establish whether the lawyer is a necessary witness. See Tex. Adv. Op
439-1987. The determination as to whether counsel may continue to represent the client
is a fact-based determination and should be made on a case-by-case basis after a hearing.