Ezel / Ethics Opinions / OSB
OSB August 2005

Can a lawyer who is a notary take a notarial acknowledgment over the phone, or have a secretary notarize a signature the notary did not witness?

Short answer: No. The opinion concludes that certifying a notarial acknowledgment for someone who did not personally appear, whether by phone or through a secretary, is dishonest conduct that violates Oregon RPC 8.4(a)(3) and, if the certificate is offered as evidence, RPC 3.3.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

A notary certificate states that on a certain day an identified individual personally appeared before the notary and executed or acknowledged the instrument. The opinion addresses whether a lawyer who happens to be a notary may take notarial acknowledgments over the phone or insist that the lawyer's secretary do so.

The opinion concludes the answer is no. It applies Oregon RPC 8.4(a)(3), which makes it misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on fitness to practice. It also references RPC 3.3(a)(3), which prohibits knowingly offering evidence the lawyer knows to be false, and RPC 3.3(a)(5), which prohibits engaging in illegal conduct (notarial acts are governed by ORS chapter 194, and violating a statute is illegal conduct).

The opinion reasons that certifying a personal appearance that did not occur, whether the acknowledgment is taken by phone or delegated to a secretary, clearly violates RPC 8.4(a)(3), and that offering such a certificate as evidence would also violate RPC 3.3(a)(3) and (a)(5).

In practice

Under this opinion, as the Oregon rules stood when it issued, a lawyer-notary's certificate of personal appearance must reflect an actual personal appearance before the notary. The opinion holds that taking the acknowledgment by telephone, or directing a secretary to certify a signature the secretary did not witness, is dishonest conduct under RPC 8.4(a)(3).

Common questions

Q: Can a notary acknowledge a signature over the phone?

A: No, for a lawyer-notary. The opinion concludes that certifying a personal appearance that did not happen is dishonest conduct violating Oregon RPC 8.4(a)(3).

Q: Can a lawyer have a secretary notarize a document the lawyer signed elsewhere?

A: No. The opinion concludes a lawyer may not insist that a secretary take an acknowledgment without the required personal appearance; the false certificate violates RPC 8.4(a)(3).

Q: What happens if the false notarization is used in court?

A: The opinion concludes that offering such a certificate as evidence would also violate Oregon RPC 3.3(a)(3) (offering false evidence) and 3.3(a)(5) (illegal conduct).

Background and rules framework

The opinion interprets Oregon RPC 8.4(a)(3) (dishonesty, fraud, deceit, or misrepresentation), read with RPC 3.3(a)(3) (false evidence) and RPC 3.3(a)(5) (illegal conduct). These track Model Rules 8.4 and 3.3. Notarial acts are governed by ORS chapter 194.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 8.4(a)(3) / Model Rule 8.4 (dishonesty, fraud, deceit, misrepresentation)
  • Oregon RPC 3.3(a)(3) and (a)(5) / Model Rule 3.3 (false evidence; illegal conduct)

Statutes:

  • ORS chapter 194 (notarial acts)

Cases:

  • In re Morin, 319 Or 547, 878 P2d 393 (1994)
  • In re Hockett, 303 Or 150, 734 P2d 877 (1987)

See also

Source

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