The Florida Bar

September 29, 1967

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

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 This statute, which dated back at least to 1906 (Section 1732, General Statutes 1906), was repealed not later than 1957 by Chapter 57-196, Laws of Florida, which contains a preamble reading: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.

[Revised: 08-24-2011]