Ethics Opinion

Opinion 67-19

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:
Opinion:

15, 32
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to 1906 (Section 1732, General Statutes 1906), was repealed not later than 1957 by Chapter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.