Reply to: JILL F. CRAMER INSURANCE SECTION
(919) 716-6610 Fax: (919) 716-6757
August 9, 2001
Ms. Sheila Stafford Pope General Counsel
N.C. Secretary of State Post Office Box 29622 Raleigh, North Carolina 27626-0622
RE: Advisory Opinion; Attorney acting as notary and legal counsel;
N.C. Gen Stat. §§ 10A-9(c)(1) and 10A-9(c)(2)
Dear Ms. Pope:
You inquired whether there are any legal or ethical issues that would prevent a licensed attorney, who is also a notary public, from notarizing a document for a client and then representing that client in a legal matter relating to the same document. Under current law, there are no legal or ethical requirements that prevent such action by a North Carolina licensed attorney.
Your inquiry references a previously published opinion of the North Carolina Attorney General. That opinion, found at 58 N.C.A.G. 35 (1988), concluded that it was not advisable for a notary who is also a partner in a law firm acting of counsel to an attorney filing a divorce complaint to notarize the verification of the client. It was based on N.C. Gen Stat. § 47-8 which was repealed by Session Laws 1991, c. 543, s. 1. The repealed statute provided “that no practicing attorney has ‘power to administer any oaths to a person to any paper-writing to be used in any legal proceedings in which he appears as attorney.’” 58 N.C.A.G. 35, 36 (1988) 1
You state that applicants in notary classes have been instructed that “notary attorneys” are not allowed to administer an oath to an affidavit or administer a proof of execution to a document for persons they are representing in a legal proceeding based on both 58 N.C.A.G. 35 (1988) and
1With respect to your inquiry about potential ethical problems, the North Carolina State Bar (hereinafter "the Bar") is the body primarily responsible for responding to inquiries regarding ethical questions relating to licensed attorneys. Under RPC 136, Attorneys as Notaries, July 17, 1992 a lawyer may notarize documents which are to be used in legal proceedings in which the lawyer appears. A copy of RPC 136 is enclosed for your convenience. According to Ms. Alice Neece Mine, Assistant Executive Director of the Bar, RPC 136 permits a lawyer to notarize documents as allowed by law.
Ms. Sheila S. Pope August 9, 2001 Page 2
N.C. Gen Stat. §§ 10A-9(c)(1), (2). With the repeal of N.C. Gen Stat. § 47-8, N.C. Gen Stat. § 10A-9 must be read exclusive of that former prohibition. To the extent the conclusions reached in 58 N.C.A.G. 35 (1988) rely on N.C. Gen. Stat. § 47-8, those conclusions are no longer valid.
We have identified no statutory limitations specific to lawyer notaries. Lawyer, as well as non-lawyer, notaries are restricted from notarizing documents in which they are also a signing party (other than as a trustee in a deed of trust). N.C. Gen. Stat. § 10A-9(c)(1). All notaries are also prohibited from notarizing documents in which they might have a right, title, interest or monetary profit. N.C. Gen. Stat. § 10A-9(c)(2). Attorney notaries may receive compensation for legal services in connection with the notarized documents. Id.
Subject to these limitations, we find no statute prohibiting an attorney from notarizing a document for a client and then representing that client in a legal matter relating to the same document.
Reginald L. Watkins Senior Deputy Attorney General
Jill F. Cramer
Assistant Attorney General Enclosure
cc: Michael J. Brown, Investigator
N.C. Secretary of State