May 18, 1988
Subject:
Notary Publics; Verification of Divorce Complaint; Notary of Counsel to Plaintiff’s Attorney
Requested By:
James Lee Knight Notary Public, Guilford County
Question:
Is it advisable from 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? If not, is the complaint subject to dismissal?
Conclusion:
No.
Yes.
Rule 11(b), North Carolina Rules of Civil Procedure, describes the requirements for verification of a pleading if it is mandated by the rules or by statute. The verification must be in the form of an affidavit. As such, it must be sworn to before a person authorized to administer oaths. G.S. 10-5(a)(2) expressly authorizes a notary public to take affidavits and subsection (a)(3) authorizes a notary to administer oaths. G.S. 50-8 does require verification by the party involved when filing for divorce. G.S. 47-8 provides 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." That prohibition has been in effect since 1905, but has apparently never been the subject of an appellate decision.
This question requires in addition to the statutory references an examination of the rules regarding the relationship of attorneys in a general partnership. In the situation presented, one partner of Firm A signed the complaint as attorney for the plaintiff and the partnership was listed as "of counsel" to that partner. Another partner of Firm A notarized the verification of the plaintiff. G.S. 59-39(a) sets out a basic premise of agency law that the acts of one partner, including the execution of any instrument in the partnership name, for the purpose of carrying on the usual business of the partnership is binding on the partnership unless he has in fact no such authority and the person with whom he is dealing is aware of that fact. See Barnes v. Campbell Chain Co., 47 NC App 488, 267 SE 2d 388 (1980). Representing a client in a divorce proceeding would obviously be the usual business of a law firm partnership. Thus, when one partner of Firm A appears as attorney for a plaintiff in a divorce proceeding, the other partners in the firm also "appear" and they could be prohibited under G.S. 47-8 from notarizing the verification of the client. This would be true whether or not the firm appears as "of counsel" to the individual partner on the face of the complaint or answer.
The courts which have considered this type of question are divided. 21 ALR 3d 483, § 14(b).
Therefore, it is the recommendation of this office that the practice should be avoided and that an attorney/notary who acts in this fashion proceeds at his own risk.
If the divorce complaint is not properly verified, it is subject to dismissal. Boyd v. Boyd, 61 NC App 334, 300 SE 2d 569 (1983). As the Court of Appeals noted in that case, the plaintiff may refile the complaint with a proper verification since there is no applicable statute of limitations and the complaint is subject to dismissal under Rule 12(b)(1), North Carolina Rules of Civil Procedure.
Pleadings not requiring verification by one of the parties are not subject to dismissal if they are verified anyway and a partner of the firm representing that client acts as the notary. However,
G.S. 47-8 would still seem to say that partner is without power to act as a notary in that situation. The signature of the attorney signing the pleadings would be adequate under Rule 11(a), North Carolina Rules of Civil Procedure.
LACY H. THORNBURG Attorney General
Jane P. Gray Special Deputy Attorney General