Ohio Board Advisory Opinion Op. 22-05

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
OPINION 2022-05
Issued June 10, 2022
Lawyer Notarization of Affidavit of Client
SYLLABUS: A lawyer may notarize an affidavit of a client that will be filed in a pending
matter and represent the client at a subsequent hearing or trial in the matter. If questions
arise as to the execution of the affidavit or the identity of the affiant, then the court must
hold a hearing to determine if a lawyer must be disqualified under Prof.Cond.R. 3.7.

65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov
PATRICIA A. WISE
CHAIR
RICHARD A. DOVE
DIRECTOR
HON. D. CHRIS COOK
VICE- CHAIR
D. ALLAN ASBURY
SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL
OPINION 2022-05
Issued June 10, 2022
Lawyer Notarization of Affidavit of Client
SYLLABUS: A lawyer may notarize an affidavit of a client that will be filed in a pending
matter and represent the client at a subsequent hearing or trial in the matter. If questions
arise as to the execution of the affidavit or the identity of the affiant, then the court must
hold a hearing to determine if a lawyer must be disqualified under Prof.Cond.R. 3.7.
QUESTION PRESENTED:
May a lawyer notarize an affidavit of a client that will be filed in a pending matter
and subsequently represent the client at a hearing or trial in the matter?
APPLICABLE RULES: Prof.Cond.R. 3.7
OPINION:
The requesting lawyer practices landlord-tenant law and handles the eviction of
tenants on behalf of landlords. The lawyer wishes to notarize affidavits, signed by his
landlord clients, that will be filed in pending cases. The affidavits are likely to include
information such as a whether a written or oral lease agreement exists, whether the tenant
is behind in rent or has violated another term of the lease, and whether the tenant still
resides in the property. The landlord will have personal knowledge of the facts contained
in each affidavit while the lawyer representing the landlord is unlikely to have personal
knowledge of the facts set forth in the affidavit.
Prof.Cond.R. 3.7(a), commonly known as the “advocate-witness” rule, prohibits a
lawyer from serving as “an advocate at a trial in which the lawyer is likely to be a

Op. 2022-05 2
necessary witness,” unless one of the exceptions stated in the rule applies. (Emphasis
added.) Ohio appellate courts have extensively addressed the advocate-witness rule in
establishing parameters as to the disqualification of counsel for a party.
Disqualification of a party’s chosen lawyer is a “drastic measure [that] courts
should hesitate to impose except when absolutely necessary.” City of Akron v. Carter, 190
Ohio App. 3d 420, 2010-Ohio-5462, ¶19 (9th Dist.) quoting Puritas Metal Prod. Inc. v. Cole,
2008-Ohio-4653, 2008 Ohio App. LEXIS 3900, ¶25 (9th Dist.) and Kala v. Aluminum
Smelting & Refining Co., 81 Ohio St. 3d 1, 1998-Ohio-439. Disqualification is absolutely
necessary only if “real harm is likely to result from failing to [disqualify].” Carter at ¶9
quoting Puritas at ¶28. A lawyer is a necessary witness after a trial court “determine[s]
that the proposed testimony is material and relevant to the issues being litigated and that
the evidence is unobtainable elsewhere." Carter at ¶20 citing Puritas at ¶39. “A finding
of necessity takes into account such factors as the significance of the matters, weight of
the testimony and availability of other evidence * * * .” Carter, citing Puritas ¶34. It is not
enough that a lawyer be a “potential” witness in order to disqualify the lawyer. See State
v. Johnson, 197 Ohio App. 3d 631, 2011-Ohio-6907, ¶20 (6th Dist.). Further, “[a] party’s
mere declaration of an intention to call opposing counsel as a witness is an insufficient
basis for disqualification even if that counsel could give relevant testimony.” Cater ¶20,
quoting Puritas ¶34.
It is important for trial courts to follow the proper procedures in determining
whether disqualification is necessary. Reo v. Univ. Hosp. Sys., 2019-Ohio-1411, 131 N.E.3d
986, ¶17 (11th Dist.) citing Fordeley v. Fordeley, 2015-Ohio-2610, 2015 Ohio App. LEXIS
2642 (11th Dist.) The case law establishes that a trial court is required to hold a hearing,
either oral or non-oral, to consider whether a lawyer should be disqualified under
Prof.Cond.R. 3.7. Reo at ¶34 citing Brown v. Spectrum Networks, Inc., 180 Ohio App.3d 99,
2008-Ohio-6687, ¶11 (1st. Dist.). The trial court must make factual and/or legal
determinations relevant to the required Prof.Cond.R. 3.7 analysis for granting
disqualification. See King v. Pattison, 2013-Ohio-4665, 2013 Ohio App. LEXIS 4880, ¶23
(5th Dist.).
The Board concludes that the act of notarizing a document on behalf of a client
does not immediately transform the notarizing lawyer into a necessary witness or even
make it likely the lawyer will be called as a witness. Lawyers regularly notarize

Op. 2022-05 3
documents on behalf of clients in many areas of law, such as landlord-tenant law,
domestic law, or probate law. “An advocate is responsible for pleadings and other
documents prepared for litigation, but is usually not required to have personal
knowledge of matters asserted therein, for litigation documents ordinarily present
assertions by the client, or by someone on the client’s behalf, and not assertions by the
lawyer.” Prof.Cond.R. 3.3, cmt. [3]. The fact that a lawyer − having no personal
knowledge of the matters asserted therein − notarized a document is typically not
material or relevant to the underlying litigation.
Further, the information contained in the affidavit is obtainable elsewhere, for
example, from the landlord or property manager. In notarizing an affidavit, a lawyer is
not taking responsibility for or verifying the facts contained therein any more so than
does a notary unknown to the client. The lawyer is simply confirming the client appeared
before him or her and signed or acknowledged the document in his or her presence.
When, at the time the lawyer notarizes the affidavit, there is no question as to the identity
of the affiant and the lawyer follows proper notarization procedures, the likelihood of the
lawyer being called as a necessary witness is remote. There is no harm likely to result
from a lawyer representing a client in a hearing or trial under these circumstances.
The application of Prof.Cond.R. 3.7 does not support an automatic or blanket
prohibition of a lawyer representing a client when the lawyer has notarized an affidavit
in a matter. If specific questions arise, such as whether the affidavit was properly
executed or the identity of the affiant, then a trial court may determine it is necessary to
have a hearing to establish whether the lawyer is a necessary witness. See Tex. Adv. Op
439-1987. The determination as to whether counsel may continue to represent the client
is a fact-based determination and should be made on a case-by-case basis after a hearing.