Notarial Services vs Legal Services Can a Lawyer Ever Be “Just a Witness”?
Notarial Services – Generally Speaking
Notarial or “commissioning” services are often described as ministerial acts – things like:
- Witnessing signatures
- Certifying copies
- Administering oaths or affirmations
- Notarizing affidavits or declarations
For a commissioner for oaths or the rare non-lawyer notary public, these are typically routine and don’t involve legal advice.
But for practising lawyers who have also registered as a Notary Public, it’s not that simple. Even when you’re “just witnessing” or “only notarizing,” your professional and ethical obligations still apply.
More Than Just a Signature
If someone asks you to witness or notarize a document, you’re not stepping out of your professional role – you are still a lawyer.
Even if no legal advice is provided, you may:
- Create a solicitor-client relationship (even briefly)
- Take on fiduciary duties (loyalty, confidentiality, competence)
- Be subject to all Law Society rules and requirements
- Face professional liability if something goes wrong
What You Should Be Asking Yourself
Before agreeing to notarize or witness, consider:
- Who is my client? Could there be more than one? Any conflicts?
- Why are they asking a lawyer rather than a non-lawyer notary or commissioner?
- Do I understand the nature of the transaction, and does the signer?
- Is the person vulnerable or unrepresented in a way that may require independent legal advice?
- Is the person who they say they are?
- Can I deliver the service competently and ethically within the requested scope?
If you can’t answer these questions in a way that ensures you meet your obligations, you may need to reconsider whether to proceed.
Limited Scope Doesn’t Mean Limited Obligations
There may be situations where you can notarize or witness without giving legal advice – and still comply with your professional obligations. In other cases, you may conclude the person needs some legal advice within a limited scope retainer before you can proceed. And sometimes, you may determine you cannot notarize or witness at all because you cannot do so in compliance with your ethical duties. Bottom line: you cannot “step out” of your professional role simply because you are only notarizing or witnessing.
Professional Obligations Still Apply
If you provide these services as a lawyer, you must:
- Open a file and document your work
- Conduct a proper conflict check
- Follow the Client Identification and Verification Rules
- Record fees or disbursements properly
- Keep records per Law Society requirements
Watch for Conflicts – Even in Small Matters
Common examples:
- Acting for both a lender and borrower in a private loan or mortgage
- Witnessing both parties’ signatures in a transaction
- Having a personal or professional relationship that could impair impartiality
If there’s a conflict – or even the appearance of one – it’s best not to proceed.
Final Thought: When in Doubt, Pause Before You Sign
Requests for “just a signature” can seem quick and low risk, but if you’re a practising lawyer, your professional obligations always apply.
Be sure you can:
- Carry out the work competently and ethically
- Clearly understand and define your role
- Step back when the situation is unclear or uncomfortable
Exercising caution protects you, your client, and the public interest.
Questions or Need Guidance?
If you have questions about your professional or ethical obligations when providing notarial or other services, or if you’re unsure whether you can proceed in a particular situation, contact the Law Society for confidential practice guidance:
Noelia Bernardo – Practice, Ethics and Equity Advisor
