Legal Ethics Opinion # 1512
  
     Attorney as Witness: Husband and Wife Attorney/Partners
          Notarizing Documents for Each Other's Clients.

  You have presented a hypothetical situation in which Attorney A
and Attorney B are husband and wife who practice law together in
a professional corporation. The corporation employs no other
attorneys, no secretary, nor any other staff. Both Attorney A and
Attorney B are notaries for the Commonwealth of Virginia.
  
  You have requested that the committee opine as to several
issues regarding the propriety of each attorney notarizing
documents prepared by the other.
  
  The appropriate and controlling Disciplinary Rules related to
your inquiry are  DRs 5-101(B) which states that a lawyer shall
not accept employment in contemplated or pending litigation if he
knows or it is obvious that he or a lawyer in his firm ought to
be called as a witness, except under certain limited
circumstances; and  DR:5-102(A) which provides that if, after
undertaking employment in contemplated or pending litigation, a
lawyer learns or it is obvious that he or a lawyer in his firm
ought to be called as a witness on behalf of his client, he shall
withdraw from the conduct of the trial and his firm, if any,
shall not continue representation in the trial, except that he
may continue representation and he or a lawyer in his firm may
testify in the limited circumstances enumerated in  DR:5-101(B)
(1) through (3).
  
  The committee responds to your inquiries relative to the facts
you have presented as follows:
  
  1. As to whether Attorney B can notarize the client's signature
on an affidavit, sworn pleading, or property settlement prepared
for the client of the professional corporation by Attorney A, the
committee refers you to prior LE Op. 742 and LE Op. 1006 which
found that it is not unethical per se for a lawyer to notarize
his client's signature so long as there is no probability that
the lawyer will be a witness in regard to the notarized
signature. Thus, under the facts you present, the committee
opines that it likewise is not improper for the partner of an
attorney to notarize that attorney's client's signature. whether
there are any other types of documents Attorney A may prepare and
notarize for a client, such as deeds and powers of attorney. The
committee believes that it is not the type of document which is
relevant but rather whether there is a probability that the
lawyer will be a witness in regard to the client's signature.
Thus, the committee declines to enumerate the various types of
documents which an attorney may ethically prepare and notarize
for a client. The committee feels, however, that if it is not
probable that the lawyer will be a witness regarding the client's
signature, then it would be ethically proper for an attorney to
prepare and notarize a deed and/or a power of attorney for a
client.

  2. Regarding whether Attorney B, spouse of Attorney A, may
notarize divorce depositions prepared and read by Attorney A for
a client, the committee refers you to LE Op. 499 which concluded
that it is not ethically improper for the law partner of an
attorney who has taken depositions to notarize the depositions.
The committee does not believe that the proper notarizing of
divorce depositions by one's partner is made improper by the fact
that the law partners are also partners in marriage. Therefore,
the committee opines that it is not improper for Attorney B,
spouse of Attorney A, to notarize depositions taken by Attorney
A.

  3. Whether or not Attorney A may ethically prepare a will for a
client, under which neither Attorney A nor Attorney B has any
direct beneficial interest, and sign at the will execution as a
witness along with Attorney B presents a question of law which is
beyond the purview of the committee.

  4. You ask whether Attorney A may ethically prepare a will and
notarize the signature of the testator and witnesses who are
individuals other than Attorney A and Attorney B. The committee
assumes that the testator is Attorney A's client. As stated
above, it is not per se improper for an attorney to notarize his
client's signature so long as there is no legal probability that
the lawtness in regard to his client's signature. As to whether
the attorney may notarize the signatures of witnesses to the
will, LE Op. 742 which states that there is no prohibition
against a lawyer notarizing a nonclient's signature, is
dispositive.

  5. You have inquired whether Attorney A may ethically (i)
prepare a will for a client, (ii) ask Attorney B to witness the
signature of the testator along with another individual, and
(iii) notarize the signatures of the testator and witnesses on
the self-proving affidavit. As stated in the response to question
#1 above, it is not per se improper for the law partner of an
attorney to notarize the attorney's client's signature. The
committee believes that it similarly would not be per se improper
for the law partner to notarize nonclients'/witnesses'
signatures.

  Finally, you ask whether a secretary under Attorney A's
authority and control may notarize the above-mentioned
signatures. The committee has previously opined that there is no
prohibition against a lawyer's secretary notarizing the signature
of the lawyer's client. LE Op. 742 Since there is no prohibition
against a lawyer's secretary notarizing the client's signature,
the committee similarly opines that there is no prohibition in
the secretary notarizing the signatures of the witnesses, either
on the will or on the self-proving affidavit.

  The committee's opinion is predicated on the assumption that
the notarial acts described are not prohibited under the
Conflicts of Interest section of the Virginia Notary Act, Va.
Code ' 47. 1-1 et seq. or otherwise prohibited by law.
  
  Committee Opinion
  May 28, 1993