The importance of taking a proper affidavit

The importance of taking a proper affidavit
During your career, you may be called upon by a friend, cousin, brother, sister, mother-in-law, or others you have known for a long time to swear an affidavit or notarize a document. On many occasions, their requests may not be aligned with the law society rules and other legal or ethical obligations incumbent on us. As lawyers we must follow, without exception, rules incumbent to our integrity in those circumstances — even if doing so might offend the person seeking your assistance. The following are some recommendations to consider when taking an affidavit.

Understand the rules

In British Columbia, the Code of Professional Conduct outlines the correct procedure for swearing an affidavit or taking an oath. The Code also includes commentary explaining the rules. Know these rules (or the ones in your own jurisdiction) and know them well. Appendix A, s. 1 of the B.C. Code provides as follows:

1.    A lawyer must not swear an affidavit or take a solemn declaration unless the deponent:
a.    is physically present before the lawyer;
b.    acknowledges that he or she is the deponent;
c.    understands or appears to understand the statement contained in the document;
d.    in the case of an affidavit, swears, declares, or affirms that the contents of the document are true;
e.    in the case of a solemn declaration, orally states that the deponent makes the solemn declaration conscientiously believing it to be true, and knowing that it is of the same legal force and effect as if made under oath; and,
f.    signs the document, or if permitted by statute, swears that the signature on the document is that of the deponent.

2.    When a lawyer witnesses the execution of an instrument by an individual under the Land Title Act, the lawyer’s signature is a certification by the lawyer that:
a.    the individual appeared before and acknowledged to the lawyer that he or she is the person named in the instrument as transferor; and,
b.    the signature witnessed by the lawyer is the signature of the individual who made the acknowledgment. (See s. 43)

Stick to the rules without compromise

Occasionally, I have been asked by someone I have known my entire career to sign a document not executed in my presence. Even though I knew the individuals well and, in some cases, even recognized their signature, I refused to sign the affidavit until it was re-signed in my presence. Besides being legally and ethically bound to follow this practice, there is also a practical reason for this. If at some point the validity of the affidavit is called into question, and I am unable to recall the particular circumstances of taking the affidavit, I can genuinely and honestly state that I have always stuck to the same practice, no matter the situation or people involved.

Learn from experience

There are other best practices that are learned over time. For example, if you are taking a signature and not providing advice, you should indicate that by having a notation under your signature stating your signature is “as to signature only, no advice sought or given.” I have a stamp specifically for that purpose.

Make sure the document is complete and your client understands it

All exhibits should be attached to the document at the time of signing. You should also be clear your client understands what he or she is signing. If the document is not in a language you can read or understand, the Law Society of B.C. has recommended to me in the past that lawyers not take signatures on these documents.

If in doubt, call a practice adviser

If your gut is telling you not to take the affidavit or you are unsure about what to do, call your practice adviser for his or her advice. Take note of that advice and follow it.

For me, the bottom line is having a practice and sticking to it. This way I do not need to specifically recall what I did for a particular individual at a particular time, because I always do it the same way. All I need to know is that this is my practice and never once have I derogated nor will I ever derogate whether or not I have known the person for my entire life or not.

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