Code of Practice

Chapter Text

Notaries are entrusted with matters of considerable importance for clients, whether private clients or business clients, and the independence and impartiality of notaries is of paramount importance for the safeguarding of clients’ interests.

Independence means your independence and if you practise jointly with other notaries it means in addition the independence of your notarial firm.

Independence also encompasses your ability and the ability of your notarial practice to give independent advice to a client and to provide notarial services independently.  You may not give control of your notarial practice to a third party who is beyond the regulatory reach of your Regulator [Practice Rule 7].

An important aspect of impartiality is that you do not act for a person to whom you are closely related on business or personal grounds.  Practice Rule 10 contains particular rules about the persons for whom you may not provide notarial services, but even in the case of a person not listed in Practice Rule 10 you should always consider your impartiality and decline to act if you are unable to act impartially as a notary for a particular person.

Outcomes

• You put clients in a position to make informed decisions about how to pursue their stated aims.
• You do not act or continue to act where there is a conflict of interest or a significant risk that a conflict of interest may arise.
• You do not act or continue to act for a client if you reasonably consider that the instructions are being given under duress or undue influence, except where to withdraw from acting would be detrimental to the client.
• Where instructions are provided by one person on behalf of a client (whether a private client or a business client), you satisfy yourself that the instructions are your client’s own instructions or have been given by that person with proper authority on behalf of the client.
• You ensure that your commercial interests or financial arrangements do not adversely affect the independence of your advice or your ability to act independently and impartially as a notary.

Positive Indicators

• As an employer notary you ensure that the independence of any notary in your employ is respected at all times and fully recognised in writing in his or her contract of employment.
• As an employed notary you take active steps to ensure that your independence as a notary is fully recognised by your employer [Practice Rule 11].
• If you practise in a firm with qualified legal practitioners who are not notaries, you inform all clientsclearly of the separate regulation of notarial activities when carrying out these activities.
• You implement effective systems for assessing whether any referral complies with the statutory and regulatory requirements, in particular Practice Rule 16.
• If you make a referral or a recommendation with the intention that a client should use the services of a particular person or business, your recommendation is in the best interests of the client and does not compromise your independence.
• Clients are fully informed of any financial or other interest which you have in referring the client to another person or business [Practice Rule 16].
• You are aware of the offences of bribery under relevant legislation and ensure that procedures are put in place to ensure that the risks of bribery within the conduct of your notarial practice are identified and managed.

Negative Indicators

• As an employer notary you put pressure on an employed notary to practise in a manner that compromises his or her independence by restricting or attempting to restrict his or her ability to form independent judgments.
• You enter into an arrangement which requires or incentivises you to recommend a particular business.
• You enter into an exclusive arrangement with a provider of financial services or with a provider of financial services advice in contravention of Practice Rule 20.
• You act as an appointed representative in contravention of Practice Rule 20.
• You accept or offer a bribe or permit an employee to accept or offer a bribe.
• You accept payments “off the books” that do not appear in your accounts.
• You refer clients to a particular person or business pursuant to an undisclosed commission arrangement or otherwise for undisclosed financial gain.