Code of Practice
Chapter 5: A notary shall act in a way that maintains the trust in the office of notary which the public may reasonably expect
Members of the public should be able to place their trust in you. Any behaviour that undermines this trust damages not only you, but also the ability of the notarial profession and the legal profession as a whole to serve society.
Conduct that might maintain trust in the office of notary is a broad area, and trust can be undermined by a failure to consider or implement other Principles. Consequently, this section of the Code should not be considered as comprehensive or discrete but as covering aspects of conduct specifically related to trust in the office of notary not covered elsewhere, in particular under the headings of Chapter 1, Chapter 2, and Chapter 3.
When you act as a notary, whether in dealings with clients and their advisors, the Master of the Faculties, other notaries, or in a public or semi-public forum, your behaviour should reflect the high standards and integrity of the notarial profession.
One meaning of trust in the office of notary is that a client’s confidential information is protected once it has been entrusted to a notary. Protection of confidential information is a matter of law and a matter of conduct.
The duty of confidentiality continues long after the service has been provided and even after the death of the client. Breach of the duty of confidentiality may be a criminal offence and may result in disciplinary proceedings. If you practise in a firm with other notaries, employ staff to assist you in the provision of notarial services, or employ the services of a consultant or a locum tenens, you must be aware that the duty of confidentiality extends to those staff, consultants and locums. This duty of confidentiality must be reconciled with the duty of disclosure of notarial records to your Regulator, a notarial inspector or supervisor, and in respect of the record of a particular notarial act, any person with a proper interest in that notarial act [Practice Rule 23] (see also Chapter 17 – Record Keeping and File Storage).
Another meaning of trust in the office of notary is that trust may be placed in the notarial acts that a notary prepares. A notary should ensure that a client makes a properly informed decision to instruct the notary to issue a notarial act. A person placing legitimate reliance on a notarial act should be able to trust that any statements of fact made by the notary within the notarial act were properly verified, and that any statements of law were made by the notary competently, correctly, and with due regard to the reliance that would be placed on them. For trust to be placed in a paper-based notarial act it should be as tamper-proof as possible particularly if it extends to more than one sheet of paper. For trust to be placed in an electronic notarial act it should be as secure and tamper-proof as possible using appropriate technology. The security of the notarial act (whether paper-based or electronic) should be backed up by notarial records, to which prompt recourse must be possible if any doubt should arise as to the genuineness, integrity or contents of the notarial act or the circumstances in which it was issued.
- You have effective systems and controls in place to enable you to identify risks to clients’ interests, including client confidentiality, and to mitigate those risks.
- You monitor closely any arrangements for referral of instructions and you do not enter into arrangements with people whose integrity you have good reason to doubt.
- Your clients, all persons placing legitimate reliance on your notarial acts and the public have appropriate information about you, your practice and how you are regulated.
- The trust placed in your notarial acts by your clients, relevant authorities and other persons, is justified.
- You identify private clients on the basis of valid identity documents, your personal acquaintance with the client, and/or such other documentation that you judge to be appropriate or necessary in a given situation.
- You consider questions of personal capacity such as the age of majority, mental capacity and bankruptcy when receiving instructions from a private client.
- You consider questions of capacity, authorisation, management structures, and authorisation of individual officers, employees or representatives when receiving instructions from a business client.
- Your notarial acts are physically secure with any acts extending to two or more sheets of paper being secured or otherwise marked so that pages may not be added, removed, or tampered with.
- You keep the affairs of clients confidential and do not disclose them to any person other than the client unless the client explicitly permits such disclosure, except pursuant to the Master’s Rules or a valid court order.
- Where you act for a client or supervise a client’s matter, you disclose to the client all information material to the client’s matter of which you are personally aware, except when the client gives specific informed consent to non-disclosure, there is evidence that serious physical or mental injury will be caused to a person or persons if the information is disclosed to the client, legal restrictions effectively prohibit you from passing the information to the client, it is obvious that privileged documents have been mistakenly disclosed to you, or you come into possession of information relating to state security or intelligence matters to which the Official Secrets Act.
- You only outsource services when you are satisfied that the provider has taken all appropriate steps to ensure that your clients’ confidential information will be protected.
- Your systems and controls for identifying risks to client confidentiality are appropriate to the size and complexity of your notarial practice and the nature of the work undertaken, and enable you to assess all the relevant circumstances.
- You identify situations in which the safeguarding of confidential information may be at particular risk, such as where two or more notarial practices merge, when you leave one practice and join another or set up in independent practice.
- You use an insecure method of attaching the pages of a notarial act together, such as a staple or ring binder.
- Your publicity in relation to your notarial practice or any other business which you by yourself or with any other person operate, actively participate in, or control, is inaccurate and/or misleading, and is likely to diminish the trust the public places in you and in the provision of notarial services and the carrying out of legal activities in general [Practice Rule 17].
- You advertise an estimated or fixed fee pitched at an unrealistically low level or without making it clear that additional charges may be payable, if that is the case.
- You advertise your notarial practice in a way that suggests that services provided by another business are provided by you as a notary.
- You produce misleading information concerning the professional status of any employee of your notarial practice.
- You permit staff (actively or through lack of supervision) to disclose information contained in confidential records, including notarial records, to third parties who do not, or may not, have a right to access that information.