Code of Practice

Chapter Text

Notarial acts

There are clear rules for the recording, retention and preservation of notarial acts [Practice Rule 24].  The general rule is set out in Practice Rule 24.1, which is that a notary must keep “proper records” in accordance with the requirements set out in the rest of Practice Rule 24.

Practice Rule 24.2 states the minimum requirements to be observed when creating a file record of a notarial act.  These are, in summary, that the notary must record the date and nature of the act, name and details of the client, the name and details of any signatories and any business entities or other persons being represented, and details of the signatory’s authority to act for the business entity or other person, if any, and the fee charged.

When preparing a file record of a particular notarial act, a notary should consider the client’s interests and the likely interests of persons placing legitimate reliance on the notarial act when deciding what information to record and in what form.

When a notarial act in public form is issued, the notary is required, in addition to the general requirements summarised above, to place a duplicate original or full copy of the act in a protocol [Practice Rule 24.3].

The file records kept under Practice Rule 24.2 and the protocol maintained under Practice Rule 24.3 may be paper-based or electronic [Practice Rule 24.3 and Practice Rule 24.4].

The general file records required by Practice Rule 24.2 must be kept for a minimum period of 12 years.  The protocol maintained under Practice Rule 24.3 must be kept forever.

A notary should consider how long a file record should be retained, taking into account the nature of the notarial act and any relevant limitation periods, which may be longer than the 12 years stipulated by Practice Rule 24.4.

The records of a notary who ceases to practise must be passed on to another notary [Practice Rule 26.1.1 and Practice Rule 26.1.2], or, if there is no notary willing to take those records, transferred to an archive approved by the Master of the Faculties [Practice Rule 26.1.3].

A notary’s records are as a general principle confidential, but a person who has a proper interest in a notarial act, such as the notary’s client, a personal representative of a deceased client, or an agent authorised by the notary’s client in a notarial act, may apply for a copy of the file record of that act and, if the notarial act was prepared in the public form, a copy of the act from the notary’s protocol [Practice Rule 24.6].  If there is any doubt as a person’s proper interest in a particular notarial act, the Master of the Faculties has the authority to decide the question [Practice Rule 24.7].  A notary may charge a “reasonable fee” for providing this copy.

Conveyancing and Probate files

The files produced by a notary when providing conveyancing and probate services are not subject to the record-keeping rules for notarial acts and different considerations apply.

Conveyancing

Notary-conveyancers must decide how long they wish to store and retain closed files after taking into account relevant statutory provisions such as limitation periods.  The notary-conveyancer should consider carefully whether it is ever appropriate to destroy a conveyancing file and at the very least should consider retaining the file until the client no longer has an interest in the property.

If there are costs relating to file storage, retrieval and preparing additional copies of documents that the notary proposes to pass on to the client, the client should be advised of these costs.

If any part of the file is to be stored in an electronic format, the notary-conveyancer should consider whether or not the absence of paper documentation might be detrimental to the interests of his client before that method of storage is implemented.

A notary-conveyancer must also take into account any file retention requirements of his or her professional indemnity insurers.

A notary-conveyancer should consider retaining diaries indefinitely.

Probate

Notary-probate practitioners must decide how long they wish to store and retain closed files after taking into account relevant statutory provisions such as limitation periods.  However, you should consider retaining Will documentation for much longer than may be required bearing in mind that people are living longer, relationships are often diverse, and there is a growing trend towards disputing or challenging a testator’s wishes.  The notary-probate practitioner should consider retaining original documentation indefinitely along with all correspondence and paperwork relating to the transaction in the event of a dispute arising in the future.  Original Wills should be retained indefinitely.

If there are costs relating to file or document storage, retrieval and preparing additional copies of documents, the client should be advised of these costs.

If any part of the file is to be stored in an electronic format, the notary should consider whether the absence of paper documentation might be detrimental to the interests of his client before that method of storage is implemented.

A notary must also take into account any file retention requirements of his or her professional indemnity insurance cover providers.

A notary-probate practitioner should retain his diaries indefinitely.

Records kept for the purposes of the Money Laundering Regulations

Records of identity documents kept by notaries when dealing with Relevant Business under the Money Laundering Regulations must be kept for a minimum of five years after an occasional transaction has been completed, or from the termination of a business relationship (see also Chapter 10 – Anti Money Laundering).  Since it is likely that these records will also form part of a notary’s file record under Practice Rule 23.2 or the records kept of conveyancing matters or probate activities, a notary should consider whether the longer minimum period of retention under Practice Rule 23.4 applies to these records of identity documents and further whether it may be in the best interests of the client that the records should be kept for longer.

The Accounts Rules and the Trust Accounts Rules

Accounts records maintained under Accounts Rules and the Trust Accounts Rules must be preserved for a minimum of 6 years (see Chapter 9 – Accounts).

File storage

Any records, whether paper-based or electronic, must be stored safely and securely, and in a manner that will provide for them to be readily accessed as needed at any point in what may be a lengthy (and in some cases indefinite) period of storage.

Paper records must therefore be carefully catalogued and stored in an environment that will not bring about rapid deterioration (excess moisture or heat).

If records are being stored electronically consideration must be given to file redundancy on a regular basis and, if necessary, the file type or format updated, or the file storage device replaced, so that access to the electronic records may be assured as time passes and technology changes.

Whatever the method of file storage, accidents and disasters can happen and some form of records back up is essential.  Notaries should consider this in any disaster recovery plan (see also Chapter 7 – Proper Governance and Sound Financial and Risk Management Principles) and give careful thought to the potential damage to clients’ interests should records be lost, damaged or destroyed.

Outcomes

• Proper records of client matters are kept, providing legal certainty to transactions in which notaries have been involved in whatever capacity.
• Records of notarial acts are preserved with particular certitude, resulting in the enhanced value of notarial involvement in transactions.
• Clients’ confidentiality is safeguarded in appropriate circumstances.
• Appropriate access to notarial records is given to persons having a proper interest in a particular notarial act.
• The records of retired or deceased notaries are retained in a secure manner permitting access to records of notarial acts when required.

Positive Indicators

• When dealing with a request for disclosure of correspondence or documents that are in your possession or of which you retain copies in your files, you consider whether or not professional privilege applies to that correspondence and/or those documents.
• You ensure that where your duty of confidentiality to your client comes into conflict with your duty of disclosure to a person having a proper interest in a notarial act, your duty of confidentiality to your client takes precedence until such time as the Master of the Faculties has made a direction pursuant to Practice Rule 24.7.
• If you keep your records electronically you secure those records with a password and inform the Registrar of the password when it is first set up and each time it is changed [Practice Rule 24.5].
• If you practise in a firm with other lawyers who are not notaries, you keep your notarial records separate from any records relating to the firm’s other activities.
• You have a data protection policy (see also Chapter 15 – Data Protection).
• You inform your clients that any person with a proper interest in a notarial act may request a copy of a notarial act or of the record of a notarial act unless prevented by a valid court order.
• Access to notarial records is only given to staff trained by the notary in the duty to safeguard confidential notarial records.
• You inform clients and representatives of clients what records will be kept of their matter, how those records will be stored, for how long, and who may have access to them, for example by including this information in terms of business or in a privacy statement or data protection policy.

Negative Indicators