Code of Practice
Chapter 1: A notary shall uphold the rule of law and the proper administration of justice
A notary is required, in common with all other lawyers, to uphold the rule of law and the proper administration of justice. This is the foremost and overriding professional duty of any lawyer. It involves the protection of human rights at a basic level, ensuring that no one is above the law, and also includes specific tasks such as acting as a gatekeeper in the battle against terrorist funding and money laundering, questions of privacy, privilege, and data protection that pervade the practice of any lawyer. These particular considerations are dealt with later in this Code.
The Oath of a Notary contains a number of important statements that reflect the notary’s duty to uphold the rule of law and the proper administration of justice:
“I A.B. do swear, that I will faithfully exercise the office of a public notary; I will faithfully make contracts or instruments for or between any party or parties requiring the same, and I will not add or diminish any thing without the knowledge and consent of such party or parties that may alter the substance of the fact; I will not make or attest any act, contract, or instrument in which I shall know there is violence or fraud; and in all things I will act uprightly and justly in the business of a public notary, according to the best of my skill and ability.”
The Oath of a Notary is the basis of the whole of a notary’s practice. This includes not just notarial activities, but all services provided by a notary in that capacity, including, if these services are provided by a notary subject to the regulation of the Master of the Faculties, the administration of oaths, conveyancing, and probate activities. The Oath of a Notary complements the Principles and all the other obligations of a notary under relevant legislation and the Master’s Rules.
Carrying out notarial activities is different from the practice of other lawyers in that it primarily involves the production of notarial acts for use in foreign countries. The production of notarial acts affects the rights and obligations of a notary’s clients but may also affect the rights and obligations of many other parties here and abroad. The Practice Rules refer particularly to “the notary’s duty of care to persons in all jurisdictions who may place legitimate reliance on his notarial acts” [Practice Rule 7.6]. The rule of law and the proper administration of justice are relevant in this regard and for a notary they must be understood and applied taking into account the cross-border nature of notarial activities. A notary’s independence and impartiality are vital to the office (see Principle 2 and Principle 3). Although notaries are generally responsible for the statements they make in a notarial act, rather than any statements or facts they choose not to include, omitting certain facts of immediate relevance to the party or parties (such as lack of legal capacity, or a change of name) should always be avoided.
- Competent notarial services are available to the public.
- Your clients, relevant authorities and all other persons placing legitimate reliance on your notarial acts can trust their legal and factual basis, their physical integrity, and the absence of fraud or violence in their preparation.
- You understand and comply with your primary and overriding duty to act as an independent, impartial and expert public certifying officer when carrying out notarial activities.
- You are familiar and comply with your obligations as a notary and as an Authorised Person in accordance with the Oath of a Notary, the Master’s Rules and all applicable legislation in your dealings with:
- You update your knowledge and review your understanding of the Master’s Rules and all applicable legislation on a regular basis (see also Principle 6).
- Your regular modes of written communication with clients and others, such as letters, faxes and e-mails, state your appointment as a notary and the fact that your notarial practice is regulated by the Master of the Faculties.
- The place and date of your notarial acts are clearly and accurately stated.
- Your name and designation as a notary are clearly identifiable within your notarial acts.
- Your signature and seal of office are applied to your notarial acts in a manner that clearly distinguishes those acts from other documents that you may sign in a personal capacity or in the usual course of business.
- You make sufficient enquiries of your clients and other persons involved in instructing you to be satisfied that no fraud or violence is involved in requests for notarial services.
- You are diligent in the verification of all matters of fact stated in your notarial acts.
- All statements of law in your notarial acts are founded on diligently verified matters of fact and knowledge of the relevant law.
- You fail to monitor and/or you disregard changes or additions to the Master’s Rules and/or applicable legislation.
- You issue an undated notarial acts or state a date that is not the true date of the notarial acts.
- You issue a notarial acts with the intention of deceiving or misleading a client or a person placing legitimate reliance on that act.
- You prepare a document purporting to be a notarial acts without affixing your seal of office.
- You misstate matters of fact in your notarial acts.
- You make a statement of law in a notarial acts that is founded on an error of fact or law or erroneous interpretation of application legislation or relevant legal principles.
- You affix your seal to a document that is not a notarial acts with the intent to deceive or mislead any person seeking to place legitimate reliance on that document.