Code of Practice

Chapter Text

Notaries have legal obligations under the general law, especially as service providers, traders, data controllers, and as gatekeepers under anti-money-laundering and prevention-of-terrorism legislation(see also Chapter 11 – Anti Money Laundering).  Notaries are also subject to general regulatory obligations as Authorised Persons, and specific regulatory obligations under the Master’s Rules.

A notary may only carry out notarial activities, oaths administration, reserved instrument activities and probate activities in particular, and provide services as a notary in general, if in possession of a valid practising certificate.  An unrestricted practising certificate authorises a notary to provide services generally, including the Reserved Legal Activities mentioned above, but subject to supervision and continuing professional education requirements (see also Chapter 19 – Supervision and Chapter 14 – Continuing Professional Education).  Any restriction placed on a notary’s practising certificate by the Master of the Faculties must be complied with.  Failure to comply with a restriction on a practising certificate is notarial misconduct.

The Master of the Faculties, as the Regulator of notarial activities in particular, is required to collect and assess information regarding the services that notaries provide to clients and to conduct risk assessments relating to the provision of those services.  The Master of the Faculties therefore requests information from notaries about their practices which helps him to assess risks to clients and the public interest more generally.  Notaries are expected to comply with those requests in a timely and comprehensive manner.

Notaries must provide clients with a signposting notice that explains the right to complain and how a complaint may be made [Practice Rule 8] (see also Chapter 12 – Complaints).

As service providers and traders, notaries must comply with provision of services legislation and consumer rights legislation.

Outcomes

• You comply promptly and fully with any direction or request from the Master of the Faculties.
• You comply with any authorisation, permission or condition endorsed on your practising certificate.
• You co-operate with any inspection ordered by the Master of the Faculties (see also Chapter 16 – Inspections).
• You comply promptly and fully with any Legal Ombudsman Order.
• You co-operate with other Regulators and ombudsmen.
• You are aware of your legal and regulatory obligations and manage your practice in accordance with those obligations.
• Clients are given appropriate information about their right to complain.
• The rights of consumer clients are understood and observed.

Positive Indicators

• You comply with your obligations as a gatekeeper under anti-money-laundering and anti-terrorism legislation (see also Chapter 11 – Anti Money Laundering).
• You comply with your obligations as a service provider (see also Chapter 4 – A Prompt and Proper Standard of Service).
• When accepting instructions or changing the terms on which you are acting you provide your client with a signposting notice which explains the right to complain and how to make a complaint [Practice Rule 8] (see also Chapter 12 – Complaints).
• You comply with your obligations as a trader under consumer rights legislation and put in place procedures to identify which clients are consumers.
• Where applicable you inform consumers of their right to cancel a services contract.
• You understand the statutory rights of consumers under a services contract and the remedies available to them and act accordingly when dealing with consumers.
• You respond appropriately to any serious issues identified concerning the competence and/or propriety of your colleagues, employed notaries or other employees.
• You report to the Master of the Faculties promptly serious misconduct by any notary, or any employee of any notarial firm, taking into account, where necessary, your duty of confidentiality to your client.
• You promptly notify the Master of the Faculties in writing of any facts or matters which may give rise to a claim under the Contingency Fund.

Negative Indicators

• Your terms of business are overly complex or difficult for a client, particularly a consumer, to read or understand (see also Chapter 4 – A Prompt and Proper Standard of Service).
• You fail to inform consumers of their right to cancel a services contract where that right exists under consumer rights legislation.
• You fail to take corrective action and/or offer appropriate redress in the event that your notarial servicesare not provided in accordance with the terms of a services contract entered into with a client.
• You attempt to contract out of the statutory rights and remedies of consumers under consumer rights legislation.
• You fail to notify the Master of the Faculties promptly or at all of any material changes to relevant information about you including serious financial difficulty, action taken against you by another Regulator, and/or serious failure to comply with applicable legislation or the Master’s Rules.
• You attempt to prevent someone from providing information to the Master of the Faculties or the Legal Ombudsman.
• You enter into an agreement to the effect that the Master of the Faculties and/or the Legal Ombudsman are precluded from investigating any actual or potential complaint or allegation of notarial misconduct.