Essence of notarial service

To understand the role of the Latin notary, we must consider a society with an integrated system of legal specialization. Whereas in the United States until recently, there exists only one kind of lawyer for all aspects of law (though most law firms have their specializations), Quebec and European, Latin, and Asian civil-law countries have officially divided their legal professions between advocates, for advocacy or litigation, and notaries, for "non-advocacy," i.e. mainly contractual and non-litigious family matters. Until 1992, France had five divisions of its legal profession.

Since the mid ninties, a new specialization in the american legal profession officially acknowledged is making its way in some states of the Union, inspired, it seems, by the latin notarial system and fueled by the increasing need of legal security for electronic and transnational instruments of commerce.

In Quebec, the notary acts in all areas of the law except litigation. The conveyancing of immovable property ("real estate" in common law) constitutes the major sector of activity at 55%. Like their European and Latin colleagues, Quebec notaries

are legal professionals acting in a liberal environment;
are vested with publica fides;
deal with non-litigious matters;
must be impartial in acting for all parties; and
are expected to
1. give legal advice to all parties (all sides);
2. draft legal documents on their behalf;
3. authenticate those documents; and
4. keep records of transactions.

Lawyer

The Quebec notary is of the Latin type with an LL.L., LL.B., or B.C.L. law degree. The curriculum and options for the first three years of law school are the same for both future notaries and future advocates. The latter leave university for bar school while notarial candidates continue at law school for an additional year of practical studies related to notarial areas of specialization, followed by one year of articling in a notarial law firm, and evaluation, after which the future notary is officially sworn in and admitted to the profession.

Liberal environment

Although the Quebec government delegates publica fides to the notary, the notary is not a functionary or a public servant. He is not on the government payroll and does not operate out of some ministerial or government office.

The notary must set up practice privately, by buying or renting premises and equipment, hiring clerical staff, obtaining proper financing, and assuming both civil and professional liability. In fact, with over 95% of notaries in private practice, either for themselves or working in a notarial law firm, the Quebec notarial profession is probably the most liberal in the land.

Publica fides

Publica fides is, in essence, the power of the state to authenticate or certify. Literally translated, it means "public trust" or "public faith"--"faith" in the sense of the trust people have (or must have) in official papers or acts of the state such as texts of law and court judgments.

In concrete terms, the Quebec notary has the authority to vest with an exceptionally high level of probative value the private documents he prepares, provided he complies with the formalism required by the law. A notarial deed is rarely invalidated by the courts, endowed as it is with the strongest possible presumption of truth. A party attempting to counter this presumption bears a heavy burden of rebuttal through a specific judicial procedure called "improbation." Probative value is justified by the duties (impartial counselling, expert drafting, etc) notaries must fulfil at all times.

The evidential force of a notarial document is not limited to the identity of the parties and whether they have indeed signed the document, but extends to all the facts stated therein, including the date, whether asserted by the parties themselves or seen, heard, and verified by the notary himself.

For instance, back-dating a notarial deed en minute ( the original of which is kept by the notary) is almost impossible, since each notarial instrument or deed must be recorded in an unalterable repertory, and is given a serial number that cannot be changed. If a notary attempts to alter a signed deed, including modifying the date and/or serial number, and is proved guilty, he will be suspended for some years at least and most probably disbarred for life.

Non-litigious matters

The notary in Quebec, as with colleagues in all but a few of the seventy countries where the Latin notarial profession exists, does not represent clients in advocacy or litigious matters. The professional laws governing both notaries and advocates clearly distinguish between two approaches to the practice of law: notaries have the exclusive right to give authenticity to deeds and instruments, and the duty to inform all parties, while advocates take sides and represent one party with the aim of overcoming the adverse party. They have opposing functions because they are answerable to different legal philosophies. The notary, with a duty to inform and advise all parties, acts somewhat as a conciliator/mediator and, when sealing a document, even as a judge. He does not represent a party; he acts for them all, rising above partisan advocacy to ensure the legality of a transaction. The advocate, on the contrary, moves in adversarial surroundings and must make use of talent and professional skills (within the scope of the law) to promote the best interests of his client and obtain victory.

To conclude here, it should be noted that while Romano-Germanic systems of law have confined the adversarial approach to truly litigious cases, the Anglo-American approach has been to extend it to embrace all aspects of law. For example, in the purchase of a house, the vendor and purchaser are theoretically invited to seek independent advice even though an offer to purchase or sell in due form has already been signed; the same is true for financing, etc.

Impartiality

Notaries are prohibited by a code of ethics from being partial to any one party. Favouring one party would necessarily be detrimental to the other, and is contrary to the concept of the notarial institution, the notary being a multi-party counsellor.

It is probably not easy for a person raised and educated in an Anglo-Saxon society, and even harder for a North American lawyer, to believe that a legal professional such as the notary, an impartial private practitioner, does exist and, furthermore, really succeeds in being impartial in his day-to-day work. But the system works!

By impartiality, I do not mean that notaries are neutral, as we would expect mediators and arbitrators to be. The notary must be impartially active in the sense that he must ensure the equilibrium of the parties to a transaction. In other words, he must enquire as to the level of knowledge and understanding of each party and devote his counselling and advice not necessarily equally, but rather so as to place (in so far as possible) all parties on the same level of contractual ability.

Is this merely idealistic theorizing? An answer may be found in one recent court decision involving a notary's professional liability. The notary had prepared a deed of sale of immovable property where the vendor was paid partly with the transfer of a third-ranking hypothec (similar to "mortgage" in common law) on another property.

The notary performed all relevant verifications as to the legal validity of the hypothec, such as the unpaid balances on the previous-ranking hypothecs, property taxes and assessments, insurance coverage, etc, and found everything to be in order. Accordingly, he certified to the vendor that the claim transferred to him by the purchaser was a valid third-ranking hypothec. When the hypothecary debtor later defaulted, leaving no equity to cover the vendor/creditor's claim, the vendor sued the notary, who was held liable by the court on the ground that he had not fully informed the unfortunate vendor, not as to the legal validity, but as to the economic value (i.e. degree of risk) of the claim. The vendor was awarded full payment of the hypothecary claim plus legal costs.

The notary is expected to give legal advice

The giving of legal advice to parties has already been discussed to some extent, but it should be added that giving advice is a notary's duty. It is automatically required where a notary has been asked to complete a transaction. A notary who does not fulfil his duty to inform or advise must obtain a waiver in writing from the party concerned to explain why the notary has been relieved of his professional duty. The reason must be sound, such as the personal knowledge and know-how of that party, or the existence of an independent adviser.

A notary may act as adviser to one client, but in that event, he is not allowed, ethically, to complete the transaction unless all parties, being properly informed of his status as a one-party adviser, expressly request that he draw up the official document. Nonetheless, professional guidelines do recommend that a notary not accept such a request lightly.

Notaries draft legal documents

Drafting legal instruments for consenting parties is at the core of notarial services and is still the hallmark of notaries. The services of notaries (graduates of law school) are retained most often for the preparation and drafting of legal documents and instruments for clients. In Quebec, notaries prepare two types of notarial documents:

The minute, an original document that obeys strict rules of formalism, is dated and recorded with a serial number, and is retained by the notary, who must keep it in a fire-proof safe or vault. Parties are given certified or true copies of the original, which copies have the same legal evidential force or probative value as the original.
These originals are public documents and must never be destroyed. When a notary ceases to practice, for whatever reason, the originals in his possession, together with the repertory (register), index, and related documents are transferred to another notary in practice or to the clerk of the Superior Court of the notary's judicial district.
The brevet is an original like the minute but has no serial number and is remitted to the parties in duplicate, triplicate, or more, as need be. The brevet is normally used to serve short-lived needs were the law does not require the form en minute.

Notaries authenticate documents

The function of authenticating is closely linked to the publica fides seen earlier. In short, authenticity means that the document is true, genuine, and must be honoured.

When parties consult a notary, they usually expect authentication, even if not familiar with the concept; the notary must authenticate unless he has valid grounds not to do so.

Authentic instruments, unlike other private writings, have a distinctive and valuable feature, namely, the notary (author) need not testify in a court challenge to one of his documents unless it is set aside for non-compliance with the rules of the formalism. An authentic document is proof in itself and there is normally no point in calling the notary to testify.

Notaries keep records of transactions

Unless a document serves for a short-term purpose, such as the sale of a motor vehicle, the notary must retain the original en minute as aforesaid and keep a record of it in his register. In so doing, the notary ensures to all interested parties that the transaction instrument will always be available and that authentic copies can always be issued. It also ensures a record of the transaction date.

Interestingly, in Quebec, original notarial documents of all kinds, dating back three hundred years to the early days of the colony, can be referred to and consulted by historians and researchers.