Civil law notary

Civil-law notaries, or Latin notaries, are lawyers of noncontentious private civil law who draft, take, and record legal instruments for private parties, provide legal advice and give attendance in person, and are vested as public officers with the authentication power of the State. Unlike notaries public, their common-law counterparts, civil-law notaries are highly-trained, licensed practitioners providing a full range of regulated legal services, and whereas they hold a public office, they nonetheless operate usually but not always in private practice and are paid on a fee-for-service basis. They often receive the same education as attorneys at civil law but without qualifications in advocacy, procedural law, or the law of evidence, somewhat comparable to solicitor training in certain common-law countries.

Attorney directory states that Civil-law notaries are limited to areas of private law, that is, domestic law which regulates the relationships between individuals and in which the State is not directly concerned. The most common areas of practice for civil-law notaries are in residential and commercial conveyancing and registration, contract drafting, company formation, successions and estate planning, and powers of attorney.Ordinarily, they have no authority to appear in court on their client's behalf; their role is limited to drafting, authenticating, and registering certain types of transactional or legal instruments. In some countries, such as the Netherlands, France or Italy, among others, they also retain and keep a minute copy of their instruments in the form of memoranda in notarial protocols, or archives.

Child support attorney explains that notaries generally hold undergraduate degrees in civil law and graduate degrees in notarial law. Notarial law involves expertise in a broad spectrum of private law including family law, estate and testamentary law, conveyancing and property law, the law of agency, and contract and company law. Student notaries must complete a long apprenticeship or articled clerkship as a trainee notary and usually spend some years as a junior associate in a notarial firm before working as a partner or opening a private practice. Any such practice is usually tightly regulated, and most countries parcel out areas into notarial districts with a set number of notary positions. This has the effect of making notarial appointments very limited. As a lawyer, a civil-law notary prepares legal instruments of writing called notarial acts (Fr acte notari, Sp acta notarial, It atto notarile, Du notarile akte, Ger notarielle Urkunde, Notariatsurkunde). These acts are public instruments, that is, recorded with and authenticated by a public office or employee, namely, the notary. They also require unusual solemnity, being written with notarial wording according to strict prescribed formalities of language and often form precedents. A notarial act is a probative instrument, meaning it is self-authenticating, presumed to be drawn in due form of law, and given full faith and credit in and out of court insofar as concerns the narration of facts or events witnessed or

verified by the notary or procedures undertaken by the notary. However, only a prima facie presumption of validity attaches to narrations of client-provided information.The "valid" portions are open to rebuttal, but the probative portions can only be challenged through an action of improbation in which a contesting party bears the burden of bringing a collateral attack against the act's probativity by proving a willful material error by full, clear and strong evidence. This stems from the fact that a notary is expected to verify the facts, assertions, or events mentioned in his act, thereby assuming liability for and giving warrant to its contents. To be probative, a notarial act must be signed by the parties to the act, instrumentary witnesses, and the notary. Notarial acts are immediately executory and enforceable, like court orders, meaning they do not require judicial notice or supervision. California attorney search shows that traditionally, notarial acts in public form are first noted as minutes (originally known as protocols; Fr minute, It matrice, Sp matriz, Du minuut, Ger Urschrift), that is, as memoranda or rough drafts. In the past, this involved two kinds: first, the brief notes or rough minutes (It. abreviatura, imbreviatura, nota), which were in shorthand, small lettering (known as a minute hand), and highly abbreviated, and second, the fair minutes (Fr. tendue, Lat. protocollum), which were written out in long hand and included fully formed sentences and details of the act. The fair minutes constituted a minute copy which was filed and archived in a notary's protocol (Fr protocole, It/Sp protocolo, Ger Urkundenrolle), thereafter known as the protocol copy. The particulars of the act appearer, fees, subject matter, witnesses, date, and so forth were recorded in a register or logbook and the original briefs were inserted into minute-books. Now, however, it is more common to produce only one set of minutes, if any.

From the protocol copy the notary extends a fully engrossed execution copy, known as an engrossment (Fr/Du grosse, It spedizione in forma esecutiva, Sp testimonio, copia autorizada, Ger Ausfertigung), which serves for all intents and purposes as the genuine document since it contains not only the transactional details but also the formulaic language and wording of notarial acts. It is also the only copy that has fresh signatures and seals on it. The engrossed copy is issued to the client or clients, referred to as an appearer or appearers. However, appearers are generally only entitled to one full endorsed execution copy, so any other copy issued thereafter is an exemplified notarial copy which does not contain the appearers' fresh signatures and lacks an enactment clause and anything else that would make it valid in the eyes of the law; exemplifications (Fr expdition, It spedizione, Sp copia certificada, copia simple, Du authentiek afschrift, Ger beglaubigte Abschrift) are therefore only for reference purposes.

In some cases, acts are drawn up in private form, that is, only an execution copy is produced and issued to the appearer, and the notary does not retain a protocol copy of any kind. This applies to private instruments intended for a single party, having short term legal effect, and not producing third party benefits, such as certificates of good standing, powers of attorney, promissory notes, covenants, notarial affidavits and attestations, rent and pay receipts, and pension and annuity arrears documents.

In other cases, acts are in public form, with the minute being the protocol copy retained of record with a public officer (the notary), thereby making the act a public instrument. Juvenile attorney explains that one of the things that distinguishes a civil-law notary's acts from a common lawyer is the fact that, under common law, drafts and non-identical copies are considered to be separate documents whereas under civil law this is not necessarily so. Minutes, which are in many cases illegible and incomplete, are deemed firsthand proof of an act and are considered to be originals, whereas the engrossment is not. The minute is therefore the authenticum, or original instrument of writing, as distinguished from the copy with executory force, or instrumentum. Save for Louisiana, Puerto Rico, and Quebec, a civil-law notary should not be confused with a notary public in the United States and Canada, who has none of the legal powers notaries enjoy at civil law. Rather, notaries public only have the power to administer oaths, take affidavits, declarations or depositions from witnesses, acknowledge and attest signatures, and certify copies, usually in conjunction with some legal process. In Louisiana, Puerto Rico, and Quebec, private law is traditionally based on the French and Spanish civil codes, giving notaries greater legal powers, including the right to prepare wills, conveyances and generally all contracts and instruments in writing. For this reason, immigrants from civil-law countries where civil-law notaries exist, particularly those from Latin America, are often confused by the office of notary public and have been defrauded by dishonest notaries misrepresenting themselves as having legal powers. Thus, in some states there have been ongoing efforts to prohibit notaries public from listing themselves as notario pblico. Such a law has existed for more than fifteen years in California. Similar laws now exist in Texas, Illinois, Tennessee, Georgia, and Florida.

Florida (1997) and Alabama (1999) have enacted statutes allowing for the appointment of Florida[5] or Alabamaattorneys as civil-law notaries with the power to authenticate documents, facts and transactions. This is not the same as a notary public appointment. Attorneys with a minimum of 5 years of Bar membership are appointed after specialized training and state examination. Acts of Florida and Alabama civil-law notaries are given both domestic and international effect under their enabling statutes. Dutch notaries are part of the Royal Society of Notaries (Koninklijke Notarile Beroepsorganisatie (KNB)) and occupy a special position among other legal practitioners such as attorneys, court bailiffs, and tax advisors. This is apparent first and foremost from the fact that notaries are public officials, appointed to office, and who provide regulated services. As a licensed lawyer, a notary takes on clients, is paid on a fee-for-service basis, and is appointed for life by the Crown. Life appointment is designed to safeguard the independence needed by notaries to discharge their functions.

Notaries are independent and disinterested. Unlike attorneys or legal advisors, a notary does not represent or act in the interest of any one party. Instead, under the Dutch legal system, notaries are

required to act impartially on behalf of all parties to a contract or transaction. For example, when real property is conveyed, notaries act for both the seller and buyer. They are subject to the legal professional privilege and are therefore dutybound not to betray client confidentiality, thereby giving them the right to withhold information in court as would an attorney or doctor. In cases where a notary acts as legal advisor to a particular interested party, that notary is supposed to counsel all parties including third party beneficiaries.

All notaries are law graduates. Not only are they experts in family, estate, company, and property laws, but they must also stay up-to-date about pertinent cases and certain aspects of tax legislation. If necessary, a Dutch notary will instruct and rely on the services of other legal practitioners. However, under no circumstances may a notary represent clients in court.

Apart from adivsing, a notary also registers and retains instruments either by statute or at the parties' request. Under Dutch law, a notarial act is probative as of the date of record (vaste datum) and subscription of the parties. Notaries archive the minute (protocol copy, Dutch minuut) and issue exemplifications (authentiek afschrift) to the parties. The only fully executed copy, known as the engrossement (grosse), is prima facie demonstrative evidence of its tenor like a court order. There is therefore no need for the party to or custodian of a notarial act to provide extraneous evidence to verify the act's probativity. And under Dutch law, for acts to be executory, they must be public instruments, which is why any instrument drafted by a common-law lawyer, which is never public, is not directly enforceable in the Netherlands.

The new Notaries Act (Wet op het Notarisambt), commenced in October 1999 (156 years after the original act), reinforces the official position of notaries, but also expands upon and adds to their traditional services. The consolidation of the notary's official position is, for example, reflected in the way the requirements of impartiality and independence have been enshrined in law, the many regulations a notary and notary's clerk are required to observe, and the fact that a notary is prohibited from acting as an attorney. Market forces have widened the possibility for notary's clerks to become notaries and for competition. However, the new Notaries Act has not introduced substantial changes to the profession. While Dutch notaries are public officers and their acts are public instruments, they are not government employees and instead act as independent private practitioners.

The new law makes it easier for notary's clerks to set up a practice and gives notaries more freedom in determining their fees for services. The Act has provided for the establishment of an external committee of experts; if notarial clerks submit a sound business plan to the committee, they have a greater chance to be approved to set up their own practice. Greater freedom in the fees a notary can charge implies

that the Royal Society of Notaries no longer fixes fees or recommends rates. Since July 2003 notaries have been free to set their own fees. Maximum rate caps fixed by authorities now apply only to family law services in certain circumstances.