jurisdictions use notaries in different ways, but all have the same roots. How is a notary different to a solicitor, barrister or other lawyer? Notaries are an entirely separate profession and, in fact, are the oldest surviving legal profession in England and Wales, pre-dating solicitors and barristers. Solicitors, barristers and other legal professionals are private legal practitioners whose principal duty is to act in the best interests of their client as opposed to any other person. This is reflected in their professional conduct rules, which include obligations such as strict confidentiality and a prohibition against acting for more than one party. The notary’s role is quite different. As a public official, a notary’s duty is to the public in general. Through a combination of the notary’s oath of office and their professional conduct rules, notaries are required to act impartially in the public interest and can issue a notarial act recording the agreement of various parties to a matter before them. They are also required to retain copies of certain public agreements indefinitely (even being required to transfer them to public archives upon retirement) and to issue copies of them to any person who can show a sufficient interest in them. There is also the added difference that, as an impartial public official whose object is the prevention of litigation, notaries cannot, unlike solicitors, conduct litigation and do not, unlike barristers, have audience rights in the courts. What is ‘notarisation’? ‘Notarisation’ does not have a specific meaning in English law. It is something of an Americanism. In most US states, it refers to making a specific form of declaration in front of a notary who then certifies that you have done so; similar but not identical to an English statutory declaration. In England and Wales, the meaning is quite different and is a broad term that would essentially cover the notary issuing any notarial act. However, quite what that act consists of and the form it takes depends on the circumstances. What types of things are recorded in a notarial act? The core traditional function of the notary is to record agreements and statements made by members of the public. For historical reasons relating to the various parallel English legal systems that have applied for many centuries, in England and Wales formal notarial acts are generally (but not exclusively) voluntary. In other legal systems, especially continental European legal systems, they are compulsory in certain areas of law. As a result, English notaries are often asked to issue notarial acts to deal with matters in other jurisdictions, liaising with local lawyers to ensure compliance with local requirements. These often relate to dealings with land, companies, wills and inheritance, which are areas in which continental jurisdictions require notarial acts to be used. In addition, notaries are often asked to issue notarial certificates in relation to other documents, in which case the notary adds a separate certificate to the document. The nature of the certification depends on what is required by the recipient. In the case of contracts, declarations of consent to travel and forms, this often includes confirmations of the identity of a signatory to a document - it having first been signed before the notary- the authority of a signatory to sign on behalf of a company, compliance with company laws etc. In other cases, it can include confirmations of the authenticity of a qualification or other certificate (the notary having taken steps to verify it with the issuer). 72 LAWYER MONTHLY JULY 2023 The fact that notarial acts now definitively have probative force in all areas of English law provides a fantastic opportunity for notaries to play a greater role in domestic transactions.
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