Deontology and Rules of Organization for Notariats
The enclosed text builds on and updates the ”Fundamental Principles of the Latin-type notarial system” approved by the General Meeting of UINL Member Notariats in Rome (Italy) on 8th November 2005 and the ”Principles of Notarial Deontology", approved by the General Meeting of UINL Member Notariats in Mexico on 17th October 2004.
This responds to the need felt by various UINL bodies and the request of several notarial and non-notarial authorities regarding the organisation and activity of notaries.
This articled text is in the form of a ”Uniform Law” which may serve as a model to inspire Notaries in the organisation and exercise of their public function, but also in the identification and application of deontological principles and rules.
These provisions are universal and are meant to be applied to all UINL Member Notariats and any other Notariat wishing to join the Union.
They propose different levels of application:
• Under the Title one (Principles and Organisation of the Notariat): the provisions which form the essence of the Notariat
• Under the Title two (Relation of the Notariat with the State): the provisions establishing the framework of the Notariat within the judicial organisation of the country and its legal system.
• Under Titles three and four: certain rules that are essential to the form of existence of the Notariat, such as the duty to be a member of a collegial body, the system of notarial inspections and audits, notarial liability, confidentiality, the free choice of the notary, the system of incompatibility and other rules, such as financial solidarity, continued training, helping sick or absent notaries, which are organised differently from Notariat to Notariat.
• Lastly, under Title Five: the provisions regarding the infringements and applicable types of sanctions that will have to be approved in each country in accordance with the exercise of the notarial function.
As a result, this text is a sort of open “model”, comprising a set of legal and ethical rules (often difficult to distinguish) which aims at providing some guidelines for Notariats that are part of the International Union of Notaries.
Deontology is an essential and necessary element in the exercise of the notarial function. Without it, it is impossible to fulfil our function correctly, as the notarial profession is marked by significant ethical contents. This is why our duty is to focus on and disseminate as much as possible within the international notariat the deontological rules concerning our professional practice that strengthen its social value, in search of perfection.
The activity of notaries is unique. Their very delicate task is to assure legal certainty and truth which are essential to society. Therefore, the notariat is an institution that is absolutely useful and necessary to society.
In its preventive function, the activity of a Notary allows for legal certainty and security, and is clearly exercised taking ethics into due account. The values of legal certainty and security are the means to attain the ultimate goal of law: Justice. And it is for this very reason that ethics are an essential requirement. They are its basis, its roots and the strength of its legitimacy. Nevertheless, notaries, like any other professional, may make mistakes or errors, even though these should never occur. Therefore, it is important to draw up a Deontology Code setting out minimum and essential rules to regulate the actions of notaries.
This Code sets out the fundamental values of the activity of notaries which have been, are and will keep on being essential to their actions. They are principles studied and disseminated for over sixty years by UINL, which comprise the subject matters that have affected social reality and relate to the action of notaries in the fields of ecology, information technology, money laundering, the protection of personal data, the culture of legality and, of course, the social dimension of the notariat.
Through their ethically irreproachable conduct, notaries have to develop the public and social functions needed to offer the benefits of sound preventive justice to society.
This “Uniform Law” may be considered a “model Code” by UINL member states. It is a tool that helps strengthen respect for the legal values of the notarial activity.
The infringement of ethical rules has to be punished and it is up to national Chambers to determine sanctions and related application procedures; the national Chambers will also have to establish practical procedures to ensure strict compliance with the deontological duties set out in this Code.
To this regard, it is worthwhile to reiterate that deontological rules are like legal standards and are therefore part of the legal system, as they are characterised by their ethical content and their direct relationship with the constitutional and ordinary laws of each member state.
Compliance with the deontology Code preserves the original nature of the profession of notaries and plays a role of protection and reference that helps delimit their actions and consolidate their practice. Notaries have to adopt and uphold it and make it a way of living, being, acting and reasoning, since the present and future of the Notariat depends on compliance with this Code.
Since its establishment in 1948, the International Union of Notaries (UINL) has established a number of values and principles that have helped depict the Notariat as an institution that is part of the legal system of the State and that lay down what notaries should do and how they should act.
These values and principles, finalised during the various Congresses of the Union, have been systematised in the “Fundamental Principles of the Latin-type Notarial System” and the “Principles of Notarial Deontology” which are the basic structural texts of UINL and its culture.
However, since the foregoing texts are programmatic, it is necessary to develop them into a consistent body of laws, in order to create a uniform law that specifies and details them and that can be used as a working tool by the various UINL bodies in charge of disseminating and elucidating the features of the notarial function throughout the world.
This Model Law should serve as a legislative model to those countries wishing to introduce the Latin-type notariat in their legal system and as a reference and updating tool for those countries that already have a legal body of this nature.
At the request of the President of the Union, the Notarial Deontology Commission has drafted this Code, by adding ethical values stemming from the needs of our new, inclusive and global societies (such as the service of notaries and the added value of their function in the upholding of human rights, the protection of consumers and the parties requiring more information, sustainable economic development, the environment, transparency, the prevention of money laundering and flexible international legal relations) to the traditional values of notaries (such as legality, impartiality, independence, preventive legal certainty, continuing education and training, professional secrecy and confidentiality). All these values and needs are added to the duties inherent in the profession, as this is a living profession in direct contact with the society it serves.
Through a Code represented by this “Uniform Law”, the foregoing ethical values, adopted by all the Notariats in the world represented within UINL, take on the value of deontological rules of the profession and, as a result, becoming binding and mandatory rules for notaries.
The aim of this Code is to organise the exercise of the notarial profession in a positive way, by grouping ethical values and giving them the character of deontological rules, in that they define not only the way of being (ethics) of the action of notaries, but also their way of “having to be” (notarial deontology), and the professional duties that notaries need to fulfil. This is why this Code proposes positive behaviour and also sets out the sanctions to be applied in case of infringement of its rules.
The text is divided into five titles, following the traditional system of dealing with this subject in the various national deontology codes.
The first Title “Principles and Organisation of the Notariat” gathers the principles and the rules of organisation of the Profession, which are later treated as mandatory deontological rules, in order to underscore that they need to be enforceable and binding.
The second Title, “Relations of the Notariat with the State”, regulates the duties stemming from the dual nature of the Notary “Public Officer or Official” and “Liberal Law Professional”.
The third Title, “Relations of Notaries with Chambers or Professional Associations”, deals with the vertical relations of Notaries, the organic system of the organisation of the Notariat, the inclusion of its bodies in the State administration of justice, the system used to appoint Notaries, their participation in notarial organisations, their responsibilities and corporative solidarity.
The fourth Title, “Relations of Notaries with other Notaries, Employees and Service Users”, deals with the horizontal relations of Notaries, the values of having to be in their daily activities with service users or any other person requesting their services, other notaries and their employees and assistants.
Lastly, the fifth Title, “System of Incompatibility, Interdictions and Sanctions”, closes the Code with a summary of the mandates contained in the previous titles. It lists the cases of failure to comply with mandatory rules, ensuing sanctions and the jurisdiction for their application.
In a nutshell, this Model Law is drawn up as a positive and topical legal text of the rules of organisation and deontological regulations underscoring the added value of the notarial service afforded to global society which serves as a tool of legal certainty, justice and social peace.
TITLE I.- PRINCIPLES AND RULES OF ORGANISATION FOR NOTARIATS
ARTICLE 1.- PURPOSE AND NATURE OF THE CODE - APPLICATION
The provisions contained in this Code are a model legal system of deontology for UINL member Notariats and have to be transposed in the various national notarial laws, as they set out, specify and detail the “Principles of Notarial Deontology” of UINL and the different documents of the Union on this topic, approved by the General Meeting of Member Notariats of this non-governmental organisation in Mexico City on 17th October 2004.
The application of the provisions of this Code has to be mandatory in each of the UINL member states, by including them in the laws and regulations on the notariat or by enacting a law on Notarial Deontology.
The provisions contained in this Code and not transposed in national notarial laws will be applicable as deontological rules by respective Chambers or professional Associations, as they express the deontological content of the notarial profession.
ARTICLE 2.- REGULATED ACTIVITY
The notarial activity is regulated by and subjected to national laws and regulations on this subject matter.
This Code establishes the provisions applicable to the notariat and will apply, in an ancillary manner, to the national rules of UINL Member Notariats.
Notaries will be required to comply and ensure compliance with the notarial rules regulating their profession and activity to the best of their knowledge and fairly.
ARTICLE 3.- ORGANISATION OF THE NOTARIAT
The notary is therefore both a public official and a law practitioner.
3.1.- Public Official.
The Notary is a Public Official to whom the State has delegated its power allowing him to confer authenticity to the documents he drafts, to ensure their storage, give them probative force and make them enforceable.
3.2.- Law Practitioner
Besides being a public official, the Notary is also a law practitioner exercising his public function within the framework of an independent, regulated profession.
3.3.- Single National Chamber or Association of Notaries dependent on the Ministry of Justice.
The Notariat is formed by all the notaries of a country, grouped within a single Chamber or national organisation, independent from the State, but complying with public law principles and recognised by the law. As the case may be, this institution shall group the various local Chambers within the country and be placed under the protection of the Ministry of Justice.
ARTICLE 4.- GENERAL INTEREST OF THE NOTARIAL ACTIVITY AND SOCIAL VALUE OF THE NOTARIAT
As delegatees of a part of State sovereignty, Notaries have to exercise their activity by checking the legality of acts and matters they deal with impartially, independently and responsibly and as a result authenticate them. Through their involvement at the service of the general interest and preventive legal certainty, notaries have to make it possible to avoid disputes and contribute to sustainable economic development and social peace.
The activities of notaries cannot be delegated and notaries are obliged to draw up deeds, excluding the cases of justified refusal explained hereinafter.
ARTICLE 5.- CONDITIONS FOR THE EXERCISE OF THE NOTARIAL FUNCTION
5.1.- Professional and personal qualifications.
The Notariat, as an institution, and Notaries as professionals, have to obtain the maximum legal qualifications in their respective countries in order to practise law, have passed examinations to gain access to the profession and have the necessary legal knowledge to effectively and accurately check the legality of the acts and documents that they draw up.
Notaries have to retain an ethical personal attitude in the exercise of their function by refraining from any behaviour that may entail losing the confidence of citizens in the notarial institution or that are contrary to the dignity of the Notariat.
The involvement of notaries has to conform to legality and avoid the fraudulent circumvention of the law and damage to persons; the acts or documents they draw up or are involved in will benefit from the presumption of compliance with the Law.
Notaries have to exercise their function correctly and competently in the application of the Law and in all the manifestations of their professional activity, by seeking the legal form that best suits the public and private interests for which their involvement has been sought.
Notaries, as “Trusted Third Parties”, have to be impartial in their work vis-à-vis the parties and any other third parties concerned with a view to preserving legal certainty.
The impartiality of Notaries has to be positive, by offsetting the absence of or imbalance in information between the parties, by paying special attention to the parties to the contract requiring their assistance the most, and by offering their advice as qualified professionals.
Notaries cannot draw up public documents comprising provisions that may favour them either directly or indirectly.
Notaries have to act independently vis-à-vis the parties and the Administration, but without ever damaging the latter.
Notaries have to avoid influencing and discriminating parties.
5.5.- Respect for Fundamental Rights
Notaries have to respect and protect human rights, the environment (cleanliness of water and air as basic conditions for life), justice, freedom, truth, honesty, reliability and are required to keep professional secrecy.
Notaries have to reject corruption, subornation, collusion agreements and other actions harming persons and economic development, and any acts which, albeit in compliance with the law, are contrary to their spirit, or any acts that are overtly detrimental to the parties.
5.6.- Willingness, Diligence and Responsibility.
Notaries have to be willing to perform the duties inherent in their Service, act with the diligence of a professional of excellence and seek social rooting in the places where they exercise their function.
Notaries are responsible for any damage and harm caused that may be ascribed to them (through their actions or through the acts they draft that are contrary to the law or the diligence of a professional of excellence), and this responsibility has to be assured.
5.7.- Professional Autonomy
Notaries are autonomous in the exercise of their function, without prejudice to their membership of Chambers and the supervision of the exercise of their function by the Ministry of Justice.
Notaries have to refuse to be involved in the cases of incompatibility set out hereinafter.
TITLE II.- RELATIONS OF THE NOTARIAT WITH THE STATE
ARTICLE 6.- DEPENDENCE ON THE MINISTRY OF JUSTICE. CHAMBERS OR PROFESSIONAL ASSOCIATIONS
Notaries exercise their function under the supervision of the Ministry of Justice and are affiliated with Chambers or professional Associations of Notaries.
The Chambers or professional Associations of Notaries (local or national) are legal entities governed by public law capable of taking action to achieve their goals.
They are under the supervision of the Ministry of Justice.
ARTICLE 7.- CHAMBERS OR PROFESSIONAL ASSOCIATIONS OF NOTARIES
Without prejudice to their remit established by notarial laws, the Chambers or professional Associations of Notaries are in charge of organising the exercise of the notarial profession, representing it, upholding its interests and accomplishing the social function of the Notariat.
In representing the notarial profession, the Chambers or Associations of Notaries will be required to comply and ensure compliance with the provisions of this Code, by overseeing the proper exercise and upholding of the notarial function, among notaries and vis-à-vis third parties.
Local Chambers or professional Associations will be grouped in a single Chamber or Association at national level.
The governing bodies of Chambers or Associations will be elected democratically by member notaries at the general meeting.
The Chambers or Associations are in charge of inspections and supervision of member Notaries and are competent in matters relating to discipline and sanctions, as set out hereinafter.
Membership of a notarial Chamber or Association is an essential condition for the exercise of the notarial function.
The Chambers or Associations of Notaries will be funded through the membership fees of Member Notaries, the earnings and revenue obtained from their property and the activities and services performed in accordance with their statutes.
ARTICLE 8.- DELEGATION OF STATE AUTHORITY. PUBLIC SERVICE
Notaries owe loyalty to the State that has delegated its public authority to them and are required to exercise it with a spirit of service and dignity.
As public officials, they are required to exercise their mission whenever required, by using all the material and human resources needed for the fulfilment of the Public Service that their function entails.
They are required to fulfil their public function with integrity, willingness and diligence and to refrain from any behaviour that is contrary to the dignity of their condition of public officer or official or that may favour them either directly or indirectly.
These same duties shall apply to the employees of notaries too and responsibility for their work shall be ascribed to notaries.
Notaries can only take leave from their mission in those cases provided for by law and after having guaranteed that the notarial service in their respective districts will continue to be assured.
ARTICLE 9.- CO-OPERATION WITH THE JUDICIARY
As Law practitioners in non-contentious matters and delegatees of State authority, Notaries and Chambers or professional Associations representing them, shall co-operate with the judicial authorities in the fulfilment of their public function and with the competencies assigned by the State within the framework of this co-operation, with a view to improving the development and application of justice and social peace.
ARTICLE 10.- CO-OPERATION WITH OTHER STATE INSTITUTIONS AND AGENCIES AND DIFFERENT ORGANISATIONS
Without undermining their duty of professional secrecy, Notaries shall co-operate with State institutions and agencies for delegated functions and within the framework of official relations tied to their remit.
They shall also co-operate with other public and private institutions and agencies when required as delegatees of public authority, in accordance with the duties tied to their function, and making sure that their counterparts also comply with these duties.
ARTICLE 11.- PUBLIC OFFICE
Notarial practices are organised independently by Notaries and are under their responsibility. They shall benefit from inviolability stemming from their condition of public office.
They shall fall under the hierarchy of the Chambers or professional Associations of Notaries they depend on. The latter will be in charge of the general management of the notarial service, inspections and supervision. They shall be placed under the protection of courts.
Notarial registers, documents and archives are kept by notaries and are subject to confidentiality and professional secrecy.
Without prejudice to the protocol secrecy and confidentiality of the Notarial Office, notarial protocols and archives and their rights and duties, Notaries have to facilitate full access to the foregoing documents by the higher authorities of the Chambers or Associations they are members of, so that they can be examined, inspected and checked.
ARTICLE 12.- TECHNOLOGICAL MEANS
Notaries shall be required to equip their practices with the most advanced technological means and at least the materials needed to exercise their function, in accordance with the organisation of the State and Public Service at national and international level.
ARTICLE 13.- COMPETENCE
The competence of Notaries shall comprise extra-judicial acts and agreements, acts of voluntary jurisdiction and any other deed or agreement that needs to be registered at public registries and those for which the State has delegated its authority.
The territorial or personal competence of notaries shall be established by law.
ARTICLE 14.- APPOINTMENT AND TERM OF OFFICE
Taking the independence and impartiality typical of their function into due account, the system to appoint Notaries has to rest on proven professional competence based on objective criteria.
Notaries must have attained the highest technical level required by the State to exercise legal professions.
The term of office shall be unlimited and shall only cease in case of retirement at the conditions established by law, incapacity or inaptitude, or expulsion declared following a final court decision.
ARTICLE 15.- VOCATIONAL TRAINING. LIFELONG LEARNING
Notaries have to carry out their professional activity competently and with adequate training, especially for the key functions of advice, consultation, interpretation and application of the law. As a result, they shall be required to bring their knowledge up to date both legally and technically.
In fulfilling their duty of lifelong learning, they will be required to follow the instructions provided by their Chambers or professional Associations.
The duty of lifelong learning shall also concern the employees of Notaries who are therefore required to encourage and supervise said learning.
ARTICLE 16.- DUTY OF PERFORMANCE. DENIAL OF SERVICE
The Notarial function is personal and cannot be delegated. The exercise of this function is mandatory.
In their capacity of public officials, Notaries can only refuse to provide their services in the following cases:
1.- When a deed is contrary to the Law or to Public Order or liable to mislead third parties.
2.- When a deed implies the fraudulent circumvention of laws, third parties or public authorities
3.- In cases of incompatibility described hereinafter.
4.- When a deed does not fall within their competence.
5.- When a deed is contrary to the dignity expected from a public official.
The refusal of a notary to provide his services cannot be the subject of a petition filed with one of the bodies of the Notariat.
Notaries cannot refuse to fulfil their function on grounds of conscience, if the deed requiring their involvement complies with the laws of the State.
The notarial practice has to be open during habitual office hours and be kept by the Notary and staff needed to provide a public service.
ARTICLE 17.- LEGALITY. CORRUPTION. MONEY LAUNDERING
Notaries have to always behave ethically and in accordance with the Law.
Notaries shall reject corruption, subornation, dishonest practices, money laundering, tax fraud, terrorism and any other criminal activity, such as exercising the law in an antisocial way.
In the field of money laundering, Notaries shall offer their co-operation and provide all the necessary information they have to the competent authorities, in accordance with the laws of the State, but shall not be obliged to engage in investigations that fall within the jurisdiction of the law enforcement agencies or the judicial authorities. This co-operation shall be regulated by objective principles and criteria established by law, in co-ordination with the central bodies of the Notariat.
Notification to the authorities of any doubtful transaction liable to involve money laundering shall not be considered an infringement of the duty of professional secrecy, as it makes the general interest and common good prevail.
ARTICLE 18.- HUMAN RIGHTS. SUSTAINABLE DEVELOPMENT. COMMON GOOD
In exercising their function, Notaries have to promote Human Rights and, in particular, respect for life, food and the environment (clean water and air) and contribute to the sustainable development of society based on solidarity.
Notaries have to respect the rights of local populations, by helping them strengthen and create their own legal, economic, cultural and social structures.
Notaries have to promote freedom, justice and truth through the application of the law and in the absence of the law, they will have to adapt their actions and place them above personal interests and to the benefit of the common good.
ARTICLE 19.- INTERNATIONAL RELATIONS
Notaries have to favour development, trade and international relations through the knowledge of languages and the laws of other States and participation in the international institutions of their Notariat, the International Union of Notaries and the World Notaries Network.
TITLE III.- RELATIONS OF NOTARIES WITH CHAMBERS OR PROFESSIONAL ASSOCIATIONS
ARTICLE 20.- INDEPENDENT STRUCTURE
The exercise of the notarial activity is personal and independent for each notary who is individually accountable.
In case of shared exercise of the notarial activity, and without prejudice to the personal responsibility of the notary, the other notaries sharing the activity will be held jointly responsible for monetary compensation of any damage caused.
ARTICLE 21.- COMPULSORY MEMBERSHIP
Without prejudice to the independence of their professional activity, in order to exercise their function Notaries must be members of the national notarial Chamber or professional Association and accept to be subjected to the scrutiny, inspections and checks made by this organisation under the authority of the Ministry of Justice.
To start their activity, notaries need to be members of a Notarial Chamber or Professional Association.
ARTICLE 22.- DUTIES OF NOTARIES TOWARDS NOTARIAL CHAMBERS OR PROFESSIONAL ASSOCIATIONS
Notaries have to adapt their professional behaviour to the rules of Chambers, according to their prerogatives, and offer them their co-operation when requested.
They must also refrain from taking any personal initiatives or actions with the public authorities that may interfere with the decisions of Chambers.
ARTICLE 23.- ASSIGNED TASKS AND DUTIES
Notaries are required to accept the functions which they were proposed or chosen for within their Chambers.
Notaries have the duty of taking part actively in all the activities of Chambers or professional associations and accomplish the tasks assigned to them by taking the necessary time and using the necessary means to fulfil them efficiently.
Notaries shall be required to inform the governing bodies of their Chambers or Professional Associations of any fact or act jeopardising the interests of the profession or any other event that may in any way harm the integrity and hierarchical organisation of their chambers or professional associations.
ARTICLE 24.- MANAGEMENT FUNCTIONS OF CHAMBERS OR ASSOCIATIONS, HIGHER COUNCIL OF NOTARIES
In exercising their functions, the members of the governing bodies of Chambers or Professional Associations will be required to act in accordance with the rules of caution, justice and equity, making sure to retain the ethics and dignity of the profession, the efficient exercise of their function and respect for the rights of individuals.
They shall exercise their disciplinary powers in accordance with legal provisions, with the strictness and firmness proper to their functions and the service which they have been appointed to, whilst understanding that mistakes made cannot hinder or limit the duty of integrity required in the exercise of their function.
The governing bodies of the National Notarial Chamber (Higher Council of Notaries), grouping the various local Chambers and representing the interests of the entire national Notariat, shall be required to respect the specificities and needs of each Chamber.
The officials of said notarial bodies shall put in place appropriate mechanisms to encourage fellow colleagues to take up management duties and foster the participation of all member notaries in the various tasks and activities to be developed.
ARTICLE 25.- FUNDING THE CHAMBERS OR ASSOCIATIONS OF NOTARIES
Notaries have to contribute to the funding of Chambers or Associations of Notaries in accordance with the Laws and the rules and decisions of Associations.
ARTICLE 26.- SUPERVISION AND INSPECTION OF THE ACTIONS OF NOTARIES
Either directly or through the Chambers or Associations of Notaries, the State has the power to scrutinize, check, inspect and sanction notarial activities, which will be placed under the protection of Courts.
Infringements and sanctions will be established legally, under the “nulla poena sine lege” principle.
The law regulates inspection and sanction procedures, as well as appeals against the decisions of notarial bodies to be filed with the Ministry of Justice.
Appeals against the decisions of the Ministry of Justice, putting an end to administrative procedures, shall be filed with Courts.
ARTICLE 27.- RECONCILIATION, SUPPORT, SOLIDARITY
The governing bodies of Chambers or Associations of Notaries shall avoid, insofar as possible, any disputes among their members and promote mediation and reconciliation among them, by favouring a good climate of understanding and harmony among members Notaries.
In particular, they will help and support new Notaries in the efficient exercise of their function.
They shall regulate the means and mechanisms of solidarity so that the fulfilment of their function will allow Notaries to lead a dignified life throughout their career and after retirement.
ARTICLE 28.- NUMBER OF NOTARIES. TERRITORIAL COMPETENCE. PLACE OF EXERCISE OF THE FUNCTION
The number of notaries shall be regulated by law (numerus regulatus) in order to adequately adapt the provision of service.
Unless provided otherwise by law, the competence of notaries shall be territorial.
The activity of notaries shall be exercised at a notarial office (or Practice)
Excluding those cases when the need for a public service makes it necessary, owing to distance and in accordance with notarial competence, secondary offices shall not be authorised.
The performance of activities outside the notarial practice shall be authorised, if the person requiring the notarial service is unable to move or owing to the public authority that has to draw up the act.
Otherwise, the authentication of the notarised act outside the premises of the notarial practice shall require the explicit consent of all the parties to the act.
All this without prejudice to the notifications and requests that notaries have to make outside their practices.
ARTICLE 29.- PUBLICITY. CONTENTS AND LIMITS
The publicity of the activity of notaries and the dissemination of the principles and benefits of the system of Latin-type Notaries will only be promoted institutionally by professional Associations.
Publicity made individually by notaries shall combine the need for information which the public is entitled to with the ban to resort to commercial procedures aimed at “attracting clients”.
In public addresses or in any other means of communication, Notaries will be required to adopt the necessary measures to avoid any personal publicity.
Informative publicity by Notaries shall be accepted in accordance with this Code, only:
a).- If it indicates the name, professional and academic qualifications and specialisations of the notary; the place where he exercises his functions; his telephone number and e-mail address.
b).- If it is done to communicate the change of professional domicile in legal and notarial publications.
c).- If it is found in technical reviews or publications which can only include the information specified under paragraph a) above.
Failure to comply with these criteria shall be deemed a form of ethical misconduct.
Professional plates situated at the entrance of buildings where notarial practices are found cannot exceed the size established by law or the Chambers or Associations of Notaries.
Signs, including neon signs, on building façades advertising a notarial practice or activity are forbidden.
Any publicity of notaries in the form of commercial propaganda through the media is forbidden.
ARTICLE 30.- MATERIAL AND HUMAN RESOURCES. ORGANISATION
Notarial practices shall be organised in such a way as to assure regular and efficient functioning, by using adequate human, material and technological resources.
Notaries have to exercise their function at their notarial practices in such a way as to assure availability of the service, by ensuring permanence and adopting working hours suited to the needs of service users.
Archives and notarised documents have to be stored in perfect conditions, using material and electronic filing and maintenance means, thus assuring both their storage and the easy retrieval of information.
The compatibility of the notarial practice has to be complete and accurate and will comply with legal requirements, thus making it possible to know, at any given moment, the overall amount of the sums deposited with notaries, and the balance sheet and results of the notarial activity.
Notaries cannot use the sums deposited by service users for the activities that they have been entrusted with for their own personal interests.
ARTICLE 31.- ABSENCE FROM PRACTICES
As set out in article 8, Notaries can only take leave from their practices in those cases established by Law and providing that the Service will continue to be assured appropriately.
The Law will also regulate the periods when Notaries can take leave from their practices.
ARTICLE 32.- PROFESSIONAL DILIGENCE. CIVIL, CRIMINAL AND DISCIPLINARY LIABILITY
Notaries shall fulfil their activities with the diligence of an excellent professional and take on civil liability for any damage and harm caused either by their misconduct or negligence.
Their activities shall be guaranteed, according to the rules established by the Law or the Chambers or Associations of Notaries. This guarantee shall be a preliminary condition at the start of their activity.
The law shall determine the cases in which the fraudulent or negligent actions of notaries or their professional imprudence may give rise to criminal liability.
The disciplinary responsibility of the Notary shall result from non-compliance with notarial rules and any action that is contrary to the dignity of his function or the rules of this Code.
ARTICLE 33.- FINANCIAL SOLIDARITY
Notaries shall benefit from a system of financial solidarity.
In the absence of regulations to this regard, the Chambers or Associations of Notaries shall organise their own system of notarial solidarity.
Notarial solidarity shall provide for the financial support of practices, in those cases in which the financial performance of the latter is insufficient to cover the costs of the necessary notarial services.
Notarial solidarity shall also provide financial support to Notaries and their families in case of death, illness, incapacity as well as retirement.
The notarial funds shall maintain a financial investment structure adapted to guaranteed risks.
TITLE IV.- RELATIONS OF NOTARIES WITH OTHER NOTARIES, EMPLOYEES AND SERVICE USERS
Section 1.- Relations with other Notaries
ARTICLE 34.- RELATIONS WITH OTHER NOTARIES
The relation of the Notary with fellow colleagues shall be on a peer-to-peer basis.
The Notary has to consider other Notaries as colleagues united in the pursuit of a common objective, namely the efficient exercise of the Profession, and not as competitors.
The behaviour of a Notary towards other Notaries has to be correct, and shall be aimed at seeking co-operation and solidarity, by promoting the exchange of support, services and advice.
The Notary shall not discredit other Notaries. Scientific or technical mistakes or deontological faults committed by another Notary have to be communicated to Chambers or Associations, in view of instituting a disciplinary case or a procedure in Court.
The differences of opinion among Notaries shall be regulated insofar as possible out of court. To this end, Notaries may always request the intervention of the Chamber or Association of Notaries.
ARTICLE 35.- FREE CHOICE OF THE NOTARY
The right of the citizen to freely choose a notary is an essential right of the Notarial Service, excluding those cases when the designation of the notary is determined by law.
This right has to always be respected by Notaries.
Notaries have to refrain from “attracting clients” by offering reduced fees, concessions, gifts or discounts or by engaging in any other similar action that is contrary to the dignity and independence of the Notarial Function.
ARTICLE 36.- CHANGE OF NOTARIAL DOSSIER
For a current dossier to be passed on from one notary to another, a service user has to submit an explicit request of relinquishment and pay any fees due to the Notary previously in charge of the dossier.
The newly appointed Notary will have to request the settlement of any outstanding fees from the notary previously in charge of the dossier, and their settlement by the service user.
If the service user does not agree with the fees requested, he will be required to refer the matter to the Chamber or Association of Notaries with a view to settling the matter.
If the service user does not wish to pay the fees, after having duly informed the previous Notary, the new Notary may continue to handle the dossier until the matter is settled, without prejudice to the notification of the service user’s refusal to the Chamber or Association.
ARTICLE 37.- MATTERS HANDLED BY MORE THAN ONE NOTARY, EITHER NATIONAL OR FOREIGN
In case of co-operation of several Notaries in a single matter, the latter should jointly seek the best solution, by guaranteeing the interests of all the parties and abiding by all the laws and regulations in force.
UINL Member Notariats shall co-operate and share experiences in order to improve the Notarial Service unceasingly for citizens and enterprises alike.
The World Notaries Network (WNN) will be in charge of assisting Notaries involved in international transactions, in accordance with the rules of the UINL.
ARTICLE 38.- PRACTICES WITH SEVERAL NOTARIES
The presence of several Notaries at one Notarial practice should not hinder the free choice of the Notary by the service user and will only be possible when this right shall be guaranteed in the same location.
The grouping of several notaries established in accordance with the laws of each State should not hinder the joint liability of all the grouped Notaries for any facts or omissions of Notaries and the employees of the practice.
ARTICLE 39.- CO-OPERATION WITH OTHER PROFESSIONALS
The co-operation of the Notary with professionals other than notaries (for example in inter-professional companies), when permitted legally, shall guarantee the independence and impartiality of the Notary.
ARTICLE 40.- HELPING SICK OR ABSENT NOTARIES
The substitution of a sick or absent Notary shall be made by guaranteeing the same dedication and habitual professionalism of the practice and respecting the service users and Employees of the substituted Notary.
Substitution pay shall be based on agreements between the parties concerned and in the absence of agreements, they will be regulated according to the uses and customs of the place and in case of lack thereof, by following the criteria and rules established by the Chamber or Association of Notaries.
Section 2.- Relations with Employees, Aspiring Notaries and the Staff of the Practice
ARTICLE 41.- ORGANISATION OF THE NOTARIAL PRACTICE
The organisation of the Notarial Practice shall be decided by the Notary, who has to comply with the requirements, in terms of material and human resources, established by the Association or Chamber and the Law, by assuring sufficient and dignified treatment, working conditions and pay for the exercise of the Profession to his employees and co-workers.
The notarial practice shall be equipped with adequate and sufficient technology to exercise the function, in accordance with the State organisation and the public service rendered.
ARTICLE 42.- HUMAN RESOURCES
The Notary shall inform his employees and co-workers of and demand compliance with deontological and any other rules regulating the exercise of the profession. He will be held liable for any damage caused by acts or omissions of said employees and co-workers.
The Notary shall be required to dismiss any person who fails to abide by the rules of this code permanently and regularly.
ARTICLE 43.- CONTINUING EDUCATION, QUALITY
The Notary should encourage and supervise continuous improvement of the service through the continuing education of his employees and co-workers, by making them attend technical training courses and courses to improve legal knowledge and practice, with a view to seeking quality in the exercise of the notarial function.
ARTICLE 44.- EXTRA-NOTARIAL ACTIVITIES OF EMPLOYEES
If the Law allows the employees of the Notary to engage in extra-notarial activities, the latter should in any case be compatible and not in competition with notarial activities and should in no case lead to direct or indirect benefits for the Notary.
ARTICLE 45.- CANDIDATE NOTARIES
Candidate and trainee notaries have to learn and gain knowledge not only of law and technology, but also of the way of being and the way of “having to be” of the profession and the notarial service.
They will be treated with respect and supported by Notaries in charge of their training.
Section 3.- Relations with service users
ARTICLE 46.- EXTERNAL RELATIONS
Notaries shall always pursue the common good.
They have to act impartially and independently in all the aspects of their profession, by avoiding any external influence over their activity and any form of discrimination of service users.
They shall pay special attention to the party who needs the most information, by offsetting any imbalance in knowledge, actively offering their professional advice and opinions, keeping a balanced position aimed at preserving the legality of the deed or transaction, the full effect of an authenticated document and the security and peace of the parties.
They will be required to inform service users clearly and professionally of the legitimate means to achieve the lawful ends sought and the consequences of planned acts or transactions, and warn them of any unfavourable effects, if they insist with their requests.
ARTICLE 47.- RELATIONS WITH DOSSIERS
The Notary shall always make the utmost efforts and deal especially with those acts and transactions which, owing to their nature, affect the personal lives of people.
ARTICLE 48.- RIGHT TO CONFIDENTIALY AND PROFESSIONAL SECRECY
Notaries have to respect the right to confidentiality of persons. They have the right and duty of professional secrecy and confidentiality, with a view to ensuring the common good and the general interest of society.
These duties concern both Notaries and their employees and co-workers.
They extend to documents included in registers and other notarial archives as well as all the data stored by notaries and any information disclosed verbally.
Secrecy must be preserved especially in electronic documents, by using security procedures and means capable of assuring their storage and future consultation and avoiding their copying, loss, dissemination or publication.
Professional secrecy is not absolute and is subordinated to the general interest and common good, as notaries shall be required to disclose the contents of their archives in criminal proceedings or when required by law.
Notaries shall take into consideration the rights or legitimate interests, as a just cause, of parties requesting to gain access to their archives, with caution, prudence and attention, especially when the deeds or documents acknowledge or attribute rights to them. Notaries shall respect them as opportunely as possible, by delivering full or partial copies of said deeds or documents.
ARTICLE 49.- DUTY OF ABSTENTION
The exercise of the Notarial Function is compulsory for Notaries, excluding those cases when they are required to refuse their services in accordance with the provisions of the law.
In addition to the cases described, Notaries shall be required to refrain from acting when, for reasons of personal or family relations or direct or indirect economic interests, an act may lead to the attribution of rights in their favour or in favour of their families up to the 4th degree of kinship.
They should also refrain from drafting any acts contrary to the law or the accepted standards of good behaviour or good faith.
ARTICLE 50.- COMPATIBILITY
The notarial function is compatible with the activities of the Judicial Council, teaching, mediation, arbitration, consular services and any other non-contentious judicial activity that does not disregard the independence and impartiality of Notaries.
The notarial activity is incompatible with the exercise of commerce, with activities under the jurisdiction of the judicial authorities and with public functions.
ARTICLE 51.- TRANSPARENT FEES
The fees of Notaries shall be regulated by means of rates fixed by law or in lack thereof, by Chambers or Professional Associations.
Rates have to assure the impartiality and independence of the notarial service, as well as excellence in terms of quality and general accessibility to citizens.
Rates shall not allow for any reductions or discounts leading to unfair competition based merely on price, to the detriment of the quality and independence of the service.
Notarial rates have to be simple, transparent and easily accessible to the public.
Notarial invoices must clearly explain the items and services invoiced.
ARTICLE 52.- PROTECTION OF THE COMMON GOOD
The notarial service has to contribute to the common good of society, a criterion used for the interpretation of the previous articles.
TITLE V.- DISCIPLINARY SYSTEM. INFRINGEMENTS AND SANCTIONS
ARTICLE.- 53.- LEGALITY
This Code regulates and sanctions deontological infringements within the profession, without prejudice to sanctions for infringements of substantive notarial rules or rules of another nature (criminal, administrative) committed by Notaries.
The disciplinary system of Notaries shall be regulated by the principle of “nullum crimen sine lege, nulla poena sine lege”, on the basis of which no sanction shall be applied, unless the infringement is regulated by the Law.
ARTICLE 54.- PROCEDURE
The infringements of behaviours or facts set out in this Code shall be examined following the initiation of a procedure by the Chambers or Professional Associations under the hierarchical Authority of the Ministry of Justice, with which related appeals may be lodged.
Appeals against decisions taken following internal procedures may be lodged with the Courts of Justice.
The person concerned shall be heard during each phase of the procedure, in accordance with his right to a defence and on the basis of his presumed innocence.
ARTICLE 55.- SANCTION-RELATED CASES. HEARINGS
The governing body of the Chamber or Association which the Notary belongs to may either examine the disciplinary case file officially or may do so at the request of one of the parties, if the fact reported is contrary to the rules set out in this Code.
After having designated one or more Notaries in charge of fulfilling the functions of Investigator and Secretary of the case file, the investigation phase shall be opened.
At the end of this investigation phase, the investigating notary shall forward his conclusions to the Chamber that will take a decision.
It is possible to file an appeal against the decision of the Chamber with the Ministry of Justice, the decision of which shall put an end to the case. An appeal against the decision of the Ministry can only be lodged with a court.
The law shall fix the deadlines for each phase of the procedure.
ARTICLE 56.- INFRINGEMENTS
Failure to comply with the duties established by the Notarial Law, in the exercise of the notarial function is a deontological infringement sanctioned by this Code.
The following are considered deontological infringements in accordance with the rules of this Code, regardless of whether they are included or not in notarial regulations:
- Absence of the Notary when an act has to be authorised or signed.
- Altering the date or contents and truthfulness of the document.
- Authentication of documents outside the territorial competence of the Notary.
- Signature of authentic acts or notarised documents contrary to the Law, or involving the fraudulent circumvention of the law or an overt abuse of right.
- Failure of the Notary to pay any taxes due.
- Involvement in cases of incompatibility established by Law.
- Infringement of the right to confidentiality or Professional Secrecy.
- Use of funds for purposes other than those for which they were received.
- Acceptance of subornation, collaboration in illegal activities, money laundering, terrorism.
- Monetary ties with one of the parties, implying the loss of independence or impartiality.
- Failure to provide assistance or professional advice or opinions to the most vulnerable party or consumer
- Failure to explain the general clauses of a contract or the abusive nature of the clauses imposed by one of the parties.
- Failure to respect human rights or drafting of acts contrary to human dignity.
- Infringement of rules concerning the environment, urban planning, water, air, coasts, agriculture, forests or mines.
- Failure to consult in advance titles or registers and previous documents.
- Loss of independence or impartiality in the exercise of the notarial function and in the drafting or authorisation of acts.
- Failure to respect the right of the citizen to freely choose a Notary.
- Failure to forward the documents requested by the service user.
- Failure to abide by the duty of abstention in the cases established by Law.
- Failure to respect or “inveiglement of the clients” and employees of other Notaries.
- Failure to issue detailed invoices for expenses or fees.
- Billing below the rates established by Law, discounts, offering gifts or commissions.
- Absence or lack of compatibility between assets and liabilities and the balance sheet of the notarial practice and possibility to check the application of rates and the deposits and down payments made by service users.
- Infringement of the rules and instructions approved by Chambers or Associations of Notaries and/or the Ministry of Justice.
- Abandoning the notarial service without justification and without the prior authorisation of the Chamber or Association of Notaries.
- Failure to abide by the internal regulations, circular letters and rules of Chambers or Associations of Notaries, or actions contrary to the latter or their decisions, the nature of which shall depend on the rules or instructions infringed.
- Failure to pay membership fees to Chambers or Associations of Notaries and/or contributions to notarial social security institutions.
- Preventing, delaying or hindering inspections and checks of Notarial practices performed by Chambers or Associations of Notaries or inspection bodies.
- Hindrances, impediments or delays tied to disciplinary cases.
- Failure to submit acts for registration at registries, if this is compulsory by law or if the notary has undertaken to do so vis-à-vis service users.
- Actions performed outside the notarial practice in the cases forbidden by law.
- Failure to abide by the missions assigned by Chambers.
- Failure to co-operate with or help fellow colleagues in case of illness or incapacity.
- Publicity forbidden by this Code.
- Insufficient technological or human resources to assure the notarial service.
- Refusal of the function without a legally justified reason, unjustified delays or rejection of assigned missions.
- Failure to comply with the duty of continuing education of the Notary and his employees and co-workers.
- Failure to pay attention to and support candidate notaries.
- Unfair remuneration contrary to the dignity of employees and co-workers
ARTICLE 57.- CLASSIFICATION OF INFRINGEMENTS
Infringements may be modest, severe or very severe.
Modest infringements shall be sanctioned by means of reprimands or reprimands and fines.
Severe infringements shall be sanctioned by means of reprimands and fines, or reprimands, fines and temporary suspension from Service.
Very severe infringements shall be sanctioned by means of reprimands, fines and temporary suspension from Service, or expulsion from the body of notaries, in addition to a corresponding monetary sanction.
The disciplinary case shall not be incompatible with a procedure for civil or criminal liability of the Notary in Court or the compensation of the damage caused.
As far as expulsion is concerned, the decision of the higher hierarchical body of the Notariat shall be required.
ARTICLE 58.- QUALIFICATION OF SANCTIONS
Repeating reprehensible behaviour shall constitute a more severe infringement.
ARTICLE 59.- CLASSIFICATION OF SANCTIONS
The infringements under article 56 are liable to be sanctioned as follows:
1. VERY SEVERE SANCTIONS
Numbers 1 to 9 included.
2.- SEVERE SANCTIONS
Numbers 10 to 30 included.
3.- MODEST SANCTIONS
Numbers 31 to 39 included.
Infringement number 26 shall be considered either severe or modest depending on the rule infringed.
ARTICLE 60.- REGULATION OF THE SANCTION PROCEDURE
In the absence of laws, the Chambers or Associations of Notaries shall draw up regulations establishing how sanction procedures shall be carried out, determining the sum of corresponding monetary sanctions and the length of the temporary suspension from Service.
The provisions of this Code shall be applicable after its approval by Chambers or Associations.
The infringements contained in this Code require a law in order to be applied and will be included and better detailed in the latter, unless this Code is approved as a law.
Text adopted by the General Meeting of member Notariats in Lima, 8 October 2013