|
||||||||||||||
|
||||||||||||||
Copyright 2005 All Rights Reserved
[PUBLISHED IN MARCH 2005 ISSUE OF WASHINGTON LAWYER MAGAZINE]
[Vol. 19 No. 7]
Most of the nations in the world use a legal system that is based on either the civil law tradition or the common law tradition. The civil law tradition evolved from the given law of antiquity through Roman Law, the Codes of Theodosius and Justinian, the Salic Code and the Code of Napoleon. That tradition is the foundation of the legal systems of continental Europe, francophone Africa, South America and Middle Eastern countries that were under French dominion such as Egypt, Lebanon and Syria, While the legal systems of China and Japan did not evolve from the same given law as did the civil law, they developed legal systems that are functionally similar to the civil law tradition. In the civil law tradition, all law flows from a coherent set of legal principles contained in a written code provided or enacted by the sovereign. The civil law tradition has been described as "anything that is not permitted is prohibited".
While scholars have found traces of the common law tradition in ancient Roman law, the common law tradition essentially derives from the merging of the Saxon and Norman legal systems after William I conquered England in 1066. The common law tradition is the foundation of the legal systems of Great Britain (except Scotland), the United States (except Louisiana and Puerto Rico), Canada, Australia, Cyprus, India, Pakistan and Anglophone Africa. In the common law tradition, law is developed through the decisions of judges made in resolving actual cases. The common law tradition has been described as "anything that is not prohibited is permitted."
At the beginning of the 21st century, the each legal tradition is increasingly adopting essential features of the other legal system. The law of the common law systems is becoming more statutory. The law of the civil law systems is being made increasingly in judicial decisions and interpretations of civil code provisions. The civil law notary is but another feature of the civil law tradition that is receiving increasingly serious consideration in common law jurisdictions.
A notary in civil law systems –"notario" in Spanish speaking countries, "notaire" in French speaking countries, "symvoulographos" in Greece– performs a very different function than does a notary public in the United States. The civil law notary is an attorney who has undergone special training and performs the following three basic functions: (1) drafts legal documents such as wills, contracts, deeds, (2) authenticates legal instruments and (3) serves as a public repository of legal instruments. By contrast, a notary public in the U.S. need not be an attorney. The functions of a U.S. notary public are basically to administer oaths, take sworn statements and to verify the identity of a person who executes a legal document.
The roots of the civil law notary fade back to ancient Rome. Called "tabelliones", certain individuals drafted and maintained legal documents particularly wills. Tabelliones were literate and learned persons but not necessarily lawyers. The tabellio was rediscovered in medieval times as the notarial function developed as a consequence of increasingly complex commercial activity.
The International Union of the Latin Notariat (referred to as UINL) defines a civil law notary as a "a legal professional specifically designated to attest the acts and contracts that persons celebrate or perform, to draft the documents which formalize the latter, and to give legal advice to those who require the services of his office."
Because the civil notary is an attorney, he or she can render legal services in connection with any transaction for which the civil notary is performing a notarial function. However, unlike the common law system in the U.S., the civil law notary is expressly authorized by law to represent the transaction rather than a particular party to the transaction. However, the civil law notary is prohibited from acting as both notary and advocate for a party to the transaction. If the civil law notary drafts the relevant legal document, he or she must make sure that the legal instrument accurately represents the intent of the parties, that the parties understand the legal nature and effect of the instrument and that the legal instrument complies with applicable law. In complex transactions, the parties may each be represented by an attorney and the attorneys work with the civil law notary to draft the legal instrument.
After the civil law notary is satisfied that the legal instrument is properly drafted and understood by the parties, he or she authenticates the legal instrument. An authenticated legal instrument is conclusively deemed genuine, legally binding and a true and accurate recital of the agreement of the parties. The civil law notary provides a written statement that set forth the transactional facts from which the legal instrument derives and an opinion that the legal instrument satisfies applicable legal requirements and is legally binding. The authentication of the civil law notary is presumed to be correct and is accorded the effectiveness and validity of an administrative or court order. A legal instrument need not be authenticated to be legally enforceable. However, any legal instrument that transfers of title to real property must be authenticated by a civil law notary.
If a party seeks to challenge an authenticated legal instrument on the grounds of mistake, fraud, lack of consideration, lack of meeting of the minds, that party must bring a special proceeding. Such proceedings are very rare and, if asserted, must allege that the civil law notary abused his or her office in authenticating the legal instrument. If an authenticated legal instrument is ultimately found not to represent the intent of the parties or that it fails to comply with applicable law, the civil law notary is liable for the full value of transaction set forth in the legal instrument.
The civil law notary is required to maintain the original of any document that he or she authenticates. That original document is conclusive written evidence of the contents of any such document. The civil law notary must maintain each such document in a secure and accessible environment.
The office of a civil law notary is a public office so that the civil law notary is considered an appointed public official and subject to ethical standards as well as special civil and criminal liability for abuse or misuse of the office. The civil law notary must be an attorney and must take a course of special law studies as well as a special notarial examination. The number of notaries is limited. In some countries, the office is still hereditary under certain circumstances. A civil law notary can practice only within a designated geographical area.
Because of the conceptual and substantive differences between the U.S. legal system and the civil law systems and the manner in which attorneys practice in the U.S., enabling civil law notaries raises fundamental ethical and practical questions. The National Association of Civil Law Notaries (referred to as NACLN; see www.nacln.org) has recommended a Model Act to the states to enable civil law notaries. Alabama and Florida are the only U.S. jurisdictions that have enacted statutes that enable civil law notaries. Adopted in 1999 and amended in 2001, the Alabama statute is based on the Model Act. The Florida statute was enacted in 1997 primarily to enable legal documents authenticated by a civil law notary in Florida to have legal effect in civil law countries particularly in Central and South America.
The Model Act essentially incorporates the concepts of the civil law notary as the office exists in civil law countries.
The Model Act recommends that a civil law notary be an attorney admitted to practice law in the jurisdiction and practiced for at least 5 years. The attorney must successfully pass a civil law notary examination. The Florida regulations prescribe a particular course of study and examination for a civil law notary.
The functions and powers of the civil law notary are enumerated in the Model Act and embody the traditional functions and powers of the civil law notary.
As does any legal innovation, the civil law notary raises many issues of implementation especially since the concept bridges different legal traditions. The primary issues are ethical, extent of professional liability and the evidentiary effect of an authenticated notarial act. Neither Alabama or Florida has amended its Rules of Professional Conduct to account for the office of civil law notary. In the District of Columbia, civil law notaries would presumably conduct their functions consistent with Rule 2.2 of the D.C. Rules of Professional Conduct which allows an attorney to act as an intermediary subject to certain conditions. For clarity, the Rules may have to be amended to specifically address the ethical considerations of an attorney who acts as a civil law notary.
In civil law countries, if the civil law notary authenticates a legal instrument in a commercial transaction in error or wrongfully, the civil law notary is liable for the full value of the transaction. None of the Model Act, the Alabama statute or the Florida statute contains any such provision. It is unclear whether civil law notaries incur any special professional liability as a result of the functions they perform. It remains to be seen how malpractice carriers will view attorneys who act as civil law notaries.
In civil law countries, a notarial act including the statement of transactional facts has the effect of court order and is presumed correct. The rules of evidence and civil procedure should be amended to specifically set forth the evidentiary effect of a notarial act and how the notarial act is admitted in a legal proceeding.
There are benefits that can accrue to U.S. legal systems from the civil law notary. Civil law notaries will become a class of attorneys who are expert in drafting legal instruments and would establish uniform and predictable standards for drafting legal instruments. Much of the litigation that stems from poorly drafted legal instruments could be eliminated. Another benefit is that personal and commercial transactions which involve legal instruments that must be produced or have legal effect in civil law countries will be more simple and efficient. It would eliminate the cumbersome and time-consuming Hague Convention and apostille systems. The 70 member countries of the UINL already recognize the notarial acts of civil law notaries in Alabama and Florida. As long as the civil law notary can be adapted to the U.S. legal system and the legal traditions of the states, the civil law notary may be an old idea whose time as come.
Civil Law Notary