Notaries’ Code of Ethics Regulations, 2018

L.N. 155 of 2018

NOTARIAL PROFESSION AND NOTARIAL

ARCHIVES ACT

(CAP. 55)

Notaries’ Code of Ethics Regulations, 2018

IN exercise of the powers conferred by article 92(2) of the

Notarial Profession and Notarial Archives Act, the Notarial Council,

with the approval of the Notarial College has made the following

regulations:-

(1) The title of these regulations is the Notaries’ Code

of Ethics Regulations, 2018.

(2) The Code of Ethics applicable to Notaries for the purposes

of the Notarial Profession and Notarial Archives Act shall be that set

out in the Schedule.

Code of Ethics for the Notarial Profession

Arrangement of the Code

Title 1

Of Conduct and Diligence

Title 2

Of Independence and Impartiality

Title 3

Of Professional Relationships

Title 4

Of Unlawful Competition

Title 5

Of Professional Secrecy and Confidentiality

Title 1: Of Conduct and Diligence

Every notary shall act with dignity and must observe such

fundamental values of truth, honesty, equity, integrity,

independence, impartiality and freedom.

Every notary shall refrain from using methods or adopting

attitudes that are likely to reduce his or her good reputation

and/or that of his or her profession.

Every notary shall make every effort to keep himself or

herself informed and knowledgeable in the area of his or her

profession, while at the same time and as far as he or she is

able, contributes to the development of his or her profession

by exchanging his or her knowledge and experience with his

or her colleagues or students. Any specialization in a

particular field should not be detrimental to his or her

professional competence in general.

Every notary has the right and duty to perform his or her

functions in accordance with the law and he or she shall not

influence the parties’ free will and act in accordance to such

will.

Every notary shall strive at achieving harmonisation and

bringing the parties in agreement when in dispute, while at the

same time observing the principle of equity during his or her

entire activity. Respect for the primacy of truth must be the

sacred duty of every notary.

Every notary shall strive for the correction of errors,

inaccuracies or any omissions in his or her work.

No notary shall use for his or her own personal benefit any

monies, securities or any other property entrusted to him or

her in the practice of his or her profession. Such monies,

securities or any other property shall not be used by said

notary as a personal loan or an investment to his or her own

advantage whether in his or her own name or through an

intermediary. He or she shall take reasonable care of the

corporeal property entrusted to his or her care.

If a notary participates in matters which are not related to the

exercise of his or her profession, he or she shall act with due

care in order to protect his or her professional independence

and obligations.

1.9 Every notary is obliged to have an insurance policy according

to law and to provide the Notarial Council with a copy of any

report or relative documentation regarding his insurance

policy if required to do so by the Notarial Council without

delay.

1.9.1 The Notary is obliged to keep his office in an adequate and

sustainable manner and that it can continue to provide an

uninterrupted service to the public without prejudice to

Article 11(b) Notarial Profession and Notarial Archives Act.

1.9.2 Reviewing of acts shall be done in an adequate manner by the

revising officer and every notary is bound to help the revising

officer in a manner that does not encumber or hinder the

revising officer’s work.

Title 2: Of Independence and Impartiality

1 In the performance of his or her functions, the notary shall act

impartially and shall remain in a position of equidistance

between all parties making use of the notary’s services, regard

however being had to the varying degrees of expertise,

experience and knowledge of the parties. Such functions must

be carried out unequivocally, in accordance with the common

interest and wishes of all the parties concerned.

The notary shall ignore any intervention by a third party that

might influence in any manner the performance of his or her

professional duties to the detriment of the parties making use

of the notary’s services.

The Notary shall not

(a)

Employ agents to promote or tout his office and

services;

(b)

Promote his or her office and services with specialised

agencies and authorities such as financial institutions,

estate agents and the like;

(c)

Consent that his or her profession, office and services be

advertised;

(d)

Collaborate with other entities whatsoever, in such a

manner as to reduce the notary’s impartiality or

independence;

(e)

Carry out his services in the offices of third parties in

such a manner as to reduce the notary’s impartiality or

independence;

(f)

Authorise, instruct, or allow third parties to put pressure

on other persons to use his or her services. Furthermore,

the notary shall be obliged to immediately ask such third

parties to desist from such actions, should the notary

find out that third parties have done so even without the

notary’s acquiescence. In any case, the notary shall be

obliged to immediately inform the Notarial Council and,

if applicable, the third parties’ representative body/

bodies, of such actions.

Title 3

Of Professional Relationships

Relationship with colleagues

In his relationship with other notaries, a notary is bound to act

according to the principles of loyalty, respect, fairness,

generosity, solidarity and co-operation, and with the intent of

raising the prestige and the public significance of the

profession. Any manifestation of vanity and disloyal

competitiveness should be avoided.

The following are rules that shall govern the relationship

between notaries

(a)

A notary shall inform his colleague, in a professional

and respectful manner, of any possible errors or

omissions which he believes his colleague has

committed.

(b)

A notary shall strive for the correction of errors,

inaccuracies or any other omissions in his or her work

within a reasonable time whenever he is requested to do

so by a colleague. This shall also apply in cases where it

is legally possible for such corrections to be carried out

by another notary, but where it would be easier for such

corrections to me made by the notary who has made

such omissions in view of the fact that such notary

already has a professional relationship with the parties

whose signature is required.

(c)

Any dispute or difference of opinion which arises

between notaries shall be settled with the assistance of

the Notarial Council.

(d)

A notary shall provide copies of notarial deeds and

documents to his colleagues whenever requested within

a reasonable time-frame, ideally within a period of ten

(10) working days from the day of the request. This time

limit applies most specifically to notarial deeds which

have not been deposited by the notary at the Notarial

Archives.

(e)

A notary is bound to exchange his systematic views and

information with colleagues. If consulted by a colleague,

a notary must give his opinion and recommendations

within a reasonable time, depending on the urgency of

the situation.

(f)

A notary is bound to replace his colleague, who due to

any serious impediment or illness, cannot receive certain

acts. In this eventuality, the notary shall be entitled to

verify and ascertain for himself the will of the parties

and other matters as he deems fit.

(g)

A notary shall not betray the good faith or breach the

trust of a colleague, or manifest in any manner disloyal

practices towards a colleague.

(h)

A notary shall refrain from expressing critical opinions

in relation to his colleagues in the presence of third

parties, including other colleagues, clients, state

authorities and institutions, as this may compromise the

good reputation of the profession in general or of a

particular colleague by discrediting the competence,

knowledge and service of another notary. A notary may

however give objective technical advice on the work of a

colleague if the particular method or procedure

employed or adopted by such other notary is not legally

correct. In doing so the notary must be objective and

professional and must refrain from passing criticism of a

personal nature directed at his colleague.

(i)

In cases of collaboration with another notary or with

another professional, a notary must maintain his

professional independence and shall not perform any

task that goes contrary to what is professionally ethical.

(j)

When a notary is requested by a client to render services

which have already been requested from and

commenced by another notary, he shall, before accepting

to render any services, inform the client to settle any

dues with his colleague. The notary shall also personally

inform his colleague and shall collect any fees and

expenses due to him.

(k)

A notary may not collaborate with another notary, whose

warrant has been rescinded or temporarily suspended, by

signing any notarial deeds or any other documents

drawn up by that notary, or by rendering any services

whatsoever in collaboration with such notary.

(l)

A notary shall refrain from trying to employ any

employees who are already employed by a colleague.

Moreover, a notary shall inform his colleague of his

intention to employ an employee who was previously

employed by another notary.

Relationship with the Notarial Council

2.1 The notary shall cooperate with the Notarial Council in the

most ample manner and shall provide the Notarial Council

with any information requested by it in the performance of its

duties, within the time stipulated by the Notarial Council, and

the notary shall provide timely assistance as requested during

any inquiry into the notary’s conduct.

3.2.2 The notary is expected to attend the Annual General Meeting

of the Notarial College and to attend seminars organised by

the Notarial Council.

3.2.3 Members of the Notarial Council shall

(a)

perform their

functions

with

dedication

and

commitment;

(b)

perform their functions with impartiality and strict

confidentiality;

(c)

where a conflict of interest arises, raise such issue before

the other members of the Notarial Council, and refrain

from getting involved in that particular matter;

(d)

attend Notarial Council meetings;

(e)

promote and encourage collegiality between notaries;

(f)

assign specific tasks to other notaries who are not

members of the Notarial Council if they are of the

opinion that such notaries, although not Council

members, may contribute to the development and

improvement of the notarial profession in general.

3.3 Relationship with Public Authorities

3.3.1 In his relationship with public authorities and institutions, the

notary must perform his duties in a professional manner in a

way which attracts a high regard to the notarial profession.

3.3.2 A notary shall not seek, in any manner, the employment or

collaboration of civil servants against payment or

compensation of any kind.

3.3.3 In case of dispute, a notary shall not take individual action

against public authorities and institutions without primarily

consulting with the Notarial Council.

Relationship with clients

3.4.1 In the performance of his duties towards his clients, the notary

shall act diligently and professionally. He shall display

reasonable availability towards his clients and maintain

efficiency throughout the whole notary-client relationship, in

particular keeping the clients informed and updated

throughout the whole notary-client relationship.

3.4.2 The advice a notary should give to his client must be

disinterested, frank and honest. A notary must inform and

make all parties acquainted with the applicable legal

provisions and while ascertaining that the will of the parties is

reflected in the notarial deed, he must ensure the legitimacy of

the notarial deed, and must provide the parties with impartial

and correct legal advice to assist them in taking the right

decisions.

3.4.3 A notary should give all the necessary information required

by the client and assist the client in taking a fully informed

decision.

3.4.4 A notary should render account to his client whenever it is so

requested.

3.4.5 A notary shall always act impartially and shall perform his

functions in the common interest of all parties concerned. He

shall refrain from offering his services, especially in instances

where his impartiality is imperative, in cases where a conflict

of interest exists or could arise. There shall be deemed to be a

conflict of interest in all situations where a notary is inclined

to favour some of the parties to the detriment of the other

parties and his fidelity to both parties may be seriously

affected.

3.4.6 A notary shall not pay or receive any benefit from either of

the parties or from any third parties (such as estate agents and

architects), in connection with the practise of his professional

duties. Such payments give rise to a conflict of interest and

renders the notary unimpartial in the performance of his

duties.

3.4.7 Being a public officer and not merely an independent

professional, a notary may not cease to act on behalf of a

client except in cases where he has a valid cause, such as loss

of confidence between the notary and the client, conflict of

interest or a situation which renders his professional

independence questionable, inducement by a client to perform

illegal, unfair or fraudulent acts and clients who refuse to pay

the notary whenever he renders a service.

3.4.8 In cases where a notary assumes particular duties which go

beyond the normal practice, the notary has a duty to inform

the client regarding the scope of the responsibility which he is

assuming.

3.5 Relationship with trainee notaries and with employees

3.5.1 A notary is bound to provide trainee notaries with legal

training and to ensure that they receive adequate notarial

practice according to law. In so doing, a notary is bound to

acquaint trainee notaries with the fundamental principles of

the profession and with the principles of professional ethics.

3.5.2 A notary must involve trainee notaries in every aspect of the

notarial profession in such a way as to equip such trainee

notaries with the abilities required to perform the duties and

functions of the notarial profession.

3.5.3 The notary must inform the trainee notaries that they are also

bound by the rules and principles of this Code of Ethics.

3.5.4 A notary is also bound to ensure that his employees are

adequately trained and equipped to perform their duties in a

professional manner. Moreover, a notary must as a general

rule refrain from having his trainee notaries and employees

act as mandatories in notarial deeds received by him to

safeguard the fundamental principle of impartiality.

Title 4: Of Unlawful Competition

Notaries are obliged to restrain from unfair competition,

which includes without limitation

A notary’s co-operation and over association with certain

individuals who pressure clients to choose that particular

notary in order to receive some sort of financial aid

Gaining clients by reducing the notarial tariff fixed by law

irrespective of the service rendered.

Gaining clients by concluding transactions which are

motivated by a consideration (causa) which is immoral, illegal

or goes against public policy.

Any form of persuasive practises used by a notary in order to

attract a person to use his or her services in the future,

including any request or suggestion to a person that any

notarial acts required by him in the future should be made

only at his or her notarial office.

Concealment of any documents which should be made known

to his or her colleagues in order to facilitate or improve their

work.

A notary omits certain behaviours which are part of his or her

fundamental duties and as a result produces hasty work to the

detriment of both his or her clients and his or her colleagues.

A notary is prohibited to advertise his or her professional

services individually or engage in or allow advertising that

may be false, deceitful or likely to be misleading.

9 The Notarial Council is permitted to advertise collectively

information relating to the notarial profession as a whole for

the purpose of providing easier access of information to the

general public.

4.9.1 It shall be lawful for a notary to put up an electronic website

whereby he gives general information about his or her office

hours and the location of his or her office. However, the

inclusion of information particularly relating to one’s level of

competence, efficacy of his or her services or claiming that he

or she is in possession of specific qualities or skills is strictly

prohibited.

4.9.2 Participation or cooperation in broadcast television

programmes, radio programmes or writing articles in

newspaper columns, concerning both his or her profession

and any other event open to the public (even if it contributes

to his fame via the means of mass communication), shall not

be treated primarily as tools for advertising his or her

capabilities as a notary or any other specialisation relating to

his or her notarial profession. When participating in such

events as above referred to, the notary shall strive to uphold

the prestige and dignity of the notarial profession.

Title 5: Of Professional Secrecy and Confidentiality

Even though a Notary is a Public Official and gives Public

faith to acts inter vivos and once these acts are published he or

she is duty bound to give copies of these acts when requested

or obliged by the act itself, any other act causa mortis (not

being a declaration causa mortis) and any other private

writings (including preliminary agreements), advice

(including title reports) and conversations shall be subject to

strict observance of professional secrecy as defined by the

Professional Secrecy Act and as defined by other legislation

including the Data Protection Act and notarial practice.

This obligation shall bind the Notary during and after the

completion of is work, except giving copies as stated in five

point one (5.1) above, and in the other matters mentioned in

five point one (5.1) above, even after the death of the persons

performing said act.

No Notary shall disclose that a person has retained his or her

services (unless this results from the published deed), unless

he or she is required to do so by the nature of the case or by

Law. All notaries shall avoid indiscreet conversation

concerning a client and the services rendered to him and this

both with another Notary or third parties.

The receipt of an act does not in any manner authorise a

Notary to disclose to third parties the existence of such act,

except where a copy of such act (being an inter vivos act) is

expressly requested or this results from the obligations

emanating from the same deed. A Notary should especially be

careful when issuing copies of a will and to do this only in

terms of the Notarial Profession and Notarial Archives Act.

No confidential information can be used by a Notary with a

view of obtaining a direct or indirect benefit for himself or

herself or for another person even if this does not result in

direct prejudice to the interests of his or her client.

Any person employed by a Notary or subcontracted by a

Notary or a student doing Notarial practice, who becomes

aware of any confidential information in accordance with

article 7(1) of the Professional Secrecy Act and

Data

Protection Act, is also bound by the duty of professional

secrecy and confidentiality as herein defined and the Notary

has to see that all his employees/subcontractors/students are

aware of this.

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