NOTARIES’ CODE OF ETHICS REGULATIONS

NOTARIES’ CODE OF ETHICS

SUBSIDIARY LEGISLATION 55.09

NOTARIES’ CODE OF ETHICS REGULATIONS

18th May, 2018

LEGAL NOTICE 155 of 2018.

(1)

The title of these regulations is the Notaries’

Code of Ethics Regulations.

(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.

NOTARIES’ CODE OF ETHICS

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.

NOTARIES’ CODE OF ETHICS

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

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.

NOTARIES’ CODE OF ETHICS

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

NOTARIES’ CODE OF ETHICS

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.

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

NOTARIES’ CODE OF ETHICS

not Council members, may contribute to the development and

improvement of the notarial profession in general.

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

NOTARIES’ CODE OF ETHICS

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.

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.

NOTARIES’ CODE OF ETHICS

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.

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.

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.

NOTARIES’ CODE OF ETHICS

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.