WHY SOLICITORS ARE BEST EQUIPPED TO BE NOTARIES

Having qualified as a solicitor at Allen & Overy, my experience has always been in the commercial world. I then spent eight years in private practice with commercial firms in Hong Kong. While I was in Hong Kong, I became a notary. On returning to the UK, I qualified as a notary here as well.

For the last six years, I have practised as a notary public, to the exclusion of any other legal field, as it is my experience that notary work has now become a specialist area of law where expertise is needed.

To substantiate this point, a notary could be negligent if he did not advise the client on whether or not the document also needed to be legalised, either by an apostille being attached by the Foreign & Commonwealth Office to the document and/or a certificate being attached by the particular country’s consulate. For example, US states generally do not require legalising but four major US states do unless it has been waived. The document could be sent back by the receiving party abroad if it needed to be legalised, which is just what the client does not want.

The mandatory consulate requirements for legalising are arcane. China will accept payment by a solicitor’s cheque, while Brazil formerly required payment by giro slip, but now requires payment by postal order. The United Arab Emirates requires payment by bankers’ draft, while Chile requires payment direct into its bank account at HSBC. And so on, with the requirements regularly changing.

Furthermore, I do not see how anyone, other than an experienced solicitor, can become a notary. However, non-solicitors at the moment can practise as notaries.

A notary usually obtains instructions over the telephone. He has to be able to identify a vast array of documents from what his caller tells him. This is usually at short notice as the witnessing of documents or obtaining of certified copies is often left to the last minute.

The lay client often only has the haziest idea of the nature of the document, but naturally wants you to quote a competitive price before he comes to see you. To carry out this work, a notary needs the familiarity of handling a wide variety of legal documents, which only comes from years of experience as a solicitor.

The role of the notary has not changed since Roman times. It is to ensure that the client either knows what he is signing, or to check that there is no fraud when witnessing a signing or certifying copies of original documents or translations. When a notary witnesses the signing of a document, it is incumbent on him to ensure the document is validly executed, as the notary’s seal and signature may be a representation to the whole world that this is so. English law, as the locus regit actum, applies to the execution of the document. This particularly applies to powers of attorney entered into by English companies.

If there are two areas where it is crucial for the notary to know the law, in my view, it is in relation to powers of attorney and bills of lading.

Powers of attorney have a far greater importance in civil law countries than they do in England. Thus, it is vital for the notary to check that the person signing a corporate power of attorney has authority to do so, that the company is a going concern (if relevant) and that the document is validly executed.

Bills of lading come in three sets of originals, so the opportunities for fraud have always been great. To comply with money laundering legislation, some banks require original and copy bills of lading to be notarised as a condition for opening the letter of credit. The unwitting notary who notarises these bills of lading without doing thorough checks, for a few pounds, can literally find himself in prison on a money laundering conviction.