©1996 by University of California, Hastings College of the Law.
Hastings International and Comparative Law Review, Volume 19,
Number 3, Spring 1996, 389-488 by permission.
Hastings International and Comparative Law Review
*389 COUNSEL FOR THE SITUATION: THE LATIN NOTARY, A HISTORICAL
Pedro A. Malavet [FNa]
Copyright © 1996 Hastings College of the Law; Pedro A.
Table of Contents
I. Introduction 390
A. In General 392
B. Relevance of this Comparative Study 392
1. Introduction 392
2. Understanding a Foreign Legal Model 393
3. A Comparative Model for Contemporary Law Practice: Is the Latin
Notary Brandeis’ ‘Counsel for the Situation’? 398
C. Conclusion 402
II. Historical Development of the Profession 403
A. Introduction 403
B. Pre_Roman Civilizations 405
C. Rome 408
D. Europe During and After the Middle Ages 411
E. England and the Americas 425
F. Conclusion 428
III. The Contemporary Latin Notary 430
A. Relevant Comparison 430
B. The Nature of the Latin Notary Profession and its Function Today
1. The General Concept 433
2. A Liberal Profession Performing a Public Function 434
a. The Publica Fides 440
b. The Protocol, the Collection of Public Documents Subscribed
Before a Notary 445
3. Legal Specialization 449
4. Unified Code_Based Legal System 455
C. Education, Admission and Territoriality 464
D. Professional Liability 475
1. Introduction 475
2. Disciplinary Authorities 476
3. Civil 479
4. Criminal 481
E. Conclusion 482
1. The Status of the Profession 482
2. The Latin Notary, Counsel for the Transaction 485
In the United States we have one kind of lawyer, and he is
generally expected to be an advocate. Under our adversarial system, lawyers on
each side of a dispute litigate a matter on behalf of their clients. Ethical
rules rigidly enforce this system, although multiple client representation is
allowed in certain narrow situations. [FN1] Additionally, legal specialization
is a matter of custom and practice. There is *391 nothing governmental
about it. [FN2] The legal professional providing specialized services will
always be a lawyer. [FN3]
The Europeans also believe in the adversary system of
litigation and law practice. [FN4] However, they have recognized that such a
system does not fit every situation, and have created different specialized
legal professions to provide particular services. Each profession has its own
educational and admission requirements, as well as particular duties within the
legal system. A familiar analogy in the common_law world is provided by the
British solicitor and barrister. But in addition to the advocacy professionals,
even in those countries that have consolidated advocacy functions in a single
profession, a particular legal specialist, generally located at the top of the
legal hierarchy, acts as a nonadvocate ( i.e., impartial counsel who advises all
parties to a transaction). [FN5] In Latin countries, this position is occupied
by the legal professional referred to as the Latin notary; she receives from the
State the exclusive authority to perform certain legal functions and to impart
the required formality to specified legal transactions. The practitioner of the
Latin notariat may be identified by the essential elements of this career. The
typical Latin notary is: (1) a private legal professional performing a
nonadvocacy counseling function; (2) to whom the state entrusts the exclusive
power to take a private transaction and give it proper legal form and to
authenticate it in a public act, by memorializing it in a public document that
is publicly enforceable; (3) who must maintain a permanent record of these
transactions and issue certified copies of the public documents he prepares to
interested parties, upon request; and (4) who is subject to professional, civil,
and criminal liability for miscarriage of his office.
A. In General
In his profession, the Latin notary combines the competence
traditionally associated with a public official and the discretion and
responsibility of a private legal professional. For this reason, the Latin
notary is quite different from notaries public in the United States. The Latin
notary owes a duty to the transaction, rather than to a party; he provides a
service to “interested parties,” not to “clients.” Because of the nature of this
legal specialization, the Latin notariat has long been used as a comparative
model of impartial, multiple_party counseling. Despite its importance and
relevance, this profession has never been thoroughly studied in our legal
scholarship. This Article attempts to remedy that oversight.
B. Relevance of this Comparative Study
Comparative law is not a body of rules and principles.
Primarily, it is a method, a way of looking at legal problems, legal
institutions, and entire legal systems. By the use of that method it becomes
possible to make observations, and to gain insights, which would be denied to
one who limits his study to the law of a single country.
Neither the comparative method, nor the insights gained through
its use, can be said to constitute a body of binding norms ( i.e., of “law” in
the sense in which we speak of “the law” of torts or “the law” of decedents’
estates). Strictly speaking, therefore, the term Comparative Law is a misnomer.
It would be more appropriate to speak of Comparison of Laws and Legal Systems.
To the French, for example, comparative law ( droit compare)
“is not a branch of the law, but very specifically a part of the science of law
( science du droit).” [FN7] The distinction between comparative methodology and
comparative legal science depends on the intended use of the comparative study.
The practitioner of comparative legal science helps persons in other fields of
the law to adopt the comparative method. The comparative method gives a national
scholar “a better understanding of his own law, assists in its improvement, and
. . . *393 opens the door to working with those in other countries in
establishing uniform conflict or substantive rules or at least their
Comparative legal analysis, at least initially, provides
knowledge that can be useful on a purely informational level. Such a study
should provide proper understanding of a foreign law model in ways that are
relevant to local legal practice. On a more theoretical level, it can also be
the starting point from which legal scholarship can proceed and contribute to
domestic legal thought and development. I will look at each one of these
categories in turn.
2. Understanding a Foreign Legal Model
On a fundamental level, comparative study prevents, or helps us
solve, problems created by the misunderstanding of different legal cultures. It
is, in a way, a sophisticated system of legal translation and education. In the
following paragraphs, for example, I discuss how immigrants to the United States
have been victimized by unscrupulous notaries who take advantage of the
newcomers’ assumption that the American notary public is the same legal
professional that they knew in their home country. This in turn has prompted
legislatures to adopt specific corrective legislation.
A comparative study is also relevant to foreign legal practice
and international transactions, a market that accounts for more than one and
one_ half billion dollars in spending by American businesses and individuals.
While American lawyers can and often do hire foreign legal professionals, a
proper understanding of the Latin notary would help the American lawyer to pick
the right professional. The lawyer would also be in a better position to advise
her domestic clients about the work being performed on their behalf in a foreign
Comparative legal analysis is essential in today’s growing
international market, [FN9] particularly when we consider the globalization of
law practice. Many U.S. law firms have offices abroad. [FN10] The value of
*394 international legal services performed by U.S. law firms has grown
dramatically in recent years, as has the cost to U.S. businesses of purchasing
legal services abroad. [FN11] A lawyer in international or transnational
practice should provide her client with a full understanding of the law in its
proper context. [FN12] “Law, taken alone and considered only in its strict
theory, would give a false view of the way in which social relations, and the
place therein of law, really operate.” [FN13] The “cultural, social, political
and economic systems” in which the law must be applied are an essential element
to the full instruction of a client on the “relevant considerations” of
international legal transactions. [FN14] Failure to take these factors into
account can have disastrous effects. [FN15]
In this context, a proper understanding of the Latin
notary is not a simple intellectual exercise. International legal transactions,
particularly those involving real property and other capital investments, will
often require the participation of a notary. [FN16] The importance of notarial
work in international law practice should not be underestimated. [FN17]
International trade in goods, services, and capital is increasingly important to
our national economy, [FN18] as are the legal services associated with it.
[FN19] An American practitioner should be aware that her counterpart in a
foreign jurisdiction may be a notary, and more importantly, that the services of
a notary may be essential or very useful for the completion of a particular
legal transaction. [FN20] She should also be able to explain to her client what
services the notary will provide.
Additionally, misconceptions about notaries and their functions
here in the United States have allowed unscrupulous persons to take advantage of
U.S. citizens of foreign origin and aliens seeking entry to or living in the
United States. [FN21] A simple search of news reports discloses *396 many
instances of fraud perpetrated by notaries who have taken advantage of foreign
immigrants or would_be immigrants by misleading them into believing that they
could provide legal ser_ vices, or that their services had the same legal effect
in the United States as in the home countries of the immigrants. [FN22]
Successful prose_ cutions for illegal practice of law have also been instituted
against persons who have used the title ” Notario P<acut_u>blico” [FN23]
to mislead clients*397 into believing they could deliver legal services.
[FN24] State laws generally prohibit misleading advertising [FN25] and the
practice of law by notaries. [FN26] However, this problem has become signifi_
cant enough to lead several states to enact laws that specifically require
notaries to indicate that they are not lawyers when adver_ tising in a language
other than English [FN27] and prohibit the literal*398 translation of the
title “Notary Public” to the Spanish ” Notario P<acut_u>blico.” [FN28]
3. A Comparative Model for Contemporary Law Practice: Is the
Brandeis’ “Counsel for the Situation”?
I believe that this Article could provide the starting point
for several studies concerning the practice of law. Notarial work reflects a
different approach to particular problems in many legal areas including
evidence, real property, inheritance, and contract law. Whether or not these
approaches are better than those followed in the U.S. legal system is a subject
open for debate could easily be the topic of several articles. The results of
this research will ultimately depend on the relative economic efficiency of
particular procedures. [FN29]
The reader will note that notarial transactions can fit into
categories with which we are abundantly familiar. For example, the evidentiary
treatment of documents under seal might be studied in order to determine if it
lowers litigation costs without defeating the requirements of evidentiary
reliability. The property registration system discussed below could be compared,
in terms of costs and efficiencies, to property registries in the United States
and the system of title insurance. *399 The role of the notary in the
prevention of disputes or as a model for alternative dispute resolution could
also be considered. Other examples will probably become obvious to readers more
knowledgeable than this author. The sheer number of possible avenues of
exploration makes it impractical to pursue them in the context of this Article.
In that sense, this piece is really only an exploratory or foundational essay
which will hopefully lead to further study.
As an overview of the notariat and of notarial law generally,
this Article, however, could provide an alternative, albeit complementary model
for contemporary law practice. While it is an alternative to the adversarial
ethic, it is complementary to law practice generally because it does not
advocate that the United States abandon the adversary ethic altogether. The
notariat is a nonlitigation, nonadvocacy model of legal counseling within an
established system of legal specialization. Advocacy is still left to the great
majority of legal professionals. [FN30] But, in particular transactions, the
Latin notary intervenes as an impartial advisor to the parties. Ideally, he is,
in the celebrated words of Justice Louis D. Brandeis, a “counsel for the
On a number of occasions Brandeis suggested to his clients that
he might be of greater value as “counsel for the situation” rather than as an
attorney for one faction or another. In such a role he attempted to strike a
balance between the obligations of each party and work out a solution equitable
to all. This judicial posture accurately reflected his efforts to create a new
type of lawyer who could rise above partisan advocacy. [FN32]*400
In his book on legal ethics, Professor Hazard utilizes the
Brandeis idea as an example of the lawyer as intermediary. [FN33] Rule 2.2 of
the Model Rules of Professional Conduct specifically refers to the role of a
lawyer as an intermediary. [FN34] But some commentators argue that the lawyer
should act within client_based ethical constraints ( i.e., not be a “counsel for
the situation”), and act as a general representative of the collective interests
of several clients. [FN35]
The beginning of the modern American debate over the adversary
ethic can probably be traced back to Dean Roscoe Pound’s 1906 speech to the
American Bar Association decrying the “sporting theory of justice,” [FN36] which
has been described “as elevating the competitiveness of the adjudication system
to the detriment of its value to society.” [FN37] This subject has recently
taken up a lot of ink in law reviews. [FN38] I would not suggest that we
disregard adversarial advocacy as an ethical *401 model; that result
strikes me as absurd. [FN39] But study of the Latin notary, as a specialized
professional in a system that allocates legal responsibilities among separate
advocacy and counseling professions, would appear to be relevant to the American
search for alternative dispute_resolution methods. More generally, the notary
model would be relevant to a reexamination and redefinition of the role of
lawyers in our society, particularly in the area of multiple_client
I must emphasize, however, that the notariat is one part of a
professional structure that includes governmentally_defined specialties. In the
typical European system, we find general legal counselors, litigators, and
notaries. The legal counselors, for example the Spanish abogado or French
avocat, owe a duty exclusively to their clients and are responsible for
promoting their legal matters. The litigators, like the Spanish procuradores,
are responsible for in_court advocacy. Both the counselors and litigators are
governed by an adversary client ethic. [FN40] But there are times when advocacy
is not what the parties need, when counseling is more appropriate. The
legislators in the civil_law world have established that some legal transactions
can be *402 completed without following an adversarial approach to law.
[FN41] The Latin notary is thus exclusively empowered to complete certain legal
transactions, and in this context is allowed to be the parties’ only legal
advisor. The notary is the judge of the legality of the transaction under normal
circumstances ( i.e., in the absence of litigation), and acts as the parties’
expert legal advisor. [FN42] The notary impartially advises all sides in a
matter __ her ethical duty is not to the parties but to the transaction. Since
the notary’s competence is generally limited to specific transactions, it is
more accurate to call her “counsel for the transaction,” but she is indeed, in
Brandeis’ terms, a legal professional who “rises above partisan advocacy.”
While I certainly hope that this work will be the foundation
for further study, I will generally avoid value judgments in this Article. The
models that I compare are substantively different even if sometimes structurally
similar. But conclusions as to relative efficiencies and economic and
transactional advantages must wait for empirical research, which is not now my
focus. Therefore, regardless of the use *403 to which this comparative
study might be put, my principal intent is to illustrate the role of the Latin
notariat in ways that will be familiar to an American lawyer. I will not
discount, however, that the notariat may provide a model for the nonadvocate
“counsel for the situation” which might be relevant at a time when the role of
lawyers in our society is being debated.
By way of introduction to this Article, I will first briefly
explore the historical development of the Latin notariat and undertake a
comparison from the perspective of the United States legal system. The more
substantial part of the Article will describe the profession and practice as
they generally exist today, also from an American legal comparativist
II. Historical Development of the Profession
Legal institutions change over time as new laws are enacted in
response to relevant developments. “It follows that the comparative legal
historian who practices ‘vertical’ comparative law will hit upon different legal
families, depending on the period under review, from the comparativist who looks
only to living systems of law.” [FN44] There are different views regarding the
historical ancestry of the modern notary. [FN45] The concept of a specialist
dedicated to writing documents is as old as writing itself, for we find scribes
or note takers in most ancient cultures. But can today’s Latin notary
institution really be compared to the ancient scribes? [FN46]
By modern standards, the Latin notary is a: (1) private legal
professional, (2) who advises and drafts legal documents for private parties,
(*404 3) maintains a permanent record of the transaction, and (4) has the
authentication power of the state delegated to him. All definitions of legal
professional in the United States include both giving legal advice and, when
necessary, representing a client in judicial or administrative proceedings.
[FN47] However, as anticipated above and as will be discussed below, [FN48] the
legal professions in Europe generally separate legal counsel and advocacy
functions. Even in the United Kingdom, a common_law jurisdiction, we find the
barrister and the solicitor. In this context, advocacy is not an essential
element of a legal profession; indeed, it has generally been incompatible with
the notarial function. The pattern of legal specialization and the separation of
advocacy and counseling functions can also be identified in ancient European
professional history. Thus, in order to describe these early scribes as legal
professionals, one should determine whether or not they gave legal advice to
clients and drafted legal documents on their behalf, including keeping a record
of the transaction and authenticating the juridical act performed before
The historical process that produced such a professional is
comprised of the following elements: (1) the meeting of the minds, (2) the
written contract, and (3) the legal professional who drafts public documents. As
one expert has written:
“In the beginning there was the document. This cannot be
forgotten. The document made the notary, even if now the notary writes the
document” . . . [but], before the document and the notary, there was the meeting
of the minds. [FN49]
The Latin notariat is inexorably linked to legal transactions.
Therefore, the historical progression at issue here starts with the meeting of
the minds ( i.e., the contract). Over time, agreements come to be memorialized
in writing. The seal is used as a guarantee of documentary authenticity. The
document under seal as a guarantee of legality is clearly identifiable among the
earliest legal writings. But *405 my focus in this Article is on the
individuals who produce these documents. In the beginning, these individuals
were merely skilled writers. As legal forms developed, so did the level of
required expertise. Liberal professionals assumed these tasks, at least where
legal agreements were concerned. Professional legal specialization is clearly
identifiable in ancient Rome, with a pattern that continues today in Western
Europe and in those systems thereby influenced. That is why we find separate
legal professionals __ some involved in litigation or general representation and
others charged with drafting certain legal agreements in proper form. But these
liberal professionals initially lacked the state power to authenticate, for they
did not have an official seal. This state monopoly was only dispensed by
judicial authority, in proceedings following the drafting of the agreement.
Then, during the Middle Ages, the liberal professionals, while retaining their
private character, were given the authentication power of the state. The Latin
notary was born.
B. Pre_Roman Civilizations
The legal document appeared long before the notary. In
pharaonic Egypt, “[t]here have been since the third dynasty [during the Old
Kingdom, about three millennia b.c.], papyrus deeds (the house document) for
sales and gifts of valuable property.” [FN50] Two to three millennia before
Christ, we find another ancient legal document: the will. During the Old and
Middle Kingdoms, between 3100 and 1770 b.c., Egyptians could leave property to
their survivors using a document which, although not considered a formal will,
nonetheless memorialized a gift of property upon death. This document usually
bore the seal of a functionary of some importance, such as a priest, whose seal
gave the document public status. [FN51] In the New Kingdom, between 1573 and 712
b.c., scribes could write and witness documents which were given public
character when the official seal was placed upon them in Thebes, the capital of
the empire. [FN52] Scribe_priests “were charged with the correct drafting of
contracts,” and magistrates could, by using their seal, authenticate and give
public status to otherwise *406 private documents, [FN53] as could lower
level officials employed by them. [FN54] The scribe’s work throughout this
period appears to have been mostly ministerial ( i.e., it was limited to
drafting and acting as a witness) and nonadvisory. [FN55] It was undoubtedly an
important job, as these officials were charged with documenting and accounting
the wealth of the empire. Additionally, one sees here the origin of an official
document bearing the seal and accompanying certification of the state, which, in
some instances, memorialized a private legal transaction.
Hammurabi’s Code, the ancient tablet dated to at least two
millennia b.c., [FN56] makes reference to some of the oldest written contracts
on record, which were memorialized by Babylonian judicial scribes in the
presence of witnesses and, as judgments of the court, had public status and
probative value. [FN57] These contracts usually related to the transfer of real
or personal property among individuals. [FN58]
The Hebrews, in Old Testament times, had the scribae __ royal
scribes, law scribes, popular scribes, and state scribes. All except the
*407 popular scribes had the power to authenticate documents. This power was
not directly delegated to them, but rather emanated from the power of their
employers. Thus the popular scribes had a limited quasi_public function; they
were merely skilled in writing, and offered this service generally to the
public. [FN59] Nevertheless, the popular scribes wrote legal documents such as
marriage contracts, deeds of purchase, and leases. [FN60] The royal scribe
authenticated the King’s acts and resolutions; the state scribe was the
secretary to the crown and to the courts of justice. [FN61] Thus, one sees the
development of ministerial functions related to legal documents. However, the
law scribes were interpreters of the law, and their function was also religious
in character, giving them a status similar to that of the priests. [FN62] The
royal, state, and law scribes were state employees and their functions related
exclusively to state business. It was the lower_level popular scribe who
performed services for individuals involved in private transactions.
In Classical Greece there were “public officials charged with
drafting the citizens’ contracts” as mentioned by Aristotle in 360 b.c. [FN63]
These officials were known as singraphos and apographos. [FN64] There were also
officials said to be predecessors of the modern notary. [FN65] The Mnemon, for
example, was “in charge of formalizing and registering public treaties and
conventions and private contracts.” [FN66] There is however, considerable debate
and inexact information about the full attributes of each of these professions,
and conclusions as to their contribution appear mostly anecdotal. [FN67]
Many public officials with the power to certify the
acts of the State with an official seal existed in pre_Roman history. One can
even find scribes who drafted legal documents for private persons. But there was
no single professional who possessed both the power of the State to authenticate
private acts and the responsibility to act as legal advisor to private parties.
Moreover, the legal professional was not yet the custodian of the original
document and issuer of copies to the parties. During these early years, the
legal document was much more important than its drafter.
Despite these precedents, and although today the two
institutions are quite different, the notary public in the United States and the
Latin notariat most often trace their origin similarly to Ancient Rome. [FN68]
“Writing was not widespread in that region during those times. As a result,
trusted souls were needed to write out important documents such as contracts and
wills and retain them, all for a small fee. Such an individual was imparted with
the public trust in office.” [FN69] But again __ at least initially __ the legal
document appeared to be much more identifiable than the notary function.
Nevertheless, over several centuries of Roman law, one finds different officials
who perform what today are notary functions. [FN70] The most important of these
were the tabularii and the tabelliones. [FN71]
But let me begin with the scribas and notarii. The scribas were
government employees responsible for custody of judicial documents [FN72] used
by the praetores (the Roman judges charged with resolving *409 civil
lawsuits). [FN73] They also drafted official resolutions. [FN74] Their work
appeared in the court record and therefore had public document status. The
notarius was a person skilled in shorthand writing. [FN75] They took notes from
oral dictation or discussions, much as a court reporter does today. [FN76] The
tabularii [FN77] were in their origin public officials charged with the census
and responsible for the custody of the census documents. Over time, they became
custodians of private wills, contracts, and other juridical acts. [FN78] The
documents themselves, however, were not authenticated by their delivery to the
tabularii; rather the fact of their delivery was certified. [FN79] “This variety
of designations does not prove, definitively, anything but that the notary
function is dispersed and attributed to a multitude of various public and
private officials, without originally accumulating all the attributes in a
single person.” [FN80] Additionally, the scribae, notarii, and tabularii were
all public officials. Thus, the development towards a liberal professional had
Tabelliones, [FN81] on the other hand, were private
professionals [FN82] who wrote and kept wills [FN83] and other legal documents.
[FN84] Although they were private professionals, they were carefully regulated
and scrutinized by the state to ensure the honesty of their work. [FN85] They
developed sufficiently by the time of Emperor Justinian’s rule [FN86] to be
mandatory drafters of contracts, required to prepare minutes of the transaction
called the scheda. [FN87] Justinian’s Constitution of 528 a.d. required parties
to the juridical act to request the tabellio’s participation. During this
meeting, the tabellio produced the scheda (notes reflecting the agreement the
parties wished to reach). The transaction was then transcribed by hand by the
tabellio alone in mundum (in its entirety), a process known as the absolutio.
The document was written on paper known as protocolum, and it eventually
acquired status similar to that of a publica monumenta ( i.e., a public document
drafted by an official of some importance). After the meeting, the document was
turned over to the parties and the tabellio was not required to keep the scheda
as a record. Judges treated the documents with great deference when the tabellio
testified to having drafted them. [FN88] The *411 only substantial
obstacle to considering these Roman officials true notaries is the absence of
the power to authenticate a document. [FN89] This is because the tabelliones
drafted instrumenta publica confecta, which only acquired public and authentic
status upon judicial intervention, known as the insinuatio. [FN90] Tabelliones
did, however, draft legal documents on behalf of private parties. Because they
also provided legal advice to the parties, they had to follow strict rules
imposed by the corpus juris in drafting the document. [FN91] They can,
therefore, rightly be called one of the direct predecessors of the modern
notary. [FN92] The most important factor that supports this conclusion is the
distinction between the tabellio and the general legal profession, the
juriconsultus or jurisperitus. [FN93] While the jurists “advised their clients
about legal problems, the tabelliones assisted them in writing legal documents .
. . and applications . . . to be addressed to the emperor or higher officials.”
[FN94] Thus, we have a liberal professional within a system of specialized
professionals. Still missing, however, is the public power to authenticate.
D. Europe During and After the Middle Ages
What might be the notary profession as such initially appeared
in Western Europe during the late Middle Ages. European law developed from a
foundation of Roman law, affected by the customary law of the invading
barbarians, mostly Germanic tribes. The fall of Emperor Romulus Augustulus in
476 a.d. marked the fall of the Western Roman Empire and the beginning of the
Middle Ages. [FN95] But that was Western Europe; Roman law and institutions were
alive and well in the Byzantine Empire in the East, where Justinian’s Code,
Digest and Institutes of 529 to 534 a.d. were written. [FN96] The combination of
Roman and Germanic laws in Western Europe eventually produced the modern
Under Justinian in the sixth century, the tabelliones
were in their heyday. Moreover, officials known as tabularii were active in the
Eastern Empire during the reigns of Basil I and his son Leo VI, who ruled from
886 to 912 a.d. [FN97] Scholars have concluded that by this time the names
tabelliones and tabularii had become synonymous in popular usage, [FN98] and the
designation applied to private legal professionals skilled in writing who were
required to be knowledgeable about Roman law, to keep a record of their work,
and to follow a set form in drafting legal documents. [FN99] The tabularii or
tabelliones often employed a scribe known by the generic term of ” notarius in
their establishments.” [FN100]
The Gothic invasions and the fall of the Western Empire were
the starting point in the development of the modern European nations and their
law. The notarii were instrumental in the survival of Roman law in Western
Europe. [FN101] But written law and scholarly compilations prior to the twelfth
century often did not adequately reflect actual legal practice because they
“were replaced by a popular or vulgar law spontaneously applied in fact by the
people. No one bothered to reduce these laws to writing since their sphere of
application was strictly local.” [FN102] Only “the Edict of Theodoric (500 [
a.d.]) in Italy, and the Fuero Juzgo in Spain” [FN103] are considered to be
important compilations of customary law as it was applied. [FN104] Also
influential were the Germanic Lombard codes, such as the edicts of Rothari,
Liutprand, and Ratchis, written between 643 and 749 a.d. and later the Franks’
capitularies of Charlemagne and Lothar. [FN105] It appears that the more general
terms scribe and notary were used by the early Europeans, instead of tabularii
or tabelliones. [FN106]
Whether medieval notaries can be considered legal
professionals is not clear. As I have indicated before, we should determine
whether or not the medieval notaries gave legal advice to clients and drafted
legal documents on their behalf, authenticating the document and keeping a
record of the transaction.
“Notaries” drafted “written documents as evidence of legal
transactions” following traditional Roman forms, which continued to influence
the Germanic Lombard codes of medieval Italy. [FN107] The office was a private
profession: “[t]hey can be considered public notaries in the sense that they
could write documents for anyone, but not yet in the sense of a public office in
a public function and with publica fides.” [FN108] The medieval Germanic legal
document that the notary would draft was generally referred to as the chartae,
charta, or carta, now known as charters. [FN109] If the proper formalities were
followed, the charters had public character. [FN110] But while they were
involved in what can only be regarded as legal work, some scholars ponder
whether the notaries who drafted them were mere transcribers, students, or
practitioners of the law. [FN111]
The number of charters and pleas that survive points to one
kind of legal expertise that existed in early medieval Italy: the ability to
draw up a charter. Drafting of legal instruments is always repetitive and highly
formulaic work, and the work of the notary was no exception; indeed, it was
doubtless this repetitiveness that, by making the skills of a notary relatively
easy to teach and to learn, contributed both to the survival of the notaria as
an occupational class and to the continued use of written documents after the
Germanic invasions. The amount of knowledge involved, however, should not be
overestimated. Although a notary would have had to know, for example, the
phrases that would achieve transfer of certain kinds of titles, it would not
have been necessary for him to understand the *414 legal theories on
which the distinctions between different titles were based.
The constant need to prepare documents meant that the law codes
as written documents were consulted more often and circulated more widely than
were those in northern Europe. The kings insisted that charters be drawn up in
accordance with Lombard law, and courts would indeed throw out improperly
prepared charters. The result was that notaries knew the Lombard laws well
enough to be able to cite specific laws in justification for the documents they
prepared. In some cases, indeed, they copied the whole text of the relevant law
into the charter __ clear proof of the circulation of manuscripts of the code.
Whether notaries could do more than cite the law, of course, may reasonably be
doubted; the charters show no examples of legal reasoning. But even such limited
expertise was valuable in the early Middle Ages, and early Pavese judges had
their principal training in notarial techniques. [FN112]
In Ratchis’ Edict one finds a public document used to
memorialize private contracts. The professional designated to draft these
documents in the early medieval codes was identified alternatively as ” scriba”
and ” notarii,” which later became ” escribano” and ” notario.” [FN113] One of
Charlemagne’s Capitularies, dated circa 805 a.d., is entitled ” de scribiis e
notariis [sic].” [FN114] Later, Lothar defined notarii as a royal official,
similar to a judge, who was entitled to use the tabellionatus sign. [FN115] This
commingling of the notarial function, associated with the tabelliones under
Roman law, with judicial activity was typical of early medieval Germanic
The link between judges and notaries is more
informative than it might appear, because the Latin in documents prepared by the
royal notaries, and by the judges when they acted as notaries, is generally of a
higher quality than that found, for example, in pleas prepared by other persons.
It is fair to assume, therefore, that the iudices domini regis were meaningfully
literate and not __ as was obviously the case with many local judges __ literate
only to the point of barely being able to sign their name. Although it is
certain that the royal judges and notaries received a basic education, it is
impossible to say where that took place.
But even if it could be shown that script and notation were
taught in the palace, that does not tell us anything about the judges’ legal
science. Handwriting is not jurisprudence nor, for that matter, is literacy.
True legal professionalism for the medieval notary came only
when the Europeans returned to the traditional Roman model of the tabellio.
Nevertheless, the Germanic law’s commingling of the limited notarial function
with the judicial publica fides filled the only void that separated the Roman
officials from the contemporary notary.
This was a gradual process. During the tenth, eleventh, and
twelfth centuries, the notary returned to its Roman roots as a private legal
professional who was not a judicial officer. Through the influence of Germanic
peoples, the development of the essential powers of the notary culminated; he
retained the power to authenticate (the publica fides) not as a judicial
officer, but as a private professional empowered by the State. First, the
notaries acted as royal magistrates or judges, as indicated above. Like the
Roman insinuatio, a legal proceeding before a judge_notary produced a public
document with the authentication power of the state. The custom of holding mock
trials in which legal transactions were put into the public record also
developed. The parties would reach an agreement, then the creditor would pursue
a mock action, in conjunction with the debtor, which would result in a judgment
of the court. The resulting document had the full faith and credit of the State.
[FN118] Over time, the judicial pretense was *416 dispensed with and the
notary became a private official without a judicial function, but endowed with
the publica fides (the public authority to authenticate). [FN119]
Codification of laws and the return of Western Europeans to
Roman legal science by the thirteenth century clarified matters considerably.
[FN120] The instrumentum drafted by the notary “must have gained *417
growing prestige, since only this would explain that already in the thirteenth
century we find a notary as representative of the public authority to
authenticate and his intervention gives authenticity to the documents.” [FN121]
Las Partidas of Alfonso X, El Sabio, of Castille, [FN122] reflect *418
the interest in codification, a scientific approach to the law, and the rebirth
of Roman law that prospered during the twelfth and thirteenth centuries, which
was promoted by the great European universities of France and Italy, [FN123]
and, to a lesser extent, Salamanca, Spain. [FN124]
The definitive moment in the development of the modern notariat
occurred when the Scuola di Notariato appeared in Bologna in 1228, [FN125] and
influenced all of Europe. [FN126] Its founder, Ranieri di Perugia, most likely
published his Summa Artis Notariae early in the thirteenth century. [FN127] But
the most influential notary of this period *419 was Rolandino, [FN128]
who in 1234 published his work entitled Summa Artis Notariae __ like Perugia’s
__ and the Summa Aurea, Diadema, Summa Rolandina also known as ” Summa
Orlandina,” La aurora, Flos testamentorum or Flos ultimarum voluntatem, and De
oficio Tabellionatus in villis vel castris. [FN129] It is important to note that
Rolandino used both ” notarius” and ” tabellio” in his works, suggesting that
the terms had become synonymous in their reference to a specific professional.
[FN130] Additionally, the birth of the notarial school implied real
professionalization. It was thus the conclusion of the process begun by the
Roman scholars and later continued by the corporations or guilds of the
Byzantine Empire, and also followed in medieval Italy, Spain, and France.
The bolognesi produced a strictly structured notarial document.
This form included a request for the notary’s intervention, a description of the
juridical act to be performed __ based upon a meeting or an “audience” with the
notary __ the factual background of the document, its reading, signature, and
absolution, or delivery of the document to the parties. [FN132]
In Italy, notaries were regulated by legislation in the various
city_states between the thirteenth and sixteenth centuries. France also had
notary legislation, such as Charlemagne’s Capitularies and the notarial laws of
the city of Paris in the times of St. Louis in 1270, which were later modified
during the reign of Philip in the early fourteenth century. In Portugal,
notorial laws were enacted in the thirteenth century under Alfonso II and then
under Don Denis and the laws of 1315, and *420 later slightly modified.
In Spain, [FN133] Catalonia had excellent notary legislation towards the end of
the thirteenth century, culminating with the Courts of Pedro III in 1331 and
Alfonso III in 1333. During the reign of Jaime I in 1238, notary colleges were
created and notary legislation enacted in Aragon and Valencia. [FN134] Castille
had Las Partidas in the thirteenth century, and notary colleges appeared there
in the sixteenth century. [FN135]
Las Partidas defined the royal notary and the escribano
p<acut_u>blico. The latter was a private professional appointed by the
King whose services were available to the general public in his locale. [FN136]
Las Partidas specifically required that certain legal transactions be
formalized *421 in a document prepared and authenticated by a notary,
[FN137] and established that the document would have authentic status and
probative value. [FN138] The notary met with the parties and produced an
imbreviatura, a summarized version of the juridical act being completed, which
was later included in the charta or public document. Unlike the scheda, the
notary had to keep the imbreviaturas in a permanent register. [FN139] Strict
standards of professional conduct were also imposed. For the offence of lying,
the royal notary paid with his life, and the Escribano P<acut_u>blico had
his writing hand cut off. [FN140] The Partidas constituted a full set of
regulations for the notary profession and related matters that were
substantially in effect until the middle of the nineteenth century in Spain and
Later, in the Statute of Count Amadeus VI of Savoy (the “Green
Count,” 1334_ 83), a definitive distinction was made between the extrajudicial
publica fides of the notary, and the judicial authority of the judge. Although
not universally followed, this is a clear indication of the total separation of
the notarial and the judicial function that had existed in the early Middle
Ages, [FN141] which is the rule that has survived into modern times. [FN142] In
1400, Amadeus VIII, ruler of Savoy and Piedmont ( Piemonte), issued a statute
that defined the protocol, the collection of documents kept by the notary which
substituted for what had been known before as the imbreviatura. This legislation
also included the notarial functions of audiencia, a meeting with the parties.
Notes from the meeting were kept and were later transcribed into the protocol, a
register in which a chronological summary of the entire notarial document was
permanently maintained. [FN143] Over time, the permanent register became more
important than the chartae issued to the parties, which were transformed into
mere copies of what was written in the register. [FN144] During the audiencia,
the notary was also required to listen to the parties and to give them pertinent
advice so *422 they could properly conclude their transaction. [FN145] In
1512, Emperor Maximilian I of Austria issued a constitution with very detailed
notarial regulation, which for the first time made clear that the protocol was
the property of the state, not the notary. [FN146]
No fundamental changes in notary legislation occurred until the
French revolutionary laws of the late 1700s and the notarial law of 1803, the
Loi Ventose. [FN147] The most important characteristics of this law were that it
thoroughly legislated notarial work, incorporating long_established practice and
eliminating unregulated areas, and was immediately applied and implemented as
written. [FN148] The French law defined notaries as ” public functionaries
designated to receive all acts and contracts to which the parties must or wish
to impart the authentic character of a public act and to guarantee the date,
keep it deposited and issue copies and testimonies.” [FN149] This is considered
important because the notary profession, due to its quasi_public function, was
distinguished from both other liberal professions and even other legal
professions. [FN150] The French law also codified matters, tasks, and other
professions that were incompatible with notarial practice. It made notarial
practice wholly incompatible with being a judge or any other type of judicial
functionary. [FN151] It reiterated the distinction between the judicial and
notarial publica fides. The law also codified and systematized prior practice,
requiring specific form in notarial documents and declaring that the notarial
seal gave authentic status to the document issued by the notary, and validity
anywhere in the country. [FN152]
The French also established their traditional system
of having two types of notarial documents: the minute, the principal document
subscribed by notaries which they were obliged to keep and only issue copies of,
and the brevet, a simple document that the notary delivered to the parties.
[FN153] The notary’s practice was also limited to an assigned region, which the
State designated to ensure the official proportion of one notary for every 6,000
inhabitants. The notary’s register of minutes __ known elsewhere as protocol __
was the express property of the state. The notaries were regulated and
disciplined by the Chambers. [FN154] Notaries were required to be French
citizens; be over 25 years old; take an oath; provide security; prove their good
moral character and “good habits;” and have completed military service. [FN155]
The French also codified a six_year period of apprenticeship in an established
notarial office, which could be reduced to four if the work had been performed
in “a notarial office considered superior in class to the one being sought.”
[FN156] Although the French model has been “considerably improved upon,” its
importance and influence is widely acknowledged. [FN157] The ” Loi 25 Ventose
Annee XI” [Law 24 Ventose Year XI] of March 16, 1803 remained, well into the
twentieth century, the fundamental French notarial law, [FN158] and the starting
point of the modernization to existing legislation in other countries employing
the Latin notariat. [FN159]
The two notarial laws that bring us to the twentieth century
were the Spanish enactment of 1862 and the Italian law of 1913. [FN160] The
Spanish Notarial Law of 1862 replaced the traditional Spanish term *424 ”
escribano,” used in the Partidas with the term ” notario.” [FN161] The law also
referred to the notary as a “public functionary.” [FN162] It required the notary
to have a specified post_secondary education or be a lawyer. [FN163] Mere legal
knowledge is not enough; a formal education is mandatory so the notary can
perform his duties as a trusted counselor and advisor to the parties. [FN164]
Prior to the enactment of the new law, notarial offices were limited to
particular regional jurisdictions. The Spanish law added a new hierarchy __
based on the office’s location and the volume of notarial business transacted
there __ within which notaries were promoted based upon seniority and merit.
[FN165] The law also established a unified, mandatory bar system for notaries.
They were required to be members of professional associations known as the
colegios (colleges), which had the power to discipline its members. [FN166] The
protocolo was defined as “the organized collection of master deeds authorized
during one year and it shall be formalized into one or more volumes bound, with
individual page numbers written in words.” [FN167]
The Italian Notarial Law of 1913, like the French law,
distinguished between the public document to be permanently maintained by the
notary, who then issues certified copies to the parties, and the lesser
unrecorded document that is delivered to the parties. [FN168] Not unlike his
Spanish counterparts, the Italian notary is required to obtain a law degree,
practice for at least two years, and pass an exam. [FN169] The Italian law
essentially recognizes that instrumental witnesses ( i.e., nonparties who
observe and witness the transaction) have become obsolete. [FN170] Italy also
gives the notary authority to appear in court on behalf of clients in
noncontentious matters related to documents subscribed before her. [FN171]
Finally, the Italian law also recognizes modern technology and allows the use of
telegraphs and telephones to transmit *425 notarial information. [FN172]
The important novelty of the Italian law is that it states that notaries are
“public officials designated to receive the inter_vivos acts and those of last
will, to give them publica fides, to keep them on deposit, and to issue copies
and extracts.” [FN173] This designation of the notary as a public official (
i.e., someone authorized by the state to hold a private office, not a public
employee) is an important refinement. [FN174]
E. England and the Americas
English common law, for the most part, developed independently
of the trends in mainland Europe and the notary was not introduced there until
the late thirteenth century. The first notaries arrived in England from
continental Europe and acted on imperial or papal authority. In 1279, the
Archbishop of Canterbury received authority from the Pope to appoint notaries
and a truly English notariat first appeared. In 1533, following the Reformation,
the British Parliament transferred the power to appoint notaries to the crown.
In 1801, the Public Notaries Act became “the first attempt by Parliament to
regulate the notarial profession, although it did so only in part.” [FN175]
Initially, the ecclesiastical and secular functions of the notaries were not
clearly separated, but as jurisdictional conflicts between the Church and the
monarch were resolved, and as commercial matters became more complex, the purely
secular notary appeared. [FN176] “In the domestic sphere they acted as
conveyancers, and were employed in attesting the execution of wills, deeds,
contracts and other documents.” [FN177] After the authority to designate
notaries was entrusted to the crown, the Court of Faculties was created and
given the authority to appoint notaries, which it continues to do today. [FN178]
The Court began to require *426 that notaries be “over 21 years of age,
of sober life, conformed to the doctrines of the Church of England, . . . loyal
subjects of the king, and [have] practical training . . . .” [FN179] It appears
that, at least during the seventeenth century, these officials were referred to
as tabelliones. [FN180] Their work had some probative value and they were
described as “attesting” and “certifying” documents for use domestically and in
international trade. [FN181] Under nineteenth century legislation, notaries had
to serve a seven_year apprenticeship and the Scrivener’s Company had exclusive
authority to “control the profession in London.” [FN182] Nevertheless:
[T]he Notary never obtained the same prominence in the English
legal system as that enjoyed by his counterparts in continental Europe. The
importance of the English Notary resides not in the functions which he performs
within his own legal system, but rather in the link that he provides between the
institutions of the common law and those of the civil law. It is for this reason
that the office of the English Notary has been so jealously safeguarded in a
legal system where, in many ways, he is an anomalous figure. [FN183]
Meanwhile, in the North American colonies, where today each
state has its own notary legislation, [FN184] the occupants of the colonies that
would become the United States of America:
. . . had little use for the services of a Notary Public . . .
. Most agreements for the purchase and sale of land were made public in open
court. The buyer and seller met before an official, such as a judge, to advise
him of their intention to make an agreement. The judge would make the agreement
official and in full force and effect *427 simply by recording the terms
in his court record.[ [FN185]] During the colonial period notaries public were
elected or appointed in the same way as judges in each colony.[ [FN186]]
However, their duties were of a ministerial rather than a judicial nature.
The increase in trade between the colonies and Europe
highlighted the need for an official of high moral character, such as the notary
public, who could witness, as well as draw up, simple agreements for the
purchase and sale of merchandise. Colonists used a bill of exchange to pay for
merchandise received from Europe and gave it either to the captain of the ship
or to another colonist who had sold merchandise to the business house in Europe.
Thus, the bill of exchange was a kind of check, or more generally, a negotiable
instrument that could be transferred from one person to another by endorsement.
In England the presentment, demand, protest, or notice of dishonor of such
negotiable instruments was handled by a notary public and thus these duties
became the province of the notary public in America. [FN187]
In the United States the notary developed into a purely
clerical position. [FN188] Even in the former French and Spanish colonies, the
notary was a simple clerk. The civil code notaire arrived in Louisiana by order
of Louis XIV in 1717, and notaries were appointed there by the Spanish and
French monarchs. [FN189] “[N]otarial work and records survived into the mid_19th
century,” a central office for these records was created after the Civil War,
and “gradually, the notarial and legal profession fused.” [FN190] Although
“Louisiana, originally a pure civil_law jurisdiction, still retains much of its
civilian tradition, . . . the function of the notary has diminished in
importance over the years. Indeed, the truly civilian notary has substantially
disappeared.” [FN191] Despite the fact that some substantive law still requires
the notarial form, the important aspects of the notarial function, such as legal
advice and quality control, have been abandoned. [FN192]
Notarios, on the other hand, arrived in the Americas
with the European conquistadores. Columbus’ first crew included the escribano
Rodrigo de Escobedo; [FN193] another notary, Diego de Penalosa, was with him
when he discovered Puerto Rico during his second voyage on November 19, 1493.
[FN194] In Latin colonies Spain imposed its special legislation regarding the
appointment of notaries. [FN195] There were two kinds of escribanos, the
escribanos reales who exercised a ministerial function, and the professional
escribano p<acut_u>blico who was the holder of a title ( titulo) of
notario p< acut_u>blico and the accompanying status of notario de reynos.
[FN196] Candidates for the office were carefully screened and tested for
competence. [FN197] But the institution itself, and the duties, obligations, and
responsibilities of the notaries were still defined by the same substantive
legislation applicable in Castille, [FN198] fundamentally, the rules of the
These historical highlights constitute the evolution of the
modern notariat. [FN200] Roman institutions particularly influenced the
development of the notariat in Western Europe during the Middle Ages, [FN201]
until its definitive consolidation there in the nineteenth century. [FN202]
Roman law supplanted all prior legal cultures in Europe. Because Roman law
superceded them, little has been said about the influence of older Hebrew,
Egyptian, and Hellenic cultures in modern studies of the historical development
of the institution.
In ancient times the public document was much more important
than its drafter. We see documents that memorialize legal transactions such as
wills and contracts. These writings were given authenticity and certified by the
state through the placement of an official seal. *429 While one can see
the beginning of what can rightfully be called a notarial document, no evidence
exists that the functionaries who drafted them performed anything more than a
ministerial function until the end of the Western Roman Empire and in the
Byzantine Empire, when the tabelliones were private legal professionals closely
regulated by the State.
After the fall of the Western Roman Empire, the profession was
slowly incorporated into the early medieval codes. As European law developed, so
did the scribas and notarii. Initially Germanic judges, they soon became private
professionals following Roman legal forms but retaining the power of the publica
The notary profession as such appeared during the late Middle
Ages and is clearly identifiable in the Spanish and Italian codes of the
thirteenth century. The notary was a private, closely regulated legal
professional with the power to attest. Contemporaneously, the bolognesi produced
clearly structured notarial documents and transactions. Late medieval
legislation, particularly the statutes of Savoy and Piedmont, created the
protocolo, or permanent record of the juridical acts subscribed before the
The Anglo_Saxon countries followed the Germanic system of the
judge_ notary as the official before whom private legal transactions were
entered into the public record. But when the notarial and judicial functions
separated in the United States, the extra_judicial power to attest was deposited
upon a lay person whose intervention was strictly clerical. Even in the American
states in which French and Spanish notariats once existed, the substantive law
often still requires notarial form. However, the notary is, like his
counterparts in all the other fifty states, a nonprofessional. In England, the
notary remains a conduit for business between the British and their civil_law
European counterparts. The notarial function remained a professional institution
in the countries on the Western European mainland and their former colonies.
The modern characteristics of the notariat were later
comprehensively codified by the French Law Ventose of 1803, the Spanish Notarial
Law of 1862, and the Italian Notarial Law of 1913. Although modified and
amended, these laws are still substantially in effect, and from them one can
identify the following important characteristics of the notariat, which are
explored in detail in the remaining sections of this Article:
1) A private, liberal profession. Legal education
and/or apprenticeship are required. The applicant must pass an examination.
Membership in a professional association or college is mandatory.
2) Exclusive jurisdiction. As the depository of the publica
fides delegated by the State, he performs a unique public function, which gives
him exclusive subject_matter jurisdiction. Geographic exclusivity is also
3) The notary is required to keep a protocolo or permanent
register of all public documents subscribed before him. Typically, he produces
public documents ( minutes, escrituras) and lesser documents that are delivered
to the parties ( brevets, affidavits).
4) The notary is a legal advisor to the parties and is closely
supervised by governmental and professional bodies.
III. The Contemporary Latin Notary
A. Relevant Comparison
While their roots are common, the notary public in the United
States today and the Latin notary are quite different. “National legal systems
are frequently classified into groups or families. Thus the legal systems of
England, New Zealand, California, and New York are called ‘common law’ systems,
and there are good reasons to group them together in this way. But it is
inaccurate to suggest that they have identical legal institutions, processes,
and rules. On the contrary, there is great diversity among them, not only in
their substantive rules of law, but also in their institutions and processes.”
[FN203] I must also caution that the Latin notariat is, by definition, found in
non_English_speaking countries; thus we find the Spanish Notario P<acut_u>
blico, the French Notaire, the Italian Notario, the Dutch Notaris, and the
German Notar. The comparativist must tread carefully when translating. I will
attempt to explain translated terms as much as possible. I hope to achieve what
Professor Peter W. Schroth describes when he states that “the differences
between languages are such that something is always lost in translation, but for
most purposes, most of the time, a good translator can arrange to make what is
lost the part that does not matter to the particular audience.” [FN204] With
these considerations as general guidelines, I will try to identify (to
paraphrase Professor Merryman’s eloquent introduction) the qualities that the
Latin notary institutions, *431 as implemented in different countries,
have in common, as well as those qualities which set them apart from other
The International Union of the Latin notariat, [FN206] the
organization that groups Latin notaries, defines the notario latino generally as
“a legal professional specially designated to attest the acts and contracts that
persons celebrate or perform, to draft the documents that formalize the latter
and to give legal advice to those who require the services of his office.”
[FN207] In contrast, some scholars refer to the classification of the Saxon
notary. European comparativists indicate that the Saxon notary, in the United
States and England for example, is not really a public officer in the
traditional sense of being an employee of the state having special faculties and
functions. The state does establish the requirements for becoming a notary, but
she is still a private person. The acts of notaries are exclusively limited to
the authentication of signatures ( i.e., they generally attest only to the
identity of the parties). [FN208] *432 In the United States, “[t]he
notary public is a sworn public officer with the power to perform a number of
official legal acts . . . . The office of notary public is technically
classified as a ministerial office, meaning it does not involve significant
judgment or discretion of the notarial acts being performed. As such, it is
similar to a county, city or township clerk. It is not a judicial or legislative
position.” [FN209] The Latin notary, on the other hand, is a legal professional,
with considerable responsibility and discretion.
As for the British notary public:
Generally speaking, a notary public in England may be described
as an officer of the law appointed by the Court of Faculties whose public office
and duty it is to draw, attest or certify under his official seal, for use
anywhere in the world, deeds and other documents, including wills or other
testamentary documents, conveyances of real and personal property and powers of
attorney; to authenticate such documents under his signature and official seal
in such a manner as to render them acceptable, as proof of the matters attested
by him, to the judicial or other public authorities in the country where they
are to be used, whether by means of issuing a notarial certificate as to the due
execution of such documents or by drawing them in the form of public
instruments; to keep a protocol containing originals of all instruments which he
makes in the public form and to issue authentic copies of such instruments; to
administer oaths and declarations for use in proceedings in England and
elsewhere; to note or certify transactions relating to negotiable instruments,
and to draw up protests or other formal papers relating to occurrences on the
voyages of ships and their navigation as well as the carriage of cargo in ships.
Comparing the Latin notariat only to the notaries public in the
United States or England today, or the classification of Saxon notary generally,
would clearly be an incomplete analysis. The function of the notary includes
matters that are traditionally the province of lawyers in the United States and
solicitors in England. She is a trained professional. Professor John Henry
Merryman explains that:
any similarity between the civil_law notary and the notary
public in common_law countries is only superficial. . . . Our notary public is
a *433 person of very slight importance. The civil_law notary is a person
of considerable importance. The notary in the typical civil_law country serves
three principal functions. First, he drafts important legal instruments . . . .
Second, the notary authenticates instruments. An authenticated instrument . . .
has special evidentiary effects: it conclusively establishes that the instrument
itself is genuine, and that what it recites accurately represents what the
parties said and what the notary saw and heard . . . . One who wishes to attack
the authenticity of a public act must institute a special action for the
purpose, and such an action is rarely brought. Third, the notary acts as a kind
of public record office. He is required to retain a copy [generally the
original] of every . . . [public document] he prepares and furnish authenticated
copies [to interested parties __ as defined by law __ ] on request. An
authenticated copy usually has the same evidentiary value as an original.
Unlike advocates, who are free to refuse to serve a client, the
notary must serve all comers. This, added to his functions as record office and
his monopoly position, tends to make him a public as well as private
functionary. Access to the profession of notary is difficult because the number
of notarial offices is quite limited. Candidates for notarial positions must
ordinarily be graduates of university law schools, and must serve an
apprenticeship in a notary’s office. Typically, aspirants for such positions
will take a national examination, and if successful, will be appointed to a
vacancy when it occurs . . . . [FN211]
The rest of this Article will be dedicated to a study of the
modern Latin notary and his function. Whenever the Saxon notary public performs
a similar task, I will point it out. I will additionally identify those
functions of a Latin notary that can properly be compared to the advice of a
B. The Nature of the Latin Notary Profession and its Function
1. The General Concept
The Latin notary institution must be understood in its proper
context, by considering: (1) its nature as a liberal profession performing a
public function, (2) its location within established systems of legal
specialization, and (3) its place within a unified code_based legal *434
system in which notarial law interacts closely with other areas of the law,
particularly mortgage and registry law.
2. A Liberal Profession Performing a Public Function
“The Notario Latino [Latin notary] is the legal professional
[exclusively] charged with the public function of receiving, interpreting, and
giving legal form to the intent of the parties, preparing the documents
pertinent to the desired end, giving them authenticity; and conserving the
originals and issuing copies that attest to their content. This function
includes the authentication of facts.” [FN212]
Is the Latin notary then, a public officer, an administrative
functionary, or a professional in “private” practice? The notary function is a
public one, by virtue of the delegation of the state’s sovereign authority to
authenticate; but the notary profession is a liberal private profession, subject
to the same type of governmental regulation that the state imposes, for example,
on lawyers, doctors, and pharmacists. [FN213] The person occupying the office is
a private legal professional, to whom the state entrusts exclusively the public
function of giving proper legal form and authenticating what would otherwise be
a private transaction, making it a public act by memorializing it in a public
document. The Latin notary combines in his acts the competence traditionally
associated with a public official with the discretion and responsibility of a
private legal professional.
In simple terms, notaries are liberal professionals who allow
private parties to give legal effect to their transactions. But because they do
so by exercising both professional judgment and a sovereign power, their status
can be confusing.
As discussed above, both the Spanish and French notarial laws
define notaries as “public functionaries,” which generally means “one
*435 who serves in a government or political party.” [FN214] The designation
is justified because “notaries receive from the State the power to give
authenticity to their acts and to deliver executory titles.” [FN215] The notary
profession, because of its quasi_public function, is thus distinguishable from
other liberal professions, even from other legal professionals. [FN216] Enrique
Gimenez_ Arnau defines the Spanish notario as: “a legal professional who carries
out a public function to strengthen, with a presumption of truthfulness, the
acts in which he participates, in order to assist in the correct formation of
the legal transaction and to impart upon private legal transactions the proper
legal form and required solemnity.” [FN217] According to DeVries, “the [French]
notaire is a trained lawyer, who performs numerous and important nonlitigation
functions in law administration. He is empowered to import the quality of ‘ acte
authentique’ to certain writings which must be executed before a public
officer.” [FN218] The Italian law changed the classification to state that
notaries are “public officials designated to receive inter_vivos acts and those
of last will, give them publica fides, keep them on deposit, and to issue copies
and extracts.” [FN219] “The notary function is a public function that the notary
carries out independently without being hierarchically included among the
functionaries employed by the State Administration or other public
corporations.” [FN220] In this context, the description of the *436
notary as a public official means that he is authorized by the state to hold a
private office; he is not a public employee. [FN221]
To the extent that he receives a license to practice his
profession from the state, the Latin notary is not different from any other
liberal professional. The only difference lies in the delegation and exercise of
the publica fides in addition to the grant of a professional license.
A notary public in the United States is a public officer who
performs certain ministerial public functions and is not an employee of the
state. [FN223] Notaries public are not required to have any particular
educational or practical training. [FN224] While the notary public’s status as a
private citizen performing a public function is similar to that of the Latin
notary, the former cannot in any sense be called a legal professional, and any
comparison to the latter would be misleading.
The best comparative analogy of the notario’s status as a
public official could be made, not to the notaries public, but rather to
American lawyers’ and British solicitors’ status as “officers of the court.” The
solicitor is statutorily designated an “officer of the Supreme Court.” [FN225]
“The summary jurisdiction of the court over solicitors exists for the
maintenance of their character and integrity.” [FN226] In the United States, the
matter is not quite as clear because the term “officer of the court” is used in
many different contexts that are not relevant here, [FN227] and because a
specific definition of the term is not easily *437 found. [FN228] Court
decisions sometimes use the label officer of the court without much explanation,
[FN229] leading one comprehensive study of the *438 “officer of the
court” concept in the United States to conclude that it is too often used to
justify judicial supervision of attorneys, without really analyzing the basis of
the underlying rule. [FN230] It is nevertheless apparent that the label reflects
the notion that attorneys are an essential part of the administration of justice
and that “certain duties flow” from this status. [FN231] In its classic case on
this subject, Ex parte Garland, [FN232] the Supreme Court explains the
attorney’s special status as a private professional:
The profession of an attorney and counsellor [ sic] is not like
an office created by an act of Congress, which depends for its continuance, its
powers, and its emoluments upon the will of its creator, and the possession of
which may be burdened with any conditions not prohibited by the Constitution.
Attorneys and counsellors are not officers of the United States; they are not
elected or appointed in the manner prescribed by the Constitution for the
election and appointment of such officers. They are officers of the court,
admitted as such by its order, upon evidence of their possessing sufficient
legal learning and fair private character . . . . The order of admission is the
judgment of the court that the parties possess the requisite qualifications as
attorneys and counsellors, and are entitled to appear as such and conduct causes
therein. From its entry the parties become officers of the court, and are
responsible to it for professional misconduct. They hold their office during
good behavior, and can only be deprived of it for misconduct ascertained and
declared by the judgment of the court after opportunity to be heard has been
afforded. Their admission or their exclusion is not the exercise of a mere
ministerial power. It is the exercise of judicial power . . . . [FN233]
Courts are therefore entitled to establish qualifications for
entry into the bar and legislators may also establish admission rules __ but
this does not remove the courts’ supervisory powers. [FN234] The rationale for
the close supervision of attorneys is their essential role in the administration
of justice. The Supreme Court has more recently explained:
Courts have long recognized an inherent authority to
suspend or disbar lawyers. Ex parte Garland . . . . This inherent power derives
from the lawyer’s role as an officer of the court which granted admission . . .
Essentially, this reflects the burdens inherent in the
attorney’s dual obligations to clients and to the system of justice. Justice
Cardozo once observed: ” ‘Membership in the bar is a privilege burdened with
conditions.’ [An attorney is] received into that ancient fellowship for
something more than private gain. He [becomes] an officer of the court, and,
like the court itself, an instrument or agency to advance the ends of justice.
People ex rel. Karlin v. Culkin.”
As an officer of the court, a member of the bar enjoys singular
powers that others do not possess; by virtue of admission, members of the bar
share a kind of monopoly granted only to lawyers. Admission creates a license
not only to advise and counsel clients but also to appear in court and try
cases; as an officer of the court, a lawyer can cause persons to drop their
private affairs and be called as witnesses in court, and for depositions and
other pretrial processes that, while subject to the ultimate control of the
court, may be conducted outside courtrooms. The license granted by the court
requires members of the bar to conduct themselves in a manner compatible with
the role of courts in the administration of justice. [FN235]
The Latin notary, like the lawyer, is a private legal
professional who holds his office permanently while in good standing. However,
generally speaking, notarial supervision is not an inherent judicial function,
but rather it is normally exercised by the legislative authority and sometimes
delegated to professional groups. In addition, notaries do not traditionally
participate in judicial proceedings. [FN236] Nevertheless, the notary is closely
supervised __ not by the judiciary, but rather by the state or its designees __
as he has had a sovereign power delegated to him: the publica fides. There is in
effect a special type of implied contract between the state and the notary.
While the latter is not a public employee, the state nonetheless jealously
guards the power delegated to him by regulating admission to and practice of the
profession, thus guaranteeing the special status of notarial acts. [FN237] The
notary, like the American lawyer, is an “officer” or “official” who performs an
essential professional function in a specific process. The *440
difference lies in the fact that the Latin notary’s public function is more
administrative than judicial, and in the fact that the notary has an express
delegation of a specific governmental power, the publica fides, to the
a. The Publica Fides
The publica fides or fe p<acut_u>blica is, in essence,
the governmental power to authenticate or to certify. The concept would be
literally translated as “public trust” or “public faith.” “Faith” is used in
this context to mean “[b]elief; credence; trust. Thus, the Constitution provides
that ‘full faith and credit’ shall be given to the judgments of each state in
the courts of the others.” [FN238] One can also analogize to bona fides, defined
as “in or with good faith . . . without deceit or fraud . . . without simulation
or pretense . . . the attitude of trust and confidence, without notice of
fraud.” [FN239] The fe p<acut_u>blica gives the notary the public trust
and authority to attest. [FN240]
Originally, only two kinds of publica fides were recognized:
the judicial and administrative authority to attest. [FN241] But over time, as
discussed above, the state delegated this administrative authority to private
notaries. This means that when he certifies and attests, the notario always
“gives faith” __ in Spanish ” da fe” __ of the contents of the document
subscribed before him, and thus witnesses the instrument and imparts upon it a
presumption of authenticity. Therefore, the Fe P<acut_u>blica Notarial “is
the legal acceptance of the certainty that comes from the presumption of truth
that accompanies the notarial document.” [FN242]
The juridical act, authorized by the fe
p<acut_u>blica is deemed to be authentic, the word is derived from the
Greek term and means that which is truthful, that which must be believed, what
is genuine . . . . The fe p<acut_ u>blica originates with the State . . .
it is one of the attributes of sovereignty, which is delegated to different
officials . . . . The fe p<acut_ u>blica notarial consists of the
certainty and effectiveness that the public power gives to otherwise private
acts and contracts through authentication by a notary. [FN243]
Both the American notary public and his British counterpart
have the power to certify. But is this power really comparable to the notarial
publica fides? No. Even though the authority to attest comes from the state in
both instances, the fundamental difference between the notarial publica fides
and the notary public’s power to certify lies in their evidentiary effect. A
duly certified notarial document under the Latin system is endowed with the
strongest possible presumption of truth, and the party trying to counter this
presumption bears the heavy burden of rebutting it. A document subscribed by a
notary public, on the other hand, has very limited probative effect.
In Britain, “a notarial certificate is not per se accepted
within the jurisdiction of the high court as evidence of the facts expressed in
the certificate and . . . these facts must be proved in the usual way.” [FN244]
The “usual way” means that facts must be proved through oral testimony by a
sworn witness in court. Any deviation would violate the hearsay rule. The notary
is thus required to testify in court about transactions occurring before him,
although some statutory exceptions specifically allow the admission of some
documents. Finally, English judicial opinions have taken an “ambiguous” attitude
towards internal notarial documents by enforcing the general common_ law rule,
but allowing the admission of documents without testimony by way of exception in
certain instances. [FN245] In the United States, the notary’s seal and
certificate are presumed authentic ( i.e., it is presumed that the person who
used them was a duly empowered notary, and the person *442 opposing
admission into evidence must rebut them, generally by clear and convincing
evidence). [FN246] The certificate attests only to the acknowledgment by the
subscriber and the genuineness of the signature. [FN247] The notary public’s
certificate is taken to be ” prima facie evidence of the facts stated [in the
certificate only], such as the fact of execution by a person who purports to be
the subscriber[,]” and this presumption may, usually, only be countered by clear
and convincing evidence. [FN248] Another prima facie presumption is that the
person subscribing the affidavit does so under oath, subject to the penalty of
perjury. [FN249] Finally, and most importantly, the notary public’s certificate
is *443 not “deemed to certify or guarantee the facts stated” in the
document to which it is attached. [FN250] Subject to the exceptions already
discussed, [FN251] hearsay concerns and the general common_law preference for
in_court testimony justify the inadmissibility of notarized documents as proof
of the matter therein asserted. [FN252]
By contrast, the Latin notary’s “mission which gives
authenticity to the act, meaning a particular probative force, is an essential
aspect of [notarial] law.” [FN253] As a general rule, the Latin notarial
document is deemed to be authentic and executory and constitutes proof of the
facts asserted therein. It can only be invalidated by judicial order. “In civil
law jurisdictions, notarial instruments fall into the category of public
documents, ( i.e., documents drawn up by a notary or other public official which
are automatically evidence of their origin and of the facts and statements they
record). This is so whether they relate to a *444 public or private
matter.” [FN254] In France, a notarial document and the facts included therein,
are automatically admissible into evidence and only upon judicial declaration of
invalidity does the document lose its executory nature. [FN255] In Spain, a
notarial document constitutes proof of the facts that motivated its
subscription, and of the statements made by the contracting parties. [FN256] In
Mexico, a notarial document has the strongest possible evidentiary value,
subject to none of the exceptions normally applicable to document
interpretation. [FN257] Even when notarial intervention is not required for an
agreement to be valid, the notarial document “reinforces, with a presumption of
validity, the juridical act performed.” [FN258] The UINL distinguishes two types
of presumptions: truthfulness and legality. The facts included in the notarial
document are presumed to be true. The legality and proper form of the juridical
act it reflects are likewise presumed. [FN259] Even though it reflects a private
juridical act, a notarial document is nonetheless given the same probative
effect as a duly certified document produced by a governmental agency or
instrumentality. [FN260] Generally speaking, only upon a judicial declaration of
invalidity does the notarial document lose its probative effect. [FN261]
Depending on the jurisdiction, the document may be attacked collaterally, or in
a special action directed specifically at invalidating the document may be
instituted. [FN262] *445 It is upon the moving party to prove the
invalidity of the notarial document, generally by clear and convincing evidence.
The presumptions favoring the notarial document are even more
important in civil_law countries because, unlike their common_law counterparts,
they express a general preference for documentary evidence over testimonial
matter. By contrast, both England and the United States, through the hearsay
rule, which justifies exclusion of documents certified by a notary public to
prove the truth of the matter asserted therein, express a preference for
in_court testimony. This is one of those areas where issues might superficially
appear similar, but where close scrutiny discloses an important difference in
the way the two systems approach a particular legal problem. The civilians see
testimonial evidence as temporary and susceptible to many subjective factors
that might affect its value. Documentary evidence, on the other hand, is seen as
objective and more reliable because it is contemporaneous with the act or accord
among the parties and because it is prepared prior to the inception of
litigation ( i.e., because it is not subject to the weaknesses of human beings).
[FN264] Moreover, the notarial document is prepared and certified by a qualified
legal professional. In a system in which the written word is paramount in
judicial proceedings, the notarial document is singled out for its special
b. The Protocolo, the Collection of Public Documents Subscribed
Before a Notary
As part of his public function, the notary is the permanent
archivist of the original documents subscribed by him. “The protocolo is the
organized collection of master public documents and actas [FN265] subscribed
*446 by a notary . . . including those documents that are attached to the
public document.” [FN266] A public document, for example, may be supplemented by
attaching either the certificate of its inscription in the property registry, or
the certificate of the legal notice of subscription of wills and powers of
attorney required by some jurisdictions. [FN267] Typically, the Latin notary
will issue certified copies to be used by the parties to give effect to their
The protocolo or register is generally required to be bound
into yearly volumes, not exceeding a particular number of pages. It must be kept
in a safe place. In Puerto Rico, when it is kept inside a wooden structure it
must be placed in a fire_proof cabinet. The protocolo may not be removed from
the notary’s office, except pursuant to a court order. In jurisdictions such as
Puerto Rico where the notariat is a free and open profession without territorial
or numerical restrictions, upon death, suspension, disbarment, mental or
physical incapacity or retirement of the notary, the protocolo is turned over to
the inspector of notarial offices. This office is thereafter responsible for its
protection and for issuing copies of the public documents to interested parties.
[FN268] The system is different in those states that have territorial or
numerical restrictions. [FN269] The register is the property of the state, but
its custody is entrusted to the notary holding that particular notarial seat.
The notarial office is the day_to_day custodian, as long as it stays open,
regardless of the identity of the resident notary, *447 until the
documents become “old documents” that must be turned over to public archives.
As the protocolo belongs to the State, the notary is merely its
designated custodian. [FN271] In France, the notary’s register of minutes __
known as protocolo elsewhere __ is designated to be the express property of the
state by the Law Ventose. [FN272] In the Spanish Notarial Law of 1862, protocolo
is defined as “the organized collection of master deeds authorized during one
year and it shall be formalized into one or more volumes bound, with individual
page numbers written in words.” [FN273]
The State, generally through the inspector of notary offices,
has absolute, unobstructed access to the protocolo. [FN274] Its contents are
confidential and may not be shown or otherwise divulged to third parties. Copies
of public documents in the protocolo may be issued only to interested parties as
discussed below. Likewise, information from the protocolo may be read or
divulged only to interested parties, as provided by law. [FN275] Notarial wills,
however, must remain totally confidential until the death of the testator.
[FN276] Violation of the secrecy of the protocolo may result in criminal
The secrecy of the protocolo could be compared to the
attorney_client privilege with respect to third parties not involved in the
juridical act contained in the public document. For example, a notary has an
obligation to notify a buyer of a defect in the seller’s title, and of any
encumbrances on the property. The notary is also allowed to inform nonparties to
a transaction of defects in title and encumbrances that should be reflected in a
public registry, even if he acquired such knowledge from a party to a notarial
transaction. [FN278] Even more importantly, *448 the notary has an
affirmative obligation to search the public registry for information relevant to
the transaction, and to disclose such information to the parties. [FN279]
Since a notary is required to retain the original copies of all
public documents he subscribes, certified copies are issued as needed or upon
request. “Copies issued by the notary may be, by virtue of their formality,
certified or simple; and by virtue of their content, they may be partial or
total.” [FN280] A certified copy bears a certificate subscribed by the notary
attesting that they are true and correct copies of the originals in his
protocolo; [FN281] informal copies may lack the notary’s certification. [FN282]
Certified copies are valid for all applicable legal purposes, [FN283] including
registration in the property registry.
Because the protocolo is protected by secrecy requirements, the
number of persons who have a right to obtain copies is limited. Accordingly,
only the following persons may obtain copies:  The subscribing parties; 
representatives of the subscribing parties;  heirs of the subscribing
parties;  every person who is given any right by virtue of the document; . .
.  those who prove that they have a legitimate interest. [FN284]
In sum, the Latin notary is a private professional performing
the public function of authentication and archival of public documents. Because
she is the custodian of an important sovereign power, a notary is often referred
to as a public officer or official, despite practicing the profession in a free
and private manner. This is similar to the American lawyer’s status as an
“officer of the court.” A notary public’s certification has very limited
probative effect, while, under the Latin system, the publica fides imparts upon
a duly certified notarial document the strongest presumption of truth. The
document is generally admissible into evidence without any accompanying
testimony, and is considered proof of the facts contained therein, with a
strong, albeit not irrebuttable, presumption of truth. The party trying to rebut
this presumption bears a heavy burden of proof. The notarial seal *449 is
thus a certification of truth, and, as will be discussed below, of legality and
3. Legal Specialization
The Latin notary is part of an integrated system of legal
specialization. The division of the legal profession into separate specialties
is common, particularly in Western Europe. [FN285] “Civil law systems have
traditionally differentiated between functions performed by law professionals.
Even in countries where a single practitioner can perform all incidents of legal
counseling and litigation, the persistence of the law_trained notaire has
maintained the division.” [FN286] Because of the special public function they
perform, notarios continue to enjoy a special place among legal
This kind of mandatory legal professional specialization will
seem quite foreign to an American. In the United States, people are used to
having only one kind of lawyer, although de facto specialization in practice is
quite common; however, there is nothing governmental about the position. The
closest common_law analogy might be the distinction between solicitors and
barristers made in the United Kingdom. “A solicitor acts as a legal adviser to
his clients and conducts legal proceedings on their behalf, instructing a
barrister to advise and to conduct cases in court when necessary.” [FN287] The
barrister, generally speaking, serves as legal expert and litigator; he “is to
act as legal consultant and as an advocate in court.” [FN288] Solicitors do not
have a mandatory monopoly over legal advice, but merely their status as
certified legal professionals. [FN289] In litigation, both solicitors and
barristers may draft pleadings. [FN290] The barrister is sometimes given the
exclusive right to appear in court, although solicitors may also appear in
certain lower courts or on appeals. [FN291] The barrister must usually be
brought in to represent a client by a solicitor, but he may also be retained by
a foreign attorney in certain cases. [FN292] Except for the foreign lawyer
exception, *450 however, the solicitor effectively acts as a barrier
between the barrister and the general public by bringing clients and barristers
together, since the barrister may not approach clients directly. [FN293]
Among the members of the European Union:
[w]hat particularly characterises the Civil Law system . . . is
the maintenance of a notarial regime which requires a wide range of formal
documents to be authenticated or notarized. This has consolidated the position
of a separate profession of Notary . . . the notarial profession has remained
quite separate from the other legal professions: its members are not permitted
either to practice in partnership with them or to practice at the same time as a
member of the other profession. [FN294]
This distinction is still true today among the Member States of
the European Union, where only Denmark, [FN295] Great Britain, and Ireland do
not have a notary system. [FN296]
Spain has the classic civil_law professional structure of
abogado, procurador, and notario; it has “a General Council of the Spanish
notariat for the country as a whole.” Belgium has the traditional civil_law
legal professions, including Latin_type notaries, organized in Regional Chambers
and a National Federation, and the “ancillary profession of ‘ huissier’ or
bailiff.” France has a classic but unusually fragmented organization for legal
professionals, which was revamped in 1992.
A large share of the . . . legal market in France is held by
the profession of Notary ( notaire). . . . They fulfill the classic role of the
Latin Notary, together with a considerable proportion of general advisory work.
Thus the bulk of legal work relating to real property transfer and to family
succession and property matters (‘ patrimoine’) is dealt with by notaries. In
some parts of France notaries also negotiate sales of real property, in effect
acting as estate agents. [FN297]
Germany has a modified Latin_type system with the Rechtsanwalt
as the main legal profession. It has a separate Notar who is akin to the Latin
notary, but specific regional variations survive thanks to historical influence.
Greece has the simvolaiographos who are in most aspects similar to Latin
notaries. Italy has the notaio who may also *451 furnish legal advice. In
the Netherlands, unlike other countries, partnerships between notaris and
advocaten are allowed. In Portugal notaries are essentially state employees.
In Spain, which has a very traditional structure, the abogado
is the general legal advisor. The procurador de los tribunales is the courtroom
advocate. Abogados are allowed to form partnerships of fewer than twenty
lawyers, all of whom must belong to the same regional colegio de abogados. One
person may be both a procurador and an abogado, provided he meets the
eligibility requirements for each profession. Notarios are a separate
Austria, the Vatican, and Switzerland are non_EU European
states which also follow the Latin notariat. [FN300] Turkey also follows the
Latin notariat. [FN301] In the United States, the Commonwealth of Puerto Rico
maintains a Latin notary system, modeled after the Spanish notario. [FN302] The
Canadian province of Quebec also follows the Latin notariat, and its current
form “is directly inspired by the French model from which it originates.”
[FN303] In Latin America, Argentina, Bolivia, Brazil, Chile, Colombia, Costa
Rica, Ecuador, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras,
Mexico, Paraguay, Per<acut_u>, and Uruguay practice the Latin notariat.
[FN304] Venezuela had a substantially Latin notariat until 1953, when dictator
General Marcos Perez Jimenez changed it to its present form, a state_run system
where notaries are public employees. [FN305] Japan has a Latin_type [FN306]
notariat, initially introduced at the end of the nineteenth century and
patterned *452 after the French model, and the profession is still in
existence today. [FN307] In Africa, colonial rulers imposed their organization
of the legal profession. Moreover, some of the newly independent African states,
including Zaire [FN308] and Senegal, [FN309] retain Latin notary professions.
South Africa also has a substantially Latin notariat. [FN310] L’Union
Internationale du Notariat Latin was founded in 1948 in order to bring together
all countries who have the Latin notary institution, and to promote the
incorporation into the different national systems of the basic characteristics
that distinguish the Latin notariat. [FN311]
The most powerful current illustration of the enduring nature
of the particular professional function reserved for the Latin notary is that
they are not included in the list of professionals entitled to provide legal
services throughout the European Union. [FN312] The European Court of Justice
has encouraged transnational practice by professionals within the Member States
through a series of decisions regarding mutual recognition of professional
diplomas. [FN313] This has caused a great deal of controversy, but,
interestingly, not with respect to notaries. Member States have sought to use
the “public service” exceptions included in articles 48 and 55 of the Treaty of
Rome to justify reserving law practice for their nationals. [FN314] But the
Court of Justice has taken a narrow view of the exception. [FN315] The Lawyers’
Services *453 Directive of 1977 (77/249/EEC) provides that “[n] otarial
functions may still be reserved to enrolled lawyers, as with Services. This is
because notaries deal with national matters of public law, especially the
transfer and ownership of immovable property within State boundaries.” [FN316]
An excellent study of the Community rules concludes:
In . . . Commission v. Belgium [Case 149/79] . . . the test
laid down was whether or not such [protected] posts were typical of public
service posts in having powers conferred on them by public law, and
responsibility for safeguarding state interests vested in the holders. There is
still some ambiguity for some posts . . . . The test, however, applies to some
activities of the legal profession. There is, it should be noted, no controversy
over the activities of notaries. Much of their work in transfer and ownership of
property is incontrovertibly a public law matter, and can therefore be reserved
for nationals. [FN317]
As illustrated by the European Union’s treatment of notaries,
despite the Latin notariat’s wide area of influence, the profession is practiced
as a fundamentally national or regional institution. For example, France, which
has “a generally benevolent view towards” foreign law firms providing legal
advice within its territory, [FN318] nonetheless prevents them from performing
duties reserved for a notaire. [FN319] Similar rules apply in other countries
that reserve the notarial profession and its duties for their nationals. [FN320]
In the United States, by contrast, although some states require residence,
citizenship is not a requirement to be a notary public. [FN321]
But, in addition to their attesting function, notaries often
serve as legal advisors to the parties. “Since the avocat is generally limited
to *454 litigation practice, it is the notaire, who fulfills many of the
counseling functions of American lawyers relating to property transfers, title,
tax decedents’ estates and business organizations.” [FN322]
Similarly, for the Spanish notario mere legal knowledge is not
enough; a formal legal education is mandatory so the notary may perform his
duties as a trusted counselor and advisor to the parties. [FN323] As a general
rule, while a notary may provide legal advice relevant to the juridical acts
performed before him, even in one’s own country, practice of law as an advocate
and as a notary is generally considered to be legally incompatible. [FN324] Even
in jurisdictions that allow notaries to practice as lawyers, they may not act as
both notary and lawyer in the same contentious matters. [FN325] Additionally,
professional associations with both notaries and other professionals are not
allowed. [FN326] The Latin notary’s work is personal and not delegable; he must
personally witness the entire notarial transaction pertaining to the document
subscribed *455 before him. [FN327] In some cases, this means that
notaries may not even practice in partnership with other notaries. [FN328] At
any rate, with respect to notarial transactions, notaries “enjoy a monopoly for
giving authenticity to acts and contracts made by individuals: no other public
officer can compete with them.” [FN329] In fact, no other person, professional
or not, may compete with the notary in the performance of his duties. The only
individual entitled to perform these duties is the notary. [FN330]
4. Unified Code_Based Legal System
The Latin notary performs his functions within a unified legal
system. “Notarial Law is the set of legal norms and doctrines that regulate the
notary function and the formal requirements of notarial documents.” [FN331]
It is a set of legal norms because Notarial Law is supplemented
by various rules included within the legal system __ specific legislation,
Civil, Registry or Mortgage, Penal and Evidentiary Codes, etc. __ and, at the
same time, it constitutes a defined and identifiable branch of the legal tree,
with its own characteristics.
Because of the very special function involved within the legal
organization of a country, in which the State delegates upon a private
individual one of the attributes of sovereignty ( i.e., the publica fides), it
is logical that Notarial Law will regulate this function. Finally, the scope of
the notarial function includes both the public document __ which contains a
juridical act __ and the notary minutes and affidavits. Regarding the document,
it includes the formal requirements that determine its validity and effect.
Notaries hold the exclusive power to authenticate two general
categories of private transactions: (1) mandatory notarial transactions
*456 ( i.e., those that the law requires be completed by public document),
and (2) voluntary notarial transactions ( i.e., those for which notarial form is
not essential, but which the parties voluntarily memorialize in notarial form to
obtain the protection of the presumptions associated therewith). [FN333]
Notarios are required to be experts in the substantive law applicable to each of
the transactions they certify. For example, a notary must take into
consideration the Civil Code’s Title on Succession, found in the Book on the
Acquisition of Property, when preparing a will; the Book on the Family,
generally entitled “About Persons,” the Title on Community Property found in the
Book on Property Rights and Modifications thereof, and the Title on the
Matrimonial Economic Regime in the Book of Obligations and Contracts, when
preparing pre_nuptial agreements; the Chapter on agency when preparing a power
of attorney; the Book of Obligations and Contracts when preparing a generic
contract; and the Books on Property and Obligations and Contracts, and the
mortgage and registry law when preparing a real estate conveyance. This is a
perfectly natural characteristic of the profession in a civil_code system, in
which laws are expected and required to interact; when the general rule is
clear, specific laws directly on point control, but when the law is not specific
or is unclear, there is a pre_determined hierarchy of secondary legislation that
must be used to fill any voids. [FN334]
The most common mandatory notarial transactions are
nonholographic wills, emancipation of minor children by public document, real
and movable property mortgages, pre_nuptial agreements, inter vivos gifts,
property sales agreements (that must be registered in order to bind third
parties), powers of attorney, contracts for transfer of receivables, mortgages
over movable property, partnership agreements, adoptions, and acknowledgments of
natural children. [FN335] Some of these transactions, together with the most
important applicable rules of which the notary must be aware, are:
Nonholographic wills. Holographic ( olografo in Spanish,
olographe in French) wills are those hand_written by the testator. [FN336]
*457 Nonholographic wills can be divided into open ( abierto in Spanish, par
acte public in French) or closed ( cerrado in Spanish, mystique in French). Open
wills must be prepared and certified by the notary and signed by the testator
and witnesses (generally three, but the French code requires only two witnesses,
in addition to the notary, or two subscribing notaries); the notary certifies
the testator’s capacity to subscribe the will. [FN337] A closed will may be
prepared by the testator or by someone else at his request. [FN338] To be
effective, the closed will must be placed in a sealed container that must be
broken in order to extract the document. It must then be brought before a notary
for the preparation of a notarial document attesting to the existence of the
will. During this act, in the presence of the notary and witnesses (generally
five, but the French code requires only two, and the Mexican code only three),
the testator must state that the document is his last will and testament. The
notary then prepares a document describing the appearance of the sealed
container. The testator, witnesses, and notary must sign the notarial document
and certify the testator’s testamentary capacity. [FN339]
The most important limitations on testamentary disposition are
the forced heirship rules that require the testator to leave most of the
inheritance to his legal heirs, [FN340] and leaves only a small proportion of
the inheritance, usually one third, for free disposition ( i.e., to *458
be left to whomever the testator wants, regardless of legal heirship, e.g.,
leaving your Bentley to the cat). [FN341] The only way to avoid forced heirship
is to disinherit the legal heirs, which is very hard to do. [FN342]
Emancipations. Generally, minors are subject to parental
authority, parens patriae or patria potestas, [FN343] and responsibility [FN344]
until they reach the age of majority. By way of exception, some civil codes
allow parents to emancipate their child ( i.e., give them the rights and
obligations of adults), by public document, after they reach a particular age.
[FN345] Emancipated minors are sometimes subject to certain limitations not
otherwise applicable to adults. [FN346]
Pre_nuptial agreements. These contracts are used to opt out of
the default legal regime, [FN347] generally community property. [FN348] Usually,
they must be made in a public notarial document unless the *459 property
involved is of little monetary value. [FN349] Normally, they must be made prior
to marriage and have no effect if the couple does not marry. [FN350]
Inter_vivos gifts of property ( donaciones, in Spanish,
donations in French). It is a “liberal act through which one person freely
disposes of a thing in favor of another who accepts it.” [FN351] For these to be
valid, they must appear in a public notarial document. [FN352] The most
important limitation on these is that a person may not receive by gift more than
they would be entitled to by inheritance. [FN353]
Conveyances or encumbrances on real property that must be
entered into the property registry in order to bind third parties. As a general
rule, an agreement among the parties is valid if the required elements for a
contract are present, regardless of its form. [FN354] However, as a practical
matter, notarial form makes proof of the agreement easy and allows the
transaction to be entered into the public registry, thus binding all third
parties. For example, A may orally agree to sell a farm to B for 100,000
pesetas; B accepts the offer and delivers the money, and A gives him the keys to
the property and allows him to occupy it. A and B have a perfectly valid
contract. However, A then sells to C, who has no knowledge of the contract with
B, and they appear before a notary, who conducts a registry search and finds
nothing regarding B, since there was no notarial document between A and B. If C
purchases by notarial deed and registers this transaction, he can evict B. B has
a claim against A, but C owns the land. [FN355]
Real estate mortgage agreements. Real estate mortgages must be
made by notarial document and registered as prerequisites *460 for their
validity; unlike other contracts, failure to follow the proper form negates the
mortgage right. [FN356]
I will now present three extended illustrations of specific
transactions that show the interaction of different laws in the notarial
transaction, in a form more common to a text or casebook. However, I think it
important to contextualize the notary’s performance within his legal system.
First, consider the Spanish Registry system:
Spain operates a registry system, whereby certain acts must be
notarized and registered at a Public Registry in order to have legal effect. The
Registry issues a public certificate of registration which constitutes prima
facie evidence of validity and prevails over all unregistered documents relating
to the same act or transaction.
(1) Public Registries. There are three Public Registries in
(a) The Land Registry (Registro de la Propiedad) is where
rights over real property are registered. Each sale of real property, and any
mortgages, liens, or other encumbrances relating thereto, must be duly
registered. There is a Land Registry in most major provincial capitals or
(b) The Commercial Registry (Registro Mercantil) is where
legally significant information relating to companies and businesses must be
registered. There is a central Commercial Registry in Madrid and others in most
(c) The Civil Registry (Registro Civil) is where personal data
regarding Spanish nationals are registered ( e.g. births, deaths, and
marriages). Most major municipalities keep a civil registry. [FN357]
Second, note how a purchase and sale of real property in France
involves the notary function at many different levels, as well as property law
provisions of the Civil Code and the registry and mortgage law.
All interests in land in France must be registered to be
binding on third parties, . . .
The transfer of title to land is effected by an authentic
document (acte authentique) executed before a Notary. One Notary may act for
both sides or each may instruct his own. The transfer must *461 deal with
all aspects of the transaction and the purchaser’s Notary has a strict liability
to obtain good title for his client. Similarly, mortgages of land must be
executed before a Notary and contained in an acte authentique. . . .
A contract for the sale of land does not need to be by acte
authentique. It usually takes the form of a unilateral contract for sale
(promesse unilaterale de vente) whereby the purchaser agrees to buy for a price
within a fixed period and the vendor agrees to sell. It is more like an option .
. . . The period, usually about three months, between signature of the contract
and completion is used by the Notary to investigate title and purge the various
rights of preemption that exist . . . .
The Notary will also obtain a statement from the local council
concerning the planning status of the property . . . [which] . . . will confirm,
inter alia, that planning permission exists for any proposed development and
states the existing use of the property. The vendor must produce an extract from
the mortgage register (etat hypothecaire) showing what, if any, registered
mortgages there are or other encumbrances such as claims for arrears of tax,
planning restrictions and such statutory matters . . . .
The fees of the Notary or notaries and expenses of the sale are
usually all paid by the purchaser, although the parties are free to share them
if they so agree. Registration duty is payable on completion in addition to the
registration, search and notaries’ fees . . . .
. . . the French courts have considerable reservations as to
the fair and honest dealings between individuals and companies, there is much
formality which is designed to avoid the transaction being subsequently called
into question. The Notary dealing with the completion will be careful to verify
the identity of the parties and ensure that they fully understand the
transaction which usually involves laboriously reading through the transfer
document which will generally be quite long. Payments will pass through the
Notary’s client account (which is guaranteed by the profession) including, in
most cases but not as a legal requirement, the deposit that was paid upon
exchange of contracts. Care should be taken to ensure that all financial
transactions are dealt with through the Notary’s account. This should include
transfers of money from outside France as it will be proof of the foreign origin
of the funds if this is later a material fact. The virtual abolition of Exchange
Control has made such considerations less critical.
Real property in France may be subject to easements and other
incorporeal rights which require registration to be binding on third parties,
they are either statutory, legal or consensual.
. . .
France has strict formal requirements in [respect to
real estate mortgages] and failure to observe them renders the mortgage void . .
. . In order to be valid, [mortgages] must:
(i) be contained in [a] notarial deed,
(ii) be signed in France,
(iii) describe the exact nature and location of the mortgaged
. . .
Mortgages in France are registered in the mortgage registry by
a special official (conservateur des hypotheques). . . . They are only binding
on third parties if properly filed and published. [FN358]
The interaction between the public registries, and the civil
code’s express preference for registered rights over unregistered ones, produces
a governmental guarantee and assurance of good title. This is the result of what
Spanish_speaking notaries call the fe p<acut_u>blica registral. [FN359]
The State provides to the parties the protection of the registry system as a
guarantee of their property rights, using the registered notarial document as
the conduit for registration.
Third, Professor Rudolph Schlesinger noted the importance of
the Latin notary profession, as part of the overall scheme of regulation of
inter vivos gifts, and concluded that it could not be duplicated in the United
States. He described the problem in his Comparative Law textbook as follows:
At common law, a promise not supported by sufficient
consideration could be made binding by the use of a seal. This ancient rule was
invoked by the New York Court of Appeals, as late as 1937 . . . .
In 1941, the New York Law Revision Commission recommended, and
the Legislature adopted, a statute reading as follows:
“Except as otherwise expressly provided by statute, the
presence or absence of a seal upon a written instrument hereafter executed shall
be without legal effect.”
[The Commission considered the prevailing formal
requirement that a promise without consideration be included in a notarized
The civil_law notary is under a duty to use the utmost care in
examining the legality, and generally the validity, of the transaction; this
includes, of course, diligent inquiry into the identity and legal capacity of
the parties. If the transaction requires approval by a third party or by a
public authority, he must so inform the parties. Generally, he is bound to
advise the parties as to the legal significance of the contemplated act,
including the tax liabilities arising therefrom. If one of the parties to the
transaction appears to be of insufficient experience, he must try to avoid
overreaching. Intentional or negligent violation of any of these duties may
subject the notary to disciplinary proceedings and to civil liability for
When this comparative information concerning the status and
functions of notaries had been submitted to the New York Law Revision Commission
and its consultant, it became clear that in a civil_law country the requirement
of a “notarial” document truly assures informed deliberation on the part of
those who enter into the transaction. In addition, the parties are prevented
from acting without legal advice, and are compelled to have the document
embodying their transaction drawn up by a properly qualified person. At the same
time, the requirement of notarial form protects the public, by making it more
difficult for agents without proper authority and for persons lacking legal
capacity to create the semblance of a valid legal transaction.
The Commission concluded that in New York the adoption of a
requirement of notarization would produce none of these beneficial effects.
Except for the name, a “notary public” in New York, and generally in the United
States, has little in common with the civil_law notary. The institution of the
notary, as developed in the civil_law world in the course of many centuries, was
found by the Commission to have no counterpart in this country. Without such an
institution, which cannot be created by a mere stroke of the legislative pen, it
is very difficult, if not impossible, to subject the execution of certain types
of instruments to formal requirements more effective and more solemn than a
simple signed writing. From this it followed, in the Commission’s view, that it
would be impracticable for the New York legislator to fashion a satisfactory
formal requirement as a substitute for the seal. [FN360]*464 Thus, the
notary is a specialized legal professional, who is required to be an expert on
the law applicable to the juridical act over which he officiates. This requires
him to become an expert in a wide range of subjects in private law and to know
the public law applicable to registration requirements. The notarial seal
constitutes a certification by the notary that the juridical act has been
properly completed. This assurance is backed up by the notary’s professional
training and status, and by the full power of the legal presumption of
authenticity and legality previously discussed.
C. Education, Admission and Territoriality
Latin notaries generally need to complete specified
post_secondary legal education, pass relevant professional examinations, and
complete a period of apprenticeship. For example, in Spain:
Admission to the profession is regulated by the State. Notaries
must be law graduates (licenciados en derecho) and they must pass a highly
competitive examination, held annually, in order to be awarded one of the
limited number of posts available. Appointments are made within a specific area,
and a notary may not practice outside the district to which he is assigned.
A recent survey of other European Union countries found the
following requirements for becoming a notary:
In [France] [t]he Notary, like the avoue, was an Officier
Ministeriel and after passing notarial examinations was appointed by the
Minister of Justice. Although a land registrar, the Notary was able to practice
privately . . . . [Notaries] are Officiers Ministeriels, appointed by the
government on the presentation of a retiring Notary, and their numbers are
therefore restricted. . . .
In [Italy] [a]pplicants [for the position of notaio] must have
the degree of Dottore in Giurisprudenza, and serve under a practicing notaio for
four years. The number of appointments is limited, and candidates must sit for a
competitive examination after training. Anyone with marks too low to secure
appointment may become a coadiutore, assistant to a notaio. He can then exercise
all the functions of a notaio but may not use the title. He may be in
partnership with, or employed by, a notaio.
In [Belgium] [t]he notaire is also important. In
Belgium, where he is also known as notaris. . . . The qualification is a Licence
en Notariat or Licenciaat in het Notariaat, which takes four years.
In [Luxembourg] [t]here are no Law Schools in the country, so
practitioners are usually qualified in France, Belgium, or Switzerland, a fact
which has influenced the development of the national law. The title of avoue has
been retained, and a practitioner whose name is entered in the Tableau des
Avocats Inscrits is then known as an avocat_avoue. Notaries have the same
qualification, but are appointed by the government as a separate profession. . .
In [The Netherlands] [t]he notaris must hold the special degree
in notarial science, the advocaat and procureur that of Meester in de Rechten.
That degree takes four to five years’ study. [FN362]
In the American continents, “Uruguay has an unlimited number of
notaries, [with] the highest level of study at universities, which issue the
title of ‘notario p<acut_u>blico’ the holders of which have the right to
practice the profession in the entire territory of the Republic”; notaries are
supervised and disciplined by the Supreme Court of Justice; the voluntary
“Asociacion de Escribanos” includes ninety_five percent of all practicing
notaries in the country. [FN363] In Puerto Rico, notaries are required to be
duly admitted lawyers, members of the Colegio de Abogados de Puerto Rico __ a
unified bar __ and to have passed the notary bar examination. [FN364] In order
to be eligible to take the notary examination “the applicant must have passed a
Notarial Law course ‘in any law school in Puerto Rico that is accredited by the
Higher Education Council or approved by the Supreme Court.” [FN365]
By contrast, although they are often described as “persons of
high moral character,” [FN366] notaries public in the United States are
generally only required to be over eighteen years old, be able to read and write
the English language, not be a convicted felon, and have filed an application
and taken an oath of office. [FN367] Notaries public are usually *466
appointed by the Governor, the state Secretary of State or Lieutenant Governor,
or by judges or county clerks. [FN368] Appointments are generally for a specific
term. [FN369] A certificate or identification card as proof *467 of
office is generally issued by the state. [FN370] Most states also require the
payment of a small application fee and the posting of a bond. [FN371] A minority
of jurisdictions require the applicant to pass an examination “to determine
[her] understanding of general legal and business terminology, and fundamental
principles and procedures.” [FN372] The notary public is not required to have
any particular substantive training or educational level in order to take the
examination (if only one). [FN373] Beyond literacy, the notary is required to
show an “elementary” knowledge of matters related to notarial practice. While
the requirement is not even close to what is expected of a lawyer, the notary is
held to some knowledge of the law, a matter that will be discussed below in the
professional liability section. However, these exams cannot really be compared
to a bar exam, as they appear to be more analogous to a driver’s license test.
[FN374] These requirements are obviously *468 quite different from those
for the Latin notary, as one might expect, given that the latter is a legal
The only reasonable comparison to a Latin notary’s admission
requirements is that of an American lawyer who must typically complete a three_
year law school degree __ after obtaining his undergraduate college degree __
and pass a state bar examination. [FN375] A survey of fifty_five United States
jurisdictions __ the fifty states, the District of Columbia and the territories
of Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands
__ disclosed the following:
1. Published Admissions Requirements: All U.S. jurisdictions
have specific written requirements for bar admissions, promulgated by the
state’s highest court, its legislature, or both. [FN376]
2. Prelegal Education: Thirty of the fifty_five jurisdictions
require some form of pre_legal education, generally the equivalent of a college
Bachelor’s degree. [FN377]
3. Legal Education: Forty_nine of the fifty_five jurisdictions
require graduation from an “ABA_approved law school;” thirteen jurisdictions
allow graduation from “in_state school[s] approved by state authority;” eight
allow graduation from “out_of_state school[s] approved by state authority;”
three allow graduation from “unapproved in_state school[s];” two from
“unapproved out_of_state school[s].” [FN378] California does not require
graduation from an ABA_approved school, and allows graduation from unapproved
state schools and correspondence schools __ the only state to do so __ and
permits, together with Wyoming, “law office study.” [FN379] It appears that
Virginia also allows a form of law office study. [FN380] Only thirteen
*469 of the fifty_five jurisdictions allow applicants to take the bar
examination prior to graduating from law school. [FN381]
4. Bar examination(s): All fifty_five jurisdictions have a bar
examination. [FN382] Only five of the fifty five jurisdictions __ Indiana, Iowa,
Louisiana, Washington, and Puerto Rico __ do not administer the Multistate Bar
Examination. [FN383] Thirty_one of the fifty_five jurisdictions require the
applicant to pass the Multistate Professional Responsibility Examination (MPRE).
[FN384] Different rules apply to lawyers and attorneys in one state seeking
admission to the bar of another. Some states also allow, under special
circumstances, “admission on motion.”
5. Moral Character: All jurisdictions have “moral character”
requirements, but only twenty_four have specific “published character and
fitness standards;” in all but seven jurisdictions a felony conviction
disqualifies the applicant from admission; six jurisdictions “grant conditional
admission to applicants with chemical dependencies.” [FN385]
6. Residency: Only thirteen of the fifty_five jurisdictions
require that the bar applicant be a resident. [FN386]
Latin notaries in general are preliminarily required to: (1) be
nationals; (2) have “good moral character,” including not having being convicted
of a crime for acts against honor, probity or good mores; and (3) to have a
proper educational degree, usually university or post_graduate. [FN387] As
discussed before, under the Law Ventose French notaires were required to: be
French citizens, over 25 years old, take an oath, provide security, prove their
good moral character and “good habits,” and have completed military service. The
French also had a six_year period of apprenticeship in an established notarial
office, which could be reduced to four if the work had been performed in “a
*470 notarial office considered superior in class to the one being sought.”
[FN388] The Spanish Notarial Law of 1862 requires the notary to have a specified
post_secondary education or to be a lawyer. [FN389] Today, notarios must have a
law degree (licenciados en derecho) or be doctors of law. [FN390] The notario
must also pass a notarial examination that includes both written and oral parts.
The first consists of drafting a notarial document, the second of drafting a
judicial opinion about Spanish civil law, and the last of answering questions on
notarial law or related substantive law subjects. [FN391] Under a 1913 law, the
Italian notary was required to obtain a law degree, practice for at least two
years, and pass an examination. [FN392] As discussed above, these requirements
have not changed; the notaio is still required to have a law degree, to complete
an apprenticeship, and to pass a competitive examination.
I would like to take a detailed look at the complex French
system. Generally, a French notaire is required to follow a professional or
academic path to become eligible for appointment. After 1990, the French notaire
on the professional track, voie professionnelle, is required to obtain a
university law degree, mCatrise en droit, or an equivalent professional degree.
Passing a special admission exam allows entry into a one_year notarial education
program. Upon completion of the course, the student must take an examination on
the substantive law applicable to notarial transactions. The candidate then
moves on to two years of professional practice as a notaire stagi’ere, a notary
in training. Upon completion of the apprenticeship, the notaire becomes a
notaire assistant, if he continues to work in a notary’s office. He only becomes
a full notary upon appointment, as discussed below. After 1992, a candidate can
become notaire salarie, a lesser_level notary employed by a full notary.
Alternatively, a notarial candidate can follow the academic track, voie
universitaire, by earning a diplome superieur du notariat from one of the
universities specially designated to provide such an education. After obtaining
a mCatrise, the candidate earns a Diplome d’Etudes Superieurs Specialisees de
Droit Notarial, which takes about nine months. Afterwards, the candidate __ who
is known as a notaire stagi’ere, like those in post_ mCatrise apprenticeships __
takes intensive courses for four semesters, subject to *471 examinations,
and prepares a written work. A final examination with a written and an oral
component is required. Then, if the written work is approved, he earns the
Diplome Superieur du Notariat and the accompanying title of ” notaire
assistant.” Professional education thus replaces the apprenticeship in a
notary’s office. By way of exception, France allows practice to substitute for
education. Thus, notarial clerks who have had a diploma for at least six years
and practiced in a notaire’s office for at least nine, or had some other form of
professional experience, are allowed to take a special examination, passage of
which entitles them to be appointed as notaries. Finally, the French allow
“parallel recruitment” ( i.e., university professors, magistrates, lawyers, and
others, because of their legal education, are not bound by the traditional
professional requirements). [FN393]
The Latin notary’s educational and admission requirements are
most nearly comparable to the pertinent requirements for bar admission in the
United States. The most important difference, in my opinion, is the level of
educational specialization required of a notary. This is accomplished through
direct or indirect means. Direct, express requirements imposing specific
notarial education, are not uncommon. This is the French voie universitaire,
discussed above. Indirect specialization requirements are imposed by the
admission examinations themselves, which are specifically designed to determine
the applicant’s ability to become a specialized legal professional. The
difference between the specific notarial education and examination, on the one
hand, and American legal education and bar examination, on the other, is not
surprising. American lawyers are trained and tested, at least at the initial
juris doctor level, as generalists. There is only one type of bar admission in
each state, and there are no subcategories of attorneys for initial admission.
Notaries, on the other hand, are appointed to a legislatively_created office.
Another significant difference is the apprenticeship requirement, and the series
of specialized exams that candidates must take to become notaire stagi’ere and
notaire assistant. The notary public, whose ranks require no particular
education beyond literacy and who are rarely even required to take an elementary
written exam, do not constitute an adequate measuring stick in this area.
But, in stark contrast to American lawyers, even after all the
education and exams the Latin notary may not have a position to occupy, because
geographic and numerical limitations of the notariat are parts *472 of
the traditional model. The Mexican system provides a clear illustration of the
two_step process for becoming a notary candidate and then an appointee. In
Mexico, the applicant must have a law degree and have completed a period of
apprenticeship in a notarial office of at least eight months. He must then apply
for and pass an examination on substantive law subjects related to notarial
practice. He then becomes a notarial candidate, eligible for another examination
when a notarial office becomes vacant. [FN394]
So_called numerus clausus rules impose limits on the absolute
number of notarial positions in a country or state, usually in proportion to
population. They are said to be intended “to preserve the freedom of choice of
inhabitants in relation to notaires, and ensure a minimum income for notaires.”
[FN395] Some Mexican states limit notary offices proportionally to population.
[FN396] In France, under the Law Ventose, the notary’s practice was limited to
an assigned region, which the State designated to ensure the official ratio of
one notary for every 6,000 inhabitants. [FN397] In Spain, notarial offices were
limited to particular regional jurisdictions by the Law of 1862; the Spaniards,
however, added a specified system of hierarchy __ based on the office’s location
and the volume of notarial business transacted there __ within which the notary
would be promoted based upon seniority and merit. [FN398] Today in France, the
number of notaries is fixed for each district of a court of first instance.
[FN399] In Belgium there is a sliding scale that avoids leaving less densely
populated areas without notaries and large population centers with too many. The
ratio ranges from a low of one notary for every 5,000 persons to a high of one
for every 9,000. [FN400] Notaries must be appointed to one of the specific
positions in order to *473 be able to practice. In France, this usually
entails nomination by the old notaire, or his surviving heirs. The candidate is
required to pay for this privilege. [FN401] If the position is a newly created
one, the candidate may have to indemnify notaries whose practice is affected by
his appointment; however, this is uncommon, as new appointments usually reflect
increases in population. Finally, the candidate’s eligibility is evaluated by
various governmental and professional bodies, and, if approved, he is appointed
by the Ministry of Justice. [FN402] In Mexico, the system is a bit different.
Notarial candidates are allowed to compete for vacant or newly created notarial
offices when they register for their second notarial exam after public
announcement of the examination. The exam consists of a written section and an
oral examination by a professional jury. The candidate with the highest score
earns the notarial office. [FN403] In Spain, the candidate’s grade on the
examination determines his eligibility for appointment to one of four categories
of notarial offices. [FN404] The candidate is designated by the Ministry of
Finally, notaires are generally limited to practicing in a
specified geographic area. This rule goes hand in hand with the numerus clausus
limitations, but has been retained even after specific notary_to_population
ratios have been eliminated, thus producing much the same effect of limiting
competition. As Table 1 illustrates, the number of notaries relative to
population is quite low, as is the ratio of notaries to lawyers. In France,
notaries used to practice within limited districts known as cantons,
“subdivisions of the arrondissements” ( i.e., subdivisions of the departement
into which the country is divided for political administration). [FN406] Swiss
notaries are ruled by Cantonal regulations. [FN407] In Mexico, each state has
its own notarial law, although *474 many are modeled after that of the
Federal District of Mexico City. [FN408] The notaries in France were sometimes
limited to subscribing documents for their own territories only, but today they
have national competence, although it is limited in special cases. The notary
must, however, maintain his office at the situs designated for that notarial
seat by the government. [FN409] As a general rule, the notary may only subscribe
documents within the national or state territory, never outside of it.
Country Number of Lawyers [FN410] Population [FN411] Number of Notaries
Belgium 9,000 + 10,016,000 1,225
France 21,952 [FN413] 57,287,000 7,500
Italy 53,000 57,904,000 4,500
Netherlands 6,500 15,112,000 1,000
Spain 60,076 [FN414] 39,118,000 2,100
Superficially, we might compare some of the prerequisites for
becoming a notary in either system, such as being an adult, having good moral
character, and being appointed by State authority. This comparison is, however,
really only skin_deep. In fact, education and bar admission requirements in
Europe and in the United States may be, within limits, more roughly comparable
to those of the Latin notary. However, what really characterizes the Latin
notariat and sets him apart from the American lawyer, and even the Latin
notary’s national counterparts, is the governmentally enforced specialization of
the profession and the limitation in the number of notarial offices and
positions. Even after all the studying, examinations, and hard work, the Latin
notary candidate may simply not have a position to occupy, and may be relegated
to an assistant’s position in someone else’s office.
D. Professional Liability
A Latin notary has written that:
[over time the Notary has become the custodian of the publica
fides and] adviser to the contracting parties, this responsibility is personal,
nondelegable and not transferable.
The Notary constructs the document acting in a very special
capacity. In a world in which everything rapidly becomes massive, this remains
one of the few instances in which a person can affirm authoritatively that
others appear before me. It is not before us. It is the ultimate individual
role. The legal world views it with respect . . . . But in order to earn this
respect it is imperative that we realize that the profession deserves the utmost
dedication from those of us who form the national notariat and from those who
aspire to become part of it. It is a jealous profession that does not admit
In our attesting function, we constantly subject our honor and
reputation to public scrutiny. Even though the disposition of Law XVI of Title
[XIX] of the Partida III, which punished a Notary guilty of making false
statements in a notarial document with amputation of the hand with which he
wrote it, and if he was a Royal Notary, with the death penalty, are no longer in
effect, those of us who carry out the public trust and those who hope to do so,
must practice every day a healthy and delicate vocation for the continuing study
of the law. [FN415]
Most criticism of the notariat profession is directed toward
the self_ disciplinary aspects of the profession [FN416] found in many countries
and its general lack of proper quality control. [FN417]
Notaries are generally subject to three types of
liability in the practice of their profession: (1) professional_ethical
liability; (2) civil liability for damages; and (3) criminal liability. [FN418]
Similarly, the notaries public are subject to removal by the authority that
appoints them, to civil liability for damages, and to criminal liability. In
France, Planiol explains:
[t]he responsibility of notaries is triple: penal, disciplinary
and civil. The first two are punitive in nature; they inflict on notaries who
are found guilty, either the penalties imposed by the general law, or other
disciplinary measures . . . . [T]he pecuniary responsibility of notaries for
damages to the injured party pertains naturally to the civil law. [FN419]
“All the duties of the notary, examined in general, can be
condensed into two categories: to be a good official and to exercise the notary
function well.” [FN420] “The civil_law notary is under a duty to use the utmost
care in examining the legality, and generally the validity, of the transaction;
this includes, of course, diligent inquiry into the identity and legal capacity
of the parties. If the Notary is not satisfied concerning any of these points,
he must refuse his services.” [FN421] My “golden rule” in the practice of
notarial law is “when in doubt, don’t do it.”
2. Disciplinary Authorities
The first type of notarial responsibility is imposed by the
professional_ethical rules applicable to the notariat, as implemented by the
relevant disciplinary authorities. Professional ethics for the Latin notary
might be defined as follows:
It is the set of rules that regulate the professional practice
of the notariat in accordance with a fundamental criterion of probity, including
herein a righteous attitude, integrity and honesty in its performance,
*477 having as a basis adequate professional development and abilities, and
concentrating in a diligent, truthful, impartial and just exercise of the
profession. Proper professional conduct can be reduced to a few words: in both
his private life and in discharging his function, the Notary must conduct
himself in a dignified and honorable manner. [FN422]
Notaries may be reprimanded, censured, fined or temporarily
suspended or both, or permanently disbarred by the authority charged with
admitting them to the profession, [FN423] or by professional organizations. In
Puerto Rico, the Supreme Court has the authority to discipline notaries either
sua sponte or upon request from the Bar Association, the Notarial Inspector __
the officer designated by the Supreme Court to supervise notaries __ or the
Solicitor General. [FN424] In Belgium “[p]rofessional discipline is regulated by
the local chamber of notaries in the area of each tribunale de premi’ere
instance.” [FN425] A similar system is followed in Luxembourg. [FN426] In
France, notaries may be disciplined by the Chamber, the professional college to
which they are required to belong, or upon complaint by a client to the Attorney
General or the President of the Chamber. [FN427] Professional bodies with
supervisory powers are common in the Latin notariat. The Spanish law of 1862
also establishes a unified, mandatory bar system for notaries. Notaries are
required to be members of the colegios (colleges) and these professional
associations have the power to discipline them. [FN428] The Minister of Justice
has the ultimate power to appoint and remove notaries. Supervised by the
Minister, the Direccion General de los Registros y del Notariado (General
Directorate of Registries and the Notariat) supervises notarial colleges and
notaries and issues notarial regulations. The colegios notariales are private
corporations to which notarial law and regulations confer the authority to
supervise and discipline notaries, at least initially. Each college has a board
of directors, which governs the organization and decides matters *478
within its competence, and a Dean who is the head of the organization.
The remedies available against notaries range from reprimands,
fines, or temporary suspensions to permanent disbarment as notaries and, if they
hold both titles, also as lawyers. In Puerto Rico, the Supreme Court, our
highest tribunal, may reprimand, fine, suspend or permanently disbar a notary.
[FN430] In France, the notaire is subject to a call to order, private and public
censure, a prohibition from repeating the offense, temporary suspension, and
removal from office. The first three sanctions may be imposed by the Chamber,
but the last three only by a tribunal de grande instance. [FN431] In Spain, the
notary may be reprimanded, fined, or involuntarily transferred to another
notarial office of equal hierarchy. [FN432] Reprimands and fines may be imposed
by the Boards of the colegios and by the Directorate; the boards are subject to
appeal to the directorate, and the latter to appeals to the Minister of Justice.
Only the Minister may impose a transfer. [FN433] The notary may only be removed
by an Honor Tribunal, composed of seven notaries selected at random. The
tribunal may absolve the notary or may recommend his removal. This decision is
sent to the State Council, which determines if the proceedings were properly
conducted. If they were, the judgment is forwarded to the Minister of Justice
for immediate execution. [FN434]
“Any violation of law or regulation, all infractions of
professional rules, any act contrary to probity, to honor or to [courtesy or
good manners] by a public officer, even related to extra_professional acts,
exposes him to disciplinary action.” [FN435] In Puerto Rico, in most cases,
notaries are subject to discipline for errors in public documents, errors in
making mandatory notifications ( e.g., notaries are required to notify the
Supreme Court within 24 hours of subscribing an open will), or error in the
facts certified by the notary. [FN436] Errors in the facts are the most serious,
since they go to the very foundation of the notarial system. In Puerto Rico,
such errors will result in suspension at a minimum, and if intentional, in
disbarment. [FN437] Examples include improperly *479 identifying a
person, failing to ask for a certificate of marriage when a notary knows one
spouse but not the other, or failing to ascertain a corporate officer’s
The notary public can be removed from office by the appointing
authority for failing to comply with the requirements of the office, misconduct,
or upon conviction for certain crimes. [FN438] The person is usually entitled to
be informed of the charges against him in writing and to a hearing. [FN439]
However, in the notary public’s case, removal does not result in the loss of
one’s livelihood. A disbarred Latin notary has lost a valuable professional
position that is very difficult to obtain, and with it, his capacity to earn a
living. In addition, serious notarial errors are likely to destroy the
professional’s future career. For example, a French notaire has been barred from
becoming an avocat after being disbarred from his position as a notary, and this
was found not to violate the European Union’s Freedom to Practice Directive.
The concept of civil liability for notaries is simple and
straight forward: they are liable for the damages they cause through acts of
professional malpractice. Planiol describes the history of the civil liability
of the French notaire as follows:
To determine . . . civil responsibility, it is necessary to
take into consideration the nature of the functions which the Notary performs
when he commits the fault of which he is accused.
. . .
As a public officer charged with the drafting of private acts,
the Notary is liable to commit errors, which can cause considerable *480
losses to his clients. In what measure is he responsible? In our ancient law the
jurisprudence was very benevolent to notaries: it often exonerated them from all
responsibility. Art. 68 of the Law of Ventose seems to be conceived in the same
spirit: it enumerates a certain number of cases of nullity which can cause the
allocation of damages, “if there is occasion for them.” The jurisprudence
interprets this article as rendering possible the allocation of an indemnity to
the parties; the Notary who has committed the nullity is not necessarily
responsible to the injured party; the courts have the power either to excuse the
Notary, or to restrain the amount of the sum due as an indemnity . . . . That
judgment established the jurisprudence. However, the courts have become more and
more severe in the appreciation of the facts; they have no doubt adopted this
course by the spectacle of so many abuses and by the inexcusable conduct of
certain notaries; but there is much complaint among notaries of the sometimes
excessive severity of the courts which tend to render impossible the exercise of
a profession already delicate and dangerous. See notably the complaints
formulated in the thesis of M. Pierre Vincent (Responsabilite de notaires en
mati’ere de testament, Paris, 1905); a judgment of the court of Angers annulled
a testament in which the Notary wrote “major” instead of “age of 21 years . . .
The question as to which principle of responsibility should be
applied to notaries is a subject of much discussion: are they responsible as
agents even for slight faults? Are they responsible for all sorts of faults by
virtue of Arts. 1382 and 1383? Or does Art. 68 of the Law of Ventose establish
the sole basis of their responsibility? . . . The jurisprudence does not appear
to take these controversies into consideration which disappear in the arbitrary
appreciation of facts.
Notaries are responsible for errors of law which they commit .
. . except where it concerns a controversial point, as to which the
jurisprudence was not fixed at the time of the drafting of the act . . . They
are equally responsible for the nullity of acts passed in their offices by
spendthrifts not assisted by their guardians . . . . [FN441]
Modern civil liability decisions involving the Latin notary
continue to take a strict view of professional malpractice by notaries. Henry
DeVries gives as an example of this strict professional responsibility the case
of a notary who “failed to advise [the purchaser] . . . that the property was
encumbered by six mortgages,” and was held *481 “jointly liable with the
seller for the damage suffered by” the purchaser. [FN442]
The notary public is also subject to civil liability. “The
standard of liability of a notary public is one common to tort law. The notary
must act as a reasonably prudent notary would act in the same situation. Thus,
the notary cannot act negligently, recklessly, or willfully and escape
liability. The burden is on the plaintiff to show that the notary acted below
his or her job’s standard of performance.” [FN443] The existence of a bond does
not affect either the notary’s or the surety’s liability. [FN444] The notary is
only responsible for diligently ascertaining the underwriter’s identity, or, on
occasion, to have personal knowledge of the underwriter’s identity.
The important difference in this case is that the Latin notary
acts as a legal expert for the parties. He is required to know the proper legal
form for the juridical act, and his failure to do so constitutes malpractice.
The Latin notary is also required to diligently ascertain certain facts. But the
notary public is held to only one duty; proper identification of the
The Latin notary is criminally liable “for the commission of
crimes related to his professional practice . . . .” [FN445] Examples of these
crimes would be:
[the] resale of previously sold property, removal or transfer
of property given as warranty, destruction or removal of mortgaged goods,
fraudulent disposal of property of a married person, crimes related to the
destruction of evidence or [preparation of] false documents, . . . revealing
privileged information, preparing or using false documents or preparing false
annotations in public registries, authorizing division or distribution of
property when the pertinent taxes have not been paid . . . . [FN446]
Some authors categorize the last crime separately as an
administrative tax matter, rather than under the general category of criminal
liability for the notary. [FN447] This distinction, however, appears to be
*482 strictly formalistic, made solely because it is the tax laws that are
violated and not the penal code.
More commonly, the notary may be subject to perjury, forgery,
and fraud charges related to intentional misstatements in public documents. In
France, for example, it is a crime to certify a false signature or to alter a
public document in any way. The destruction or suppression of a public document
is, likewise, a criminal act. [FN448] The notary public is also held criminally
liable for certifying facts they know to be false. [FN449] The only significant
difference likely to arise in this area is the Latin notary’s substantial duty
to maintain permanent records of documents and to ensure that the proper tax
stamps have been used. Otherwise, their liability for certification of false
facts is quite similar.
1. The Status of the Profession
In my introduction to this part of the Article, I referred to
Professor John Henry Merryman’s description of the Latin notary as a person of
great professional importance who is only superficially similar to the notary
public. In the pages that followed, we have seen how regulation of notaries
public in the United States is often structured in ways similar to notarial law,
with the result that it is possible to fit regulation of both trades under the
same headings. But the similarities are clearly only skin_deep; the substance
and content of these categories are quite different for the Latin notary, on the
one hand, and the notary public on the other.
I have already discussed how once appointed, notaries public
and Latin notaries may be subjected to similar kinds of liability. In fact,
civil and criminal liability may produce very similar results for both, even if
the standards for their imposition might differ. But one very large difference
distinguishes the overall scheme of professional liability for notaries and
notaries public: the stakes. At stake for the Latin notary is his title, his
livelihood, a professional status that requires very painstaking education,
professional qualification, and appointment to one of the limited number of
positions available. While this loss might be comparable to the disbarment of an
attorney, it is much harsher than the loss of position of a notary public. Even
a lawyer does not hold an office so jealously protected and carefully
Generally speaking, notarial supervision is not an
inherently judicial function, since such supervision is normally exercised by
legislative authority, or occasionally by delegated professional groups. In
addition, notaries do not traditionally take part in judicial proceedings.
Nevertheless, the notary is closely supervised __ not by the judiciary, but
rather by the State or its designees __ because a sovereign power is delegated
to him: the publica fides. There is, in effect, a special type of implied
contract between the State and the notary. While the latter is not a public
employee, the State nonetheless jealously guards the power delegated to him by
regulating admission to and practice of the profession, thereby guaranteeing the
special status of notarial acts. This special status underlies the careful
system of ensuring proper education, selection, and appointment to the
The first significant difference between the notario and the
notary public lies in the importance and effect of their delegated sovereign
power. Even though their authority to attest comes from the state in both
instances, the fundamental difference between the notarial publica fides and the
notary public’s power to certify is their respective evidentiary values. A duly
certified notarial document under the Latin system is endowed with the strongest
possible presumption of truth, and the party trying to counter this presumption
bears a virtually insurmountable burden of proof. The document subscribed by the
notary public, on the other hand, has very limited probative value. Moreover,
the notarial seal is a certification of truth, legality, and good faith. The
notaire is a specialized legal professional, who is required to be an expert in
the law applicable to the juridical act over which she officiates. This requires
her to become an expert in a wide range of subjects in private law, and to know
the public law applicable to registration requirements. The notarial seal
constitutes a certification by the notary that the juridical act has been
properly completed. The notary is thus able to be the expert advisor to the
parties because of this highly specialized education and professional
Notaries public are not really qualified as legal experts or
advisors. They are only subject to limited elementary examinations and generally
to no specific educational prerequisites beyond literacy. Superficially, one
might compare some of the other prerequisites for becoming a notary public with
those required of Latin notaries, such as being an adult, having good moral
character, and appointment by state authority. But this is as far as the
comparison can go. On the other hand, the Latin notary, like the American
lawyer, is a private legal professional who holds his office permanently while
in good *484 standing. Both are “officers” or “officials” who perform an
essential professional function in a specific process. The difference lies in
the fact that the Latin notary’s function is more administrative than judicial,
and in the express delegation of a specific governmental power __ the publica
fides __ to the notary. Even legal education and bar admission requirements in
Europe and in the United states are, within limits, generally comparable. But
the Latin notary is set apart from the American lawyer, and even his national
counterparts, because of the governmentally enforced specialization of the
profession, produced by educational or testing requirements, and the limitation
in the number of notarial offices or positions.
As illustrated in Table 1 above, there is a very limited number
of notaries, relative to other legal professionals and to population. The
limited supply of notarial services, together with the monopoly they enjoy over
particular legal transactions, places them at the top of the professional and
economic scale. “As a family counselor, and thus often an informal arbiter of
disputes, [the notaire] is, especially in smaller towns, a solidly established,
eminently respectable institution.” [FN450]
The Law of Ventose gives only a very incomplete idea of the
real role of notaries. They are not only drafters of acts, a kind of official
scribe; but they have, quite naturally, also taken a very important function,
that of unofficial counselors for families. They are consulted and their advice
is followed on financial and family matters, and questions having to do with
marriages, successions, division of property, investments, buying and selling of
houses and of land, etc. With all of this they are familiar, and know about it,
and their opinions have naturally great weight. [FN451]
And this is not something new. When the notarial school at
Bologna was established in the Middle Ages, notarial practice was known as a ”
summa artis,” hence the title of various medieval works was ” Summa Artis
Notariae.” This identified notarial work not as an art in the modern sense of
the term, but rather an important scientific function in a time when
professional skills were divided into major and minor “arts.” There were seven
major arts and judges and notaries *485 were at the very top of the list
[FN452] on the social scale. [FN453] The profession is still highly regarded in
modern times __ although it is certainly not universally loved. The notario’s
monopoly on legal transactions, along with the substantial barriers to full
entry into the profession which keep so very low the number of notaries relative
to other professions and to overall population, ensure that the notario is a
legal professional that should not be ignored. Even the European Union, a free
trade area and customs union, on the march toward internal professional
compatibility, has maintained among its member states the notarios’ national and
regional monopolies. In this world of increasing international trade, American
companies will find themselves in need of notarial services. In fact, recent
statistics show a steady increase in the number of notarial transactions in the
open_internal_trade European Union, a clear sign of the profession’s continued
relevance and vitality.
2. The Latin Notary, Counsel for the Transaction
In addition to its practical significance as a profession with
which American lawyers will have to do business, the Latin notariat can provide
a working model for implementation of new ethical rules. In his excellent
article, Professor Dzienkowski identifies three possible ethical models in
multiple_ client representation. “The Lawyer can represent (1) each client
individually, (2) the clients as a distinct group, or (3) the situation or
transaction as distinct and apart from the clients.” [FN454] He advocates using
the second category as the ethical guideline for implementation of Model Rule
2.2 and rejects the notion of the lawyer for the transaction. [FN455] The Latin
notary however, falls clearly in the third category. The Latin notary does not
represent the parties, he does not have any clients, he represents the publica
fides and the law for all the parties. [FN456]
The notary is expected to advise multiple parties, but he is
very much a counsel for the transaction. The notarial ethic is defined
substantively ( i.e., it is established by the elements of the juridical act
to *486 be subscribed by him). It is not defined in terms of duty to a
client. The Latin notary must give to the parties the correct legal advice and
the proper warnings regarding the legal consequences of their acts. He is not
obliged, however, to judge the fairness of the deal, but only its legality __
provided that he is sure that the parties fully understand the agreement into
which they are entering.
Communications between the notary and the parties to a
transaction are not privileged. [FN457] Therefore, the parties may not preclude
that notary from disclosing those conversations. In fact, although a notary may
disclose information pertaining to such conversations, the more interesting
question is whether the notary must disclose information from a previous
transaction that becomes relevant to a current transaction.
“The notary does not represent any clients. He represents the
publica fides. He is the witness par excellence who must give form to the
transaction that has been agreed to, and who must advise the parties of the
legal aspects of the instrument that they subscribe and which he authorizes.”
[FN458] The notary must be impartial and must advise all parties accurately and
equally. This obligation includes a duty to counsel parties who are not well
informed. In other words, the notary must counteract the effect of the
differences in the legal sophistication of the parties, in order to produce a
balanced, well_ informed result. The notary represents the law for all the
parties to the transaction. [FN459] In order to maintain this impartiality, the
Latin notary must not become an advocate for any of the parties in litigation
involving a transaction which he subscribed in his capacity as a notary. In
jurisdictions in which there is no blanket incompatibility between the notariat
and advocacy, since there is no privilege involved in the notarial transaction,
there is no technical conflict of interest when the notary later becomes an
advocate for one of the parties. However, the required level of impartiality
demands that the notary remain completely *487 neutral as to the parties
to a transaction. This precludes his participation as an advocate in any legal
action related to a notarial transaction subscribed before him. [FN460] I would
characterize this as a transactional incompatibility between the role of an
advocate and the duty to the notariat. To hold otherwise, the Supreme Court of
Puerto Rico has reasoned, would allow the appearance of impropriety to exist.
[FN461] The notary is further enjoined from becoming an advocate in such a case
because he is the best qualified witness to the facts of the case. [FN462]
The more difficult question is what happens with information
obtained from the parties during the course of one transaction that may be
relevant to another transaction. In the Colon_Ramery case, the Puerto Rico
Supreme Court did not draw any distinction among the five separate deeds
involved in that matter. In fact, the mortgage over movable property being
executed by the notary who subscribed it was signed five months after the first
four documents. However, all the public documents related to a single loan.
The matter becomes even more complex when information obtained
in one transaction is relevant to another agreement involving some, but not all,
of the parties to the prior public document. In his concurring opinion in the
Colon_Ramery case, Justice Negron_Garcia emphasized the notary’s obligation to
the public trust he enjoys. The notary, he pointed out, has a high duty to make
sure that the parties are well informed. [FN463] Given the absence of a
privilege, and the special nature of the notary’s obligation to attain each
party’s fair and educated consent to the transaction, I believe that the notary
is obliged to make such a disclosure. True professional impartiality and the
affirmative duties imposed on the notary make this the only logical
conclusion. *488 The notary is certainly obliged to check for relevant
information available in the public registries. [FN464]
With respect to implementation of
multiple_client_representation rules in the United States, the Latin notary can
serve as a model for the type of disclosure that must be made to the client. In
the American system, the lawyer must be responsible for explaining her job to
the client. Ethical duties are often carried out through required levels of
disclosure. The Latin notary system works because its users are aware that they
are going to a particular legal specialist, whose function as an impartial legal
counselor they understand. This is the result of both the long history of the
institution and the traditional role of legal specialization within that system.
In other words, the users of the notary’s services are aware that the notary is
a particular specialist in a system of legal specialists. They also know that
this particular specialist owes a duty to the legality of the transaction.
[FN465] The only way for an American legal professional to achieve a similar
level of duty to the transaction would be through disclosure. American attorneys
are responsible for educating clients about their role. The Latin notary
institution can provide examples of the level and content of the required
disclosure in those special cases in which American lawyers wish to rise above
advocacy by creating a absence of partisanship in the transactional context.
Although the Latin notariat has never been studied this
thoroughly in American legal scholarship, I have only scratched the surface of
the ethical issues involved. I hope to explore this area in more detail in a
future piece. My purpose in this Article has been to introduce the American
legal profession to the Latin notary, and to do so in a way that, hopefully,
does justice to this civil_law professional. With this foundation, I hope that
other authors will also look at this institution as a possible comparative model
in the future. I will continue to do so.
FNa. Assistant Professor of Law, the University of Florida
College of Law. J.D. and LL.M., Georgetown University. Professor Malavet has
been an Adjunct Professor of Law at Georgetown University Law Center and at the
Pontifical Catholic University of Puerto Rico. He is admitted to practice law in
the Commonwealth of Puerto Rico. He became a notary upon registration of his
signature, rubric, sign and seal at the Department of State of the Commonwealth
of Puerto Rico on February 13, 1990. His protocolo and book of registry of
affidavits were turned over to the custody of the Notarial Inspector upon
leaving the Commonwealth to pursue LL.M. studies.
This Article was prepared to fulfill the requirements of the
Future Law Professor Fellowship at Georgetown University Law Center during the
Fall 1993 and Spring and Fall 1994 semesters. It benefited from the discussions
during presentations I made at the Georgetown University Law Center, the Detroit
College of Law, the University of Florida College of Law, Saint John’s
University Law School, and the University of Baltimore John and Frances Angelos
Law Center. My thanks to the faculties at these institutions for their questions
and suggestions. I would like to express my appreciation to Professors James
Feinerman and John R. Schmertz for their suggestions and constant support in the
drafting of this Article. I also thank Lawrence Rosen, William Vukovich, and
Joseph Page for their thoughtful comments to earlier drafts. Finally, my sincere
gratitude to Richard Diamond, Michael Gottesman, Emma Jordan, and Elizabeth
Paterson for their timely suggestions.
FN1. Model Rule 1.7 of the Code of Professional Conduct, the
general conflict of interest provision, allows multiple client representation so
long as such representation is not ” ‘materially limited’ by the firm’s duty to
another client.” John S. Dzienkowski, Lawyers as Intermediaries: The
Representation of Multiple Clients in the Modern Legal Profession, 1992 U. Ill.
L. Rev. 741, 763 (1992). Rule 2.2 of the Model Rules of Professional Conduct,
the lawyer as intermediary provision, also allows multiple_client representation
in specified instances. Model Rules of Professional Conduct Rule 2.2 (1992).
FN2. One rare example of a substantive law specialization that
is governmentally enforced is the patent bar. See 35 U.S.C. s 31 (1994). Another
exception is the limited number of federal courts that have enacted special
admission requirements. The U.S. District Court for Puerto Rico, for example,
has an examination requirement by local rule. This kind of exception is not
determined by a substantive law specialty, but by the litigation forum.
FN3. I am aware that other professionals (accountants for
example) provide what might be described as legal advice, but that is not the
focus of this Article.
FN4. This may seem contrary to the traditional caricature of
civil_law litigation, which is usually described as “inquisitorial,” as opposed
to our “adversary” approach. I discuss this label, and the misconceptions that
can result from it, infra part I.B.3.
FN5. See 1 Enrique Gimenez_Arnau, Derecho Notarial Espanol 106
(1964). Professor Gimenez_Arnau tells us that “Latin notary” (” Notario Latino”)
refers to the profession that has found the greatest acceptance and exposure in
Latin countries; the designation, therefore, is not a reference to its origin in
FN6. Rudolph B. Schlesinger et al., Comparative Law 1 (5th ed.
1988) (footnotes omitted).
FN7. Jean_Luc Aubert, Introduction au Droit 55 (5th ed. 1992)
(P.A. Malavet trans., unofficial); see also Rene David & John E.C. Brierley,
Major Legal Systems in the World Today 2_3, 11_13 (3d ed. 1985).
FN8. David & Brierley, supra note 7, at 11_12.
FN9. For a discussion of the practical importance of
comparative law, see Hans W. Baade, Comparative Law and the Practitioner, 31 Am.
J. Comp. L. 499 (1983).
FN10. “The increasing rate of interaction across national
borders is one trend that is clearly correlated with certain aspects of growth
in law.” Robert C. Clark, Why So Many Lawyers? Are They Good or Bad?, 61 Fordham
L. Rev. 275, 288_90 (1992). “A survey appearing in the International Financial
Law Review in October 1985 listed eight law firms with more than four offices in
foreign countries, and listed over forty additional law firms with offices in at
least three different countries.” Roger J. Goebel, Professional Qualifications
and Educational Requirements for Law Practice in a Foreign Country: Bridging the
Cultural Gap, 63 Tul. L. Rev. 443, 508 (1989). See also Euromoney Publications
PLC, 3 The International Financial Law Review at vii (PLC ed., Euromoney
FN11. The value of legal services exported by U.S. firms jumped
from $147 million in 1987 to nearly $1.2 billion in 1991, while during this same
period purchases of foreign legal services by U.S. citizens increased from $55
million in 1987 to $222 million in 1991. International Trade Commission,
Industry and Trade Summary: Legal Services 2_3 (Feb. 1993). The reason for the
wide difference between purchases and exports is unclear. I have heard
disturbing anecdotal evidence of U.S. firms’ reluctance to hire foreign lawyers,
preferring instead to delegate the job of researching foreign law to
inexperienced American associates. I feel confident, however, that most firms
must have proper safeguards to ensure the accuracy and quality of their advice.
The numbers seem to indicate, however, that the bulk of legal advice related to
international transactions is being given by American lawyers. These
practitioners must be aware that their counterparts in other countries may be
notaries, and, more importantly, that notaries may be essential to concluding
their clients’ transactions abroad. Id.
FN12. Goebel, supra note 10, at 447. Professor Goebel notes
that this is not a universally accepted tenet, but concludes, in my opinion
correctly, that this is an important, even essential requirement for properly
carrying out our professional duties to our clients. Id. at 454. For a general
discussion of the importance of understanding a legal system in its proper
context, see John Henry Merryman, The Civil Law Tradition 113_15 (1969)
[hereinafter Merryman, The Civil Law Tradition]; John Henry Merryman & David
S. Clark, Comparative Law: Western European and Latin American Legal Systems
(1978) [hereinafter Merryman & Clark]; Mary Ann Glendon et al., Comparative
Legal Traditions in a Nutshell (1982); David & Brierley, supra note 7;
Konrad Zweigert & Hein Kotz, 1 Introduction to Comparative Law 68 (Tony Weir
trans., 2d ed. 1987); Schlesinger et al., supra note 6, at 1.
FN13. David & Brierley, supra note 7, at 14.
FN14. Goebel, supra note 10, at 444_54.
FN15. “A trader faces a variety of special problems in carrying
out business when that business is international. It is necessary to deal at
long distance with people whom the trader may not know personally. If a conflict
arises, the legal systems of the different parties may provide different
answers. Moreover, each may regard the other’s courts as likely to be unfair;
even if a foreign court is fair, using it may be extremely expensive.” John H.
Barton & Bart S. Fisher, International Trade and Investment 33 (1986). For a
discussion of the legal problems related to foreign investment, see The
International and Comparative Law Center of the Southwestern Legal Foundation,
Symposium, Private Investments Abroad: Problems and Solutions (1959_1993). This
collection is published in yearly volumes; currently available are those from
1959 through 1995.
FN16. See infra part III.B.4. Although it differs from the
traditional Latin notariat, the Chinese notariat, for example, is considered an
important part of “China’s new open_door external policy and increasing external
economic activities.” Tung_Pi Chen, The Chinese Notariat: An Overlooked
Cornerstone of the Legal System of the People’s Republic of China, 35 Int’l
& Comp. L.Q. 63, 64 (1986).
FN17. Compare Phillip Hamilton, The International Notary
Public, L. Inst. J. 746_47 (Aug. 1991) (“Judging by the number of documents
returned as unusable from overseas, Victorian solicitors have little idea of the
function and role of the [Latin] notary public”) with Professor Goebel’s
dismissive references to notaries in his otherwise excellent article. Goebel,
supra note 10, at 464, 489.
FN18. Exports of merchandise by the United States increased
from approximately $20.1 billion in 1961 to $227 billion in 1986. Bureau of
Economic Analysis, U.S. Dep’t of Commerce, Business Statistics: 1986, at 78
(1987) [hereinafter Business Statistics: 1986]. Imports increased from $14.7
billion to over $366 billion during the same period. Id. at 81. In 1992 exports
were $636.3 billion and imports $666.7 billion. U.S. Dep’t of Commerce, 73_4
Survey of Current Business 11 (April 1993). As of 1986 U.S. private citizens
owned over $94 billion in assets abroad and U.S. direct investment abroad
totaled $28 billion. Business Statistics: 1986, supra, at 248.
FN19. See supra notes 4, 9 .
FN20. For example, a bank lending abroad might be interested in
knowing that in many civil code jurisdictions, a real estate mortgage generally
must be included in a notarial document and be registered for the mortgage right
to exist. See infra part III.B.4. Additionally, it may be advisable to include
certain agreements in notarial documents in order to benefit from the
evidentiary value attached to such documents. See infra part III.B.2.a.
FN21. “In many Latin American countries a ‘notario
p<acut_u>blico’ is a lawyer. Because immigrants are unaware that notaries
in the United States simply certify documents [and are not legal professionals],
they may be deceived by notaries who charge high fees for services they often
cannot perform.” Gail Appleson, Unscrupulous Notaries Spur Chicago Probe, 68
A.B.A. J. 1357, 1357 (1982). The Appleson article lists instances of immigrants
being defrauded by U.S. notaries who mislead them into believing that they are
the same type of legal professionals that notaries are in the immigrants’
countries of origin. But money is not the only thing that the immigrants could
lose. “In some cases a notary may intend to help but can’t because of his lack
of legal knowledge. For example, if an alien has been here for seven years and
can prove hardship, he can petition for a suspension of deportation. ‘Notaries
don’t inform clients of proper procedure and the aliens are deported.” Id. The
article reported similar instances of abuse in Chicago and Los Angeles. Id.
FN22. See, e.g., Patrick McDonnell, Victimized Brothers Help
End Immigration Scam, L.A. Times, San Diego County Ed., Aug. 4, 1991, Metro
sec., at 1 (Latino immigrants defrauded in part by official_looking notarized
documents and by advertisements by “immigration consultants” and ” notarios
p<acut_u>blicos”); Alexander Peters, Notaries Bilking Immigrants; Aliens
Think They’re Hiring Counsel, But Buy Trouble Instead, S.F. Recorder, Feb. 1,
1991, Alien Justice sec., at 1 (“Violations of advertising and pricing laws are
readily apparent, and attorneys who handle asylum claims estimate that 50 to 80
percent of their cases have been prejudiced by the prior work of notaries and
other nonlawyers, who often hold themselves out as attorneys…. Fortunate
aliens lose only their money. In the worst cases, they can be ordered
deported.”); Constanza Montana, New Immigration Laws Cause New Set of Problems
for Aliens, Chi. Trib., Dec. 11, 1987, Chicagoland sec., at 14 (The Cook County
state’s attorney’s office “has filed two ‘class action_type’ suits against two
notaries who have committed fraud by posing as attorneys and handing out
incorrect information to immigrants.”); Bob Schwartz, Protesters Say Notaries
Are Defrauding Aliens, L.A. Times, Orange County ed., Apr. 2, 1987, Metro sec.,
part 2, at 1 (“About 75 members of an immigrants’ rights group marched in
downtown Santa Ana Wednesday evening to protest what they said are fraudulent
practices by notary publics [sic] purporting to help illegal aliens gain
amnesty. ‘Amnesty yes! Swindlers no!,’ shouted one protester in Spanish as he
marched past the office of a notary public and immigration lawyer on Broadway.
Others held signs with slogans such as ‘Down with the despicable notaries’ that
were written in Spanish. A recent investigation by the newspaper turned up
notaries who were:  charging up to 100 times what the state allows for
filling out immigration forms. State law prohibits notaries from charging more
than $10 to fill out immigration forms. Notaries visited by the newspaper
charged between $300 and $1,000 to process amnesty cases;  providing
detailed, and often erroneous, advice that experts say could destroy legitimate
amnesty cases;  practicing law without a license by preparing legal documents
and giving detailed interpretations of the law;  advertising their services
as both notaries and immigration consultants. Because the term ‘notary public’
carries such power with Hispanics, state law forbids notaries from also
advertising immigration services.”).
FN23. In Spanish, the Latin notary is referred to as “notario
p<acut_u>blico,” which would literally translate to “notary public” in
English. In order to avoid confusion, except where the context makes it
otherwise clear, I will generally make reference herein to the “Latin notary”
when referring to the civil_law professional. Alternatively, I will refer to
these professionals using their title in the language of their country of
practice. I will refer to “notary public” when discussing the common_law
FN24. See, e.g., Florida Bar v. Rodriguez, 509 So. 2d 1111
(Fla. 1987) (“The [Spanish_language newspaper] advertisement indicated ABC
General Services employed a ‘Notario Publico,’ and offered services in
immigration, corporations, divorce, and income tax.”); Florida Bar v.
Borges_Caignet, 321 So. 2d 550, 551 (Fla. 1975) (“Respondent had represented
himself to be a Notario Publico (which the witness related her understanding of
same to be ‘something with laws’), and in such position could act as her
attorney for the purpose of obtaining legal permission to remain in the United
States.”) (emphasis added); Florida Bar v. Fuentes, 190 So. 2d 748, 750_51 (Fla.
1966) (“The use of the terms ‘Notaria’, ‘Notario Publico’ and ‘Consultoria’
indicated to the Cuban clientele of the Respondent and to his clientele native
to other Spanish speaking countries, that he was an attorney authorized to
provide the services generally provided by an attorney in the State of Florida.
This was misleading and the misleading connotation was reinforced by the fact
that the Respondent engaged in rendering legal services.”); Florida Bar v.
Escobar, 322 So. 2d 25 (Fla. 1975).
FN25. See, e.g., Cal. Gov’t Code s 8214.1(f) (West 1993); Colo.
Rev. Stat. s 12_55_107(1) (1993); Fla. Stat. s 117.01(4)(e) (1993); Idaho Code s
FN26. See, e.g., Cal. Gov’t Code s 8214.1(g) (West 1995); Fla.
Stat. Ann. s 117.01(4)(f) (West 1995); Idaho Code s 51_112(d) (1995); Mo. Ann.
Stat. s 486.390(1) (Vernon 1995); N.M. Stat. Ann. s 14_12_13(A)(5) (Michie
1995); W. Va. Code s 51_1_4a (1993) (“A realtor or notary public, who prepares
legal instruments for another, is engaged in the practice of law.” 45 Op. Att’y
Gen. 488 (1953).); Wis. Stat. Ann. s 137.01 (West 1995) (“If any notary public
shall be guilty of any misconduct or neglect of duty in office he shall be
liable to the party injured for all the damages thereby sustained.”).
FN27. See, e.g., Cal. Gov’t Code s 8219.5 (West 1995)
(“Advertising services in language other than English”):
(a) Every notary public who is not an attorney who advertises
the services of a notary public in a language other than English by signs or
other means of written communication, with the exception of a single desk
plaque, shall post with such advertisement a notice in English and in the other
language which sets forth the following:
(1) This statement: I am not an attorney and, therefore, cannot
give legal advice.
(2) The fees set by statute which a notary public may
(b) The notice required by subdivision (a) shall be printed and
posted as prescribed by the Secretary of State.
(d) The Secretary of State shall suspend for a period of not
less than one year or revoke the commission of any notary public who fails to
comply with subdivision (a), provided, however, that on the third offense the
license of such notary public shall be revoked permanently. See also Nev. Rev.
Stat. s 240.085 (1993) (“Advertisements in language other than English [must]
contain notice if notary public is not an attorney.”). I have not studied,
however, the effectiveness and enforcement of these statutes. See also Office of
Professional Standards, State Bar of California, Report of the Public Protection
Comm. 8 (1989), cited in Meredith Ann Munro, Note, Deregulation of the Practice
of Law: Panacea or Placebo?, 42 Hastings L.J. 203, 221 n.91 (1990) (The authors
of the report and Ms. Munro advocate, although not with equal enthusiasm,
authorizing the lay practice of law, but both caution that special care needs to
be taken to prevent unscrupulous notaries from misleading immigrants and
non_English speakers. Id. at 244_ 45.).
FN28. See, e.g., Cal. Gov’t Code s 8219.5 (West 1995):
(c) Literal translation of the phrase “notary public” into
Spanish is prohibited. For purposes of this subdivision, “literal translation”
of a word or phrase from one language to another means the translation of a word
or phrase without regard to the true meaning of the word or phrase in the
language which is being translated.
See also Or. Rev. Stat. s 194.162(5) (1993) (“A person may not
use the term “notario publico” or any equivalent non_English term, in any
business card, advertisement, notice, sign or in any other manner that
misrepresents the authority of a notary public.”); Tex. Gov’t Code Ann. s
406.017 (West 1994); Florida Bar v. Fuentes, 190 So. 2d 748, 750_51 (Fla. 1966)
(Court enjoined the literal translation of “Notary Public” to the Spanish
“Notario P<acut_u> blico” or the use of the Spanish words “Notaria” (
i.e., a notary’s office), because they were misleading persons into believing
that the user was a legal practitioner).
FN29. For example, in Puerto Rico the Rules of Civil Procedure
provide that in order to obtain a prejudgment attachment a litigant must post a
bond sufficient to cover any possible damages to the defendant for wrongful
attachment. P.R. R. Civ. P. s 56.3, P.R. Laws Ann. tit. 32, app. III ss 40.9,
56.3. However, if the transaction is reflected in a document authenticated
before a notary, no bond has to be posted. Id. Similarly, in mortgage_execution
actions, the property may be preventively attached without the posting of a
bond. Id.; see also P.R. R. Civ. P. s 56.4, P.R. Laws Ann. tit. 32, app. III s
FN30. See infra table 1.
FN31. The phrase is generally attributed to Louis Brandeis as a
description of how he viewed himself as a lawyer in particular cases. It appears
that it was used in response to attacks on his professional ethics. The first
reported instance in which Brandeis made a call for a different approach to the
practice of law was a speech to the Harvard Ethical Society in 1905. David
Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 Vand. L. Rev.
717 (1988) (the speech was entitled ” The Opportunity in the Law”). The matter
came up again during Brandeis’ very contentious Senate Confirmation hearings for
his appointment to the Supreme Court, and that appears to be the occasion when
the phrase was coined. See Dzienkowski, supra note 1, at 742_43. For a careful
study and defense as to each charge of unethical conduct raised against Justice
Brandeis during the hearings, see John P. Frank, The Legal Ethics of Louis D.
Brandeis, 17 Stan. L. Rev. 683 (1965). But note that Frank, although generally
sympathetic to the Justice, concludes that “the greatest caution to be gained
from study of the Brandeis record is, never be ‘counsel for the situation.” Id.
at 708. Some authors quote the phrase ” lawyer for the situation,” e.g., Luban,
supra, at 721, and others use the term “counsel,” e.g., Dzienkowski, supra note
1, at 743.
FN32. Melvin I. Urofsky, Louis D. Brandeis and the Progressive
Tradition 112 (1981) cited in Dzienkowski, supra note 1, at 743 n.6.
FN33. Geoffrey C. Hazard, Jr., Ethics in the Practice of law,
58_68 (1978). Professor Hazard makes reference to “lawyer for the situation,”
rather than to “counselor.” Id.
FN34. The Rule reads:
(a) A lawyer may act as intermediary between clients if:
(1) the lawyer consults with each client concerning the
implications of the common representation, including the advantages and risks
involved, and the effect on the attorney_client privileges, and obtains each
client’s consent to the common representation;
(2) the lawyer reasonably believes that the matter can be
resolved on terms compatible with the clients’ best interests, that each client
will be able to make adequately informed decisions in the matter and that there
is little risk of material prejudice to the interests of any of the clients if
the contemplated resolution is unsuccessful; and
(3) the lawyer reasonably believes that the common
representation can be undertaken impartially and without improper effect on
other responsibilities the lawyer has to any of the clients.
(b) While acting as intermediary, the lawyer shall consult with
each client concerning the decisions to be made and the considerations relevant
in making them, so that each client can make adequately informed decisions.
(c) A lawyer shall withdraw as intermediary if any of the
clients so requests, or if any of the conditions stated in paragraph (a) is no
longer satisfied. Upon withdrawal, the lawyer shall not continue to represent
any of the clients in the matter that was the subject of the intermediation.
Model Rules of Professional Conduct Rule 2.2 (1992).
FN35. Professor Dzienkowski makes this argument in his very
thorough article. His point is that there are some situations when single_client
representation may not be necessary and becomes unduly expensive. Dzienkowski,
supra note 1, at 815_16. But Professor Dzienkowski ultimately rejects the notion
that the lawyer should be a counsel for the situation, instead advocating a
modified ethical duty that balances the interests of multiple clients. Id.
FN36. See, e.g., Roscoe Pound, The Causes of Popular
Dissatisfaction with the Administration of Justice, Paper Presented to the ABA
(Aug. 29, 1906), reprinted in 40 Am. U. L. Rev. 729 (1906).
FN37. Bailey Kuklin & Jeffrey W. Stempel, Foundations of
the Law 152_53 (1994).
FN38. See, e.g., Dzienkowski, supra note 1; Robert W. Gordon,
Corporate Law Practice as a Public Calling, 49 Md. L. Rev. 255 (1990); Luban,
supra note 31; Mark Osiel, Lawyers as Monopolists, Aristocrats and
Entrepreneurs, 103 Harv. L. Rev. 2009 (1989); Russell G. Pearce, Family Values
and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62
Fordham L. Rev. 1253, 1259 (1994); Thomas L. Shaffer, The Unique, Novel and
Unsound Adversary Ethic, 41 Vand. L. Rev. 697 (1988); Thomas L. Shaffer, The
Legal Ethics of Radical Individualism, 65 Tex. L. Rev. 963 (1987); David B.
Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 801 (1992).
FN39. Professor Thomas L. Shaffer strongly attacks the
adversary ethic. Shaffer, The Unique, Novel and Unsound Adversary Ethic, supra
note 38. I believe that abandoning the adversary ethic completely would be
unsound, dangerous, and antidemocratic. Professor Shaffer seems to argue that
there is an overriding “common good” that all lawyers should be pushing forward.
Well, that begs the question of what the public interest is and who is going to
determine it. The most important and socially constructive legal work of this
century has gone against the desires of the establishment. Would the work of the
NAACP Legal Defense Fund in desegregating schools be Kansas’ idea of the “common
good” in 1954? I think it more likely that Kansas found this work to be just as
reprehensible as Professor Shaffer finds the work of lawyers working for the
robber barons of nineteenth century America. Another example: who would
determine “the public interest” in Nazi Germany, the Nazis or perhaps a board of
law professors? The problem with morality_based systems is who picks the
morality. See, e.g., id.; Luban, supra note 31. Naturally, laws and the legal
system reflect societal moral judgments. But the system has a series of social
“escape valves” that are essential to a free society. Advocacy within the
marketplace of ideas strikes me as the most desirable system.
FN40. For a detailed discussion of legal specialization, see
infra part III.B.3.
FN41. Some observers, only marginally familiar with comparative
legal models, might find it surprising that the adversarial ethic is alive and
well in the civil_law world. In basic comparative terms, the American justice
system is usually described as “adversarial” and the civil_law system sometimes
as “inquisitorial.” See, e.g., Kuklin & Stempel, supra note 37, at 103_22.
While this oversimplified categorization can be a useful comparative tool, it
has an almost unlimited potential to be misleading. To begin with, I must take
issue with the term “inquisitorial” itself, because it conveys images of
arbitrary religious persecution and, in American culture, is almost an epithet.
But more importantly, we must be careful in understanding that while civil_law
judges may be more active by virtue of their written procedural rules, they do
not walk the streets looking for cases. The parties initiate litigation and have
the power to settle it. It is argued that this power is limited. Id. Well, it is
limited by the rules of the legality of contracts generally. A case settlement
is simply a specialized contract subject to general limitations on contracting.
I think that American commentators too often confuse the de_ emphasis of oral
presentation and cross_examination in “civilian” procedure with the total
absence of an adversary system. This is simply wrong. The civil_law lawyer and
the party she represents must plead and present her case. The duty of each
counsel is to represent her client. This is an “adversary” system, albeit one
with stricter rules of procedure and a more officially activist judge __
particularly in the area of discovery. For an illustration of this, see John H.
Langhein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823
(1985). Officially, the judge is given this authority expressly in the
procedural codes. Nevertheless, it is up for debate whether judicial practice in
the United States is all that different. The limits created by civilian judicial
practice are more often than not intended to limit the judge’s activism in
applying the law, not the parties’ rights.
FN42. Pedro Malavet_Vega, Manual de Derecho Notarial
Puertorriqueno 16 (1987).
FN43. See Urofsky, supra note 32.
FN44. Zweigert & Kotz, supra note 12, at 68. Regarding the
importance of historical studies in comparative law, see Schlesinger et al.,
supra note 6, at 39_40.
FN45. For a general discussion of the historical debate, see
Gimenez_Arnau, supra note 5, at 63_102. See also infra note 68. For a general
discussion of the importance of conducting comparative analysis of the ancient
roots of modern law, see Gabor Hamza, Comparative Law and Antiquity (Ferenc Madi
ed., Ferenc Madi & Jozsef Szabo trans., 1991).
FN46. Some commentators suggest that certain ancient scribes
are complete predecessors of the modern notary. For a discussion of this
argument, see Gimenez_Arnau, supra note 5, at 64. However, there is no clear
evidence that the earliest scribes provided legal advice, and thus they cannot
accurately be compared to the modern notary. We do find in the ancient documents
historical precedents for the modern acts and functions included within the
competence of the contemporary Latin notary. Later, we find legal advisors who
could be called the notariat’s predecessors, but who lack some the essential
attributes of the Latin notary. It is not until the late middle ages that an
official appears in Europe who can truly be called a notary in the modern sense
of the term.
FN47. For example, an “attorney at law” is a “person admitted
to practice law in his respective state” and “authorized to perform both civil
and criminal legal functions for clients, including drafting of legal documents,
giving legal advice, and representing such before courts, administrative
agencies, boards, etc.” Black’s Law Dictionary 118 (5th ed. 1979). A counselor
is a member of the legal profession who gives legal advice and handles the legal
affairs of a client, including, if necessary, appearing on his or her behalf in
civil, criminal or administrative actions and proceedings. Id. at 314.
FN48. See infra part III.B.3.
FN49. Malavet_Vega, supra note 42, at vii, quoting Rafael
N<acut_u>nez_Lago, Hechos y Derechos en el Documento P<acut_u>blico,
Partida III, Title XIX (1950) (P.A. Malavet trans., unofficial) (emphasis
FN50. A.S. Diamond, Primitive Law Past and Present 11 n.1
FN51. Eduardo Bautista Ponde, Origen e Historia del Notariado
10 (1967). For a translation of an Egyptian will dated to the Fourth Dynasty,
circa 2900_2750 b.c., see 1 Sources of Ancient and Primitive Law 665_80 (Albert
Kocourek & John H. Wigmore eds., 1979). The document was prepared by the
Priest of Ammon Horpneter, son of Smin. Id.
FN52. Ponde, supra note 51, at 12.
FN53. Gimenez_Arnau, supra note 5, at 67 (P.A. Malavet trans.,
unofficial); Ponde, supra note 51, at 10.
FN54. Gimenez_Arnau, supra note 5, at 70. Record_keeping by
scribes was of fundamental importance in ancient Egyptian society. Ponde, supra
note 51, at 7. Their work was associated with the God Thoth __ known as the
“heart of Ra” (a reference to thought, since ancient Egyptians regarded the
heart and not the brain as the organ related to thought). Id.; see also
Webster’s New Universal Unabridged Dictionary (2d ed. 1983) (“Thoth” is Greek,
“Tehuti” is the Egyptian term; it describes the “Egyptian god of learning and
magic, the measurer of time and inventor of numbers.”). The scribe was generally
a government bureaucrat, but priests and magisterial scribes could authenticate
documents using their official seal, and their underlings could do the same with
their masters’ seal. Ponde, supra note 51, at 6_9.
FN55. The reference to the correct drafting of contracts
appears to mean only that they were responsible for the accuracy of the facts,
although some knowledge of formal legal drafting, beyond mere writing, would
appear to have been required.
FN56. Diamond, supra note 50, at 15.
FN57. Ponde, supra note 51, at 15. Tablets of even older works
of codification, in this same region, still survive. William Seagle, Men of Law:
From Hammurabi to Holmes 23 (1971) (“Hammurabi was not the first king in the
land of the Two Rivers who conceived the idea of written law. Fragments of very
ancient Sumerian and Akkadian laws still survive. Hammurabi had an important
predecessor in Urukagina of Lagash…. There could have been no country of the
ancient world where resort to writing for the purpose of consummating legal
transactions was more common than in Babylonia.”); see also Diamond, supra note
50, at 14_15. However, we should not ignore the important Egyptian and Hebrew
FN58. Ponde, supra note 51, at 15. See also The Code of
Hammurabi, in 1 Sources of Ancient and Primitive Law, supra note 51, at 441_42.
(Laws 278_281, purchase of slaves). There is evidence of old and firmly
established Babylonian commercial transactions using “contract_tablets” during
the period immediately preceding and following the code. Diamond, supra note 50,
FN59. Gimenez_Arnau, supra note 5, at 66. Regarding the
importance of the scribes, see also Diamond, supra note 50, at 128_29.
FN60. Ponde, supra note 51, at 21.
FN62. Id. at 21_22. Ponde indicates that the dispute between
Jesus and the Pharisees, who were law scribes, could be seen as a dispute
regarding the jurisdiction of these legal professionals. Id. at 22. This is
probably one of the earliest recorded attacks against lawyers in human history.
It is also important to note that civil and religious society, and their laws,
were not clearly separated until much more recent times. The importance of
religious laws and their impact on daily life cannot be underestimated.
FN63. Gimenez_Arnau, supra note 5, at 68 (P.A. Malavet trans.,
FN65. These were known as the “Mnemon, Promnemon, Sympromnemon
and Hieromnemon.” Id. at 68_69.
FN66. Id. (P.A. Malavet trans., unofficial).
FN67. For a complete discussion of the Hellenic influence in
the history of the notariat, see generally Ponde, supra note 51, at 24_30. Ponde
also points out that there are some intriguing connections between the
Macedonian, Hellenic, and Egyptian cultures during the years immediately prior
to and following Alexander the Great’s reign which have yet to be fully
explored. In fact, one of the principal sources of Greek law is the “still
growing body of papyrus documents which are found especially in Egypt.” Stig
Stromholm, A Short History of Legal Thinking in the West 22 (1985). This author
points to the strong Greek influence in the science and philosophy of law, but
indicates that it is often overshadowed by the more technical and systematic
Roman codes. Id.
FN68. Compare Gimenez_Arnau, supra note 5, at 106, Bernardo
Perez_Fernandez del Castillo, Derecho Notarial 3_9 (4th ed. 1989) and Planiol, 2
Civil Law Treatise, ch. IV, s 134, 79 n.1 (English translation by the Louisiana
State Law Institute, 1959) with Michael L. Closen & G. Grant Dixon III,
Notaries Public from the Time of the Roman Empire to the United States Today,
and Tomorrow, 68 N.D. L. Rev. 873_96 (1992), Ponde, supra note 51, at 37_45;
Raymond C. Rothman, Notary Public Practices and glossary 1_2 (1978) and Lawrence
G. Greene, The Law of Notaries Public 1 (1955). See also Merryman, The Civil Law
Tradition, supra note 12, at 113_15.
FN69. Closen & Dixon, supra note 68, at 875 (footnotes
FN70. See generally Gimenez_Arnau, supra note 5, at 69.
FN71. Ponde, supra note 51, at 31.
FN72. Scriba or scribae were “clerk[s] in a court or in an
office.” Adolf Berger, Encyclopedic Dictionary of Roman Law 692 (1953).
FN73. Ph. J. Thomas, Introduction to Roman Law 7 (1986); Alan
Watson, Roman Law and Comparative Law 5_6 (1991).
FN74. Ponde, supra note 51, at 32.
FN75. Defined as “[a] person, usually a freedman or slave,
skilled in shorthand writing; in the later Empire notarius is [a synonym of]
scriba. In the imperial chancery of the later Empire there was a confidential
secretariat of the emperor, called schola notariorum, headed by the primicerius
notariorum. His deputy had the title tribunus et notarius. Both were among the
highest functionaries of the state.” Berger, supra note 72, at 599. “The word ‘
notarius’ designated in antiquity a scribe who made use of abbreviations, note.”
Planiol, supra note 68, s 134, at 79 n.1. Notarii is the plural of notarius in
Latin. Ponde, supra note 51, at 30.
FN76. Ponde, supra note 51, at 32.
FN77. This is the plural of the term; tabularius is the
singular. Initially, they were charged with tax documents. They later become
generally connected with archives and records. Berger, supra note 72, at 729.
The term is derived from the wax_covered stone tablets, tabulae ceratae, that
were used for writing, since the Romans did not start using papyrus until the
third century. Hans A. Ankun, Les Tabellions Romains, Ancetres Directs des
Notaires Modernes, in Atlas du Notariat 5, 9 (1989).
FN78. Gimenez_Arnau, supra note 5, at 70_71. Ponde adds that
they kept tax, birth and marriage records, and that they acted as provincial and
municipal treasurers and record_keepers. Ponde, supra note 51, at 33_34.
FN79. Gimenez_Arnau, supra note 5, at 71.
FN80. Id. at 69.
FN81. Tabellio is defined as a Latin term for “a scrivener
under the Roman Empire with some notarial powers.” Webster’s Third New
International Dictionary, Unabridged 2324 (1986). It is not unusual to see the
form ” tabellion,” but it appears that the correct term is tabellio, in
singular, and tabelliones in plural. Berger, supra note 72, at 727.
FN82. See Novella LXXII. Ponde, supra note 51, at 578_82.
FN83. Some scholars have indicated that the tabularii initially
provided the services of drafting and recording contracts on behalf of the
public, but that this created such demand for their services that it interfered
with their official functions. Thus was born the private professional who took
over these tasks. The tabelliones wrote documents such as contracts, wills, and
legal complaints. Ponde, supra note 51, at 34_35. However, tabularii could
substitute for tabelliones in provinces where the latter were not available.
Slowly, the distinction between the two completely disappeared. Id. at 89.
FN84. Ankun, supra note 77, at 13_14.
FN85. They were required to obtain official authorization to
perform their duties. Berger, supra note 72, at 728. They are clearly designated
in Roman codes; for example, Novella XLIV and Constitution XLV, provide that the
tabellio shall work in a statio and shall not leave the place while a document
is being prepared, upon penalty of the loss of his office. Ankun, supra note 77;
see also Ponde, supra note 51, at 52_53.
FN86. Justinian was Emperor of the Eastern Roman or Byzantine
empire from 528 to 565 a.d. Thomas, supra note 73, at 3. While his rule took
place after the fall of Emperor Romulus Augustulus in 476 a.d. __ traditionally
considered to mark the fall of the Western Roman Empire and the beginning of the
Middle Ages in Western Europe __ from a legal science standpoint, his reign
falls squarely in the realm of Roman law. For a historical chronology, see
Watson, supra note 73, at xv.
FN87. Gimenez_Arnau, supra note 5, at 71_72 (quoting Novella
LXXVI, Chap. V). See also Ankun, supra note 77, at 26_27, 44.
FN88. The preceding description of the tabellional transaction
is abstracted from Ponde, supra note 51, at 545_46. The scheda is sometimes
described as a draft of the document. See, e.g., Berger, supra note 72, at 691.
Mundum is translated as “a fair copy (original) of a document.” Id. at 589. A
publica monumenta is generally defined as public record. Id. at 586.
FN89. Gimenez_Arnau, supra note 5, at 74.
FN90. Id. at 72, 74. The insinuatio was the process of
presenting a document drafted by the tabellio to a magistrate in a public
hearing and having it registered in the public record. The document then became
a public document. Ponde, supra note 51, at 64_66.
FN91. Ponde, supra note 51, at 57_62. See also Ankun, supra
note 77, at 5.
FN92. Ankun, supra note 77, at 44.
FN93. See Berger, supra note 72, at 523, 727_28.
FN94. Id. at 727.
FN95. See Watson, supra note 73, at xv.
FN97. Ponde, supra note 51, at 82_91.
FN98. See Novella supra note 82.
FN99. Ponde, supra note 51, at 82_91. The law was included in
the Procheiron, known as “the convenient book.” Watson, supra note 73, at
FN100. Ponde, supra note 51, at 89.
FN101. Charles M. Radding, The Origins of Medieval
Jurisprudence 30 (1988). “Notarial documents also reveal a diffusion of
technical, often Roman, terminology throughout Lombardy and Tuscany.” Id. at
113. “The work of notaries in the early Middle Ages was recognizably derived
from Roman models, although their conception of their responsibilities had been
more thoroughly transformed.” Id. at 23_24.
FN102. David & Brierley, supra note 7, at 36_37.
FN103. This last one was “compiled in 654 and revised in 694 at
the Eighth and Seventeenth Councils of Toledo.” Id. at 37.
FN105. Radding, supra note 101, at 19_20, 41, 79;
Gimenez_Arnau, supra note 5, at 75.
FN106. In Visigothic Spain, for example, we find scriba
publicus and notarii publicus in legislation of the early Middle Ages. Jose Bono
y Huerta, Evolucion Medieval del Notariado en Espana y Portugal, in Atlas du
Notariat 59 (1989). It is important to remember that scribae and notarii became
synonymous in Roman usage. Berger, supra note 72, at 599.
FN107. Radding, supra note 101, at 23 n.4 (citation omitted)
(“Not all documents were prepared by notaries, of course, though there was great
pressure in that direction by the eighth and ninth centuries.”).
FN108. Id. at 24, Note Diplomatiche Sulle Carte Longobarde: I
Notari Nell’et’a Longobarda, Archivio Stor. Ital. 90 (1932).
FN109. Ponde, supra note 51, at 72, 229_32, 549_50; see also
Webster’s Third New International Dictionary, Unabridged 378 (1986).
FN110. Bono y Huerta, supra note 106, at 62.
FN111. See, e.g., Radding, supra note 101, at 30_31.
FN112. Id. (footnotes omitted). It is obvious why pre_literate
societies needed those skilled in writing to memorialize their legal
transactions. However, there are some modern carry_overs of this phenomenon.
Immigrants, literate in their native language, may need experts in the language
of their new country in order to conduct business and memorialize their
FN113. Ponde, supra note 51, at 75. The Fuero Juzgo was
originally drafted in Latin, but its Spanish translation refers to escriuanos
del rey and escriuanos del pueblo. Id. at 96, 98. “Lombard kings also had
notaries in their service who were described by various titles: notarius noster,
notarius regis, notarius regiae potestatis, and __ in the laws of Liutprand __
notarius sacri palatii.” Radding, supra note 101, at 46 (footnotes omitted).
FN114. Ponde, supra note 51, at 75.
FN115. Id. at 546.
FN116. Id. at 136_38. See also Radding, supra note 101:
As the personal scribes of the [Lombard] king, the royal
notaries had as their principal responsibility the preparation of royal
documents. The legal codes, then, were drawn up by notaries, as were a variety
of other royal diplomas…. But in an age when familiarity with the law was
rare, even the rather narrow expertise of the notaries became increasingly
valuable and the kings soon pressed them into other kinds of service. By the
eighth century, they were also occasionally employed as royal missi and in that
capacity undertook some judicial assignments on the king’s behalf. After 774,
the notaries had pretty much the same responsibilities under the Carolingians as
they had had under the Lombards. Often they accompanied royal missi, and
occasionally they held the title of missus themselves, hearing pleas on the
king’s behalf and rendering judgments.
Id. at 46 (footnotes omitted) (italics added).
FN117. Radding, supra note 101, at 53_54.
FN118. Ponde, supra note 51, at 136.
FN119. Id. at 136_38. It is also believed that the publica
fides given to notaries was influenced by the Church notaries who had originally
been appointed by the Pope to record the experiences of early martyrs. This
information was later used for canonization and, with the considerable power of
the Church, the clerical notary acquired the power to authenticate, although his
function was limited to church matters in order to avoid conflicts with the
political sovereign. Id. at 142_46.
FN120. David & Brierley, supra note 7, explain this process
as follows: As time passed, the Roman law scholarship emerged more and more as
the science of law itself; Roman law, as taught in the universities, became the
“written reason” of the Christian world. Its growing influence is even more
evident in the revised versions of the customs. In France, as in Germany, the
later reform of the customs or municipal (i.e., local) laws brings this out even
more clearly. The only exceptions were the codifications which occurred in
Norway (1683), Denmark (1687), and in Sweden and Finland (1734); exception must
also be made in the case of the orthodox Christian countries which at this time
were without universities and cut off from the rest of the Christian world.
In France, from the close of the twelfth century, royal justice
was organized at the local level through the bailiffs’ and seneschals’ courts
(bailliages, senechaussees) and, from the middle of the thirteenth century, a
specialization in judicial affairs developed within the Curia Regis. The
Parlement of Paris and, later, those of the provinces, were at one and the same
time royal courts and involved in the government of the kingdom. They were not
bound to observe either immemorial custom or Roman law. Their place in the
organization of things, linked as it was to royal prerogative, enabled them to
depart from the application of strict law and draw on other sources in order
that equity be made to prevail. French judges thus considered themselves not
bound by the university teaching tradition of Roman law. Legal scholarship and
governing the country were not seen as one and the same thing. The French
parlements, in their efforts to modernize French law, took all kinds of sources
into account. Roman law exercised its influence in some respects, in the law of
contract for example, but while it was admitted to be “written reason” it was
never taken to be a droit commun or “common law” __ that, in France, was the
role of the jurisprudence or judicial decisions of the parlements, the many
published collections of which reveal the importance that was attached to them.
And especially in the sixteenth and seventeenth centuries, their arrets de
reglement, that is to say decisions having a general authority and revealing how
the parlement would dispose of a future case, were frequent. These touched upon
matters of procedure and judicial administration for the most part but they also
settled many questions of private law. Judicial “precedents,” often cited,
played a role in France no less and probably more important than they did in
England at this time. The jurisprudence of the parlements became, in eighteenth
century France, a “customary common law” (droit commun coutumier) distinct in
many respects from Roman law.
In Germany the situation was altogether different. The breakup
of the Holy Roman Empire (Austria, Germany, the Netherlands) and the social
decline of the thirteenth century brought about a disintegration of centralized
judicial organization. The imperial court (Reichshofgericht) that remained in
place was very limited in its effectiveness because of the many immunities to
its jurisdiction conceded by the emperor; it had no fixed seat, no permanent
judges, no means of enforcing its judgments. A new imperial court, the
Reichskammergericht, set up in 1495 by the Emperor Maximilian (1493_1519), was
also only partially successful. Thus, while judicial decisions in the different
German states, in other words at a wholly local level, had some importance, a
German legal system never really evolved on the basis of decided cases __ and
the way was open for the reception of Roman law.
A “German” private law (Deutsches Privatrecht) only developed
in relation to a much more limited number of subjects than in France. Before
reception there was, however, some growth in the new law of the towns which,
especially with the organization of the Hanseatic league, had expanded
significantly. This might conceivably have produced a common German private law,
in commercial matters for example, because it was established usage for one town
to adopt the statutes of another and, when a question of their interpretation
arose, to seek consultation of the court (Oberhof) of such town. But the
practice was abandoned in the sixteenth century when the German princes, each in
his own principality, exerted a monopolistic control over judicial
administration. Moreover the Oberhofe at this time fell under the control of
In the eighteenth century a number of German writers attempted
to systematize “German” law and thereby rival the ius commune or Gemeinrecht
which Roman law then was. But this effort came too late; Roman law was solidly
implanted and the sphere of the Deutsches Privatrecht remained limited to sundry
institutions. German law as such was never “de_Romanized” and then
“nationalized” as a whole.
The positive laws closest to Roman law were to be found in
countries where the populations had always lived according to Roman law
established as a general custom and quite apart, therefore, from any reception.
Roman law thus became, quite naturally, the “common law” of Italy, Spain and
Portugal and, to some extent, of the south of France (although French legal
historians have lately realized that very little is known about the law actually
applied in the pays de droit ecrit). On the Iberian peninsula the Siete Partidas
contributed to the authority of Roman law, at the expense of local custom which
derogated from it. But the danger in these countries was that through too great
an attachment to the teachings of the post_glossators the law itself would
atrophy. A reaction, therefore, set in under the influence of the Natural Law
School against the excessively mechanical techniques of the earlier period which
had required a strict observance of the communis opinio doctorum.
Id. at 54_57 (footnotes omitted).
FN121. Gimenez_Arnau, supra note 5, at 75 (P.A. Malavet trans.,
unofficial) (emphasis added).
FN122. The Codigo de las Siete Partidas has been described as
“a work generally known as a medieval legal treatise and called ‘the first
extensive compilation of western secular law since Justinian.”‘ Marilyn Stone,
Marriage and Friendship in Medieval Spain 1 (1990), quoting Charles Sumner
Lobinger, Introduction, in Alfonso el Sabio, Las Siete Partidas lvi (1931). They
were drafted under the patronage and probably the supervision of King Alfonso X,
El Sabio, of Spain during the thirteenth century. Id. at 1_22. Some experts
believe that the Partidas did not become effective law until the 1348
Ordenamiento de Alcala, see, e.g., David & Brierley, supra note 7, at 57,
but others maintain that they “were being used extensively as a book of
reference by royal judges before 1348.” Stone, supra, at 10, citing Evelyn S.
Procter, Alfonso X of Castille Patron of Literature and Learning 51 (1980).
“Francisco Martinez Marina, author of a prominent essay about the history of
Spanish legislation, claimed that the large number of Partida manuscripts with
marginal notes in existence during the eras of Alfonso X, Sancho IV, Fernando IV
and Alfonso XI suggests that the provisions of the Siete Partidas were discussed
in universities and debated by lawyers and judges prior to 1348.” Id., citing
Martinez Marina, Ensayo historico_critico sobre la legislacion y principales
cuerpos legales de los reinos de Leon y Castilla especialmente sobre el codigo
de las Siete Partidas de don Alfonso el Sabio, in Obras Escogidas de Don
Francisco Martinez Marina 194 (1966). There is strong historical evidence that
the Spanish nobility objected to the Partidas because they appeared to limit
their power and importance, both during the reign of Alfonso X and that of
Alfonso XI, two generations later. Stone, supra, at 17. The noblemen appeared to
regard some of the objectionable rules as the product of non_ Spanish thinking
imported from the Paris and Bologna schools. Id. This may account for the debate
regarding their effective date.
FN123. “Centered at the studium of Bologna [Italy], the jurists
of the twelfth and thirteenth centuries constituted one of the principal sources
for change in medieval society.” Radding, supra note 101, at 1.
FN124. Stone, supra note 122, at 7; Radding, supra note 101, at
1. Richard Kagan describes the matter as follows:
The first university to teach law in Spain was Salamanca. By
the mid_ thirteenth century it had two law faculties, one to teach Roman law,
the other canon law, and the existence of both was recognized in the Siete
Partidas. Valladolid, the kingdom’s second university (founded in 1243) also had
two legal faculties, although, despite royal encouragement, neither of these
institutions had much of a reputation until the end of the fifteenth century.
Consequently, most students seriously interested in jurisprudence went abroad,
either to southern France, to study in Toulouse, Montpellier, or Avignon, or to
Bologna, where the creation of the Spanish College in 1369 by Cardinal Gil de
Albornoz provided both lodgings and financial support.
Richard L. Kagan, Lawsuits and Litigants in Castille,
1500_1700, at 140_41 (1981) (footnotes omitted).
FN125. Ponde, supra note 51, at 152.
FN126. Gimenez_Arnau, supra note 5, at 78.
FN127. Ponde, supra note 51, at 153.
FN128. Rolandino has become known by his first name and there
is some doubt as to his real last name because some call him Rolandino Rodulfo
and others Rolandino Passaggeri. Id. at 156.
FN129. Gimenez_Arnau, supra note 5, at 79. For a detailed
explanation of each publication, see Ponde, supra note 51, at 162_68. Ponde also
indicates that Rolandino’s work became widely read after Guttenberg made
publishing relatively easy, thus ensuring his lasting influence in the
development of the notariat. Id. at 166.
FN130. The difference appears to mirror the Roman legal
experience when the Tabularii substituted for the tabelliones in far_off
provinces that lacked the latter. In fact, Rolandino’s Oficio tabellionatus was
intended to educate isolated rural notaries about the latest developments in the
law, particularly the introduction of classical Roman law, as updated by
Justinian. Ponde, supra note 51, at 165. The term notarius was used in the
cities, and tabellio survived in the countryside, but they refer to similar
professions. It should also be pointed out that language was a problem in these
times. In the Byzantine empire it was not uncommon to find legal texts written
originally in Greek, rather than Latin. In Western Europe, vulgar Latin was
generally used, but legal scholars preferred a return to classical Latin. Id. at
FN131. Id. at 159_60.
FN132. Id. at 548.
FN133. One important question regarding the Spanish notariat is
to what extent it might have been influenced by Moslem law. Under Moslem law the
notary is an important official who acts as an official witness and reduces
important transactions to writing. See, e.g., Laurence Rosen, The Anthropology
of Justice: Law and Culture in Islamic Society 24_26, 29_30 (1994). Given the
long Moslem presence in Spain during the period in which the notariat was
developed, a connection might exist. The matter is not extensively covered by
Spanish notarial historians.
FN134. Except as otherwise indicated, the preceding part of
this paragraph has been abstracted from Gimenez_Arnau, supra note 5, at 81.
[o]rganized into “colleges” in 1502, the profession flourished
in the sixteenth century owing to the spread of written contracts and other
legal documents they themselves helped introduce. Traditionally, many agreements
among merchants, peasants, itinerant tradesmen, building workers, and many
artisans were verbal, sealed with a handshake and a shared drink of wine. But
although evidence suggests that this customary way of doing business survived
into later centuries, it was gradually displaced by sophisticated contracts
which, owing to the proliferation of printed formularies, even a humble village
escribano could prepare. Admittedly, Castille’s increasingly complex economy
required such contracts, but they might not have proliferated so rapidly were it
not for the efforts of notaries to augment their own importance, incomes, and
prestige. Kagan, supra note 124, at 139_40 (footnotes omitted).
FN136. Partida II, Title IX, Law VII; Partida III, Title XIX,
Law I (“A notary means a man who is skilled in writing, and there are two kinds
of these. First, those who draw up privileges and royal ordinances, and the
judicial decisions of the palace of the king, and others who are notaries
public, and draw up bills of sale, purchases, contracts, and agreements which
men enter into among themselves in cities and in towns.”). The original text of
the Partida law quoted above uses the word ” escriuano” an old form of the
Spanish word ” escribano” which today is considered a synonym of ” notario,” and
the translation is thus correct. The distinction between the royal notary and
the public notary dates back to the Fuero Juzgo in the seventh century. Ponde,
supra note 51, at 98_99. I have compared this English translation, which appears
in the excellent volume Las Siete Partidas (Samuel Parsons Scott trans., 1931),
with the old Spanish version appearing in Las Siete Partidas del Sabio Rey D.
Alonso el IX [sic] (Gregorio Lopez, ed., 1844). Hereinafter, I will only give
the citation to the appropriate Partida Law, citing from the English
translation, but, as here, when pertinent, I will compare the English and
FN137. E.g., Partida III, Title XVIII, Law LVI. (“How a
Conveyance Should Be Drawn Up.”)
FN138. Partida III, Title XVIII, Introd. (“Antiquity is
something which makes men forget past events. For this reason it was necessary
for writing to be invented, so that what had been formerly accomplished might
not be forgotten.”); Partida III, Title XVIII, Law I (“A written document,
admissible in evidence, is any instrument drawn up by the hand of the notary
public of a council.”).
FN139. Ponde, supra note 51, at 229_32, 549_50.
FN140. Partida III, Title XIX, Law XVI.
FN141. Ponde, supra note 51, at 550.
FN142. For a discussion of the publica fides, see infra part
FN143. Ponde, supra note 51, at 550.
FN144. Id. at 232.
FN145. Id. at 550.
FN146. Id. at 240. Ponde attributes this legislation to the
growing problem of the transfer of offices, whereby notaries would sell their
practice to someone else, protocol and all. This created a problem for the
parties in trying to track down the originals when they needed new copies of
notarial documents. Id.
FN147. Despite the very good and clear notarial legislation __
discussed above __ as one might expect, the profession was not universally the
same. I have merely concentrated on its most important aspects and in the
stronger historical precedents. Additionally, the profession suffered some highs
and lows after the heady days of the High Middle Ages and during the
Renaissance. See generally id. at 235_52. It is clear, however, that the most
important characteristics embodied by earlier legislation which I have
discussed, survived and contributed to the modern definition of the
FN148. Id. at 554.
FN149. Id. at 267 (P.A. Malavet trans., unofficial) (emphasis
FN150. This designation was somewhat misleading because the
notary practices as a liberal professional. The Italian law, discussed below,
clarified the matter. See also infra part III.B.2.
FN151. Ponde, supra note 51, at 553.
FN154. The Chambers are mandatory bar organizations which the
notaires were obliged to join. See also infra part III.C_D.
FN155. Ponde, supra note 51, at 554. The military service
requirement practically excluded women from becoming notaries, and judicial
intervention was required to admit them later. Id.
FN156. Id. at 553.
FN157. Gimenez_Arnau, supra note 5, at 100_01; Planiol, supra
note 68, s 132, at 79; Jose Guglietti, La Comision de Asuntos Americanos (CAA) y
los Notariados de America Latina, in Atlas du Notariat 334a (1989); Alain
Moreau, Le Notariat Francais, in Atlas du Notariat 109_14 (1989).
FN158. Planiol, supra note 68, s 132, at 79; Moreau, supra note
157, at 109_14.
FN159. However, given the long history of the profession and of
notary legislation throughout Europe, dating back to the Middle Ages,
particularly on the Iberian Peninsula and in Italy, Planiol’s statement that
“[t]he notariat, with the importance as we know it, is thus an institution
essentially French,” seems nothing more than a wild, and incorrect, boast.
Planiol, supra note 68, s 135 at 81. Planiol’s discussion of the notariat in
foreign countries mentions England and Germany, which have taken a different
path in this area, but totally ignores his neighbors Italy, Spain, and Portugal.
Id. at 80.
FN160. Ponde supra note 51, at 560.
FN161. Id. at 300; see also supra note 136 and accompanying
FN162. Id. at 298.
FN163. Id. at 301_02.
FN164. Id. at 556.
FN166. The State retained the power to evaluate applicants and
to oversee their practice. This latter function was performed by judicial
authorities. Id. at 306_08.
FN167. Id. at 557 (P.A. Malavet trans., unofficial).
FN168. Id. at 330.
FN169. Id. at 324.
FN170. Id. at 561.
FN171. As we might expect, this is a very controversial rule,
particularly with lawyer_advocates. Id. at 319_23.
FN172. Id. at 330_32. From here, the use of the fax and the
Internet is just a matter of time.
FN173. Id. at 319 (P.A. Malavet trans., unofficial) (emphasis
FN174. Id. at 317_19, 560. Ponde recognizes that the Italian
law is often criticized as not being sufficiently modern for the twentieth
century, but he argues that its refinements were important and that they were,
after all, the first to do so. Id. The distinction between the official and
functionary as it relates to the notarial function is discussed more fully
below. See infra part III.B.2.
FN175. The preceding part of this paragraph was abstracted from
N.P. Ready, Brooke’s Notary 1, 8_9 (11th ed. 1992) [hereinafter Brooke's
FN176. Id. at 12_14.
FN177. Id. at 14 (footnotes omitted). The use of the term
attest, based on the examples given by the author, appears to mean that they
acted as witnesses and not as holders of the publica fides.
FN178. Id. at 15.
FN180. “As a seventeenth_century reporter noted, in
ecclesiastical practice fides tabellionis aufert omnem suspicionem falsitatis
(the reliability of the tabellion eliminates any suspicion of falsity).” Id. at
FN181. Id. at 16_17. Whether this means that they had publica
fides, however, is unclear. Today, the British notary public authenticates
signatures on documents destined for use abroad and subscribes letters of
protest in international trade. But domestically a “certificate of a notary is
not received as evidence of the facts certified.” Cornelis Arij Kraan, Les Pays
Anglo_Saxons, in Atlas du Notariat 169, 173 (1989) (footnote omitted).
FN182. Brooke’s Notary, supra note 175, at 17. Although being a
notary was not incompatible with being a solicitor, attorney or proctor, these
professionals were nonetheless kept away by the apprenticeship requirement.
FN183. Id. at 1. The British notary today is discussed further
in section III below.
FN184. See generally Wesley Gilmer, Jr., Anderson’s Manual for
Notaries Public (Supp. 1979); Greene, supra note 68; Raymond C. Rothman, Customs
and Practices of Notaries Public and Digest of Notary Laws in the United States
(1966); Rothman, supra note 68, at 2_3. See also 66 C.J.S. Notaries (1990); 58
Am. Jur. 2d Notaries Public (1989).
FN185. It is interesting to note the use of the traditional
Germanic system of using an uncontested judicial proceeding to publicly record
FN186. ” Tabellion” is defined, intriguingly, as “an official
scribe or notary public esp[ecially] in England and New England in the 17th and
18th centuries.” Webster’s Third New International Dictionary, Unabridged 2324
FN187. Rothman, supra note 68, at 2_3.
FN188. See infra part III.
FN189. D. Barlow Burke, Jr. & Jefferson K. Fox, The Notaire
in North America: A Short Study of the Adaptation of a Civil Law Institution, 50
Tul. L. Rev. 318, 328 (1976).
FN190. Id. at 328_29.
FN191. Id. at 329 (footnote omitted).
FN192. See generally id.; Kraan, supra note 181, at 175_79. See
also infra part III.
FN193. Ponde, supra note 51, at 337.
FN194. Salvador Brau, La Colonizacion de Puerto Rico 28 (1969),
cited in Malavet_Vega, supra note 42, at 2_3.
FN195. Bono y Huerta, supra note 106, at 97_108; Malavet_Vega,
supra note 42, at 8.
FN196. Bono y Huerta, supra note 106, at 98. The designation
was considered so important that the vicerois of the Indies were not authorized
to give; only the Council of the Indies could award a notarial office. Id.
FN197. Mulattos and persons of mixed race were unacceptable, as
were the children and grandchildren of those “burned” by the Inquisition, and
the children of those “reconciled” by the Inquisition. Notaries could not offer
their services to Native Americans. Id. at 99.
FN198. Id. at 100.
FN199. Id. at 97_108; Malavet_Vega, supra note 42, at 8.
FN200. Gimenez_Arnau, supra note 5, at 63.
FN201. Ponde, supra note 51, at 45.
FN202. Gimenez_Arnau, supra note 5, at 80_83.
FN203. Merryman, The Civil Law Tradition, supra note 12, at
FN204. Peter W. Schroth, Legal Translation, 34 Am. J. Comp. L.
47, 48 (Supp. 1986).
FN205. Merryman, The Civil Law Tradition, supra note 12, at 2.
Some comparativists prefer the term “juristic style” rather than “legal family.”
Zweigert & Kotz, supra note 12, at 68 (“In our view the critical thing about
legal systems is their style, for the styles of individual legal systems and
groups of legal systems are each quite distinctive. The comparativist must
strive to grasp these legal styles, and to use distinctive stylistic traits as a
basis for putting legal systems into groups.”). For a general discussion of
legal “families” or “traditions” or “styles” in comparative law, see generally
David & Brierley, supra note 7, at 1_29; Glendon et al., supra note 12, at
1_ 12; Merryman, The Civil Law Tradition, supra note 12, at 1_6; Merryman &
Clark, supra note 12, at 1_23; Schlesinger et al., supra note 6, at 31_43;
Zweigert & Kotz, supra note 12, at 63_75.
FN206. Hereinafter I will refer to this organization by its
initials in Spanish and French: UINL or by its full title in those languages,
respectively, Union Internacional del Notariado Latino or L’Union Internationale
du Notariat Latin.
FN207. Principes du Notariat Latin, tit. 1, art. 1, in Atlas du
Notariat 321_ 22 (1989). I have used my own rather than the official
translation, because the latter, although functional, is not sufficiently
precise. The official translation reads that a Latin notary is “a lawyer
authorized to grant authenticity to acts and contracts which contracting parties
execute, to draw up documents which are valid and in due form of law, and advise
persons who seek his professional assistance.” Brooke’s Notary, supra note 174,
at 71 n.47 (quoting Guidelines or Fundamental Principles of the Latin Notariat
System, tit. 1, art. 1 (Annex 1 to the Statutes of the UINL (1989) (emphasis
added)). The original as it was adopted was drafted in Spanish and made
reference to ” professional del derecho” ( i.e., a legal professional, not to a
lawyer), ” especialmente habilitado” ( i.e., specially designated or empowered),
” para dar fe de los actos y contratos que otorguen o celebren las personas,” (
i.e., to attest the parties’ contracts). The original also made clear that the
documents that the notary drafts in proper legal form are those related to the
parties’ contracts, a proviso that is lost in the translation. Finally, the
original indicates that the parties may require the notary to offer the services
of his professional office, “asesorar a quienes requieran la prestacion de su
FN208. Gimenez_Arnau, supra note 5, at 132. Although the
British notary public has other functions as well, their most important task is
authentication and certification in documents related to international trade.
Brooke’s Notary, supra note 175, at 1.
FN209. Alfred E. Piombino, Notary Public Handbook: A Guide for
New York 1 (1993) (emphasis added).
FN210. Brooke’s Notary, supra note 175, at 20_21.
FN211. Merryman, The Civil Law Tradition, supra note 12, at
113_15. Professor Merryman’s description is excellent, but I have inserted in
brackets certain corrections that more accurately reflect the profession as it
is currently defined.
FN212. Ediciones Repertorio Notarial de Colegio de Escribanos
de la Provincia de Buenos Aires, Congresos y Jornadas 37 (1969), cited in
Malavet_Vega, supra note 42, at 14 (P.A. Malavet trans., unofficial).
FN213. One important exception to this rule is the socialist
approach to the profession. “As with the Chinese legal profession, the notarial
offices are state organs and individual notaries are government employees who
are paid a state salary. Therefore, unlike their western counterparts, the
applicants for notarization in China are ‘clients’ of the state and not of the
individual notary, as is also the case in the Russian system.” Tung_Pi Chen,
supra note 16, at 67. Portugal follows a similar system in which notaries are
state employees. The former Soviet Union did so as well. Prior to the fall to
Communism, the civil_law tradition was “the dominant legal tradition in most of
the countries of Eastern Europe (including the Soviet Union).” Merryman, The
Civil Law Tradition, supra note 12, at 3.
FN214. Webster’s Ninth New Collegiate Dictionary 498
FN215. Planiol, supra note 68, s 130, at 78. In France today,
the notaire is described as “a public officer charged with giving authentic
character to the acts and contracts of individuals.” Jean Yaigre &
Jean_Francois Pillebout, Droit Professionnel Notarial 1 (1991) (P.A. Malavet
FN216. Some critics of the profession suggest that this
“ambiguity” and the government’s failure to set clear standards are a disservice
to the client and to society at large. Ezra N. Suleiman, Private Power and
Centralization in France: The Notaries and the State 33_59 (1987). In a
relentlessly negative view of the French notariat, Suleiman argues that
“[n]either the notaries nor the state have ever arrived at an acceptable
understanding of where the public interests end and the private ones begin.” Id.
at 38. He feels that the transfer of offices and self_policing make the
profession too liberal, particularly for one that depends upon the delegated
power of the State for its monopoly. I think that the validity of this criticism
depends on the real effectiveness of admission requirements and professional
liability schemes, matters that I discuss below.
FN217. Enrique Gimenez_Arnau, Introduccion al Derecho Notarial
44 (1944) (hereinafter Gimenez_Arnau, Introduccion).
FN218. Henry DeVries, Civil Law and the Anglo_American Lawyer
61 (1976) (footnotes omitted). The French notaire thus falls under the general
category of ” officier ministeriel” ( i.e., a person designated “by the state to
occupy an office to which is delegated a public function.”). Suleiman, supra
note 216, at 33_34.
FN219. Ponde, supra note 51, at 319 (P.A. Malavet trans.,
unofficial) (emphasis added).
FN220. Principes du Notariat Latin, supra note 206, tit. 1,
art. 2 (P.A. Malavet trans., unofficial).
FN221. See Webster’s Ninth New Collegiate Dictionary 820
FN222. Because of the publica fides the state also imposes
numerical and territorial limitations on notaries that it does not impose on
other professions. See also infra part III.C.
FN223. See supra notes 207_08 and accompanying text.
FN224. See infra part III.C.
FN225. Frederick T. Horne, Cordery’s Law Relating to Solicitors
104, 365 (8th ed. 1988), citing Solicitors’ Act, 1974, s 50 (“Any person duly
admitted as a solicitor shall be an officer of the Supreme Court.”).
FN226. Sittingbourne and Sheerness Rly. C. v. Lawson, 2 T.L.R.
605 (1886), reprinted in Horne, supra note 225, at 104. As an officer of the
court, the solicitor may not do anything “which in any way deceives or misleads
the court. Similarly, counsel must not be instructed to make any allegation
which is without foundation or the sole purpose of which is merely to insult,
degrade or annoy the opposing party or a person giving evidence.” Id. at 273.
The solicitor is also required to appear or arrange for counsel to appear at
hearings. Id. As an officer of the court, the solicitor is liable for contempt,
for not performing his duties to the client, for professional misconduct or
malpractice, for retaining or misusing client funds, and for losses caused by
his professional conduct. Id. at 104_22.
FN227. The phrase is used, naturally, to refer to court
employees, such as judges, clerks, and marshals. See, e.g., Ill. Ann. Stat. s
705_ 205(9) (Smith_Hurd 1995); Kan. Stat. Ann. s 38_1552 (1994); Mo. Ann. Stat.
s 511.260(14) (Vernon 1993); Or. Rev. Stat. s 4117.01(8) (1993). It is used to
refer to prosecutors. See, e.g., Ala. Code s 15_13_149 (1994) ( “prosecuting
officer of the court”); Dickerson v. State, 414 So. 2d 998 (Ala. Crim. App.
1982) (prosecutor, as an attorney, was an officer of the court). Even persons
temporarily involved in judicial proceedings, such as jurors and grand jurors,
are sometimes designated officers of the court. See, e.g., Ala. Code s 12_1_8
(1994); Ill. Ann. Stat. s 725_5 112_ 6(d) (Smith_Hurd 1995) (grand jurors).
“Officers of the court” are protected from interference during judicial
proceedings, particularly in criminal and contempt statutes. See, e.g., La. Code
Civ. Proc. Ann. art. 222(1) (West 1993); V.I. Code Ann. tit. 14, s 581 (1995); W
. Va. Code s 61_5_26 (1994), State v. Little, 94 S.E. 680 (N.C. 1917). Officers
of the court are also expressly subjected to the contempt power of the court.
See, e.g., Ala. Code s 13A_13_130(a)(3) (1994); Haw. Rev. Stat. s 710_
1077(1)(c) (1994). It is also often used to impose a duty of confidentiality.
See, e.g., Ala. Code s 16_85_408(b)(1) (1994) (nondisclosure of indictments
until after defendant arrested); Miss. Code Ann. s 97_9_53 (1993); Mo. Ann.
Stat. s 545.090 (Vernon 1995).
FN228. The designation of an attorney as an officer of the
court, more often than not, is found in judicial opinions or legislative
statements of purpose and authority, and not in statutes or rules. Nevertheless,
I should point out that “officer of the court” is an often used, but seldom
defined phrase in the United States. I can tell you from personal experience
that if you conduct a “Lexis search” for the term “officer of the court,” the
system will interrupt your inquiry because it is likely to find over one
thousand citations. When I added a limitation trying to find a definition,
however, the search produced only a few cases and none directly on point. I am
concerned here with the power of the court to impose duties upon or to
discipline attorneys which is generally justified by the “officer of the court”
label, as well as the legislative power to impose certain duties upon attorneys.
See, e.g., Ohralik v. Ohio State Bar Assoc., 436 U.S. 447, reh’g denied, 439
U.S. 883 (1978) (state authority to discipline attorney as officer of the
court); Chapman v. Pacific Tel. & Tel. Co., 613 F.2d 193 (9th Cir. 1979); In
re Vann, 136 B.R. 863 (D. Colo. 1992), aff’d, 986 F.2d 1431 (10th Cir. 1993);
Lindh v. O’Hara, 325 A.2d 84 (Del. 1974) (appointment to pro bono criminal
defense); In re Fite, 228 Ala. 4, 152 So. 246 (1933) (discipline); Garlow v.
State Bar of Cal., 640 P.2d 1106 (Cal. 1982); Ex parte Piedmont 82 So. 513
(Miss. 1919); Siverstein’s Case, 236 A.2d 488 (N.H. 1967); State v. Easterling,
553 P.2d 1293 (N.M. Ct. App. 1976), Burger v. Brindle, 10 A.2d 353 (R.I. 1940);
In re Hosford, 252 N.W. 843 (S.D. 1934) (“since attorney is an officer of the
court, the power to admit applicants to practice law is judicial and not
legislative”); McWhirter v. Donaldson, 104 P. 731 (Utah 1909); V.I. Bar Assoc.
v. Dench, 2 V.I. 331 (1953); Daily Gazette Co. v. Comm. on Legal Ethics, 326
S.E.2d 705 (W.Va. 1984), rev’d, 346 S.E.2d 341 (1985); see also Ala. Code s
15_12_21 (1994) (counsel subject to appointment to represent indigent defendants
because he is an officer of the court); N.D. Cent. Code s 27_13_01(3) (1993);
Or. Rev. Stat. s 9.010(1) (1993); Kan. Sup. Ct. R. 202 (1987); La. Code Civ.
Proc. R. 371 (1993).
FN229. See, e.g., Hickman v. Taylor, 329 U.S. 495, 510_12
(1947) ( “Historically, a lawyer is an officer of the court and is bound to work
for the advancement of justice while faithfully protecting the rightful
interests of his clients…. [T]he general policy against invading the privacy
of an attorney’s course of preparation is so well recognized and so essential to
an orderly working of our system of legal procedure that a burden rests on the
one who would invade that privacy to establish adequate reasons to justify
production through a subpoena or court order.”); Powell v. Alabama, 287 U.S. 45,
73 (1932) (the trial court has power, even in the absence of statute, to appoint
an attorney for the accused; and the attorney, as an officer of the court, is
bound to serve.).
The Supreme Court also uses the reference to describe the
status and accompanying responsibilities of the members of its bar. See, e.g.,
In re Thomas A. Howard, 1985 U.S. LEXIS 2841 (July 1, 1985); In re James J.
Caplinger, 49 U.S.L.W. 3862 (May 18, 1981). The lower federal courts also have
supervisory power over attorneys based on their status as officers of the court.
In re Snyder, 472 U.S. 634 (1985).
FN230. “The title is used almost as an incantation with little
or no analysis of what the title means or why a particular result should flow
from it.” Robert J. Martineau, The Attorney as an Officer of the Court: Time to
Take the Gown off the Bar, 35 S.C. L. Rev. 541, 570_72 (1984).
FN231. Id. at 572.
FN232. 71 U.S. 333 (4 Wall. 1866).
FN233. Id. at 378_79 (footnotes omitted).
FN234. Id. at 379; see also In re Snyder, 472 U.S. 634, 642_44
FN235. In re Snyder, 472 U.S. at 642_44 (citations omitted)
(alteration in original).
FN236. See infra part III.D.1.
FN237. Yaigre & Pillebout, supra note 215, at 86.
FN238. Black’s Law Dictionary 538_39 (5th ed. 1979).
FN239. Id. at 160 (citations omitted).
FN240. “Attest” is defined as:
To bear witness to; to bear witness to a fact; to affirm to be
true or genuine; to act as a witness to; to certify; to certify to the verity of
a copy of a public document formally by signature; to make solemn declaration in
words or in writing to support a fact; to signify by subscription of his name
that the signer has witnessed the execution of the particular instrument. Also
the technical word by which, in the practice of many states, a certifying
officer gives assurance of the genuineness and correctness of a copy. Thus, an
‘attested’ copy of a document is one which has been examined and compared with
the original, with a certificate or memorandum of its correctness, signed by the
persons who have examined it.” Id. at 117 (citations omitted). Attestation of
will is defined as an “[a]ct of witnessing performance of statutory requirements
to valid execution.”
Id. (citation omitted).
FN241. Ponde, supra note 51, at 188.
FN242. Malavet_Vega, supra note 42, at 23 (P.A. Malavet trans.,
FN243. Id. at 23_24 (quoting Manuel Gonzalez Enriquez et al.,
Comprobacion notarial de hechos 8 (Ponencia presentada ante el X Congreso Int.
del Not. Latino, Montevideo, l969)).
FN244. Brooke’s Notary, supra note 175, at 65. Brooke’s
illustrates with a case in which the court held that “although a [notarial
protest under seal on a bill of exchange] may be sufficient evidence to prove
the presentment of such an instrument in foreign countries, the presentment of a
foreign bill in England must be proved in the same manner as if it were an
internal bill.” This required the notary’s testimony, the document alone was not
sufficient. Id. (citing Chesmer v. Noyes, 4 Camp. 129 (1815)).
FN245. Brooke’s Notary, supra note 175, at 60_71.
FN246. See generally 58 Am. Jur. 2d Notaries Public s 43
(1989); John H. Wigmore, Wigmore on Evidence s 2165 (seal) and ss 736(3), 1675
(certificate) (3d ed. 1974); see, e.g., United States v. Aikens, 946 F.2d 608,
614 (9th Cir. 1991) (notary certificate is an example of a certificate that is
admissible to prove facts included therein without violating confrontation
clause); Cousin v. Cousin, 192 F.2d 377, 382_83 (8th Cir. 1951) (notary
certificate presumed truthful but clear and convincing evidence by handwriting
experts proved that signature was forged); Brooks v. State, 11 S.E.2d 688, 691
(Ga. Ct. App. 1940).
FN247. Ryan v. Bank of Italy, 289 P. 863 (Cal. Ct. App. 1930)
(“[t]he purpose of the certificate of acknowledgment is to establish the
identity of such person and the genuineness of the signature attached to the
instrument, and the certificate is prima facie evidence of the truth of the
facts states therein.”) (alteration in original), cited with approval in
Transamerica Title Ins. Co. v. Green, 89 Cal. Rptr. 915, 919 (Cal. Ct. App.
1970). See also Piombino, supra note 209, at 73_76.
FN248. 58 Am. Jur. 2d Notaries Public s 45 (1989) (citations
omitted). There are statutes so providing in several states. See, e.g., Ind.
Code Ann. s 33_16_2_6 (West 1995); Mich. Comp Laws s 5.1047 (1993). It is also
the overwhelming majority rule found in judicial opinions. See, e.g., Kindred v.
State, 524 N.E.2d 279, 301_02 (Ind. 1988); Central Bank of the South v.
Dinsmore, 475 So. 2d 842, 845 (Ala. 1985); In re New Concept Realty & Dev.,
107 Idaho 711, 712, 692 P.2d 355, 356 (1984); Ardis v. State, 380 So. 2d 301,
304 (Ala. Crim. App. 1979); McMurray v. Crawford, 3 Kan. App. 2d 329, 332_36,
594 P.2d 1109, 1112_15 (1979); Furness v. Park, 98 Idaho 617, 621, 570 P.2d 854,
858 (1977); Dart Assocs. v. Rosal Meat Mkt., 331 N.Y.S.2d 853, 854_55 (1972);
Prewitt v. Prewitt, 397 Ill. 178, 73 N.E.2d 312, 315 (1947) (“evidence to
impeach a [notarial] certificate must be clear and convincing and should do more
than produce mere preponderance against the integrity of the certificate.”);
Krueger v. Dorr, 22 Ill. App.2d 513, 528, 161 N.E.2d 433, 440 (1959) (only clear
and convincing evidence, given by a disinterested party, may overcome
presumption of execution of the instrument created by the certificate); Nichols
v. Schutte, 75 N.D. 207, 26 N.W.2d 515 (1947); but see Picetti v. Orcio, 57 Nev.
52, 67 P.2d 315 (1937) (certificate is only prima facie evidence of
acknowledgment and “may be overcome by satisfactory evidence”).
FN249. The subscriber is deemed to be under oath even if they
do not “raise their hands.” It is enough that the notary recites that the proof
was sworn before her. Thompson v. Home Insurance Co., 62 N.C. App. 562, 303
S.E.2d 209, review denied, 309 N.C. 324, 307 S.E.2d 169 (1983). But this
presumption may at times be easily overcome by “some evidence to counter the
notion that the oath was actually taken.” Rogers v. Colorado, 161 Colo. 317,
325, 422 P.2d 377, 381 (1967). In this context, the “notary is not required to
vouch for the truth of the affidavits which he takes. He commits no crime in
merely administering the oath of another even if he thinks it is false any more
than does the Clerk [of the court does] when he swears a witness to a deposition
which the Clerk might have reason to believe is false.” Adams v. United States,
156 F.2d 271, 275 (5th Cir. 1946) (Waller, J., dissenting), aff’d, 330 U.S. 801
(1947). In the civil context, the notary public is liable for false statements
made in affidavits subscribed before him only upon a showing of negligence,
based on a duty of due care. See, e.g., Commercial Union Ins. v. Thomas Aitken
Constr. Co., 54 N.J. 76, 80, 253 A.2d 469, 471 (1969).
FN250. 58 Am. Jur. 2d Notaries Public ss 45, 75 (1989). See
also Kansas Reins. Co. v. Congressional Mortg. Corp., 20 F.3d 1362, 1375 (5th
Cir. 1994) (notarization is a certification by the notary only that the persons
whose signatures appear on the affidavits swore before a notary that the
statements contained in the documents were true.); cf. Red Rooster Constr. Co.
v. River Assocs., 224 Conn. 563, 579, 620 A.2d 118, 126 (1993) (not necessary to
decide whether notarial certification included the facts in the documents,
because declarant did not sign statement swearing to truth of the facts). Some
states have introduced a rebuttable presumption of authenticity of notarized
documents, but this does not change the rule as to statements contained therein.
See, e.g., Nev. Rev. Stat. s 55.165 (1993) (“Documents accompanied by a
certificate of acknowledgment of a notary public or officer authorized by law to
take acknowledgments are presumed to be authentic.”); but see In re Donald J.
Leifheit, Jr., 53 B.R. 271 (Bankr. S.D. Ohio 1985) (notary certificate could not
FN251. One possibly important exception in addition to those
discussed in the previous footnote is that the notarial certificate will be
taken as prima facie proof of certain facts in real property deed transactions.
As to deeds generally, see, e.g., 765 Ill. Ann. Stat. ch. 165, para. 5/37
(Smith_Hurd 1994) (deeds for real property must be sworn before public officer,
including, but not exclusively, a notary); Ind. Code Ann. s 32_1_2_18 (West
1995) (“To entitle any conveyance, mortgage or instrument of writing to be
recorded, it shall be acknowledged by the grantor, or proved before [certain
public officials including notaries public, judges or court clerks].”).
FN252. See generally Wigmore, supra note 246, ss 1237, 1274,
1276, 1287 & 1288. Wigmore indicates that the general rule requires
testimonial proof of attestation by the attesting witness, in our case the
notary. Id. s 1288. The origin of the rule is traced to the old Germanic mock
trials where the attester would testify about the agreements and thus put it
into the public record. Id. s 1287. See, e.g., D’Ambrosio v. D’Ambrosio, No.
3097, 19 Phila. 347, 1989 Phila. Cty. Rptr. LEXIS 35 (Aug. 15, 1989).
FN253. Yaigre & Pillebout, supra note 215, at 3 (P.A.
Malavet trans., unofficial).
FN254. Brooke’s Notary, supra note 175, at 71, citing Code
Civil [C. Civ.] (Fr.) arts. 1317, 1319; Ordinance No. 45_2590 of 2.11.1945, art.
1; law of 25 Ventose year XI, art. 19; C. civ. (Belg.) arts. 1317, 1319; law of
25 ventose year XI, arts. 1, 19 (Belg.); Italy C.c. (Italy), arts. 2699, 2700;
Notarial Law (1913), art. 1 (Italy); C. Civ. (Spain) arts. 1216, 1218; Civil
Procedure Law, art. 596 (Spain); Notarial Law (1862), art. 1 (Spain); Notarial
Regulations (1944), arts. 1, 2 (Spain); Civil Procedure Ordinance, ZPO, arts.
415(1), 418(1), 437 (F.R.G.); Notarial Ordinance (1961), art. 1 (F.R.G.).
FN255. Law 25 Ventose art. 19, C. civ. art . 1317, notes
(Dalloz 1994) (Fr.).
FN256. C. civ. arts. 1216, 1218 (Civitas 1991) (Spain).
FN257. Perez_Fernandez del Castillo, supra note 68, at
FN258. Malavet_Vega, supra note 42, at 74. The general rule is
that a contract is formed once there is a meeting of the minds among the parties
__ no particular form is required. Id. But the notarial document, as a practical
matter, makes evidentiary matters easier.
FN259. Principes du Notariat Latin, supra note 206, tit. 2,
FN260. Jaime Guasp, I Derecho Procesal Civil 396 (1968).
FN261. See, e.g., Principes du Notariat Latin, supra note 207,
tit. 2, art. 10 (the presumptions of article 9 “may only be contradicted by
judicial proceedings.”) (P.A. Malavet trans., unofficial). But the notarial
document may suffer from certain defects that might cause its inadmissibility
into a public registry, thus depriving it of effect.
FN262. Guasp, supra note 260, at 404_05.
FN263. See, e.g., L.E.J. art. 597 (Spain), C. Pr. Civ. arts.
303_16 (Fr.); Yaigre & Pillebout, supra note 215, at 86_87; Codigo Civil de
Puerto Rico art. 1172 (Equity 1984, supp. 1993); Hernandez v. Fernandez, 17 P.R.
Dec. 112 (1911); Finlay v. Finlay Brothers, 8 P.R.R. 389 (1905). In France, the
challenger who fails to disprove the presumption faces civil action in addition
to the damages and interest that can be claimed in the original proceedings.
Yaigre & Pillebout, supra note 215, at 87.
FN264. See, e.g., Yaigre & Pillebout, supra note 215, at
FN265. A notarial minute, known in Spanish as an acta, “is the
public document that contains the exact narration of a fact capable of having
influence in the rights of the private parties, drafted by a Notary upon request
of a person or of his own initiative.” Malavet_Vega, supra note 42, at 102_03
(P.A. Malavet trans., unofficial). It will include “facts and circumstances that
the Notary personally witnesses or of which he is personally aware, and which by
their nature do not constitute a contract or juridical act.” P.R. Notarial Law,
1987 P.R. Laws 75, art. 30 (P.A. Malavet trans., unofficial). It is a public
document that must be treated in the same manner as any other public deed. I
have seen them used, for example, to certify the contents of safety deposit
boxes opened pursuant to a court order or to certify a translation of a public
document. They can also be used to correct minor errors in form in prior public
documents. An example of such a correction is an acta used to provide the
surnames of both parents when they are left out of the original public document.
Malavet_Vega, supra note 42, at 105_06. Puerto Rico notarial law, and the laws
of most Latin American countries, require the parties to use both their parents’
surnames in official documents. This sometimes causes problems in the United
States because Americans incorrectly take the mother’s surname, which is written
after the father’s, as the person’s last name, and records are incorrectly
FN266. Malavet_Vega, supra note 42, at 117 (P.A. Malavet
FN267. Under Puerto Rico law, for example, a notary is obliged
to notify the Supreme Court registry of powers of attorney within 72 hours of
its subscription, Art. 76 of the Notarial Law and the Law of Registry of Powers
of Attorney of 1937, P.R. Laws Ann. tit. 4, s 922 (1937), and of the
subscription of a will within 24 hours after its subscription. Id. art. 73. The
notice must be delivered personally to the registries or by certified mail,
return receipt requested. Id.
FN268. See generally Malavet_Vega, supra note 42, at
FN269. See infra part III.C.
FN270. For example, in France, the notary retains documents in
his notarial office until they are one hundred years old. They must then be
turned over to the public archives. Yaigre & Pillebout, supra note 215, at
FN271. Malavet_Vega, supra note 42, at 121_22 (footnotes
FN272. Ponde, supra note 51, at 554.
FN273. Id. at 557 (P.A. Malavet trans., unofficial).
FN274. Malavet_Vega, supra note 42, at 121_22. There is a
famous war story among practitioners in Puerto Rico to the effect that a notary
kicked the notarial inspector out of his office, claiming that a search warrant
was required to inspect his protocolo. The notary was promptly suspended. I have
been unable to find a case citation for this fact pattern, but not all
disciplinary decisions are published.
FN275. Id. at 121.
FN276. Id. The one exception to this rule is that the notary
may divulge the admission of paternity of a “natural child.” Id.
FN278. See, e.g., Yaigre & Pillebout, supra note 215, at
FN279. See, e.g., In re Ramos Melendez y Cabiya Ortiz, 120 P.R.
Dec. 796 (1988) (notary who failed to make his own title search, relying instead
on a three_month_old certification, violated professional ethics standards).
FN280. Malavet_Vega, supra note 42, at 131_32 (P.A. Malavet
trans., unofficial) (emphasis omitted).
FN281. Id. at 138_39.
FN282. Id. at 131.
FN283. Id. at 139.
FN284. Id. at 133 (P.A. Malavet trans., unofficial). The French
system of copies is somewhat different. See Planiol, supra note 68, s 149, at
FN285. See generally Hamish Adamson, Free Movement of Lawyers
FN286. DeVries, supra note 218, at 54.
FN287. Stephen O’Malley, European Civil Practice 1456
FN288. Id. at 1458. Barristers, who are increasingly
specialists in particular fields of law, advise solicitors and present cases in
court. Zahd Yaqub, The Barristers in England and Wales, in The Legal Profession
in the New Europe 300, 303 (Allan Tyrell & Zahd Yaqub eds., 1993).
FN289. Leslie Lawrenson, Solicitors in England and Wales, in
The Legal Profession in the New Europe, supra note 288, at 325.
FN290. Yaqub, supra note 288, at 311.
FN292. O’Malley, supra note 287, at 1458_59.
FN293. Lawrenson, supra note 289, at 317.
FN294. Adamson, supra note 285, at 7_8 (emphasis added).
FN295. “Denmark has the distinction of being the only Member
State with a single legal profession (title: advokat).” Id. at 12.
FN296. Id. at 17_18 (Ireland), 23_24 (Great Britain).
FN297. Id. at 11_15.
FN298. This paragraph, including citations, has been abstracted
from id. at 11_ 23 (emphasis added).
FN299. Luis Algar_Calderon, The Legal Profession in Spain, in
The Legal Profession in the New Europe, supra note 288, at 281_99.
FN300. Gimenez_Arnau, supra note 5, at 111.
FN301. See S. Halis Tokdemir, La Situation Juridique des
Notaires et des Notariats en Turquie, in Atlas du Notariat 149_53 (1989).
FN302. Malavet_Vega, supra note 42, at 2_12; Guglietti, supra
note 157, at 334g_h.
FN303. Julien S. Mackay, Histoire du Notariat au Canada, in
Atlas du Notariat 184 (1989) (P.A. Malavet trans., unofficial).
FN304. Gimenez_Arnau, supra note 5, at 112; Guglietti, supra
note 157, at 334a_ fk.
FN305. Guglietti, supra note 157, at 334f_g. Generally
speaking, only in totalitarian regimes __ left and right_wing __ do we find the
Latin notary as a state employee.
FN306. I indicated above that the term “Latin notariat” is a
reference to the profession’s acceptance in Latin countries, which Japan, of
course, is not (their love of tango, salsa, and Latin trio music
notwithstanding). However, the term is generally accepted and used, mostly
because of the influence of the International Union, even by non_Latin countries
which follow the system. It reflects a recognition of the origin of the
profession in Latin countries, even though its current extension across national
boundaries is much wider.
FN307. See L’Association Nationale des Notaires du Japon, Le
Notariat Japonais, in Atlas du Notariat 207 (1989).
FN308. Following the Belgian model, Zaire retained the notary
system after independence in 1966. Georges Ntumba_Kashala, L’Organisation du
Notariat au Zaire, 1 Patrimoine X: Notariats d’Europe du Quebec et du Zaire
FN309. Daniel Sedar Senghor, Etude Historique et Structures
Contemporaines du Notariat d’Afrique Noire d’Expression Francophone, in Atlas du
Notariat 195 (1989).
FN310. See M.J. Lowe et al., Elliott: The South African Notary
(6th ed. 1987).
FN311. Guglietti, supra note 157, at 334a; see also Anton
Gerard Lubbers, Histoire de l’Union Internationale du Notariat Latin 1948_1977,
in Atlas du Notariat 265 (1989); Federico Guasti, Activites et Developpement de
l’Union Internationale du Notariat Latin au Cours de la Periode 1978_1988, in
Atlas du Notariat 301 (1989).
FN312. Goebel, supra note 10, at 489; To Facilitate the
Effective Exercise by Lawyers of Freedom to Provide Legal Services, Council
Directive 77/249, 1977 O.J. (L 78) 17.
FN313. See generally Josephine Steiner, Textbook on EEC Law
184_202 (2d ed. 1990) and Linda S. Spedding, Transnational Legal Practice in the
EEC and The United States 137_71 (1987).
FN314. Article 48(4) allows Member States to impose a
restriction “which prevents an employed worker from taking up ‘employment in the
public service [,]” and article 55 one which “excludes self_employed persons
from ‘activities connected, even occasionally, with the exercise of official
authority.” Spedding, supra note 313, at 168_69.
FN315. In Sotgiu, case 2/74, the court, interpreting article
48(4) the same way it interpreted article 55, wrote that “the exceptions made by
article 48(4) cannot have a scope going beyond the aim in view of which the
derogation was intended.” See id. at 171.
FN316. Id. at 193. Although the contract to transfer the land
is a private transaction, it cannot be separated from the public law function of
the publica fides or of property registration. See also supra part III.A.2.
FN317. Spedding, supra note 313, at 171 (footnotes omitted)
(emphasis added). Interestingly, the decisions made by the Union regarding the
notariat do not appear to be based on extensive empirical and legal studies, and
it seems that none exist. Perhaps this can be attributed to the familiarity of
most Member States with the institution. The most recent action by the Union
regarding the notariat however, calls for an assessment of notarial work. The
European Parliament, while recognizing that the profession is covered by the
public service exception of article 55, nonetheless calls for a detailed study
of the notariat in order “to ensure the mutual recognition without formalities
of notarial acts” and to harmonize regulation among the member states. European
Parliament, Resolution A3_0422/93, 1994 O.J. (C 44/36).
FN318. Goebel, supra note 10, at 465.
FN320. See, e.g., Perez_Fernandez del Castillo, supra note 68,
at 172; Yaigre & Pillebout, supra note 215, at 24; Algar_Calderon, supra
note 299, at 294.
FN321. See infra section III.C.
FN322. DeVries, supra note 218, at 61 (footnotes omitted).
FN323. Ponde, supra note 51, at 556.
FN324. As to France, see DeVries, supra note 218, at 61. As
previously discussed, the French law Ventose codified matters, tasks, and other
professions that were incompatible with notarial practice. It made notarial
practice wholly incompatible with being a judge or any other type of judicial
functionary. Ponde, supra note 51, at 553. The Spanish notario may not be a
public employee or judicial officer. 1 Jose Maria Sanahuja y Soler, Tratado de
Derecho Notarial 292_94 (1945). See also Pedro Avila_Alvarez, Derecho Notarial
202_04 (7th ed. 1990); German Fabra_Valle, Codigo de Legislacion Notarial 20,
63, 69 (1990). See also Perez_Fernandez del Castillo, supra note 68, at 184 (the
Mexican notary may give legal advice, he may not be a public employee, and may
not act as an abogado, i.e., a lawyer in contentious matters). Notaries public
also have certain incompatibility limitations, generally that they may not hold
any other paid public office to which they are appointed “under any civil
authority, or school, city, or town of state.” 58 Am. Jur. 2d Notaries Public s
8 (1989). One of the examples given in the note is Moser v. Board of County
Comm’n, 201 A.2d 365, 368 (Md. 1964) (appellant “upon accepting the appointment
as a notary public and qualifying as such by taking the oath of office, thereby
vacated his office as a member of the Metropolitan Commission”). An exception to
this rule is that judges may act as notaries and do not lose their positions
upon taking the notary oath. 58 Am. Jur. 2d Notaries Public s 8 (1989).
FN325. See, e.g., Perez_Fernandez del Castillo, supra note 68,
at 184. Italy gives the notary authority to appear in court on behalf of clients
in noncontentious matters related to documents subscribed before her. Ponde,
supra note 51, at 319_23. As we might expect, this is a very controversial rule,
particularly with lawyer_advocates. In Puerto Rico a notary may not subscribe
affidavits by his clients for use in contentious litigation. Malavet_Vega, supra
note 42, at 146. In the Netherlands the notaris may act as advocaat, a legal
advisor, but not as a procureur, a litigator in the same transaction. But they
may wear the different hats, since the advocaat is automatically sworn as a
procureur. Hans Hoegen Dijkhof, The Legal Professions in the Netherlands, in The
Legal Profession in the New Europe, supra note 288, at 225_28.
FN326. See, e.g., O’Malley, supra note 287, at 1243.
FN327. Perez_Fernandez del Castillo, supra note 68, at
FN328. This is the case in Puerto Rico, where lawyers may
practice in professional partnerships, but notarios must always keep their work
separate. Malavet_Vega, supra note 42, at 32_33, 147. But in France, notaries
are allowed to form professional partnerships among themselves, but not with
other professionals. Yaigre & Pillebout, supra note 215, at 33_40.
Additionally, the French Civil code expressly allows more than one notary to
officiate over particular juridical acts, such as wills. See C. civ. art. 971
(Fr.) (two notaries may receive a public open will).
FN329. Planiol, supra note 68, s 138, at 81_82.
FN330. See The Legal Profession in the New Europe, supra note
288, at 96 (Belgium), 129 (France), 143 (Germany __ as to notarizing, but not
drafting, documents), 209 (Italy), 227 (The Netherlands).
FN331. Malavet_Vega, supra note 42, at 1_2 (P.A. Malavet
FN332. Id. at 2 (P.A. Malavet trans., unofficial).
FN333. See generally id. at 73_76; Yaigre & Pillebout,
supra note 215, at 90_ 92.
FN334. See, e.g., C. Civ. arts. 1(2) (Sp.) (higher ranking law
controls), 1(4) (general principles will only apply in the absence of law or
custom), 13(2) (the Civil Code is supplementary in absence of specific rules in
special and regional laws); C. Civ. P.R. art. 12 (the Civil Code is
supplementary to specific legislation).
FN335. Compiled from Perez_Fernandez del Castillo, supra note
68, at 71; Yaigre & Pillebout, supra note 215, at 12_13; Malavet_Vega, supra
note 42, at 24_28.
FN336. Code Civil Francais art. 970 (Dalloz 1994); Codigo Civil
de Puerto Rico art. 627 (Equity 1984, supp. 1993); Codigo Civil Espanol art. 688
(Civitas 1991); Codigo Civ. Mexicano art. 1550 (Porr<acut_u>a 1991)
(Because it might prove confusing, I have not used the “bluebook” form for these
citations. Hereinafter, I will use the following for the respective civil codes
of France: ” C. Civ. Fran. art . __”; Puerto Rico: ” C. Civ. P.R. art. __”;
Spain: ” C. Civ. Esp. art . __”; and Mexico: ” C. Civ. Mex. art. __”; Mexico is
a federal state and each state has its own code; however, the code I use here,
that of the Federal District of Mexico City, is the most influential and is
binding nationally in federal matters.).
FN337. C. Civ. Fran. arts. 971_75; C. Civ. P.R. arts. 644_55;
C. Civ. Esp. arts. 694_705; C. Civ. Mex. arts. 1511_20.
FN338. C. Civ. Fran. art. 976; C. Civ. P.R. art. 656; C. Civ.
Esp. art. 706; C. Civ. Mex. art. 1521.
FN339. C. Civ. Fran. arts. 976_80; C. Civ. P.R. arts. 657_65;
C. Civ. Esp. arts. 707_15; C. Civ. Mex. arts. 1522_26.
FN340. In the Spanish and Latin American systems, the part of
the inheritance that must be left to legal heirs is called the legitima
(legitimate) in Spanish. C. Civ. Esp. art. 806; C. Civ. P.R. art. 735 . It is
divided into the legitima estricta, usually one third of the inheritance, to be
divided equally among all heirs, and the mejora, usually one third of the
inheritance, which the testator may use to “improve” one or more heirs, at the
others’ expense. C. Civ. Esp. art. 823; C. Civ. P.R. art. 751. The French also
have a mandatory ” reserve” for heirs that must be followed in testamentary
disposition; the reserve starts at one half of the inheritance when there is
only one heir, and increases with the number of heirs to 2/3, if there are only
two, and 3/4 if there are three or more. C. Civ. Fran. arts. 913_14; see also
Aubert, supra note 7, at 268_69. The Mexican Civil code has adopted a liberal
social approach and eliminated forced heirship. See C. Civ. Mex. Motivos 25_
FN341. In France, whatever is left after the applicable reserve
is called the quotite disponible, which may be freely disposed of by will.
Aubert, supra note 7, at 269. A similar common_law rule might be the imposition
of limits on charitable bequests.
FN342. Heirs are entitled to the legitima or reserve. C. Civ.
Esp. art. 813; C. Civ. P.R. art. 741. Disinheritance laws exist in Spain and
Puerto Rico. C. Civ. Esp. arts. 848_57; Civ. P.R. arts. 773_81.
FN343. Parents have authority over their minor unemancipated
children, including the authority “to correct and punish them moderately or in a
reasonable manner.” C. Civ. P.R. art. 153(2); see also C. Civ. Esp. art. 154; C.
Civ. Fran. art. 371_1; C. Civ. Mex. arts . 411_24. They also control and
administer the children’s property. C. Civ. P.R. arts. 154_62; C. C iv. Esp.
art. 162_68; C. Civ. Fran. arts. 382_87; C. C iv. Mex. arts. 425_42.
FN344. Parents are generally responsible for child support. C.
Civ. P.R. art. 153(1); C. Civ. Esp. art. 110; C. C iv. Fran. art. 203; C. Civ.
Mex. art. 303. Parents are also liable to third parties for damages caused by
torts committed by their minor children who live with them, absent proof of
proper supervision. C. Civ. P.R. art. 1803, para. 2; C. Civ. Esp. art. 1903,
para. 2; C. Civ. Fran. art. 1384 (parents jointly and severally liable for torts
of children they supervise); C. Civ. Mex. art. 1903. The reason for this last
rule is that parents are directly liable to third parties for their failure to
supervise their children. See Alvarez v. Irizarry, 80 P.R.R. 63 (1957).
FN345. Puerto Rico, where the age of majority is 21, allows
parents to emancipate their minor children who have reached the age of 18 by
public document subscribed before a notary. C. Civ. P.R. arts. 233, 247. Spain,
where majority is 18, allows this emancipation after the child reaches 16. C.
Civ. Esp. arts. 315, 317. Mexico eliminated this provision from its Civil Code.
C. Civ. Mex. arts. 642, 644, 645 ( repealed). France does not include
emancipation by public document in its pertinent provisions. See C. Civ. Fran.
FN346. See C. Civ. P.R. art. 237 (minor cannot incur
obligations whose value exceeds his income for one year, and he must be
represented by his parents in judicial proceedings); C. Civ. Esp. arts.
FN347. C. Civ. Fran. art. 1387; C. Civ. P.R. art. 1267; C. Civ.
Esp. art. 1315; C. Civ. Mex. art. 179.
FN348. C. Civ. Fran. art. 1393, para. 2; C. Civ. P.R. art.
1267, para. 2; C. Civ. Esp. art. 1316; C. Civ. Mex. art. 178.
FN349. C. Civ. Fran. art. 1394; C. Civ. P.R. art. 1273; C. Civ.
Esp. art. 1327; C. Civ. Mex. art. 185 (applicable only to property whose
transfer would normally require notarial form).
FN350. C. Civ. Fran. art. 1395; C. Civ. P.R. arts. 1267, 1273.
But the Spanish code allows them before or after marriage. C. Civ. Esp. art.
FN351. C. Civ. P.R. art. 558 (P.A. Malavet trans., unofficial).
See also C. Civ. Esp. art. 618.
FN352. C. Civ. Fran. art. 931; C. Civ. P.R. art. 1273; C. Civ.
Esp. art. 1327; C. Civ. Mex. art. 185.
FN353. C. Civ. Fran. art. 931; C. Civ. P.R. art. 1273; C. Civ.
Esp. art. 636; C. Civ. Mex. art. 185. See also the discussion of forced
heirship, supra note 340.
FN354. See generally Malavet_Vega, supra note 42, at 74; see
also C. Civ. P.R. art. 1230; C. Civ. Esp. art. 1278; C. Civ. Mex. art. 1832.
FN355. C. Civ. P.R. art. 1362, para. 2; C. Civ. Esp. art. 1473,
para. 2. See also United States v. V & E Eng. & Constr. Co., 819 F.2d
331, 333_34 (1st Cir. 1987) (under Puerto Rico law, seller who fraudulently
sells twice not entitled to protection, only good_faith purchasers). As I
mentioned in the introduction, I do not consider here our system of property
registration. However, the common_law analogy in this area is obviously the U.S.
property registries and the application of the Statute of Frauds.
FN356. C. Civ. Esp. art. 1875; C. Civ. P.R. art. 1774; United
Fed. Sav. & Loan Assn. of P.R. v. Nones, 283 F. Supp 638, 639 (D.P.R. 1968);
Perez_ Fernandez del Castillo, supra note 68, at 71; Yaigre & Pillebout,
supra note 215, at 13.
FN357. Fabregat & Bermejo, Business Law Guide to Spain 6_7
(1990) (emphasis added).
FN358. Alexis Maitland Hudson, France: Practical Commercial Law
110_15 (1991) (emphasis added); as to Spain, see also Fabregat & Bermejo,
supra note 357, at 6.
FN359. See, e.g., United States v. One Urban Lot, 865 F.2d 427,
429 (1st Cir. 1989) (“Lienholders of properly recorded property interests will
thus have priority over all others. This presumption is the basis for the “fe
registral,” the public faith in the Registry of Property, which allows reliance
by all parties engaging in real property transactions.” (citations omitted)).
See generally Fabregat & Bermejo, supra note 357, at 6_7; Malavet_Vega,
supra note 42, at 22_23.
FN360. See Schlesinger et al., supra note 6, at 17_23; Rudolph
B. Schlesinger, The Notary and the Formal Contract in Civil Law, in State of New
York, Report of the Law Revision Commission for 1941, at 345 (1941). I have
chosen to cite from Professor Schlesinger’s casebook rather than from the
original studies, because the originals are a bit unwieldy and the casebook
provides a very succinct and complete description of the comparative law
problem. See also State of New York, Second Annual Report of the Law Revision
Commission 65_374 (1936) (Acts and recommendation relating to the Seal and
Consideration and Studies relating to the Seal and Consideration).
FN361. Fabregat & Bermejo, supra note 357, at 6.
FN362. Spedding, supra note 313, at 103_19 (footnotes
FN363. Guglietti, supra note 157, at 334e.
FN364. Malavet_Vega, supra note 42, at 29. The requirements for
becoming a lawyer are discussed below. Not all abogados choose to become
notarios. Fewer persons take the notarial bar examination than the attorney bar
examination. Additionally, if you have studied law in the United States, as was
my case, the candidate must take a notarial law course before being allowed to
take the notarial bar examination. Some candidates simply choose not to do
FN366. Closen & Dixon, supra note 68, at 873.
FN367. See generally id. at 878_81. As to general requirements,
see Alaska Stat. s 44.50.020 (1994) (19, Alaska resident); Cal. Gov’t Code s
8201.1 (West 1994) (honesty, credibility, truthfulness and integrity, not guilty
of disqualifying crime ); Conn. Gen. Stat. s 3_94b (1992) (18, state resident);
Del. Code Ann. tit. 29 s 4301 (1993) (good character, legal residence,
reasonable need for commission). As to oaths, see Alaska Stat. s 44.50.130(b )
(1994); Ariz. Rev. Stat. Ann. s 41_311(B) (1994); Cal. Gov’t Code s 8213(a)
(West 1994); Colo. Rev. Stat. s 12_55_105 (1994) (affirmation ); Conn. Gen.
Stat. s 3_94c(c) (1992); D.C. Code Ann. s 1_803 (1994); Haw. Rev. Stat. s 456_2
FN368. See, e.g., Ala. Code s 36_2_30 (1994) (judge must notify
secretary of state); Alaska Stat. s 44.50.010 (1994) (lt. governor); Ariz. Rev.
Stat. Ann. s 41_311(A) (1995) (lt. governor); Ark. Code Ann. s 21_14_101 (1993)
(secretary of state); Cal. Gov’t Code s 8200 (West 1995) (secretary of state);
Colo. Rev. Stat. s 12_55_103 (1995) (secretary of state); Conn. Gen. Stat. Ann.
s 3_94a(5) (West 1995) (secretary of state); Del. Code Ann. tit. 29, s 4301
(1993) (governor); D.C. Code Ann. s 1_801 (1995) (mayor); Fla. Stat. Ann. s
117.01 (West 1995) (governor); Ga. Code Ann. s 45_17_1.1 (1994) (clerks of the
superior court); Haw. Rev. Stat. s 456_1 (1994) (attorney general); Idaho Code s
51_103 (1995) (secretary of state); Ill. Ann. Stat. ch. 5, para. 312/2_101
(Smith_Hurd 1995) (secretary of state); Kan. Stat. Ann. s 53_101 (1994)
(secretary of state); Ky. Rev. Stat. Ann. s 423.010 (Baldwin 1995) (secretary of
state); La. Rev. Stat. Ann. s 35:1 (West 1995) (governor, with the advice and
consent of the senate, and upon certificate of competency by the appropriate
district court); Me. Rev. Stat. Ann. tit. 5, s 82 (West 1995) (secretary of
state); Md. Code Ann. art. 68, s 1(a) (1995) (governor, “on approval of the
application by a senator representing the senatorial district and subdistrict in
which the applicant resides” or on approval of the Secretary of State for
nonresidents); Mass. Gen. Laws Ann. ch. 222, s 1 (West 1995) (the Commonwealth);
Mass. Const. Art. 4, s 106 (by the governor); Mich. Comp. Laws Ann. s 55.107
(West 1995) (governor); Minn. Stat. s 359.01 (1993) (governor); Miss. Code Ann.
s 25_ 33_1 (1993) (governor); Mo. Ann. Stat. s 486.205 (Vernon 1995) (secretary
of state); Mont. Code Ann. s 1_5_401 (1994) (secretary of state); Neb. Rev.
Stat. s 64_101 (1994) (governor); Nev. Rev. Stat. s 240.010 (1993) (secretary of
state); N. H. Rev. Stat. Ann. s 455:1 (1994) (governor, “with advice and consent
of the executive council”); N .J. Stat. Ann. s 52:7_11 (West 1995) (secretary of
state); N .M. Stat. Ann. s 14_12_4 (Michie 1995) (governor, upon approval of
application by secretary of state); N. Y. Exec. Law s 130 (McKinney 1994)
(secretary of state); N.C. Gen. Stat. s 10A_4 (1994) (secretary of state); N.D.
Cent. Code s 44_06_01 (1995) (secretary of state); Ohio Rev. Code Ann. s 147.01
(Baldwin 1995) (governor); Okla. Stat. Ann. tit. 49, s 1 (West 1994) (secretary
of state); Or. Rev. Stat. s 194.010 (1993) (secretary of state); 57 Pa. Cons.
Stat. Ann. s 148 (1995) (secretary of the commonwealth); R .I. Gen. Laws s
42_30_ 3 (1994) (governor); S.C. Code Ann. s 26_1_10 (Law. Co_op. 1993)
(governor); S.D. Codified Laws Ann. s 18_1_1 (1995) (secretary of state); Tex.
Gov’t Code Ann. s 406.001 (West 1995) (secretary of state); Vt. Stat. Ann. tit.
24, s 441 (1994) (superior court judges); V .I. Code Ann. tit. 3, s 771 (1994)
(lt. governor); Va. Code Ann. s 47.1_3 (Michie 1995) (governor); Wash. Rev. Code
Ann. ss 42.44.010, 42.44.020 (West 1995) (director of licensing of the state of
Washington); W. Va. Code s 29C_2_101 (1994) (governor); Wis. Stat. Ann. s 137.01
(West 1995) (governor).
FN369. See, e.g., Cal. Gov’t Code s 8204 (West 1995) (four
years); Colo. Rev. Stat. Ann. s 12_55_103 (West 1995) (four years); Del. Code
Ann. tit. 29, s 4306 (1994) (two years, renewable for an additional four); D.C.
Code Ann. s 1_802 (1995) (five years); Fla. Stat. Ann. s 117.01 (West 1995)
(four years); Haw. Rev. Stat. s 456_1 (1994) (four years).
FN370. Piombino, supra note 209, at 27. See, e.g., Conn. Gen.
Stat. s 3_ 94b(d), 29 Del. Code Ann. tit. 29, s 4313 (1993).
FN371. See generally Closen & Dixon, supra note 68, at
878_81; as to bonds, see, e.g., Ala. Code s 36_20_31 (1994) ($10,000); Alaska
Stat. s 44.50.120 (1995) ($1000); Ariz. Rev. Stat. Ann. s 41_311(B) (1995) (
$1,000); Ark. Code Ann. s 21_14_101(d) (1994) ($4000); Cal. Gov’t Code s 8212
(West 1995) ($10,000); D.C. Code Ann. s 1_802 (1995) ($2000); Mich. Comp. Laws
Ann. s 55.110 (West 1995) ($10,000).
FN372. Piombino, supra note 209, at 15. See, e.g., Cal. Gov’t
Code s 8201(c) (West 1995) (written exam based on California law applicable to
notaries); La. Rev. Stat. Ann. s 35:191 (West 1995); Or. Rev. Stat. s 194.022(7)
(1993) (written, open book examination). See generally 58 Am. Jur. 2d Notaries
Public s 17 (1989).
FN373. The only exception to this rule that I have found in the
United States is in V.I. Ann. Code tit. 3, s 772(2) (1994) (applicant must “[b]e
a graduate of an accredited high school or have passed the high school
equivalency test.”). There are courses that can be taken, and the notary is
encouraged to take them because his office does involve some liability for
failure to follow prescribed standards, as will be discussed below. As to
courses, see, e.g., Piombino, supra note 209, at 17. Additionally, at least two
states that do not appear to have a statutorily_mandated exam nonetheless
require the publication of a handbook for notaries public. Va. Code Ann. s
47.1_11 (Michie 1995) (“The secretary of state shall prepare a handbook for
notaries public which shall contain the provisions of this chapter and such
other information as the secretary of state shall deem proper.”); Idaho Code s
FN374. See, e.g., Cal. Gov’t Code s 8201(c) (West 1995) (“All
questions shall be based on the law of this state as set forth in the booklet of
the laws of California relating to notaries public distributed by the Secretary
of State”); Conn. Gen. Stat. Ann. s 3_94b(3) (West 1995); Or. Rev. Stat. s
194.022 (1993) (open_book, “Answers to the questions shall be discernible from a
review of the application materials furnished to the applicant.”). Piombino, who
writes a very complete and serious guide that should probably be used by anyone
interested in practicing, gives a sample examination from New York State in his
book at pages 152_79. This examination is a 40_question multiple_choice exam,
with a one hour time limit, Piombino, supra note 209, at 18, reminiscent of
driver’s license written examinations.
FN375. See generally Section of Legal Education and Admission
to the Bar of the American Bar Association, the National Conference of Bar
Examiners, Comprehensive Guide to Bar Admission Requirements 1993_94 (1993)
[hereinafter Guide to Bar Admission].
FN376. Id. at 2_5 (Chart I and accompanying text).
FN377. Id. The ABA also requires the law schools it accredits
to have certain minimum admissions requirements. Id.
FN378. Id. at 10_12 (Chart III and accompanying text).
FN379. Id. at 2_5 (Chart I and accompanying text). However,
“[a]pplicants who obtain legal education by attending unaccredited law schools,
through correspondence or by law office study must take an examination after
their first year and pass before continuing their law study.” Id. at 11.
FN380. Virginia allows “law readers” ( i.e., persons choosing
to “spend 25 hours a week for four years reading case_books, observing court
cases, and helping out in local law offices” under the supervision of a
practicing attorney). Bar_passage results of such students are less than
stellar. “Law Readers” Take an Unusual Road to the Virginia Bar, Wash. Post,
Aug. 10, 1994, Metro Section, at B1.
FN381. Guide to Bar Admission, supra note 375, at 10_12 (Chart
III and accompanying text).
FN382. Id. at 18_23, 24_28 (Charts V and VI, and accompanying
text). The survey never expressly questions “does your jurisdiction have a bar
examination,” however the questions in charts V and VI assume that an
examination is required. The first question in chart V, “how soon prior to the
first day of the bar exam must an applicant submit a completed application?,”
id. at 19, and the answers thereto, clearly indicate that all fifty_five
jurisdictions have a bar exam.
FN383. Id. at 18_23 (Chart V and accompanying text).
FN384. Id. at 24_28 (Chart VI and accompanying text).
FN385. Id. at 6_8 (Chart II and accompanying text).
FN386. Id. at 2_5 (Chart I and accompanying text).
FN387. See generally Yaigre & Pillebout, supra note 215, at
24; Perez_Fernandez del Castillo, supra note 68, at 172; 1 Gimenez_Arnau, supra
note 5, at 275_77.
FN388. Ponde, supra note 51, at 553.
FN389. Id. at 301_02.
FN390. Id. See also 1 Sanahuja y Soler, supra note 324, at
FN391. 1 Sanahuja y Soler, supra note 324, at 282_84.
FN392. Ponde, supra note 51, at 324_25.
FN393. Yaigre & Pillebout, supra note 215, at 25_29.
FN394. Perez_Fernandez del Castillo, supra note 68, at
FN395. Denis_M. Phillipe & Helen Roberts, The Legal
Professions in Belgium, in The Legal Profession in the New Europe, supra note
288, at 94. There is a modern trend towards liberalizing the profession by
allowing all law graduates who pass the notary bar to practice as notaries. This
trend has been most prevalent in Central America. See Guglietti, supra note 157,
at 334g_334i. Puerto Rico also allows all lawyers who pass the notary bar exam
to practice both professions at the same time, and they may do so throughout the
island. Malavet_Vega, supra note 42, at 29.
FN396. Perez_Fernandez del Castillo, supra note 68, at 170. One
Mexican lawyer has recently informed me that in one state the ratio is one
notary for every 50,000 inhabitants.
FN397. Ponde, supra note 51, at 554. The military service
requirement practically excluded women from becoming notaries, and judicial
intervention was required to admit them later. Id.
FN398. Id. at 556.
FN399. Yaigre & Pillebout, supra note 215, at 19.
FN400. Phillipe & Roberts, supra note 395, at 94.
FN401. Interestingly, even a suspended notary retains the right
to present a successor in France, Yaigre & Pillebout, supra note 215, at 32,
but one that has been removed does not. Id. at 75. The sale of notarial offices
is one of the most controversial aspects of the profession. The accusation is
that the title of notary is for sale. The profession’s response has been to
point out that the candidate pays for the office, the clientele __ in effect the
goodwill of that office. But the candidate must still meet all eligibility
requirements. Id. at 30_31. It is undeniable, however, that the limitations
placed on notarial nominations make it a very valuable commodity.
FN402. Id. at 30, 32_33.
FN403. Perez Fernandez del Castillo, supra note 68, at 174,
FN404. In descending order the categories are: (1) Madrid and
Barcelona; (2) First Class; (3) Second Class; and (4) Third Class notarial
offices. 1 Sanahuja y Soler, supra note 324, at 277_78.
FN405. Id. at 285.
FN406. DeVries, supra note 218, at 72 (footnotes omitted).
FN407. 1 Gimenez_Arnau, supra note 5, at 120.
FN408. Id. at 126_27.
FN409. Yaigre & Pillebout, supra note 215, at 22_23.
FN410. Unless otherwise indicated, from The Legal Profession in
the New Europe, supra note 288, at 69, 118, 194, 232, 281.
FN411. Unless otherwise indicated, from World Almanac
FN412. Unless otherwise indicated, from Adamson, supra note
285, at 11_23.
FN413. Avocats and conseils juridiques.
FN414. Includes only practicing abogados (legal advisors) and
FN415. Malavet_Vega, supra note 42, at vii (P.A. Malavet
FN416. I come from a jurisdiction where the notary is subject
to the strictest supervision by the Puerto Rico Supreme Court, the Bar
Association, and the Solicitor General’s office of the Puerto Rico Department of
Justice. In my experience, this is a responsibility that is taken very seriously
by these authorities. One need only look at the published disbarment opinions of
the Puerto Rico Supreme Court __ most of which are titled In re [name of notary]
__ to be aware that notarial errors or misconduct can have the most devastating
professional effects. I am well aware that the most important safeguard of the
guarantee of truth, legality, and good faith of the notarial transaction is a
proper disciplinary system. I also come from one that works well. Nevertheless,
I am mindful that this may not be the case everywhere. I only have personal
knowledge and clear information about the effectiveness of the Puerto Rico
system. While I will discuss here how other systems are designed, I do not have
the empirical evidence to evaluate their true effectiveness, a matter that I
must leave for another day.
FN417. This is the case made by Professor Suleiman’s book.
Suleiman, supra note 216. The studies and conclusions of this work must
necessarily be limited to France because this is where the sale of offices __
which in my view is the reason for most of the problems of the French notariat
__ still survives. Additionally, I have heard complaints from Mexican lawyers
about the political method of appointment that exists in certain Mexican states.
See Perez_ Fernandez del Castillo, supra note 68, at 170 (in addition to
admission by “opposition,” ( i.e., by examination), a candidate may be appointed
by political authority; the qualifications of these appointees might leave
something to be desired.).
FN418. See generally Malavet_Vega, supra note 42, at 45_72;
Perez_Fernandez del Castillo, supra note 68, at 347_78.
FN419. Planiol, supra note 68, s 150, at 89.
FN420. 3 Gimenez_Arnau, supra note 5, at 261.
FN421. Schlesinger et al., supra note 6, at 19 n.12 and
accompanying text. Professor Schlesinger cites, for example, the German
Beurkundungsgesetz of August 28, 1969 (BGBI I 1513).
FN422. Malavet_Vega, supra note 42, at 49, quoting Diccionario
de Derecho Privado 353_54 (1963) (P.A. Malavet trans., unofficial) (emphasis and
FN423. In Puerto Rico, the Supreme Court has this authority
pursuant to P.R. Laws Ann. tit. 4 s 926 (1937). See generally Malavet_Vega,
supra note 42, at 54_57.
FN424. Malavet_Vega, supra note 42, at 54_57.
FN425. O’Malley, supra note 287, at 1173.
FN426. Id. at 1391.
FN427. Yaigre & Pillebout, supra note 215, at 74_75.
FN428. The State retained the power to evaluate applicants and
to oversee their practice. This latter function was performed by judicial
authorities. Ponde, supra note 51, at 306_08.
FN429. 1 Sanahuja y Soler, supra note 324, at 411_19.
FN430. Malavet_Vega, supra note 42, at 55.
FN431. Yaigre & Pillebout, supra note 215, at 75.
FN432. 1 Sanahuja y Soler, supra note 324, at 349.
FN434. Id. at 351_52.
FN435. Yaigre & Pillebout, supra note 215, at 73 (P.A.
Malavet trans., unofficial).
FN436. Malavet_Vega, supra note 42, at 57_66.
FN437. See generally id. at 61_66.
FN438. See, e.g., Ark. Stat. Ann. s 21_14_102 (1993); Cal.
Gov’t Code s 8213(b) (West 1995); Conn. Gen. Stat. Ann. s 3_94f (West 1995)
(notary may not refuse to perform lawful notarial acts); Conn. Gen. Stat. Ann. s
3_94n (West 1995) (change of address).
FN439. See, e.g., Cal. Gov’t Code s 8214.1 (West 1995)
(Secretary of State may remove notary for: (a) substantial and material
misstatement or omission in the application, (b) felony conviction), Colo. Rev.
Stat. s 12_55_ 107(1) (1995) (crimes or misconduct) 12_55_107(3) (notice
required), Conn. Gen. Stat. Ann. s 3_94c(a) (West 1995); Conn. Gen. Stat. Ann. s
3_94m (West 1995) (suspension or removal for misconduct); Del. Code Ann. tit.
29, s 4301(d) (1993) (for cause); Haw. Rev. Stat. s 456_1 (1994); Idaho Code s
51_113 (1995) (misconduct, criminal conviction, misstatement in application);
Ill. Ann. Stat. ch. 5, para. 312/7_108 (1994) (felony conviction or official
misconduct); Iowa Code Ann. s 9E.7 (West 1995) (secretary of state must give
notice of revocation of appointment, person has right to a hearing).
FN440. Case 292/86, In re Gullung, 34 E.C.R. 113 (1988),
discussed in Goebel, supra note 10, at 496.
FN441. Planiol, supra note 68, ss 150_51, at 89_90 (citations
FN442. DeVries, supra note 218, at 62 (footnotes omitted).
FN443. Closen & Dixon, supra note 68, at 888_89.
FN444. See, e.g., La. Rev. Stat. Ann. s 35:198 (West 1995).
FN445. Malavet_Vega, supra note 42, at 68.
FN447. See, e.g., Perez_Fernandez Del Castillo, supra note 68,
FN448. Yaigre & Pillebout, supra note 215, at 72_74.
FN449. See generally 58 Am. Jur. 2d Notaries Public s 73
FN450. DeVries, supra note 218, at 61 (footnotes omitted).
FN451. Planiol, supra note 68, s 132, at 79. However, Planiol
points out that abuses of this special status led to new French laws restricting
notaires’ management of their clients’ funds and mandating the avoidance of
conflicts of interest. Id. at 80.
FN452. They were followed, in this order, by: (1) merchants
trading in foreign textiles; (2) bankers; (3) doctors; (4) pharmacists; (5) silk
producers; and (6) peltiers.
FN453. Ponde, supra note 51, at 153_54.
FN454. Dzienkowski, supra note 1, at 780.
FN455. Id. at 783_86.
FN456. Puerto Rico Notarial Law, Motives, in Malavet_Vega,
supra note 42, at 260. See also In re Lavastida, 109 P.R. Dec. 45 (1979); In re
Colon_Ramery, 93 J.T.S. 91 (P.R. Sup. Ct. 1993). The instructions given by a
party to a notary are not privileged information. Lugo Ortiz v. Ferrer, 85 P.R.
Dec. 862 (1962).
FN457. P.R. R. Evid. s 25(C)(4), P.R. Laws Ann. tit. 32, app.
IV, s 25(C)(4). The French approach the matter differently. They regard notarial
communications as generally privileged ( i.e., there is a notarial professional
privilege on communications, but this privilege, the courts have ruled, may be
waived by any of the parties to the transaction). The notary may be compelled to
testify as to such conversations by one of the parties. Yaigre & Pillebout,
supra note 215, at 134_38. The professional secret does not protect
communications reflected in a document that must be registered, nor
communications that reflect a violation of penal or tax laws, or laws related to
internal state security. Id.
FN458. In re Colon Ramery, 93 J.T.S. 91, at 10797, quoting In
Re Lavastida, 109 P.R. Dec. 45, 86 (opinion of Justice Irizarry_Yunque) (P.A.
Malavet trans., unofficial).
FN460. Id. at 10798. Of course, this only applies in those
countries in which, like in Puerto Rico, the notary may also be a lawyer.
FN461. Id. at 10799.
FN462. Id. In fact, the notary may be compelled to testify
about the facts related to a transaction in a court of law. Tomas Cano & Co.
v. Robles, 32 P.R. Dec. 643, 648 (1924). The only exception applies to the
contents of a closed will, prior to the death of the testator. P.R. Laws Ann.
tit. 4 s 2065 (1987). The absence of the privilege extends even to criminal
proceedings, where a notary may testify against a party to the notarial
transaction. The notary is allowed to relay any otherwise admissible evidence
based on the party’s statement to him in his capacity as a notary. Pueblo v.
Denis_Rivera, 98 P.R. Dec. 704, 710_11, 98 P.R.R. 691, 697 (1970). If there is a
suspicion that a criminal act has been committed after a legitimate examination
of the protocolo, the competent authorities must be notified. P.R. Laws Ann.
tit. 4 s 2072 (1987).
FN463. Id. at 10801, quoting Pedro Malavet_Vega, El Notariado
Puertorriqueno (unpublished manuscript on file with the author).
FN464. See supra notes 278_79 and accompanying text.
FN465. This is why immigrants to the United States are such
easy prey for unscrupulous notaries public here, as I discussed in the
introduction to this Article.