In 1997, the Florida legislature passed a bill into law that created a “civil-law notary” for the first time in a common-law jurisdiction. The purpose of the law was to create a legal professional in Florida who could issue “authentic acts” that would be the legal equivalent of the authentic acts of civil-law notaries in other countries.
Under the law, “Civil-Law Notary” “means a person who is a member in good standing of The Florida Bar, who has practiced law for at least five years, and who is appointed by the Secretary of State as a civil-law notary.” The Civil Law Notary must take a course and pass an examination on the nature of notarial practice in civil-law jurisdictions, and the purposes of and uses for authentic acts.
According to the statute, the Civil-Law Notary “is authorized to issue authentic acts and thereby may authenticate or certify any document, transaction, event, condition, or occurrence,” and “[t]he contents of an authentic act and matters incorporated therein shall be presumed correct.” Each authentic act also must contain a statement that “[the] authentic act is legally equivalent to the authentic acts of civil-law notaries in all jurisdictions outside the geographic borders of the United States.”
Comparison with the Florida Notary Public
The Florida Notary Public is a completely different creature from the Florida Civil Law Notary. While the requirements to be appointed as a Florida Notary Public are only that the applicant be at least 18 years of age and a legal resident of the state, those for appointment as a Florida Civil-Law Notary include that the applicant be a legally-trained professional (an attorney) who has practiced for at least five years. Additionally, while the appointment as a Florida Notary Public is for four years, the appointment as a Florida Civil-Law Notary is for life.
The fundamental difference between the Florida Notary Public and the Florida Civil-Law Notary lies in the difference in their respective powers of authentication. While a Florida Notary Public may authenticate only the signatures on a document, the Florida Civil Law Notary may authenticate the contents of a document.
Misconceptions about notaries and their functions 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 U.S. A simple search of news reports discloses 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 services, or that their services had the same legal effect in the United States as in the home countries of the immigrants. Successful prosecutions for illegal practice of law have also been instituted against persons who have used the title “Notario Publico” to mislead clients into believing they could deliver legal services.
For this reason, the Notary Public law requires the Florida Notary Public who advertises his or her services in a language other than English to include a notice in English that shall state that he or she is not an attorney licensed to practice law in the State of Florida, and that he or she may not give legal advice or accept fees for legal advice.
Additionally, the Notary Public law prohibits the Florida Notary Public from literally translating the phrase “Notary Public” into a language other than English in an advertisment for notarial services.
The Latin Notary
A brief discussion concerning the “Latin Notary” is helpful in understanding the Florida Civil-Law Notary.
In the United States we generally 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. The Europeans also believe in an adversary system of litigation and law practice. However, they have recognized that such a system does not fit every situation, and have created different specialized legal professions to provide particular services. In addition to the advocacy professionals, a particular legal specialist, generally located at the top of the legal hierarchy, acts as a non-advocate (i.e., impartial counsel who advises all parties to a transaction). In Latin countries, this position is occupied by the legal professional referred to as the Latin Notary.
By modern standards, the Latin Notary is a: (1) private legal professional, (2) who advises and drafts legal documents for private parties, (4) maintains a permanent record of the transaction, and (4) has the authentication power of the state delegated to him.
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”.
Any similarity between the civil-law notary and the notary public in common-law countries is superficial. While the U.S. notary public is a person of very slight importance, the civil-law notary is a person of considerable importance.
History
Over time, agreements came to be memorialized in writing. The seal was used as a guarantee of documentary authenticity. The document under seal as a guarantee of legality is clearly identifiable among the earliest writings. In the beginning, these individuals were merely skilled writers. As legal forms developed, so did the required level of expertise. Liberal professionals assumed these tasks. 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.
In Rome, the only substantial obstacle to considering the scribe a true notary was the absence of the power to authenticate a document. This is because the document that the scribe drafted only acquired public and authentic status upon judicial intervention.
European law developed from a foundation of Roman law, affected by the customary law of the invading barbarians, mostly Germanic tribes. The combination of Roman and Germanic laws in Western Europe eventually produced the modern notary.
The “notarial” 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.
The Germanic law’s commingling of the limited notarial function with the judicial publica fides filled the only void that separated the Roman scribes 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 essential powers of the notary culminated; he retained the power to authenticate (the publica fides) not as a judicial officer, but as a private officer empowered by the state. The custom of holding mock trials also developed. The resulting document had the full faith and credit of the state. Over time, the judicial pretense was dispensed with and the notary became a private official without a judicial function, but endowed with the publica fides (the public power to authenticate).
It can be said that the definitive moment in the development of the modern notariat occurred when the Scuola di Notariato appeared in Bologna in 1228.
England and the United States
The notary never obtained the same prominence in the English legal system as that enjoyed by his counterparts in continental Europe, and he developed into a purely clerical position in the United States.
The Nature and Function of the Latin Notary
The International Union of the Latin Notariat defines the notario latino 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.
A Liberal Professional Performing a Public Function
The Latin Notary 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 legal private professional.
The Latin Notary exercises both professional judgment and sovereign power; in doing so, he performs what can be termed a quasi-public function.
The Fides Publica
The fides publica is the legal acceptance of the certainty that comes from the presumption of truth that accompanies the notarial document.
The concept can be literally translated as “public trust” or “public faith”.
Originally, only two kinds of fides publica were recognized: the judicial and administrative authority to attest. But over time, as discussed above, the state delegated this administrative authority to private notaries.
The American notary public has the power to certify. But is this power really comparable to the notarial fides publica? No. Even though the authority to attest comes from the state in both instances, the fundamental difference between the notarial fides publica 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 stongest 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 effect.
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.
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 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 may affect its value. Documentary evidence, on the other hand, is seen as objective and more reliable because it is prepared prior to the inception of the litigation (i.e., because it is not subject to the weaknesses of human beings).
Ethical Considerations
Chapter 118 is silent about the Florida Civil-Law Notary’s duty to explain the law, defend the law, and give independent legal advice. However, the rules of professional conduct regulating Florida lawyers define the terms under which a lawyer may enter into a representation of clients whose interest could be adverse. As members of The Florida Bar, Florida Civil-Law Notaries are required to avoid representation of a client with interests directly adverse to another client, unless the civil-law notary reasonably believes the representation will not adversely affect the responsibilities to and relationship with the other client and each client consents after consultation. The lawyer is not required to explain the law, but he or she must explain the implications of a common representation.
In accordance with the Florida Rules of Professional Conduct Rule 4-2.2, the best practice for a Florida Civil-Law Notary rendering an authentic act when two opposing parties are executing the document is to disclose that he or she represents neither party in the transaction against the other and also to obtain from the parties a waiver of the apparent conflict of interest. It would further behoove the Florida Civil-Law Notary to ensure that both parties have independent representation and to so indicate in the authentic act.
Practical Uses
What distinguishes a Florida Civil Law Notary is that he or she is authorized to authenticate documents not merely by witnessing a signature or taking an oath, but also by verifying and confirming the truth of the statements contained in the documents. When appropriate, a Florida Civil-Law notary also may verify and confirm the applicable law and include that verification in the authentic act.
Historical examples of uses of the Florida Civil-Law Notary include:
- Authentication of the legal authority of a Florida probate court to exercise jurisdiction to settle the decedent’s estate and issue a probate order for use in a St. Maartin probate;
- Authentication of an Italian power of attorney given by an Italian resident in Florida to her Italian resident brother to sell real property in Italy;
- Authentication of the fact and the legal conclusion that a person was a decedent’s grandson and heir-at-law for use in an Italian court; and
- Authentication of copies of American official arbitration documents for use in a Venezuelan court.
In example “1” above, it should be noted as an authentic act, the statements contained in the authentic act are taken as true, and not merely matters of legal opinion from a biased lawyer. It is also significant to the weight given to the authentic act that an appointed and disinterested officer of the state made the statements rather than a private lawyer.
Other uses include:
- drafting, attesting, certifying, and authenticating deeds and other documents including real property transfers, and powers of attorney relating to the transfer of real property (as shown in two of the above examples);
- certifying transactions relating to negotiable instruments and bills of exchange;
- incorporating, modifying, and dissolving corporations;
- proving representations made in business contracts;
- drafting wills and other testamentary documents and certifying documents for overseas estate claims; and
- drafting formal papers relating to the carriage of cargo and international trade.
Other common uses include proving identity and relationship for spousal or family pension and survivorship benefits, authenticating school transcripts and work records, and authenticating certified copies of United States federal and state court judgments for domestication in a civil-law jurisdiction. Additionally, the civil-law notarial power is used to prove other chain of title and any circumstance where a proof of the authenticity and accuracy of a document is required, such as in foreign litigations. The Florida civil-law notary may even perform the solemnization of marriages outside of the territorial limits of the state of Florida.
Since the passage of Chapter 118, little has been paid to the potential for use of authentic acts within the state of Florida. It appears that there has not yet been a court test, at least at the appellate level, of Section 118.10(2) of the Chapter. The statute provides that “[t]he contents of an authentic act and matters incorporated therein shall be presumed correct.” This presumption should have the effect in the context of litigation, at least with respect to the facts asserted in the authentic act, of requiring a jury instruction as to the presumption, regardless of who has the ultimate burden of proof in the case. How the Florida courts ultimately give effect to the presumption remains to be seen. One practice point is also clear: transactional lawyers who need to establish facts and recitations in the context of a closing transaction can strengthen their contract and create a legal presumption of correctness that will deter litigation by using the services of a Florida Civil-law Notary
Additional reading:
Campbell & Neiwirth, The Use of Civil Law Notaries in the Immigration Law Arena.
Malavet, Counsel for the Situation: The Latin Notary, A Historical and Comparative Model.
Malavet, The Non-Adversarial, Extra-Judicial Search for Legality and Truth: Foreign Notarial Transactions as an Inexpensive and Reliable Model for a Market Driven System of Informed Contracting and Fact-Determination.
McClane & Tessitore, The Florida Civil-Law Notary: A Practical New Tool for Doing Business with Latin America.
excerpted by Mark C. Van Eden, Esq., from “Counsel for the Situation”, Pedro A. Malavet.
