If You Are Not a Notary, Don’t Run The Risk Of Certifying Foreign Documents

A word of warning to Solicitors from a Notary (tell your colleagues – tell your junior employed solicitors!)

In England most people probably live their lives without ever needing the services of a Notary Public. (Although we Notaries can carry out Conveyancing or Probate Services for reward, most of us are Solicitors and act in our Solicitorial capacity for that kind of work.)

So when Joe and Jane Bloggs buy a second home in Spain, or enter into a civil or criminal courts matter, quite often they fail to understand the requirements of their foreign Lawyers who ask for a “Notarised” Power of attorney, or “Notarisation” of Affidavits in a Court case abroad.

They can often say to themselves, “what a silly foreign chap, he doesn’t know that in England our lawyers are called Solicitors, we don’t have Notaries do we.”

Fair enough I suppose, but things get a bit serious when they go to their English Solicitor – who (if s/he is recently qualified and more anxious to help than knowledgeable) agrees to “Notarise” the forms for them. Yes this really happens, more often than knowledgeable senior solicitors would suppose.

When a Solicitor signs a Deed for use in a Jurisdiction which actually requires a Notary to do so, in nearly every foreign jurisdiction this will render the Document Null and Void. If the Solicitor takes a fee, perhaps even if not, liability for consequences cannot be avoided. Remember – the remit of a Solicitor is England and Wales, not even extending 100 miles up the road into Scotland.

Imagine that a solicitor certifies an Affidavit for use in a Civil dispute in Spain, the question at issue being liability of a UK airline for lease contract payments of a Jumbo Jet. The crucial witness statement is the one defectively notarised. Who will pay all of the costs of an adjournment at best, or in the worst case be called upon to indemnify the airline which has just lost its case costing hundreds of thousands of pounds?

I think there would be an interesting conversation, between a solicitor in this position, and his PI Insurance company – And remember, if you are an equity partner and the solicitor is your employee, this is YOUR insurance company. It seems to me that a Solicitor who meddles with a foreign document outside his jurisdiction is no more acting as a Solicitor, than if he agrees to rewire a clients house and burns it down. Why should he be able to claim on his PI insurance in either case?

There are also criminal penalties around the world for impersonating a Notary – a crime which may or may not require any actual intent. One imagines that you have better things to do than defend yourself from foreign prosecutions.

Moral. A Solicitor is not a Notary, unless s/he is! I am a Notary. Please do get in touch with me whenever your clients are involved in foreign legal matters requiring documentation to be processed in England.

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