Private practice or public office: notaries told to make their pick

Are notaries who are involved in private business deals and property speculation, reliable public officers?

It is a question raised by members of a profession which in recent years has changed with a construction boom that has raised the profile of the notary-public.

And that is because new rules now prevent notaries from exercising their office on the execution and custody of public deeds, if they are already in direct employment with a private business.

For companies like developers J. Portelli Projects, a small army of notaries can be found in-house, ready to undergo property researches for both the company as well as its prospective clients.

But can notaries who are directly employed by the seller of a property, be trusted to offer the prospective buyer impartial advice on property history and the transaction itself?

Under the recently-enacted amendments to the Notarial Profession Act, notaries will have to cease from exercising their functions if they are in full-time employment, or if they exercise a profession or assume any office incompatible with the office of notary.

Notaries who double up as property brokers and developers, or teaming up with speculators on the profits of property deals, are already problematic. The new rules should force them to choose.

But the same rules also decree that notaries who are in full-time employment with any commercial lending bank, similar financial institutions, private companies or even government agencies and para-statal companies, cannot practice as notaries except in deeds strictly related to their direct employment.

This has created two tiers, as it were, of notaries: those whose independence allows them to service the clients they wish; and those employed by a company in roles not necessarily connected to their notarial work, but who now can only execute deeds to which that company is a party.

Some notaries are unhappy about the new rules. Those whose main source of income derives from other forms of private employment, would also use their notarial office to boost their income by offering their services independently of their employment. They will have to choose: either resign from their private employer to practice independently, or ceasing the publication of deeds that are not related to the private employer. Some have also gone beyond their notarial office to take up directorships or ‘KYC’ (know your client) roles such as money-laundering reporting officers. They will have to choose – their corporate jobs, or resign to retain their notarial clientele.

Those who defend the rules say that such notaries are not losing their warrant, and it is the independence of the public official that is being safeguarded. Notarial Council president Clinton Bellizzi told MaltaToday that notaries employed in a company full-time might not be able to be fully independent and impartial in their public services.

“You are either in full-time employment and exercising notarial work in relation to this, or you are a public official,” he stated.

Bellizzi added that the concept of being a “part-time notary” is completely incompatible with the nature of the work.

“Notaries are bound to be impartial, independent, and available at all times – full-time employment with a company could prevent a notary from doing so.

“This is the same for the army, the police, even government ministers. Public office is incompatible with part-time work.”

Bellizzi said the term “part-time notary” is in itself a misnomer, as the job is inherently full-time. Urgent cases, such as when notarising a will, require the notary to be available at an almost on-demand basis. “This is something a first-year law student would know.”

Bellizzi further clarified that the warrant will not be touched under the new rules. All existing notaries will remain as such, and will still be able to perform in their notarial office. However, they will have to choose between notarial work for a given body or public notarial duties.

“Ultimately, this is nothing new,” Bellizzi said, saying this was always a given in the notarial profession. “The concept has always been there. We’re not reinventing the wheel; we’re just spelling it out in black and white.”