A code of ethics for Maltese notaries : assessing the need and proposing a solution

Abstract

The Notarial Profession and Notarial Archives Act guides a notary in matters relating to his functions, rights and obligations. However, when one looks at the existing situation in Malta, one comprehends that there is a lacuna in the ethical regulation of the notarial profession in Malta. This thesis has two aims. The first and primary aim is to examine the need for a national code of ethics for Maltese notaries and this on the basis of local jurisprudence, interviews, statutes and by comparing our situation with that of other civilian notaries abroad. Ethical rules governing the notarial profession in Malta are largely unwritten and were developed over a long period of time. The result is ethical ambiguity in regard to various issues particularly issues relating to independence and impartiality, professional relationships and professional secrecy. Our Chapter 55 only tackles these issues indirectly and therefore does not address directly and specifically and exhaustively the need to safeguard the independence and impartiality of the notary. The way a notary is to conduct himself with his clients, government authorities and with his colleagues is also an important issue which must be dealt with in a future code. Analogously, professional secrecy is regulated under Chapter 377 of the Laws of Malta. This Act refers to various professions including that of a notary. However, since all the professions mentioned in the Act have different functions which in turn give rise to different obligations; one cannot assume that the Professional Secrecy Act is sufficient to address all the ethical issues which arise in relation to the notarial profession in particular. Despite the adoption by the notarial corps of the European notarial code of conduct on the 14th of December 2002, (This code has never been ratified by the State.) most of these lacunae remained unaddressed and therefore the second aim of my thesis is to draft a code which in turn attempts to address these ethical issues in more detail. My proposal is intended to supplement the code found at the European level which was last revised in December 2009.