Professional secrecy and confidentiality of the notary

Abstract

Since early on, the office of the Notary Public was regarded as a prominent position in society, bearing an ample amount of responsibility and placing the Notary at the centre of legal transactions between individuals. In fact, the number of legal undertakings that can be validly executed without the appearance of the Notary is minimal. The profession of the Notary is defined by a number of qualities, which include a thorough knowledge of the law, integrity and probity of the individual, as well as dedication to the profession itself, amongst others. Nevertheless, an indispensable trademark of the Notary Public is the trust he is given, both by his clients and by society itself. As a result, the Notary should always perform impartially and independently apropos both of the parties appearing before him. Over time, the impartiality and independence of the Notary have become two fundamental pillars upon which the notarial profession is founded. Such principles ensure that individuals appearing before a Notary are on an equal footing and that they are fully aware and in agreement vis-à-vis all the provisions and conditions of the deed. Nevertheless, another major pillar on which the notarial profession is established is the principle of professional secrecy and confidentiality of the Notary. Akin to the doctor, the bank manager and other professionals, the Notary is legally obliged to keep confidential any information of a private and delicate nature, concerning his clients and their families and which is made known to him by virtue of his profession. Hence, outside the parameters of his office, the Notary cannot disclose whatever has been spoken, seen or heard in his presence during the practice of his profession. Whilst examining the duty of professional secrecy of the Notary, the French jurist Domat established that: “La conseguenza del segreto di molti atti che si svolgono davanti ai notai, crea in essi il dovere di conservare inviolabilemte fede al segreto, non solo su quanto avviene fra le parti prima che gli atti siano firmati, ma anche sugli atti stessi dopo la loro perfezione; poichè, se i notai debbono il segreto per atti che di loro natura sono tali che il segreto vi ha scarsa importanza, e lo debbono in quanto tale è l’intenzione delle parti, alla quale essi debbono conformarsi per non offendere il proprio dovere, la mancanza di questo segreto nei testamenti ed in altri atti di svariata natura potrebbe turbare la pace della famiglia o condurre ad altre diverse conseguenze, di cui i notai per la loro infedelta o indiscrezione sarebbero responsabili verso Dio o davanti al pubblico, secondo la qualità dei fatti e le circostanze”. To date, under Maltese Law, the Notary is legally bound by the obligation of professional secrecy and confidentiality. However, such duty does not subsist amidst all aspects of the notarial profession. Unlike other legal professionals, the office of the Notary is a double-faceted one, with the Notary performing both roles of a liberal professional and a public officer. Whilst assuming the role of a public officer, the Notary is “charged to receive acts 'inter vivos' and wills, and to attribute public faith thereto”. This function of the Notary requires the publication of notarial deeds and as a result, the duty of professional secrecy is automatically extinguished. However, in all the other aspects of the notarial profession, particularly during the preliminary stage, the obligation of confidentiality of personal information is still vastly upheld, as shall be seen in the following sections. In fact, this research project will assess and identify all the legal provisions under Maltese Law which require the Notary to adhere to the duty of professional secrecy as well as those exceptions which render the Notary immune from such obligation. The fundamental objective behind this research project is to examine all the legal provisions under Maltese Law which govern the duty of professional secrecy and confidentiality of the Notary. Such legal provisions emanate from various legislative sources, including the Professional Secrecy Act, the Criminal Code, the Code of Organisation and Civil Procedure and the Notaries’ Code of Ethics Regulations. Moreover, this research paper will also determine those instances in which such obligation of professional secrecy is extinguished and the Notary becomes legally bound to disclose the confidential information of his clients. When examined together in tandem, these two opposing views provide the exact foundations that the Maltese Notary should follow, since these explicitly determine when the Notary is legally bound by professional secrecy and when such obligation is barred. Additionally, such analysis also determines the level of diligence that is expected from the Notary, not simply vis-à-vis his clients but also with respect to his employees, other Notaries and society in general. Finally, this research will also establish if the current legal provisions under Maltese Law regulating the duty of confidentiality of the Notary necessitate a complete or partial reform or if their current format and implementation suffices to adequately regulate the position of the Notary. Undoubtedly, such subject is one of the most important and sensitive topics governing the notarial profession and as such, it is important that it is duly studied and updated regularly so as to reflect the present day needs. Accordingly, this research paper also aims to present itself as a contribution to the notarial field, particularly since there is no relatively recent study on the subject. This research topic was selected because I personally believe that despite being a crucial founding pillar of the notarial profession, the subject of professional secrecy and confidentiality of the Notary is not given enough importance. Our society is constantly made aware of the obligation of confidentiality of the physician and the bank manager but very much less so of the same obligation of the Notary. Similarly, academics instill knowledge regarding the impartiality and the independence which the Notary must uphold in his office, however, they fail to mention, or minimally mention, that the Notary must adhere to the obligation of professional secrecy as well. An acceptable reason for this is the fact that notarial deeds are published and the majority of the confidential information of individuals is made available to the public. Nevertheless, this does not entail that the Notary may simply ignore the duty of professional secrecy and confidentiality but on the contrary, it means that the subject matter needs to be acknowledged even more. The lack of prominence of the topic is also reflected by the deficiency of judgments of the Maltese Courts regarding the subject. In fact, the lack of judgements was one of the main challenges of this research project. As its primary source, this research project will thoroughly consult the Laws of Malta, particularly the Professional Secrecy Act (Chapter 377 of the Laws of Malta), the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta), the Criminal Code (Chapter 9 of the Laws of Malta) and the Notaries’ Code of Ethics Regulations (Subsidiary Legislation 55.09) as well as a number of European bodies of law, including the General Data Protection Regulation and the Anti-Money Laundering Regulations. Additionally, this research paper also aimed at incorporating several reviews of published judgments delivered by the Maltese Courts, dealing with issues of professional secrecy and confidentiality of the Notary. Such judgments were to be found through the eCourts online website by using the keyword search facility. However, as previously held, this was deemed to be quite a challenge due to the gross lack of judgments on the subject. Another vital source for this research project were the various past dissertations on the subject, including The Impartiality and Independence of the Notary by Alison Fiorentino which was submitted in 2004, Aspects of the Liability of Notaries Public in Malta by Rachel Sammut which was submitted in 1995 and The Functions and Responsibilities of Notaries Public by Tonio Spiteri which was submitted in 1973. It is clearly evident that none of these studies are relatively recent and this further confirms that a contemporary study, reflecting contemporary measures and legal provisions is, in fact, much needed. As a result, this research paper will carefully build upon such studies whilst reflecting the addition of recent legal measures to the subject. The main research method which will be applied in this research paper is the “Black Letter Research Method”. As the name implies, this research method focuses solely on the study and the evaluation of the actual wording of legislation, doctrine and jurisprudence. As aforementioned, the legislative sources which will be reviewed include various Maltese legislative bodies as well as some European bodies of law. This study will also attempt to make a comparison of the legal provisions under the Maltese legal system with those under foreign legal systems, whereby a general overview of the concept of professional secrecy and confidentiality of the Notary in different countries, particularly in Italy and Québec, will be discussed. Finally, in the closing chapter of this research project, I will examine the 'inter vivos' deeds of a Maltese Notary and from such sources, I will attempt to determine how many deceased individuals opted for a public will or a secret will to regulate their succession, or if they regulated their estate by law through intestate succession, consequently determining their trust in the Notary or lack thereof. Undoubtedly, it is evident that I cannot confirm that such statistics realistically portray the opinion of the general public apropos the Maltese Notary, however, I believe that it may offer an additional and interesting viewpoint regarding the confidentiality of the Notary in Malta. One must also acknowledge the limitations posed by such research. First and foremost, due to the word-limit imposed, the analysis of the legal provisions regulating the obligation of professional secrecy and confidentiality of the Notary was not implemented in the desired depth. Nevertheless, all the general notions were still carefully analysed. A potential objection in view of this research paper could be that it lacks originality, however, this project aims to reach a more comprehensible understanding of the subject by building upon past studies and on the law itself, which would not be possible to do from scratch. Whilst acknowledging both the benefits and the limitations, this research method was deemed to be the most suitable, as will be observed in the following sections. This research paper will aim to determine the following research question: “To what extent is the Maltese Notary bound by the duty of professional secrecy and confidentiality?”. It is evident that such research question is quite open-ended, consequently seeking to achieve numerous outcomes rather than one concrete answer. What standard of liability do the legal provisions regulating the obligation of professional secrecy impose on the Notary? Are such legal provisions clear and unhindered or do they need to be improved upon? Is the Notary duly punished for breaching the obligation of professional secrecy and confidentiality? By addressing such questions and more, this research paper aspires to determine the foundations that the Maltese Notary should follow, so as to uphold the obligation of professional secrecy and confidentiality in the notarial profession.