Warning to Notaries: Scam International Organisations

One of the most valuable assets that a public notary and legal practitioner may have is his colleague, or the professional association of which he is a member. This is because occasional advice provided by a colleague or information obtained from a professional network may be invaluable when dealing with a unique or complex case.

Membership and engagement with associations such as a College, Society or Union of Notaries can be essential to a practitioner’s continuing professional development. The organisation of educational events as well as the personal interaction between practitioners creates a collegiate environment that ultimately enhances the delivery of high quality professional services to the public.

However: lawyers and notaries must be wary of organisations that charge substantial membership fees and purport to offer services to their members, but fail to do so when they are approached in good faith.

Warning to Practitioners

This short note is a warning to notaries public who may be contemplating membership of the International Union of Notaries (UINL) for purposes of networking or professional liaison.

The International Union of Notaries

The UINL (also known as the Union Internationale du Notariat and the Unión Internacional del Notariado) is a professional association of civil law notaries which provides services to its members, including access to an online forum in which professionals can pose questions and exchange information pertaining to their practice.

The UINL has a code of conduct that establishes ethical standards and best-practice for notaries operating in civil law jurisdictions throughout the world.

Events and publications organised by the UINL have been promoted here due to the affiliation of one of the notaries who has provided notarial services to clients who will use certificates in civil law jurisdictions.

However: we are saddened to inform our readers that this affiliation has come to an end under undignified circumstances.

Brief Summary

  • A notary practicing through NotarialServices.com applied for UINL membership for a period of four years. The UINL was aware of the fact that the notary was a practitioner in the state of New South Wales. A total of $400 (USD) was paid to and accepted by the UINL. The UINL provided signed certifications of his membership in that period.
  • The notary then was approached by a client from a civil law country with a request to provide a notarial service. As the notary was uncertain of the precise form that the notarial certificate might need to take to be compliant with best practice in the jurisdiction in which it would be used, he approached the UINL for clarification.
  • After attempting to access the online forum available to member notaries, he was informed that it was only available to members.
  • The notary informed UNIL that he was, in fact, a member, and had been so for four years. The notary further asked what the membership fee he had paid for four years entitled him to. No response was received by the notary from the UINL.
  • The notary then formally wrote to the president of the UINL, Mr. José Marqueño de Llano at the organisation’s business address, enclosing copies of his four consecutive certificates as proof of his membership (Correspondence dated 28 June 2018). No response was received from the President or his office.
  • To date, the UINL has neither responded to the notary with an explanation as to why he was deemed not a member, nor why his $400 in membership fees were taken by the organisation over a period of four years.

Conclusion

Notaries are cautioned when contemplating membership of any non-essential but attractive professional bodies such as the UINL.

Despite their much vaunted “values” and “ethical standards”, some organisations will happily take a members’ money without offering promised access to their services, and without offering the basic courtesy to respond to communications when asked why that is the case.

It is up to members in the profession to ensure that the organisations to which they seek to affiliate are indeed professional and credible.

ANZCN Comment – Fraudulent Notarial Acts and Certificates

The Australian and New Zealand College of Notaries has circulated a Comment concerning problems and dangers that some practitioners encounter when they are presented with spurious or nonsense documents for notarisation.

The Commentary encloses an example of a document purporting to be a “Notarial Protest For Non-Payment – Non-Performance of the Bill’s Irrevocable Prerogative Writ of Commands” which is allegedly drafted pursuant to the Bills of Exchange Act 1909 (Cth). Prof. Philip Hamilton, who prepared the Commentary for the College, urges notaries to take care when they find themselves being asked by their clients to sign and seal documents that appear to be suspicious.

From the outset, there is in fact no such creature as a “Prerogative Writ of Commands” (ANZCN Comment at ¶¶ 2, 10(g)). Moreover, while the Bills of Exchange Act applies to defined bills of exchange, inland bills do not require to be protested; yet the suspicious document that the notary was asked to notarise appeared to concern parties all of whom appear to be residents within the Commonwealth. Only foreign bills of exchange can be protested, and within 48 hours after being noted (ibid at ¶¶ 4-7).

Another thing that should alert the notary to the potential danger of executing and sealing a suspicious document is that it is drafted in a manner which suggests it is the act of the notary himself. Prof Hamilton notes that “[b]y virtue of this, the notary is not merely attesting that [the client] has signed it, but is adopting it as [his], and is asserting the truth and accuracy of its contents” (ibid at ¶ 1).

Furthermore, the suspicious document, which was not drafted by the notary to whom it has been presented, purports to narrate a series of alleged factual events, which veracity the notary cannot possibly be aware (ibid at ¶ 11). In addition, the suspicious document includes further argumentative and unprofessional text which appears to go to the powers and authority of certain persons addressed in the narrative; this is then followed by “the crunch”: a claim for payment (ibid at ¶ 12).

Prof Hamilton identifies that “the entire thrust of this document is to grab onto the coattails of the Bills of Exchange Act because it uses the grossly misunderstood term ‘protest’ in relation (solely) to foreign bills of exchange” (ibid at ¶ 14) but that Public Notaries:

“[S]ould understand that protests of bills of exchange and ships’ protests are merely antiquated methods of recording a sequence of events so that, in any proceedings that arise from the facts, there is immediately available an authoritative statement of the essential facts.” (ibid at ¶ 15)

The Commentary warns notaries that the use of similar documents in the United States has resulted in criminal prosecution of  the guilty parties as well as their advisers and that some of these have had lengthy prison terms imposed at sentencing (ibid at ¶ 16).

The fact that the suspicious document makes reference to yet another document, while that other document is not attached or exhibited (ibid at ¶¶ 8-10) should raise additional concerns in the mind of the notary. A question that should naturally arise is whether or not that other document in fact exists, or whether it is itself defective or spurious if it does exist. Prof. Hamilton concludes that:

It is, in our opinion, only a matter of time before documents such as the present come before the superior courts in Australia, at which point notaries who have permitted the malefactors to engage their services by preparing, signing and sealing such patently fraudulent rubbish will be inevitably found to have been instrumental in perpetrating the fraud, which traduces the fame and office of the notary public.” (ibid at ¶ 17)

In light of the dangers that may arise when a notary seals a document that may be nonsensical or fraudulent, especially where that document is drafted as if it were issued by the notary himself, the risk of a potential finding of professional misconduct against the notary is a very serious matter. Where the notary’s signature and seal attest to the veracity of the document being notarised, “[c]ritical appraisal of every document is vital” (ibid at ¶ 19).

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

Additional Comment

In light of the issues described above, some questions that the notary may wish to ask his potential client before offering his services (in circumstances similar to those outlined in the College’s Commentary above) may be:

  1. Why does the client require the document to be notarised?
  2. Who prepared the document that is requested to be notarised?
  3. Has the client received legal advice in relation to the document to be notarised?
  4. Has the client received any other advice in relation to same, and if so, from whom?
  5. Where are the other documents which are referred to in the narrative?
  6. If the other documents are unavailable, why are they unavailable?
  7. Who is attesting or declaring to the veracity of the narrative in the document?
  8. Why does the client not prefer to swear or affirm an affidavit or statutory declaration in respect of the narrative?
  9. Are there any proceedings on foot, whether legal or administrative, in relation to the subject matter in or of the document to be notarised?
  10. If there are proceedings on foot or being contemplated, is legal counsel involved, and if not, why not?
  11. If legal counsel is involved, is he aware of the fact that notarisation of the document is being requested, if not, why not?

In the words of Prof. Hamilton, “[w]e stress yet again that the notary has no duty to sign whatever is put before […] him” (at ¶ 19).