Problems with Clients Based Overseas

As has been mentioned in previous Practice Notes, notaries are not obligated at take work from prospective clients. Indeed, notaries should be wary of clients who ask for services where the objective or purpose of the notarisation is uncertain or may be a cause for suspicion. A recent client who approached NotarialServices.com with a request for professional assistance related to an overseas legal matter is an example of problems that may arise when taking on a client who is not entirely forthcoming.

Basic Facts:

  • The client was a law firm incorporated overseas, which was engaged in litigation the details of which they were reluctant to disclose to the notary.
  • The client requested that the notary provide a notarial certificate in the public form in which the notary were to declare the veracity of a purported fact.
  • The purported fact was that an overseas company acquired certain interests of another company which had an office located in Australia.
  • Information that the client supplied to the notary included a number of voluminous documents including company reports and press releases in which the acquisition as referenced, as well as an ASIC search on the local company showing its details.
  • The notary indicated that he would have to engage in an investigation to ascertain the veracity of the alleged acquisition; he provided a quote for his services capped at a low rate. The client accepted this quote.
  • Investigations were conducted, however the notary was not able to decisively and conclusively state that the acquisition as purported by the client and as described in the documents provided took place: the fact of an agreement to transfer interests between companies is best evidenced by inspecting the transition documents themselves – neither company was willing to disclose these documents as a matter of policy (one company refused to respond to numerous attempts at being contacted).
  • The client said that they would make payment on the agreed amount after the notarial certificate was drafted and sent to them – the notary said that he would have to be paid before any certificate could be completed and send for an apostille and legalisation.
  • A first incomplete draft of a notarial certificate was provided to the client to illustrate the format that the final form might take, but the client objected to parts on the basis of that the language being used was qualified. The notary indicated that the language would be adjusted to reflect the documents that were available to evidence the transaction between the companies.
  • After asking for further clarification from the client as to the availability of the contract documents evidencing the transaction, all communications ceased. No payments from the client to the notary were made.

Discussion:

A notary should only ever notarise a document that he has personally witnessed, viewed, and perused himself. In this situation, while various public company documents and an industry journal made explicit reference to the acquisition that the client wanted notarised, the notary would not be able to provide the notarial certificate in the form that the client required without seeing the contract itself. Indeed, even inspecting such a document may be insufficient without ascertaining the identity of the purported signatories and the integrity of the signatures or company seals apparent on those documents. In this case, the notary took all the steps he could to assist the client and meet its needs. But notaries should never feel coerced into providing their services without knowing that those services are being offered at best-practice level and to the standards expected of a legal professional.

Conclusion:

This particular case was an example of two issues that notaries may encounter in their practice.

  • The difficulties and risk associated with complicated notarial requests: if a client is not forthcoming in providing clear and detailed information relating to the circumstances in which the notarial act is being requested, the notary should be very careful before providing any service. In this case, an investigation had to be conducted before providing any formal notarial services to the client. The investigation that was undertaken only served to cast further suspicion on the client’s request. The client’s silence after being requested to clarify certain facts pertinent to the production of the notarial certificate indicated that the request was not entirely being made in good faith.
  • The difficulties of providing notarial services from an overseas client without prepayment of at least part of the agreed upon costs: in this situation, the notary engaged in an investigation that took time and effort, including numerous attempts to contact various parties by drafted letter, email and telephone. The notary also prepared a first draft of the certificate for the client’s perusal. A notary’s time is valuable. While the client discourteously “dropped” the notary who had already completed a substantial portion of his work, that work has gone without remuneration, and there is no hope of recuperating the amount on a quantum meruit It is for these reasons that prepayment is required for notarial services provided to overseas clients.

ANZCN Practice Note – Dealing with Documents Written in a Foreign Language

Since notaries are approached by client who need to have documents certified for use overseas, it is not uncommon that those original documents will be drafted in a foreign language. A recent Practice Note issued by the Australian and New Zealand College of Notaries (April 2019) addresses the problems that a notary may encounter in these situations.

The Practice Note outlines four general cases which deal with a foreign language document: Where the Notary and his client are both familiar with the langue in which the document is drafted; where only the client is familiar with the language; where neither the Notary nor his client are familiar with the language; where the document being notarised is bilingual.

The Language is Known to both the Notary and the Client

The key point is that the Notary is satisfied that his client “understands the meaning and agrees with the contents of the foreign language document.”

Our additional comment: In the case where both the Notary and the client are familiar with the language in which the document is produced, the practice Note assumes that the Notary will have some working knowledge of the relevant legal provisions governing the use of the documents being notarised. However we must remind readers that this too can be a fraught with risks and difficulties (for more information, please refer to our article “Dealing with Foreign Documents”)

The Language is Known to the Client Only (not the Notary)

In the event where the Notary has no knowledge of the language in which the document is drafted but which his client claims to be familiar, the notary will have to satisfy himself that the client’s claims are true. The key point here is that even if a client is proficient in the language in which the document is prepared, oftentimes people may overestimate their ability to interpret technical or legal material. The Practice Note suggests that the Notary:

    • Might ask the client to read the document in front of him.
    • Should ask the client whether the document is understood.
    • May engage in a “gentle cross-examination” to ascertain whether the client indeed does understand the meaning of the document.

The practice Note further suggests that an additional paragraph may be included in the Notary’s certificate, to the following effect:

“AB declared to me that he/she was fluent and literate in the XYZ language and AB also declared to me that he/she had read and understood and agreed with the content of the attached document before signing the document in my presence.”

Our additional comment: The Notary may ask to go through the document a paragraph at a time and ask the client to interpret the paragraph, and whether there is any ambiguity or uncertainty in its terms or provisions. The Notary should be wary of moments where the client may appear confused or uncertain. In these situations, it may be advisable to have the client obtain a translation of the document, or seek advice from a legal professional who is competent to provide formal advice on the meaning of the document to be notarised.

The Language is Known to the Notary Only (not the Client)

In this situation, the document must be translated. The Practice Note suggest that this can be accomplished either through an interpreter who orally translates the document in the presence of the Notary, or through an accredited translation service which will provide a written translation and accompanying affidavit.

In the case of the oral translator, he will have to make a declaration to the Notary that he is fluent and literate in the relevant language, and that declaration will form part of the Notary’s certificate. Moreover, the fact that the document was translated in this way must also appear in the client’s signing clause.

In the case of the formal written translation, the translated version of the document, as well as the translator’s affidavit (and of course the foreign language original) must be included as exhibits in the notarial certificate.

Our additional comment: While obtaining a written translation may be more costly and time consuming, it is preferred on the grounds that it represents a clearer record of the manner in which the foreign language document was executed and notarised.

The document being Notarised is Bilingual (Drafted in Two Languages)

In this situation, where the document being notarised may be formatted in a way such that its provisions are arranged in two columns, one in English and another in a foreign language, it is important for the Notary to assert his and his client’s language proficiency. The Practice Note suggests the following paragraph be included into the final certification:

“AB has signed the attached document before me in the English version only understanding the English version to be a true and correct translation of the XYZ version and AB has declared to me that he is not fluent in the XYZ language and only fluent in the English language and I certify that I have witnessed the signature of AB on the attached document in the English version only and I confirm that I have no knowledge of the XYZ language.”

The key point here is that neither the client nor the Notary should assume that purported translations in bi-lingual foreign documents are accurate. Omitting the kind of language status paragraph from the notarial certificate may result in a situation where the foreign language component of the document is relied upon by another party in the foreign jurisdiction, and if that component of the document does not accurately correspond with its English version, the client (and the Notary) may be exposed to an unintended liability.

The Practice Note recommends that practitioners refer to Prof. Peter Zablud’s Principles of Notarial Practice (2nd ed.; The Notary Press, 2016), specifically chapter 10 on “Interpretations and Translations”. Or information on how to obtain a copy of this invaluable text, please direct your inquiries to the ANZCN directly.

This is a summary of a Practice Note issued by the ANZCN. Practitioners who would like more details about the Practice Note should contact the College directly. Client who require a foreign language document to be notarised for use overseas are encouraged to contact a local notary via this website.

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).