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Raymond J. Bowie: Florida first with international notary

Sunday, March 10, 2002

By RAYMOND J. BOWIE, Special to the Daily News

All notaries are not created equal, at least not anymore in Florida.

A new breed of notary, called the Florida Civil Law Notary, now gives this state a huge boost in international commerce, and may even introduce to Florida the practice of law European-style.

A couple years ago, Florida became the first state in the union to create, by statute, a system for Florida attorneys to be trained and licensed as civil-law notaries - and essentially, to practice law the way attorneys called notaries do in European and Latin American countries. Currently, there are 76 Florida attorneys, of which the author is one, licensed to practice as civil-law notaries.

There are major differences between the traditional notary public, with which most Floridians are familiar, and this new breed of civil-law notaries. The notary public known by most Floridians is someone they may need occasionally in a legal transaction, who checks their ID, watches them sign a legal document, stamps it with their notary seal, and maybe charges a couple bucks for the service. In this country, this is all a notary public traditionally does - a strictly clerical function of identifying people and acknowledging their signatures.

Contrast this to what a notary is and does in most other countries. In most European and Latin American nations, a notary is, in fact, a highly specialized attorney trained and specifically licensed to assist citizens in business, family and property transactions, almost anything other than in suing one another. In other words, foreign notaries are the equivalent of "transactional attorneys" in the U.S. legal system, as opposed to trial attorneys.

Despite the substantial differences between foreign notaries and a U.S. notary public, there has often been confusion because of the similarity in names. For example, in Latin countries, a transactional attorney is called a "notario publico", in France, it is "notaire", in Germany, "notar", and in Italy, "notaio." Imagine how perplexed these foreign attorney/notaries become when dealing with U.S. notaries, whom they may believe to be fellow attorneys. Or how baffled foreign nationals or recent immigrants are when, in the U.S., they approach a notary public looking for legal assistance.

In some cases, this confusion has provided an opportunity for unscrupulous Florida notaries to deceive and defraud foreign nationals or non-English speaking citizens, charging hundreds of dollars in "attorney's fees" for the simple act of notarizing a signature, or even pretending they are attorneys giving bogus legal advice and preparing really bad legal forms bought at an office supply.

This abuse got so bad on the east coast that the Florida legislature has had to pass laws prohibiting the translation of the name "notary public" into any foreign language, and requiring notaries who advertise in any language other than English to disclose "I am not an attorney and I may not give legal advice or accept fees for legal advice."

A problem of far larger scale has existed, however, in international commerce because the international network of foreign notaries has had no corresponding legal professionals to deal with in this country. Documents notarized by U.S. notaries public are often rejected by foreign notaries, upon discovering that the U.S. counterpart is not an attorney. Even documents prepared by American attorneys may not be acceptable in foreign nations, because they are not prepared in the style or with the formality required either by international treaty or by the international union of civil-law notaries.

Florida to the rescue.

Among the states, Florida has, to its credit, often taken the lead in adapting its laws and business practices to the needs of international commerce. This is in line with Florida's strategy of promoting itself both to foreign tourism and as the gateway for trade with Latin America. It comes as no surprise that, in order to boost its trade position, Florida became the first state to establish a civil-law notary system and to train and license qualified attorneys as civil-law notaries.

To be a notary public, a Florida resident only has to be 18 years of age, able to read and write English, not be a felon, get someone to sign an affidavit of good character, and be bonded for $7,500 for any harm done the public. On the other hand, a Florida civil-law notary is required to be an attorney in good standing with The Florida Bar, in practice for at least 5 years, who has completed a course of study and examination in the history, law and specialized practices of the civil-law notary system as it exists in other nations and now in Florida.

The difference in training and qualifications between the notary public and the civil-law notary is manifested in the different powers conferred on each by Florida law.

The traditional notary public's powers are limited to acknowledging signatures on documents, administering and certifying oaths, making and certifying copies of documents - and unknown to many people, solemnizing marriages. The notary public can only exercise these powers inside Florida under a four-year appointment. In contrast, the Florida civil-law notary can, as an attorney, draft legal documents and give legal advice, but also has other special powers conferred by law, to quote: "legal power and authority generally similar to those exercised by non-U.S. notaries" may authenticate or certify any document, transaction, event, condition or occurrence via issuance of an authentic act, the contents of which are presumed correct as a matter of law." A civil-law notary's appointment continues indefinitely for so long as he remains a Florida attorney, and he may exercise his powers outside of Florida as well.

In practice, it is the specialized training and these special statutory powers that distinguish Florida civil-law notaries from other Florida attorneys in the realm of international transactions. To understand these powers, it is helpful to look at how the civil-law notary system developed in other nations where it is the norm in legal transactions.

In Europe, the notary system evolved over the centuries to become a private network of specialized attorneys, both within each nation and across national borders, who rely upon one another to draft accurate legal documents, certify the accuracy and truth of matters set forth in those documents, and keep reliable and permanent records of all documents they issue. While these civil-law notaries are all private legal professionals, and their network is entirely private sector, they are delegated something called the "authentication power of the state" by their governments. This power is the real key to what civil-law notaries do: "authentic acts".

When a civil-law notary drafts or certifies a document under his seal, it must be in certain form with certain attestations, logged into the notary's permanent record book called a "protocol", and then becomes called an "authentic act." The content of any authentic act is at the discretion of the civil-law notary and can include any statements of law or fact that are ascertained as true and accurate by the notary, in order to meet the needs of the parties to the transaction.

Once a civil-law notary issues an authentic act, it is usually delivered to another civil-law notary, often in another country, as part of the transaction. If the document is to be sent across national borders, the sending notary must also secure a certificate called an "apostile" from his licensing government - in Florida the Secretary of State - confirming his authority as a civil-law notary. The job of the receiving notary is to evaluate the document and adopt it as his own authentic act if it appears credible. Once that is done, the document has become "admissible" in the foreign business or legal transaction, as the authentic act of the receiving notary.

As an example, a Florida civil-law notary may be asked to confirm, perhaps in connection with a German national securing bank financing in Germany, that the German national is the majority shareholder in a Florida corporation, that the Florida corporation is a good legal standing under Florida law, that the Florida corporation owns good title to certain real property in Naples, and that the property is leased to a tenant paying a certain rent. As a Florida attorney, the civil-notary investigates and satisfies himself of these things as a matter of fact, states his legal conclusions as to matters of Florida law, and then drafts an instrument - an "authentic act" - under his seal stating his findings. As a fellow civil-law notary, a German notary ("notar") receiving the Florida civil-law notary's authentic act will accept it for use in the German banking transaction, since between notaries an authentic act is entitled to a presumption of correctness as to the facts and law it states.

The system of civil-law notaries, of which Florida is now part, is a private international network for the transmission of legal and business documents deemed reliable and entitled to a presumption of correctness. In this, the civil-law notary network serves as a government-sanctioned private alternative to more costly and less efficient bureaucratic or court procedures for transmitting legal documents.

In the short run, having a system of civil-law notaries gives Florida a tremendous advantage in international commerce and legal transactions. In the long run, the benefit to Floridians may be even greater, if the civil-law notary system introduces a more specialized profession of transactional attorneys focused upon making transactions work rather than upon suing if they don't.

Raymond J. Bowie is a Naples area attorney and civil-law notary, who has practiced law for 22 years in Florida, Virginia and New York, specializing in real estate transactions, representing buyers and sellers in closings, title insurance, tax-deferred exchanges, and mortgage financing. He is also a licensed real estate broker, instructor and mortgage broker, certified professional consultant, and past chair of the Collier County Bar Association Real Estate Section. Bowie invites real estate-related questions or suggestions for columns to be addressed to him, c/o Real Estate Editor, Naples Daily News, 1075 Central Avenue, Naples, Fla. 34102.

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