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The Latin Notary, a Historical and Comparative Model Pedro A Hastings International and Comparative Law Review Volume 19 Article 1 Number 3 Spring 1996 1-1-1996 Counsel for the Situation: The Latin Notary, a Historical and Comparative Model Pedro A. Malavet Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Pedro A. Malavet, Counsel for the Situation: The Latin Notary, a Historical and Comparative Model, 19 Hastings Int'l & Comp. L. Rev. 389 (1996). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol19/iss3/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Counsel for the Situation: The Latin Notary, A Historical and Comparative Model By PEDRO A. MALAVET* Table of Contents I. Introduction ............................................ 390 A. In General .......................................... 392 B. Relevance of this Comparative Study ................ 392 1. Introduction..................................... 392 2. Understandinga Foreign Legal Model .......... 393 3. A Comparative Model for Contemporary Lan, Practice:Is the Latin Notary Brandeis' "Counsel for the Situation"? *............................. 398 C. Conclusion .......................................... 402 II. Historical Development of the Profession .............. 403 A. Introduction......................................... 403 B. Pre-Roman Civilizations ............................ 405 C. Rom e ............................................... 403 * Assistant Professor of Law, the University of Florida College of Law. JD. and LL.M., Georgetown University. Professor Malavet has been an Adjunct Professor of Law at Georgetown University Law Center and at the Pontifical Catholic University of Puerto Rico. He is admitted to practice law in the Commonwealth of Puerto Rico. He became a notary upon registration of his signature, rubric, sign and seal at the Department of State of the Commonwealth of Puerto Rico on February 13, 1990. His protacoo and book of registry of affidavits were turned over to the custody of the Notarial Inspector upon leav- ing the Commonwealth to pursue LL.M. studies. This Article was prepared to fulfill the requirements of the Future Law Profeszor Fel- lowship at Georgetown University Law Center during the Fall 1993 and Spring and Fall 1994 semesters. It benefited from the discussions during presentations I made at the G2- orgetown University Law Center, the Detroit College of Law, the Universitv of Florida College of Law, Saint John's University Law School, and the University of Baltimore John and Frances Angelos Law Center. My thanks to the faculties at these institutions for their questions and suggestions. I would like to express my appreciation to Profcsors James Feinerman and John R Schmertz for their suggestions and constant support in the drafting of this Article. I also thank Lawrence Rosen, William Vukovich, and Joseph Page for their thoughtful comments to earlier drafts. Finally, my sincere gratitude to Richard Diamond, Michael Gottesman, Emma Jordan, and Elizabeth Paterson for their timely suggcstions. Hastings Int'l & Comp. L. Rev. [Vol. 19:389 D. Europe During and After the Middle Ages .......... 411 E. England and the Americas .......................... 425 F. Conclusion .......................................... 428 III. The Contemporary Latin Notary ........................ 430 A. Relevant Comparison ............................... 430 B. The Nature of the Latin Notary Profession and its Function Today ..................................... 433 1. The General Concept ........................... 433 2. A Liberal Profession Performing a Public Function ........................................ 434 a. The Publica Fides........................... 440 b. The Protocol, the Collection of Public Documents Subscribed Before a Notary ..... 445 3. Legal Specialization............................. 449 4. Unified Code-Based Legal System .............. 455 C. Education, Admission and Territoriality............. 464 D. ProfessionalLiability ............................... 475 1. Introduction..................................... 475 2. DisciplinaryAuthorities ......................... 476 3. Civil ............................................ 479 4. Criminal ........................................ 481 E. Conclusion .......................................... 482 1. The Status of the Profession .................... 482 2. The Latin Notary, Counsel for the Transaction.. 485 I. Introduction In the United States we have one kind of lawyer, and he is gener- ally expected to be an advocate. Under our adversarial system, law- yers on each side of a dispute litigate a matter on behalf of their clients. Ethical rules rigidly enforce this system, although multiple cli- ent representation is allowed in certain narrow situations.' Addition- ally, legal specialization is a matter of custom and practice. There is 1. Model Rule 1.7 of the Code of Professional Conduct, the general conflict of inter- est provision, allows multiple client representation so long as such representation is not "'materially limited' by the firm's duty to another client." John S. Dzienkowski, Lawyers as Intermediaries: The Representation of Multiple Clients in the Modern Legal Profession, 1992 U. ILL. L. REV. 741, 763 (1992). Rule 2.2 of the Model Rules of Professional Con- duct, the lawyer as intermediary provision, also allows multiple-client representation in specified instances. MODEL RuLEs OF PROFESSIONAL CONDUcT Rule 2.2 (1992). 1996] The Latin Notary- A Historical and Comparative Model nothing governmental about it.' The legal professional providing spe- cialized services will always be a lawyer 3 The Europeans also believe in the adversary system of litigation and law practice.4 However, they have recognized that such a system does not fit every situation, and have created different specialized legal professions to provide particular services. Each profession has its own educational and admission requirements, as well as particular duties within the legal system. A familiar analogy in the common-law world is provided by the British solicitor and barrister. But in addi- tion to the advocacy professionals, even in those countries that have consolidated advocacy functions in a single profession, a particular legal specialist, generally located at the top of the legal hierarchy, acts as a nonadvocate (Le., impartial counsel who advises all parties to a transaction)., In Latin countries, this position is occupied by the legal professional referred to as the Latin notary; she receives from the State the exclusive authority to perform certain legal functions and to impart the required formality to specified legal transactions. The practitioner of the Latin notariat may be identified by the essential elements of this career. The typical Latin notary is: (1) a private legal professional performing a nonadvocacy counseling function; (2) to whom the state entrusts the exclusive power to take a private transac- tion and give it proper legal form and to authenticate it in a public act, by memorializing it in a public document that is publicly enforceable; (3) who must maintain a permanent record of these transactions and issue certified copies of the public documents he prepares to inter- ested parties, upon request; and (4) who is subject to professional, civil, and criminal liability for miscarriage of his office. 2. One rare example of a substantive law specialization that is goi.rnmantally en- forced is the patent bar. See 35 U.S.C. § 31 (1994). Another e~ception i the limited number of federal courts that have enacted special admission requirements. Tie U.S. Dis. trict Court for Puerto Rico, for example, has an examination requirement by Lial rule. This kind of exception is not determined by a substantive law specialty, but by the hati 2 tion forum. 3. I am aware that other professionals (accountants for example) provide nhait mi2ht be described as legal advice, but that is not the focus of this Article. 4. This may seem contrary to the traditional caricature of cii-lay, liti.aticn, , hich i3 usually described as "inquisitorial," as opposed to our "adversary" approach. I di, cus this label, and the misconceptions that can result from it, infra part I.Bo3. 5. See 1 ENRIQuE GIritNEz-ARNAu, DErECHO NOTARPAL ESPA0L 1 i 19 -I. Professor Gim~nez-Arnau tells us that "Latin notary" (",otano Latao) refers to th2 profession that has found the greatest acceptance and exposure in Latin countries; the designation, therefore, is not a reference to its origin in Roman law. Hastings Int'l & Comp. L. Rev. [Vol. 19:389 A. In General In his profession, the Latin notary combines the competence tra- ditionally associated with a public official and the discretion and re- sponsibility of a private legal professional. For this reason, the Latin notary is quite different from notaries public in the United States. The Latin notary owes a duty to the transaction, rather than to a party; he provides a service to "interested parties," not to "clients." Because of the nature of this legal specialization, the Latin notariat has long been used as a comparative model of impartial, multiple-
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