The status of Notaires and the type of relations that they have with their clients imply that they must be subject to stringent codes of professional conduct and checks. These checks concern both the rigour of their legal work and the manner of maintaining their accounts. The code of ethics lays the foundations of how Notaires practise and, as a result, of the trust their clients have in them. The code of ethics consists of a set of key values including both duties and obligations.
The rules are defined in the National Regulations of the Profession which include several general obligations :
As a client, what can I expect from my Notaire ?
The Notaire has a duty of integrity and thoroughness as concerns legal requirements, particularly authenticity.
The Notaire is subject to professional confidentiality: as a public officer he may under no circumstances disclose confidential information revealed to him. In addition to the criminal and disciplinary action taken against the Notaire, he is also liable to be ordered to pay damages.
He has a duty to advise: the client expects a Notaire to explain the various options open to him as well as the consequences of the instruments/documents he signs.
This duty to advise implies that the Notaire is neutral and impartial : a Notiare chosen by one client has an obligation of fairness towards him and towards the other co-contracting parties.
The Notaire is subject to which checks ?
In order to ensure strict monitoring of the way the Notaire operates, and to report on the actual situation in the office, every office is subject to at least one inspection every year without prior notice. These inspections concern legal handling of files and rigour in maintaining the accounts.
Each inspection results in a report submitted simultaneously to the Chairman of the disciplinary tribunal (chambre de discipline) and the State Prosecutor.
There are two types of inspectors :
- the "notaire-inspectors" having their offices outside the départements of the Notaires who are inspected (in order to avoid any partiality that closeness may lead to).
- the accounting inspectors (chartered accountants, auditors, etc.).
The inspectors have extensive investigative powers.
If they detect any irregularities, they are bound to inform the profession's disciplinary bodies as well as the judicial authorities.
In order to ensure total transparency and impartiality, these inspectors are notably criminally liable for the thoroughness of their inspections.
What is the Notaires liability ?
Civil liability.
Any negligence by the Notaire in the drafting of his instruments and in the checks he is expected to carry out can lead to engaging his liability.
In order to ensure that it can assume this liability, the profession has a two-layer guarantee system :
- Professional civil liability insurance. The purpose of this insurance is to cover the consequences of damage caused by errors committed by the Notaire.
- Collective guarantee. The entire profession guarantees the notaires' clients against damage caused by deliberate or criminally wrongful actions committed by the latter that are not covered by their insurance. There is no ceiling to this guarantee.
Criminal liability
A Notaire is criminally liable if he knowingly records inaccurate or erroneous facts. Under these circumstances they are open to prosecution for forging public documents.
Disciplinary liability
Unlike criminal action, which implies that a given offence be punishable under a given law, disciplinary action is used for breaches of the code of professional conduct. Disciplinary action is taken independently of criminal proceedings.
Depending on the seriousness of the offence, disciplinary matters are taken either to the disciplinary chambers or the courts.
What can I do if I am dissatisfied with my Notaire ?
Before filing a complaint with the disciplinary chamber, try to sort out the problem with your Notaire. If he agrees that he has made a mistake, a civil liability insurance claim may be made to enable the insurers to investigate the merits of your complaint.
If your Notaire fails to reply, or if you are dissatisfied with the reply, you can write to the Chairman of the Chamber; the Chairman is empowered to obtain all the information needed about your case to establish how it has been dealt with.
The Chairman of the Chamber must reply to you. For the Chairman's contact details, see the Chambers of Notaires.
If you are still not satisfied, you may file a case with the State Prosecutor (Procureur de la République).
Are authenticated legal instruments really a guarantee of security and certainty ?
Yes. Of the 4.5 million documents drawn up in 2006, less than 4,200 led to litigation, a rate of less than 1 in 1,000.
In his capacity as public officer appointed by the State, the Notaire is subject to many specific obligations. Special disciplinary laws ensure that these obligations are complied with and that the notaires abide by their duty to apply the law and regulations. The Notaire is personally liable for all his professional acts.
He is responsible for the form and content of the documents he draws up as well as for archiving them. He also has a duty to advise his clients.
