US “Civil Law Notary” Functions Florida “civil-law notary” –Qualifications –Prepare “authentic acts” / maintain protocol –Legal consequences Evaluation of concept
US “Civil Law Notary” Problem: Dad owns St. Martin beachfront property as tenant in common with Mom and Sis. Dad dies, leaving his share to Mom. Sis relinquishes her rights and then negotiates a deal to sell the property, but the St. Martin notary says, “How do I know Mom is the only owner?” Question: What is a “civil law notary” and how does she solve the problem?
US “Civil Law Notary” US solution: Probate order: court with jurisdiction over decedent’s estate decrees ownership –Legal opinion: attorney for beneficiaries gives opinion on court’s power –US consulate: power of state court? –Apostille: not for court documents – see NC secretary of stateNC secretary of state No authoritative, recognized US official
US “Civil Law Notary” Florida solution: “civil law notary” Qualifications Role of US civil law notary –Prepare “authentic act” –Authenticate documents (brevet) –Retain documents (protocol)
US “Civil Law Notary” Todd Kocourek (counsel, Commerce Committee, Fla. House of Representatives) ) Katherine Harris (Florida Secretary of State)
US “Civil Law Notary” Florida solution: “civil law notary” Qualification –Member of Florida bar (high moral character) –Good in good standing – 5 years –Weekend course –Examination (score of 70%) – Fla. Regs.Fla. Regs. –May continue to represent clients
US “Civil Law Notary” Florida solution: “civil law notary” Prepare and verify “authentic acts” –Types of documents –Can verify document prepared by another –Legal consequences Representation of “situation” (Brandeis) –Separate representation not necessary –Duty of independence –Potential malpractice liability
US “Civil Law Notary” Florida solution: “civil law notary” Retain documents (protocol) –Authentic acts –Oaths –Attestations Designate successor civil law notary
US “Civil Law Notary” FSA § 118.10. A civil-law notary is authorized to issue authentic acts and thereby may authenticate or certify any document, transaction, event, condition, or occurrence. The contents of an authentic act and matters incorporated therein shall be presumed correct
US “Civil Law Notary” FSA § 118.10. "Authentic act" means an instrument executed by a civil-law notary referencing this section, which instrument includes the particulars and capacities to act of any transacting parties, a confirmation of the full text of any necessary instrument, the signatures or their legal equivalent of any transacting parties, the signature and seal of a civil-law notary, and such other information prescribed by the Secretary of State.
US “Civil Law Notary” Consider the “authentication” of Mom’s heirship of the St. Martin property: Could this have been accomplished by a “legal opinion”? How would one know – –that the probate court order is authentic? –that the probate court order really makes Mom the exclusive heir? Would this “authentic act” be binding in another US jurisdiction?
AUTHENTICATION I authenticate my Client’s Affidavit of Succession: 1. I am a Florida licensed attorney and civil-law notary. 2. I have taken Client’s oath entitled "Affidavit of Succession" in which she swears she and her mother are the unique heirs of Dad, who died. See Exhibit A. 3. Based on Dad’s domicile and under Florida law, the Florida Probate Court properly exercised jurisdiction over Dad’s estate. 4. I reviewed the court filings in the case. [long list of documents – see Exhibit B]
US “Civil Law Notary” 5. I have reviewed the original Death Certificate. See Exhibit C. 6. In her Petition for Discharge Sis asked that all Dad's estate should pass to Mom. The court so ordered. Under Section 118.10, this authentic act is legally equivalent to the authentic acts of non-US civil-law notaries and is issued on the authority of the Secretary of State. DONE and attested to this 24th day of April, 2001. ______________________________ (SEAL) Howe Dewey Cheetum Florida Civil-law Notary [address]
US “Civil Law Notary” US Constitution, Article IV Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.
US “Civil Law Notary” McClane & Tessitore (Stetson L. Rev.): “… transactional lawyers who need to establish facts and recitations in the context of closing a transaction can strengthen their contract and create a legal presumption of correctness that will deter litigation by using the services of a Florida civil-law notary.” Question: Could a Florida civil law notary issue an “authentic act” that certifies that a merger agreement is valid under Florida law? Presumptively “correct”?
US “Civil Law Notary” Model Civil Law Notary Act, Section 2(2): The contents of an authentic act and matters incorporated therein shall be presumed legal and accurate but such presumption may be rebutted in litigation upon a showing of clear and convincing evidence.