Notary public services or notary service broadly forms part of the legal profession but the scope of their service is limited to authenticating certain types of documents, particularly when it is required by law in the country where the documents originate or in the country that receives the documents. Solicitors on the other hand broadly represent the legal profession. Solicitors can offer a wide range of services to clients and can encompass different facets of law such as civil law, criminal law, conveyancing, family law, etc typically within the jurisdiction where they practice.
Notary service/Notary public services are focused on a specialized area within the legal profession relating to preparation, certification and legalisation of documents so that they can be effectively used in a different country. Often notarized documents are personal in nature like wills, passports diploma or degree certificates etc. though they can also be corporate documents like certificate of incorporation or deeds. The primary duty of a notary is to ensure the authenticity of a document and that the transaction involved through the documents is legal. In most jurisdictions, notaries are appointed by a local court and are internationally recognized. Therefore, they are also required to maintain complete integrity, impartiality and professionalism to safeguard the high standards of the notarial profession.
A notary or notary public is a legal professional with substantial standing and experience in legal practice across diverse branches of law with particular focus on wills, deeds, conveyancing, etc. They may also be required to undergo specific training and acquire additional academic qualifications to handle the functions of a notary public. In rare instances, individuals holding high offices in government with rich experience in handling legal matters may also be appointed as a notary public when deemed fit and necessary.
The role of a solicitor
A solicitor receives instructions from clients, offers advice on the course of legal action necessary based on the area of legal expertise he/she has. Most solicitors are experienced lawyers and may specialize in different branches of law or handle advocacy cases on their own. Working directly with their clients, solicitors establish the suitability of their firm for providing necessary legal services and advice following instructions provided by the client and appraise of the legal issues impacting their particular litigation.
Solicitors also handle communication and paperwork with regard to the cases of their clients, including the writing of documents, preparing contracts, letters etc tailored to the needs of the clients, ensure accuracy of legal procedure and advice provided and preparation of papers required to be submitted to the courts. Negotiating with opposing parties and clients to secured the agreed outcomes, gathering evidence, supervising the implementation of any agreements, calculating claims for compensation, damages, earnings loss, maintenance and co-ordinating work of parties to the suit are also part of a solicitor’s functions. They work across a wide spectrum of legal activity from family law, personal injury suits, commercial work of high value, divorce cases, criminal cases, probating wills, administering estates etc. Solicitors can also represent their clients in court when needed though, in complex matters, solicitors may depute specialist advocates to appear in Court and represent their clients. In other words, barring exceptional lawsuits involving high financial value or complex issues of law, solicitors generally do not appear in court to prosecute the suits filed by their clients.
How notaries are appointed in Australia
In the Australian context, barring Queensland, the appointment of notaries/notary public is done through legislation in the respective state or territory. The Supreme Court is vested with the powers to make this appointment. Subsequent to such an appointment, the individual is admitted to the ‘Role of Notaries’. In Queensland, the power to appoint notaries is entrusted to the Archbishop’s Court.
A legal practitioner with significant experience in multiple branches of the law can generally apply for becoming a notary/notary public. The Courts may also stipulate certain additional qualifications and/or type/extent of experience with one or more branches of law to qualify as a candidate for appointment. In modern times, many authorized Australian agencies also offer notary public services for varying needs.
Role of notaries
The role of notaries is not specifically defined. However, a wide range of functions was assigned to notaries under English law. Notary services were predominantly used in shipping and international trade in the olden days. However, the digital world and modern communication aids have nearly extinguished the need for notarization today. Yet, notarization continues to be relevant in areas like documentation for immigration, certain real estate transactions involving foreigners, Australian citizens seeking to pursue business, personal or educational interests in foreign countries etc.
Apostilles/legalisation
Legalisation and Apostilles is also a part of the functions of a notary public/notary services. In earlier years, documents executed in foreign countries had to be legalized in certain circumstances. Legalisation involves a series of process of verification and authentication of authorities/signatures, appointments and other matters impacting the validation of documents. However, after the Hague convention of 1961, legalisation requirement was abolished except with respect to countries that did not subscribe to the Hague convention. The Hague convention, however, introduced another method known as Apostilles issued by an official of the Government under his/her signature and seal and recognized in the country that received the apostille. In most instances, Apostilles are issued by the department of trade and foreign affairs.
Effectively, Apostilles serve to certify the appointment of notaries. Documents attached to the Apostilles are required to be signed and sealed by a notary and carry any certificate that he may be required to provide. Thus, a notary public is expected to certify, authenticate/witness documents as appropriate and attach them in compliance with requirements laid down by the countries receiving the document.
The only purpose of an Apostille is the appointment of notaries. When a notarized document is accompanied by an Apostille, it looks pretty impressive with a combination of seals from the notary and the Foreign affairs department making it binding in an official green tape.
Distinct seal of a notary
Every individual designated as a notary public should affix a distinct seal to the documents notarized. In most instances, metal seals carrying the name of the notary and the place where he was appointed are used. Often, this seal is applied to the documents in combination with a red adhesive paper to obtain an indelible imprint of the seal. When a department provides an Apostille to the notary, he will be required to produce evidence that an appropriate court has duly appointed him in that capacity. He should also submit a copy of his signature and seal to the department before the Apostille is issued. As we mentioned earlier, certain countries do not recognize the apostille, but the appointment of a notary would still be recognized if the seal and signature of the notary are registered at the respective foreign embassy.
Conclusion
A notary public/notary services are generally appointed by the Court having appropriate jurisdiction while a Solicitor is a legal professional who is a member of the local bar council or bar association.