The Returning Notary and the Prior Waiver of Secrecy
Notary A has been on maternity leave for 14 months; during that time her colleague Notary B lawfully served as substitute and executed a series of transactions, including a 30,000,000 AMD apartment sale, a power of attorney in favor of the seller's nephew, and an inheritance certificate file. On her return, Notary A is asked by the buyer's bank to disclose the full file of the apartment sale and by the seller's estranged son to disclose the inheritance file. Separately, a former client who had executed a notarial waiver of secrecy in favor of a specific lender now demands that Notary A reveal to him what she disclosed to that lender last year. Notary A also finds that one substitute file lacks an inventory and one document is missing from the archive.
1. May Notary A disclose the apartment-sale file to the bank and the inheritance file to the seller's son? Analyze each request separately.
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Apartment sale to the bank. Notarial secrecy survives the end of the notary's service and the substitute's tenure; the file belongs to the notariat, not to the individual notary. A bank that is not a party and holds no notarially executed waiver or statutory basis receives nothing. The buyer's consent, if obtained in writing and specific, could authorize disclosure of the buyer's own data, but not of the seller's data without the seller's consent. Inheritance file to the estranged son. An heir who has accepted the inheritance may have a legitimate interest in the certificate, but the notary must still verify the son's status as a lawful heir or person with a legal interest; the mere fact of kinship is insufficient if he was excluded or has not accepted. The safe course: request written proof of interest, disclose only the minimum (e.g., confirmation that a certificate was issued and to whom, if the inquirer is an heir), and refuse the rest. In both cases the notary should record the refusal in writing.
2. How should Notary A handle the client who, having signed a waiver of secrecy, now wants to know what was disclosed under it?
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The waiver is a client's own act and does not convert the notary into the client's information officer about third parties. The notary may confirm to the client what the client himself authorized, because the client is the source of the authorization, but must not reveal the lender's internal use of the data or any third-party information beyond the scope of the waiver. The waiver must be construed narrowly: if it named a specific lender and a specific purpose, disclosure outside that purpose remains prohibited. The notary should show the client the text of his own waiver and explain the scope, and decline any request that exceeds it.
3. What are the notary's obligations regarding the missing inventory and the missing document?
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The substitute's files must be transferred with a complete inventory; the absence of an inventory is a records-management defect that the notary must remediate by reconstructing the inventory from the register, the acts themselves, and any electronic records, and by documenting the discrepancy. The missing document must be searched for, and if genuinely lost, a protocol of loss should be drawn up and the competent authority notified per the rules on archive integrity. Concealment is not an option: the notary bears responsibility for the archive she heads, and a substitute's error does not transfer liability away from the office. The notary should also notify the Chamber and, where the loss affects a party's rights, inform the affected persons so they can obtain duplicates.