Resolution that initiated the litigation
Can a working notary be a lawyer? Resolution 18549 of November 27, 2019, issued by the General Directorate of Registries and Notaries, resolves the controversy over whether there is a lack of compatibility of the active notary of exercise at the same time the legal profession.
The appeal filed by the Notary Mr. Joan Bernà Xirgo, due to the refusal by the Mercantile and Movable Property Registry X of Barcelona to register the sole proprietorship civil society, whose business purpose was to offer legal advocacy services, while he was still active in the public function of Notary Public.
El litigant object of this resolution is based on defining the compatibility or not of both professional exercises at the same time, and therefore the writing of the Unipersonal Society.
At the bottom of the matter, the resolution agrees to dismiss the appeal and confirm the contested qualification.
Law that prohibits the active notary from being a lawyer
The Notary Law, in its first article, defines “the notary as a public official authorized to attest, in accordance with the laws”. This simple definition allows the arguments of the recurring notary to fall completely, given the solid definition of the Statute of the illustrious Bar Association of Barcelona, in its article 27 which states that "the practice of law is incompatible with public functions and positions public of the State ”. Also reinforced by the General Statute of the Legal Profession in its article 22.2.a) which establishes the incompatibility in the event of performance, in any concept, of positions, functions or public employment in the State and in any of the public administrations.
In addition, if we want to finish giving force to the arguments, it is possible to allege Law 53/1984, of December 26, on Incompatibilities of the personnel at the service of public administrations, specifying in article 2.1.e) and 14 in which it states that "the exercise of professional, labor, commercial or industrial activities outside the public administrations will require prior recognition of compatibility".
Principles of Law that set the guidelines
Finally, it should be remembered that the Notary Law seeks to its fullest extent the principle of impartiality and independence in its actions, intentions which are believed to be violated and incompatible with the exercise of both legal services, since the active employment of the legal profession, defending the interest of one party, it would prevent acting with the principles required by law for notaries such as impartiality.
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