Institute of Modern Russia

Twenty years ago, an event took place in Russia, the significance of which is hard to overstate. In February 1993, the Fundamental Principles of Legislation of the Russian Federation on the Notariat were adopted. Soon afterward, Russia joined the International Union of Latin Notaries,¹ and in a country that once had only public notaries (both in Soviet times and after the dissolution of the Soviet Union), private notaries appeared as well.

The USSR’s system of state assignment offered law students rather limited career options, and the least attractive among these was a job in a notary's office. The only thing worse was an assignment to a registry office. Nobody among final-year law students at Moscow State University could understand what a lawyer was supposed to do in a registry office, but for all its mystery, such a prospect seemed unattractive. As for public notaries, their situation was crystal clear and was characterized by nervous, high-pressure work with a very low salary and almost no opportunities for advancement. It is no surprise, then, that there were not many who aspired to work in a notary's office.

Drastic changes in the legislation on notaries radically altered the situation. After the Fundamental Principles of Legislation of the Russian Federation on the Notariat came into force, a private practice notary system started to operate alongside the public notary system.

American readers may be surprised by the fact that these changes in Russian legislation were taken so seriously and considered revolutionary. However, the functions of a notary in common law countries are rather different from the functions of a notary in countries with a continental (Romano-Germanic) law system. In Romano-Germanic countries, a notary is a separate type of law profession. Unlike in the United States, where the area of a notary's authority is quite limited, notaries in Russia and other continental law countries fulfill a number of functions that in the United States would fall under a lawyer's jurisdiction. According to the law on notary practice, all Russian notaries are required to attain a higher legal education; complete an internship of at least a year in a public or private notary's office; pass a qualification examination; and receive a notary's license to practice, which is issued according to a procedure established by the Ministry of Justice.

From the point of view of regular citizens, who are the main recipients of notarial services, the appearance of private notaries aroused suspicion. Being used to waiting in long lines in small public notaries' offices and dealing with moody, overworked, and often-rude notaries, people thought that private notaries were too good to be true. Sitting in their beautiful and spacious offices, private notaries looked far better than their colleagues in public service: they treated their clients politely, and there were no lines in their offices. But all these things suggested that private notaries would cost money. Besides, it was unclear where these nice and polished men and women came from and who had given them the right to occupy these shining offices. Citizens felt in their bones that something was wrong here. Either these "private traders" would demand exorbitant prices, they assumed, or else they must be swindlers, having illegally occupied these premises and now imposing their services on illegal grounds as well.

Cautious people did not realize right away that, according to the law, the functions of public and private notaries were identical even at the very beginning. The law also set the same qualifying requirements and standards for both, with the only difference consisting in the fact that the Ministry of Justice appointed private notaries to office on the recommendation of the Federal Notary Chamber (FNC), which controls and coordinates the activity of notaries involved in private practice. Article 2 of the Fundamental Principles established that "when performing notarial actions notaries shall possess equal rights and bear identical duties irrespective of whether they work in a state notarial office or engage in private practice. Documents formalized by notaries shall have identical legal force." At the same time, the extent of private notaries’ responsibility and the risks that resulted from their activity were fundamentally different from the responsibility and risks faced by public notaries. According to Article 17 of the Fundamental Principles, "a notary engaging in private practice who has intentionally divulged information concerning a notarial action performed or who has performed a notarial action which is contrary to legislation of the Russian Federation shall be obliged by decision of a court to compensate the damage caused as a consequence thereof." As far as the responsibilities of public notaries were concerned, the Fundamental Principles provided the following vague wording: "A notary working in a state notarial office shall in the event of the performance of actions which are contrary to legislation of the Russian Federation bear responsibility in the procedure established by law." In practice, this meant that if a public notary made a mistake, the damage caused by his actions would be compensated by a microscopic amount from the budget. Besides, notaries involved in private practice were obliged to draw up a contract of insurance for each client. Private notaries did not have the right to fulfill their duties without such a contract (Article 18).

Anatoly Tikhenko, Russia's first private notary, president of the Federal Notary Chamber, and a member of the Russian president's Council on the Improvement of the Justice System, was murdered in 2001.

It turned out that the professional life of a private notary was not all sunshine and rainbows; it had too much responsibility and was too costly. A private notary had to lease an office—and not just some kind of shack, but a nice-looking space; to hire personnel, which does not come free either; and to be responsible for any damage caused by him or her while fulfilling his or her duties, not to mention the obligatory insurance required to carry out such activity. The job prestige, however, kept increasing, and private notaries' career opportunities became so attractive that an enormous number of notaries rushed into the private sector, where they were faced with a problem. It turned out that it was no longer possible to be appointed to the much-desired office of a private notary by order of an official from the Ministry of Justice. Nevertheless, interested persons stormed the private sector. Rigorous qualification requirements and the appearance of the FNC were a hindrance for such people. Serious disagreements emerged between the FNC and the Ministry of Justice, and as a result, the resourceful Ministry of Justice started creating collateral chambers. Those who could not pass or did not want to undergo the strict professional selection process were, as before, appointed to these chambers by an official order in circumvention of the obligatory membership in the FNC. The media at the time described the situation as follows: "Those justice officials who did not become private notaries in due time are now doing their best to destroy the more or less effective system of private notary practice. In order to achieve this goal, absurd instructions are being adopted, different schemes are being designed, public notaries are being illegally appointed to the office, and conflicts in notaries' communities are being encouraged. Supported by the Ministry of Justice, redundant regional notary chambers are emerging, which will include those not very worthy representatives of this profession, who were for some reason denied the membership in chambers functioning according to the law."

Two notary chambers therefore operated alongside one another in Russia for some time, one of them being a priori illegitimate. The case eventually came to the Constitutional Court of the Russian Federation, which ruled that the disputed provisions of the Fundamental Principles did not contradict the Constitution. As a result, the collateral chamber founded by the Ministry of Justice was abolished, which signified a big victory for the FNC.

The FNC was represented in the Constitutional Court by Anatoly Tikhenko and Nuriman Sharafetdinov. Tall, with spade beards, often smiling, and with easy manners, both men were the best publicity possible for the private notary practice. Head of the FNC since 1996, Anatoly Tikhenko was Russia's first private notary, receiving the country's first license to practice—#000001—on April 7, 1993. Before joining the administration of the FNC, his friend and colleague Nuriman Sharafetdinov had been president of the Russian Legal Academy of the Ministry of Justice. Their speeches during the hearings conveyed a genuine belief both in the justifiability of their position and in the necessity of developing a system of private notary practice in Russia. Those who sympathized with this position nicknamed them "fighters."

Tikhenko really was a fighter. Sharafetdinov remains one to this day, but the life of his friend and colleague tragically ended too soon. On February 28, 2001, Anatoly Tikhenko was shot dead in the entrance of his building. The killers were, as usual, never found.

It is hard to overestimate what the founders of the private notary system achieved in Russia. They not only solved the problem of lines in notary's offices, but also radically changed the public’s perception of the notary profession and dramatically enhanced its prestige. The introduction of accountability for private notaries and the requirement that they insure their professional activity not only affected the quality of notaries' work but also increased people's trust toward this type of law profession. A so-called "preventive function" of a notary was fixed in the legislation, meaning that it was a notary's duty to explain to citizens and organizations their rights and responsibilities, as well as warn them about the consequences of notarial actions to be performed, so that legal illiteracy could not work to their detriment (Article 16 of the Fundamental Principles). For example, when notarially certifying a contract, the notary is supposed to explain its content as well as its consequences to the concerned parties. Notaries often draft contracts for their clients themselves, which makes them legal guarantors of any deal made. If a notary thinks that a notarial action to be performed fails to conform to legislation, he or she is supposed to refuse to perform such an action. Thus, notaries fulfill a very important function of preliminary control with regard to a large number of contracts.

It goes without saying that today's notary community still faces a lot of problems and disagreements, and notarial work should not be seen as an ideal. But it is still hard to deny that this type of work has turned from the least important job of the law profession into one of the most prestigious legal jobs in existence today. And in the general context of Russian reforms of the last twenty years, the transformation of the notary's profession is indeed striking. Some, however, had to pay the ultimate price in order for this to happen.

¹ This was the name of the organization when the Russian Federation joined it. It is now called the International Union of Notaries.