Page 37 - MONACO LAW REVIEW 2025-2

instruments, must, on pain of nullity, be authorised or
ordered by the President of the Court of First Instance, upon
an application by the Prosecutor General.
These are new provisions, which entered into force in
2024, and they may be surprising, appearing in part
to be contradictory. Indeed, until now, the profession
considered that a client could not release his or her notary
from professional secrecy nor authorise the disclosure
of confi dential information, since professional secrecy
is imposed on the notary under criminal sanctions by
Article 308 of the Criminal Code and is not placed at his
or her discretion. Yet, according to the above-mentioned
provisions, any notary may henceforth, upon a simple
formal request from the Prosecutor General or from the
offi cer of the criminal investigation police delegated by him,
consent:
- to communicate information and provide documents he or
she may hold that are useful for establishing the truth;
- and, if he or she believes himself or herself authorised by
the client, to provide testimony.
However, according to the requirements of the fi nal paragraph
of Article 81-6-2, such a course of action would be tainted with
nullity, since the disclosure of information held by a notary or
the issuance by him or her of copies of instruments may only
be authorised or ordered by the President of the Court of First
Instance, upon an application by the Prosecutor General.
This is all the more so because, in my experience, the Public
Prosecution Service systematically resorts, in order to
obtain information or obtain copies of documents covered
by professional secrecy, to the application of the fi nal
paragraph of Article 81-6-2.
At the end of this brief overview of the notary’s
professional secrecy, one might be led to believe that the
absolute nature of that secrecy has somewhat faded, given
the many statutory exceptions it comprises. This is all the
more so since it may be expected that, under the infl uence of
several factors - beginning with technological and societal
developments, the growing use of artifi cial intelligence
in the legal fi eld, and cybercrime - the legal framework
governing professional secrecy will evolve towards a more
fl exible approach, such secrecy nonetheless remaining
absolute vis-à-vis private individuals, while becoming
relative in relation to public authorities.
I remain convinced that the absolute and general nature of
the notary’s professional secrecy makes it an essential pillar,
and that the numerous inroads made into it constitute no
more than exceptions to this fundamental principle of our
profession.
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