Notary vs Lawyer: Know the Difference

Ever wonder what a Notary Public (Notaris) is? Or what is it means when a notary also works as a Land Title Registrar Officer (Pejabat Pembuat Akta Tanah / PPAT)? In Indonesia, legal services and assistances come in different forms and is provided by different professionals – mainly a public notary or a lawyer. Below is a quick and simple guide to know the differences between the two professions and what kind of legal services you can get from them.

Lawyer

Primarily known as advocate (advokat) in Indonesia. Unlike in Australia where a lawyer is further distinguished between a solicitor and a barrister with the barrister having the capacity to represent you in court, Indonesia has no such distinction. Whether they are practicing as an in-house legal counsel, lawyer in a major law firm, or legal consultant, they are all advocates for the purpose of the law. (See: Article 1(1) of the Law No. 18 of 2003 Concerning Advocates (Advocates Law)).

Before hiring a lawyer or legal counsel, it is important to make sure that they have a valid license to practice and are official members of legally recognized associations such as the Indonesian Advocates Association (Perhimpunan Advokat Indonesia / PERADI). This is an important step when hiring legal representation as these associations provide assurances that the lawyer acts with integrity.

When you require a lawyer / advocate:

Below is a list of situations when you will need a lawyer / advocate to act on your behalf in Indonesia.

a. Litigation (the process of taking legal action)

According to Article 14 of the Advocates Law, any licensed lawyer / advocate can represent a client for a trial in court.

b. Legal counsel

Lawyers / advocates are capable of giving legal advice in various fields such as commercial, criminal, public, and family law. Different lawyers / advocates specialize in different fields and it is recommended to go to a specialized one according to your legal needs.

c. Legal drafting

Primarily in contracts and agreements. Lawyers / advocates can also assist you in negotiating business terms and agreements such as a purchasing contract, property rental contract, partnership contract, and etc. Notary

While lawyers are considered as private sector employees (swasta), notaries on the other hand are public officials appointed by the government such as Ministry of Law and Human Right (Menkumham).

Notary’s primary roles consist of creating authentic deeds, notarizing documents and consultancy. According to Article 3 (g) of the Law No. 30 of 2004 Concerning Notaries (Notaries Law), a notary is prohibited to work as an advocate and cannot perform any advocacies work. An important point to note – this means you cannot get your notary to act on your behalf when you need a lawyer. When you require a notary

a. Authentic Deed

An authentic deed is one of the most important legal documents in Indonesia as it serves as a perfect evidence before the court. There are two types of deed:

(i) a deed that is obligatory to be made by the law as dictated by the government. Obligatory deed is also regulated by statutes such as Law No. 40 of 2007 on Indonesian Company Law that mandates company’s incorporation to be put into a deed and filed to the Minister of Law and Human Rights for approval.

Examples of obligatory deeds include:

• Company’s Article of Incorporation Deed

• Fiduciary Securities Deed

• Will Deed (Testament)

(ii) a deed that is made by a client’s voluntary request for legal purposes. This type of deed are not required by statutes to be made into deed.

Examples of non-obligatory deeds include:

• Loan Agreement Deed

• Share Purchase Agreement Deed

• Lease Agreement Deed

b. Land Deed

Pursuant to the land regulation, a land deed falls under the authority of a Land Title Register Official (Pejabat Pembuat Akta Tanah/PPAT). This means only notaries who have obtained a qualification as PPAT has the power to create a land deed. PPATs are appointed and supervised by the National Land Agency (Badan Pertanahan Nasional / BPN). However, a PPAT can only perform their duties within their territorial jurisdiction where they obtained their qualifications from. Hence for instance, a PPAT in Bali cannot produce a land deed for a land in Java.

c. Notarizing Documents

Notaries can legalize various non-authentic documents to strengthen their legal status. A notary can legalize a non-authentic documents (legalisir) when they act as a witness and confirm the signing of some non-authentic documents. Additionally, a notary can also register non-authentic documents into notarial records (waarmerking).

d. Consultancy

As a legal professional, a notary can give legal advice within the scope of their duty. As this is very vague, it is always best to ask the notary what areas they can consult in and always ask for a reference. This will help you in deciding if they are the right notary for you.

This is a basic run down on the differences between a notary and a lawyer / advocate in Indonesia. If you even need help with finding a lawyer or notary please contact us.

Until next time,

Phoebe Sources:

1. Law No. 30 of 2004 Concerning Notaries (Notaries Law) http://hukum.unsrat.ac.id/uu/uu_30_04.htm

2. Law No. 18 of 2003 Concerning Advocates (Advocates Law)

3. Notary’s Role in Indonesia, https://untungwibowo.co/2017/05/10/32/

4. Regulation of the legal profession in Indonesia: overview, https://uk.practicallaw.thomsonreuters.com/3-634-1082?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1