Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

A.C. No. 7350 February 18, 2013

PATROCINIO V. AGBULOS, Complainant, vs.ATTY. ROSELLER A. VIRAY, Respondent.

D E C I S I O N

PERALTA, J.:

The case stemmed from a Complaint1 filed before the Office of the Bar Confidant (OBC) by complainant Mrs. Patrocinio V. Agbulos against respondent Atty. Roseller A. Viray of Asingan, Pangasinan, for allegedly notarizing a document denominated as Affidavit of Non-Tenancy2 in violation of the Notarial Law. The said affidavit was supposedly executed by complainant, but the latter denies said execution and claims that the signature and the community tax certificate (CTC) she allegedly presented are not hers. She further claims that the CTC belongs to a certain Christian Anton. 3 Complainant added that she did not personally appear before respondent for the notarization of the document. She, likewise, states that respondent's client, Rolando Dollente (Dollente), benefited from the said falsified affidavit as it contributed to the illegal transfer of a property registered in her name to that of Dollente.4

In his Comment,5 respondent admitted having prepared and notarized the document in question at the request of his client Dollente, who assured him that it was personally signed by complainant and that the CTC appearing therein is owned by her.6 He, thus, claims good faith in notarizing the subject document.

In a Resolution7 dated April 16, 2007, the OBC referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation or decision.

After the mandatory conference and hearing, the parties submitted their respective Position Papers.8Complainant insists that she was deprived of her property because of the illegal notarization of the subject document.9 Respondent, on the other hand, admits having notarized the document in question and asks for apology and forgiveness from complainant as a result of his indiscretion.10

In his report, Commissioner Dennis A. B. Funa (Commissioner Funa) reported that respondent indeed notarized the subject document in the absence of the alleged affiant having been brought only to respondent by Dollente. It turned out later that the document was falsified and the CTC belonged to another person and not to complainant. He further observed that respondent did not attempt to refute

the accusation against him; rather, he even apologized for the complained act.11 Commissioner Funa, thus, recommended that respondent be found guilty of violating the Code of Professional Responsibility and the 2004 Rules on Notarial Practice, and that he be meted the penalty of six (6) months suspension as a lawyer and six (6) months suspension as a Notary Public.12

On April 15, 2008, the IBP Board of Governors issued Resolution No. XVIII-2008-166 which reads:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent’s violation of the Code of Professional Responsibility and 2004 Rules on Notarial Practice, Atty. Roseller A. Viray is hereby SUSPENDED from the practice of law for one (1) month.13

Respondent moved for the reconsideration of the above decision, but the same was denied. The above resolution was further modified in Resolution No. XX-2012-117, dated March 10, 2012, to read as follows:

RESOLVED to DENY Respondent’s Motion for Reconsideration, and unanimously MODIFY as it is hereby MODIFIED Resolution No. XVIII- 2008-166 dated April 15, 2008, in addition to Respondent’s SUSPENSION from the practice of law for one (1) month, Atty. Roseller A. Viray is hereby SUSPENDED as Notary Public for six (6) months. (Emphasis in the original)

The findings of the IBP are well taken.

Section 2 (b) of Rule IV of the 2004 Rules on Notarial Practice emphasizes the necessity of the affiant’s personal appearance before the notary public:14

x x x x

(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

Moreover, Section 12,15 Rule II, of the 2004 Rules on Notarial Practice defines the "competent evidence of identity" referred to above.

In this case, respondent admits that not only did he prepare and notarize the subject affidavit but he likewise notarized the same without the affiant’s personal appearance. He explained that he did so merely upon the assurance of his client Dollente that the document was executed by complainant. In notarizing the document, respondent contented himself with the presentation of a CTC despite the Rules’ clear requirement of presentation of competent evidence of identity such as an identification card

with photograph and signature. With this indiscretion, respondent failed to ascertain the genuineness of the affiant’s signature which turned out to be a forgery. In failing to observe the requirements of the Rules, even the CTC presented, purportedly owned by complainant, turned out to belong to somebody else.

To be sure, a notary public should not notarize a document unless the person who signed the same is the very same person who executed and personally appeared before him to attest to the contents and the truth of what are stated therein.16 Without the appearance of the person who actually executed the document in question, the notary public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or deed.17

As aptly observed by the Court in Dela Cruz-Sillano v. Pangan:18

The Court is aware of the practice of not a few lawyers commissioned as notary public to authenticate documents without requiring the physical presence of affiants. However, the adverse consequences of this practice far outweigh whatever convenience is afforded to the absent affiants. Doing away with the essential requirement of physical presence of the affiant does not take into account the likelihood that the documents may be spurious or that the affiants may not be who they purport to be. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and deed.19

The Court has repeatedly emphasized in a number of cases20 the important role a notary public performs, to wit:

x x x [N]otarization is not an empty, meaningless routinary act but one invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. A notarized document is, by law, entitled to full faith and credit upon its face. It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.21

Respondent’s failure to perform his duty as a notary public resulted not only damage to those directly affected by the notarized document but also in undermining the integrity of a notary public and in degrading the function of notarization.22 He should, thus, be held liable for such negligence not only as a notary public but also as a lawyer.23 The responsibility to faithfully observe and respect the legal solemnity of the oath in an acknowledgment or jurat is more pronounced when the notary public is a lawyer because of his solemn oath under the Code of Professional Responsibility to obey the laws and to do no falsehood or consent to the doing of any.24 Lawyers commissioned as notaries public are mandated to discharge with fidelity the duties of their offices, such duties being dictated by public policy and impressed with public interest.251âwphi1

As to the proper penalty, the Court finds the need to increase that recommended by the IBP which is one month suspension as a lawyer and six months suspension as notary public, considering that respondent himself prepared the document, and he performed the notarial act without the personal appearance of the affiant and without identifying her with competent evidence of her identity. With his indiscretion, he allowed the use of a CTC by someone who did not own it. Worse, he allowed himself to be an instrument of fraud. Based on existing jurisprudence, when a lawyer commissioned as a notary public fails to discharge his duties as such, he is meted the penalties of revocation of his notarial commission, disqualification from being commissioned as a notary public for a period of two years, and suspension from the practice of law for one year.26

WHEREFORE, the Court finds respondent Atty. Roseller A. Viray GUILTY of breach of the 2004 Rules on Notarial Practice and the Code of Professional Responsibility. Accordingly, the Court SUSPENDS him from the practice of law for one (1) year; REVOKES his incumbent commission, if any; and PROHIBITS him from being commissioned as a notary public for two (2) years, effective immediately. He is WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely.

Let all the courts, through the Office of the Court Administrator, as well as the IBP and the Office of the Bar Confidant, be notified of this Decision and be it entered into respondent's personal record.

SO ORDERED

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

A.C. No. 10185 March 12, 2014

LICERIO DIZON, Complainant, vs.ATTY. MARCELINO CABUCANA, JR., Respondent.

R E S O L U T I O N

MENDOZA, J.:

On May 14, 2004, complainant Licerio Dizon (complainant) filed a petition against Atty. Marcelino Cabucana, Jr. (Atty. Cabucana), before the Integrated Bar of the Philippines (IBP), praying for the disbarment of the latter for falsification of public document.

In his petition, complainant alleged that he was one of the would-be-buyers of a parcel of land owned by the heirs of the late Florentino Callangan, namely, Susana, Jun and Angeleta, all surnamed Callangan who were parties in Civil Case No. 1-689 filed before the Municipal Trial Court in Cities, Branch I, Santiago City (MTCC); that on November 6, 2003, a compromise agreement was executed by the parties in the said case and notarized before Atty. Cabucana on the same date it was signed at the MTCC; that at the hearing conducted on December 11, 2003 regarding the due execution and the veracity of the compromise agreement, the signatories therein testified that they signed the instrument in the court room of MTCC but not in the presence of Atty. Cabucana as Notary Public; that because of the irregularity in the due execution of the Compromise Agreement, there was undue delay in the resolution/decision of Civil Case No. 1-689 which caused damage and injury to complainant; that Atty. Cabucana violated the Notarial Law in notarizing the document in the absence of most of the signatories/affiants; and that he should be sanctioned in accordance with Rule 138, Section 27 of the Rules of Code and Code of Professional Responsibility. Complainant further alleged that Atty. Cabucana uttered grave threats against him on July 20, 2004 after the hearing of the said case in MTCC.

In his Answer, Atty. Cabucana averred that the complaint was intended to harass him because he was the private prosecutor in a criminal case filed against complainant before the MTCC; that complainant had no cause of action as his right was not violated because he was just a "would be" buyer and not a party to the compromise agreement; and that complainant would not suffer any damage by the pendency of the case or by any defects obtaining in the notarization of the compromise agreement.

In its Report and Recommendation,1 dated January 22, 2007, the Investigating Commissioner found that Atty. Cabucana violated Rule 1.01, Canon 1 of the Code of Professional Responsibility when he notarized the compromise agreement without the presence of all the parties, and recommended that he be suspended as Notary Public for a period of two (2) years and from the practice of law for six (6) months.

In its Resolution,2 dated May 31, 2007, the IBP Board of Governors adopted and approved the Report and Recommendation of the Investigating Commissioner with modification that Atty. Cabucana be suspended for only six (6) months for violation of his obligation as Notary Public.

On motion for reconsideration, the IBP Board of Governors, in a Resolution,3 modified its earlier resolution and suspended Atty. Cabucana from the practice of law for one (1) month and disqualified him from re-appointment as notary public for one (1) year.

The Court agrees with the recommendation of the IBP Board of Governors except as to the penalty.

Section 1, Public Act No. 2103, otherwise known as the Notarial Law states:

The acknowledgment shall be before a notary public or an officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his free act and deed. The certificate shall be made under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state.

The requirement of affiant's personal appearance was further emphasized in Section 2 (b) of Rule IV of the Rules on Notarial Practice of 2004 which provides that:

A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary's presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

As a notary public, Atty. Cabucana should not notarize a document unless the person who signs it is the same person executing it and personally appearing before him to attest to the truth of its contents. This is to enable him to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party's free and voluntary act and deed.

WHEREFORE, the Court finds respondent Atty. Marcelino Cabucana, Jr. GUILTY of violating Rule 1.01, Canon l of the Code of Professional Responsibility.1âwphi1 Accordingly, the Court SUSPENDS him from the practice of law for three (3) months, REVOKES his incumbent notarial commission, if any, and PROHIBITS him from being commissioned as a notary public for two (2) years, effective immediately, with a stern WARNING that a repetition of the same or similar offense shall be dealt with more severely.

Let copies of this resolution be furnished the Bar Confidant to be included in the records of the respondent; the Integrated Bar of the Philippines for distribution to all its chapters; and the Office of the Court Administrator for dissemination to all cou1is throughout the country.

SO ORDERED.

[Adm. Case No. 4758. April 30, 1999.]

VICTOR NUNGA, Complainant, v. ATTY. VENANCIO VIRAY, Respondent.

R E S O L U T I O N

DAVIDE, JR., C.J.:

In his complaint, Victor Nunga seeks the disbarment of respondent Venancio Viray on the ground of grave misconduct for notarizing documents without a commission to do so. After issues were joined, the Integrated Bar of the Philippines conducted an investigation.

The Investigating Commissioner was Atty. Lydia A. Navarro. Her Report dated 4 August 1998 reads as follows:chanrob1es virtual 1aw library

Victor D. Nunga, president of the Masantol Rural Bank filed a complaint for disbarment against Atty. Venancio M. Viray on the ground of gross and serious misconduct for notarizing documents when he was not commissioned to do so at the time the said documents were executed.

Complainant alleged that in May 1996, he was appointed by the board of directors of Masantol Rural Bank after his father’s resignation as its president.

A few month[] thereafter, he allegedly discovered that one of the bank’s assets consisting of 250 square meters house and lot in Kalookan City was sold without proper bidding by its manager Jesus B. Manansala to Jesus Carlo Gerard M. Viray, a minor born February 2, 1969 during the transaction on May 22, 1987. The deed of absolute sale was notarized by the respondent who is not only the father of the buyer minor but also a stockholder and legal counsel of the vendor bank and was not duly commissioned as notary public as of that date.

Complainant further alleged that the said minor vendee wasn’t capable to buy the said property at its value of FOUR HUNDRED THOUSAND PESOS (P400,000.00) but his parents Atty. and Mrs. Venancio Viray, respondent herein [sic]. Being a minor he must [have been] represented by a guardian in the said transaction. After the title was allegedly issued in the name of the minor vendee Jesus Carlo [M.] Viray, the same title was allegedly used by Respondent and his wife in mortgaging the property to Crown Savings and Loan Association for THREE HUNDRED THOUSAND PESOS (P300,000.00) on July 15, 1991 both by virtue of Special Powers of Attorney annotated at the back of the TCT No. 362813 PR 9907. The

annotation of the cancellation of the THREE HUNDRED THOUSAND PESOS (P300,000.00) loan in . . . favor of Crown Savings and Loan Association under entry number 1226 was allegedly entered in the notarial registry of the Respondent for 1991 when he wasn’t commissioned as notary public.

The aforesaid acts of Respondent allegedly constitute not only unprofessional and unethical misconduct unbecoming of a lawyer but also gross and serious malpractice which justifies disbarment.

Respondent for his part alleged in his comment that complainant holds no position at the Masantol Rural Bank Inc. [i]n 1987 and 1997, but is facing criminal charges for having plundered the said bank of millions of pesos and [for] trespass to dwelling; while his father is facing a case before the Securities and Exchange Commission. The sale of the lot by the Masantol Rural Bank Inc. to his son was allegedly done in good faith all the formalities required by law [were] properly complied with and the complaint from all indications is a leverage in persuading him into a possible compromise.

From 1965 to date Respondent alleged that he was always commissioned as notary public and the fact that Pampanga is under several feet of floodwaters, he could not annex all the needed documents to support the allegations. According to Respondent, there was no year in his practice of law that he was not commissioned as notary public. In fact, in the alleged documents he had PTR for that purpose [, and] he would not [have obtained] a commission without the PTR.

After going over the records of this case, the Undersigned noted that although both parties were required to submit their respective memorand[a], only complainant complied with the order.

Complainant submitted certification and the respective orders of the Clerk of Court and presiding judges . . .in support of his contention, and previous certification issued by the Clerk of Court of Pampanga to the effect that Respondent Atty. Venancio Viray had been commissioned to act as notary public for the said province on January 2, 1981 to December 31, 1982; January 10, 1983 to December 31, 1984; and January 8, 1995 to December 31, 1996 and had no record of any notarial reports. These therefore negate respondent’s allegation that he [has been] commissioned as notary public since 1965 to the present.

Complainant likewise submitted a copy of the Resolution which dismissed the cases filed against the Complainant and his father and the xerox copy of the TCT No. 362813 PR 9907 where the special power of attorney and the annotations for the cancellation of mortgage showed inscription of the same in the notarial register of Venancio Viray on June 4, 1991. Nowhere from the records and evidence[] submitted was there any proof that Respondent was commissioned as notary public in 1987 and 1991, the years the Absolute Deed of Sale was notarized by Respondent as appearing to be May 22, 1987 and the inscription for cancellation of mortgage on the dorsal side of TCT 362813 as June 4, 1991 [sic].

The respondent’s contention that he had a PTR for all the documents he prepared is only an indication that the Professional Tax Receipt is a license for him to engage in the practice of his profession as a lawyer but not a commission for him to act as notary public.

Inasmuch as Respondent was not able to counteract the averments of Complainant which were duly supported with evidence[], it is apparent that Respondent violated the provisions of the notarial law by having affixed his official signatures to the aforesaid documents with the intent to impart the appearance of notarial authenticity thereto when . . . in fact as of those dates 1987 and 1991 he was not commissioned as notary public.

In view of the foregoing, it is respectfully recommended that if Respondent is presently commissioned as notary public, the same should be revoked, and [he should] not be granted any commission as notary public up to December 31, 2002.

On 5 November 1998, the Board of Governors of the Integrated Bar promulgated Resolution No. XIII-98-196 adopting the Report of the Investigating Commissioner and recommending that respondent’s commission as a notary public be revoked and that respondent be suspended from the practice of law for three months.

We concur with the finding of the Investigating Commissioner that respondent Atty. Venancio Viray did not have a commission as notary public in 1987 and 1991 when he notarized the assailed documents. Respondent knew that he could not exercise the powers or perform the duties of a notary public unless he was duly appointed as such pursuant to the Notarial Law (Chapter 11, Title IV, Book I, Revised Administrative Code). He tried to impress upon the investigating commissioner that since "1965 to date" he has always been commissioned as a notary public. Yet, he was unable to rebut complainant’s evidence that he was not so commissioned for the years in question.

We have emphatically stressed that notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. The protection of that interest necessarily requires that those not qualified or authorized to act must be prevented from imposing upon the public, the courts, and the administrative offices in general. It must be underscored that the notarization by a notary public converts a private document into a public document making that document admissible in evidence without further proof of the authenticity thereof. A notarial document is by law entitled to full faith and credit upon its face. For this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties. (Maligsa v. Cabanting, 272 SCRA 408, 413 [1997]; Arrieta v. Llosa, 282 SCRA 248, 252-253 [1997]).

Where the notarization of a document is done by a member of the Philippine Bar at a time when he has no authorization or commission to do so, the offender may be subjected to disciplinary action. For one, performing a notarial without such commission is a violation of the lawyer’s oath to obey the laws, more specifically, the Notarial Law. Then, too, by making it appear that he is duly commissioned when he is not, he is, for all legal intents and purposes, indulging in deliberate falsehood, which the lawyer’s oath similarly proscribes. These violations fall squarely within the prohibition of Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which provides: "A lawyer shall not engage in unlawful, dishonest,

immoral or deceitful conduct."cralaw virtua1aw library

By such misconduct as a notary public, the lawyer likewise violates Canon 7 of the same Code, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession. Elaborating on this, we said in Maligsa v. Cabanting (supra):chanrob1es virtual 1aw library

A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. To this end a member of the legal fraternity should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession. (Citing Marcelo v. Javier, 214 SCRA 1 [1992]).

What aggravated respondent’s unlawful notarization in 1987 was the fact that the transaction involved was in favor of his son, who was then only eighteen years old and, therefore, a minor. Under Article 402 of the Civil Code, which was the governing law as of 22 May 1987 when the said transaction was made, the age of majority was twenty-one years. Republic Act No. 6809, which reduced the age of majority to eighteen years was approved only on 13 December 1989 and became effective two weeks after publication in two newspapers of general circulation.

Needless to state, respondent cannot escape from disciplinary action in his capacity as a notary public and as a member of the Philippine Bar.

However, the penalty recommended by the Board of Governors of the Integrated Bar of the Philippines is too light. Respondent must be barred from being commissioned as a notary public for three (3) years, and suspended from the practice of law for also three (3) years.chanroblesvirtuallawlibrary

WHEREFORE, the Court hereby adopts the findings and conclusions of Investigating Commissioner Lydia A. Navarro, which the Board of Governors of the Integrated Bar of the Philippines adopted and approved, but MODIFIES the penalty recommended by the said Board of Governors. As modified, respondent ATTY. VENANCIO VIRAY is hereby BARRED from being commissioned as notary public for THREE (3) years and his present commission, if any, is revoked, and SUSPENDED from the practice of law also for THREE (3) years, effective upon receipt of a copy of this Resolution.

SO ORDERED.

EN BANC

[A.C. NO. 6010 : August 28, 2006]

ST. LOUIS UNIVERSITY LABORATORY HIGH SCHOOL (SLU-LHS) FACULTY and STAFF, Complainant, v. ATTY. ROLANDO C. DELA CRUZ, Respondent.

D E C I S I O N

CHICO-NAZARIO, J.:

This is a disbarment case filed by the Faculty members and Staff of the Saint Louis University-Laboratory High School (SLU-LHS) against Atty. Rolando C. Dela Cruz, principal of SLU-LHS, predicated on the following grounds:

1) Gross Misconduct:

From the records of the case, it appears that there is a pending criminal case for child abuse allegedly committed by him against a high school student filed before the Prosecutor's Office of Baguio City; a pending administrative case filed by the Teachers, Staff, Students and Parents before an Investigating Board created by SLU for his alleged unprofessional and unethical acts of misappropriating money supposedly for the teachers; and the pending labor case filed by SLU-LHS Faculty before the NLRC, Cordillera Administrative Region, on alleged illegal deduction of salary by respondent.

2) Grossly Immoral Conduct:

In contracting a second marriage despite the existence of his first marriage; andcralawlibrary

3) Malpractice:

In notarizing documents despite the expiration of his commission.

According to complainant, respondent was legally married to Teresita Rivera on 31 May 1982 at Tuba, Benguet, before the then Honorable Judge Tomas W. Macaranas. He thereafter contracted a subsequent marriage with one Mary Jane Pascua, before the Honorable Judge Guillermo Purganan. On 4 October 1994, said second marriage was subsequently annulled for being bigamous.

On the charge of malpractice, complainant alleged that respondent deliberately subscribed and notarized certain legal documents on different dates from 1988 to 1997, despite expiration of respondent's notarial commission on 31 December 1987. A Certification1dated 25 May 1999 was issued by the Clerk of Court of Regional Trial Court (RTC), Baguio City, to the effect that respondent had not applied for commission as Notary Public for and in the City of Baguio for the period 1988 to 1997. Respondent performed acts of notarization, as evidenced by the following documents:

1. Affidavit of Ownership2 dated 8 March 1991, executed by Fernando T. Acosta, subscribed and sworn to before Rolando Dela Cruz;

2. Affidavit3 dated 26 September 1992, executed by Maria Cortez Atos, subscribed and sworn to before Rolando Dela Cruz;

3. Affidavit4 dated 14 January 1992, executed by Fanolex James A. Menos, subscribed and sworn to before Rolando Dela Cruz;

4. Affidavit5 dated 23 December 1993, executed by Ponciano V. Abalos, subscribed and sworn to before Rolando Dela Cruz;

5. Absolute Date of Sale6 dated 23 June 1993, executed by Danilo Gonzales in favor of Senecio C. Marzan, notarized by Rolando Dela Cruz;

6. Joint Affidavit By Two Disinherited Parties7 dated 5 March 1994, executed by Evelyn C. Canullas and Pastora C. Tacadena, subscribed and sworn to before Rolando Dela Cruz;

7. Sworn Statement8 dated 31 May 1994, executed by Felimon B. Rimorin, subscribed and sworn to before Rolando Dela Cruz;

8. Deed of Sale9 dated 17 August 1994, executed by Woodrow Apurado in favor of Jacinto Batara, notarized by Rolando Dela Cruz;

9. Joint Affidavit by Two Disinterested Parties10 dated 1 June 1994, executed by Ponciano V. Abalos and Arsenio C. Sibayan, subscribed and sworn to before Rolando Dela Cruz;

10. Absolute Deed of Sale11 dated 23 March 1995, executed by Eleanor D.Meridor in favor of Leonardo N. Benter, notarized by Rolando Dela Cruz;

11. Deed of Absolute Sale12 dated 20 December 1996, executed by Mandapat in favor of Mario R. Mabalot, notarized by Rolando Dela Cruz;

12. Joint Affidavit By Two Disinterested Parties13 dated 17 April 1996, executed by Villiam C. Ambong and Romeo L. Quiming, subscribed and sworn to before Rolando Dela Cruz;

13. Conditional Deed of Sale14 dated 27 February 1997, executed by Aurelia Demot Cados in favor of Jose Ma. A. Pangilinan, notarized by Rolando Dela Cruz;

14. Memorandum of Agreement15 dated 19 July 1996, executed by JARCO represented by Mr. Johnny Teope and AZTEC Construction represented by Mr. George Cham, notarized by Rolando Dela Cruz.

Quite remarkably, respondent, in his comment, denied the charges of child abuse, illegal deduction of salary and others which are still pending before the St. Louis University (SLU), National Labor Relations Commission (NLRC) and the Prosecutor's Office. He did not discuss anything about the allegations of immorality in contracting a second marriage and malpractice in notarizing documents despite the expiration of his commission.

After the filing of comment, We referred16 the case to the Integrated Bar of the Philippines (IBP), for investigation, report and recommendation.

The IBP conducted the mandatory preliminary conference.

The complainants, thereafter, submitted their position paper which is just a reiteration of their allegations in their complaint.

Respondent, on his part, expressly admitted his second marriage despite the existence of his first marriage, and the subsequent nullification of the former. He also admitted having notarized certain documents during the period when his notarial commission had already expired. However, he offered some extenuating defenses such as good faith, lack of malice and noble intentions in doing the complained acts.

After the submission of their position papers, the case was deemed submitted for resolution.

On 30 March 2005, Commissioner Acerey C. Pacheco submitted his report and recommended that:

WHEREFORE, premises considered, it is respectfully recommended that respondent be administratively penalized for the following acts:

A. For contracting a second marriage without taking the appropriate legal steps to have the first marriage annulled first, he be suspended from the practice of law for one (1) year, and

b. For notarizing certain legal documents despite full knowledge of the expiration of his notarial commission, he be suspended from the practice of law for another one (1) year or for a total of two (2) years.17

On 17 December 2005, the IBP Board of Governors, approved and adopted the recommendation of Commissioner Pacheco, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A" and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that Respondent contracted a second marriage without taking appropriate legal steps to have the first marriage annulled, Atty. Rolando C. dela Cruz is hereby SUSPENDED from the practice of law for one (1) year and for notarizing legal documents despite full knowledge of the expiration of his notarial commission Atty. Rolando C. dela Cruz is SUSPENDED from the practice of law for another one (1) year, for a total of two (2) years Suspension from the practice of law.18

This Court finds the recommendation of the IBP to fault respondent well taken, except as to the penalty contained therein.

At the threshold, it is worth stressing that the practice of law is not a right but a privilege bestowed by the State on those who show that they possess the qualifications required by law for the conferment of such privilege. Membership in the bar is a privilege burdened with conditions. A lawyer has the privilege and right to practice law only during good behavior, and he can be deprived of it for misconduct

ascertained and declared by judgment of the court after opportunity to be heard has been afforded him. Without invading any constitutional privilege or right, an attorney's right to practice law may be resolved by a proceeding to suspend, based on conduct rendering him unfit to hold a license or to exercise the duties and responsibilities of an attorney. It must be understood that the purpose of suspending or disbarring him as an attorney is to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to an office of attorney and, thus, to protect the public and those charged with the administration of justice, rather than to punish an attorney. Elaborating on this, we said on Maligsa v. Atty. Cabanting,19 that the Bar should maintain a high standard of legal proficiency as well as of honesty and fair dealing. A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. A member of the legal fraternity should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession. Towards this end, an attorney may be disbarred or suspended for any violation of his oath or of his duties as an attorney and counselor, which include statutory grounds enumerated in Section 27, Rule 138 of the Rules of Court, all of these being broad enough to cover practically any misconduct of a lawyer in his professional or private capacity.

Equally worthy of remark is that the law profession does not prescribe a dichotomy of standards among its members. There is no distinction as to whether the transgression is committed in the lawyer's professional capacity or in his private life. This is because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another.20 Thus, not only his professional activities but even his private life, insofar as the latter may reflect unfavorably upon the good name and prestige of the profession and the courts, may at any time be the subject of inquiry on the part of the proper authorities.21

One of the conditions prior to admission to the bar is that an applicant must possess good moral character. Possession of such moral character as requirement to the enjoyment of the privilege of law practice must be continuous. Otherwise, "membership in the bar may be terminated when a lawyer ceases to have good moral conduct."22

In the case at bench, there is no dispute that respondent and Teresita Rivera contracted marriage on 31 May 1982 before Judge Tomas W. Macaranas. In less than a year, they parted ways owing to their irreconcilable differences without seeking judicial recourse. The union bore no offspring. After their separation in-fact, respondent never knew the whereabouts of Teresita Rivera since he had lost all forms of communication with her. Seven years thereafter, respondent became attracted to one Mary Jane Pascua, who was also a faculty member of SLU-LHS. There is also no dispute over the fact that in 1989, respondent married Mary Jane Pascua in the Municipal Trial Court (MTC) of Baguio City, Branch 68. Respondent even admitted this fact. When the second marriage was entered into, respondent's prior marriage with Teresita Rivera was still subsisting, no action having been initiated before the court to obtain a judicial declaration of nullity or annulment of respondent's prior marriage to Teresita Rivera or a judicial declaration of presumptive death of Teresita Rivera.

Respondent was already a member of the Bar when he contracted the bigamous second marriage in 1989, having been admitted to the Bar in 1985. As such, he cannot feign ignorance of the mandate of the law that before a second marriage may be validly contracted, the first and subsisting marriage must first be annulled by the appropriate court. The second marriage was annulled only on 4 October 1994 before the RTC of Benguet, Branch 9, or about five years after respondent contracted his second marriage. The annulment of respondent's second marriage has no bearing to the instant disbarment proceeding. Firstly, as earlier emphasized, the annulment came after the respondent's second bigamous marriage. Secondly, as we held in In re: Almacen, a disbarment case is sui generis for it is neither purely civil nor purely criminal but is rather an investigation by the court into the conduct of its officers. Thus, if the acquittal of a lawyer in a criminal action is not determinative of an administrative case against him, or if an affidavit of withdrawal of a disbarment case does not affect its course, then neither will the judgment of annulment of respondent's second marriage also exonerate him from a wrongdoing actually committed. So long as the quantum of proof - clear preponderance of evidence - in disciplinary proceedings against members of the Bar is met, then liability attaches.23

Section 27, Rule 138 of the Rules of Court cites grossly immoral conduct as a ground for disbarment.

The Court has laid down with a common definition of what constitutes immoral conduct, vis - à-vis, grossly immoral conduct. Immoral conduct is "that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community" and what is "grossly immoral," that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree."24

Undoubtedly, respondent's act constitutes immoral conduct. But is it so gross as to warrant his disbarment? Indeed, he exhibited a deplorable lack of that degree of morality required of him as a member of the Bar. In particular, he made a mockery of marriage which is a sacred institution demanding respect and dignity. His act of contracting a second marriage while the first marriage was still in place, is contrary to honesty, justice, decency and morality.25

However, measured against the definition, we are not prepared to consider respondent's act as grossly immoral. This finds support in the following recommendation and observation of the IBP Investigator and IBP Board of Governors, thus:

The uncontested assertions of the respondent belies any intention to flaunt the law and the high moral standard of the legal profession, to wit:

A. After his first failed marriage and prior to his second marriage or for a period of almost seven (7) years, he has not been romantically involved with any woman;

b. His second marriage was a show of his noble intentions and total love for his wife, whom he described to be very intelligent person;

c. He never absconded from his obligations to support his wife and child;

d. He never disclaimed paternity over the child and husbandry (sic) with relation to his wife;

e. After the annulment of his second marriage, they have parted ways when the mother and child went to Australia;

f. Since then up to now, respondent remained celibate.26

In the case of Terre v. Terre,27 respondent was disbarred because his moral character was deeply flawed as shown by the following circumstances, viz: he convinced the complainant that her prior marriage to Bercenilla was null and void ab initio and that she was legally single and free to marry him. When complainant and respondent had contracted their marriage, respondent went through law school while being supported by complainant, with some assistance from respondent's parents. After respondent had finished his law course and gotten complainant pregnant, respondent abandoned the complainant without support and without the wherewithal for delivering his own child safely to a hospital.

In the case of Cojuangco, Jr. v. Palma,28 respondent was also disbarred for his grossly immoral acts such as: first, he abandoned his lawful wife and three children; second, he lured an innocent young woman into marrying him; third, he mispresented himself as a "bachelor" so he could contract marriage in a foreign land; and fourth, he availed himself of complainant's resources by securing a plane ticket from complainant's office in order to marry the latter's daughter. He did this without complainant's knowledge. Afterwards, he even had the temerity to assure complainant that "everything is legal."

Such acts are wanting in the case at bar. In fact, no less than the respondent himself acknowledged and declared his abject apology for his misstep. He was humble enough to offer no defense save for his love and declaration of his commitment to his wife and child.

Based on the reasons stated above, we find the imposition of disbarment upon him to be unduly harsh. The power to disbar must be exercised with great caution, and may be imposed only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court. Disbarment should never be decreed where any lesser penalty could accomplish the end desired.29 In line with this philosophy, we find that a penalty of two years suspension is more appropriate. The penalty of one (1) year suspension recommended by the IBP is too light and not commensurate to the act committed by respondent.

As to the charge of misconduct for having notarized several documents during the years 1988-1997 after his commission as notary public had expired, respondent humbly admitted having notarized certain documents despite his knowledge that he no longer had authority to do so. He, however, alleged that he received no payment in notarizing said documents.

It has been emphatically stressed that notarization is not an empty, meaningless, routinary act. On the contrary, it is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. Notarization of a private document converts the document into a public one making it admissible in court without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face and, for this reason, notaries public must observe with the utmost care the basic requirements in the performance of their duties. Otherwise, the confidence of the public in the integrity of this form of conveyance would be undermined.30

The requirements for the issuance of a commission as notary public must not be treated as a mere casual formality. The Court has characterized a lawyer's act of notarizing documents without the requisite commission to do so as "reprehensible, constituting as it does not only malpractice but also x x x the crime of falsification of public documents."31

The Court had occasion to state that where the notarization of a document is done by a member of the Philippine Bar at a time when he has no authorization or commission to do so, the offender may be subjected to disciplinary action or one, performing a notarial act without such commission is a violation of the lawyer's oath to obey the laws, more specifically, the Notarial Law. Then, too, by making it appear that he is duly commissioned when he is not, he is, for all legal intents and purposes, indulging in deliberate falsehood, which the lawyer's oath similarly proscribes. These violations fall squarely within the prohibition of Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which provides: "A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." By acting as a notary public without the proper commission to do so, the lawyer likewise violates Canon 7 of the same Code, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.

In the case of Buensuceso v. Barera,32 a lawyer was suspended for one year when he notarized five documents after his commission as Notary Public had expired, to wit: a complaint for ejectment, affidavit, supplemental affidavit, a deed of sale, and a contract to sell. Guided by the pronouncement in said case, we find that a suspension of two (2) years is justified under the circumstances. Herein respondent notarized a total of fourteen (14) documents33 without the requisite notarial commission.

Other charges constituting respondent's misconduct such as the pending criminal case for child abuse allegedly committed by him against a high school student filed before the Prosecutor's Office of Baguio City; the pending administrative case filed by the Teachers, Staff, Students and Parents before an Investigating Board created by SLU; and the pending labor case filed by SLU-LHS Faculty before the NLRC, Cordillera Administrative Region, on alleged illegal deduction of salary by respondent, need not be discussed, as they are still pending before the proper forums. At such stages, the presumption of innocence still prevails in favor of the respondent.

WHEREFORE, finding respondent Atty. Rolando Dela Cruz guilty of immoral conduct, in disregard of the Code of Professional Responsibility, he is hereby SUSPENDED from the practice of law for a period of two (2) years, and another two (2) years for notarizing documents despite the expiration of his commission or a total of four (4) years of suspension.

Let copies of this Decision be furnished all the courts of the land through the Court Administrator, as well as the IBP, the Office of the Bar Confidant, and recorded in the personal records of the respondent.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

A.C. No. 7350 February 18, 2013

PATROCINIO V. AGBULOS, Complainant, vs.ATTY. ROSELLER A. VIRAY, Respondent.

D E C I S I O N

PERALTA, J.:

FACTS:

a Complaint1 filed before the Office of the Bar Confidant (OBC) by complainant against respondent Atty. Roseller A. Viray of Asingan, Pangasinan, for allegedly notarizing a document denominated as Affidavit of Non-Tenancy2 in violation of the Notarial Law. The said affidavit was supposedly executed by complainant, but the latter denies said execution and claims that the signature and the community tax certificate (CTC) she allegedly presented are not hers. She further claims that the CTC belongs to a certain Christian Anton. 3 Complainant added that she did not personally appear before respondent for the notarization of the document. She, likewise, states that respondent's client, Rolando Dollente (Dollente), benefited from the said falsified affidavit as it contributed to the illegal transfer of a property registered in her name to that of Dollente.4

On April 15, 2008, the IBP Board of Governors issued Resolution No. XVIII-2008-166 which reads:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent’s violation of the Code of Professional Responsibility and 2004 Rules on Notarial Practice, Atty. Roseller A. Viray is hereby SUSPENDED from the practice of law for one (1) month.13

Respondent moved for the reconsideration of the above decision, but the same was denied. The above resolution was further modified in Resolution No. XX-2012-117, dated March 10, 2012, to read as follows:

RESOLVED to DENY Respondent’s Motion for Reconsideration, and unanimously MODIFY as it is hereby MODIFIED Resolution No. XVIII- 2008-166 dated April 15, 2008, in addition to Respondent’s SUSPENSION from the practice of law for one (1) month, Atty. Roseller A. Viray is hereby SUSPENDED as Notary Public for six (6) months. (Emphasis in the original)

The findings of the IBP are well taken.

Section 2 (b) of Rule IV of the 2004 Rules on Notarial Practice emphasizes the necessity of the affiant’s personal appearance before the notary public:14

x x x x

(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

Moreover, Section 12,15 Rule II, of the 2004 Rules on Notarial Practice defines the "competent evidence of identity" referred to above.

In this case, respondent admits that not only did he prepare and notarize the subject affidavit but he likewise notarized the same without the affiant’s personal appearance. He explained that he did so merely upon the assurance of his client Dollente that the document was executed by complainant. In notarizing the document, respondent contented himself with the presentation of a CTC despite the Rules’ clear requirement of presentation of competent evidence of identity such as an identification card with photograph and signature. With this indiscretion, respondent failed to ascertain the genuineness of the affiant’s signature which turned out to be a forgery. In failing to observe the requirements of the Rules, even the CTC presented, purportedly owned by complainant, turned out to belong to somebody else.

To be sure, a notary public should not notarize a document unless the person who signed the same is the very same person who executed and personally appeared before him to attest to the contents and the truth of what are stated therein.16 Without the appearance of the person who actually executed the document in question, the notary public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or deed.17

As aptly observed by the Court in Dela Cruz-Sillano v. Pangan:18

The Court is aware of the practice of not a few lawyers commissioned as notary public to authenticate documents without requiring the physical presence of affiants. However, the adverse consequences of this practice far outweigh whatever convenience is afforded to the absent affiants. Doing away with the essential requirement of physical presence of the affiant does not take into account the likelihood that the documents may be spurious or that the affiants may not be who they purport to be. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and deed.19

The Court has repeatedly emphasized in a number of cases20 the important role a notary public performs, to wit:

x x x [N]otarization is not an empty, meaningless routinary act but one invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. A notarized document is, by law, entitled to full faith and credit upon its face. It is for this reason that a notary public must observe with utmost care the basic requirements in the

performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.21

Respondent’s failure to perform his duty as a notary public resulted not only damage to those directly affected by the notarized document but also in undermining the integrity of a notary public and in degrading the function of notarization.22 He should, thus, be held liable for such negligence not only as a notary public but also as a lawyer.23 The responsibility to faithfully observe and respect the legal solemnity of the oath in an acknowledgment or jurat is more pronounced when the notary public is a lawyer because of his solemn oath under the Code of Professional Responsibility to obey the laws and to do no falsehood or consent to the doing of any.24 Lawyers commissioned as notaries public are mandated to discharge with fidelity the duties of their offices, such duties being dictated by public policy and impressed with public interest.251âwphi1

As to the proper penalty, the Court finds the need to increase that recommended by the IBP which is one month suspension as a lawyer and six months suspension as notary public, considering that respondent himself prepared the document, and he performed the notarial act without the personal appearance of the affiant and without identifying her with competent evidence of her identity. With his indiscretion, he allowed the use of a CTC by someone who did not own it. Worse, he allowed himself to be an instrument of fraud. Based on existing jurisprudence, when a lawyer commissioned as a notary public fails to discharge his duties as such, he is meted the penalties of revocation of his notarial commission, disqualification from being commissioned as a notary public for a period of two years, and suspension from the practice of law for one year.26

WHEREFORE, the Court finds respondent Atty. Roseller A. Viray GUILTY of breach of the 2004 Rules on Notarial Practice and the Code of Professional Responsibility. Accordingly, the Court SUSPENDS him from the practice of law for one (1) year; REVOKES his incumbent commission, if any; and PROHIBITS him from being commissioned as a notary public for two (2) years, effective immediately. He is WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely.

Let all the courts, through the Office of the Court Administrator, as well as the IBP and the Office of the Bar Confidant, be notified of this Decision and be it entered into respondent's personal record.

SO ORDERED