JONAR SANTIAGO, A.C. No. 6252
Complainant,
Present:
Panganiban, J.,
Chairman,
- versus -
Sandoval-Gutierrez,
Corona, and
Carpio Morales,* JJ
Promulgated:
Atty. EDISON V. RAFANAN,
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --
-- -- -- -- -- -- x
PANGANIBAN, J.:
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N |
otaries
public are expected to exert utmost care in the performance of their duties,
which are impressed with public interest. They are enjoined to comply faithfully with the solemnities and
requirements of the Notarial Law. This
Court will not hesitate to mete out appropriate sanctions to those who violate
it or neglect observance thereof.
__________________
* On leave.
Before us is a verified
Complaint[1]
filed by Jonar Santiago, an employee of the Bureau of Jail Management and
Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the Commission
on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on
January 16, 2001. It charged Atty.
Rafanan with deceit; malpractice or other gross misconduct in office under
Section 27 of Rule 138[2]
of the Rules of Court; and violation of Canons 1.01, 1.02 and 1.03[3],
Canon 5[4],
and Canons 12.07[5] and 12.08
of the Code of Professional Responsibility (CPR).
In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of the complainant in this wise:
“x x x. In his
Letter-Complaint, Complainant alleged, among others, that Respondent in
notarizing several documents on different dates failed and/or refused to:
a)make the proper notation regarding the cedula or community tax certificate of
the affiants; b) enter the details of the notarized documents in the notarial
register; and c) make and execute the certification and enter his PTR and IBP
numbers in the documents he had notarized, all in violation of the notarial
provisions of the Revised Administrative Code.
“Complainant likewise alleged that Respondent executed an
Affidavit in favor of his client and offered the same as evidence in the case
wherein he was actively representing his client. Finally, Complainant alleges that on a certain date, Respondent
accompanied by several persons waited for Complainant after the hearing and
after confronting the latter disarmed him of his sidearm and thereafter uttered
insulting words and veiled threats.”[6]
On
March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,[7] Atty. Rafanan filed his
verified Answer.[8] He admitted having administered the oath to the affiants whose Affidavits
were attached to the verified Complaint.
He believed, however, that the
non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits
was allowed.
He opined that the notation of residence certificates
applied only to documents acknowledged by a notary public and was not mandatory
for affidavits related to cases pending before courts and other government
offices. He pointed out that in the
latter, the affidavits, which were sworn to before government prosecutors, did not
have to indicate the residence certificates of the affiants. Neither did other notaries public in Nueva
Ecija -- some of whom were older practitioners -- indicate the affiants’ residence
certificates on the documents they notarized, or have entries in their notarial
register for these documents.
As to his alleged failure to comply with the
certification required by Section 3 of Rule 112[9] of the Rules of Criminal
Procedure, respondent explained that as counsel of the affiants, he had the
option to comply or not with the certification. To nullify the Affidavits, it was complainant who was duty-bound to
bring the said noncompliance to the attention of the prosecutor conducting the
preliminary investigation.
As to his alleged violation of Rule 12.08 of the CPR,
respondent argued that lawyers could testify on behalf of their clients “on
substantial matters, in cases where [their] testimony is essential to the ends
of justice.” Complainant charged respondent’s
clients with attempted murder.
Respondent averred that since they were in his house when the alleged
crime occurred, “his testimony is very essential to the ends of justice.”
Respondent alleged that it was complainant who had threatened
and harassed his clients after the hearing of their case by the provincial
prosecutor on January 4, 2001. Respondent
requested the assistance of the Cabanatuan City Police the following day,
January 5, 2001, which was the next scheduled hearing, to avoid a repetition of
the incident and to allay the fears of his clients. In support of his allegations, he submitted Certifications[10] from the Cabanatuan City
Police and the Joint Affidavit[11] of the two police officers who
had assisted them.
Lastly, he contended that the case had been initiated
for no other purpose than to harass him, because he was the counsel of Barangay
Captain Ernesto Ramos in the cases filed by the latter before the ombudsman and
the BJMP against complainant.
After receipt of respondent’s Answer, the CBD, through
Commissioner Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at
two o’clock in the afternoon. Notices[12] of the hearing were sent to
the parties by registered mail. On the
scheduled date and time of the hearing, only complainant appeared. Respondent was unable to do so, apparently
because he had received the Notice only on June 8, 2001.[13] The hearing was reset to July 3, 2001 at two o’clock in the
afternoon.
On the same day, June 5, 2001, complainant filed his
Reply[14] to the verified Answer of
respondent. The latter’s Rejoinder was
received by the CBD on July 13, 2001.[15] It also received complainant’s Letter-Request[16] to dispense with the
hearings. Accordingly, it granted that
request in its Order[17] dated July 24, 2001, issued
through Commissioner Cimafranca. It
thereby directed the parties to submit their respective memoranda within
fifteen days from receipt of the Order, after which the case was to be deemed
submitted for resolution.
The CBD
received complainant’s Memorandum[18] on September 26, 2001. Respondent did not file any.
The IBP’s Recommendation
On September 27, 2003, the IBP Board of Governors
issued Resolution No. XVI-2003-172[19] approving and adopting the
Investigating Commissioner’s Report that respondent had violated specific
requirements of the Notarial Law on the execution of a certification, the entry
of such certification in the notarial register, and the indication of the affiant’s
residence certificate. The IBP Board of
Governors found his excuse for the violations unacceptable. It modified, however, the recommendation[20] of the investigating commissioner
by increasing the fine to “P3,000 with a warning that any repetition of the violation will be dealt with a heavier
penalty.”
The other charges -- violation of Section 27 of Rule
138 of the Rules of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR --
were dismissed for insufficiency of evidence.
We agree with the Resolution of the IBP Board
of Governors.
Respondent’s Administrative Liability
Violation of the Notarial Law
The Notarial Law is explicit on the obligations and
duties of notaries public. They are required
to certify that the party to every document acknowledged before them has
presented the proper residence certificate (or exemption from the residence
tax); and to enter its number, place of issue and date as part of such
certification.[21] They are also required to maintain and keep
a notarial register; to enter therein all instruments notarized by them; and to
“give to each instrument executed, sworn to, or acknowledged before [them] a
number corresponding to the one in [their] register [and to state therein] the
page or pages of [their] register, on which the same is recorded.”[22] Failure to perform these duties would result
in the revocation of their commission as notaries public.[23]
These formalities are mandatory and cannot be simply
neglected, considering the degree of importance and evidentiary weight attached
to notarized documents. Notaries public
entering into their commissions are presumed to be aware of these elementary
requirements.
In Vda. de
Rosales v. Ramos,[24]
the Court explained the value and meaning of notarization as follows:
“The importance attached to the act of notarization cannot
be overemphasized. 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. Notarization converts a private document
into a public document thus making that document admissible in evidence without
further proof of its authenticity. A
notarial document is by law entitled to full faith and credit upon its
face. Courts, administrative agencies
and the public at large must be able to rely upon the acknowledgment executed
by a notary public and appended to a private instrument.”
For this reason, notaries public should not take for
granted the solemn duties pertaining to their office. Slipshod methods in their performance of the notarial act are
never to be countenanced. They are
expected to exert utmost care in the performance of their duties,[25] which are dictated by public policy and are
impressed with public interest.
It is clear from the pleadings before us -- and
respondent has readily admitted -- that he violated the Notarial Law by failing
to enter in the documents notations of the residence certificate, as well as
the entry number and the pages of the notarial registry.
Respondent believes, however, that noncompliance
with those requirements is not mandatory for affidavits relative to cases
pending before the courts and government agencies. He points to similar practices of older notaries in Nueva Ecija.
We cannot give credence to, much less honor, his claim. His belief that the requirements do not
apply to affidavits is patently irrelevant.
No law dispenses with these formalities. Au contraire, the
Notarial Law makes no qualification or exception. It is appalling and inexcusable that he did away with the basics
of notarial procedure allegedly because others were doing so. Being swayed by the bad example of others is
not an acceptable justification for breaking the law.
We note further that the documents attached to the
verified Complaint are the Joint Counter-Affidavit of respondent’s clients
Ernesto Ramos and Rey Geronimo, as well as their witnesses’ Affidavits relative
to Criminal Case No. 69-2000 for attempted murder, filed by complainant’s
brother against the aforementioned clients.
These documents became the basis of the present Complaint.
As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of
Criminal Procedure expressly requires respondent as notary -- in the absence of
any fiscal, state prosecutor or government official authorized to administer the
oath -- to “certify that he has
personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.”
Respondent failed to do so with respect to the subject Affidavits and Counter-Affidavits
in the belief that -- as counsel for the affiants -- he was not required to comply
with the certification requirement.
It must be emphasized that the primary duty of
lawyers is to obey the laws of the land and promote respect for the law and
legal processes.[26] They are expected to be in the forefront in
the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of
the existing laws and to keep abreast with legal developments, recent
enactments and jurisprudence.[27] It is imperative that they be conversant
with basic legal principles. Unless they
faithfully comply with such duty, they may not be able to discharge competently
and diligently their obligations as members of the bar. Worse, they may become susceptible to committing
mistakes.
Where notaries public are lawyers, a graver
responsibility is placed upon them by reason of their solemn oath to obey the
laws.[28] No custom or age-old practice provides
sufficient excuse or justification for their failure to adhere to the
provisions of the law. In this case, the
excuse given by respondent exhibited his clear ignorance of the Notarial Law,
the Rules of Criminal Procedure, and the importance of his office as a notary
public.
Nonetheless, we do not agree with complainant’s plea
to disbar respondent from the practice of law.
The power to disbar must be exercised with great caution.[29] Disbarment will be imposed as a penalty only
in a clear case of misconduct that seriously affects the standing and the
character of the lawyer as an officer of the court and a member of the
bar. Where any lesser penalty can accomplish
the end desired, disbarment should not be decreed.[30] Considering the nature of the infraction and
the absence of deceit on the part of respondent, we believe that the penalty
recommended by the IBP Board of Governors is a sufficient disciplinary measure
in this case.
Lawyer as Witness for Client
Complainant further faults respondent for executing before
Prosecutor Leonardo Padolina an affidavit corroborating the defense of alibi
proffered by respondent’s clients, allegedly in violation of Rule 12.08 of the
CPR: “A lawyer shall avoid testifying in behalf of his client.”
Rule 12.08 of Canon 12 of the CPR states:
“Rule 12.08 – A lawyer shall avoid testifying in behalf of
his client, except:
a)
on formal matters,
such as the mailing, authentication or custody of an instrument and the like;
b)
on substantial
matters, in cases where his testimony is essential to the ends of justice, in
which event he must, during his testimony, entrust the trial of the case to
another counsel.”
Parenthetically, under the law, a lawyer is not
disqualified from being a witness,[31]
except only in certain cases pertaining to privileged communication arising
from an attorney-client relationship.[32]
The reason behind such rule is the difficulty posed
upon lawyers by the task of dissociating their relation to their clients as
witnesses from that as advocates. Witnesses
are expected to tell the facts as they recall them. In contradistinction, advocates are partisans -- those who
actively plead and defend the cause of others.
It is difficult to distinguish the fairness and impartiality of a
disinterested witness from the zeal of an advocate. The question is one of propriety rather than of competency of the
lawyers who testify for their clients.
“Acting or appearing to act in the double capacity
of lawyer and witness for the client will provoke unkind criticism and leave
many people to suspect the truthfulness of the lawyer because they cannot
believe the lawyer as disinterested.
The people will have a plausible reason for thinking, and if their
sympathies are against the lawyer’s client, they will have an opportunity, not
likely to be neglected, for charging, that as a witness he fortified it with
his own testimony. The testimony of the
lawyer becomes doubted and is looked upon as partial and untruthful.”[33]
Thus, although the law does not forbid lawyers from
being witnesses and at the same time counsels for a cause, the preference is
for them to refrain from testifying as witnesses, unless they absolutely have
to; and should they do so, to withdraw from active management of the case.[34]
Notwithstanding this guideline and the
existence of the Affidavit executed by Atty. Rafanan in favor of his clients,
we cannot hastily make him administratively liable for the following
reasons:
First, we consider it the duty of
a lawyer to assert every remedy and defense that is authorized by law for the
benefit of the client, especially in a criminal action in which the latter’s life
and liberty are at stake.[35] It is the fundamental right of the accused to
be afforded full opportunity to rebut the charges against them. They are entitled to suggest all those
reasonable doubts that may arise from the evidence as to their guilt; and to ensure
that if they are convicted, such conviction is according to law.
Having undertaken the defense of the accused,
respondent, as defense counsel, was thus expected to spare no effort to save
his clients from a wrong conviction. He
had the duty to present -- by all fair and honorable means -- every defense and
mitigating circumstance that the law permitted, to the end that his clients would
not be deprived of life, liberty or property, except by due process of law.[36]
The Affidavit executed by Atty. Rafanan was clearly
necessary for the defense of his clients, since it pointed out the fact that on
the alleged date and time of the incident, his clients were at his residence
and could not have possibly committed the crime charged against them. Notably, in his Affidavit, complainant does
not dispute the statements of respondent or suggest the falsity of its
contents.
Second, paragraph (b) of Rule
12.08 contemplates a situation in which lawyers give their testimonies during
the trial. In this instance, the Affidavit
was submitted during the preliminary investigation which, as such, was merely
inquisitorial.[37] Not being a trial of the case on the merits,
a preliminary investigation has the oft-repeated purposes of securing innocent persons
against hasty, malicious and oppressive prosecutions; protecting them from open
and public accusations of crime and from the trouble as well as expense and
anxiety of a public trial; and protecting the State from useless and expensive
prosecutions.[38] The investigation is advisedly called
preliminary, as it is yet to be followed by the trial proper.
Nonetheless, we deem it important to stress and
remind respondent to refrain from accepting employment in any matter in which
he knows or has reason to believe that he may be an essential witness for the
prospective client. Furthermore, in future
cases in which his testimony may become essential to serve the “ends of justice,”
the canons of the profession require him to withdraw from the active
prosecution of these cases.
No Proof of Harassment
The charge that respondent harassed complainant and
uttered insulting words and veiled threats is not supported by evidence. Allegation is never equivalent to proof, and
a bare charge cannot be equated with liability.[39]
It is not the self-serving claim of
complainant but the version of respondent that is more credible, considering
that the latter’s allegations are corroborated by the Affidavits of the police
officers and the Certifications of the Cabanatuan City Police.
WHEREFORE, Atty. Edison V. Rafanan is
found guilty of violating the Notarial Law and Canon 5 of the Code of
Professional Responsibility and is hereby FINED P3,000 with a warning
that similar infractions in the future will be dealt with more severely.
SO ORDERED.
ARTEMIO
V. PANGANIBAN
Chairman, Third Division
ANGELINA SANDOVAL-GUTIERREZ
Associate
Justice
RENATO C. CORONA
CONCHITA CARPIO MORALES
Associate
Justice Associate Justice
[1] Records, pp. 1-4.
[2] “Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. – A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.”
[3] “CANON 1 – x x x
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Rule 1.02 – A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
Rule 1.03 – A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause.”
[4] “CANON 5 – A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence.”
[5] “CANON 12 – x x x
Rule 12.07 – A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.”
[6] Annex A, Notice of Resolution of the IBP Board of Governors; Report, pp. 1-2.
[7] Records, p. 13.
[8] Id., pp. 14-18.
[9] “Sec. 3. Procedure. – x x x
“(a) x x x. The affidavits shall be sworn to before any
prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom must certify
that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
x x x x x x x
x x
“(c) Within ten
(10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and
that of his witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall
be subscribed and sworn to and certified as provided in paragraph (a) of this
section x x x.”
[10] Records, pp. 54-55.
[11] Joint Affidavit of PO3 Ronaldo S. Gamboa and PO2 Nicasio A. Yambot; records, p. 68.
[12] Records, p. 57.
[13] See Registry Return Receipt attached to Notice of Hearing.
[14] Records, pp. 59-63.
[15] Id., pp. 65-67.
[16] Id., p. 74.
[17] Id., p. 88.
[18] Id., pp. 92-100.
[19] See Notice of Resolution; records, p. 103.
[20] The investigating commissioner
recommended that “respondent be
reprimanded and fined P1,500.00 for violating Canon 5 of the Code of
Professional Responsibility.”
[21] §251 of the Revised Administrative Code.
[22] §246 of the Revised Administrative Code.
[23] §249 of the Revised Administrative Code; Protacio v. Mendoza, 395 SCRA 10, 17, January 13, 2003.
[24] 383 SCRA 498, 504, July 2, 2002, per Bellosillo, J.
[25] Vda. de Bernardo v. Restauro, 404 SCRA 599, 603, June 25, 2003; Maligsa v. Cabanting, 272 SCRA 408, 414, May 14, 1997; Arrieta v. Llosa, 282 SCRA 248, 253, November 28, 1997.
[26] Canon 1 of the CPR.
[27] Canon 5 of the CPR.
[28] Alitagtag v. Garcia, 403 SCRA 335, 341, June 10, 2003.
[29] Ibid.
[30] Vda. de Rosales v. Ramos, supra.
[31] Per §20 of the Rules of Court.
[32] Per §24 of the Rules of Court.
[33] Vicente J. Francisco, Legal Ethics (1949), p. 203 (citing Williams, Legal Ethics, p. 53; and Warvelle, Legal Ethics, p. 119).
[34] Philippine National Bank v. Uy Teng Piao, 57 Phil. 337, October 21, 1932.
[35] Canon 5 of the Canons of Professional Ethics; §20 (i) of Rule 138, Rules of Court.
[36] Lames v. Lascieras, 89 SCRA 186, 189, March 30, 1979.
[37] Manuel R. Pamaran, Rules on Criminal Procedure Annotated (1998), p. 161 (citing Tandoc v. Resultan, 175 SCRA 37, July 5, 1989).
[38] Ibid.
[39] Manubay v. Garcia, 386 Phil. 440, 443, April 12, 2000.