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ELSA L. MONDEJAR, Complainant, -versus- ATTY. VIVIAN G. RUBIA, Respondent. |
A.C. Nos. 5907 and 5942 Present: QUISUMBING, Chairperson, CARPIO,* CARPIO MORALES, TINGA, and VELASCO, JR., JJ. Promulgated: |
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D E C I S I O N
CARPIO MORALES, J.:
By two separate complaints filed with
the Office of the Court Administrator (OCA), Elsa L. Mondejar
(complainant) sought the disbarment of Atty. Vivian G. Rubia
(respondent) and the cancellation of her notarial
commission for allegedly committing deceitful acts and malpractice in violation
of the Code of Professional Responsibility.
The
facts which gave rise to the filing of the administrative complaints are as
follows:
Sometime
in 2002, complainant charged Marilyn Carido (Marilyn)
and her common law husband Japanese national Yoshimi Nakayama (Nakayama) before
the Digos City Prosecutor’s Office for violation of
the Anti-Dummy Law,[1] claiming
that the Bamiyan Group of Enterprises (Bamiyan) which was capitalized at P15 million and which
was engaged in, among other things, money lending business and operation of miki and
siopao factory was actually owned by Nakayama but
it was made to appear that Marilyn was the owner.[2]
Marilyn,
by her Counter-Affidavit dated November 6, 2002 which she filed before the
Prosecutor’s Office, denied the charge, in support of which she attached a Memorandum
of Joint Venture Agreement[3] (the
document) forged by her and Nakayama, acknowledged before respondent on January
9, 2001 but appearing to have been entered in respondent’s notarial
register for 2002 and bearing respondent’s Professional Tax Receipt (PTR) No.
issued in 2002. The document purported to
show that Marilyn owned Bamiyan, albeit its capital
was provided by Nakayama.
Contending
that the January 9, 2001 document did not exist before she filed the criminal
charge in 2002 before the Prosecutor’s Office, complainant, who was formerly an
employee of Bamiyan, filed the first above captioned administrative
complaint against respondent, as well as criminal complaints for falsification
of public document and use of falsified public document before the Prosecutor’s
Office also against respondent, together with Marilyn, Nakayama, and the witnesses
to the document Mona Liza Galvez
and John Doe.[4]
It
appears that on April 20, 2001, respondent notarized a Deed of Absolute Sale[5] of
a parcel of land situated in Digos City, purportedly executed
by Manuel Jose Lozada (Lozada)
as vendor and Marilyn as vendee. Complainant alleged that respondent falsified
the document by forging the signature of Lozada who
has been staying in
After
respondent submitted her Comment to which she attached her November 18, 2002 Counter-Affidavit[7] to
the Affidavit-Complaint of Marilyn charging her with falsification before the
Prosecutor’s Office, the administrative complaints were referred to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation within 60 days from notice.[8]
Commissioner
Doroteo Aguila, to whom the
IBP Commission on Bar Discipline assigned the cases, set them for mandatory
conference on
In
her Position Paper filed with the IBP, respondent argued that complainant was
neither a party nor a witness to the document as well as to the Deed of Absolute
Sale, hence, devoid of legal standing to question the authenticity and due
execution thereof.[10] Besides,
added respondent, complainant had passed away.[11]
To
her Position Paper respondent again attached her November 18, 2002 Counter-Affidavit
which she filed with the Digos City Prosecutor’s Office
wherein she explained that the discrepancies of dates appearing in the document
executed by Nakayama and Marilyn on January 9, 2001 came about when the
document was “revise[d] and amend[ed]” in 2002.[12]
After
evaluation of the evidence of the parties, Investigating Commissioner Aguila, by Report and Recommendation[13]
dated
As
for the first complaint (Administrative Case No. 5907) relative to the discrepancies
of dates appearing in the document, Commissioner Aguila
found respondent to have violated Rule 1.01 of the Code of Professional
Responsibility reading:
Canon 1, Rule 1.01 – A lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct,
and recommended respondent’s suspension
from the practice of law for One Month.
Pertinent
portions of Atty. Aguila’s Report read:
[T]here is sufficient proof to discipline the respondent in Adm. Case No. 5907.
In the Memorandum of a Joint Venture
Agreement, Atty. Rubia stated in the acknowledgment portion thereof that the
parties personally appeared before her “on this 9th day of
January, 2001.” But then this
document . . . was entered in respondent’s notarial register as Document No. 5707; Page No. 1144; Book No 25; Series of 2002 [Annex “A-1,” Petition]. It is further pointed out that respondent’s PTR
Number as indicated in this document is PTR Number 4574844
that is likewise indicated as being issued on
As
already pointed out, the [January 9, 2001] Memorandum of a Joint Venture
Agreement indicates that it was entered as Document No. 5707,
Series of 2002 in respondent’s notarial
register. On the other hand, the [November
6, 2002] Affidavit of Marilyn Carido
was entered as Document No. 2791,
Series of 2002. Since
the [Counter] Affidavit was notarized [o]n 06 November 2002, it is illogical
why the document number for the Memorandum of a Joint Venture is greater
(higher) than that of the former since the latter was supposed to have been
notarized many months earlier, or specifically, on 09 January
2001.
All
of the foregoing show that the respondent effectively made an untruthful declaration in a public
document when she attested that the Memorandum of a Joint Venture Agreement was
acknowledged before her on
By
Resolution of
By
Resolution of
Hence,
the elevation of the first administrative case to this Court by respondent who reiterates
her challenge to the standing of complainant’s husband in pursuing the cases.
Rule
139-B, Section 1 of the Rules of Court provides that “[p]roceedings
for the disbarment, suspension, or discipline of attorneys may be taken by the
Supreme Court motu proprio, or by the Integrated Bar of the Philippines
(IBP) upon the verified complaint of any person.”
That
an administrative complaint filed by any person against a lawyer may be acted
upon by this Court is settled. In re Almacen[17]
explains the raison d’être:
. . . [D]isciplinary proceedings [against
lawyers] are sui generis.
Neither purely civil nor purely criminal, this proceeding is not – and does not
involve – a trial of an action or a suit, but is rather an investigation by the
Court into the conduct of its officers. Not being intended to inflict
punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff
nor a prosecutor therein. It may be
initiated by the Court motu proprio. Public interest is its primary objective, and
the real question for determination is whether or not the attorney is still a
fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to account for his
actuations as an officer of the Court with the end in view of preserving the
purity of the legal profession and the proper and honest administration of
justice by purging the profession of members who by their misconduct have
proved themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion
to speak of a complainant or a prosecutor. (Emphasis supplied)
Complainant’s
husband’s pursuance of the cases was thus in order.
Notarization
by a notary public converts a private document into a public document, thus
rendering the document admissible in evidence without further proof of its authenticity.[18]
Lawyers
commissioned as notaries public are thus mandated to subscribe to the sacred
duties appertaining to their office, such duties being dictated by public
policy impressed with public interest.[19] A
graver responsibility is placed upon them by reason of their solemn oath to
obey the laws, to do no falsehood or consent to the doing of any,[20] and
to guard against any illegal or immoral arrangement,[21]
and other duties and responsibilities.
In
exculpation, respondent, in her
x x x x
5. That way back in the early 2001,
specifically in January of the year 2001, Marilyn A. Carido
and Yoshimi Nakayama, had me prepared [sic]
a document in preparation of the business enterprises to be established by
Marilyn A. Carido, wherein Yoshimi Nakayama, will
grant the former CAPITAL for the establishment of the proposed enterprises, the
main purpose of which is to secure the future of Marilyn A. Carido,
their children, and the family of Marilyn A. Carido. A copy of the said agreement is hereto
attached as ANNEX “A,” with its corresponding submarking;
x x x x
7. That in fact, on May 10, 2002,
Marilyn A. Carido and Yoshimi Nakayama came to my
office, for two (2) purposes: First, Yoshimi
Nakayama had me prepared a document which would be an ADDENDUM to their
original transaction in January 2001, wherein Yoshimi Nakayama gave Marilyn
A. Carido additional capital to augment the operation
of the “Bamiyan Superstore;” Second, that Marilyn A. Carido
and Yoshimi Nakayama wanted me to REVISE and AMEND the original agreement
made by them in January, 2001, because Yoshimi Nakayama wanted to add
certain conditions to the original agreement, specifically referring to the
flow of money unto the coffers of the enterprises of Marilyn A. Carido, and as to the fact of the technical assistance that
he is giving Marilyn A. Carido, because, at that
time, there were already many problems in the operations of the Bamiyan enterprises.
That, for the first purpose, I prepared the ADDENDUM to the original
agreement between Marilyn A. Carido and Yoshimi
Nakayama. A copy of the said addendum is
hereto attached and made another part hereof as ANNEX “C,” with its
corresponding submarking;
8. That for the
second purpose referring to the REVISION
or AMENDMENT of the original transaction, I told both Marilyn A. Carido and Yoshimi Nakayama, to submit to me all the copies
of the original agreement in their possession, and I will just make another
instrument which would supplant or replace the old one while incorporating
the needed conditions suggested by Yoshimi Nakayama. That I told them that I will be making a new and/or revised agreement, but I will
retain the original date of the first transaction made in January, 2001,
because anyway, I have not yet submitted
the documents which I have notarized for the year 2001, since my notarial commission will expire yet on the last day of
December, 2002;
9. That, therefore, on the same date, Marilyn A.
Carido and Yoshimi Nakayama submitted to me all the
copies in their possession of the old agreement, and I proceeded to have
another one encoded in my computer by my secretary, Mona Liza
Galvez, incorporating the needed additional
conditions in accordance with the wishes of my said clients. A copy of the said REVISED agreement is hereto
attached as ANNEX “D,” with the
its corresponding submarkings;
10. That in fact, on November 6, 2002, I attached
a copy of the revised agreement on the COUNTER-AFFIDAVIT of Marilyn A. Carido, in the case for a violation of the Anti-Dummy law
filed against her by an assumed witness, Elsa Mondejar
who is also the assumed complainant in this instant investigation; That, however, while I was going over the
documents of Marilyn A. Carido, I noticed that the revised
agreement referred to above, although retained the original date of the
original one as January, 2001, mistakenly
or erroneously bear the series of 2002 in my notarial
register, and likewise bear my new PROFESSIONAL TAX RECEIPT (PTR) NO. and IBP
No. for the year 2002;
11. That even before then, I already instructed my
secretary to make the necessary corrections in the said revised document
because the accountant and administrator of the Bamiyan,
Felicisima Abo, had already
brought the erroneous entries to my attention when all the legal papers of
Marilyn A. Carido were turned over to her profession,
as early as June, 2002. That, however, because
of my workload, I forgot to remind my secretary about the corrections that
she should made therein. However, I
already told Marilyn A. Carido and Yoshimi Nakayama,
that the corrections are proper because I will just make the necessary
initials on the corrected portions;
12. That, again because of the fact, that I had to
arrange certain matters on the labor aspects of all the Bamiyan
enterprises, because at these times, both Marilyn A. Carido
and Yoshimi Nakayama, were in Japan, it was only after I filed the
counter-affidavit of Marilyn A. Carido, in the said
Anti-Dummy case, that I was reminded on the said erroneous entries. Therefore, on November 8, 2002, I had Mona Liza Galvez, my
secretary, make the necessary corrections; A copy of the corrected revised agreement is
hereto attached as ANNEX “E,” with the corresponding submarkings; as well as copies of the memos that I had
issued in behalf of my principal, Marilyn A. Carido,
for the Bamiyan, are likewise hereto attached as
ANNEXES “F” TO “I,” respectively;
x x x x[22] (Emphasis and underscoring supplied)
In
sum, respondent claimed that the document was forged on January 9, 2001 but she
made a “new and/or revised agreement” in 2002 to incorporate additional
conditions thereto, retaining, however, its original date – January 9,
2001; that on noticing that the document
“mistakenly or erroneously [b]ore the
series of 2002 in [her] notarial register and
likewise b[ore] her new . . . [PTR] No.
and IBP No. for the year 2002,” she instructed her secretary to make the
necessary corrections, but on account of her workload, she forgot to remind her
secretary to comply therewith; and that it
was only after Marilyn’s Counter-Affidavit of November 6, 2002 was filed before
the Prosecutor’s Office that she (respondent) was reminded of the erroneous
entries, hence, she had her secretary make the corrections on November 8, 2002.
And
as reflected in her above-quoted portions of her Counter-Affidavit, respondent further
claimed that she retained the original January 9, 2001 date of the document
since the “documents which [she] notarized for the year 2001” were not yet
submitted as her notarial commission was to expire yet
on the last day of December, 2002.[23]
Respondent’s
explanation does not impress as it betrays her guilt.
The
document clearly appears to have been ante-dated in an attempt to exculpate
Marilyn from the Anti-Dummy charge against her in 2002.
The
document was allegedly notarized on
As
for respondent’s submission that corrections could be subsequently made on the
document, she not having anyway submitted the documents she notarized for the
year 2001 since her notarial commission was still to
expire in 2002, the same does not lie.
One
of the grounds for revocation of notarial commission
is the failure of the notary to send a copy of notarized documents to the
proper clerk of court or Executive Judge (under the 2004 Rules on Notarial Practice) within the first ten (10) days of the
month next following.[24]
In
fine, the recommendation of Investigating IBP Commissioner Aguila
merits this Court’s approval.
WHEREFORE, respondent, Atty. Vivian Rubia, for violation of Rule 1.01 of Canon 1 of the Code of
Professional Responsibility, is suspended for One (1) Month, and warned that a
repetition of the same or similar acts will be dealt with more severely.
Let
a copy of this decision be attached to respondent’s personal records in this
Court.
SO ORDERED.
CONCHITA
CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairman
(ON OFFICIAL LEAVE)
ANTONIO T. CARPIO
DANTE O. TINGA
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
* On Official Leave.
[1] Rollo (A.C. No. 5907), Vol. I, p. 8 and Vol. II, p. 36.
[2]
[3]
[4]
[5] Rollo (A.C. No. 5942), Vol. I, pp. 8-9; Annex “A.”
[6]
[7] Rollo (A.C. No. 5907), Vol. III, pp. 14-18.
[8] Rollo (A.C. No. 5907), Vol. III, p. 124 and Rollo (A.C. No. 5942), Vol. I, p. 46.
[9] Rollo (A.C. No. 5907), Vol. III, p. 6.
[10] Rollo (A.C. No. 5907), Vol. III, p. 10 and Rollo (A.C. No. 5942), Vol. III, p. 9.
[11] Rollo (A.C. No. 5907), Vol. III, p. 11 and Rollo (A.C. No. 5942), Vol. III, p. 10.
[12] Rollo (A.C. No. 5907), Vol. III, p. 15.
[13]
[14]
[15]
[16]
[17] No. L-27654, February 18, 1970, 31 SCRA 562, 600-601; Esquivias v. Court of Appeals, G.R. No. 119714, May 29, 1997, 272 SCRA 803, 812; See also Batac, Jr. v. Cruz, Jr., A.C. No. 5809, February 23, 2004, 423 SCRA 309, 318.
[18] Aquino
v. Atty. Manese, 448 Phil. 555, 561 (2003); Nunga v. Viray, A.C. No. 4758,
[19] Fulgencio v. Atty. Martin, 451 Phil. 275, 281 (2003); Villarin v. Atty. Sabate, Jr. 382 Phil. 1, 6-7 (2000); Maligsa v. Cabanting, A.C. No. 4539, May 14, 1997, 272 SCRA 408, 414.
[20] Gokioco v. Mateo, A.C. No. 4179, November 11, 2004, 442 SCRA 1, 9; Alitagtag v. Atty. Garcia, 426 Phil. 542, 547 (2002); Flores v. Chua, A.C. No. 4500, April 30, 1999, 306 SCRA 465, 484-485.
[21] Cruz v. Villasor,
No. L-32213,
[22] Rollo (A.C. No.
5907), Vol. II, pp. 7-8.
[23]
[24] Vide: Notarial Law (Revised Administrative Code, Chapter II, Title IV), Section 249(c) as well as the 2004 Rules on Notarial Practice, Rule XI, Section 1(b)(3).