Legal Ethics

GONZALES v. BAÑARES A.C. No. 11396, June 20, 2018 2004 NOTARIAL RULES, Canon 1 Code of Professional Responsibility

FACTS:

Franco Gonzales contended that on September 23, 2010, a Deed of Absolute Sale covering three parcels of land was executed between his mother, Lilia, as the seller, and Flordeliza Soriano, as the buyer. Surprisingly, the name and signature of his father, Rodolfo, were found in the document despite the fact that he was in Irosin, Sorsogon at the time of the supposed signing of the subject document. 

Gonzales likewise found out that his own name and signature appeared as witness in the document when he was also not present at the time of said signing. He maintained that Atty. Danilo Bañares knew of these facts but still proceeded with the notarization of the document.

Bañares denied the accusations against him, and insisted that Gonzales was present during the signing of the deed of sale as an instrumental witness, wrote his name, and affixed his signature in the presence of the contracting parties. 

Bañares claimed that Rodolfo actually pre-signed the document to manifest his conformity as the seller’s husband, but not as co-owner of the property.

The Commission on Bar Discipline of the IBP recommended the suspension of Bañares from his Commission as Notary Public for a period of one year. 

The IBP Board of Governors passed Resolution imposing a stiffer penalty of six (6) months suspension from the practice of law, immediate revocation of commission as Notary Public, and disqualification for two years as Notary Public against Atty. Bañares.

ISSUE:

Whether Bañares should be held liable for the questioned act.

RULING:

Well-settled is the rule that notarization is the act that ensures the public that the provisions in the document express the true agreement between the parties. Transgressing the rules on notarial practice sacrifices the integrity of notarized documents. 

The Court cannot over-emphasize that notarization is not an empty, meaningless, routinary act. Notarization is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public.

Here, the evidence on record highly suggest that Rodolfo was not present at the time of the execution of the Deed of Absolute Sale on September 23, 2010. There is no documentary or testimonial evidence that would prove that he was present and personally affixed his signature on the deed before Bañares.

Moreover, Bañares himself declared that Rodolfo merely “pre-signed” the document “to manifest his conformity as the seller’s husband, but not as the co-owner of the property.” Such admission is contrary to his certification in the Acknowledgment of the Deed that Rodolfo Gonzales “personally appeared before him on September 23, 2010, known to him and to him known to be the same individual who executed the instrument and acknowledged that the same is his free act and voluntary deed.” 

Notarization of documents ensures the authenticity and reliability of a document. It converts a private document into a public one, and renders it admissible in court without further proof of its authenticity. 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. 

It is not an empty routine; on the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the courts, administrative offices, and the public.

The 2004 Rules on Notarial Practice stresses the necessity of the affiant’s personal appearance before the notary public. Rule II, Section 1 states:

SECTION 1. Acknowledgment. – “Acknowledgment” refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public and presents and integrally complete instrument or document;

(b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and

(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity.

Rule IV, Section 2(b) further states:

SEC. 2. Prohibitions. – 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.

Thus, a document should not be notarized unless the persons who are executing it are the very same ones who are personally appearing before the notary public. The affiants should be present to attest to the truth of the contents of the document and to enable the notary to verify the genuineness of their signature. 

Notaries public are enjoined from notarizing a fictitious or spurious document. 

Indubitably, the violation of Bañares falls squarely within the prohibition of Rule 1.01 of Canon 1 of the Code of Professional Responsibility (CPR). Canon 1 and Rule 1.01 of the CPR provide:

CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.

Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

x x x x

Canon 1 clearly mandates the obedience of every lawyer to laws and legal processes. A lawyer, to the best of his ability, is expected to respect and abide by the law and, thus, avoid any act or omission that is contrary to the same. 

The Court must reiterate that membership in the legal profession is a privilege that is bestowed upon individuals who are not only learned in law, but also known to possess good moral character. Lawyers should act and comport themselves with honesty and integrity in a manner beyond reproach, in order to promote the public’s faith in the legal profession. 

After a review of the records of the case, the Court finds Bañares administratively liable  and upholds recommendations of the IBP.

The Court further WARNS him that a repetition of the same or similar offense shall be dealt with more severely.

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