OCA CIRCULAR NO. 36-2005, March 31, 2005

For the information and guidance of all concerned,
quoted hereunder is the Resolution of the Second Division dated November
11, 2004 in Administrative Case No. 4179 entitled “Alice Gokioco vs.
Atty. Rafael P. Mateo”, to wit:

“Before this Court is a complaint filed by Alice Gokioco against Atty. Rafael P. Mateo for falsification of public document.

On January 24, 1992, Alice Gokioco fled an
Affidavit- Complaint with this Court alleging that : during the
pre-trial conference of civil case “Sps Eustaquio Gokioco and See Chua-
Gokioco vs. Jennifer Gokioco, Sps. Mariano Gokioco and Alice Gokioco,”
they discovered that the complainant in said case was subscribed and
sworn to by See Chua-Gokioco before herein respondent on November 10,
1992; See Chua-Gokioco however, died on October 7, 1992 as evidenced by
the death certificate issued by the local civil registrar; respondent, a
long time counsel for the family, notarized and filed the said
complaint, fully aware of the death of See Chua-Gokioco; this
constitutes a violation of the Revise Penal Code, the Notarial Law, the
lawyer’s oath and the Code of Professional Responsibility (CPR) and
warrants respondent’s disbarment and/or suspension from the practice of
law.^[1]

In his comment, Atty. Rafael Mateo denies that he is
a long time counsel of the Gokioco family and explains, as follows: He
only transacted with them in 1976 and again in 1992; his law office
prepared the complaint for Gokioco spouses on September 22, 1992;
thereafter, ha called See Chua-Gokioco and her son Francisco to come to
his office in Tanay for the reading and verification of the complaint;
respondent forgot, however, the exact date when this was done which
could be anywhere between September 22, 1992 and October 7, 1992, the
date of her death; from the time Mrs. Gokioco left his office in Tanay
up to the time he filed the complaint in court, he was not aware that
Mrs. Gokioco has already died; his office has no telephone and is about
70 kilometers from the residence of the Gokioco family in Caloocan; he
notarized and filed the complaint on November 10, 1992 without any
personal knowledge of the fact of death of Mrs. Gokioco;^[2]
and the death of Mrs. Gokioco was brought to the attention of the court
only during the pre-trial conference on May 18, 1993 which ordered
Eustaquio to amend the complaint.

On June 27, 1994 , the Court issued a resolution
referring the instant case to the Integrated Bar of the Philippines
(IBP) for its investigation, report and recommendation.^[3]

After several hearings, Commissioner Elpidio G.
Soriano III of the IBP submitted his report dated November 10, 2003 ,
portions of which read as follows:

In this case, the respondent failed to
make the proper entry or entries in his notarial register touching his
notarial acts in the manner required by law. The respondent should have
entered the fact of See Chua- Gokioco’s verification on the date when
the latter actually verified her complaint in the respondent’s presence,
as opposed to the date when he filed the complaint.

In addition to failing to obey the pertinent
portions of the notarial law quoted above, the respondent also violated
his lawyer’s oath to, inter alia, do no falsehood or consent to the doing of the same

The respondent admits that although See Chua-
Gokioco signed and subscribed the civil complaint at an earlier date,
the said respondent only entered the fact of the signing and subscribing
of the said complaint much later, that is, on the date of filing of the
said civil complaint.

The respondent reasons that he delayed the filing
of the civil complaint against the herein complainant and her family
because he wanted to make sure that the parties had the opportunity to
amicably settle the issues raised in the civil complaint.

It would have been a simple matter for the
respondent to exercise a little circumspection by ascertaining from
Eustaquio and See Chua-Gokioco if any settlement was agreed on between
Eustaquio and See Chua-Gokioco on one hand, and herein complainant and
her family upon the other, prior to the institution of the civil
complaint in question. In doing so, the respondent would have found out
that See Chua-Gokioco had died.

The respondent’s arguments to the effect that his
office was 70 kilometers away from his clients’ residence and that his
office did not have a telephone are of no moment. The respondent had the
duty to determine whether or not to file the civil complaint in
question and he should have exhausted all possible means to communicate
with his clients.

Furthermore, the respondent’s act of making it
appear that See Chua-Gokioco verified the civil complaint on the date of
its filing, when in fact she did not, means that the respondent
effectively notarized a document when the affiant was absent. In other
words, the affiant did not sign or subscribe to the said civil complaint
in the presence of the notary public on the date stated in the civil
complaint, because on the date stated the affiant was dead or otherwise
absent.

There is no question therefore that respondent is liable for his misconduct as follows:

 

(1) the respondent neglected or
otherwise failed to enter in his notarial register the true date when
See Chua-Gokioco signed the verification portion of the civil complaint
against Alice Gokioco, her husband Mariano Gokioco, and their daughter
Jennifer Gokioco.

(2) the respondent neglected or otherwise failed
to contact his clients prior to the filing of the said civil complaint
in order to ascertain if his clients wanted to proceed with the filing
of the same; and,

(3) the respondent violated his lawyer’s oath to
obey the laws and do no falsehood when he made it appear that See
Chua-Gokioco personally signed and executed the civil complaint in
question on the date stated in the said civil complaint in his presence,
when in fact she was already dead on the said date or was otherwise not
physically present.

The undersigned commissioner, however, is of
opinion that the respondent’s misconduct while serious, is not so gross
as to merit disbarment or suspension. From the record, it appears that
the Presiding Judge of RTC, Rizal, Branch 79, rather than citing the
respondent’s misconduct ordered the civil complaint amended.

The damage that was caused to the legal system, to
the respondent’s clients; to Alice Gokioco, her husband Mariano
Gokioco, and their daughter Jennifer Gokioco because of the respondent’s
misconduct was minimal or was otherwise contained by the amendment of
the civil complaint in question.

Furthermore, the damage that may have been caused
by the respondent’s misconduct is mitigated by the fact that the
respondent had no dishonest or selfish motive in notarizing the civil
complaint despite the fact that the affiant was absent on the date of
its alleged notarization.^[4]

He then recommended that:

…respondent be reprimanded and warned that any
future misconduct on his part will warrant the imposition of a greater
penalty.^[5]

On February 27, 2004 , the Board of Governors of the IBP passed a resolution as follows:

RESOLUTION NO. XVI-2004-50

Adm. Case No. 4179 Alice

Gokioco vs. Atty. Rafael P.

Mateo

 

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… and, finding
the recommendation fully supported by the evidence on record and the
applicable laws and rules, and considering that respondent had no
dishonest or selfish motive in notarizing the civil complaint despite
the fact that the affiant was absent on the date of its alleged
notarization, Atty. Rafael P. Mateo is hereby REPRIMANDED and WARNED
that any future misconduct on his part will warrant the imposition of a
greater penalty, ^[6]

While we agree with the findings of the IBP, we
find that the penalty of reprimand is not commensurate to misconduct
committed by respondent.

Respondent violated his oath as a lawyer and the
CPR when he made it appear that the complaint of Gokioco was verified by
See Chua on November 10, 1992 .

The verification of the civil case submitted to the trial court states, “SUBSCRIBED AND SWORN TO THIS November 10, 1992, in Tanay, Rizal.”^[7] The death certificate submitted by complainant states however that See Chua-Gokioco died on October 7, 1992 .

 

Rule 10.01 of the CPR holds that:

A lawyer shall not do any falsehood, nor consent
to the doing of any in court; nor shall he mislead or allow the court
to be misled by any artifice.

The Notarial Law, as provided for in Title IV, Chapter II, Revised Administrative Code, also states that:

Sec. 245. Notarial Register — Every
notary public shall keep a register to be known as the notarial
register, wherein record shall be made of all his official acts as
notary…

Sec. 246. Matters to be entered therein. The
notary public shall enter in such register, in chronological order, the
nature of each instrument executed, sworn to, or acknowledging the
instrument, the witnesses, if any to the signature, the date of
execution, oath, or acknowledgment of the instrument, the fees
collected by him for his services as notary in connection therewith,
and when the instrument is a contract, he shall keep a correct copy
thereof as part of his records, and shall likewise enter in the said
records a brief description of the substance thereof and shall give to
each entry a consecutive number, beginning with number one in each
calendar year. The notary shall give to each instrument executed, sworn
to, or acknowledged before him a number corresponding to the one in his
register, and shall also state on the instrument the pages of his
register on which the same is recorded. No blank line be left between
entries. (Emphasis supplied)

It cannot be stressed enough that notaries public
should be truthful in carrying out their functions. They must observe
with the highest degree of care the basic requirement in the performance
of their duties in order to preserve the confidence of the public in
the integrity of the notarial system. Courts, agencies and the public at
large must be able to rely upon the acknowledgment executed by
notaries public appended to instruments.^[8]
Their functions should not be trivialized and they must discharge their
powers and duties which are impressed with the public interest, with
accuracy and fidelity.^[9] With
the eroding faith of the public in the integrity of public documents,
this Court will exhort all the more the notaries public to be more
circumspect in the discharge of their duties,^[10]

Indeed, faithful observance and the utmost respect
of the legal solemnity of the oath in an acknowledgment or jurat is
sacrosanct.^[11] The act of
notarization is invested with substantive public interest such that only
those who are qualified or authorized may perform the duties of
notaries public.^[12]

This responsibility is more pronounced when the
notary public is a lawyer. A graver responsibility is placed upon him by
reason of his solemn oath to obey the laws and to do no falsehood or
consent to the doing of any.^[13]
He is mandated to the sacred duties appertaining to his office, such
duties, being dictated by public policy and impressed with public
interest. Failing in his duties, he must bear the commensurate
consequences.^[14]
 

Sec. 249 of the Notarial Law provides for grounds for the revocation of the notarial commission, thus:

Sec. 249. Grounds for revocation of commission. — The following derelictions of duty on the part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient ground for revocation of his commission:

(a) The failure of the notary to keep a notarial register,

(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law.

(c) The failure of the notary to send the copy
of the entries to the proper clerk of Court of First Instance within the
first ten days of the month next following.

(d)’The failure of the notary to affix to acknowledgments the date of expiration of his commission as required by law.

(e) The failure of notary to forward his notarial register, when filled, to the proper clerk of court.

(f) The failure of the notary to make the proper notation regarding cedula certificates.

(g) The failure of notary to make report, within a
reasonable time, to the proper judge of first instance concerning the
performance of his duties, as may be required by such judge.

(h) Any other dereliction or act which shall appear to the judge to constitute good cause for removal. (Emphasis supplied)

While we agree with the observation of the IBP
that there was no proof that respondent had any dishonest or selfish
motive in notarizing the civil complaint despite the fact that affiant
was absent on the date of its alleged notarization, we do not agree
however that Atty. Mateo’s conduct deserves a mere reprimand.

To exculpate himself, respondent claims that he
entered the fact of signing and subscribing of See Chua-Gokioco of the
complaint on a later date, that is the date of its actual filing,
because he was hoping that the parties, which come from the same family,
would amicably settle the issues raised in the complaint.

We are not persuaded. The jurat must truthfully
reflect all the information stated therein since the courts and the
public rely on such representation. There is also no rule stating that
the verification be subscribed and sworn to at exactly the same day as
the filing of the complaint. Worth noting also is the fact that
respondent did not raise such explanation in his comment before this
Court dated February 25, 1994,^[15] the earliest opportunity he had to put up such defense, but merely stated the same during the IBP hearing on August 10, 1999.^[16]

In Coronado vs. Felongco,^[17]respondent
lawyer was found guilty of misconduct and suspended from his commission
as notary public for a period of two months for notarizing a deed, not
knowing that the affiant, who went to his office personally and signed
the document days before, had already died at the time he notarized said
document. The lack of ill intent on his part and the fact that it was
his first offense merely mitigated his liability.^[18]

Based on the foregoing, it is clear that respondent is guilty of misconduct for which he must be suspended.

We note that this is not the first administrative
case filed against respondent lawyer concerning his commission as a
notary public. In Follosco vs. Mateo,^[19]promulgated
by this Court on February 3, 2004, respondent was suspended from the
practice of law for three months and his notarial commission revoked for
one year for notarizing documents without the personal appearance of
the affiants. The penalty was only reduced to prohibition against his
commission as notary public to six months and his period of suspension
from the practice of law deemed already served, thru this Court’s
Resolution on June 9, 2004, based on humanitarian reasons and equity
which respondent raised in his motion for reconsideration.

Considering that this is not the first offense committed by respondent in the exercise of his duties as a notary public,
we hold that respondent, in the present case, should be suspended from
the practice of law for six months and prohibited from being
commissioned as a notary public for two years.

WHEREFORE, Atty. Rafael P. Mateo is SUSPENDED

from the practice of law for six (6) months; his incumbent notarial commission, if any is REVOKED; and he is prohibited anew from being commissioned as a notary public for two (2) years, immediately, with a stern warning that repetition of the same or similar conduct in the future will be dealt with more severely.

Let a copy of this Resolution be attached to the
personal records of Atty. Rafael P. Mateo in the Office of the Bar
Confidant and copies thereof be furnished the courts and the Integrated
Bar of the Philippines.

SO ORDERED.”

Copy of the decision was received by respondent on December 8, 2004, as shown by Registry Receipt No. 63397.

__31__ March 2005.

	PRESBITERO J. VELASCO, JR.
	Court Administrator

^[2] Id., pp. 14-16

^[3] Id., p 49

^[4] Rollo, pp. 189-191

^[5] Id., p 191.

^[6] Rollo, p. l85.

^[7] Id., p 3.

^[8] Vda. De Resales vs. Ramos, A.C. No. 5645, July 2,2002 ,383 SCRA 498, 50-505

^[9] Vda. De Bernardo vs. Restauro, A.C. No. 3849, June 25, 2003,404 SCRA 599.

^[10] Follosco vs. Atty. Mateo, A.C. No. 6186, February 3,2004.

^[11] Ibid.

^[12] Vda de Resales vs. Ramos, A.C. No. 5645, July 2,2002 , 383 SCRA 498, 504-505.

^[13] Id. P. 506.

^[14] Fulgencio vs. Atty. Martin, A.C. No. 3223, May 29, 2003,403 SCRA 216.

^[15] Rollo, pp. 13-16.

^[16] Id., p. 103

^[17] A.C. No. 2611, November 15, 2000 , 344 SCRA 565.

^[18]  Id. , p. 569.

^[19] A.C. No. 6186