OCA CIRCULAR NO. 29-2005, March 31, 2005

For the information and guidance of all concerned, quoted
hereunder is the Decision of the Court En Bane dated November 18, 2004
in Administrative Case No. 6492, entitled “Mellanio L. Zoreta vs. Atty.
Heherson Alnor G. Simpliciano”, to wit:

‘This is a complaint for disbarment filed against Atty. Heherson
Alnor G. Simpliciano for allegedly notarizing several documents during
the year 2002 after his commission as notary public had expired.

Complainant Melanio L. Zoreta alleged that on 02 August 2001, he
filed before Branch 4 of the Regional Trial Court of Antipolo City, a
complaint for Breach of Contract and Damages against Security Pacific
Assurance Corporation (SPAC) dated 22 June 2001 due to the latter’s
failure to honor SPAC’s Commercial Vehicle Policy No. 94286, where
respondent Atty. Heherson Alnor G. Simpliciano was the latter’s counsel.
In said cases, respondent who was not a duly commissioned Notary Public
in 2002 per Certifications^[1]
issued by the Clerk of Court of Quezon City Mercedes S. Gatmaytan,
performed acts of notarization, as evidenced by the following documents,
viz:

1. Verification^[2]
   executed by Aurora C. Galvez, President of defendant SPAC, subscribed
   and sworn to before Arty. Heherson Alnor G. Simpliciano on February 18,
   2002 as alleged notary public, in Quezon City and attached to
   defendants’ Very Urgent Motion (1) To Lift the Order of Default; and (2)
   To defer Plaintiffs Presentation of Evidence Ex-Parte dated February
   18,2002;

2. Affidavits of Merit^[3]
   signed by Aurora Galvez attached to the pleading mentioned in par. 1
   hereof, likewise notarized by Atty. Heherson Alnor G. Simpliciano as
   alleged “Notary Public” in Quezon City, on February 18, 2002;

3. The Affidavit of Service^[4]
   signed by a certain Renee L. Ramos, a Legal Assistant in Simpliciano
   and Capela Law Office, and subscribed and sworn to before Atty. Heherson
   Alnor G. Simpliciano on February 19, 2002 as alleged “Notary Public” in
   Quezon City. Said Affidavit of Service was attached to the pleading
   mentioned in Par. 1 hereof;

4. The Affidavit of Service^[5]
   of one Nestor Abayon, another Legal Assistant of Simpliciano and Capela
   Law Office, subscribed and sworn to before Atty. Heherson Alnor G.
   Simpliciano on 01 April 2002 at Quezon City, as “Notary Public.” This
   Affidavit of Service was attached to defendants Motion (1) For
   Reconsideration of the Order dated 05 March 2002; and (2) To allow
   defendants to Present Defensive Evidence dated 27 March 2002.

5. The Verification and Certification Against Forum Shopping^[6]
   signed this time by a certain Celso N. Sarto, as affiant, “notarized”
   on 16 August 2002 by Atty. Heherson Alnor G. Simpliciano. This
   Verification and Certification Against Forum Shopping was attached to
   defendant’s Motion for Extension of Time To File Petition Under Rule 65
   before the Court of Appeals;

6. The Affidavit of Service^[7]
   signed by a certain Joseph B. Aganan, another Legal Assistant in
   Simpliciano and Capela Law Office subscribed and sworn to before Atty.
   Heherson Alnor G. Simpliciano as “Notary Public” on 16 August 2002. This
   Affidavit of Service signed by Aganan was also attached to that Motion
   For Extension of Time To File Petition under Rule 65 before the Court of
   Appeals;

7. Verification and Certification Against Forum Shopping^[8]
   executed by one Celso N. Sarto, alleged Executive Vice President and
   Claims Manager of defendant SPAC and “notarized” by Atty. Heherson Alnor
   G. Simpliciano on 19 August 2002, attached to the Petition for
   Certiorari and Prohibition, etc., filed before the Court of Appeals; and

8. Affidavit of Service^[9]
   signed by a certain Joseph B. Aganan, Legal Assistant of Simpliciano
   and Capela Law Office, subscribed and sworn to before Atty. Heherson
   Alnor G. Simpliciano on 19 August 2002, as alleged “Notary Public” for
   Quezon City with notarized commission to expire by December 31, 2002.

On 23 April 2003, the Integrated Bar of the Philippines (IBP) of
Pasig required respondent Atty. Simpliciano to submit his answer within
fifteen (15) days from receipt of the Order.^[10]

On 26 May 2003, counsel of respondent filed an ex-parte motion^[11] for extension of time to file answer.

On 30 June 2003, petitioner filed a motion^[12]
to resolve the complaint after the extension requested by respondent
ended on 30 May 2003, and almost a month had lapsed from 30 May 2003,
with no comment or pleading filed by respondent.

On 17 July 2003, Commissioner Lydia A. Navarro issued an order,^[13]
giving respondent a last chance to file his answer, otherwise the case
shall be deemed submitted for resolution. Respondent failed to do so.

Commissioner Lydia A. Navarro submitted her report and recommendation^[14] dated 12 February 2004, pertinent portions of which read:

A careful examination and evaluation of the evidence submitted
by the petitioner showed that respondent notarized up to Document No.
590, Page 118, Book No. II, Series of 2002 and his commission expires
December 31, 2002 which referred to the Affidavit of Service signed and
executed by Joseph B. Aganan Legal Assistant of Simpliciano and Capela
Law Office subscribed and sworn to before Notary Public Heherson Alnor
G. Simpliciano whose commission expires December 31, 2002.

All the other documents aforementioned were entered in Book II of
respondent’s alleged notarial book which reflected that his commission
expires on December 31, 2002 as notary public.

However, the Clerk of Court of Quezon City in her certification
dated October 4, 2002 stated that as per records on file with their
office respondent was not duly commissioned notary public for and in
Quezon City for the year 2002.

It is evident from the foregoing that when respondent notarized
the aforementioned documents, he was not commissioned as notary public,
which was in violation of the Notarial Law; for having notarized the 590
documents after the expiration of his commission as notary public
without having renewed said commission amounting to gross misconduct as a
member of the legal profession.

Wherefore, in view of the foregoing the Undersigned respectfully
recommends the revocation of respondent’s commission as notary public
permanently if he is commissioned as such at present and his suspension
from the practice of law for a period of three (3) months from receipt
hereof furnishing the IBP Chapter where he is a registered member a copy
hereof for implementation should this recommendation be approved by the
Honorable members of the Board of Governors.^[15]

Per Resolution No. XVI-2004-236 dated 16 April 2004, the Board of
Governors modified the report and recommendation of Commissioner Navarro
of suspension of three (3) months to a suspension of six (6) months.^[16]

We concur in the finding of the Investigating Commissioner that
respondent Atty. Simpliciano did not have commission as notary public in
2002 when he notarized the assailed documents as evidenced by the two
(2) certifications issued by the Clerk of Court of the Regional Trial
Court of Quezon City dated 04 October 2002.^[17]
Records also show, and as confirmed by IBP Commissioner Navarro, that
as of 02 August 2002, respondent had already notarized a total of 590
documents.^[18] The evidence presented by complainant conclusively establishes the misconduct imputed to respondent.

The eight (8) notarized documents for the year 2002 submitted by
complainant, consisting of affidavits of merit, certifications and
verifications against non-forum shopping, and affidavits of service,
were used and presented in the Regional Trial Court of Antipolo City,
Branch 74, in Civil Case # 01-6240, and in respondent’s petition for certiorari filed in the Court of Appeals.

Against the evidence presented by complainant, respondent did not even attempt to present any evidence. His counsel filed an ex-parte motion
for extension to file answer, which was granted, but no answer was
forthcoming. Still, Hearing Commissioner Lydia A. Navarro gave
respondent a last chance to file his answer; which was again unheeded.
Thus respondent was unable to rebut complainant’s evidence that he was
not so commissioned for the year in question. His lack of interest and
indifference in presenting his defense to the charge and the evidence
against him can only mean he has no strong and valid defense to offer.
Conclusively, respondent Atty. Simpliciano is not a duly commissioned
Notary Public for and in Quezon City for the year 2002.

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, and continue to possess, the qualifications required
by law for the conferment of such privilege. 19 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 can only 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 him, 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.^[20] Elaborating on this, we said in Maligsa v. Cabanting^[21]
that “[t]he 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. 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.”^[22]
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.”^[23]

Apropos to the case at bar, it has been 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 authenticity. 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.^[24]

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 therefore as “reprehensible, constituting as it
does not only malpractice but also the crime of falsification of public
documents.”^[25] For such
reprehensible conduct, the Court has sanctioned erring lawyers by
suspension from the practice of law, revocation of the notarial
commission and disqualification from acting as such, and even
disbarment.^[26]

In the case of Nunga v. Viray,^[27]
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. 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.”

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.

On different occasions, this Court had disbarred or suspended lawyers for notarizing documents with an expired commission:

1. In Flores v. Lozada,^[28]the
   court disbarred a lawyer who notarized six documents such as the
   extrajudicial partition of an estate, deed of sale with right of
   repurchase, and four (4) deeds of absolute sale – all involving
   unregistered lands, after his commission as Notary Public expired;

2. In Joson v. Ballazar^[29]
   the court suspended the lawyer for three (3) months since only one (1)
   instance of unauthorized notarization of a deed of sale was involved.

3. In Nunga v. Viray,^[30]
   the court suspended the lawyer for three (3) years when he notarized an
   absolute deed of sale of the buyer minor, who was his son and, at the
   same time, he was a stockholder and legal counsel of the vendor bank,
   and when he entered in his notarial registry an annotation of the
   cancellation of the loan in favor of a certain bank, at a time when he
   was not commissioned as a Notary Public. What aggravated respondent’s
   unlawful notarization was the fact that the transaction involved was in
   favor of his son, who was then only eighteen years old and, therefore, a
   minor.

4. In Buensuceso v. Barrera,^[31]
   the lawyer was suspended for one (1) year when he notarized five (5)
   documents such as a complaint for ejectment, affidavit, supplemental
   affidavit, a deed of sale and a contract to sell, after his commission
   as Notary Public expired.

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 IBP must be increased. Respondent must be barred from
being commissioned as a notary public permanently and suspended from the
practice of law for two (2) years.

WHEREFORE, this Court hereby adopts the findings of Investigating
Commissioner Lydia A. Navarro, which the Board of Governors of the
Integrated Bar of the Philippines adopted and approved, but hereby
MODIFIES the penalty recommended by the Board of Governors. As modified,
respondent ATTY. HEHERSON ALNOR G. SIMPLICIANO is hereby BARRED
PERMANENTLY from being commissioned as Notary Public. He is furthermore
SUSPENDED from the practice of law for two (2) years, effective upon
receipt of a copy of this Decision.

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

SO ORDERED.”

Copy of the decision was received by respondent on 7 December 2004.

__31__ March 2005.

^[2] Rollo, pp. 15-24.

^[3] Rollo, pp. 25-27.

^[4]Rollo, p. 28.

^[5] Rollo, p. 37.

^[6] Rollo, pp. 43-44.

^[7] Rollo, p. 45.

^[8] Rollo, p. 75.

^[9] Rollo, p. 77.

^[10] Rollo, p. 82.

^[11] Rollo, pp. 83-86.

^[12] Rollo, pp. 88-89.

^[13]Rollo, p. 92.

^[14] Rollo, pp. 96-102.

^[15] Rollo, 100-102.

^[16] Rollo, p. 95.

^[17] Rollo, pp. 78-80.

^[18] Rollo, p. 101.

^[19] Bongalonta v. Castillo, CBD Case No. 176,20 January 1995, 240 SCRA 310.

^[20] Marcelo v. Javier, Sr., A.C No. 3248, 18 September 1992, 214 SCRA1.

^[21] A.C. No. 4539, 14 May 1997, 272 SCRA 408.

^[22] Id. At 413

^[23] Ibid.

^[24]  Ibid.;
Arrieta v. Llosa, A.C. No. 4369, 28 November 1997,282 SCRA 248, cited in
Nunga v. Viray, A.C. No. 4758, 30 April 1999, 306 SCRA 487.

^[25] Buensuceso v. Barrera, A.C. No. 3727, 11 December 1992,216 SCRA 309, 312.

^[26] Heinz R. Heck v.
Judge Anthony E. Santos, Regional Trial Court, Branch 19, Cagayan de Oro
City, A.M. No. RTJ-01-1657, 23 February 2004.

^[27] Supra.

^[28] A.C. No. 546, 18 December 1967,21 SCRA 1267.

^[29] A.C. No. 575, 14 February 1991, 194 SCRA 114.

^[30] Supra.

^[31] Supra.