PATROCINIO V. AGBULOS, COMPLAINANT, VS. ATTY. ROSELLER A. VIRAY, RESPONDENT.

Agbulos versus Viray

The Case

This is an administrative case for disbarment and disciplinary action filed by Mrs. Patrocinio V. Agbulos against Atty. Roseller A. Viray, a lawyer and notary public of Asingan, Pangasinan. The complainant charges that the respondent notarized an Affidavit of Non-Tenancy which she never executed, never signed, and never personally appeared before him to acknowledge. The case matters because it fixes the standard of a notary public's duty, especially where the notary is a lawyer, and it shows how the Court treats the notarization of a document without the affiant's personal appearance: not as a harmless irregularity, but as a breach of the 2004 Rules on Notarial Practice and of the Code of Professional Responsibility, punishable with suspension from the practice of law, revocation of the notarial commission, and disqualification from reappointment as a notary public.

Procedural History

The complainant filed her sworn complaint before the Office of the Bar Confidant of the Supreme Court. In a Resolution dated April 16, 2007, the Office of the Bar Confidant referred the case to the Integrated Bar of the Philippines for investigation, report, and recommendation or decision. After the mandatory conference and hearing, the parties submitted their respective position papers. The Investigating Commissioner, Commissioner Dennis A. B. Funa, found that the respondent had indeed notarized the document in the absence of the alleged affiant, that the document turned out to be falsified, and that the community tax certificate appearing on it belonged to another person. He recommended that the respondent be found guilty of violating the Code of Professional Responsibility and the 2004 Rules on Notarial Practice, with six months of suspension as a lawyer and six months as a notary public. On April 15, 2008, the Board of Governors of the Integrated Bar of the Philippines adopted and approved the recommendation with modification, suspending the respondent from the practice of law for one month. The respondent moved for reconsideration, which was denied; in a Resolution dated March 10, 2012, the Board modified its earlier resolution by adding a six-month suspension as a notary public. The case then came before the Supreme Court for final action on the Integrated Bar's resolution.

Facts

The complainant discovered that a document denominated as an Affidavit of Non-Tenancy, purportedly executed by her, had been notarized by the respondent. She denied executing the affidavit. She claimed that the signature appearing on it was not hers, that the community tax certificate presented by the affiant was not hers but belonged to a certain Christian Anton, and that she never personally appeared before the respondent for the notarization of the document.

The complainant further alleged that the respondent's client, Rolando Dollente, benefited from the falsified affidavit, because it contributed to the illegal transfer of a property registered in her name to Dollente. In his comment, the respondent admitted that he had prepared and notarized the document at the request of his client Dollente, who assured him that the complainant had personally signed it and that the community tax certificate was hers. He invoked good faith.

Before the Integrated Bar, the respondent again admitted having notarized the document and asked for apology and forgiveness from the complainant for his indiscretion. It was established that the affiant was never brought before him; the document was brought to him only by Dollente. The document turned out to be falsified, and the community tax certificate belonged to another person. The respondent did not attempt to refute the accusation; he apologized for the act complained of.

Issues

• Whether or not the respondent, as a notary public, violated the 2004 Rules on Notarial Practice when he notarized the Affidavit of Non-Tenancy without the personal appearance of the affiant and without competent evidence of her identity.
• Whether or not the respondent, as a lawyer, breached the Code of Professional Responsibility by his conduct in the performance of his notarial duties.
• Whether or not the penalty recommended by the Integrated Bar of the Philippines should be increased.

Applicable Provisions

Section 2, paragraph b, of Rule IV of the 2004 Rules on Notarial Practice provides:

A person shall not perform a notarial act if the person involved as signatory to the instrument or document is not in the notary's presence personally at the time of the notarization; and 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.

This is the central provision the respondent violated, because he notarized the affidavit without the affiant ever appearing before him and without competent evidence of her identity.

Section 12 of Rule II of the 2004 Rules on Notarial Practice provides:

Competent Evidence of Identity. The phrase competent evidence of identity refers to the identification of an individual based on at least one current identification document issued by an official agency bearing the photograph and signature of the individual; or the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification.

This defines what the respondent should have required, and shows that a community tax certificate, without more, did not satisfy the Rules.

Ruling

On the first issue, the Court held that the respondent clearly violated the 2004 Rules on Notarial Practice. He admitted that he notarized the affidavit without the affiant's personal appearance, relying merely on his client's assurance that the complainant had executed the document. He contented himself with the presentation of a community tax certificate despite the Rules' clear requirement of competent evidence of identity, such as an identification document bearing a photograph and signature. By his indiscretion, he failed to ascertain the genuineness of the affiant's signature, which turned out to be a forgery, and even the community tax certificate presented turned out to belong to somebody else. The Court reiterated that a notary public should not notarize a document unless the person who signed it is the very same person who executed it and personally appeared before him to attest to its contents and the truth of what is stated therein. Without that appearance, the notary cannot verify the genuineness of the signature or ascertain that the document is the party's free act and deed. Quoting its earlier ruling, the Court stressed that notarization is not an empty, meaningless routinary act but one invested with substantive public interest, since notarization converts a private document into a public document that is admissible in evidence without further proof of authenticity and is entitled to full faith and credit upon its face.

On the second issue, the Court held that the respondent should be liable for his negligence not only as a notary public but also as a lawyer. The responsibility to faithfully observe the legal solemnity of the oath in an acknowledgment or jurat is more pronounced when the notary public is a lawyer, because of his solemn oath under the Code of Professional Responsibility to obey the laws and to do no falsehood or consent to the doing of any. Lawyers commissioned as notaries public are mandated to discharge the duties of their office with fidelity, those duties being dictated by public policy and impressed with public interest.

On the third issue, the Court found the need to increase the penalty recommended by the Integrated Bar, considering that the respondent himself prepared the document, performed the notarial act without the affiant's personal appearance, and failed to identify her with competent evidence of identity. With his indiscretion, he allowed the use of a community tax certificate by someone who did not own it and, worse, allowed himself to be an instrument of fraud. Based on existing jurisprudence, when a lawyer commissioned as a notary public fails to discharge his duties as such, he is meted the penalties of revocation of his notarial commission, disqualification from being commissioned as a notary public for two years, and suspension from the practice of law for one year.

Doctrine

A notary public may not perform a notarial act unless the signatory personally appears before him at the time of notarization and is either personally known to him or identified through competent evidence of identity as defined by the 2004 Rules on Notarial Practice. A community tax certificate, standing alone, is not competent evidence of identity. A notary public who notarizes a document without the affiant's personal appearance cannot verify the genuineness of the signature or ascertain that the document is the party's free act and deed, and he undermines the public's confidence in the integrity of notarized documents. When the notary public is a lawyer, the breach is aggravated, because his solemn oath under the Code of Professional Responsibility obliges him to obey the laws and to do no falsehood or consent to the doing of any. The settled penalty for a lawyer who fails to discharge his notarial duties is revocation of the notarial commission, disqualification from being commissioned as a notary public for two years, and suspension from the practice of law for one year.

Disposition

The Court found Atty. Roseller A. Viray guilty of breach of the 2004 Rules on Notarial Practice and the Code of Professional Responsibility, suspended him from the practice of law for one year, revoked his incumbent notarial commission if any, and prohibited him from being commissioned as a notary public for two years, effective immediately, with a warning that a repetition of the same or similar acts would be dealt with more severely.

Remember This

Memorize the rule that a notary public, especially a lawyer, must not notarize a document unless the affiant personally appears before him and is identified by competent evidence of identity, on pain of suspension from law practice, revocation of the notarial commission, and two years of disqualification. Examiners use this case to test the requirements of the 2004 Rules on Notarial Practice, the meaning of competent evidence of identity, and the aggravated liability of a lawyer who notarizes without the affiant's presence.