OCA CIRCULAR NO. 10-2004, January 28, 2004

For the information and guidance of all concerned, quoted hereunder is the
Resolution of Supreme Court En Bane dated June 10, 2003 in Administrative Case
No. 4378 entitled “Violeta Flores Alitagtag vs. Atty. Virgilio R. Garcia”, to
wit:.

‘This refers to the motion for reconsideration of the Resolution of this
Court, dated February 6, 2002, finding respondent ‘guilty of grave misconduct
rendering him unworthy of continuing membership in the legal profession’ and
ordering his disbarment ‘from the practice of law and his name stricken off the
Roll of Attorneys.’

In essence, respondent reiterates his innocence by denying authorship and
participation in the falsification of the subject deed of donation.
However, he admits his negligence and expresses remorse for his failure to
diligently perform his duties as notary public with respect to the notarization
of the said deed of donation. Respondent pleads for compassion and mercy and
asks that the Court be more lenient in imposing penalty for the infractions he
has committed.

As early as the case of Santos vs. Dichoso^[1]and reiterated in the case of Martin
vs. Felix Jr., ^[2]this Court
held:

“In disbarment proceedings, the burden of proof rests upon the complainant,
and for the court to exercise its disciplinary powers, the case against the
respondent must be established by clear, convincing and satisfactory proof.
Considering the serious consequence of the disbarment or suspension of a member
of the Bar, this Court has consistently held that clear preponderant evidence is
necessary to justify the imposition of the administrative
penalty.”

There is no question that respondent was remiss in the performance of his
duties as a notary public. In fact, there is preponderance of evidence showing
that he subverted the clear provisions of Section I^[3] of Public Act 2103, otherwise known as “An
Act Providing for the Acknowledgment and Authentication of Instruments and
Documents within the Philippine Islands” and Section 246^[4] of Act 2711, otherwise known as the
Revised Administrative Code of 1917.

Respondent is likewise found guilty of harassing the occupants of the
property subject of the donation by asking Meralco to disconnect its services to
the property and by posting security guards to intimidate the said occupants.
These acts do not speak well of his standing as a member of the bar. Rule 7.03,
Canon 7 of the Code of Professional Responsibility provides that a lawyer shall
not engage in conduct that adversely reflects on his fitness to practice law,
nor should he, whether in public or private life, behave in a
scandalous manner to the discredit of the legal profession. By engaging in acts
that undermine recognition of and respect for legal processes, respondent has
clearly committed conduct that adversely reflects on his fitness to be a member
of the legal profession.

However, as to the issue of falsification of the subject deed of donation, a
review of the records at hand shows that there is no clear and
convincing evidence to prove that respondent is the author of the forged
signature of the donor or that he actively participated or conspired with any
party in forging the said signature as it appears in the questioned deed
of donation. The only proven link respondent has to the falsified deed is the fact that he notarized it The Court agrees with the observation of
the Investigating Commissioner of the IBP that there is no proof that respondent
knew that the signature of Cesar Flores appearing on the deed of donation was
falsified. Complainant never disputed respondent’s claim that the deed of
donation was already signed when personally handed to him by Cesar Flores, Sr.
Tliere is no reason shown why respondent should have doubted that the donor’s
signature was forged. Moreover, the fact that respondent was later on given a
special power of attorney to administer and sell the property covered by the
forged dcod of donation does not prove his participation in the
falsification of the said deed. Records reveal that there is a gap of more than
five years between the date of notarization of the subject deed of donation on
September 19, 1991^[5] and the execution
of the special power of attorney in favor of respondent on November 7, 1996.^[6] If respondent was indeed part of a scheme
to defraud the other children of Cesar Flores, we find it illogical that he and
his cohorts would wait that long for him to be given the power of attorney to
dispose of the subject property.

Likewise, the failure of the respondent to submit to the proper authorities a
copy of the subject deed of donation which he notarized does not directly prove
that he tried to cover up the falsification committed.

It must also be noted that in the criminal case for falsification filed by
complainant against several accused including herein respondent, the city
prosecutor of Pasig found no sufficient evidence to indict respondent.^[7] Even the decision of the lower court in
Civil Case No. 65883 ^[8] which was filed
for the nullification of the subject deed of donation did not contain any
specific finding as to the alleged participation of respondent in the
falsification of the subject deed.^[9]

In sum, complainant failed to discharge her burden of proving the liability
of respondent with respect to the falsification of the questioned deed
of donatioa Suspicion, no matter how strong, is not enough to warrant the
disbarment of respondent

Indeed, the, power to disbar must be exercised with great caution, and may be
imposed only in a clear case of misconduct that seriously affects the standing
and the character of the lawyer as an officer of the Court and as a member of
the bar.^[10] Disbarment should never be
decreed where any lesser penalty could accomplish the end desired.^[11] Without doubt, a violation of the high
moral standards of the legal profession justifies the imposition of the
appropriate penalty, including suspension and disbarment.^[12] However, the said penalties are imposed
with great caution, because they are the most severe forms of disciplinary
action and their consequences are beyond repair.^[13]

A review of pertinent and relevant jurisprudence convinces the Court to
reconsider the penalty imposed on herein respondent :

In Maligsa vs. Cabandng, ^[14]the respondent lawyer was disbarred after
this Court found out that he notarized a forged deed of quitclaim.
However, iie penalty of disbarment was imposed after considering that he was
previously suspended from the practice of law for six months on the ground that
he purchased his client’s property while it was still the subject of a pending
certiorari proceeding.

In Flores vs. Chua, ^[15]the
respondent lawyer was disbarred after he was found guilty of notarizing a forged
deed of sale. But again, the penalty of disbarment was imposed because in a
previous administrative case, respondent was found guilty of violating Rule 1.01
1^[16] of the Code of Professional
Responsibility and had been sternly warned that a repetition of a similar act or
acts or violation committed by him in the future will be dealt with more
severely. The Court also took into consideration the other infractions or acts
of misconduct committed by the respondent such as forum shopping, committing
falsehood, injurious, willful and unprofessional conduct of publishing, or
causing the publication, in a newspaper of general circulation of a pending
case, causing undue delay in the court proceedings and for notarizing a document
without the party being present.

In Roces vs. Aportadera, ^[17]the Court suspended the respondent lawyer
from the practice of law for a period of two years after it was found out that
he has dubious involvement in the preparation and notarization of the falsified
sale of his client 3 s property.

Thus, taking into consideration the foregoing jurisprudence, the totality of
the acts of misconduct proven to have been committed by herein respondent, his
admission of negligence, plea for compassion and the fact that this is his first
offense, the Court finds it proper to reconsider the penalty imposed.
Nonetheless, the Court reiterates the principle that where the notary public is
a lawyer, a graver responsibility is placed upon his shoulder by reason of his
solemn oath to obey the laws and to do no falsehood or consent to the doing of
any.^[18] The penalty of suspension, both
from respondent’s practice of law and from his commission as a notary public is
apropos to the offenses he committed.

WHEREFORE, the motion for reconsideration is GRANTED. Respondent is
REINSTATED as a member of the Bar but he is SUSPENDED
from the practice of law and from his commission as a notaiy public for
a period of three (3) years, effective immediately, with a warning that a
commission of the same or similar acts in the future shall be dealt with more
severely.

The Clerk of Court of this Court is DIRECTED to immediately
circularize this Resolution for the proper guidance of all concerned.

Let copies of this Resolution be furnished the Office of the Bar Confidant
and the Integrated Bar of the Philippines .

SO ORDERED.”

^[2] 163 SCRA 111, 130 (1988).

 ^[3] “Section 1. (a) The
acknowledgement shall be made before a notary public or an officer duly
authorized by law of the country to take acknowledgements of instruments or
documents in the place where the act is done. The notary public or the officer
taking the acknowledgement shall certify that the person acknowledging the
instrument or document is known to him and that he is the same person who
executed it, and acknowledged that the same is his free act and deed.
The certificate shall be made under his official seal, if he is by law required
to keep a seal, and if not, bis certificate shall so state.*’ (Emphasis
ours)

 ^[4] “Sec. 246. Matters to be en tered
therein. – Tlie notary public shall enter in such register;, in chronological
order, the nature of each instrument executed, sworn to, or acknowledged before
him, the person executing, swearing to, or acknowledging the Instrument, the
witnesses, if any, to the instrument, the fees collected by him for his services
as notary iu connection therewith, and rwhen the instrument is a
contract, be shall keep a correct copy thereof as part of his records, and shall
likewise enter in 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, x x x. A certified copy of each month’s entries as described
herein and a certified copy of any instrument acknowledged before him shall,
within the first ten days of the month next following, be forwarded
by the notary to the clerk of court of the court of first instance of
the province (or city) where he exercises his office, and shall be filed under
the responsibility of such officer, provided, that if there 13 no entry to
certify for the month, the notary shall forward a statement to this effect in
lieu of the certified copies herein required.” (Emphasis ours)

 ^[5]Exhibit “G-1”, p. 181, Vol. n,
Original Records.

 ^[6] Exhibit “1-2”, p. 188, Vol. H,
OR,

 ^[7]See Annex “7” to Respondent’s
Comment, pp. 55-57, Rollo.

 ^[8] Entitled, “Heir of Cesar Flores
Namely: Maria Evangelina Flores Palparan, P laintiff vs. Gregorio G. Flores,
klaria Eugenia Flores Garcia, Virgilio R. Garcia and Magdalena G. Flores,
Defendants”

 ^[9]See RTC Decision, Exhibit “Q”, pp.
198-209, VoL II, OR.

 ^[10] Resurrecdon vs. Sayson,
300 SCRA129,136 (199S); T-Boli Agro-Industrial Development Inc. vs. Solilspsi,
AC No. 4766, December 27,2002

 ^[11] Ibid.

 ^[12] Da Ere vs. Rubi, 320 SCRA
617,622 (1999),

 ^[13] Ibid.

 ^[14]272 SCRA 40S (1997).

 ^[15] 306 SCRA 465 (1999).

 ^[16] Rule 1.01 –A lawyer shall not
engage m unlawful, dishonest, ixntaorel or deceitful conduct

 ^[17]243 SCRA108 (1995)

 ^[18] Flores vs. Cfaua, supra;
Bernardo Vda. de Rosales vs. Ramos, AC No. 5645, July 2,2002.