[A.C. NO. 7297 : September 29, 2009]
IMELDA BIDES-ULASO, Complainant, v. ATTY. EDITA NOE-LACSAMANA, Respondent.
D E C I S I O N
The decisive question to be resolved in this administrative proceeding is whether or not the notarization of the jurat of the amended verification and affidavit of non-forum shopping attached to the initiatory pleading even before the plaintiff-client has affixed her own signature amounts to censurable conduct on the part of the notary-counsel.
The Integrated Bar of the Philippines (IBP) found respondent Atty. Edita Noe-Lacsamana, the notary-counsel, guilty of gross negligence and of a violation of the Notarial Law; and recommended her suspension from the practice of law for six months.1 She now pleads her cause before us.2
The respondent was the counsel of Irene Bides (Bides) when the latter filed a civil action in the Regional Trial Court (RTC) in Pasig City against complainant Imelda Bides-Ulaso (Ulaso), her own niece; Alan Ulaso (Ulaso's husband); Bartolome Bides (Ulaso's father and Bides' brother); the Register of Deeds of Region II, Metro Manila; and the Revenue District Office of San Juan, Metro Manila. The action was docketed as Special Civil Action (SCA) No. 2481 and raffled to Branch 167 of the RTC.
Bides amended the complaint on June 23, 2003 to demand the declaration of nullity of the deed of sale dated May 27, 1996 pertaining to the parcel of land situated in San Juan, Metro Manila of which Bides was the registered owner. Bides averred that Ulaso had taken her owner's certificate of title during her absence from her residence and that Ulaso had then caused the transfer of the property to herself through the fraudulent execution of the deed of sale.3
The amended complaint of Bides contained a so-called amended verification and affidavit of non-forum shopping dated June 18, 2003, on which was a signature preceded by the word "for" above the printed name "IRENE BIDES." The signature bore a positive resemblance to the respondent's signature as the notary on the jurat of the amended verification and affidavit of non-forum shopping.4 Seeing the defective execution of the amended verification and affidavit of non-forum shopping, Ulaso and her co-defendants filed a motion to dismiss on July 22, 2003,5 citing the defect as a ground, along with another.
Through the respondent as her counsel, Bides opposed the motion to dismiss on August 6, 2003, claiming an inadvertent mistake committed in relation to the signature appearing above the printed name of the affiant, but offering the excuse that the defective amended verification and affidavit of non-forum shopping had actually been only a "sample-draft" intended to instruct Irene Mallari, the respondent's new secretary, on where Bides, as affiant, should sign. Bides also claimed that the respondent's signature above the printed name of the affiant had not been intended to replace the signature of Bides as the affiant; that the correct amended verification and affidavit of non-forum shopping to be appended to the amended complaint had been executed only on June 23, 2003 due to her (Bides) delayed arrival from her home province of Abra; and that Mallari had failed to replace the defective document with the correct amended verification and affidavit of non-forum shopping.6
The RTC denied the motion to dismiss and even declared Ulaso and her co-defendants in default. The RTC ultimately decided the action in favor of Bides, granting reliefs like the nullification of the deed of sale between Bides, as seller, and Ulaso, as buyer.7
On appeal, the Court of Appeals affirmed the RTC's judgment.8
Bides and the respondent brought other proceedings against Ulaso. On September 26, 2003, Bides sued Ulaso and others for ejectment in the Metropolitan Trial Court (MeTC) in San Juan, Metro Manila, to evict them from the premises of Bides' property subject of the RTC case.9 She next formally charged Ulaso and two others with falsification of a public document in the Manila Prosecutor's Office for the execution of the nullified deed of sale, resulting in the criminal prosecution of Ulaso and the others before the MeTC, Branch 17, in Manila.10 The respondent actively prosecuted the criminal charge against Ulaso after being granted by the MeTC the express authority for that purpose pursuant to the Rules of Court.11 The respondent herself commenced disbarment proceedings in the IBP against Atty. Yolando Busmente, Ulaso's counsel; and proceedings for usurpation against Elizabeth de la Rosa, for appearing as Ulaso's other counsel although she had not been a member of the Philippine Bar.12 The disbarment proceedings against Atty. Busmente were docketed as CBD Case No. 05-1462.
To counteract the aforestated moves of Bides and the respondent, Ulaso initiated this proceeding against the respondent on March 2, 2005, praying for the latter's disbarment due to her act of signing the amended verification and affidavit of non-forum shopping attached to the amended complaint of Bides and notarizing the document sans the signature of Bides and despite the non-appearance of Bides before her.13
On July 21, 2005, Bides and Ulaso entered into a compromise agreement to settle the criminal case for falsification, whereby Bides agreed to drop the criminal charge against Ulaso in exchange for, among others, Ulaso's withdrawal of the disbarment complaint against the respondent.14 The MeTC, Branch 17, in Manila approved the compromise agreement.
The agreement on the dropping of the criminal case notwithstanding, the complaint for disbarment continued against the respondent. The IBP Committee on Bar Discipline designated Atty. Patrick M. Velez as Investigating Commissioner. After due hearing, Atty. Velez submitted his report and recommendation dated December 8, 2005,15 in which he rendered the following resolution and findings, viz:
IV. RESOLUTION AND FINDINGS
We are not impressed with the excuses presented by the respondent. The lapse committed by the respondent is clear based on the facts and pieces of evidence submitted in this case.
The respondent admits signing the questioned verification and there is also no dispute that she notarized the same. Even if her tale is true, the fact that she notarized her own signature is inexcusable. It cannot even be pardoned as a simple act of negligence as the standards set by notarial law are stringent enough to require all notaries public to exercise caution in order to protect the integrity and veracity of documents.
We also cannot understand the fact that all the pleadings submitted to the court do not bear the corrected verification and certification. It may be easy to convince us that she is really innocent of the charges if at least one of those documents or even that one copy furnished to the other party in that case would bear at least one such corrected verification. But no, there was none at all. This certainly militates against the position that respondent lawyer took.
We have already stated earlier that lawyers may be disciplined for misconduct as a notary public, and now emphasize that the respondent can not even hide behind the mantle of good faith or throw blame to her secretary. Even as the Supreme Court stated that:
"If the document he notarized turned out to have been falsified, without the fact being known to him at the time, he may still be admonished for not taking pains to ascertain the identity of the person who acknowledged the instrument before him." (Cailing v. Espinoza, 103 Phil. 1165)
Indeed, we may even consider her being grossly negligent in allowing her secretary to commit that error. She gave her secretary blanket authority where she should have exercise sufficient prudence to protect the integrity of her documents. "The burden of preparing a complete pleading falls on counsel's shoulders, not on the messenger" (Tan v. Court of Appeals, 295 SCRA 765 ) and not even on the secretary.Ï‚Î·Î±Ã±rÎ¿blÎµÅ¡ Î½Î¹râ€ Ï…Î±l lÎ±Ï‰ lÎ¹brÎ±rÃ¿
Besides, even if the story she tells us is true, it would appear that the document was pre-notarized based on the very averments made in Irene Mallari's Affidavit of Merit when she stated that:
"3. Atty. Lacsamana was scheduled for an out-of-town trip on Monday, June 23, 2003, thus she hurriedly notarized another prepared set of Amended Verification dated June 23, 2003, and repeatedly told me to file the amended complaint not later than that afternoon to this Honorable Court after replacing its old June 18, 2003-Amended Verification;"
"4. Irene Bides arrived only after lunch and after her niece cause her to sign the amended verification, I replaced the last page of the sets of the Amended Complaint without knowing that I missed its original copy and the copy I hurriedly sent to the counsel for the respondent."
Respondent was not around when the document was signed by the respondent's client. That is a violation of notarial law and deceitful conduct of the part of a lawyer, since he is notarizing a document which he did not actually witness being signed in his presence.
Even page 8 of the respondent's notarial register will not help her in this case. All that it shows is the alleged document no. 36, but what about document no. 35 which should appear in page 7 of Book no. 1? The second document was notarized on another page and it is incumbent on the respondent to show that the same was really not recorded as such. The failure of respondent to present such evidence should be treated as disputable presumption that the same would be detrimental to his interests if so presented. Thus, when the circumstances in proof tend to fix the liability on a party who has it in his power to offer evidence of all facts as they existed and rebut the inference which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that proof if produced, instead of rebutting, would support the inference against him, and the court is justified in acting upon that conclusion (Herrera, Remedial Law, VI, 1999 ed p. 63 citing Worcester v. Ocampo, 22 Phil. 42).
This commission feels that respondent is not being truthful with her defenses. The problem with using such unjustified excuses is that one lie will pile up over the other. Somewhere along the way, the story will leak out its sordid details exposing the excuse as a mere concocted tale and nothing more.
We have the impression that respondent is trying to mislead this Commission, which we cannot allow.
The issue in this case is really limited and focused on the signature and the notarization of the verification and certification against forum shopping for "Irene Bides". Does it constitute actionable misconduct? The other matters raised by the respondent have little bearing herein because it refers to other cases which she has against the complainant. But the causes of action are different so we will deign to entertain such other matters.
The practice of law is a privilege and respondent has gravely abused the same:
"The practice of law is a privilege burdened with conditions. Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality and faithful compliance with the rules of the legal profession are the conditions required for remaining member of good standing of the bar and for enjoying the privilege to practice law. Any breach by lawyer of any of these conditions makes him unworthy of the trust and confidence which courts and clients must, by necessity, repose in him or unfit to continue in the exercise of his professional privilege. His misconduct justifies disciplinary action against him or the withdrawal of his privilege to practice law." (Agpalo, Legal Ethics, 1989 Ed., 392; citation of cases omitted.)
What is far worse is that the respondent has taken a habit of making such excuses for similar mistakes she committed. This Commission notes that the respondent herein is also a complainant in a different case against Atty. Yolando Busmente docketed as CBD case no. 05-1462. In that case, again no certification against non-forum shopping was made in that case, but instead of admitting the lack thereof (as it is not absolutely required in CBD cases) she went on to create a different story that her lawyer was negligent. Unfortunately said lawyer is already dead and cannot answer her accusations. She tried to pass off another set of certification which allegedly was not included with the original documents. What is however telling is that in all the seven (7) copies submitted to the CBD and that one (1) copy furnished to the respondents in that case, no such certification appears.
This unacceptable pattern of behavior compels us to recommend stricter measures to ensure that respondent lawyer is reminded of her solemn duty and obligation to be truthful and honest.
WHEREFORE, it is hereby recommended that the respondent lawyer, Atty. Edita Noe-Lacsamana be suspended from the practice of law for a period of not less than two (2) years and that she be required to take three (3) units of MCLE required legal ethics before she may be allowed to practice law again.16
In its Resolution No. XVII-2006-272 dated May 26, 2006, the IBP Board of Governors approved the report and recommendation of the Investigating Commissioner with modification,17 to wit:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and for notarizing a verification which she has executed, gross negligence and violation of the notarial law, Atty. Edita Noe-Lacsamana is hereby SUSPENDED from the practice of law for six (6) months.
Respondent's Motion for Reconsideration
On August 29, 2006, the respondent came to the Court to seek the overturning of the IBP resolution, contending that:
THE METED 6-MONTH SUSPENSION FROM THE LAW PRACTICE OF THE RESPONDENT IS REPUGNANT TO THE FAILURE OF THE COMPLAINANT TO SHOW PROOF OF HER ALLEGED GROSS NEGLIGENCE AND VIOLATION OF THE NOTARIAL LAW, AS EVENTUALLY SELF-MANIFESTED BY THE COMPLAINANT, WHO, ABSENT KNOWLEDGE OR INVOCATION OF THE RESPONDENT, WITHDREW HER INSTANT COMPLAINT, AS EMBODIED IN THE JULY 22, 2005-DECISION OF HON. GERMANO FRANCISCO D. LEGASPI OF BRANCH 17, METROPOLITAN TRIAL COURT OF MANILA.
THE BLEMISH CAUSED ON THE MORE THAN 26-YEARS OF UNSULLIED REPUTATION OF THE RESPONDENT AS A LAWYER IS COMPELLING HER TO ENTREAT THE HONORABLE BAR CONFIDANT TO ASSESS AND RECONSIDER THE UNJUST AND SPECULATIVE PORTRAYAL OF INVESTIGATING COMMISSIONER PATRICK M. VELEZ IN HIS DECEMBER 8, 2005-REPORT AND RECOMMENDATION TO THE IBP, THAT RESPONDENT IS GUILTY OF DISHONESTY AND/OR GROSS NEGLIGENCE, WITH AN "UNACCEPTABLE PATTERN OF BEHAVIOR", WHICH ALTHOUGH NOT SPECIFIED, IS COMPATIBLE WITH A DEROGATORY CONCLUSION THAT SHE LACKS THE REQUIRED CANDOR, INTEGRITY AND PROFESSIONAL DECORUM OF A MEMBER OF THE BAR, IN REPUGNANCE TO THE MANDATE IN MANUBAY v. GARCIA, 330 SCRA 237, THAT:
The lawyer's guilt cannot be presumed. Allegation is never equivalent to proof and a bare charge cannot be equated with liability.
THE FALLACIES OF THE COMPLAINANT WERE MISSED, DELIBERATELY OR OTHERWISE, IN THE INVESTIGATION OF THIS ADMINISTRATIVE CASE, PARTICULARLY ON THE FACT THAT THE COMPLAINT IS CONFINED ON A REHASH OF THE QUESTIONED AMENDED VERIFICATION AND AFFIDAVIT OF NON-FORUM SHOPPING, TWO (2) YEARS AFTER ITS DISPUTE WAS SETTLED AT THE LOWER COURT AND AT THE COURT OF APPEALS, THUS, FILED OUT OF RANCOR OF THE COMPLAINANT FOR HAVING LOST ALL HER CASES AGAINST THE RESPONDENT'S PRO BONO CLIENT, THUS, SHE WAS UNJUSTLY DENIED OF THE RULE IN SANTOS v. DICHOSO, 84 SCRA 622, THAT:
"The success of a lawyer in his profession depends almost entirely on his reputation. Anything which will harm his good name is to be deplored. Private persons and particularly disgruntled opponents may not, therefore, be permitted to use the courts as vehicles through which to vent their rancor on members of the bar." (underscoring supplied)
We affirm the findings against the respondent.
A. Preliminary Considerations
The respondent argues that this proceeding should be abated by virtue of its withdrawal by Ulaso pursuant to the compromise agreement concluded in the criminal case and approved by the trial court.
The respondent's argument is unwarranted.
The agreement between Bides and Ulaso stipulating the withdrawal of the disbarment case against the respondent did not terminate or abate the jurisdiction of the IBP and of this Court to continue the present administrative proceeding against the respondent as a member of the Philippine Bar. We explained why in Rayos-Ombac v. Rayos,18 viz:
The affidavit of withdrawal of the disbarment case allegedly executed by complainant does not, in any way, exonerate the respondent. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been duly proven. xxx. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges. xxx. crvll
The respondent next contends that we should reject the disbarment complaint because it was filed only after the lapse of two years from the occurrence of the cause; and that personal vendetta impelled its filing.
The respondent's contention cannot be upheld.
Neither the lapse of time from the occurrence of the cause nor the motivation for the filing of the complaint diminished the Court's inherent power to discipline a member of the Bar whenever appropriate. First of all, the ordinary statutes of limitation had no application to disbarment or suspension proceedings against members of the Bar.19 Indeed, such proceedings are sui generis. They are not akin to the trials of actions or suits in which interests and rights are enforced by the plaintiffs against the defendants, but are rather investigations into the conduct of the members of the Bar made by the Supreme Court within the context of its plenary powers expressly granted by the Constitution to regulate the practice of law.20 The proceedings, which the Court may even motu proprio initiate, have neither plaintiffs nor prosecutors. The public interest is their primary objective, the true question for determination being whether or not the respondent members of the Bar are still fit to be allowed to retain their memberships and to enjoy the privileges appurtenant to such memberships.21
B. Basis for Disciplinary Action
Ulaso insists that the respondent's act of signing the amended verification and affidavit of non-forum shopping for Bides as plaintiff-affiant violated the penal law, the 1997 Rules of Civil Procedure, the Lawyer's Oath, the Code of Professional Responsibility, and the Notarial Law.
In contrast, the respondent maintains that her signature was made not to fool the trial court, but only to illustrate to her new secretary how and where Bides should sign the form; and that the amended verification and affidavit of non-forum shopping, merely a "sample-draft," was wrongly attached.
Investigating Commissioner Velez found that the respondent had deliberately and with malice led the trial court to believe that her signature in the amended verification and affidavit of non-forum shopping had been that of Bides.
We regard the finding of deliberation and malice to be unjustified. The admitted precedence by the word "for" of the signature on the amended verification and affidavit of non-forum shopping was an indicium that the respondent did not intend to misrepresent the signature as that of Bides. The apparent resemblance of the signature after the word "for" with the respondent's signature as the notary executing the jurat rendered improbable that the respondent had intended to deceive, considering that the respondent would have instead written the name Irene Bides or forged the signature of Bides had she wanted to pass the signature off as that of Bides.
The respondent, by notarizing the document sans the signature of Bides, was only anticipating that Bides would subsequently sign, because, after all, Bides had already signed the original verification and affidavit. Ostensibly, the amended verification and affidavit of non-forum shopping was intended to replace the original one attached to the initiatory pleading of Bides. Thus, bad faith did not motivate the respondent into notarizing the amended verification and affidavit of non-forum shopping.
The lack of bad faith notwithstanding, we nonetheless concur with the findings of Investigating Commissioner Velez that the respondent's notarizing the amended verification and affidavit of non-forum shopping in the absence of Bides as the affiant constituted a clear breach of the notarial protocol and was highly censurable.22
The jurat is that end part of the affidavit in which the notary certifies that the instrument is sworn to before her. As such, the notarial certification is essential. Considering that notarization is not an empty, meaningless, routinary act,23 the faithful observance and utmost respect of the legal solemnity of the oath in the jurat are sacrosanct.24
Specifically, the notarial certification contained in the jurat of the amended verification and affidavit of non-forum shopping - "SUBSCRIBED AND SWORN TO BEFORE ME, on this 18th day of June 2003, affiant IRENE BIDES, showing to me her CTC Nos. 11833475 issued on November 21, 2002, in Manila"25 - indicated both the necessity for the physical presence of Bides as the affiant and the fact that the signing was done in the presence of the respondent as the notary. The physical presence of Bides was required in order to have her as the affiant swear before the respondent that she was that person and in order to enable the respondent as the notary to ascertain whether Bides had voluntarily and freely executed the affidavit.26 Thus, the respondent, by signing as notary even before Bides herself could appear before her, failed to give due observance and respect to the solemnity.
Being a lawyer commissioned as a notary, the respondent was mandated to discharge with fidelity the sacred duties appertaining to her notarial office. Such duties being dictated by public policy and impressed with public interest, she could not disregard the requirements and solemnities of the Notarial Law.27 It was emphatically her primary duty as a lawyer-notary to obey the laws of the land and to promote respect for the law and legal processes.28 She was expected to be in the forefront in the observance and maintenance of the rule of law. She ought to have remembered that a graver responsibility was placed upon her shoulders by virtue of her being a lawyer.29 Ï‚Î·Î±Ã±rÎ¿blÎµÅ¡ Î½Î¹râ€ Ï…Î±l lÎ±Ï‰ lÎ¹brÎ±rÃ¿
In imposing the penalty upon the respondent, however, we opt to reprimand her instead of suspending her from the practice of law for three months, as the IBP recommended. This we do after we take into account, firstly, the absence of bad faith in her notarizing the unsigned document; secondly, the fact that the infraction was the first lodged against her in her long years of membership in the Bar; and thirdly, her recuperating from the debilitating stroke that had left her unable to perform any work since July 11, 2007.30
ACCORDINGLY, we modify the recommendation of the Integrated Bar of the Philippines by reprimanding respondent Atty. Edita Noe-Lacsamana, with a warning that a similar infraction in the future will be dealt with more severely.
* Additional Member in lieu of Carpio, J., per Special Order No. 698.
1 Rollo, p. 307.
2 Id., pp. 317-357.
3 Id., pp. 4-12.
4 Id., p. 12.
5 Id., pp. 157-161.
6 Id., pp. 162-171.
7 Id., pp. 30-36.
8 Id., pp. 61-71.
9 Id., pp. 217-223.
10 Id., p. 37
11 Id. p. 38.
12 Id., pp. 257-258 and 265.
13 Id., pp. 1-2.
14 Id., pp. 365-366.
15 Id., pp. 308-316.
16 Id., pp. 313-316.
17 Id., p. 307.
18 A.C. No. 2884, January 28, 1998, 285 SCRA 93, 100-101.
19 Calo, Jr. v. Degamo, A.C. No. 516, August 30, 1967, 20 SCRA 447.
20 Art. VIII, Sec. 5(5), 1987 Constitution, which pertinently provides:
SECTION 5. The Supreme Court shall have the following powers:
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
21 In re: Almacen, G.R. No. L-27654, February 18, 1970, 31 SCRA 562, 600.
22 National Bureau of Investigation v. Morada, A.C. No. 321, July 31, 1961, 2 SCRA 827, 830.
23 Maligsa v. Atty. Cabanting, A.C. No. 4539, May 14, 1997, 272 SCRA 408; Vda. de Rosales v. Ramos, A.C. No. 5645, July 2, 2002, 383 SCRA 498; Joson v. Baltazar, A.C. No. 575, February 14, 1991, 194 SCRA 114, 119.
24 Social Security Commission v. Corral, A.C. No. 6249, October 14, 2004, 440 SCRA 291, 296.
25 Rollo, p. 107.
26 Lopena v. Cabatos, A.C. No. 3441, August 11, 2005, 466 SCRA 419, 426.
27 Soriano v. Basco, A.C. No. 6648, September 21, 2005, 470 SCRA 423, 431.
28 Canon 1, Code of Professional Responsibility.
29 Alitagtag v. Garcia, A.C. No. 4738, June 10, 2003, 403 SCRA 335.
30 See respondent's Ex-Parte Motion for Early Resolution filed on February 23, 2009; rollo, pp. 370-373.