THIRD DIVISION

JONAR SANTIAGO, A.C. No. 6252

Complainant,

Present:

Panganiban, J.,

Chairman,

- versus - Sandoval-Gutierrez,

Corona, and

Carpio Morales,* JJ

Promulgated:

Atty. EDISON V. RAFANAN,

Respondent. October 5, 2004

x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

DECISION

PANGANIBAN, J.:
N

otaries public are expected to exert utmost care in the performance of their duties, which are impressed
with public interest. They are enjoined to comply faithfully with the solemnities and requirements of the
Notarial Law. This Court will not hesitate to mete out appropriate sanctions to those who violate it or
neglect observance thereof.

__________________

* On leave.

The Case and the Facts

Before us is a verified Complaint[1] filed by Jonar Santiago, an employee of the Bureau of Jail
Management and Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan. The Complaint was
filed with the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on
January 16, 2001. It charged Atty. Rafanan with deceit; malpractice or other gross misconduct in office
under Section 27 of Rule 138[2] of the Rules of Court; and violation of Canons 1.01, 1.02 and 1.03[3],
Canon 5[4], and Canons 12.07[5] and 12.08

of the Code of Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of the
complainant in this wise:

x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing several
documents on different dates failed and/or refused to: a)make the proper notation regarding the cedula
or community tax certificate of the affiants; b) enter the details of the notarized documents in the
notarial register; and c) make and execute the certification and enter his PTR and IBP numbers in the
documents he had notarized, all in violation of the notarial provisions of the Revised Administrative
Code.

Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered the
same as evidence in the case wherein he was actively representing his client. Finally, Complainant
alleges that on a certain date, Respondent accompanied by several persons waited for Complainant
after the hearing and after confronting the latter disarmed him of his sidearm and thereafter uttered
insulting words and veiled threats.[6]

On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,[7] Atty. Rafanan filed his
verified Answer.[8] He admitted having administered the oath to the affiants whose Affidavits were
attached to the verified Complaint. He believed, however, that the

non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits was allowed.

He opined that the notation of residence certificates applied only to documents acknowledged by a
notary public and was not mandatory for affidavits related to cases pending before courts and other
government offices. He pointed out that in the latter, the affidavits, which were sworn to before
government prosecutors, did not have to indicate the residence certificates of the affiants. Neither did
other notaries public in Nueva Ecija -- some of whom were older practitioners -- indicate the affiants
residence certificates on the documents they notarized, or have entries in their notarial register for
these documents.

As to his alleged failure to comply with the certification required by Section 3 of Rule 112[9] of the Rules
of Criminal Procedure, respondent explained that as counsel of the affiants, he had the option to comply
or not with the certification. To nullify the Affidavits, it was complainant who was duty-bound to bring
the said noncompliance to the attention of the prosecutor conducting the preliminary investigation.

As to his alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers could testify on
behalf of their clients on substantial matters, in cases where [their] testimony is essential to the ends of
justice. Complainant charged respondents clients with attempted murder. Respondent averred that
since they were in his house when the alleged crime occurred, his testimony is very essential to the ends
of justice.

Respondent alleged that it was complainant who had threatened and harassed his clients after the
hearing of their case by the provincial prosecutor on January 4, 2001. Respondent requested the
assistance of the Cabanatuan City Police the following day, January 5, 2001, which was the next
scheduled hearing, to avoid a repetition of the incident and to allay the fears of his clients. In support of
his allegations, he submitted Certifications[10] from the Cabanatuan City Police and the Joint
Affidavit[11] of the two police officers who had assisted them.

Lastly, he contended that the case had been initiated for no other purpose than to harass him, because
he was the counsel of Barangay Captain Ernesto Ramos in the cases filed by the latter before the
ombudsman and the BJMP against complainant.

After receipt of respondents Answer, the CBD, through Commissioner Tyrone R. Cimafranca, set the case
for hearing on June 5, 2001, at two oclock in the afternoon. Notices[12] of the hearing were sent to the
parties by registered mail. On the scheduled date and time of the hearing, only complainant appeared.
Respondent was unable to do so, apparently because he had received the Notice only on June 8,
2001.[13] The hearing was reset to July 3, 2001 at two oclock in the afternoon.

On the same day, June 5, 2001, complainant filed his Reply[14] to the verified Answer of respondent.
The latters Rejoinder was received by the CBD on July 13, 2001.[15] It also received complainants Letter-
Request[16] to dispense with the hearings. Accordingly, it granted that request in its Order[17] dated
July 24, 2001, issued through Commissioner Cimafranca. It thereby directed the parties to submit their
respective memoranda within fifteen days from receipt of the Order, after which the case was to be
deemed submitted for resolution.

The CBD received complainants Memorandum[18] on September 26, 2001. Respondent did not file any.

The IBPs Recommendation

On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-2003-172[19] approving
and adopting the Investigating Commissioners Report that respondent had violated specific
requirements of the Notarial Law on the execution of a certification, the entry of such certification in the
notarial register, and the indication of the affiants residence certificate. The IBP Board of Governors
found his excuse for the violations unacceptable. It modified, however, the recommendation[20] of the
investigating commissioner by increasing the fine to P3,000 with a warning that any repetition of the
violation will be dealt with a heavier penalty.
The other charges -- violation of Section 27 of Rule 138 of the Rules of Court; and Canons 1.01 to 1.03,
12.07 and 12.08 of the CPR -- were dismissed for insufficiency of evidence.

The Courts Ruling

We agree with the Resolution of the IBP Board of Governors.

Respondents Administrative Liability

Violation of the Notarial Law

The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify
that the party to every document acknowledged before them has presented the proper residence
certificate (or exemption from the residence tax); and to enter its number, place of issue and date as
part of such certification.[21] They are also required to maintain and keep a notarial register; to enter
therein all instruments notarized by them; and to give to each instrument executed, sworn to, or
acknowledged before [them] a number corresponding to the one in [their] register [and to state therein]
the page or pages of [their] register, on which the same is recorded.[22] Failure to perform these duties
would result in the revocation of their commission as notaries public.[23]
These formalities are mandatory and cannot be simply neglected, considering the degree of importance
and evidentiary weight attached to notarized documents. Notaries public entering into their
commissions are presumed to be aware of these elementary requirements.

In Vda. de Rosales v. Ramos,[24] the Court explained the value and meaning of notarization as follows:

The importance attached to the act of notarization cannot be overemphasized. 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. Notarization converts a private document
into a public document thus making that document admissible in evidence without further proof of its
authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts,
administrative agencies and the public at large must be able to rely upon the acknowledgment executed
by a notary public and appended to a private instrument.

For this reason, notaries public should not take for granted the solemn duties pertaining to their office.
Slipshod methods in their performance of the notarial act are never to be countenanced. They are
expected to exert utmost care in the performance of their duties,[25] which are dictated by public policy
and are impressed with public interest.

It is clear from the pleadings before us -- and respondent has readily admitted -- that he violated the
Notarial Law by failing to enter in the documents notations of the residence certificate, as well as the
entry number and the pages of the notarial registry.

Respondent believes, however, that noncompliance with those requirements is not mandatory for
affidavits relative to cases pending before the courts and government agencies. He points to similar
practices of older notaries in Nueva Ecija.

We cannot give credence to, much less honor, his claim. His belief that the requirements do not apply to
affidavits is patently irrelevant. No law dispenses with these formalities. Au contraire, the Notarial Law
makes no qualification or exception. It is appalling and inexcusable that he did away with the basics of
notarial procedure allegedly because others were doing so. Being swayed by the bad example of others
is not an acceptable justification for breaking the law.
We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit
of respondents clients Ernesto Ramos and Rey Geronimo, as well as their witnesses Affidavits relative to
Criminal Case No. 69-2000 for attempted murder, filed by complainants brother against the
aforementioned clients. These documents became the basis of the present Complaint.

As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of
Criminal Procedure expressly requires respondent as notary -- in the absence of any fiscal, state
prosecutor or government official authorized to administer the oath -- to certify that he has personally
examined the affiants and that he is satisfied that they voluntarily executed and understood their
affidavits. Respondent failed to do so with respect to the subject Affidavits and Counter-Affidavits in the
belief that -- as counsel for the affiants -- he was not required to comply with the certification
requirement.

It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote
respect for the law and legal processes.[26] They are expected to be in the forefront in the observance
and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the
existing laws and to keep abreast with legal developments, recent enactments and jurisprudence.[27] It
is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such
duty, they may not be able to discharge competently and diligently their obligations as members of the
bar. Worse, they may become susceptible to committing mistakes.

Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn
oath to obey the laws.[28] No custom or age-old practice provides sufficient excuse or justification for
their failure to adhere to the provisions of the law. In this case, the excuse given by respondent
exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and the importance of
his office as a notary public.

Nonetheless, we do not agree with complainants plea to disbar respondent from the practice of law.
The power to disbar must be exercised with great caution.[29] Disbarment will be imposed as a penalty
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 a member of the bar. Where any lesser penalty can accomplish the end
desired, disbarment should not be decreed.[30] Considering the nature of the infraction and the
absence of deceit on the part of respondent, we believe that the penalty recommended by the IBP
Board of Governors is a sufficient disciplinary measure in this case.
Lawyer as Witness for Client

Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an affidavit
corroborating the defense of alibi proffered by respondents clients, allegedly in violation of Rule 12.08
of the CPR: A lawyer shall avoid testifying in behalf of his client.

Rule 12.08 of Canon 12 of the CPR states:

Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except:

a) on formal matters, such as the mailing, authentication or custody of an instrument and the
like;

b) on substantial matters, in cases where his testimony is essential to the ends of justice, in
which event he must, during his testimony, entrust the trial of the case to another counsel.

Parenthetically, under the law, a lawyer is not disqualified from being a witness,[31] except only in
certain cases pertaining to privileged communication arising from an attorney-client relationship.[32]

The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation
to their clients as witnesses from that as advocates. Witnesses are expected to tell the facts as they
recall them. In contradistinction, advocates are partisans -- those who actively plead and defend the
cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested witness from
the zeal of an advocate. The question is one of propriety rather than of competency of the lawyers who
testify for their clients.

Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind
criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe
the lawyer as disinterested. The people will have a plausible reason for thinking, and if their sympathies
are against the lawyers client, they will have an opportunity, not likely to be neglected, for charging, that
as a witness he fortified it with his own testimony. The testimony of the lawyer becomes doubted and is
looked upon as partial and untruthful.[33]

Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for
a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have
to; and should they do so, to withdraw from active management of the case.[34]

Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of
his clients, we cannot hastily make him administratively liable for the following reasons:

First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law
for the benefit of the client, especially in a criminal action in which the latters life and liberty are at
stake.[35] It is the fundamental right of the accused to be afforded full opportunity to rebut the charges
against them. They are entitled to suggest all those reasonable doubts that may arise from the evidence
as to their guilt; and to ensure that if they are convicted, such conviction is according to law.

Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to
spare no effort to save his clients from a wrong conviction. He had the duty to present -- by all fair and
honorable means -- every defense and mitigating circumstance that the law permitted, to the end that
his clients would not be deprived of life, liberty or property, except by due process of law.[36]

The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it
pointed out the fact that on the alleged date and time of the incident, his clients were at his residence
and could not have possibly committed the crime charged against them. Notably, in his Affidavit,
complainant does not dispute the statements of respondent or suggest the falsity of its contents.

Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies
during the trial. In this instance, the Affidavit was submitted during the preliminary investigation which,
as such, was merely inquisitorial.[37] Not being a trial of the case on the merits, a preliminary
investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious and
oppressive prosecutions; protecting them from open and public accusations of crime and from the
trouble as well as expense and anxiety of a public trial; and protecting the State from useless and
expensive prosecutions.[38] The investigation is advisedly called preliminary, as it is yet to be followed
by the trial proper.
Nonetheless, we deem it important to stress and remind respondent to refrain from accepting
employment in any matter in which he knows or has reason to believe that he may be an essential
witness for the prospective client. Furthermore, in future cases in which his testimony may become
essential to serve the ends of justice, the canons of the profession require him to withdraw from the
active prosecution of these cases.

No Proof of Harassment

The charge that respondent harassed complainant and uttered insulting words and veiled threats is not
supported by evidence. Allegation is never equivalent to proof, and a bare charge cannot be equated
with liability.[39] It is not the self-serving claim of complainant but the version of respondent that is
more credible, considering that the latters allegations are corroborated by the Affidavits of the police
officers and the Certifications of the Cabanatuan City Police.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of the
Code of Professional Responsibility and is hereby FINED P3,000 with a warning that similar infractions in
the future will be dealt with more severely.

SO ORDERED.

ARTEMIO V. PANGANIBAN

Associate Justice

Chairman, Third Division

W E C O N C U R:
ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

[1] Records, pp. 1-4.

[2] Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. A member of the bar
may be removed or suspended from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his
conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to
take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or
for corruptly or willfully appearing as an attorney for a party to a case without authority to do so. The
practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or
brokers, constitutes malpractice.

[3] CANON 1 x x x

Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Rule 1.02 A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening
confidence in the legal system.

Rule 1.03 A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or
delay any mans cause.

[4] CANON 5 A lawyer shall keep abreast of legal developments, participate in continuing legal education
programs, support efforts to achieve high standards in law schools as well as in the practical training of
law students and assist in disseminating information regarding the law and jurisprudence.

[5] CANON 12 x x x

Rule 12.07 A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.
[6] Annex A, Notice of Resolution of the IBP Board of Governors; Report, pp. 1-2.

[7] Records, p. 13.

[8] Id., pp. 14-18.

[9] Sec. 3. Procedure. x x x

(a) x x x. The affidavits shall be sworn to before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify
that he personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.

xxxxxxxxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this section x x x.

[10] Records, pp. 54-55.

[11] Joint Affidavit of PO3 Ronaldo S. Gamboa and PO2 Nicasio A. Yambot; records, p. 68.

[12] Records, p. 57.

[13] See Registry Return Receipt attached to Notice of Hearing.

[14] Records, pp. 59-63.

[15] Id., pp. 65-67.

[16] Id., p. 74.

[17] Id., p. 88.

[18] Id., pp. 92-100.

[19] See Notice of Resolution; records, p. 103.

[20] The investigating commissioner recommended that respondent be reprimanded and fined
P1,500.00 for violating Canon 5 of the Code of Professional Responsibility.

[21] 251 of the Revised Administrative Code.

[22] 246 of the Revised Administrative Code.

[23] 249 of the Revised Administrative Code; Protacio v. Mendoza, 395 SCRA 10, 17, January 13, 2003.
[24] 383 SCRA 498, 504, July 2, 2002, per Bellosillo, J.

[25] Vda. de Bernardo v. Restauro, 404 SCRA 599, 603, June 25, 2003; Maligsa v. Cabanting, 272 SCRA
408, 414, May 14, 1997; Arrieta v. Llosa, 282 SCRA 248, 253, November 28, 1997.

[26] Canon 1 of the CPR.

[27] Canon 5 of the CPR.

[28] Alitagtag v. Garcia, 403 SCRA 335, 341, June 10, 2003.

[29] Ibid.

[30] Vda. de Rosales v. Ramos, supra.

[31] Per 20 of the Rules of Court.

[32] Per 24 of the Rules of Court.

[33] Vicente J. Francisco, Legal Ethics (1949), p. 203 (citing Williams, Legal Ethics, p. 53; and Warvelle,
Legal Ethics, p. 119).

[34] Philippine National Bank v. Uy Teng Piao, 57 Phil. 337, October 21, 1932.

[35] Canon 5 of the Canons of Professional Ethics; 20 (i) of Rule 138, Rules of Court.

[36] Lames v. Lascieras, 89 SCRA 186, 189, March 30, 1979.

[37] Manuel R. Pamaran, Rules on Criminal Procedure Annotated (1998), p. 161 (citing Tandoc v.
Resultan, 175 SCRA 37, July 5, 1989).

[38] Ibid.

[39] Manubay v. Garcia, 386 Phil. 440, 443, April 12, 2000.