Lawyer notarizing SPA with unsigned name, NOT punished

FIRST DIVISION [ A.C. No. 12093, June 27, 2018 ] JOSE A. ESTEVEZ, JR. VS. ATTY. MARIANO B. BARANDA, JR.

In a Complaint-Affidavit[1] filed before the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) on January 16, 2014, Jose A. Estevez, Jr. (complainant) charged Atty. Mariano B. Baranda (respondent) for notarizing a Special Power of Attorney[2] (SPA) with him as one of the principals, without his signature appearing therein.

The facts are undisputed.

Complainant is one of the heirs of Perla A. Estevez (Perla) who passed away last November 26, 2008.[3] On June 1, 2009, respondent notarized an SPA executed by Perla's heirs except complainant, whose signature does not appear in the said document albeit his name appeared therein. The SPA constituted the heirs' father, Jose Estevez, Sr. as attorney-in-fact to negotiate and transact business involving all the properties which they owned as heirs of their late mother.[4] Complainant averred that by virtue of the said SPA, their father was able to sell a property to a third person, which sale prejudiced his right as an heir.[5]

For his part, respondent admitted having notarized the said SPA and that in doing so, all the signatories to the SPA were present. Respondent averred that all the signatories are personally known to him as they, including herein complainant, are his clients. Respondent recognized that, indeed, when he notarized the SPA, complainant's signature does not appear therein as he was made to understand that the signatories agreed that complainant's assent to the SPA will be the subject of a separate acknowledgment before the respondent or any other notary public. As such, respondent was fully cognizant of the fact that he was merely acknowledging the assent of the heirs who signed the SPA, excluding complainant, who did not sign the same.[6]

In its Report and Recommendation[7] dated June 5, 2015, the IBP-CBD found no bad faith, deceit, or misconduct in notarizing the SPA despite knowledge that one of the heirs did not sign the same. However, it made a recommendation for the respondent to be admonished for being negligent in his conduct as notary public. According to the IBP-CBD, respondent could have deleted the unsigned name of complainant in the SPA before he notarized the same. Nevertheless, such failure was a mere honest mistake and did not violate any provision of the notarial law.[8]In its Resolution No. XXI-2015-567[9] dated June 20, 2015, however, the IBP Board of Governors resolved to reverse and set aside the said June 5, 2015 Report and Recommendation. According to the IBP Board of Governors, the fact that complainant's signature in the SPA does not appear clearly means that he did not execute the same and there is, therefore, no need for respondent to identify complainant. As respondent did not violate any provision of the Notarial Act, the IBP Board of Governors find no legal basis to admonish respondent and thus resolved to dismiss the complaint against the latter.

No motion for reconsideration or petition for review was thereafter filed by either parties per the March 21, 2018 Report for Agenda of the Office of the Bar Confidant.[10]

The only issue for Our resolution is: whether or not there are factual and/or legal bases to admonish respondent or hold him administratively liable.

We are one with the IBP Board of Governors in ruling that there is no factual nor legal basis in admonishing respondent. It is clear from the undisputed facts that when respondent notarized the subject SPA, he acknowledged that the signatories therein, which admittedly does not include complainant albeit his name appeared therein, personally appeared before him, with their respective Community Tax Certificates, known to him to be the same persons who executed the subject SPA, and that the same was their free act and voluntary deed. Respondent does not dispute the fact that in notarizing the subject SPA, he acknowledged that the signatories therein executed the same in freely and voluntarily. In another way of putting it, the fact that complainant's signature does not appear in the SPA clearly means that the latter was not part of the execution of the subject SPA, which fact was acknowledged by respondent when he notarized the said document.

The IBP Board of Governors correctly cited Rule IV, Section 2(b) of the 2004 Rules on Notarial Practice which states that:
Sec. 2. Prohibitions. x x x x
(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document -

(1) is not in the notary's presence personally at the time of the notarization; and

(2) 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. (Emphasis ours)
There is thus no violation of the Notarial law when respondent notarized the subject SPA - all signatories in the SPA appeared before the respondent, who were identified as the latter personally know them, being the family lawyer, when he notarized the SPA. The Board of Governors correctly found that there was no necessity for respondent to identify complainant, considering that the latter was not a signatory to the SPA, which unequivocally means that he was not one of those who executed the same.

Based on the foregoing circumstances of the case, there is no factual or legal basis to admonish respondent or hold him administratively liable. The alleged prejudiced caused to the complainant, if any, as regards the alienation of his share in the estate of their late mother through the subject SPA, cannot be put on respondent's shoulder, being merely the notary public and considering that there was no irregularity in the latter's action as such.

In the exercise of our disciplinary authority, we are always reminded that such power to discipline should be exercised on the preservative and not on the vindictive, with great caution and only for the most weighty reasons.[11] "While the Supreme Court has the plenary power to discipline erring lawyers through this kind of proceedings, it does so in the most vigilant manner so as not to frustrate its preservative principle."[12]

WHEREFORE, premises considered, the complaint against respondent Atty. Mariano B. Baranda, Jr. is hereby DISMISSED for utter lack of merit.

SO ORDERED. Leonardo-De Castro, J., on official leave; Del Castillo, J., designated as Acting Chairperson of the First Division per Special Order No. 2562 dated June 20, 2018; Gesmundo, J., designated as Acting Member per Special Order No. 2560 dated May 11, 2018.
[1]Rollo, pp. 2-3.
[2]Id. at 4-5.
[3]Id. at 2.
[4]Id. at 49.
[5]Id. at 2.
[6]Id. at 19.
[7]Id. at 49-50.
[8]Id. at 50.
[9]Id. at 48.
[10]Id. at 74.
[11]Advincula v. Atty. Macabata, 546 Phil. 431, 447 (2007).
[12]Arma v. Atty. Montevilla, 581 Phil. 1, 8 (2008).