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THIRD DIVISION
JONAR SANTIAGO,
Complainant,

A.C. No. 6252

Present:
Panganiban, J.,
Chairman,
Sandoval-Gutierrez,
Corona, and
Carpio Morales,*

- versus JJ

Promulgated:
Atty. EDISON V. RAFANAN,
Respondent.

October 5, 2004

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

DECISION
PANGANIBAN, J.:

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

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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]
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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 Counteraffidavits 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
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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
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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.

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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
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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
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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 CounterAffidavits 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
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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
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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
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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.

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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

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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
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W E C O N C U R:

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

RENATO C. CORONA
Associate Justice

[1]

CONCHITA CARPIO MORALES

Associate Justice

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,

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(c)

each of whom must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.
xxx
xxx
xxx
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 counteraffidavits 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]
[24]
[25]

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

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[38]

Ibid.

[39]

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

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