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h an attorney owes to the court, to the client, to his colleagues in the profess
ion and to the public as embodied in the Constitution, Rules of Court, the Code
of Professional Responsibility, Canons of Professional Ethics, jurisprudence, mo
ral laws and special laws.
Original Bases of Legal Ethics:
1. Canons of Professional Ethics
2. Supreme Court Decisions
3. Constitution
4. Treatises and publications
5. Statistics
Present Basis of the Philippine Legal System: Code of Professional Responsibilit
y.
BAR V. BENCH
Refers to the whole body of attorneys and denotes the whole body o
f judges
counselors, collectively the members of
the legal profession
Practice of Law any activity, in or out of court which requires the application
of law, legal procedure, knowledge, training and experience. To engage in the pr
actice of law is to give notice or render any kind of service, which device or s
ervice requires the use in any degree of legal knowledge or skill (Cayetano v. M
onsod, 201 SCRA 210).
Attorney-at-law/Counsel-at-law/Attorney/Counsel/ Abogado/Boceros: that class of
persons who are licensed officers of the courts, empowered to appear, prosecute
and defend; and upon whom peculiar duties, responsibilities, and liabilities are
developed by law as a consequence (Cui v. Cui, 120 Phil. 729).
Attorney in fact an agent whose authority is strictly limited by the instrument
appointing him, however, he may do things not mentioned in his appointment but a
re necessary to the performance of the duties specifically required of him by th
e power of attorney appointing him, such authority being necessarily implied. H
e is not necessarily a lawyer.
Counsel de Oficio a counsel, appointed or assigned by the court, from among memb
ers of the Bar in good standing who, by reason of their experience and ability,
may adequately defend the accused.
Note: In localities where members of the Bar are not available, the court may ap
point any person, resident of the province and good repute for probity and abili
ty, to defend the accused. Sec. 7, Rule 116, Rules of Court.
Attorney ad hoc a person named and appointed by the court to defend an absentee
defendant in the suit in which the appointment is made (Bienvenu v. Factor s of Tr
aders Insurance Cp., 33 La.Ann.209)
Attorney of Record - one who has filed a notice of appearance and who hence is f
ormally mentioned in court records as the official attorney of the party. Person
whom the client has named as his agent upon whom service of papers may be made.
(Reynolds v. Reynolds, Cal.2d580).
Of Counsel to distinguish them from attorneys of record, associate attorneys are
referred to as of counsel (5 Am. Jur. 261).
Lead Counsel The counsel on their side of a litigated action who is charged with
the principal management and direction of a party s case.
House Counsel Lawyer who acts as attorney for business though carried as an empl
oyee of that business and not as an independent lawyer.
Bar Association an association of members of the legal profession.
Advocate The general and popular name for a lawyer who pleads on behalf of someo
ne else.
Barrister (England) a person entitled to practice law as an advocate or counsel
in superior court.
Proctor (England) Formerly, an attorney in the admiralty and ecclesiastical cour
ts whose duties and business correspond to those of an attorney at law or solici
tor in Chancery.
Titulo de Abogado - it means not mere possession of the academic degree of Bach
elor of Laws but membership in the Bar after due admission thereto, qualifying o
ne for the practice of law.
ADMISSION TO THE PRACTICE OF LAW
The Supreme Court has the power to control and regulate the practice of law. Thu
s, the Constitution, under Article VIII, Sec. 5 (5) provides:
Sec. 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 pr
actice of law, the Integrated Bar, and legal assistance to the under privileged.
The Supreme Court acts through a Bar Examination Committee in the Exercise of hi
s judicial function to admit candidates to the legal profession.
The Bar Examination Committee:
* Composed of (1) member of the Supreme Court who acts as Chairman and eight (8)
members of the bar.
* The 8 members act as examiners for the 8 bar subjects with one subject assigne
d to each.
* The Bar Confidant acts as a sort of liaison officer between the court and the
Bar Chairman on the other hand, and the individual members of the committee on t
he other. He is at the same time a deputy clerk of court.
* Admission of examinees is always subject to the final approval of the court.
Practice of Law
The practice of law is a PRIVILEGE granted only to those who possess the
STRICT INTELLECTUAL AND MORAL QUALIFICATIONS required of lawyers who are instru
ments in the effective and efficient administration of justice. (In Re: Argosino
, 1997).
Practice of law means any activity, in or out of court, which requires t
he application of law, legal procedure, knowledge, training, and experience. To e
ngage in the practice of law is to perform those acts which are characteristics
of the profession. Generally, to practice law is to give notice or render any ki
nd of service, which device or service requires the use in any degree of legal k
nowledge or skill. (Cayetano vs. Monsod, 201 SCRA 210 citing 111 ALR 23).
Requirements for admission to the Bar:
1. Citizen of the Philippines
2. At least 21 years old
3. Of good moral character
4. Resident of the Philippines
5. Production before the Supreme Court satisfactory evidence of:
a. Good moral character
b. No charges against him, involving moral turpitude, have been filed or are pen
ding in any court in the Philippines.
Requirement of Good Moral Character: a continuing requirement; good moral charac
ter is not only a condition precedent for admission to the legal profession, but
it must also remain intact in order to maintain one's good standing in that exc
lusive and honored fraternity. (Tapucar vs. Tapucar, 1998)
Academic Requirements for Candidates:
1. A bachelor s degree in arts and sciences (pre-law course)
2. A completed course in:
a. Civil law
b. Commercial law
c. Remedial law
d. Public international law
e. Private international law
f. Political law
g. Labor and social legislation
h. Medial jurisprudence
i. Taxation
j. Legal ethics
Non-lawyers who may be authorized to appear in court:
1. Cases before the MTC: Party to the litigation, in person OR through an agen
t or friend or appointed by him for that purpose (Sec. 34, Rule 138, RRC)
2. Before any other court: Party to the litigation, in person (Ibid.)
3. Criminal case before the MTC in a locality where a duly licensed member of th
e Bar is not available: the judge may appoint a non-lawyer who is:
a. Resident of the province
b. Of good repute for probity and ability to aid the accused in his defense (Rul
e 116, Sec. 7, RRC).
4. Legal Aid Program - A senior law student, who is enrolled in a recognized law
school s clinical education program approved by the Supreme Court may appear befo
re any court without compensation, to represent indigent clients, accepted by th
e Legal Clinic of the law school. The student shall be under the direct supervi
sion and control of an IBP member duly accredited by the law school.
5. Under the Labor code, non-lawyers may appear before the NLRC or any Labor Arb
iter, if
a. They represent themselves, or if
b. They represent their organization or members thereof (Art 222, PO 442, as ame
nded).
6. Under the Cadastral Act, a non-lawyer can represent a claimant before the Cad
astral Court (Act no. 2259, Sec. 9).
Public Officials who cannot engage in the private practice of Law in the Philipp
ines:
1. Judges and other officials as employees of the Supreme Court (Rule 148, Sec.
35, RRC).
2. Officials and employees of the OSG (Ibid.)
3. Government prosecutors (People v. Villanueva, 14 SCRA 109).
4. President, Vice-President, members of the cabinet, their deputies and assista
nts (Art. VIII Sec. 15, 1987 Constitution).
5. Members of the Constitutional Commission (Art IX-A, Sec. 2, 1987 Constitution
)
6. Ombudsman and his deputies (Art. IX, Sec. 8 (2nd par), 1987 Constitution)
7. All governors, city and municipal mayors (R.A. No. 7160, Sec. 90).
8. Those prohibited by special law
Public officials with Restrictions in the Practice of Law
1. No Senator as member of the House of Representative may personally appear as
counsel before any court of justice as before the Electoral Tribunals, as quasi-
judicial and other administration bodies (Art. VI, Sec. 14, 1987 Constitution).
2. Under the Local Government Code (RA 7160, Sec. 91) Sanggunian members may pra
ctice their professions provided that if they are members of the Bar, they shall
not:
a. Appear as counsel before any court in any civil case wherein a local governme
nt unit or any office, agency, or instrumentality of the government is the adver
se party;
b. Appear as counsel in any criminal case wherein an officer or employee of the
national or local government is accused of an offense committed in relation to h
is office;
c. Collect any fee for their appearance in administrative proceedings involving
the local government unit of which he is an official;
d. Use property and personnel of the government except when the Sanggunian membe
r concerned is defending the interest of the government.
3. Under RA 910, Sec. 1, as amended, a retired justice or judge receiving pensio
n from the government, cannot act as counsel in any civil case in which the Gove
rnment, or any of its subdivision or agencies is the adverse party or in a crimi
nal case wherein an officer or employee of the Government is accused of an offen
se in relation to his office.
Attorney s Oath
I, __________________, do solemnly swear that I will maintain allegiance
to the Republic of the Philippines; I will support its constitution and obey the
laws as well as the legal orders of the duly constituted authorities therein; I
will do no falsehood, nor consent to the doing of any in court; I will not will
ingly nor wittingly promote or sue any groundless, false or unlawful suit, or gi
ve aid nor consent to the same; I will delay no man for money or malice, and wil
l conduct myself as a lawyer according to the best of my knowledge and discretio
n, with all good fidelity as well to the court as to my clients; and I impose up
on myself this voluntary obligations without any mental reservation or purpose o
f evasion. So help me God. (Form 28, RRC)
Nature of Lawyer's Oath
* The lawyer's oath is not mere facile words, drift and hollow, but a sacred tru
st that must be upheld and kept inviolable. (Sebastian vs. Calis, 1999)
* It is NOT a mere ceremony or formality for practicing law. Every lawyer should
at all times weigh his actions according to the sworn promises he made when tak
ing the lawyer's oath. (In Re: Argosino, 1997, In Re: Arthur M. Cuevas, 1998).
JUDICIAL ETHICS
JUDICIAL ETHICS is the branch of moral science which treats of the right
and proper conduct to be observed by all judges in trying and deciding controve
rsies brought before them for adjudication which conduct must be demonstrative o
f impartiality, integrity, competence, independence and freedom from improprieti
es. This freedom from improprieties must be observed in both the public and pri
vate life of a judge being the visible representation of the law.
* Sources of Judicial Ethics:
1. Code of Judicial Conduct
2. Constitution (Art VIII, Art IX and Art III)
3. New Civil Code (Articles 9, 20, 27, 32, 35, 739, 1491, 2005, 2035, 2046)
4. Revised Rules of Court (Rules 71, 135, 137, 139B, 140)
5. Revised Penal Code (Articles 204, 205, 206, 207)
6. Anti-Graft and Corrupt Practices Act (RA 3019)
7. Canons of Judicial Ethics (Adm. Order No. 162)
8. Code of Professional Responsibility
9. Judiciary Act of 1948 (RA 296)
10. Judiciary Reorganization Act of 1930 (BP129)
11. Supreme Court Decisions
12. Foreign Decisions
13. Opinions of authorities
14. Other Statutes
15. SC Circulars
* Court a board or other tribunal which decides a litigation or contest (Hidalgo
vs. Manglapus, 64 O.G. 3189). A court may exist without a judge.
* Judge a public officer who, by virtue of his office, is clothed with judicial
authority. A public officer lawfully appointed to decide litigated questions in
accordance with law (People vs. Manantan, 5 SCRA 687). This refers to persons
only. There may be a judge without a court.
* De jure judge one who is exercising the office of judge as a matter of right,
an officer of a court who has been duly and legally elected or appointed and who
se term has not expired. An officer of the law fully vested with all of the powe
rs and functions conceded under the law to a judge, which relate to the administ
ration of justice within the jurisdiction over which he presides (Luna vs. Rodri
guez, 37 Phil. 191).
* De facto judge a judge who in good faith continues to act and is recognized by
common error after the abolition of his court by statute is deemed judge de fac
to of the new court which succeeds to the jurisdiction of that presided over by
him (U.S. vs. Abalos, 1 Phil 76). An officer who is not fully vested with all th
e powers and duties conceded to judges, but is exercising the office of a judge
under some color of right.
* Qualifications to be Supreme Court Members:
1. Natural born citizen of the Philippines
2. At least 40 years of age
3. Must have been at least for 15 years, a judge of a lower court or engaged in
the practice of law (Sec. 7(2), Art. VIII, 1987 Constitution)
* Qualifications to be judges:
1. Citizen of the Philippines
2. Member of the Bar (Sec. 7(2), Art. VIII, 1987 Constitution)
3. Must be a person of proven competence, integrity, probity and independence (S
ec. 7(3), Art. VIII, 1987 Constitution)
DATE OF EFFECTIVITY
This code, promulgated on 5 September 1989, shall take effect on 20 October 1989
.
* An administrative case against a judge is not necessarily dismissed by the wit
hdrawal by or desistance of the complainant.
* Retirement, resignation or promotion of a judge does not necessarily render mo
ot and academic all the cases against him.
Liabilities of Judges
Administrative Liabilities:
* Grounds for administrative sanctions against judges (Sec. 67 of the Judiciary
Act of 1948):
1. Serious misconduct implies malice or wrongful intent, not mere error of judgm
ent, judicial acts complained of must be corrupt or inspired by an intention to
violate the law, or were in persistent disregard for well-known legal rules
2. Inefficiency implies negligence, incompetence, ignorance, and carelessness, w
hen the judge fails to observe in the performance of his duties that diligence,
prudence and circumspection which the law requires in the rendition of any publi
c service
* Instances of serious misconduct:
1. Unjustifiable failure to decide cases within reglementary period
2. Failure to deposit funds with the municipal treasurer or to produce them desp
ite his promise to do so
3. Misappropriation of fiduciary funds
4. Extorting money from a party-litigant who has a case before his court
5. Solicitation of donation for office equipment
6. Unlawful solicitation in violation of R.A. No. 6713
7. Frequent unauthorized absences in office
8. Falsification of certificate of service to collect salary
9. Declaring Wednesdays as non-session days which the judge declared as his mid-w
eek pause
10. Indefinite postponement for several years of a criminal case pending in his
sala
11. Judges poking his gun to another in a restaurant while in a sate of intoxic
ation
12. Pistol-whipping the complainant on the latter s left face without any justifi
cation
13. Acting as counsel and/or attorney-in-fact for all the parties with opposing
interests on a parcel of land in pursuance of his personal self-interest
14. Using intemperate language unbecoming of a judge
15. Failure to reply to a show cause resolution of the Supreme Court
16. Loss of records
17. Inaction by judge which is the tantamount to partiality in favor of one par
ty
among others.
* Instances of gross inefficiency:
1. Delay in the disposition of cases
2. Unduly granting repeated motions for postponement of a case
3. Gross incompetence and ignorance of the law
4. Reducing to a ridiculous amount the bail bond of the accused in a murder case
5. Including execution in the judgment itself
6. Dismissing uncalendared criminal cases without verifying whether the other pa
rties had received the notices of court hearings
among others
* Procedure for filing an administrative complaint (Rule 140 of the Revised Rule
s of Court):
1. Complaint in writing, setting forth clearly the facts and circumstances relie
d upon and sworn to and supported by affidavits and documents
2. Service or dismissal which must followed by an answer within 10 days from dat
e of service
3. Answer and hearing
4. Report filed with the Supreme Court of findings accompanied by evidence and d
ocuments
Civil Liabilities:
* Civil Liabilities Re Official Functions:
a. Obstructs, defeats, violates or in any manner impedes or impairs the civil ri
ghts.
b. Willful or negligent rendition of a decision which causes damages to another
c. For damages: rendering/neglecting to decide a case causing loss to a party.
* Civil Code Disabilities:
Rule: Can t purchase properties subject of litigation is his court.
Exception: Does not apply where the subject property was not acquired from any o
f the parties to the case, nor will it apply when the litigation is already fini
shed.
But while in a technical sense, the judge may not have acquired the property in l
itigation in a case before him, nevertheless, it is improper for him to have don
e so under the canons of judicial ethics.
* Donations made to a judge by reason of his office are void.
* Taking advantage of his position to boost his candidacy amounts to gross misco
nduct.
* Cannot serve as officers or advisers of political groups.
Criminal Liabilities
* Malfeasance under the RPC:
a. Knowingly Rendering Unjust Judgment (Art. 204, RPC)
The elements are:
1. That the officer is a judge;
2. That he renders judgment in a case submitted to him for decision;
3. That the judgment is unjust;
4. The judge knows that his judgment is unjust.
b. Judgment Rendered Through Negligence (Art. 205, RPC)
The elements are:
1. That the offender is a judge;
2. That he renders judgment in a case submitted to him for decision
3. That the judgment is manifestly unjust;
4. That it is due to his inexcusable negligence or ignorance.
Notaries Public
I. Qualifications (Sec 232 and 234, Revised Administrative Code (RAC))
A. Filipino citizen
B. Over 21 years of age
C. Should not have been convicted of any crime involving moral turpitude
D. Training
1. Those admitted to the practice of law
2. Those who have passed the studies of law in a reputable university
3. A clerk or deputy clerk of court or one who has at some time held the positio
n of clerk or deputy clerk of court for a period of not less than two (2) years
4. Those qualified for the office of Notary Public de officio under Spanish sove
reignty
5. Municipal judges as notaries public de officio in municipalities or municipal
districts
i. where there are no persons with the necessary qualifications
ii. where there are qualified persons but they refuse appointment
* non-lawyers as notaries:
General Rule: SC Circular No. 16 of 1985 directed appointing judges to refrain a
nd desist from appointing and/or renewing the appointment of non-lawyers as nota
ries public because of the unethical practices of notaries public who are non-la
wyers;
Exception: In places where there are no lawyers, or there are not enough lawyers
, the appointment of non-lawyers as notaries public may be allowed, but a non-la
wyer who wishes to be commissioned as a notary public must apply directly with t
he Supreme Court, and such petitions will be decided on a case to case basis.
* municipal judges as notaries: among members of the bench, only municipal judge
s may act as notaries. There are 2 reasons to not limit the authority of the mun
icipal judge as an ex officio notary public to the notarization of documents in
connection with the performance of his official functions:
1) A municipal judge has miscellaneous powers, such as the power to solemnize ma
rriages, administer oaths, take depositions, the exercise of which could be faci
litated by allowing the judge to act as a notary EVEN if the documents are not c
onnected with the performance of his ordinary official duties. (Opus v. Barnia,
114 SCRA 552 (1982))
2) Includes any act performed by a regular notary public: The demands of public
service also justify that the authority of the municipal judge as notary public
ex officio should not be limited to notarizing documents connected only with the
exercise of their official duties. They should be allowed to act and perform an
y service within the competency of a notary public. In our rural areas and commu
nities, there are few regular notaries, and they do not keep regular office hour
s. It would be more convenient and less expensive for the public, especially the
common people to have ready access to the municipal judge at his official stati
on instead of traveling to the provincial capital or to the big towns where most
lawyers practice as regular notaries. (Lapena v. Marcos, 114 SCRA 572 (1982)).
* A municipal judge may not collect the notarial fees for himself because the la
w provides that officers acting as notaries public ex officio shall charge for t
heir services the fees prescribed by law and account therefor as government fund
s. (supra Lapena citing RAC Sec 231-252, and Rule 141, Sec. 6(h) and 9 of the R
evised Rules of Court.) Municipal judges, however, were not allowed to collect a
ny notarial fees at all, even in behalf of the municipality, when the Department
of Local Government organized barrio associations and barrio cooperatives in 19
73. (SC Circular No. 2, may 24, 1973)
E. Fees and dues
1. Must show proof of payment of their privilege tax as well as their dues as me
mbers of the IBP.
2. Must state the IBP Chapter to which he belongs, the number of the correspondi
ng IBP receipt of up-to-date payments of dues, and his respective License Number
s.
*These are prerequisites to the judge acting on the application (Memorandum Circ
ular No. 3, Feb. 17, 1976)
II. Appointment and Term
A. Appointed by the Executive Judges in multi-sala RTCs in provinces and cities
(Sec. 232, RAC)
B. Shall end at the expiration of the two (2) year period beginning on the first
(1st) day of January of the year in which the appointment was made (Sec. 239, R
AC)
III. Jurisdiction
A. Under the Notarial Law, the jurisdiction of a notary public in general, used
to be CO-EXTENSIVE with the province for which he was commissioned; and for the
notary public in the City of Manila, the jurisdiction is CO-EXTENSIVE with said
city.
B. Circular 8 of 1985 however, clarified further that the notary public may be c
ommissioned for the same term only by one court within the Metro Manila region.
C. Hence, the notary s jurisdiction is now co-extensive, not with the jurisdiction
of the entire judicial district, but with the jurisdiction of the appointing co
urt. Notarial acts performed beyond jurisdictional limits have no effect. In Tec
son v. Tecson (61 Phil 781 (1935)), the SC ruled that acknowledgements made with
out jurisdiction are void and the document remains private.
IV. Powers
Section 241 of the Revised Administrative Act enumerates the General Powers of a
Notary Public:
1. To administer all oaths and affirmations provided for by law:
a. in all matters incident to his notarial office;
b. in the execution of:
1. Affidavits
2. Depositions
3. Other documents requiring an oath
2. To receive proof or acknowledgment of all writings relating to commerce, such
as
a. Ships, vessels or boats:
1. Bills of Exchange
2. Bottomries
3. Mortgages
4. Hypothecations
b. Charter parties or affreightments
c. Letters of attorney
d. Land/buildings or interest therein:
1. Deeds
2. Mortgages
3. Transfers and assignments
e. Other writings as are commonly provided or acknowledged before notaries.
3. To act as magistrate in the writing of affidavits or depositions
4. To make declarations and certify the truth thereof under his seal of office,
concerning all matters done by him in virtue of his office.
* Sec. 241 is broad enough to cover more familiar acts requiring notarization un
der different and more specific provisions of law, such as the acknowledgement o
f wills under Article 806.
* A function not mentioned in Sec. 241 but mentioned in Sec. 246 is the making o
f protests, which is required in instances such as those provided under the Nego
tiable Instruments Law and the Code of Commerce.
Five Functions:
1. Attests: he witnesses, or sees, as an officer, that a person named in the doc
ument swears before God or affirms that certain facts set forth in the document
are true.
2. Certifies: he writes on the same instrument that the person named therein did
appear before him on a certain day and at a certain place and did there swear b
efore God or affirm that the facts stated therein are true.
3. Takes an Acknowledgement: the man named in a deed or other conveyance comes t
o him with the deed and tells him that he is the man named as grantor in the dee
d, and that he signed the deed and means to convey the property to the person na
med therein.
4. Certifies the same: he writes on the deed theses facts, that he knows the man
named in the deed and that the said man did sign it and means to convey it.
5. Protest: he writes down how and when he performed certain acts which he is ca
lled upon to perform as a public official.
* In a nutshell, attestation and certification pertain to statements made or fac
ts related by parties. The act of taking acknowledgement and certifying the same
pertain to conveyances made by parties. Making protests pertain to the performa
nce of certain acts by notaries themselves which they are called upon to do unde
r law.
V. Duties
The law imposes on the notary public two kinds of duties:
A. Formal: execution of formalities required by law
* Rational: Since the notarial document is entitled to full faith and credit upo
n its face, notaries public must observe the utmost care to comply with the elem
entary formalities in the performance of their duties so that the confidence of
the public in the integrity of this form of conveyancing will not be undermined.
1. Notarial Seal (Sec. 244 RAC)
i. Must have a seal of office, an impression of which appearing
directly on the paper or parchment on which the writhing is printed shall be
as valid as if made on wax or wafer,
ii. Features:
a. must be made of metal
b. there must be engraved on it the name of the province followed by the word Phi
lippines, the name of the notary public, and the words notary public across the cen
ter.
iii. It must be procured at the notary s expense and must be
affixed to papers officially signed by the notary.
2. Notarial Register (Sec. 245 RAC)
* It is a record of his official acts as a notary and a certified copy of such r
ecord or any part thereof shall be supplied to any person applying and paying th
e legal fees for it.
i. Entries (Sec. 246 RAC)
- Recorded in chronological order:
* The person(s) executing/swearing
* The witnesses
* The notarial fees collected
* A correct copy of the instrument
* A description of the substance
* No blank lines between entries, must be numbered consecutively, beginning with
the number one in each calendar year. The number of the document and the correspo
nding pages of the register in which the document is entered must be stated in t
he documents notarized.
* Additional Requirements for Protest:
Notary must indicate in the register a full and true record of all the proceedin
gs and a note as to the following:
* Whether demand was made, to whom, when, and where it was made
* Whether the protestor presented the document
* Whether notices were given and to whom, when, and in what manner, or whether t
hey were made, and to whom, when, and where directed.
ii. Weekly Certification (Sec. 246 RAC)
* At the end of each week, the notary shall certify in his register the number o
f the instruments executed, sworn to, acknowledged, or protested before him; or
if none, he shall make a certificate showing this fact.
iii. Forwarding of Entries to the Clerk of Court
* Within the first ten (10) days of the month next following, the notary public
shall forward to and file with the clerk of the RTC of the area over which he ex
ercised jurisdiction (1) certified copies of each month s entries and any instrume
nt acknowledged before him; or if no entry was made, a statement to that effect.
iv. Forwarding the Notarial Register (Sec 247 RAC)
* The register is forwarded in 2 instances: when the register is filled or withi
n fifteen days after the expiration of the commission; unless the notary is reap
pointed.
* The register is addressed to the clerk of court, and the clerk of court forwar
ds the register to the appointing judge who will then investigate any irregulari
ties.
* If irregularities exist, the judge will recommend the case to a fiscal and def
er forwarding the register to the National Library until termination of the case
against the notary public.
3. Taxes
i. Residence Certificate (now Community Tax Certificate)
(Sec. 251 RAC)
* The notary must certify that parties to the notarized document either presente
d their proper residence certificates or are exempt from presenting such certifi
cates.
* He must enter, as part of the certification, the number, place of issue, and d
ate of the residence certificate.
ii. Documentary Stamp Taxes
SEC 201 of the NIRC: no notary public or other officer authorized to administer
oaths shall add his jurat or acknowledgement to any document subject to document
ary stamp tax unless the proper documentary stamps are affixed thereto and cance
lled.
4. Date of Commission s Expiry (Sec. 250, RAC)
* A notary must affix to all acknowledgements taken and certified by him accordi
ng to law, a statement of the date on which his commission will expire.
5. Notarial Fees (Sec. 252, RAC)
* No fees, except as such as is expressly prescribed and allowed by law, shall b
e collected or received for any service rendered by a notary public.
* Rule 141, Section 9 of the Revised Rules of Court provides a schedule of fees.
SC Circular No. 10, May 18, 1988, increased the amount of notarial fees, and IB
P Memorandum Circular No. 001-87, September 2, 1987 published a table of fees th
at may be charged by notaries public.
B. Substantial: verification of the capacity and identity of the parties as well
as the legality of the act executed.
* Soto v. Lacre, 77 SCRA 453 (1977), gave 3 duties:
1. He must ascertain the identity of the party signing
2. He must ensure that the act is voluntary
3. He must verify the capacity of the parties
* SC seems to also require that notaries, as lawyers, look into the validity of
the acts or statements which they will verify: it is for the notary to inform hi
mself of the facts to which he intends to certify and to take part in no illegal
enterprise. Asuncion v. CA, 150 SCRA 353 (1987)
* Rational: there is no question that the role of the notary is, among others, t
o guard against any illegal or immoral arrangements. (Cabrillas, The Notarial Ac
t, 87 SCRA 3234 (1933).
VI. Effects of Notarization
A. Local
Effects of NOTARIZATION
1. The notary, in effect, proclaims to the world:
a. That all the parties therein personally appeared before him
b. That they are personally known to him
c. That they are the same persons who executed the instrument
d. That he inquired into the voluntariness of the execution of the instrument; a
nd
e. That they acknowledged personally before him that they voluntarily and freely
executed the same
2. Converts a private document into a public one and renders it admissible in co
urt without further proof of its authenticity. (Joson vs. Baltazar) Documents en
joy a presumption of regularity. It constitutes prima facie evidence of the fact
s which give rise to their execution and of the date of said execution, but not
of the truthfulness of the statements. The reason for the former presumption is
that the law assumes that the act which the officer witnesses and certified to o
r the date written by him are not shown to be false since notaries are public of
ficers.
B. Foreign
1. Acts performed by notaries public are respected not only within their particu
lar jurisdictions but also in other countries, because their office exists and i
s recognized throughout the commercial world and has been said to be known to th
e law of nations.
2. The practice of courts of taking judicial notice of the seals of notaries pub
lic seems to exist as a matter of comity among nations, in the absence of a trea
ty.
VII. Liabilities
A. Criminal
1. Liable for violation of Art, 171 of RPC on falsification who, by taking advan
tage of his official position, commits the following:
i. Counterfeiting or imitating any handwriting, signature, or rubric
ii. Causing it to appear that persons have participated in any act or procee
ding when they did not in fact so participate
iii. Attributing to persons who have participated in an act or proceedings sta
tements other than those in fact made by them
iv. Making untruthful statements
v. Altering true dates
vi. Making any alteration or intercalation in a genuine document which changes i
ts meaning
vii. Issuing in an authenticated form a document purporting to be a copy of a
n original document when no such original exists, or including in such copy a st
atement contrary to, or different from, that of the genuine original
viii. Intercalating any instrument or note relative to the issuance thereof in
a protocol, registry, or official book.
2. Subject to laws governing actuations of public officers
B. Civil
* There is no doctrine, decision or law imposing direct civil liability upon a n
otary public, whether on tort or on contract, for damages caused to people as a
result of his default in the performance of his notarial duties.
* No decision by the SC has made the general principles of tort or contract appl
icable to notaries, although the SC in Soto v. Lucre (supra) held that it is nec
essary to adduce and to prove negligence, malice, or corruption on the part of t
he notary to hold him liable.
* However, what the SC has done in cases where it discovered that the misconduct
of the notary public was due to negligence, malice, or corruption and directly
resulted in fraud or damage was NOT to order him to pay damages but to disciplin
e him administratively instead. (see In re: Rusiana, 105 Phil 1328 (1959), Sabay
le v. Tandayag, 158 SCRA 497 (1988), and Ramirez v. Ner, 21 SCRA 207 (1967).
C. Administrative
1. Under the RAC
* Failure to comply with the duties under the notarial register (Sec. 249 (a, b,
c, e)) RAC); may be subject to dismissal or fine under Sec 2633 of RAC.
* Failure to affix date of expiration: risks having his commission revoked. (Sec
. 249 (d) RAC) Certification after expiration: subject to fine (Sec. 2632)
* Failure to note CTC: ground for revocation and fine. (Sec. 249 (g) and 2633 RA
C)
* Failure to affix/cancel doc stamps: fine (Sec. 201 NIRC)
* Failure to make a report to the RTC judge concerning his duties when required
by such judge (Sec. 249 (f) RAC)
* Any other dereliction or act which shall appear to the judge to constitute goo
d cause for removal (Sec. 249 (h) RAC)
* Overcharging fees: fine (Ibabao v. Villa, 104 SCRA 325 (1981))
2. As a Member of the Bar
* SC resorts to its powers of supervision over notaries as lawyers
* As administrative proceedings, cases for disbarment or malpractice are easier
to establish and more quickly decided than a criminal case.
* Even if a criminal case against a notary for the same acts has not been filed
or decided, the SC may punish the lawyer-notary administratively.
* Criminal conviction is not a prerequisite to disbarment proceedings. Prima Fac
ie violations are sufficient.
VIII. Defenses
A. Criminal cases
* Avail of the usual defenses in criminal cases
B. Administrative Cases
Lawyer-notary has two lines of defense:
1. The presumption of regularity in the performance of his duties
* If the presumption is overturned, the notary may still prove good faith and di
ligence.
2. Good faith and diligence
* Good faith may be exempting or mitigating.
Examples:
* The notary readily admitted his fault or was candid with the Court
* He did the acts because he was prevailed upon by the parties
* He committed a wrong doing out of generosity or sincere desire to help
* He did not fully realize the implications of the agreement
* He relied on the assurances of a party or a fellow lawyer
* The injured party filed the case merely to harass the notary
* The notary was merely caught in the cross-fire of a fight between the parties
* Bad faith is always aggravating and has consistently resulted in disbarment.
Examples:
* Lied to the court
* Presented false evidence in his defense
* Took advantage of his position to defraud a party
* Diligence has been mitigating, but negligence is never exempting. However, neg
ligence is a lesser evil compared to bad faith. Negligence has been punished by
penalties ranging from admonition at best to 6 months suspension at worst.
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