Elizabeth Recio, the bonds manager of Oriental Assurance Corporation (ORASCO), filed an administrative complaint against Atty. Joselito Fandino, alleging that they received several order from Courts stating that bail bonds were issued by ORASCO and in fact confiscated by various branches of the courts in Naga, Legazpi. When they sought copies of the bail binds, they noticed that the signatures in the same were forgeries, being very different from the signature of the authorised signing officer, Conrado Sicat; the spurious bail bonds stated that all notices should be sent to RM 303 PNB BLDG. NAGA CITY, despite the fact that ORASCO has no extension office in Naga City; and Atty. Fandino was the notary public of the spurious bonds, while the address stated therein was also the law office of the lawyer. Atty. Fandino also appeared in various motions and signed and misrepresented himself as counsel of ORASCO in several pleadings when in fact he was not authorised as counsel for ORASCO. Sheriff Rolando Borja of Naga City also prepared an affidavit where Atty. Fandino represented himself as manager of ORASCO and will just settle the amount stated in a writ of execution.
Atty. Fandino in his defense admitted that indeed, the address indicated in the bonds is his law office address, which he shares with one Jeannete Cruz; that he in fact also maintains an insurance business at the said address; that in one occasion, he was asked by one Willy Vargas, who previously referred clients to him on his insurance business, to refer clients to him in Naga City; that he introduced Vargas to Cruz; he was not the one who notarised the bonds, and surmised that It must have been Cruz who had access to his notarial paraphernalia; that it was CRUZ and VARGAS who dealt in ORASCO bonds, and the use of his address in the bonds was merely for convenience. Atty. Fandino admitted appearing as counsel in several of the bonds because Vargas solicited his services; the pleadings were prepared by Cruz; that the pleadings he previously prepared were used as patters, and he signed them when prepared by Cruz and argued what was stated in the complaint.
The Investigating Prosecutor blamed Atty. Fandino for giving free access to Cruz to his notarial records, which the latter used in the commission of forgery, along with Vargas. He also admitted appearing in courts without authority from ORASCO. Thus, the Commissioner recommended that respondent be suspended from the practice of law for a period of six (6) months for negligence for not securing his notarial paraphernalia and for appearing in court without being actually authorized by ORASCO.
The IBP Board affirmed the recommendation.
Whether or not the respondent should be held administratively liable.
We affirm the findings of the IBP with modification on the imposed penalty.
Section 27 of Rule 138 of the Rules of Court provides the grounds for discipline, to wit:
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 the 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 so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.
In Santuyo v. Hidalgo1, Spouses Santuyo accused Atty. Hidalgo of serious misconduct and dishonesty for breach of his lawyer’s oath and the notarial law. Denying the authenticity of his signature in a deed of sale, Atty. Hidalgo claimed that at the time the deed of sale was supposedly notarized, he was on vacation. He surmised that complainants must have gone to the law office and enticed one of the secretaries, with the concurrence of the senior lawyers, to notarize the document. He claimed that he was a victim of a criminal scheme motivated by greed.
We found Atty. Hidalgo guilty of negligence in the performance of his duties as notary public and suspended him from his commission as a notary public for a period of two (2) years. We cited the report of the IBP as basis for a finding of negligence, to wit:
Considering that the responsibility attached to a notary public is sensitive respondent should have been more discreet and cautious in the execution of his duties as such and should not have wholly entrusted everything to the secretaries; otherwise he should not have been commissioned as notary public.
For having wholly entrusted the preparation and other mechanics of the document for notarization to the secretary there can be a possibility that even the respondent’s signature which is the only one left for him to do can be done by the secretary or anybody for that matter as had been the case herein.
As it is respondent had been negligent not only in the supposed notarization but foremost in having allowed the office secretaries to make the necessary entries in his notarial registry which was supposed to be done and kept by him alone; and should not have relied on somebody else.2 (Emphasis supplied.)
Here, respondent violated the 2004 Rules on Notarial Practice3 particularly Section 2(a) and (c), Rule VII, to wit:
Sec. 2. Official Seal.-
(a) Every person commissioned as notary public shall have a seal of office, to be procured at his own expense, which shall not be possessed or owned by any other person. x x x
x x x
(c) When not in use, the official seal shall be kept safe and secure and shall be accessible only to the notary public or the person duly authorized by him.
Complainant successfully showed in her Position Paper4 that Cruz is the secretary of respondent. This was evidenced by the Affidavit of Service5 signed by Cruz of a Motion to Withdraw as Bondsman6 dated June 23, 1999 filed before RTC Branch 22 Naga City. Even so, respondent should not have entrusted everything to his secretary and allowed the latter to have full access to his notarial paraphernalia considering the sensitivity of his responsibility as a notary public. His negligence in giving Cruz absolute freedom and access to his office paved the way for Vargas and Cruz to secure the notarization of the spurious ORASCO bonds. Such act of respondent also constitutes malpractice of law which is a ground for suspension or disbannent under Section 27, Rule 138 of the Rules of Court.
Respondent again manifested his negligence when he purported to represent ORASCO, by signing the pleadings and appearing in court on its behalf, without verifying the authority of Vargas to ask him to act on behalf of ORASCO. As a lawyer, respondent is expected to have exercised due diligence in ensuring that ORASCO indeed sought his representation. In Manila Memorial Park Cemetery, Inc. v. Linsangan,7 we held:
It is a settled rule that persons dealing with an agent are bound at their peril, if they would hold the principal liable, to ascertain not only the fact of agency but also the nature and extent of authority, and in case either,is controverted, the burden of proof is upon them to establish it. The basis for agency is representation and a person dealing with an agent is put upon inquiry and must discover upon his peril the authority of the agent. If he does not make such an inquiry, he is chargeable with knowledge of the agent’s authority and his ignorance of ‘that authority will not be any excuse.
As noted by one author, the ignorance of a person dealing with an agent as to the scope’ of the latter’s authority is no excuse to such person and the fault cannot be thrown upon the principal. A person dealing with an agent assumes the risk of lack of authority in the agent. He cannot charge the principal by relying, upon the agent’s assumption of authority that proves to be unfounded. The principal, on the other hand, may act on the presumption that third persons dealing with his agent will not be negligent in failing to ascertain the extent of his authority as well as the existence of his agency.8 (Citations omitted; emphasis supplied.)
In the Urgent Motion for Extension of Time9 filed by respondent before RTC Branch 22 Naga City to file his comment or opposition to ORASCO’s motion to declare the bond null and void, respondent merely explained that his appearance in the case was only due to the request of Vargas who represented himself as an agent of the bondsman. As alleged by complainant in her Position Paper, he was not appointed as counsel of ORASCO and none of ORASCO’s officers and employees knew him.10
Respondent’s negligence in not securing his notarial paraphernalia and in appearing for parties or insurance companies who did not seek representation caused prejudice not only to ORASCO but to the several accused whose bail bonds were confiscated due to the spurious character of the documents.
We, however, modify the IBP recommended penalty on respondent, of suspension from the practice of law for six months. This is the penalty for respondent not securing his notarial paraphernalia:and for appearing in court without authority by ORASCO.
Under existing jurisprudence, gross misconduct for violation of the 2004 Rules on Notarial Practice is also meted the penalty of disqualification, revocation of notarial commission and disqualification from appointment as notary public. In Gonzales v. Ramos,11 Atty. Ramos violated the Code of Professional Responsibility and the 2004 Rule on Notarial Practice by notarizing a Deed of Absolute Sale despite the non-appearance of one of the signatories. Thus, aside from his suspension from the practice of law tor one (1) year and revocation of his notarial commission, Atty. Ramos was disqualified from reappointment as notary public for two (2) years.12 Here, considering that respondent also violated the 2004 Rules on Notarial Practice, the penalty to be imposed on him should include not only his suspension from the practice of law for six months, but also the revocation of his commission and disqualification from appointment as notary public.
WHEREEORE, the recommendation of the Integrated Bar of the Philippines is ADOPTED with MODIFICATION. Respondent Atty. Joselito I. Fandiño is GUILTY of negligence in performing his duties as a notary public and of breach of the 2004 Rules on Notarial Practice. Accordingly, he is SUSPENDED from the practice of law for six (6) months; his incumbent commission if any is REVOKED; and he is PROHIBITED from being commissioned as a notary public for two (2) years, effective immediately. He is WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely.
Let all the courts, through the Office of the Court Administrator, as well as the IBP and the Office of the Bar Confidant, be notified of this Decision and be it entered into respondent’s personal record.
The respondent is DIRECTED to report the date of his receipt of this Decision to enable us to determine when his suspension shall take effect.
Velasco, Jr., (Chairperson), Peralta, Perez, and Reyes, JJ., concur.
THIRD DIVISION, A.C. No. 6767, October 05, 2016, ELIZABETH RECIO, COMPLAINANT, VS. ATTY. JOSELITO I. FANDIÑO, RESPONDENT.
1 A.C. No. 5838, January 17, 2005, 448 SCRA 282
2 Id. at 286-287.
3 A.M. No. 02-8-13-SC.
4 Rollo, pp. 115-126.
5 Id. at 151.
6 Id. at 150-151.
7 G.R. No. 151319, November 2004, 443 SCRA 377.
8 Id. at 391-392.
9 Rollo, pp. 13-15.
10 Id. at 116.
11 Gonzales v. Ramos, A.C. No. 6649, June 21, 2005, 460 SCRA 352.
12 See also Nevada v. Casuga, A.C. No. 7591, March 20, 2012, 668 SCRA 441, where we found Atty. Casuga guilty of gross misconduct for violation of the 2004 Rules on Notarial Practice and of Canon 16 of the Code of Professional Responsibility by misappropriating his clients’ funds and jewelries. In that case, we revoked the notarial commission of Atty. Casuga and disqualified him from being a Notary Public for four (4) years on top of his suspension from the practice of law tor four (4) years.