THIRD DIVISION

[A.C. No. 6252. October 5, 2004.]

JONAR SANTIAGO , complainant, vs . Atty. EDISON V. RAFANAN ,

respondent.

DECISION

PANGANIBAN , J : p

Notaries 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.
The Case and the Facts
Before us is a veri ed Complaint 1 led 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 led 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 o ce 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:
". . . 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
certi cate of the a ants; b) enter the details of the notarized documents in the
notarial register; and c) make and execute the certi cation 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. IaHSCc

"Complainant likewise alleged that Respondent executed an A davit 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 led his veri ed Answer. 8 He admitted having administered the oath to the
a ants whose A davits were attached to the veri ed Complaint. He believed, however,
that the non-notation of their Residence Certi cates in the A davits and the Counter-
affidavits was allowed.
He opined that the notation of residence certi cates applied only to documents
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 acknowledged by a notary public and was not mandatory for a davits related to cases
pending before courts and other government o ces. He pointed out that in the latter, the
a davits, which were sworn to before government prosecutors, did not have to indicate
the residence certi cates of the a ants. Neither did other notaries public in Nueva Ecija —
some of whom were older practitioners — indicate the a ants' residence certi cates on
the documents they notarized, or have entries in their notarial register for these
documents.
As to his alleged failure to comply with the certi cation required by Section 3 of Rule
1 1 2 of the Rules of Criminal Procedure, respondent explained that as counsel of the
9
a ants, he had the option to comply or not with the certi cation. To nullify the A davits, 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 respondent's 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
Certi cations 1 0 from the Cabanatuan City Police and the Joint A davit 1 1 of the two
police officers who had assisted them. DaEATc

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 respondent's Answer, the CBD, through Commissioner Tyrone R.
Cimafranca, set the case for hearing on June 5, 2001, at two o'clock in the afternoon.
Notices 1 2 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. 1 3 The hearing was
reset to July 3, 2001 at two o'clock in the afternoon.
On the same day, June 5, 2001, complainant led his Reply 1 4 to the veri ed Answer
of respondent. The latter's Rejoinder was received by the CBD on July 13, 2001. 1 5 It also
received complainant's Letter-Request 1 6 to dispense with the hearings. Accordingly, it
granted that request in its Order 1 7 dated July 24, 2001, issued through Commissioner
Cimafranca. It thereby directed the parties to submit their respective memoranda within
fteen days from receipt of the Order, after which the case was to be deemed submitted
for resolution.
The CBD received complainant's Memorandum 18 on September 26, 2001.
Respondent did not file any.
The IBP's Recommendation
On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-
2003-172 1 9 approving and adopting the Investigating Commissioner's Report that
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 respondent had violated speci c requirements of the Notarial Law on the execution of a
certi cation, the entry of such certi cation in the notarial register, and the indication of the
a ant's residence certi cate. The IBP Board of Governors found his excuse for the
violations unacceptable. It modi ed, however, the recommendation 2 0 of the investigating
commissioner by increasing the ne 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 insu ciency of
evidence.
The Court's Ruling
We agree with the Resolution of the IBP Board of Governors.
Respondent's 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 certi cate (or exemption from the residence tax); and to
enter its number, place of issue and date as part of such certi cation. 2 1 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." 2 2 Failure to perform these
duties would result in the revocation of their commission as notaries public. 2 3
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. SEIcAD

I n 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 o ce. 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, 2 5 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.
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 Respondent believes, however, that noncompliance with those requirements is not
mandatory for a davits 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 a davits is patently irrelevant. No law dispenses with these
formalities. Au contraire, the Notarial Law makes no quali cation 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 veri ed Complaint are the Joint
Counter-A davit of respondent's clients Ernesto Ramos and Rey Geronimo, as well as
their witnesses' A davits relative to Criminal Case No. 69-2000 for attempted murder,
led by complainant's 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 scal, state prosecutor or government o cial authorized to administer the oath —
to "certify that he has personally examined the a ants and that he is satis ed that they
voluntarily executed and understood their a davits." Respondent failed to do so with
respect to the subject A davits and Counter-A davits in the belief that — as counsel for
the affiants — he was not required to comply with the certification requirement. CaAcSE

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. 2 6 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. 2 7 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. 2 8 No custom or age-old practice provides
su cient excuse or justi cation 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 complainant's plea to disbar respondent from
the practice of law. The power to disbar must be exercised with great caution. 2 9
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 o cer of the court and a
member of the bar. Where any lesser penalty can accomplish the end desired, disbarment
should not be decreed. 3 0 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 a davit corroborating the defense of alibi proffered by respondent's clients,
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 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 disquali ed from being a witness, 3 1
except only in certain cases pertaining to privileged communication arising from an
attorney-client relationship. 3 2
The reason behind such rule is the di culty 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 di cult 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. TIcAaH

"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 lawyer's client, they will have an opportunity, not likely
to be neglected, for charging, that as a witness he forti ed it with his own
testimony. The testimony of the lawyer becomes doubted and is looked upon as
partial and untruthful." 3 3

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. 3 4
Notwithstanding this guideline and the existence of the A davit 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 bene t of the client, especially in a criminal action in which the
latter's life and liberty are at stake. 3 5 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
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 life, liberty or property, except by due process of law. 3 6
The A davit 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 A davit, 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 A davit was submitted during the
preliminary investigation which, as such, was merely inquisitorial. 3 7 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.
3 8 The investigation is advisedly called preliminary, as it is yet to be followed by the trial
proper. aDATHC

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. 3 9 It is not the self-serving claim of
complainant but the version of respondent that is more credible, considering that the
latter's allegations are corroborated by the A davits of the police o cers 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.
Sandoval-Gutierrez and Corona, JJ ., concur.
Carpio Morales, J ., is on leave.

Footnotes
1. Records, pp. 1–4.
2. "Sec. 27. Attorney 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
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 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 — . . .

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 man's 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 — . . .
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. — . . .
"(a) . . . 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.
xxx xxx xxx
"(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 . . . ."
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.
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 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. Section 251 of the Revised Administrative Code.

22. Section 246 of the Revised Administrative Code.
23. Section 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 Section 20 of the Rules of Court.
32. Per Section 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; Section 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.

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