Notarizing Without the Affiant: When a Lawyer’s Negligence Becomes Misconduct

The Supreme Court has repeatedly stressed that notarization is not a mere ministerial act—it is a public function that demands accuracy and fidelity. In Bernaldez v. Atty. Anquilo-Garcia (A.C. No. 8698, August 31, 2016), the Court reminded all lawyers commissioned as notaries public that failing to require the personal appearance of affiants is a serious breach that carries administrative penalties, even when the underlying accusations of coercion are not proven.

The Case: Election-Day Affidavits in Question

During the 2010 National and Local Elections, complainant Manuel Bernaldez filed a disbarment complaint against Atty. Wilma Donna C. Anquilo-Garcia. He alleged that the lawyer coerced registered voters in Biri, Northern Samar to sign blank and ready-made affidavits stating they were illiterate or disabled voters needing assistors—when in fact they were not. The complainant claimed the scheme was meant to help the lawyer’s husband, then a mayoral candidate.

Atty. Anquilo-Garcia denied the allegations. She insisted that the affiants personally appeared before her on election day and voluntarily executed the affidavits. She also argued that the affidavits attached to the complaint were manufactured to support the complainant’s election protest against her husband.

The Issue: Premature Proceedings and the Effect of Desistance

The Integrated Bar of the Philippines (IBP) recommended dismissal of the case without prejudice, reasoning that the alleged irregularities were still pending before the trial court in an election protest. The IBP also noted that the complainant had filed an Affidavit of Withdrawal, desisting from the case.

The Supreme Court rejected both grounds. It explained that administrative proceedings against lawyers are sui generis—neither civil nor criminal, but investigations by the Court into the conduct of its officers. Such proceedings are distinct from and may proceed independently of the election case. The Court also cited Ventura v. Atty. Samson (699 Phil. 404 [2012]), holding that a complainant’s desistance cannot abate administrative proceedings because the practice of law is a public interest concern.

The Ruling: No Coercion, But Clear Notarial Violation

On the charge of coercion, the Court found that the complainant failed to present clear preponderant evidence. The affidavits actually pointed to other persons responsible for any force, intimidation, or threats upon the voters.

However, the Court found a separate and clear violation: Atty. Anquilo-Garcia notarized the affidavits without the affiants’ personal appearance. The Court rejected her defense that the differing place-of-execution headings were mere clerical errors. A review of the affidavits showed they were handed to voters at polling precincts on election day, already bearing the lawyer’s signature and notarial seal.

The Court cited Rule IV, Section 2(b) of the 2004 Rules on Notarial Practice, which prohibits a notary from performing a notarial act if the signatory is not in the notary’s presence at the time of notarization and is not personally known or properly identified.

The Penalty: Suspension and Disqualification

The Court noted that in Gonzales v. Atty. Ramos (499 Phil. 345 [2005]) and Agbulos v. Atty. Viray (704 Phil. 1 [2013]), lawyers were suspended for one year and disqualified from notarial appointment for two years for similar violations.

In this case, however, the Court considered the absence of bad faith and the fact that it was the lawyer’s first infraction after long years at the Bar. The Court imposed the following penalties:

• Suspension from the practice of law for six (6) months for violation of the Code of Professional Responsibility;
• Revocation of the notarial commission and disqualification from reappointment as notary public for one (1) year.

Practical Takeaways

• Personal appearance is non-negotiable. A notary public must require the affiant to be physically present before any notarization. This rule protects the integrity of documents and the public’s trust in the notarial function.
• Desistance does not end disciplinary cases. Once a complaint against a lawyer is filed, the complainant’s withdrawal does not automatically dismiss the case. The Court investigates for the public interest, not just for the private complainant.
• Administrative cases proceed independently. A lawyer may face disciplinary action even while related civil or criminal cases are pending. There is no need to wait for the outcome of other proceedings.
• Notarial errors are not mere clerical mistakes. Careless notarization—even without bad faith—can result in suspension from the practice of law and loss of notarial commission.
• First offenses may merit lighter penalties. While the Court is strict, it may impose a more lenient sanction when the lawyer acted without bad faith and has a clean record.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.