Limits on Notarial Powers: Balancing Public Service and Official Duty

Clerks of court wear many hats, including that of an ex officio notary public. But this power has clear limits: it exists to serve the public, not to accommodate personal or family matters. In Nate v. Contreras (A.M. No. RTJ-15-2406, February 18, 2015), the Supreme Court reminded court personnel that notarial acts must be connected to their official functions and duties.

The case involved a clerk of court who notarized her father's administrative complaint, certified a copy of her sister-in-law's labor complaint, and appeared as counsel for her father before the Integrated Bar of the Philippines (IBP). The Court found her liable for the first two acts but cleared her of the third.

The Facts

While serving as Clerk of Court VI of the Regional Trial Court in Iriga City, respondent Judge Lelu P. Contreras (then a clerk of court) performed three acts that a complainant alleged constituted grave misconduct:

1. Notarizing a family document. She affixed her signature to the jurat portion of an administrative complaint prepared by her father against a lawyer. The complaint was eventually filed with the Supreme Court.

2. Certifying a copy. She certified as a true copy of the original an amended labor complaint that belonged to her sister-in-law. The document was later used in a case before the National Labor Relations Commission in Naga City.

3. Appearing as counsel. She appeared as her father's counsel before the IBP Commission on Bar Discipline, allegedly without prior written authority from the Court.

Respondent admitted all three acts but argued that her authority as an ex officio notary public covered them.

The Legal Framework

Clerks of court are authorized to act as ex officio notaries public under Sections 41 and 42 of the Administrative Code of 1987, in relation to the 2002 Revised Manual for Clerks of Court.

Historically, this authority was broad. When rural areas lacked regular notaries, public officers like clerks of court were allowed to perform any act within the competency of a regular notary public. Their services and fees were for the account of the government.

That changed in 1980 with the case Borre v. Moya. Since then, the power of ex officio notaries public has been limited to notarial acts connected to the exercise of their official functions and duties. Notarizing documents unrelated to their office—such as contracts, affidavits, certificates of candidacy, special powers of attorney, and pleadings—is now considered beyond their authority and amounts to the unauthorized practice of law.

The Ruling

The Court found respondent liable for unauthorized notarization.

First act: Notarizing her father's administrative complaint. The Court ruled that this had no direct relation to her work as clerk of court. Under Rule 139-B of the Rules of Court, proceedings for the discipline of attorneys are conducted before the IBP, not the RTC. Clerks of court are not part of the regular procedure for complaints against lawyers.

The Court rejected respondent's argument that the test was whether the document was private. The applicable test is not merely the nature of the transaction, but also the relationship between the document and the official functions and duties of the ex officio notary public.

Second act: Certifying her sister-in-law's labor complaint. The Court applied the same reasoning. The document was filed before the NLRC in Naga City, not the RTC-Iriga City. In the regular course of her duties, respondent would not have come across, encountered, or been in custody of the document. While clerks of court may perform copy certifications, this act must still be connected to their official functions—meaning it must involve public documents and records in their custody.

Third act: Appearing as counsel for her father. The Court found no irregularity here. While court personnel are generally prohibited from engaging in the private practice of their profession, the Code of Conduct and Ethical Standards for Public Officials and Employees allows exceptions. Respondent proved that the Court had granted her authority to represent her father, on the strict conditions that she file leaves of absence for hearings and not use official time in preparing the case.

Penalty

The Court distinguished this case from prior ones involving notarization of private or commercial documents. Since the documents here did not involve private or commercial undertakings, and this was respondent's first offense, the Court imposed a reprimand rather than a fine, with a stern warning that a repetition would be dealt with more severely.

Practical Takeaways

• Clerks of court are ex officio notaries only for official business. Their notarial power is an exception, not a general rule, and applies only to acts connected to their official functions.
• The "private document" test is incomplete. The proper test is whether the notarial act relates to the notary's official duties, regardless of whether the document is private or public.
• Copy certifications are limited to records in custody. A clerk of court may certify copies only of public documents and records that, by virtue of their position, are in their custody.
• Representing family members requires prior authority. Court personnel may appear as counsel for immediate family members only with prior authorization from the Court, and subject to conditions like filing leaves of absence and not using official time.
• Unauthorized notarization is a serious offense. It constitutes unauthorized practice of law and abuse of authority, which can result in administrative sanctions.

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