Navigating Conflict of Interest: The Importance of Ethical Notarization in Legal Practice

The Supreme Court recently reminded lawyers that notarization is not a mere ministerial act—it carries ethical responsibilities that can lead to suspension when breached. In Castro v. Atty. Barin (A.C. No. 9495, March 2, 2020), the Court suspended a lawyer for two months for notarizing an affidavit of desistance from the opposing party in a case he was handling, ruling that this constituted a conflict of interest under the Code of Professional Responsibility.

The Facts of the Case

The case arose from a criminal complaint for Estafa filed by Cesar Castro against Perlita Calmiong before the Office of the City Prosecutor in Tarlac City. During the preliminary investigation, Castro discovered that a motion to withdraw the information had been filed, attached to an affidavit of desistance allegedly notarized by Atty. Enrico Barin—who happened to be Calmiong's counsel.

Castro denied signing the affidavit and claimed he never personally appeared before Atty. Barin for notarization. He filed a disbarment complaint, alleging forgery and violation of the 2004 Rules on Notarial Practice.

Atty. Barin countered that Castro personally appeared at his office on June 15, 2012, presented his Senior Citizen card and passport, and voluntarily signed the affidavit. He denied any falsification.

The Issue Before the Court

The central question was whether Atty. Barin violated the Lawyer's Oath, the Code of Professional Responsibility, and the 2004 Rules on Notarial Practice by notarizing the affidavit of desistance without the complainant's personal appearance.

The Court's Ruling

The Court found that Castro failed to prove by clear and preponderant evidence that his signature was forged. Bare allegations of misconduct cannot overcome the presumption of regularity in the performance of official functions. The forgery claim was dismissed.

However, the Court found Atty. Barin liable for a different violation: conflict of interest under Rule 15.01, Canon 15 of the Code of Professional Responsibility, which requires lawyers to ascertain whether a matter involves a conflict with another client or their own interest.

The Conflict of Interest Problem

The Court applied the test from Hornilla v. Atty. Salunat (453 Phil. 108, 2003): conflict of interest exists when a lawyer represents inconsistent interests of opposing parties. The rule covers even situations where no confidential communications were shared.

Here, Atty. Barin was Calmiong's counsel in the Estafa case. By notarizing the complainant's affidavit of desistance—a document that directly benefited his client—he effectively served both parties in the same case. The Court emphasized that the affidavit should have been subscribed before the investigating prosecutor, who could assess its veracity and the voluntariness of its execution.

Why This Matters for Legal Practice

The case underscores several important principles:

Notarization is a public service. A notary public does not merely witness signatures; the act invests documents with public faith. When a lawyer notarizes a document that advances their client's interest against an adverse party, the impartiality required of a notary is compromised.

Conflict of interest extends beyond representation. Even if Atty. Barin was not formally representing Castro, notarizing his affidavit in a case where he was opposing counsel created an inherent conflict. The Court made clear that lawyers cannot serve two masters in the same case.

Prosecutors have a role in verifying affidavits. Under the Rules of Criminal Procedure, affidavits in preliminary investigations must generally be subscribed before the investigating prosecutor. This allows the prosecutor to probe the truthfulness and voluntariness of the statements—a safeguard that notarization by an interested party defeats.

Practical Takeaways

• Never notarize documents from the adverse party in a case you are handling, even if the party appears willing. This creates an apparent conflict that can result in administrative sanctions.
• Respect the notarial rules strictly. Personal appearance before the notary is a non-negotiable requirement under the 2004 Rules on Notarial Practice.
• When in doubt, refer to the prosecutor. If an adverse party wishes to execute an affidavit of desistance, direct them to the investigating prosecutor rather than notarizing it yourself.
• Conflict of interest is judged by appearances and duties. The test is whether arguing for one client would require opposing the other's interest—not whether confidential information was actually shared.
• Even first offenses carry real consequences. A two-month suspension from practice demonstrates that the Court treats notarial misconduct seriously, regardless of the lawyer's years of experience.

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