Upholding Notarial Duties Negligence AND Misrepresentation IN Legal Practice

The Supreme Court's 2016 decision in Recio v. Fandiño (A.C. No. 6767) serves as a stern reminder that a lawyer's duties extend beyond the courtroom. The case underscores the serious consequences of negligence in notarial duties and the unauthorized representation of clients—actions that erode public trust in the legal profession.

The Case Against Atty. Fandiño

Elizabeth Recio, bonds manager of Oriental Assurance Corporation (ORASCO), filed a disbarment complaint against Atty. Joselito I. Fandiño. The complaint alleged that ORASCO discovered several of its bail bonds were fake, simulated, or spurious. These counterfeit bonds bore forged signatures and used non-genuine forms. Notably, the bonds carried a notice directing all correspondence to an address in Naga City—which turned out to be Atty. Fandiño's law office.

The complainant further alleged that Atty. Fandiño misrepresented himself as ORASCO's counsel in several pleadings and court appearances, despite never being authorized by the company. A sheriff's affidavit also indicated that Atty. Fandiño claimed to be the manager and counsel of ORASCO.

The Defense

Atty. Fandiño denied direct participation in the fraudulent scheme. He claimed he delegated the operation of his insurance business to one Jeanette Cruz, who shared his office. He alleged that Cruz, along with another individual, Willy Vargas, orchestrated the issuance of the spurious bonds. He maintained that his signature on the bonds was likely affixed by Cruz, who had access to his notarial records and paraphernalia.

While admitting he appeared as counsel in connection with the bonds, Atty. Fandiño claimed he did so merely because Vargas solicited his services, without verifying Vargas's authority to act on behalf of ORASCO.

The Court's Ruling

The Supreme Court affirmed the Integrated Bar of the Philippines' finding of negligence but modified the penalty. The Court held Atty. Fandiño guilty of negligence in performing his notarial duties and of breaching the 2004 Rules on Notarial Practice.

The Court emphasized that a notary public's responsibility is sensitive and demands caution. By giving Cruz absolute freedom and access to his office and notarial tools, Atty. Fandiño enabled the forgery and circulation of the spurious bonds. This constituted a violation of Section 2(a) and (c), Rule VII of the 2004 Rules on Notarial Practice, which require that a notary's official seal be kept secure and accessible only to the notary or a duly authorized person.

The Court also found Atty. Fandiño negligent for representing ORASCO without verifying his authority to do so. Citing Manila Memorial Park Cemetery, Inc. v. Linsangan, the Court reiterated that persons dealing with an agent must ascertain not only the fact of agency but also the nature and extent of the agent's authority. A lawyer cannot simply rely on a third party's claim of authority.

The Court imposed the following penalties:

• Suspension from the practice of law for six (6) months
• Revocation of his incumbent notarial commission, if any
• Prohibition from being commissioned as a notary public for two (2) years

Practical Takeaways

• Secure notarial paraphernalia diligently. A notary public must keep the official seal and records safe and accessible only to authorized persons. Entrusting these to office staff can lead to serious liability.
• Verify authority before appearing as counsel. Lawyers must ensure that the party they represent has actually engaged their services. Relying on a third party's representation of authority is not a valid excuse.
• Negligence can be as culpable as intentional wrongdoing. Even without direct participation in fraud, a lawyer's carelessness that enables misconduct can result in disciplinary action.
• Notarial violations carry additional penalties. Beyond suspension, violations of the 2004 Rules on Notarial Practice can result in revocation of a notarial commission and disqualification from future appointment.

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