By Atty. Rolex T. Suplico
Cesar filed a case for estafa against Perlita in the Office of the City Prosecutor. He decided to follow it up and was surprised when he was furnished a copy of a motion to withdraw information with an attached affidavit of desistance. Perlita’s lawyer, Atty. Rico, notarized his affidavit. He then filed a Sworn Affidavit with the Supreme Court, charging Atty. Rico with the violation of notarizing a document without the presence of the complainant Cesar.
Atty. Rico submitted his comment and denied falsifying the motion to withdraw and the affidavit of desistance. He admitted that Perlita is his client. He explained that Perlita and Cesar went to his office to personally subscribe on the affidavit of desistance. Cesar presented his senior citizen ID and his passport.
The Supreme Court referred the case to the Integrated Bar of the Philippines (IBP). The IBP found Atty. Rico liable for conflict of interest, when he notarized the affidavit of desistance of the complainant. This is pursuant to Rule 15.01, Canon 15 of the Code of Professional Responsibility. It recommended his suspension from the practice of law for 3 months.
The IBP submitted its findings to the Court, which adopted the same. It stated that “(i)n administrative cases for disbarment or suspension against lawyers, the quantum of proof required is clearly preponderant evidence and the burden of proof rests upon the complainant. In the absence of cogent proof, bare allegations of misconduct cannot prevail over the presumption of regularity in the performance of official functions. In the instant case, We find the complainant failed to prove by clear and preponderant evidence that his signature in the affidavit of desistance was forge or falsified by Atty. Barin. We cannot evidentiary weight to mere assumption in the absence of any evidence to support such claim. Mere suspicion and speculation is not enough.”
But the Court held that Atty. Rico’s “act of notarizing complainant’s affidavit of desistance (is) violative of Rule 15.01, Canon 15 of the Code of Professional Responsibility x x x.” It stated that he “cannot represent both parties in the same case, as the counsel for the accused and the complainant. The affidavit of desistance should have been subscribed and sworn to before the investigating prosecutor to give the latter and opportunity to determine the veracity of its contents and voluntariness of its execution. Considering that this is Atty. Barin’s first offense, the penalty of suspension of two (2) months from the practice of law is appropriate.”
The Court suspended Atty. Rico from the practice of law for 2 months and warned him “that a repetition of the same or similar acts will be dealt with more severely.” (Cesar C. Castro vs. Atty. Enrico G. Barin, A.C. No. 9495, March 2, 2020)
