EN BANC
JULY 3, 2018
A.C. No. 8854
JULIETA DIMAYUGA, Complainant
vs.
ATTY. VIVIAN G. RUBIA, Respondent
D E C I S I O N
TIJAM, J.:
For Our resolution is a Complaint1 for disciplinary action, charging Atty. Vivian G. Rubia (respondent) with gross negligence, misrepresentation, and violation of the lawyer's oath.
Julieta Dimayuga (complainant) averred in her Complaint that sometime in June 2002, she and her family engaged respondent's legal services to effect the transfer of their deceased father's property to them, which services were supposed to include preparation, notarization, and processing of the transfer document and payment of taxes and other fees for such transfer. Respondent prepared a document denominated as Amended Extrajudicial Settlement of Estate with Waiver of Rights,2 which they signed on June 17, 2002.3 However, the transfer did not happen soon thereafter. Upon inquiry, her family learned that respondent paid the transfer tax only on October 25, 2007;4 the donor's tax was paid on April 2, 2007;5 and contrary to her representations with the complainant's family, respondent only entered the Amended Extrajudicial Settlement of Estate with Waiver of Rights with the Register of Deeds of Davao del Sur only on November 28, 2007 and re-entered on December 1, 2008. It is complainant's theory that respondent may have misappropriated the money that the family paid for her services on June 17, 2002 for her personal use, hence, the belated payment of the required taxes and fees. 6
Complainant also alleged that in June 2003, she also sought respondent's legal services for the purchase of a real property in Digos City. However, contrary to her representation that the property shall be registered in their names after one month, the title was not transferred to them. 7 Moreover, the Deed of Absolute Sale8 dated June 27, 2003 for the purchase of a 600-square meter parcel of land prepared by respondent, was covered by Transfer Certificate of Title (TCT) No. CARP-03000,9 coming from Certificate of Land Ownership Award (CLOA) No. 00394433. The title was issued on February 5, 1997 and registered with the Registry of Deeds of Davao del Sur on February 6, 1997. Being a land covered by CLOA, the following limitation was stated on the face of the TCT, viz.:
[S]ubject to the condition that it shall not be sold, transferred or conveyed except through hereditary succession, or to the Government, or to the Land Bank of the Philippines, or to other qualified beneficiaries for a period often (10) years, x x x. 10
Thus, on June 27, 2003, the sale of the property was still prohibited. Complainant averred that they merely relied on the ability and knowledge of respondent as lawyer, who should not have assented to the sale of the said property due to the prohibition. 11
Hence, complainant prayed that respondent be administratively disciplined for her actions.
In a Resolution12 dated January 31, 2011, the Court required the respondent to comment on the complaint within ten days from notice.
Respondent moved for an extension of time to file her comment, 13 which was granted by the Court in its Resolution14 dated August 15, 2012.
However, within the period of the granted extension, respondent still failed to file the required comment. Hence, in a Resolution 15 dated July 14, 2014, the Court imposed upon respondent a fine of ₱2,000 and reiterated its order requiring respondent to file her comment.
Respondent neither paid the fine nor filed a comment. Hence, in a Resolution16 dated January 13, 2016, the Court imposed upon respondent an increased fine of ₱4,000 and again, required respondent to file comment.
On April 7, 2016, respondent paid the imposed increased fine and explained that her failure to pay the original fine was because the first notice was lost. Respondent also informed the Court of her transfer of office. 17
On June 29, 2016, the Court noted respondent's compliance. However, We reiterated Our order in the January 13, 2016 Resolution, considering that per Office of the Bar Confidant (OBC), no postal money orders were enclosed in the aforesaid compliance. 18
In its September 19, 2016 Resolution,19 the Court noted the OBC's Letter20 dated July 26, 2016, stating the return to respondent of the two postal money orders for being received by the Court's cashier beyond the 90- day period from its validity. The Court also resolved to await respondent's compliance with the June 29, 2016 Resolution.
On November 14, 2016 Resolution,21 the Court noted respondent's remittance of two postal money orders as replacement for the expired ones. Respondent still failed to file her comment, thus, the Court also required her to show cause why she should not be disciplinarily dealt with or held in contempt for such failure and, again ordered her to comply with the January 31, 2016 Resolution.
On December 27, 2016, respondent complied with the show cause order, explaining that she suffered from trauma and stress due to the previous cases filed against her and also that she had undergone life-threatening situations due to some high-profile cases that she handled, hence, her failure to file her comment.22
However, respondent still failed to file her comment to the Complaint. Thus, on June 28, 2017 Resolution,23 while the Court noted her explanation, the Court again required her to file a comment in compliance with the January 31, 2011 Resolution. Despite receipt of the June 28, 2017 Resolution, respondent still failed to file the required comment. 24
Necessarily, this Court will now act on the resolution of the Complaint.
Preliminarily, We shall address respondent's apathetic attitude towards this case, to which this Court has been very tolerant. We have given respondent several opportunities to file her comment and explain her side on the accusations against her since 2011 but, up to present, respondent has yet to file the required comment. This Court cannot, anymore, accept respondent's excuses for such defiance, i.e., trauma, stress, and life-threatening situations, considering that she was able to file pleadings stating such explanation but still failed to file the required comment. Nothing can be concluded therefrom but that respondent's acts or inaction for that matter, were deliberate and manipulating, which unreasonably delay this Court's action on the case. These acts constitute willful disobedience of the lawful orders of this Court, which, not only works against her case as she is now deemed to have waived the filing of her comment, but more importantly is in itself a sufficient cause for suspension or disbarment pursuant to Section 27,25 Rule 138 of the Rules of Court. Such attitude constitutes utter disrespect to the judicial institution. "A Court's Resolution is not to be construed as a mere request, nor should it be complied with partially, inadequately, or selectively."26
In Sebastian v. Atty. Bajar,27 the Court, considered the failure to comply with the court's order, resolution, or directive as constitutive of gross misconduct and insubordination.28
Proceeding to the merits of the Complaint, We find that the allegations of delay in the performance of duty and misappropriation of funds were not sufficiently substantiated. "In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial evidence or such evidence as a reasonable mind may accept as adequate to support a conclusion."29 Corollary to this is the established rule that he who alleges a fact has the burden of proving it for mere allegation is not evidence. "The complainant has the burden of proving by substantial evidence the allegations in the complaint."30
In this case, complainant alleged that she and her family gave respondent ₱150,000 on June 17, 2002, inclusive of respondent's attorneys fees and the legal fees necessary for the transfer of the property. Despite that, respondent did not pay the transfer tax and donor's tax until 2007. However, there is nothing on the records, except for complainant's bare allegation, which proves that such amount was indeed given to respondent on the claimed date. Hence, We cannot judiciously rule on the alleged delay and misappropriation without relying upon assumptions, surmises, and conjectures.
What is apparent in the Complaint, however, is the fact that respondent prepared and notarized a deed of sale, ·covering a parcel of land, which was evidently prohibited to be sold, transferred, or conveyed under Republic Act (R.A.) No. 6657.
Time and again, We have held that a lawyer's conduct ought to and must always be scrupulously observant of the law and ethics.31 CANON 1 of the Code of Professional Responsibility (CPR) provides that a lawyer shall uphold the Constitution, obey the laws, and promote respect for law and legal processes. Also, Rule 15.07 thereof mandates a lawyer to impress upon his client compliance with the laws and principles of fairness.
Indeed, in preparing and notarizing a deed of sale within the prohibited period to sell the subject property under the law, respondent assisted, if not led, the contracting parties, who relied on her knowledge of the law being their lawyer, to an act constitutive of a blatant disregard for or defiance of the law.
Moreover, respondent likewise displayed lack of respect and made a mockery of the solemnity of the oath in an Acknowledgment as her act of notarizing such illegal document entitled it full faith and credit upon its face, when it obviously does not deserve such entitlement, considering its illegality due to the prohibition above-cited. In the case of Caalim Verzonilla v. Atty. Pascua,32 We aptly explained:
[W]hile respondent's duty as a notary public is principally to ascertain the identity of the affiant and the voluntariness of the declaration, it is nevertheless incumbent upon him to guard against any illegal or immoral arrangement or at least refrain from being a party to its consummation. Rule IV, Section 4 of the 2004 Rules on Notarial Practice in fact proscribes notaries public from performing any notarial act for transactions similar to the herein document of sale, to wit:
SEC. 4. Refusal to Notarize. - A notary public shall not perform any notarial act described in these Rules for any person requesting such an act even if he tenders the appropriate fee specified by these Rules if:
(a) the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral;
x x x x.33
It cannot be over-stressed that notarization is not an empty or meaningless routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may be commissioned to perform the same. 34
In all, for these acts of misconduct, "the Court has sanctioned erring lawyers with suspension from the practice of law, revocation of the notarial commission and disqualification from acting as such, and even disbarment."35
Considering that this is not the first time that respondent was administratively sanctioned by this Court, We have already warned her that future infractions shall be dealt with more severely. 36 However, We are also reminded that "disbarment should not be decreed where any punishment less severe such as reprimand, fine, or suspension would accomplish the end desired."37
WHEREFORE, in view of the foregoing, Atty. Vivian G. Rubia is found GUILTY of violating Section 27, Rule 138 of the Rules of Court, CANON 1 and Rule 15.07 of the Code of Professional Responsibility, and the Rules on Notarial Practice. Accordingly, she is SUSPENDED from the practice of law for three (3) years effective immediately with a STERN WARNING that future infractions shall be dealt with more severely. She is likewise DISQUALIFIED from being commissioned as a notary public for a period of three (3) years and her notarial commission, if currently existing, is hereby REVOKED.
Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondent's personal record as attorney.1âwphi1 Further, let copies of this Decision be furnished the Integrated Bar of the Philippines and the Office of the Court Administrator, which is directed to circulate them to all the courts in the country for their information and guidance.
SO ORDERED.
NOEL GIMENEZ TIJAM
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice |
TERESITA J. LEONARDO-DE CASTRO
Associate Justice |
DIOSDADO M. PERALTA
Associate Justice |
LUCAS P. BERSAMIN
Associate Justice |
MARIANO C. DEL CASTILLO
Associate Justice |
ESTELA M. PERLAS-BERNABE
Associate Justice |
MARVIC M.V.F. LEONEN
Associate Justice |
FRANCIS H. JARDELEZA
Associate Justice |
ALFREDO BENJAMIN S. CAGUIOA
Associate Justice |
SAMUEL R. MARTIRES
Associate Justice |
ANDRES B. REYES, JR.
Associate Justice |
ALEXANDER G. GESMUNDO
Associate Justice |
Footnotes
1 Rollo, pp. 1-7.
2 Id. at 10-15.
3 Id. at 3.
4 Id. at 4 and 16.
5 Id. at 4 and 17.
6 Id. at 4-5.
7 Id. at 1-1 A.
8 Id. at 8.
9 Id. at 9.
10 Id.
11 Id. at 3.
12 Id. at 21.
13 Id. at 22-26.
14 Id. at 29.
15 Id. at 33-34.
16 Id. at 37-38.
17 Id. at 39-41.
18 Id. at 44-45.
19 Id. at 58.
20 Id. at 47.
21 Id. at 77.
22 Id. at 64-65.
23 Id. at 80-81.
24 Id. at 83.
25 Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. -A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willful appearing as an attorney for a party to a case without authority so to do. x x x.
26 559 Phil. 211, 224 (2007)
27 559 Phil. 211 (2007).
28 Id. at 225.
29 Concerned Citizen v. Divina, 676 Phil. 166, 176 (2011).
30 Id.
31 Rural Bank of Calape, Inc. (RBCJ) Bohol v. Atty. Florido, 635 Phil. 176, 181 (2010).
32 674 Phil. 550 (2011 ).
33 Id. at 561.
34 Almazan, Sr. v. Atty. Suerte-Felipe, 743 Phil. 131, 136-137 (2014).
35 Saquing v. Atty. Mora, 535 Phil. 1, 7 (2006).
36 In Mondejar v. Atty. Rubia, 528 Phil. 462, 467 (2006), respondent was found guilty of violating Rule 1.01 of CANON 1 of the CPR and thereby suspended from the practice of law for one (1) month and warned that a repetition of the same or similar acts will be dealt with more severely; In Ceniza v. Atty. Rubia, 617 Phil. 202 (2009), respondent was found guilty of violating Rule 18.03 and CANON 22 of the CPR and thereby suspended from the practice of law for six (6) months with a warning that similar infractions in the future will be dealt with more severely.
37 Saquing v. Atty. Mora, supra at 8.
The Lawphil Project - Arellano Law Foundation
