In the case of FELIPE E. ABELLA vs. ATTY. ASTERIA E. CRUZABRA, A.C. No. 5688, June 4, 2009, the respondent was found guilty of engaging in notarial practice without the written authority from the Secretary of the Department of Justice, and was accordingly REPRIMANDED. She was warned that a repetition of the same or similar act in the future shall merit a more severe sanction. Thus:
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Felipe E. Abella (complainant) filed a complaint for violation of Canon 1 of the Code of Professional Responsibility and Section 7(b)(2) of Republic Act No. 6713[1] (RA 6713) or the Code of Conduct and Ethical Standards for Public Officials and Employees against Atty. Asteria E. Cruzabra (respondent). In his affidavit-complaint[2] dated 8 May 2002, complainant charged respondent with engaging in private practice while employed in the government service.
Complainant alleged that respondent was admitted to the Philippine Bar on 30 May 1986 and was appointed as Deputy Register of Deeds of General Santos City on 11 August 1987.[3] Complainant asserted that as Deputy Register of Deeds, respondent filed a petition for commission as a notary public and was commissioned on 29 February 1988 without obtaining prior authority from the Secretary of the Department of Justice (DOJ).[4] Complainant claimed that respondent has notarized some 3,000 documents.[5] Complainant pointed out that respondent only stopped notarizing documents when she was reprimanded by the Chief of the Investigation Division of the Land Registration Authority.[6]
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Section 7(b)(2) of RA 6713 provides:
Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:
x x x
(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:
x x x
(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or
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Memorandum Circular No. 17[7] of the Executive Department allows government employees to engage directly in the private practice of their profession provided there is a written permission from the Department head. It provides:
The authority to grant permission to any official or employee shall be granted by the head of the ministry or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules, which provides:
“Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of Department; Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government: Provided, further, That if an employee is granted permission to engage in outside activities, the time so devoted outside of office hours should be fixed by the chief of the agency to the end that it will not impair in any way the efficiency of the other officer or employee: And provided, finally, That no permission is necessary in the case of investments, made by an officer or employee, which do not involve any real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer or member of the board of directors”,
Subject to any additional conditions which the head of the office deems necessary in each particular case in the interest of the service, as expressed in the various issuances of the Civil Service Commission. (Boldfacing supplied)
It is clear that when respondent filed her petition for commission as a notary public, she did not obtain a written permission from the Secretary of the DOJ. Respondent’s superior, the Register of Deeds, cannot issue any authorization because he is not the head of the Department. And even assuming that the Register of Deeds authorized her, respondent failed to present any proof of that written permission. Respondent cannot feign ignorance or good faith because respondent filed her petition for commission as a notary public after Memorandum Circular No. 17 was issued in 1986.
In Yumol, Jr. v. Ferrer Sr.,[8] we suspended a lawyer employed in the Commission on Human Rights (CHR) for failing to obtain a written authority and approval with a duly approved leave of absence from the CHR. We explained:
Crystal clear from the foregoing is the fact that private practice of law by CHR lawyers is not a matter of right. Although the Commission allows CHR lawyers to engage in private practice, a written request and approval thereof, with a duly approved leave of absence for that matter are indispensable. In the case at bar, the record is bereft of any such written request or duly approved leave of absence. No written authority nor approval of the practice and approved leave of absence by the CHR was ever presented by respondent. Thus, he cannot engage in private practice.
As to respondent’s act of notarizing documents, records show that he applied for commission as notary public on 14 November 2000, before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch 42. This was granted by RTC Executive Judge Pedro M. Sunga, Jr., on 01 December 2000. However, the CHR authorized respondent to act as notary public only on 29 October 2001. Considering the acts of notarization are within the ambit of the term “practice of law,” for which a prior written request and approval by the CHR to engage into it are required, the crucial period to be considered is the approval of the CHR on 29 October 2001 and not the approval of the RTC on 04 December 2000.[9]
In Muring, Jr. v. Gatcho,[10] we suspended a lawyer for having filed petitions for commission as a notary public while employed as a court attorney. We held:
Atty. Gatcho should have known that as a government lawyer, he was prohibited from engaging in notarial practice, or in any form of private legal practice for that matter. Atty. Gatcho cannot now feign ignorance or good faith, as he did not seek to exculpate himself by providing an explanation for his error. Atty. Gatcho’s filing of the petition for commission, while not an actual engagement in the practice of law, appears as a furtive attempt to evade the prohibition.[11]
Under the Uniform Rules on Administrative Cases in the Civil Service, engaging in the private practice of profession, when unauthorized, is classified as a light offense punishable by reprimand.[12]
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[1] An Act Establishing a Code of Conduct and Ethical Standards for Public Officials and Employees, to Uphold the Time-Honored Principle of Public Office Being a Public Trust, Granting Incentives and Rewards for Exemplary Service, Enumerating Prohibited Acts and Transactions and Providing Penalties for Violations Thereof and For Other Purposes, 20 February 1989.
[2] Rollo, pp. 1-2.
[3] Id. at 438.
[4] Id. at 439.
[5] Id. at 440.
[6] Id. at 439.
[7] Revoking Memorandum Circular No. 1025 dated 25 November 1977 “Prohibiting Any Government Official and Employee From Accepting Private Employment in Any Capacity Without Prior Authority of The Office of the President.” Issued on 4 September 1986.
[8] A.C. No. 6585, 21 April 2005, 456 SCRA 475.
[9] Id. at 488-489.
[10] A.M. No. CA-05-19-P, 31 August 2006, 500 SCRA 330.
[11] Id. at 348-349.
[12] Section 52, Rule IV. Resolution No. 991936 of the Civil Service Commission, effective 26 September 1999.
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