Balinon vs. de Leon

A lawyer may be suspended or disbarred for preparing a document that virtually permits the commission of a crime involving moral turpitude, even without a prior criminal conviction and even if the act falls outside the enumerated grounds of Section 25 of Rule 127, because the lawyer's use of legal knowledge and skill to achieve an immoral purpose constitutes professional misconduct warranting disciplinary action.

Respondents Celestino M. de Leon and Justo T. Velayo were duly qualified members of the bar in active practice, with Velayo serving as a notary public. The Solicitor General filed the administrative complaint directly with the Supreme Court, invoking the Court's disciplinary authority over members of the bar. The Court had previously exercised this authority in analogous circumstances, having imposed suspension upon an attorney who prepared a document authorizing spouses to marry again.

Respondent Celestino M. de Leon, a duly qualified member of the bar in active practice, was legally married to Vertudes Marquez. Since December 1948, however, he lived as husband and wife with Regina S. Balinon. According to the complaint filed by the Solicitor General, de Leon prepared and subscribed on February 4, 1948, before respondent Justo T. Velayo, a notary public, an affidavit styled as a "contract of companionship." The affidavit itself bears the date February 4, 1949.

The affidavit declared that a contract of separation existed between de Leon and his wife, Vertudes Marquez, under which each was at liberty to take a lifetime partner with the full consent and authorization of the other; that the conjugal partnership was dissolved and the existing property, rights and interests were divided and apportioned; and that the wife was given full control, care and custody of the children. By virtue of that contract, de Leon declared that he was taking Regina S. Balinon as his "true and lawful wife," and he solemnly swore to uphold and defend her honor and dignity, to remain loyal and faithful to her as a "lawful and devoted loving husband" for the rest of his life, to acknowledge any offspring as his true and legal children, and to cause future properties acquired during the relationship to belong exclusively to her. The affidavit further provided that intentional desertion on de Leon's part could be a sufficient ground for his perpetual disbarment upon her instance or any third party in interest.

The Solicitor General filed the complaint against both respondents, alleging that the affidavit was prepared and subscribed for unlawful and immoral purposes, and that respondent Velayo knowingly signed the same in violation of his oath of office as attorney and notary public.

De Leon admitted his continuous cohabitation with Regina S. Balinon during his subsisting marriage with Vertudes Marquez, and admitted that he prepared and subscribed the affidavit. Velayo, for his part, admitted that his participation was limited to notarizing the affidavit, as a matter of courtesy to a brother lawyer and without knowing its contents — a claim corroborated by de Leon, who stated that no consideration whatsoever passed to Velayo.

• Unlawful and Immoral Purpose: The Solicitor General alleged that de Leon prepared and subscribed the affidavit for unlawful and immoral purposes, and that Velayo knowingly signed it in violation of his oath of office as attorney and notary public.
• Consent Does Not Legalize Crime: The Solicitor General observed that while the consent or pardon of the offended spouse constitutes a bar to criminal prosecution for adultery and concubinage, the crimes are not thereby legalized; the result is merely that prosecution in such cases would not lie.

• No Final Conviction: De Leon contended that he has not been finally convicted of a crime involving moral turpitude, and therefore could not be disciplined.
• Unilateral Declaration: De Leon argued that while the affidavit may be illicit, it is not an agreement but a mere innocent unilateral declaration of facts.
• No Specific Law Violated: De Leon argued that while the execution of the affidavit may be illegal and void ab initio, no specific law has been violated so as to give rise to an action.
• No Relation to Professional Duties: De Leon insisted that the acts imputed to him had no relation with his professional duties and therefore cannot serve as a basis for suspension or disbarment under Section 25 of Rule 127.
• Limited Participation: Velayo alleged that his participation was limited to the task of notarizing the affidavit, as a matter of courtesy to a brother lawyer and without knowing its contents.
• Duty of Notary Public: Velayo contended that the duty of a notary public is principally to ascertain the identity of the affiant and the voluntariness of the declaration.

• Moral Turpitude Conviction: Whether respondent de Leon may be disciplined despite not having been finally convicted of a crime involving moral turpitude.
• Unilateral Declaration: Whether the affidavit, being a unilateral declaration of facts, can be the basis for disciplinary action.
• Professional Duties: Whether de Leon's acts, having no relation to his professional duties, can serve as a basis for suspension or disbarment under Section 25 of Rule 127.
• Notary's Duty: Whether respondent Velayo should be disciplined for merely notarizing the affidavit.

• Moral Turpitude Conviction: Yes. A lawyer may be disciplined even without a final conviction of a crime involving moral turpitude, the disciplinary power of the Court not being conditioned upon such a conviction.
• Unilateral Declaration: No. The unilateral nature of the affidavit is of no moment, since it enabled de Leon to attain his purpose of winning over Regina S. Balinon with some degree of permanence.
• Professional Duties: Yes. A member of the bar may be removed or suspended on grounds other than those enumerated in Section 25 of Rule 127, and de Leon employed his knowledge of the law and skill as an attorney to his own advantage.
• Notary's Duty: Yes, but only a reprimand. Velayo was negligent in affixing his signature without guarding against an illegal or immoral arrangement, but his fault is mitigated by his reliance on the good faith of his co-respondent.

• Moral Turpitude Conviction: The Court rejected de Leon's contention that he could not be disciplined absent a final conviction of a crime involving moral turpitude. The affidavit prepared and signed by de Leon had the effect of virtually permitting himself to commit the crime of concubinage: although it did not bluntly authorize him to marry another during his subsisting wedlock, he made it appear that he could take in another woman as a lifetime partner to whom he would remain loyal and faithful as a lawful and devoted loving husband, and whom he could take and respect as his true and lawful wife. While the consent or pardon of either spouse constitutes a bar to criminal prosecution for adultery and concubinage, the crimes are not thereby legalized; the result is merely that prosecution would not lie. The absence of a criminal conviction does not immunize a lawyer from disciplinary action.

• Unilateral Declaration: The Court held that the contention that the affidavit is only a unilateral declaration of facts is of no moment, since it undoubtedly enabled de Leon to attain his purpose of winning over Regina S. Balinon with some degree of permanence. The affidavit, although not an agreement between parties, served de Leon's immoral purpose and was therefore a proper basis for disciplinary action.

• Professional Duties: The Court cited In re Pelaez (44 Phil., 567) for the proposition that a member of the bar may be removed or suspended from office as a lawyer on grounds other than those enumerated in Section 25 of Rule 127. Moreover, the Court observed that de Leon was able to prepare the affidavit in question because he is a lawyer, and rendered professional service to himself as a client, surely employing his knowledge of the law and skill as an attorney to his advantage, citing Manalo vs. Gan (Adm. Case No. 72, May 13, 1953).

• Notary's Duty: The Court acknowledged that Velayo did nothing except affix his signature to the affidavit as a notary public. While the duty of a notary public is principally to ascertain the identity of the affiant and the voluntariness of the declaration, it is nevertheless incumbent upon him at least to guard against having anything to do with an illegal or immoral arrangement. Velayo was somewhat negligent in just affixing his signature to the affidavit, although his fault is mitigated by the fact that he had relied on the good faith of his co-respondent.

• Disciplinary Power Not Limited to Enumerated Grounds — A member of the bar may be removed or suspended from office as a lawyer on grounds other than those enumerated in Section 25 of Rule 127. The Court applied this doctrine in disciplining de Leon for preparing an affidavit that virtually permitted concubinage, even though the act was not among the enumerated grounds for disciplinary action.

• Consent or Pardon Does Not Legalize Adultery or Concubinage — The consent or pardon of either spouse constitutes a bar to criminal prosecution for adultery and concubinage, but the crimes are not thereby legalized; the result is merely that prosecution in such cases would not lie. The Court applied this to reject de Leon's argument that the affidavit was not criminal because his wife's consent barred prosecution.

• Notary's Duty to Guard Against Illegal or Immoral Arrangements — While the duty of a notary public is principally to ascertain the identity of the affiant and the voluntariness of the declaration, it is nevertheless incumbent upon him at least to guard against having anything to do with an illegal or immoral arrangement. The Court applied this in reprimanding Velayo for notarizing the affidavit without guarding against its unlawful purpose.

• "In effect the affidavit prepared and signed by respondent De Leon has similar implication, in that although it did not bluntly authorize said respondent to marry another during his subsisting wedlock with Vertudes Marquez, he made it appear that he could take in another woman as a lifetime partner to whom he would remain loyal and faithful as a lawful and devoted loving husband and whom he could take and respect as his true and lawful wife; thereby virtually permitting himself to commit the crime of concubinage." — This passage states the core ratio decidendi: the affidavit's effect, not its form, determines whether it constitutes professional misconduct.

• "It is true, as respondent De Leon argues, that the consent or pardon of either spouse constitutes a bar to a criminal prosecution for adultery and concubinage, but, as the Solicitor General observes, said crimes are not thereby legalized, the result being merely that prosecution in such cases would not lie." — This passage clarifies that spousal consent bars prosecution but does not legalize the crime, a distinction central to rejecting de Leon's defense.

• "It should be remembered, however, that a member of the bar may be removed or suspended from office as a lawyer on grounds other than those enumerated by said provision (In re Pelaez, 44 Phil., 567)." — This passage establishes that Section 25 of Rule 127 is not an exclusive enumeration of grounds for disciplinary action against lawyers.

• "While, as contended by his counsel, the duty of a notary public is principally to ascertain the identity of the affiant and the voluntariness of the declaration, it is nevertheless incumbent upon him at least to guard against having anything to do with an illegal or immoral arrangement." — This passage defines the standard of care expected of a notary public beyond mere identity verification.

• In re Roque Santiago, 40 Off. Gaz. (7th Supp.) p. 208 — Controlling precedent; the Court had previously imposed the penalty of suspension upon an attorney who prepared a document stipulating that contracting spouses authorized each other to marry again and renounced rights of action against each other. The Court found the affidavit in the present case had a similar implication.

• In re Pelaez, 44 Phil., 567 — Followed; cited for the proposition that a member of the bar may be removed or suspended from office as a lawyer on grounds other than those enumerated in Section 25 of Rule 127.

• Manalo vs. Gan, Adm. Case No. 72, May 13, 1953 — Followed; cited for the proposition that a lawyer who employs his knowledge of the law and skill as an attorney to his own advantage may be disciplined, supporting the Court's finding that de Leon rendered professional service to himself as a client.

• Section 25, Rule 127 — The Court held that this provision, which enumerates grounds for disbarment or suspension of lawyers, is not exclusive. A member of the bar may be disciplined on grounds other than those enumerated, as applied to de Leon's preparation of the affidavit.

Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concurred.