Castro vs. Barin

A lawyer violates Rule 15.01, Canon 15 of the Code of Professional Responsibility when he notarizes the affidavit of desistance of the adverse party of his client in a case he is handling, as this constitutes a conflict of interest where the lawyer represents inconsistent interests of two opposing parties.

The complainant, Cesar C. Castro, filed a criminal complaint for Estafa/Swindling against Perlita G. Calmiong before the Office of the City Prosecutor, Tarlac City, Tarlac. Atty. Enrico G. Barin was the counsel of Ms. Calmiong in that case. The 2004 Rules on Notarial Practice and Rule 112, Section 3 of the Rules of Criminal Procedure govern the proper procedure for subscribing and swearing to affidavits during preliminary investigation.

Cesar C. Castro filed a criminal complaint for Estafa/Swindling against Perlita G. Calmiong, docketed as NPS No. 111-17-INV-111-00963, before the Office of the City Prosecutor, Tarlac City, Tarlac. Atty. Enrico G. Barin was the counsel of Ms. Calmiong in that case. While the case was pending, Castro went to the OCP-Tarlac City to inquire about the status of his complaint and was surprised when he was furnished a copy of a motion to withdraw information with an attached affidavit of desistance allegedly notarized by Atty. Barin. Castro denied that he prepared and/or signed both the motion to withdraw and the affidavit of desistance, alleging forgery on the part of Ms. Calmiong and Atty. Barin. He further claimed that he did not personally appear before Atty. Barin for the notarization of the affidavit of desistance.

In his Comment, Atty. Barin admitted that Ms. Calmiong was a client of his law office and that she sought his advice regarding the Estafa case. He explained that on 15 June 2012, complainant, accompanied by Ms. Calmiong, went to his office to personally subscribe to the affidavit of desistance. Atty. Barin stated that complainant presented his Senior Citizen card, and that he required the latter to present additional proof of identification, to which he presented his Philippine passport. After signing the documents, Atty. Barin advised Ms. Calmiong to submit the same to the OCP-Tarlac City. He asserted that he did not falsify the signature of the complainant and that the complainant personally appeared before him to acknowledge the documents.

The IBP-CBD found that Atty. Barin's act of notarizing the complainant's affidavit of desistance was highly irregular, violating Rule 112, Section 3 of the Rules of Criminal Procedure, and that the ensuing conflict of interest resulted in a violation of Canon 15, Rule 15.01 of the Code of Professional Responsibility. The IBP Board of Governors adopted this finding with modification, imposing a three-month suspension, which was later reduced by the Court to two months.

• Forgery and Falsification: Complainant alleged that Atty. Barin forged his signature on the motion to withdraw and the affidavit of desistance, and that he did not personally appear before Atty. Barin for the notarization of the affidavit of desistance.
• Violation of Notarial Rules: Complainant charged Atty. Barin with violation of the 2004 Rules on Notarial Practice for preparing and notarizing an affidavit of desistance without the complainant's personal appearance.

• Denial of Forgery: Atty. Barin refuted the allegation that he falsified the motion to withdraw and the affidavit of desistance, asserting that he did not falsify the signature of the complainant.
• Personal Appearance: Atty. Barin explained that on 15 June 2012, the complainant, accompanied by Ms. Calamiong, went to his office to personally subscribe to the affidavit of desistance, presenting his Senior Citizen card and Philippine passport as identification.
• Dismissal of Case: Atty. Barin prayed for the dismissal of the instant case, asserting that the complainant personally appeared before him to acknowledge the documents.

• Conflict of Interest: Whether Atty. Barin violated the Lawyer's Oath, the Code of Professional Responsibility, and the 2004 Rules on Notarial Practice for his acts of notarizing an affidavit of desistance without the complainant's personal appearance.

• Conflict of Interest: Yes. Atty. Barin violated Rule 15.01, Canon 15 of the Code of Professional Responsibility. His act of notarizing the affidavit of desistance of the complainant, the adverse party of his client, constituted a conflict of interest, and he was suspended from the practice of law for two months.

• Conflict of Interest: The Court adopted the findings of the IBP-CBD, except as to the imposable penalty. The Court found that the complainant failed to prove by clear and preponderant evidence that his signature in the affidavit of desistance was forged or falsified by Atty. Barin, as mere suspicion and speculation are not enough. However, the Court found that Atty. Barin's act of notarizing the complainant's affidavit of desistance was violative of Rule 15.01, Canon 15 of the Code of Professional Responsibility. Citing Hornilla vs. Atty. Salunat, the Court explained that there is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is "whether or not in behalf of one client, it is the lawyer's duty to fight for an issue or claim, but it is his duty to oppose it for the other client." Atty. Barin admitted that he was the counsel of Ms. Calamiong in the Estafa case filed by the complainant. His act of notarizing the affidavit of desistance of the complainant, which was later submitted to the investigating prosecutor, was a clear violation of the rule. Atty. Barin could not represent both parties in the same case, as the counsel for the accused and the complainant. The affidavit of the complainant should have been subscribed and sworn to before the investigating prosecutor to give the latter an opportunity to determine the veracity of its contents and voluntariness of its execution. Considering that this was Atty. Barin's first offense, the penalty of suspension of two months from the practice of law was appropriate.

• Conflict of Interest — There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is "whether or not in behalf of one client, it is the lawyer's duty to fight for an issue or claim, but it is his duty to oppose it for the other client." This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. The Court applied this doctrine in finding that Atty. Barin, as counsel for the accused, could not notarize the affidavit of desistance of the complainant in the same case, as this constituted representing both parties.
• Quantum of Proof in Administrative Cases — In 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. The Court applied this doctrine in finding that the complainant failed to prove the charge of forgery against Atty. Barin.

• "There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is 'whether or not in behalf of one client, it is the lawyer's duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.' This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used." — This passage from Hornilla v. Atty. Salunat defines the controlling doctrine of conflict of interest and was the basis for finding Atty. Barin liable.
• "Atty. Barin cannot represent both parties in the same case, as the counsel for the accused and the complainant. The affidavit of complainant should have been subscribed and sworn to before the investigating prosecutor to give the latter an opportunity to determine the veracity of its contents and voluntariness of its execution." — This passage states the Court's ratio decidendi, explaining why the notarization constituted a conflict of interest and why the proper procedure should have been followed.

• Hornilla vs. Atty. Salunat, 453 Phil. 108, 111 (2003) — Controlling precedent cited for the definition and test of conflict of interest in legal practice.
• Coquia vs. Atty. Laforteza, 805 Phil. 400, 408 (2017) — Cited for the doctrine that in administrative cases for disbarment or suspension, the quantum of proof required is clearly preponderant evidence and the burden of proof rests upon the complainant.

• Rule 15.01, Canon 15, Code of Professional Responsibility — Provides that a lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. The Court found that Atty. Barin violated this rule by notarizing the affidavit of desistance of the adverse party of his client.
• Rule 112, Section 3, Rules of Criminal Procedure — Provides that the parties' affidavits in the preliminary investigation stage must be subscribed and sworn to before a prosecutor, and only when there is no available prosecutor can a notary public take over the responsibility. The IBP-CBD found that Atty. Barin violated this rule by notarizing the complainant's affidavit.

• Perlas-Bernabe, S.A.J. (Chairperson)
• A. Reyes, Jr., J.
• Hernando, J.
• Inting, J.