Pañganiban vs. Borromeo

A member of the bar who, in his capacity as notary public, performs an act of a disgraceful or immoral character may be disciplined by the court, even to the extent of disbarment, and a contract that purports to legalize adultery and concubinage between spouses is void for being contrary to law, morals, and public order.

Jose R. Pañganiban initiated disbarment proceedings against Elias Borromeo, a regularly admitted member of the Philippine Bar acting as notary public, based on the latter's notarization of a contract between spouses Alejandro Pabro and Juana Mappala. The proceedings were brought before the Court on representations of the Solicitor-General that the respondent show cause why he should not be proceeded against for professional malpractice. At the time of the contract's execution on November 25, 1931, the Spanish Penal Code as modified by Act No. 1773 was in force, though the Court considered the more liberal provisions of the Revised Penal Code applicable.

On November 25, 1931, spouses Alejandro Pabro and Juana Mappala subscribed a contract before notary public Elias Borromeo, a regularly admitted member of the Philippine Bar. The contract had been prepared by the municipal secretary of Naguilian, Isabela. Attorney Borromeo cooperated in the execution of the document and had, at least, some knowledge of its contents, although he may not have been fully informed because of a difference in dialect.

The contract in substance purported to formulate an agreement between the husband and wife which permitted the husband to take a concubine and the wife to live in adulterous relationship with another man, without opposition from either spouse. The respondent admitted that, in his capacity as notary public, he legalized the document and that it contained provisions contrary to law, morals, and good customs. By way of defense, however, he disclaimed any previous knowledge of the illegal character of the document.

The disbarment proceedings were initiated by complainant Jose R. Pañganiban and brought before the Court on the representations of the Solicitor-General that the respondent appear and show cause why he should not be proceeded against for professional malpractice.

• Lack of Knowledge of Illegality: Respondent admitted notarizing the document and acknowledged that it contained provisions contrary to law, morals, and good customs, but disclaimed any previous knowledge of the illegal character of the document.
• Dialect Barrier: Respondent suggested he may not have been fully informed of the document's contents because of a difference in dialect.

• Validity of the Contract: Whether the contract between the spouses sanctioned an illicit and immoral purpose, rendering it contrary to law, morals, and public order.
• Disciplinary Authority Over Notarial Misconduct: Whether a lawyer may be disciplined by the court for misconduct committed in his capacity as notary public.

• Validity of the Contract: Yes. The contract was held to contain provisions contrary to law, morals, and public order, and was therefore not judicially recognizable.
• Disciplinary Authority Over Notarial Misconduct: Yes. A member of the bar who performs an act as notary public of a disgraceful or immoral character may be held to account by the court, even to the extent of disbarment.

• Validity of the Contract: The contract was executed when the Spanish Penal Code, as modified by Act No. 1773, was in force, though the Court applied the more liberal provisions of the Revised Penal Code. Under the Revised Penal Code, the consent or pardon given by the offended party constitutes a bar to prosecution for adultery or concubinage. The Court acknowledged that if the spouses retained their present frame of mind, no prosecution of either by the other could be expected. Nevertheless, it was far from the purpose of the Legislature to legalize adultery and concubinage; these remained crimes, with the qualification that prosecution could not be instituted if the offended party consented or pardoned. This was a matter of future contingency, not a matter for legalization in wanton disregard of good morals. The contract was accordingly held to contain provisions contrary to law, morals, and public order, and was not judicially recognizable.

• Disciplinary Authority Over Notarial Misconduct: While the office of notary public did not carry the same importance under present conditions as under the Spanish administration, the notary public nonetheless exercised duties calling for carefulness and faithfulness. It was incumbent upon the notary to inform himself of the facts to which he intended to certify and to take part in no illegal enterprise. Because the notary public was usually a person admitted to the practice of law, the commingling of his duties as notary and lawyer required that he be held responsible for both. The Court thus held that a member of the bar who performs an act as notary public of a disgraceful or immoral character may be held to account by the court even to the extent of disbarment. In imposing sentence, the Court considered three mitigating circumstances: (1) the attorney may not have realized the full purport of the document to which he took acknowledgment, (2) no falsification of facts was attempted, and (3) the respondent's commission as notary public had already been revoked. Accordingly, the Court exercised clemency and confined discipline to severe censure.

• Disciplinary Authority Over Notarial Misconduct — A member of the bar who performs an act as notary public of a disgraceful or immoral character may be held to account by the court, even to the extent of disbarment. The notary public exercises duties calling for carefulness and faithfulness; it is for the notary to inform himself of the facts to which he intends to certify and to take part in no illegal enterprise. Because a notary public is usually a person admitted to the practice of law, the commingling of his duties as notary and lawyer requires that he be held responsible for both. The Court applied this doctrine to hold respondent Borromeo accountable, though clemency was extended due to mitigating circumstances.

• Contracts Contrary to Law, Morals, and Public Order — A contract that purports to legalize adultery and concubinage between spouses is void for containing provisions contrary to law, morals, and public order, and is not judicially recognizable. The fact that consent or pardon by the offended party bars prosecution for adultery or concubinage does not amount to legislative legalization of those acts; they remain crimes, and the bar to prosecution is a matter of future contingency, not a subject for contractual legalization in wanton disregard of good morals.

• "We hold the contract to contain provisions contrary to law, morals and public order, and as a consequence not judicially recognizable." — This passage states the ratio decidendi on the first issue, declaring the spousal contract void for contravening law, morals, and public order.

• "We are led to hold that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to account by the court even to the extent of disbarment." — This is the canonical formulation of the Court's ruling on disciplinary authority over notarial misconduct, establishing that the Court's power to discipline attorneys extends to acts committed in the notarial capacity.

• "It is for the notary to inform himself of the facts to which he intends to certify, and to take part in no illegal enterprise." — This passage defines the affirmative duty of a notary public to ascertain the contents and legality of instruments he notarizes, forming the basis for the respondent's accountability.

• In re Terrell, 2 Phil. 266 (1903) — Cited as supporting authority for the Court's power to discipline attorneys for professional misconduct.
• In re Adriatico, 7 Phil. 173 (1906) — Cited as supporting authority for the Court's disciplinary power over members of the bar.
• U.S. vs. Kilayko, 34 Phil. 796 (1916) — Cited as supporting authority in the line of cases upholding the Court's authority to discipline attorneys and notaries for misconduct.
• De la Cruz vs. Capinpin and Albea, 38 Phil. 492 (1918) — Cited as supporting authority for the Court's disciplinary jurisdiction over attorneys acting as notaries public.

• Revised Penal Code — provisions on adultery and concubinage — The Court applied the more liberal provisions of the Revised Penal Code, under which the consent or pardon given by the offended party constitutes a bar to prosecution for adultery or concubinage. The Court clarified that this procedural bar did not amount to legalization of the acts, which remained crimes.
• Act No. 1773 (modifying the Spanish Penal Code) — Identified as the law in force at the time the contract was executed, though the Court opted to apply the Revised Penal Code's more liberal provisions.

Avanceña, C.J., Street, Villa-Real, Abad Santos, Hull, Vickers, and Imperial, JJ., concurred.