Lopez v. Dulay, Jr.

FIRST DIVISION

[A.C. No. 10531. March 23, 2022.][Formerly CBD Case No. 15-4504]

ATTY. JUSTO S. LOPEZ, complainant, vs.ATTY. TOMAS F. DULAY, JR., respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedMarch 23, 2022which reads as follows:

"A.C. No. 10531 [Formerly CBD Case No. 15-4504] (Atty. Justo S. Lopez v. Atty. Tomas F. Dulay, Jr.). — For resolution by this Court is an administrative complaint filed against Atty. Tomas F. Dulay, Jr. (Atty. Dulay) for allegedly providing notarial services outside of his territorial jurisdiction in violation of the Notarial Law.

This case stemmed from a Letter 1 dated March 14, 2014 (complaint-letter) sent by Atty. Rustico P. De Vera II to the Integrated Bar of the Philippines (IBP) National Office and the Office of the Executive Judge (OEJ) of the Regional Trial Court (RTC) of Pasig City. It was alleged in the complaint-letter that notarization services were being offered at the ground floor of the West Tower of Tektite Towers, Pasig City (Tektite Towers), in flagrant violation of the Notarial Law:

I would like to report and recommend the immediate prosecution of a group of individuals who are contractual office personnel, mostly clerks or janitors who are notarizing documents in flagrant violation of the Notarial Law. The perpetrators are notarizing anything and charge a measly P50.00 and do not even keep a file copy. They also do not own or use a notarial register. They simply use a fabricated stamp pad. They are operating their Notarial Services in conjunction with their Xerox services.

The unnamed operation is located at:

Ground Floor

West Tower

Tektite Towers, PSE Center

Ortigas Center, Pasig

As a new lawyer and officer of the Court, it is my duty to protect the integrity of the profession. Hoping for your action on the matter. 2

The IBP National Office issued the Memorandum 3 dated March 18, 2014 endorsing the complaint-letter to the IBP Rizal Chapter (IBP-Rizal) exercising jurisdiction over Pasig City. It requested the IBP-Rizal to take immediate appropriate action on the matter.

Upon verification, it was determined that the anomalous notarization services reported at Tektite Towers were being done under the alleged name and seal of Atty. Dulay. However, Atty. Dulay was a commissioned Notary Public for Quezon City for the term February 18, 2014 to December 31, 2015 and therefore could not legally notarize in Pasig City. CAIHTE

Atty. Justo S. Lopez (complainant), Chapter Secretary of the IBP-Rizal 4 referred on May 6, 2014 the complaint-letter to the OEJ of the RTC of Quezon City which had administrative control and supervision over Atty. Dulay as one of its commissioned notaries public. The OEJ thereafter issued the 1st Indorsement 5 dated May 15, 2014 referring the case to the National Bureau of Investigation for appropriate action, copy furnishing the Office of the Court Administrator (OCA).

Acting on the complaint-letter, the OCA issued the 2nd Indorsement 6 dated July 28, 2014 referring the case to the Office of the Bar Confidant. The administrative case was thereafter instituted and the Court issued the Resolution 7 dated September 24, 2014 referring it to the IBP for investigation, report, and recommendation.

The IBP-Commission on Bar Discipline (CBD) proceeded to investigate the case which was docketed as CBD Case No. 15-4504. It issued the Order 8 dated March 5, 2015 furnishing Atty. Dulay with a copy of the complaint-letter and ordering him to submit his answer within 15 days from receipt. He was also notified that his failure to file an answer will render him in default and the case will proceed ex parte.

In the meantime, the Court was notified that Atty. Dulay failed to receive a copy of its Resolution 9 dated September 24, 2014 sent through registered mail to the ground floor of Tektite Towers. It thus issued the Resolution 10 dated April 20, 2015 ordering the complainant to provide Atty. Dulay's correct and current address, and for the IBP to give a status report of the case.

The IBP-Rizal filed its Compliance 11 dated July 24, 2015 manifesting that Atty. Dulay's present address cannot be determined in spite of diligent efforts made by its office.

The IBP-CBD filed the Letter 12 dated July 27, 2015 notifying the Court that the case is scheduled to be re-raffled to another Commissioner in view of the formerly assigned Investigating Commissioner's resignation.

On January 13, 2016, the IBP-CBD issued a Notice of Mandatory Conference 13 ordering the parties to appear before it on February 18, 2016 at 2:00 p.m. and to submit their mandatory conference briefs.

Both parties failed to appear at the mandatory conference. Accordingly, the IBP-CBD issued the Order 14 dated February 18, 2016 terminating the conference proceedings and ordering the parties to submit their verified position papers together with any documentary exhibits and/or judicial affidavits of their witnesses. Neither of the parties submitted verified position papers and the case was deemed submitted for resolution.

On May 19, 2017, the IBP-CBD issued its Report and Recommendation 15 to suspend Atty. Dulay from the practice of law and perpetually disqualify him from being commissioned as a Notary Public:

Given the foregoing circumstances, it is therefore recommended:

1) That respondent Atty. Tomas F. Dulay be suspended from the practice of law for a period of one (1) year, that his present notarial commission, if any, be revoked, and that he be perpetually disqualified from being commissioned as a Notary Public in the future;

2) That Attys. Richard L. Anolin and Jose B. Dulnuan be investigated for ethical and professional misconduct; and

3) That the IBP initiate the necessary measures, including but not limited to legal action, to prevent any and all individuals and establishments from similarly providing notarial services of this nature.

Respectfully submitted; 19 May 2017. 16

This recommendation was based primarily on Investigating Commissioner Rico A. Limpingco's (Limpingco) personal visit to the ground floor of Tektite Towers to investigate the alleged notarization services being conducted. The findings from his investigation are quoted as follows:

The undersigned Commissioner personally visited the establishment described in the complaint to inquire into the matter. The undersigned was informed by the individuals manning the desks at "Dela Peña Copy Systems and General Merchandise" at the ground floor of the West Tower, Philippine Stock Exchange Center, that respondent Atty. Dulay had not been connected with their establishment for quite some time. They admitted, however, that respondent Atty. Dulay, who they described as being of advanced age, had for a time authorized their personnel to notarize documents and to charge fees for the same.

Interestingly, the establishment continues with its questionable notarial operation. Atty. Rustico De Vera II, who as mentioned earlier had first called attention to the matter, had filed a manifestation dated 15 February 2016 stating he again observed the same clerks providing notarial services, this time on behalf of a certain "Atty. Richard L. Anolin" who is supposed to be a Notary Public for the City of Manila.

As of 19 May 2017, a certain "Atty. Jose B. Dulnuan," a purported Notary Public for the City of Mandaluyong, is providing notarization services through his "authorized signatory." The situation even takes a surreal turn because the establishment even went to the extent of putting a barong-clad individual behind an office desk, affecting an air of half-bored importance; when queried, the employees of the establishment admitted that he was not Atty. Dulnuan, and that the said individual wearing a barong tagalog was not a lawyer but was the notary public's "authorized signatory."

The Supreme Court Roll of Attorneys shows that there is a Richard L. Anolin admitted to the Bar on 27 April 1985, likewise a Jose B. Dulnuan, who was admitted to the Bar on 30 March 1976. Unfortunately, Attys. Anolin and Dulnuan, are not the subjects of the present investigation. DETACa

The Supreme Court has in the past sanctioned notaries public who had verified or acknowledged documents even if the signatories thereto had not presented themselves before him. We see here a situation that is much worse — an absent notary public notarizing any and all documents through an "authorized signatory" regardless of whether the signatories are present or not. If allowed to continue, this kind of operation will render the entire notarial system as nothing more than a farce. 17

The IBP Board of Governors issued its Resolution 18 dated December 7, 2017 adopting the factual findings of the Report and Recommendation with modification on the penalty:

CBD Case No. 15-4504Atty. Justo S. Lopez vs.

RESOLVED to ADOPT the findings of fact and recommendation of the Investigating Commissioner imposing the penalty of Immediate Revocation of the Commission if presently commissioned, Disqualification from being appointed as Notary Public for two (2) years and Suspension from the practice of law for one (1) year of Atty. Tomas [F]. Dulay, Jr.

RESOLVED FURTHER to direct Commissioner Rico A. Limpingco to investigate further the unethical and professional misconduct of Atty. Richard L. Anolin and Atty. Jose B. Dulnuan using their address appearing in the IBP Records.19

The issue in this case is whether or not Atty. Dulay is administratively liable for providing notarial services outside of his territorial jurisdiction in violation of the Notarial Law.

After reviewing the records, the Court resolves to dismiss this administrative case.

Section 30, Rule 138 of the Rules of Court explicitly provides that lawyers should be provided reasonable notice and a full opportunity to answer the charges against them before they are removed or suspended from the practice of law:

Section 30. Attorney to be heard before removal or suspension. — No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte.

Section 8, Rule 139-B of the Rules of Court, governing proceedings to disbar and discipline lawyers, also provides that lawyers shall be given full opportunity to defend themselves and present witnesses on their behalf:

Section 8. Investigation. — Upon joinder of issues or upon failure of the respondent to answer, the Investigator shall, with deliberate speed, proceed with the investigation of the case. He shall have the power to issue subpoenas and administer oaths. The respondent shall be given full opportunity to defend himself, to present witnesses on his behalf, and be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte.

The more fluid concept of due process applied in administrative proceedings cannot entirely disregard the fundamental and essential requirements of due process. This is based on the principles of fairness and equity which mandates that all persons must at least have a "reasonable opportunity" to be heard. 20

In administrative proceedings against lawyers, the Court in Ylaya v. Gacott21 held that there is a denial of due process when there is an absolute lack of opportunity to be heard:

The most basic tenet of due process is the right to be heard. Denial of due process means the total lack of opportunity to be heard or to have one's day in court. As a rule, no denial of due process takes place where a party has been given an opportunity to be heard and to present his case; what is prohibited is the absolute lack of opportunity to be heard. 22 (Emphasis and underscoring supplied; citation omitted)

In this regard, it is established that service through registered mail is deemed complete only upon the addressee's actual receipt. As an exception, constructive notice or receipt is appreciated when the addressee fails to claim the mail within five days from the date of the postmaster's notice. 23

For constructive notice to apply, it must be proved that the postmaster sent the required notice of the mail to the addressee. This may be evidenced by a certification from the postmaster stating not only that the notice was issued or sent but also as to how, when, and to whom the delivery was made. 24 The presentation of the envelope containing the unclaimed mail is insufficient proof. 25 There can be no presumption of the completeness of service by registered mail without proof that the notice was actually received by the addressee. 26

Verily, completed and valid service by registered mail presupposes that the mail was sent to the party's correct address. It is only logical and fair that a party should not be bound by service made to an address where he/she does not reside or can be legally considered occupying. Service to a wrong address determined without proper basis cannot be considered sufficient notice to comply with the indispensable requisite of due process. aDSIHc

In this case, it is evident that there was no completed and valid service through registered mail of any of the notices and orders to Atty. Dulay. The records reveal that the IBP-CBD used the following address:

Atty. Tomas F. Dulay, Jr.27

The service of notices and orders from the IBP-CBD to this address were all unsuccessful and returned unserved with the notation "RTS Insufficient" or "RTC — Insufficient Address."

The IBP-CBD failed to notify Atty. Dulay of the administrative proceedings against him since it sent all its notices and orders to an incorrect and invalid address. There is nothing in the records which can serve as basis to establish the ground floor of Tektite Towers as Atty. Dulay's correct address.

Firstly, there is no evidence that Atty. Dulay conducted his business or was even physically present at the ground floor of Tektite Towers. It was admitted in the complaint-letter that Atty. Dulay was not at the Tektite Towers since it was only a "group of individuals who are contractual office personnel, mostly clerks or janitors who are notarizing documents in flagrant violation of the Notarial Law." 28 This is supported by Investigating Commissioner Limpingco's personal account that he did not see Atty. Dulay when he visited the Tektite Towers.

There was also no evidence that Atty. Dulay's notarial implements or any of his work-related or personal belongings were found at the Tektite Towers. It was merely alleged in the complaint-letter that the persons providing notarial services "simply use[d] a fabricated stamp pad," 29 with no inclination of it belonging to Atty. Dulay. Investigating Commissioner Limpingco likewise confirmed that when he went there, the notarization services were not being provided under Atty. Dulay's commission, but that of Atty. Richard L. Anolin (Atty. Anolin) and Atty. Jose B. Dulnuan (Atty. Dulnuan). Absent substantial proof of a nexus between Atty. Dulay and the ground floor of Tektite Towers, this cannot be considered his correct and legally binding address.

Secondly, no constructive notice can be imputed on Atty. Dulay for the service of notices and orders to Tektite Towers. All service attempts returned unsuccessful and undelivered. No certifications executed by the postmaster or any other evidence were presented to prove that notice of the mail was sent and delivered to Atty. Dulay. As settled by this Court, the mere submission of envelopes containing the unclaimed mail is insufficient to show that the required notice was given to the addressee for constructive notice to arise. 30

Consequently, the only evidence to impute the ground floor of Tektite Towers as Atty. Dulay's address is the statement of unnamed persons manning the Dela Peña Copy Systems and General Merchandise store that Atty. Dulay was no longer connected with their establishment, but for a time authorized their personnel to notarize documents for a fee.

This statement is clearly insufficient to establish Atty. Dulay's legal address. To reiterate, there is no proof of Atty. Dulay's physical presence or personal conduct of business or notarial services at the ground floor of Tektite Towers. This Court cannot rely solely on the allegation that he allegedly allowed his notarial commission to be used there because the veracity of this claim has not yet been established and constitutes the primary issue to be determined.

It also bears stressing that this statement was hardly substantiated. It allegedly came from persons manning the Dela Peña Copy Systems and General Merchandise store located at Tektite Towers. These persons were unnamed and did not give the statement under oath. The statement was also hearsay because it was alleged only through Investigating Commissioner Limpingco's narration of what these unnamed persons supposedly told him.

Based on all the foregoing, the Court is constrained to rule that Atty. Dulay was not given due notice of the administrative proceedings against him. Hence, to hold him administratively liable would violate his right to due process. He would be deprived of his right to be notified and given an opportunity to defend himself, to present evidence on his own behalf, and confront the witnesses against him.

It must be emphasized that the Court has repeatedly ordered the IBP-CBD to determine Atty. Dulay's correct address to properly notify him of the proceedings. To recount, the Court issued its Resolution 31 dated April 20, 2015 ordering the complainant to provide Atty. Dulay's correct and current address. It then issued its Resolution 32 dated April 12, 2016 requiring the IBP National Office to provide Atty. Dulay's address. It finally issued the Resolution 33 dated March 11, 2019 to verify from the IBP-CBD if Atty. Dulay received its Notice of Resolution dated December 7, 2017, to which the IBP-CBD replied in the negative through a Letter 34 dated June 19, 2019.

The failure to determine Atty. Dulay's correct address resulted in the concomitant failure to notify him of the instant administrative case. The proceedings therefore cannot bind him and the case must be dismissed. In this day and age of advanced technology and extensively interconnected networks within the legal community, the IBP-CBD is implored to be resourceful and utilize different avenues (e.g., other government agencies) to be able to locate its members and determine addresses, as may be needed, that can be considered legally binding on them.

Lastly, pursuant to this Court's power to motu proprio institute disciplinary proceedings against errant lawyers, 35 the IBP is directed to investigate Atty. Anolin and Atty. Dulnuan for their possible violations of the Notarial Law. This is in view of Investigating Commissioner Limpingco's findings and the Report and Recommendation of the IBP Board of Governors.

WHEREFORE, in view of the foregoing, the administrative complaint against Atty. Tomas F. Dulay, Jr. is hereby DISMISSED.

The Integrated Bar of the Philippines is ORDERED to investigate Atty. Richard L. Anolin and Atty. Jose B. Dulnuan for their possible violations of the Notarial Law and institute the proper disciplinary actions as may be warranted.

SO ORDERED."

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

Footnotes

1.Rollo, p. 4.

2.Id.

3.Id. at 3.

4.Id. at 5-6.

5.Id. at 2.

6.Id. at 1.

7.Id. at 7-8.

8.Id. at 39.

9.Id. at 7-8.

10.Id. at 17.

11.Id. at 19.

12.Id. at 23.

13.Id. at 41.

14.Id. at 47.

15.Id. at 59-62. Penned by Investigating Commissioner Rico A. Limpingco.

16.Id. at 61.

17.Id. at 60-61.

18.Id. at 57-58. Penned by IBP National Secretary Patricia-Ann T. Prodigalidad.

19.Id. at 57.

20.Saunar v. Ermita, 822 Phil. 536, 555 (2017), citing Ang Tibay v. Court of Industrial Relations, 69 Phil. 635, 641 (1940).

21. 702 Phil. 390 (2013).

22.Id. at 403.

23. RULES OF COURT, Rule 13, Section 8.

24.Spouses Aguilar v. Court of Appeals, 369 Phil. 655, 662 (1999).

25.Barrameda v. Castillo, 168 Phil. 170, 174 (1977).

26.Spouses Aguilar v. Court of Appeals, supra note 24 at 664.

27.Rollo, p. 70.

28.Id. at 4.

29.Id.

30.Spouses Aguilar v. Court of Appeals, supra note 24 at 662-663.

31.Rollo, p. 17.

32.Id. at 31-32.

33.Id. at 63-64.

34.Id. at 69.

35. RULES OF COURT, Rule 139-B, Section 1.