FIRST DIVISION
[A.C. No. 9092. July 4, 2018.]
PHILCOMSAT HOLDINGS CORPORATION, REPRESENTED BY ERLINDA I. BILDNER, complainant,vs. ATTY. LUIS K. LOKIN, JR., respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated July 4, 2018which reads as follows: HSAcaE
"A.C. No. 9092 — Philcomsat Holdings Corporation, represented by Erlinda I. Bildner vs. Atty. Luis K. Lokin, Jr.
This administrative Complaint 1 for disbarment was filed by Erlinda I. Bildner (Bildner) on behalf of Philcomsat Holdings Corporation (PHC) (complainants), against Atty. Luis K. Lokin, Jr. (Atty. Lokin) for violation of Canon 1, 2 Rules 1.01 3 and 1.02, 4 Canon 7, 5 Rule 7.03, 6 Canon 15, 7 Canon 17, 8 and Canon 19, 9 Rule 19.01 10 of the Code of Professional Responsibility (CPR). Here, Atty. Lokin is accused of having stated a falsehood under oath, having engaged in unlawful, dishonest, deceitful or immoral conduct, having failed to account for all money or property of PHC as his client, and generally having prejudiced the interests of his client as well as its shareholders.
Factual Antecedent
The present case was initiated by Bildner on behalf of PHC, a domestic corporation of which 81% of the outstanding capital stock is owned by Philippine Communications Satellite Corporation (Philcomsat). 11 Without necessarily impressing on the multitude of issues alluded to by both parties — of which many are still being resolved in suits lodged in multiple courts — both Bildner and Atty. Lokin claim to be directors of PHC albeit belonging to opposing groups that dispute over its legitimate directorship.
From 2004 until 2008, the board of directors Atty. Lokin affiliated with had "physical" control of PHC, pending resolution of an election protest against them filed by the group of Bildner. At this time, Atty. Lokin served both as a member of the board of directors of PHC and the Chairman of its Legal Committee. By virtue of such capacities, Bildner claims that Atty. Lokin had easy access to corporate documents and assets of PHC, including its bank accounts. 12 cDHAES
The basis of the charge against Atty. Lokin lies in the Secretary's Certificate 13 he purportedly executed on September 2, 2005, where he appeared to have certified under oath that: (1) he was the duly appointed and incumbent Corporate Secretary of PHC at the time of its execution; (2) a resolution was duly approved by the board of directors of PHC authorizing the corporation to "assign, mortgage, or otherwise hypothecate" its deposit account with Bankwise, Inc. (the Bank) to the extent of P28 Million to serve as security for the loan contracted by Benito Araneta (Araneta), who served as a director of PHC until June 2005, with the Bank; and (3) the same resolution had authorized Araneta to execute any document necessary to effect all corporate transactions he had entered into with the Bank and that such are valid and binding against PHC, among others. To prove that Atty. Lokin executed the Secretary's Certificate, the complainant presented a Certification 14 from Atty. Lope M. Velasco (Atty. Velasco).
According to the General Information Sheet 15 for 2005 filed by PHC with the Securities and Exchange Commission, and as admitted by Atty. Lokin himself, it is Roberto San Jose who stood as the Corporate Secretary during the period when the Secretary Certificate was allegedly executed. 16
In its complaint, PHC, through Bildner, accuses Atty. Lokin of having fraudulently executed the Secretary's Certificate to the prejudice of PHC. Bildner claims that Atty. Lokin misrepresented himself as then incumbent Corporate Secretary to facilitate the personal loan worth P25 Million obtained by Araneta from the Bank on September 1, 2005. 17 As alleged, the acts of Atty. Lokin falsely certifying the approval of the above-described resolution and misrepresenting himself as then incumbent Corporate Secretary to fraudulently execute the Secretary Certificate violates Canon 1, Rules 1.01 and 1.02, and Canon 7, Rule 7.03 of the CPR. 18
Furthermore, due to the position held by Atty. Lokin in the Legal Committee of PHC, Bildner claims that Lokin effectively served as legal counsel for PHC, for which he had received payments in the form of legal and professional fees. 19 In this regard, Bildner avers that the fraudulent execution of the Secretary's Certificate by Atty. Lokin caused the eventual misuse of the corporate funds of PHC by Araneta, which at present may no longer be recovered. Thus, as Bildner maintains, Atty. Lokin failed to protect the interests of his client, PHC, at the standard expected of a member of the legal profession, violating Canon 15, Rule 15.06, Canon 17 and Canon 19, Rule 19.01 of the CPR. 20 ASEcHI
In his Answer, 21 Atty. Lokin stresses that the Secretary's Certificate is a falsified document and that the signatures on the first and second page thereof appearing to be his own were forged. 22 As proof, Atty. Lokin raises the following points with regard to the signatures claimed to be his: (1) the strokes on the signature appearing above his name in the first page are heavy and unnatural; (2) the same signature was intentionally superimposed on his name to make the forgery less obvious, unlike his usual manner of placing his signature above his name; (3) he does not use the designation "Atty." before his name in the documents he had executed; and (4) the handwriting of the signature appearing on the right margin of the second page is very different from his, and the strokes are glaringly unnatural. 23
Atty. Lokin also raises doubt as regards the notarization of the Secretary's Certificate. He claims that the details pertaining to the Professional Tax Receipt (PTR), Integrated Bar of the Philippines, and Roll of Attorneys' numbers of the notary public, Atty. Velasco, as well as the Document Number, Page Number, and Book Number for entry into the Notarial Registry Book were intentionally erased or made unreadable to prevent any party from verifying the same. Atty. Lokin also points out that the Community Tax Certificate details used as competent evidence of identity were not indicated, contrary to his practice of providing the same when signing documents under oath. 24
In the same vein, Atty. Lokin argues that the existence and due execution of the Secretary's Certificate remain suspect since the complainant only presented a certified true copy of the Secretary's Certificate, including the Certification from the office of Atty. Velasco stated above. He claims that when he inquired with the Notarial Section of the Regional Trial Court of Makati City, Atty. Velasco had already submitted an Affidavit of Loss where he attested that the Notarial Registry Book covering the period from January 2004 to December 2005 and the documents for submission with the Office of the Notarial Section, including the Secretary's Certificate, were already lost and no longer in his possession. Considering that there is no original copy of the Secretary's Certificate to verify the contents of its supposed certified true copy with, Atty. Lokin asserts that such document, as presented by the complainant, is non-existent and therefore indicates that the present charges against him were maliciously concocted to harass him. 25
In addition, Atty. Lokin denies knowledge of any personal loan contracted by Araneta with the Bank in September 2005 or any board meeting of the directors of PHC where the assignment or hypothecation of the corporation's accounts with the Bank to serve as security were discussed or approved. He also refutes the contention that he was privy to any bank accounts, deposits, or transactions with the Bank despite being a director of PHC. 26 Atty. Lokin explains that any such records and documents with regard to the assets of PHC were under the control and custody of Phillip Brodett (Brodett) and Johnny Tan, who were then the Vice-President and Assistant Vice-President of PHC, respectively. He states that any information regarding the bank accounts of PHC were only known to its management, employees, and accounting officers specifically handling the said accounts and were only disclosed to him upon request with Brodett. Given this arrangement, Atty. Lokin contends that he had no easy access to corporate documents or assets of PHC. 27 ITAaHc
Recommendation and Resolutions of the
In his Report and Recommendation 28 dated April 7, 2010, Investigating Commissioner Norberto B. Ruiz (Investigating Commissioner) of the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) recommended the dismissal of the complaint for failure of the complainant to present clear, convincing, and satisfactory proof required in disbarment proceedings to support the charges against Atty. Lokin.
The Investigating Commissioner found that the loss of the original document, as stated by Atty. Velasco in his Affidavit of Loss, renders doubt on whether the notary public can properly attest to the existence of the Secretary's Certificate. He also found that Atty. Velasco, as the one who notarized the document, did not state that the signatures appearing thereon where those of Atty. Lokin. With the existence and credibility of the Secretary's Certificate in doubt, the Investigating Commissioner held that there is no basis to proceed with the complaint and thus recommended its dismissal. 29
Consequently, the IBP Board of Governors in its Resolution No. XIX-2010-641 30 dated October 9, 2010, resolved to adopt and approve the Report and Recommendation of the Investigating Commissioner after having found the same to be fully supported by the evidence on record and the applicable laws and rules. PHC then proceeded to file its Motion for Reconsideration 31 for the aforesaid Resolution, but it was denied through another Resolution No. XIX-2011-336 32 dated June 26, 2011 by the IBP Board of Governors for being a mere reiteration of matters which were already taken into consideration. Hence, the present Petition for Review filed by PHC.
Ruling of the Court
Upon review of the records and consideration of all pertinent facts, the Court finds it proper to adopt the resolution of the IBP Board of Governors and dismiss the complaint.
For now, the Court deems it wise and prudent to abstain from ruling on any charge, conjecture, or accusation by the parties against each other which are irrelevant to the main issue at hand. We note that there are multiple civil, criminal, and administrative cases the parties filed against each other, some of which are still pending or subject to review or appeal with the proper courts. Accordingly, we cannot consider arguments submitted by both parties before this Court alluding to or involving issues which have not been decided with finality or may yet be the subject of a separate charge without otherwise encroaching on the jurisdiction of the appropriate deciding authorities.
In essence, resolving the issue of whether Atty. Lokin should be meted with the proper disciplinary sanctions as a member of the legal profession boils down to an inquiry into the authenticity and due execution of the contentious Secretary's Certificate, the basis of the administrative charge herein. Otherwise stated, all evidence submitted to prove the existence of the loan contracted by Araneta from the Bank on September 1, 2005 or any damage caused to PHC and its shareholders as a result of the alleged improper assignment of corporate funds become inutile should Atty. Lokin's participation in the matter (i.e., the authenticity and due execution of the Secretary's Certificate) not be proven. CHTAIc
It is well-settled in our jurisdiction that the act of notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. By law, a notarial document is entitled to full faith and credit upon its face. 33 As such, "[i]t enjoys the presumption of regularity and is a prima facie evidence of the facts stated therein — which may only be overcome by evidence that is clear, convincing and more than merely preponderant." 34 Similarly, forgery cannot be presumed and must be proved, as well, by clear, positive, and convincing evidence. 35
Notwithstanding the above, we are not unmindful of the principle that disciplinary proceedings against lawyers are sui generis, in that they are neither civil or criminal actions but rather investigations by the Court into the conduct of its officers. 36 "[A]lthough these proceedings are not, in the strict sense, ordinary actions where trials are held and the rules of procedure apply, the rules on evidence cannot be shunted aside considering that the exercise of one's profession is at stake." 37 This principle finds particular importance in cases where the motive of the complainant in instituting the charges is not beyond suspicion. 38 Considering the amount of administrative cases filed against Lokin by numerous persons affiliated with PHC in whatever capacity — particularly those associated with the group of Bildner and Jose Ma. Ozamiz, who represents PHC in the present Petition for Review — this Court simply cannot set aside Atty. Lokin's allegation that the complaint was instituted as a form of harassment.
While the complainant submitted a certified true copy of the Secretary's Certificate along with a Certification from Atty. Velasco that the same was duly notarized per the records of his office, the circumstances behind its execution and notarization constrain this Court to refrain from readily accepting the document as authentic. In this case, the Best Evidence Rule requires that the original copy of a document must be produced except when, among others, the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror. 39
In his Affidavit of Loss executed January 18, 2008, Atty. Velasco attested to the fact that his Notarial Registry Book covering January 2004 to December 2005 as well as the documents covered by the same period were lost without hope for recovery. 40 However, the Certification dated June 8, 2009 clearly states that the Secretary's Certificate was duly notarized per the records of the office of Atty. Velasco. 41 For obvious reasons, it is impossible for Atty. Velasco to actually certify to either the due notarization of the Secretary's Certificate or to the genuineness and faithfulness of the certified true copy submitted to this Court when such original copy and the Notarial Registry Book where it was entered are lost and cannot be used as reference. EATCcI
Taken altogether, the following circumstances can be considered as badges of bad faith on the part of PHC in submitting a certified true copy of the Secretary's Certificate: (1) the patently false Certification from Atty. Velasco that the Secretary's Certificate was duly notarized and entered into the Notarial Registry Book per his office's records when such records and the notarial book itself are in fact lost; (2) withholding of the fact of loss when such fact that is readily known to Atty. Velasco should be made known at the onset given its significance; (3) the palpable motive of the complainant in filing the instant charge against Atty. Lokin considering the number of civil, criminal, and administrative cases between the main parties and other affiliated or related persons.
In light of the foregoing, this Court finds that the certified true copy of the supposedly notarized Secretary's Certificate should be treated as a private document, at least with regard to its admissibility and necessity of proof of authenticity, considering that it is impossible to refer to any existing original copy for the purpose of ascertaining accuracy and faithfulness. Consequently, the submitted copy of the Secretary's Certificate does not qualify as an exception to the Best Evidence Rule under Section 3 (a), 42 Rule 130 of the Revised Rules on Evidence and is therefore inadmissible in evidence.
With the most recent case of Atty. Rosita L. Dela Fuente Torres, et al. v. Atty. Bayani P. Dalangin, 43 the quantum of proof required in administrative cases, such as the instant disbarment proceeding, is substantial evidence. Substantial evidence is defined as that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 44
Here, the complainant failed to present substantial evidence of its charges against Atty. Lokin as the submitted copy of the Secretary's Certificate, the only nexus of participation by Atty. Lokin to the acts he was accused of and the sole basis of the complaint, is inadmissible in evidence. With the charge left with no leg to stand on, this Court finds it unnecessary to proceed with the instant case.
WHEREFORE, the complaint for disbarment against Atty. Luis K. Lokin, Jr. is DISMISSED for lack of merit. Let this case be considered CLOSEDandTERMINATED. DHITCc
SO ORDERED."Leonardo-De Castro, J., on official leave; Del Castillo, J., designated as Acting Chairperson per Special Order No. 2562 dated June 20, 2018; Gesmundo, J., designated as acting member per Special Order No. 2560 dated May 11, 2018.
Very truly yours,
(SGD.) LIBRADA C. BUENAActing Division Clerk of Court
Footnotes
1.Rollo, pp. 1-12.
2. CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes.
3. Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
4. Rule 1.02 — A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
5. CANON 7 — A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integrated bar.
6. Rule 7.03 — A lawyer shall not engage in conduct that adversely reflects on the fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.
7 CANON 15 — A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients.
8. CANON 17 — A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.
9. CANON 19 — A lawyer shall represent his client with zeal within the bounds of the law.
10. Rule 19.01 — A lawyer shall employ only fair and honest means to attain the lawful objectives of his client.
11.Rollo, p. 2.
12.Id. at 2-3.
13.Id. at 24.
14.Id. at 178.
15.Id. at 16.
16.Id. at 3.
17.Id.
18.Id. at 7.
19.Id. at 28.
20.Id. at 7-8.
21.Id. at 63-78.
22.Id. at 69.
23.Id. at 324-325.
24.Id. at 325-326.
25.Id. at 327-329.
26.Id. at 330-331.
27.Id. at 319 and 330.
28.Id. at 421-426.
29.Id. at 425.
30.Id. at 420.
31.Id. at 427-449.
32.Id. at 715.
33.Gonzales v. Atty. Ramos, 499 Phil. 345, 347 (2005).
34.Heirs of Spouses Angel Liwagon, et al. v. Heirs of Spouses Liwagon, 748 Phil. 675, 686 (2014).
35.Id. at 684.
36.Esquivias v. Court of Appeals, 339 Phil. 184, 193 (1997) citing In the Matter of the Proceedings for Disciplinary Action Against Atty. Almacen, et al. v. Yaptinchay, 142 Phil. 349, 390 (1970).
37.Concepcion v. Atty. Fandiño, Jr., 389 Phil. 474, 482 (2000).
38.Id.
39. Revised Rules on Evidence, Rule 130, Section 3 (a).
Sec. 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror[.]
40.Rollo, pp. 327-328.
41.Id. at 178.
42.See note 39.
43. A.C. No. 10758, December 5, 2017, citing Saladaga v. Astorga, 748 Phil. 1, 16 (2014).
44. Revised Rules on Evidence, Rule 133, Section 5.
Sec. 5. Substantial evidence. — In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.