In the Philippine legal landscape, the role of a government lawyer is multifaceted. Often, these lawyers are called upon to notarize documents involving their own agencies. While this serves administrative efficiency, it navigates a complex web of ethical boundaries and statutory limitations. Understanding the rules governing conflict of interest in this context is crucial for maintaining the integrity of public service and the legal profession.
I. The Legal Basis: Ex Officio Notaries Public
Under the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC), notaries public are generally private practitioners. However, government lawyers may be authorized to act as notaries ex officio.
- Authority: Their authority is usually derived from their specific government positions (e.g., Clerk of Court, Registrar of Deeds, or Department Legal Officers).
- Limitation to Official Functions: As a general rule, government lawyers can only notarize documents related to the functions of their office. They are prohibited from engaging in private notarial practice unless expressly authorized by their department head and permitted by the Supreme Court.
II. The Conflict of Interest Framework
The primary concern when a government lawyer notarizes a transaction for their own agency is the potential for a conflict of interest. This is governed by two major sets of rules:
- The Code of Professional Responsibility and Accountability (CPRA): Lawyers must maintain independence and avoid interests that might influence their professional judgment.
- Republic Act No. 6713: The Code of Conduct and Ethical Standards for Public Officials and Employees prohibits officials from having financial or personal interests in any transaction requiring the approval of their office.
III. Key Prohibitions and Ethical Bounds
To prevent abuses of power and ensure the "disinterestedness" of a notary, the following rules apply:
1. Personal Interest Disqualification
A notary public is disqualified from performing a notarial act if they are a party in interest to the document. In the context of an agency transaction:
- The government lawyer is an agent of the State.
- If the lawyer drafted the contract and then notarized it, questions may arise regarding the neutrality of the acknowledgment. However, if the act is purely ministerial and for the benefit of the government, it is generally allowed, provided no personal gain is involved.
2. The Rule on "Relative" Disqualification
Under the Notarial Rules, a notary cannot notarize a document if the signatory is a relative within the fourth civil degree of consanguinity or affinity. While "the Agency" is a legal entity, the individual officers signing on behalf of the agency must not be closely related to the notarizing lawyer.
3. Prohibition on Charging Fees
Government lawyers acting ex officio are strictly prohibited from charging notarial fees for documents related to official business. Any fees collected for such acts must be remitted to the National Treasury or the specific government fund designated by law. Collecting personal fees for agency transactions is a ground for administrative dismissal and disbarment.
IV. Jurisprudence and Guidelines
The Supreme Court has often emphasized that the act of notarization is "impressed with public interest."
| Aspect | Rule/Guideline |
|---|---|
| Scope of Authority | Must be within the territorial jurisdiction of the court/agency. |
| Document Type | Limited to documents where the Government is a party or has an interest. |
| Private Practice | Forbidden without written authority from the Agency Head and the SC. |
Note: A government lawyer who notarizes a private document (not involving the agency) without authority commits a violation of the "Unauthorized Practice of Law" and can be sanctioned under the CPRA.
V. Risks of Non-Compliance
Failure to adhere to these conflict of interest rules results in severe consequences:
- For the Document: The document may be stripped of its "public instrument" status, reducing it to a private document that requires further proof of authenticity in court.
- For the Lawyer: Administrative liability for "Grave Misconduct," "Violation of the Notarial Rules," or "Conflict of Interest," which can lead to suspension or disbarment.
- For the Agency: The transaction could be questioned or invalidated if it is proven that the notary had a direct, conflicting interest that prejudiced the State.
Summary of Best Practices
To avoid the appearance of impropriety, many government agencies prefer that documents be notarized by a lawyer from a different department or by the Office of the Solicitor General (OSG) or State Prosecutors, depending on the nature of the transaction. This ensures a layer of separation between the person who negotiated the deal and the person who notarizes it.
Would you like me to draft a sample internal policy memorandum for a government agency to regulate the notarial acts of its legal officers?