A.C. No. 9495 - CESAR C. CASTRO, COMPLAINANT, vs. ATTY. ENRICO G. BARIN.R E S O L U T I O N - Supreme Court E-Library

Ruling

WHEREFORE, it is hereby recommended that Respondent Atty. Enrico G. Barin be REPRIMANDED for violation of Canon 15, Rule 15.01, Code of Professional Responsibility, with the WARNING that similar actions in the future will be dealt with appropriately. RESPECTFULLY SUBMITTED. [9] Acting on the Report, the IBP Board of Governors issued Resolution No. XXI-2015-285 [10] dated April 18, 2015, adopting the findings and recommendation of Commissioner Espina with modification, to wit: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED with modification , the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution as Annex "A", considering Respondent's violation of Canon15 and Rule 15.01 of the Code of Professional Responsibility. Hence, Atty. Enrico G. Barin is hereby SUSPENDED from the practice of law for three (3) months . Aggrieved, Atty. Barin filed a verified Motion for Reconsideration, [11] which was denied by the IBP Board of Governors in Resolution No. XXII-2016-630 [12] dated 29 November 2016. Issue 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 complainant's personal appearance. The Court's Ruling After a careful evaluation of the records of the case, the Court resolves to adopt the findings of the IBP-CBD, except as to the imposable penalty. 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. [13] In the instant case, We find that complainant failed to prove by clear and preponderant evidence that his signature in the affidavit of desistance was forged or falsified by Atty. Barin. We cannot give evidentiary weight to mere assumption in the absence of any evidence to support such claim. Mere suspicion and speculation is not enough. However, the Court finds Atty. Barin's act of notarizing complainant's affidavit of desistance violative of Rule 15.01, Canon 15 of the Code of Professional Responsibility which reads: Canon 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients. Rule 15.01 - 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 concept of conflict of interest was discussed in Hornilla v. Atty. Salunat , [14] to wit: 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 lawye