11. Notarial Practice (AM 02-8-13-SC, as amended)

Notarial Practice (A.M. No. 02-8-13-SC, as amended)

Concept

Notarization is a public function, not merely a service for preparing or witnessing documents. A notarial act gives a document the legal consequences attached to the particular act performed. The 2004 Rules on Notarial Practice regulate who may act as a notary public, how notarial acts are performed, and how those acts are recorded. Their safeguards protect persons who rely on notarized documents and the integrity of transactions in which the documents are used. (A.M. No. 02-8-13-SC, 2004 Rules on Notarial Practice)

Governing provisions

A.M. No. 02-8-13-SC, as amended, is the principal framework for notarial practice. The rules address commissions, authorized acts, identification, personal appearance, certificates, records, and accountability. Electronic notarization is governed by its own applicable rules; it should not be treated as permission to dispense with safeguards simply because the document or process is electronic. (A.M. No. 02-8-13-SC, 2004 Rules on Notarial Practice) (A.M. No. 24-10-14-SC)

Key definitions

• Acknowledgment. The person appears before the notary and acknowledges executing the instrument as that person’s free and voluntary act and deed. It concerns acknowledgment of execution, not an oath that the document’s contents are true. (A.M. No. 02-8-13-SC, 2004 Rules on Notarial Practice, Rule II)
• Jurat. The person appears before the notary, signs the instrument in the notary’s presence, and takes an oath or affirmation as to its contents. An acknowledgment and a jurat therefore serve different purposes. (A.M. No. 02-8-13-SC, 2004 Rules on Notarial Practice, Rule II)
• Competent evidence of identity. This is the means prescribed by the rules for establishing the identity of a person appearing before a notary. Personal appearance and identification are distinct safeguards: proof of identity does not replace the required appearance. (A.M. No. 02-8-13-SC, 2004 Rules on Notarial Practice, Rule II)

How the rules fit together

Qualifications and term determine whether a lawyer holds a valid notarial commission. Powers and limitations determine what the commissioned notary may do. Jurisdiction and place of notarization determine where that authority may be exercised. For each transaction, the notary must identify the person concerned, require the applicable appearance and notarial formalities, and make the required entry in the notarial register. These are connected requirements, not alternatives from which the notary may choose. (A.M. No. 02-8-13-SC, 2004 Rules on Notarial Practice)

Key doctrines

Improper notarization can have consequences beyond the validity or evidentiary treatment of a document. Notarial misconduct may result in revocation of a commission, disqualification from future appointment, and suspension from the practice of law. The sanctions depend on the misconduct established and the circumstances of the case; repeated professional infractions may justify a more severe penalty. (Dimayuga v. Rubia., A.C. No. 8854, 3 July 2018)¹ (Lanuzo v. Bongon., A.C. No. 6737, 23 September 2008)²

Bar tip

Identify the notarial act first. Then ask whether the notary had authority to perform it, whether the required appearance and identification occurred, and whether the act was properly recorded. Do not use acknowledgment and jurat interchangeably. (A.M. No. 02-8-13-SC, 2004 Rules on Notarial Practice)