Legal Ethics

ADELINO H. LEDESMA, petitioner,

vs.
HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of
First Instance of Negros Occidental, Branch I, Silay
City, respondent.

What is assailed in this certiorari proceeding is an order of

respondent Judge denying a motion filed by petitioner to be
allowed to withdraw as counsel de oficio. 1 One of the grounds for
such a motion was his allegation that with his appointment as
Election Registrar by the Commission on Elections, he was not in a
position to devote full time to the defense of the two accused. The
denial by respondent Judge of such a plea, notwithstanding the
conformity of the defendants, was due "its principal effect [being]
to delay this case." 2 It was likewise noted that the prosecution had
already rested and that petitioner was previously counsel de parte,
his designation in the former category being precisely to protect
him in his new position without prejudicing the accused. It cannot
be plausibly asserted that such failure to allow withdrawal of de
oficio counsel could ordinarily be characterized as a grave abuse of
discretion correctible by certiorari. There is, however, the
overriding concern for the right to counsel of the accused that
must be taken seriously into consideration. In appropriate cases, it
should tilt the balance. This is not one of them. What is easily
discernible was the obvious reluctance of petitioner to comply with
the responsibilities incumbent on the counsel de oficio. Then, too,
even on the assumption that he continues in his position, his
volume of work is likely to be very much less at present. There is
not now the slightest pretext for him to shirk an obligation a
member of the bar, who expects to remain in good standing,
should fulfill. The petition is clearly without merit.
According to the undisputed facts, petitioner, on October 13, 1964,
was appointed Election Registrar for the Municipality of Cadiz,
Province of Negros Occidental. Then and there, he commenced to
discharge its duties. As he was counsel de parte for one of the
accused in a case pending in the sala of respondent Judge, he filed

a motion to withdraw as such. Not only did respondent Judge deny

such motion, but he also appointed him counsel de oficio for the
two defendants. Subsequently, on November 3, 1964, petitioner
filed an urgent motion to be allowed to withdraw as counsel de
oficio, premised on the policy of the Commission on Elections to
require full time service as well as on the volume or pressure of
work of petitioner, which could prevent him from handling
adequately the defense. Respondent Judge, in the challenged order
of November 6, 1964, denied said motion. A motion for
reconsideration
having
proved
futile,
he
instituted
this certiorari proceeding. 3
As noted at the outset, the petition must fail.
1. The assailed order of November 6, 1964 denying the urgent
motion of petitioner to withdraw as counsel de oficio speaks for
itself. It began with a reminder that a crime was allegedly
committed on February 17, 1962, with the proceedings having
started in the municipal court of Cadiz on July 11, 1962. Then
respondent Judge spoke of his order of October 16, 1964 which
reads thus: "In view of the objection of the prosecution to the
motion for postponement of October 15, 1964 (alleging that
counsel for the accused cannot continue appearing in this case
without the express authority of the Commission on Elections); and
since according to the prosecution there are two witnesses who are
ready to take the stand, after which the government would rest,
the motion for postponement is denied. When counsel for the
accused assumed office as Election Registrar on October 13, 1964,
he knew since October 2, 1964 that the trial would be resumed
today. Nevertheless, in order not to prejudice the civil service
status of counsel for the accused, he is hereby designated
counsel de oficio for the accused. The defense obtained
postponements on May 17, 1963, June 13, 1963, June 14, 1963,
October 28, 1963, November 27, 1963, February 11, 1964, March
9, 1964, June 8, 1964 July 26, 1964, and September 7,
1964." 4 Reference was then made to another order of February 11,
1964: "Upon petition of Atty. Adelino H. Ledesma, alleging
indisposition, the continuation of the trial of this case is hereby
transferred to March 9, 1964 at 8:30 in the morning. The defense is

Legal Ethics

reminded that at its instance, this case has been postponed at

least eight (8) times, and that the government witnesses have to
come all the way from Manapala." 5 After which, it was noted in
such order that there was no incompatibility between the duty of
petitioner to the accused and to the court and the performance of
his task as an election registrar of the Commission on Elections and
that the ends of justice "would be served by allowing and requiring
Mr. Ledesma to continue as counsel de oficio, since the prosecution
has already rested its case." 6
2. What is readily apparent therefore, is that petitioner was less
than duly mindful of his obligation as counsel de oficio. He ought to
have known that membership in the bar is a privilege burdened
with conditions. It could be that for some lawyers, especially the
neophytes in the profession, being appointed counsel de oficio is
an irksome chore. For those holding such belief, it may come as a
surprise that counsel of repute and of eminence welcome such an
opportunity. It makes even more manifest that law is indeed a
profession dedicated to the ideal of service and not a mere trade. It
is understandable then why a high degree of fidelity to duty is
required of one so designated. A recent statement of the doctrine
is found in People v. Daban: 7 "There is need anew in this
disciplinary proceeding to lay stress on the fundamental postulate
that membership in the bar carries with it a responsibility to live up
to its exacting standard. The law is a profession, not a trade or a
craft. Those enrolled in its ranks are called upon to aid in the
performance of one of the basic purposes of the State, the
administration of justice. To avoid any frustration thereof,
especially in the case of an indigent defendant, a lawyer may be
required to act as counsel de oficio. The fact that his services are
rendered without remuneration should not occasion a diminution in
his zeal. Rather the contrary. This is not, of course, to ignore that
other pressing matters do compete for his attention. After all, he
has his practice to attend to. That circumstance possesses a high
degree of relevance since a lawyer has to live; certainly he cannot
afford either to neglect his paying cases. Nonetheless, what is
incumbent upon him as counsel de oficio must be fulfilled." 8
So it has been from the 1905 decision of In re Robles
Lahesa, 9 where respondent was de oficio counsel, the opinion
penned by Justice Carson making clear: "This Court should exact

from its officers and subordinates the most scrupulous

performance of their official duties, especially when negligence in
the performance of those duties necessarily results in delays in the
prosecution of criminal cases ...." 10 Justice Sanchez in People v.
Estebia 11 reiterated such a view in these words: "It is true that he
is a court-appointed counsel. But we do say that as such
counsel de oficio, he has as high a duty to the accused as one
employed and paid by defendant himself. Because, as in the case
of the latter, he must exercise his best efforts and professional
ability in behalf of the person assigned to his care. He is to render
effective assistance. The accused-defendant expects of him due
diligence, not mere perfunctory representation. For, indeed a
lawyer who is a vanguard in the bastion of justice is expected to
have a bigger dose of social conscience and a little less of selfinterest." 12
The weakness of the petition is thus quite evident.
3. If respondent Judge were required to answer the petition, it was
only due to the apprehension that considering the frame of mind of
a counsel loath and reluctant to fulfill his obligation, the welfare of
the accused could be prejudiced. His right to counsel could in
effect be rendered nugatory. Its importance was rightfully stressed
by Chief Justice Moran in People v. Holgado in these words: "In
criminal cases there can be no fair hearing unless the accused be
given an opportunity to be heard by counsel. The right to be heard
would be of little avail if it does not include the right to be heard by
counsel. Even the most intelligent or educated man may have no
skill in the science of law, particularly in the rules of procedure,
and; without counsel, he may be convicted not because he is guilty
but because he does not know how to establish his innocence. And
this can happen more easily to persons who are ignorant or
uneducated. It is for this reason that the right to be assisted by
counsel is deemed so important that it has become a constitutional
right and it is so implemented that under rules of procedure it is
not enough for the Court to apprise an accused of his right to have
an attorney, it is not enough to ask him whether he desires the aid
of an attorney, but it is essential that the court should assign
one de oficio for him if he so desires and he is poor or grant him a
reasonable
time
to
procure
an
attorney
of
his
own." 13 So it was under the previous Organic Acts. 14 The present

Legal Ethics

Constitution is even more emphatic. For, in addition to reiterating

that the accused "shall enjoy the right to be heard by himself and
counsel," 15 there is this new provision: "Any person under
investigation for the commission of an offense shall have the right
to remain silent and to counsel, and to be informed of such right.
No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession
obtained in violation of this section shall be inadmissible in
evidence." 16
Thus is made manifest the indispensable role of a member of the
Bar in the defense of an accused. Such a consideration could have
sufficed for petitioner not being allowed to withdraw as counsel de
oficio. For he did betray by his moves his lack of enthusiasm for the
task entrusted to him, to put matters mildly. He did point though to
his responsibility as an election registrar. Assuming his good faith,
no such excuse could be availed now. There is not likely at present,
and in the immediate future, an exorbitant demand on his time. It
may likewise be assumed, considering what has been set forth
above, that petitioner would exert himself sufficiently to perform
his task as defense counsel with competence, if not with zeal, if
only to erase doubts as to his fitness to remain a member of the
profession in good standing. The admonition is ever timely for
those enrolled in the ranks of legal practitioners that there are
times, and this is one of them, when duty to court and to client
takes precedence over the promptings of self-interest.
WHEREFORE, the petition for certiorari is dismissed. Costs against
petitioner.

Legal Ethics

DOMINADOR P. BURBE, complainant, vs. ATTY. ALBERTO C.

MAGULTA, respondent.

That having the need to legally recover from the parties to be sued
I, on January 4, 1999, deposited the amount of P25,000.00 to Atty.
Alberto C. Magulta, copy of the Receipt attached as Annex B, upon
the instruction that I needed the case filed immediately;

After agreeing to take up the cause of a client, a lawyer owes

fidelity to both cause and client, even if the client never paid any
fee for the attorney-client relationship. Lawyering is not a business;
it is a profession in which duty to public service, not money, is the
primary consideration.

That a week later, I was informed by Atty. Alberto C. Magulta that

the complaint had already been filed in court, and that I should
receive notice of its progress;

The Case
Before us is a Complaint for the disbarment or suspension or
any other disciplinary action against Atty. Alberto C. Magulta. Filed
by Dominador P. Burbe with the Commission on Bar Discipline of
the Integrated Bar of the Philippines (IBP) on June 14, 1999, the
Complaint is accompanied by a Sworn Statement alleging the
following:
xxxxxxxxx
That in connection with my business, I was introduced to Atty.
Alberto C. Magulta, sometime in September, 1998, in his office at
the Respicio, Magulta and Adan Law Offices at 21-B Otero Building,
Juan de la Cruz St., Davao City, who agreed to legally represent me
in a money claim and possible civil case against certain parties for
breach of contract;
That consequent to such agreement, Atty. Alberto C. Magulta
prepared for me the demand letter and some other legal papers,
for which services I have accordingly paid; inasmuch, however,
that I failed to secure a settlement of the dispute, Atty. Magulta
suggested that I file the necessary complaint, which he
subsequently drafted, copy of which is attached as Annex A, the
filing fee whereof will require the amount of Twenty Five Thousand
Pesos (P25,000.00);

That in the months that followed, I waited for such notice from the
court or from Atty. Magulta but there seemed to be no progress in
my case, such that I frequented his office to inquire, and he would
repeatedly tell me just to wait;
That I had grown impatient on the case, considering that I am told
to wait [every time] I asked; and in my last visit to Atty. Magulta
last May 25, 1999, he said that the court personnel had not yet
acted on my case and, for my satisfaction, he even brought me to
the Hall of Justice Building at Ecoland, Davao City, at about 4:00
p.m., where he left me at the Office of the City Prosecutor at the
ground floor of the building and told to wait while he personally
follows up the processes with the Clerk of Court; whereupon, within
the hour, he came back and told me that the Clerk of Court was
absent on that day;
That sensing I was being given the run-around by Atty. Magulta, I
decided to go to the Office of the Clerk of Court with my draft of
Atty. Magultas complaint to personally verify the progress of my
case, and there told that there was no record at all of a case filed
by Atty. Alberto C. Magulta on my behalf, copy of the Certification
dated May 27, 1999, attached as Annex C;
That feeling disgusted by the way I was lied to and treated, I
confronted Atty. Alberto C. Magulta at his office the following day,
May 28, 1999, where he continued to lie to with the excuse that
the delay was being caused by the court personnel, and only when
shown the certification did he admit that he has not at all filed the
complaint because he had spent the money for the filing fee for his
own purpose; and to appease my feelings, he offered to reimburse

Legal Ethics

me by issuing two (2) checks, postdated June 1 and June 5, 1999,

in the amounts of P12,000.00 and P8,000.00, respectively, copies
of which are attached as Annexes D and E;
That for the inconvenience, treatment and deception I was made to
suffer, I wish to complain Atty. Alberto C. Magulta for
misrepresentation, dishonesty and oppressive conduct;
x x x x x x x x x.[1]
On August 6, 1999, pursuant to the July 22, 1999 Order of the
IBP Commission on Bar Discipline, [2] respondent filed his
Answer[3] vehemently denying the allegations of complainant for
being totally outrageous and baseless. The latter had allegedly
been introduced as a kumpadre of one of the formers law partners.
After their meeting, complainant requested him to draft a demand
letter against Regwill Industries, Inc. -- a service for which the
former never paid. After Mr. Said Sayre, one of the business
partners of complainant, replied to this letter, the latter requested
that another demand letter -- this time addressed to the former -be drafted by respondent, who reluctantly agreed to do so. Without
informing the lawyer, complainant asked the process server of the
formers law office to deliver the letter to the addressee.
Aside from attending to the Regwill case which had required a
three-hour meeting, respondent drafted a complaint (which was
only for the purpose of compelling the owner to settle the case)
and prepared a compromise agreement. He was also requested by
complainant to do the following:
1. Write a demand letter addressed to Mr. Nelson Tan
2. Write a demand letter addressed to ALC Corporation
3. Draft a complaint against ALC Corporation
4. Research on the Mandaue City property claimed by
complainants wife

All of these respondent did, but he was never paid for his
services by complainant.
Respondent likewise said that without telling him why,
complainant later on withdrew all the files pertinent to the Regwill
case. However, when no settlement was reached, the latter
instructed him to draft a complaint for breach of contract.
Respondent, whose services had never been paid by complainant
until this time, told the latter about his acceptance and legal fees.
When told that these fees amounted to P187,742 because the
Regwill claim was almost P4 million, complainant promised to pay
on installment basis.
On January 4, 1999, complainant gave the amount of P25,000
to respondents secretary and told her that it was for the filing fee
of the Regwill case. When informed of the payment, the lawyer
immediately called the attention of complainant, informing the
latter of the need to pay the acceptance and filing fees before the
complaint could be filed. Complainant was told that the amount he
had paid was a deposit for the acceptance fee, and that he should
give the filing fee later.
Sometime in February 1999, complainant told respondent to
suspend for the meantime the filing of the complaint because the
former might be paid by another company, the First Oriental
Property Ventures, Inc., which had offered to buy a parcel of land
owned by Regwill Industries. The negotiations went on for two
months, but the parties never arrived at any agreement.
Sometime in May 1999, complainant again relayed to
respondent his interest in filing the complaint. Respondent
reminded him once more of the acceptance fee. In response,
complainant proposed that the complaint be filed first before
payment of respondents acceptance and legal fees. When
respondent refused, complainant demanded the return of
the P25,000. The lawyer returned the amount using his own
personal checks because their law office was undergoing extensive
renovation at the time, and their office personnel were not
reporting regularly. Respondents checks were accepted and
encashed by complainant.

Legal Ethics

Respondent averred that he never inconvenienced, mistreated

or deceived complainant, and if anyone had been shortchanged by
the undesirable events, it was he.
The IBPs Recommendation
In its Report and Recommendation dated March 8, 2000, the
Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP) opined as follows:
x x x [I]t is evident that the P25,000 deposited by complainant with
the Respicio Law Office was for the filing fees of the Regwill
complaint. With complainants deposit of the filing fees for the
Regwill complaint, a corresponding obligation on the part of
respondent was created and that was to file the Regwill complaint
within the time frame contemplated by his client, the complainant.
The failure of respondent to fulfill this obligation due to his misuse
of the filing fees deposited by complainant, and his attempts to
cover up this misuse of funds of the client, which caused
complainant additional damage and prejudice, constitutes highly
dishonest conduct on his part, unbecoming a member of the law
profession. The subsequent reimbursement by the respondent of
part of the money deposited by complainant for filing fees, does
not exculpate the respondent for his misappropriation of said
funds. Thus, to impress upon the respondent the gravity of his
offense, it is recommended that respondent be suspended from the
practice of law for a period of one (1) year.[4]
The Courts Ruling
We agree with the Commissions recommendation.
Main Issue:
Misappropriation of Clients Funds
Central to this case are the following alleged acts of
respondent lawyer: (a) his non-filing of the Complaint on behalf of

his client and (b) his appropriation for himself of the money given
for the filing fee.
Respondent claims that complainant did not give him the filing
fee for the Regwill complaint; hence, the formers failure to file the
complaint in court. Also, respondent alleges that the amount
delivered by complainant to his office on January 4, 1999 was for
attorneys fees and not for the filing fee.
We are not persuaded. Lawyers must exert their best efforts
and ability in the prosecution or the defense of the clients cause.
They who perform that duty with diligence and candor not only
protect the interests of the client, but also serve the ends of
justice. They do honor to the bar and help maintain the respect of
the community for the legal profession. [5] Members of the bar must
do nothing that may tend to lessen in any degree the confidence of
the public in the fidelity, the honesty, and integrity of the
profession.[6]
Respondent wants this Court to believe that no lawyer-client
relationship existed between him and complainant, because the
latter never paid him for services rendered. The former adds that
he only drafted the said documents as a personal favor for
the kumpadre of one of his partners.
We disagree. A lawyer-client relationship was established from
the very first moment complainant asked respondent for legal
advice regarding the formers business. To constitute professional
employment, it is not essential that the client employed the
attorney professionally on any previous occasion. It is not
necessary that any retainer be paid, promised, or charged; neither
is it material that the attorney consulted did not afterward handle
the case for which his service had been sought.
If a person, in respect to business affairs or troubles of any
kind, consults a lawyer with a view to obtaining professional advice
or assistance, and the attorney voluntarily permits or acquiesces
with the consultation, then the professional employment is
established.[7]

Legal Ethics

Likewise, a lawyer-client relationship exists notwithstanding

the close personal relationship between the lawyer and the
complainant or the nonpayment of the formers fees. [8] Hence,
despite the fact that complainant was kumpadre of a law partner of
respondent, and that respondent dispensed legal advice to
complainant as a personal favor to the kumpadre, the lawyer was
duty-bound to file the complaint he had agreed to prepare -- and
had actually prepared -- at the soonest possible time, in order to
protect the clients interest. Rule 18.03 of the Code of Professional
Responsibility provides that lawyers should not neglect legal
matters entrusted to them.
This Court has likewise constantly held that once lawyers
agree to take up the cause of a client, they owe fidelity to such
cause and must always be mindful of the trust and confidence
reposed in them.[9] They owe entire devotion to the interest of the
client, warm zeal in the maintenance and the defense of the clients
rights, and the exertion of their utmost learning and abilities to the
end that nothing be taken or withheld from the client, save by the
rules of law legally applied.[10]
Similarly unconvincing is the explanation of respondent that
the receipt issued by his office to complainant on January 4, 1999
was erroneous. The IBP Report correctly noted that it was quite
incredible for the office personnel of a law firm to be prevailed
upon by a client to issue a receipt erroneously indicating payment
for something else. Moreover, upon discovering the mistake -- if
indeed it was one -- respondent should have immediately taken
steps to correct the error. He should have lost no time in calling
complainants attention to the matter and should have issued
another receipt indicating the correct purpose of the payment.
The Practice of Law -- a
Profession, Not a Business
In this day and age, members of the bar often forget that the
practice of law is a profession and not a business. [11] Lawyering is
not primarily meant to be a money-making venture, and law
advocacy is not a capital that necessarily yields profits. [12] The

gaining of a livelihood is not a professional but a secondary

consideration.[13] Duty to public service and to the administration of
justice should be the primary consideration of lawyers, who must
subordinate their personal interests or what they owe to
themselves. The practice of law is a noble calling in which
emolument is a byproduct, and the highest eminence may be
attained without making much money.[14]
In failing to apply to the filing fee the amount given by
complainant -- as evidenced by the receipt issued by the law office
of respondent -- the latter also violated the rule that lawyers must
be scrupulously careful in handling money entrusted to them in
their professional capacity.[15] Rule 16.01 of the Code of
Professional Responsibility states that lawyers shall hold in trust all
moneys of their clients and properties that may come into their
possession.
Lawyers who convert the funds entrusted to them are in gross
violation of professional ethics and are guilty of betrayal of public
confidence in the legal profession.[16] It may be true that they have
a lien upon the clients funds, documents and other papers that
have lawfully come into their possession; that they may retain
them until their lawful fees and disbursements have been paid;
and that they may apply such funds to the satisfaction of such fees
and disbursements. However, these considerations do not relieve
them of their duty to promptly account for the moneys they
received. Their failure to do so constitutes professional misconduct.
[17]
In any event, they must still exert all effort to protect their
clients interest within the bounds of law.
If much is demanded from an attorney, it is because the
entrusted privilege to practice law carries with it correlative duties
not only to the client but also to the court, to the bar, and to the
public.[18] Respondent fell short of this standard when he converted
into his legal fees the filing fee entrusted to him by his client and
thus failed to file the complaint promptly. The fact that the former
returned the amount does not exculpate him from his breach of
duty.

Legal Ethics

On the other hand, we do not agree with complainants plea to

disbar respondent from the practice of law. The power to disbar
must be exercised with great caution. Only in a clear case of
misconduct that seriously affects the standing and the character of
the bar will disbarment be imposed as a penalty. [19]
WHEREFORE, Atty. Alberto C. Magulta is found guilty of
violating Rules 16.01 and 18.03 of the Code of Professional
Responsibility and is hereby SUSPENDED from the practice of law
for a period of one (1) year, effective upon his receipt of this
Decision. Let copies be furnished all courts as well as the Office of
the Bar Confidant, which is instructed to include a copy in
respondents file.
SO ORDERED.

Legal Ethics

PEOPLE OF THE PHILIPPINES, complainant

vs.
ATTY. FE T. TUANDA, respondent.

In a Motion to Lift Order of Suspension dated 12 July 1989,

respondent Fe T. Tuanda, a member of the Philippine Bar, asks this
Court to lift the suspension from the practice of law imposed upon
her by a decision of the Court of Appeals dated 17 October 1988 in
C.A.-G.R. CR No. 05093.
On 17 December 1983, respondent received from one Herminia A.
Marquez several pieces of jewelry, with a total stated value of
P36,000.00, for sale on a commission basis, with the condition that
the respondent would turn over the sales proceeds and return the
unsold items to Ms. Marquez on or before 14 February 1984.
Sometime in February 1984, respondent, instead of returning the
unsold pieces of jewelry which then amounted to approximately
P26,250.00, issued three checks: (a) a check dated 16 February
1984 for the amount of P5,400.00; (b) a check dated 23 February
1984 also for the amount of P5,400.00; and (c) a check dated 25
February 1984 for the amount of P15,450.00. Upon presentment
for payment within ninety (90) days after their issuance, all three
(3) checks were dishonored by the drawee bank, Traders Royal
Bank, for insufficiency of funds. Notwithstanding receipt of the
notice of dishonor, respondent made no arrangements with the
bank concerning the honoring of checks which had bounced and
made no effort to settle her obligations to Ms. Marquez.
Consequently, four (4) informations were filed against respondent
with the Regional Trial Court of Manila: (a) one for estafa, docketed
as Criminal Case No. 85-38358; and (b) three (3) for violation of
B.P. Blg. 22, docketed respectively as Criminal Cases Nos. 8538359, 85-38360 and 85-38361. In due time, after trial, the trial
court rendered a decision dated 25 August 1987 which:

(b) convicted respondent of violation of B.P. Blg. 22

in all three (3) cases, and sentenced respondent to
pay a fine of P6,000.00, with subsidiary
imprisonment in case of insolvency and to
indemnify the complainant in the amount of
P5,400.00 in Criminal Case No. 8538359;
to pay a fine of P 6,000.00, with subsidiary
imprisonment in case of insolvency and to
indemnify the complainant in the amount of
P5,400.00, in Criminal Case No. 85-38360; and
to pay a fine of P16,000.00, with subsidiary
imprisonment in case of insolvency, and to
indemnify the complainant in the amount of
P15,450.00, in Criminal Case No. 85-38361, and to
pay the costs in all three (3) cases.
On appeal, the Court of Appeals in C.A.-G.R. CR No. 05093
affirmed in toto the decision of the trial court but, in addition,
suspended respondent Tuanda from the practice of law. The
pertinent portion of the decision read as follows:
For reasons above stated and finding the evidence
sufficient to sustain the conviction, the judgment is
hereby AFFIRMED subject to this modification.
It appearing from the records that the accused Fe
Tuanda is a member of the Bar, and the offense for
(sic) which she is found guilty involved moral
turpitude, she is hereby ordered suspended from
the practice of law and shall not practice her
profession until further action from the Supreme
Court, in accordance with Sections 27 and 28 of
Rule 138 of the Rules of Court. A copy of this
decision must be forwarded to the Supreme Court
as required by Section 29 of the same Rule.

(a) acquitted respondent of the charge of estafa;

and

Legal Ethics

SO ORDERED.

On 16 December 1988, respondent filed a Notice of Appeal with

the Court of Appeals. The Court of Appeals, in a Resolution dated 9
January 1989, noted respondent's Notice of Appeal and advised her
"to address her Notice of Appeal to the Honorable Supreme Court,
the proper forum." On 1 February 1989, respondent filed with this
Court a Notice of Appeal.
In a Resolution dated 31 May 1989, the Supreme Court noted
without action respondent's Notice of Appeal and declared that the
Court of Appeals' decision of 17 October 1988 had become final
and executory upon expiration of the period for filing a petition for
review on certiorari on 16 December 1988. In that Resolution, the
Court found that respondent had lost her right to appeal
by certiorari when she posted with this Court a Notice of Appeal
instead of filing a petition for review on certiorari under Section 1,
Rule 45 of the Revised Rules of Court within the reglementary
period.
In the instant Motion to Lift Order of Suspension, respondent
states:
that suspension from the practice of law is indeed
a harsh if not a not painful penalty aggravating the
lower court's penalty of fine considering that
accused-appellant's action on the case during the
trial on the merits at the lower court has always
been motivated purely by sincere belief that she is
innocent of the offense charged nor of the intention
to cause damage to the herein plaintiff-appellee.
We read the above statement as a claim by the respondent that,
she had not violated her oath as a member of the Philippine Bar
upon the ground that when she issued the checks which bounced,
she did not intend to cause damage to complainant Ms. Marquez.
The Court affirms the suspension from the practice of law imposed
by the Court of Appeals upon respondent Tuanda. The Court of
Appeals correctly ruled that "the offense [of] which she is found

guilty involved moral turpitude." We should add that violation of

B.P. Blg. 22 is a serious criminal offense which deleteriously affects
public interest and public order. In Lozano v. Martinez, 2 the Court
explained the nature of the offense of violation of B.P. Blg. 22 in the
following terms:
xxx xxx xxx
The gravamen of the offense punished by B.P. Blg.
22 is the act of making and issuing a worthless
check or a check that is dishonored upon its
presentation for payment. . . . The thrust of the law
is to prohibit under pain of penal sanctions, the
making of worthless checks and putting them in
circulation. Because of its deleterious effects on
the public interest, the practice is prescribed by
the law. The law punishes the act not as an offense
against property but an offense against public
order.
xxx xxx xxx
The effects of the issuance of a worthless check
transcends the private interests of the parties
directly involved in the transaction and touches the
interests of the community at large. The mischief it
creates is not only a wrong to the payee or holder,
but also an injury to the public. The harmful
practice of putting valueless commercial papers in
circulation, multiplied a thousandfold, can very well
pollute the channels of trade and commerce, injure
the banking system and eventually hurt the
welfare of society and the public interest. 3 (Italics
supplied)
Respondent was thus correctly suspended from the practice of law
because she had been convicted of crimes involving moral
turpitude. Sections 27 and 28 of Rule 138 of the Revised Rules of
Court provide as follows:

10

Legal Ethics

Sec. 27. Attorneys renewed or suspended by

Supreme Court on what grounds. A member of the
bar may be removed or suspended from his office
as attorney by the Supreme Court of any deceit,
malpractice, or other gross misconduct in such
office, grossly immoral conduct, or by reason of his
conviction of a crime involving moral turpitude, or
for any violation of the oath which he is required to
take before admission to practice, or for a wilful
disobedience of any lawful order of a superior
court, or for corruptly or wilfully appearing as an
attorney for a party to a case without authority so
to do. The practice of soliciting cases at law for the
purpose of gain, either personally or through paid
agents or brokers, constitutes malpractice. (Italics
supplied)

its continued possession is also essential for

remaining in the practice of law. 5
ACCORDINGLY, the Court Resolved to DENY the Motion to Lift Order
of Suspension. Respondent shall remain suspended from the
practice of law until further orders from this Court. A copy of this
Resolution shall be forwarded to the Bar Confidant and to the
Integrated Bar of the Philippines and spread on the record of
respondent.

Sec. 28. Suspension of attorney by the Court of

Appeals or a Court of First Instance. The Court of
Appeals or a Court of First Instance may suspend
an attorney from practice for any of the causes
named in the last preceding section, and after such
suspension such attorney shall not practice his
profession until further action of the Supreme Court
in the premises. (Italics supplied)
We should add that the crimes of which respondent was convicted
also import deceit and violation of her attorney's oath and the
Code of Professional Responsibility under both of which she was
bound to "obey the laws of the land." Conviction of a crime
involving moral turpitude might not (as in the instant case,
violation of B.P. Blg. 22 does not) relate to the exercise of the
profession of a lawyer; however, it certainly relates to and affects
the good moral character of a person convicted of such offense.
In Melendrez v. Decena, 4 this Court stressed that:
the nature of the office of an attorney at law
requires that she shall be a person of good moral
character. This qualification is not only a condition
precedent to an admission to the practice of law;

11

Legal Ethics

NARCISO MELENDREZ and ERLINDA DALMAN, complainants,

vs.
ATTY. REYNERIO I. DECENA, respondent.

In a sworn complaint 1 dated 25 September 1979, the spouses

Erlinda Dalman and Narciso Melendrez charged Reynerio I. Decena,
a member of the Philippine Bar, with malpractice and breach of
trust. The complainant spouses alleged, among others, that
respondent had, by means of fraud and deceit, taken advantage of
their precarious financial situation and his knowledge of the law to
their prejudice, succeeded in divesting them of their only
residential lot in Pagadian City; that respondent, who was their
counsel in an estafa case against one Reynaldo Pineda, had
compromised that case without their authority.
In his answer dated 18 March 1980, respondent denied all the
charges levelled against him and prayed for the dismissal of the
complaint.
By resolution dated 14 April 1980, the administrative complaint
was referred to the Office of the Solicitor General for investigation,
report and recommendation.
Accordingly, the Solicitor General forthwith deputized the City
Fiscal of Pagadian City, Jorge T. Almonte, to conduct the necessary
investigation, with instructions to submit thereafter this report and
recommendation thereon. Fiscal Almonte held several hearings on
the administrative case until 15 July 1982, when he requested the
Solicitor General to release him from the duty of investigating the
case.
On 10 September 1982, the Solicitor General granted Fiscal
Almonte's request and in his stead appointed the Provincial Fiscal
of Zamboanga del Sur, Pedro S. Jamero, who resumed hearings on
15 June 1983.

Respondent filed with this Court on 9 June 1987, a motion seeking

to inhibit Fiscal Jamero from hearing the case followed by an urgent
motion for indefinite postponement of the investigation. Both
motions were denied by the Court in a Resolution dated 21
September 1987 with instructions to the Solicitor General to
complete the investigation of the administrative case and to render
his report and recommendation thereon within thirty (30) days
from notice.
On 19 July 1988, the Solicitor General submitted his Report and
Recommendation 2 dated 21 June 1988. In as Report, after setting
out the facts and proceedings held in the present case, the
Solicitor General presented the following:
FINDINGS
Complainants allege that on August 5, 1975, they
obtained from respondent a loan of P 4,000.00.
This loan was secured by a real estate mortgage
(Annex C, Complainants' Complaint, p. 16,
records).lwph1.t In the said Real Estate
Mortgage document, however, it was made to
appear that the amount borrowed by complainants
was P5,000.00. Confronted by this discrepancy,
respondent assured complainants that said
document was a mere formality, and upon such
assurance, complainants signed the same. The
document was brought by complainant Narciso
Melendres to a Notary Public for notarization. After
the same was notarized, he gave the document to
respondent. Despite the assurance, respondent
exacted from complainants P500.00 a month as
payment for what is beyond dispute usurious
interest on the P5,000.00 loan. Complainants
religiously paid the obviously usurious interest for
three months: September, October and November,
1975. Then they stopped paying due to financial
reverses. In view of their failure to pay said
amounts as interest, respondent prepared a new

12

Legal Ethics

document on May 7, 1976, a Real Estate Mortgage

(Annex D, Complaint, p. 18, records) over the same
lot 3125-C, replacing the former real estate
mortgage dated August 5, 1975, but this time the
sum indicated in said new contract of mortgage is
P 10,000.00, purportedly with interest at 19% per
annum. In this new Real Estate Mortgage, a special
power of attorney in favor of respondent was
inserted, authorizing him to sell the mortgaged
property at public auction in the event
complainants fail to pay their obligation on or
before May 30, 1976. Without explaining the
provisions of the new contract to complainants,
respondent insisted that complainants sign the
same, again upon the assurance that the
document was a mere formality. Unsuspecting of
the motive of respondent, complainants signed the
document. Complainants Narciso Melendres again
brought the same document to a Notary Public for
notarization. After the document was notarized, he
brought the same to respondent without getting a
copy of it.
Complainants, relying on the assurance of the
respondent that the second Real Estate Mortgage
was but a formality, neither bothered to ask from
respondent the status of their lot nor tried to pay
their obligation. For their failure to pay the
obligation, the respondent on October 12, 1976,
applied for the extrajudicial foreclosure of the
second real estate mortgage (Exhibit 16,
Respondent's Position Paper). All the requirements
of Act No. 3135, as amended, re extrajudicial sale
of mortgage were ostensibly complied with by
respondent. Hence, finally, title was transferred to
him, and on June 20, 1979, respondent sold the
involved
property
to
Trinidad
Ylanan
for
P12,000.00.
When informed of the above by one Salud
Australlado on the first week of March 1979 (see

Sworn
Statement
of
complainant
Narciso
Melendres, p. 6, Folder No. 2 of case), and not
having known the legal implications of the
provisions of the second Real Estate Mortgage
which they had executed, complainants could not
believe that title to their lot had already been
transferred to respondent and that respondent had
already sold the same to a third person.
Upon learning of the sale in March, 1979,
complainants tried to raise the amount of
P10,000.00 and went to respondent's house on
May 30, 1979 to pay their obligation, hoping that
they could redeem their property, although three
years had already lapsed from the date of the
mortgage.
Respondent did not accept the proffered
P10,000.00, but instead gave complainants a sheet
of paper (Annex B, Complainants' Position Paper),
which indicated that the total indebtedness had
soared to P20,400.00. The computation was made
in respondent's own handwriting. Complainants
went home with shattered hopes and with grief in
their hearts. Hence, the instant competent for
disbarment against respondent filed on October 5,
1979.
Respondent DENIES all the allegations of
complainants. He maintains that what appears on
the two documents allegedly executed by
complainants, i.e., that they obtained a loan of
P5,000.00 on August 5, 1975 and another
P10,000.00 on May 7,1976, is allegedly the truth,
and claims that he in truth delivered the alleged
amount of P5,000.00 to complainants and not
P4,000.00. With respect to the second loan,
respondent
claims
that
he
delivered
to
complainants P8,000.00, plus the P2,000.00 loan
previously extended [to] complainants [by] one

13

Legal Ethics

Regino Villanueva, which loan had been indorsed to

respondent for collection, thus making a total of
P10,000.00, as appearing on said document.
Respondent denies that he exacted usurious
interest of 10% a month or P500.00 from
complainants. He asserts that the fact that
complainants were able to secure a loan from the
Insular Bank of Asia and America (IBAA) only
proves the truth of his allegation that the title of
the property, at the time complainants obtained a
loan from IBAA on April 1976, was clear of any
encumbrance, since complainants had already paid
the original loan of P5,000.00 obtained from
respondent; that complainants knew fully well all
the conditions of said mortgage; and that his
acquisition of the property in question was in
accordance with their contract and the law on the
matter. Thus, he denies that he has violated any
right of the complainants.
After weighing the evidence of both complainants
and respondent, we find against respondent.
While complainants are correct in their claim that
they actually obtained an actual cash of P4,000.00,
they are only partly correct in the claim that out of
the P10,000.00 appearing in the second Real
Estate Mortgage, P6,000.00 was applied to interest
considering that not all the P6,000.00 but only
P4,000.00 was applied to interest, computed as
follows: the first loan of P5,000.00 was supposedly
due on August 31, 1975. Complainants paid 10%
monthly interest or P500.00 on September 30,
1975, October 31, 1975 and November 30, 1975.
Consequently, beginning December 31, 1975 up to
May 31, 1976 (the date of the execution of the
second Real Estate Mortgage) a total of six (6)
months lapsed. Six (6) months at P500.00 equals P
3,000.00, which amount plus the P2,000.00
complainants' loan to one Engr. Villanueva
(indorsed to respondent for collection) totals

P5,000.00. Adding this amount to the previous

P5,000.00 indicated loan secured by the first
mortgage results in P10,000.00, the amount
appearing
in
the
second
Real
Estate
Mortgage. Section 7, Rule 130 of the Rules of Court
provides:
SEC. 7. Evidence of written agreements. When
the terms of an agreement have been reduced to
writing, it is to be considered as complaining all
such terms, and, therefore, there can be, as
between the parties and their successors in
interest, no evidence of the terms of the
agreement other than the contents of the writing,
except in the following cases:
(a) Where a mistake or imperfection of the writing,
or its failure to express the true intent and
agreement of the parties, or the validity of the
agreement is put in issue by the pleadings;
(b) Where there is an intrinsic ambiguity in the
writing. The term "agreement" includes wills.
There is no dispute that the two documents
denominated Real Estate Mortgages covering the
supposed original loan of P5,000.00 and the
inflated P10,000.00, respectively, were voluntarily
signed by the complainants. The general rule is
that when the parties have reduced their
agreement to writing, it is presumed that they have
made the writing the only repository and memorial
of the truth, and whatever is not found in the
writing must be understood to have been waived
and abandoned.
However, the rule is not absolute as it admits of
some exceptions, as aforequoted. One of the
exceptions, that is, failure to express the true
intent and agreement of the parties, applies in this

14

Legal Ethics

case. From the facts obtaining in the case, it is

clear that the complainants were induced to sign
the Real Estate Mortgage documents by the false
and fraudulent representations of respondent that
each of the successive documents was a are
formality.
While it may be true that complainants are not at
all illiterate, respondent, being a lawyer, should
have at least explained to complainants the legal
implications of the provisions of the real estate
mortgage, particularly the provision appointing him
as the complainants' attorney-in-fact in the event
of default in payments on the part of complainants.
While it may be conceded that it is presumed that
in practice the notary public apprises complainants
of the legal implications of the contract, it is of
common knowledge that most notaries public do
not go through the desired practice. Respondent at
least could have informed the complainants by
sending a demand letter to them to pay their
obligation as otherwise he would proceed to sell
the lot at public auction as per their contract. This
respondent failed to do, despite the fact that he
knew fully wen that complainants were trying their
best to raise money to be able to pay their
obligation to him, as shown by the loan obtained
by complainants from the IBAA on April 8, 1976. In
this
connection,
it
may
be
stated
that
complainants, per advice of respondent himself,
returned the proceeds of the IBAA loan to the bank
immediately on April 30, 1976, considering that the
net proceeds of the loan from said bank was only
P4,300.00 and not enough to pay the indicated
loan from respondent of P5,000.00, which per
computation of respondent would already have
earned interest of P2,500.00 for five (5) months
(December 1975 to April, 1976).

the reason why complainants were able to

mortgage the lot to the bank free from any
encumbrance. This claim is incorrect. The reason
why the title (T-2684) was free from any
encumbrance was simply because of the fact that
the first Real Estate Mortgage for the indicated
loan of P5,000.00 (the actual amount was only P
4,000.00) had not been annotated at the back of
the title (see Annex B, p. 14, rec.).
Respondent also denies that complainants offered
to him the amount of Pl0,000. 00 as payment of
the loan, alleging that if the offer were true, he
could have readily accepted the same since he sold
the lot for almost the same amount, for only
P12,000.00, a difference of a few thousand pesos.
Respondent's denial is spacious.
Indeed, complainants made the offer, but
respondent refused the same for the simple reason
that the offer was made on May 30,1979, three (3)
years after the execution of the mortgage on May
31, 1976. With its lapse of time, respondent
demanded obviously the payment of the
accumulated substantial interest for three years, as
shown by his own computation in as own
handwriting on a sheet of paper (Annex C,
Complainants'
Position
Paper,
Folder
No.
2).lwph1.t
In view of all the foregoing, the observation made
by the Hearing Officer is worth quoting:
In the humble opinion of the undersigned the
pivotal question with respect to this particular
charge is whose version is to be believed. Is it the
version of the complainants or the version of the
respondent.

Respondent claims that complainants had paid him

the original loan of P5,000.00, and that this was

15

Legal Ethics

In resolving this issue the possible motive on the

part of the complainants in filing the present
complaint against the respondent must be carefully
examined and considered. At the beginning there
was a harmonious relationship between the
complainants and the respondent so much so that
respondent was even engaged as counsel of the
complainants and it is but human nature that when
respondent extended a loan to the complainants
the latter would be grateful to the former. However,
in the case at bar, complainants filed a complaint
against the respondent in spite of the great
disparity between the status of the complainants
and the respondent. Admittedly, respondent is in a
better
position
financially,
socially
and
intellectually. To the mind of the undersigned,
complainants were only compelled to file the above
entitled complaint against the respondent because
they felt that they are so aggrieved of what the
respondent has done to them. It is for this reason
therefore that the undersigned is inclined to
believe the version of the complainants rather than
of the respondent. In addition thereto, the
respondent as a lawyer could really see to it that
the transaction between the complainants and
himself on papers appear legal and in order.
Besides, there is ample evidence in the records of
its case that respondent is actually engaged in
lending money at least in a limited way and that
the interest at the rate of ten per cent a month is
but common among money lenders during the time
of the transactions in question'
Going now into the second charge, complainants
alleged that respondent, who was their counsel
(private prosecutor) in Criminal Case No. 734, for
estafa,
against
accused
Reynaldo
Pineda,
compromised the case with the accused without
their consent and received the amount of P500.00
as advance payment for the amicable settlement,
without however, giving to the complainants the Id

amount nor informing them of said settlement and

payment.
Again, respondent denies the allegation and claims
that the amicable settlement was with the consent
of complainant wife Erlinda Dalman Melendre[z].
We are inclined to believe the version of the
complainants.
It is admitted that complainants were not
interested in putting the accused Reynaldo Pineda
to jail but rather in merely recovering their money
of P2,000.00. At this stage, relationship between
complainants and respondent was not yet strained,
and respondent, as counsel of the complainants in
this case, knew that complainants were merely
interested in said recovery. Knowing this,
respondent on his own volition talked to accused
and tried to settle the case amicably for P2,000.00.
He accepted the amount of P500.00 as advance
payment, being then the only amount carried by
the accused Pineda. A receipt was signed by both
respondent and accused Pineda (Annex M, p. 34,
record). However, respondent did not inform
complainants about this advance payment,
perhaps because he was still waiting for the
completion of the payment of P2,000.00 before
turning over the whole amount to complainants.
At any rate, complainants saw accused Pineda give
the abovementioned P500.00 to respondent, but
they were ashamed then to ask directly of
respondent what the money was all about.
On June 27, 1979, barely a month after May 30,
1979, when the complainants had already lost their
trust and respect and/or confidence in respondent
upon knowing what happened to their lot and,
more so, upon respondent's refusal to accept the

16

Legal Ethics

Pl0,000.00 offered by complainants to redeem the

same, Narciso Melendre[z] saw the accused Pineda
on his way home and confronted him on the
P500.00 that had been given to respondent.
Accused then showed complainant Melendres the
receipt (Annex M, Id.) showing that the P500.00
was an advance payment for the supposed
settlement/dismissal of the case filed by
complainants against him.
Sensing or feeling that respondent was fooling
them, complainants then filed a motion before the
court which was trying the criminal case and
relieved respondent as their counsel.
The Investigating Fiscal, who heard the case and
saw the demeanor of the witnesses in testifying,
had this to say:
With respect to the second charge, the fact that
respondent received P500.00 from Reynaldo Pineda
is duly established. Both the complainants and the
respondent agreed that the said amount was given
to the respondent in connection with a criminal
case wherein the complainants were the private
offended parties: that Reynaldo Pineda is the
accused and that the respondent is the private
prosecutor of the said case. The pivotal issue in
this particular charge is whether the respondent
received the amount of P500.00 from Reynaldo
Pineda as an advance payment of an amicable
settlement entered into by the complainants and
the accused or the respondent received said
amount from the accused without the knowledge
and consent of the complainants. If it is true as
alleged by the respondent that he only received it
for and in behalf of the complainants as advance
payment of an amicable settlement why is it that
the same was questioned by the complainants?
Why is it that it was not the complainants who

signed the receipt for the said amount? How come

that as soon as complainants knew that the said
amount was given to the respondent, the former
filed a motion in court to relieve respondent as
their counsel on the ground that they have lost
faith and confidence on him? If it is really true that
complainants have knowledge and have consented
to this amicable settlement they should be grateful
to the efforts of their private prosecutor yet the
fact is that they resented the same and went to the
extent of disqualifying the respondent as their
private prosecutor. Reynaldo Pineda himself
executed an affidavit belying the claim of the
respondent.'
Clearly, the complained acts as described and
levelled against respondent Decena are contrary to
justice, honesty, modesty, or good morals for which
he may be suspended. The moral turpitude for
which an attorney may be disbarred may consist of
misconduct in either his professional or nonprofessional attitude (Royong v. Oblena, 7 SCRA
859). The complained acts of respondent imply
something immoral in themselves, regardless of
the fact whether they are punishable by law. The
doing of the act itself, and not its prohibition by
statute, fixes the moral turpitude (Bartos vs. U.S.
Dist. Court for District of Nebraska C.C.C. Neb] 19 F
[2d] 722).
A parting comment.
All the above is not to say that complainants
themselves are faultless.
Complainants should likewise be blamed for
trusting the respondent too much. They did not
bother to keep a copy of the documents they
executed and considering that they admitted they
did not understand the contents of the documents,

17

Legal Ethics

they did not bother to have them explained by

another lawyer or by any knowledgeable person in
their locality. Likewise, for a period of three years,
they did not bother to ask for respondent the
status of their lot and/or their obligation to him.
Their complacency or apathy amounting almost to
negligence contributed to the expedient loss of
their property thru the legal manuevers employed
by respondent. Hence, respondent's liability merits
mitigation. (Emphasis supplied)
and made the following recommendation:
WHEREFORE, it is respectfully recommended that
Atty. Reynerio I. Decena be suspended from the
practice of law for a period of five (5) years. 3
The Office of the Solicitor General, through Fiscals Almonte and
Jamero, held several hearings during the investigation of the
present administrative case: City Fiscal Jorge T. Almonte was able
to hold six (6) actual hearings out of twenty-five (25)
resettings 4 While only five (5) actual hearings, out of forty (40)
resettings 5 were held under Provincial Fiscal Pedro S. Jamero. In
those hearings, the complainants presented a number of witnesses
who, after their direct testimony, were cross-examined by the
counsel for respondent; complainant Narciso Melendrez also
testified and was accordingly cross-examined. Considering the long
delay incurred in the investigation of the administrative case and
having been pressed by the Solicitor General immediately to
complete the investigation, Fiscal Jamero posed a change of
procedure, from trial type proceedings to requiring the parties to
submit their respective position papers. The complainants
immediately filed their position paper which consisted of their
separate sworn statements, (that of Narciso Melendrez was in a
question and answer form), their documentary exhibits and an
affidavit of one Jeorge G. Santos. Respondent also filed his counteraffidavit and affidavits of his witnesses, with several annexes in
support thereof In the healing of 28 October 1987, which had been
set for the cross examination of the complainants and their
witnesses by respondent, the complainants refused to submit

themselves to cross-examination on the ground that the order of

the hearing officer dated 17 December 1986 declaring
respondent's right of cross examination as having been waived,
had become final and executory. Respondent questions now the
evidentiary value of the complainants' position paper, not having
passed through any cross-examination and argues that the nonsubmission of the complainants and their witnesses to crossexamination constitutes a denial of his right to due process.
We do not think respondent's right to confront the complainants
and their witnesses against him has been violated, Respondent in
fact cross-examined complainant Narciso Melendrez and some of
the witnesses which complainants had presented earlier. As
pointed out by the Solicitor General, the record of the proceedings
shows that respondent had all the opportunity to cross-examine
the other witnesses of the complainants (those whose affidavits
were attached to complainants' position paper) had he wanted to,
but had forfeited such opportunity by asking for numerous
continuances which indicated a clear attempt on his part to delay
the investigation proceedings. Respondent had in fact requested a
total of twenty three (23) resettings during the investigation
proceedings: he had eight (8) under Fiscal Almonte and fifteen (15)
under Fiscal Jamero. There were also instances where respondent
asked for postponement and at the same time reset the hearing to
a specific date of his choice on which neither he nor as counsel
would appear. That attitude of respondent eventually led the
hearing officer to declare his (respondent's) right to cross-examine
the complainants and their witnesses as having been waived in his
order of 17 December 1986. Respondent can not now claim that he
had been deprived below of the opportunity to confront the
complainants and their witnesses.
After carefully going through the record of the proceedings as well
as the evidence presented by both parties, we agree with the
findings and conclusions of the Solicitor General.
The following acts of respondent:

18

Legal Ethics

1. making it appear on the 5 August 1975 real

estate mortgage that the amount loaned to
complainants was P5,000.00 instead of P4,000.00;
2. exacting grossly unreasonable and usurious
interest;
3. making it appear in the second real estate
mortgage of 7 May 1976 that the loan extended to
complainants had escalated to P10,000.00;
4. failing to inform complainants of the import of
the real mortgage documents and inducing them to
sign those documents with assurances that they
were merely for purposes of "formality";
5. failing to demand or refraining from demanding
payment from complainants before effecting
extrajudicial
foreclosure
of
the
mortgaged
property; and
6. failing to inform or refraining from informing
complainants that the real estate mortgage had
already been foreclosed and that complainants had
a right to redeem the foreclosed property within a
certain period of time.
constitute deception and dishonesty and conduct unbecoming a
member of the Bar. We agree with the Solicitor General that the
acts of respondent "imply something immoral in themselves
regardless of whether they are punishable by law" and that these
acts constitute moral turpitude, being "contrary to justice, honesty,
modesty or good morals." The standard required from members of
the Bar is not, of course, satisfied by conduct which merely avoids
collision with our criminal law. Even so, respondent's conduct, in
fact, may be penalizable under at least one penal statute the
anti-usury law.

The second charge against respondent relates to acts done in his

professional capacity, that is, done at a time when he was counsel
for the complainants in a criminal case for estafa against accused
Reynaldo Pineda. There are two (2) aspects to this charge: the first
is that respondent Decena effected a compromise agreement
concerning the civil liability of accused Reynaldo Pineda without
the consent and approval of the complainants; the second is that,
having received the amount of P500.00 as an advance payment on
this "settlement," he failed to inform complainants of that advance
payment and moreover, did not turn over the P500.00 to the
complainants. The facts show that respondent "settled" the estafa
case amicably for P2,000.00 without the knowledge and consent of
complainants. Respondent informed complainants of the amicable
"settlement" and of the P500.00 advance payment only after
petitioner Narciso Melendrez had confronted him about these
matters. And respondent never did turn over to complainants the
P500.00. Respondent is presumed to be aware of the rule that
lawyers cannot "without special authority, compromise their
clients' litigation or receive anything in discharge of a client's
claim, but the full amount in cash. 6 Respondent's failure to turn
over to complainants the amount given by accused Pineda as
partial "settlement" of the estafa case underscores his lack of
honesty and candor in dealing with his clients.
Generally, a lawyer should not be suspended or disbarred for
misconduct committed in his personal or non-professional capacity.
Where however, misconduct outside his professional dealings
becomes so patent and so gross as to demonstrate moral unfitness
to remain in the legal profession, the Court must suspend or strike
out the lawyer's name from the Rollo of Attorneys. 7 The nature of
the office of an attorney at law requires that he shall be a person of
good moral character. This qualification is not only a condition
precedent to admission to the practice of law; its continued
possession is also essential for remaining in the practice of law, in
the exercise of privileges of members of the Bar. Gross misconduct
on the part of a lawyer, although not related to the discharge of
professional duties as a member of the Bar, which puts his moral
character in serious doubt, renders him unfit to continue in the
practice of law. 8

19

Legal Ethics

In the instant case, the exploitative deception exercised by

respondent attorney upon the complainants in his private
transactions with them, and the exacting of unconscionable rates
of interest, considered together with the acts of professional
misconduct committed by respondent attorney, compel this Court
to the conviction that he has lost that good moral character which
is indispensable for continued membership in the Bar.
WHEREFORE, respondent Reynerio I. Decena is hereby DISBARRED
and his name shall be stricken from the Rollo of Attorneys. Let a
copy of this Resolution be FURNISHED each to the Bar Confidant
and spread on the personal records of respondent attorney, and to
the Integrated Bar of the Philippines.

20

Legal Ethics

IN THE MATTER OF THE DISQUALIFICATION OF BAR

EXAMINEE HARON S. MELING IN THE 2002 BAR
EXAMINATIONS AND FOR DISCIPLINARY ACTION AS
MEMBER OF THE PHILIPPINE SHARIA BAR,
ATTY. FROILAN R. MELENDREZ, petitioner,

The Court is here confronted with a Petition that seeks twin

reliefs, one of which is ripe while the other has been rendered moot
by a supervening event.
The antecedents follow.
On October 14, 2002, Atty. Froilan R. Melendrez (Melendrez)
filed with the Office of the Bar Confidant (OBC) a Petition[1] to
disqualify Haron S. Meling (Meling) from taking the 2002 Bar
Examinations and to impose on him the appropriate disciplinary
penalty as a member of the Philippine Sharia Bar.
In the Petition, Melendrez alleges that Meling did not disclose
in his Petition to take the 2002 Bar Examinations that he has three
(3) pending criminal cases before the Municipal Trial Court in Cities
(MTCC), Cotabato City, namely: Criminal Cases Noa. 15685 and
15686, both for Grave Oral Defamation, and Criminal Case
No. 15687 for Less Serious Physical Injuries.
The above-mentioned cases arose from an incident which
occurred on May 21, 2001, when Meling allegedly uttered
defamatory words against Melendrez and his wife in front of media
practitioners and other people. Meling also purportedly attacked
and hit the face of Melendrez wife causing the injuries to the latter.
Furthermore, Melendrez alleges that Meling has been using
the title Attorney in his communications, as Secretary to the Mayor
of Cotabato City, despite the fact that he is not a member of the
Bar. Attached to the Petition is an indorsement letter which shows

that Meling used the appellation and appears on its face to have
been
received
by
the
Sangguniang
Panglungsod
of Cotabato City on November 27, 2001.
Pursuant to this Courts Resolution[2] dated December 3, 2002,
Meling filed his Answer with the OBC.
In his Answer,[3] Meling explains that he did not disclose the
criminal cases filed against him by Melendrez because retired
Judge Corocoy Moson, their former professor, advised him to settle
his misunderstanding with Melendrez. Believing in good faith that
the case would be settled because the said Judge has moral
ascendancy over them, he being their former professor in
the College of Law, Meling considered the three cases that actually
arose from a single incident and involving the same parties as
closed and terminated. Moreover, Meling denies the charges and
adds that the acts complained of do not involve moral turpitude.
As regards the use of the title Attorney, Meling admits that
some of his communications really contained the word Attorney as
they were, according to him, typed by the office clerk.
In its Report and Recommendation[4] dated December 8, 2003,
the OBC disposed of the charge of non-disclosure against Meling in
this wise:
The reasons of Meling in not disclosing the criminal cases filed
against him in his petition to take the Bar Examinations are
ludicrous. He should have known that only the court of competent
jurisdiction can dismiss cases, not a retired judge nor a law
professor. In fact, the cases filed against Meling are still
pending.Furthermore, granting arguendo that these cases were
already dismissed, he is still required to disclose the same for the
Court to ascertain his good moral character. Petitions to take the
Bar Examinations are made under oath, and should not be taken
lightly by an applicant.

21

Legal Ethics

The merit of the cases against Meling is not material in this

case. What matters is his act of concealing them which constitutes
dishonesty.
In Bar Matter 1209, the Court stated, thus:

Consequently, the OBC recommended that Meling not be

allowed to take the Lawyers Oath and sign the Roll of Attorneys in
the event that he passes the Bar Examinations. Further, it
recommended that Melings membership in the Sharia Bar be
suspended until further orders from the Court.[7]

It has been held that good moral character is what a person really
is, as distinguished from good reputation or from the opinion
generally entertained of him, the estimate in which he is held by
the public in the place where he is known. Moral character is not a
subjective term but one which corresponds to objective reality. The
standard of personal and professional integrity is not satisfied by
such conduct as it merely enables a person to escape the penalty
of criminal law. Good moral character includes at least common
honesty.

We fully concur with the findings and recommendation of the

OBC. Meling,
however,
did
not
pass
the
2003
Bar
Examinations. This renders the Petition, insofar as it seeks to
prevent Meling from taking the Lawyers Oath and signing the Roll
of Attorneys, moot and academic.

The non-disclosure of Meling of the criminal cases filed against him

makes him also answerable under Rule 7.01 of the Code of
Professional Responsibility which states that a lawyer shall be
answerable for knowingly making a false statement or suppressing
a material fact in connection with his application for admission to
the bar.[5]

Practice of law, whether under the regular or the Sharia Court,

is not a matter of right but merely a privilege bestowed upon
individuals who are not only learned in the law but who are also
known to possess good moral character.[8] The requirement of good
moral character is not only a condition precedent to admission to
the practice of law, its continued possession is also essential for
remaining in the practice of law.[9]

As regards Melings use of the title Attorney, the OBC had this
to say:
Anent the issue of the use of the appellation Attorney in his letters,
the explanation of Meling is not acceptable. Aware that he is not a
member of the Bar, there was no valid reason why he signed as
attorney whoever may have typed the letters.
Although there is no showing that Meling is engaged in the practice
of law, the fact is, he is signing his communications as Atty. Haron
S. Meling knowing fully well that he is not entitled thereto. As held
by the Court in Bar Matter 1209, the unauthorized use of the
appellation attorney may render a person liable for indirect
contempt of court.[6]

On the other hand, the prayer in the same Petition for the
Court to impose the appropriate sanctions upon him as a member
of the Sharia Bar is ripe for resolution and has to be acted upon.

The standard form issued in connection with the application to

take the 2002 Bar Examinations requires the applicant to aver that
he or she has not been charged with any act or omission
punishable by law, rule or regulation before a fiscal, judge, officer
or administrative body, or indicted for, or accused or convicted by
any court or tribunal of, any offense or crime involving moral
turpitude; nor is there any pending case or charge against
him/her. Despite the declaration required by the form, Meling did
not reveal that he has three pending criminal cases. His deliberate
silence constitutes concealment, done under oath at that.
The disclosure requirement is imposed by the Court to
determine whether there is satisfactory evidence of good moral
character of the applicant.[10] The nature of whatever cases are
pending against the applicant would aid the Court in determining
whether he is endowed with the moral fitness demanded of a

22

Legal Ethics

lawyer. By concealing the existence of such cases, the applicant

then flunks the test of fitness even if the cases are ultimately
proven to be unwarranted or insufficient to impugn or affect the
good moral character of the applicant.
Melings concealment of the fact that there are three (3)
pending criminal cases against him speaks of his lack of the
requisite good moral character and results in the forfeiture of the
privilege bestowed upon him as a member of the Sharia Bar.
Moreover, his use of the appellation Attorney, knowing fully
well that he is not entitled to its use, cannot go
unchecked. In Alawi v. Alauya,[11] the Court had the occasion to
discuss the impropriety of the use of the title Attorney by members
of the Sharia Bar who are not likewise members of the Philippine
Bar. The respondent therein, an executive clerk of court of the
4th Judicial Sharia District in Marawi City, used the title Attorney in
several correspondence in connection with the rescission of a
contract entered into by him in his private capacity. The
Court declared that:
persons who pass the Sharia Bar are not full-fledged members of
the Philippine Bar, hence, may only practice law before Sharia
courts. While one who has been admitted to the Sharia Bar, and
one who has been admitted to the Philippine Bar, may both be
considered counselors, in the sense that they give counsel or
advice in a professional capacity, only the latter is an attorney. The
title attorney is reserved to those who, having obtained the
necessary degree in the study of law and successfully taken the
Bar Examinations, have been admitted to the Integrated Bar of the
Philippines and remain members thereof in good standing; and it is
they only who are authorized to practice law in this jurisdiction. [12]

infidelity to the constitutional tenet that a public office is a public

trust.
In Leda v. Tabang, supra, the respondent concealed the fact of
his marriage in his application to take the Bar examinations and
made conflicting submissions before the Court. As a result, we
found the respondent grossly unfit and unworthy to continue in the
practice of law and suspended him therefrom until further orders
from the Court.
WHEREFORE, the Petition is GRANTED insofar as it seeks the
imposition of appropriate sanctions upon Haron S. Meling as a
member of the Philippine Sharia Bar. Accordingly, the membership
of Haron S. Meling in the Philippine Sharia Bar is hereby
SUSPENDED until further orders from the Court, the suspension to
take effect immediately. Insofar as the Petition seeks to prevent
Haron S. Meling from taking the Lawyers Oath and signing the Roll
of Attorneys as a member of the Philippine Bar, the same is
DISMISSED for having become moot and academic.
Copies of this Decision shall be circulated to all the Sharia
Courts in the country for their information and guidance.
SO ORDERED.

The judiciary has no place for dishonest officers of the court,

such as Meling in this case. The solemn task of administering
justice demands that those who are privileged to be part of service
therein, from the highest official to the lowliest employee, must not
only be competent and dedicated, but likewise live and practice
the virtues of honesty and integrity. Anything short of this standard
would diminish the public's faith in the Judiciary and constitutes

23

Legal Ethics

In the Matter of the IBP Membership Dues Delinquency of

Atty. MARCIAL A. EDILION (IBP Administrative Case No.
MDD-1)

On March 2, 1976, the Court required the IBP President and the IBP
Board of Governors to reply to Edillon's comment: on March 24,
1976, they submitted a joint reply.

The respondent Marcial A. Edillon is a duly licensed practicing

attorney in the Philippines.

Thereafter, the case was set for hearing on June 3, 1976. After the
hearing, the parties were required to submit memoranda in
amplification of their oral arguments. The matter was thenceforth
submitted for resolution.

On November 29, 1975, the Integrated Bar of the Philippines (IBP

for short) Board of Governors unanimously adopted Resolution No.
75-65 in Administrative Case No. MDD-1 (In the Matter of the
Membership Dues Delinquency of Atty. Marcial A. Edillon)
recommending to the Court the removal of the name of the
respondent from its Roll of Attorneys for "stubborn refusal to pay
his membership dues" to the IBP since the latter's constitution
notwithstanding due notice.

At the threshold, a painstaking scrutiny of the respondent's

pleadings would show that the propriety and necessity of the
integration of the Bar of the Philippines are in essence conceded.
The respondent, however, objects to particular features of Rule of
Court 139-A (hereinafter referred to as the Court Rule) 1 in
accordance with which the Bar of the Philippines was integrated
and to the provisions of par. 2, Section 24, Article III, of the IBP ByLaws (hereinabove cited).

On January 21, 1976, the IBP, through its then President Liliano B.
Neri, submitted the said resolution to the Court for consideration
and approval, pursuant to paragraph 2, Section 24, Article III of the
By-Laws of the IBP, which reads:

The authority of the IBP Board of Governors to recommend to the

Supreme Court the removal of a delinquent member's name from
the Roll of Attorneys is found in par. 2 Section 24, Article Ill of the
IBP By-Laws (supra), whereas the authority of the Court to issue
the order applied for is found in Section 10 of the Court Rule, which
reads:

.... Should the delinquency further continue until

the following June 29, the Board shall promptly
inquire into the cause or causes of the continued
delinquency and take whatever action it shall deem
appropriate, including a recommendation to the
Supreme Court for the removal of the delinquent
member's name from the Roll of Attorneys. Notice
of the action taken shall be sent by registered mail
to the member and to the Secretary of the Chapter
concerned.
On January 27, 1976, the Court required the respondent to
comment on the resolution and letter adverted to above; he
submitted his comment on February 23, 1976, reiterating his
refusal to pay the membership fees due from him.

SEC. 10. Effect of non-payment of dues. Subject

to the provisions of Section 12 of this Rule, default
in the payment of annual dues for six months shall
warrant suspension of membership in the
Integrated Bar, and default in such payment for
one year shall be a ground for the removal of the
name of the delinquent member from the Roll of
Attorneys.
The all-encompassing, all-inclusive scope of membership in the IBP
is stated in these words of the Court Rule:

24

Legal Ethics

SECTION 1. Organization. There is hereby

organized an official national body to be known as
the 'Integrated Bar of the Philippines,' composed of
all persons whose names now appear or may
hereafter be included in the Roll of Attorneys of the
Supreme Court.
The obligation to pay membership dues is couched in the following
words of the Court Rule:
SEC. 9. Membership dues. Every member of the
Integrated Bar shall pay such annual dues as the
Board of Governors shall determine with the
approval of the Supreme Court. ...
The core of the respondent's arguments is that the above
provisions constitute an invasion of his constitutional rights in the
sense that he is being compelled, as a pre-condition to maintaining
his status as a lawyer in good standing, to be a member of the IBP
and to pay the corresponding dues, and that as a consequence of
this compelled financial support of the said organization to which
he is admittedly personally antagonistic, he is being deprived of
the rights to liberty and property guaranteed to him by the
Constitution. Hence, the respondent concludes, the above
provisions of the Court Rule and of the IBP By-Laws are void and of
no legal force and effect.
The respondent similarly questions the jurisdiction of the Court to
strike his name from the Roll of Attorneys, contending that the said
matter is not among the justiciable cases triable by the Court but is
rather of an "administrative nature pertaining to an administrative
body."
The case at bar is not the first one that has reached the Court
relating to constitutional issues that inevitably and inextricably
come up to the surface whenever attempts are made to regulate
the practice of law, define the conditions of such practice, or
revoke the license granted for the exercise of the legal profession.

The matters here complained of are the very same issues raised in
a previous case before the Court, entitled "Administrative Case No.
526, In the Matter of the Petition for the Integration of the Bar of
the Philippines, Roman Ozaeta, et al., Petitioners." The Court
exhaustively considered all these matters in that case in its
Resolution ordaining the integration of the Bar of the Philippines,
promulgated on January 9, 1973. The Court there made the
unanimous pronouncement that it was
... fully convinced, after a thoroughgoing
conscientious study of all the arguments adduced
in Adm. Case No. 526 and the authoritative
materials and the mass of factual data contained in
the exhaustive Report of the Commission on Bar
Integration, that the integration of the Philippine
Bar is 'perfectly constitutional and legally
unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.
An "Integrated Bar" is a State-organized Bar, to which every lawyer
must belong, as distinguished from bar associations organized by
individual lawyers themselves, membership in which is voluntary.
Integration of the Bar is essentially a process by which every
member of the Bar is afforded an opportunity to do his share in
carrying out the objectives of the Bar as well as obliged to bear his
portion of its responsibilities. Organized by or under the direction of
the State, an integrated Bar is an official national body of which all
lawyers are required to be members. They are, therefore, subject
to all the rules prescribed for the governance of the Bar, including
the requirement of payment of a reasonable annual fee for the
effective discharge of the purposes of the Bar, and adherence to a
code of professional ethics or professional responsibility breach of
which constitutes sufficient reason for investigation by the Bar and,
upon proper cause appearing, a recommendation for discipline or
disbarment of the offending member. 2
The integration of the Philippine Bar was obviously dictated by
overriding considerations of public interest and public welfare to
such an extent as more than constitutionally and legally justifies

25

Legal Ethics

the restrictions that integration imposes upon the personal

interests and personal convenience of individual lawyers. 3
Apropos to the above, it must be stressed that all legislation
directing the integration of the Bar have been uniformly and
universally sustained as a valid exercise of the police power over
an important profession. The practice of law is not a vested right
but a privilege, a privilege moreover clothed with public interest
because a lawyer owes substantial duties not only to his client, but
also to his brethren in the profession, to the courts, and to the
nation, and takes part in one of the most important functions of the
State the administration of justice as an officer of the
court. 4 The practice of law being clothed with public interest, the
holder of this privilege must submit to a degree of control for the
common good, to the extent of the interest he has created. As the
U. S. Supreme Court through Mr. Justice Roberts explained, the
expression "affected with a public interest" is the equivalent of
"subject to the exercise of the police power" (Nebbia vs. New York,
291 U.S. 502).
When,
therefore,
Congress
enacted
Republic
Act
No.
6397 5 authorizing the Supreme Court to "adopt rules of court to
effect the integration of the Philippine Bar under such conditions as
it shall see fit," it did so in the exercise of the paramount police
power of the State. The Act's avowal is to "raise the standards of
the legal profession, improve the administration of justice, and
enable the Bar to discharge its public responsibility more
effectively." Hence, the Congress in enacting such Act, the Court in
ordaining the integration of the Bar through its Resolution
promulgated on January 9, 1973, and the President of the
Philippines in decreeing the constitution of the IBP into a body
corporate through Presidential Decree No. 181 dated May 4, 1973,
were prompted by fundamental considerations of public welfare
and motivated by a desire to meet the demands of pressing public
necessity.
The State, in order to promote the general welfare, may interfere
with and regulate personal liberty, property and occupations.
Persons and property may be subjected to restraints and burdens
in order to secure the general prosperity and welfare of the State

(U.S. vs. Gomez Jesus, 31 Phil 218), for, as the Latin maxim goes,
"Salus populi est supreme lex." The public welfare is the supreme
law. To this fundamental principle of government the rights of
individuals are subordinated. Liberty is a blessing without which life
is a misery, but liberty should not be made to prevail over
authority because then society win fall into anarchy (Calalang vs.
Williams, 70 Phil. 726). It is an undoubted power of the State to
restrain some individuals from all freedom, and all individuals from
some freedom.
But the most compelling argument sustaining the constitutionality
and validity of Bar integration in the Philippines is the explicit
unequivocal grant of precise power to the Supreme Court by
Section 5 (5) of Article X of the 1973 Constitution of the Philippines,
which reads:
Sec. 5. The Supreme Court shall have the following
powers:
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice,
and pro. procedure in all courts, and the admission
to the practice of law and the integration of the Bar
...,
and Section 1 of Republic Act No. 6397, which reads:
SECTION 1. Within two years from the approval of
this Act, the Supreme Court may adopt rules of
Court to effect the integration of the Philippine Bar
under such conditions as it shall see fit in order to
raise the standards of the legal profession, improve
the administration of justice, and enable the Bar to
discharge its public responsibility more effectively.
Quite apart from the above, let it be stated that even without the
enabling Act (Republic Act No. 6397), and looking solely to the
language of the provision of the Constitution granting the Supreme

26

Legal Ethics

Court the power "to promulgate rules concerning pleading, practice

and procedure in all courts, and the admission to the practice of
law," it at once becomes indubitable that this constitutional
declaration vests the Supreme Court with plenary power in all
cases regarding the admission to and supervision of the practice of
law.

he chooses. The only compulsion to which he is subjected is the

payment of annual dues. The Supreme Court, in order to further
the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving
the profession in this fashion be shared by the subjects and
beneficiaries of the regulatory program the lawyers. 9

Thus, when the respondent Edillon entered upon the legal

profession, his practice of law and his exercise of the said
profession, which affect the society at large, were (and are) subject
to the power of the body politic to require him to conform to such
regulations as might be established by the proper authorities for
the common good, even to the extent of interfering with some of
his liberties. If he did not wish to submit himself to such reasonable
interference and regulation, he should not have clothed the public
with an interest in his concerns.

Assuming that the questioned provision does in a sense compel a

lawyer to be a member of the Integrated Bar, such compulsion is
justified as an exercise of the police power of the State. 10

On this score alone, the case for the respondent must already fall.
The issues being of constitutional dimension, however, we now
concisely deal with them seriatim.
1. The first objection posed by the respondent is that the Court is
without power to compel him to become a member of the
Integrated Bar of the Philippines, hence, Section 1 of the Court Rule
is unconstitutional for it impinges on his constitutional right of
freedom to associate (and not to associate). Our answer is: To
compel a lawyer to be a member of the Integrated Bar is not
violative of his constitutional freedom to associate. 6
Integration does not make a lawyer a member of any group of
which he is not already a member. He became a member of the
Bar when he passed the Bar examinations. 7 All that integration
actually does is to provide an official national organization for the
well-defined but unorganized and incohesive group of which every
lawyer is a ready a member. 8
Bar integration does not compel the lawyer to associate with
anyone. He is free to attend or not attend the meetings of his
Integrated Bar Chapter or vote or refuse to vote in its elections as

2. The second issue posed by the respondent is that the provision

of the Court Rule requiring payment of a membership fee is void.
We see nothing in the Constitution that prohibits the Court, under
its constitutional power and duty to promulgate rules concerning
the admission to the practice of law and the integration of the
Philippine Bar (Article X, Section 5 of the 1973 Constitution)
which power the respondent acknowledges from requiring
members of a privileged class, such as lawyers are, to pay a
reasonable fee toward defraying the expenses of regulation of the
profession to which they belong. It is quite apparent that the fee is
indeed imposed as a regulatory measure, designed to raise funds
for carrying out the objectives and purposes of integration. 11
3. The respondent further argues that the enforcement of the
penalty provisions would amount to a deprivation of property
without due process and hence infringes on one of his
constitutional rights. Whether the practice of law is a property
right, in the sense of its being one that entitles the holder of a
license to practice a profession, we do not here pause to consider
at length, as it clear that under the police power of the State, and
under the necessary powers granted to the Court to perpetuate its
existence, the respondent's right to practise law before the courts
of this country should be and is a matter subject to regulation and
inquiry. And, if the power to impose the fee as a regulatory
measure is recognize, then a penalty designed to enforce its
payment, which penalty may be avoided altogether by payment, is
not void as unreasonable or arbitrary. 12

27

Legal Ethics

But we must here emphasize that the practice of law is not a

property right but a mere privilege, 13 and as such must bow to the
inherent regulatory power of the Court to exact compliance with
the lawyer's public responsibilities.
4. Relative to the issue of the power and/or jurisdiction of the
Supreme Court to strike the name of a lawyer from its Roll of
Attorneys, it is sufficient to state that the matters of admission,
suspension, disbarment and reinstatement of lawyers and their
regulation and supervision have been and are indisputably
recognized as inherent judicial functions and responsibilities, and
the authorities holding such are legion. 14

We thus reach the conclusion that the provisions of Rule of Court

139-A and of the By-Laws of the Integrated Bar of the Philippines
complained of are neither unconstitutional nor illegal.
WHEREFORE, premises considered, it is the unanimous sense of
the Court that the respondent Marcial A. Edillon should be as he is
hereby disbarred, and his name is hereby ordered stricken from the
Roll of Attorneys of the Court.

In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report
of the Board of Bar Commissioners in a disbarment proceeding was
confirmed and disbarment ordered, the court, sustaining the Bar
Integration Act of Kentucky, said: "The power to regulate the
conduct and qualifications of its officers does not depend upon
constitutional or statutory grounds. It is a power which is inherent
in this court as a court appropriate, indeed necessary, to the
proper administration of justice ... the argument that this is an
arbitrary power which the court is arrogating to itself or accepting
from the legislative likewise misconceives the nature of the duty. It
has limitations no less real because they are inherent. It is an
unpleasant task to sit in judgment upon a brother member of the
Bar, particularly where, as here, the facts are disputed. It is a grave
responsibility, to be assumed only with a determination to uphold
the Ideals and traditions of an honorable profession and to protect
the public from overreaching and fraud. The very burden of the
duty is itself a guaranty that the power will not be misused or
prostituted. ..."
The Court's jurisdiction was greatly reinforced by our 1973
Constitution when it explicitly granted to the Court the power to
"Promulgate rules concerning pleading, practice ... and the
admission to the practice of law and the integration of the Bar ...
(Article X, Sec. 5(5) the power to pass upon the fitness of the
respondent to remain a member of the legal profession is indeed
undoubtedly vested in the Court.

28

Legal Ethics

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SIMPLICIO VILLANUEVA, defendant-appellant.

On September 4, 1959, the Chief of Police of Alaminos, Laguna,

charged Simplicio Villanueva with the Crime of Malicious Mischief
before the Justice of the Peace Court of said municipality. Said accused
was represented by counsel de officio but later on replaced by
counsel de parte. The complainant in the same case was represented
by City Attorney Ariston Fule of San Pablo City, having entered his
appearance as private prosecutor, after securing the permission of the
Secretary of Justice. The condition of his appearance as such, was that
every time he would appear at the trial of the case, he would be
considered on official leave of absence, and that he would not receive
any payment for his services. The appearance of City Attorney Fule as
private prosecutor was questioned by the counsel for the accused,
invoking the case of Aquino, et al. vs. Blanco, et al.,
L-1532, Nov. 28, 1947, wherein it was ruled that "when an attorney had
been appointed to the position of Assistant Provincial Fiscal or City
Fiscal and therein qualified, by operation of law, he ceased to engage
in private law practice." Counsel then argued that the JP Court in
entertaining the appearance of City Attorney Fule in the case is a
violation of the above ruling. On December 17, 1960 the JP issued an
order sustaining the legality of the appearance of City Attorney Fule.
Under date of January 4, 1961, counsel for the accused presented a
"Motion to Inhibit Fiscal Fule from Acting as Private Prosecutor in this
Case," this time invoking Section 32, Rule 27, now Sec. 35, Rule 138,
Revised Rules of Court, which bars certain attorneys from practicing.
Counsel claims that City Attorney Fule falls under this limitation. The JP
Court ruled on the motion by upholding the right of Fule to appear and
further stating that he (Fule) was not actually enagaged in private law
practice. This Order was appealed to the CFI of Laguna, presided by
the Hon. Hilarion U. Jarencio, which rendered judgment on December
20, 1961, the pertinent portions of which read:
The present case is one for malicious mischief. There being no
reservation by the offended party of the civil liability, the civil
action was deemed impliedly instituted with the criminal

action. The offended party had, therefore, the right to

intervene in the case and be represented by a legal counsel
because of her interest in the civil liability of the accused.
Sec. 31, Rule 127 of the Rules of Court provides that in the
court of a justice of the peace a party may conduct his
litigation in person, with the aid of an agent or friend
appointed by him for that purpose, or with the aid of an
attorney. Assistant City Attorney Fule appeared in the Justice of
the Peace Court as an agent or friend of the offended party. It
does not appear that he was being paid for his services or that
his appearance was in a professional capacity. As Assistant
City Attorney of San Pablo he had no control or intervention
whatsoever in the prosecution of crimes committed in the
municipality of Alaminos, Laguna, because the prosecution of
criminal cases coming from Alaminos are handled by the Office
of the Provincial Fiscal and not by the City Attornev of San
Pablo. There could be no possible conflict in the duties of
Assistant City Attorney Fule as Assistant City Attorney of San
Pablo and as private prosecutor in this criminal case. On the
other hand, as already pointed out, the offended party in this
criminal case had a right to be represented by an agent or a
friend to protect her rights in the civil action which was
impliedly instituted together with the criminal action.
In view of the foregoing, this Court holds that Asst. City
Attorney Ariston D. Fule may appear before the Justice of the
Peace Court of Alaminos, Laguna as private prosecutor in this
criminal case as an agent or a friend of the offended party.
WHEREFORE, the appeal from the order of the Justice of the
Peace Court of Alaminos, Laguna, allowing the apprearance of
Ariston D. Fule as private prosecutor is dismissed, without
costs.
The above decision is the subject of the instant proceeding.
The appeal should
merits.1wph1.t

be

dismissed,

for

patently

being

without

29

Legal Ethics

Aside from the considerations advanced by the learned trial judge,

heretofore reproduced, and which we consider plausible, the fallacy of
the theory of defense counsel lies in his confused interpretation of
Section 32 of Rule 127 (now Sec. 35, Rule 138, Revised Rules), which
provides that "no judge or other official or employee of the superior
courts or of the office of the Solicitor General, shall engage in private
practice as a member of the bar or give professional advice to clients."
He claims that City Attorney Fule, in appearing as private prosecutor in
the case was engaging in private practice. We believe that the isolated
appearance of City Attorney Fule did not constitute private practice
within the meaning and contemplation of the Rules. Practice is more
than an isolated appearance, for it consists in frequent or customary
actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864, 42
LRA, M.S. 768). Practice of law to fall within the prohibition of statute
has been interpreted as customarily or habitually holding one's self out
to the public, as customarily and demanding payment for such services
(State vs. Bryan, 4 S.E. 522, 98 N.C. 644, 647). The appearance as
counsel on one occasion is not conclusive as determinative of
engagement in the private practice of law. The following observation of
the Solicitor General is noteworthy:
Essentially, the word private practice of law implies that one
must have presented himself to be in the active and continued
practice of the legal profession and that his professional
services are available to the public for a compensation, as a
source of his livelihood or in consideration of his said services.
For one thing, it has never been refuted that City Attorney Fule had
been given permission by his immediate superior, the Secretary of
Justice, to represent the complainant in the case at bar, who is a
relative.
CONFORMABLY WITH ALL THE FOREGOING, the decision appealed from
should be, as it is hereby affirmed, in all respects, with costs against
appellant..

30

Legal Ethics

OFFICE OF THE COURT ADMINISTRATOR, complainant,

vs. ATTY. MISAEL M. LADAGA, Branch Clerk of Court,
Regional Trial Court, Branch 133, Makati
City, respondent.

charges against him for appearing in court without the required

authorization from the Court.[5] On January 25, 1999, the Court
Administrator filed the instant administrative complaint against
respondent for violating Sec. 7(b)(2) of Republic Act No. 6713,
otherwise known as the Code of Conduct and Ethical Standards for
Public Officials and Employees, which provides:

In a Letter, dated August 31, 1998, respondent Atty. Misael M.

Ladaga, Branch Clerk of Court of the Regional Trial Court of Makati,
Branch 133, requested the Court Administrator, Justice Alfredo L.
Benipayo, for authority to appear as pro bono counsel of his
cousin, Narcisa Naldoza Ladaga, in Criminal Case No. 84885,
entitled People vs. Narcisa Naldoza Ladaga for Falsification of
Public Document pending before the Metropolitan Trial Court of
Quezon City, Branch 40.[1] While respondents letter-request was
pending action, Lisa Payoyo Andres, the private complainant in
Criminal Case No. 84885, sent a letter to the Court Administrator,
dated September 2, 1998, requesting for a certification with regard
to respondents authority to appear as counsel for the accused in
the said criminal case.[2] On September 7, 1998, the Office of the
Court Administrator referred the matter to respondent for
comment.[3]

Sec. 7. Prohibited Acts and Transactions. In addition to acts and

omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:

In his Comment, dated September 14, 1998, respondent

admitted that he had appeared in Criminal Case No. 84885 without
prior authorization. He reasoned out that the factual circumstances
surrounding the criminal case compelled him to handle the defense
of his cousin who did not have enough resources to hire the
services of a counsel de parte; while, on the other hand, private
complainant was a member of a powerful family who was out to
get even with his cousin. Furthermore, he rationalized that his
appearance in the criminal case did not prejudice his office nor the
interest of the public since he did not take advantage of his
position. In any case, his appearances in court were covered by
leave application approved by the presiding judge.
[4]

On December 8, 1998, the Court issued a resolution denying

respondents request for authorization to appear as counsel and
directing the Office of the Court Administrator to file formal

xxx
(b) Outside employment and other activities related
thereto.- Public officials and employees during their
incumbency shall not:
xxx
(2) Engage in the private practice of their profession
unless authorized by the Constitution or law, Provided,
that such practice will not conflict or tend to conflict
with their official functions;
In our Resolution, dated February 9, 1999, we required
respondent to comment on the administrative complaint.
In his Comment, respondent explained that he and Ms. Ladaga
are close blood cousins who belong to a powerless family from the
impoverished town of Bacauag, Surigao del Norte. From childhood
until he finished his law degree, Ms. Ladaga had always supported
and guided him while he looked up to her as a mentor and an
adviser. Because of their close relationship, Ms. Ladaga sought
respondents help and advice when she was charged in Criminal
Case No. 84885 for falsification by the private complainant, Lisa
Payoyo Andres, whose only purpose in filing the said criminal case

31

Legal Ethics

was to seek vengeance on her cousin. He explained that his

cousins discord with Ms. Andres started when the latters husband,
SPO4 Pedro Andres, left the conjugal home to cohabit with Ms.
Ladaga. During the course of their illicit affair, SPO4 Andres and
Ms. Ladaga begot three (3) children. The birth certificate of their
eldest child is the subject of the falsification charge against Ms.
Ladaga. Respondent stated that since he is the only lawyer in their
family, he felt it to be his duty to accept Ms. Ladagas plea to be her
counsel since she did not have enough funds to pay for the
services of a lawyer. Respondent also pointed out that in his seven
(7) years of untainted government service, initially with the
Commission on Human Rights and now with the judiciary, he had
performed his duties with honesty and integrity and that it was
only in this particular case that he had been administratively
charged for extending a helping hand to a close relative by giving a
free legal assistance for humanitarian purpose. He never took
advantage of his position as branch clerk of court since the
questioned appearances were made in the Metropolitan Trial Court
of Quezon City and not in Makati where he is holding office. He
stressed that during the hearings of the criminal case, he was on
leave as shown by his approved leave applications attached to his
comment.
In our Resolution, dated June 22, 1999, we noted respondents
comment and referred the administrative matter to the Executive
Judge of the Regional Trial Court of Makati, Judge Josefina
Guevarra-Salonga, for investigation, report and recommendation.

Quezon City, he was on official leave of absence. Moreover, his

Presiding Judge, Judge Napoleon Inoturan was aware of the case he
was handling. That the respondent appeared as pro bono counsel
likewise cannot be denied. His cousin-client Narcisa Ladaga herself
positively declared that the respondent did not receive a single
centavo from her. Helpless as she was and respondent being the
only lawyer in the family, he agreed to represent her out of his
compassion and high regard for her.
It may not be amiss to point out, this is the first time that
respondent ever handled a case for a member of his family who is
like a big sister to him. He appeared for free and for the purpose of
settling the case amicably. Furthermore, his Presiding Judge was
aware of his appearance as counsel for his cousin. On top of this,
during all the years that he has been in government service, he
has maintained his integrity and independence.
RECOMMENDATION
In the light of the foregoing, it appearing that the respondent
appeared as counsel for his cousin without first securing
permission from the court, and considering that this is his first time
to do it coupled with the fact that said appearance was not for a
fee and was with the knowledge of his Presiding Judge, it is hereby
respectfully recommended that he be REPRIMANDED with a stern
warning that any repetition of such act would be dealt with more
severely.[6]

In her Report, dated September 29, 1999, Judge Salonga

made the following findings and recommendation:

We agree with the recommendation of the investigating judge.

There is no question that Atty. Misael Ladaga appeared as counsel

for and in behalf of his cousin, Narcisa Naldoza Ladaga, an accused
in Criminal Case No. 84-885 for Falsification of Public Documents
before the METC of Quezon City. It is also denied that the
appearance of said respondent in said case was without the
previous permission of the Court.

Respondent is charged under Sec. 7(b)(2) of the Code of

Conduct and Ethical Standards for Public Officials and Employees
which prohibits civil servants from engaging in the private practice
of their profession. A similar prohibition is found under Sec. 35,
Rule 138 of the Revised Rules of Court which disallows certain
attorneys from engaging in the private practice of their
profession. The said section reads:

An examination of the records shows that during the occasions that

the respondent appeared as such counsel before the METC of

SEC. 35. Certain attorneys not to practice.- No judge or other

official or employee of the superior courts or of the Office of the

32

Legal Ethics

Solicitor General, shall engage in private practice as a member of

the bar or give professional advise to clients.
However, it should be clarified that private practice of a
profession, specifically the law profession in this case, which is
prohibited, does not pertain to an isolated court appearance;
rather, it contemplates a succession of acts of the same nature
habitually or customarily holding ones self to the public as a
lawyer.
In the case of People vs. Villanueva,[7] we explained the
meaning of the term private practice prohibited by the said
section, to wit:
We believe that the isolated appearance of City Attorney Fule did
not constitute private practice, within the meaning and
contemplation of the Rules. Practice is more than an isolated
appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is frequent
habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA,
N.S. 768) Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding ones self out
to the public, as a lawyer and demanding payment for such
services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644, 647). The
appearance as counsel on one occasion, is not conclusive as
determinative of engagement in the private practice of law. The
following observation of the Solicitor General is noteworthy:
Essentially, the word private practice of law implies that one
must have presented himself to be in the active and
continued practice of the legal profession and that his
professional services are available to the public for a
compensation, as a source of his livelihood or in consideration
of his said services.
For one thing, it has never been refuted that City Attorney Fule had
been given permission by his immediate superior, the Secretary of
Justice, to represent the complainant in the case at bar, who is a
relative.[8]

Based on the foregoing, it is evident that the isolated

instances when respondent appeared as pro bono counsel of his
cousin in Criminal Case No. 84885 does not constitute the private
practice of the law profession contemplated by law.
Nonetheless, while respondents isolated court appearances
did not amount to a private practice of law, he failed to obtain a
written permission therefor from the head of the Department,
which is this Court as required by Section 12, Rule XVIII of the
Revised Civil Service Rules, thus:
Sec. 12. No officer or employee shall engage directly in
any private business, vocation, or profession or be connected
with any commercial,
credit, agricultural,
or industrial
undertaking without a written permission from the head of
the Department: Provided, That this prohibition will be absolute
in the case of those officers and employees whose duties and
responsibilities require that their entire time be at the disposal of
the Government; Provided, further, That if an employee is granted
permission to engage in outside activities, time so devoted outside
of office hours should be fixed by the agency to the end that it will
not impair in any way the efficiency of the officer or employee: And
provided, finally, That no permission is necessary in the case of
investments, made by an officer or employee, which do not involve
real or apparent conflict between his private interests and public
duties, or in any way influence him in the discharge of his duties,
and he shall not take part in the management of the enterprise or
become an officer of the board of directors.[9]
Respondent entered his appearance and attended court
proceedings on numerous occasions, i.e., May 4-15, 1998, June 18,
1998, July 13, 1998 and August 5, 1998, as borne out by his own
admission. It is true that he filed leave applications corresponding
to the dates he appeared in court. However, he failed to obtain a
prior permission from the head of the Department. The presiding
judge of the court to which respondent is assigned is not the head
of the Department contemplated by law.

33

Legal Ethics

WHEREFORE, in view of the foregoing, respondent Atty.

Misael M. Ladaga is hereby REPRIMANDED with a stern warning
that any repetition of such act would be dealt with more severely.
SO ORDERED.

34

Legal Ethics

CATU vs RELLOSA

Discipline (CBD) required the parties to submit their respective

position papers. After evaluating the contentions of the parties, the
IBP-CBD found sufficient ground to discipline respondent. [7]

Complainant Wilfredo M. Catu is a co-owner of a lot [1] and the

building erected thereon located at 959 San Andres Street, Malate,
Manila. His mother and brother, Regina Catu and Antonio Catu,
contested the possession of Elizabeth C. Diaz-Catu [2] and Antonio
Pastor[3] of one of the units in the building. The latter ignored
demands for them to vacate the premises. Thus, a complaint was
initiated against them in the Lupong Tagapamayapa of Barangay
723, Zone 79 of the 5th District of Manila[4] where the parties reside.

According to the IBP-CBD, respondent admitted that,

as punong barangay, he presided over the conciliation proceedings
and heard the complaint of Regina and Antonio against Elizabeth
and Pastor. Subsequently, however, he represented Elizabeth and
Pastor in the ejectment case filed against them by Regina and
Antonio. In the course thereof, he prepared and signed pleadings
including the answer with counterclaim, pre-trial brief, position
paper and notice of appeal. By so doing, respondent violated Rule
6.03 of the Code of Professional Responsibility:

Respondent, as punong barangay of Barangay 723,

summoned the parties to conciliation meetings. [5] When the parties
failed to arrive at an amicable settlement, respondent issued a
certification for the filing of the appropriate action in court.

Rule 6.03 A lawyer shall not, after leaving

government service, accept engagement or
employment in connection with any matter in
which he intervened while in said service.

Thereafter, Regina and Antonio filed a complaint for ejectment

against Elizabeth and Pastor in the Metropolitan Trial Court of
Manila, Branch 11. Respondent entered his appearance as counsel
for the defendants in that case. Because of this, complainant filed
the instant administrative complaint, [6] claiming that respondent
committed an act of impropriety as a lawyer and as a public officer
when he stood as counsel for the defendants despite the fact that
he presided over the conciliation proceedings between the litigants
as punong barangay.

Furthermore,
as
an
elective
official,
respondent
contravened the prohibition under Section 7(b)(2) of RA 6713:[8]

In his defense, respondent claimed that one of his duties

as punong barangay was to hear complaints referred to the
barangays Lupong Tagapamayapa. As such, he heard the
complaint of Regina and Antonio against Elizabeth and Pastor. As
head of the Lupon, he performed his task with utmost objectivity,
without bias or partiality towards any of the parties. The parties,
however, were not able to amicably settle their dispute and Regina
and Antonio filed the ejectment case. It was then that Elizabeth
sought his legal assistance. He acceded to her request. He handled
her case for free because she was financially distressed and he
wanted to prevent the commission of a patent injustice against her.
The complaint was referred to the Integrated Bar of the Philippines
(IBP) for investigation, report and recommendation. As there was
no factual issue to thresh out, the IBPs Commission on Bar

SEC. 7. Prohibited Acts and Transactions.

In addition to acts and omissions of public officials
and employees now prescribed in the Constitution
and existing laws, the following shall constitute
prohibited acts and transactions of any public
official ands employee and are hereby declared to
be unlawful:
xxx xxx xxx
(b) Outside employment and other activities
related thereto. Public officials and employees
during their incumbency shall not:
xxx xxx xxx
(2) Engage in the private practice of
profession unless authorized by the
Constitution or law, provided that such
practice will not conflict or tend to conflict
with their official functions; xxx (emphasis
supplied)

35

Legal Ethics

According to the IBP-CBD, respondents violation of this

prohibition constituted a breach of Canon 1 of the Code of
Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE
LAND, PROMOTE RESPECT FOR LAW AND
LEGAL PROCESSES. (emphasis supplied)
For these infractions, the IBP-CBD recommended the
respondents suspension from the practice of law for one month
with a stern warning that the commission of the same or similar act
will be dealt with more severely. [9] This was adopted and approved
by the IBP Board of Governors.[10]
We modify the foregoing findings regarding the
transgression of respondent as well as the recommendation on the
imposable penalty.
RULE 6.03 OF TH
E CODE
OF
PROFESSIONAL
RESPONSIBILITY
APPLIES ONLY TO
FORMER
GOVERNMENT
LAWYERS
Respondent cannot be found liable for violation of Rule
6.03 of the Code of Professional Responsibility. As worded, that
Rule applies only to a lawyer who has left government service and
in connection with any matter in which he intervened while in said
service. In PCGG v. Sandiganbayan,[11] we ruled that Rule
6.03 prohibits former government lawyers from accepting
engagement or employment in connection with any matter in
which [they] had intervened while in said service.
Respondent was an incumbent punong barangay at the
time he committed the act complained of. Therefore, he was not
covered by that provision.

SECTION 90 OF
RA 7160, NOT
SECTION 7(B)(2)
OF
RA
6713,
GOVERNS
THE
PRACTICE
OF
PROFESSION OF
ELECTIVE LOCAL
GOVERNMENT
OFFICIALS
Section 7(b)(2) of RA 6713 prohibits public officials and
employees, during their incumbency, from engaging in the private
practice of their profession unless authorized by the Constitution or
law, provided that such practice will not conflict or tend to conflict
with their official functions. This is the general law which applies to
all public officials and employees.
For elective local government officials, Section 90 of RA
7160[12] governs:
SEC. 90. Practice of Profession. (a) All
governors, city and municipal mayors are
prohibited from practicing their profession or
engaging in any occupation other than the
exercise of their functions as local chief
executives.
(b) Sanggunian members may practice
their
professions,
engage
in
any
occupation, or teach in schools except
during
session
hours: Provided,
That sanggunian members
who
are
members of the Bar shall not:
(1) Appear as counsel before any
court in any civil case wherein a local
government unit or any office, agency, or
instrumentality of the government is the
adverse party;

36

Legal Ethics

(2) Appear as counsel in any

criminal case wherein an officer or
employee of the national or local
government is accused of an offense
committed in relation to his office;
(3) Collect any fee for their
appearance in administrative proceedings
involving the local government unit of
which he is an official; and
(4) Use property and personnel of
the
Government
except
when
the sanggunian member
concerned
is
defending the interest of the Government.
(c) Doctors of medicine may practice their
profession even during official hours of
work
only
on
occasions
of
emergency: Provided, That the officials
concerned do not derive monetary
compensation therefrom.

This is a special provision that applies specifically to the

practice of profession by elective local officials. As a special law
with a definite scope (that is, the practice of profession by elective
local officials), it constitutes an exception to Section 7(b)(2) of RA
6713, the general law on engaging in the private practice of
profession by public officials and employees. Lex specialibus
derogat generalibus.[13]
Under RA 7160, elective local officials of provinces, cities,
municipalities and barangays are the following: the governor, the
vice governor and members of the sangguniang panlalawigan for
provinces; the city mayor, the city vice mayor and the members of
the sangguniang panlungsod for cities; the municipal mayor, the
municipal vice mayor and the members of the sangguniang
bayan for municipalities and the punong barangay, the members
of
the sangguniang
barangay and
the
members
of
the sangguniang kabataan for barangays.

Of these elective local officials, governors, city mayors and

municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their
functions as local chief executives. This is because they are
required to render full time service. They should therefore devote
all their time and attention to the performance of their official
duties.
On the other hand, members of the sangguniang
panlalawigan, sangguniang panlungsod or sangguniang bayan may
practice their professions, engage in any occupation, or teach in
schools except during session hours. In other words, they may
practice their professions, engage in any occupation, or teach in
schools outside their session hours. Unlike governors, city mayors
and
municipal
mayors, members
of
the sangguniang
panlalawigan, sangguniang panlungsod or sangguniang bayan are
required to hold regular sessions only at least once a week.
[14]
Since the law itself grants them the authority to practice their
professions, engage in any occupation or teach in schools outside
session hours, there is no longer any need for them to secure prior
permission or authorization from any other person or office for any
of these purposes.
While, as already discussed, certain local elective officials
(like governors, mayors, provincial board members and councilors)
are expressly subjected to a total or partial proscription to practice
their profession or engage in any occupation, no such interdiction
is made on thepunong barangay and the members of
the sangguniang barangay. Expressio unius est exclusio alterius.
[15]
Since they are excluded from any prohibition, the presumption
is that they are allowed to practice their profession. And this stands
to reason because they are not mandated to serve full time. In
fact, the sangguniang barangay is supposed to hold regular
sessions only twice a month.[16]
Accordingly, as punong barangay, respondent was not
forbidden to practice his profession. However, he should have
procured prior permission or authorization from the head of his
Department, as required by civil service regulations.
A
LAWYER
IN
GOVERNMENT
SERVICE WHO IS

37

Legal Ethics

NOT PROHIBITED
TO
PRACTICE
LAW
MUST
SECURE
PRIOR
AUTHORITY
FROM THE HEAD
OF
HIS
DEPARTMENT
A civil service officer or employee whose responsibilities do not
require his time to be fully at the disposal of the government can
engage in the private practice of law only with the written
permission of the head of the department concerned. [17] Section 12,
Rule XVIII of the Revised Civil Service Rules provides:
Sec. 12. No officer or employee shall
engage directly in any private business,
vocation, or profession or be connected with any
commercial, credit, agricultural, or industrial
undertaking without a written permission
from the head of the Department: Provided,
That this prohibition will be absolute in the case of
those officers and employees whose duties and
responsibilities require that their entire time be at
the disposal of the Government; Provided, further,
That if an employee is granted permission to
engage in outside activities, time so devoted
outside of office hours should be fixed by the
agency to the end that it will not impair in any
way the efficiency of the officer or employee:
And provided, finally, that no permission is
necessary in the case of investments, made by an
officer or employee, which do not involve real or
apparent conflict between his private interests
and public duties, or in any way influence him in
the discharge of his duties, and he shall not take
part in the management of the enterprise or
become an officer of the board of directors.
(emphasis supplied)

and Local Government before he entered his appearance as

counsel for Elizabeth and Pastor. This he failed to do.
The failure of respondent to comply with Section 12, Rule XVIII of
the Revised Civil Service Rules constitutes a violation of his oath as
a lawyer: to obey the laws. Lawyers are servants of the law, vires
legis, men of the law. Their paramount duty to society is to obey
the law and promote respect for it. To underscore the primacy and
importance of this duty, it is enshrined as the first canon of the
Code of Professional Responsibility.
In acting as counsel for a party without first securing the required
written permission, respondent not only engaged in the
unauthorized practice of law but also violated civil service rules
which is a breach of Rule 1.01 of the Code of Professional
Responsibility:
Rule 1.01 A lawyer shall not engage in
unlawful,
dishonest,
immoral
or
deceitful conduct. (emphasis supplied)
For not living up to his oath as well as for not complying with the
exacting ethical standards of the legal profession, respondent
failed to comply with Canon 7 of the Code of Professional
Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES
UPHOLD THE INTEGRITY AND THE DIGNITY
OF THE LEGAL PROFESSION AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR. (emphasis
supplied)
Indeed, a lawyer who disobeys the law disrespects it. In so
doing, he disregards legal ethics and disgraces the dignity of the
legal profession.
Public confidence in the law and in lawyers may be eroded
by the irresponsible and improper conduct of a member of the bar.
[18]
Every lawyer should act and comport himself in a manner that
promotes public confidence in the integrity of the legal profession.
[19]

As punong barangay, respondent should have therefore

obtained the prior written permission of the Secretary of Interior

A member of the bar may be disbarred or suspended from

his office as an attorney for violation of the lawyers oath [20] and/or

38

Legal Ethics

for breach of the ethics of the legal profession as embodied in the

Code of Professional Responsibility.
WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby
found GUILTY of professional misconduct for violating his oath as a
lawyer and Canons 1 and 7 and Rule 1.01 of the Code of
Professional Responsibility. He is therefore SUSPENDED from the
practice of law for a period of six months effective from his
receipt of this resolution. He is sternly WARNED that any repetition
of similar acts shall be dealt with more severely.
Respondent is strongly advised to look up and take to heart the
meaning of the word delicadeza.
Let a copy of this resolution be furnished the Office of the Bar
Confidant and entered into the records of respondent Atty. Vicente
G. Rellosa. The Office of the Court Administrator shall furnish
copies to all the courts of the land for their information and
guidance.
SO ORDERED.

39

Legal Ethics

LEE VS. TAMBAGO

In a letter-complaint dated April 10, 2000, complainant
Manuel L. Lee charged respondent Atty. Regino B. Tambago with
violation of the Notarial Law and the ethics of the legal profession
for notarizing a spurious last will and testament.
In his complaint, complainant averred that his father, the
decedent Vicente Lee, Sr., never executed the contested will.
Furthermore, the spurious will contained the forged signatures of
Cayetano Noynay and Loreto Grajo, the purported witnesses to its
execution.
In the said will, the decedent supposedly bequeathed his
entire estate to his wife Lim Hock Lee, save for a parcel of land
which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of
complainant.
The will was purportedly executed and acknowledged
before respondent on June 30, 1965. [1] Complainant, however,
pointed out that the residence certificate[2] of the testator noted in
the acknowledgment of the will was dated January 5, 1962.
[3]
Furthermore, the signature of the testator was not the same as
his signature as donor in a deed of donation[4] (containing his
purported genuine signature). Complainant averred that the
signatures of his deceased father in the will and in the deed of
donation were in any way (sic) entirely and diametrically opposed
from (sic) one another in all angle[s].[5]
Complainant also questioned the absence of notation of
the residence certificates of the purported witnesses Noynay and
Grajo. He alleged that their signatures had likewise been forged
and merely copied from their respective voters affidavits.
Complainant further asserted that no copy of such
purported will was on file in the archives division of the Records
Management and Archives Office of the National Commission for
Culture and the Arts (NCCA). In this connection, the certification of
the chief of the archives division dated September 19, 1999
stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965
refers to an AFFIDAVIT executed by BARTOLOME

RAMIREZ on June 30, 1965 and is available in

this Office[s] files.[6]
Respondent in his comment dated July 6, 2001 claimed
that the complaint against him contained false allegations: (1) that
complainant was a son of the decedent Vicente Lee, Sr. and (2)
that the will in question was fake and spurious. He alleged that
complainant was not a legitimate son of Vicente Lee, Sr. and the
last will and testament was validly executed and actually notarized
by respondent per affidavit[7] of Gloria Nebato, common-law wife of
Vicente Lee, Sr. and corroborated by the joint affidavit [8] of the
children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N.
Lee, Jr. xxx.[9]
Respondent further stated that the complaint was filed
simply to harass him because the criminal case filed by
complainant against him in the Office of the Ombudsman did not
prosper.
Respondent did not dispute complainants contention that
no copy of the will was on file in the archives division of the NCCA.
He claimed that no copy of the contested will could be found there
because none was filed.
Lastly, respondent pointed out that complainant had no
valid cause of action against him as he (complainant) did not first
file an action for the declaration of nullity of the will and demand
his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred
the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[10]
In his report, the investigating commissioner found respondent
guilty of violation of pertinent provisions of the old Notarial Law as
found in the Revised Administrative Code. The violation constituted
an infringement of legal ethics, particularly Canon 1[11] and Rule
1.01[12] of the Code of Professional Responsibility (CPR). [13] Thus, the
investigating commissioner of the IBP Commission on Bar
Discipline recommended the suspension of respondent for a period
of three months.

40

Legal Ethics

The IBP Board of Governors, in its Resolution No. XVII-2006285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED
and APPROVED, with modification, the Report
and
Recommendation
of
the
Investigating
Commissioner of the above-entitled case, herein
made part of this Resolution as Annex A; and,
finding the recommendation fully supported by the
evidence on record and the applicable laws and
rules, and considering Respondents failure to
comply with the laws in the discharge of his
function as a notary public, Atty. Regino B.
Tambago is hereby suspended from the practice of
law for one year and Respondents notarial
commission
is Revoked
and
Disqualified fromreappointment as Notary Public
for two (2) years.[14]
We affirm with modification.
A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death. [15] A will may
either be notarial or holographic.
The law provides for certain formalities that must be
followed in the execution of wills. The object of solemnities
surrounding the execution of wills is to close the door on bad faith
and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity.[16]
A notarial will, as the contested will in this case, is required
by law to be subscribed at the end thereof by the testator himself.
In addition, it should be attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another.[17]
The will in question was attested by only two witnesses,
Noynay and Grajo. On this circumstance alone, the will must be
considered void.[18] This is in consonance with the rule that acts
executed against the provisions of mandatory or prohibitory laws
shall be void, except when the law itself authorizes their validity.

The Civil Code likewise requires that a will must be

acknowledged before a notary public by the testator and the
witnesses.[19] The importance of this requirement is highlighted by
the fact that it was segregated from the other requirements under
Article 805 and embodied in a distinct and separate provision. [20]
An acknowledgment is the act of one who has executed a
deed in going before some competent officer or court and
declaring it to be his act or deed. It involves an extra step
undertaken whereby the signatory actually declares to the notary
public that the same is his or her own free act and deed. [21] The
acknowledgment in a notarial will has a two-fold purpose: (1) to
safeguard the testators wishes long after his demise and (2) to
assure that his estate is administered in the manner that he
intends it to be done.
A cursory examination of the acknowledgment of the will in
question shows that this particular requirement was neither strictly
nor substantially complied with. For one, there was the
conspicuous absence of a notation of the residence certificates of
the notarial witnesses Noynay and Grajo in the acknowledgment.
Similarly, the notation of the testators old residence certificate in
the same acknowledgment was a clear breach of the law. These
omissions by respondent invalidated the will.
As the acknowledging officer of the contested will,
respondent was required to faithfully observe the formalities of a
will and those of notarization. As we held in Santiago v. Rafanan:[22]
The Notarial Law is explicit on the
obligations and duties of notaries public. They are
required to certify that the party to every
document acknowledged before him had presented
the proper residence certificate (or exemption from
the residence tax); and to enter its number, place
of issue and date as part of such certification.
These formalities are mandatory and cannot be
disregarded, considering the degree of importance and evidentiary
weight attached to notarized documents. [23] A notary public,
especially a lawyer,[24] is bound to strictly observe these
elementary requirements.

41

Legal Ethics

The Notarial Law then in force required the exhibition of

the residence certificate upon notarization of a document or
instrument:
Section 251. Requirement as to notation of
payment of [cedula] residence tax. Every contract,
deed, or other document acknowledged before a
notary public shall have certified thereon that the
parties thereto have presented their proper
[cedula] residence certificate or are exempt from
the [cedula] residence tax, and there shall be
entered by the notary public as a part of such
certificate the number, place of issue, and date of
each [cedula] residence certificate as aforesaid.[25]

Art. 806. Every will must be acknowledged

before a notary public by the testator and the
witness. The notary public shall not be
required to retain a copy of the will, or file
another with the office of the Clerk of
Court. (emphasis supplied)
Respondents failure, inadvertent or not, to file in the archives
division a copy of the notarized will was therefore not a cause for
disciplinary action.
Nevertheless, respondent should be faulted for having
failed to make the necessary entries pertaining to the will in his
notarial register. The old Notarial Law required the entry of the
following matters in the notarial register, in chronological order:
1.

The importance of such act was further reiterated by

Section 6 of the Residence Tax Act[26] which stated:
When a person liable to the taxes prescribed in this
Act acknowledges any document before a notary
public xxx it shall be the duty of such person xxx
with whom such transaction is had or business
done, to require the exhibition of the residence
certificate showing payment of the residence taxes
by such person xxx.

2.
3.
4.
5.
6.
7.

nature of each instrument executed, sworn

to, or acknowledged before him;
person
executing,
swearing
to,
or
acknowledging the instrument;
witnesses, if any, to the signature;
date of execution, oath, or acknowledgment
of the instrument;
fees collected by him for his services as
notary;
give each entry a consecutive number; and
if the instrument is a contract, a brief
description of the substance of the instrument.
[27]

In the issuance of a residence certificate, the law seeks to

establish the true and correct identity of the person to whom it is
issued, as well as the payment of residence taxes for the current
year. By having allowed decedent to exhibit an expired residence
certificate, respondent failed to comply with the requirements of
both the old Notarial Law and the Residence Tax Act. As much
could be said of his failure to demand the exhibition of the
residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal
obligation to furnish a copy of the notarized will to the archives
division, Article 806 provides:

In an effort to prove that he had complied with the

abovementioned rule, respondent contended that he had crossed
out a prior entry and entered instead the will of the decedent. As
proof, he presented a photocopy of his notarial register. To
reinforce his claim, he presented a photocopy of a
certification[28] stating that the archives division had no copy of the
affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not
admissible unless it is shown that the original is unavailable. The
proponent must first prove the existence and cause of the
unavailability of the original, [29] otherwise, the evidence presented
will not be admitted. Thus, the photocopy of respondents notarial

42

Legal Ethics

register was not admissible as evidence of the entry of the

execution of the will because it failed to comply with the
requirements for the admissibility of secondary evidence.
In the same vein, respondents attempt to controvert the
certification dated September 21, 1999 [30] must fail. Not only did he
present a mere photocopy of the certification dated March 15,
2000;[31] its contents did not squarely prove the fact of entry of the
contested will in his notarial register.
Notaries public must observe with utmost care [32] and
utmost fidelity the basic requirements in the performance of their
duties, otherwise, the confidence of the public in the integrity of
notarized deeds will be undermined.[33]
Defects in the observance of the solemnities prescribed by
law render the entire will invalid. This carelessness cannot be taken
lightly in view of the importance and delicate nature of a will,
considering that the testator and the witnesses, as in this case, are
no longer alive to identify the instrument and to confirm its
contents.[34] Accordingly, respondent must be held accountable for
his acts. The validity of the will was seriously compromised as a
consequence of his breach of duty.[35]

These gross violations of the law also made respondent

liable for violation of his oath as a lawyer and constituted
transgressions of Section 20 (a), Rule 138 of the Rules of
Court[37] and Canon 1[38] and Rule 1.01[39] of the CPR.
The first and foremost duty of a lawyer is to maintain
allegiance to the Republic of the Philippines, uphold the
Constitution and obey the laws of the land.[40] For a lawyer is the
servant of the law and belongs to a profession to which society has
entrusted the administration of law and the dispensation of justice.
[41]

While the duty to uphold the Constitution and obey the law
is an obligation imposed on every citizen, a lawyer assumes
responsibilities well beyond the basic requirements of good
citizenship. As a servant of the law, a lawyer should moreover
make himself an example for others to emulate. [42] Being a lawyer,
he is supposed to be a model in the community in so far as respect
for the law is concerned.[43]
The practice of law is a privilege burdened with conditions.
A breach of these conditions justifies disciplinary action against
the erring lawyer. A disciplinary sanction is imposed on a lawyer
upon a finding or acknowledgment that he has engaged in
professional misconduct.[45] These sanctions meted out to errant
lawyers include disbarment, suspension and reprimand.
[44]

In this connection, Section 249 of the old Notarial Law

provided:
Grounds for revocation of commission. The
following derelictions of duty on the part of a
notary public shall, in the discretion of the proper
judge of first instance, be sufficient ground for the
revocation of his commission:
xxx xxx xxx
(b) The failure of the notary to make the proper
entry or entries in his notarial register
touching his notarial acts in the manner
required by law.
xxx xxx xxx
(f) The failure of the notary to make the proper
notation regarding cedula certificates.[36]

Disbarment is the most severe form of disciplinary

sanction.[46] We have held in a number of cases that the power to
disbar must be exercised with great caution[47] and should not be
decreed if any punishment less severe such as reprimand,
suspension, or fine will accomplish the end desired. [48] The rule
then is that disbarment is meted out only in clear cases of
misconduct that seriously affect the standing and character of the
lawyer as an officer of the court.[49]
Respondent, as notary public, evidently failed in the
performance of the elementary duties of his office. Contrary to his
claims that he exercised his duties as Notary Public with due care
and with due regard to the provision of existing law and had
complied with the elementary formalities in the performance of his
duties xxx, we find that he acted very irresponsibly in notarizing

43

Legal Ethics

the will in question. Such recklessness warrants the less severe

punishment of suspension from the practice of law. It is, as well, a
sufficient basis for the revocation of his commission [50] and his
perpetual disqualification to be commissioned as a notary public. [51]
WHEREFORE, respondent Atty. Regino B. Tambago is
hereby found guilty of professional misconduct. He violated (1) the
Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and
Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of
the Civil Code and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the
practice
of
law
for
one
year
and
his
notarial
commission REVOKED. Because he has not lived up to the
trustworthiness expected of him as a notary public and as an
officer of the court, he is PERPETUALLYDISQUALIFIED from
reappointment as a notary public.
Let copies of this Resolution be furnished to all the courts
of the land, the Integrated Bar of the Philippines and the Office of
the Bar Confidant, as well as made part of the personal records of
respondent.
SO ORDERED.

44

Legal Ethics

OFFICE OF THE COURT ADMINISTRATOR vs. LADAGA

This is an administrative complaint for gross misconduct and
dishonesty
against
respondent
Judge Cader P. Indar,
Al Haj (Judge Indar), Presiding Judge of the Regional Trial Court
(RTC), Branch 14, Cotabato City and Acting Presiding Judge of the
RTC, Branch 15, Shariff Aguak,Maguindanao.
This case originated from reports by the Local Civil Registrars of
Manila and Quezon City to the Office of the Court Administrator
(OCA) that they have received an alarming number of decisions,
resolutions, and orders on annulment of marriage cases allegedly
issued by Judge Indar.
To verify the allegations against Judge Indar, the OCA conducted a
judicial audit in RTC-Shariff Aguak, Branch 15, where the Audit
Team found that the list of cases submitted by the Local Civil
Registrars of Manila and Quezon City do not appear in the records
of cases received, pending or disposed by RTC-Shariff Aguak,
Branch 15. Likewise, the annulment decisions did not exist in the
records of RTC-Cotabato, Branch 14. The Audit Team further
observed that the case numbers in the list submitted by the Local
Civil Registrars are not within the series of case numbers recorded
in the docket books of either RTC-Shariff Aguak or RTC-Cotabato.
At
the
same
time,
the
Audit
Team
followed-up
Judge Indars compliance with Deputy Court Administrator (DCA)
Jesus Edwin A. Villasors 1st Indorsement, dated 15 February 2010,
relative to the letter1 of Ms. Miren Galloway, Manager-Permanent
Entry Unit, Australian Embassy, Manila (Australian Embassy letter),
asking confirmation on the authenticity of Judge Indars decision,
dated
23
May
2007,
in
Spec.
Proc.
No.
06-581,
entitled Chona Chanco Aguiling v. Alan V. Aguiling, for Declaration
of Nullity of Marriage. As regards this case, the Audit Team found
that Spec. Proc. No. 06-584 does not exist in the records of cases
filed, pending or disposed by RTC-Shariff Aguak.
Subsequently, the Audit Team made the following conclusions:
1. The list in Annexes A; A-1; A-2 and A-3 are not
found in the list of cases filed, pending or decided
in
the
Regional
Trial
Court,
Branch
15, Shariff Aguak [Maguindanao] which is based

in Cotabato City, nor in the records of the Office of

the
Clerk
of
Court
of
Regional
Trial
Court, Cotabato City;
2. There are apparently decisions of cases which
are spurious, as these did not pass through the
regular process such as filing, payment of docket
fees, trial, etc. which are now circulating and being
registered in Local Civil Registrars throughout the
country, the extent of which is any bodys guess;
3. The authenticity of the signatures appearing
thereon could only be validated by handwriting
experts of the National Bureau of Investigation
(NBI);
4. The participation of any lower court officials
and/or employees could not be ascertained except
probably through a more thorough discreet
investigation and or entrapment; [and]
5.

There is a possibility that more

of this
(sic)
spurious
documents may appear and cause
damage to the Courts Integrity.2

Meanwhile, in compliance with DCA Villasors Indorsement and in

response to the Australian Embassy letter, Judge Indar explained,
in a Letter dated 10 March 2010, that this court is a Court of
General Jurisdiction and can therefore act even on cases involving
Family Relations. Hence, the subject decision rendered by this
Court annulling the marriage of your client is VALID and she is free
to marry.3
In a Memorandum dated 26 April 2010, the OCA recommended
that (1) the matter be docketed as a regular administrative matter;
(2) the matter be assigned to a Court of Appeals Justice for
Investigation,
Report,
and
Recommendation;
and
(3)
Judge Indar be preventively suspended, pending investigation.
In a Resolution dated 4 May 2010, the Court En Banc (1) docketed
this administrative matter as A.M. No. RTJ-10-2232, 4 and (2)

45

Legal Ethics

preventively suspended Judge Indar pending investigation of this

case.
The case was initially raffled to Justice Rodil V. Zalameda of the
Court of Appeals, Manila for investigation. The case was re-raffled
to Justice Angelita A. Gacutan (Justice Gacutan) of the Court of
Appeals, Cagayan de Oro due to its proximity to the Regional Trial
Courts involved.

In a Resolution of 28 September 2010, this Court directed

Justice Gacutan to conduct further investigation to determine the
authenticity of the questioned decisions allegedly rendered by
Judge Indar annulling certain marriages. The Court required
Justice Gacutan to ascertain whether the cases were properly filed
in court, and who are the parties responsible for the issuance of
the questioned decisions, and to submit a report thereon within 60
days from receipt of the Resolution.

Justice Gacutan set the case for hearing on several dates and sent
the corresponding notices of hearing to Judge Indar at his known
addresses, namely, his official stations in RTC-Cotabato and RTCShariff Aguak and residence address.

In compliance with the Courts Resolution, Justice Gacutan directed

the Local Civil Registrars of Manila and Quezon City and
Atty. Silongan to submit certified true copies of the questioned
decisions and to testify thereon.

The first notice of hearing dated 21 June 2010, which was

sent via registered mail and private courier LBC, scheduled the
hearings on 14, 15, and 16 July 2010 and directed Judge Indar to
submit in affidavit form his explanation. The LBC records show that
this notice, which was delivered to Judge Indars official stations,
was received by one Mustapha Randang on 28 June 2010.

Only the Civil Registrars were present during the hearings on 4 and
5 November 2010. Their testimonies are summarized as follows:

The scheduled hearing was postponed and reset to 20, 21 and 22

July 2010. The notice of postponement was sent to
Judge Indar via registered mail on 6 July 2010 to his official stations
and was received again by Mustapha Randang on 8 July 2010.
Judge Indar failed to attend the hearing as rescheduled and to
submit the affidavit as required. Thus, in an Order of 23 July 2010,
Justice Gacutan directed
Judge Indar to
explain
his
nonappearance, and reset the hearing to 10 and 11 August 2010. The
Order was sent to his residence address in M. Tan Subdivision,
Gonzalo Javier St., Rosary Heights, Cotabato City. The LBC report
indicated that the Order was received by a certain Mrs. Asok.
Justice Gacutan also sent a letter dated 23 July 2010 addressed to
Atty. Umaima L. Silongan (Atty. Silongan), Acting Clerk of Court of
RTC-Cotabato, directing her to serve the notice of hearing
scheduled on 10 and 11 August 2010 to Judge Indar and to report
the
steps
taken
to
effect
service
of
the
same.
Atty. Silongan submitted a Return of Service, informing that the
notices sent to Judge Indar had remained unserved, as the latter
left Cotabato City in April 2010 and his location since then was
unknown.

Testimonies
Ma. Josefina Encarnacion A. Ocampo,
Registrar of Manila
TSN, November 4, 2010

City

of
Civil

As City Civil Registrar, she is mandated to receive

all registered documents that will affect the status
of the person like the birth, death and marriage
contract, court decrees regarding annulment,
adoption, legitimization, the affidavit using the
surname of the father, naturalization, the selection
of citizenship, etc. The documents are forwarded to
their office after they are being registered by the
concerned parties.
In the case of annulment of marriage, a copy of the
decision is submitted to the Civil Registrar by the
one who had his marriage annulled. Per
administrative order, it is the duty of the Clerk of
Court to furnish them a copy of the Decision. After
the copies of decisions are submitted to them, they
are mandated to verify the authenticity of the
decision by writing a verification letter to the Clerk
of Court before making the annotation or changing
the parties status.

46

Legal Ethics

She identified the list of cases of annulment of

marriages and petitions changing status of persons
(annexes A-1 and A-2) which all came from a court
in Cotabato. All the cases listed in A-2 have already
been confirmed or annotated in the records of the
Manila Civil Registry. She affirmed that the said
cases in the list were certified true by the clerk of
court. As their duty to annotate the said decrees to
their records are merely ministerial, they do not
question the decrees however peculiar they may
seem.
The cases listed in the document marked as Annex
A-2 were also cases that came from Cotabato City
for their annotation. Although these cases have
been certified true by the Clerk of Court, their
annotation and confirmation were held in abeyance
due to the on-going investigation of Judge Indar.
Testimony of Salvador Cario,
Chief of Records Division, City Civil Registrar of
Quezon City
TSN, November 4, 2010
He generally supervises the retrieval of all the
records or documents in their office. He also signs
certified true copies of birth, marriage contract,
death certificate and certified true copies of Courts
decisions furnished to them by different courts.
With regards the decisions issued by the Court in
provinces, once the Judge issued the decision
regarding the annulment, the parties concern
should first register the decision to the Local Civil
Registrar where the court is situated. After they
receive the decision from the Administrative
Division, they would call or write the concerned
Local Civil Registrar to authenticate or verify the
records. He identified the cases coming from
a Cotabato court that were submitted to them for
annotation.

The subject decisions listed in the annexes which

were decided by a court in Cotabato City were
already annotated and verified. However he could
not ascertain who from the court verified the
authenticity or existence of such decisions as he
was not the one who personally called to verify and
authenticate them from the court where the listed
Decisions/Orders originate.5
The Civil Registrar of Manila submitted copies of Decisions, Orders
and Resolutions, all signed by Judge Indar, in forty three (43) cases
for annulment of marriage, correction of entry and other similar
cases from RTC-Cotabato City, Branch 15. All the decisions were
accompanied by the corresponding Letter of Atty. Silongan,
affirming each of the decisions as true and authentic based on the
records, while thirty six (36) of such decisions are accompanied by
Atty. Silongans certification
affirming
the
genuineness
of
Judge Indars signature affixed on the Decisions.6
On the other hand, the Civil Registrar of Quezon City submitted
twenty five (25) Decisions, Orders, and Resolutions issued by RTCCotabato City, Branch 15, which were transmitted to the Registrars
office for annotation and recording. All the Decisions were signed
by Judge Indar, and accompanied by Certificates of Finality
affirming the genuineness of Judge Indars signature appearing
above the name of Judge Cader P. Indar. The Certificates of Finality
were issued by Atty. Silongan and in one case, by Abie Amilil, the
OIC-Branch Clerk of Court.7
Meanwhile, Atty. Silongan, despite notice, failed to attend the
hearing. She explained in a Manifestation of 8 November 2010 that
she received the Notice only on 8 November 2010 because she
was on leave from 1 October 1 to 30 November 2010. Thus, the
hearing was reset to 11 and 12 January 2011. However, on the
scheduled hearing, Atty. Silongan still failed to appear.
Justice Gacutan sought the assistance of the National Bureau of
Investigation (NBI) to locate the whereabouts of Judge Indar, as
well as of Atty. Silongan. After several exchanges of
correspondence, the NBI, in a Letter dated 22 March 2011,

47

Legal Ethics

provided the
Atty. Silongan.

residence

addresses

of

both

Judge Indar and

Meanwhile, Judge George C. Jabido (Judge Jabido), Acting Presiding

Judge of RTC-Shariff Aguak, Branch 15, was directed to verify the
authenticity of the records of the subject Decisions and to appear
at the hearing on 29 March 2011. The hearing was canceled due to
the judicial reorganization in the Court of Appeals.
This administrative matter was re-raffled to Justice Abraham
B. Borreta (Justice Borreta) since Justice Gacutan was reassigned to
Manila effective 11 April 2011. Justice Borreta set the hearing on
27 to 29 June 2011. Notices of hearing were sent to
Judge Indar and Atty. Silongan at the addresses provided by the
NBI and at their previous mailing addresses. The registered mails
addressed to Judge Indar were returned for the following reasons:
(1) addressee out of town, move to another place and (2)
addressee unknown. The Notice sent to Atty. Silongan was also
returned and per LBC report, the consignee has moved to an
unknown address.
Judge Jabido, who was notified of the hearing, testified that:
In compliance with the directive of the
Investigating Justice to verify the authenticity of
the records of the listed decisions, judgments and
orders, he issued memos to the officers of the
Court, the Branch Clerk of Court, the docket clerk,
directing them to produce and secure copies of the
minutes and other documents related therein. He
personally checked the records of the RTC. The
Records of the RTC are bereft of evidence to show
that regular and true proceedings were had on
these cases. There is no showing that a docket fee
has been paid for each corresponding cases. There
is also no showing that the parties were notified of
a scheduled hearing as calendared. There is also
no record that a hearing was conducted. No
stenographic notes of the actual proceedings were
also made. He could not also determine when the
said cases were submitted for decision as it was
not calendared for that purpose.8

Judge Jabido also submitted a report, portions of which read:

The undersigned took extra efforts to locate any
record of the cases involving the parties as
enumerated in the list. The undersigned even
issued Memorandum to the Branch Clerk of Court,
the docket clerk and other responsible officers of
the Court to produce and secure copies of any
pleading/documents related to these cases
enumerated in the list but his efforts proved futile,
hence:
a) to this Court, there is no record on file of all the
enumerated cases contained in the list.
b) to this Court, it is bereft of any evidence on
whether the Hon. Judge Indar conducted a hearing
in these cases.
xxxx
There is absence of any record showing compliance
of the same. It is hereby submitted that the
manner upon which the questioned annulment and
correction cases, as contained herein in the
attached list, allegedly decided by the Hon.
Judge Indar were commenced are clearly doubtful.
Firstly, there is no showing of compliance on the
rules prescribed.
xxxx
There is no showing that a verified Petition was
officially filed in writing and giving (sic) an
opportunity for the Respondents to be heard by
himself or by counsel. x x x9
To support his findings, Judge Jabido submitted: (1) copies of the
Letters and Memoranda mentioned in the report; (2) the Calendar
of Cases in RTC-Cotabato, Branch 15, on various dates from the
period starting April 2007 to 20 October 2009; and (3) the Docket
Inventory in Civil Cases, Criminal Cases and Other Cases for the
period of January to December 2009 in RTC-Cotabato, Branch 15.

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Legal Ethics

Subpoenas were sent to some of the parties in the questioned

decisions, namely: Grace Elizarde Reyes (Special Case No. 1049),
Buenaventura Mojica (Apl. Proc. No. 08-1931), Marie Christine
N. Florendo (Civil Case No. 519), Jesse Yamson Faune, Jr. (Special
Civil Case 08-2366), Rosemarie Tongson Ramos (Special Case No.
08-1871) and Melissa Sangan-Demafelis (Spl. Proc. 07-2262) to
determine whether they filed the petitions for annulment of
marriage and whether proceedings were actually had before
Judge Indars sala in relation to their cases. All the subpoenas were
returned to the Court of Appeals.
In his Report dated 2 September 2011, Justice Borreta first
determined whether the requirements of due process had been
complied with since there was no proof that Judge Indar personally
and actually received any of the notices sent to him in the course
of the investigation.

Court for such cases clearly violates the Code of Judicial Conduct.
Judge Indar made it appear that the annulment cases underwent
trial, when the records show no judicial proceedings occurred.
Moreover, Judge Indars act of affirming in writing before the
Australian Embassy the validity of a decision he allegedly
rendered, when in fact that case does not appear in the courts
records, constitutes dishonesty.
Justice Borreta recommended the dismissal of Judge Indar from
service, and the investigation of Atty. Silongan, who is not included
as respondent in this case, on her participation in the certification
of the authenticity of the spurious Decisions.
The sole issue in this case is whether Judge Indar is guilty of gross
misconduct and dishonesty.
We agree with the findings of the Investigating Justice.

Justice Borreta differentiated administrative due process with

judicial due process. He stated that while a day in court is a matter
of right in judicial proceedings, it is otherwise in administrative
proceedings since they rest upon different principles.
Justice Borreta noted that all possible means to locate
Judge Indar and to personally serve the court notices to him were
resorted
to.
The
notices
of
hearing
were
sent
to
Judge Indars known
addresses,
namely,
his sala in
RTCCotabato Branch 14 and RTC-Shariff Aguak Branch 15, and at his
residence address. However, none of the notices appeared to have
been personally received by Judge Indar.
Notwithstanding, Justice Borreta concluded that the requirements
of due process have been complied with. Justice Borreta stated
that Judge Indar was aware of a pending administrative case
against him. The notice of this Courts Resolution of 4 May 2010,
preventively suspending Judge Indar, was mailed and sent to him
at his sala in RTC-Shariff Aguak, Branch 15.
Justice Borreta proceeded to determine Judge Indars administrative
liability, and found the latter guilty of serious misconduct and
dishonesty.
According to Justice Borreta, Judge Indars act of issuing decisions
on annulment of marriage cases without complying with the
stringent procedural and substantive requirements of the Rules of

The Uniform Rules on Administrative Cases in the Civil Service,

which govern the conduct of disciplinary and non-disciplinary
proceedings in administrative cases, clearly provide that technical
rules of procedure and evidence do not strictly apply to
administrative proceedings. Section 3, Rule I of the Uniform Rules
states:
Section 3. Technical Rules in Administrative
Investigations. Administrative investigations shall
be conducted without necessarily adhering strictly
to the technical rules of procedure and evidence
applicable to judicial proceedings.
In Cornejo v. Gabriel,10 the Court held that notice and hearing are
not indispensable in administrative investigations, thus:
The fact should not be lost sight of that we are
dealing with an administrative proceeding and not
with a judicial proceeding. As Judge Cooley, the
leading American writer on constitutional Law, has
well said, due process of law is not necessarily
judicial process; much of the process by means of
which the Government is carried on, and the order
of society maintained, is purely executive or
administrative, which is as much due process of
law, as is judicial process. While a day in court is

49

Legal Ethics

a matter of right in judicial proceedings, in

administrative proceedings it is otherwise
since they rest upon different principles. In
certain
proceedings,
therefore,
of
an
administrative character, it may be stated,
without fear of contradiction, that the right
to a notice and hearing are not essential to
due process of law. x x x11 (Emphasis supplied;
citations omitted)
It is settled that technical rules of procedure and evidence are not
strictly applied to administrative proceedings. Thus, administrative
due process cannot be fully equated with due process in its strict
judicial sense.12 It is enough that the party is given the chance to
be heard before the case against him is decided. 13 Otherwise
stated, in the application of the principle of due process, what is
sought to be safeguarded is not lack of previous notice but the
denial of the opportunity to be heard.14
The Court emphasized in Cornejo15 the Constitutional precept that
public office is a public trust, 16 which is the underlying principle for
the relaxation of the requirements of due process of law in
administrative proceedings, thus:
Again, for this petition to come under the due
process of law prohibition, it would be necessary to
consider an office as property. It is, however, well
settled in the United States, that a public office is
not property within the sense of the
constitutional guaranties of due process of
law,
but
is
a
public
trust
or
agency.17 (Emphasis supplied)
In this case, Judge Indar was given ample opportunity to controvert
the charges against him. While there is no proof that
Judge Indar personally received the notices of hearing issued by
the Investigating Justices, the first two notices of hearing were
received by one Mustapha Randang of the Clerk of Court, RTCCotabato, while one of the notices was received by a certain
Mrs. Asok, who were presumably authorized and capable to receive
notices on behalf of Judge Indar.

Further, Judge Indar cannot feign ignorance of the administrative

investigation against him because aside from the fact that the
Courts Resolution suspending him was mailed to him, his
preventive suspension was reported in major national
newspapers.18 Moreover, Judge Indar was repeatedly sent notices
of hearings to his known addresses. Thus, there was due notice on
Judge Indar of the charges against him. However, Judge Indar still
failed to file his explanation and appear at the scheduled hearings.
Consequently, the investigation proceeded ex parte in accordance
with Section 4, Rule 140 of the Rules of Court.19
Public office is a public trust. 20 This constitutional principle requires
a judge, like any other public servant and more so because of his
exalted position in the Judiciary, to exhibit at all times the highest
degree of honesty and integrity.21 As the visible representation of
the law tasked with dispensing justice, a judge should conduct
himself at all times in a manner that would merit the respect and
confidence of the people.22
Judge Indar miserably failed to live up to these exacting standards.
In Office of the Court Administrator v. Lopez,23 the Court explained
the difference between simple misconduct and grave misconduct,
thus:
The Court defines misconduct as a transgression of
some established and definite rule of action, more
particularly, unlawful behavior or gross negligence
by a public officer. The misconduct is grave if it
involves any of the additional elements of
corruption, willful intent to violate the law, or to
disregard established rules, which must be
established
by
substantial
evidence.
As
distinguished from simple misconduct, the
elements of corruption, clear intent to violate the
law, or flagrant disregard of established rule, must
be manifest in a charge of grave misconduct.
In
this
case,
Judge Indar issued
decisions
on
numerous annulment of marriage cases which do not exist in the
records of RTC-Shariff Aguak, Branch 15 or the Office of the Clerk of
Court of the Regional Trial Court, Cotabato City. There is nothing to
show that (1) proceedings were had on the questioned cases; (2)
docket fees had been paid; (3) the parties were notified of a

50

Legal Ethics

scheduled hearing as calendared; (4) hearings had been

conducted; or (5) the cases were submitted for decision. As found
by the Audit Team, the list of case titles submitted by the Local
Civil Registrars of Manila and Quezon City are not found in the list
of cases filed, pending or decided in RTC, Branch 15, Shariff Aguak,
nor in the records of the Office of the Clerk of Court of the Regional
Trial Court, Cotabato City. In other words, Judge Indar, who had
sworn to faithfully uphold the law, issued decisions on the
questioned annulment of marriage cases, without any showing that
such cases underwent trial and complied with the statutory and
jurisprudential requisites for voiding marriages. Such act
undoubtedly constitutes gross misconduct.
The Court condemns Judge Indars reprehensible act of issuing
Decisions that voided marital unions, without conducting any
judicial proceedings. Such malfeasance not only makes a mockery
of marriage and its life-changing consequences but likewise grossly
violates the basic norms of truth, justice, and due process. Not only
that, Judge Indars gross misconduct greatly undermines the
peoples faith in the judiciary and betrays public trust and
confidence in the courts. Judge Indars utter lack of moral fitness
has no place in the Judiciary. Judge Indar deserves nothing less
than dismissal from the service.
The Court defines dishonesty as:
x x x a disposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity; lack of
honesty, probity or integrity in principle; lack of
fairness and straightforwardness; disposition to
defraud, deceive or betray.24
In
this
case,
Judge Indar issued
Decisions
on
numerous annulment of marriage cases when in fact he did not
conduct any judicial proceedings on the cases. Not even the filing
of the petitions occurred. Judge Indar made it appear in his
Decisions that the annulment cases complied with the stringent
requirements of the Rules of Court and the strict statutory and
jurisprudential conditions for voiding marriages, when quite the
contrary is true, violating Canon 3 of the Code of Judicial Conduct
which mandates that a judge perform official duties honestly.
As found by the Audit Team, the list of cases submitted by the
Local Civil Registrars of Manila and Quezon City do not appear in

the records of cases received, pending, or disposed by RTCShariff Aguak, Branch 15, which Judge Indar presided. The cases do
not likewise exist in the docket books of the Office of the Clerk of
Court, RTC-Cotabato. The Audit Team also noted that the case
numbers in the list are not within the series of case numbers
recorded in the docket books of either RTC-Shariff Aguak or RTCCotabato.
Moreover, Judge Jabido, Acting Presiding Judge of RTCShariff Aguak, Branch 15, verified the records of the trial court and
found nothing to show that proceedings were had on the
questioned annulment cases. There was nothing in the records to
show that (1) petitions were filed; (2) docket fees were paid; (3) the
parties were notified of hearings; (4) hearings were calendared and
actually held; (5) stenographic notes of the proceedings were
taken; and (6) the cases were submitted for decision.
Among the questioned annulment decrees is Judge Indars Decision
dated
23
May
2007,
in
Spec.
Proc.
No.
06-581,
entitled Chona Chanco Aguiling v. Alan V. Aguiling. Despite the fact
that
no
proceedings
were
conducted
in
the
case,
Judge Indar declared categorically, in response to the Australian
Embassy letter, that the Decision annulling the marriage is valid
and that petitioner is free to marry. In effect, Judge Indar confirms
the truthfulness of the contents of the annulment decree,
highlighting Judge Indars appalling dishonesty.
The Court notes that this is not Judge Indars first offense. In A.M.
No. RTJ-05-1953,25 the Court imposed on him a fine of P10,000 for
violating Section 5, Rule 58 of the Rules of Court, when he issued a
preliminary injunction without any hearing and prior notice to the
parties. In another case, A.M. No. RTJ-07-2069,26 the Court found
him guilty of gross misconduct for committing violations of the
Code of Judicial Conduct and accordingly fined him P25,000.
Since this is Judge Indars third offense, showing the depravity of
his character and aggravating 27 the serious offenses of gross
misconduct and dishonesty,28 the Court imposes on Judge Indar the
ultimate penalty of dismissal from the service, with its accessory
penalties, pursuant to Section 11, Rule 140 of the Rules of Court. 29
This administrative case against Judge Indar shall also be
considered as a disciplinary proceeding against him as a member

51

Legal Ethics

of the Bar, in accordance with AM. No. 02-9-02-SC.30 This

Resolution entitled Re: Automatic Conversion of Some
Administrative Cases Against Justices of the Court of Appeals and
the Sandiganbayan; Judges of Regular and Special Courts; and
Court Officials Who are Lawyers as Disciplinary Proceedings
Against Them Both as Such Officials and as Members of the
Philippine Bar, provides:
Some administrative cases against Justices of the Court of
Appeals and the Sandiganbayan; judges of regular and special
courts; and the court officials who are lawyers are based on
grounds which are likewise grounds for the disciplinary
action of members of the Bar for violation of the Lawyers Oath,
the Code of Professional Responsibility, and the Canons of
Professional Ethics, or for such other forms of breaches of conduct
that have been traditionally recognized as grounds for the
discipline of lawyers.
In any of the foregoing instances, the administrative case
shall also be considered a disciplinary action against the
respondent justice, judge or court official concerned as a
member of the Bar. The respondent may forthwith be required to
comment on the complaint and show cause why he should not also
be suspended, disbarred or otherwise disciplinary sanctioned as a
member of the Bar. Judgment in both respects may be
incorporated in one decision or resolution. (Emphasis
supplied)
Indisputably, Judge Indars gross misconduct and dishonesty
likewise constitute a breach of the following Canons of the Code of
Professional Responsibility:
CANON 1 - A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LAW AND FOR LEGAL
PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful act.
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
AND DIGNITY OF THE LEGAL PROFESSION.
In addition, Judge Indars dishonest act of issuing decisions making
it appear that the annulment cases underwent trial and complied

with the Rules of Court, laws, and established jurisprudence

violates the lawyers oath to do no falsehood, nor consent to the
doing of any in court. Such violation is also a ground for
disbarment. Section 27, Rule 138 of the Rules of Court provides:
SEC. 27. Disbarment and suspension of attorneys by Supreme
Court, grounds therefor. - A member of the bar may be
disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by reason of
his conviction of a crime involving moral turpitude, or for
any violation of the oath which he is required to take before
admission to practice, or for a willful disobedience of any lawful
order of a superior court, or for corruptly or willfully appearing as
an attorney for a party to a case without authority so to do. The
practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes
malpractice. (Emphasis supplied)
In Samson v. Caballero,31 where the Court automatically disbarred
the respondent judge, pursuant to the provisions of AM. No. 02-902-SC, the Court held:
Under the same rule, a respondent may forthwith
be required to comment on the complaint and
show cause why he should not also be suspended,
disbarred or otherwise disciplinary sanctioned as
member of the Bar. The rule does not make it
mandatory, before respondent may be held liable
as a member of the bar, that respondent be
required to comment on and show cause why he
should not be disciplinary sanctioned as a lawyer
separately from the order for him to comment on
why he should not be held administratively liable
as a member of the bench. In other words, an order
to comment on the complaint is an order to give an
explanation on why he should not be held
administratively liable not only as a member of the
bench but also as a member of the bar. This is the
fair and reasonable meaning of automatic
conversion of administrative cases against justices
and judges to disciplinary proceedings against
them as lawyers. This will also serve the purpose of

52

Legal Ethics

A.M. No. 02-9-02-SC to avoid the duplication or

unnecessary replication of actions by treating an
administrative complaint filed against a member of
the bench also as a disciplinary proceeding against
him as a lawyer by mere operation of the rule.
Thus, a disciplinary proceeding as a member of the
bar is impliedly instituted with the filing of an
administrative
case
against
a
justice
of
the Sandiganbayan, Court of Appeals and Court of
Tax Appeals or a judge of a first- or second-level
court.
It cannot be denied that respondents dishonesty
did not only affect the image of the judiciary, it also
put his moral character in serious doubt and
rendered him unfit to continue in the practice of
law. Possession of good moral character is not only
a prerequisite to admission to the bar but also a
continuing requirement to the practice of law. If the
practice of law is to remain an honorable
profession and attain its basic ideals, those
counted within its ranks should not only master its
tenets and principles but should also accord
continuing fidelity to them. The requirement of
good moral character is of much greater
import, as far as the general public is
concerned, than the possession of legal
learning. (Emphasis supplied)

15, Shariff Aguak, Maguindanao, guilty of Gross Misconduct and

Dishonesty for which he is DISMISSED from the service, with
forfeiture of all benefits due him, except accrued leave benefits, if
any, with prejudice to re-employment in any branch of the
government,
including
government-owned
or
controlled
corporations.
Judge Indar is likewise DISBARRED for violation of Canons 1 and 7
and Rule 1.01 of the Code of Professional Responsibility and his
name ORDERED STRICKEN from the Roll of Attorneys.
Let a copy of this Decision be entered into Judge Indars record as a
member of the bar and notice of the same be served on the
Integrated Bar of the Philippines and on the Office of the Court
Administrator for circulation to all courts in the country.
The Office of the Court Administrator is ORDERED to investigate
Atty. Umaima L. Silongan, Acting Clerk of Court of the Regional Trial
Court, Cotabato City, on her alleged participation in the
authentication of the questioned Decisions on the annulment of
marriage cases issued by Judge Indar.
Let copies of this Decision be forwarded to the Local Civil
Registrars of the City of Manila and Quezon City, the same to form
part of the records of Decisions of Judge Indar on the annulment of
marriages filed with their offices.
This Decision is immediately executory.
SO ORDERED.

Considering that Judge Indar is guilty of gross misconduct and

dishonesty, constituting violations of the Lawyers Oath, and
Canons 1 and 7 and Rule 1.01 of the Code of Professional
Responsibility, Judge Indar deserves disbarment.
In
so
far
as
Atty. Silongan, is
concerned,
we
adopt
Justice Borretas recommendation to conduct an investigation on
her alleged participation in the authentication of the questioned
Decisions.
WHEREFORE, the Court finds respondent Judge Cader P. Indar,
Al Haj, Presiding Judge of the RTC, Branch 14, Cotabato City and
Acting
Presiding
Judge
of
the
RTC,
Branch

53

Legal Ethics

VENANCIO CASTANEDA and NICETAS HENSON, petitioners,

vs.
PASTOR D. AGO, LOURDES YU AGO and THE COURT OF
APPEALS, respondents.

The parties in this case, except Lourdes Yu Ago, have been

commuting to this Court for more than a decade.
In 1955 the petitioners Venancio Castaeda and Nicetas Henson
filed a replevin suit against Pastor Ago in the Court of First Instance
of Manila to recover certain machineries (civil case 27251). In 1957
judgment was rendered in favor of the plaintiffs, ordering Ago to
return the machineries or pay definite sums of money. Ago
appealed, and on June 30, 1961 this Court, in Ago vs. Castaeda, L14066, affirmed the judgment. After remand, the trial court issued
on August 25, 1961 a writ of execution for the sum of P172,923.87.
Ago moved for a stay of execution but his motion was denied, and
levy was made on Ago's house and lots located in Quezon City. The
sheriff then advertised them for auction sale on October 25, 1961.
Ago moved to stop the auction sale, failing in which he filed a
petition for certiorari with the Court of Appeals. The appellate court
dismissed the petition and Ago appealed. On January 31,1966 this
Court, in Ago vs. Court of Appeals, et al., L-19718, affirmed the
dismissal. Ago thrice attempted to obtain a writ of preliminary
injunction to restrain the sheriff from enforcing the writ of
execution "to save his family house and lot;" his motions were
denied, and the sheriff sold the house and lots on March 9, 1963 to
the highest bidders, the petitioners Castaeda and Henson. Ago
failed to redeem, and on April 17, 1964 the sheriff executed the
final deed of sale in favor of the vendees Castaeda and Henson.
Upon their petition, the Court of First Instance of Manila issued a
writ of possession to the properties.
However, on May 2, 1964 Pastor Ago, now joined by his wife,
Lourdes Yu Ago, as his co-plaintiff, filed a complaint in the Court of
First Instance of Quezon City (civil case Q-7986) to annul the
sheriff's sale on the ground that the obligation of Pastor Ago upon
which judgment was rendered against him in the replevin suit was

54

Legal Ethics

his personal obligation, and that Lourdes Yu Ago's one-half share in

their conjugal residential house and lots which were levied upon
and sold by the sheriff could not legally be reached for the
satisfaction of the judgment. They alleged in their complaint that
wife Lourdes was not a party in the replevin suit, that the judgment
was rendered and the writ of execution was issued only against
husband Pastor, and that wife Lourdes was not a party to her
husband's venture in the logging business which failed and
resulted in the replevin suit and which did not benefit the conjugal
partnership.
The Court of First Instance of Quezon City issued an ex parte writ of
preliminary injunction restraining the petitioners, the Register of
Deeds and the sheriff of Quezon City, from registering the latter's
final deed of sale, from cancelling the respondents' certificates of
title and issuing new ones to the petitioners and from carrying out
any writ of possession. A situation thus arose where what
the Manila court had ordered to be done, the Quezon City court
countermanded. On November 1, 1965, however, the latter court
lifted the preliminary injunction it had previously issued, and the
Register of deeds of Quezon City cancelled the respondents'
certificates of title and issued new ones in favor of the petitioners.
But enforcement of the writ of possession was again thwarted as
the Quezon City court again issued a temporary restraining order
which it later lifted but then re-restored. On May 3, 1967 the court
finally, and for the third time, lifted the restraining order.
While the battle on the matter of the lifting and restoring of the
restraining order was being fought in the Quezon City court, the
Agos filed a petition for certiorari and prohibition with this Court
under date of May 26, 1966, docketed as L-26116, praying for a
writ of preliminary injunction to enjoin the sheriff from enforcing
the writ of possession. This Court found no merit in the petition and
dismissed it in a minute resolution on June 3, 1966; reconsideration
was denied on July 18, 1966. The respondents then filed on August
2, 1966 a similar petition for certiorari and prohibition with the
Court of Appeals (CA-G.R. 37830-R), praying for the same
preliminary injunction. The Court of Appeals also dismissed the
petition. The respondents then appealed to this Court (L27140).1wph1.t We dismissed the petition in a minute
resolution on February 8, 1967.

The Ago spouses repaired once more to the Court of Appeals where
they filed another petition for certiorari and prohibition with
preliminary injunction (CA-G.R. 39438-R). The said court gave due
course to the petition and granted preliminary injunction. After
hearing, it rendered decision, the dispositive portion of which
reads:
WHEREFORE, writ of preliminary injunction from
enforcement of the writ of possession on and
ejectment from the one-half share in the properties
involved belonging to Lourdes Yu Ago dated June
15, 1967 is made permanent pending decision on
the merits in Civil Case No. Q-7986 and ordering
respondent Court to proceed with the trial of Civil
Case No. Q-7986 on the merits without
unnecessary delay. No pronouncement as to costs.
Failing to obtain reconsideration, the petitioners Castaeda and
Henson filed the present petition for review of the aforesaid
decision.
1. We do not see how the doctrine that a court may not interfere
with the orders of a co-equal court can apply in the case at bar.
The Court of First Instance of Manila, which issued the writ of
possession, ultimately was not interfered with by its co-equal court,
the Court of First Instance of Quezon City as the latter lifted the
restraining order it had previously issued against the enforcement
of the Manila court's writ of possession; it is the Court of Appeals
that enjoined, in part, the enforcement of the writ.
2. Invoking Comilang vs. Buendia, et al., 1 where the wife was a
party in one case and the husband was a party in another case and
a levy on their conjugal properties was upheld, the petitioners
would have Lourdes Yu Ago similarly bound by the replevin
judgment against her husband for which their conjugal properties
would be answerable. The case invoked is not at par with the
present case. In Comilang the actions were admittedly instituted
for the protection of the common interest of the spouses; in the
present case, the Agos deny that their conjugal partnership
benefited from the husband's business venture.

55

Legal Ethics

3. Relying upon Omnas vs. Rivera, 67 Phil. 419, the Court of

Appeals held that a writ of possession may not issue until the claim
of a third person to half-interest in the property is adversely
determined, the said appellate court assuming that Lourdes Yu Ago
was a "stranger" or a "third-party" to her husband. The assumption
is of course obviously wrong, for, besides living with her husband
Pastor, she does not claim ignorance of his business that failed, of
the relevant cases in which he got embroiled, and of the auction
sale made by the sheriff of their conjugal properties. Even then,
the ruling in Omnas is not that a writ of possession may not issue
until the claim of a third person is adversely determined, but that
the writ of possession being a complement of the writ of execution,
a judge with jurisdiction to issue the latter also has jurisdiction to
issue the former, unless in the interval between the judicial sale
and the issuance of the writ of possession, the rights of third
parties to the property sold have supervened. The ruling
in Omnas is clearly inapplicable in the present case, for, here, there
has been no change in the ownership of the properties or of any
interest therein from the time the writ of execution was issued up
to the time writ of possession was issued, and even up to the
present.
4. We agree with the trial court (then presided by Judge Lourdes P.
San Diego) that it is much too late in the day for the respondents
Agos to raise the question that part of the property is unleviable
because it belongs to Lourdes Yu Ago, considering that (1) a wife is
normally privy to her husband's activities; (2) the levy was made
and the properties advertised for auction sale in 1961; (3) she lives
in the very properties in question; (4) her husband had moved to
stop the auction sale; (5) the properties were sold at auction in
1963; (6) her husband had thrice attempted to obtain a preliminary
injunction to restrain the sheriff from enforcing the writ of
execution; (7) the sheriff executed the deed of final sale on April
17, 1964 when Pastor failed to redeem; (8) Pastor had impliedly
admitted that the conjugal properties could be levied upon by his
pleas "to save his family house and lot" in his efforts to prevent
execution; and (9) it was only on May 2, 1964 when he and his wife
filed the complaint for annulment of the sheriff's sale upon the
issue that the wife's share in the properties cannot be levied upon
on the ground that she was not a party to the logging business and
not a party to the replevin suit. The spouses Ago had every

opportunity to raise the issue in the various proceedings

hereinbefore discussed but did not; laches now effectively bars
them from raising it.
Laches, in a general sense, is failure or neglect, for
an unreasonable and unexplained length of time,
to do that which, by exercising due diligence, could
or should have been done earlier; it is negligence
or omission to assert a right within a reasonable
time, warranting a presumption that the party
entitled to assert it either has abandoned it or
declined to assert it. 2
5. The decision of the appellate court under review suffers from
two fatal infirmities.
(a) It enjoined the enforcement of the writ of possession to and
ejectment from the one-half share in the properties involved
belonging to Lourdes Yu Ago. This half-share is not in esse, but is
merely an inchoate interest, a mere expectancy, constituting
neither legal nor equitable estate, and will ripen into title when
only upon liquidation and settlement there appears to be assets of
the community. 3 The decision sets at naught the well-settled rule
that injunction does not issue to protect a right not in esse and
which may never arise. 4
(b) The decision did not foresee the absurdity, or even the
impossibility, of its enforcement. The Ago spouses admittedly live
together in the same house 5 which is conjugal property. By the
Manila court's writ of possession Pastor could be ousted from the
house, but the decision under review would prevent the ejectment
of Lourdes. Now, which part of the house would be vacated by
Pastor and which part would Lourdes continue to stay in? The
absurdity does not stop here; the decision would actually separate
husband and wife, prevent them from living together, and in effect
divide their conjugal properties during coverture and before the
dissolution of the conjugal union.
6. Despite the pendency in the trial court of the complaint for the
annulment of the sheriff's sale (civil case Q-7986), elementary

56

Legal Ethics

justice demands that the petitioners, long denied the fruits of their
victory in the replevin suit, must now enjoy them, for, the
respondents Agos, abetted by their lawyer Jose M. Luison, have
misused legal remedies and prostituted the judicial process to
thwart the satisfaction of the judgment, to the extended prejudice
of the petitioners. The respondents, with the assistance of counsel,
maneuvered for fourteen (14) years to doggedly resist execution of
the judgment thru manifold tactics in and from one court to
another (5 times in the Supreme Court).
We condemn the attitude of the respondents and their counsel
who,
far from viewing courts as sanctuaries for those
who seek justice, have tried to use them to subvert
the very ends of justice. 6

propensity to litigate. A lawyer's oath to uphold the

cause of justice is superior to his duty to his client;
its primacy is indisputable. 7
7. In view of the private respondents' propensity to use the courts
for purposes other than to seek justice, and in order to obviate
further delay in the disposition of the case below which might
again come up to the appellate courts but only to fail in the end,
we have motu proprio examined the record of civil case Q-7986
(the mother case of the present case). We find that
(a) the complaint was filed on May 2, 1964 (more than 11 years
ago) but trial on the merits has not even started;
(b) after the defendants Castaedas had filed their answer with a
counterclaim, the plaintiffs Agos filed a supplemental complaint
where they impleaded new parties-defendants;

Forgetting his sacred mission as a sworn public servant and his

exalted position as an officer of the court, Atty. Luison has allowed
himself to become an instigator of controversy and a predator of
conflict instead of a mediator for concord and a conciliator for
compromise, a virtuoso of technicality in the conduct of litigation
instead of a true exponent of the primacy of truth and moral
justice.

(c) after the admission of the supplemental complaint, the Agos

filed a motion to admit an amended supplemental complaint,
which impleads an additional new party-defendant (no action has
yet been taken on this motion);

A counsel's assertiveness in espousing with

candour and honesty his client's cause must be
encouraged and is to be commended; what we do
not and cannot countenance is a lawyer's
insistence despite the patent futility of his client's
position, as in the case at bar.

(e) the last order of the Court of First Instance, dated April 20,
1974, grants an extension to the suspension of time to file answer.
(Expediente, p. 815)

It is the duty of a counsel to advise his client,

ordinarily a layman to the intricacies and vagaries
of the law, on the merit or lack of merit of his case.
If he finds that his client's cause is defenseless,
then it is his bounden duty to advise the latter to
acquiesce and submit, rather than traverse the
incontrovertible. A lawyer must resist the whims
and caprices of his client, and temper his clients

(d) the defendants have not filed an answer to the admitted

supplemental complaint; and

We also find that the alleged causes of action in the complaint,

supplemental complaint and amended supplemental complaint are
all untenable, for the reasons hereunder stated. The Complaint
Upon the first cause of action, it is alleged that the sheriff levied
upon conjugal properties of the spouses Ago despite the fact that
the judgment to be satisfied was personal only to Pastor Ago, and
the business venture that he entered into, which resulted in the
replevin suit, did not redound to the benefit of the conjugal

57

Legal Ethics

partnership. The issue here, which is whether or not the wife's

inchoate share in the conjugal property is leviable, is the same
issue that we have already resolved, as barred by laches, in
striking down the decision of the Court of Appeals granting
preliminary injunction, the dispositive portion of which was hereinbefore quoted. This ruling applies as well to the first cause of
action of the complaint.
Upon the second cause of action, the Agos allege that on January
5, 1959 the Castaedas and the sheriff, pursuant to an alias writ of
seizure, seized and took possession of certain machineries,
depriving the Agos of the use thereof, to their damage in the sum
of P256,000 up to May 5, 1964. This second cause of action fails to
state a valid cause of action for it fails to allege that the order of
seizure is invalid or illegal.
It is averred as a third cause of action that the sheriff's sale of the
conjugal properties was irregular, illegal and unlawful because the
sheriff did not require the Castaeda spouses to pay or liquidate
the sum of P141,750 (the amount for which they bought the
properties at the auction sale) despite the fact that there was
annotated at the back of the certificates of title a mortgage of
P75,000 in favor of the Philippine National Bank; moreover, the
sheriff sold the properties for P141,750 despite the pendency of L19718 where Pastor Ago contested the amount of P99,877.08 out
of the judgment value of P172,923.37 in civil case 27251; and
because of said acts, the Agos suffered P174,877.08 in damages.
Anent this third cause of action, the sheriff was under no obligation
to require payment of the purchase price in the auction sale
because "when the purchaser is the judgment creditor, and no
third-party claim has been filed, he need not pay the amount of the
bid if it does not exceed the amount of his judgment." (Sec. 23,
Rule 39, Rules of Court)
The annotated mortgage in favor of the PNB is the concern of the
vendees Castaedas but did not affect the sheriff's sale; the
cancellation of the annotation is of no moment to the Agoo.

Case L-19718 where Pastor Ago contested the sum of P99,877.08

out of the amount of the judgment was dismissed by this Court on
January 31, 1966.
This third cause of action, therefore, actually states no valid cause
of action and is moreover barred by prior judgment.
The fourth cause of action pertains to moral damages allegedly
suffered by the Agos on account of the acts complained of in the
preceding causes of action. As the fourth cause of action derives
its life from the preceding causes of action, which, as shown, are
baseless, the said fourth cause of action must necessarily fail.
The Counterclaim
As a counterclaim against the Agos, the Castaedas aver that the
action was unfounded and as a consequence of its filing they were
compelled to retain the services of counsel for not less than
P7,500; that because the Agos obtained a preliminary injunction
enjoining the transfer of titles and possession of the properties to
the Castaedas, they were unlawfully deprived of the use of the
properties from April 17, 1964, the value of such deprived use
being 20% annually of their actual value; and that the filing of the
unfounded action besmirched their feelings, the pecuniary worth of
which is for the court to assess.
The Supplemental Complaint
Upon the first cause of action, it is alleged that after the filing of
the complaint, the defendants, taking advantage of the dissolution
of the preliminary injunction, in conspiracy and with gross bad faith
and evident intent to cause damage to the plaintiffs, caused the
registration of the sheriff's final deed of sale; that, to cause more
damage, the defendants sold to their lawyer and his wife two of
the parcels of land in question; that the purchasers acquired the
properties in bad faith; that the defendants mortgaged the two
other parcels to the Rizal Commercial Banking Corporation while
the defendants' lawyer and his wife also mortgaged the parcels
bought by them to the Rizal Commercial Bank; and that the bank
also acted in bad faith.

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Legal Ethics

The second cause of action consists of an allegation of additional

damages caused by the defendants' bad faith in entering into the
aforesaid agreements and transactions.
The Amended Supplemental Complaint
The amendment made pertains to the first cause of action of the
supplemental complaint, which is, the inclusion of a paragraph
averring that, still to cause damage and prejudice to the plaintiffs,
Atty. & Mrs. Juan Quijano, in bad faith sold the two parcels of land
they had previously bought to Eloy Ocampo who acquired them
also in bad faith, while Venancio Castaeda and Nicetas Henson in
bad faith sold the two other parcels to Juan Quijano (60%) and Eloy
Ocampo (40%) who acquired them in bad faith and with knowledge
that the properties are the subject of a pending litigation.

ACCORDINGLY, the decision of the Court of Appeals under review is

set aside. Civil case Q-7986 of the Court of First Instance of Rizal is
ordered dismissed, without prejudice to the re-filing of the
petitioners' counterclaim in a new and independent action. Treble
costs are assessed against the spouses Pastor Ago and Lourdes Yu
Ago, which shall be paid by their lawyer, Atty. Jose M. Luison. Let a
copy of this decision be made a part of the personal file of Atty.
Luison in the custody of the Clerk of Court.

Discussion on The Causes of Action

of The Supplemental Complaint And
The Amended Supplemental Complaint
Assuming hypothetically as true the allegations in the first cause of
action of the supplemental complaint and the amended
supplemental complaint, the validity of the cause of action would
depend upon the validity of the first cause of action of the original
complaint, for, the Agos would suffer no transgression upon their
rights of ownership and possession of the properties by reason of
the agreements subsequently entered into by the Castaedas and
their lawyer if the sheriff's levy and sale are valid. The reverse is
also true: if the sheriff's levy and sale are invalid on the ground
that the conjugal properties could not be levied upon, then the
transactions would perhaps prejudice the Agos, but, we have
already indicated that the issue in the first cause of action of the
original complaint is barred by laches, and it must therefore follow
that the first cause of action of the supplemental complaint and
the amended supplemental complaint is also barred.
For the same reason, the same holding applies to the remaining
cause of action in the supplemental complaint and the amended
supplemental complaint.

59

Legal Ethics

THE DIRECTOR OF RELIGIOUS AFFAIRS, complainant,

vs.
ESTANISLAO R. BAYOT, respondent.
The respondent, who is an attorney-at-law, is charged with
malpractice for having published an advertisement in the Sunday
Tribune of June 13, 1943, which reads as follows:
Marriage
license promptly secured thru our assistance & the
annoyance of delay or publicity avoided if desired, and
marriage arranged to wishes of parties. Consultation on
any matter free for the poor. Everything confidential.
Legal
12
Escolta,
Tel. 2-41-60.

assistance
Manila,

Room,

In In re Tagorda, 53 Phil., the respondent attorney was suspended

from the practice of law for the period of one month for advertising
his services and soliciting work from the public by writing circular
letters. That case, however, was more serious than this because
there the solicitations were repeatedly made and were more
elaborate and insistent.
Considering his plea for leniency and his promise not to repeat the
misconduct, the Court is of the opinion and so decided that the
respondent should be, as he hereby is, reprimanded.

service
105

Appearing in his own behalf, respondent at first denied having

published the said advertisement; but subsequently, thru his
attorney, he admitted having caused its publication and prayed for
"the indulgence and mercy" of the Court, promising "not to repeat
such professional misconduct in the future and to abide himself to
the strict ethical rules of the law profession." In further mitigation
he alleged that the said advertisement was published only once in
the Tribune and that he never had any case at law by reason
thereof.
Upon that plea the case was submitted to the Court for decision.
It is undeniable that the advertisement in question was a flagrant
violation by the respondent of the ethics of his profession, it being
a brazen solicitation of business from the public. Section 25 of Rule
127 expressly provides among other things that "the practice of
soliciting cases at law for the purpose of gain, either personally or
thru paid agents or brokers, constitutes malpractice." It is highly
unethical for an attorney to advertise his talents or skill as a
merchant advertises his wares. Law is a profession and not a trade.
The lawyer degrades himself and his profession who stoops to and
adopts the practices of mercantilism by advertising his services or
offering them to the public. As a member of the bar, he defiles the
temple of justice with mercenary activities as the money-changers
of old defiled the temple of Jehovah. "The most worth and effective
advertisement possible, even for a young lawyer, . . . is the
establishment of a well-merited reputation for professional
capacity and fidelity to trust. This cannot be forced but must be the
outcome of character and conduct." (Canon 27, Code of Ethics.)

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Legal Ethics

SANTA PANGAN, complainant

vs.
ATTY. DIONISIO RAMOS, respondent,

This has reference to the motion of complainant, Santa Pangan, to

cite respondent Dionisio Ramos for contempt. It appears from the
record that on September 7, 1978 and March 13, 1979, the
hearings in this administrative case were postponed on the basis of
respondent's motions for postponement. These motions were
predicated on respondent's allegations that on said dates he had a
case set for hearing before Branch VII, Court of First Instance of
Manila, entitled People v. Marieta M. Isip (Criminal Case No.
35906). Upon verification, the attorney of record of the accused in
said case is one "Atty. Pedro D.D. Ramos, 306 Dona Salud Bldg.,
Dasmarinas Manila." Respondent admits that he used the name of
"Pedro D.D. Ramos" before said court in connection with Criminal
Case No. 35906, but avers that he had a right to do so because in
his Birth Certificate (Annex "A"), his name is "Pedro Dionisio
Ramos", and -his parents are Pedro Ramos and Carmen Dayaw,
and that the D.D. in "Pedro D.D. Ramos" is but an abbreviation of
"Dionisio Dayaw his other given name and maternal surname.
This explanation of respondent is untenable. The name appearing
in the "Roll of Attorneys" is "Dionisio D. Ramos". The attorney's roll
or register is the official record containing the names and
signatures of those who are authorized to practice law. A lawyer is
not authorized to use a name other than the one inscribed in the
Roll of Attorneys in his practice of law.
The official oath obliges the attorney solemnly to swear that he will
do no falsehood". As an officer in the temple of justice, an attorney
has irrefragable obligations of "truthfulness, candor and
frankness". 1 Indeed, candor and frankness should characterize the
conduct of the lawyer at every stage. This has to be so because
the court has the right to rely upon him in ascertaining the truth. In
representing himself to the court as "Pedro D.D. Ramos" instead of
"Dionisio D. Ramos", respondent has violated his solemn oath.

The duty of an attorney to the courts to employ, for the purpose of

maintaining the causes confided to him, such means as are
consistent with truth and honor cannot be overempahisized. These
injunctions circumscribe the general duty of entire devotion of the
attorney to the client. As stated in a case, his I nigh vocation is to
correctly inform the court upon the law and the facts of the case,
and to aid it in doing justice and arriving at correct conclusions. He
violates Ms oath of office ,when he resorts to deception or permits
his client to do so." 2
In using the name of' Pedro D.D. Ramos" before the courts instead
of the name by which he was authorized to practice law - Dionisio
D. Ramos - respondent in effect resorted to deception. The
demonstrated lack of candor in dealing with the courts. The
circumstance that this is his first aberration in this regard
precludes Us from imposing a more severe penalty.
WHEREFORE, in view of the foregoing, respondent Dionisio D.
Ramos is severely REPRIMANDED and warned that a repetition of
the same overt act may warrant his suspencion or disbarment from
the practice of law.
It appearing that the hearing of this case has been unduly delayed,
the Investigator of this Court is directed forthwith to proceed with
the hearing to terminate it as soon as possible. The request of
complainant to appear in the afore-mentioned hearing, assisted by
her counsel, Atty. Jose U. Lontoc, is hereby granted.
SO ORDERED

ADRIANO E. DACANAY, complainant

vs.
BAKER & MCKENZIE and JUAN G. COLLAS JR., LUIS MA.
GUERRERO, VICENTE A. TORRES, RAFAEL E. EVANGELISTA,
JR., ROMEO L. SALONGA, JOSE R. SANDEJAS, LUCAS M.
NUNAG, J. CLARO TESORO, NATIVIDAD B. KWAN and JOSE A.
CURAMMENG, JR., respondents.

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Legal Ethics

Lawyer Adriano E. Dacanay, admitted to the bar in 1954, in his

1980 verified complaint, sought to enjoin Juan G. Collas, Jr. and
nine other lawyers from practising law under the name of Baker &
McKenzie, a law firm organized in Illinois.
In a letter dated November 16, 1979 respondent Vicente A. Torres,
using the letterhead of Baker & McKenzie, which contains the
names of the ten lawyers, asked Rosie Clurman for the release of
87 shares of Cathay Products International, Inc. to H.E. Gabriel, a
client.
Attorney Dacanay, in his reply dated December 7, 1979, denied
any liability of Clurman to Gabriel. He requested that he be
informed whether the lawyer of Gabriel is Baker & McKenzie "and if
not, what is your purpose in using the letterhead of another law
office." Not having received any reply, he filed the instant
complaint.
We hold that Baker & McKenzie, being an alien law firm, cannot
practice law in the Philippines (Sec. 1, Rule 138, Rules of Court). As
admitted by the respondents in their memorandum, Baker &
McKenzie is a professional partnership organized in 1949 in
Chicago, Illinois with members and associates in 30 cities around
the world. Respondents, aside from being members of the
Philippine bar, practising under the firm name of Guerrero & Torres,
are members or associates of Baker & Mckenzie.
As pointed out by the Solicitor General, respondents' use of the
firm name Baker & McKenzie constitutes a representation that
being associated with the firm they could "render legal services of
the highest quality to multinational business enterprises and
others engaged in foreign trade and investment" (p. 3,
respondents' memo). This is unethical because Baker & McKenzie
is not authorized to practise law here. (See Ruben E. Agpalo, Legal
Ethics, 1983 Ed., p. 115.)
WHEREFORE, the respondents are enjoined from practising law
under the firm name Baker & McKenzie.
SO ORDERED.

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Legal Ethics

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,

vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL,
LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely,
GLICERIA DELA CRUZ BERNAL and LUIS BERNAL,
SR., respondents.

This special civil action for certiorari seeks to declare null and void
two (2) resolutions of the Special First Division of the Court of
Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De
Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated
on 30 September 1987 denied petitioners' motion for extension of
time to file a motion for reconsideration and directed entry of
judgment since the decision in said case had become final; and the
second Resolution dated 27 October 1987 denied petitioners'
motion for reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for
not being verified as required by Rule 65 section 1 of the Rules of
Court. However, even if the instant petition did not suffer from this
defect, this Court, on procedural and substantive grounds, would
still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out
building owned by petitioners collapsed and destroyed the tailoring
shop occupied by the family of private respondents, resulting in
injuries to private respondents and the death of Marissa Bernal, a
daughter. Private respondents had been warned by petitioners to
vacate their shop in view of its proximity to the weakened wall but
the former failed to do so. On the basis of the foregoing facts, the
Regional Trial Court. First Judicial Region, Branch XXXVIII, presided
by the Hon. Antonio M. Belen, rendered judgment finding
petitioners guilty of gross negligence and awarding damages to
private respondents. On appeal, the decision of the trial court was
affirmed in toto by the Court of Appeals in a decision promulgated
on August 17, 1987, a copy of which was received by petitioners on
August 25, 1987. On September 9, 1987, the last day of the fifteen-

day period to file an appeal, petitioners filed a motion for extension

of time to file a motion for reconsideration, which was eventually
denied by the appellate court in the Resolution of September 30,
1987. Petitioners filed their motion for reconsideration on
September 24, 1987 but this was denied in the Resolution of
October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave
abuse of discretion when it denied petitioners' motion for extension
of time to file a motion for reconsideration, directed entry of
judgment and denied their motion for reconsideration. It correctly
applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon,
[G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteenday period for appealing or for filing a motion for reconsideration
cannot be extended. In its Resolution denying the motion for
reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this
Court en banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the
rule shall be strictly enforced that no motion for extension of time
to file a motion for reconsideration may be filed with the
Metropolitan or Municipal Trial Courts, the Regional Trial Courts,
and the Intermediate Appellate Court. Such a motion may be filed
only in cases pending with the Supreme Court as the court of last
resort, which may in its sound discretion either grant or deny the
extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate
Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA
643], reiterated the rule and went further to restate and clarify the
modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15,
1986,144 SCRA 161],stressed the prospective application of said
rule, and explained the operation of the grace period, to wit:
In other words, there is a one-month grace period
from the promulgation on May 30, 1986 of the
Court's Resolution in the clarificatory Habaluyas

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Legal Ethics

case, or up to June 30, 1986, within which the rule

barring extensions of time to file motions for new
trial or reconsideration is, as yet, not strictly
enforceable.

holding petitioner liable under Article 2190 of the Civil Code, which
provides that "the proprietor of a building or structure is
responsible for the damage resulting from its total or partial
collapse, if it should be due to the lack of necessary repairs.

Since petitioners herein filed their motion for

extension on February 27, 1986, it is still within the
grace period, which expired on June 30, 1986, and
may still be allowed.

Nor was there error in rejecting petitioners argument that private

respondents had the "last clear chance" to avoid the accident if
only they heeded the. warning to vacate the tailoring shop and ,
therefore, petitioners prior negligence should be disregarded, since
the doctrine of "last clear chance," which has been applied to
vehicular accidents, is inapplicable to this case.

This grace period was also applied in Mission v. Intermediate

Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA
306].]

WHEREFORE, in view of the foregoing, the Court Resolved to DENY

the instant petition for lack of merit.

In the instant case, however, petitioners' motion for extension of

time was filed on September 9, 1987, more than a year after the
expiration of the grace period on June 30, 1986. Hence, it is no
longer within the coverage of the grace period. Considering the
length of time from the expiration of the grace period to the
promulgation of the decision of the Court of Appeals on August 25,
1987, petitioners cannot seek refuge in the ignorance of their
counsel regarding said rule for their failure to file a motion for
reconsideration within the reglementary period.
Petitioners contend that the rule enunciated in the Habaluyas case
should not be made to apply to the case at bar owing to the nonpublication of the Habaluyas decision in the Official Gazette as of
the time the subject decision of the Court of Appeals was
promulgated. Contrary to petitioners' view, there is no law
requiring the publication of Supreme Court decisions in the Official
Gazette before they can be binding and as a condition to their
becoming effective. It is the bounden duty of counsel as lawyer in
active law practice to keep abreast of decisions of the Supreme
Court particularly where issues have been clarified, consistently
reiterated, and published in the advance reports of Supreme Court
decisions (G. R. s) and in such publications as the Supreme Court
Reports Annotated (SCRA) and law journals.
This Court likewise finds that the Court of Appeals committed no
grave abuse of discretion in affirming the trial court's decision

64

Legal Ethics

ATTY. JULITO D. VITRIOLO, PRECILLANA J. HONORICA, ARLEEN J.

RAMOS, DR. ROGER PEREZ, DR. IMELDA DARAUG, DR.
REMIGIA NATHANIELZ, CELEDONIA CORONACION, and
JOSE RABALO, complainants, vs. ATTY. FELINA
DASIG, respondent.

This is an administrative case for disbarment filed against Atty.

Felina S. Dasig,[1] an official of the Commission on Higher Education
(CHED). The charge involves gross misconduct of respondent in
violation of the Attorneys Oath for having used her public office to
secure financial spoils to the detriment of the dignity and reputation of
the CHED.
Almost all complainants in the instant case are high-ranking
officers of the CHED. In their sworn Complaint-Affidavit filed with this
Court on December 4, 1998, complainants allege that respondent,
while she was OIC of Legal Affairs Service, CHED, committed acts that
are grounds for disbarment under Section 27, [2] Rule 138 of the Rules of
Court, to wit:
a) Sometime in August 1998 and during the effectivity of
Respondents designation as Officer-in-Charge of Legal
Affairs Service, CHED, she demanded from Betty C.
Mangohon, a teacher of Our Lady of Mariazel Educational
Center in Novaliches, Quezon City, the amount of
P20,000.00 and later reduced to P5,000.00 for the
facilitation of her application for correction of name then
pending before the Legal Affairs Service, CHED...
b) Likewise, sometime in July to August 1998 and during the
effectivity of Respondents designation as Officer-inCharge of Legal Affairs Service, CHED, she demanded
from Rosalie B. Dela Torre, a student, the amount of
P18,000.00 to P20,000.00 for facilitation of her
application for correction of name then pending before
the Legal Affairs Service, CHED

c) Likewise, sometime in September 1998 and during the

effectivity of Respondents designation as Officer-inCharge of Legal Affairs Service, CHED, she demanded
from Rocella G. Eje, a student, the amount of P5,000.00
for facilitation of her application for correction of name
then pending before the Legal Affairs Service, CHED. . . In
addition, Respondent even suggested to Ms. Eje to
register her birth anew with full knowledge of the
existence of a prior registration
d) Likewise, sometime in August to September 1998 and
during the effectivity of Respondents designation as
Officer-in-Charge of Legal Affairs Service, CHED, she
demanded from Jacqueline N. Ng, a student, a
considerable amount which was subsequently confirmed
to be P15,000.00 and initial fee of P5,000.00 more or less
for facilitation of her application for correction of name
then pending before the Legal Affairs Service, CHED... In
addition, the Respondent even suggested to Ms. Ng to
hire a lawyer who shall be chosen by Respondent Dasig to
facilitate the application for correction of name. [3]
Complainants likewise aver that respondent violated her oath as
attorney-at-law by filing eleven (11) baseless, groundless, and
unfounded suits before the Office of the City Prosecutor of Quezon City,
which were subsequently dismissed.[4]
Further, complainants charge respondent of transgressing
subparagraph b (22), Section 36 [5] of Presidential Decree No. 807, for
her willful failure to pay just debts owing to Borela Tire Supply and
Novas Lining Brake & Clutch as evidenced by the dishonored checks
she issued,[6] the complaint sheet, and the subpoena issued to
respondent.[7]
Complainants also allege that respondent instigated the
commission of a crime against complainant Celedonia R. Coronacion
and Rodrigo Coronacion, Jr., when she encouraged and ordered her
son, Jonathan Dasig, a guard of the Bureau of Jail Management and
Penology, to draw his gun and shoot the Coronacions on the evening of
May 14, 1997. As a result of this incident, a complaint for grave threats
against the respondent and her son, docketed as Criminal Case No.

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Legal Ethics

86052, was lodged with the Metropolitan Trial Court of Quezon City,
Branch 36.[8]
Finally, complainants allege that respondent authored and sent to
then President Joseph Estrada a libelous and unfair report, which
maligned the good names and reputation of no less than eleven (11)
CHED Directors calculated to justify her ill motive of preventing their
re-appointment and with the end view of securing an appointment for
herself.[9]
In our resolution of February 3, 1999, we required respondent to
file a Comment on the charges. [10] A copy of said resolution was sent to
the respondent at her address at Blk. 4, Lot 12, Hobart II Subdivision,
Novaliches, Quezon City, only to be returned to this Court with the
notation Unclaimed.[11]
On July 5, 1999, we directed that a copy of the resolution of
February 3, 1999, be served by registered mail to respondent at her
office address in CHED.
In a letter dated August 28, 2000, the Postmaster of the Ortigas
Center Post Office informed the Court that the said mail matter had
been delivered to, received by, and signed for by one Antonio Molon,
an authorized agent of respondent on August 27, 1999. [12]
On November 22, 2000, we granted complainants motion to refer
the complaint to the Commission on Bar Discipline, Integrated Bar of
the Philippines (IBP) for investigation, report, and recommendation.
In its order dated February 6, 2001, the IBP Commission on Bar
Discipline directed respondent to submit her Answer to the Complaint,
failing which she would be considered in default and the case heard ex
parte. Respondent failed to heed said order and on January 8, 2002,
the Commission directed her anew to file her Answer, but again she
failed to comply with the directive. As a result, the Commission ruled
that she had waived her right to file her Comment or Answer to the
Complaint and the case was mainly resolved on the basis of the
documents submitted and on record.
In its report and recommendation, dated April 5, 2002, the IBP
Commission on Bar Discipline stated as follows:

From the foregoing evidence on record, it can be concluded that

respondent in violation of her oath as a government official and as a
member of the Bar, indeed made unlawful demands or attempted to
extort
money
from
certain
people
who
had
pending
applications/requests before her office in exchange for her promise to
act favorably on said applications/requests. Clearly, respondent
unlawfully used her public office in order to secure financial spoils to
the detriment of the dignity and reputation of the Commission on
Higher Education.
For the foregoing reasons, it is recommended that respondent be
suspended from the practice of law for the maximum period allowable
of three (3) years with a further warning that similar action in the
future will be a ground for disbarment of respondent.
On August 3, 2002, the IBP Board of Governors passed Resolution
No. XV-2002-393, the full text of which reads as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as Annex A:; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules;
and considering that respondent unlawfully used her public office in
order to secure financial spoils to the detriment of the dignity and
reputation of the Commission on Higher Education, Respondent is
hereby SUSPENDED from the practice of law for three (3) years. [13]
At the threshold is the query of whether respondent attorney-atlaw, as Officer-in-Charge (OIC) of Legal Services, CHED, may be
disciplined by this Court for her malfeasance, considering that her
position, at the time of filing of the complaint, was Chief Education
Program Specialist, Standards Development Division, Office of
Programs and Standards, CHED.
Generally speaking, a lawyer who holds a government office may
not be disciplined as a member of the Bar for misconduct in the
discharge of his duties as a government official. [14] However, if said
misconduct as a government official also constitutes a violation of his
oath as a lawyer, then he may be disciplined by this Court as a
member of the Bar.[15]

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Legal Ethics

In this case, the record shows that the respondent, on various

occasions, during her tenure as OIC, Legal Services, CHED, attempted
to extort from Betty C. Mangohon, Rosalie B. Dela Torre, Rocella G. Eje,
and Jacqueline N. Ng sums of money as consideration for her favorable
action on their pending applications or requests before her office. The
evidence remains unrefuted, given the respondents failure, despite the
opportunities afforded her by this Court and the IBP Commission on Bar
Discipline to comment on the charges. We find that respondents
misconduct as a lawyer of the CHED is of such a character as to affect
her qualification as a member of the Bar, for as a lawyer, she ought to
have known that it was patently unethical and illegal for her to demand
sums of money as consideration for the approval of applications and
requests awaiting action by her office.
The Attorneys Oath is the source of the obligations and duties of
every lawyer and any violation thereof is a ground for disbarment,
suspension, or other disciplinary action. The Attorneys Oath imposes
upon every member of the bar the duty to delay no man for money or
malice. Said duty is further stressed in Rule 1.03 of the Code of
Professional Responsibility.[16] Respondents demands for sums of
money to facilitate the processing of pending applications or requests
before her office violates such duty, and runs afoul of the oath she took
when admitted to the Bar. Such actions likewise run contrary to Rule
1.03 of the Code of Professional Responsibility.
A member of the Bar who assumes public office does not shed his
professional obligations. Hence, the Code of Professional Responsibility,
promulgated on June 21, 1988, was not meant to govern the conduct
of private practitioners alone, but of all lawyers including those in
government service. This is clear from Canon 6 [17] of said Code.
Lawyers in government are public servants who owe the utmost fidelity
to the public service. Thus, they should be more sensitive in the
performance of their professional obligations, as their conduct is
subject to the ever-constant scrutiny of the public.
Respondents attempts to extort money from persons with
applications or requests pending before her office are violative of Rule
1.01[18] of the Code of Professional Responsibility, which prohibits
members of the Bar from engaging or participating in any unlawful,
dishonest, or deceitful acts. Moreover, said acts constitute a breach of

Rule 6.02[19] of the Code which bars lawyers in government service

from promoting their private interests. Promotion of private interests
includes soliciting gifts or anything of monetary value in any
transaction requiring the approval of his office or which may be
affected by the functions of his office. Respondents conduct in office
falls short of the integrity and good moral character required from all
lawyers, specially from one occupying a high public office. For a lawyer
in public office is expected not only to refrain from any act or omission
which might tend to lessen the trust and confidence of the citizenry in
government, she must also uphold the dignity of the legal profession at
all times and observe a high standard of honesty and fair dealing.
Otherwise said, a lawyer in government service is a keeper of the
public faith and is burdened with high degree of social responsibility,
perhaps higher than her brethren in private practice.
For her violation of the Attorneys Oath as well as of Rule 1.01 and
Rule 1.03 of Canon 1[20] and Rule 6.02 of Canon 6 of the Code of
Professional Responsibility, particularly for acts of dishonesty as well as
gross misconduct as OIC, Legal Services, CHED, we find that
respondent deserves not just the penalty of three years suspension
from membership in the Bar as well as the practice of law, as
recommended by the IBP Board of Governors, but outright
disbarment. Her name shall be stricken off the list of attorneys upon
finality of this decision.
WHEREFORE, respondent Arty. Felina S. Dasig is found liable for
gross misconduct and dishonesty in violation of the Attorneys Oath as
well as the Code of Professional Responsibility, and is hereby ordered
DISBARRED.
Let copies of this Resolution be furnished to the Bar Confidant to
be spread on the records of the respondent, as well as to the
Integrated Bar of the Philippines for distribution to all its chapters, and
the Office of the Court Administrator for dissemination to all courts
throughout the country.
SO ORDERED.

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