INTRODUCTION
Lawyer – this is the general term for a person trained in the
A. Definition of Terms
a. Legal Ethics – is the embodiment of all principles of morality
and refinement that should govern the conduct of every
member of the bar.
-broadly defined as the “living of the spirit of the profession,
which limits yet uplifts it as a livelihood. (Agpalo 2009)
-branch of moral science which treats of the duties which
an attorney owes to the court, to his client, to his colleagues
in the profession and to the public.
b. Terms use to describe a member of the legal profession
a. Lawyer, Attorney, Attorney-at-law-one skilled in law
b. Practicing Lawyer
c. Trial Lawyer
d. Advocate- a person learned in the law and duly
admitted to practice, who advises a client and pleads
for him in court
e. Barrister-a person entitled to practice as an advocate
or counsel in superior courts in England
f. Counsel or Counselor-an advocate or leader, a
member of the legal profession.
g. Proctor, Solicitor-a person prosecuting or defending
suits in courts of chancery (7 CJS 702-703)
h. Spanish: Abogado
i. Filipino: Manananggol
The term refers to that class of persons who by license are officers of the
court empowered to appear, prosecute, and defend. A person who is a
member of the Philippine Bar who, by warrant of another, practices law, or
acts professionally in legal formalities.
Those who passed the Shari’a Bar not entitled to be called ―Attorneys
unless admitted to the Philippine Bar.
c. Counsel de parte: An attorney retained by a party litigant,
usually for a fee, to prosecute or defend his cause in court.
Implies freedom of choice either on the attorney or the
litigant.
d. Counsel de oficio: Attorney appointed by the court.
To defend an indigent defendant in a criminal action.
To represent a destitute party.
e. Attorney of record: Attorney whose name, together with his
address, is entered in the record of the case as the
designated counsel of the party litigant.
To whom judicial notices are sent.
f. A lawyer “of counsel” is an experienced lawyer, who is
usually a retired member of judiciary employed by law firms
as consultant.
g. Amicus Curiae is: An experienced and impartial attorney
invited by the court to appear and help in the disposition of
issues submitted to it.
It implies friendly intervention of counsel to call the attention
of the court to some matters of law or facts which might
otherwise escape its notice and in regard to which it might
go wrong.
Appears in court not to represent any particular party but
only to assist the court.
h. Amicus Curiae par excellence – bar associations who
appear in court as amici curiae or friends of the court. Acts
merely as a consultant to guide the court in a doubtful
question or issue pending before it.
i. “Bar” refers to the legal profession.
j. “Bench” refers to the judiciary.
k.
law and authorized to advice and represent others in legal
matters
l. Attorneys-At-Law–that class of persons who are licensed
officers of the courts empowered to appear, prosecute and
defend, and upon whom peculiar duties, responsibilities
and liabilities are developed by law as a consequence.
m. Attorney in fact- simply an agent whose authority is strictly
limited by the instrument appointing him. His authority is
provided in a special power of attorney or general power of
attorney or letter of attorney. He is not necessarily a lawyer.
n. Bar Association–an association of members of the legal
profession like the IBP where membership is integrated or
compulsory.
o. House Counsel–one who acts as attorney for business
though carried as an employee of that business and not as
an independent lawyer.
p. Lead Counsel – the counsel on either side of a litigated
action who is charged with the principal management and
direction of a party’s case, as distinguished from
his juniors or subordinates.
q. Practicing Lawyer–one engaged in the practice of law who
by license are officers of the court and who are
empowered to appear, prosecute and defend a client’s
cause.
r. Pro se: is a Latin phrase meaning "for oneself" or "on one's
own behalf". This status is sometimes known as propria
persona (abbreviated to "proper"). In England and Wales
the comparable status is that of "litigant in person".
B. Power to regulate practice of law
Art VIII, Sec 5(5) 1987 Constitution: Promulgate rules concerning
the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall
be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of
special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
C. Duties of Attorneys: Rule 138, Sec 20 : — It is the duty of an
attorney:
(a) To maintain allegiance to the Republic of the Philippines and
to support the Constitution and obey the laws of the Philippines.
(b) To observe and maintain the respect due to the courts of
justice and judicial officers;
(c) To counsel or maintain such actions or proceedings only as
appear to him to be just, and such defenses only as he believes
to be honestly debatable under the law.
(d) To employ, for the purpose of maintaining the causes
confided to him, such means only as are consistent with truth and
honor, and never seek to mislead the judge or any judicial officer
by an artifice or false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client, and to accept no
compensation in connection with his client's business except
from him or with his knowledge and approval;
(f) To abstain from all offensive personality and to advance no
fact prejudicial to the honor or reputation of a party or witness,
unless required by the justice of the cause with which he is
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charged;
 (g) Not to encourage either the commencement or the
continuance of an action or proceeding, or delay any man's
cause, from any corrupt motive or interest;
(h) Never to reject, for any consideration personal to himself, the
cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and
honorable means, regardless of his personal opinion as to the
guilt of the accused, to present every defense that the law
permits, to the end that no person may be deprived of life or
liberty, but by due process of law.
D. Four Fold Duties of a Lawyer
i. Duty to the society: A lawyer should not violate his responsibility
to society, exemplar for righteousness, ready to render to legal
aid, foster social reforms, guardian of due process, aware of
special role in the solution of special problems and be always
ready to lend assistance to the study and solution of social
problems.
ii. Duty to the legal profession: A lawyer must show candor,
fairness, courtesy and truthfulness, avoid encroachment in the
business of other lawyers and uphold the honor of legal
profession
iii. Duty to the courts: A lawyer must defend against criticism, uphold
authority and dignity, obey order and processes, and assist in the
administration of justice.
iv. Duty to the client: A lawyer must give his entire devotion to his
client’s interest.
E. Practice of Law is a Profession and not a Business: A
profession as a group of men and women pursuing a learned art
as a common calling in the spirit of public service.
i. 3 ELEMENTS
- Organization
- Learning
- Spirit of public service
ii. Purpose: public service not economic or not profit
LEGAL PROFESSION
A. State Regulation
a. Supreme Court: Art VIII, Sec 5(5) 1987 Constitution:
Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission
to the practice of law, the integrated bar, and legal
assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for
the speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the
Supreme Court.
b. Congress: Art XII Sec 14 (2) 1987 Constitution: The
practice of all professions in the Philippines shall be
limited to Filipino citizens, save in cases prescribed
by law.
Art XIII Sec 10 1987 Constitution: All courts existing
at the time of the ratification of this Constitution shall
continue to exercise their jurisdiction, until otherwise
provided by law. The provisions of the existing Rules
of Court, judiciary acts, and procedural laws not
inconsistent with this Constitution shall remain
operative unless amended or repealed by the
Supreme Court or the Congress.
JUDICIAL CONTROL
a. Admission to practice is a judicial function-inherent power
of the SC provided by the Constitution
 The power to admit applicants to the practice of law is judicial in nature
and involves the exercise of judicial discretion.
 Traditionally exercised by the Supreme Court as an inherent part of its
judicial power.
 Rationale comes from the nature of a judicial function and the role
played by attorneys in the administration of justice.
 The admission to the practice of law requires:
1. Previously established Rules and Principles. (By Constitutional
mandate, a primary responsibility of the Supreme Court)
2. Concrete Facts, past or present, affecting determinate
individuals. (Brought about by the applicant for admission to the
bar)
3. A Decision as to whether the facts are governed by rules and
principles. (Involves judicial adjudication which essentially a
function of the court)
 To enable the court to properly discharge its responsibility for the
efficient and impartial administration and to elevate and maintain the
standard of the legal profession requires that it must have the primary
duty to decide:
A. Who may be admitted to the bar as one of its officers
B. What are the causes for disciplinary action against him
C. Whether he should be disciplined, suspended, disbarred,
or reinstated
 Any legislative or executive judgment substituting that of the Supreme
Court in the admission to the practice of law or suspension, debarment,
reinstatement infringes upon and constitutes as an invalid exercise of
the legislative or executive power.
b. Legislative power to repeal, alter or supplement
 The 1935 and 1973 Constitutions provide that the Supreme Court shall
have the power to promulgate rules concerning the admission to the
practice of law but may be repealed, altered, or supplemented by the
Batasang Pambansa.
 The 1987 Constitution deleted such provision.
 The legislature may, however, enact laws with respect to the first
requisite for the admission to the bar (Previously established Rules and
Principles) that applicants should observe.
A. The legislature may pass a law for additional qualifications
for candidates for admission to the practice or filling up
deficiencies in the requirements for admission to the bar.
B. Such law may not, however, be given retroactive effect so
as to entitle a person, not otherwise qualified, to be
admitted.
C. Such law will not preclude the Supreme Court from fixing
other qualifications and requirements.
Reason: Legislature has no power to grant a layman the privilege to
practice law nor control the Supreme Court in its responsibility to
decide who may be admitted.
 The Legislature, in the exercise of its POLICE POWER may, however,
enact laws regulating the practice of law to protect the public and
promote the public welfare.
A. A law declaring illegal and punishable the
unauthorized practice of law.
B. Require further examination for any attorney desiring to
practice before any quasi-judicial or administrative agency.
 Whatever law may be passes is merely in aid of the judicial power to
regulate.
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 But the legislature MAY NOT pass a law that will control the Supreme
Court in the performance of its function to decide who may enjoy the
privilege of practicing law and any law of that kind is unconstitutional
as an invalid exercise of legislative power.
 RA 972 (the Bar Flunkers Act) aims to admit to the Bar, those
candidates who suffered from insufficiency of reading materials and
inadequate preparation. By its declared objective, the law is contrary to
public interest because it qualifies 1,094 law graduates who
confessedly had inadequate preparation for the practice of the
profession, as was exactly found by this Tribunal in the aforesaid
examinations. An adequate legal preparation is one of the vital
requisites for the practice of law that should be developed constantly
and maintained firmly.
c. Executive power in relation to practice
 The Chief Executive cannot, by executive order, admit a person to the
practice of law nor can he, by treaty with another country, modify the
rules on the admission to the bar.
 A treaty, cannot be so interpreted as to entitle a holder of a law
degree obtained in another country to practice law in this country
without complying with the requirements of existing law.
 Accordingly, a Filipino citizen who obtained a law degree in
another country is not entitled to be admitted to the Philippine Bar
without complying with the requirements.
Prescribing standards for law schools
 CHED acts as an agency or in aid of the Supreme Court in the exercise
of its primary authority to determine who may be admitted to practice
since such authority is by Constitutional mandate and rests and
remains exclusively with the high tribunal.
CHED merely:
1. Exercises regulatory power over law schools or certifies as to
the satisfactory completion of the prescribed courses of
law study by an applicant for admission to the bar examination.
2. Assumes some responsibility for the quality of instruction and
training required of an applicant for membership in the bar.
d. Supreme court incidental powers (Incidental to its primary
authority to decide who may be admitted to the bar):
1. Fixing minimum standards of instruction for all law schools to
observe.
2. Setting up of the necessary administrative machinery
to determine compliance therewith.
3. By way of sanction, refusal to admit to the bar exams law
graduates from schools failing to meet those standards. May be
implemented through accreditation
B. What Constitute Practice of Law
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:p
We are faced here with a controversy of far-reaching proportions. While
ostensibly only legal issues are involved, the Court's decision in this case
would indubitably have a profound effect on the political aspect of our
national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any elective position
in the immediately preceding -elections. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar who have
been engaged in the practice of law for at least ten years. (Emphasis
supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the
1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least thirty-five years of
age and holders of a college degree. However, a majority thereof, including
the Chairman, shall be members of the Philippine Bar who have been
engaged in the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what
constitutes practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It
is not limited to appearing in court, or advising and assisting in the conduct
of litigation, but embraces the preparation of pleadings, and other papers
incident to actions and special proceedings, conveyancing, the preparation
of legal instruments of all kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them in matters
connected with the law. An attorney engages in the practice of law by
maintaining an office where he is held out to be-an attorney, using a
letterhead describing himself as an attorney, counseling clients in legal
matters, negotiating with opposing counsel about pending litigation, and
fixing and collecting fees for services rendered by his associate. (Black's Law
Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person
is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person,
firms, associations or corporations as to their rights under the law, or appears
in a representative capacity as an advocate in proceedings pending or
prospective, before any court, commissioner, referee, board, body,
committee, or commission constituted by law or authorized to settle
controversies and there, in such representative capacity performs any act or
acts for the purpose of obtaining or defending the rights of their clients under
the law. Otherwise stated, one who, in a representative capacity, engages in
the business of advising clients as to their rights under the law, or while so
engaged performs any act or acts either in court or outside of court for that
purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S.
Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil.
173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and proceedings
on behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in matters
connected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings in attachment, and
in matters of estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal instruments, where the
work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Page 3
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice on
a large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and
other affairs. Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in litigation.
They require in many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an attorney or counselor
at law bear an intimate relation to the administration of justice by the courts.
No valid distinction, so far as concerns the question set forth in the order, can
be drawn between that part of the work of the lawyer which involves
appearance in court and that part which involves advice and drafting of
instruments in his office. It is of importance to the welfare of the public that
these manifold customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and acting at all times
under the heavy trust obligations to clients which rests upon all attorneys.
(Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666,
citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode
Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144).
(Emphasis ours)
The University of the Philippines Law Center in conducting orientation
briefing for new lawyers (1974-1975) listed the dimensions of the practice of
law in even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual
for attorneys engaging in the active practice of their profession, and he
follows some one or more lines of employment such as this he is a practicing
attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW
312)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give notice
or render any kind of service, which device or service requires the use in any
degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has
adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which
I forgot to do during our review of the provisions on the Commission on Audit.
May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" � I am
quoting from the provision � "who have been engaged in the practice of law
for at least ten years".
To avoid any misunderstanding which would result in excluding members of
the Bar who are now employed in the COA or Commission on Audit, we
would like to make the clarification that this provision on qualifications
regarding members of the Bar does not necessarily refer or involve actual
practice of law outside the COA We have to interpret this to mean that as
long as the lawyers who are employed in the COA are using their legal
knowledge or legal talent in their respective work within COA, then they are
qualified to be considered for appointment as members or commissioners,
even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions
and Agencies and we deem it important to take it up on the floor so that this
interpretation may be made available whenever this provision on the
qualifications as regards members of the Philippine Bar engaging in the
practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the Article
on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the necessary
qualifications in accordance with the Provision on qualifications under our
provisions on the Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent
to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others,
that the Chairman and two Commissioners of the Commission on Audit
(COA) should either be certified public accountants with not less than ten
years of auditing practice, or members of the Philippine Bar who have been
engaged in the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not
engage in private practice, it is still a fact that the majority of lawyers are
private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM
Career Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in the
business of delivering legal services." (Ibid.). Lawyers who practice alone are
often called "sole practitioners." Groups of lawyers are called "firms." The firm
is usually a partnership and members of the firm are the partners. Some firms
may be organized as professional corporations and the members called
shareholders. In either case, the members of the firm are the experienced
attorneys. In most firms, there are younger or more inexperienced salaried
attorneys called "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law
practice is essentially tautologous, unhelpful in defining the practice of law as
that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West
Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as
the performance of any acts . . . in or out of court, commonly understood to
be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145
Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne,
128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost
every function known in the commercial and governmental realm, such a
definition would obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the
most publicly familiar role for lawyers as well as an uncommon role for the
average lawyer. Most lawyers spend little time in courtrooms, and a large
percentage spend their entire practice without litigating a case. (Ibid., p. 593).
Nonetheless, many lawyers do continue to litigate and the litigating lawyer's
role colors much of both the public image and the self perception of the legal
profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.). Why is this so? Recall that the late Alexander
SyCip, a corporate lawyer, once articulated on the importance of a lawyer as
a business counselor in this wise: "Even today, there are still uninformed
laymen whose concept of an attorney is one who principally tries cases
before the courts. The members of the bench and bar and the informed
laymen such as businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices than in the
Page 4
courtrooms. General practitioners of law who do both litigation and non-
litigation work also know that in most cases they find themselves spending
more time doing what [is] loosely desccribe[d] as business counseling than
in trying cases. The business lawyer has been described as the planner, the
diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed]
that in law, as in medicine, surgery should be avoided where internal
medicine can be effective." (Business Star, "Corporate Finance Law," Jan.
11, 1989, p. 4).
In the course of a working day the average general practitioner will engage
in a number of legal tasks, each involving different legal doctrines, legal skills,
legal processes, legal institutions, clients, and other interested parties. Even
the increasing numbers of lawyers in specialized practice will usually perform
at least some legal services outside their specialty. And even within a narrow
specialty such as tax practice, a lawyer will shift from one legal task or role
such as advice-giving to an importantly different one such as representing a
client before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one
of the relatively rare types a litigator who specializes in this work to the
exclusion of much else. Instead, the work will require the lawyer to have
mastered the full range of traditional lawyer skills of client counselling,
advice-giving, document drafting, and negotiation. And increasingly lawyers
find that the new skills of evaluation and mediation are both effective for many
clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that
is constrained in very important ways, at least theoretically, so as to remove
from it some of the salient features of adversarial litigation. Of these special
roles, the most prominent is that of prosecutor. In some lawyers' work the
constraints are imposed both by the nature of the client and by the way in
which the lawyer is organized into a social unit to perform that work. The most
common of these roles are those of corporate practice and government legal
service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted
are emerging trends in corporate law practice, a departure from the traditional
concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging trends
in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning,"
has impressed upon us the inadequacy of traditional procedures in many
decisional contexts.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of major
trends, the necessity of estimating the consequences of given courses of
action, and the need for fast decision and response in situations of acute
danger have prompted the use of sophisticated concepts of information flow
theory, operational analysis, automatic data processing, and electronic
computing equipment. Understandably, an improved decisional structure
must stress the predictive component of the policy-making process, wherein
a "model", of the decisional context or a segment thereof is developed to test
projected alternative courses of action in terms of futuristic effects flowing
therefrom.
Although members of the legal profession are regularly engaged in predicting
and projecting the trends of the law, the subject of corporate finance law has
received relatively little organized and formalized attention in the philosophy
of advancing corporate legal education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained
primarily in the law can be improved through an early introduction to multi-
variable decisional context and the various approaches for handling such
problems. Lawyers, particularly with either a master's or doctorate degree in
business administration or management, functioning at the legal policy level
of decision-making now have some appreciation for the concepts and
analytical techniques of other professions which are currently engaged in
similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing and
maintaining the business issue raised. (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to
as the "abogado de campanilla." He is the "big-time" lawyer, earning big
money and with a clientele composed of the tycoons and magnates of
business and industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of
attorneys employed by a single corporation will vary with the size and type of
the corporation. Many smaller and some large corporations farm out all their
legal problems to private law firms. Many others have in-house counsel only
for certain matters. Other corporation have a staff large enough to handle
most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the
legal affairs of a corporation. His areas of concern or jurisdiction may include,
inter alia: corporate legal research, tax laws research, acting out as corporate
secretary (in board meetings), appearances in both courts and other
adjudicatory agencies (including the Securities and Exchange Commission),
and in other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the
legal affairs of the business of the corporation he is representing. These
include such matters as determining policy and becoming involved in
management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from
the action, or not understanding how one's work actually fits into the work of
the orgarnization. This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer is sometimes
offered this fortune to be more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law
field. After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived
by many as glamorous, tills is an area coveted by corporate lawyers. In most
cases, however, the overseas jobs go to experienced attorneys while the
younger attorneys do their "international practice" in law libraries. (Business
Star, "Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein,
to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one
who perceives the difficulties, and the excellent lawyer is one who surmounts
them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm,"
so to speak. No longer are we talking of the traditional law teaching method
of confining the subject study to the Corporation Code and the Securities
Code but an incursion as well into the intertwining modern management
issues.
Such corporate legal management issues deal primarily with three (3) types
Page 5
of learning: (1) acquisition of insights into current advances which are of
particular significance to the corporate counsel; (2) an introduction to usable
disciplinary skins applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and management of
the legal function itself.
These three subject areas may be thought of as intersecting circles, with a
shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the counsel's
role. For that matter, the corporate lawyer reviews the globalization process,
including the resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think about a corporation's;
strategy at multiple levels. The salience of the nation-state is being reduced
as firms deal both with global multinational entities and simultaneously with
sub-national governmental units. Firms increasingly collaborate not only with
public entities but with each other � often with those who are competitors in
other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a
new role as a stakeholder � in some cases participating in the organization
and operations of governance through participation on boards and other
decision-making roles. Often these new patterns develop alongside existing
legal institutions and laws are perceived as barriers. These trends are
complicated as corporations organize for global operations. ( Emphasis
supplied)
The practising lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New collaborative
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other
countries. In Europe, Esprit, Eureka and Race are examples of collaborative
efforts between governmental and business Japan's MITI is world famous.
(Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all
kinds of organizations. Effectiveness of both long-term and temporary groups
within organizations has been found to be related to indentifiable factors in
the group-context interaction such as the groups actively revising their
knowledge of the environment coordinating work with outsiders, promoting
team achievements within the organization. In general, such external
activities are better predictors of team performance than internal group
processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer
vis-a-vis the managerial mettle of corporations are challenged. Current
research is seeking ways both to anticipate effective managerial procedures
and to understand relationships of financial liability and insurance
considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are
apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all sorts of
systematic problems � physical, economic, managerial, social, and
psychological. New programming techniques now make the system
dynamics principles more accessible to managers � including corporate
counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department, it
can be used to appraise the settlement value of litigation, aid in negotiation
settlement, and minimize the cost and risk involved in managing a portfolio
of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can
be used directly by parties and mediators in all lands of negotiations. All
integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A simulation
case of an international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such legal
entities at that time when transactional or similar facts are being considered
and made.
Managerial Jurisprudence. This is the framework within which are
undertaken those activities of the firm to which legal consequences attach. It
needs to be directly supportive of this nation's evolving economic and
organizational fabric as firms change to stay competitive in a global,
interdependent environment. The practice and theory of "law" is not adequate
today to facilitate the relationships needed in trying to make a global
economy work.
Organization and Functioning of the Corporate Counsel's Office. The general
counsel has emerged in the last decade as one of the most vibrant subsets
of the legal profession. The corporate counsel hear responsibility for key
aspects of the firm's strategic issues, including structuring its global
operations, managing improved relationships with an increasingly diversified
body of employees, managing expanded liability exposure, creating new and
varied interactions with public decision-makers, coping internally with more
complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is not
enough to make one a good general corporate counsel nor to give him a full
sense of how the legal system shapes corporate activities. And even if the
corporate lawyer's aim is not the understanding of all of the law's effects on
corporate activities, he must, at the very least, also gain a working knowledge
of the management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The
Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more
than a passing knowledge of financial law affecting each aspect of their work.
Yet, many would admit to ignorance of vast tracts of the financial law territory.
What transpires next is a dilemma of professional security: Will the lawyer
admit ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C.
Aquino to the position of Chairman of the COMELEC in a letter received by
the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not
possess the required qualification of having been engaged in the practice of
law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the
nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he
took his oath of office. On the same day, he assumed office as Chairman of
the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and taxpayer,
filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.
Page 6
Atty. Christian Monsod is a member of the Philippine Bar, having passed the
bar examinations of 1960 with a grade of 86-55%. He has been a dues paying
member of the Integrated Bar of the Philippines since its inception in 1972-
73. He has also been paying his professional license fees as lawyer for more
than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar,
Atty. Monsod worked in the law office of his father. During his stint in the
World Bank Group (1963-1970), Monsod worked as an operations officer for
about two years in Costa Rica and Panama, which involved getting
acquainted with the laws of member-countries negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning
to the Philippines in 1970, he worked with the Meralco Group, served as chief
executive officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to various companies
as a legal and economic consultant or chief executive officer. As former
Secretary-General (1986) and National Chairman (1987) of NAMFREL.
Monsod's work involved being knowledgeable in election law. He appeared
for NAMFREL in its accreditation hearings before the Comelec. In the field of
advocacy, Monsod, in his personal capacity and as former Co-Chairman of
the Bishops Businessmen's Conference for Human Development, has
worked with the under privileged sectors, such as the farmer and urban poor
groups, in initiating, lobbying for and engaging in affirmative action for the
agrarian reform law and lately the urban land reform bill. Monsod also made
use of his legal knowledge as a member of the Davide Commission, a quast
judicial body, which conducted numerous hearings (1990) and as a member
of the Constitutional Commission (1986-1987), and Chairman of its
Committee on Accountability of Public Officers, for which he was cited by the
President of the Commission, Justice Cecilia Muñoz-Palma for "innumerable
amendments to reconcile government functions with individual freedoms and
public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used
to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and
which is adequately constituted to meet the various contingencies that arise
during a negotiation. Besides top officials of the Borrower concerned, there
are the legal officer (such as the legal counsel), the finance manager, and an
operations officer (such as an official involved in negotiating the contracts)
who comprise the members of the team. (Guillermo V. Soliven, "Loan
Negotiating Strategies for Developing Country Borrowers," Staff Paper No.
2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays
down the law as far as the loan transaction is concerned. Thus, the meat of
any Loan Agreement can be compartmentalized into five (5) fundamental
parts: (1) business terms; (2) borrower's representation; (3) conditions of
closing; (4) covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and legal
advising, they score national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from the work paper,
entitled "Wanted: Development Lawyers for Developing Nations," submitted
by L. Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development
of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the
World Peace Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in legislation
and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer
may work with an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring contract
agreements contain such a mixture of technical language that they should be
carefully drafted and signed only with the advise of competent counsel in
conjunction with the guidance of adequate technical support personnel. (See
International Law Aspects of the Philippine External Debts, an unpublished
dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis
supplied)
A critical aspect of sovereign debt restructuring/contract construction is the
set of terms and conditions which determines the contractual remedies for a
failure to perform one or more elements of the contract. A good agreement
must not only define the responsibilities of both parties, but must also state
the recourse open to either party when the other fails to discharge an
obligation. For a complete debt restructuring represents a devotion to that
principle which in the ultimate analysis is sine qua non for foreign loan
agreements-an adherence to the rule of law in domestic and international
affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr.
once said: "They carry no banners, they beat no drums; but where they are,
men learn that bustle and bush are not the equal of quiet genius and serene
mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4,
Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law".
particularly the modern concept of law practice, and taking into consideration
the liberal construction intended by the framers of the Constitution, Atty.
Monsod's past work experiences as a lawyer-economist, a lawyer-manager,
a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a
lawyer-legislator of both the rich and the poor verily more than satisfy the
constitutional requirement that he has been engaged in the practice of law
for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA
327, the Court said:
Appointment is an essentially discretionary power and must be performed by
the officer in which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required by law. If
he does, then the appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred. This is a political
question involving considerations of wisdom which only the appointing
authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all
the other legal requirements are satisfied, the Commission has no alternative
but to attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. It also has no
authority to direct the appointment of a substitute of its choice. To do so would
be an encroachment on the discretion vested upon the appointing authority.
An appointment is essentially within the discretionary power of whomsoever
it is vested, subject to the only condition that the appointee should possess
the qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar,
consists of four (4) stages: (1) nomination; (2) confirmation by the
Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment;
and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers,
p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which
provides:
Page 7
The Chairman and the Commisioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and the last Members
for three years, without reappointment. Appointment to any vacancy shall be
only for the unexpired term of the predecessor. In no case shall any Member
be appointed or designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law,
which modern connotation is exactly what was intended by the eminent
framers of the 1987 Constitution. Moreover, Justice Padilla's definition would
require generally a habitual law practice, perhaps practised two or three
times a week and would outlaw say, law practice once or twice a year for ten
consecutive years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that
in my written opinion, I made use of a definition of law practice which really
means nothing because the definition says that law practice " . . . is what
people ordinarily mean by the practice of law." True I cited the definition but
only by way of sarcasm as evident from my statement that the definition of
law practice by "traditional areas of law practice is essentially tautologous" or
defining a phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others
on what the law means, are actually practicing law. In that sense, perhaps,
but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member
of the Philippine Bar, who has been practicing law for over ten years. This is
different from the acts of persons practicing law, without first becoming
lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected
President of the Philippines, say, on the ground that he lacks one or more
qualifications. This matter, I greatly doubt. For one thing, how can an action
or petition be brought against the President? And even assuming that he is
indeed disqualified, how can the action be entertained since he is the
incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public
hearings on Monsod's confirmation, implicitly determined that he possessed
the necessary qualifications as required by law. The judgment rendered by
the Commission in the exercise of such an acknowledged power is beyond
judicial interference except only upon a clear showing of a grave abuse of
discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly
shown shall the Court interfere with the Commission's judgment. In the
instant case, there is no occasion for the exercise of the Court's corrective
power, since no abuse, much less a grave abuse of discretion, that would
amount to lack or excess of jurisdiction and would warrant the issuance of
the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President,
may the Supreme Court reverse the Commission, and thus in effect confirm
the appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson's beloved) for help in capturing
Samson. Delilah agreed on condition that �
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator
placed an iron rod burning white-hot two or three inches away from in front
of Samson's eyes. This blinded the man. Upon hearing of what had
happened to her beloved, Delilah was beside herself with anger, and fuming
with righteous fury, accused the procurator of reneging on his word. The
procurator calmly replied: "Did any blade touch his skin? Did any blood flow
from his veins?" The procurator was clearly relying on the letter, not the spirit
of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
A.C. No. 6705 March 31, 2006
RUTHIE LIM-SANTIAGO, Complainant,
vs.
ATTY. CARLOS B. SAGUCIO, Respondent.
DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against Atty. Carlos B. Sagucio for violating
Rule 15.03 of the Code of Professional Responsibility and for defying the
prohibition against private practice of law while working as government
prosecutor.
The Facts
Ruthie Lim-Santiago ("complainant") is the daughter of Alfonso Lim and
Special Administratrix of his estate. 1Alfonso Lim is a stockholder and the
former President of Taggat Industries, Inc. 2
Atty. Carlos B. Sagucio ("respondent") was the former Personnel Manager
and Retained Counsel of Taggat Industries, Inc. 3 until his appointment as
Assistant Provincial Prosecutor of Tuguegarao, Cagayan in 1992. 4
Taggat Industries, Inc. ("Taggat") is a domestic corporation engaged in the
operation of timber concessions from the government. The Presidential
Commission on Good Government sequestered it sometime in 1986, 5 and
its operations ceased in 1997. 6
Sometime in July 1997, 21 employees of Taggat ("Taggat employees") filed
a criminal complaint entitled "Jesus Tagorda, Jr. et al. v. Ruthie Lim-
Santiago," docketed as I.S. No. 97-240 ("criminal complaint"). 7 Taggat
employees alleged that complainant, who took over the management and
control of Taggat after the death of her father, withheld payment of their
salaries and wages without valid cause from 1 April 1996 to 15 July 1997. 8
Respondent, as Assistant Provincial Prosecutor, was assigned to conduct
the preliminary investigation. 9 He resolved the criminal complaint by
recommending the filing of 651 Informations 10 for violation of Article 288 11 in
relation to Article 116 12 of the Labor Code of the Philippines. 13
Complainant now charges respondent with the following violations:
1. Rule 15.03 of the Code of Professional Responsibility
Complainant contends that respondent is guilty of representing conflicting
interests. Respondent, being the former Personnel Manager and Retained
Counsel of Taggat, knew the operations of Taggat very well. Respondent
should have inhibited himself from hearing, investigating and deciding the
case filed by Taggat employees. 14Furthermore, complainant claims that
respondent instigated the filing of the cases and even harassed and
threatened Taggat employees to accede and sign an affidavit to support the
complaint. 15
2. Engaging in the private practice of law while working as a government
prosecutor
Complainant also contends that respondent is guilty of engaging in the
private practice of law while working as a government prosecutor.
Complainant presented evidence to prove that respondent received P10,000
as retainer’s fee for the months of January and February 1995,
16 another P10,000 for the months of April and May 1995, 17 and
Page 8
P5,000 for the month of April 1996. 18
Complainant seeks the disbarment of respondent for violating Rule 15.03 of
the Code of Professional Responsibility and for defying the prohibition
against private practice of law while working as government prosecutor.
Respondent refutes complainant’s allegations and counters that complainant
was merely aggrieved by the resolution of the criminal complaint which was
adverse and contrary to her expectation. 19
Respondent claims that when the criminal complaint was filed, respondent
had resigned from Taggat for more than five years. 20 Respondent asserts
that he no longer owed his undivided loyalty to Taggat. 21 Respondent argues
that it was his sworn duty to conduct the necessary preliminary investigation.
22 Respondent contends that complainant failed to establish lack of
impartiality when he performed his duty. 23 Respondent points out that
complainant did not file a motion to inhibit respondent from hearing the
criminal complaint 24 but instead complainant voluntarily executed and filed
her counter-affidavit without mental reservation. 25
Respondent states that complainant’s reason in not filing a motion to inhibit
was her impression that respondent would exonerate her from the charges
filed as gleaned from complainant’s statement during the hearing conducted
on 12 February 1999:
xxx
Q. (Atty. Dabu). What do you mean you didn’t think he would do it, Madam
Witness?
A. Because he is supposed to be my father’s friend and he was working with
my Dad and he was supposed to be trusted by my father. And he came to
me and told me he gonna help me. x x x. 26
Respondent also asserts that no conflicting interests exist because he was
not representing Taggat employees or complainant. Respondent claims he
was merely performing his official duty as Assistant Provincial
Prosecutor. 27Respondent argues that complainant failed to establish that
respondent’s act was tainted with personal interest, malice and bad faith. 28
Respondent denies complainant’s allegations that he instigated the filing of
the cases, threatened and harassed Taggat employees. Respondent claims
that this accusation is bereft of proof because complainant failed to mention
the names of the employees or present them for cross-examination. 29
Respondent does not dispute his receipt, after his appointment as
government prosecutor, of retainer fees from complainant but claims that it
was only on a case-to-case basis and it ceased in 1996. 30 Respondent
contends that the fees were paid for his consultancy services and not for
representation. Respondent submits that consultation is not the same as
representation and that rendering consultancy services is not
prohibited. 31 Respondent, in his Reply-Memorandum, states:
x x x [I]f ever Taggat paid him certain amounts, these were paid voluntarily
by Taggat without the respondent’s asking, intended as token consultancy
fees on a case-to-case basis and not as or for retainer fees. These payments
do not at all show or translate as a specie of ‘conflict of interest’. Moreover,
these consultations had no relation to, or connection with, the above-
mentioned labor complaints filed by former Taggat employees. 32
Respondent insists that complainant’s evidence failed to prove that when the
criminal complaint was filed with the Office of the Provincial Prosecutor of
Cagayan, respondent was still the retained counsel or legal consultant. 33
While this disbarment case was pending, the Resolution and Order issued
by respondent to file 651 Informations against complainant was reversed and
set aside by Regional State Prosecutor of Cagayan Rodolfo B. Cadelina last
4 January 1999. 34 Hence, the criminal complaint was dismissed. 35
The IBP’s Report and Recommendation
The Integrated Bar of the Philippines’ Investigating Commissioner Ma.
Carmina M. Alejandro-Abbas ("IBP Commissioner Abbas") heard the case
36 and allowed the parties to submit their respective memoranda. 37 Due to IBP
Commissioner Abbas’ resignation, the case was reassigned to
Commissioner Dennis A.B. Funa ("IBP Commissioner Funa"). 38
After the parties filed their memoranda and motion to resolve the case, the
IBP Board of Governors issued Resolution No. XVI-2004-479 ("IBP
Resolution") dated 4 November 2004 adopting with modification 39 IBP
Commissioner Funa’s Report and Recommendation ("Report") finding
respondent guilty of conflict of interests, failure to safeguard a former client’s
interest, and violating the prohibition against the private practice of law while
being a government prosecutor. The IBP Board of Governors recommended
the imposition of a penalty of three years suspension from the practice of law.
The Report reads:
Now the issue here is whether being a former lawyer of Taggat conflicts with
his role as Assistant Provincial Prosecutor in deciding I.S. No. 97-240. A
determination of this issue will require the test of whether the matter in I.S.
No. 97-240 will conflict with his former position of Personnel Manager and
Legal Counsel of Taggat.
I.S. No. 97-240 was filed for "Violation of Labor Code" (see Resolution of the
Provincial Prosecutors Office, Annex "B" of Complaint). Herein Complainant,
Ruthie Lim-Santiago, was being accused as having the "management and
control" of Taggat (p. 2, Resolution of the Prov. Pros. Office, supra).
Clearly, as a former Personnel Manager and Legal Counsel of Taggat, herein
Respondent undoubtedly handled the personnel and labor concerns of
Taggat. Respondent, undoubtedly dealt with and related with the employees
of Taggat. Therefore, Respondent undoubtedly dealt with and related with
complainants in I.S. No. 97-240. The issues, therefore, in I.S. No. 97-240,
are very much familiar with Respondent. While the issues of unpaid salaries
pertain to the periods 1996-1997, the mechanics and personalities in that
case are very much familiar with Respondent.
A lawyer owes something to a former client. Herein Respondent owes to
Taggat, a former client, the duty to "maintain inviolate the client’s confidence
or to refrain from doing anything which will injuriously affect him in any matter
in which he previously represented him" (Natam v. Capule, 91 Phil. 640; p.
231, Agpalo, Legal Ethics, 4th ed.)
Respondent argues that as Assistant Provincial Prosecutor, he does not
represent any client or any interest except justice. It should not be forgotten,
however, that a lawyer has an immutable duty to a former client with respect
to matters that he previously handled for that former client. In this case,
matters relating to personnel, labor policies, and labor relations that he
previously handled as Personnel Manager and Legal Counsel of Taggat. I.S.
No. 97-240 was for "Violation of the Labor Code." Here lies the conflict.
Perhaps it would have been different had I.S. No. 97-240 not been labor-
related, or if Respondent had not been a Personnel Manager concurrently as
Legal Counsel. But as it is, I.S. No. 97-240 is labor-related and Respondent
was a former Personnel Manager of Taggat.
xxxx
While Respondent ceased his relations with Taggat in 1992 and the unpaid
salaries being sought in I.S. No. 97-240 were of the years 1996 and 1997,
the employees and management involved are the very personalities he dealt
with as Personnel Manager and Legal Counsel of Taggat. Respondent dealt
with these persons in his fiduciary relations with Taggat. Moreover, he was
an employee of the corporation and part of its management.
xxxx
As to the propriety of receiving "Retainer Fees" or "consultancy fees" from
herein Complainant while being an Assistant Provincial Prosecutor, and for
rendering legal consultancy work while being an Assistant Provincial
Prosecutor, this matter had long been settled. Government prosecutors are
prohibited to engage in the private practice of law (see Legal and Judicial
Ethics, Ernesto Pineda, 1994 ed., p. 20; People v. Villanueva, 14 SCRA 109;
Aquino v. Blanco 70 Phil. 647). The act of being a legal consultant is a
practice of law. To engage in the practice of law is to do any of those acts
that are characteristic of the legal profession (In re: David, 93 Phil. 461). It
Page 9
covers any activity, in or out of court, which required the application of law,
legal principles, practice or procedures and calls for legal knowledge, training
and experience (PLA v. Agrava, 105 Phil. 173; People v. Villanueva, 14
SCRA 111; Cayetano v. Monsod, 201 SCRA 210).
Respondent clearly violated this prohibition.
As for the secondary accusations of harassing certain employees of Taggat
and instigating the filing of criminal complaints, we find the evidence
insufficient.
Accordingly, Respondent should be found guilty of conflict of interest, failure
to safeguard a former client’s interest, and violating the prohibition against
the private practice of law while being a government prosecutor. 40
The IBP Board of Governors forwarded the Report to the Court as provided
under Section 12(b), Rule 139-B 41 of the Rules of Court.
The Ruling of the Court
The Court exonerates respondent from the charge of violation of Rule 15.03
of the Code of Professional Responsibility ("Code"). However, the Court finds
respondent liable for violation of Rule 1.01, Canon 1 of the Code of
Professional Responsibility against unlawful conduct. 42 Respondent
committed unlawful conduct when he violated Section 7(b)(2) of the Code of
Conduct and Ethical Standards for Public Officials and Employees or
Republic Act No. 6713 ("RA 6713").
Canon 6 provides that the Code "shall apply to lawyers in government service
in the discharge of their official duties." 43 A government lawyer is thus bound
by the prohibition "not [to] represent conflicting interests." 44However, this rule
is subject to certain limitations. The prohibition to represent conflicting
interests does not apply when no conflict of interest exists, when a written
consent of all concerned is given after a full disclosure of the facts or when
no true attorney-client relationship exists. 45 Moreover, considering the
serious consequence of the disbarment or suspension of a member of the
Bar, clear preponderant evidence is necessary to justify the imposition of the
administrative penalty. 46
Respondent is also mandated under Rule 1.01 of Canon 1 not to engage in
"unlawful x x x conduct." Unlawful conduct includes violation of the statutory
prohibition on a government employee to "engage in the private practice of
[his] profession unless authorized by the Constitution or law, provided, that
such practice will not conflict or tend to conflict with [his] official functions." 47
Complainant’s evidence failed to substantiate the claim that respondent
represented conflicting interests
In Quiambao v. Bamba, 48 the Court enumerated various tests to determine
conflict of interests. One test of inconsistency of interests is whether the
lawyer will be asked to use against his former client any confidential
information acquired through their connection or previous employment. 49 In
essence, what a lawyer owes his former client is to maintain inviolate the
client’s confidence or to refrain from doing anything which will injuriously
affect him in any matter in which he previously represented him. 50
In the present case, we find no conflict of interests when respondent handled
the preliminary investigation of the criminal complaint filed by Taggat
employees in 1997. The issue in the criminal complaint pertains to non-
payment of wages that occurred from 1 April 1996 to 15 July 1997. Clearly,
respondent was no longer connected with Taggat during that period since he
resigned sometime in 1992.
In order to charge respondent for representing conflicting interests, evidence
must be presented to prove that respondent used against Taggat, his former
client, any confidential information acquired through his previous
employment. The only established participation respondent had with respect
to the criminal complaint is that he was the one who conducted the
preliminary investigation. On that basis alone, it does not necessarily follow
that respondent used any confidential information from his previous
employment with complainant or Taggat in resolving the criminal complaint.
The fact alone that respondent was the former Personnel Manager and
Retained Counsel of Taggat and the case he resolved as government
prosecutor was labor-related is not a sufficient basis to charge respondent
for representing conflicting interests. A lawyer’s immutable duty to a former
client does not cover transactions that occurred beyond the lawyer’s
employment with the client. The intent of the law is to impose upon the lawyer
the duty to protect the client’s interests only on matters that he previously
handled for the former client and not for matters that arose after the lawyer-
client relationship has terminated.
Further, complainant failed to present a single iota of evidence to prove her
allegations. Thus, respondent is not guilty of violating Rule 15.03 of the Code.
Respondent engaged in the private practice of law while working as a
government prosecutor
The Court has defined the practice of law broadly as –
x x x any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice
of law is to perform those acts which are characteristics of the profession.
Generally, to practice law is to give notice or render any kind of service, which
device or service requires the use in any degree of legal knowledge or skill."
51
"Private practice of law" contemplates a succession of acts of the same
nature habitually or customarily holding one’s self to the public as a lawyer. 52
Respondent argues that he only rendered consultancy services to Taggat
intermittently and he was not a retained counsel of Taggat from 1995 to 1996
as alleged. This argument is without merit because the law does not
distinguish between consultancy services and retainer agreement. For as
long as respondent performed acts that are usually rendered by lawyers with
the use of their legal knowledge, the same falls within the ambit of the term
"practice of law."
Nonetheless, respondent admitted that he rendered his legal services to
complainant while working as a government prosecutor. Even the receipts
he signed stated that the payments by Taggat were for "Retainer’s fee."
53 Thus, as correctly pointed out by complainant, respondent clearly violated
the prohibition in RA 6713.
However, violations of RA 6713 are not subject to disciplinary action under
the Code of Professional Responsibility unless the violations also constitute
infractions of specific provisions of the Code of Professional Responsibility.
Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 –
the Code of Conduct and Ethical Standards for Public Officials and
Employees – unless the acts involved also transgress provisions of the Code
of Professional Responsibility.
Here, respondent’s violation of RA 6713 also constitutes a violation of Rule
1.01 of Canon 1, which mandates that "[a] lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct." Respondent’s admission
that he received from Taggat fees for legal services while serving as a
government prosecutor is an unlawful conduct, which constitutes a violation
of Rule 1.01.
Respondent admitted that complainant also charged him with unlawful
conduct when respondent stated in his Demurrer to Evidence:
In this instant case, the complainant prays that the respondent be
permanently and indefinitely suspended or disbarred from the practice of the
law profession and his name removed from the Roll of Attorneys on the
following grounds:
xxxx
d) that respondent manifested gross misconduct and gross violation of his
oath of office and in his dealings with the public. 54
On the Appropriate Penalty on Respondent
The appropriate penalty on an errant lawyer depends on the exercise of
sound judicial discretion based on the surrounding facts. 55
Under Civil Service Law and rules, the penalty for government employees
engaging in unauthorized private practice of profession is suspension for six
months and one day to one year. 56 We find this penalty appropriate for
respondent’s violation in this case of Rule 1.01, Canon 1 of the Code of
Page 10
Professional Responsibility.
WHEREFORE, we find respondent Atty. Carlos B. Sagucio GUILTY of
violation of Rule 1.01, Canon 1 of the Code of Professional Responsibility.
Accordingly, we SUSPEND respondent Atty. Carlos B. Sagucio from the
practice of law for SIX MONTHS effective upon finality of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant to be
appended to respondent’s personal record as an attorney, the Integrated Bar
of the Philippines, the Department of Justice, and all courts in the country for
their information and guidance.
G.R. No. L-19450 May 27, 1965
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
SIMPLICIO VILLANUEVA, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee. Magno
T. Buese for defendant-appellant.
PAREDES, J.:
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 Attorney 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 be dismissed, for patently being without merits.
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.
C. Essential Criteria Of Engaging In The Practice Of Law
1. Habituality- implies customarily or habitually holding oneself out
to the public as a lawyer
2. Compensation- implies that one must have presented
himself to be in the active practice and that his professional
services are available to the public for compensation, as a source
of his livelihood or in consideration of his said services.
3. Application of law, legal principle, practice, or procedure which
calls for legal knowledge, training and experience.
4. Attorney-client relationship
III. REQUIREMENTS FOR ADMISSION TO THE PRACTICE OF LAW
A. Legal Education
B. Educational Qualification
a. Pre-Law: Rule 138 Sec 6 ROC: No applicant for
admission to the bar examination shall be admitted
unless he presents a certificate that he has satisfied
the Secretary of Education that, before he began the
study of law, he had pursued and satisfactorily
completed in an authorized and recognized university
Page 11
or college, requiring for admission thereto the
completion of a four-year high school course, the
 course of study prescribed therein for a bachelor's
degree in arts or sciences with any of the following
subjects as major or field of concentration: political
science, logic, english, spanish, history and
economics.
b. Law Proper: Rule 138 Sec 5 ROC: All applicants for
admission other than those referred to in the two
preceding section shall, before being admitted to the
examination, satisfactorily show that they have
regularly studied law for four years, and successfully
completed all prescribed courses, in a law school or
university, officially approved and recognized by the
Secretary of Education. The affidavit of the
candidate, accompanied by a certificate from the
university or school of law, shall be filed as evidence
of such facts, and further evidence may be required
by the court.
No applicant shall be admitted to the bar
examinations unless he has satisfactorily completed
the following courses in a law school or university
duly recognized by the government: civil law,
commercial law, remedial law, criminal law, public
and private international law, political law, labor and
social legislation, medical jurisprudence, taxation and
legal ethics.
C. Citizenship: Art XII Sec 14(2) Const: The practice of all
professions in the Philippines shall be limited to Filipino citizens,
save in cases prescribed by law.
D. Bar Examinations :
Rule 138 Sec 7-16 ROC
Section 7. Time for filing proof of qualifications. — All
applicants for admission shall file with the clerk of the Supreme Court
the evidence required by section 2 of this rule at least fifteen (15) days
before the beginning of the examination. If not embraced within section
3 and 4 of this rule they shall also file within the same period the
affidavit and certificate required by section 5, and if embraced within
sections 3 and 4 they shall exhibit a license evidencing the fact of their
admission to practice, satisfactory evidence that the same has not been
revoked, and certificates as to their professional standing. Applicants
shall also file at the same time their own affidavits as to their age,
residence, and citizenship.
Section 8. Notice of Applications. — Notice of applications for
admission shall be published by the clerk of the Supreme Court in
newspapers published in Pilipino, English and Spanish, for at least ten
(10) days before the beginning of the examination.
Section 9. Examination; subjects. — Applicants, not otherwise
provided for in sections 3 and 4 of this rule, shall be subjected to
examinations in the following subjects: Civil Law; Labor and Social
Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional
Law, Public Corporations, and Public Officers); International Law
(Private and Public); Taxation; Remedial Law (Civil Procedure,
Criminal Procedure, and Evidence); Legal Ethics and Practical
Exercises (in Pleadings and Conveyancing).
Section 10. Bar examination, by questions and answers, and in
writing. — Persons taking the examination shall not bring papers,
books or notes into the examination rooms. The questions shall be the
same for all examinees and a copy thereof, in English or Spanish, shall
be given to each examinee. Examinees shall answer the questions
personally without help from anyone.
Upon verified application made by an examinee stating that his
penmanship is so poor that it will be difficult to read his answers without
much loss of time, the Supreme Court may allow such examinee to use
a typewriter in answering the questions. Only noiseless typewriters
shall be allowed to be used.
The committee of bar examiner shall take such precautions as are
necessary to prevent the substitution of papers or commission of other
frauds. Examinees shall not place their names on the examination
papers. No oral examination shall be given.
Section 11. Annual examination. — Examinations for admission to
the bar of the Philippines shall take place annually in the City of Manila.
They shall be held in four days to be disignated by the chairman of the
committee on bar examiners. The subjects shall be distributed as
follows: First day: Political and International Law (morning) and Labor
and Social Legislation (afternoon); Second day: Civil Law (morning)
and Taxation (afternoon); Third day: Mercantile Law (morning) and
Criminal Law (afternoon); Fourth day: Remedial Law (morning) and
legal Ethics and Practical Exercises (afternoon).
Section 12. Committee of examiners. — Examinations shall be
conducted by a committee of bar examiners to be appointed by the
Supreme Court. This committee shall be composed of a Justice of the
Supreme Court, who shall act as chairman, and who shall be
designated by the court to serve for one year, and eight members of
the bar of the Philippines, who shall hold office for a period of one year.
The names of the members of this committee shall be published in
each volume of the official reports.
Section 13. Disciplinary measures. — No candidate shall endeavor
to influence any member of the committee, and during examination the
candidates shall not communicate with each other nor shall they give or
receive any assistance. The candidate who violates this provisions, or
any other provision of this rule, shall be barred from the examination,
and the same to count as a failure against him, and further disciplinary
action, including permanent disqualification, may be taken in the
discretion of the court.
Section 14. Passing average. — In order that a candidate may be
deemed to have passed his examinations successfully, he must have
obtained a general average of 75 per cent in all subjects, without falling
below 50 per cent in any subjects. In determining the average, the
subjects in the examination shall be given the following relative
weights: Civil Law, 15 per cent; Labor and Social Legislation, 10 per
cent; Mercantile Law, 15 per cent; Criminal Law; 10 per cent: Political
and International Law, 15 per cent; Taxation, 10 per cent; Remedial
Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent.
Section 15. Report of the committee; filing of examination papers.
— Not later than February 15th after the examination, or as soon
thereafter as may be practicable, the committee shall file its report on the
result of such examination. The examination papers and notes of the
committee shall be filed with the clerk and may there be examined by
the parties in interest, after the court has approved the report.
Section 16. Failing candidates to take review course. —
Candidates who have failed the bar examinations for three times shall
be disqualified from taking another examination unless they show the
satisfaction of the court that they have enrolled in and passed regular
fourth year review classes as well as attended a pre-bar review course
in a recognized law school.
The professors of the individual review subjects attended by the
candidates under this rule shall certify under oath that the candidates
have regularly attended classes and passed the subjects under the
same conditions as ordinary students and the ratings obtained by them
in the particular subject.
Procedure for Admission:
Bar Examination Committee
 Examinations shall be conducted by a committee of bar
examiners to be appointed by the Supreme Court. This
committee shall be composed of:
Page 12
1. A Justice of the Supreme Court, as chairman and designated by
the court to serve for one year.
 2. Eight (8) members of the Philippine bar, who shall serve as
examiners in the 8 bar subjects and hold office for a period of one
year.
3. Bar Confidant as liaison officer between the Court and Chairman
and the Committee members. Also a deputy clerk of court.
Application and supporting documents
 Time for filing proof of qualifications.—All applicants for admission shall
file with the clerk of the Supreme Court a duly accomplished application
form together with supporting documents concerning his qualifications
at least 15 days before the beginning of the examination.
 Applicants shall also file at the same time their own affidavits as to their
age, residence, and citizenship. (Rule 138, Sec. 7)
 Notice of applications.—Notice of applications for admission shall be
published by the clerk of the Supreme Court in newspapers published
in Pilipino, English and Spanish, for at least 10 days before the
beginning of the examination. (Rule 138, sec. 8)
 American lawyers in active practice of law in the Philippines before July
4, 1946 or a Filipino citizen enrolled as attorney in the United States
before July 4, 1946, who desires admission without examination
should:
1. File a petition with the Court along with his
2. License to practice
3. Evidence that it has not been revoked
4. Certificates of professional standing.
Disclosure of involvement in any criminal case
 Applicant must show that no charges against him involving moral
turpitude have been filed or pending in court in the Philippines (Rule
138, Sec 2, Rules of Court)
 To enable the court to resolve whether a particular crime involves moral
turpitude, applicant must disclose any crime of which he has been
charged.
 If what has been concealed does not involve moral turpitude, it is the
fact of concealment and not the commission of the crime itself that
makes him morally unfit.
Burden of proof to show qualifications
 Applicant assumes the burden of proof to establish his qualifications to
the satisfaction of the court.
 After having presented prima facie evidence of his qualifications, any
one objecting to his admission may offer contrary evidence to
overcome such prima facie showing. Burden of proof shifts to the
complainant.
Written examinations
Annual examination: Examinations for admission to the bar of the
Philippines shall take place annually in the City of Manila. They shall be held
in four days to be designated by the chairman of the committee on bar
examiners.
The subjects shall be distributed as follows:
1. First day: Political and International Law (morning) and Labor and
Social Legislation (afternoon);
2. Second day: Civil Law (morning) and Taxation (afternoon);
3. Third day: Mercantile Law (morning) and Criminal Law
(afternoon);
4. Fourth day: Remedial Law (morning) and legal Ethics and
Practical Exercises (afternoon).
 The questions shall be the same for all examinees.
 Examinees shall answer the questions personally without help from
anyone.
 Upon verified application made by an examinee stating that his
penmanship is so poor that it will be difficult to read his answers without
much loss of time, the Supreme Court may allow such examinee to use
a noiseless typewriter.
Restrictions to insure integrity in examination
1. An examinee is prohibited from bringing papers, books
or notes into the examination room.
2. He is not to communicate with the other examinees during the
exam.
3. He is not to influence any member of the committee on bar
exams.
4. To keep the examinee’s identity a secret and thus avoid any
influence to bear upon the examiner in the valuation of his
answers:
a. The exam papers shall be identified by
numbers.
b. The name of the examinee is written in a piece of
paper and sealed in an envelope.
5. Any candidate who violates any of the rules concerning the
conduct of examination will be barred from taking such and the
same will be counted as a failure against him.
 The conduct of the bar exams involves public interest.
 Any charge of anomaly requires prompt action from the Court to
prevent erosion of public faith in the bar and in the court.
Correction and revaluation of grades
 The bar examiners correct the examination papers and submit the
grades and corrected papers to the bar confidant.
 The bar confidant tallies the individual grades of every examinee,
computes the general average, and prepares a comparative data
showing the percentage of passing and failing in relation to
a certain average.
 Results are submitted to the Examination Committee and to
the Court.
 Any request for revaluation of the answers and the grades given
should be made by the examinee addressed to the Court.
Administration of Oath
 Qualified applicants shall take and subscribe to the Oath of Office as a
Lawyer.
 A prerequisite to the admission of practice of law and may only
be taken before the Supreme Court.
 The court may deny the petition to take the lawyer’s oath for:
o Grave misconduct;
o Pending complaint against the applicant
LAWYER’S OATH (MEMORIZE!!)
I , do solemnly swear that I will maintain allegiance to the Republic
of the Philippines; I will support and defend its Constitution and obey the laws
as well as the legal orders of the duly constituted authorities therein; I will do
no falsehood nor consent to its commission; I will not wittingly or willingly
promote or sue any groundless, false or unlawful suit nor give aid nor consent
to the same; I will not delay any man’s cause for money or malice and will
conduct myself as a lawyer according to the best of my knowledge and
discretion with all good fidelity as well to the court as to my clients; and
I will impose upon myself this obligation voluntarily, without any mental
reservation or purpose of evasion.
So help me God.
 The lawyer’s oath is not a mere ceremony or formality for practicing
law. Every lawyer should at all times weigh his actions according to the
sworn promises he makes when taking the lawyer’s oath. If all lawyers
conducted themselves strictly according to the lawyer’s oath and the
Code of Professional responsibility, the administration of justice will
undoubtedly fairer, faster and easier for everyone concerned. (In Re:
Argosino, 270 SCRA 26)
 By taking the lawyer’s oath, a lawyer becomes the guardian of truth and
Page 13
the rule of law and an indispensable instrument in the fair and impartial
administration of justice. Good moral character includes at
 least common honesty. Deception and other fraudulent acts are not
merely unacceptable practices that are disgraceful and
dishonorable, they reveal a basic moral flaw. (Olbes vs. Deciembre,
457 SCRA 341)
Issuance of Certificate
 After taking oath, the Supreme Court admits him as a member of the
bar for all courts of the Philippines.
 An order be entered that a certificate of such record be given him by
the clerk of court.
 Such certificate is his license to practice law.
 Thereafter, he signs the roll of attorneys, which is the official record
containing the names and signatures of those who are authorized to
practice law.
Payment of IBP dues and privilege tax
 Membership by every attorney in the IBP is compulsory.
 Obligation to support it financially.
o 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. Default in payment for 6
months shall warrant suspension.
o Default in such payment for 1 year shall be a ground for
removal of the name of the delinquent member from the
Roll of Attorneys.
o However, no action involving suspension or removal from
the roll shall be effective without final approval of the
Supreme Court.
 Conditions sine qua non to the privilege to practice law and to the
retention of his name in the roll of attorneys :
1. Continued membership
2. Regularly paying membership dues and other lawful
assessments that it may levy.
 A lawyer must comply with the requirement regarding payment
of membership even though his practice is limited.‖
 The exemption from payment of individual income taxes for senior
citizens does not include payment of IBP membership dues.
DONNA MARIE S. AGUIRRE, Complainant, B. M. No. 1036 June 10, 2003
-versus-
EDWIN L. RANA,
Respondent.
DECISION
CARPIO, J.:
. motivated considering that complainant is the daughter of Silvestre Aguirre,
The Case
Before one is admitted to the Philippine Bar, he must possess the requisite
moral integrity for membership in the legal profession. Possession of moral
integrity is of greater importance than possession of legal learning. The
practice of law is a privilege bestowed only on the morally fit. A bar candidate
who is morally unfit cannot practice law even if he passes the bar
examinations. chan robles virtual law library
The Facts
Respondent Edwin L. Rana ("respondent") was among those who passed
the 2000 Bar Examinations.
On 21 May 2001, one day before the scheduled mass oath-taking of
successful bar examinees as members of the Philippine Bar, complainant
Donna Marie Aguirre ("complainant") filed against respondent a Petition for
Denial of Admission to the Bar. Complainant charged respondent with
unauthorized practice of law, grave misconduct, violation of law, and grave
misrepresentation.
The Court allowed respondent to take his oath as a member of the Bar during
the scheduled oath-taking on 22 May 2001 at the Philippine International
Convention Center. However, the Court ruled that respondent could not sign
the Roll of Attorneys pending the resolution of the charge against him. Thus,
respondent took the lawyer’s oath on the scheduled date but has not signed
the Roll of Attorneys up to now.
Complainant charges respondent for unauthorized practice of law and grave
misconduct. Complainant alleges that respondent, while not yet a lawyer,
appeared as counsel for a candidate in the May 2001 elections before the
Municipal Board of Election Canvassers ("MBEC") of Mandaon, Masbate.
Complainant further alleges that respondent filed with the MBEC a pleading
dated 19 May 2001 entitled Formal Objection to the Inclusion in the
Canvassing of Votes in Some Precincts for the Office of Vice-Mayor. In this
pleading, respondent represented himself as "counsel for and in behalf of
Vice Mayoralty Candidate, George Bunan," and signed the pleading as
counsel for George Bunan ("Bunan").
On the charge of violation of law, complainant claims that respondent is a
municipal government employee, being a secretary of the Sangguniang
Bayan of Mandaon, Masbate. As such, respondent is not allowed by law to
act as counsel for a client in any court or administrative body.
On the charge of grave misconduct and misrepresentation, complainant
accuses respondent of acting as counsel for vice mayoralty candidate
George Bunan ("Bunan") without the latter engaging respondent’s services.
Complainant claims that respondent filed the pleading as a ploy to prevent
the proclamation of the winning vice mayoralty candidate.
On 22 May 2001, the Court issued a resolution allowing respondent to take
the lawyer’s oath but disallowed him from signing the Roll of Attorneys until
he is cleared of the charges against him. In the same resolution, the Court
required respondent to comment on the complaint against him.
In his Comment, respondent admits that Bunan sought his "specific
assistance" to represent him before the MBEC. Respondent claims that "he
decided to assist and advice Bunan, not as a lawyer but as a person who
knows the law." Respondent admits signing the 19 May 2001 pleading that
objected to the inclusion of certain votes in the canvassing. He explains,
however, that he did not sign the pleading as a lawyer or represented himself
as an "attorney" in the pleading.
On his employment as secretary of the Sangguniang Bayan, respondent
claims that he submitted his resignation on 11 May 2001 which was allegedly
accepted on the same date. He submitted a copy of the Certification of
Receipt of Revocable Resignation dated 28 May 2001 signed by Vice-Mayor
Napoleon Relox. Respondent further claims that the complaint is politically
the losing candidate for mayor of Mandaon, Masbate. Respondent prays that
the complaint be dismissed for lack of merit and that he be allowed to sign
the Roll of Attorneys.
On 22 June 2001, complainant filed her Reply to respondent’s Comment and
refuted the claim of respondent that his appearance before the MBEC was
only to extend specific assistance to Bunan. Complainant alleges that on 19
May 2001 Emily Estipona-Hao ("Estipona-Hao") filed a petition for
proclamation as the winning candidate for mayor. Respondent signed as
counsel for Estipona-Hao in this petition. When respondent appeared as
counsel before the MBEC, complainant questioned his appearance on two
grounds: (1) respondent had not taken his oath as a lawyer; and (2) he was
an employee of the government. chan robles virtual law library
Respondent filed a Reply (Re: Reply to Respondent’s Comment) reiterating
his claim that the instant administrative case is "motivated mainly by political
vendetta."
On 17 July 2001, the Court referred the case to the Office of the Bar
Page 14
Confidant ("OBC") for evaluation, report and recommendation.
OBC’s Report and Recommendation
The OBC found that respondent indeed appeared before the MBEC as
counsel for Bunan in the May 2001 elections. The minutes of the MBEC
proceedings show that respondent actively participated in the proceedings.
The OBC likewise found that respondent appeared in the MBEC proceedings
even before he took the lawyer’s oath on 22 May 2001. The OBC believes
that respondent’s misconduct casts a serious doubt on his moral fitness to
be a member of the Bar. The OBC also believes that respondent’s
unauthorized practice of law is a ground to deny his admission to the practice
of law. The OBC, therefore, recommends that respondent be denied
admission to the Philippine Bar.
On the other charges, OBC stated that complainant failed to cite a law which
respondent allegedly violated when he appeared as counsel for Bunan while
he was a government employee. Respondent resigned as secretary and his
resignation was accepted. Likewise, respondent was authorized by Bunan to
represent him before the MBEC.
The Court’s Ruling
We agree with the findings and conclusions of the OBC that respondent
engaged in the unauthorized practice of law and thus does not deserve
admission to the Philippine Bar.
Respondent took his oath as lawyer on 22 May 2001. However, the records
show that respondent appeared as counsel for Bunan prior to 22 May 2001,
before respondent took the lawyer’s oath. In the pleading entitled Formal
Objection to the Inclusion in the Canvassing of Votes in Some Precincts for
the Office of Vice-Mayor dated 19 May 2001, respondent signed as "counsel
for George Bunan." In the first paragraph of the same pleading respondent
stated that he was the "(U)ndersigned Counsel for, and in behalf of Vice
Mayoralty Candidate, GEORGE T. BUNAN." Bunan himself wrote the MBEC
on 14 May 2001 that he had "authorized Atty. Edwin L. Rana as his counsel
to represent him" before the MBEC and similar bodies. chan robles virtual
law library
On 14 May 2001, mayoralty candidate Emily Estipona-Hao also "retained"
respondent as her counsel. On the same date, 14 May 2001, Erly D. Hao
informed the MBEC that "Atty. Edwin L. Rana has been authorized by
REFORMA LM-PPC as the legal counsel of the party and the candidate of
the said party." Respondent himself wrote the MBEC on 14 May 2001 that
he was entering his "appearance as counsel for Mayoralty Candidate Emily
Estipona-Hao and for the REFORMA LM-PPC." On 19 May 2001,
respondent signed as counsel for Estipona-Hao in the petition filed before
the MBEC praying for the proclamation of Estipona-Hao as the winning
candidate for mayor of Mandaon, Masbate.
All these happened even before respondent took the lawyer’s oath. Clearly,
respondent engaged in the practice of law without being a member of the
Philippine Bar.
In Philippine Lawyers Association v. Agrava,[1] the Court elucidated that:
The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and proceedings
on behalf of clients before judges and courts, and in addition, conveyancing.
In general, all advice to clients, and all action taken for them in matters
connected with the law, incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings in attachment, and
in matters of estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal instruments, where the
work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jur. p. 262, 263). [Italics supplied] x
x x chan robles virtual law library
In Cayetano v. Monsod,[2] the Court held that "practice of law" means any
activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. To engage in the practice of
law is to perform acts which are usually performed by members of the legal
profession. Generally, to practice law is to render any kind of service which
requires the use of legal knowledge or skill.
Verily, respondent was engaged in the practice of law when he appeared in
the proceedings before the MBEC and filed various pleadings, without
license to do so. Evidence clearly supports the charge of unauthorized
practice of law. Respondent called himself "counsel" knowing fully well that
he was not a member of the Bar. Having held himself out as "counsel"
knowing that he had no authority to practice law, respondent has shown
moral unfitness to be a member of the Philippine Bar.[3]
The right to practice law is not a natural or constitutional right but is a
privilege. It is limited to persons of good moral character with special
qualifications duly ascertained and certified. The exercise of this privilege
presupposes possession of integrity, legal knowledge, educational
attainment, and even public trust[4] since a lawyer is an officer of the court.
A bar candidate does not acquire the right to practice law simply by passing
the bar examinations. The practice of law is a privilege that can be withheld
even from one who has passed the bar examinations, if the person seeking
admission had practiced law without a license.[5]
The regulation of the practice of law is unquestionably strict. In Beltran, Jr.
v. Abad,[6] a candidate passed the bar examinations but had not taken his
oath and signed the Roll of Attorneys. He was held in contempt of court for
practicing law even before his admission to the Bar. Under Section 3 (e) of
Rule 71 of the Rules of Court, a person who engages in the unauthorized
practice of law is liable for indirect contempt of court.[7] chan robles virtual
law library
True, respondent here passed the 2000 Bar Examinations and took the
lawyer’s oath. However, it is the signing in the Roll of Attorneys that finally
makes one a full-fledged lawyer. The fact that respondent passed the bar
examinations is immaterial. Passing the bar is not the only a qualification to
become an attorney-at-law.[8] Respondent should know that two essential
requisites for becoming a lawyer still had to be performed, namely: his
lawyer’s oath to be administered by this Court and his signature in the Roll of
Attorneys.[9]
On the charge of violation of law, complainant contends that the law does not
allow respondent to act as counsel for a private client in any court or
administrative body since respondent is the secretary of the Sangguniang
Bayan.
Respondent tendered his resignation as secretary of the Sangguniang Bayan
prior to the acts complained of as constituting unauthorized practice of law.
In his letter dated 11 May 2001 addressed to Napoleon Relox, vice- mayor
and presiding officer of the Sangguniang Bayan, respondent stated that he
was resigning "effective upon your acceptance."[10] Vice-Mayor Relox
accepted respondent’s resignation effective 11 May 2001.[11] Thus, the
evidence does not support the charge that respondent acted as counsel for
a client while serving as secretary of the Sangguniang Bayan.
On the charge of grave misconduct and misrepresentation, evidence shows
that Bunan indeed authorized respondent to represent him as his counsel
before the MBEC and similar bodies. While there was no misrepresentation,
respondent nonetheless had no authority to practice law. chan robles virtual
law library
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the
Philippine Bar.
SO ORDERED.
E. Good Moral Character
 Continued possession of good moral character after admission
is a requirement for enjoyment of privilege to practice.
Page 15
 Moral character is what a person really is as distinguished from good
reputation or opinion generally entertained of him.
 Includes at least common honesty.
 Opposite of immorality, which is the indifference to the moral norms of
society.
 This requirement aims to maintain and uphold the high moral standard
and the dignity of the legal profession.
A.C. No. 5095 November 28, 2007
FATHER RANHILIO C. AQUINO, LINA M. GARAN, ESTRELLA C.
LOZADA, POLICARPIO L. MABBORANG, DEXTER R. MUNAR, MONICO
U. TENEDRO, ANDY R. QUEBRAL, NESTOR T. RIVERA, EDUARDO C.
RICAMORA, ARTHUR G. IBAÑEZ, AURELIO C. CALDEZ and DENU A.
AGATEP, complainants,
vs.
ATTY. EDWIN PASCUA, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the letter-complaint dated August 3, 1999 of Father
Ranhilio C. Aquino, then Academic Head of the Philippine Judicial Academy,
joined by Lina M. Garan and the other above-named complainants, against
Atty. Edwin Pascua, a Notary Public in Cagayan.
In his letter-complaint, Father Aquino alleged that Atty. Pascua falsified two
documents committed as follows:
(1) He made it appear that he had notarized the "Affidavit-Complaint" of one
Joseph B. Acorda entering the same as "Doc. No. 1213, Page No. 243, Book
III, Series of 1998, dated December 10, 1998".
(2) He also made it appear that he had notarized the "Affidavit-Complaint" of
one Remigio B. Domingo entering the same as "Doc. No. 1214, Page 243,
Book III, Series of 1998, dated December 10, 1998.
Father Aquino further alleged that on June 23 and July 26, 1999, Atty. Angel
Beltran, Clerk of Court, Regional Trial Court, Tuguegarao, certified that none
of the above entries appear in the Notarial Register of Atty. Pascua; that the
last entry therein was Document No. 1200 executed on December 28, 1998;
and that, therefore, he could not have notarized Documents Nos. 1213 and
1214 on December 10, 1998.
In his comment on the letter-complaint dated September 4, 1999, Atty.
Pascua admitted having notarized the two documents on December 10,
1998, but they were not entered in his Notarial Register due to the oversight
of his legal secretary, Lyn Elsie C. Patli, whose affidavit was attached to his
comment.
The affidavit-complaints referred to in the notarized documents were filed by
Atty. Pascua with the Civil Service Commission. Impleaded as respondents
therein were Lina M. Garan and the other above-named complainants. They
filed with this Court a "Motion to Join the Complaint and Reply to
Respondent's Comment." They maintain that Atty. Pascua's omission was
not due to inadvertence but a clear case of falsification.1 On November 16,
1999, we granted their motion.2
Thereafter, we referred the case to the Office of the Bar Confidant for
investigation, report and recommendation.
On April 21, 2003, the Office of the Bar Confidant issued its Report and
Recommendation partly reproduced as follows:
A notarial document is by law entitled to full faith and credit upon its face. For
this reason, notaries public must observe the utmost care to comply with the
formalities and the basic requirement in the performance of their duties
(Realino v. Villamor, 87 SCRA 318).
Under the notarial law, "the notary public shall enter in such register, in
chronological order, the nature of each instrument executed, sworn to, or
acknowledged before him, the person executing, swearing to, or
acknowledging the instrument, xxx xxx. The notary shall give to each
instrument executed, sworn to, or acknowledged before him a number
corresponding to the one in his register, and shall also state on the instrument
the page or pages of his register on which the same is recorded. No blank
line shall be left between entries" (Sec. 246, Article V, Title IV, Chapter II of
the Revised Administrative Code).
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 is a ground for
revocation of his commission (Sec. 249, Article VI).
In the instant case, there is no question that the subject documents allegedly
notarized by Atty. Pascua were not recorded in his notarial register.
Atty. Pascua claims that the omission was not intentional but due to oversight
of his staff. Whichever is the case, Atty. Pascua cannot escape liability. His
failure to enter into his notarial register the documents that he admittedly
notarized is a dereliction of duty on his part as a notary public and he is bound
by the acts of his staff.
The claim of Atty. Pascua that it was simple inadvertence is far from true.
The photocopy of his notarial register shows that the last entry which he
notarized on December 28, 1998 is Document No. 1200 on Page 240. On
the other hand, the two affidavit-complaints allegedly notarized on December
10, 1998 are Document Nos. 1213 and 1214, respectively, under Page No.
243, Book III. Thus, Fr. Ranhilio and the other complainants are, therefore,
correct in maintaining that Atty. Pascua falsely assigned fictitious numbers to
the questioned affidavit-complaints, a clear dishonesty on his part not only
as a Notary Public, but also as a member of the Bar.
This is not to mention that the only supporting evidence of the claim of
inadvertence by Atty. Pascua is the affidavit of his own secretary which is
hardly credible since the latter cannot be considered a disinterested witness
or party.
Noteworthy also is the fact that the questioned affidavit of Acorda (Doc. No.
1213) was submitted only when Domingo's affidavit (Doc. No. 1214) was
withdrawn in the administrative case filed by Atty. Pascua against Lina
Garan, et al. with the CSC. This circumstance lends credence to the
submission of herein complainants that Atty. Pascua ante-dated another
affidavit-complaint making it appear as notarized on December 10, 1998 and
entered as Document No. 1213. It may not be sheer coincidence then that
both documents are dated December 10, 1998 and numbered as 1213 and
1214.
A member of the legal fraternity should refrain from doing any act which might
lessen in any degree the confidence and trust reposed by the public in the
fidelity, honesty and integrity of the legal profession (Maligsa v. Cabanting,
272 SCRA 409).
As a lawyer commissioned to be a notary public, Atty. Pascua is mandated
to subscribe to the sacred duties appertaining to his office, such duties being
dictated by public policy and impressed with public interest.
A member of the Bar may be disciplined or disbarred for any misconduct in
his professional or private capacity. The Court has invariably imposed a
penalty for notaries public who were found guilty of dishonesty or misconduct
in the performance of their duties.
In Villarin v. Sabate, Jr. (325 SCRA 123), respondent lawyer was suspended
from his Commission as Notary Public for a period of one year for notarizing
a document without affiants appearing before him, and for notarizing the
same instrument of which he was one of the signatories. The Court held that
respondent lawyer failed to exercise due diligence in upholding his duties as
a notary public.
In Arrieta v. Llosa (282 SCRA 248), respondent lawyer who certified under
oath a Deed of Absolute Sale knowing that some of the vendors were dead
was suspended from the practice of law for a period of six (6) months, with a
warning that another infraction would be dealt with more severely. In said
case, the Court did not impose the supreme penalty of disbarment, it being
the respondent's first offense.
In Maligsa v. Cabanting (272 SCRA 409), respondent lawyer was disbarred
from the practice of law, after being found guilty of notarizing a fictitious or
spurious document. The Court considered the seriousness of the offense and
his previous misconduct for which he was suspended for six months from the
practice of law.
It appearing that this is the first offense of Atty. Pascua, a suspension from
the practice of law for a period of six (6) months may be considered enough
penalty for him as a lawyer. Considering that his offense is also a ground for
revocation of notarial commission, the same should also be imposed upon
him.
PREMISES CONSIDERED, it is most respectfully recommended that the
notarial commission of Atty. EDWIN V. PASCUA, if still existing, be
REVOKED and that he be SUSPENDED from the practice of law for a period
of six (6) months."3
After a close review of the records of this case, we resolve to adopt the
findings of facts and conclusion of law by the Office of the Bar Confidant. We
find Atty. Pascua guilty of misconduct in the performance of his duties for
failing to register in his Notarial Register the affidavit-complaints of Joseph
Page 16
B. Acorda and Remigio B. Domingo.
"Misconduct" generally means wrongful, improper or unlawful conduct
motivated by a premeditated, obstinate or intentional purpose.4 The term,
however, does not necessarily imply corruption or criminal intent.5
The penalty to be imposed for such act of misconduct committed by a lawyer
is addressed to the sound discretion of the Court. In Arrieta v. Llosa,6 wherein
Atty. Joel A. Llosa notarized a Deed of Absolute Sale knowing that some of
the vendors were already dead, this Court held that such wrongful act
"constitutes misconduct" and thus imposed upon him the penalty of
suspension from the practice of law for six months, this being his first
administrative offense. Also, in Vda. de Rosales v. Ramos,7 we revoked the
notarial commission of Atty. Mario G. Ramos and suspended him from the
practice of law for six months for violating the Notarial Law in not registering
in his notarial book the Deed of Absolute Sale he notarized. In Mondejar v.
Rubia,8 however, a lesser penalty ofone month suspension from the practice
of law was imposed on Atty. Vivian G. Rubia for making a false declaration
in the document she notarized.
In the present case, considering that this is Atty. Pascua's first offense, we
believe that the imposition of a three-month suspension from the practice of
law upon him is in order. Likewise, since his offense is a ground for revocation
of notarial commission, the same should also be imposed upon him.
WHEREFORE, Atty. Edwin Pascua is declared GUILTY of misconduct and
is SUSPENDED from the practice of law for three (3) months with a STERN
WARNING that a repetition of the same or similar act will be dealt with more
severely. His notarial commission, if still existing, is ordered REVOKED.
SO ORDERED.
JBC No. 013 August 22, 2007
Re: Non-disclosure Before the Judicial and Bar Council of the
Administrative Case Filed Against Judge Jaime V. Quitain, in His
Capacity as the then Asst. Regional Director of the National Police
Commission, Regional Office XI, Davao City.
DECISION
PER CURIAM:
Judge Jaime Vega Quitain was appointed Presiding Judge of the Regional
Trial Court (RTC), Branch 10, Davao City on May 17, 2003.1 Subsequent
thereto, the Office of the Court Administrator (OCA) received confidential
information that administrative and criminal charges were filed against Judge
Quitain in his capacity as then Assistant Regional Director, National Police
Commission (NAPOLCOM), Regional Office 11, Davao City, as a result of
which he was dismissed from the service per Administrative Order (A.O.) No.
183 dated April 10, 1995.
In the Personal Data Sheet (PDS)2 submitted to the Judicial and Bar Council
(JBC) on November 26, 2001, Judge Quitain declared that there were five
criminal cases (Criminal Cases Nos. 18438, 18439, 22812, 22813, and
22814) filed against him before the Sandiganbayan, which were all
dismissed. No administrative case was disclosed by Judge Qutain in his
PDS.
To confirm the veracity of the information, then Deputy Court Administrator
(DCA) Christopher O. Lock (now Court Administrator) requested from the
Sandiganbayan certified copies of the Order(s) dismissing the criminal
cases.3On even date, letters4 were sent to the NAPOLCOM requesting for
certified true copies of documents relative to the administrative complaints
filed against Judge Quitain, particularly A.O. No. 183 dated April 10, 1995
dismissing him from the service. Likewise, DCA Lock required Judge Quitain
to explain the alleged misrepresentation and deception he committed before
the JBC.5
In a letter6 dated November 28, 2003, the NAPOLCOM furnished the Office
of the Court Administrator (OCA) a copy of A.O. No. 183 showing that
respondent Judge was indeed dismissed from the service for Grave
Misconduct for falsifying or altering the amounts reflected in disbursement
vouchers in support of his claim for reimbursement of expenses. A.O. 183
partly reads:
THE PRESIDENT OF THE PHILIPPINES
ADMINISTRATIVE ORDER NO. 183
DISMISSING FROM THE SERVICE ASSISTANT REGIONAL DIRECTOR
JAIME VEGA QUITAIN, NATIONAL POLICE COMMISSION, REGIONAL
OFFICE NO. 11
This refers to the administrative complaint against Jaime Vega Quitain,
Assistant Regional Director, National Police Commission (NAPOLCOM),
Regional Office No. 11, Davao City, for Grave Misconduct (Violation of Art.
48, in relation to Arts. 171 and 217 of the Revised Penal Code and Art. IX of
the Civil Service Law) filed by the NAPOLCOM.
xxxx
After circumspect study, I am in complete accord with the above findings and
recommendation of the NAPOLCOM.
It was established that the falsification could not have been consummated
without respondent’s direct participation, as it was upon his direction and
approval that disbursement vouchers were prepared showing the falsified
amount. The subsequent endorsement and encashment of the check by
respondent only shows his complete disregard for the truth which per se
constitutes misconduct and dishonesty of the highest order. By any standard,
respondent had manifestly shown that he is unfit to discharge the functions
of his office. Needless to stress, a public office is a position of trust and public
service demands of every government official or employee, no matter how
lowly his position may be, the highest degree of responsibility and integrity
and he must remain accountable to the people. Moreover, his failure to
adduce evidence in support of his defense is a tacit admission of his guilt.
Let this be a final reminder to him that the government is serious enough to
[weed out] misfits in the government service, and it will not be irresolute to
impose the severest sanction regardless of personalities involved.
Accordingly, respondent’s continuance in office becomes untenable.
WHEREFORE, and as recommended by the NAPOLCOM, Assistant
Regional Director Jaime Vega Quitain is hereby DISMISSED from the
service, with forfeiture of pay and benefits, effective upon receipt of a copy
hereof.
Done in the City of Manila, this 10th day of April in the year of our Lord,
nineteen hundred and ninety-five.
(Sgd. by President Fidel V. Ramos)
By the President:
(Sgd.)
TEOFISTO T. GUINGONA, JR.
Executive Secretary7
In a letter8 dated October 22, 2003 addressed to DCA Lock, Judge Quitain
denied having committed any misrepresentation before the JBC. He alleged
that during his interview, the members thereof only inquired about the status
of the criminal cases filed by the NAPOLCOM before the Sandiganbayan,
and not about the administrative case simultaneously filed against him. He
also alleged that he never received from the Office of the President an official
copy of A.O. No. 183 dismissing him from the service.
Thereafter, DCA Lock directed Judge Quitain to explain within ten (10) days
from notice why he did not include in his PDS, which was sworn to before a
notary public on November 22, 2001, the administrative case filed against
him, and the fact of his dismissal from the service.9
In his letters10 dated March 13, 2004 and June 17, 2004, respondent
explained that during the investigation of his administrative case by the
NAPOLCOM Ad Hoc Committee, one of its members suggested to him that
if he resigns from the government service, he will no longer be prosecuted;
that following such suggestion, he tendered his irrevocable resignation from
NAPOLCOM on June 1, 199311 which was immediately accepted by the
Secretary of the Department of Interior and Local Governments; that he did
not disclose the case in his PDS because he was of the "honest belief" that
he had no more pending administrative case by reason of his resignation;
that his resignation "amounted to an automatic dismissal" of his
administrative case considering that "the issues raised therein became moot
and academic"; and that had he known that he would be dismissed from the
service, he should not have applied for the position of a judge since he knew
he would never be appointed.
Finding reasonable ground to hold him administratively liable, then Court
Administrator Presbitero J. Velasco, Jr. (now a member of this Court) and
then DCA Lock submitted a Memorandum12 dated September 3, 2004 to
then Chief Justice Hilario G. Davide, Jr., which states:
In order that this Office may thoroughly and properly evaluate the matter, we
deemed it necessary to go over the records of the subject administrative case
against Judge Jaime V. Quitain, particularly the matter that pertains to
Administrative Order No. 183 dated 10 April 1995. On 15 May 2004, we
examined the records of said administrative case on file with the
NAPOLCOM, Legal Affairs Service, and secured certified [true] copies of
Page 17
pertinent documents.
After careful perusal of the documents and records available, including the
letters-explanations of Judge Jaime V. Quitain, this Office finds that there are
reasonable grounds to hold him administratively liable.
An examination of the Personal Data Sheet submitted by Judge Quitain with
the Judicial and Bar Council, which was subscribed and sworn to before
Notary Public Bibiano M. Bustamante of Davao City on 22 November 2001,
reveals that he concealed material facts and even committed perjury in
having answered "yes" to Question No. 24, but without disclosing the fact
that he was dismissed from the government service. Question No. 24 and his
answer thereto are hereunder quoted as follows:
24. Have you ever been charged with or convicted of or otherwise imposed
a sanction for the violation of any law, decree, ordinance or regulation by any
court, tribunal or any other government office, agency or instrumentality in
the Philippines or in any foreign country or found guilty of an administrative
offense or imposed any administrative sanction? [ / ] Yes [ ] No. If your answer
is "Yes" to any of the questions, give particulars.
But all dismissed (acquitted)
Sandiganbayan Criminal Cases Nos. 18438, 18439
Date of [Dismissal] – August 2, 1995
Sandiganbayan Criminal Cases Nos. 22812, 22813, 22814
Date of [Dismissal] – July 17, 2000
As borne out by the records, Judge Quitain deliberately did not disclose the
fact that he was dismissed from the government service. At the time he filled
up and submitted his Personal Data Sheet with the Judicial and Bar Council,
he had full knowledge of the subject administrative case, as well as
Administrative Order No. 183 dismissing him from the government service.
Based on the certified documents secured from the Office of the
NAPOLCOM, the following data were gathered:
1. In compliance with the "Summons" dated 19 March 1993, signed by
Commissioner Alexis C. Canonizado, Chairman, Ad Hoc Committee of the
NAPOLCOM, Judge Jaime V. Quitain, through Atty. Pedro S. Castillo, filed
his Answer (dated 29 March 1993) to the administrative complaint lodged
against him by the Napolcom;
2. On 30 March 1993, Judge Quitain received a copy of the "Notice of
Hearing" of even date, signed by Mr. Canonizado, in connection with the
formal hearing of the subject administrative case scheduled on 30 April 1993;
3. Administrative Order No. 183, dismissing Judge Quitain from the service,
was dated 10 April 1995. On 18 April 1995, newspaper items relative to the
dismissal of Judge Quitain were separately published in the Mindanao Daily
Mirror and in the Mindanao Times, the contents of which read as follows:
Mindanao Times:
Dismissed NAPOLCOM chief airs appeal
Former National Police Commission (Napolcom) acting regional director
Jaime Quitain yesterday appealed for understanding to those allegedly
behind his ouster from his post two years ago. Quitain, who was one of the
guests in yesterday’s Kapehan sa Dabaw, wept unabashedly as he read his
prepared statement on his dismissal from government service.
Quitain claimed that after Secretary Luis Santos resigned from the
Department of Interior and Local Governments in 1991, a series of
administrative charges were hurled against him by some regional employees.
"I was dismissed from the Napolcom Office without due process," Quitain
said.
He also said he had no idea as to who the people (sic) are behind the alleged
smear campaign leveled against him.
"Whoever is behind all this, I have long forgiven you. My only appeal to you,
give me my day in court, give me the chance to clear my name, the only
legacy that I can leave to my children," Quitain said in his statement.
"It is my constitutional right to be present in all proceedings of the
administrative case," he also said.
Quitain was appointed Assistant Regional Director of Napolcom in 1991 by
then President Corazon Aquino upon the recommendation of Secretary
Santos. He was later designated Napolcom acting regional director for
Region XI.
Mindanao Daily Mirror:
Quitain vows to clear name
Former assistant regional director Jaime Quitain of the National Police
Commission (Napolcom) vowed yesterday to clear his name in court from
charges of tampering with an official receipt.
Quitain[,] who is running for a council seat, expressed confidence that he
would soon be vindicated in court against the group that plotted his ouster
from office: He said his only appeal was for Interior and Local Government
Secretary Rafael Alunan to grant him his day in court to answer the charges.
"Whoever was behind all of these things, I have long forgiven them," Quitain
said.
"Just give me the chance to clear my name because this is the only legacy
that I can give my children," Quitain said.
While the records of the subject administrative case on file with the
NAPOLCOM Office does not bear proof of receipt of Administrative Order
No. 183 by Judge Quitain, the same does not necessarily mean that he is
totally unaware of said Administrative Order. As shown by the above-quoted
newspaper clippings, Judge Quitain even aired his appeal and protest to said
Administrative Order.
xxxx
Judge Quitain asseverated that he should not have applied with the JBC had
he known that he was administratively charged and was consequently
dismissed from the service since he will not be considered. But this may be
the reason why he deliberately concealed said fact. His claim that he did not
declare the administrative case in his Personal Data Sheet because of his
honest belief that there is no administrative or criminal case that would be
filed against him by reason of his resignation and the assurance made by the
NAPOLCOM that no administrative case will be filed, does not hold water. It
is rather absurd for him to state that his resignation from the NAPOLCOM
amounts to an automatic dismissal of whatever administrative case filed
against him because when he resigned and relinquished his position, the
issues raised therein became moot and academic. He claims that he did not
bother to follow up the formal dismissal of the administrative case because
of said belief. All these are but futile attempts to exonerate himself from
administrative culpability in concealing facts relevant and material to his
application in the Judiciary. As a member of the Bar, he should know that his
resignation from the NAPOLCOM would not obliterate any administrative
liability he may have incurred[,] much less, would it result to the automatic
dismissal of the administrative case filed against him. The acceptance of his
resignation is definitely without prejudice to the continuation of the
administrative case filed against him. If such would be the case, anyone
charged administratively could easily escape from administrative sanctions
by the simple expedient of resigning from the service. Had it been true that
Judge Quitain honestly believes that his resignation amounts to the
automatic dismissal of his administrative case, the least he could have done
was to personally verify the status thereof. He should not have relied on the
alleged assurance made by the NAPOLCOM.
On the strength of his misrepresentation, Judge Quitain misled the Judicial
and Bar Council by making it appear that he had a clean record and was
qualified to join the Judiciary. His prior dismissal from the government service
is a blot on his record, which has gone [worse] and has spread even more
because of his concealment of it. Had he not concealed said vital fact, it could
have been taken into consideration when the Council acted on his
application. His act of dishonesty renders him unfit to join the Judiciary, much
less remain sitting as a judge. It even appears that he was dismissed by the
NAPOLCOM for misconduct and dishonesty.
Thus, the OCA recommended that: (1) the instant administrative case against
respondent be docketed as an administrative matter; and (2) that he be
dismissed from the service with prejudice to his reappointment to any position
in the government, including government-owned or controlled corporations,
and with forfeiture of all retirement benefits except accrued leave credits.
Respondent was required to Comment.13
In compliance with the Court’s Resolution respondent filed his Comment14
contending that before he filed his application for RTC Judge with the JBC,
he had no knowledge that he was administratively dismissed from the
NAPOLCOM service as the case was "secretly heard and decided." He
averred that:
1. Being a religious lay head and eventually the Pastoral Head of the
Redemptorist Eucharistic Lay Ministry in Davao City and the surrounding
provinces, he was recruited as one of the political followers of then Mayor
Luis T. Santos of Davao City, who later became the Secretary of the
Department of Interior and Local Government (DILG) and was instrumental
in his appointment as Assistant Regional Director of the National Police
Commission, Region XI;
2. After Secretary Luis T. Santos was replaced as DILG Secretary, the
Page 18
political followers of his successor, who were the same followers involved in
the chain of corruption prevalent in their department, began quietly pressing
for his (Quitain) resignation as Assistant Regional Director;
3. Finding difficulty in attacking his honesty and personal integrity, his
detractors went to the extent of filing criminal charges against him;
4. Before these criminal charges were scheduled for trial, he was being
convinced to resign in exchange for the dismissal of said criminal charges,
but when he refused to do so, he was unjustifiably detailed or "exiled" at the
DILG central office in Manila;
5. Upon his "exile" in Manila for several months, he realized that even his
immediate superiors cooperated with his detractors in instigating for his
removal. Hence, upon advice of his relatives, friends and the heads of their
pastoral congregation, he resigned from his position in NAPOLCOM on
condition that all pending cases filed against him, consisting of criminal cases
only, shall be dismissed, as in fact they were dismissed;
6. From then on he was never formally aware of any administrative case filed
against him. Hence, when he submitted his Personal Data Sheet before the
Judicial and Bar Council in support of his application as RTC judge, he made
the following answer in Question No. 23:
23. Is there any pending civil, criminal, or administrative (including
disbarment) case or complaint filed against you pending before any court,
prosecution office, any other office, agency or instrumentality of the
government, or the Integrated Bar of the Philippines?
He could only give a negative answer since there was no pending
administrative case filed against him that he knows;
7. Had he known that there was an administrative case filed against him he
would have desisted from applying as a judge and would have given his full
attention to the said administrative case, if only to avoid ensuing
embarrassment; and
8. The filing of the administrative case against him as well as the proceedings
had thereon and the decision rendered therein, without his knowledge, could
have probably occurred during his "exile period" when he was detailed
indefinitely in Manila. The proceedings had in the said administrative case
are null and void since he was denied due process.
Respondent’s Comment was submitted to the OCA for evaluation, report and
recommendation.15
OCA submitted its Memorandum16 dated August 11, 2005 stating therein
that it was adopting its earlier findings contained in its Memorandum dated
September 3, 2004. Based on the documents presented, it can not be denied
that at the time Judge Quitain applied as an RTC judge, he had full
knowledge of A.O. No. 183 dismissing him from government service.
Considering that Judge Quitain’s explanations in his Comment are but mere
reiterations of his allegations in the previous letters to the OCA, the OCA
maintained its recommendation that Judge Quitain be dismissed from the
service with prejudice to his reappointment to any position in the government,
including government-owned or controlled corporations, and with forfeiture of
all retirement benefits except accrued leave credits.
The Court fully agrees with the disquisition and the recommendation of the
OCA.
It behooves every prospective appointee to the Judiciary to apprise the
appointing authority of every matter bearing on his fitness for judicial office,
including such circumstances as may reflect on his integrity and probity.
These are qualifications specifically required of appointees to the Judiciary
by Sec. 7(3), Article VIII of the Constitution.17
In this case, Judge Quitain failed to disclose that he was administratively
charged and dismissed from the service for grave misconduct per A.O. No.
183 dated April 10, 1995 by no less than the former President of the
Philippines. He insists that on November 26, 2001 or before he filed with the
JBC his verified PDS in support of his application for RTC Judge, he had no
knowledge of A.O. No. 183; and that he was denied due process. He further
argues that since all the criminal cases filed against him were dismissed on
August 2, 1995 and July 17, 2000, and considering the fact that he resigned
from office, his administrative case had become moot and academic.
Respondent’s contentions utterly lack merit.
No amount of explanation or justification can erase the fact that Judge
Quitain was dismissed from the service and that he deliberately withheld this
information. His insistence that he had no knowledge of A.O. No. 183 is
belied by the newspaper items published relative to his dismissal. It bears
emphasis that in the Mindanao Times dated April 18, 1995,18 Judge Quitain
stated in one of his interviews that "I was dismissed from the (Napolcom)
office without due process." It also reads: "Quitain, who was one of the guests
in yesterday’s Kapehan sa Dabaw, wept unabashedly as he read his
prepared statement on his dismissal from the government service." Neither
can we give credence to the contention that he was denied due process. The
documents submitted by the NAPOLCOM to the OCA reveal that
Commissioner Alexis C. Canonizado, Chairman Ad Hoc Committee, sent him
summons on March 19, 1993 informing him that an administrative complaint
had been filed against him and required him to file an answer.19 Then on
March 29, 1993, respondent, through his counsel, Atty. Pedro Castillo, filed
an Answer.20 In administrative proceedings, the essence of due process is
simply an opportunity to be heard, or an opportunity to explain one’s side or
opportunity to seek a reconsideration of the action or ruling complained of.
Where opportunity to be heard either through oral arguments or through
pleadings is accorded, there is no denial of due process.21 Furthermore, as
we have earlier mentioned and which Judge Quitain ought to know, cessation
from office by his resignation does not warrant the dismissal of the
administrative complaint filed against him while he was still in the service nor
does it render said administrative case moot and academic.22Judge Quitain
was removed from office after investigation and was found guilty of grave
misconduct. His dismissal from the service is a clear proof of his lack of the
required qualifications to be a member of the Bench.
More importantly, it is clear that Judge Quitain deliberately misled the JBC in
his bid to gain an exalted position in the Judiciary. In Office of the Court
Administrator v. Estacion, Jr.,23 this Court stressed:
x x x The important consideration is that he had a duty to inform the
appointing authority and this Court of the pending criminal charges against
him to enable them to determine on the basis of his record, eligibility for the
position he was seeking. He did not discharge that duty. His record did not
contain the important information in question because he deliberately
withheld and thus effectively hid it. His lack of candor is as obvious as his
reason for the suppression of such a vital fact, which he knew would have
been taken into account against him if it had been disclosed."
Thus, we find respondent guilty of dishonesty. "Dishonesty" means
"disposition to lie, cheat or defraud; unworthiness; lack of integrity."24
Section 8(2), Rule 14025 of the Rules of Court classifies dishonesty as a
serious charge. Section 11, same Rules, provides the following sanctions:
SEC. 11. Sanctions. – A. If the respondent is guilty of a serious charge, any
of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the
Court may determine, and disqualification from reinstatement or appointment
to any public office, including government-owned or controlled corporations.
Provided, however, That the forfeiture of benefits shall in no case include
accrued leave credits;
2. Suspension from office without salary and other benefits for more than
three (3) but not exceeding six (6) months; or
3. A fine of not less than P20,000.00 but not exceeding P40,000.00.
In Re: Inquiry on the Appointment of Judge Enrique A. Cube,26 we held:
By his concealment of his previous dismissal from the public service, which
the Judicial and Bar Council would have taken into consideration in acting on
his application, Judge Cube committed an act of dishonesty that rendered
him unfit to be appointed to, and to remain now in, the Judiciary he has
tarnished with his falsehood.
WHEREFORE, Judge Enrique A. Cube of the Metropolitan Trial Court of
Manila is DISMISSED with prejudice to his reappointment to any position in
the government, including government-owned or controlled corporations,
and with forfeiture of all retirement benefits. This decision is immediately
executory.
We cannot overemphasize the need for honesty and integrity on the part of
all those who are in the service of the Judiciary.27 We have often stressed
that the conduct required of court personnel, from the presiding judge to the
lowliest clerk of court, must always be beyond reproach and circumscribed
with the heavy burden of responsibility as to let them be free from any
suspicion that may taint the Judiciary. We condemn, and will never
countenance any conduct, act or omission on the part of all those involved in
the administration of justice, which would violate the norm of public
accountability and diminish or even just tend to diminish the faith of the
people in the Judiciary.28lavvphil
Considering the foregoing, Judge Quitain is hereby found guilty of grave
misconduct. He deserves the supreme penalty of dismissal.
Page 19
However, on August 9, 2007, the Court received a letter from Judge Quitain
addressed to the Chief Justice stating that he is tendering his irrevocable
resignation effective immediately as Presiding Judge of the Regional Trial
Court, Branch 10, Davao City. Acting on said letter, "the Court Resolved to
accept the irrevocable resignation of Judge Jaime V. Quitain effective August
15, 2007, without prejudice to the decision of the administrative case."29
Verily, the resignation of Judge Quitain which was accepted by the Court
without prejudice does not render moot and academic the instant
administrative case. The jurisdiction that the Court had at the time of the filing
of the administrative complaint is not lost by the mere fact that the respondent
judge by his resignation and its consequent acceptance – without prejudice
– by this Court, has ceased to be in office during the pendency of this case.
The Court retains its authority to pronounce the respondent official innocent
or guilty of the charges against him. A contrary rule would be fraught with
injustice and pregnant with dreadful and dangerous implications.30Indeed, if
innocent, the respondent official merits vindication of his name and integrity
as he leaves the government which he has served well and faithfully; if guilty,
he deserves to receive the corresponding censure and a penalty proper and
imposable under the situation.31
WHEREFORE, in view of our finding that JUDGE JAIME V. QUITAIN is guilty
of grave misconduct which would have warranted his dismissal from the
service had he not resigned during the pendency of this case, he is hereby
meted the penalty of a fine of P40,000.00. It appearing that he has yet to
apply for his retirement benefits and other privileges, if any, the Court likewise
ORDERS the FORFEITURE of all benefits, except earned leave credits
which Judge Quitain may be entitled to, and he is PERPETUALLY
DISQUALIFIED from reinstatement and appointment to any branch,
instrumentality or agency of the government, including government-owned
and/or controlled corporations.
This Decision is immediately executory.
Let a copy of this Decision be attached to Judge Jaime V. Quitain’s 201 File.
SO ORDERED.
Adm. Case No. 2984 August 31, 2007
RODOLFO M. BERNARDO, Complainant,
vs.
ATTY. ISMAEL F. MEJIA, Respondent.
RESOLUTION
NACHURA, J.:
Before the Court is a petition for review of Administrative Case No. 2984 with
plea for reinstatement in the practice of law filed by Ismael F. Mejia (Mejia)
who is already seventy-one years old and barred from the practice of law for
fifteen years.
The antecedent facts that led to Mejia’s disbarment are as follows.
On January 23, 1987, Rodolfo M. Bernardo, Jr. accused his retained
attorney, Ismael F. Mejia, of the following administrative offenses:
1) misappropriating and converting to his personal use:
a) part of the sum of P27,710.00 entrusted to him for payment of real estate
taxes on property belonging to Bernardo, situated in a subdivision known as
Valle Verde I; and
b) part of another sum of P40,000.00 entrusted to him for payment of taxes
and expenses in connection with the registration of title of Bernardo to
another property in a subdivision known as Valle Verde V;
2) falsification of certain documents, to wit:
a) a special power of attorney dated March 16, 1985, purportedly executed
in his favor by Bernardo (Annex P, par. 51, complainant’s affidavit dates
October 4, 1989);
b) a deed of sale dated October 22, 1982 (Annex O, par. 48, id.); and
c) a deed of assignment purportedly executed by the spouses Tomas and
Remedios Pastor, in Bernardo’s favor (Annex Q, par. 52, id.);
3) issuing a check, knowing that he was without funds in the bank, in payment
of a loan obtained from Bernardo in the amount of P50,000.00, and
thereafter, replacing said check with others known also to be insufficiently
funded.1
On July 29, 1992, the Supreme Court En Banc rendered a Decision Per
Curiam, the dispositive portion of which reads:
WHEREFORE, the Court DECLARES the [sic] respondent, Atty. Ismael F.
Mejia, guilty of all the charges against him and hereby imposes on him the
penalty of DISBARMENT. Pending finality of this judgment, and effective
immediately, Atty. Ismael F. Mejia is hereby SUSPENDED from the practice
of law. Let a copy of this Decision be spread in his record in the Bar
Confidant’s Office, and notice thereof furnished the Integrated Bar of the
Philippines, as well as the Court Administrator who is DIRECTED to inform
all the Courts concerned of this Decision.
SO ORDERED.
On June 1, 1999, Mejia filed a Petition praying that he be allowed to reengage
in the practice of law. On July 6, 1999, the Supreme Court En Banc issued a
Resolution denying the petition for reinstatement.
On January 23, 2007, Mejia filed the present petition for review of
Administrative Case No. 2984 with a plea for reinstatement in the practice of
law. No comment or opposition was filed against the petition.2
Whether the applicant shall be reinstated in the Roll of Attorneys rests to a
great extent on the sound discretion of the Court. The action will depend on
whether or not the Court decides that the public interest in the orderly and
impartial administration of justice will continue to be preserved even with the
applicant’s reentry as a counselor at law. The applicant must, like a candidate
for admission to the bar, satisfy the Court that he is a person of good moral
character, a fit and proper person to practice law. The Court will take into
consideration the applicant’s character and standing prior to the disbarment,
the nature and character of the charge/s for which he was disbarred, his
conduct subsequent to the disbarment, and the time that has elapsed
between the disbarment and the application for reinstatement.3
In the petition, Mejia acknowledged his indiscretions in the law
profession.1avvphi1 Fifteen years had already elapsed since Mejia’s name
was dropped from the Roll of Attorneys. At the age of seventy-one, he is
begging for forgiveness and pleading for reinstatement. According to him, he
has long repented and he has suffered enough. Through his reinstatement,
he wants to leave a legacy to his children and redeem the indignity that they
have suffered due to his disbarment.
After his disbarment, he put up the Mejia Law Journal, a publication
containing his religious and social writings. He also organized a religious
organization and named it "El Cristo Movement and Crusade on Miracle of
Heart and Mind."
The Court is inclined to grant the present petition. Fifteen years has passed
since Mejia was punished with the severe penalty of disbarment. Although
the Court does not lightly take the bases for Mejia’s disbarment, it also cannot
close its eyes to the fact that Mejia is already of advanced years. While the
age of the petitioner and the length of time during which he has endured the
ignominy of disbarment are not the sole measure in allowing a petition for
reinstatement, the Court takes cognizance of the rehabilitation of Mejia. Since
his disbarment in 1992, no other transgression has been attributed to him,
and he has shown remorse. Obviously, he has learned his lesson from this
experience, and his punishment has lasted long enough. Thus, while the
Court is ever mindful of its duty to discipline its erring officers, it also knows
how to show compassion when the penalty imposed has already served its
purpose. After all, penalties, such as disbarment, are imposed not to punish
but to correct offenders.
We reiterate, however, and remind petitioner that the practice of law is a
privilege burdened with conditions. Adherence to the rigid standards of
mental fitness, maintenance of the highest degree of morality and faithful
compliance with the rules of the legal profession are the continuing
requirements for enjoying the privilege to practice law.4
WHEREFORE, in view of the foregoing, the petition for reinstatement in the
Roll of Attorneys by Ismael F. Mejia is hereby GRANTED.
SO ORDERED.
A.C. No. 6697 July 25, 2006
ZOILO ANTONIO VELEZ, complainant,
vs.
ATTY. LEONARD S. DE VERA, respondent.
x ----------------------------------------------- x
Bar Matter No. 1227 July 25, 2006
RE: OATH-TAKING OF ATTY. LEONARD S. DE VERA, INCOMING
PRESIDENT OF THE INTEGRATED BAR OF THE PHILIPPINES.
x ----------------------------------------------- x
A.M. No. 05-5-15-SC July 25, 2006
IN THE MATTER OF THE REMOVAL OF ATTY. LEONARD S. DE VERA
FROM THE IBP BOARD OF GOVERNORS AS EXECUTIVE VICE
PRESIDENT AND GOVERNOR.
Page 20
IN THE MATTER OF THE LETTER-COMPLAINT OF ATTY. LEONARD S.
DE VERA DATED MAY 18, 2005 TO FORTHWITH DENY/DISAPPROVE
THE IBP RESOLUTION UNJUSTLY, ILLEGALLY, ARBITRARILY, AND
ABRUPTLY REMOVING HIM FROM THE BOARD OF GOVERNORS OF
THE IBP FOR ABSOLUTE LACK OF BASIS AND FOR FLAGRANT
DENIAL OF DUE PROCESS.
DECISION
Per Curiam:
Before Us are three consolidated cases revolving around Integrated Bar of
the Philippines (IBP) Governor and Executive Vice-President (EVP) Atty.
Leonard de Vera. The first pertains to a disbarment case questioning Atty.
de Vera's moral fitness to remain as a member of the Philippine Bar, the
second refers to Atty. de Vera's letter-request to schedule his oath taking as
IBP National President, and the third case concerns the validity of his removal
as Governor and EVP of the IBP by the IBP Board. The resolution of these
cases will determine the national presidency of the IBP for the term 2005-
2007.
A.C. No. 6697
The Office of the Bar Confidant, which this Court tasked to make an
investigation, report and recommendation on subject case,1 summarized the
antecedents thereof as follows:
In a Complaint dated 11 April 2005, complainant Zoilo Antonio Velez moved
for the suspension and/or disbarment of respondent Atty. Leonard de Vera
based on the following grounds:
1) respondent's alleged misrepresentation in concealing the suspension
order rendered against him by the State Bar of California; and
2) respondent's alleged violation of the so-called "rotation rule" enunciated in
Administrative Matter No. 491 dated 06 October 1989 (in the Matter: 1989
IBP Elections).
Complainant averred that the respondent, in appropriating for his own benefit
funds due his client, was found to have performed an act constituting moral
turpitude by the Hearing Referee Bill Dozier, Hearing Department – San
Francisco, State Bar of California in Administrative Case No. 86-0-18429.
Complainant alleged that the respondent was then forced to resign or
surrender his license to practice law in the said state in order to evade the
recommended three (3) year suspension. Complainant asserted that the
respondent lacks the moral competence necessary to lead the country's most
noble profession.
Complainant, likewise, contended that the respondent violated the so-called
"rotation rule" provided for in Administrative Matter No. 491 when he
transferred to IBP Agusan del Sur Chapter. He claimed that the respondent
failed to meet the requirements outlined in the IBP By-Laws pertaining to
transfer of Chapter Membership. He surmised that the respondent's transfer
was intended only for the purpose of becoming the next IBP National
President. Complainant prayed that the respondent be enjoined from
assuming office as IBP National President.
Meanwhile, in his Comment dated 2 May 2005, respondent stated that the
issues raised in above-mentioned Complaint were the very issues raised in
an earlier administrative case filed by the same complainant against him. In
fact, according to him, the said issues were already extensively discussed
and categorically ruled upon by this Court in its Decision dated 11 December
2005 in Administrative Case No. 6052 (In Re: Petition to Disqualify Atty.
Leonard De Vera). Respondent prayed that the instant administrative
complaint be dismissed following the principle of res judicata.
On 15 June 2005, both parties appeared before the Office of the Bar
Confidant for presentation of evidence in support of their respective
allegations.
Subsequently, in a Memorandum dated 20 June 2005, complainant
maintained that there is substantial evidence showing respondent's moral
baseness, vileness and depravity, which could be used as a basis for his
disbarment. Complainant stressed that the respondent never denied that he
used his client's money. Complainant argued that the respondent failed to
present evidence that the Supreme Court of California accepted the latter's
resignation and even if such was accepted, complainant posited that this
should not absolve the respondent from liability.
Moreover, complainant added that the principle of res judicata would not
apply in the case at bar. He asserted that the first administrative case filed
against the respondent was one for his disqualification. x x x.
Bar Matter No. 1227
A.M. No. 05-5-15-SC
As earlier adverted to, Bar Matter No. 1227 refers to Atty. de Vera's letter-
request to this Court to schedule his oath taking as IBP National President.
A.M. No. 05-5-15-SC, on the other hand, is a letter-report dated 19 May 2005
of IBP National President Jose Anselmo I. Cadiz (IBP President Cadiz)
furnishing this Court with the IBP's Resolution, dated 13 May 2005, removing
Atty. De Vera as member of the IBP Board and as IBP EVP, for committing
acts inimical to the IBP Board and the IBP in general.2
The controversy in Bar Matter No. 1227 and A.M. No. 05-5-15-SC arose from
the regular meeting of the IBP Board of Governors held on 14 January 2005.
In said meeting, by 2/3 vote (6 voting in favor and 2 against), the IBP Board
approved the withdrawal of the Petition filed before this Court docketed as
"Integrated Bar of the Philippines, Jose Anselmo I. Cadiz, et al. vs. Senate of
the Philippines, et al. – Petition for Certiorari and Prohibition with Prayer for
the Issuance of Temporary Restraining Order or Writ of Preliminary
Injunction, SC-R165108." The Petition was intended to question the legality
and/or constitutionality of Republic Act No. 9227, authorizing the increase in
the salaries of judges and justices, and to increase filing fees.3
The two IBP Governors who opposed the said Resolution approving the
withdrawal of the above-described Petition were herein respondent Governor
and EVP de Vera and Governor Carlos L. Valdez.4
On 19 January 2005, IBP President Cadiz informed this Court of the decision
taken by the IBP Board to withdraw the afore-mentioned Petition. Attached
to his letter was a copy of the IBP Board's 14 January 2005 Resolution.5
On 15 April 2005, Bar Matter No. 1227, pertaining to Atty. de Vera's request
for oathtaking as National President, was filed. The same was subsequently
consolidated with A.C. No. 6697, the disbarment case filed against Atty. de
Vera.6
On 22 April 2005, a plenary session was held at the 10th National IBP
Convention at the CAP-Camp John Hay Convention Center, Baguio City. It
was at this forum where Atty. de Vera allegedly made some untruthful
statements, innuendos and blatant lies in connection with the IBP Board's
Resolution to withdraw the Petition questioning the legality of Republic Act
No. 9227.7
On 10 May 2005, this Court issued a Temporary Restraining Order (TRO)
enjoining Atty. de Vera from assuming office as IBP National President.8
On 12 May 2005, IBP Gov. Romulo A. Rivera wrote IBP National President
Cadiz a letter wherein he prayed for the removal of Atty. de Vera as member
of the IBP Board for having committed acts which were inimical to the IBP
Board and the IBP.9
On 13 May 2005, in the 20th Regular Meeting of the Board held at the
Waterfront Hotel, Cebu City, the IBP Board, by 2/3 vote, resolved to remove
Atty. de Vera as member of the IBP Board of Governors and as IBP Executive
Vice President.10 Quoted hereunder is the dispositive portion of said
Resolution:
NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED,
that Governor Leonard S. de Vera is REMOVED as a member of the IBP
Board of Governors and Executive Vice President for committing acts
inimical to the IBP Board of Governors and the IBP, to wit:
1. For making untruthful statements, innuendos and blatant lies in public
about the Supreme Court and members of the IBP Board of Governors,
during the Plenary Session of the IBP 10th National Convention of Lawyers,
held at CAP-Camp John Hay Convention Center on 22 April 2005, making it
appear that the decision of the IBP Board of Governors to withdraw the
PETITION docketed as "Integrated Bar of the Philippines, Jose Anselmo I.
Cadiz, et al. vs. The Senate of the Philippines, et al., Petition for Certiorari
and Prohibition With Prayer for the Issuance of A Temporary Restraining
Order or Writ of Preliminary Injunction, S.C.-R. 165108", was due to influence
and pressure from the Supreme Court of the Philippines;
2. For making said untruthful statements, innuendos and blatant lies that
brought the IBP Board of Governors and the IBP as a whole in public
contempt and disrepute;
3. For violating Canon 11 of the Code of Professional Responsibility for
Lawyers which mandates that "A lawyer shall observe and maintain the
respect due to the courts and to judicial officers and should insist on similar
conduct by others", by making untruthful statements, innuendos and blatant
lies during the Plenary Session of the IBP 10th National Convention of
Lawyers in Baguio City;
4. For instigating and provoking some IBP chapters to embarrass and
Page 21
humiliate the IBP Board of Governors in order to coerce and compel the latter
to pursue the aforesaid PETITION;
5. For falsely accusing the IBP National President, Jose Anselmo I. Cadiz,
during the Plenary Session of the 10th National Convention in Baguio City of
withholding from him a copy of Supreme Court Resolution, dated 25 January
2005, granting the withdrawal of the PETITION, thereby creating the wrong
impression that the IBP National President deliberately prevented him from
taking the appropriate remedies with respect thereto, thus compromising the
reputation and integrity of the IBP National President and the IBP as a
whole.11
On 18 May 2005, Atty. de Vera aired his sentiments to this Court by writing
the then Hon. Chief Justice Hilario G. Davide, Jr. a letter captioned as "Urgent
Plea to Correct a Glaring Injustice of the IBP Board of Governors; Vehement
Protest to the Board Resolution Abruptly Removing Atty. Leonard de Vera
from the Board of Governors in Patent Violation of Due Process; Petition to
Deny/Disapprove the Completely Unjustified and Highly Arbitrary Resolution
Precipitately Ousting Atty. de Vera from the Board of Governors in Less Than
Twenty Four (24) Hours from Notice and Judgment Without Formal
Investigation."12
In the said letter, Atty. de Vera strongly and categorically denied having
committed acts inimical to the IBP and its Board. He alleged that on the basis
of an unverified letter-complaint filed by IBP Governor Rivera, the IBP Board
voted to expel him posthaste, without just cause and in complete disregard
of even the minimum standards of due process. Pertinent portions of his letter
read:
It is evident that the Board of Governors has committed a grave and serious
injustice against me especially when, as the incumbent Executive Vice
President of the IBP, I am scheduled to assume my position as National
President of the IBP on July 1, 2005. x x x
I was denied the very basic rights of due process recognized by the Supreme
Court even in administrative cases:
1. The denial of the right to answer the charges formally or in writing. The
complaint against me was in writing.
2. The denial of the right to answer the charges within a reasonable period
of time after receipt of the complaint.
3. The denial of the right to a fair hearing.
4. The denial of the right to confront the accuser and the witnesses against
me. I challenged Gov. Rivera to testify under oath so I could question him.
He refused. I offered to testify under oath so I could be questioned. My
request was denied.
5. The denial of my right to present witnesses on my behalf.
6. The denial of my right to an impartial judge. Governor Rivera was my
accuser, prosecutor, and judge all at the same time.
7. Gov. Rivera's prejudgment of my case becomes even more evident
because when his motion to expel me was lost in a 5-3 votes (due to his
inhibition to vote), Gov. Rivera asked for another round of voting so he can
vote to support his own complaint and motion to expel me.13 (Emphasis and
underscoring in original.)
On 27 May 2005, the IBP Board responded to the 18 May 2005 letter of Atty.
de Vera.14 In their Reply, the IBP Board explained to this Court that their
decision to remove Atty. de Vera was based on valid grounds and was
intended to protect itself from a recalcitrant member. Among the grounds
cited and elucidated by the IBP Board were the following:
(i) Atty. de Vera engaged himself in a negative media campaign and solicited
resolutions from IBP Chapters to condemn the IBP Board of Governors for
its decision to withdraw the Petition, all with the end in view of compelling or
coercing the IBP Board of Governors to reconsider the decision to withdraw
the Petition.
(ii) Atty. de Vera embarrassed, humiliated and maligned the IBP Board of
Governors and the IBP National President in public or during the Plenary
Session at the 10th National Convention of Lawyers.
(iii) Rather than pacify the already agitated 'solicited' speakers (at the plenary
session), Atty. de Vera "fanned the fire", so to speak, and went to the extent
of making untruthful statements, innuendos and blatant lies about the
Supreme Court and some members of the IBP Board of Governors. He
deliberately and intentionally did so to provoke the members of the IBP Board
of Governors to engage him in an acrimonious public debate and expose the
IBP Board of Governors to public ridicule.
(iv) Atty. de Vera uttered untruthful statements, innuendos and blatant lies,
e.g., that some of the members of the IBP Board of Governors voted in favor
of the withdrawal of the petition (without mentioning names) because
"nakakahiya kasi sa Supreme Court, nakakaawa kasi ang Supreme Court,
kasi may mga kaibigan tayo sa Court." He made it appear that the IBP Board
of Governors approved the resolution, withdrawing the petition, due to
"influence" or "pressure" from the Supreme Court.15
The IBP Board explained that Atty. de Vera's actuation during the Plenary
Session was "the last straw that broke the camel's back." He committed acts
inimical to the interest of the IBP Board and the IBP; hence, the IBP Board
decided to remove him.
On 3 June 2005, Atty. de Vera furnished the Court with copies of resolutions
and a position paper coming from various IBP Chapters all condemning his
expulsion from the IBP Board and as IBP EVP.16
On 15 June 2005, IBP President Cadiz informed Chief Justice Davide that in
a special meeting of the IBP Board held at the EDSA Shangri-la Plaza on 13
June 2005, the IBP Board took note of the vacancy in the position of the IBP
EVP brought about by Atty. de Vera's removal. In his stead, IBP Governor
Pura Angelica Y. Santiago was formally elected and declared as IBP EVP.17
On 17 June 2005, Atty. de Vera protested against the election of Atty.
Santiago.18 On 20 June 2005, Atty. Santiago voluntarily relinquished the
EVP position through a letter addressed to the IBP Board.19 Thus, on 25
June 2005, during its last regular meeting, the IBP Board elected a new EVP
in the person of IBP Governor Jose Vicente B. Salazar to replace Atty.
Santiago.
On 28 June 2005, IBP National President Cadiz, through a letter addressed
to Chief Justice Davide, reported to this Court Atty. Salazar's election.20 IBP
National President Cadiz also requested, among other things, that Atty.
Salazar's election be approved and that he be allowed to assume as National
President in the event that Atty. de Vera is disbarred or suspended from the
practice of law or should his removal from the 2003-2005 Board of Governors
and as EVP is approved by this Court.21 Also on 28 June 2005, Atty. de Vera
protested the election of Atty. Salazar.22
In his Extended Comment23 dated 25 July 2005, Atty. de Vera maintained
that there was absolutely no factual or legal basis to sustain the motion to
remove him from the IBP Board because he violated no law. He argued that
if the basis for his removal as EVP was based on the same grounds as his
removal from the IBP Board, then his removal as EVP was likewise executed
without due notice and without the least compliance with the minimum
standards of due process of law.
Atty. de Vera strongly averred that, contrary to the utterly false and malicious
charges filed against him, the speakers at the Plenary Session of the Baguio
Convention, although undeniably impassioned and articulate, were respectful
in their language and exhortations, not once undermining the stature of the
IBP in general and the IBP Board of Governors in particular. He posited that
speaking in disagreement with the Resolution of the Board during the
Convention's Plenary Session is not a valid cause to remove or expel a duly-
elected member of the IBP Board of Governors; and the decision to remove
him only shows that the right to freedom of speech or the right to dissent is
not recognized by the incumbent IBP Board.
Anent the charges that he accused the National President of withholding a
copy of this Court's Resolution granting the withdrawal of the Petition
questioning the legality of Republic Act No. 9227, Atty. de Vera avowed that
he made no such remarks. As regards the election of a new IBP EVP, Atty.
de Vera contended that the said election was illegal as it was contrary to the
provisions of the IBP By-Laws concerning national officers, to wit:
Section. 49. Term of office. - The President and the Executive Vice President
shall hold office for a term of two years from July 1 following their election
until 30 June of their second year in office and until their successors shall
have been duly chosen and qualified.
In the event the President is absent or unable to act, his functions and duties
shall be performed by the Executive Vice President, and in the event of death,
resignation, or removal of the President, the Executive Vice President shall
serve as Acting President for the unexpired portion of the term. In the event
of death, resignation, removal or disability of both the President and the
Executive Vice President, the Board of Governors shall elect an Acting
President to hold office for the unexpired portion of the term or during the
period of disability.
Unless otherwise provided in these By-Laws, all other officers and
employees appointed by the President with the consent of the Board shall
hold office at the pleasure of the Board or for such term as the Board may
fix.24
Page 22
To bolster his position, Atty. de Vera stressed that when both the President
and the EVP die, resign, are removed, or are disabled, the IBP By-Laws only
provides for the election of an Acting President and that no mention for an
election for EVP was made. Thus, when such election for EVP occurs, such
is contrary to the express provision of the IBP By-Laws.
Atty. de Vera also argued that even if he were validly removed as IBP EVP,
his replacement should come from Eastern Mindanao and not from any other
region, due to the Rotation Rule embodied in par. 2, Section 47, Article VII of
the IBP By-Laws.
In response to Atty. de Vera's averments, the 2003-2005 IBP Board, through
its counsel, submitted a Reply dated 27 January 2006 and clarified as follows:
(i) The IBP Board of Governors is vested with sufficient power and authority
to protect itself from an intractable member by virtue of Article VI, Section 44
of the IBP By-Laws;
(ii) Atty. de Vera was removed as a member of the IBP Board and as IBP
EVP not because of his disagreement with the IBP Board's position but
because of the various acts that he committed which the IBP Board
determined to be inimical to the IBP Board and the IBP as a whole;
(iii) Atty. de Vera cannot exculpate himself from liability by invoking his
constitutional right to Free Speech because, as a member of the Bar, it is his
sworn duty to observe and maintain the respect due to the courts and to
judicial officers and to insist on similar conduct by others;
(iv) The IBP Board, in effecting the removal of Atty. de Vera, observed the
fundamental principles of due process. As the records would bear, Atty. de
Vera was duly notified of the Regular Meeting of the IBP Board held on 13
May 2004; was furnished a copy of Governor Rivera's Letter-Complaint the
day before the said meeting; was furnished a copy of the said Meeting's
Agenda; and was allowed to personally defend himself and his accuser, Gov.
Rivera;
(v) Atty. de Vera was validly removed because the required number of votes
under Section 44 of the IBP By-Laws to remove Atty. de Vera as a member
of the IBP Board and as IBP EVP was duly complied with;
(vi) Atty. de Vera's replacement as IBP EVP need not come from Eastern
Mindanao Region because: (a) the rotation rule under Article VII, Section 47,
par. 2 of the IBP By-Laws had already been complied with when Atty. de
Vera, who hails from Eastern Mindanao, was elected IBP EVP; and (b) the
rotation rule need not be enforced if the same will not be practicable,
possible, feasible, doable or viable; and, finally, that –
(vii) Atty. Salazar was validly elected as IBP EVP and, thus, should now be
allowed to take his oath as IBP National President.25
The Court's Ruling
AC No. 6697
In his Memorandum26 dated 20 June 2005, complainant tendered the
following issues for the consideration of the Court:
I.
WHETHER OR NOT RESPONDENT ATTORNEY LEONARD S. DEVERA
(sic) COMMITED MALPRACTICE WHICH AMOUNTED TO MORAL
T[U]RPITUDE IN THE STATE BAR OF CALIFORNIA AND IN THE
PHILIPPINES, IN THE COURSE OF HIS PRACTICE OF LAW.
II.
WHETHER OR NOT THE OATH OF OFFICE AS LAWYER IS ATTACHED
TO THE PERSON OF ATTORNEY LEONARD S. DEVERA (sic)
WHEREVER HE MAY GO AND NOT NECESSARILY BOUND BY THE
TERRITORIAL JURISDICTION OF THE PHILIPPINES.
III.
WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO PROVE
THE MORAL T[U]RPITUDE, AS BASIS FOR DISBARMENT OF
RESPONDENT IN AN ADMINISTRATIVE PROCEEDING.
IV.
WHETHER OR NOT RES JUDICATA APPLIES IN THIS CASE, DUE TO
ADMIN. CASE NO. [6052]27
The disposition of the first three related issues hinges on the resolution of the
fourth issue. Consequently, we will start with the last issue.
A.C. No. 6052 is not a bar to the filing of the present administrative case.
In disposing of the question of res judicata, the Bar Confidant opined:
To reiterate, the instant case for suspension and/or disbarment against
respondent Leonard De Vera is grounded on the following:
1) respondent's alleged misrepresentation in concealing the suspension
order rendered against him by the State Bar in California; and
2) respondent's alleged violation of the so-called "rotation rule" enunciated in
Administrative Matter No. 491 dated 06 October 1989 (In the Matter: 1989
IBP Elections).
It appears that the complainant already raised the said issues in an earlier
administrative case against the respondent. Verily, these issues were already
argued upon by the parties in their respective pleadings, and discussed and
ruled upon by this Court in its Decision dated 11 December 2003 in
Administrative Matter No. 6052 (In Re: Petition to Disqualify Atty. Leonard de
Vera).
As such, with respect to the first issue, this Court held that:
"As for the administrative complaint filed against him by one of his clients
when he was practicing law in California, which in turn compelled him to
surrender his California license to practice law, he maintains that it cannot
serve as basis for determining his moral qualification (or lack of it) to run for
the position he is aspiring for. He explains that there is as yet no final
judgment finding him guilty of the administrative charge, as the records relied
upon by the petitioners are mere preliminary findings of a hearing referee
which are recommendatory findings of an IBP Commissioner on Bar
Discipline which are subject to the review of and the final decision of the
Supreme Court. He also stresses that the complainant in the California
administrative case has retracted the accusation that he misappropriated the
complainant's money, but unfortunately the retraction was not considered by
the investigating officer. xxx"
"On the administrative complaint that was filed against respondent De Vera
while he was still practicing law in California, he explained that no final
judgment was rendered by the California Supreme Court finding him guilty of
the charge. He surrendered his license to protest the discrimination he
suffered at the hands of the investigator and he found it impractical to pursue
the case to the end. We find these explanations satisfactory in the absence
of contrary proof. It is a basic rule on evidence that he who alleges a fact has
the burden to prove the same. In this case, the petitioners have not shown
how the administrative complaint affects respondent De Vera's moral fitness
to run for governor.
On the other hand, as regards the second issue:
"Petitioners contend that respondent de Vera is disqualified for the post
because he is not really from Eastern Mindanao. His place of residence is in
Parañaque and he was originally a member of the PPLM IBP Chapter. He
only changed his IBP Chapter membership to pave the way for his ultimate
goal of attaining the highest IBP post, which is the national presidency.
Petitioners aver that in changing his IBP membership, respondent De Vera
violated the domicile rule.
The contention has no merit. Under the last paragraph of Section 19, Article
II, a lawyer included in the Roll of Attorneys of the Supreme Court can register
with the particular IBP Chapter of his preference or choice, thus:
xxx
It is clearly stated in the aforequoted section of the By-Laws that it is not
automatic that a lawyer will become a member of the chapter where his place
of residence or work is located. He has the discretion to choose the particular
chapter where he wishes to gain membership. Only when he does not
register his preference that he will become a member of the Chapter of the
place where he resides or maintains office. The only proscription in
registering one's preference is that a lawyer cannot be a member of more
than one chapter at the same time.
The same is provided in Section 29-2 of the IBP By-Laws. In fact, under this
Section, transfer of IBP membership is allowed as long as the lawyer
complies with the conditions set forth therein, thus:
xxx
The only condition required under the foregoing rule is that the transfer must
be made not less than three months prior to the election of officers in the
chapter to which the lawyer wishes to transfer.
In the case at bar, respondent De Vera requested the transfer of his IBP
membership to Agusan del Sur on 1 August 2001. One month thereafter, IBP
National Secretary Jaime M. Vibar wrote a letter addressed to Atty. Amador
Z. Tolentino, Jr., Secretary of IBP PPLM Chapter and Atty. Lyndon J.
Romero, Secretary of IBP Agusan del Sur Chapter, informing them of
respondent de Vera's transfer and advising them to make the necessary
notation in their respective records. This letter is a substantial compliance
with the certification mentioned in Section 29-2 as aforequoted. Note that de
Page 23
Vera's transfer was made effective sometime between 1 August 2001 and 3
September 2001. On 27 February 2003, the elections of the IBP Chapter
Officers were simultaneously held all over the Philippines, as mandated by
Section 29.a of the IBP By-Laws which provides that elections of Chapter
Officers and Directors shall be held on the last Saturday of February of every
other year. Between 3 September 2001 and 27 February 2003, seventeen
months had elapsed. This makes respondent de Vera's transfer valid as it
was done more than three months ahead of the chapter elections held on 27
February 2003.
In the case of Romulo G. Dinsay vs. Atty. Leopoldo D. Cioco (Administrative
Case No. 2995, 27 November 1996), this Court declared that:
"The doctrine of res judicata applies only to judicial or quasi-judicial
proceedings and not to the exercise of the [Court's] administrative powers."
In the said case, respondent Clerk of Court Cioco was dismissed from service
for grave misconduct highly prejudicial to the service for surreptitiously
substituting the bid price in a Certificate of Sale from P3,263,182.67 to only
P730,000.00. Thereafter a complaint for disbarment was filed against the
respondent on the basis of the same incident. Respondent, interposing res
judicata, argued that he may no longer be charged on the basis of the same
incident. This Court held that while the respondent is in effect being indicted
twice for the same misconduct, this does not amount to double jeopardy as
both proceedings are admittedly administrative in nature. This Court qualified
that, in the first case, the respondent was proceeded against as an erring
court personnel under the Court's supervisory power over courts while, in the
second case, he was disciplined as a lawyer under the Court's plenary
authority over membersof the legal profession.
In subsequent decisions of this Court, however, it appears that res judicata
still applies in administrative cases. Thus, in the case of Atty. Eduardo C. De
Vera vs. Judge William Layague (Administrastive Matter No. RTJ-93-986),
this Court ruled that:
"While double jeopardy does not lie in administrative cases, it would be
contrary to equity and substantial justice to penalize respondent judge a
second time for an act which he had already answered for.";
Likewise, in the recent case of Executive Judge Henry B. Basilia vs. Judge
Amado L. Becamon, Lolita Delos Reyes and Eddie Delos Reyes
(Administrative Matter No. MTJ-02-1404, 14 December 2004), this Court held
that:
"Applying the principle of res judicata or bar by prior judgment, the present
administrative case becomes dismissible.
xxx
Under the said doctrine, a matter that has been adjudicated by a court of
competent jurisdiction must be deemed to have been finally and conclusively
settled if it arises in any subsequent litigation between the same parties and
for the same cause. It provides that
[a] final judgment on the merits rendered by a court of competent jurisdiction
is conclusive as to the rights of the parties and their privies; and constitutes
an absolute bar to subsequent actions involving the same claim, demand, or
cause of action. Res judicata is based on the ground that the party to be
affected, or some other with whom he is in privity, has litigated the same
matter in the former action in a court of competent jurisdiction, and should
not be permitted to litigate it again.
This principle frees the parties from undergoing all over again the rigors of
unnecessary suits and repetitious trials. At the same time, it prevents the
clogging of court dockets. Equally important, res judicata stabilizes rights and
promotes the rule of law."
In the instant administrative case, it is clear that the issues raised by the
complainant had already been resolved by this Court in an earlier
administrative case. The complainant's contention that the principle ofres
judicata would not apply in the case at bar as the first administrative case
was one for disqualification while the instant administrative complaint is one
for suspension and/or disbarment should be given least credence. It is worthy
to note that while the instant administrative complaint is denominated as one
for suspension and/or disbarment, it prayed neither the suspension nor the
disbarment of the respondent but instead merely sought to enjoin the
respondent from assuming office as IBP National President.28
Contrary to the findings of the Bar Confidant, Adm. Case No. 6052 entitled,
"In Re: Petition to Disqualify Atty. Leonard de Vera, on Legal and Moral
Grounds, From Being Elected IBP Governor for Eastern Mindanao in the May
31 IBP Election" and promulgated on 11 December 2003 does not constitute
a bar to the filing of Adm. Case No. 6697. Although the parties in the present
administrative case and in Adm. Case No. 6052 are identical, their capacities
in these cases and the issues presented therein are not the same, thereby
barring the application ofres judicata.
In order that the principle of res judicata may be made to apply, four essential
conditions must concur, namely: (1) the judgment sought to bar the new
action must be final; (2) the decision must have been rendered by a court
having jurisdiction over the subject matter and the parties; (3) the disposition
of the case must be a judgment or order on the merits, and (4) there must be
between the first and second action identity of parties, identity of subject
matter, and identity of causes of action.29 In the absence of any one of these
elements, Atty. de Vera cannot argue res judicata in his favor.
It is noteworthy that the two administrative cases involve different subject
matters and causes of action. In Adm. Case No. 6052, the subject matter
was the qualification of Atty. de Vera to run as a candidate for the position of
IBP Governor for Eastern Mindanao. In the present administrative complaint,
the subject matter is his privilege to practice law. In the first administrative
case, complainants' cause of action was Atty. de Vera's alleged violation or
circumvention of the IBP By-laws. In the present administrative case, the
primary cause of action is Atty. de Vera's alleged violation of lawyer's oath
and the Code of Professional Responsibility.
Finally, the two administrative cases do not seek the same relief. In the first
case, the complainants sought to prevent Atty. de Vera from assuming his
post as IBP Governor for Eastern Mindanao. In the present case, as clarified
by complainant in his Memorandum, what is being principally sought is Atty.
de Vera's suspension or disbarment.
The distinctions between the two cases are far from trivial. The previous case
was resolved on the basis of the parties' rights and obligations under the IBP
By-laws. We held therein that Atty. de Vera cannot be disqualified from
running as Regional Governor as there is nothing in the present IBP By-laws
that sanctions the disqualification of candidates for IBP governors.
Consequently, we stressed that the petition had no firm ground to stand on.
Likewise, we held that the complainants therein were not the proper parties
to bring the suit as the IBP By-laws prescribes that only nominees - which
the complainants were not - can file with the IBP President a written protest
against the candidate. The Court's statement, therefore, that Atty. de Vera
cannot be disqualified on the ground that he was not morally fit was mere
obiter dictum. Precisely, the IBP By-laws do not allow for pre-election
disqualification proceedings; hence, Atty. de Vera cannot be disqualified on
the basis of the administrative findings of a hearing officer of the State Bar of
California suspending him from the practice of law for three years. We held
in that case that –
There is nothing in the By-Laws which explicitly provides that one must be
morally fit before he can run for IBP governorship. For one, this is so because
the determination of moral fitness of a candidate lies in the individual
judgment of the members of the House of Delegates. Indeed, based on each
member's standard of morality, he is free to nominate and elect any member,
so long as the latter possesses the basic requirements under the law. For
another, basically the disqualification of a candidate involving lack of moral
fitness should emanate from his disbarment or suspension from the practice
of law by this Court, or conviction by final judgment of an offense which
involves moral turpitude.30
What this simply means is that absent a final judgment by the Supreme Court
in a proper case declaring otherwise, every lawyer aspiring to hold the
position of IBP Regional Director is presumed morally fit. Any person who
begs to disagree will not be able to find a receptive audience in the IBP
through a petition for disqualification but must first file the necessary
disbarment or suspension proceeding against the lawyer concerned.
And this is precisely what complainant has chosen to do in the instant case.
As his petition is sufficient in form and substance, we have given it due course
pursuant to Rule 138 of the Rules of Court. And, considering that this case is
not barred by the prior judgment in Adm. Case No. 6052, the only issue left
for consideration is whether or not Atty. de Vera can be suspended or
disbarred under the facts of the case and the evidence submitted by
complainant.
The recommendation of the hearing officer of the State Bar of California,
standing alone, is not proof of malpractice.
In the case of the Suspension From The Practice of Law In The Territory of
Guam of Atty. Leon G. Maquera,31we were confronted with the question of
whether or not a member of the Philippine Bar, who is concomitantly an
Page 24
attorney in a foreign jurisdiction and who was suspended from the practice
of law in said foreign jurisdiction, can be sanctioned as member of the
Philippine Bar for the same infraction committed in the foreign jurisdiction.
We take the issue in Atty. Maquera one notch higher in the case of Atty. de
Vera who was admitted to the practice of law in a foreign jurisdiction (State
Bar of California, U.S.A.) and against whom charges were filed in connection
with his practice in said jurisdiction. However, unlike the case of Atty.
Maquera, no final judgment for suspension or disbarment was meted against
Atty. de Vera despite a recommendation of suspension of three years as he
surrendered his license to practice law before his case could be taken up by
the Supreme Court of California.
In Maquera, we emphasized that the judgment of suspension against a
Filipino lawyer in a foreign jurisdiction does not automatically result in his
suspension or disbarment in the Philippines as the acts giving rise to his
suspension are not grounds for disbarment and suspension in this
jurisdiction. Judgment of suspension against a Filipino lawyer may transmute
into a similar judgment of suspension in the Philippines only if the basis of
the foreign court's action includes any of the grounds for disbarment or
suspension in this jurisdiction. We likewise held that the judgment of the
foreign court merely constitutes prima facie evidence of unethical acts as
lawyer.
The Maquera ruling is consistent with Rule 39, Section 48, of the Rules of
Court which provides:
Sec. 48. Effect of foreign judgments or final orders. - The effect of a judgment
or final order of a tribunal of a foreign country, having jurisdiction to render
the judgment or final order is as follows:
xxxx
(b) In case of a judgment or final order against a person, the judgment or final
order is presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a
want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
In Philippine Aluminum Wheels, Inc. v. Fasgi Enterprises, Inc.,32 we
explained that "[a] foreign judgment is presumed to be valid and binding in
the country from which it comes, until a contrary showing, on the basis of a
presumption of regularity of proceedings and the giving of due notice in the
foreign forum."
In herein case, considering that there is technically no foreign judgment to
speak of, the recommendation by the hearing officer of the State Bar of
California does not constitute prima facie evidence of unethical behavior by
Atty. de Vera. Complainant must prove by substantial evidence the facts
upon which the recommendation by the hearing officer was based. If he is
successful in this, he must then prove that these acts are likewise unethical
under Philippine law.
There is substantial evidence of malpractice on the part of Atty. de Vera
independent of the recommendation of suspension by the hearing officer of
the State Bar of California
Section 27 of Rule 138 of our Rules of Court states:
SEC. 27. Disbarment or 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 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.
The disbarment or suspension of a member of the Philippine Bar by a
competent court or other disciplinary agency in a foreign jurisdiction where
he has also been admitted as an attorney is a ground for his disbarment or
suspension if the basis of such action includes any of the acts hereinabove
enumerated.
The judgment, resolution or order of the foreign court or disciplinary agency
shall be prima facie evidence of the ground for disbarment or suspension.33
Disciplinary action against a lawyer is intended to protect the court and the
public from the misconduct of officers of the court and to protect the
administration of justice by requiring that those who exercise this important
function shall be competent, honorable and reliable men in whom courts and
clients may repose confidence.34 The statutory enunciation of the grounds
for disbarment on suspension is not to be taken as a limitation on the general
power of courts to suspend or disbar a lawyer. The inherent power of the
court over its officers cannot be restricted.35
Malpractice ordinarily refers to any malfeasance or dereliction of duty
committed by a lawyer. Section 27 gives a special and technical meaning to
the term "Malpractice."36 That meaning is in consonance with the elementary
notion that the practice of law is a profession, not a business.37
Unprofessional conduct in an attorney is that which violates the rules on
ethical code of his profession or which is unbecoming a member of that
profession.38
Now, the undisputed facts:
1. An administrative case against Atty. de Vera was filed before the State Bar
of California, docketed then as Adm. Case No. 86-0-18429. It arose from an
insurance case Atty. de Vera handled involving Julius Willis, III who figured
in an automobile accident in 1986. Atty. de Vera was authorized by the elder
Willis (father of Julius who was given authority by the son to control the case
because the latter was then studying in San Diego California) for the release
of the funds in settlement of the case. Atty. de Vera received a check in
settlement of the case which he then deposited to his personal account;39
2. The Hearing referee in the said administrative case recommended that
Atty. de Vera be suspended from the practice of law for three years;40 and
3. Atty. de Vera resigned from the California Bar which resignation was
accepted by the Supreme Court of California.41
Atty. de Vera vehemently insists that the foregoing facts do not prove that he
misappropriated his client's funds as the latter's father (the elder Willis) gave
him authority to use the same and that, unfortunately, the hearing officer did
not consider this explanation notwithstanding the fact that the elder Willis
testified under oath that he "expected de Vera might use the money for a few
days."
By insisting that he was authorized by his client's father and attorney-in-fact
to use the funds, Atty. de Vera has impliedly admitted the use of the Willis
funds for his own personal use.
In fact, Atty. de Vera did not deny complainant's allegation in the latter's
memorandum that he (de Vera) received US$12,000.00 intended for his
client and that he deposited said amount in his personal account and not in
a separate trust account and that, finally, he spent the amount for personal
purposes.42
At this point, it bears stressing that in cases filed before administrative and
quasi-judicial bodies, a fact may be deemed established if it is supported by
substantial evidence or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion.43 It means such
evidence which affords a substantial basis from which the fact in issue can
be reasonably inferred.44
Beyond doubt, the unauthorized use by a lawyer of his client's funds is highly
unethical. Canon 16 of the Code of Professional Responsibility is emphatic
about this, thus:
CANON 16. A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME TO HIS POSSESSION.
Rule 16.01. A lawyer shall account for all money or property collected or
received for or from the client.
Rule 16.02. A lawyer shall keep the funds of each client separate and apart
from his own and those of others kept by him.
In Espiritu v. Ulep45 we held that –
The relation between attorney and client is highly fiduciary in nature. Being
such, it requires utmost good faith, loyalty, fidelity and disinterestedness on
the part of the attorney. Its fiduciary nature is intended for the protection of
the client.
The Code of Professional Responsibility mandates every lawyer to hold in
trust all money and properties of his client that may come into his possession.
Accordingly, he shall account for all money or property collected or received
for or from the client. Even more specific is the Canon of Professional Ethics:
The lawyer should refrain from any action whereby for his personal benefit or
gain he abuses or takes advantage of the confidence reposed in him by his
client.
Money of the client or collected for the client or other trust property coming
into the possession of the lawyer should be reported and accounted for
promptly and should not under any circumstances be commingled with his
own or be used by him.
Page 25
Consequently, a lawyer's failure to return upon demand the funds or property
held by him on behalf of his client gives rise to the presumption that he has
appropriated the same for his own use to the prejudice of, and in violation of
the trust reposed in him by, his client. It is a gross violation of general morality
as well as of professional ethics; it impairs the public confidence in the legal
profession and deserves punishment.
Lawyers who misappropriate the funds entrusted to them are in gross
violation of professional ethics and are guilty of betrayal of public confidence
in the legal profession. Those who are guilty of such infraction may be
disbarred or suspended indefinitely from the practice of law. (Emphases
supplied.)
In herein case, as it is admitted by Atty. de Vera himself that he used his
client's money for personal use, he has unwittingly sealed his own fate since
this admission constitutes more than substantial evidence of malpractice.
Consequently, Atty. de Vera now has the burden of rebutting the evidence
which he himself supplied.
In his defense, Atty. de Vera claims that he was duly authorized by the elder
Willis to use the funds intended for the latter's son. Atty. de Vera also points
out that he had restituted the full amount of US$12,000.00 even before the
filing of the administrative case against him in the State Bar of California.46
Aside from these self-serving statements, however, we cannot find anywhere
in the records of this case proof that indeed Atty. de Vera was duly authorized
to use the funds of his client. In Radjaie v. Atty. Alovera47 we declared that
– process in removing Atty. de Vera.
When the integrity of a member of the bar is challenged, it is not enough that
he denies the charges against him; he must meet the issue and overcome
the evidence against him. He must show proof that he still maintains that
degree of morality and integrity which at all times is expected of him.
Atty. de Vera cannot rely on the statement made by the hearing officer that
the elder Willis had indeed testified that he "expected de Vera might use the
money for a few days." As Atty. de Vera had vigorously objected to the
admissibility of the document containing this statement, he is now estopped
from relying thereon. Besides, that the elder Willis "expected de Vera might
use the money for a few days" was not so much an acknowledgment of
consent to the use by Atty. de Vera of his client's funds as it was an
acceptance of the probability that Atty. de Vera might, indeed, use his client's
funds, which by itself did not speak well of the character of Atty. de Vera or
the way such character was perceived.
In the instant case, the act of Atty. de Vera in holding on to his client's money
without the latter's acquiescence is conduct indicative of lack of integrity and
propriety. It is clear that Atty. de Vera, by depositing the check in his own
account and using the same for his own benefit is guilty of deceit,
malpractice, gross misconduct and unethical behavior. He caused dishonor,
not only to himself but to the noble profession to which he belongs. For, it
cannot be denied that the respect of litigants to the profession is inexorably
diminished whenever a member of the profession betrays their trust and
confidence.48 Respondent violated his oath to conduct himself with all good
fidelity to his client.
Nevertheless, we do not agree with complainant's plea to disbar respondent
from the practice of law. The power to disbar must be exercised with great
caution.49 Where any lesser penalty can accomplish the end desired,
disbarment should not be decreed.
In Mortera v. Pagatpatan,50 we imposed upon Atty. Pagatpatan two years
suspension from his practice of law for depositing the funds meant for his
client to his personal account without the latter's knowledge. In Reyes v.
Maglaya;51 Castillo v. Taguines;52 Espiritu v. Atty. Cabredo IV,53 the
respondents were meted one year suspension each for failing to remit to their
clients monies in the amounts of P1,500.00; P500.00, and P51,161.00,
respectively, received by them for their clients without the latter's permission.
In Dumadag v. Atty. Lumaya,54 we indefinitely suspended respondent for
failure to remit to his client the amount of the measly sum of P4,344.00
representing the amount received pursuant to a writ of execution.
Considering the amount involved here – US$12,000.00, we believe that the
penalty of suspension for two (2) years is appropriate.
Transferring IBP membership to a chapter where the lawyer is not a resident
of is not a ground for his suspension or disbarment
Complainant insists that Atty. de Vera's transfer of membership from the
Pasay, Parañaque, Las Piñas and Muntinlupa (PPLM) Chapter to the Agusan
del Sur IBP Chapter is a circumvention of the rotation rule as it was made for
the sole purpose of becoming IBP National President. Complainant stresses
that Atty. de Vera is not a resident of Agusan del Sur nor does he hold office
therein.
In Adm. Case No. 6052, we held that Atty. de Vera's act of transferring to
another IBP Chapter is not a ground for his disqualification for the post of IBP
Governor as the same is allowed under Section 19 of the IBP By-Laws with
the qualification only that the transfer be made not less than three months
immediately preceding any chapter election.
As it was perfectly within Atty. de Vera's right to transfer his membership, it
cannot be said that he is guilty of unethical conduct or behavior. And while
one may incessantly argue that a legal act may not necessarily be ethical, in
herein case, we do not see anything wrong in transferring to an IBP chapter
that -- based on the rotation rule – will produce the next IBP EVP who will
automatically succeed to the National Presidency for the next term. Our Code
of Professional Responsibility as well as the Lawyer's Oath do not prohibit
nor punish lawyers from aspiring to be IBP National President and from doing
perfectly legal acts in accomplishing such goal.
Bar Matter No. 1227
Administrative Matter No. 05-5-15-SC
To resolve Bar Matter No. 1227 and Administrative Matter No. 05-5- 15-SC,
the following issues must be addressed:
I. Whether the IBP Board of Governors acted with grave abuse of discretion
in removing Atty. de Vera as Governor and EVP of the IBP on 13 May 2005.
i. Whether the IBP Board of Governors complied with administrative due
ii. Whether the IBP removed Atty. De Vera for just and valid cause.
II. Whether Governor Salazar was validly elected as EVP of the IBP on 25
June 2005, and can consequently assume the Presidency of the IBP for the
term 2005-2007.
The IBP Board observed due process in its removal of Atty. de Vera as IBP
Governor
We start the discussion with the veritable fact that the IBP Board is vested
with the power to remove any of its members pursuant to Section 44, Article
VI of the IBP By-Laws, which states:
Sec. 44. Removal of members. – If the Board of Governors should determine
after proper inquiry that any of its members, elective or otherwise, has for
any reason become unable to perform his duties, the Board, by resolution of
the Majority of the remaining members, may declare his position vacant,
subject to the approval of the Supreme Court.
Any member of the Board, elective or otherwise, may be removed for cause,
including three consecutive absences from Board meetings without justifiable
excuse, by resolution adopted by two-thirds of the remaining members of the
Board, subject to the approval of the Supreme Court.
In case of any vacancy in the office of Governor for whatever cause, the
delegates from the region shall by majority vote, elect a successor from
among the members of the Chapter to which the resigned governor is a
member to serve as governor for the unexpired portion of the term.
(Emphasis supplied)
Under the aforementioned section, a member of the IBP Board may be
removed for cause by resolution adopted by two-thirds (2/3) of the remaining
members of the Board, subject to the approval of this Court.
In the main, Atty. de Vera questions his removal from the Board of Governors
on procedural and substantive grounds. He argues that he was denied "very
basic rights of due process recognized by the Honorable Court even in
administrative cases" like the right to answer formally or in writing and within
reasonable time, the right to present witnesses in his behalf, the right to a fair
hearing. Atty. de Vera protests the fact that he was not able to cross-examine
the complainant, IBP Gov. Romulo H. Rivera (Atty. Rivera) and that Atty.
Rivera voted as well for his expulsion which made him accuser, prosecutor
and judge at the same time. Atty. de Vera emphasized the fact that Atty.
Rivera initially inhibited himself from voting on his own motion. However,
when his inhibition resulted in the defeat of his motion as the necessary 2/3
votes could not be mustered, Atty. Rivera asked for another round of voting
so he could vote to support his own motion.
The IBP Board counters that since its members were present during the
plenary session, and personally witnessed and heard Atty. de Vera's
actuations, an evidentiary or formal hearing was no longer necessary. Since
they all witnessed and heard Atty. de Vera, it was enough that he was given
an opportunity to refute and answer all the charges imputed against him.
They emphasized that Atty. de Vera was given a copy of the complaint and
that he was present at the Board Meeting on 13 May 2005 wherein the letter-
Page 26
complaint against him was part of the agenda. Therein, he was given the
opportunity to be heard and that, in fact, Atty. de Vera did argue his case.
We are in agreement with the IBP Board.
First, it needs stressing that the constitutional provision on due process
safeguards life, liberty and property.55 It cannot be said that the position of
EVP of the IBP is property within the constitutional sense especially since
there is no right to security of tenure over said position as, in fact, all that is
required to remove any member of the board of governors for cause is a
resolution adopted by 2/3 of the remaining members of the board.
Secondly, even if the right of due process could be rightfully invoked, still, in
administrative proceedings, the essence of due process is simply the
opportunity to explain one's side.56 At the outset, it is here emphasized that
the term "due process of law" as used in the Constitution has no fixed
meaning for all purposes due "to the very nature of the doctrine which,
asserting a fundamental principle of justice rather than a specific rule of law,
is not susceptible of more than one general statement."57 The phrase is so
elusive of exact apprehension,58 because it depends on circumstances and
varies with the subject matter and the necessities of the situation.59
Due process of law in administrative cases is not identical with "judicial
process" for a trial in court is not always essential to due process. 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. The due
process clause guarantees no particular form of procedure and its
requirements are not technical. Thus, in certain proceedings of administrative
character, the right to a notice or hearing are not essential to due process of
law. The constitutional requirement of due process is met by a fair hearing
before a regularly established administrative agency or tribunal. It is not
essential that hearings be had before the making of a determination if
thereafter, there is available trial and tribunal before which all objections and
defenses to the making of such determination may be raised and considered.
One adequate hearing is all that due process requires. What is required for
"hearing" may differ as the functions of the administrative bodies differ.60
The right to cross-examine is not an indispensable aspect of due process.61
Nor is an actual hearing always essential62 especially under the factual
milieu of this case where the members of the IBP Board -- upon whose
shoulders the determination of the cause for removal of an IBP governor is
placed subject to the approval of the Supreme Court – all witnessed Atty. de
Vera's actuations in the IBP National Convention in question.
It is undisputed that Atty. de Vera received a copy of the complaint against
him and that he was present when the matter was taken up. From the
transcript of the stenographic notes of the 13 May 2005 meeting wherein Atty.
de Vera was removed, it is patent that Atty. de Vera was given fair opportunity
to defend himself against the accusations made by Atty. Rivera.
Atty. de Vera, however, additionally questions the fact that Atty. Rivera, who
authored the complaint against him, also voted for his expulsion making him
accuser, prosecutor and judge at the same time. Atty. de Vera likewise
laments the fact that Atty. Rivera initially inhibited himself from voting but
when this resulted in the defeat of his motion for lack of the necessary 2/3
vote, he agreed to another round of voting and that, this time, he voted in
favor of his motion.
For the record, of the nine governors comprising the IBP Board, six voted for
Atty. de Vera's expulsion (including Atty. Rivera) while 3 voted against it
(including Atty. de Vera).
Section 44 (second paragraph) of the IBP By-Laws provides:
Any member of the Board, elective or otherwise, may be removed for cause,
including three consecutive absences from Board meetings without justifiable
excuse, by resolution adopted by two-thirds of theremaining members of the
Board, subject to the approval of the Supreme Court. (Emphasis supplied.)
Under the rules, a resolution for expulsion of an IBP Governor is done via a
resolution adopted by 2/3 of the remaining members. The phrase "remaining
members" refers to the members exclusive of the complainant member and
the respondent member. The reason therefore is that such members are
interested parties and are thus presumed to be unable to resolve said motion
impartially. This being the case, the votes of Attys. Rivera and de Vera should
be stricken-off which means that only the votes of the seven remaining
members are to be counted. Of the seven remaining members, five voted for
expulsion while two voted against it which still adds up to the 2/3 vote
requirement for expulsion.
The IBP Board removed Atty. de Vera as IBP Governor for just and valid
cause
All the concerned parties to this case agree that what constitutes cause for
the removal of an IBP Governor has not been defined by Section 44 of the
IBP By-Laws albeit it includes three consecutive absences from Board
meetings without justifiable excuse. Thus, the IBP Board argues that it is
vested with sufficient power and authority to protect itself from an intractable
member whose removal was caused not by his disagreement with the IBP
Board but due to various acts committed by him which the IBP Board
considered as inimical to the IBP Board in particular and the IBP in general.
Atty. de Vera, on the other hand, insists that speaking in disagreement with
the Resolution of the Board during the Convention's Plenary Session is not a
valid cause to remove or expel a duly-elected member of the IBP Board of
Governors and the decision to remove him only shows that the right to
freedom of speech or the right to dissent is not recognized by the IBP Board.
After weighing the arguments of the parties and in keeping with the
fundamental objective of the IBP to discharge its public responsibility more
effectively, we hereby find that Atty. de Vera's removal from the IBP Board
was not capricious or arbitrary.
Indubitably, conflicts and disagreements of varying degrees of intensity, if not
animosity, are inherent in the internal life of an organization, but especially of
the IBP since lawyers are said to disagree before they agree.
However, the effectiveness of the IBP, like any other organization, is diluted
if the conflicts are brought outside its governing body for then there would be
the impression that the IBP, which speaks through the Board of Governors,
does not and cannot speak for its members in an authoritative fashion. It
would accordingly diminish the IBP's prestige and repute with the lawyers as
well as with the general public.
As a means of self-preservation, internecine conflicts must thus be adjusted
within the governing board itself so as to free it from the stresses that
invariably arise when internal cleavages are made public.
The doctrine of majority rule is almost universally used as a mechanism for
adjusting and resolving conflicts and disagreements within the group after
the members have been given an opportunity to be heard. While it does not
efface conflicts, nonetheless, once a decision on a contentious matter is
reached by a majority vote, the dissenting minority is bound thereby so that
the board can speak with one voice, for those elected to the governing board
are deemed to implicitly contract that the will of the majority shall govern in
matters within the authority of the board.63
The IBP Board, therefore, was well within its right in removing Atty. de Vera
as the latter's actuations during the 10th National IBP Convention were
detrimental to the role of the IBP Board as the governing body of the IBP.
When the IBP Board is not seen by the bar and the public as a cohesive unit,
it cannot effectively perform its duty of helping the Supreme Court enforce
the code of legal ethics and the standards of legal practice as well as improve
the administration of justice.
In view of the importance of retaining group cohesiveness and unity, the
expulsion of a member of the board who insists on bringing to the public his
disagreement with a policy/resolution approved by the majority after due
discussion, cannot be faulted. The effectiveness of the board as a governing
body will be negated if its pronouncements are resisted in public by a board
member.
Indeed, when a member of a governing body cannot accept the voice of the
majority, he should resign therefrom so that he could criticize in public the
majority opinion/decision to his heart's content; otherwise, he subjects
himself to disciplinary action by the body.
The removal of Atty. de Vera as member of the Board of Governors ipso facto
meant his removal as EVP as well
The removal of Atty. de Vera as member of the Board of Governors ipso facto
meant his removal as EVP as well. Section 47, Article VII of the By-Laws of
the IBP provides:
SEC. 47. National Officers. – The Integrated Bar of the Philippines shall have
a President and Executive Vice President to be chosen by the Board of
Governors from among nine (9) regional governors, as much as practicable,
on a rotation basis. x x x
Thus, to be EVP of the IBP, one must necessarily be a member of IBP Board
of Governors. Atty. de Vera's removal from the Board of Governors,
automatically disqualified him from acting as IBP EVP. To insist otherwise
would be contrary to Section 47 of the IBP By-Laws.
The Court will not interfere with the Resolution of the IBP Board to remove
Atty. de Vera since it was rendered without grave abuse of discretion
While it is true that the Supreme Court has been granted an extensive power
Page 27
of supervision over the IBP,64 it is axiomatic that such power should be
exercised prudently. The power of supervision of the Supreme Court over the
IBP should not preclude the IBP from exercising its reasonable discretion
especially in the administration of its internal affairs governed by the
provisions of its By-Laws. The IBP By-Laws were precisely drafted and
promulgated so as to define the powers and functions of the IBP and its
officers, establish its organizational structure, and govern relations and
transactions among its officers and members. With these By-Laws in place,
the Supreme Court could be assured that the IBP shall be able to carry on its
day-to-day affairs, without the Court's interference.
It should be noted that the general charge of the affairs and activities of the
IBP has been vested in the Board of Governors. The members of the Board
are elective and representative of each of the nine regions of the IBP as
delineated in its By-Laws.65 The Board acts as a collegiate body and decides
in accordance with the will of the majority. The foregoing rules serve to
negate the possibility of the IBP Board acting on the basis of personal interest
or malice of its individual members. Hence, the actions and resolutions of the
IBP Board deserve to be accorded the disputable presumption66 of validity,
which shall continue, until and unless it is overcome by substantial evidence
and actually declared invalid by the Supreme Court. In the absence of any
allegation and substantial proof that the IBP Board has acted without or in
excess of its authority or with grave abuse of discretion, we shall not be
persuaded to overturn and set aside the Board's action or resolution.
There is no question that the IBP Board has the authority to remove its
members as provided in Article VI, Section 4467 of the IBP By-Laws. Issue
arises only as to whether the IBP Board abused its authority and discretion
in resolving to remove Atty. de Vera from his post as an IBP Governor and
EVP. As has been previously established herein, Atty. de Vera's removal
from the IBP Board was in accordance with due process and the IBP Board
acted well within the authority and discretion granted to it by its By-Laws.
There being no grave abuse of discretion on the part of the IBP Board, we
find no reason to interfere in the Board's resolution to remove Atty. de Vera.
The election of Atty. Salazar by the IBP Board as IBP EVP in replacement of
Atty. De Vera was conducted in accordance with the authority granted to the
Board by the IBP By-Laws
In the same manner, we find no reason to disturb the action taken by the
2003-2005 IBP Board of Governors in holding a special election to fill-in the
vacant post resulting from the removal of Atty. de Vera as EVP of the IBP
since the same is a purely internal matter, done without grave abuse of
discretion, and implemented without violating the Rules and By-Laws of the
IBP.
With the removal of Atty. de Vera from the Board, by virtue of the IBP Board
Resolution dated 13 May 2005, he was also removed from his post as EVP;
thus, there was a resultant vacancy in the position of IBP EVP.
Article VI, Section 41(g) of the IBP By-Laws expressly grants to the Board
the authority to fill vacancies, however arising, in the IBP positions, subject
to the provisions of Section 8 of the Integration Rule,68 and Section 11
(Vacancies),69 Section 44 (Removal of members),70 Section 47 (National
officers),71 Section 48 (other officers),72 and Section 49 (Terms of Office)73
of the By-Laws. The IBP Board has specific and sufficient guidelines in its
Rules and By-Laws on how to fill-in the vacancies after the removal of Atty.
de Vera. We have faith and confidence in the intellectual, emotional and
ethical competencies of the remaining members of the 2005-2007 Board in
dealing with the situation within the bounds of the IBP Rules and By-Laws.
The election by the 2003-2005 IBP Board of Governors of a new EVP, who
will assume the Presidency for the term 2005-2007, was well within the
authority and prerogative granted to the Board by the IBP By-Laws,
particularly Article VII, Section 47, which provides that "[t]he EVP shall
automatically become President for the next succeeding term." The phrase
"for the next succeeding term" necessarily implies that the EVP that should
succeed Atty. Cadiz as IBP President for the next succeeding term (i.e.,
2005-2007) should come from the members of the 2003-2005 IBP Board of
Governors. Hence, in A.M. No. 05-7-19-SC, we restrained now IBP EVP
Feliciano Bautista from assuming the position of Acting President because
we have yet to resolve the question as to who shall succeed Atty. Cadiz from
the 2003-2005 IBP Board of Governors.
Accordingly, the elections of Governor Santiago on 13 June 2005 as IBP
EVP, and thereafter, Governor Salazar on 25 June 2005, as the new IBP
EVP, upon the relinquishment of Gov. Santiago of the position, were valid.
Neither can this Court give credence to the argument of Atty. De Vera that,
assuming his removal as IBP Governor and EVP was valid, his replacement
as IBP EVP should come from Eastern Mindanao Region pursuant to the
rotation rule set forth in Article VII, Section 47, of the IBP By-Laws.
According to Article VII, Section 47, of the IBP By-Laws, the EVP shall be
chosen by the Board of Governors from among the nine Regional Governors,
as much as practicable, on a rotation basis. This is based on our
pronouncements in Bar Matter 491, wherein we ruled:
"ORDER
xxxx
3. The former system of having the IBP President and Executive Vice-
President elected by the Board of Governors (composed of the governors of
the nine [9] IBP regions) from among themselves (as provided in Sec. 47,
Art. VII, Original IBP By-Laws) should be restored. The right of automatic
succession by the Executive Vice-President to the presidency upon the
expiration of their two-year term (which was abolished by this Court's
resolution dated July 9, 1985 in Bar Matter No. 287) should be as it is hereby
restored.
4. At the end of the President's two-year term, the Executive Vice-President
shall automatically succeed to the office of president. The incoming board of
governors shall then elect an Executive Vice-President from among
themselves. The position of Executive Vice-President shall be rotated among
the nine (9) IBP regions. One who has served as president may not run for
election as Executive Vice-President in a succeeding election until after the
rotation of the presidency among the nine (9) regions shall have been
completed; whereupon, the rotation shall begin anew.
xxxx
(Emphasis Supplied)"
In Bar Matter 491, it is clear that it is the position of IBP EVP which is actually
rotated among the nine Regional Governors. The rotation with respect to the
Presidency is merely a result of the automatic succession rule of the IBP EVP
to the Presidency. Thus, the rotation rule pertains in particular to the position
of IBP EVP, while the automatic succession rule pertains to the Presidency.
The rotation with respect to the Presidency is but a consequence of the
automatic succession rule provided in Section 47 of the IBP By-Laws.
In the case at bar, the rotation rule was duly complied with since upon the
election of Atty. De Vera as IBP EVP, each of the nine IBP regions had
already produced an EVP and, thus, the rotation was completed. It is only
unfortunate that the supervening event of Atty. de Vera's removal as IBP
Governor and EVP rendered it impossible for him to assume the IBP
Presidency. The fact remains, however, that the rotation rule had been
completed despite the non-assumption by Atty. de Vera to the IBP
Presidency.
Moreover, the application of the rotation rule is not a license to disregard the
spirit and purpose of the automatic succession rule, but should be applied in
harmony with the latter. The automatic succession rule affords the IBP
leadership transition seamless and enables the new IBP National President
to attend to pressing and urgent matters without having to expend valuable
time for the usual adjustment and leadership consolidation period. The time
that an IBP EVP spends assisting a sitting IBP President on matters national
in scope is in fact a valuable and indispensable preparation for the eventual
succession. It should also be pointed out that this wisdom is further
underscored by the fact that an IBP EVP is elected from among the members
of the IBP Board of Governors, who are serving in a national capacity, and
not from the members at large. It is intrinsic in the IBP By-Laws that one who
is to assume the highest position in the IBP must have been exposed to the
demands and responsibilities of national leadership.
It would therefore be consistent with the purpose and spirit of the automatic
succession rule for Governor Salazar to assume the post of IBP President.
By electing the replacement EVP from among the members of the 2003-2005
Board of Governors, the IBP benefits from the experience of the IBP EVP of
2003-2005 – in this case, Governor Salazar – who would have served in a
national capacity prior to his assumption of the highest position.
It will also be inconsistent with the purpose and spirit of the automatic
succession rule if the EVP for the term 2003-2005 will be elected exclusively
by the members of the House of Delegates of the Eastern Mindanao region.
This Court notes that the removal of Atty. De Vera in 13 May 2005 was about
a month before the expiration of the term of office of the 2003-2005 Board of
Governors. Hence, the replacement Governor would not have been able to
serve in a national capacity for two years prior to assuming the IBP
Page 28
Presidency.
In any case, Section 47 of the IBP Rules uses the phrase "as much as
practicable" to clearly indicate that the rotation rule is not a rigid and inflexible
rule as to bar exceptions in compelling and exceptional circumstances.
It is in view of the foregoing that the argument advanced by Atty. De Vera
that the IBP national presidency should be assumed by a nominee from
Eastern Mindanao region from where he comes, can not hold water. It would
go against the intent of the IBP By-Laws for such a nominee would be bereft
of the wealth of experience and the perspective that only one who is honed
in service while serving in a national post in the IBP would have.
We therefore rule that the IBP Board of Governors acted in accordance with
the IBP By-Laws, in electing Atty. Salazar as IBP EVP and in ensuring a
succession in the leadership of the IBP. Had the Board of Governors not
done so, there would have been no one qualified to assume the Presidency
of the IBP on 1 July 2005, pursuant to Section 47 of the IBP By-Laws.
WHEREFORE, in view of the foregoing, we rule as follows:
1) SUSPEND Atty. Leonard de Vera in A.C. No. 6697 from the practice of
law for TWO (2) YEARS, effective from the finality of this Resolution. Let a
copy of this Resolution be attached to the personal record of Atty. Leonard
de Vera and copies furnished the Integrated Bar of the Philippines and the
Office of the Court Administrator for dissemination to all courts;
2) DISMISS the letter-complaint of Atty. Leonard de Vera, dated 18 May
2005, in A.M. No. 05-5-15-SC, praying for the disapproval of the Resolution,
dated 13 May 2005, of the Board of Governors of the Integrated Bar of the
Philippines removing him from his posts as Governor and Executive Vice
President of the Integrated Bar of the Philippines, the said Resolution having
been rendered without grave abuse of discretion;
3) AFFIRM the election by the Board of Governors of Atty. Jose Vicente B.
Salazar as Executive Vice President of the Integrated Bar of the Philippines
for the remainder of the term 2003-2005, such having been conducted in
accordance with its By-Laws and absent any showing of grave abuse of
discretion; and
4) DIRECT Atty. Jose Vicente B. Salazar to immediately take his oath of
office and assume the Presidency of the Integrated Bar of the Philippines for
the term 2005-2007 in accordance with the automatic succession rule in
Article VII, Section 47 of the IBP By-Laws, upon receipt of this Resolution.
SO ORDERED.
A. Law Student Practice Rule RULE 138-A ROC
Section 1. Conditions for student practice. — A law student who has
successfully completed his 3rd year of the regular four-year prescribed law
curriculum and is enrolled in a recognized law school's clinical legal
education program approved by the Supreme Court, may appear without
compensation in any civil, criminal or administrative case before any trial
court, tribunal, board or officer, to represent indigent clients accepted by the
legal clinic of the law school.
Section 2. Appearance. — The appearance of the law student authorized by
this rule, shall be under the direct supervision and control of a member of the
Integrated Bar of the Philippines duly accredited by the law school. Any and
all pleadings, motions, briefs, memoranda or other papers to be filed, must
be signed by the supervising attorney for and in behalf of the legal clinic.
Section 3. Privileged communications. — The Rules safeguarding privileged
communications between attorney and client shall apply to similar
communications made to or received by the law student, acting for the legal
clinic.
Section 4. Standards of conduct and supervision. — The law student shall
comply with the standards of professional conduct governing members of the
Bar. Failure of an attorney to provide adequate supervision of student
practice may be a ground for disciplinary action. (Circular No. 19, dated
December 19, 1986).
G.R. No. 154207 April 27, 2007
FERDINAND A. CRUZ, Petitioner,
vs.
ALBERTO MINA, HON. ELEUTERIO F. GUERRERO and HON. ZENAIDA
LAGUILLES, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Certiorari under Rule 65 of the Rules of
Court, grounded on pure questions of law, with Prayer for Preliminary
Injunction assailing the Resolution dated May 3, 2002 promulgated by the
Regional Trial Court (RTC), Branch 116, Pasay City, in Civil Case No. 02-
0137, which denied the issuance of a writ of preliminary injunction against
the Metropolitan Trial Court (MeTC), Branch 45, Pasay City, in Criminal Case
No. 00-1705;1 and the RTC’s Order dated June 5, 2002 denying the Motion
for Reconsideration. No writ of preliminary injunction was issued by this
Court.
The antecedents:
On September 25, 2000, Ferdinand A. Cruz (petitioner) filed before the MeTC
a formal Entry of Appearance, as private prosecutor, in Criminal Case No.
00-1705 for Grave Threats, where his father, Mariano Cruz, is the
complaining witness.
The petitioner, describing himself as a third year law student, justifies his
appearance as private prosecutor on the bases of Section 34 of Rule 138 of
the Rules of Court and the ruling of the Court En Banc in Cantimbuhan v.
Judge Cruz, Jr.2 that a non-lawyer may appear before the inferior courts as
an agent or friend of a party litigant. The petitioner furthermore avers that his
appearance was with the prior conformity of the public prosecutor and a
written authority of Mariano Cruz appointing him to be his agent in the
prosecution of the said criminal case.
However, in an Order dated February 1, 2002, the MeTC denied permission
for petitioner to appear as private prosecutor on the ground that Circular No.
19 governing limited law student practice in conjunction with Rule 138-A of
the Rules of Court (Law Student Practice Rule) should take precedence over
the ruling of the Court laid down in Cantimbuhan; and set the case for
continuation of trial.3
On February 13, 2002, petitioner filed before the MeTC a Motion for
Reconsideration seeking to reverse the February 1, 2002 Order alleging that
Rule 138-A, or the Law Student Practice Rule, does not have the effect of
superseding Section 34 of Rule 138, for the authority to interpret the rule is
the source itself of the rule, which is the Supreme Court alone.
In an Order dated March 4, 2002, the MeTC denied the Motion for
Reconsideration.
On April 2, 2002, the petitioner filed before the RTC a Petition for Certiorari
and Mandamus with Prayer for Preliminary Injunction and Temporary
Restraining Order against the private respondent and the public respondent
MeTC.
After hearing the prayer for preliminary injunction to restrain public
respondent MeTC Judge from proceeding with Criminal Case No. 00-1705
pending the Certiorari proceedings, the RTC, in a Resolution dated May 3,
2002, resolved to deny the issuance of an injunctive writ on the ground that
the crime of Grave Threats, the subject of Criminal Case No. 00-1705, is one
that can be prosecuted de oficio, there being no claim for civil indemnity, and
that therefore, the intervention of a private prosecutor is not legally tenable.
On May 9, 2002, the petitioner filed before the RTC a Motion for
Reconsideration. The petitioner argues that nowhere does the law provide
that the crime of Grave Threats has no civil aspect. And last, petitioner cites
Bar Matter No. 730 dated June 10, 1997 which expressly provides for the
appearance of a non-lawyer before the inferior courts, as an agent or friend
of a party litigant, even without the supervision of a member of the bar.
Pending the resolution of the foregoing Motion for Reconsideration before the
RTC, the petitioner filed a Second Motion for Reconsideration dated June 7,
2002 with the MeTC seeking the reversal of the March 4, 2002 Denial Order
of the said court, on the strength of Bar Matter No. 730, and a Motion to Hold
In Abeyance the Trial dated June 10, 2002 of Criminal Case No. 00- 1705
pending the outcome of the certiorari proceedings before the RTC.
On June 5, 2002, the RTC issued its Order denying the petitioner’s Motion
for Reconsideration.
Likewise, in an Order dated June 13, 2002, the MeTC denied the petitioner’s
Second Motion for Reconsideration and his Motion to Hold in Abeyance the
Trial on the ground that the RTC had already denied the Entry of Appearance
of petitioner before the MeTC.
On July 30, 2002, the petitioner directly filed with this Court, the instant
Petition and assigns the following errors:
I.
Page 29
the respondent regional trial court abused its discretion when it resolved to
deny the prayer for the writ of injunction of the herein petitioner despite
petitioner having established the necessity of granting the writ;
II.
THE RESPONDENT TRIAL COURT ABUSED ITS DISCRETION,
TANTAMOUNT TO IGNORANCE OF THE LAW, WHEN IT RESOLVED TO
DENY THE PRAYER FOR THE WRIT OF PRELIMINARY INJUNCTION
AND THE SUBSEQUENT MOTION FOR RECONSIDERATION OF THE
HEREIN PETITIONER ON THE BASIS THAT [GRAVE] THREATS HAS NO
CIVIL ASPECT, FOR THE SAID BASIS OF DENIAL IS NOT IN ACCORD
WITH THE LAW;
III.
THE RESPONDENT METROPOLITAN TRIAL COURT ABUSED ITS
DISCRETION WHEN IT DENIED THE MOTION TO HOLD IN ABEYANCE
TRIAL, WHEN WHAT WAS DENIED BY THE RESPONDENT REGIONAL
TRIAL COURT IS THE ISSUANCE OF THE WRIT OF PRELIMINARY
INJUNCTION and WHEN THE RESPONDENT REGIONAL TRIAL COURT
IS YET TO DECIDE ON THE MERITS OF THE PETITION FOR
CERTIORARI;
IV.
THE RESPONDENT COURT[s] ARE CLEARLY IGNORING THE LAW
WHEN THEY PATENTLY REFUSED TO HEED TO [sic] THE CLEAR
MANDATE OF THE LAPUT, CANTIMBUHAN AND BULACAN CASES, AS
WELL AS BAR MATTER NO. 730, PROVIDING FOR THE APPEARANCE
OF NON-LAWYERS BEFORE THE LOWER COURTS (MTC’S).4
This Court, in exceptional cases, and for compelling reasons, or if warranted
by the nature of the issues reviewed, may take cognizance of petitions filed
directly before it.5
Considering that this case involves the interpretation, clarification, and
implementation of Section 34, Rule 138 of the Rules of Court, Bar Matter No.
730, Circular No. 19 governing law student practice and Rule 138-A of the
Rules of Court, and the ruling of the Court in Cantimbuhan, the Court takes
cognizance of herein petition.
The basic question is whether the petitioner, a law student, may appear
before an inferior court as an agent or friend of a party litigant.
The courts a quo held that the Law Student Practice Rule as encapsulated
in Rule 138-A of the Rules of Court, prohibits the petitioner, as a law student,
from entering his appearance in behalf of his father, the private complainant
in the criminal case without the supervision of an attorney duly accredited by
the law school.
Rule 138-A or the Law Student Practice Rule, provides:
RULE 138-A
LAW STUDENT PRACTICE RULE
Section 1. Conditions for Student Practice. – A law student who has
successfully completed his 3rd year of the regular four-year prescribed law
curriculum and is enrolled in a recognized law school's clinical legal
education program approved by the Supreme Court, may appear without
compensation in any civil, criminal or administrative case before any trial
court, tribunal, board or officer, to represent indigent clients accepted by the
legal clinic of the law school.
Sec. 2. Appearance. – The appearance of the law student authorized by this
rule, shall be under the direct supervision and control of a member of the
Integrated Bar of the Philippines duly accredited by the law school. Any and
all pleadings, motions, briefs, memoranda or other papers to be filed, must
be signed by the supervising attorney for and in behalf of the legal clinic.
However, in Resolution6 dated June 10, 1997 in Bar Matter No. 730, the
Court En Banc clarified:
The rule, however, is different if the law student appears before an inferior
court, where the issues and procedure are relatively simple. In inferior courts,
a law student may appear in his personal capacity without the supervision of
a lawyer. Section 34, Rule 138 provides:
Sec. 34. By whom litigation is conducted. - 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. In
any other court, a party may conduct his litigation personally or by aid of an
attorney, and his appearance must be either personal or by a duly authorized
member of the bar.
Thus, a law student may appear before an inferior court as an agent or friend
of a party without the supervision of a member of the bar.7 (Emphasis
supplied)
The phrase "In the court of a justice of the peace" in Bar Matter No. 730 is
subsequently changed to "In the court of a municipality" as it now appears in
Section 34 of Rule 138, thus:8
SEC. 34. By whom litigation is conducted. — In the Court of a municipality 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. In any other
court, a party may conduct his litigation personally or by aid of an attorney
and his appearance must be either personal or by a duly authorized member
of the bar. (Emphasis supplied)
which is the prevailing rule at the time the petitioner filed his Entry of
Appearance with the MeTC on September 25, 2000. No real distinction exists
for under Section 6, Rule 5 of the Rules of Court, the term "Municipal Trial
Courts" as used in these Rules shall include Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit
Trial Courts.
There is really no problem as to the application of Section 34 of Rule 138 and
Rule 138-A. In the former, the appearance of a non-lawyer, as an agent or
friend of a party litigant, is expressly allowed, while the latter rule provides for
conditions when a law student, not as an agent or a friend of a party litigant,
may appear before the courts.
Petitioner expressly anchored his appearance on Section 34 of Rule 138.
The court a quo must have been confused by the fact that petitioner referred
to himself as a law student in his entry of appearance. Rule 138-A should not
have been used by the courts a quo in denying permission to act as private
prosecutor against petitioner for the simple reason that Rule 138-A is not the
basis for the petitioner’s appearance.
Section 34, Rule 138 is clear that appearance before the inferior courts by a
non-lawyer is allowed, irrespective of whether or not he is a law student. As
succinctly clarified in Bar Matter No. 730, by virtue of Section 34, Rule 138,
a law student may appear, as an agent or a friend of a party litigant, without
the supervision of a lawyer before inferior courts.
Petitioner further argues that the RTC erroneously held that, by its very
nature, no civil liability may flow from the crime of Grave Threats, and, for this
reason, the intervention of a private prosecutor is not possible.
It is clear from the RTC Decision that no such conclusion had been intended
by the RTC. In denying the issuance of the injunctive court, the RTC stated
in its Decision that there was no claim for civil liability by the private
complainant for damages, and that the records of the case do not provide for
a claim for indemnity; and that therefore, petitioner’s appearance as private
prosecutor appears to be legally untenable.
Under Article 100 of the Revised Penal Code, every person criminally liable
for a felony is also civilly liable except in instances when no actual damage
results from an offense, such as espionage, violation of neutrality, flight to an
enemy country, and crime against popular representation.9 The basic rule
applies in the instant case, such that when a criminal action is instituted, the
civil action for the recovery of civil liability arising from the offense charged
shall be deemed instituted with criminal action, unless the offended party
waives the civil action, reserves the right to institute it separately or institutes
the civil action prior to the criminal action.10
The petitioner is correct in stating that there being no reservation, waiver, nor
prior institution of the civil aspect in Criminal Case No. 00-1705, it follows that
the civil aspect arising from Grave Threats is deemed instituted with the
criminal action, and, hence, the private prosecutor may rightfully intervene to
prosecute the civil aspect.
WHEREFORE, the Petition is GRANTED. The assailed Resolution and
Order of the Regional Trial Court, Branch 116, Pasay City are REVERSED
and SET ASIDE. The Metropolitan Trial Court, Branch 45, Pasay City is
DIRECTED to ADMIT the Entry of Appearance of petitioner in Criminal Case
No. 00-1705 as a private prosecutor under the direct control and supervision
of the public prosecutor.
No pronouncement as to costs.
SO ORDERED.
G. Lawyers Oath
I , do solemnly swear that I will maintain allegiance to the Republic
of the Philippines; I will support and defend its Constitution and obey the laws
as well as the legal orders of the duly constituted authorities therein; I will do
Page 30
no falsehood nor consent to its commission; I will not wittingly or willingly
promote or sue any groundless, false or unlawful suit nor give aid
nor consent to the same; I will not delay any man’s cause for money or malice from taking the lawyer's oath, thereby further tarnishing the public image of
and will conduct myself as a lawyer according to the best of my knowledge lawyers which in recent years has undoubtedly become less than
and discretion with all good fidelity as well to the court as to my clients; irreproachable.
and I will impose upon myself this obligation voluntarily, without any mental The resolution of the issue before us required weighing and reweighing of
reservation or purpose of evasion. the reasons for allowing or disallowing petitioner's admission to the practice
So help me God. of law. The senseless beatings inflicted upon Raul Camaligan constituted
evident absence of that moral fitness required for admission to the bar since
they were totally irresponsible, irrelevant and uncalled for.
B.M. No. 712 March 19, 1997
In the 13 July 1995 resolution in this case we stated:
RE: PETITION OF AL ARGOSINO TO TAKE THE LAWYERS OATH
. . . participation in the prolonged and mindless physical behavior, [which]
RESOLUTION
makes impossible a finding that the participant [herein petitioner] was then
possessed of good moral character. 1
PADILLA, J.:
In the same resolution, however, we stated that the Court is prepared to
Petitioner Al Caparros Argosino passed the bar examinations held in 1993.
consider de novo the question of whether petitioner has purged himself of
The Court however deferred his oath-taking due to his previous conviction
the obvious deficiency in moral character referred to above.
for Reckless Imprudence Resulting In Homicide.
Before anything else, the Court understands and shares the sentiment of
The criminal case which resulted in petitioner's conviction, arose from the
Atty. Gilbert Camaligan. The death of one's child is, for a parent, a most
death of a neophyte during fraternity initiation rites sometime in September
traumatic experience. The suffering becomes even more pronounced and
1991. Petitioner and seven (7) other accused initially entered pleas of not
profound in cases where the death is due to causes other than natural or
guilty to homicide charges. The eight (8) accused later withdrew their initial
accidental but due to the reckless imprudence of third parties. The feeling
pleas and upon re-arraignment all pleaded guilty to reckless imprudence
then becomes a struggle between grief and anger directed at the cause of
resulting in homicide.
death.
On the basis of such pleas, the trial court rendered judgment dated 11
Atty. Camaligan's statement before the Court- manifesting his having
February 1993 imposing on each of the accused a sentence of imprisonment
forgiven the accused is no less than praiseworthy and commendable. It is
of from two (2) years four (4) months :and one (1) day to four (4) years.
exceptional for a parent, given the circumstances in this case, to find room
On 18 June 1993, the trial court granted herein petitioner's application for
for forgiveness.
probation.
However, Atty. Camaligan admits that he is still not in a position to state if
On 11 April 1994, the trial court issued an order approving a report dated 6
petitioner is now morally fit to be a lawyer.
April 1994 submitted by the Probation Officer recommending petitioner's
After a very careful evaluation of this case, we resolve to allow petitioner Al
discharge from probation.
Caparros Argosino to take the lawyer's oath, sign the Roll of Attorneys and
On 14 April 1994, petitioner filed before this Court a petition to be allowed to
practice the legal profession with the following admonition:
take the lawyer's oath based on the order of his discharge from probation.
In allowing Mr. Argosino to take the lawyer's oath, the Court recognizes that
On 13 July 1995, the Court through then Senior Associate Justice Florentino
Mr. Argosino is not inherently of bad moral fiber. On the contrary, the various
P. Feliciano issued a resolution requiring petitioner Al C. Argosino to submit
certifications show that he is a devout Catholic with a genuine concern for
to the Court evidence that he may now be regarded as complying with the
civic duties and public service.
requirement of good moral character imposed upon those seeking admission
The Court is persuaded that Mr. Argosino has exerted all efforts to atone for
to the bar.
the death of Raul Camaligan. We are prepared to give him the benefit of the
In compliance with the above resolution, petitioner submitted no less than
doubt, taking judicial notice of the general tendency of youth to be rash,
fifteen (15) certifications/letters executed by among others two (2) senators,
temerarious and uncalculating.
five (5) trial court judges, and six (6) members of religious orders. Petitioner
We stress to Mr. Argosino that the lawyer's oath is NOT a mere ceremony or
likewise submitted evidence that a scholarship foundation had been
formality for practicing law. Every lawyer should at ALL TIMES weigh his
established in honor of Raul Camaligan, the hazing victim, through joint
actions according to the sworn promises he makes when taking the lawyer's
efforts of the latter's family and the eight (8) accused in the criminal case.
oath. If all lawyers conducted themselves strictly according to the lawyer's
On 26 September 1995, the Court required Atty. Gilbert Camaligan, father of
oath and the Code of Professional Responsibility, the administration of justice
Raul, to comment on petitioner's prayer to be allowed to take the lawyer's
will undoubtedly be faster, fairer and easier for everyone concerned.
oath.
The Court sincerely hopes that Mr. Argosino will continue with the assistance
In his comment dated 4 December 1995, Atty. Camaligan states that:
he has been giving to his community. As a lawyer he will now be in a better
a. He still believes that the infliction of severe physical injuries which led to
position to render legal and other services to the more unfortunate members
the death of his son was deliberate rather than accidental. The offense
of society.
therefore was not only homicide but murder since the accused took
PREMISES CONSIDERED, petitioner Al Caparros Argosino is hereby
advantage of the neophyte's helplessness implying abuse of confidence,
ALLOWED to take the lawyer's oath on a date to be set by the Court, to sign
taking advantage of superior strength and treachery.
the Roll of Attorneys and, thereafter, to practice the legal profession.
b. He consented to the accused's plea of guilt to the lesser offense of reckless
SO ORDERED.
imprudence resulting in homicide only out of pity for the mothers of the
accused and a pregnant wife of one of the accused who went to their house
H. Membership to IBP
on Christmas day 1991 and Maundy Thursday 1992, literally on their knees,
[A.C. No. 1928. August 3, 1978.]
crying and begging for forgiveness and compassion. They also told him that
In the Matter of the IBP Membership Dues Delinquency of Atty.
the father of one of the accused had died of a heart attack upon learning of
MARCIAL A. EDILLON (IBP Administrative Case No. MDD - 1).
his son's involvement in the incident.
c. As a Christian, he has forgiven petitioner and his co-accused for the death
SYNOPSIS
of his son. However, as a loving father who had lost a son whom he had
hoped would succeed him in his law practice, he still feels the pain of an
For respondent's stubborn refusal to pay his membership dues to the
untimely demise and the stigma of the gruesome manner of his death.
Integrated Bar of the Philippines since the latter's constitution,
d. He is not in a position to say whether petitioner is now morally fit for
notwithstanding due notice, the Board of Governors of the Integrated Bar of
admission to the bar. He therefore submits the matter to the sound discretion
the Philippines unanimously adopted and submitted to the Supreme Court a
of the Court.
resolution recommending the removal of respondent's name from its Roll of
The practice of law is a privilege granted only to those who possess the strict
Attorneys, pursuant to Par. 2, Sec. 24, Art. III of the By-Laws of the IBP.
intellectual and moral qualifications required of lawyers who are instruments
Respondent, although conceding the propriety and necessity of the
Page 31

in the effective and efficient administration of justice. It is the sworn duty of

integration of the Bar of the Philippines, questions the all-encompassing, all-
this Court not only to "weed out" lawyers who have become a disgrace to the
inclusive scope of membership therein and the obligation to pay membership
noble profession of the law but, also of equal importance, to prevent "misfits"
dues arguing that the provisions therein (Section 1 and 9 of the Court Rule
139-A) constitute an invasion of his constitutional right in the sense that he is
being compelled, as a precondition 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. Respondent likewise questions the jurisdiction of the Supreme
Court to strike his name from the Roll of Attorneys, contending that this matter
is not among the justiciable cases triable by the Court but is of an
administrative nature pertaining to an administrative body.
The Supreme Court unanimously held that all legislation directing the
integration of the Bar are valid exercise of the police power over an important
profession; that to compel a lawyer to be a member of the IBP is not violative
of his constitutional freedom to associate; that the requirement to pay
membership fees is imposed as a regulatory measure designed to raise
funds for carrying out the objectives and purposes of integration; that the
penalty provisions for non-payment are not void as unreasonable or arbitrary;
that the Supreme Court's jurisdiction and power to strike the name of a lawyer
from its Roll of Attorneys is expressly provided by Art.X, Section 5(5) of the
Constitution and held as an inherent judicial function by a host of decided
cases; and that the provisions of Rules of Court 139-A ordaining the
integration of the Bar of the Philippines and the IBP By-Laws complained of
are neither unconstitutional nor illegal.
Respondent disbarred and his name ordered stricken from the Roll of
Attorneys.
SYLLABUS
1. ATTORNEYS; BAR INTEGRATION; NATURE AND PURPOSE. — 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. ID.; ID.; INTEGRATION OF THE BAR, A VALID EXERCISE OF POLICE
POWER; PRACTICE OF LAW NOT A VESTED RIGHT BUT A PRIVILEGE.
— 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. 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. The expression "affected
with a public interest" is the equivalent of "subject to the exercise of the police
power"
3. ID.; ID.; ID.; LEGISLATION TO EFFECT THE INTEGRATION OF THE
PHILIPPINE BAR. — The Congress in enacting Republic Act No. 6397,
approved on September 17, 1971, 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," the Supreme 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.
4. ID.; ID.; ID.; IMPOSITION OF RESTRAINTS JUSTIFIED. — 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 will 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.
5. ID.; ID.; CONSTITUTION VESTS SUPREME COURT WITH PLENARY
POWER IN ALL CASES REGARDING ADMISSION TO AND
SUPERVISION OF THE PRACTICE OF LAW. — Even without the enabling
Act (Republic Act No. 6397), and looking solely to the language of the
provision of the Constitution granting the Supreme Court the power "to
promulgate rules concerning pleading, practice and procedure in all courts,
and the admission to the practice of law, "(Sec. 5[5], Art. X, 1973 Costitution)
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.
6. ID.; ID.; COMPULSORY MEMBERSHIP THEREIN NOT VIOLATIVE OF
A LAWYER'S CONSTITUTIONAL FREEDOM TO ASSOCIATE. — To
compel a lawyer to be a member of the Integrated Bar is not violative of his
constitutional freedom to associate. Integration does not make a lawyer a
member of any group of which he is not already a member. He becomes a
member of the Bar when he passed the Bar examinations. 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 already a
member. 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 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.
7. ID.; ID.; PAYMENT OF MEMBERSHIP FEE; A REGULATORY MEASURE
NOT PROHIBITED BY LAW. — There is nothing in the Constitution that
prohibits the Supreme 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)
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.
8. ID.; ID.; ID.; PENALTY PROVISIONS, NOT VOID. — 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. The practice of law is not a property
right but a mere privilege, and as such must bow to the inherent regulatory
power of the Court to exact compliance with the lawyer s public
responsibilities.
9. ID.; POWER
TO PASS UPON FITNESS TO REMAIN A MEMBER OF THE BAR VESTED
IN THE SUPREME COURT. — 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. The power of the Supreme Court to regulate the conduct and
qualifications of its officers does not depend upon constitutional or statutory
grounds. It has limitations no less real because they are inherent. The very
burden of the duty is itself a guaranty that the power will not be misused or
prostituted.
10. ID.; ID.;
Page 32
CASE AT BAR. — The provisions of Rule 139-A of the Rules of Court
ordaining the integration of the Bar of the Philippines and the By-Laws of the
Integrated Bar of the Philippines is neither unconstitutional nor illegal, and a
lawyer's stubborn refusal to pay his membership dues to the Integrated Bar
of the Philippines, notwithstanding due notice, in violation of said Rule and
By-Laws, is a ground for disbarment and striking out of his name from the
Roll of Attorneys of the Court.
RESOLUTION
CASTRO, C.J p:
The respondent Marcial A. Edillon is a duly licensed practicing attorney in the
Philippines.
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.
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:
". . . . 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.
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.
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.
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 By-Laws
(hereinabove cited).
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 III 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:
"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: LLphil
"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 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
effectivity." Hence, the Congress in enacting such Act, the Court in ordaining
the integration of the Bar through its Resolution promulgated on January 9,
Page 33
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 will 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 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 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.
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.
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. prLL
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. 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 already a member.
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 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.
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.
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.
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 practice 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.
But we must here emphasize that the practice of law is not a property right
but a mere privilege, 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.
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.
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. cdll
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.
IV. CODE OF PROFESSIONAL RESPONSIBILITY
THE LAWYER AND SOCIETY
CANON 1: PROMOTE AND RESPECT, LAW AND LEGAL PROCESS
A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF
THE LAND AND PROMOTE RESPECT FOR LAW OF AND LEGAL
PROCESSES.
[G.R. Nos. 79690-707. October 7, 1988.]
ENRIQUE A. ZALDIVAR, petitioner, vs. THE HONORABLE
Page 34
SANDIGANBAYAN and HONORABLE RAUL M. GONZALES, claiming to be
and acting as Tanodbayan-Ombudsman under the 1987 Constitution,
respondents.
[G.R. Nos. 80578. October 7, 1988.]
ENRIQUE A. ZALDIVAR, petitioner, vs. HON. RAUL M. GONZALES,
claiming to be and acting as Tanodbayan-Ombudsman under the 1987
Constitution, respondent.
DECISION
PER CURIAM p:
The following are the subjects of this Resolution:
1) a Motion, dated 9 February 1988, to Cite in Contempt filed by a
petitioner Enrique A. Zaldivar against public respondent Special Prosecutor
(formerly Tanodbayan) Raul M. Gonzales, in connection with G.R. Nos.
79690-707 and G.R. No. 80578, and 2) a Resolution of this Court dated 2
May 1988 requiring respondent Hon. Raul Gonzalez to show cause why he
should not be punished for contempt and/or subjected to administrative
sanctions for making certain public statements.
I for extensions of thirty (30) days from the expiration of the original period
The pertinent facts are as follows:
Petitioner Zaldivar is one of several defendants in Criminal Cases Nos.
12159-12161 and 12163-12177 (for violation of the Anti-Graft and Corrupt
Practices Act) pending before the Sandiganbayan. The Office of the
Tanodbayan conducted the preliminary investigation and filed the criminal
informations in those cases (originally TBP Case No. 86-00778).
On 10 September 1987, petitioner filed with this Court a Petition for Certiorari,
Prohibition and Mandamus (G.R. Nos. 79690-707) naming as respondents
both the Sandiganbayan and Hon. Raul M. Gonzalez. Among other things,
petitioner assailed: (1) the 5 February 1987 Resolution 1 of the Tanodbayan"
recommending the filing of criminal informations against petitioner Zaldivar
and his co-accused in TBP Case No. 86-00778; and (2) the 1 September
1987 Resolution 2 of the Sandiganbayan in Criminal Case Nos. 12159-12161
and 12163-12177 denying his Motion to Quash the criminal informations filed
in those cases by the "Tanodbayan." In this respect, petitioner alleged that
respondent Gonzales, as Tanodbayan and under the provisions of the 1987
Constitution, was no longer vested with power and authority independently
to investigate and to institute criminal cases for graft and corruption against
public officials and employees, and hence that the informations filed in
Criminal Cases Nos. 12159-12161 and 12163-12177 were all null and void.
On 11 September 1987, this Court issued a Resolution, which read:
"G.R. Nos. 79690-707 (Enrique A. Zaldivar vs. The Honorable
Sandiganbayan and Honorable Raul M. Gonzalez, Claiming To Be and
Acting as Tanodbayan-Ombudsman under the 1987 Constitution). — Acting
on the special civil action for certiorari, prohibition and mandamus under Rule
65 of the Rules of Court, with urgent motion for preliminary injunction, the
Court Resolved, without giving due course to the petition, to require the
respondents to COMMENT thereon, within ten (10) days from notice.
The Court further Resolved to ISSUE a TEMPORARY RESTRAINING
ORDER, effective immediately and continuing until further orders from this
Court, ordering respondent Sandiganbayan to CEASE and DESIST from
hearing and trying Criminal cases Nos. 12159 to 12161 and 12163 to 12177
insofar as petitioner Enrique Zaldivar is concerned and from hearing and
resolving the Special Prosecutor's motion to suspend dated September 3,
1987."
The parties later filed their respective pleadings.
Petitioner Zaldivar filed with the Court a second Petition for Certiorari and
Prohibition (G.R. No. 80578) on 19 November 1987, initially naming only
Hon. Raul M. Gonzalez as respondent. The Petition assailed the 24
September 1987 Resolution 3 of the "Tanodbayan" in TBP Case No. 87-
01304 recommending that additional criminal charges for graft and corruption
be filed against petitioner Zaldivar and five (5) other individuals. Once again,
petitioner raised the argument of the Tanodbayan's lack of authority under
the 1987 Constitution to file such criminal cases and to investigate the same.
Petitioner also moved for the consolidation of that petition with G.R. No.
79690-707.
In a Resolution dated 24 November 1987, 4 this Court, without giving due
course to the second petition: (1) required respondent Gonzales to submit
Gonzalez to submit a comment thereon: and (2) issued a temporary
restraining order "ordering respondent Hon. Raul M. Gonzalez to CEASE and
DESIST from further acting in TBP Case No. 87-01394 . . . and particularly,
from filing the criminal information consequent thereof and from conducting
preliminary investigation therein." In a separate resolution of the same date,
5 G.R. Nos. 79690-707 and G.R. No. 80578 were ordered consolidated by
the Court.
In the meantime, however, on 20 November 1987 or four (4) days prior to
issuance by this Court of a temporary restraining order in G.R. No. 80578,
the Office of the Tanodbayan instituted Criminal Case No. 12570 6 with the
Sandiganbayan, which issued on 23 November 1987 an Order of Arrest 7 for
petitioner Zaldivar and his co-accused in Criminal Case No. 12570. Upon
Motion 8 of petitioner Zaldivar, this Court issued the following Resolution on
8 December 1987.
"G.R. No. 80578 (Enrique A. Zaldivar vs. Hon. Raul M. Gonzalez and
Sandiganbayan). The motion filed by the Solicitor General for respondents
within which to file comment on the petition for certiorari and prohibition with
prayer for a writ of preliminary injunction or restraining order is GRANTED.
Acting on the manifestation with motion to treat the Sandiganbayan as party-
respondent, the Court Resolved to (a) Consider IMPLEADED the
Sandiganbayan as party respondent; and (b) In pursuance of and
supplementing the Temporary Restraining Order of November 24, 1987
ordering respondent Hon Raul M. Gonzalez to CEASE and DESIST from
further acting TBP No. 87-01304 entitled, "Commission on Audit vs. Gov.
Enrique Zaldivar, et al., and particularly, from filing the criminal information
consequent thereof and from conducting preliminary investigation therein"
ISSUE a TEMPORARY RESTRAINING ORDER effective immediately and
continuing until further orders from this Court, ordering respondents Hon.
Raul M. Gonzalez and Sandiganbayan to CEASE and DESIST from further
acting in Criminal case No. 12570, entitled, "People of the Philippines vs.
Enrique M. Zaldivar, et al.' and from enforcing the order of arrest issued by
the Sandiganbayan in said case."
The Solicitor general filed a Comment 9 on the petition in G.R. No. 80578,
and we required the petitioner to submit a Reply 10 thereto.
On 9 February 1988, petitioner Zaldivar filed with the Court a Motion to Cite
in Contempt 11 directed at respondent Gonzalez. The Motion cited as bases
the acts of respondent Gonzalez in: (1) having caused the filing of the
information against petitioner in Criminal case No. 12570 before the
Sandiganbayan; and (2) issuing certain allegedly contemptuous statements
to the media in relation to the proceedings in G.R. No. 80578. In respect of
the latter, petitioner annexed to his Motion a photocopy of a news article,
reproduced here in toto, which appeared in the 30 November 1987 issue of
the "Philippine daily Globe."
Tanod Scores SC for Quashing Graft Case
TANODBAYAN Justice Raul M. Gonzalez said yesterday the Supreme Court
order stopping him from investigating graft cases involving Antique Gov.
Enrique Zaldivar "can aggravate the thought that affluent persons can
prevent the progress of a trial.'
'What I am afraid of (with the issuance of the order) is that it appears that
while rich and influential persons get favorable actions from the Supreme
Court, it is difficult for an ordinary litigant to get his petition to be given due
course.' Gonzales told the Daily Globe in an exclusive interview.
Gonzalez said the high tribunal's order 'heightens the people's apprehension
over the justice system in this country, especially because the people have
been thinking that only the small fry can get it while big fishes go scot-free.'
Gonzalez was reacting to an order issued by the tribunal last week after
Zaldivar petitioned the court to stop the Tanodbayan from investigating graft
cases filed against him.
Page 35
Zaldivar had charged that Gonzalez was biased in his investigations because
the latter wanted to help promote the political fortunes of a friend from
Antique, lawyer Bonifacio Alentajan.
Acting on Zaldivar's petition, the high court stopped Gonzalez from
investigating a graft charge against the governor, and from instituting any
complaint the Sandiganbayan.
'While President Aquino had been prodding me to prosecute graft cases even
if they involve the high and mighty, the Supreme Court had been restraining
me.' Gonzalez said.
In accordance with the President's order, Gonzalez said he had filed graft
cases against two 'very powerful' officials of the Aquino government —
Commissioner Quintin Doromal of the Presidential Commission on Good
Government and Secretary Jiamil I.M. Dialan of the Office of Muslim Affairs
and Cultural Communities.
'While I don't with to discuss the merits of the Zaldivar petition before the
Supreme Court, I am a little bit disturbed that (the order) can aggravate the
thinking of some people that affluent persons can prevent the progress of a
trial,' he said.
He disclosed that he had a talk with the Chief Executive over the weekend
and that while she symphatizes with local officials who are charged in court
during election time, 'she said that it might be a disservice to the people and
the voters who are entitled to know their candidates.'
Gonzalez said that while some cases against local against local officials
during election time could be mere harassment's suits, the Constitution
makes it a right of every citizen to be informed of the character of the
candidate, who should be subject to scrutiny."(Italics supplied)
Acting on petitioner's Motion to Cite in Contempt, the Court on 16 February
1988 required respondent Gonzalez "to COMMENT on aforesaid Motion
within ten (10) days from notice." 12
On 27 April 1988 , the Court rendered its Decision 13 (per curiam) in the
Consolidated Petitions. The dispositive portion thereof read:
"WHEREFORE, We hereby:
(1) GRANT the consolidated petitions filed by petitioner Zaldivar and
hereby NULLIFY the criminal informations filed against him in the
Sandiganbayan; and
(2) ORDER respondent Raul Gonzalez ro cease and desists from
conducting investigations and filing criminal cases with the Sandiganbayan
or otherwise exercising the powers and functions of the Ombudsman.
SO ORDERED."
A Motion for Reconsideration 14 was filed by respondent Gonzalez the next
day, 28 April 1988. In his Motion, respondent Gonzalez, after having argued
the legal merits of his position, made the following statements totally
unrelated to any legal issue raised either in the Court's Decision or in his own
Motion:
1. That he "ha(d) been approached twice by a leading member of
the court . . . and he was asked to 'go slow' on Zaldivar and 'not to be too
hard on him;'"
2. That he "was approached and asked to 'refrain' from investigating
the COA report on illegal disbursements in the Supreme Court because 'it
will embarrass the Court; '" and
3. That "(i)n several instances, the undersigned respondent was
called over the phone be a leading member of the Court and was asked to
dismiss the cases against (two Members of the Court)."
Respondent Gonzalez also attached three (3) handwritten notes 15 which he
claimed were sent by "some members of this Honorable Court, interceding
for cases pending before this office (i. e., the Tanodbayan)." He either
released his Motion for Reconsideration with facsimiles of said notes to the
press or repeated to the press the above extraneous statements: the
metropolitan papers for the next several days carried long reports on those
statements and variations and embellishments thereof.
On 2 May 1988, the Court issued the following Resolution in the Consolidated
Petitions:
"G.R. No. 79690-707 (Enrique Zaldivar vs. The Hon. Sandiganbayan, et al.);
G.R. No. 80578 (Enrique A. Zaldivar vs. Hon. Raul M. Gonzalez, etc.). —
1. Acting on the Motion for Reconsideration filed by respondent
Gonzalez under date of April 28, 1988, the Court Resolved to REQUIRE the
petitioner to COMMENT thereon within ten (10) days from notice hereof.
2. It appearing that respondent Raul M. Gonzalez has made public
statements to the media which not only deal with matters sub-judice but also
appear offensive to and disrespectful of the Court and its individual members
and calculated, directly or indirectly, to bring the Court into disrepute,
discredit and ridicule and to denigrate and degrade the administration of
justice, the Court Resolved to require respondent Gonzalez to explain in
writing within ten (10) days from notice hereof, why he should not be
punished for contempt of court and/or subjected to administrative sanctions
for making such public statements reported in the media, among others, in
the issues of the 'Daily Inquirer,' the 'Journal,' the 'Manila Time,' the
'Philippine Star,' the 'Manila Chronicle,' the 'Daily Globe' and the 'Manila
Standard' of April 29 and 30, and May 1, 1988, to wit:
(a) That the Court resolution in question is merely 'an offshoot of the
position he had taken that SC Justices cannot claim immunity from suit or
investigation by government prosecutors,' or motivated by a desire to stop
him 'from investigating cases against some of their portages or friends;'
(2) That no less than six of the members of the Court 'interceded for
and on behalf of persons with pending cases before the Tanodbayan,' or
sought 'to pressure him to render decisions favorable to their colleagues and
friends;'
(c) That attempts were made to influence him 'to go slow' on Zaldivar
and 'not to be too hard on him,' and 'to refrain' from investigating the
Commission on Audit report on illegal disbursements in the Supreme Court
because 'it will embarrass the Court;'
(d) That there were also attempts to cause the dismissal of cases
against two Associate Justices; and
(e) That the Court had dismissed judges 'without rhyme or reason'
and disbarred lawyers 'without due process.'
3. It further appearing that three (3) affidavits relative to the purpose
of and circumstances attendant upon the notes written to said public
respondent by three (3) members of the Court have since been submitted to
the Court and now form part of its official records, the Court further Resolved
to require the Clerk of Court to ATTACH to this Resolution copies of said
sworn statements and the annexes thereto appended, and to DIRECT
respondent Gonzalez also to comment thereon within the same period of
ten(10) days.
4. It finally appearing that notice of the Resolution of February 16,
1988 addressed to respondent Gonzalez was misdelivered and therefore not
served on him, the Court Resolved to require the Clerk of Court to CAUSE
SERVICE of said Resolution on the respondent and to REQUIRE the latter
to comply therewith."
Respondent Gonzalez subsequently filed with this Court on 9 May 1988 an
Omnibus Motion for Extension and Inhibition 16 alleging, among other things:
that the above quoted 2 May 1988 Resolution of the Court "appears to have
overturned that presumption [of innocence] against him;" and that "he gravely
doubts whether that 'cold neutrality [of an impartial judge]' is still available to
him" there being allegedly "at least 4 members of this Tribunal who will not
be able to sit in judgment with substantial sobriety and neutrality."
Respondent Gonzalez closed out his pleading with a prayer that the four (4)
Members of the Court identified and referred to there by him inhibit
themselves in the deliberation and resolution of the Motion to Cite in
Contempt.
On 19 may 1988, 17 after receipt of respondent's Supplemental Motion for
Reconsideration, 18 this Court in an extended per curiam Resolution 19
denied the Motion and Supplemental Motion for Reconsideration. That denial
was made "final and immediately executory."
Respondent Gonzalez has since then filed the following pleadings of record:
1. Manifestation with Supplemental Motion to Inhibit, 20 dated 23
May 1988;
2. Motion to Transfer Administrative Proceedings to the Integrated
Page 36
Bar of the Philippines, 21 dated 20 May 1988;
3. Urgent Motion for Additional Extension of Time to File
Explanation Ex Abundante Cautelam, 22 dated 26 May 1988;
4. Urgent Ex-Parte Omnibus Motion
(a) For Extension of Time
(b) For Inhibition, and
(c) For Transfer of Administrative Proceedings to the IBP, Under
Rule 139-B, 23 dated 4 June 1988 (with Annex "A;' 24 an anonymous letter
dated 27 May 1988 from the alleged Concerned Employees of the Supreme
Court" and addressed to respondent);
5. Ex-Parte Manifestation, 25 dated 7 June 1988;
6. Urgent Ex-Parte Motion for Reconsideration, 26 dated 6 June
1988; and
7. Urgent Ex-Parte Manifestation with Motion 27 dated 23
September 1988.
In compliance with the 2 may 1988 Resolution of this Court quoted earlier,
respondent Gonzalez submitted on 17 June 1988 an Answer with
Explanation and Comment 28 offering respondent's legal arguments and
defenses against the contempt and disciplinary charges presently pending
before this Court. Attached to that pleading as Annex "A" thereof was
respondent's own personal Explanation/Compliance. 29 A second
explanation called "Compliance," 30 with annexes, was also submitted by
respondent on 22 July 1988.
II
We begin be referring to the authority of the Supreme Court to discipline
officers of the court and members of the court and members of the Bar. The
Supreme Court, as regular and guardian of the legal profession, has plenary
disciplinary authority over attorneys. The authority to discipline lawyers stems
from the Court's constitutional mandate to regulate admission to the practice
of law, which includes as well authority to regulate the practice itself of law.
31 Quite apart from this constitutional mandate, the disciplinary authority of
the Supreme Court over members of the Bar is an inherent power incidental
to the proper administration of justice and essential to an orderly discharge
of judicial functions. 32 Moreover, the Supreme Court has inherent to punish
for contempt, to control in the furtherance of justice the conduct of ministerial
officers of the Court including lawyers and all other persons connected in any
manner with a case before the Court. 33 The power to punish for contempt
is "necessary for its own protection against an improper interference with the
due administration of justice, " "(it) is not dependent upon the complaint of
any of the parries litigant." 34
There are, in other words, two (2) related powers which come into play in
cases like that before us here; the Court's inherent power to discipline
attorneys and the contempt power. The disciplinary authority of the Court
over members of the Bar is broader that the power to punish for contempt.
Contempt of court may be committed both by lawyers and non-lawyers, both
in and out of court. Frequently, where the contemnor is a lawyer, the
contumacious conduct also constitutes professional misconduct which calls
into play the disciplinary authority of the Supreme Court. 35 Where the
respondent is a lawyer, however, the Supreme Court's disciplinary authority
over lawyers may come into play whether or not the misconduct with which
the respondent is charged also constitutes contempt of court. The powers to
punish for contempt of court does not exhaust the scope of disciplinary
authority of the Court over lawyers. 36 The disciplinary authority of the Court
over members of the Bar is but corollary to the Court's exclusive power of
admission to the Bar. A lawyers is not merely a professional but also an
officer of the court and as such, he is called upon to share in the task and
responsibility of dispensing justice and resolving disputes in society. Any act
on his part which visibly tends to obstruct, pervert, or impede and degrade
the administration of justice constitutes both professional misconduct calling
for the exercise of disciplinary action against him and contumacious conduct
warranting application of the contempt power.
It is sometimes asserted that in the exercise of the power to punish for
contempt or to the disciplinary authority of the Court over members of the
Bar, the Court is acting as offended party, prosecutor and arbiter at one and
the same time. Thus, in the present case, respondent Gonzalez first sought
to get some members of the Court to inhibit themselves in the resolution of
this case for alleged bias and prejudice against him. A little later, he in effect
asked the whole Court to inhibit itself from passing upon the issues involved
in this proceeding and to pass on responsibility for this matter to the
Integrated Bar of the Philippines, upon the ground that respondent cannot
expect due process from this Court, that the Court has become incapable of
judging him impartially and fairly.
Respondent Gonzalez misconceives the nature of the proceeding at bar as
well as the function of the members of the Court in such proceeding.
Respondent's contention is scarcely an original one. In In Re Almacen, 37
then Associate (later Chief) Justice Fred Fruiz Castro had occasion to deal
with this contention in the following lucid manner:
"xxx xxx xxx
It is not accurate to say, nor is it an obstacle to the exercise of our authority
in the premises, that, as Atty. Almacen would have it appear, the members
of the Court are the 'complaints, prosecutors and judges' all rolled up into one
in this instance. This is an utter misapprehension, if not a total distortion, not
only of the nature of the proceeding at hand but also of our role therein.
Accent should be laid on the fact that disciplinary proceedings like the
present are sui generis. Neither purely civil nor purely criminal, this
proceeding is not — and does not involve — a trial of an action or a suit, but
is rather an investigation by the Court into the conduct of its officers. Not
being intended to inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor there. It may be
initiated by the Court motu proprio. Public interest is its primary objective, and
the real question for determination is whether or not the attorney is still a fit
person to be allowed the privileged as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to
account for his actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by their
misconduct have proved themselves no longer worthy to be entrusted with
the duties and responsibilities pertaining to the office of an attorney. In such
posture, there can thus be no occasion to speak of a complainant or a
prosecutor.
Undeniably, the members of the Court are, to a certain degree, aggrieved
parties. Any tirade against the individual members thereof. But in the exercise
of its disciplinary powers, the Court acts as an entity separate and distinct
from the individual personalities of its members. Consistently with the intrinsic
nature of a collegiate court, the individual members act not as such
individuals as a duly constituted court. The distinct individualities are lost in
the majesty of their office. So that, in a very real sense, if there be any
complainant in the case at bar, it can only by the Court itself, not the individual
members thereof — as well as the people themselves whose rights, fortunes
and properties, may, even lives, would be placed at grave hazard should the
administration of justice be threatened by the retention in the Bar of men unfit
to discharge the solemn responsibilities of membership in the legal fraternity.
Finally, the power to exclude persons from the practice of law is but a
necessary incident of the power to admit persons to said practice. By
constitutional precept, this power is vested exclusively in this Court. This duty
it cannot abdicate just as much as it cannot unilaterally renounce jurisdiction
legally invested upon it. So that even if it be concede that the members
collectively are in a sense the aggrieved parties, that fact alone does not and
cannot disqualify them from the exercise of the power because public policy
demands that they, acting as a Court, exercise the power in all cases which
call for disciplinary action. The present is such a case. In the end, the
imagined anomaly of the merger in one entity of the personalities of
complaint, prosecutor and judge is absolutely inexistent.
xxx xxx xxx." 38
It should not be necessary for the members of this Court expressly to disclaim
any bias or prejudice against the respondent that would prevent them from
the acting in accordance with the exacting requirements of their oaths of
office. It also appears to the Court that for all the members to inhibit
themselves from sitting on this case is to abdicate the responsibility with
Page 37
which the Constitution has burdened the. Reference of complaints against
attorneys either to the Integrated Bar of the Philippines or to the Solicitor
General is not mandatory upon the Supreme Court; such reference to the
Integrated Bar of the Philippines or to the Solicitor General is certainly not an
exclusive procedure under the terms of Rule 139-B of the Revised Rules of
Court, especially where the charge consists of acts done before the Supreme
Court. There is no need for further investigation of facts in the present case
for it is not substantially disputed by respondent Gonzalez that he uttered or
wrote certain statements attributed to him. In any case, respondents had the
amplest opportunity to present his defense; his defense is not that he did not
make the statements ascribed to him but that those statements give rise to
no liability on his party, having been made in the exercise of his freedom of
speech. The issues which thus need to be resolved here are issues of law
and of basic and the Court, not any other agency, is compelled to resolve
such issues.
III
It is necessary to become very explicit as to what respondent Gonzalez was
saying in his statements set out above. Respondent has not denied making
the above statements; indeed, he acknowledges that the newspaper reports
of the statements attributed to him are substantially correct. 39
Respondent Gonzalez was in effect saying, firstly, that the Supreme Court
deliberately rendered an erroneous or wrong decision when it rendered its
per curiam Decision dated 27 April 1988 in G.R. Nos. 79690-707 and 80578.
That decision according to respondent Gonzales, was issued as an act of
retaliation by the Court against him for the position he had taken "that the
(Supreme Court) Justices cannot claim immunity from suit or investigation by
government prosecutors," and in order to stop respondent from investigating
cases against "some of (the) proteges or friends (of some Supreme Court
Justices)." The Court cannot, of course, and will not debate the correctness
of its Decision of 27 April 1988 and of its Resolution dated 19 May 1988
(denying respondent Gonzalez' Motion for Reconsideration) in the
consolidated Zaldivar case. Respondent Gonzalez, and anyone else for that
matter, is free intellectually to accept or not accept the reasoning of the Court
set out in its per curiam Decision and Resolution in the consolidated Zaldivar
cases. This should not, however, obscure the seriousness of the assault thus
undertaken by respondent against the Court and the appalling implications
of a such assault for the integrity of the system of administration of justice in
country. Respondent has said that the Court rendered it Decision and
Resolution without regard to the legal merits of the Zaldivar cases and had
used the judicial process to impose private punishment upon respondent for
positions he had taken (unrelated to the Zaldivar cases) in carrying out his
duties. It is very difficult to imagine a more serious affront to, or greater
outrage upon, the honor and dignity of this Court that this. Respondent's
statements is also totally baseless. Respondent's statements were made in
complete disregard of the fact that his continuing authority to act as
Tanodbayan or Ombudsman after the effectivity of the 1987 Constitution, had
been questioned before this Court as early as 10 September 1987 in the
Petition for Certiorari, Prohibition and Mandamus filed against him in these
consolidated Petitions, 40 that is more than seven (7) months before the
Court rendered its Decision. Respondent also ignores the fact that one day
later, this Court issued a Temporary Restraining Order effective immediately
Sandiganbayan to cease and desist from hearing the criminal cases filed
against petitioner Zaldivar by respondent Gonzalez Respondent also
disregards the fact that on 24 November 1987, upon the filing of a second
Petition for Certiorari for Prohibition by Mr. Zaldivar, the Court issued a
Temporary Restraining Order this time requirement the respondent to cease
and desist from further acting in TBP Case No. 87-0934. Thus, the decision
finally reached by this Court in April 1988 on the constitutional law issue
pending before the Court for the preceding eight (8) months, could scarcely
have been invented as a reprisal simply against respondent.
A second charge that respondent Gonzalez hurled against members of the
Supreme Court is that they have improperly "pressured" him render decisions
favorable to their "colleagues and friends," including dismissal of "cases"
against two (2) members of the Court. This particularly deplorable charge too
is entirely baseless, as even a cursory examination of the contents of the
handwritten notes of three (3) members of this Court addressed to
respondent (which respondent attached to his Motion for Reconsideration of
the Decision of this Court of 27 April 1988 in the consolidated Petitions) will
show. It is clear, and respondent Gonzalez does not pretend otherwise, that
the subject matters of the said notes had no relation at all to the issues in
G.R. Nos. 79690-707 and 80578. This charge appears to have made in order
to try to impart some substance (at least in the mind of respondent) to the
first accusation made by respondent that the Court had deliberately rendered
a wrong decision to get even with respondent who had, with great fortitude,
resisted "pressure" from some members of the Court. Once again, in total
effect, the statements made by respondent appear designed to cast the Court
into gross disrepute, and to cause among the general public scorn for and
distrust in the Supreme Court and, more generally, the judicial institutions of
the Republic.
Respondent Gonzalez has also asserted that the Court was preventing him
from prosecuting "rich and powerful persons," that the Court was in effect
discriminating between the rich and powerful on the one hand and the poor
and defenseless upon the other, and allowing "rich and powerful" accused
persons to go "scot-free" while presumably allowing or affirming the
conviction of poor and small offenders. This accusation can only be regarded
as calculated to present the Court in an extremely bad light. It may be seen
as intended to foment hatred against the Supreme Court; it is also suggestive
of the divisive tactics of revolutionary class war.
Respondents, finally, assailed the Court for having allegedly "dismissed
judges 'without rhyme or reason' and disbarred lawyers 'without due
process.'" The Court notes that this last attacks is not without relation to the
other statements made by respondent against the Court. The total picture
that respondent clearly was trying to paint of the Court is that of an "unjudicial"
institution able and willing to render "clearly erroneous" decisions by way of
reprisal against its critics, as a body that acts arbitrarily and capriciously
denying judges and lawyers due process of law. Once again, the purport of
respondent's attack against the Court as an institution unworthy of the
people's faith and trusty, is unmistakable. Had respondent undertaken to
examine the records of the two(2) judges and the attorney he later identified
in one of his Explanations he would have discovered that the respondents in
those administrative cases had ample opportunity to explain their side and
submit evidence in support thereof. 41 He would have also found that there
were both strong reasons for and an insistent rhyme in the disciplinary
measures there administered by the Court in the continuing effort to
strengthen the judiciary and upgrade the membership of the Bar. It is
appropriate to recall in this connection that due process as a constitutional
precept does not, always and in all situations, require the trial-type
proceeding, 42 that the essence of due process is to be found in the
reasonable opportunity to be heard and to submit any evidence one may
have in support' of one's defense. 43 "To be heard" does not only mean
verbal arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process. 44
As noted earlier, respondent Gonzalez was required by the Court to explain
why he should not be punished for contempt and/or subjected to
administrative discipline for making the statements adverted to above. In his
subsequent pleadings where asked the full Court to inhibit itself and to
transfer the administrative proceedings to the Integrated Bar of the
Philippines, respondent made, among others, the following allegations:
(a) That the Members of the Court "should inhibit [themselves] in the
contempt and administrative charges against the respondent, in the light of
the manifest prejudice and anger they hold against respondents as shown in
the language of the resolution on the Motion for Reconsideration;' (b) That
"the entire membership of the court has already lost that 'cold neutrality of an
impartial judge' [to] be able to allow fairness and due process in the contempt
citation as well as in the possible administrative charge;"
(c) That "respondent honestly feels that this court as angry and
prejudiced as it is, respondent has no china man's chance to get fair hearing
in the contempt and possible administrative charges;"
(d) That one must consider "the milieu before this Tribunal with,
Page 38
perhaps passion and obfuscation running riot;"
(e) That respondent, "after having been castigated with such venom
by the entire Court in its decision denying the Motion for Reconsideration,
does not have confidence in the impartiality of the entire Court" and that he
"finds it extremely difficult to believe that the members of this Tribunal can
still act with unbiased demeanor towards him; and
(f) That "the Tribunal is determined to disbar [respondent] without
due process" and that a specified Member of the court "has been tasked to
be the ponente, or at least prepare the decision." (Underscoring in the
original)
Thus, instead of explaining or seeking to mitigate his statements earlier
made, respondent sought to heap still more opprobrium upon the Court,
accusing it of being incapable of judging his acts and statements justly and
according to law. Once again, he paints this Court as a body not only capable
of acting without regard to due process but indeed determined so to act. A
grand design to hold up this Court to public scorn and disrespect as an
unworthy tribunal, one obfuscated by passion and anger at respondent,
emerges once more. It is very difficult for members of this Court to
understand how respondent Gonzalez could suppose that judges on the
highest tribunal of the land would be ready and willing to violate their most
solemn oath of office merely to gratify any imagined private feelings aroused
by respondent. The universe of the Court revolves around the daily demands
of law and justice and duty, not around respondent nor any other person or
group of persons.
Whether or not the statements made by respondent Gonzalez may
reasonably be regarded by this Court as contumacious or as warranting
exercise of the disciplinary authority of this Court over members of the Bar,
may best be assayed by examining samples of the kinds of statements which
have been held in our jurisdiction as constituting contempt or otherwise
warranting the exercise of the court's authority.
1. In Montecillo v. Gica, 45 Atty. Quirino del Mar as counsel for
Montecillo, who was accused in a slander case, moved to reconsider a
decision of the Court of Appeals in favor of the complainant with a veiled
threat that he should interpose his next appeal to the President of the
Philippines. In his Motion for Reconsideration, he referred to the provisions
of the Revised Penal Code on "knowingly rendering an unjust judgment," and
"judgment rendered through negligence" and implied that the Court of
Appeals had allowed itself to be deceived. Atty. del Mar was held guilty of
contempt of court by the Court of Appeals. He then sued the three (3) justices
of the Court of Appeals for damages before the Court of First Instance of
Cebu, seeking to hold them liable for their decision in the appealed slender
case. This suit was terminated, however, by compromise agreement after
Atty. del mar apologized to the Court of Appeals and the justices concerned
and agreed to pay moral damages to the justice. Atty. del Mar some time
later filed with this Court a Petition for Review on Certiorari of a decision of
the Court of Appeals in a slander case. This Court denied the Petition for
review. Atty. del Mar then filed a Motion for reconsideration and addressed a
letter to the Clerk of the Supreme Court asking for the names of the justices
of this Court who had voted in favor of and those who had voted against his
Motion for Reconsideration. After his Motion for Reconsideration was denied
fore lack of merit, Atty. del Mar filed a Manifestation in this Court saying:
"I can at this time reveal to you that, had your Clerk of Court furnished me
with certified of the last two Resolutions of the supreme court confirming the
decision of the Court of Appeals in the case entitled Francisco M. Gica vs.
Jorge Montecillo, I would have filed against the Justices supporting the same,
civil and criminal suits as i did to the justices of the Court of Appeals who,
rewarding the abhorrent falsification committed by Mr. Gica, reversed for him
the decisions of the City Court of First Instance of Cebu, not with a view to
obtaining a favorable judgment therein but for the purpose of exposing to the
people the corroding evils extant in our Government, so that they may well
know them and work for their extermination." (60 SCRA at 240' italics
supplied)
Counsel was asked to explain why he should not be administratively dealt
with for making the above statements. In his additional explanation, Atty. del
mar made the following statements:
". . . Graft, corruption and justice are rampant in and outside of the
Government. It is this state of things that convinced me that all human efforts
to correct and/or reform the said evils will be fruitless and as stated in my
manifestation to you. I have already decided to retire from a life of militancy
to a life of seclusion, leaving to God the filling-up deficiencies." (60 SCRA at
242)
The Court suspended Atty. del mar, "until further orders," from the practice
of law saying:
". . . Respondent is utilizing what exists in his mind as state of graft, corruption
and injustice allegedly rampant in and outside of the government as
justification for his contemptuous statements. In other words, he already
assumed by his own contemptuous utterances that because there is an
alleged existence of rampant corruption, graft and injustice in and out of the
government, We, by Our act in G.R. No. L-36800, are among the corrupt ,
the grafters and those allegedly committing injustice. We are at a complete
loss to follow respondent del Mar's logic. . .
xxx xxx xxx
"To aged brethren of the bar it may appear belated to remind them that
second only to the duty of maintaining allegiance to the Republic of the
Philippines and to support the Constitution and obey the laws of the
Philippines, is the duty of all attorneys to observe and maintain the respect
due to the courts of justice and judicial officers (Sec. 20 (b) Rule 138, Rules
of court). But We do remind them of said duty to emphasize to their younger
brethren its paramount importance. A lawyer must always remember that he
is an officer of the court exercising a high privilege and serving in the noble
mission of administering justice."
xxx xxx xxx
As already stated, the decision of the Court of Appeals in C.A. G.R. No.
45604-R was based on its evaluation of the evidence on only one specific
issue. We in turn denied in G.R. No. L-368000 the petition for review on
certiorari of the decision because We found no reason for disturbing the
appellate court's finding and conclusion. In both instances, both the Court of
Appeals and this Court exercised judicial discretion in a case under
respective jurisdiction. The intemperate and imprudent act of respondent del
Mar in resorting to veiled threats to make both Courts reconsider their
respective stand in the decision and the resolution that spelled disaster for
his client cannot be anything but pure contumely for said tribunals.
It is manifest that respondent del mar has scant respect for the two highest
court of the hand when on the flimsy ground of alleged error in deciding a
case, he proceeded to challenge the integrity of both Courts by claiming that
they knowingly rendered unjust judgment. In short, his allegation is that they
acted with intent and malice, if not with gross ignorance of the law, in
disposing of the case of his client.
xxx xxx xxx
. . . To those who are in the practice of law and those who in the future will
choose to enter this profession. We with to point to this case as a reminder
for them to imprint in their hearts and minds that an attorney owes it to himself
to respect the courts of justice and its officers as a fealty for the stability of
our democratic institutions.: (60 SCRA at 242-247; italic supplied)
2. In Surigao Mineral Reservation Board v. Cloribel, 46 four (4)
members of the bar, acting as counsels for MacArthur International Minerals
Company were required by this Court to explain certain statements made in
MacArthur's third Motion for Reconsideration:
"d. ' . . .; and the Supreme Court has overlooked the applicable law
due to the misrepresentation and obfuscation of the petitioners' counsel.'
(Last sentence, par. 1, Third Motion for Reconsideration dated Sept. 10,
1968).
e. '. . . Never has any civilized democratic tribunal ruled that such a
gimmick (referring to the "right to reject any and all bids") can be used by
vulturous executives to cover and excuse losses to the public, a government
agency or just plain fraud . . . and it is thus difficult, in the light of our
upbringing and schooling, even under may of the incumbent justices, that the
Honorable supreme Court intends to create a decision that in effect does
Page 39
precisely that in a most absolute manner.' (Second sentence, par. 7, Third
Motion for Reconsideration dated Sept. 10, 1968)." (31 SCRA at 6)
They were also asked to explain the statements made in their Motion to inhibit
filed on 21 September 1968 asking —
"Mr. Chief Justice Roberto Concepcion and Mr. Justice Fred Ruiz Castro to
inhibit themselves from considering, judging and resolving the case or any
issue or aspect thereof retroactive to January 11, 1967. The motion charges
'[t]hat the brother of the Honorable Associate Justice Castro is a vice-
president of the favored party who is the chief beneficiary of the false,
erroneous and illegal decision dated January 31, 1968' and the ex-parte
preliminary injunction rendered in the above entitled case, the latter in effect
prejudging and predetermining this case even before the joining of an issue.
As to the Chief Justice, the motion states '[t]hat the son of the Honorable
Chief Justice Roberto to Conception was given a significant appointment in
the Philippine Government by the President a short time before the decision
of July 31, 1968 was rendered in this case.' The appointment referred to was
as secretary of the newly-created Board of Investments. The motion presents
a lengthy discourse on judicial ethics, makes a number of side comments
projecting what is claimed to be the patent wrongfulness of the July 31, 1968
decision. It enumerates 'incidents' which, according to the motion, brought
about respondent MacArthur's belief that 'unjudicial prejudice' had been
caused it and that there was 'unjudicial favoritism' in favor of 'petitioners, their
appointing authority and a favored party directly benefited by the said
decision.'" (31 SCRA at 6-7)
Another attorney entered his appearance as new counsel for MacArthur and
filed a fourth Motion for Reconsideration without leave of court, which Motion
contained the following paragraphs:]
"4. The said decision is illegal because it was penned by the
Honorable Chief Justice Roberto Concepcion when in fact he was outside
the borders of the Republic of the Philippines at the time of the Oral Argument
of the above-entitled case — which condition is prohibited by the new Rules
of Court _ Section 1, Rule 51, and we quote" '
Justices; who may take part. — . . . Only those members present when any
matter is submitted for oral argument will take part in its consideration and
adjudication . . .' This requirement is especially significant in the present
instance because the member who penned the decision was the very
member who was absent for approximately four months or more. This
provision also applies to the Honorable Justices Claudio Teehankee and
Antonio Barredo.
xxx xxx xxx
6. That if the respondent MacArthur International Minerals
Company abandons its quest for justice in the judiciary of the Philippine
Government, it will inevitably either raise the graft and corruption of Philippine
Government Officials in the bidding of May 12, 1965, required by the Nickel
law to determine the operator of the Surigao nickel deposits, the World Court
on grounds of deprivation of justice and confiscation or property and/or to the
United States Government either its executive or judicial branches or both,
on the grounds of confiscation of respondent's proprietary vested rights by
the Philippine Government without either compensation or due process of
law — and invoking the Hickenlooper Amendment requiring the cutting off of
all aid and benefits to the Philippine Government, including the sugar price
premium, amounting to more than fifty million dollars annually, until restitution
or compensation is made." (31 SCRA at 10-11)
Finding their explanations unsatisfactory, the Court, speaking through Mr.
Justice Sanchez, held three (3) attorneys guilty of contempt:
"1. We start with the case of Atty. Vicente L. Santiago. In his third
motion for reconsideration, we indeed, find language that is not to be
expected of an officer of the courts. He pictures petitioners as 'vulturous
executives.' He speaks of this Court as a 'civilized, democratic tribunal,' but
by innuendo would suggest that it is not.
In his motion tom inhibit, his first paragraph categorizes our decision of July
31, 1968 as 'false, erroneous and illegal' in a presumptuous manner. He then
charges that the ex parte preliminary injunction we issued in this case
prejudiced and predetermined the case even before the joining of an issue.
He accuses in a reckless manner two justices of this Court for being
interested in the decision of this case: Associate Justice Fred Ruiz Castro,
because his brother is the vice president of the favored party who is the chief
beneficiary of the decision, and Chief Justice Roberto Concepcion, whose
son was appointed secretary of the newly-created Board of Investments, 'a
significant appointment in the Philippine Government by the President, a
shortime before the decision of July 31 1968 was rendered.' In this backdrop,
he proceeds to state that 'it would seem that the principles thus established
[the moral and ethical guidelines for inhibition of any judicial authority] by the
Honorable Supreme Court should removed conditions have been known to
create favoritism, only to conclude that there is no reason for a belief that the
conditions obtaining in the case of the Chief Justice and justice Castro 'would
be less likely to engender favoritism and prejudice for or against a particular
cause or party.' Implicit in this at least is that the Chief Justice and Justice
Castro are insensible to delicadeza, which could make their actuation
suspect. He makes it plain in the motion that the Chief Justice and Justice
Castro not only were not free from the appearance of impropriety but did
arouse suspicion that their relationship did affect their judgment. He appoints
out that courts must be above suspicion at all times like Ceasar's wife, warns
that loss of confidence for the Tribunal; or a member thereof should not be
allowed to happen in our country, 'although the process has already begun.'
xxx xxx xxx
What is disconcerting is that Atty. Santiago's accusations have no basis in
fact and in law. The slur made is not limited to the Chief Justice and Justice
Castro. It sweepingly casts aspersion on the whole court. For, inhibition is
also asked if, we repeated, 'any other justices who have received favors or
benefits directly or indirectly from any of the petitioners or any members of
any board-petitioner or their agents or principals, including the president.' The
absurdity of this posture is at once apparent. For one thing, the justices of
this Court are appointed by the President and in that sense may be
considered to have each received a favor from the President. Should these
justices inhibit themselves every time a case involving the Administration
crops up? Such a thought may not certainly be entertained. The
consequence thereof would be to paralyze the machinery of this Court. we
would in fact, be wreaking havoc on the tripartite system of government
operating in this country. Counsel is presumed to know this But why the
unfounded charge? There is the not-too-well concealed effort on the part of
a losing litigant's attorney to downgrade this Court.
The mischief that system from all of the foregoing gross disrespect is easy to
discern. Such disrespect detracts much from the dignity of a court of justice.
Decidedly not an expression of faith, councel's words are intended to create
an atmosphere of distrust, of disbelief.
xxx xxx xxx
The precepts, the teachings, the injunctions just recited are not unfamiliar to
lawyers. And yet, this Court finds in the language of Atty. Santiago a style
that undermines and degrades the administration of justice. The stricture in
Section 3 (d) of Rule 71 of the Rules — against improper conduct tending to
degrade the administration of justice — is thus transgressed. Atty. Santiago
is guilty of contempt of court.
xxx xxx xxx
Third. The Motion contained an express threat to take the case to the world
Court and/or the United States government. It be member that respondent
MacArthur at that time was still trying to overturn the decision of this Court of
July 31, 1968. In doing so, unnecessary statements were injected. More
specifically, the motion announced that MacArthur 'will inevitably . . . raise
the graft and corruption of [the] Philippine government officials in the bidding
of May 12, 1965 . . . to the world Court' and would invoke 'the Hickenlooper
Amendment requiring the cutting off of all aid and benefits to the Philippine
Government, including the sugar price premium, amount to more than fifty
million dollars annually . . .'
This is a clear attempt to influence or bend the mind of this Court to decide
the case' in its favor. A notice of appeal to the World Court has even been
embodied in Meads' return. There is a gross inconsistency between the
appeal and the move to reconsider the decision. An appeal from a decision
presupposes that a party has already abandoned any move to reconsider
that decision. And yet, it would appear that the appeal to the World Court is
Page 40
being dangled as threat to effect a change of there decision of this Court.
Such act has no aboveboard explanation.
xxx xxx xxx
The dignity of the court, experience teaches, can never be protected where
infraction of ethics meets with complacency rather than punishment. The
people should not be given cause to break faith with the belief that a judge is
the epitome of honor amongst men. To preserve its dignity, a court of justice
should not yield to the assaults of disrespect. Punctilio of honor, we prefer to
think, is standard of behavior so desirable in a lawyer pleading as cause
before a court of justice." (31 SCRA at 13-23; italics supplied)
3. In In re Almacen, supra, Atty. Vicente Raul Almacen, in protest
against what he asserted was "a great injustice committed his client by the
Supreme Court," filed a Petition to Surrender Lawyer's Certificate of Title. He
alleged that his client was deeply aggrieved by this Court's "unjust judgment,"
and had become "one of the sacrificial victims before the altar of hypocrisy,"
saying that "justice as administered by the presents members of the Supreme
Court [was] not only blind, but also deaf and dumb." Atty. Almacen vowed to
argue the cause of his client "in the people's forum" so that "the people may
know of this silent injustice committed by this Court" and that "whatever
mistakes, wrongs and injustices that were committed [may] never be
repeated." Atty. Almacen released to the press the contents of his Petition
and on 26 September 1967, the "Manila Times" published statements
attributed to him as follows:
"Vicente Raul Almacen, in an unprecedented petition, said he did not expose
the tribunal's unconstitutional and obnoxious' practice of arbitrarily denying
petitions or appeals without any reason.
Because of the tribunal's 'short-cut justice.' Almacen deplored, his client was
condemned to pay P120, 000, without knowing why he least the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this petition,
'where our Supreme Court is composed of men who are calloused to our
pleas of justice, who ignore without reason their own applicable decisions
and commit culpable violations of the Constitution with impunity.'
xxx xxx xxx
He expressed the hope that by divesting himself of his title by which he earns
his living, the present members of the Supreme Court 'will become
responsible to all cases brought to, its attention without discrimination, and
will purge itself of those unconstitutional and obnoxious "lack of merit" or
denied resolutions.'" (31 SCRA 1t 565-566; italics supplied)
Atty. Almacen was required by this Court to show cause why disciplinary
action should not be taken against hi. His explanation which in part read:
"xxx xxx xxx
The phrase, Justice is blind is symbolized in paintings that can be found in
all courts and government offices. We have added only two more symbols,
that it is also deaf and dumb. Deaf in the sense that no members of this Court
has ever heard our cries for charity, generosity, fairness, understanding,
sympathy and for justice; dumb in the sense, that inspire of or beggings,
supplications, and pleadings to give us reasons why our appeals has been
DENIED, not one word was spoken or given . . . We refer to no human defect
or ailment in the above statement. WE only described the impersonal state
of things and nothing more.
xxx xxx xxx
As we have sated, we have lost our faith and confidence in the members of
this Court and for which reason we offered to surrender our lawyer's
certificate, IN TRUST ONLY. Because what has been lost today may be
regained tomorrow. As the offer was intended as our self-imposed sacrifice,
then we alone may decide as to when we must end our self-sacrifice. If we
have to choose between forcing ourselves to have faith an confidence in the
members of then Court but disregard our Constitution and to uphold the
Constitution and be condemned by the members of this Court, there is no
choice we must uphold the latter." (31 SCRA at 572; italics supplied)
was found by the Court to be "undignified and cynical" and rejected. The
Court indefinitely suspended Almacen from the practice of law holding
through Mr. Justice Fred Ruiz Castro, that Almacen had exceeded the
boundaries of "fair criticism."
4. In Paragas v. Cruz, 47 counsel, whose Petition for Certiorari was
dismissed by this Court, made the following statements in his Motion for
Reconsideration:
"The petitioner respectfully prays for a reconsideration of the resolution of
this Honorable Court dated April 20, 1965 on the ground that it constitutes a
violation of Section 14 of Rule 112 of the Rules of Court promulgated by this
very Hon. Supreme Court, and on the further ground that is likewise a
violation of the most important right in the bill of Rights of the Constitution of
the Philippines, a culpable violation which is a ground for impeachment.
. . . The rule of law in a democracy should always be upheld and protected
by all means, because the rule of law creates and preserves peace and order
and gives satisfaction and contentment to all concerned. But when the laws
and the rules are violated, the victims resort, sometimes, to armed force and
to the ways of the cave-men! We do not want Verzosa and Reyes repeated
again and again, killed in the premises of the Supreme Court and in those of
the City Hall of Manila. Educated people should keep their temper under
control at all times! But justice should be done to all concerned to perpetuate
the very life of Democracy on the face of the earth.'" (14 SCRA 1t 810; italics
supplied)
The Court considered the above statements as derogatory to the dignity of
the Court and required counsel to show cause why administrative action
should not be taken against him. Counsel later explained that he had merely
related factual events (i.e., the killing of Verzosa and Reyes) and to express
his desire to avoid repetition of such acts. The Court, through Mr. Justice
J.B.L. Reyes, found these explanations unsatisfactory and the above
statements contumacious:
". . . The expressions contained in the motion fore reconsideration . . . are
plainly contemptuous and disrespectful, and reference to the recent killing of
two employees is but a covert threat upon the members of the Court. . . That
such treats and disrespectful language contained in a pleading filed in courts
are constitutive of direct contempt has been repeatedly decided(Salcedo vs.
Hernandez, 61 Phil,. 724; People vs. Venturanza, 52 Off. Gaz. 769; Medina
vs. Rivera, 66 Phil. 151; De Joya vs. Court of First Instance of Rizal , L-9785,
September 19, 1956; Sison vs. Sandejas, L-9270, April 29, 1959; Lualhati vs.
Albert, 57 Phil. 86). What makes the present case more deplorable is that the
guilty party is a member of the bar; for, as remarked in People vs. Carillo, 77
Phil. 580 —
'Counsel should conduct himself towards the judges who try his cases with
that courtesy all have a right to expect. As an officer of the court, it is his
sworn and moral duty to help build and not destroy unnecessarily that high
esteem and regard towards the courts so essential to the proper
administration of justice.'
It is right and plausible that an attorney in defending the cause and rights of
his client, should do so with all the fervor and energy of which he is capable,
but it is not, and ever will be so, for him to exercise said by resorting to
intimidation or proceeding without the propriety and respect which the dignity
of the courts require. (Salcedo vs. Hernandez, [In re Francisco], 61 Phil. 729)"
(14 SCRA at 811-812; italics supplied)
5. In In re Sotto, 48 a newspaper reporter, Mr. Angel Parazo,
invoking the Press Freedom Law, refused to divulge the source of the news
item which carried his by-line and was sent to jail for so refusing. Atty. Vicente
Sotto, a senator and author of said law, caused the publication of the
following item in a number of daily newspapers in Manila:
"As author of the Press Freedom Law (Republic Act No. 53), interpreted by
the Supreme Court in the case of Angel Parazo, reported of a local daily, who
now has suffer 30 days imprisonment, for his refusal to divulge the source of
a news published in his paper, I regret to say that our high Tribunal has not
only erroneously interpreted said law, but that it is once more putting in
evidence the incompetency or narrow mindedness of the majority of its
members. In the wake of so many blunders and injustices deliberately
committed during these last years, I believe that the only remedy to put an
end to so much evil, is to change the members of the supreme Court. To this
effect, I announce that one of the first measures, which I will introduce in the
Page 41
coming congressional sessions, will have as its object the complete
reorganization of the supreme Court. As it is now constituted, the Supreme
Court of today constitutes a constant peril to liberty and democracy. It need
be said loudly,, very loudly, so that even the deaf may hear: The supreme
Court of today is a far cry from the impregnable bulwark of justice of those
memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and
other learned jurists who were the honor and glory of the Philippine
Judiciary." (82 Phil. at 597-598; italics supplied)
In finding Atty. Sotto in contempt, despite his avowals of good faith his
invocation of the constitutional guarantee of free speech and in requiring to
show why he should not be disbarred, the Court, through Mr. Justice Feria,
said —
"To hurl the false charged that this Court been for the last years committing
deliberately 'so many blunders and injustices,' that is to say, that it has been
deciding in favor of one party knowing that the law and justice is on the part
of the adverse party and not on the one in whose favor the decision was
rendered, in may cases decided during the last years, would tend necessarily
to undermine the confidence of the people in the honesty and integrity of the
members of this Court, and consequently to lower and degrade the
administration of justice by this Court. The Supreme Court of the Philippine
is, under the Constitution, the last bulwark to which the filipino people may
repair to obtain relied for their grievances or protection of their rights when
these are trampled upon, and if the people lose their confidence in the
honesty and integrity of the members of this court and believe that they
cannot expect justice therefrom, they might be driven to take the law into their
hands, and disorder and perhaps chaos might be the result. As a member of
the bar and an officer of the courts Atty. Vicente Sotto, like any other, is in
duty bound to uphold the dignity and authority of this Court, to which he owes
fidelity according to the oath he has taken as such attorney, and not to
promote distrust in the administration of justice. Respect to the courts
guarantees the stability of other institutions, without such guaranty would be
resting on a very shaky foundation." (82 Phil. at 601-602; italics supplied)
6. In Salcedo v. Hernandez, 49 Atty. Vicente Francisco filed a
Motion before the supreme Court which contained the following paragraph
(in translation:
"We should like frankly and respectfully to make it of record that the resolution
of this court, denying our motion for reconsideration is absolutely erroneous
and constitutes an outrage to the rights of the petitioner Felipe Salcedo and
a mockery of the popular will expressed at the polls in the municipality of
Tiaong, Tayabas. We wish to exhaust all the means within our power in order
that this error may be corrected by the very court which has committed it,
because we should now want some citizen. particularly some voter of the
municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as
he has a right to do, the judicial outrage of which the herein petitioner has
been the victim, and because it is pour utmost desire to safeguard the
prestige of this honorable court and of each and very member thereof in the
eyes of the public. But, at the same time we wish to state sincerely that
erroneous decisions like these, which the affected party and his thousands
of voters will necessarily consider unjust, increase the proselytes of
sakdalism' and make the public lose confidence in the administration of
justice." (61 Phil. at 726; italics supplied)
When required by the Court to show cause why he should not be declared in
contempt, Atty. Francisco respondent by saying that it was not contempt to
tell the truth. examining the statement made above, the Court held:
'. . . [they] disclose, in the opinion of this court, an inexcusable disrespect of
the authority of the court and an intentional contempt of its dignity, because
the court is thereby charged with no less than having proceeded in utter
disregard of the laws, the rights of the parties, and of the untoward
consequences, or with having abused its power and mocked and flouted the
rights of Attorney Vicente J. Francisco's client, because the acts of outraging
and mocking from which the words 'outrage' and mockery' used therein are
derived, means exactly the same as all these, according to the Dictionary of
the Spanish Language published by the Spanish Academy (Dictionary of the
Spanish Language, 15th ed., pages 132-513).
The insertion of the phrases in question in said motion of Attorney Vicente J.
Francisco, for may years a member of the Philippine bar, was either justified
nor in the least necessary, because in order to call the attention of the court
in a special way to the essential points relied upon in his argument and to
emphasize the force thereof, the many reasons stated in his said motion were
sufficient and the phrases in question were superfluous. In order to appeal to
reason and justice, it is highly improper and amiss to make trouble and resort
to, threats, as Attorney Vicente J. Francisco has done, because both means
are annoying and good practice can ever sanction them by reason of their
natural tendency to disturb and hinder the free exercise of serene and
impartial judgment, particularly in judicial matters, in the consideration of
question submitted for resolution.
There is no question that said paragraph of Attorney Vicente Francisco's
motion contains a more or less veiled threat to the court because it is
insinuated therein, after the author shows the course which the voters of
Tiaong should follow in case he fails in his attempt, that they will resort to the
press for the purpose of denouncing, what he claim to be judicial outrage of
which his client has been victim; and because he states in a threatening
manner with the intention of predisposing the mind of the reader against the
court, thus creating an atmosphere of prejudices against it in order to make
it odious in the public eye, that decisions of the nature of that referred to in
his motion to promote distrust in the administration of justice an increase the
proselytes of sakdalism, a movement with seditious and revolutionary
tendencies the activities of which, as is of public knowledge, occurred in this
country a few days ago. This cannot mean otherwise than contempt of the
dignity of the court and disrespect of the authority thereof on the part of
Attorney Vicente J. Francisco, because he presumes that the court is so
devoid of the sense of justice that, if he did not resort to intimidation, it would
maintain its error notwithstanding the fact that it may be proven,, with good
reasons, that it has acted erroneously.
As a member of the bar and an officer of this court, Attorney Vicente J.
Francisco], as any attorney, is in duty bound to uphold its dignity and authority
and to defend its integrity, not only because it has conferred upon him the
high privilege, not a right (Malcolm, Legal ethics, 158 and 160), of being what
he now is: a priest of justice (In re Thatcher, 80 Ohio St., Rep., 492, 669), but
also because in so doing, he neither creates nor promotes distrust in the
administration of justice, and prevents anybody from harboring and
encouraging discontent which, in many cases, is the source of disorder, thus
undermining the foundation upon which rests that bulwark called judicial
power to which those who are aggrieved turn for protection and relief." (61
Phil. at 727-728; italics supplied)
It should not be supposed that the six (6) cases above discussed exhaust our
case law on this matter. In the following cases, among others, the supreme
Court punished for contempt or administratively disciplined lawyers who had
made statements not very different from those made in the cases discussed
above:
1) In re Wenceslao Laureta, 148 SCRA 382 (1987);
2) Borromeo v. Court of Appeals, 87 SCRA 67 (1978);
3) Rheem of the Philippines v. Ferre, 20 SCRA 441 (1967);
4) Malolos v. Reyes, 1 SCRA 559 (1961);
5) De Joya, et al. v. Court of First Instance of Rizal, Pasay City
Branch, 99 Phil. 907 (1956);
6) People v. Venturanza, et al., 98 Phil. 211 (1956);
7) In re Suzano A. Velasquez, per curiam Resolution (unreported),
Promulgated 29 April 1955;
8) Cornejo v. Tan, 85 Phil. 772 (1950);
9) People v. Carillo, 77 Phil. 572 (1946);
10) Intestate Estate of Rosario Olba; Contempt Proceedings against
Antonio Franco, 67 Phil. 312 (1939); and
11) Lualhati v. Albert, 57 Phil. 86 (1932).
Considering the kinds of statements of lawyers discussed above which the
Court has in the past penalized as contemptuous or as warranting application
of disciplinary sanctions, this Country is compelled to hold that the statements
here made by respondent Gonzalez clearly constitute contempt and call for
the exercise of the disciplinary authority of the Supreme Court. Respondent's
statements, especially the charge that the Court deliberately rendered an
Page 42
erroneous and unjust decisions in the Consolidated Petitions, necessarily
implying that the justices of this Court betrayed their oath of
office, merely to wreak vengeance upon the respondent here, constitute the
grossest kind of disrespect for the Court. Such statements ever clearly
debase and degrade the supreme Court and, through the Court, the entire
system of administration of justice in the country. That respondent's baseless
charges have had some impact outside the internal world of subjective intent,
is clearly demonstrated by the filing of a complaint for impeachment of
thirteen (13) out of the then fourteen (14) incumbent members of this Court,
a complaint the centerpiece of which is a repetition of the appalling claim of
respondent that this Court deliberately rendered a wrong decision as an act
of reprisal against the respondent.
IV
The principal defense of respondent defense of respondent Gonzalez is that
he was merely exercising his constitutional right of free speech. He also
invokes the related doctrines of qualified privileged communications fair
criticism in the public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of free
speech. No one seeks to deny him that right, least of all this Court. What
respondent seems unaware of is that freedom of speech and of expression,
like all constitutional freedoms, is not absolute and that freedom of
expression needs on occasion to be adjusted to and accommodated with the
requirements of equally important public interest. One of these fundamental
public interests is the maintenance of the integrity and orderly functioning of
the administration of justice. There is bo antinomy between free expression
and the integrity of the system of administering justice. For the protection and
maintenance of freedom of expression itself can be secured only within the
context of a functioning and orderly system of dispensing justice, within the
context, in other words, of viable independent institutions for delivery of
justice which are accepted by the general community. As Mr. Justice
Frankfurter put it:
". . . A free press is not to be preferred to an independent judiciary, nor an
independent judiciary ro a free press. Neither has primacy over the other;
both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary
through which that freedom may, if necessary, be vindicated. And one of the
potent means for assuring judges their independence is a free press." 50
Mr. Justice Malcolm of this Court expressed the same thought in the
following:
"The Organic Act wisely guarantees freedom of speech and press. This
constitutional right must be protected in its fullest extent. The Court has
heretofore given evidence of its tolerant regard for charges under the Libel
Law which come dangerously close to its violation. We shall continue in this
chosen path. The liberty of the citizens must be preserved in all of its
completeness. But license or abuse of liberty of the press and of the citizens
should not be confused with liberty in its true sense. As important as is the
maintenance of unmuzzled press and the free exercise of the rights of the
citizens is the maintenance of the independence of the Judiciary. Respect for
the Judiciary cannot be had if persons are privileged to scorn a resolution of
the court adopted for good purposes, and if such persons are to be permitted
by subterranean means to diffuse inaccurate accounts of confidential
proceedings to the embarrassment of the parties and the courts." 51 (Italics
supplied)
Only slightly (f at all ) less important is the public interest in the capacity of
the Court effectively to prevent and control professional misconduct on the
part of lawyers who are, first and foremost, indispensable participants in the
task of rendering justice to every man. Some courts have held, persuasively
it appears to us, that a lawyer's right of free expression may have to be more
limited than that of a layman. 52
It is well to recall that respondent Gonzalez, apart from being a lawyer and
an officer of the court, is also a Special Prosecutor who owes duties of fidelity
and respect to the Republic and to this Court as the embodiment and the
repository of the judicial power in the government of the republic. The
responsibility of the respondent "to uphold the dignity and authority of this
Court" and "not to promote distrust in the administration of justice "53 is
heavier that of a private practicing lawyer.
Respondent Gonzalez claims to be and he is, of course, entitled to criticize
the rulings of this court, to point out where he feels the Court may have lapsed
into error. Once more, however, the right of criticism is not unlimited. Its limits
were marked out by Mr. Justice Castro in In re Almacen which are worth
noting:
"But it is the cardinal condition of all such criticism that it shall be bona fide,
and shall not spill over the walls of decency and propriety. A wide chasm
exists between fair criticism, on the one hand, and abuse and slander of
courts and the judges thereof, on the other. Intemperate and unfair criticism
is a gross violation of the duty of respect to courts. It is such a misconduct
that subjects a lawyer to disciplinary action."
The lawyer's duty to render respectful subordination to the courts is essential
to the orderly administration of justice. Hence, in the assertion of their clients'
right, lawyers — even those gifted with superior intellect — are enjoined to
rein up their tempers.
. . . "54 (Italics supplied)
The instant proceeding is not addressed to the fact that respondent has
criticized the Court; it is addressed rather to the nature of that criticism or
comment and the manner in which it was carried out.
Respondent Gonzalez disclaims an intent to attack and denigrate the court.
The subjectivities of the respondent are irrelevant so far as characterization
of his conduct or misconduct is concerned. He will not, however, be allowed
to disclaim the natural and plain import of his words and acts. 55 It is, upon
the other hand, not irrelevant to point out that respondent offered no apology
in his two (2) explanations and exhibited no repentance. 56
Respondent Gonzalez also defends himself contending that no injury to the
judiciary has been shown, and points to the fact that this Court denied his
Motion for reconsideration of its per curiam Decision of 27 April 1988 and
reiterated and amplified that Decision in its Resolution of 19 May 1988. In the
first place, proof of actual damage sustained by a court or the judiciary in
general is not essential for a finding of contempt or for the application of the
disciplinary authority of the Court. Insofar as the Consolidated Petitions are
concerned this Court after careful review of the bases of its 27 April 1988
Decision, denied respondent's Motion for reconsideration thereof and
rejected the public pressures brought to bear upon this Court by the
respondent through his much publicized acts and statements for which he is
here being required to account. Obstructing the free and undisturbed
resolution of a particular case is not the only species of injury that the Court
has a right and a duty to prevent and redress. What is at stake in cases of
this kind is the integrity of the judicial institutions of the country in general and
of the Supreme Court in particular. Damage to such institutions might not be
quantifiable at a given moment in time but damage there will surely by if acts
like those of respondent Gonzalez are not effectively stopped and countered.
The level of trust and confidence of the general public in the courts, including
the court of last resort, is not easily measured; but few will dispute that a high
level of such trust and confidence is critical for the stability of democratic
government.
Respondent Gonzalez lastly suggest that punishment for contempt is not the
proper remedy in this case and suggests that the members of this Court have
recourse to libel suits against him. While the remedy of libel suits by individual
members of this Court may well be available against respondent Gonzalez,
such is by no means an exclusive remedy. Moreover, where as in the instant
case, it is not only the individual members of the Court but the Court itself as
an institution that has been falsely attacked, libel suits cannot be an adequate
remedy. 57
The Court concludes that respondent Gonzalez is guilty both of contempt of
court in facie curiae and of gross misconduct as an officer of the court and
member of the Bar.
ACCORDINGLY, the Court Resolved to SUSPEND Atty. Raul M. Gonzalez
from the practice of law indefinitely and until further others from this Court,
the suspension to take effect immediately.
Let copies of this Resolution be finished the Sandiganbayan, the
Ombudsman, the Secretary of Justice, the Solicitor General and the Court of
Page 43
Appeals for their information and guidance.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
Raul M. Gonzalez suspended from the practice of law indefinitely.
2004 RULES ON NOTARIAL PRACTICE
A.M. No. 02-8-13-SC: Rules on Notarial Practice of 2004
(August 1, 2004)
Qualifications of a Notary Public
1. Must be citizen of the Philippines
2. Must be over twenty-one (21) years of age
3. Must be a resident in the Philippines for at least one (1) year and
maintains a regular place of work or business in the city or
province where the commission is to be issued
4. Must be a member of the Philippine Bar in good standing with
clearances from the Office of the Bar Confidant of the Supreme
Court and the Integrated Bar of the Philippines
5. Must not have been convicted in the first instance of any crime
involving moral turpitude (Rule III, Section 1)
Jurisdiction and Term
A notary public may perform notarial acts in any place within the territorial
jurisdiction of the commissioning court for a period of two (2) years
commencing on the 1st day of January of the year in which the commissioning
is made UNLESS earlier revoked or the notary public has resigned according
to these Rules and the Rules of Court (Rule III, Section 11).
Powers and Limitations of Notaries Public
Powers
A notary public is empowered to do the following acts: (JAOSAC)
1. Acknowledgments;
2. Oaths and affirmations;
3. Jurats;
4. Signature witnessings;
5. Copy certifications; and
6. Any other act authorized by these Rules.
A notary public is authorized to certify the affixing of a signature
by thumb or other mark on an instrument or document presented
for notarization if:
1. The thumb or other mark is affixed in the presence of the notary
public and of two (2) disinterested and unaffected witnesses to
the instrument or document;
2. Both witnesses sign their own names in addition to the thumb or
other mark;
3. The notary public writes below the thumb or other mark: “Thumb
or Other Mark affixed by (name of signatory by mark) in the
presence of (names and addresses of witnesses) and
undersigned notary public”, and
4. The notary public notarizes the signature by thumb or other mark
through an acknowledgment, jurat or signature witnessing.
A notary public is authorized to sign on behalf of a person who is
physically unable to sign or make a mark on an instrument or
document if:
1. The notary public is directed by the person unable to sign or
make a mark to sign on his behalf;
2. The signature of the notary public is affixed in the presence of
two (2) disinterested and unaffected witnesses to the instrument
or document;
3. Both witnesses sign their own names;
4. The notary public writes below his signature: “Signature affixed
by notary in the presence of (names and addresses of person
and two (2) witnesses)”, and
5. The notary public notarizes his signature by acknowledgment or
jurat (Rule IV, Section 1).
Prohibitions
General Rule: A notary public shall not perform a notarial act outside
his regular place of work or business.
Exceptions: A notarial act may be performed at the request of the
parties in the following sites located within his territorial jurisdiction:
a. Public offices, convention halls and similar places where oaths of
office may be administered;
b. Public function areas in hotels and similar places for the signing
of instruments or documents requiring notarization;
c. Hospitals and medical institutions where a party to the instrument
or document is confined for treatment; and
d. Any place where a party to the instrument or document requiring
notarization is under detention.
A person shall not perform a notarial act if:
1. the person involved as signatory to the instrument or document-
a. Is not in the notary’s presence at the time of the notarization; and
b. Is not personally known to the notary public or otherwise
identified by the notary public through competent evidence of
identity as defined by these Rules (Rule IV, Section 2).
2. the certificate containing an information known or believed to be false;
and
3. he shall not affix an official signature or seal on a notarial certificate
that is incomplete (Rule IV, Section 5).
Disqualifications
A notary public is disqualified from performing a notarial if he:
1) Is a party to the instrument or document;
2) Will receive, as a direct or indirect result any commission, fee,
advantage, right, title, interest, cash, property, or other
consideration, except as provided that is to be notarized;
3) Is a spouse, common-law partner, ancestor, descendant, or
relative by affinity or consanguinity of the principal within the
fourth civil degree (Rule IV, Section 3).
When notary public may refuse to notarize even if appropriate fee is
tendered:
1) When the notary knows or has good reason to believe that
the notarial act or transaction is unlawful or immoral.
2) When the signatory shows a demeanor which engenders
in the mind of the notary public reasonable doubt as to the
former’s knowledge of the consequences of the transaction
requiring a notarial act.
3) If in the notary’s judgment, the signatory is not acting in
his/her own free will (Rule IV, Section 4).
4) If the document or instrument to be notarized is considered
as an improper document by these Rules.
NOTE: A blank or incomplete instrument or document OR an
instrument or document without appropriate notarial certification is
considered an Improper Instrument/Document (Rule IV, Section 6).
Notarial Certificates
Contents of the Concluding part of the Notarial Certificate:
Page 44
1) The name of the notary public as exactly indicated in the
commission;
 2) The serial number of the commission of the notary public;
3) The words “Notary Public” and the province or city where the
notary public is commissioned, the expiration date of the
commission and the office address of the notary public; and
4) The Roll of Attorneys’ number, the Professional Tax Receipt
number and the place and date of issuance thereof and the IBP
Membership number (Rule VIII, Section 2).
Revocation of Commission
The Executive Judge shall revoke a commission for any ground on which an
application for a commission may be denied.
In addition, the Executive Judge may revoke the commission of or impose
sanctions upon any notary public who:
1) Fails to keep a notarial register;
2) Fails to make the appropriate entry or entries in his notarial
register concerning his notarial acts;
3) Fails to send the copy of the entries to the Executive
Judge within the first ten (10) days of the month following;
4) Fails to affix to acknowledgments the date of expiration of
his commission;
5) Fails to submit his notarial register, when filled, to the
Executive Judge;
6) Fails to make his report, within a reasonable time, to the
Executive Judge concerning the performance of his
duties, as may be required by the Judge;
7) Fails to require the presence of the principal at the time of
the notarial act;
8) Fails to identify a principal on the basis of personal
knowledge or competent evidence;
9) Executes a false or incomplete certificate under Section 5,
Rule IV;
10) Knowingly performs or fails to perform any other act
prohibited or mandated by these Rules; and
11) Commits any other dereliction or act which in the judgment
of the Executive Judge constitutes good cause for the
revocation of the commission or imposition of
administrative sanction (Rule XI, Section 1).
Punishable Acts
The Executive Judge shall cause the prosecution of any person who:
1) Knowingly acts or otherwise impersonates a notary
public;
2) Knowingly obtains, conceals, defaces, or destroys
the seal, notarial register, or official records of a
notary public; and
Knowingly solicits, coerces, or in any way influences a notary public to
commit official misconduct (Rule XII, Section 1).
A.C. No. 5838. January 17, 2005]
SPOUSES BENJAMIN SANTUYO AND EDITHA SANTUYO,
complainants, vs. ATTY. EDWIN A. HIDALGO, respondent.
RESOLUTION
CORONA, J.:
In a verified complaint-affidavit dated September 18, 2001,[1] spouses
Benjamin Santuyo and Editha Santuyo accused respondent Atty. Edwin A.
Hidalgo of serious misconduct and dishonesty for breach of his lawyers oath
and the notarial law.
Complainants stated that sometime in December 1991, they purchased a
parcel of land covered by a deed of sale. The deed of sale was allegedly
notarized by respondent lawyer and was entered in his notarial register as
Doc. No. 94 on Page No. 19 in Book No. III, Series of 1991. Complainant
spouses averred that about six years after the date of notarization, they had
a dispute with one Danilo German over the ownership of the land. The case
was estafa through falsification of a public document.
During the trial of the case, German presented in court an affidavit executed
by respondent denying the authenticity of his signature on the deed of sale.
The spouses allegedly forged his notarial signature on said deed.[2]
According to complainants, respondent overlooked the fact that the disputed
deed of sale contained all the legal formalities of a duly notarized document,
including an impression of respondents notarial dry seal. Not being persons
who were learned in the technicalities surrounding a notarial act, spouses
contended that they could not have forged the signature of herein
respondent. They added that they had no access to his notarial seal and
notarial register, and could not have made any imprint of respondents seal
or signature on the subject deed of sale or elsewhere.[3]
In his answer[4] to the complaint, respondent denied the allegations against
him. He denied having notarized any deed of sale covering the disputed
property. According to respondent, he once worked as a junior lawyer at
Carpio General and Jacob Law Office where he was asked to apply for a
notarial commission. While he admitted that he notarized several documents
in that office, these, however, did not include the subject deed of sale. He
explained that, as a matter of office procedure, documents underwent
scrutiny by the senior lawyers and it was only when they gave their approval
that notarization was done. He claimed that, in some occasions, the
secretaries in the law firm, by themselves, would affix the dry seal of the junior
associates on documents relating to cases handled by the law firm.
Respondent added that he normally required the parties to exhibit their
community tax certificates and made them personally acknowledge the
documents before him as notary public. He would have remembered
complainants had they actually appeared before him. While he admitted
knowing complainant Editha Santuyo, he said he met the latters husband and
co-complainant only on November 5, 1997, or about six years from the time
that he purportedly notarized the deed of sale. Moreover, respondent
stressed that an examination of his alleged signature on the deed of sale
revealed that it was forged; the strokes were smooth and mild. He suspected
that a lady was responsible for forging his signature.
To further refute the accusations against him, respondent stated that, at the
time the subject deed of sale was supposedly notarized, on December 27,
1991, he was on vacation. He surmised that complainants must have gone
to the law office and enticed one of the secretaries, with the concurrence of
the senior lawyers, to notarize the document. He claimed he was a victim of
a criminal scheme motivated by greed.
The complaint was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. In a report[5] it submitted to the
Court, the IBP noted that the alleged forged signature of respondent on the
deed of sale was different from his signatures in other documents he
submitted during the investigation of the present case.[6] However, it ruled
that respondent was also negligent because he allowed the office secretaries
to perform his notarial functions, including the safekeeping of his notarial dry
seal and notarial register.[7]It thus recommended:
WHEREFORE[,] in view of the foregoing, it is respectfully recommended that
respondents commission as notary public be revoked for two (2) years if he
is commissioned as such; or he should not be granted a commission as
notary public for two (2) years upon receipt hereof.[8]
After going over the evidence submitted by the parties, complainants did not
categorically state that they appeared before respondent to have the deed of
sale notarized. Their appearance before him could have bolstered this
allegation that respondent signed the document and that it was not a forgery
as he claimed. The records show that complainants themselves were not
sure if respondent, indeed, signed the document; what they were sure of was
the fact that his signature appeared thereon. They had no personal
knowledge as well as to who actually affixed the signature of respondent on
the deed.
Furthermore, complainants did not refute respondents contention that he only
met complainant Benjamin Santuyo six years after the alleged notarization of
Page 45
the deed of sale. Respondents assertion was corroborated by one Mrs. Lyn
Santy in an affidavit executed on November 17, 2001[9] wherein she stated
that complainant Editha Santuyo had to invite respondent to her house on
November 5, 1997 to meet her husband since the two had to be introduced
to each other. The meeting between complainant Benjamin Santuyo and
respondent was arranged after the latter insisted that Mr. Santuyo personally
acknowledge a deed of sale concerning another property that the spouses
bought.
In finding respondent negligent in performing his notarial functions, the IBP
reasoned out:
xxx xxx xxx.
Considering that the responsibility attached to a notary public is sensitive
respondent should have been more discreet and cautious in the execution of
his duties as such and should not have wholly entrusted everything to the
secretaries; otherwise he should not have been commissioned as notary
public.
For having wholly entrusted the preparation and other mechanics of the
document for notarization to the secretary there can be a possibility that even
the respondents signature which is the only one left for him to do can be done
by the secretary or anybody for that matter as had been the case herein.
As it is respondent had been negligent not only in the supposed notarization
but foremost in having allowed the office secretaries to make the necessary
entries in his notarial registry which was supposed to be done and kept by
him alone; and should not have relied on somebody else.[10]
WHEREFORE, respondent Atty. Edwin A. Hidalgo is hereby found GUILTY
of negligence in the performance of his duties as notary public and is hereby
SUSPENDED from his commission as a notary public for a period of two
years, if he is commissioned, or if he is not, he is disqualified from an
appointment as a notary public for a period of two years from finality of this
resolution, with a warning that a repetition of similar negligent acts would be
dealt with more severely.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, Carpio-Morales, and Garcia,
JJ., concur.
A.C. No. 5864 April 15, 2005
ARTURO L. SICAT, Complainant,
vs.
ATTY. GREGORIO E. ARIOLA, JR., respondent.
RESOLUTION
PER CURIAM:
In an affidavit-complaint,1 complainant Arturo L. Sicat, a Board Member of
the Sangguniang Panglalawigan of Rizal, charged respondent Atty. Gregorio
E. Ariola, the Municipal Administrator of Cainta, Rizal, with violation of the
Code of Professional Responsibility by committing fraud, deceit and
falsehood in his dealings, particularly the notarization of a Special Power of
Attorney (SPA) purportedly executed by a one Juanito C. Benitez. According
to complainant, respondent made it appear that Benitez executed the said
document on January 4, 2001 when in fact the latter had already died on
October 25, 2000.
He alleged that prior to the notarization, the Municipality of Cainta had
entered into a contract with J.C. Benitez Architect and Technical
Management, represented by Benitez, for the construction of low-cost
houses. The cost of the architectural and engineering designs amounted to
P11,000,000 and two consultants were engaged to supervise the project. For
the services of the consultants, the Municipality of Cainta issued a check
dated January 10, 2001 in the amount of P3,700,000, payable to J.C. Benitez
Architects and Technical Management and/or Cesar Goco. The check was
received and encashed by the latter by virtue of the authority of the SPA
notarized by respondent Ariola.
Complainant further charged respondent with the crime of falsification
penalized under Article 171 of the Revised Penal Code by making it appear
that certain persons participated in an act or proceeding when in fact they did
not.
In his Comment,2 respondent explained that, as early as May 12, 2000,
Benitez had already signed the SPA. He claimed that due to inadvertence,
it was only on January 4, 2001 that he was able to notarize it. Nevertheless,
the SPA notarized by him on January 4, 2001 was not at all necessary
because Benitez had signed a similar SPA in favor of Goco sometime before
his death, on May 12, 2000. Because it was no longer necessary, the SPA
was cancelled the same day he notarized it, hence, legally, there was no
public document that existed. Respondent prayed that the complaint be
dismissed on the ground of forum-shopping since similar charges had been
filed with the Civil Service Commission and the Office of the Deputy
Ombudsman for Luzon. According to him, the complaints were later
dismissed based on findings that the assailed act referred to violations of the
implementing rules and regulations of PD 1594,3 PD 1445,4 RA 71605 and
other pertinent rules of the Commission on Audit (COA). He stressed that no
criminal and administrative charges were recommended for filing against
him.
In a Resolution dated March 12, 2003,6 the Court referred the complaint to
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation. On August 26, 2003, the IBP submitted its investigation
report:
x x x it is evident that respondent notarized the Special Power of Attorney
dated 4 January 2001 purportedly executed by Juanito C. Benitez long after
Mr. Benitez was dead. It is also evident that respondent cannot feign
innocence and claim that he did not know Mr. Benitez was already dead at
the time because respondent, as member of the Prequalification and Awards
Committee of the Municipality of Cainta, personally knew Mr. Benitez
because the latter appeared before the Committee a number of times. It is
evident that the Special Power of Attorney dated 4 January 2001 was part of
a scheme of individuals to defraud the Municipality of Cainta of money which
was allegedly due them, and that respondent by notarizing said Special
Power of Attorney helped said parties succeed in their plans.7
The IBP recommended to the Court that respondent's notarial commission
be revoked and that he be suspended from the practice of law for a period of
one year.8
After a careful review of the records, we find that respondent never disputed
complainant's accusation that he notarized the SPA purportedly executed by
Benitez on January 4, 2001. He likewise never took issue with the fact that
on said date, Benitez was already dead. His act was a serious breach of the
sacred obligation imposed upon him by the Code of Professional
Responsibility, specifically Rule 1.01 of Canon 1, which prohibited him from
engaging in unlawful, dishonest, immoral or deceitful conduct. As a lawyer
and as an officer of the court, it was his duty to serve the ends of justice,9 not
to corrupt it. Oath-bound, he was expected to act at all times in accordance
with law and ethics, and if he did not, he would not only injure himself and
the public but also bring reproach upon an honorable profession.10
In the recent case of Zaballero v. Atty. Mario J. Montalvan,11 where the
respondent notarized certain documents and made it appear that the
deceased father of complainant executed them, the Court declared the
respondent there guilty of violating Canon 10, Rule 10.01 of the Code of
Professional Responsibility.12 The Court was emphatic that lawyers
commissioned as notaries public should not authenticate documents unless
the persons who signed them are the very same persons who executed them
and personally appeared before them to attest to the contents and truth of
what are stated therein. The Court added that notaries public must observe
utmost fidelity, the basic requirement in the performance of their duties,
otherwise the confidence of the public in the integrity of notarized deeds and
documents will be undermined.
In the case at bar, the records show that Benitez died on October 25, 2000.
However, respondent notarized the SPA, purportedly bearing the signature
of Benitez, on January 4, 2001 or more than two months after the latter's
death. The notarial acknowledgement of respondent declared that Benitez
"appeared before him and acknowledged that the instrument was his free
and voluntary act." Clearly, respondent lied and intentionally perpetuated an
untruthful statement. Notarization is not an empty, meaningless and routinary
act.13 It converts a private document into a public instrument, making it
Page 46
admissible in evidence without the necessity of preliminary proof of its
authenticity and due execution.14
Neither will respondent's defense that the SPA in question was superfluous
and unnecessary, and prejudiced no one, exonerate him of accountability.
His assertion of falsehood in a public document contravened one of the most
cherished tenets of the legal profession and potentially cast suspicion on the
truthfulness of every notarial act. As the Municipal Administrator of Cainta, he
should have been aware of his great responsibility not only as a notary public
but as a public officer as well. A public office is a public trust. Respondent
should not have caused disservice to his constituents by consciously
performing an act that would deceive them and the Municipality of Cainta.
Without the fraudulent SPA, the erring parties in the construction project
could not have encashed the check amounting to P3,700,000 and could
not have foisted on the public a spurious contract
― all to the extreme prejudice of the very Municipality of which he was the
Administrator. According to the COA Special Task Force:
Almost all acts of falsification of public documents as enumerated in Article
171 in relation to Article 172 of the Revised Penal Code were evident in the
transactions of the Municipality of Cainta with J.C. Benitez & Architects
Technical Management for the consultancy services in the conduct of
Detailed Feasibility Study and Detailed Engineering Design of the Proposed
Construction of Cainta Municipal Medium Rise Low Cost Housing, in the
contract amount of P11,000,000. The agent resorted to misrepresentation,
manufacture or fabrication of fictitious document, untruthful narration of facts,
misrepresentation, and counterfeiting or imitating signature for the purpose
of creating a fraudulent contract. All these were tainted with deceit
perpetrated against the government resulting to undue injury. The first and
partial payment, in the amount of P3,700,000.00 was made in the absence
of the required outputs. x x x15
We need not say more except that we are constrained to change the penalty
recommended by the IBP which we find too light.
WHEREFORE, respondent Atty. Gregorio E. Ariola, Jr., is found guilty of
gross misconduct and is hereby DISBARRED from the practice of law. Let
copies of this Resolution be furnished the Office of the Bar Confidant and
entered in the records of respondent, and brought to the immediate attention
of the Ombudsman.
SO ORDERED.
RULE 1.01: A lawyer shall not engage in unlawful, dishonest, immoral
or deceitful conduct.
[A.C. No. 3319. June 8, 2000]
LESLIE UI, complainant, vs. ATTY. IRIS BONIFACIO, respondent.
DECISION
DE LEON, JR., J.:
Before us is an administrative complaint for disbarment against Atty. Iris
Bonifacio for allegedly carrying on an immoral relationship with Carlos L. Ui,
husband of complainant, Leslie Ui.
The relevant facts are:
On January 24, 1971 complainant Leslie Ui married Carlos L. Ui at the Our
Lady of Lourdes Church in Quezon City[1] and as a result of their marital
union, they had four (4) children, namely, Leilani, Lianni, Lindsay and Carl
Cavin, all surnamed Ui. Sometime in December 1987, however, complainant
found out that her husband, Carlos Ui, was carrying on an illicit relationship
with respondent Atty. Iris Bonifacio with whom he begot a daughter sometime
in 1986, and that they had been living together at No. 527 San Carlos Street,
Ayala Alabang Village in Muntinlupa City. Respondent who is a graduate of
the College of Law of the University of the Philippines was admitted to the
Philippine Bar in 1982.
Carlos Ui admitted to complainant his relationship with the respondent.
Complainant then visited respondent at her office in the later part of June
1988 and introduced herself as the legal wife of Carlos Ui. Whereupon,
respondent admitted to her that she has a child with Carlos Ui and alleged,
however, that everything was over between her and Carlos Ui. Complainant
believed the representations of respondent and thought things would turn out
well from then on and that the illicit relationship between her husband and
respondent would come to an end.
However, complainant again discovered that the illicit relationship between
her husband and respondent continued, and that sometime in December
1988, respondent and her husband, Carlos Ui, had a second child.
Complainant then met again with respondent sometime in March 1989 and
pleaded with respondent to discontinue her illicit relationship with Carlos Ui
but to no avail. The illicit relationship persisted and complainant even came
to know later on that respondent had been employed by her husband in his
company.
A complaint for disbarment, docketed as Adm. Case No. 3319, was then filed
on August 11, 1989 by the complainant against respondent Atty. Iris
Bonifacio before the Commission on Bar Discipline of the Integrated Bar of
the Philippines (hereinafter, Commission) on the ground of immorality, more
particularly, for carrying on an illicit relationship with the complainants
husband, Carlos Ui. In her Answer,[2] respondent averred that she met Carlos
Ui sometime in 1983 and had known him all along to be a bachelor, with the
knowledge, however, that Carlos Ui had children by a Chinese woman in
Amoy, China, from whom he had long been estranged. She stated that during
one of their trips abroad, Carlos Ui formalized his intention to marry her and
they in fact got married in Hawaii, USA in 1985[3]. Upon their return to Manila,
respondent did not live with Carlos Ui. The latter continued to live with his
children in their Greenhills residence because respondent and Carlos Ui
wanted to let the children gradually to know and accept the fact of his second
marriage before they would live together.[4]
In 1986, respondent left the country and stayed in Honolulu, Hawaii and she
would only return occasionally to the Philippines to update her law practice
and renew legal ties. During one of her trips to Manila sometime in June
1988, respondent was surprised when she was confronted by a woman who
insisted that she was the lawful wife of Carlos Ui. Hurt and desolate upon her
discovery of the true civil status of Carlos Ui, respondent then left for
Honolulu, Hawaii sometime in July 1988 and returned only in March 1989
with her two (2) children. On March 20, 1989, a few days after she reported
to work with the law firm[5] she was connected with, the woman who
represented herself to be the wife of Carlos Ui again came to her office,
demanding to know if Carlos Ui has been communicating with her.
It is respondents contention that her relationship with Carlos Ui is not illicit
because they were married abroad and that after June 1988 when
respondent discovered Carlos Uis true civil status, she cut off all her ties with
him. Respondent averred that Carlos Ui never lived with her in Alabang, and
that he resided at 26 Potsdam Street, Greenhills, San Juan, Metro Manila. It
was respondent who lived in Alabang in a house which belonged to her
mother, Rosalinda L. Bonifacio; and that the said house was built exclusively
from her parents funds.[6] By way of counterclaim, respondent sought moral
damages in the amount of Ten Million Pesos (Php10,000,000.00) against
complainant for having filed the present allegedly malicious and groundless
disbarment case against respondent.
In her Reply[7] dated April 6, 1990, complainant states, among others, that
respondent knew perfectly well that Carlos Ui was married to complainant
and had children with her even at the start of her relationship with Carlos Ui,
and that the reason respondent went abroad was to give birth to her two (2)
children with Carlos Ui.
During the pendency of the proceedings before the Integrated Bar,
complainant also charged her husband, Carlos Ui, and respondent with the
crime of Concubinage before the Office of the Provincial Fiscal of Rizal,
docketed as I.S. No. 89-5247, but the same was dismissed for insufficiency
of evidence to establish probable cause for the offense charged. The
resolution dismissing the criminal complaint against respondent reads:
Complainants evidence had prima facie established the existence of the
"illicit relationship" between the respondents allegedly discovered by the
complainant in December 1987. The same evidence however show that
respondent Carlos Ui was still living with complainant up to the latter part of
1988 and/or the early part of 1989.
It would therefore be logical and safe to state that the "relationship" of
respondents started and was discovered by complainant sometime in 1987
Page 47
when she and respondent Carlos were still living at No. 26 Potsdam Street,
Northeast Greenhills, San Juan, MetroManila and they, admittedly, continued
to live together at their conjugal home up to early (sic) part of 1989 or later
1988, when respondent Carlos left the same.
From the above, it would not be amiss to conclude that altho (sic) the
relationship, illicit as complainant puts it, had been prima facie established
by complainants evidence, this same evidence had failed to even prima facie
establish the "fact of respondents cohabitation in the concept of husband and
wife at the 527 San Carlos St., Ayala Alabang house, proof of which is
necessary and indispensable to at least create probable cause for the
offense charged. The statement alone of complainant, worse, a statement
only of a conclusion respecting the fact of cohabitation does not make the
complainants evidence thereto any better/stronger (U.S. vs. Casipong and
Mongoy, 20 Phil. 178).
It is worth stating that the evidence submitted by respondents in support of
their respective positions on the matter support and bolster the foregoing
conclusion/recommendation.
WHEREFORE, it is most respectfully recommended that the instant
complaint be dismissed for want of evidence to establish probable cause for
the offense charged.
RESPECTFULLY SUBMITTED.[8]
Complainant appealed the said Resolution of the Provincial Fiscal of Rizal to
the Secretary of Justice, but the same was dismissed [9] on the ground of
insufficiency of evidence to prove her allegation that respondent and Carlos
Ui lived together as husband and wife at 527 San Carlos Street, Ayala
Alabang, Muntinlupa, Metro Manila.
In the proceedings before the IBP Commission on Bar Discipline,
complainant filed a Motion to Cite Respondent in Contempt of the
Commission [10] wherein she charged respondent with making false
allegations in her Answer and for submitting a supporting document which
was altered and intercalated. She alleged that in the Answer of respondent
filed before the Integrated Bar, respondent averred, among others, that she
was married to Carlos Ui on October 22, 1985 and attached a Certificate of
Marriage to substantiate her averment. However, the Certificate of Marriage
[11] duly certified by the State Registrar as a true copy of the record on file in
the Hawaii State Department of Health, and duly authenticated by the
Philippine Consulate General in Honolulu, Hawaii, USA revealed that the date
of marriage between Carlos Ui and respondent Atty. Iris Bonifacio was
October 22, 1987, and not October 22, 1985 as claimed by respondent in her
Answer. According to complainant, the reason for that false allegation was
because respondent wanted to impress upon the said IBP that the birth of
her first child by Carlos Ui was within the wedlock.[12] It is the contention of
complainant that such act constitutes a violation of Articles 183[13] and 184[14]
of the Revised Penal Code, and also contempt of the Commission; and that
the act of respondent in making false allegations in her Answer and submitting
an altered/intercalated document are indicative of her moral perversity and
lack of integrity which make her unworthy to be a member of the Philippine
Bar.
In her Opposition (To Motion To Cite Respondent in Contempt),[15]
respondent averred that she did not have the original copy of the marriage
certificate because the same was in the possession of Carlos Ui, and that she
annexed such copy because she relied in good faith on what appeared on the
copy of the marriage certificate in her possession.
Respondent filed her Memorandum [16] on February 22, 1995 and raised the
lone issue of whether or not she has conducted herself in an immoral manner
for which she deserves to be barred from the practice of law. Respondent
averred that the complaint should be dismissed on two (2) grounds, namely:
(i) Respondent conducted herself in a manner consistent with the
requirement of good moral character for the practice of the legal profession;
and
(ii) Complainant failed to prove her allegation that respondent conducted
herself in an immoral manner.[17]
In her defense, respondent contends, among others, that it was she who was
the victim in this case and not Leslie Ui because she did not know that Carlos
Ui was already married, and that upon learning of this fact, respondent
immediately cut-off all her ties with Carlos Ui. She stated that there was no
reason for her to doubt at that time that the civil status of Carlos Ui was that
of a bachelor because he spent so much time with her, and he was so open
in his courtship.[18]
On the issue of the falsified marriage certificate, respondent alleged that it
was highly incredible for her to have knowingly attached such marriage
certificate to her Answer had she known that the same was altered.
Respondent reiterated that there was no compelling reason for her to make
it appear that her marriage to Carlos Ui took place either in 1985 or 1987,
because the fact remains that respondent and Carlos Ui got married before
complainant confronted respondent and informed the latter of her earlier
marriage to Carlos Ui in June 1988. Further, respondent stated that it was
Carlos Ui who testified and admitted that he was the person responsible for
changing the date of the marriage certificate from 1987 to 1985, and
complainant did not present evidence to rebut the testimony of Carlos Ui on
this matter.
Respondent posits that complainants evidence, consisting of the pictures of
respondent with a child, pictures of respondent with Carlos Ui, a picture of a
garage with cars, a picture of a light colored car with Plate No. PNS 313, a
picture of the same car, and portion of the house and ground, and another
picture of the same car bearing Plate No. PNS 313 and a picture of the house
and the garage,[19] does not prove that she acted in an immoral manner. They
have no evidentiary value according to her. The pictures were taken by a
photographer from a private security agency and who was not presented
during the hearings. Further, the respondent presented the Resolution of the
Provincial Fiscal of Pasig in I.S. Case No. 89-5427 dismissing the complaint
filed by Leslie Ui against respondent for lack of evidence to establish
probable cause for the offense charged [20] and the dismissal of the appeal
by the Department of Justice [21]to bolster her argument that she was not
guilty of any immoral or illegal act because of her relationship with Carlos Ui.
In fine, respondent claims that she entered the relationship with Carlos Ui in
good faith and that her conduct cannot be considered as willful, flagrant, or
shameless, nor can it suggest moral indifference. She fell in love with Carlos
Ui whom she believed to be single, and, that upon her discovery of his true
civil status, she parted ways with him.
In the Memorandum [22] filed on March 20, 1995 by complainant Leslie Ui, she
prayed for the disbarment of Atty. Iris Bonifacio and reiterated that
respondent committed immorality by having intimate relations with a married
man which resulted in the birth of two (2) children. Complainant testified that
respondents mother, Mrs. Linda Bonifacio, personally knew complainant and
her husband since the late 1970s because they were clients of the bank
where Mrs. Bonifacio was the Branch Manager.[23] It was thus highly
improbable that respondent, who was living with her parents as of 1986,
would not have been informed by her own mother that Carlos Ui was a
married man. Complainant likewise averred that respondent committed
disrespect towards the Commission for submitting a photocopy of a
document containing an intercalated date.
In her Reply to Complainants Memorandum [24], respondent stated that
complainant miserably failed to show sufficient proof to warrant her
disbarment. Respondent insists that contrary to the allegations of
complainant, there is no showing that respondent had knowledge of the fact
of marriage of Carlos Ui to complainant. The allegation that her mother knew
Carlos Ui to be a married man does not prove that such information was
made known to respondent.
Hearing on the case ensued, after which the Commission on Bar Discipline
submitted its Report and Recommendation, finding that:
In the case at bar, it is alleged that at the time respondent was courted by
Carlos Ui, the latter represented himself to be single. The Commission does
not find said claim too difficult to believe in the light of contemporary human
experience.
Almost always, when a married man courts a single woman, he represents
himself to be single, separated, or without any firm commitment to another
woman. The reason therefor is not hard to fathom. By their very nature, single
women prefer single men.
The records will show that when respondent became aware the (sic) true civil
Page 48
status of Carlos Ui, she left for the United States (in July of 1988). She broke
off all contacts with him. When she returned to the Philippines in March of
1989, she lived with her brother, Atty. Teodoro Bonifacio, Jr. Carlos Ui and
respondent only talked to each other because of the children whom he was
allowed to visit. At no time did they live together.
Under the foregoing circumstances, the Commission fails to find any act on
the part of respondent that can be considered as unprincipled or disgraceful
as to be reprehensible to a high degree. To be sure, she was more of a victim
that (sic) anything else and should deserve compassion rather than
condemnation. Without cavil, this sad episode destroyed her chance of
having a normal and happy family life, a dream cherished by every single girl.
x..........................x..........................x"
Thereafter, the Board of Governors of the Integrated Bar of the Philippines
issued a Notice of Resolution dated December 13, 1997, the dispositive
portion 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 in 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, the
complaint for Gross Immorality against Respondent is DISMISSED for lack
of merit. Atty. Iris Bonifacio is REPRIMANDED for knowingly and willfully
attaching to her Answer a falsified Certificate of Marriage with a stern warning
that a repetition of the same will merit a more severe penalty."
We agree with the findings aforequoted.
The practice of law is a privilege. A bar candidate does not have the right to
enjoy the practice of the legal profession simply by passing the bar
examinations. It is a privilege that can be revoked, subject to the mandate of
due process, once a lawyer violates his oath and the dictates of legal ethics.
The requisites for admission to the practice of law are:
a. he must be a citizen of the Philippines;
b. a resident thereof;
c. at least twenty-one (21) years of age;
d. a person of good moral character;
e. he must show that no charges against him involving moral turpitude, are
filed or pending in court;
f. possess the required educational qualifications; and
g. pass the bar examinations.[25] (Italics supplied)
Clear from the foregoing is that one of the conditions prior to admission to
the bar is that an applicant must possess good moral character. More
importantly, possession of good moral character must be continuous as a
requirement to the enjoyment of the privilege of law practice, otherwise, the
loss thereof is a ground for the revocation of such privilege. It has been held
- provided her by Carlos Ui. For an event as significant as a marriage
If good moral character is a sine qua non for admission to the bar, then the
continued possession of good moral character is also a requisite for retaining
membership in the legal profession. Membership in the bar may be
terminated when a lawyer ceases to have good moral character. (Royong vs.
Oblena, 117 Phil. 865).
A lawyer may be disbarred for "grossly immoral conduct, or by reason of his
conviction of a crime involving moral turpitude". A member of the bar should
have moral integrity in addition to professional probity.
It is difficult to state with precision and to fix an inflexible standard as to what
is "grossly immoral conduct" or to specify the moral delinquency and obliquity
which render a lawyer unworthy of continuing as a member of the bar. The
rule implies that what appears to be unconventional behavior to the straight-
laced may not be the immoral conduct that warrants disbarment.
Immoral conduct has been defined as "that conduct which is willful, flagrant,
or shameless, and which shows a moral indifference to the opinion of the
good and respectable members of the community." (7 C.J.S. 959).[26]
In the case at bar, it is the claim of respondent Atty. Bonifacio that when she
met Carlos Ui, she knew and believed him to be single. Respondent fell in
love with him and they got married and as a result of such marriage, she gave
birth to two (2) children. Upon her knowledge of the true civil status of Carlos
Ui, she left him.
Simple as the facts of the case may sound, the effects of the actuations of
respondent are not only far from simple, they will have a rippling effect on
how the standard norms of our legal practitioners should be defined. Perhaps
morality in our liberal society today is a far cry from what it used to be before.
This permissiveness notwithstanding, lawyers, as keepers of public faith, are
burdened with a higher degree of social responsibility and thus must handle
their personal affairs with greater caution. The facts of this case lead us to
believe that perhaps respondent would not have found herself in such a
compromising situation had she exercised prudence and been more vigilant
in finding out more about Carlos Uis personal background prior to her intimate
involvement with him.
Surely, circumstances existed which should have at least aroused
respondents suspicion that something was amiss in her relationship with
Carlos Ui, and moved her to ask probing questions. For instance, respondent
admitted that she knew that Carlos Ui had children with a woman from Amoy,
China, yet it appeared that she never exerted the slightest effort to find out if
Carlos Ui and this woman were indeed unmarried. Also, despite their
marriage in 1987, Carlos Ui never lived with respondent and their first child,
a circumstance that is simply incomprehensible considering respondents
allegation that Carlos Ui was very open in courting her.
All these taken together leads to the inescapable conclusion that respondent
was imprudent in managing her personal affairs. However, the fact remains
that her relationship with Carlos Ui, clothed as it was with what respondent
believed was a valid marriage, cannot be considered immoral. For immorality
connotes conduct that shows indifference to the moral norms of society and
the opinion of good and respectable members of the community.[27]
Moreover, for such conduct to warrant disciplinary action, the same must be
"grossly immoral," that is, it must be so corrupt and false as to constitute a
criminal act or so unprincipled as to be reprehensible to a high degree.[28]
We have held that "a member of the Bar and officer of the court is not only
required to refrain from adulterous relationships x x x but must also so behave
himself as to avoid scandalizing the public by creating the belief that he is
flouting those moral standards."[29] Respondents act of immediately
distancing herself from Carlos Ui upon discovering his true civil status belies
just that alleged moral indifference and proves that she had no intention of
flaunting the law and the high moral standard of the legal profession.
Complainants bare assertions to the contrary deserve no credit. After all, the
burden of proof rests upon the complainant, and the Court will exercise its
disciplinary powers only if she establishes her case by clear, convincing and
satisfactory evidence.[30] This, herein complainant miserably failed to do.
On the matter of the falsified Certificate of Marriage attached by respondent
to her Answer, we find improbable to believe the averment of respondent that
she merely relied on the photocopy of the Marriage Certificate which was
ceremony, any normal bride would verily recall the date and year of her
marriage. It is difficult to fathom how a bride, especially a lawyer as in the
case at bar, can forget the year when she got married. Simply stated, it is
contrary to human experience and highly improbable.
Furthermore, any prudent lawyer would verify the information contained in an
attachment to her pleading, especially so when she has personal knowledge
of the facts and circumstances contained therein. In attaching such Marriage
Certificate with an intercalated date, the defense of good faith of respondent
on that point cannot stand.
It is the bounden duty of lawyers to adhere unwaveringly to the highest
standards of morality. The legal profession exacts from its members nothing
less. Lawyers are called upon to safeguard the integrity of the Bar, free from
misdeeds and acts constitutive of malpractice. Their exalted positions as
officers of the court demand no less than the highest degree of morality.
WHEREFORE, the complaint for disbarment against respondent Atty. Iris L.
Bonifacio, for alleged immorality, is hereby DISMISSED.
However, respondent is hereby REPRIMANDED for attaching to her Answer
a photocopy of her Marriage Certificate, with an altered or intercalated date
thereof, with a STERN WARNING that a more severe sanction will be
imposed on her for any repetition of the same or similar offense in the future.
Page 49
SO ORDERED.
[SBC Case No. 519. July 31, 1997]
PATRICIA FIGUEROA, complainant, vs. SIMEON BARRANCO,
JR., respondent.
RESOLUTION
ROMERO, J.:
In a complaint made way back in 1971, Patricia Figueroa petitioned that
respondent Simeon Barranco, Jr. be denied admission to the legal
profession. Respondent had passed the 1970 bar examinations on the fourth
attempt, after unsuccessful attempts in 1966, 1967 and 1968. Before he
could take his oath, however, complainant filed the instant petition averring
that respondent and she had been sweethearts, that a child out of wedlock
was born to them and that respondent did not fulfill his repeated promises to
marry her.
The facts were manifested in hearings held before Investigator Victor F.
Sevilla in June and July 1971. Respondent and complainant were townmates
in Janiuay, Iloilo. Since 1953, when they were both in their teens, they were
steadies. Respondent even acted as escort to complainant when she reigned
as Queen at the 1953 town fiesta. Complainant first acceded to sexual
congress with respondent sometime in 1960. Their intimacy yielded a son,
Rafael Barranco, born on December 11, 1964.[1] It was after the child was
born, complainant alleged, that respondent first promised he would marry her
after he passes the bar examinations. Their relationship continued and
respondent allegedly made more than twenty or thirty promises of marriage.
He gave only P10.00 for the child on the latters birthdays. Her trust in him and
their relationship ended in 1971, when she learned that respondent married
another woman.Hence, this petition.
Upon complainants motion, the Court authorized the taking of testimonies of
witnesses by deposition in 1972. On February 18, 1974, respondent filed a
Manifestation and Motion to Dismiss the case citing complainants failure to
comment on the motion of Judge Cuello seeking to be relieved from the duty
to take aforesaid testimonies by deposition. Complainant filed her comment
stating that she had justifiable reasons in failing to file the earlier comment
required and that she remains interested in the resolution of the present
case. On June 18, 1974, the Court denied respondents motion to dismiss.
On October 2, 1980, the Court once again denied a motion to dismiss on the
ground of abandonment filed by respondent on September 17,
1979.[2] Respondents third motion to dismiss was noted in the Courts
Resolution dated September 15, 1982.[3] In 1988, respondent repeated his
request, citing his election as a member of the Sangguniang Bayan of
Janiuay, Iloilo from 1980-1986, his active participation in civic organizations
and good standing in the community as well as the length of time this case
has been pending as reasons to allow him to take his oath as a lawyer.[4]
On September 29, 1988, the Court resolved to dismiss the complaint for
failure of complainant to prosecute the case for an unreasonable period of
time and to allow Simeon Barranco, Jr. to take the lawyers oath upon
payment of the required fees.[5]
Respondents hopes were again dashed on November 17, 1988 when the
Court, in response to complainants opposition, resolved to cancel his
scheduled oath-taking. On June 1, 1993, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The IBPs report dated May 17, 1997 recommended the dismissal of the case
and that respondent be allowed to take the lawyers oath.
We agree.
Respondent was prevented from taking the lawyers oath in 1971 because of
the charges of gross immorality made by complainant. To recapitulate,
respondent bore an illegitimate child with his sweetheart, Patricia Figueroa,
who also claims that he did not fulfill his promise to marry her after he passes
the bar examinations.
We find that these facts do not constitute gross immorality warranting the
permanent exclusion of respondent from the legal profession. His engaging
in premarital sexual relations with complainant and promises to marry
suggests a doubtful moral character on his part but the same does not
constitute grossly immoral conduct. The Court has held that to justify
suspension or disbarment the act complained of must not only be immoral,
but grossly immoral. A grossly immoral act is one that is so corrupt and false
as to constitute a criminal act or so unprincipled or disgraceful as to be
reprehensible to a high degree.[6] It is a willful, flagrant, or shameless act
which shows a moral indifference to the opinion of respectable members of
the community.[7]
We find the ruling in Arciga v. Maniwang[8] quite relevant because mere
intimacy between a man and a woman, both of whom possess no impediment
to marry, voluntarily carried on and devoid of any deceit on the part of
respondent, is neither so corrupt nor so unprincipled as to warrant the
imposition of disciplinary sanction against him, even if as a result of such
relationship a child was born out of wedlock.[9]
Respondent and complainant were sweethearts whose sexual relations were
evidently consensual. We do not find complainants assertions that she had
been forced into sexual intercourse, credible. She continued to see and be
respondents girlfriend even after she had given birth to a son in 1964 and
until 1971. All those years of amicable and intimate relations refute her
allegations that she was forced to have sexual congress with him.
Complainant was then an adult who voluntarily and actively pursued their
relationship and was not an innocent young girl who could be easily led astray.
Unfortunately, respondent chose to marry and settle permanently with
another woman. We cannot castigate a man for seeking out the partner of his
dreams, for marriage is a sacred and perpetual bond which should be entered
into because of love, not for any other reason.
We cannot help viewing the instant complaint as an act of revenge of a
woman scorned, bitter and unforgiving to the end. It is also intended to make
respondent suffer severely and it seems, perpetually, sacrificing the
profession he worked very hard to be admitted into. Even assuming that his
past indiscretions are ignoble, the twenty-six years that respondent has been
prevented from being a lawyer constitute sufficient punishment therefor.
During this time there appears to be no other indiscretion attributed to him.[10]
Respondent, who is now sixty-two years of age, should thus be allowed,
albeit belatedly, to take the lawyers oath.
WHEREFORE, the instant petition is hereby DISMISSED. Respondent
Simeon Barranco, Jr. is ALLOWED to take his oath as a lawyer upon
payment of the proper fees.
SO ORDERED.
[A.C. No. 4585. November 12, 2004]
MICHAEL P. BARRIOS, complainant, vs. ATTY. FRANCISCO P.
MARTINEZ, respondent
DECISION
PER CURIAM:
This is a verified petition[1] for disbarment filed against Atty. Francisco
Martinez for having been convicted by final judgment in Criminal Case No.
6608 of a crime involving moral turpitude by Branch 8 of the Regional Trial
Court (RTC) of Tacloban City.[2]
The dispositive portion of the same states:
WHEREFORE, this Court finds the accused Francisco Martinez guilty
beyond reasonable doubt of the crime for (sic) violation of Batas Pambansa
Blg. 22 charged in the Information. He is imposed a penalty of ONE (1)
YEAR imprisonment and fine double the amount of the check which is EIGHT
THOUSAND (8,000.00) PESOS, plus payment of the tax pursuant to Section
205 of the Internal Revenue Code and costs against the accused.[3]
Complainant further submitted our Resolution dated 13 March 1996 and the
Entry of Judgment from this Court dated 20 March 1996.
On 03 July 1996, we required[4] respondent to comment on said petition within
ten (10) days from notice. On 17 February 1997, we issued a second
resolution[5] requiring him to show cause why no disciplinary action should be
imposed on him for failure to comply with our earlier Resolution, and to submit
said Comment. On 07 July 1997, we imposed a fine of P1,000 for
respondents failure to file said Comment and required him to comply with our
previous resolution within ten days.[6] On 27 April 1998, we fined respondent
an additional P2,000 and required him to comply with the resolution requiring
Page 50
his comment within ten days under pain of imprisonment and arrest for a
period of five (5) days or until his compliance.[7] Finally, on 03 February 1999,
or almost three years later, we declared respondent Martinez guilty of
Contempt under Rule 71, Sec. 3[b] of the 1997 Rules of Civil Procedure and
ordered his imprisonment until he complied with the aforesaid resolutions.[8]
On 05 April 1999, the National Bureau of Investigation reported[9] that
respondent was arrested in Tacloban City on 26 March 1999, but was
subsequently released after having shown proof of compliance with the
resolutions of 17 February 1997 and 27 April 1998 by remitting the amount
of P2,000 and submitting his long overdue Comment.
In the said Comment[10] dated 16 March 1999, respondent stated that:
1. He failed to respond to our Resolution dated 17 February 1997 as he was
at that time undergoing medical treatment at Camp Ruperto Kangleon in
Palo, Leyte;
2. Complainant Michael Barrios passed away sometime in June 1997; and
3. Said administrative complaint is an offshoot of a civil case which was
decided in respondents favor (as plaintiff in the said case). Respondent avers
that as a result of his moving for the execution of judgment in his favor and
the eviction of the family of herein complainant Michael Barrios, the latter filed
the present administrative case.
In the meantime, on 11 September 1997, a certain Robert Visbal of the
Provincial Prosecution Office of Tacloban City submitted a letter[11] to the First
Division Clerk of Court alleging that respondent Martinez also stood charged
in another estafa case before the Regional Trial Court of Tacloban City,
Branch 9, as well as a civil case involving the victims of the Doa Paz tragedy
in 1987, for which the Regional Trial Court of Basey, Samar, Branch
30 rendered a decision against him, his appeal thereto having been
dismissed by the Court of Appeals.
In the said Decision of Branch 30 of the Regional Trial Court of Basey,
Samar,[12] it appears that herein respondent Atty. Martinez offered his legal
services to the victims of the Doa Paz tragedy for free. However, when the
plaintiff in the said civil case was issued a check for P90,000 by Sulpicio
Lines representing compensation for the deaths of his wife and two
daughters,Atty. Martinez asked plaintiff to endorse said check, which was
then deposited in the account of Dr. Martinez, Atty. Martinezs wife. When
plaintiff asked for his money, he was only able to recover a total of P30,000.
Atty. Martinez claimed the remaining P60,000 as his attorneys fees. Holding
that it was absurd and totally ridiculous that for a simple legal service he
would collect 2/3 of the money claim, the trial court ordered Atty. Martinez to
pay the plaintiff therein the amount of P60,000 with interest, P5,000 for moral
and exemplary damages, and the costs of the suit.
Said trial court also made particular mention of Martinezs dilatory tactics
during the trial, citing fourteen (14) specific instances thereof. Martinezs
appeal from the above judgment was dismissed by the Court of Appeals for
his failure to file his brief, despite having been granted three thirty (30)-day
extensions to do so.[13]
On 16 June 1999, we referred[14] the present case to the Integrated Bar of the
Philippines (IBP) for investigation, report, and recommendation.
The report[15] of IBP Investigating Commissioner Winston D. Abuyuan stated
in part that:
Several dates for the hearing of the case were scheduled but none of the
parties appeared before the Commission, until finally it was considered
submitted for resolution last 27 June 2002. On the same date respondent
filed a motion for the dismissal of the case on the ground that the complainant
died sometime in June 1997 and that dismissal is warranted because the
case filed by him does not survive due to his demise; as a matter of fact, it is
extinguished upon his death.
We disagree with respondents contention.
Pursuant to Section 1, Rule 139-B of the Revised Rules of Court, the
Honorable Supreme Court or the IBP may motu proprio initiate the
proceedings when they perceive acts of lawyers which deserve sanctions or
when their attention is called by any one and a probable cause exists that an
act has been perpetrated by a lawyer which requires disciplinary sanctions.
As earlier cited, respondent lawyers propensity to disregard or ignore orders
of the Honorable Supreme Court for which he was fined twice, arrested and
imprisoned reflects an utter lack of good moral character.
Respondents conviction of a crime involving moral turpitude (estafa and/or
violation of BP Blg. 22) clearly shows his unfitness to protect the
administration of justice and therefore justifies the imposition of sanctions
against him (see In re: Abesamis, 102 Phil. 1182; In re: Jaramillo, 101 Phil.
323; In re: Vinzon, 19 SCRA 815; Medina vs. Bautista, 12 SCRA 1, People
vs. Tuanda, Adm. Case No. 3360, 30 Jan. 1990).
WHEREFORE, premises considered, it is respectfully recommended that
respondent Atty. Francisco P. Martinez be disbarred and his name stricken
out from the Roll of Attorneys immediately.
On 27 September 2003, the IBP Board of Governors passed a Resolution[16]
adopting and approving the report and recommendation of its Investigating
Commissioner.
On 03 December 2003, respondent Martinez filed a Motion for
Reconsideration and/or Reinvestigation,[17] in the instant case alleging that:
1. The Report and Recommendation of the IBP Investigating Commissioner
is tantamount to a deprivation of property without due process of law,
although admittedly the practice of law is a privilege;
2. If respondent is given another chance to have his day in court and allowed
to adduce evidence, the result/outcome would be entirely different from that
arrived at by the Investigating Commissioner; and
3. Respondent is now 71 years of age, and has served the judiciary in various
capacities (from acting city judge to Municipal Judges League Leyte Chapter
President) for almost 17 years prior to resuming his law practice.
On 14 January 2004, we required[18] complainant to file a comment within ten
days. On 16 February 2004, we received a Manifestation and Motion[19] from
complainants daughter, Diane Francis Barrios Latoja, alleging that they had
not been furnished with a copy of respondents Motion, notwithstanding the
fact that respondent ostensibly lives next door to complainants family.
Required to Comment on 17 May 2004, respondent has until now failed to
do so.
The records show that respondent, indeed, failed to furnish a copy of said
Motion to herein complainant. The records also show that respondent was
given several opportunities to present evidence by this Court[20] as well as by
the IBP.[21] Indeed, he only has himself to blame, for he has failed to present
his case despite several occasions to do so. It is now too late in the day for
respondent to ask this court to receive his evidence.
This court, moreover, is unwilling to exercise the same patience that it did
when it waited for his comment on the original petition. At any rate, after a
careful consideration of the records of the instant case, we find the evidence
on record sufficient to support the IBPs findings.
Under Sec. 27, Rule 138 of the Rules of Court, 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 to do so.
In the present case, respondent has been found guilty and convicted by final
judgment for violation of B.P. Blg. 22 for issuing a worthless check in the
amount of P8,000. The issue with which we are now concerned is whether
or not the said crime is one involving moral turpitude. [22]
Moral turpitude includes everything which is done contrary to justice,
honesty, modesty, or good morals.[23] It involves an act of baseness, vileness,
or depravity in the private duties which a man owes his fellow men, or to
society in general, contrary to the accepted and customary rule of right and
duty between man and woman, or conduct contrary to justice, honesty,
modesty, or good morals.[24]
In People of the Philippines v. Atty. Fe Tuanda,[25] where the erring lawyer
was indefinitely suspended for having been convicted of three counts of
violation of B.P. Blg. 22, we held that conviction by final judgment of violation
of B.P. Blg. 22 involves moral turpitude and stated:
We should add that the crimes of which respondent was convicted also
Page 51
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, itcertainly relates to and
affects the good moral character of a person convicted of such offense[26]
(emphasis supplied)
Over ten years later, we reiterated the above ruling in Villaber v. Commission
on Elections[27] and disqualified a congressional candidate for having been
sentenced by final judgment for three counts of violation of B.P. Blg. 22 in
accordance with Sec. 12 of the Omnibus Election Code, which states:
SEC. 12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion, or for any offense for which he has been
sentenced to a penalty of more than eighteen months, or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty. (emphasis
supplied)
Enumerating the elements of that crime, we held that the act of a person in
issuing a check knowing at the time of the issuance that he or she does not
have sufficient funds in, or credit with, the drawee bank for the check in full
upon its presentment, is a manifestation of moral turpitude. Notwithstanding
therein petitioners averment that he was not a lawyer, we nevertheless
applied our ruling in People v. Tuanda, to the effect that
(A) conviction for violation of B.P. Blg. 22, imports deceit and certainly relates
to and affects the good moral character of a person. [Indeed] the effects of
the issuance of a worthless check, as we held in the landmark case of Lozano
v. Martinez, through Justice Pedro L. Yap, 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 since the circulation of
valueless commercial papers 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. Thus, paraphrasing Black's definition, a
drawer who issues an unfunded check deliberately reneges on his private
duties he owes his fellow men or society in a manner contrary to accepted
and customary rule of right and duty, justice, honesty or good morals.[28]
(emphasis supplied)
In the recent case of Barrientos v. Libiran-Meteoro,[29] we stated that:
(T)he issuance of checks which were later dishonored for having been drawn
against a closed account indicates a lawyers unfitness for the trust and
confidence reposed on her. It shows a lack of personal honesty and good
moral character as to render her unworthy of public confidence. [Cuizon v.
Macalino, A.C. No. 4334, 07 July 2004] The issuance of a series of worthless
checks also shows the remorseless attitude of respondent, unmindful to the
deleterious effects of such act to the public interest and public order. [Lao v.
Medel, 405 SCRA 227] It also manifests a lawyers low regard for her
commitment to the oath she has taken when she joined her peers, seriously
and irreparably tarnishing the image of the profession she should hold in high
esteem. [Sanchez v. Somoso, A.C. No. 6061, 03 October 2003]
Clearly, therefore, the act of a lawyer in issuing a check without sufficient
funds to cover the same constitutes such willful dishonesty and immoral
conduct as to undermine the public confidence in law and lawyers. And while
the general rule is that a lawyer may not be suspended or disbarred, and the
court may not ordinarily assume jurisdiction to discipline him for misconduct
in his non-professional or private capacity, where, however, the misconduct
outside of the lawyer's professional dealings is so gross a character as to
show him morally unfit for the office and unworthy of the privilege which his
licenses and the law confer on him, the court may be justified in suspending
or removing him from the office of attorney.[30]
The argument of respondent that to disbar him now is tantamount to a
deprivation of property without due process of law is also untenable. As
respondent himself admits, the practice of law is a privilege. The purpose of
a proceeding for disbarment is to protect the administration of justice by
requiring that those who exercise this important function shall be competent,
honorable and reliable; men in whom courts and clients may repose
confidence.[31] A proceeding for suspension or disbarment is not in any sense
a civil action where the complainant is plaintiff and the respondent lawyer is
a defendant. Disciplinary proceedings involve no private interest and afford
no redress for private grievance. They are undertaken and prosecuted solely
for the public welfare, and for the purpose of preserving courts of justice from
the official ministrations of persons unfit to practice them.[32] Verily, lawyers
must at all times faithfully perform their duties to society, to the bar, to the
courts and to their clients. Their conduct must always reflect the values and
norms of the legal profession as embodied in the Code of Professional
Responsibility. On these considerations, the Court may disbar or suspend
lawyers for any professional or private misconduct showing them to be
wanting in moral character, honesty, probity and good demeanor or to be
unworthy to continue as officers of the Court.[33]
Nor are we inclined to look with favor upon respondents plea that if given
another chance to have his day in court and to adduce evidence, the
result/outcome would be entirely different from that arrived at. We note with
displeasure the inordinate length of time respondent took in responding to
our requirement to submit his Comment on the original petition to disbar
him.These acts constitute a willful disobedience of the lawful orders of this
Court, which under Sec. 27, Rule 138 of the Rules of Court is in itself a cause
sufficient for suspension or disbarment.Thus, from the time we issued our
first Resolution on 03 July 1996 requiring him to submit his Comment, until
16 March 1999, when he submitted said Comment to secure his release from
arrest, almost three years had elapsed.
It is revealing that despite the unwarranted length of time it took respondent
to comply, his Comment consists of all of two pages, a copy of which, it
appears, he neglected to furnish complainant.[34] And while he claims to have
been confined while undergoing medical treatment at the time our Resolution
of 17 February 1997 was issued, he merely reserved the submission of a
certification to that effect. Nor, indeed, was he able to offer any explanation
for his failure to submit his Comment from the time we issued our first
Resolution of 03 July 1996 until 16 March 1999. In fact, said Comment
alleged, merely, that the complainant, Michael Barrios, passed away
sometime in June 1997, and imputed upon the latter unsupported ill-motives
for instituting the said Petition against him, which argument has already been
resolved squarely in the abovementioned IBP report.
Moreover, the IBP report cited the failure of both parties to appear before the
Commission as the main reason for the long delay, until the same was finally
submitted for Resolution on 27 June 2002. Respondent, therefore,
squandered away seven years to have his day in court and adduce evidence
in his behalf, which inaction also unduly delayed the courts prompt
disposition of this petition.
In Pajares v. Abad Santos,[35] we reminded attorneys that there must be more
faithful adherence to Rule 7, Section 5 of the Rules of Court [now Rule 7,
Section 3] which provides that the signature of an attorney constitutes a
certificate by him that he has read the pleading and that to the best of his
knowledge, information and belief, there is good ground to support it; and
that it is not interposed for delay, and expressly admonishes that for a willful
violation of this rule an attorney may be subjected to disciplinary action.[36] It
is noteworthy that in the past, the Court has disciplined lawyers and judges
for willful disregard of its orders to file comments or appellants briefs, as a
penalty for disobedience thereof. [37]
For the same reasons, we are disinclined to take respondents old age and
the fact that he served in the judiciary in various capacities in his favor. If at
all, we hold respondent to a higher standard for it, for a judge should be the
embodiment of competence, integrity, and independence,[38] and his conduct
should be above reproach.[39] The fact that respondent has chosen to engage
in private practice does not mean he is now free to conduct himself in less
honorable or indeed in a less than honorable manner.
We stress that membership in the legal profession is a privilege,[40]
demanding a high degree of good moral character, not only as a condition
precedent to admission, but also as a continuing requirement for the practice
of law.[41] Sadly, herein respondent falls short of the exacting standards
expected of him as a vanguard of the legal profession.
Page 52
The IBP Board of Governors recommended that respondent be disbarred
from the practice of law. We agree.
We come now to the matter of the penalty imposable in this case. In Co v.
Bernardino and Lao v. Medel, we upheld the imposition of one years
suspension for non-payment of debt and issuance of worthless checks, or a
suspension of six months upon partial payment of the obligation.[42] However,
in these cases, for various reasons, none of the issuances resulted in a
conviction by the erring lawyers for either estafa or B.P. Blg. 22. Thus, we
held therein that the issuance of worthless checks constitutes gross
misconduct, for which a lawyer may be sanctioned with suspension from the
practice of law.
In the instant case, however, herein respondent has been found guilty
and stands convicted by final judgment of a crime involving moral turpitude.
In People v. Tuanda, which is similar to this case in that both respondents
were convicted for violation of B.P. Blg. 22 which we have held to be such a
crime, we affirmed the order of suspension from the practice of law imposed
by the Court of Appeals, until further orders.
However, in a long line of cases, some of which were decided after Tuanda,
we have held disbarment to be the appropriate penalty for conviction by final
judgment for a crime involving moral turpitude. Thus:
1. In In The Matter of Disbarment Proceedings v. Narciso N. Jaramillo,[43] we
disbarred a lawyer convicted of estafa without discussing the circumstances
behind his conviction. We held that:
There is no question that the crime of estafa involves moral turpitude. The
review of respondent's conviction no longer rests upon us. The judgment not
only has become final but has been executed. No elaborate argument is
necessary to hold the respondent unworthy of the privilege bestowed on him
as a member of the bar. Suffice it to say that, by his conviction, the
respondent has proved himself unfit to protect the administration of justice.[44]
2. In In Re: Dalmacio De Los Angeles,[45] a lawyer was convicted of the crime
of attempted bribery in a final decision rendered by the Court of Appeals. And
since bribery is admittedly a felony involving moral turpitude (7 C.J.S., p. 736;
5 Am. Jur. p. 428), this Court, much as it sympathizes with the plight of
respondent, is constrained to decree his disbarment as ordained by Section
25 of Rule 127.[46]
3. In Ledesma De Jesus-Paras v. Quinciano Vailoces,[47] the erring lawyer
acknowledged the execution of a document purporting to be a last will and
testament, which later turned out to be a forgery. He was found guilty beyond
reasonable doubt of the crime of falsification of public document, which the
Court held to be a crime involving moral turpitude, said act being contrary to
justice, honesty and good morals, and was subsequently disbarred.
4. In In Re: Disbarment Proceedings Against Atty. Diosdado Q. Gutierrez,[48]
Atty. Gutierrez was convicted for murder. After serving a portion of the
sentence, he was granted a conditional pardon by the President. Holding
that the pardon was not absolute and thus did not reach the offense itself but
merely remitted the unexecuted portion of his term, the court nevertheless
disbarred him.
5. In In Re: Atty. Isidro P. Vinzon,[49] Atty. Vinzon was convicted of the crime
of estafa for misappropriating the amount of P7,000.00, and was
subsequently disbarred. We held thus:
Upon the other hand, and dealing now with the merits of the case, there can
be no question that the term moral turpitude includes everything which is
done contrary to justice, honesty, or good morals. In essence and in all
respects, estafa, no doubt, is a crime involving moral turpitude because the
act is unquestionably against justice, honesty and good morals (In re
Gutierrez, Adm. Case No. 263, July 31, 1962; Bouvier's Law Dictionary; In re
Basa, 41 Phil. 275-76). As respondent's guilt cannot now be questioned, his
disbarment is inevitable. (emphasis supplied)[50]
6. In In Re: Attorney Jose Avancea,[51] the conditional pardon extended to the
erring lawyer by the Chief Executive also failed to relieve him of the penalty
of disbarment imposed by this court.
7. In In Re Disbarment of Rodolfo Pajo,[52] a lawyer was charged and found
guilty of the crime of falsification of public document for having prepared and
notarized a deed of sale of a parcel of land knowing that the supposed affiant
was an impostor and that the vendor had been dead for almost eight years.
We ruled that disbarment follows as a consequence of a lawyer's conviction
by final judgment of a crime involving moral turpitude, and since
the crime of falsification of public document involves moral turpitude, we
ordered respondents name stricken off the roll of attorneys.
8. In Adelina T. Villanueva v. Atty. Teresita Sta. Ana,[53] we upheld the
recommendation of the IBP Board of Governors to disbar a lawyer who had
been convicted of estafa through falsification of public documents, because
she was totally unfit to be a member of the legal profession.[54]
9. In Victoriano P. Resurreccion v. Atty. Ciriaco C. Sayson,[55] a lawyer was
disbarred for having been convicted of estafa by final judgment for
misappropriating the funds of his client.
In this case as well, we find disbarment to be the appropriate penalty. Of all
classes and professions, the lawyer is most sacredly bound to uphold the
laws. He is their sworn servant; and for him, of all men in the world, to
repudiate and override the laws, to trample them underfoot and to ignore the
very bands of society, argues recreancy to his position and office and sets a
pernicious example to the insubordinate and dangerous elements of the body
politic.[56]
WHEREFORE, respondent Atty. Francisco P. Martinez is hereby
DISBARRED and his name is ORDERED STRICKEN from the Roll of
Attorneys. Let a copy of this Decision be entered in the respondents 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.
SO ORDERED.
A.C. No. 9115 September 17, 2014
REBECCA MARIE UY YUPANGCO-NAKPIL, Complainant,
vs.
ATTY. ROBERTO L. UY, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
This is an administrative case against respondent Atty. Roberto L. Uy
(respondent) for unprofessional and unethical conduct, stemming from a
complaint filed by private complainant Rebecca Marie Uy Yupangco-Nakpil
(Rebecca), represented by her attorney-in-fact, Bella Asuncion Pollo (Bella).
The Facts
Rebecca is the natural niece and adopted daughter of the late Dra. Pacita Uy
y Lim (Pacita).1 She was adjudged as the sole and exclusive legal heir of Paci
ta by virtue of an Order2 dated August 10, 1999 issued by the Regional Trial
Court of Manila, Branch 34 in SPEC. PROC. No. 95-7520 l (SP 95- 75201).
At the time of her death, Pacita was a stockholder in several corporations
primarily engaged in acquiring, developing, and leasing real properties,
namely, Uy Realty Company, Inc. (URCI), Jespajo Realty Corporation,
Roberto L. Uy Realty and Development Corporation, Jesus Uy Realty
Corporation, Distelleria La Jarolina, Inc., and Pacita Lim Uy Realty, Inc.3
In her Complaint4 filed on May 9, 2005,5 Rebecca, through her attorney-in
fact, Bella, averred that respondent, her alleged illegitimate halfcousin,6
continuously failed and refused to comply with the court order in SP 95-75201
declaring her as the successor-in-interest to all of Pacita’s properties, as well
as her requests for the accounting and delivery of the dividends and other
proceeds or benefits coming from Pacita’s stockholdings in the
aforementioned corporations.7 She added that respondent mortgaged a
commercial property covered by Transfer Certificate of Title No. T-133606
(subject property) in favor of Philippine Savings Bank in the total amount of
54,000,000.00,8 despite an existing Trust Agreement9 executed on October
15, 1993 (subject Trust Agreement) wherein respondent, in his capacity as
President of URCI, already recognized her to be the true and beneficial owner
of the same.10 Accordingly, she demanded that respondent return the said
property by executing the corresponding deed of conveyance in her favor
together with an inventory and accounting of all the proceeds therefrom, but to
no avail.11 In this relation, Rebecca claimed that it was only on September 2,
2005 or after she had already instituted various legal actions and remedies
that respondent and URCIagreed to transfer the subject property to her
Page 53
pursuant to a compromise agreement.12
In his Answer With Compulsory Counterclaim,13 respondent denied
Rebecca’s allegations and raised the affirmative defenses of forum shopping
and prescription. He pointed out that Rebecca had filed several cases raising
the single issue on the correct interpretation of the subject trust agreement.
He also contended that the parties’ transactions in this case were made way
back in 1993 and 1995 without a complaint having been filed until Bella came
into the picture and instituted various suits covering the same issue.14 As
such, he sought the dismissal of the complaint, and further prayed for the
payment of moral damages and attorney’s fees by way of counterclaim.15
On September 8, 2005, Rebecca filed a Motion to Withdraw Complaint16 in
CBD Case No. 05-1484 for the reason that "the facts surrounding the same
arose out of a misunderstanding and misapprehension of the real facts
surrounding their dispute."17
However, on October 6, 2005, Bella filed a Manifestation with Leave of Court
to File Motion for Intervention,18praying that the investigation of the charges
against respondent continue in order to weed out erring members of the legal
profession.19
The Report and Recommendation of the IBP
On October 8, 2007, the Integrated Bar of the Philippines (IBP) Investigating
Commissioner issuedhis Report and Recommendation,20 finding respondent
guilty of serious misconduct in violation of Rule 1.01, Canon 1 of the Code of
Professional Responsibility (Code), and, thus, recommended the penalty of
suspension for a period of six (6) months.21
On matters of procedure, the Investigating Commissioner opined that
Rebecca’s motion to withdraw did notserve as a bar for the further
consideration and investigation ofthe administrative case against
respondent. As basis, he cites Section 5, Rule 139-B of the Rules of Court
which provides that "[n]o investigation shall be interrupted or terminated by
reason of the desistance, settlement, compromise, restitution, withdrawal of
the charges, or failure of the complainant to prosecute the same." Separately,
the Investigating Commissioner denied the claim of forum shopping, noting
that disciplinary cases are sui generis and may, therefore, proceed
independently.22
On the merits of the charge, the Investigating Commissioner observed that
respondent lacked the good moral character required from members of the
Bar when the latter failed to comply with the demands of Rebecca under the
subject trust agreement, not to mention his unworthy and deceitful acts of
mortgaging the subject property without the former’s consent. In fine,
respondent was found guilty of serious misconduct in violation of Rule 1.01,
Canon 1 of the Code, for which the above-stated penalty was
recommended.23
In a Resolution24 dated November 10, 2007, the IBP Board of Governors
adopted and approved the Investigating Commissioner’s Report and
Recommendation.
The Issue Before the Court
The basic issue in this case is whether or not respondent should be held
administratively liable.
The Court’s Ruling
Rule 1.01, Canon 1 of the Code, as itis applied to the members of the legal
profession, engraves an overriding prohibition against any form of
misconduct, viz.:
CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
The gravity of the misconduct – determinative as it is of the errant lawyer’s
penalty – depends on the factual circumstances of each case.
Here, the Court observes that the squabble which gave rise to the present
administrative case largely constitutes an internal affair, which had already
been laid to rest by the parties. This is clearly exhibited by Rebecca’s motion
to withdraw filed in this case as well as the compromise agreement forged in
Civil Case No. 04-108887 which involves the subject property’s alleged
disposition in violation of the subject trust agreement. As the Court sees it,
his failure to complywith the demands of Rebecca – which she takes as an
invocation of her rights under the subject trust agreement – as well as
respondent’s acts of mortgaging the subject property without the former’s
consent, sprung from his own assertion of the rights he believed he had over
the subject property. The propriety of said courses of action eludes the
Court’s determination,for that matter had never been resolved on its merits
in view of the aforementioned settlement. Rebecca even states in her motion
to withdraw that the allegations she had previously made arose out of a
"misapprehension of the real facts surrounding their dispute" and even adds
that respondent "had fully explained to [her] the real nature and extent of her
inheritance x x x toher entire satisfaction," leading her to state that she is
"now fully convinced that [her] complaint has no basis in fact and in law."25
Accordingly, with the admitted misstatement of facts, the observations of the
Investigating Commissioner, as adopted by the IBP, hardly hold water so as
to support the finding of "serious misconduct" which would warrant its
recommended penalty.1âwphi1
Be that as it may, the Court, nonetheless, finds that respondent committed
some form of misconduct by, as admitted, mortgaging the subject property,
notwithstanding the apparent dispute over the same. Regardless of the
merits of his own claim, respondent should have exhibited prudent restraint
becoming of a legal exemplar. He should not have exposed himself even to
the slightest risk of committing a property violation nor any action which would
endanger the Bar's reputation. Verily, members of the Bar are expected at all
times to uphold the integrity and dignity of the legal profession and refrain from
any act or omission which might lessen the trust and confidence reposed by
the public in the fidelity, honesty, and integrity of the legal profession.26 By no
insignificant measure, respondent blemished not only his integrity as a
member of the Bar, but also that of the legal profession. In other words, his
conduct fell short of the exacting standards expected of him as a guardian of
law and justice. Although to a lesser extent as compared to what has been
ascribed by the IBP, the Court still holds respondent guilty of violating Rule
1. 01, Canon 1 of the Code. Considering that this is his first offense as well
as the peculiar circumstances of this case, the Court believes that a fine of
P15,000.00 would suffice.
WHEREFORE, respondent Atty. Roberto L. Uy is found GUILTY of violating
Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly,
he is ordered to pay a FINE of P15,000.00 within ten (10) days from receipt
of this Resolution. Further, he is STERNLY WARNED that a repetition of the
same or similar acts will be dealt with more severely.
Let a copy of this Resolution be attached to respondent's record in this Court
as attorney. Further, let copies of this Resolution be furnished the Integrated
Bar of the Philippines and the Office of the Court Administrator, which is
directed to circulate them to all the courts in the country for their information
and guidance.
SO ORDERED.
RULE 1.02: NOT TO COUNSEL OR DEFY LAW
A lawyer shall not counsel or abet activities aimed at defiance of the
law or at lessening confidence in the legal system.
A.C. No. 6057 June 27, 2006
PETER T. DONTON, Complainant,
vs.
ATTY. EMMANUEL O. TANSINGCO, Respondent.
DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against respondent Atty. Emmanuel O.
Tansingco ("respondent") for serious misconduct and deliberate violation of
Canon 1,1 Rules 1.012 and 1.023 of the Code of Professional Responsibility
("Code").
The Facts
In his Complaint dated 20 May 2003, Peter T. Donton ("complainant") stated
that he filed a criminal complaint for estafa thru falsification of a public
Page 54
document4 against Duane O. Stier ("Stier"), Emelyn A. Maggay ("Maggay")
and respondent, as the notary public who notarized the Occupancy
Agreement.
The disbarment complaint arose when respondent filed a counter-charge for
perjury5 against complainant. Respondent, in his affidavit-complaint, stated
that:
5. The OCCUPANCY AGREEMENT dated September 11, 1995 was
prepared and notarized by me under the following circumstances:
A. Mr. Duane O. Stier is the owner and long-time resident of a real property
located at No. 33 Don Jose Street, Bgy. San Roque, Murphy, Cubao, Quezon
City.
B. Sometime in September 1995, Mr. Stier – a U.S. citizen and thereby
disqualified to own real property in his name – agreed that the property be
transferred in the name of Mr. Donton, a Filipino.
C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare several
documents that would guarantee recognition of him being the actual owner
of the property despite the transfer of title in the name of Mr. Donton.
D. For this purpose, I prepared, among others, the OCCUPANCY
AGREEMENT, recognizing Mr. Stier’s free and undisturbed use of the
property for his residence and business operations. The OCCUPANCY
AGREEMENT was tied up with a loan which Mr. Stier had extended to Mr.
Donton.6
Complainant averred that respondent’s act of preparing the Occupancy
Agreement, despite knowledge that Stier, being a foreign national, is
disqualified to own real property in his name, constitutes serious misconduct
and is a deliberate violation of the Code. Complainant prayed that respondent
be disbarred for advising Stier to do something in violation of law and
assisting Stier in carrying out a dishonest scheme.
In his Comment dated 19 August 2003, respondent claimed that complainant
filed the disbarment case against him upon the instigation of complainant’s
counsel, Atty. Bonifacio A. Alentajan,7 because respondent refused to act as
complainant’s witness in the criminal case against Stier and Maggay.
Respondent admitted that he "prepared and notarized" the Occupancy
Agreement and asserted its genuineness and due execution.
In a Resolution dated 1 October 2003, the Court referred the matter to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The IBP’s Report and Recommendation
In her Report dated 26 February 2004 ("Report"), Commissioner Milagros V.
San Juan ("Commissioner San Juan") of the IBP Commission on Bar
Discipline found respondent liable for taking part in a "scheme to circumvent
the constitutional prohibition against foreign ownership of land in the
Philippines." Commissioner San Juan recommended respondent’s
suspension from the practice of law for two years and the cancellation of his
commission as Notary Public.
In Resolution No. XVI-2004-222 dated 16 April 2004, the IBP Board of
Governors adopted, with modification, the Report and recommended
respondent’s suspension from the practice of law for six months.
On 28 June 2004, the IBP Board of Governors forwarded the Report to the
Court as provided under Section 12(b), Rule 139-B8 of the Rules of Court.
On 28 July 2004, respondent filed a motion for reconsideration before the
IBP. Respondent stated that he was already 76 years old and would already
retire by 2005 after the termination of his pending cases. He also said that
his practice of law is his only means of support for his family and his six minor
children.
In a Resolution dated 7 October 2004, the IBP denied the motion for
reconsideration because the IBP had no more jurisdiction on the case as the
matter had already been referred to the Court.
The Ruling of the Court
The Court finds respondent liable for violation of Canon 1 and Rule 1.02 of
the Code.
A lawyer should not render any service or give advice to any client which will
involve defiance of the laws which he is bound to uphold and obey.9 A lawyer
who assists a client in a dishonest scheme or who connives in violating the
law commits an act which justifies disciplinary action against the lawyer.10
By his own admission, respondent admitted that Stier, a U.S. citizen, was
disqualified from owning real property.11Yet, in his motion for
reconsideration,12 respondent admitted that he caused the transfer of
ownership to the parcel of land to Stier. Respondent, however, aware of the
prohibition, quickly rectified his act and transferred the title in complainant’s
name. But respondent provided "some safeguards" by preparing several
documents,13including the Occupancy Agreement, that would guarantee
Stier’s recognition as the actual owner of the property despite its transfer in
complainant’s name. In effect, respondent advised and aided Stier in
circumventing the constitutional prohibition against foreign ownership of
lands14 by preparing said documents.
Respondent had sworn to uphold the Constitution. Thus, he violated his oath
and the Code when he prepared and notarized the Occupancy Agreement to
evade the law against foreign ownership of lands. Respondent used his
knowledge of the law to achieve an unlawful end. Such an act amounts to
malpractice in his office, for which he may be suspended.15
In Balinon v. De Leon,16 respondent Atty. De Leon was suspended from the
practice of law for three years for preparing an affidavit that virtually permitted
him to commit concubinage. In In re: Santiago,17 respondent Atty. Santiago
was suspended from the practice of law for one year for preparing a contract
which declared the spouses to be single again after nine years of separation
and allowed them to contract separately subsequent marriages.
WHEREFORE, we find respondent Atty. Emmanuel O. Tansingco
GUILTY of violation of Canon 1 and Rule 1.02 of the Code of Professional
Responsibility. Accordingly, we SUSPEND respondent Atty. Emmanuel O.
Tansingco from the practice of law for SIX MONTHS effective upon finality of
this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant to be
appended to respondent’s personal record as an attorney, the Integrated Bar
of the Philippines, the Department of Justice, and all courts in the country for
their information and guidance.
SO ORDERED.
G.R. No. 1203, In re Terrell, 2 Phil. 266
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
In the matter of the suspension of HOWARD D. TERRELL from the
practice of law.
Solicitor-General Araneta for Government.
W. A. Kincaid for defendant.
PER CURIAM:
Howard D. Terrell, an attorney-at-law, was ordered to show cause in the
Court of First Instance, in the city of Manila, on the 5th day of February, 1903,
why he should not be suspended as a member of the bar of the city of Manila
for the reasons:
First, that he had assisted in the organization of the "Centro Bellas Artes"
Club, after he had been notified that the said organization was made for the
purpose of evading the law then in force in said city; and,
Secondly, for acting as attorney for said "Centro Bellas Artes" during the time
of and after its organization, which organization was known to him to be
created for the purpose of evading the law.
The accused appeared on the return day, and by his counsel, W. A. Kincaid,
made answer to these charges, denying the same, and filed affidavits in
answer thereto. After reading testimony given by said Howard D. Terrell, in
the case of the United States vs. H. D. Terrell,1 wherein he was charged with
estafa, and after reading the said affidavits in his behalf, and hearing his
counsel, the court below found, and decided as a fact, that the charges
aforesaid made against Howard D. Terrell were true, and thereupon made
an order suspending him from his office as a lawyer in the Philippine Islands,
and directed the clerk of the court to transmit to this court a certified copy of
Page 55
the order of suspension, as well as a full statement of the facts upon which
the same was based.
We have carefully considered these facts, and have reached the conclusion
that they were such as to justify the court below in arriving at the conclusion
that the knowledge and acts of the accused in connection with the
organization of the "Centro Bellas Artes" Club were of such a nature and
character as to warrant his suspension from practice.
The promoting of organizations, with knowledge of their objects, for the
purpose of violating or evading the laws against crime constitutes such
misconduct on the part of an attorney, an officer of the court, as amounts to
malpractice or gross misconduct in his office, and for which he may be
removed or suspended. (Code of Civil Procedure, sec. 21.) The assisting of
a client in a scheme which the attorney knows to be dishonest, or the
conniving at a violation of law, are acts which justify disbarment.
In this case, however, inasmuch as the defendant in the case of the United
States, vs. Terrell was acquitted on the charge of estafa, and has not,
therefore, been convicted of crime, and as the acts with which he is charged
in this proceeding, while unprofessional and hence to be condemned, are not
criminal in their nature, we are of opinion that the ends of justice will be
served by the suspension of said Howard D. Terrell from the practice of law
in the Philippine Islands for the term of one year from the 7th day of February,
1903.
It is therefore directed that the said Howard D. Terrell be suspended from the
practice of law for a term of one year from February 7, 1903. It is so ordered.
[G.R. No. 159486-88. November 25, 2003]
PRESIDENT JOSEPH EJERCITO ESTRADA, petitioner, vs. THE
HONORABLE SANDIGANBAYAN [SPECIAL DIVISION], HON. MINITA
CHICO-NAZARIO, HON. EDILBERTO SANDOVAL, HON. TERESITA
LEONARDO-DE CASTRO, and THE PEOPLE OF THE
PHILIPPINES, respondents.
RESOLUTION
PER CURIAM:
On 23 September 2003, this Court issued its resolution in the above-
numbered case; it read:
The case for consideration has been brought to this Court via a Petition for
Certiorari under Rule 65 of the Rules of Court filed by Joseph Ejercito
Estrada, acting through his counsel Attorney Alan F. Paguia, against the
Sandiganbayan, et al. The Petition prays
1. That Chief Justice Davide and the rest of the members of the Honorable
Court disqualify themselves from hearing and deciding this petition;
2. That the assailed resolutions of the Sandiganbayan be vacated and set
aside; and
3. That Criminal Cases No. 26558, No. 26565 and No. 26905 pending before
the Sandiganbayan be dismissed for lack of jurisdiction.
Attorney Alan F. Paguia, speaking for petitioner, asserts that the inhibition of
the members of the Supreme Court from hearing the petition is called for
under Rule 5.10 of the Code of Judicial Conduct prohibiting justices or judges
from participating in any partisan political activity which proscription,
according to him, the justices have violated by attending the EDSA 2 Rally
and by authorizing the assumption of Vice-President Gloria Macapagal
Arroyo to the Presidency in violation of the 1987 Constitution. Petitioner
contends that the justices have thereby prejudged a case that would assail
the legality of the act taken by President Arroyo. The subsequent decision of
the Court in Estrada v. Arroyo (353 SCRA 452 and 356 SCRA 108) is,
petitioner states, a patent mockery of justice and due process.
Attorney Paguia first made his appearance for petitioner when he filed an
Omnibus Motion on 19 May 2003, before the Sandiganbayan, asking that the
appointment of counsels de officio (sic) be declaredfunctus officio and that,
being the now counsel de parte, he be notified of all subsequent proceedings
in Criminal Cases No. 26558, No. 26565 and No. 26905 pending therein.
Finally, Attorney Paguia asked that all the foregoing criminal cases against
his client be dismissed.
During the hearing of the Omnibus Motion on 30 May 2003, petitioner
presented to the court several portions of the book, entitled Reforming the
Judiciary, written by Justice Artemio Panganiban, to be part of the evidence
for the defense. On 9 June 2003, petitioner filed a motion pleading, among
other things, that
a) x x x President Estrada be granted the opportunity to prove the truth of the
statements contained in Justice Artemio Panganibans book, REFORMING
THE JUDICIARY, in relation to the prejudgment committed by the Supreme
Court justices against President Estrada in the subject case/s of Estrada v.
Arroyo, 353 SCRA 452 and 356 SCRA 108; and,
b) A subpoena ad testificandum and duces tecum be issued to Justice
Artemio Panganiban, Justice Antonio Carpio, Justice Renato Corona,
Secretary Angelo Reyes of the Department of National Defense, Vice
President Gloria Macapagal-Arroyo, Senator Aquilino Pimentel, Jr., and
Chief Justice Hilario Davide, Jr. for them to testify and bring whatever
supporting documents they may have in relation to their direct and indirect
participation in the proclamation of Vice President Gloria Macapagal Arroyo
on January 20, 2001, as cited in the book of Justice Panganiban, including
the material events that led to that proclamation and the ruling/s in the
Estrada vs. Arroyo, supra. (Rollo, pp. 6-7.)
The truth referred to in paragraph a) of the relief sought in the motion of
petitioner pertains to what he claims should have been included in the
resolution of the Sandiganbayan; viz:
The request of the movant is simply for the Court to include in its Joint
Resolution the TRUTH of the acts of Chief Justice Davide, et al., last January
20, 2001 in:
a) going to EDSA 2;
b) authorizing the proclamation of Vice-President Arroyo as President on the
ground of permanent disability even without proof of compliance with the
corresponding constitutional conditions, e.g., written declaration by either the
President or majority of his cabinet; and
c) actually proclaiming Vice-President Arroyo on that same ground of
permanent disability.
It is patently unreasonable for the Court to refuse to include these material
facts which are obviously undeniable. Besides, it is the only defense of
President Estrada. (Petition, Rollo, pp. 13-14.)
On 2 July 2003, the Sandiganbayan issued an order denying the foregoing
motion, as well as the motion to dismiss, filed by petitioner. Forthwith,
petitioner filed a Mosyong Pangrekonsiderasyon of the foregoing order.
According to Attorney Paguia, during the hearing of his Mosyong
Pangrekonsiderasyon on 11 June 2003, the three justices of the Special
Division of the Sandiganbayan made manifest their bias and partiality against
his client. Thus, he averred, Presiding Justice Minita V. Chico-Nazario
supposedly employed foul and disrespectful language when she blurted
out, Magmumukha naman kaming gago, (Rollo, p. 13.) and Justice Teresita
Leonardo-De Castro characterized the motion as insignificant even before
the prosecution could file its comments or opposition thereto, (Rollo, p. 12.)
remarking in open court that to grant Estradas motion would result in chaos
and disorder. (Ibid.) Prompted by the alleged bias and partial attitude of the
Sandiganbayan justices, Attorney Paguia filed, on 14 July 2003, a motion for
their disqualification. On 31 July 2003, petitioner received the two assailed
resolutions, i.e., the resolution (Promulgated on 30 July 2003.) of 28 July
2003, denying petitioners motion for reconsideration of 6 July 2003; viz:
WHEREFORE, premises considered, accused-movant Joseph Ejercito
Estradas Mosyong Pangrekonsiderasyon (Na tumutukoy sa Joint Resolution
ng Hulyo 2, 2003) dated July 6, 2003 is DENIED for lack of merit. (Rollo, p.
37.)
and the resolution (Promulgated on 30 July 2003.) of 25 July 2003, denying
petitioners motion for disqualification of 14 July 2003; viz:
WHEREFORE, prescinding from all the foregoing, the Court, for want of
merit, hereby DENIES the Motion for Disqualification. (Rollo, p. 48.)
The instant petition assailing the foregoing orders must be DISMISSED for
gross insufficiency in substance and for utter lack of merit. The
Sandiganbayan committed no grave abuse of discretion, an indispensable
requirement to warrant a recourse to the extraordinary relief of petition for
certiorari under Rule 65 of the Revised Rules of Civil Procedure. On the one
Page 56
hand, petitioner would disclaim the authority and jurisdiction of the members
of this tribunal and, on the other hand, he would elevate the petition
now before it to challenge the two resolutions of the Sandiganbayan. He
denounces the decision as being a patent mockery of justice and due
process. Attorney Pagula went on to state that-
The act of the public officer, if LAWFUL, is the act of the public office. But the
act of the public officer, if UNLAWFUL, is not the act of the public office.
Consequently, the act of the justices, if LAWFUL, is the act of the Supreme
Court. But the act of the justices, if UNLAWFUL, is not the act of the Supreme
Court. It is submitted that the Decision in ESTRADA vs. ARROYO being
patently unlawful in view of Rule 5.10 of the CODE OF JUDICIAL CONDUCT,
is not the act of the Supreme Court but is merely the wrong or trespass of
those individual Justices who falsely spoke and acted in the name of the
Supreme Court. (Urbano vs. Chavez, 183 SCRA [347]). Furthermore, it
would seem absurd to allow the Justices to use the name of the Supreme
Court as a shield for their UNLAWFUL act. (Petition, Rollo, p. 11.)
Criticism or comment made in good faith on the correctness or wrongness,
soundness or unsoundness, of a decision of the Court would be welcome for,
if well-founded, such reaction can enlighten the court and contribute to the
correction of an error if committed. (In Re Sotto, 82 Phil 595.)
The ruling in Estrada v. Arroyo, being a final judgment, has long put to end
any question pertaining to the legality of the ascension of Arroyo into the
presidency. By reviving the issue on the validity of the assumption of Mme.
Gloria Macapagal-Arroyo to the presidency, Attorney Paguia is vainly
seeking to breathe life into the carcass of a long dead issue.
Attorney Paguia has not limited his discussions to the merits of his clients
case within the judicial forum; indeed, he has repeated his assault on the
Court in both broadcast and print media. Rule 13.02 of the Code of
Professional Responsibility prohibits a member of the bar from making such
public statements on any pending case tending to arouse public opinion for
or against a party. By his acts, Attorney Paguia may have stoked the fires of
public dissension and posed a potentially dangerous threat to the
administration of justice.
It is not the first time that Attorney Paguia has exhibited similar conduct
towards the Supreme Court. In a letter, dated 30 June 2003, addressed to
Chief Justice Hilario G. Davide, Jr., and Associate Justice Artemio V.
Panganiban, he has demanded, in a clearly disguised form of forum
shopping, for several advisory opinions on matters pending before the
Sandiganbayan. In a resolution, dated 08 July 2003, this Court has strongly
warned Attorney Alan Paguia, on pain of disciplinary sanction, to desist from
further making, directly or indirectly, similar submissions to this Court or to its
Members. But, unmindful of the well-meant admonition to him by the Court,
Attorney Paguia appears to persist on end.
WHEREFORE, the instant petition for certiorari is DISMISSED, and the Court
hereby orders Attorney Alan Paguia, counsel for petitioner Joseph Ejercito
Estrada, to SHOW CAUSE, within ten days from notice hereof, why he should
not be sanctioned for conduct unbecoming a lawyer and an officer of the
Court.
On 10 October 2003, Atty. Paguia submitted his compliance with the show-
cause order. In a three-page pleading, Atty. Paguia, in an obstinate display
of defiance, repeated his earlier claim of political partisanship against the
members of the Court.
Canon 5.10 of the Code of Judicial Conduct, which Atty. Paguia has tirelessly
quoted to give some semblance of validity for his groundless attack on the
Court and its members, provides -
Rule 5.10. A judge is entitled to entertain personal views on political
questions. But to avoid suspicion of political partisanship, a judge shall not
make political speeches, contribute to party funds, publicly endorse
candidates for political office or participate in other partisan political activities.
Section 79(b) of the Omnibus Election Code defines the term partisan
political activities; the law states:
The term election campaign or partisan political activity refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups
of persons for the purpose of soliciting votes and/or undertaking any
campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate.
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to
support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
It should be clear that the phrase partisan political activities, in its statutory
context, relates to acts designed to cause the success or the defeat of a
particular candidate or candidates who have filed certificates of candidacy to
a public office in an election. The taking of an oath of office by any incoming
President of the Republic before the Chief Justice of the Philippines is a
traditional official function of the Highest Magistrate. The assailed presence
of other justices of the Court at such an event could be no different from their
appearance in such other official functions as attending the Annual State of
the Nation Address by the President of the Philippines before the Legislative
Department.
The Supreme Court does not claim infallibility; it will not denounce criticism
made by anyone against the Court for, if well-founded, can truly have
constructive effects in the task of the Court, but it will not countenance any
wrongdoing nor allow the erosion of our peoples faith in the judicial system,
let alone, by those who have been privileged by it to practice law in the
Philippines.
Canon 11 of the Code of Professional Responsibility mandates that the
lawyer should observe and maintain the respect due to the courts and judicial
officers and, indeed, should insist on similar conduct by others. In liberally
imputing sinister and devious motives and questioning the impartiality,
integrity, and authority of the members of the Court, Atty. Paguia has only
succeeded in seeking to impede, obstruct and pervert the dispensation of
justice.
The attention of Atty. Paguia has also been called to the mandate of Rule
13.02 of the Code of Professional Responsibility prohibiting a member of the
bar from making such public statements on a case that may tend to arouse
public opinion for or against a party. Regrettably, Atty. Paguia has persisted
in ignoring the Courts well-meant admonition.
On the 7th September 2003 issue of the Daily Tribune, Atty. Paguia wrote to
say -
What is the legal effect of that violation of President Estradas right to due
process of law? It renders the decision in Estrada vs. Arroyo unconstitutional
and void. The rudiments of fair play were not observed. There was no fair
play since it appears that when President Estrada filed his petition, Chief
Justice Davide and his fellow justices had already committed to the other
party - GMA - with a judgment already made and waiting to be formalized
after the litigants shall have undergone the charade of a formal hearing. After
the justices had authorized the proclamation of GMA as president, can they
be expected to voluntarily admit the unconstitutionality of their own act?
Unrelentingly, Atty. Paguia has continued to make public statements of like
nature.
The Court has already warned Atty. Paguia, on pain of disciplinary sanction,
to become mindful of his grave responsibilities as a lawyer and as an officer
of the Court. Apparently, he has chosen not to at all take heed.
WHEREFORE, Attorney Alan Paguia is hereby indefinitely suspended from
the practice of law, effective upon his receipt hereof, for conduct unbecoming
a lawyer and an officer of the Court.
Let copies of this resolution be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines and all courts of the land through the Office
of the Court Administrator.
SO ORDERED.
RULE 1.03: NOT TO ENCOURAGE LAWSUIT OR PROCEEDINGS
A lawyer shall not, for any corrupt motive or interest, encourage any
Page 57
suit or proceeding or delay any man's cause.
[A.C. No. 4497. September 26, 2001]
MR. and MRS. VENUSTIANO G. SABURNIDO, complainants, vs. ATTY.
FLORANTE E. MADROO,[1] respondent.
DECISION
QUISUMBING, J.:
For our resolution is the administrative complaint[2] for disbarment of
respondent, Atty. Florante E. Madroo, filed by spouses Venustiano and
Rosalia Saburnido. Complainants allege that respondent has been harassing
them by filing numerous complaints against them, in addition to committing
acts of dishonesty.
Complainant Venustiano Saburnido is a member of the Philippine National
Police stationed at Balingasag, Misamis Oriental, while his wife Rosalia is a
public school teacher. Respondent is a former judge of the Municipal Circuit
Trial Court, Balingasag-Lagonglong, Misamis Oriental.
Previous to this administrative case, complainants also filed three separate
administrative cases against respondent.
In A. M. No. MTJ-90-383,[3] complainant Venustiano Saburnido filed charges
of grave threats and acts unbecoming a member of the judiciary against
respondent. Respondent was therein found guilty of pointing a high-powered
firearm at complainant, who was unarmed at the time, during a heated
altercation. Respondent was accordingly dismissed from the service with
prejudice to reemployment in government but without forfeiture of retirement
benefits.
Respondent was again administratively charged in the consolidated cases of
Sealana-Abbu v. Judge Madrono, A.M. No. 92-1-084-RTC and Sps.
Saburnido v. Judge Madrono, A.M. No. MTJ-90-486.[4]In the first case,
Assistant Provincial Prosecutor Florencia Sealana-Abbu charged that
respondent granted and reduced bail in a criminal case without prior notice
to the prosecution. In the second case, the spouses Saburnido charged that
respondent, in whose court certain confiscated smuggled goods were
deposited, allowed other persons to take the goods but did not issue the
corresponding memorandum receipts. Some of the goods were lost while
others were substituted with damaged goods. Respondent was found guilty
of both charges and his retirement benefits were forfeited.
In the present case, the spouses Saburnido allege that respondent has been
harassing them by filing numerous complaints against them, namely:
1. Adm. Case No. 90-0755,[5] for serious irregularity, filed by respondent
against Venustiano Saburnido. Respondent claimed that Venustiano lent his
service firearm to an acquaintance who thereafter extorted money from
public jeepney drivers while posing as a member of the then Constabulary
Highway Patrol Group.
2. Adm. Case No. 90-0758,[6] for falsification, filed by respondent against
Venustiano Saburnido and two others. Respondent averred that Venustiano,
with the help of his co-respondents in the case, inserted an entry in the police
blotter regarding the loss of Venustianos firearm.
3. Crim. Case No. 93-67,[7] for evasion through negligence under Article 224
of the Revised Penal Code, filed by respondent against Venustiano
Saburnido. Respondent alleged that Venustiano Saburnido, without
permission from his superior, took into custody a prisoner by final judgment
who thereafter escaped.
4. Adm. Case No. 95-33,[8] filed by respondent against Rosalia Saburnido for
violation of the Omnibus Election Code. Respondent alleged that Rosalia
Saburnido served as chairperson of the Board of Election Inspectors during
the 1995 elections despite being related to a candidate for barangay
councilor.
At the time the present complaint was filed, the three actions filed against
Venustiano Saburnido had been dismissed while the case against Rosalia
Saburnido was still pending.
Complainants allege that respondent filed those cases against them in
retaliation, since they had earlier filed administrative cases against him that
resulted in his dismissal from the judiciary. Complainants assert that due to
the complaints filed against them, they suffered much moral, mental,
physical, and financial damage. They claim that their children had to stop
going to school since the family funds were used up in attending to their
cases.
For his part, respondent contends that the grounds mentioned in the
administrative cases in which he was dismissed and his benefits forfeited did
not constitute moral turpitude. Hence, he could not be disbarred therefor. He
then argues that none of the complaints he filed against complainants was
manufactured. He adds that he was so unlucky that Saburnido was not
convicted.[9] He claims that the complaint for serious irregularity against
Venustiano Saburnido was dismissed only because the latter was able to
antedate an entry in the police blotter stating that his service firearm was lost.
He also points out that Venustiano was suspended when a prisoner escaped
during his watch. As for his complaint against Rosalia Saburnido, respondent
contends that by mentioning this case in the present complaint, Rosalia
wants to deprive him of his right to call the attention of the proper authorities
to a violation of the Election Code.
In their reply, complainants reiterate their charge that the cases against them
were meant only to harass them. In addition, Rosalia Saburnido stressed that
she served in the BEI in 1995 only because the supposed chairperson was
indisposed. She stated that she told the other BEI members and the
pollwatchers that she was related to one candidate and that she would desist
from serving if anyone objected.Since nobody objected, she proceeded to
dispense her duties as BEI chairperson. She added that her relative lost in
that election while respondents son won.
In a resolution dated May 22, 1996,[10] we referred this matter to the
Integrated Bar of the Philippines (IBP) for investigation, report, and
recommendation.
In its report submitted to this Court on October 16, 2000, the IBP noted that
respondent and his counsel failed to appear and present evidence in the
hearing of the case set for January 26, 2000, despite notice. Thus,
respondent was considered to have waived his right to present evidence in
his behalf during said hearing. Neither did respondent submit his
memorandum as directed by the IBP.
After evaluating the evidence before it, the IBP concluded that complainants
submitted convincing proof that respondent indeed committed acts
constituting gross misconduct that warrant the imposition of administrative
sanction. The IBP recommends that respondent be suspended from the
practice of law for one year.
We have examined the records of this case and find no reason to disagree
with the findings and recommendation of the IBP.
A lawyer may be disciplined for any conduct, in his professional or private
capacity, that renders him unfit to continue to be an officer of the court.[11]
Canon 7 of the Code of Professional Responsibility commands all lawyers to
at all times uphold the dignity and integrity of the legal profession.
Specifically, in Rule 7.03, the Code provides:
Rule 7.03. -- A lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor shall he whether in public or private life, behave
in a scandalous manner to the discredit of the legal profession.
Clearly, respondents act of filing multiple complaints against herein
complainants reflects on his fitness to be a member of the legal profession.
His act evinces vindictiveness, a decidedly undesirable trait whether in a
lawyer or another individual, as complainants were instrumental in
respondents dismissal from the judiciary. We see in respondents tenacity in
pursuing several cases against complainants not the persistence of one who
has been grievously wronged but the obstinacy of one who is trying to exact
revenge.
Respondents action erodes rather than enhances public perception of the
legal profession. It constitutes gross misconduct for which he may be
suspended, following Section 27, Rule 138 of the Rules of Court, which
provides:
SEC. 27. Disbarment or 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 wilful
Page 58
disobedience appearing as an attorney for a party to a case without authority
so to do. xxx
LEGAL ETHICS
Complainants ask that respondent be disbarred. However, we find that
suspension from the practice of law is sufficient to discipline respondent.
The supreme penalty of 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.[12] While we will not hesitate to remove an erring
attorney from the esteemed brotherhood of lawyers, where the evidence calls
for it, we will also not disbar him where a lesser penalty will suffice to
accomplish the desired end.[13] In this case, we find suspension to be a
sufficient sanction against respondent. Suspension, we may add, is not
primarily intended as a punishment, but as a means to protect the public and
the legal profession.[14]
WHEREFORE, respondent Atty. Florante E. Madroo is found GUILTY of
gross misconduct and is SUSPENDED from the practice of law for one year
with a WARNING that a repetition of the same or similar act will be dealt with
more severely. Respondents suspension is effective upon his receipt of
notice of this decision. Let notice of this decision be spread in respondents
record as an attorney in this Court, and notice of the same served on the
Integrated Bar of the Philippines and on the Office of the Court Administrator
for circulation to all the courts concerned.
SO ORDERED.
PEDRO L. LINSANGAN, A.C. No. 6672
Complainant,
- v e r s u s -.
ATTY. NICOMEDES TOLENTINO,
Respondent.
Promulgated:
September 4, 2009
x ---------------------------------------------------------------------------- x
RESOLUTION
CORONA, J.:
This is a complaint for disbarment[1] filed by Pedro Linsangan of the
Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes
Tolentino for solicitation of clients and encroachment of professional
services.
Complainant alleged that respondent, with the help of paralegal Fe Marie
Labiano, convinced his clients[2] to transfer legal representation. Respondent
promised them financial assistance[3] and expeditious collection on their
claims.[4] To induce them to hire his services, he persistently called them and
sent them text messages.
To support his allegations, complainant presented the sworn affidavit[5] of
James Gregorio attesting that Labiano tried to prevail upon him to sever his
lawyer-client relations with complainant and utilize respondents services
instead, in exchange for a loan of P50,000. Complainant also attached
respondents calling card:[6]
Front
NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE
Fe Marie L. Labiano
Paralegal
1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820
6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
Grace Park, Caloocan City Cel.: (0926) 2701719
PINEDAPCGRNMAN
Back
SERVICES OFFERED:
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT,
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
ABROAD.
(emphasis supplied)
Hence, this complaint.
Respondent, in his defense, denied knowing Labiano and authorizing the
printing and circulation of the said calling card.[7]
The complaint was referred to the Commission on Bar Discipline (CBD) of
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.[8]
Based on testimonial and documentary evidence, the CBD, in its report and
recommendation,[9] found that respondent had encroached on the
professional practice of complainant, violating Rule 8.02[10] and other
canons[11] of the Code of Professional Responsibility (CPR). Moreover, he
contravened the rule against soliciting cases for gain, personally or through
paid agents or brokers as stated in Section 27, Rule 138[12] of the Rules of
Court. Hence, the CBD recommended that respondent be reprimanded with
a stern warning that any repetition would merit a heavier penalty.
We adopt the findings of the IBP on the unethical conduct of respondent but
we modify the recommended penalty.
The complaint before us is rooted on the alleged intrusion by respondent into
complainants professional practice in violation of Rule 8.02 of the CPR. And
the means employed by respondent in furtherance of the said misconduct
themselves constituted distinct violations of ethical rules.
Canons of the CPR are rules of conduct all lawyers must adhere to, including
the manner by which a lawyers services are to be made known. Thus, Canon
3 of the CPR provides:
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL
USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION OR STATEMENT OF FACTS.
Time and time again, lawyers are reminded that the practice of law is a
profession and not a business; lawyers should not advertise their talents as
merchants advertise their wares.[13] To allow a lawyer to advertise his talent
or skill is to commercialize the practice of law, degrade the profession in the
publics estimation and impair its ability to efficiently render that high character
of service to which every member of the bar is called.[14]
Rule 2.03 of the CPR provides:
RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY
ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.
Hence, lawyers are prohibited from soliciting cases for the purpose of gain,
either personally or through paid agents or brokers.[15] Such actuation
constitutes malpractice, a ground for disbarment.[16]
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which
provides:
RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR
INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY
MANS CAUSE.
Page 59
This rule proscribes ambulance chasing (the solicitation of almost any kind
of legal business by an attorney, personally or through an agent in order to
LEGAL ETHICS
gain employment)[17] as a measure to protect the community from barratry
and champerty.[18]
Complainant presented substantial evidence[19] (consisting of the sworn
statements of the very same persons coaxed by Labiano and referred to
respondents office) to prove that respondent indeed solicited legal business
as well as profited from referrals suits.
Although respondent initially denied knowing Labiano in his answer, he later
admitted it during the mandatory hearing.
Through Labianos actions, respondents law practice was benefited. Hapless
seamen were enticed to transfer representation on the strength of Labianos
word that respondent could produce a more favorable result.
Based on the foregoing, respondent clearly solicited employment violating
Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138
of the Rules of Court.
With regard to respondents violation of Rule 8.02 of the CPR, settled is the
rule that a lawyer should not steal another lawyers client nor induce the latter
to retain him by a promise of better service, good result or reduced fees for
his services.[20] Again the Court notes that respondent never denied having
these seafarers in his client list nor receiving benefits from Labianos referrals.
Furthermore, he never denied Labianos connection to his office.[21]
Respondent committed an unethical, predatory overstep into anothers legal
practice. He cannot escape liability under Rule 8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients as
borrowers, respondent violated Rule 16.04:
Rule 16.04 A lawyer shall not borrow money from his client unless the clients
interests are fully protected by the nature of the case or by independent
advice. Neither shall a lawyer lend money to a client except, when in the
interest of justice, he has to advance necessary expenses in a legal matter
he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only exception
is, when in the interest of justice, he has to advance necessary expenses
(such as filing fees, stenographers fees for transcript of stenographic notes,
cash bond or premium for surety bond, etc.) for a matter that he is handling
for the client.
The rule is intended to safeguard the lawyers independence of mind so that
the free exercise of his judgment may not be adversely affected.[22] It seeks
to ensure his undivided attention to the case he is handling as well as his
entire devotion and fidelity to the clients cause. If the lawyer lends money to
the client in connection with the clients case, the lawyer in effect acquires an
interest in the subject matter of the case or an additional stake in its
outcome.[23] Either of these circumstances may lead the lawyer to consider
his own recovery rather than that of his client, or to accept a settlement which
may take care of his interest in the verdict to the prejudice of the client in
violation of his duty of undivided fidelity to the clients cause.[24]
As previously mentioned, any act of solicitation constitutes malpractice[25]
which calls for the exercise of the Courts disciplinary powers. Violation of
anti-solicitation statutes warrants serious sanctions for initiating contact with
a prospective client for the purpose of obtaining employment.[26] Thus, in this
jurisdiction, we adhere to the rule to protect the public from the Machiavellian
machinations of unscrupulous lawyers and to uphold the nobility of the legal
profession.
Considering the myriad infractions of respondent (including violation of the
prohibition on lending money to clients), the sanction recommended by the
IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed penalty
is grossly incommensurate to its findings.
A final word regarding the calling card presented in evidence by petitioner. A
lawyers best advertisement is a well-merited reputation for professional
capacity and fidelity to trust based on his character and conduct.[27] For this
PINEDAPCGRNMAN
reason, lawyers are only allowed to announce their services by publication in
reputable law lists or use of simple professional cards.
Professional calling cards may only contain the following details:
(a) lawyers name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.[28]
Labianos calling card contained the phrase with financial assistance. The
phrase was clearly used to entice clients (who already had representation) to
change counsels with a promise of loans to finance their legal actions. Money
was dangled to lure clients away from their original lawyers, thereby taking
advantage of their financial distress and emotional vulnerability. This crass
commercialism degraded the integrity of the bar and deserved no place in
the legal profession. However, in the absence of substantial evidence to
prove his culpability, the Court is not prepared to rule that respondent was
personally and directly responsible for the printing and distribution of
Labianos calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules
1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional
Responsibility and Section 27, Rule 138 of the Rules of Court is hereby
SUSPENDED from the practice of law for a period of one year effective
immediately from receipt of this resolution. He is STERNLY WARNED that a
repetition of the same or similar acts in the future shall be dealt with more
severely.
Let a copy of this Resolution be made part of his records in the Office of the
Bar Confidant, Supreme Court of the Philippines, and be furnished to the
Integrated Bar of the Philippines and the Office of the Court Administrator to
be circulated to all courts.
SO ORDERED.
RULE 1.04: ENCOURAGE CLIENT TO AVOID CONTROVERSY
A lawyer shall encourage his clients to avoid, end or settle a
controversy if it will admit of a fair settlement.
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION),
CEBU CITY, and JON DE YSASI,respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in this
case, notwithstanding the vinculum of paternity and filiation between the
parties. It would indeed have been the better part of reason if herein petitioner
and private respondent had reconciled their differences in an extrajudicial
atmosphere of familial amity and with the grace of reciprocal concessions.
Father and son opted instead for judicial intervention despite the inevitable
acrimony and negative publicity. Albeit with distaste, the Court cannot
proceed elsewise but to resolve their dispute with the same reasoned
detachment accorded any judicial proceeding before it.
The records of this case reveal that petitioner was employed by his father,
herein private respondent, as farm administrator of Hacienda Manucao in
Hinigaran, Negros Occidental sometime in April, 1980. Prior thereto, he was
successively employed as sales manager of Triumph International (Phil.),
Page 60
Inc. and later as operations manager of Top Form Manufacturing (Phil.), Inc.
His employment as farm administrator was on a fixed salary, with other
LEGAL ETHICS
allowances covering housing, food, light, power, telephone, gasoline,
medical and dental expenses.
As farm administrator, petitioner was responsible for the supervision of daily
activities and operations of the sugarcane farm such as land preparation,
planting, weeding, fertilizing, harvesting, dealing with third persons in all
matters relating to the hacienda and attending to such other tasks as may be
assigned to him by private respondent. For this purpose, he lived on the farm,
occupying the upper floor of the house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City
with his wife and commuted to work daily. He suffered various ailments and
was hospitalized on two separate occasions in June and August, 1982. In
November, 1982, he underwent fistulectomy, or the surgical removal of the
fistula, a deep sinuous ulcer. During his recuperation which lasted over four
months, he was under the care of Dr. Patricio Tan. In June, 1983, he was
confined for acute gastroenteritis and, thereafter, for infectious hepatitis from
December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took
care of his medical expenses and petitioner continued to receive
compensation. However, in April, 1984, without due notice, private
respondent ceased to pay the latter's salary. Petitioner made oral and written
demands for an explanation for the sudden withholding of his salary from
Atty. Apolonio Sumbingco, private respondent's auditor and legal adviser, as
well as for the remittance of his salary. Both demands, however, were not
acted upon.
Petitioner then filed an action with the National Labor Relations Commission
(NLRC, for brevity), Regional Arbitration Branch No. VI, Bacolod City, on
October 17, 1984, docketed therein as RAB Case No. 0452-84, against
private respondent for illegal dismissal with prayer for reinstatement without
loss of seniority rights and payment of full back wages, thirteenth month pay
for 1983, consequential, moral and exemplary damages, as well as attorney's
fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by the
NLRC, 1 holding that petitioner abandoned his work and that the termination
of his employment was for a valid cause, but ordering private respondent to
pay petitioner the amount of P5,000.00 as penalty for his failure to serve
notice of said termination of employment to the Department of Labor and
Employment as required by Batas Pambansa Blg. 130 and consonant with
this Court's ruling in Wenphil Corporation vs. National Labor Relations
Commission, et al. 2 On appeal to the Fourth Division of the NLRC, Cebu
City, said decision was affirmed in toto. 3
His motion for reconsideration 4 of said decision having been denied for lack
of merit, 5 petitioner filed this petition presenting the following issues for
resolution: (1) whether or not the petitioner was illegally dismissed; (2)
whether or not he is entitled to reinstatement, payment of back wages,
thirteenth month pay and other benefits; and (3) whether or not he is entitled
to payment of moral and exemplary damages and attorney's fees because of
illegal dismissal. The discussion of these issues will necessarily subsume the
corollary questions presented by private respondent, such as the exact date
when petitioner ceased to function as farm administrator, the character of the
pecuniary amounts received by petitioner from private respondent, that is,
whether the same are in the nature of salaries or pensions, and whether or
not there was abandonment by petitioner of his functions as farm
administrator.
In his manifestation dated September 14, 1992, the Solicitor General
recommended a modification of the decision of herein public respondent
sustaining the findings and conclusions of the Executive Labor Arbiter in RAB
Case No. 0452-84, 6 for which reason the NLRC was required to submit its
own comment on the petition. In compliance with the Court's resolution of
November 16, 1992, 7 NLRC filed its comment on February 12, 1992 largely
reiterating its earlier position in support of the findings of the Executive Labor
Arbiter. 8
Before proceeding with a discussion of the issues, the observation of the
labor arbiter is worth noting:
This case is truly unique. What makes this case unique is the fact that
because of the special relationship of the parties and the nature of the action
PINEDAPCGRNMAN
involved, this case could very well go down (in) the annals of the Commission
as perhaps the first of its kind. For this case is an action filed by an only son,
his father's namesake, the only child and therefore the only heir against his
own father. 9
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2) observations were
noted that may justify why this labor case deserves special considerations.
First, most of the complaints that petitioner and private respondent had with
each other, were personal matters affecting father and son relationship. And
secondly, if any of the complaints pertain to their work, they allow their
personal relationship to come in the way. 10
I. Petitioner maintains that his dismissal from employment was illegal
because of want of just cause therefor and non-observance of the
requirements of due process. He also charges the NLRC with grave abuse
of discretion in relying upon the findings of the executive labor arbiter who
decided the case but did not conduct the hearings thereof.
Private respondent, in refutation, avers that there was abandonment by
petitioner of his functions as farm administrator, thereby arming private
respondent with a ground to terminate his employment at Hacienda
Manucao. It is also contended that it is wrong for petitioner to question the
factual findings of the executive labor arbiter and the NLRC as only questions
of law may be appealed for resolution by this Court. Furthermore, in seeking
the dismissal of the instant petition, private respondent faults herein petitioner
for failure to refer to the corresponding pages of the transcripts of
stenographic notes, erroneously citing Sections 15(d) and 16(d), Rule 44
(should be Section 16[c] and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide that
want of page references to the records is a ground for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the Labor
Code that technical rules of evidence prevailing in courts of law and equity
shall not be controlling, and that every and all reasonable means to speedily
and objectively ascertain the facts in each case shall be availed of, without
regard to technicalities of law or procedure in the interest of due process.
It is settled that it is not procedurally objectionable for the decision in a case
to be rendered by a judge, or a labor arbiter for that matter, other than the
one who conducted the hearing. The fact that the judge who heard the case
was not the judge who penned the decision does not impair the validity of the
judgment, 11 provided that he draws up his decision and resolution with due
care and makes certain that they truly and accurately reflect conclusions and
final dispositions on the bases of the facts of and evidence submitted in the
case. 12
Thus, the mere fact that the case was initially assigned to Labor Arbiter
Ricardo T. Octavio, who conducted the hearings therein from December 5,
1984 to July 11, 1985, and was later transferred to Executive Labor Arbiter
Oscar S. Uy, who eventually decided the case, presents no procedural
infirmity, especially considering that there is a presumption of regularity in the
performance of a public officer's functions, 13 which petitioner has not
successfully rebutted.
We are constrained to heed the underlying policy in the Labor Code relaxing
the application of technical rules of procedure in labor cases in the interest of
due process, ever mindful of the long-standing legal precept that rules of
procedure must be interpreted to help secure, not defeat, justice. For this
reason, we cannot indulge private respondent in his tendency to nitpick on
trivial technicalities to boost his arguments. The strength of one's position
cannot be hinged on mere procedural niceties but on solid bases in law and
jurisprudence.
The fundamental guarantees of security of tenure and due process dictate
that no worker shall be dismissed except for just and authorized cause
provided by law and after due process. 14 Article 282 of the Labor Code
enumerates the causes for which an employer may validly terminate an
employment, to wit:
(a) serious misconduct or willful disobedience by the employee of the lawful
orders of his employer or representative in connection with his work; (b) gross
Page 61
and habitual neglect by the employee of his duties; (c) fraud or willful breach
by the employee of the trust reposed in him by his employer or duly
LEGAL ETHICS
authorized representative; (d) commission of a crime or offense by the
employee against the person of his employer or any immediate member of
his family or his duly authorized representative; and (e) other causes
analogous to the foregoing.
The employer may also terminate the services of any employee due to the
installation of labor saving devices, redundancy, retrenchment to prevent
losses or the closing or cessation of operation of the establishment or
undertaking, unless the closing is for the purpose of circumventing the
pertinent provisions of the Labor Code, by serving a written notice on the
workers and the Department of Labor and Employment at least one (1) month
before the intended date thereof, with due entitlement to the corresponding
separation pay rates provided by law.15 Suffering from a disease by reason
whereof the continued employment of the employee is prohibited by law or is
prejudicial to his and his co-employee's health, is also a ground for
termination of his services provided he receives the prescribed separation
pay. 16 On the other hand, it is well-settled that abandonment by an employee
of his work authorizes the employer to effect the former's dismissal from
employment. 17
After a careful review of the records of this case, we find that public
respondent gravely erred in affirming the decision of the executive labor
arbiter holding that petitioner abandoned his employment and was not
illegally dismissed from such employment. For want of substantial bases, in
fact or
in law, we cannot give the stamp of finality and conclusiveness normally
accorded to the factual findings of an administrative agency, such as herein
public respondent NLRC, 18 as even decisions of administrative agencies
which are declared "final" by law are not exempt from judicial review when
so warranted. 19
The following perceptive disquisitions of the Solicitor General on this point
deserve acceptance:
It is submitted that the absences of petitioner in his work from October 1982
to December 1982, cannot be construed as abandonment of work because
he has a justifiable excuse. Petitioner was suffering from perennial abscess
in the peri-anal around the anus and fistula under the medical attention of Dr.
Patricio Tan of Riverside Medical Center, Inc., Bacolod City (Tsn, Vol. III, Dr.
Tan, February 19, 1986 at 20-44).
This fact (was) duly communicated to private respondent by medical bills sent
to Hacienda Manucao (Tsn, Vol. III, Dr. Tan, January 22, 1987 at 49-50).
During the period of his illness and recovery, petitioner stayed in Bacolod
City upon the instruction(s) of private respondent to recuperate thereat and
to handle only administrative matters of the hacienda in that city. As a
manager, petitioner is not really obliged to live and stay 24 hours a day inside
Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special circumstances
involved and basic human experience, petitioner's illness and strained family
relation with respondent Jon de Ysasi II may be considered as justifiable
reason for petitioner Jon de Ysasi III's absence from work during the period
of October 1982 to December 1982. In any event, such absence does not
warrant outright dismissal without notice and hearing.
xxx xxx xxx
The elements of abandonment as a ground for dismissal of an employee are
as follows:
(1) failure to report for work or absence without valid or justifiable reason; and
(2) clear intention to sever the employer-employee tie (Samson
Alcantara, Reviewer in Labor and Social Legislation, 1989 edition, p. 133).
This Honorable Court, in several cases, illustrates what constitute
abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328), the
Court rules that for abandonment to arise, there must be a concurrence of
the intention to abandon and some overt act from which it may be inferred
that the employee has no more interest to work. Similarly, in Nueva Ecija I
Electric Cooperative, Inc. v. NLRC(184 SCRA 25), for abandonment to
constitute a valid cause for termination of employment, there must be a
deliberate, unjustified refusal of the employee to resume his employment. . .
Mere absence is not sufficient; it must be accompanied by overt acts
PINEDAPCGRNMAN
unerringly pointing to the fact that the employee simply does not want to work
anymore.
There are significant indications in this case, that there is no abandonment.
First, petitioner's absence and his decision to leave his residence inside
Hacienda Manucao, is justified by his illness and strained family relations.
Second he has some medical certificates to show his frail health. Third, once
able to work, petitioner wrote a letter (Annex "J") informing private respondent
of his intention to assume again his employment. Last, but not the least, he
at once instituted a complaint for illegal dismissal when he realized he was
unjustly dismissed. All these are indications that petitioner had no intention
to abandon his employment. 20
The records show that the parties herein do not dispute the fact of petitioner's
confinement in the hospital for his various afflictions which required medical
treatment. Neither can it be denied that private respondent was well aware
of petitioner's state of health as the former admittedly shouldered part of the
medical and hospital bills and even advised the latter to stay in Bacolod City
until he was fit to work again. The disagreement as to whether or not
petitioner's ailments were so serious as to necessitate hospitalization and
corresponding periods for recuperation is beside the point. The fact remains
that on account of said illnesses, the details of which were amply
substantiated by the attending physician, 21 and as the records are bereft of
any suggestion of malingering on the part of petitioner, there was justifiable
cause for petitioner's absence from work. We repeat, it is clear, deliberate
and unjustified refusal to resume employment and not mere absence that is
required to constitute abandonment as a valid ground for termination of
employment. 22
With his position as farm administrator of Hacienda Manucao, petitioner
unmistakably may be classified as a managerial employee 23 to whom the law
grants an amount of discretion in the discharge of his duties. This is why
when petitioner stated that "I assigned myself where I want to go," 24 he was
simply being candid about what he could do within the sphere of his authority.
His duties as farm administrator did not strictly require him to keep regular
hours or to be at the office premises at all times, or to be subjected to specific
control from his employer in every aspect of his work. What is essential only
is that he runs the farm as efficiently and effectively as possible and, while
petitioner may definitely not qualify as a model employee, in this regard he
proved to be quite successful, as there was at least a showing of increased
production during the time that petitioner was in charge of farm operations.
If, as private respondent contends, he had no control over petitioner during
the years 1983 to 1984, this is because that was the period when petitioner
was recuperating from illness and on account of which his attendance and
direct involvement in farm operations were irregular and minimal, hence the
supervision and control exercisable by private respondent as employer was
necessarily limited. It goes without saying that the control contemplated
refers only to matters relating to his functions as farm administrator and could
not extend to petitioner's personal affairs and activities.
While it was taken for granted that for purposes of discharging his duties as
farm administrator, petitioner would be staying at the house in the farm, there
really was no explicit contractual stipulation (as there was no formal
employment contract to begin with) requiring him to stay therein for the
duration of his employment or that any transfer of residence would justify the
termination of his employment. That petitioner changed his residence should
not be taken against him, as this is undeniably among his basic rights, nor
can such fact of transfer of residence per se be a valid ground to terminate
an employer-employee relationship.
Private respondent, in his pleadings, asserted that as he was yet uncertain
of his son's intention of returning to work after his confinement in the hospital,
he kept petitioner on the payroll, reported him as an employee of thehacienda
for social security purposes, and paid his salaries and benefits with the
mandated deductions therefrom until the end of December, 1982. It was only
in January, 1983 when he became convinced that petitioner would no longer
return to work that he considered the latter to have abandoned his work and,
for this reason, no longer listed him as an employee. According to private
Page 62
respondent, whatever amount of money was given to petitioner from that
time until
LEGAL ETHICS
April, 1984 was in the nature of a pension or an allowance or mere gratuitous
doles from a father to a son, and not salaries as, in fact, none of the usual
deductions were made therefrom. It was only in April, 1984 that private
respondent completely stopped giving said pension or allowance when he
was angered by what he heard petitioner had been saying about sending him
to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez taken
on oral deposition regarding petitioner's alleged statement to him, "(h)e
quemado los (p)ue(n)tes de Manucao" ("I have burned my bridges with
Manucao") as expressive of petitioner's intention to abandon his job. In
addition to insinuations of sinister motives on the part of petitioner in working
at the farm and thereafter abandoning the job upon accomplishment of his
objectives, private respondent takes the novel position that the agreement to
support his son after the latter abandoned the administration of the farm
legally converts the initial abandonment to implied voluntary resignation. 25
As earlier mentioned, petitioner ripostes that private respondent undoubtedly
knew about petitioner's illness and even paid for his hospital and other
medical bills. The assertion regarding abandonment of work, petitioner
argues, is further belied by his continued performance of various services
related to the operations of the farm from May to the last quarter of 1983, his
persistent inquiries from his father's accountant and legal adviser about the
reason why his pension or allowance was discontinued since April, 1984, and
his indication of having recovered and his willingness and capability to
resume his work at the farm as expressed in a letter dated September 14,
1984. 26 With these, petitioner contends that it is immaterial how the monthly
pecuniary amounts are designated, whether as salary, pension or allowance,
with or without deductions, as he was entitled thereto in view of his continued
service as farm administrator. 27
To stress what was earlier mentioned, in order that a finding of abandonment
may justly be made there must be a concurrence of two elements, viz.: (1)
the failure to report for work or absence without valid or justifiable reason,
and (2) a clear intention to sever the employer-employee relationship, with
the second element as the more determinative factor and being manifested
by some overt acts. Such intent we find dismally wanting in this case.
It will be recalled that private respondent himself admitted being unsure of
his son's plans of returning to work. The absence of petitioner from work
since mid-1982, prolonged though it may have been, was not without valid
causes of which private respondent had full knowledge. As to what convinced
or led him to believe that petitioner was no longer returning to work, private
respondent neither explains nor substantiates by any reasonable basis how
he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment cannot be given
credence as even after January, 1983, when private respondent supposedly
"became convinced" that petitioner would no longer work at the farm, the
latter continued to perform services directly required by his position as farm
administrator. These are duly and correspondingly evidenced by such acts
as picking up some farm machinery/equipment from G.A. Machineries, Inc.,
28 claiming and paying for additional farm equipment and machinery shipped
by said firm from Manila to Bacolod through Zip Forwarders, 29 getting
the payment of the additional cash advances for molasses for crop year
1983-1984 from Agrotex Commodities, Inc., 30 and remitting to
private respondent through Atty. Sumbingco the
sums collected along with receipts for medicine and oil. 31
It will be observed that all of these chores, which petitioner took care of, relate
to the normal activities and operations of the farm. True, it is a father's
prerogative to request or even command his child to run errands for him. In
the present case, however, considering the nature of these transactions, as
well as the property values and monetary sums involved, it is unlikely that
private respondent would leave the matter to just anyone. Prudence dictates
that these matters be handled by someone who can be trusted or at least be
held accountable therefor, and who is familiar with the terms, specifications
and other details relative thereto, such as an employee. If indeed petitioner
had abandoned his job or was considered to have done so by private
respondent, it would be awkward, or even out of place, to expect or to oblige
PINEDAPCGRNMAN
petitioner to concern himself with matters relating to or expected of him with
respect to what would then be his past and terminated employment. It is hard
to imagine what further authority an employer can have over a dismissed
employee so as to compel him to continue to perform work-related tasks:
It is also significant that the special power of attorney 32 executed by
private respondent on June 26, 1980 in favor of petitioner, specifically stating
—
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a resident of Hda.
Manucao, hereinafter called and referred to as PRINCIPAL, am a sugarcane
planter, BISCOM Mill District, and a duly accredited planter-member of the
BINALBAGAN-ISABELA PLANTERS' ASSOCIATION, INC.;
That as such planter-member of BIPA, I have check/checks with BIPA
representing payment for all checks and papers to which I am entitled to (sic)
as such planter-member;
That I have named, appointed and constituted as by these presents I
HEREBY NAME, APPOINT AND CONSTITUTE as my true and lawful
ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR ME and in my
name, place and stead, my check/checks aforementioned, said ATTORNEY-
IN-FACT being herein given the power and authority to sign for me and in my
name, place and stead, the receipt or receipts or payroll for the said
check/checks. PROVIDED, HOWEVER, that my said ATTORNEY-IN-FACT
cannot cash the said check/checks, but to turn the same over to me for my
proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my Attorney-in-Fact
in getting the said check/checks and signing the receipts therefor.
That I further request that my said check/checks be made a "CROSSED
CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was supposed to have
been terminated by reason of abandonment. Furthermore, petitioner's
numerous requests for an explanation regarding the stoppage of his salaries
and benefits, 33 the issuance of withholding tax reports, 34 as well as
correspondence reporting his full recovery and readiness to go back to work,
35 and, specifically, his filing of the complaint for illegal dismissal are hardly
the acts of one who has abandoned his work.
We are likewise not impressed by the deposition of Manolo Gomez, as
witness for private respondent, ascribing statements to petitioner supposedly
indicative of the latter's intention to abandon his work. We perceive the
irregularity in the taking of such deposition without the presence of
petitioner's counsel, and the failure of private respondent to serve reasonably
advance notice of its taking to said counsel, thereby foreclosing his
opportunity to
cross-examine the deponent. Private respondent also failed to serve notice
thereof on the Regional Arbitration Branch No. VI of the NLRC, as certified
to by Administrative Assistant Celestina G. Ovejera of said office. 36 Fair play
dictates that at such an important stage of the proceedings, which involves
the taking of testimony, both parties must be afforded equal opportunity to
examine and cross-examine a witness.
As to the monthly monetary amounts given to petitioner, whether
denominated as salary, pension, allowance orex gratia handout, there is no
question as to petitioner's entitlement thereto inasmuch as he continued to
perform services in his capacity as farm administrator. The change in
description of said amounts contained in the pay slips or in the receipts
prepared by private respondent cannot be deemed to be determinative of
petitioner's employment status in view of the peculiar circumstances above
set out. Besides, if such amounts were truly in the nature of allowances given
by a parent out of concern for his child's welfare, it is rather unusual that
receipts therefor 37 should be necessary and required as if they were ordinary
business expenditures.
Page 63
Neither can we subscribe to private respondent's theory that petitioner's
alleged abandonment was converted into an implied voluntary resignation on
LEGAL ETHICS
account of the father's agreement to support his son after the latter
abandoned his work. As we have determined that no abandonment took
place in this case, the monthly sums received by petitioner, regardless of
designation, were in consideration for services rendered emanating from an
employer-employee relationship and were not of a character that can qualify
them as mere civil support given out of parental duty and solicitude. We are
also hard put to imagine how abandonment can be impliedly converted into
a voluntary resignation without any positive act on the part of the employee
conveying a desire to terminate his employment. The very concept of
resignation as a ground for termination by the employee of his employment38
does not square with the elements constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation by
private respondent of the due process requirements under the Labor Code
for want of notice and hearing. 39 Private respondent, in opposition, argues
that Section 2, Rule XIV, Book V of the Omnibus Rules Implementing the
Labor Code applies only to cases where the employer seeks to terminate the
services of an employee on any of the grounds enumerated under Article 282
of the Labor Code, but not to the situation obtaining in this case where private
respondent did not dismiss petitioner on any ground since it was petitioner
who allegedly abandoned his employment. 40
The due process requirements of notice and hearing applicable to labor
cases are set out in Rule XIV, Book V of the Omnibus Rules Implementing
the Labor Code in this wise:
Sec. 2. Notice of Dismissal. — Any employer who seeks to dismiss a worker
shall furnish him a written notice stating the particular acts or omission(s)
constituting the grounds for his dismissal. In cases of abandonment of work,
notice shall be served at the worker's last known address.
xxx xxx xxx
Sec. 5. Answer and hearing. — The worker may answer the allegations as
stated against him in the notice of dismissal within a reasonable period from
receipt of such notice. The employer shall afford the worker ample
opportunity to be heard and to defend himself with the assistance of his
representative, if he so desires.
Sec. 6. Decision to dismiss. — The employer shall immediately notify a
worker in writing of a decision to dismiss him stating clearly the reasons
therefor.
Sec. 7. Right to contest dismissal. — Any decision taken by the employer
shall be without prejudice to the right of the worker to contest the validity or
legality of his dismissal by filing a complaint with the Regional Branch of the
Commission.
xxx xxx xxx
Sec. 11. Report of dismissal. — The employer shall submit a monthly report
to the Regional Office having jurisdiction over the place of work at all
dismissals effected by him during the month, specifying therein the names of
the dismissed workers, the reasons for their dismissal, the dates of
commencement and termination of employment, the positions last held by
them and such other information as may be required by the Ministry for policy
guidance and statistical purposes.
Private respondent's argument is without merit as there can be no question
that petitioner was denied his right to due process since he was never given
any notice about his impending dismissal and the grounds therefor, much
less a chance to be heard. Even as private respondent controverts the
applicability of the mandatory twin requirements of procedural due process
in this particular case, he in effect admits that no notice was served by him
on petitioner. This fact is corroborated by the certification issued on
September 5, 1984 by the Regional Director for Region VI of the Department
of Labor that no notice of termination of the employment of petitioner was
submitted thereto. 41
Granting arguendo that there was abandonment in this case, it nonetheless
cannot be denied that notice still had to be served upon the employee sought
to be dismissed, as the second sentence of Section 2 of the pertinent
implementing rules explicitly requires service thereof at the employee's last
known address, by way of substantial compliance. While it is conceded that
it is the employer's prerogative to terminate an employee, especially when
PINEDAPCGRNMAN
there is just cause therefor, the requirements of due process cannot be lightly
taken. The law does not countenance the arbitrary exercise of such a power
or prerogative when it has the effect of undermining the fundamental
guarantee of security of tenure in favor of the employee. 42
On the executive labor arbiter's misplaced reliance on the Wenphil case, the
Solicitor General rejoins as follows:
The Labor Arbiter held thus:
While we are in full agreement with the respondent as to his defense of
implied resignation and/or abandonment, records somehow showed that he
failed to notify the Department of
Labor and Employment for his sons' (sic)/complainants' (sic) aba(n)donment
as required by BP 130. And for this failure, the other requisite for a valid
termination by an employer was not complied with. This however, would not
work to invalidate the otherwise (sic) existence of a valid cause for dismissal.
The validity of the cause of dismissal must be upheld at all times provided
however that sanctions must be imposed on the respondent for his failure to
observe the notice on due process requirement. (Wenphil Corp. v. NLRC,
G.R. No. 80587). (Decision Labor Arbiter, at 11-12, Annex "C" Petition), . . .
This is thus a very different case from Wenphil Corporation v. NLRC, 170
SCRA 69. In Wenphil, the rule applied to the facts is: once an employee is
dismissed for just cause, he must not be rewarded re-employment
and backwages for failure of his employer to observe procedural due
process. The public policy behind this is that, it may encourage the employee
to do even worse and render a mockery of the rules of discipline required to
be observed. However, the employer must be penalized for his infraction of
due process. In the present case, however, not only was petitioner dismissed
without due process, but his dismissal is without just cause. Petitioner did not
abandon his employment because he has a justifiable excuse. 43
II. Petitioner avers that the executive labor arbiter erred in disregarding the
mandatory provisions of Article 279 of the Labor Code which entitles an
illegally dismissed employee to reinstatement and back wages and, instead,
affirmed the imposition of the penalty of P5,000.00 on private respondent for
violation of the due process requirements. Private respondent, for his part,
maintains that there was error in imposing the fine because that penalty
contemplates the failure to submit the employer's report on dismissed
employees to the DOLE regional office, as required under Section 5 (now,
Section 11), Rule XIV of the implementing rules, and not the failure to serve
notice upon the employee sought to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no uncertain terms
the right of every worker to security of tenure. 44 To give teeth to this
constitutional and statutory mandates, the Labor Code spells out the relief
available to an employee in case of its denial:
Art. 279. Security of Tenure. — In cases of regular employment, the employer
shall not terminate the services of an employee except for a just cause or
when authorized by this Title. An employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority rights and
other privileges and to his full backwages, inclusive of allowances, and to his
other benefits of their monetary equivalent computed from the time his
compensation was withheld from him up to the time of actual reinstatement.
Clearly, therefore, an employee is entitled to reinstatement with full back
wages in the absence of just cause for dismissal. 45 The Court, however, on
numerous occasions has tempered the rigid application of said provision of
the Labor Code, recognizing that in some cases certain events may have
transpired as would militate against the practicability of granting the relief
thereunder provided, and declares that where there are strained relations
between the employer and the employee, payment of back wages and
severance pay may be awarded instead of reinstatement, 46 and more
particularly when managerial employees are concerned. 47 Thus, where
reinstatement is no longer possible, it is therefore appropriate that the
dismissed employee be given his fair and just share of what the law accords
him. 48
We note with favor and give our imprimatur to the Solicitor General's
Page 64
ratiocination, to wit:
LEGAL ETHICS
As a general rule, an employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights and to his backwages
computed from the time his compensation was withheld up to the time of his
reinstatement. (Morales vs. NLRC, 188 SCRA 295). But in Pacific Cement
Company, Inc. vs. NLRC, 173 SCRA 192, this Honorable Court held that
when it comes to reinstatement, differences should be made between
managers and the ordinary workingmen. The Court concluded that a
company which no longer trusts its managers cannot operate freely in a
competitive and profitable manner. The NLRC should know the difference
between managers and ordinary workingmen. It cannot imprudently order the
reinstatement of managers with the same ease and liberality as that of rank
and file workers who had been terminated. Similarly, a reinstatement may
not be appropriate or feasible in case of antipathy or antagonism between
the parties (Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should not be reinstated as
farm administrator of Hacienda Manucao. The present relationship of
petitioner and private respondent (is) so strained that a harmonious and
peaceful employee-employer relationship is hardly possible. 49
III. Finally, petitioner insists on an award of moral damages, arguing that his
dismissal from employment was attended by bad faith or fraud, or constituted
oppression, or was contrary to morals, good customs or public policy. He
further prays for exemplary damages to serve as a deterrent against similar
acts of unjust dismissal by other employers.
Moral damages, under Article 2217 of the Civil Code, may be awarded to
compensate one for diverse injuries such as mental anguish, besmirched
reputation, wounded feelings, and social humiliation, provided that such
injuries spring from a wrongful act or omission of the defendant which was
the proximate cause thereof. 50Exemplary damages, under Article 2229, are
imposed by way of example or correction for the public good, in addition to
moral, temperate, liquidated or compensatory damages. They are not
recoverable as a matter of right, it being left to the court to decide whether or
not they should be adjudicated. 51
We are well aware of the Court's rulings in a number of cases in the past
allowing recovery of moral damages where the dismissal of the employee
was attended by bad faith or fraud, or constituted an act oppressive to labor,
or was done in a manner contrary to morals, good customs or public
policy, 52 and of exemplary damages if the dismissal was effected in a
wanton, oppressive or malevolent manner. 53 We do not feel, however, that
an award of the damages prayed for in this petition would be proper even if,
seemingly, the facts of the case justify their allowance. In the aforestated
cases of illegal dismissal where moral and exemplary damages were
awarded, the dismissed employees were genuinely without fault and were
undoubtedly victims of the erring employers' capricious exercise of power.
In the present case, we find that both petitioner and private respondent can
equally be faulted for fanning the flames which gave rise to and ultimately
aggravated this controversy, instead of sincerely negotiating a peaceful
settlement of their disparate claims. The records reveal how their actuations
seethed with mutual antagonism and the undeniable enmity between them
negates the likelihood that either of them acted in good faith. It is apparent
that each one has a cause for damages against the other. For this reason,
we hold that no moral or exemplary damages can rightfully be awarded to
petitioner.
On this score, we are once again persuaded by the validity of the following
recommendation of the Solicitor General:
The Labor Arbiter's decision in RAB Case No. 0452-84 should be modified.
There was no voluntary abandonment in this case because petitioner has a
justifiable excuse for his absence, or such absence does not warrant outright
dismissal without notice and hearing. Private respondent, therefore, is guilty
of illegal dismissal. He should be ordered to pay backwages for a period not
exceeding three years from date of dismissal. And in lieu of reinstatement,
petitioner may be paid separation pay equivalent to one (1) month('s) salary
for every year of service, a fraction of six months being considered as one
(1) year in accordance with recent jurisprudence (Tan, Jr. vs. NLRC, 183
SCRA 651). But all claims for damages should be dismissed, for both parties
are equally at fault. 54
PINEDAPCGRNMAN
The conduct of the respective counsel of the parties, as revealed by the
records, sorely disappoints the Court and invites reproof. Both counsel may
well be reminded that their ethical duty as lawyers to represent their clients
with
zeal 55 goes beyond merely presenting their clients' respective causes in
court. It is just as much their responsibility, if not more importantly, to exert
all reasonable efforts to smooth over legal conflicts, preferably out of court
and especially in consideration of the direct and immediate consanguineous
ties between their clients. Once again, we reiterate that the useful function of
a lawyer is not only to conduct litigation but to avoid it whenever possible by
advising settlement or withholding suit. He is often called upon less for
dramatic forensic exploits than for wise counsel in every phase of life. He
should be a mediator for concord and a conciliator for compromise, rather
than a virtuoso of technicality in the conduct of litigation. 56
Rule 1.04 of the Code of Professional Responsibility explicitly provides that
"(a) lawyer shall encourage his client to avoid, end or settle the controversy
if it will admit of a fair settlement." On this point, we find that both counsel
herein fell short of what was expected of them, despite their avowed duties
as officers of the court. The records do not show that they took pains to
initiate steps geared toward effecting a rapprochement between their clients.
On the contrary, their acerbic and protracted exchanges could not but have
exacerbated the situation even as they may have found favor in the equally
hostile eyes of their respective clients.
In the same manner, we find that the labor arbiter who handled this
regrettable case has been less than faithful to the letter and spirit of the Labor
Code mandating that a labor arbiter "shall exert all efforts towards the
amicable settlement of a labor dispute within his jurisdiction." 57 If he ever did
so, or at least entertained the thought, the copious records of the proceedings
in this controversy are barren of any reflection of the same.
One final word. This is one decision we do not particularly relish having been
obliged to make. The task of resolving cases involving disputes among
members of a family leaves a bad taste in the mouth and an aversion in the
mind, for no truly meaningful and enduring resolution is really achieved in
such situations. While we are convinced that we have adjudicated the legal
issues herein squarely on the bases of law and jurisprudence,
sanssentimentality, we are saddened by the thought that we may have failed
to bring about the reconciliation of the father and son who figured as parties
to this dispute, and that our adherence here to law and duty may unwittingly
contribute to the breaking, instead of the strengthening, of familial bonds. In
fine, neither of the parties herein actually emerges victorious. It is the Court's
earnest hope, therefore, that with the impartial exposition and extended
explanation of their respective rights in this decision, the parties may
eventually see their way clear to an ultimate resolution of their differences on
more convivial terms.
WHEREFORE, the decision of respondent National Labor Relations
Commission is hereby SET ASIDE. Private respondent is ORDERED to pay
petitioner back wages for a period not exceeding three (3) years, without
qualification or deduction, 58 and, in lieu of reinstatement, separation pay
equivalent to one (1) month for every year of service, a fraction of six (6)
months being considered as one (1) whole year.
SO ORDERED.
G.R. No. L-28546 July 30, 1975
VENANCIO CASTANEDA and NICETAS HENSON, petitioners, vs.
PASTOR D. AGO, LOURDES YU AGO and THE COURT OF
APPEALS, respondents.
Quijano and Arroyo for petitioners.
Jose M. Luison for respondents.
CASTRO, J.:
The parties in this case, except Lourdes Yu Ago, have been commuting to
this Court for more than a decade.
Page 65
In 1955 the petitioners Venancio Castañeda and Nicetas Henson filed a
replevin suit against Pastor Ago in the Court of First Instance of Manila to
LEGAL ETHICS
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. Castañeda, L-14066, 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 Castañeda and Henson. Ago failed to redeem, and on April
17, 1964 the sheriff executed the final deed of sale in favor of the vendees
Castañeda 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 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 (L-27140).1äwphï1.ñët 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
PINEDAPCGRNMAN
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 Castañeda 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.
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
Page 66
5. The decision of the appellate court under review suffers from two fatal
infirmities.
LEGAL ETHICS
(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 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
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.
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.
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 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 Castañedas had filed their answer with a
counterclaim, the plaintiffs Agos filed a supplemental complaint where they
impleaded new parties-defendants;
(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);
(d) the defendants have not filed an answer to the admitted supplemental
complaint; and
(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)
PINEDAPCGRNMAN
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 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 herein-before 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 Castañedas 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 Castañeda 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 L-19718 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
Castañedas 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 Castañedas 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 Castañedas, 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
Page 67
the properties in bad faith; that the defendants mortgaged the two other
parcels to the Rizal Commercial Banking Corporation while the defendants'
LEGAL ETHICS
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.
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
Castañeda and Nicetas Henson in bad faith sold the two other parcels to
PINEDAPCGRNMAN
October 5, 2004
x --------------------------------------------------------------------------------- x
DECISION
PANGANIBAN, J.:
Notaries public are expected to exert utmost care in the performance of their
duties, which are impressed with public interest. They are enjoined to comply
faithfully with the solemnities and requirements of the Notarial Law. This
Court will not hesitate to mete out appropriate sanctions to those who violate
it or neglect observance thereof.

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. Respondent.
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 Castañedas 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.
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.

CANON 2: PROVIDE EFFICIENT AND CONVINIENT LEGAL SERVICES

A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN
EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE
INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE
PROFESSION.

RULE 2.01: A lawyer shall not reject, except for valid reasons, the cause
of the defenseless or the oppressed.
IBP Guidelines, Art.1, Sec. 1. Public Service:
1. Legal aid is not a matter of charity but a public responsibility.
2. It is a means for correction of social imbalance.
3. Legal aid offices must be so organized as to give maximum
possible assistance to indigent and deserving members of the
community and to forestall injustice.

Rule 2.02 - In such cases, even if the lawyer does not accept a case, he
shall not refuse to render legal advice to the person concerned if only
to the extent necessary to safeguard the latter's rights

JONAR SANTIAGO, A.C. No. 6252

Complainant,
- versus -
Atty. EDISON V. RAFANAN,
LEGAL ETHICS PINEDAPCGRNMAN
The Case and the Facts

Before us is a verified Complaint[1] filed by Jonar Santiago, an

employee of the Bureau of Jail Management and Penology (BJMP), for
the disbarment of Atty. Edison V. Rafanan. The Complaint was filed with
the Commission on Bar Discipline (CBD) of the Integrated Bar of the
Philippines (IBP) on January 16, 2001. It charged Atty. Rafanan with
deceit; malpractice or other gross misconduct in office under Section 27
of Rule 138[2] of the Rules of Court; and violation of Canons 1.01, 1.02
and 1.03[3], Canon 5[4], and Canons 12.07[5] and 12.08 of the Code of
Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr.

summarized the allegations of the complainant in this wise:

x x x. In his Letter-Complaint, Complainant alleged, among others, that

Respondent in notarizing several documents on different dates failed
and/or refused to: a)make the proper notation regarding the cedula or
community tax certificate of the affiants; b) enter the details of the
notarized documents in the notarial register; and c) make and execute
the certification and enter his PTR and IBP numbers in the documents
he had notarized, all in violation of the notarial provisions of the Revised
Administrative Code.

Complainant likewise alleged that Respondent executed an Affidavit in

favor of his client and offered the same as evidence in the case wherein
he was actively representing his client. Finally, Complainant alleges that
on a certain date, Respondent accompanied by several persons waited
for Complainant after the hearing and after confronting the latter
disarmed him of his sidearm and thereafter uttered insulting words and
veiled threats.[6]

On March 23, 2001, pursuant to the January 19, 2001 Order of the
CBD,[7] Atty. Rafanan filed his verified Answer.[8] He admitted having
administered the oath to the affiants whose Affidavits were attached to
the verified Complaint. He believed, however, that the non-notation of
their Residence Certificates in the Affidavits and the Counter-affidavits
was allowed.

He opined that the notation of residence certificates applied only to

documents acknowledged by a notary public and was not mandatory for
affidavits related to cases pending before courts and other government
offices. He pointed out that in the latter, the affidavits, which were sworn
to before government prosecutors, did not have to indicate the residence
certificates of the affiants. Neither did other notaries public in Nueva
Ecija -- some of whom were older practitioners -- indicate the affiants
residence certificates on the documents they notarized, or have entries
in their notarial register for these documents.

As to his alleged failure to comply with the certification required by

Section 3 of Rule 112[9] of the Rules of Criminal Procedure, respondent
explained that as counsel of the affiants, he had the option to comply or
not with the certification. To nullify the Affidavits, it was complainant who
was duty-bound to bring the said noncompliance to the attention of the
prosecutor conducting the preliminary investigation.
Page 68
LEGAL ETHICS
As to his alleged violation of Rule 12.08 of the CPR, respondent argued that
lawyers could testify on behalf of their clients on substantial matters, in cases
where [their] testimony is essential to the ends of justice. Complainant
charged respondents clients with attempted murder. Respondent averred
that since they were in his house when the alleged crime occurred, his
testimony is very essential to the ends of justice.
Respondent alleged that it was complainant who had threatened and
harassed his clients after the hearing of their case by the provincial
prosecutor on January 4, 2001. Respondent requested the assistance of the
Cabanatuan City Police the following day, January 5, 2001, which was the
next scheduled hearing, to avoid a repetition of the incident and to allay the
fears of his clients. In support of his allegations, he submitted
Certifications[10] from the Cabanatuan City Police and the Joint Affidavit[11]
of the two police officers who had assisted them.
Lastly, he contended that the case had been initiated for no other purpose
than to harass him, because he was the counsel of Barangay Captain
Ernesto Ramos in the cases filed by the latter before the ombudsman and
the BJMP against complainant.
After receipt of respondents Answer, the CBD, through Commissioner
Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two
oclock in the afternoon. Notices[12] of the hearing were sent to the parties by
registered mail. On the scheduled date and time of the hearing, only
complainant appeared.Respondent was unable to do so, apparently because
he had received the Notice only on June 8, 2001.[13] The hearing was reset
to July 3, 2001 at two oclock in the afternoon.
On the same day, June 5, 2001, complainant filed his Reply[14] to the verified
Answer of respondent. The latters Rejoinder was received by the CBD on
July 13, 2001.[15] It also received complainants Letter-Request[16] to
dispense with the hearings. Accordingly, it granted that request in its
Order[17] dated July 24, 2001, issued through Commissioner Cimafranca. It
thereby directed the parties to submit their respective memoranda within
fifteen days from receipt of the Order, after which the case was to be deemed
submitted for resolution.
The CBD received complainants Memorandum[18] on September 26, 2001.
Respondent did not file any.
The IBPs Recommendation
On September 27, 2003, the IBP Board of Governors issued Resolution No.
XVI-2003-172[19] approving and adopting the Investigating Commissioners
Report that respondent had violated specific requirements of the Notarial Law
on the execution of a certification, the entry of such certification in the notarial
register, and the indication of the affiants residence certificate. The IBP Board
of Governors found his excuse for the violations unacceptable. It modified,
however, the recommendation[20] of the investigating commissioner by
increasing the fine to P3,000 with a warning that any repetition of the violation
will be dealt with a heavier penalty.
The other charges -- violation of Section 27 of Rule 138 of the Rules of Court;
and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -- were dismissed for
insufficiency of evidence.
The Courts Ruling
We agree with the Resolution of the IBP Board of Governors.
Respondents Administrative Liability
Violation of the Notarial Law
PINEDAPCGRNMAN
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 them has 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.[21] They are also required to maintain and keep a
notarial register; to enter therein all instruments notarized by them; and to
give to each instrument executed, sworn to, or acknowledged before [them]
a number corresponding to the one in [their] register [and to state therein] the
page or pages of [their] register, on which the same is recorded.[22] Failure
to perform these duties would result in the revocation of their commission as
notaries public.[23]
These formalities are mandatory and cannot be simply neglected,
considering the degree of importance and evidentiary weight attached to
notarized documents. Notaries public entering into their commissions are
presumed to be aware of these elementary requirements.
In Vda. de Rosales v. Ramos,[24] the Court explained the value and meaning
of notarization as follows:
The importance attached to the act of notarization cannot be
overemphasized. Notarization is not an empty, meaningless, routinary act. It
is invested with substantive public interest, such that only those who are
qualified or authorized may act as notaries public. Notarization converts a
private document into a public document thus making that document
admissible in evidence without further proof of its authenticity. A notarial
document is by law entitled to full faith and credit upon its face. Courts,
administrative agencies and the public at large must be able to rely upon the
acknowledgment executed by a notary public and appended to a private
instrument.
For this reason, notaries public should not take for granted the solemn duties
pertaining to their office. Slipshod methods in their performance of the
notarial act are never to be countenanced. They are expected to exert utmost
care in the performance of their duties,[25] which are dictated by public policy
and are impressed with public interest.
It is clear from the pleadings before us -- and respondent has readily admitted
-- that he violated the Notarial Law by failing to enter in the documents
notations of the residence certificate, as well as the entry number and the
pages of the notarial registry.
Respondent believes, however, that noncompliance with those requirements
is not mandatory for affidavits relative to cases pending before the courts and
government agencies. He points to similar practices of older notaries in
Nueva Ecija.
We cannot give credence to, much less honor, his claim. His belief that the
requirements do not apply to affidavits is patently irrelevant. No law
dispenses with these formalities. Au contraire, the Notarial Law makes no
qualification or exception. It is appalling and inexcusable that he did away
with the basics of notarial procedure allegedly because others were doing so.
Being swayed by the bad example of others is not an acceptable justification
for breaking the law.
We note further that the documents attached to the verified Complaint are
the Joint Counter-Affidavit of respondents clients Ernesto Ramos and Rey
Geronimo, as well as their witnesses Affidavits relative to Criminal Case No.
69-2000 for attempted murder, filed by complainants brother against the
aforementioned clients. These documents became the basis of the present
Complaint.
As correctly pointed out by the investigating commissioner, Section 3 of Rule
112 of the Rules of Criminal Procedure expressly requires respondent as
notary -- in the absence of any fiscal, state prosecutor or government official
authorized to administer the oath -- to certify that he has personally examined
the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits. Respondent failed to do so with respect to the
Page 69
subject Affidavits and Counter-Affidavits in the belief that -- as counsel for the
affiants -- he was not required to comply with the certification requirement.
LEGAL ETHICS
It must be emphasized that the primary duty of lawyers is to obey the laws of
the land and promote respect for the law and legal processes.[26] They are
expected to be in the forefront in the observance and maintenance of the rule
of law. This duty carries with it the obligation to be well-informed of the
existing laws and to keep abreast with legal developments, recent
enactments and jurisprudence.[27] It is imperative that they be conversant
with basic legal principles.Unless they faithfully comply with such duty, they
may not be able to discharge competently and diligently their obligations as
members of the bar. Worse, they may become susceptible to committing
mistakes.
Where notaries public are lawyers, a graver responsibility is placed upon
them by reason of their solemn oath to obey the laws.[28] No custom or age-
old practice provides sufficient excuse or justification for their failure to
adhere to the provisions of the law. In this case, the excuse given by
respondent exhibited his clear ignorance of the Notarial Law, the Rules of
Criminal Procedure, and the importance of his office as a notary public.
Nonetheless, 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.[29] Disbarment will be imposed as a penalty only in a clear case of
misconduct that seriously affects the standing and the character of the lawyer
as an officer of the court and a member of the bar. Where any lesser penalty
can accomplish the end desired, disbarment should not be decreed.[30]
Considering the nature of the infraction and the absence of deceit on the part
of respondent, we believe that the penalty recommended by the IBP Board
of Governors is a sufficient disciplinary measure in this case.
Lawyer as Witness for Client
Complainant further faults respondent for executing before Prosecutor
Leonardo Padolina an affidavit corroborating the defense of alibi proffered by
respondents clients, allegedly in violation of Rule 12.08 of the CPR: A lawyer
shall avoid testifying in behalf of his client.
Rule 12.08 of Canon 12 of the CPR states:
Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except:
a) on formal matters, such as the mailing, authentication or custody
of an instrument and the like;
b) on substantial matters, in cases where his testimony is essential
to the ends of justice, in which event he must, during his testimony, entrust
the trial of the case to another counsel.
Parenthetically, under the law, a lawyer is not disqualified from being a
witness,[31] except only in certain cases pertaining to privileged
communication arising from an attorney-client relationship.[32]
The reason behind such rule is the difficulty posed upon lawyers by the task
of dissociating their relation to their clients as witnesses from that as
advocates. Witnesses are expected to tell the facts as they recall them. In
contradistinction, advocates are partisans -- those who actively plead and
defend the cause of others. It is difficult to distinguish the fairness and
impartiality of a disinterested witness from the zeal of an advocate. The
question is one of propriety rather than of competency of the lawyers who
testify for their clients.
Acting or appearing to act in the double capacity of lawyer and witness for
the client will provoke unkind criticism and leave many people to suspect the
truthfulness of the lawyer because they cannot believe the lawyer as
disinterested. The people will have a plausible reason for thinking, and if their
sympathies are against the lawyers client, they will have an opportunity, not
likely to be neglected, for charging, that as a witness he fortified it with his
own testimony. The testimony of the lawyer becomes doubted and is looked
upon as partial and untruthful.[33]
Thus, although the law does not forbid lawyers from being witnesses and at
the same time counsels for a cause, the preference is for them to refrain from
PINEDAPCGRNMAN
testifying as witnesses, unless they absolutely have to; and should they do
so, to withdraw from active management of the case.[34]
Notwithstanding this guideline and the existence of the Affidavit executed by
Atty. Rafanan in favor of his clients, we cannot hastily make him
administratively liable for the following reasons:
First, we consider it the duty of a lawyer to assert every remedy and defense
that is authorized by law for the benefit of the client, especially in a criminal
action in which the latters life and liberty are at stake.[35] It is the fundamental
right of the accused to be afforded full opportunity to rebut the charges
against them. They are entitled to suggest all those reasonable doubts that
may arise from the evidence as to their guilt; and to ensure that if they are
convicted, such conviction is according to law.
Having undertaken the defense of the accused, respondent, as defense
counsel, was thus expected to spare no effort to save his clients from a wrong
conviction. He had the duty to present -- by all fair and honorable means --
every defense and mitigating circumstance that the law permitted, to the end
that his clients would not be deprived of life, liberty or property, except by due
process of law.[36]
The Affidavit executed by Atty. Rafanan was clearly necessary for the
defense of his clients, since it pointed out the fact that on the alleged date
and time of the incident, his clients were at his residence and could not have
possibly committed the crime charged against them. Notably, in his Affidavit,
complainant does not dispute the statements of respondent or suggest the
falsity of its contents.
Second, paragraph (b) of Rule 12.08 contemplates a situation in which
lawyers give their testimonies during the trial. In this instance, the Affidavit
was submitted during the preliminary investigation which, as such, was
merely inquisitorial.[37] Not being a trial of the case on the merits, a
preliminary investigation has the oft-repeated purposes of securing innocent
persons against hasty, malicious and oppressive prosecutions; protecting
them from open and public accusations of crime and from the trouble as well
as expense and anxiety of a public trial; and protecting the State from useless
and expensive prosecutions.[38]The investigation is advisedly called
preliminary, as it is yet to be followed by the trial proper.
Nonetheless, we deem it important to stress and remind respondent to refrain
from accepting employment in any matter in which he knows or has reason
to believe that he may be an essential witness for the prospective client.
Furthermore, in future cases in which his testimony may become essential to
serve the ends of justice, the canons of the profession require him to
withdraw from the active prosecution of these cases.
No Proof of Harassment
The charge that respondent harassed complainant and uttered insulting
words and veiled threats is not supported by evidence. Allegation is never
equivalent to proof, and a bare charge cannot be equated with liability.[39] It
is not the self-serving claim of complainant but the version of respondent that
is more credible, considering that the latters allegations are corroborated by
the Affidavits of the police officers and the Certifications of the Cabanatuan
City Police.
WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the
Notarial Law and Canon 5 of the Code of Professional Responsibility and is
herebyFINED P3,000 with a warning that similar infractions in the future will
be dealt with more severely.
SO ORDERED.
Exceptions: Canon 14, Rule 14.01 and 14.02
Rule 14.01 - A lawyer shall not decline to represent a person solely on
account of the latter's race, sex. creed or status of life, or because of
his own opinion regarding the guilt of said person.
Rule 14.02 - A lawyer shall not decline, except for serious and sufficient
Page 70
cause, an appointment as counsel de officio or as amicus curiae, or a
LEGAL ETHICS
request from the Integrated Bar of the Philippines or any of its chapters
for rendition of free legal aid.
Exception to the Exception: Canon 14, rule 14.03
Rule 14.03 - A lawyer may not refuse to accept representation of an
indigent client if:
(a) he is not in a position to carry out the work effectively or
competently;
(b) he labors under a conflict of interest between him and the
prospective client or between a present client and the prospective
client.
Rule 2.03: A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
Rule 138 sec 27 ROC: Attorneys removed 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 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 the admission to practice, or for a wilfull disobedience of
any lawful order of a superior court, or for corruptly or willful 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.
PEDRO L. LINSANGAN, A.C. No. 6672
Complainant,
-versus-
ATTY. NICOMEDES TOLENTINO,
Respondent. Promulgated:
September 4, 2009
x ---------------------------------------------------------------------------- x
RESOLUTION
CORONA, J.:
This is a complaint for disbarment[1] filed by Pedro Linsangan of the
Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes
Tolentino for solicitation of clients and encroachment of professional
services.
Complainant alleged that respondent, with the help of paralegal Fe Marie
Labiano, convinced his clients[2] to transfer legal representation. Respondent
promised them financial assistance[3] and expeditious collection on their
claims.[4] To induce them to hire his services, he persistently called them and
sent them text messages.
To support his allegations, complainant presented the sworn affidavit[5] of
James Gregorio attesting that Labiano tried to prevail upon him to sever his
lawyer-client relations with complainant and utilize respondents services
instead, in exchange for a loan of P50,000. Complainant also attached
respondents calling card:[6]
Front
NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE
Fe Marie L. Labiano
Paralegal
PINEDAPCGRNMAN
1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820
6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
Grace Park, Caloocan City Cel.: (0926) 2701719
Back
SERVICES OFFERED:
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT,
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
ABROAD.
(emphasis supplied)
Hence, this complaint.
Respondent, in his defense, denied knowing Labiano and authorizing the
printing and circulation of the said calling card.[7]
The complaint was referred to the Commission on Bar Discipline (CBD) of
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.[8]
Based on testimonial and documentary evidence, the CBD, in its report and
recommendation,[9] found that respondent had encroached on the
professional practice of complainant, violating Rule 8.02[10] and other
canons[11] of the Code of Professional Responsibility (CPR). Moreover, he
contravened the rule against soliciting cases for gain, personally or through
paid agents or brokers as stated in Section 27, Rule 138[12] of the Rules of
Court. Hence, the CBD recommended that respondent be reprimanded with
a stern warning that any repetition would merit a heavier penalty.
We adopt the findings of the IBP on the unethical conduct of respondent but
we modify the recommended penalty.
The complaint before us is rooted on the alleged intrusion by respondent into
complainants professional practice in violation of Rule 8.02 of the CPR. And
the means employed by respondent in furtherance of the said misconduct
themselves constituted distinct violations of ethical rules.
Canons of the CPR are rules of conduct all lawyers must adhere to, including
the manner by which a lawyers services are to be made known. Thus, Canon
3 of the CPR provides:
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL
USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION OR STATEMENT OF FACTS.
Time and time again, lawyers are reminded that the practice of law is a
profession and not a business; lawyers should not advertise their talents as
merchants advertise their wares.[13] To allow a lawyer to advertise his talent
or skill is to commercialize the practice of law, degrade the profession in the
publics estimation and impair its ability to efficiently render that high character
of service to which every member of the bar is called.[14]
Rule 2.03 of the CPR provides:
RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY
ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.
Hence, lawyers are prohibited from soliciting cases for the purpose of gain,
either personally or through paid agents or brokers.[15] Such actuation
constitutes malpractice, a ground for disbarment.[16]
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which
provides:
RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR
INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY
Page 71
MANS CAUSE.
LEGAL ETHICS
This rule proscribes ambulance chasing (the solicitation of almost any kind
of legal business by an attorney, personally or through an agent in order to
gain employment)[17] as a measure to protect the community from barratry
and champerty.[18]
Complainant presented substantial evidence[19] (consisting of the sworn
statements of the very same persons coaxed by Labiano and referred to
respondents office) to prove that respondent indeed solicited legal business
as well as profited from referrals suits.
Although respondent initially denied knowing Labiano in his answer, he later
admitted it during the mandatory hearing.
Through Labianos actions, respondents law practice was benefited. Hapless
seamen were enticed to transfer representation on the strength of Labianos
word that respondent could produce a more favorable result.
Based on the foregoing, respondent clearly solicited employment violating
Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138
of the Rules of Court.
With regard to respondents violation of Rule 8.02 of the CPR, settled is the
rule that a lawyer should not steal another lawyers client nor induce the latter
to retain him by a promise of better service, good result or reduced fees for
his services.[20] Again the Court notes that respondent never denied having
these seafarers in his client list nor receiving benefits from Labianos referrals.
Furthermore, he never denied Labianos connection to his office.[21]
Respondent committed an unethical, predatory overstep into anothers legal
practice. He cannot escape liability under Rule 8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients as
borrowers, respondent violated Rule 16.04:
Rule 16.04 A lawyer shall not borrow money from his client unless the clients
interests are fully protected by the nature of the case or by independent
advice. Neither shall a lawyer lend money to a client except, when in the
interest of justice, he has to advance necessary expenses in a legal matter
he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only exception
is, when in the interest of justice, he has to advance necessary expenses
(such as filing fees, stenographers fees for transcript of stenographic notes,
cash bond or premium for surety bond, etc.) for a matter that he is handling
for the client.
The rule is intended to safeguard the lawyers independence of mind so that
the free exercise of his judgment may not be adversely affected.[22] It seeks
to ensure his undivided attention to the case he is handling as well as his
entire devotion and fidelity to the clients cause. If the lawyer lends money to
the client in connection with the clients case, the lawyer in effect acquires an
interest in the subject matter of the case or an additional stake in its
outcome.[23] Either of these circumstances may lead the lawyer to consider
his own recovery rather than that of his client, or to accept a settlement which
may take care of his interest in the verdict to the prejudice of the client in
violation of his duty of undivided fidelity to the clients cause.[24]
As previously mentioned, any act of solicitation constitutes malpractice[25]
which calls for the exercise of the Courts disciplinary powers. Violation of
anti-solicitation statutes warrants serious sanctions for initiating contact with
a prospective client for the purpose of obtaining employment.[26] Thus, in this
jurisdiction, we adhere to the rule to protect the public from the Machiavellian
machinations of unscrupulous lawyers and to uphold the nobility of the legal
profession.
Considering the myriad infractions of respondent (including violation of the
prohibition on lending money to clients), the sanction recommended by the
IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed penalty
is grossly incommensurate to its findings.
PINEDAPCGRNMAN
A final word regarding the calling card presented in evidence by petitioner. A
lawyers best advertisement is a well-merited reputation for professional
capacity and fidelity to trust based on his character and conduct.[27] For this
reason, lawyers are only allowed to announce their services by publication in
reputable law lists or use of simple professional cards.
Professional calling cards may only contain the following details:
(a) lawyers name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.[28]
Labianos calling card contained the phrase with financial assistance. The
phrase was clearly used to entice clients (who already had representation) to
change counsels with a promise of loans to finance their legal actions. Money
was dangled to lure clients away from their original lawyers, thereby taking
advantage of their financial distress and emotional vulnerability. This crass
commercialism degraded the integrity of the bar and deserved no place in
the legal profession. However, in the absence of substantial evidence to
prove his culpability, the Court is not prepared to rule that respondent was
personally and directly responsible for the printing and distribution of
Labianos calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules
1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional
Responsibility and Section 27, Rule 138 of the Rules of Court is hereby
SUSPENDED from the practice of law for a period of one year effective
immediately from receipt of this resolution. He is STERNLY WARNED that a
repetition of the same or similar acts in the future shall be dealt with more
severely.
Let a copy of this Resolution be made part of his records in the Office of the
Bar Confidant, Supreme Court of the Philippines, and be furnished to the
Integrated Bar of the Philippines and the Office of the Court Administrator to
be circulated to all courts.
SO ORDERED.
RULE 15.08 A Lawyer Shall Make Clear Whether He Is Acting In Another
Capacity.
RULE 2.04: A lawyer shall not charge rates lower than those
customarily prescribed unless the circumstances so warrant.
CANON 3 Information on Legal Services that is True, Honest, Fair,
Dignified and Objective
Rule 3.01 – A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-auditory or unfair
statement or claim regarding his qualifications or legal services.
 Violation of Rule 3.01 is unethical, whether done by him
personally or through another with his permission.
[A.C. No. 5299. August 19, 2003]
ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief,
Public Information Office, complainant, vs. ATTY. RIZALINO T.
SIMBILLO, respondent.
[G.R. No. 157053. August 19, 2003]
ATTY. RIZALINO T. SIMBILLO, petitioner, vs. IBP COMMISSION ON BAR
DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity as
Assistant Court Administrator and Chief, Public Information Office,
respondents.
Page 72
RESOLUTION
YNARES-SANTIAGO, J.:
LEGAL ETHICS
This administrative complaint arose from a paid advertisement that appeared
in the July 5, 2000 issue of the newspaper, Philippine Daily Inquirer, which
reads: “ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.”
Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office
of the Supreme Court, called up the published telephone number and
pretended to be an interested party. She spoke to Mrs. Simbillo, who claimed
that her husband, Atty. Rizalino Simbillo, was an expert in handling
annulment cases and can guarantee a court decree within four to six months,
provided the case will not involve separation of property or custody of
children. Mrs. Simbillo also said that her husband charges a fee of
P48,000.00, half of which is payable at the time of filing of the case and the
other half after a decision thereon has been rendered.
Further research by the Office of the Court Administrator and the Public
Information Office revealed that similar advertisements were published in the
August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000 issue
of The Philippine Star.
On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant
Court Administrator and Chief of the Public Information Office, filed an
administrative complaint against Atty. Rizalino T. Simbillo for improper
advertising and solicitation of his legal services, in violation of Rule 2.03 and
Rule 3.01 of the Code of Professional Responsibility and Rule 138, Section
27 of the Rules of Court.
In his answer, respondent admitted the acts imputed to him, but argued that
advertising and solicitation per se are not prohibited acts; that the time has
come to change our views about the prohibition on advertising and
solicitation; that the interest of the public is not served by the absolute
prohibition on lawyer advertising; that the Court can lift the ban on lawyer
advertising; and that the rationale behind the decades-old prohibition should
be abandoned. Thus, he prayed that he be exonerated from all the charges
against him and that the Court promulgate a ruling that advertisement of legal
services offered by a lawyer is not contrary to law, public policy and public
order as long as it is dignified.
The case was referred to the Integrated Bar of the Philippines for
investigation, report and recommendation. On June 29, 2002, the IBP
Commission on Bar Discipline passed Resolution No. XV-2002-306, finding
respondent guilty of violation of Rules 2.03 and 3.01 of the Code of
Professional Responsibility and Rule 138, Section 27 of the Rules of Court,
and suspended him from the practice of law for one (1) year with the warning
that a repetition of similar acts would be dealt with more severely. The IBP
Resolution was noted by this Court on November 11, 2002.
In the meantime, respondent filed an Urgent Motion for Reconsideration,
which was denied by the IBP in Resolution No. XV-2002-606 dated October
19, 2002
Hence, the instant petition for certiorari, which was docketed as G.R. No.
157053 entitled, “Atty. Rizalino T. Simbillo, Petitioner versus IBP Commission
on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court Administrator and
Chief, Public Information Office, Respondents.” This petition was
consolidated with A.C. No. 5299 per the Court’s Resolution dated March 4,
2003.
In a Resolution dated March 26, 2003, the parties were required to manifest
whether or not they were willing to submit the case for resolution on the basis
of the pleadings. Complainant filed his Manifestation on April 25, 2003,
stating that he is not submitting any additional pleading or evidence and is
submitting the case for its early resolution on the basis of pleadings and
records thereof. Respondent, on the other hand, filed a Supplemental
Memorandum on June 20, 2003.
We agree with the IBP’s Resolutions Nos. XV-2002-306 and XV-2002-606.
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. – A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
Rule 3.01. – A lawyer shall not use or permit the use of any false, fraudulent,
misleading, deceptive, undignified, self-laudatory or unfair statement or claim
regarding his qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:
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 the admission to
PINEDAPCGRNMAN
practice, or for a willful disobedience appearing as attorney for a party without
authority to do so.
It has been repeatedly stressed that the practice of law is not a business. It
is a profession in which duty to public service, not money, is the primary
consideration. Lawyering is not primarily meant to be a money-making
venture, and law advocacy is not a capital that necessarily yields profits. The
gaining of a livelihood should be a secondary consideration. The 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 following elements distinguish the legal
profession from a business:
1. A duty of public service, of which the emolument is a by-product, and
in which one may attain the highest eminence without making much money;
2. A relation as an “officer of the court” to the administration of justice
involving thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of fiduciary;
4. A relation to colleagues at the bar characterized by candor, fairness,
and unwillingness to resort to current business methods of advertising and
encroachment on their practice, or dealing directly with their clients.
There is no question that respondent committed the acts complained of. He
himself admits that he caused the publication of the advertisements. While
he professes repentance and begs for the Court’s indulgence, his contrition
rings hollow considering the fact that he advertised his legal services again
after he pleaded for compassion and after claiming that he had no intention
to violate the rules. Eight months after filing his answer, he again advertised
his legal services in the August 14, 2001 issue of the Buy & Sell Free Ads
Newspaper. Ten months later, he caused the same advertisement to be
published in the October 5, 2001 issue of Buy & Sell. Such acts of respondent
are a deliberate and contemptuous affront on the Court’s authority.
What adds to the gravity of respondent’s acts is that in advertising himself as
a self-styled “Annulment of Marriage Specialist,” he wittingly or unwittingly
erodes and undermines not only the stability but also the sanctity of an
institution still considered sacrosanct despite the contemporary climate of
permissiveness in our society. Indeed, in assuring prospective clients that an
annulment may be obtained in four to six months from the time of the filing of
the case, he in fact encourages people, who might have otherwise been
disinclined and would have refrained from dissolving their marriage bonds, to
do so.
Nonetheless, the solicitation of legal business is not altogether proscribed.
However, for solicitation to be proper, it must be compatible with the dignity
of the legal profession. If it is made in a modest and decorous manner, it
would bring no injury to the lawyer and to the bar. Thus, the use of simple
signs stating the name or names of the lawyers, the office and residence
address and fields of practice, as well as advertisement in legal periodicals
bearing the same brief data, are permissible. Even the use of calling cards is
now acceptable. Publication in reputable law lists, in a manner consistent
with the standards of conduct imposed by the canon, of brief biographical
and informative data is likewise allowable. As explicitly stated in Ulep v. Legal
Clinic, Inc.:
Such data must not be misleading and may include only a statement of the
lawyer’s name and the names of his professional associates; addresses,
telephone numbers, cable addresses; branches of law practiced; date and
place of birth and admission to the bar; schools attended with dates of
graduation, degrees and other educational distinctions; public or quasi-public
offices; posts of honor; legal authorships; legal teaching positions;
membership and offices in bar associations and committees thereof, in legal
and scientific societies and legal fraternities; the fact of listings in other
reputable law lists; the names and addresses of references; and, with their
written consent, the names of clients regularly represented.
The law list must be a reputable law list published primarily for that purpose;
it cannot be a mere supplemental feature of a paper, magazine, trade journal
or periodical which is published principally for other purposes. For that
reason, a lawyer may not properly publish his brief biographical and
informative data in a daily paper, magazine, trade journal or society program.
Nor may a lawyer permit his name to be published in a law list the conduct,
management, or contents of which are calculated or likely to deceive or injure
the public or the bar, or to lower dignity or standing of the profession.
The use of an ordinary simple professional card is also permitted. The card
Page 73
may contain only a statement of his name, the name of the law firm which he
is connected with, address, telephone number and special branch of law
LEGAL ETHICS
practiced. The publication of a simple announcement of the opening of a law
firm or of changes in the partnership, associates, firm name or office address,
being for the convenience of the profession, is not objectionable. He may
likewise have his name listed in a telephone directory but not under a
designation of special branch of law. (emphasis and italics supplied)
WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO
is found GUILTY of violation of Rules 2.03 and 3.01 of the Code of
Professional Responsibility and Rule 138, Section 27 of the Rules of Court.
He is SUSPENDED from the practice of law for ONE (1) YEAR effective upon
receipt of this Resolution. He is likewise STERNLY WARNED that a
repetition of the same or similar offense will be dealt with more severely.
Let copies of this Resolution be entered in his record as attorney and be
furnished the Integrated Bar of the Philippines and all courts in the country
for their information and guidance.
SO ORDERED.
Vitug, (Acting Chairman),Carpio, and Azcuna, JJ., concur.
Davide, Jr., C.J., (Chairman ), abroad, on official business.
EN BANC
[B.M. No. 553. June 17, 1993.]
MAURICIO C. ULEP, petitioner, vs. THE LEGAL CLINIC, INC.,
respondent.
SYLLABUS
1. LEGAL AND JUDICIAL ETHICS; PRACTICE OF LAW, MEANING AND
EXTENT OF. — Practice of law means any activity, in or out of court, which
requires the application of law, legal procedures, knowledge, training and
experience. To engage in the practice of law is to perform those acts which
are characteristic of the profession. Generally, to practice law is to give
advice or render any kind of service that involves legal knowledge or skill.
The practice of law is not limited to the conduct of cases in court. It includes
legal advice and counsel, and the preparation of legal instruments and
contracts by which legal rights are secured, although such matter may or may
not be pending in a court. In the practice of his profession, a licensed attorney
at law generally engages in three principal types of professional activity: legal
advice and instructions to clients to inform them of their rights and
obligations, preparation for clients of documents requiring knowledge of legal
principles not possessed by ordinary layman, and appearance for clients
before public tribunals which possess power and authority to determine rights
of life, liberty, and property according to law, in order to assist in proper
interpretation and enforcement of law. When a person participates in a trial
and advertises himself as a lawyer, he is in the practice of law. One who
confers with clients, advises them as to their legal rights and then takes the
business to an attorney and asks the latter to look after the case in court, is
also practicing law. Giving advice for compensation regarding the legal status
and rights of another and the conduct with respect thereto constitutes a
practice of law. One who renders an opinion as to the proper interpretation
of a statute, and receives pay for it, is, to that extent, practicing law.
2. ID.; ID.; LEGAL SUPPORT SERVICES IN CASE AT BAR CONSTITUTE
PRACTICE OF LAW. — The practice of law, therefore, covers a wide range
of activities in and out of court. Applying the aforementioned criteria to the
case at bar, we agree with the perceptive findings and observations of the
aforestated bar associations that the activities of respondent, as advertised,
constitute "practice of law." The contention of respondent that it merely offers
legal support services can neither be seriously considered nor sustained.
Said proposition is belied by respondent's own description of the services it
has been offering, to wit: . . . While some of the services being offered by
respondent corporation merely involve mechanical and technical know-how,
such as the installation of computer systems and programs for the efficient
management of law offices, or the computerization of research aids and
materials, these will not suffice to justify an exception to the general rule.
What is palpably clear is that respondent corporation gives out legal
information to laymen and lawyers. Its contention that such function is non-
advisory and non-diagnostic is more apparent than real. In providing
information, for example, about foreign laws on marriage, divorce and
adoptation, it strains the credulity of this Court that all that respondent
corporation will simply do is look for the law, furnish a copy thereof to the
client, and stop there as if it were merely a bookstore. With its attorneys and
so called paralegals, it will necessarily have to explain to the client the
intricacies of the law and advise him or her on the proper course of action to
PINEDAPCGRNMAN
be taken as may be provided for by said law. That is what its advertisements
represent and for which services it will consequently charge and be paid.
That activity falls squarely within the jurisprudential definition of "practice of
law." Such a conclusion will not be altered by the fact that respondent
corporation does not represent clients in court since law practice, as the
weight of authority holds, is not limited merely to court appearances but
extends to legal research, giving legal advice, contract drafting, and so forth.
The aforesaid conclusion is further strengthened by an article published in
the January 13, 1991 issue of the Starweek/The Sunday Magazine of the
Philippine Star, entitled "Rx for Legal Problems," where an insight into the
structure, main purpose and operations of respondent corporation was given
by its own "proprietor," Atty. Rogelio P. Nogales: . . .
3. ID.; ID.; ID.; PARALEGAL OR LEGAL ASSISTANT; CONCEPT IN THE
UNITED STATES. — Paralegals in the United States are trained
professionals. As admitted by respondent, there are schools and universities
there which offer studies and degrees in paralegal education, while there are
none in the Philippines. As the concept of the "paralegal" or "legal assistant"
evolved in the United States, standards and guidelines also evolved to
protect the general public. One of the major standards or guidelines was
developed by the American Bar Association which set up Guidelines for the
Approval of Legal Assistant Education Programs (1973). Legislation has
even been proposed to certify legal assistants. There are also associations
of paralegals in the United States with their own code of professional ethics,
such as the National Association of Legal Assistants, Inc. and the American
Paralegal Association.
4. ID.; ID.; ID.; ID.; CONCEPT IN THE PHILIPPINES. — In the Philippines,
we still have a restricted concept and limited acceptance of what may be
considered as paralegal service. As pointed out by FIDA, some persons not
duly licensed to practice law are or have been allowed limited representation
in behalf of another or to render legal services, but such allowable services
are limited in scope and extent by the law, rules or regulations granting
permission therefor. (Illustrations: . . .)
5. ID.; ID.; ID.; ID.; PHILIPPINE JUDICIAL POLICY ON PARALEGAL. — We
have to necessarily and definitely reject respondent's position that the
concept in the United States of paralegals as an occupation separate from
the law profession be adopted in this jurisdiction. Whatever may be its merits,
respondent cannot but be aware that this should first be a matter for judicial
rules or legislative action, and not of unilateral adoption as it has done. . . .
Accordingly, we have adopted the American judicial policy that, in the
absence of constitutional or statutory authority, a person who has not been
admitted as an attorney cannot practice law for the proper administration of
justice cannot be hindered by the unwarranted intrusion of an unauthorized
and unskilled person into the practice of law. That policy should continue to
be one of encouraging persons who are unsure of their legal rights and
remedies to seek legal assistance only from persons licensed to practice law
in the state.
6. ID.; ID.; ID.; ID.; ID.; PRACTICE OF LAW IN CASE AT BAR CANNOT BE
PERFORMED BY PARALEGALS; REASON. — It should be noted that in our
jurisdiction the services being offered by private respondent which constitute
practice of law cannot be performed by paralegals. Only a person duly
admitted as a member of the bar, or hereafter admitted as such in
accordance with the provisions of the Rules of Court, and who is in good and
regular standing, is entitled to practice law. . . .
7. ID.; ADVERTISEMENT BY LAWYER; RULE. — Anent the issue on the
validity of the questioned advertisements, the Code of Professional
Responsibility provides that a lawyer in making known his legal services shall
use only true, honest, fair, dignified and objective information or statement of
facts. He is not supposed to use or permit the use of any false, fraudulent,
misleading, deceptive, undignified, self-laudatory or unfair statement or claim
regarding his qualifications or legal services. Nor shall he pay or give
something of value to representatives of the mass media in anticipation of,
or in return for, publicity to attract legal business. Prior to the adoption of the
Code of Professional Responsibility, the Canons of Professional Ethics had
also warned that lawyers should not resort to indirect advertisements for
professional employment, such as furnishing or inspiring newspaper
comments, or procuring his photograph to be published in connection with
causes in which the lawyer has been or is engaged or concerning the manner
of their conduct, the magnitude of the interest involved, the importance of the
Page 74
lawyer's position, and all other like self-laudation.
LEGAL ETHICS
8. ID.; ID.; ID.; CHARACTER AND CONDUCT AS BEST ADVERTISEMENT.
— We repeat, the canons of the profession tell us that the best advertising
possible for a lawyer is a well-merited reputation for professional capacity
and fidelity to trust, which must be earned as the outcome of character and
conduct. Good and efficient service to a client as well as to the community
has a way of publicizing itself and catching public attention. That publicity is
a normal by-product of effective service which is right and proper. A good
and reputable lawyer needs no artificial stimulus to generate it and to magnify
his success. He easily sees the difference between a normal by-product of
able service and the unwholesome result of propaganda.
9. ID.; ID.; ID.; PROHIBITION ON ADVERTISEMENT OF TALENT OR
SKILL. — The standards of the legal profession condemn the lawyer's
advertisement of his talents. A lawyer cannot, without violating the ethics of
his profession, advertise his talents or skills as in a manner similar to a
merchant advertising his goods. The proscription against advertising of legal
services or solicitation of legal business rests on the fundamental postulate
that the practice of law is a profession. . . .
10. ID.; ID.; ID.; ID.; EXCEPTIONS. — The first of such exceptions is the
publication in reputable law lists, in a manner consistent with the standards
of conduct imposed by the canons, of brief biographical and informative data.
"Such data must not be misleading and may include only a statement of the
lawyer's name and the names of his professional associates; addresses,
telephone numbers, cable addresses; branches of law practiced; date and
place of birth and admission to the bar; schools attended with dates of
graduation, degrees and other educational distinction; public or quasi-public
offices; posts of honor; legal authorships; legal teaching positions;
memberships and offices in bar associations and committees thereof, in legal
and scientific societies and legal fraternities; the fact of listings in other
reputable law lists; the names and addresses of references; and, with their
written consent, the names of clients regularly represented." . . . The use of
an ordinary simple professional card is also permitted. The card may contain
only a statement of his name, the name of the law firm which he is connected
with, address, telephone number and special branch of law practiced. The
publication of a simple announcement of the opening of a law firm or of
changes in the partnership, associates, firm name or office address, being
for the convenience of the profession, is not objectionable. He may likewise
have his name listed in a telephone directory but not under a designation of
special branch of law.
11. ID.; ID.; ID.; ID.; ID.; REQUIREMENT FOR LAW LIST. — The law list
must be a reputable law list published primarily for that purpose; it cannot be
a mere supplemental feature of a paper, magazine, trade journal or periodical
which is published principally for other purposes. For that reason, a lawyer
may not properly publish his brief biographical and informative data in a daily
paper, magazine, trade journal or society program. Nor may a lawyer permit
his name to be published in a law list the conduct, management or contents
of which are calculated or likely to deceive or injure the public or the bar, or
to lower the dignity or standing of the profession.
12. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — Verily, taking into consideration
the nature and contents of the advertisements for which respondent is being
taken to task, which even includes a quotation of the fees charged by said
respondent corporation for services rendered, we find and so hold that the
same definitely do not and conclusively cannot fall under any of the above-
mentioned exceptions.
13. ID.; ID.; ID.; ID.; ID.; ID.; EXCEPTION IN BATES, ET AL. vs. STATE BAR
OF ARIZONA (433 U.S. 350, 53 L Ed 2d 810, 97 S Ct. 2691) AS TO
PUBLICATION OF LEGAL FEES, NOT APPLICABLE; REASONS. — The
ruling in the case of Bates, et al. vs. State Bar of Arizona, which is repeatedly
invoked and constitutes the justification relied upon by respondent, is
obviously not applicable to the case at bar. Foremost is the fact that the
disciplinary rule involved in said case explicitly allows a lawyer, as an
exception to the prohibition against advertisements by lawyers, to publish a
statement of legal fees for an initial consultation or the availability upon
request of a written schedule of fees or an estimate of the fee to be charged
for the specific services. No such exception is provided for, expressly or
impliedly, whether in our former Canons of Professional Ethics or the present
Code of Professional Responsibility. Besides, even the disciplinary rule in the
Bates case contains a proviso that the exceptions stated therein are "not
applicable in any state unless and until it is implemented by such authority in
that state." This goes to show that an exception to the general rule, such as
that being invoked by herein respondent, can be made only if and when the
PINEDAPCGRNMAN
canons expressly provide for such an exception. Otherwise, the prohibition
stands, as in the case at bar. It bears mention that in a survey conducted by
the American Bar Association after the decision in Bates, on the attitude of
the public about lawyers after viewing television commercials, it was found
that public opinion dropped significantly with respect to these characteristics
of lawyers: . . . Secondly, it is our firm belief that with the present situation of
our legal and judicial systems, to allow the publication of advertisements of
the kind used by respondent would only serve to aggravate what is already
a deteriorating public opinion of the legal profession whose integrity has
consistently been under attack lately by media and the community in general.
At this point in time, it is of utmost importance in the face of such negative,
even if unfair, criticisms at times, to adopt and maintain that level of
professional conduct which is beyond reproach, and to exert all efforts to
regain the high esteem formerly accorded to the legal profession.
RESOLUTION
REGALADO, J p:
Petitioner prays this Court "to order the respondent to cease and desist from
issuing advertisements similar to or of the same tenor as that of Annexes `A'
and `B' (of said petition) and to perpetually prohibit persons or entities from
making advertisements pertaining to the exercise of the law profession other
than those allowed by law." cdrep
The advertisements complained of by herein petitioner are as follows:
Annex A
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.
THE Please call:
521-0767,
LEGAL 5217232,
5222041
CLINIC, INC. 8:30 am-
6:00 pm
7-Flr.
Victoria Bldg. UN Ave., Mla.
Annex B
GUAM DIVORCE
DON PARKINSON
an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The
Legal Clinic beginning Monday to Friday during office hours.
Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext.
Quota/Non-quota Res. & Special Retiree's Visa. Declaration of Absence.
Remarriage to Filipina Fiancees. Adoption. Investment in the Phil.
US/Foreign Visa for Filipina Spouse/Children. Call Marivic.
THE 7 F Victoria
Bldg. 429 UN Ave.
LEGAL Ermita,
Manila nr. US Embassy
CLINIC, INC. 1 Tel. 521-
7232521-7251
522-2041;
521-0767
It is the submission of petitioner that the advertisements above reproduced
are champertous, unethical, demeaning of the law profession, and
destructive of the confidence of the community in the integrity of the members
of the bar and that, as a member of the legal profession, he is ashamed and
offended by the said advertisements, hence the reliefs sought in his petition
as herein before quoted. cdphil
In its answer to the petition, respondent admits the fact of publication of said
advertisements at its instance, but claims that it is not engaged in the practice
of law but in the rendering of "legal support services" through paralegals with
the use of modern computers and electronic machines. Respondent further
argues that assuming that the services advertised are legal services, the act
of advertising these services should be allowed supposedly in the light of the
case of John R. Bates and Van O'Steen vs. State Bar of Arizona, 2
reportedly decided by the United States Supreme Court on June 7, 1977.
Considering the critical implications on the legal profession of the issues
raised herein, we required the (1) Integrated Bar of the Philippines (IBP), (2)
Page 75
Philippine Bar Association (PBA), (3) Philippine Lawyers' Association (PLA),
(4) U.P. Women Lawyers' Circle (WILOCI), (5) Women Lawyers Association
LEGAL ETHICS
of the Philippines (WLAP), and (6) Federation International de Abogadas
(FIDA) to submit their respective position papers on the controversy and,
thereafter, their memoranda. 3 The said bar associations readily responded
and extended their valuable services and cooperation of which this Court
takes note with appreciation and gratitude.
The main issues posed for resolution before the Court are whether or not the
services offered by respondent, The Legal Clinic, Inc., as advertised by it
constitutes practice of law and, in either case, whether the same can properly
be the subject of the advertisements herein complained of. cdphil
Before proceeding with an in-depth analysis of the merits of this case, we
deem it proper and enlightening to present hereunder excerpts from the
respective position papers adopted by the aforementioned bar associations
and the memoranda submitted by them on the issues involved in this bar
matter.
1. Integrated Bar of the Philippines:
xxx xxx xxx
Notwithstanding the subtle manner by which respondent endeavored to
distinguish the two terms, i.e., "legal support services" vis-a-vis "legal
services", common sense would readily dictate that the same are essentially
without substantial distinction. For who could deny that document search,
evidence gathering, assistance to layman in need of basic institutional
services from government or non-government agencies like birth, marriage,
property, or business registration, obtaining documents like clearance,
passports, local or foreign visas, constitute practice of law?
xxx xxx xxx
The Integrated Bar of the Philippines (IBP) does not wish to make issue with
respondent's foreign citations. Suffice it to state that the IBP has made its
position manifest, to wit, that it strongly opposes the view espoused by
respondent (to the effect that today it is alright to advertise one's legal
services).
The IBP accordingly declares in no uncertain terms its opposition to
respondent's act of establishing a "legal clinic" and of concomitantly
advertising the same through newspaper publications.
The IBP would therefore invoke the administrative supervision of this
Honorable Court to perpetually restrain respondent from undertaking highly
unethical activities in the field of law practice as aforedescribed 4 .
xxx xxx xxx
A. The use of the name "The Legal Clinic, Inc." gives the impression that
respondent corporation is being operated by lawyers and that it renders legal
services.
While the respondent repeatedly denies that it offers legal services to the
public, the advertisements in question give the impression that respondent is
offering legal services. The Petition in fact simply assumes this to be so, as
earlier mentioned, apparently because this (is) the effect that the
advertisements have on the reading public.
The impression created by the advertisements in question can be traced, first
of all, to the very name being used by respondent — "The Legal Clinic, Inc."
Such a name, it is respectfully submitted connotes the rendering of legal
services for legal problems, just like a medical clinic connotes medical
services for medical problems. More importantly, the term "Legal Clinic"
connotes lawyers, as the term medical clinic connotes doctors.
Furthermore, the respondent's name, as published in the advertisements
subject of the present case, appears with (the) scale(s) of justice, which all
the more reinforces the impression that it is being operated by members of
the bar and that it offers legal services. In addition, the advertisements in
question appear with a picture and name of a person being represented as a
lawyer from Guam, and this practically removes whatever doubt may still
remain as to the nature of the service or services being offered.
It thus becomes irrelevant whether respondent is merely offering "legal
support services" as claimed by it, or whether it offers legal services as any
lawyer actively engaged in law practice does. And it becomes unnecessary
to make a distinction between "legal services" and "legal support services,"
as the respondent would have it. The advertisements in question leave no
room for doubt in the minds of the reading public that legal services are being
offered by lawyers, whether true or not.
B. The advertisements in question are meant to induce the performance of
acts contrary to law, morals, public order and public policy.
It may be conceded that, as the respondent claims, the advertisements in
question are only meant to inform the general public of the services being
offered by it. Said advertisements, however, emphasize a Guam divorce, and
PINEDAPCGRNMAN
any law student ought to know that under the Family Code, there is only one
instance when a foreign divorce, is recognized, and that is:
Article 26. . .Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse shall
have capacity to remarry under Philippine Law.
It must not be forgotten, too, that the Family Code (defines) a marriage as
follows:
Article 1. Marriage is a special contract of permanent union between a man
and a woman entered into in accordance with law for the establishment of
conjugal and family life. It is the foundation of the family and an inviolable
social institution whose nature, consequences, and incidents are governed
by law and not subject to stipulation, except that marriage settlements may
fix the property relation during the marriage within the limits provided by this
Code.
By simply reading the questioned advertisements, it is obvious that the
message being conveyed is that Filipinos can avoid the legal consequences
of a marriage celebrated in accordance with our law, by simply going to Guam
for a divorce. This is not only misleading, but encourages, or serves to
induce, violation of Philippine law. At the very least, this can be considered
"the dark side" of legal practice, where certain defects in Philippine laws are
exploited for the sake of profit. At worst, this is outright malpractice. LibLex
Rule 1.02. — A lawyer shall not counsel or abet activities aimed at defiance
of the law or at lessening confidence in the legal system.
In addition, it may also be relevant to point out that advertisements such as
that shown in Annex "A" of the Petition, which contains a cartoon of a motor
vehicle with the words "Just Married" on its bumper and seems to address
those planning a "secret marriage," if not suggesting a "secret marriage,"
makes light of the "special contract of permanent union," the inviolable social
institution," which is how the Family Code describes marriage, obviously to
emphasize its sanctity and inviolability. Worse, this particular advertisement
appears to encourage marriages celebrated in secrecy, which is suggestive
of immoral publication of applications for a marriage license. LLpr
If the article "Rx for Legal Problems" is to be reviewed, it can readily be
concluded that the above impressions one may gather from the
advertisements in question are accurate. The Sharon Cuneta-Gabby
Concepcion example alone confirms what the advertisements suggest. Here
it can be seen that criminal acts are being encouraged or committed (a
bigamous marriage in Hong Kong or Las Vegas) with impunity simply
because the jurisdiction of Philippine courts does not extend to the place
where the crime is committed.
Even if it be assumed, arguendo, that the "legal support services" respondent
offers do not constitute legal services as commonly understood, the
advertisements in question give the impression that respondent corporation
is being operated by lawyers and that it offers legal services, as earlier
discussed. Thus, the only logical consequence is that, in the eyes of an
ordinary newspaper reader, members of the bar themselves are encouraging
or inducing the performance of acts which are contrary to law, morals, good
customs and the public good, thereby destroying and demeaning the integrity
of the Bar.
xxx xxx xxx
It is respectfully submitted that respondent should be enjoined from causing
the publication of the advertisements in question, or any other
advertisements similar thereto. It is also submitted that respondent should be
prohibited from further performing or offering some of the services it presently
offers, or, at the very least, from offering such services to the public in
general.
The IBP is aware of the fact that providing computerized legal research,
electronic data gathering, storage and retrieval, standardized legal forms,
investigators for gathering of evidence, and like services will greatly benefit
the legal profession and should not be stifled but instead encouraged.
However, when the conduct of such business by non-members of the Bar
encroaches upon the practice of law, there can be no choice but to prohibit
such business.
Admittedly, many of the services involved in the case at bar can be better
performed by specialists in other fields, such as computer experts, who by
reason of their having devoted time and effort exclusively to such field cannot
fulfill the exacting requirements for admission to the Bar. To prohibit them
Page 76
from "encroaching" upon the legal profession will deny the profession of the
great benefits and advantages of modern technology. Indeed, a lawyer using
LEGAL ETHICS
a computer will be doing better than a lawyer using a typewriter, even if both
are (equal) in skill.
Both the Bench and the Bar, however, should be careful not to allow or
tolerate the illegal practice of law in any form, not only for the protection of
members of the Bar but also, and more importantly, for the protection of the
public. Technological development in the profession may be encouraged
without tolerating, but instead ensuring prevention of, illegal practice.
There might be nothing objectionable if respondent is allowed to perform all
of its services, but only if such services are made available exclusively to
members of the Bench and Bar. Respondent would then be offering technical
assistance, not legal services. Alternatively, the more difficult task of carefully
distinguishing between which service may be offered to the public in general
and which should be made available exclusively to members of the Bar may
be undertaken. This, however, may require further proceedings because of
the factual considerations involved.
It must be emphasized, however, that some of respondent's services ought
to be prohibited outright, such as acts which tend to suggest or induce
celebration abroad of marriages which are bigamous or otherwise illegal and
void under Philippine law. While respondent may not be prohibited from
simply disseminating information regarding such matters, it must be required
to include, in the information given, a disclaimer that it is not authorized to
practice law, that certain course of action may be illegal under Philippine law,
that it is not authorized or capable of rendering a legal opinion, that a lawyer
should be consulted before deciding on which course of action to take, and
that it cannot recommend any particular lawyer without subjecting itself to
possible sanctions for illegal practice of law.
If respondent is allowed to advertise, advertising should be directed
exclusively at members of the Bar, with a clear and unmistakable disclaimer
that it is not authorized to practice law or perform legal services. cdrep
The benefits of being assisted by paralegals cannot be ignored. But nobody
should be allowed to represent himself as a "paralegal" for profit, without such
term being clearly defined by rule or regulation, and without any adequate
and effective means of regulating his activities. Also, law practice in a
corporate form may prove to be advantageous to the legal profession, but
before allowance of such practice may be considered, the corporation's
Articles of Incorporation and By-laws must conform to each and every
provision of the Code of Professional Responsibility and the Rules of Court
5 At present, becoming a lawyer requires one to take a rigorous four-year
2. Philippine Bar Association:
xxx xxx xxx
Respondent asserts that it "is not engaged in the practice of law but engaged
in giving legal support services to lawyers and laymen, through experienced
paralegals, with the use of modern computers and electronic machines"
(pars. 2 and 3, Comment). This is absurd. Unquestionably, respondent's acts
of holding out itself to the public under the trade name "The Legal Clinic, Inc.,"
and soliciting employment for its enumerated services fall within the realm of
a practice which thus yields itself to the regulatory powers of the Supreme
Court. For respondent to say that it is merely engaged in paralegal work is to
stretch credulity. Respondent's own commercial advertisement which
announces a certain Atty. Don Perkinson to be handling the fields of law
belies its pretense. From all indications, respondent "The Legal Clinic, Inc."
is offering and rendering legal services through its reserve of lawyers. It has
been held that the practice of law is not limited to the conduct of cases in
court, but includes drawing of deeds, incorporation, rendering opinions, and
advising clients as to their legal rights and then take them to an attorney and
ask the latter to look after their case in court (See Martin, Legal and Judicial
Ethics, 1948 ed., p. 39).
It is apt to recall that only natural persons can engage in the practice of law,
and such limitation cannot be evaded by a corporation employing competent
lawyers to practice for it. Obviously, this is the scheme or device by which
respondent "The Legal Clinic, Inc." holds out itself to the public and solicits
employment of its legal services. It is an odious vehicle for deception,
especially so when the public cannot ventilate any grievance for malpractice
against the business conduit. Precisely, the limitation of practice of law to
persons who have been duly admitted as members of the Bar (Sec. 1, Rule
138, Revised Rules of Court) is to subject the members to the discipline of
the Supreme Court. Although respondent uses its business name, the
persons and the lawyers who act for it are subject to court discipline. The
practice of law is not a profession open to all who wish to engage in it nor
can it be assigned to another (See 5 Am. Jur. 270). It is a personal right
PINEDAPCGRNMAN
limited to persons who have qualified themselves under the law. It follows
that not only respondent but also all the persons who are acting for
respondent are the persons engaged in unethical law practice. 6
3. Philippine Lawyers' Association:
The Philippine Lawyers' Association's position, in answer to the issues stated
herein, are, to wit:
1. The Legal Clinic is engaged in the practice of law;
2. Such practice is unauthorized;
3. The advertisements complained of are not only unethical, but also
misleading and patently immoral; and
4. The Honorable Supreme Court has the power to suppress and punish the
Legal Clinic and its corporate officers for its unauthorized practice of law and
for its unethical, misleading and immoral advertising.
xxx xxx xxx
Respondent posits that it is not engaged in the practice of law. It claims that
it merely renders "legal support services" to lawyers, litigants and the general
public as enunciated in the Primary Purpose Clause of its Article(s) of
Incorporation. (See pages 2 to 5 of Respondent's Comment). But its
advertised services, as enumerated above, clearly and convincingly show
that it is indeed engaged in law practice, albeit outside the court.
As advertised, it offers the general public its advisory services on Persons
and Family Relations Law, particularly regarding foreign divorces, annulment
of marriages, secret marriages, absence and adoption; Immigration Laws,
particularly on visa related problems, immigration problems; the Investment
Law of the Philippines and such other related laws.
Its advertised services unmistakably require the application of the aforesaid
laws, the legal principles and procedures related thereto, the legal advises
based thereon and which activities call for legal training, knowledge and
experience.
Applying the test laid down by the Court in the aforecited Agrava Case, the
activities of respondent fall squarely and are embraced in what lawyers and
laymen equally term as "the practice of law." 7
4. U.P. Women Lawyers' Circle:
In resolving the issues before this Honorable Court, paramount consideration
should be given to the protection of the general public from the danger of
being exploited by unqualified persons or entities who may be engaged in
the practice of law.
course of study on top of a four-year bachelor of arts or sciences course and
then to take and pass the bar examinations. Only then, is a lawyer qualified
to practice law.
While the use of a paralegal is sanctioned in many jurisdictions as an aid to
the administration of justice, there are in those jurisdictions, courses of study
and/or standards which would qualify these paralegals to deal with the
general public as such. While it may now be the opportune time to establish
these courses of study and/or standards, the fact remains that at present,
these do not exist in the Philippines. In the meantime, this Honorable Court
may decide to take measures to protect the general public from being
exploited by those who may be dealing with the general public in the guise of
being "paralegals" without being qualified to do so.
In the same manner, the general public should also be protected from the
dangers which may be brought about by advertising of legal services. While
it appears that lawyers are prohibited under the present Code of Professional
Responsibility from advertising, it appears in the instant case that legal
services are being advertised not by lawyers but by an entity staffed by
"paralegals." Clearly, measures should be taken to protect the general public
from falling prey to those who advertise legal services without being qualified
to offer such services." 8
A perusal of the questioned advertisements of Respondent, however, seems
to give the impression that information regarding validity of marriages,
divorce, annulment of marriage, immigration, visa extensions, declaration of
absence, adoption and foreign investment, which are in essence, legal
matters, will be given to them if they avail of its services. The Respondent's
name — The Legal Clinic, Inc. — does not help matters. It gives the
impression again that Respondent will or can cure the legal problems brought
to them. Assuming that Respondent is, as claimed, staffed purely by
paralegals, it also gives the misleading impression that there are lawyers
involved in The Legal Clinic, Inc., as there are doctors in any medical clinic,
Page 77
when only "paralegals" are involved in The Legal Clinic, Inc.
LEGAL ETHICS
Respondent's allegations are further belied by the very admissions of its
President and majority stockholder, Atty. Nogales, who gave an insight on
the structure and main purpose of Respondent corporation in the
aforementioned "Starweek" article." 9
5. Women Lawyer's Association of the Philippines:
Annexes "A" and "B" of the petition are clearly advertisements to solicit cases
for the purpose of gain which, as provided for under the above cited law, (are)
illegal and against the Code of Professional Responsibility of lawyers in this
country.
Annex "A" of the petition is not only illegal in that it is an advertisement to
solicit cases, but it is illegal in that in bold letters it announces that the Legal
Clinic, Inc., could work out/cause the celebration of a secret marriage which
is not only illegal but immoral in this country. While it is advertised that one
has to go to said agency and pay P560 for a valid marriage it is certainly
fooling the public for valid marriages in the Philippines are solemnized only
by officers authorized to do so under the law. And to employ an agency for
said purpose of contracting marriage is not necessary.
No amount of reasoning that in the USA, Canada and other countries the
trend is towards allowing lawyers to advertise their special skills to enable
people to obtain from qualified practitioners legal services for their particular
needs can justify the use of advertisements such as are the subject matter of
this petition, for one (cannot) justify an illegal act even by whatever merit the
illegal act may serve. The law has yet to be amended so that such as act could
become justifiable. LLphil
We submit further that these advertisements that seem to project that secret
marriages and divorce are possible in this country for a fee, when in fact it is
not so, are highly reprehensible.
It would encourage people to consult this clinic about how they could go
about having a secret marriage here, when it cannot nor should ever be
attempted, and seek advice on divorce, where in this country there is none,
except under the Code of Muslim Personal Laws in the Philippines. It is also
against good morals and is deceitful because it falsely represents to the
public to be able to do that which by our laws cannot be done (and) by our
Code of Morals should not be done. LLjur
In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that
solicitation for clients by an attorney by circulars of advertisements, is
unprofessional and offenses of this character justify permanent elimination
from the Bar. 10
6. Federacion
International de Abogadas:
xxx xxx xxx
1.7 That entities
admittedly not engaged in the practice of law, such as management
consultancy firms or travel agencies, whether run by lawyers or not, perform
the services rendered by Respondent does not necessarily lead to the
conclusion that Respondent is not unlawfully practicing law. In the same vein,
however, the fact that the business of respondent (assuming it can be
engaged in independently of the practice of law) involves knowledge of the
law does not necessarily make respondent guilty of unlawful practice of law.
". . . Of necessity, no one . . . acting as a consultant can render effective
service unless he is familiar with such statutes and regulations. He must be
careful not to suggest a course of conduct which the law forbids. It seems . .
. clear that (the consultant's) knowledge of the law, and his use of that
knowledge as a factor in determining what measures he shall recommend,
do not constitute the practice of law . . .. It is not only presumed that all men
know the law, but it is a fact that most men have considerable acquaintance
with the broad features of the law . . .. Our knowledge of the law — accurate
or inaccurate — moulds our conduct not only when we are acting for
ourselves, but when we are serving others. Bankers, liquor dealers and
laymen generally possess rather precise knowledge of the laws touching
their particular business or profession. A good example is the architect, who
must be familiar with zoning, building and fire prevention codes, factory and
tenement house statutes, and who draws plans and specifications in
harmony with the law. This is not practicing law.
"But suppose the architect, asked by his client to omit a fire tower, replies
that it is required by the statute. Or the industrial relations expert cites, in
support of some measure that he recommends, a decision of the National
Labor Relations Board. Are they practicing law? In my opinion, they are not,
provided no separate fee is charged for the legal advice or information, and
the legal question is subordinate and incidental to a major non-legal problem.
PINEDAPCGRNMAN
"It is largely a matter of degree and of custom.
"If it were usual for one intending to erect a building on his land to engage a
lawyer to advise him and the architect in respect to the building code and the
like, then an architect who performed this function would probably be
considered to be trespassing on territory reserved for licensed attorneys.
Likewise, if the industrial relations field had been pre-empted by lawyers, or
custom placed a lawyer always at the elbow of the lay personnel man. But
this is not the case. The most important body of industrial relations experts
are the officers and business agents of the labor unions and few of them are
lawyers. Among the larger corporate employers, it has been the practice for
some years to delegate special responsibility in employee matters to a
management group chosen for their practical knowledge and skill in such
matters, and without regard to legal training or lack of it. More recently,
consultants like the defendant have tendered to the smaller employers the
same service that the larger employers get from their own specialized staff.
"The handling of industrial relations is growing into a recognized profession
for which appropriate courses are offered by our leading universities. The
court should be very cautious about declaring [that] a widespread, well-
established method of conducting business is unlawful, or that the
considerable class of men who customarily perform a certain function have
no right to do so, or that the technical education given by our schools cannot
be used by the graduates in their business.
"In determining whether a man is practicing law, we should consider his work
for any particular client or customer, as a whole. I can imagine defendant
being engaged primarily to advise as to the law defining his client's
obligations to his employees, to guide his client along the path charted by
law. This, of course, would be the practice of the law. But such is not the fact
in the case before me. Defendant's primary efforts are along economic and
psychological lines. The law only provides the frame within which he must
work, just as the zoning code limits the kind of building the architect may plan.
The incidental legal advice or information defendant may give, does not
transform his activities into the practice of law. Let me add that if, even as a
minor feature of his work, he performed services which are customarily
reserved to members of the bar, he would be practicing law. For instance, if
as part of a welfare program, he drew employees' wills.
"Another branch of defendant's work is the representation of the employer in
the adjustment of grievances and in collective bargaining, with or without a
mediator. This is not per se the practice of law. Anyone may use an agent for
negotiations and may select an agent particularly skilled in the subject under
discussion, and the person appointed is free to accept the employment
whether or not he is a member of the bar. Here, however, there may be an
exception where the business turns on a question of law. Most real estate
sales are negotiated by brokers who are not lawyers. But if the value of the
land depends on a disputed right-of-way and the principal role of the
negotiator is to assess the probable outcome of the dispute and persuade
the opposite party to the same opinion, then it may be that only a lawyer can
accept the assignment. Or if a controversy between an employer and his men
grows from differing interpretations of a contract, or of a statute, it is quite
likely that defendant should not handle it. But I need not reach a definite
conclusion here, since the situation is not presented by the proofs. cdphil
"Defendant also appears to represent the employer before administrative
agencies of the federal government, especially before trial examiners of the
National Labor Relations Board. An agency of the federal government, acting
by virtue of an authority granted by the Congress, may regulate the
representation of parties before such agency. The State of New Jersey is
without power to interfere with such determination or to forbid representation
before the agency by one whom the agency admits. The rules of the National
Labor Relations Board give to a party the right to appear `in person, or by
counsel, or by other representative.' Rules and Regulations, September 11th,
1946, S. 203.31. `Counsel' here means a licensed attorney, and `other
representative' one not a lawyer. In this phase of his work, defendant may
lawfully do whatever the Labor Board allows, even arguing questions purely
legal." (Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky, Introduction to
Paralegalism [1974], at pp. 154-156.).
1.8 From the
foregoing, it can be said that a person engaged in a lawful calling (which may
involve knowledge of the law) is not engaged in the practice of law provided
that:
Page 78
(a) The legal question is subordinate and incidental to a major non-legal
problem;
LEGAL ETHICS
(b) The services performed are not customarily reserved to members of the
bar;
(c) No separate fee is charged for the legal advice or information.
All these must be considered in relation to the work for any particular client
as a whole.
1.9. If the person involved is both lawyer and non-lawyer, the Code of
Professional Responsibility succinctly states the rule of conduct:
"Rule 15.08 — A lawyer who is engaged in another profession or occupation
concurrently with the practice of law shall make clear to his client whether he
is acting as a lawyer or in another capacity."
1.10. In the present case, the Legal Clinic appears to render wedding
services (See Annex "A", Petition). Services on routine, straightforward
marriages, like securing a marriage license, and making arrangements with
a priest or a judge, may not constitute practice of law. However, if the problem
is as complicated as that described in Rx for Legal Problems" on the Sharon
Cuneta-Gabby Concepcion-Richard Gomez case, then what may be involved
is actually the practice of law. If a non-lawyer, such as the Legal Clinic,
renders such services, then it is engaged in the unauthorized practice of law.
1.11 The Legal Clinic also appears to give information on divorce, absence,
annulment of marriage and visas (See Annexes "A" and "B", Petition). Purely
giving informational materials may not constitute practice of law. The
business is similar to that of a bookstore where the customer buys materials
on the subject and determines by himself what courses of action to take.
It is not entirely improbable, however, that aside from purely giving
information, the Legal Clinic's paralegals may apply the law to the particular
problem of the client, and give legal advice. Such would constitute
unauthorized practice of law.
"It cannot be claimed that the publication of a legal text which purports to say
what the law is amounts to legal practice. And the mere fact that the principles
or rules stated in the text may be accepted by a particular reader as a solution
to his problem does not affect this. . . . Apparently it is urged that the
conjoining of these two, that is, the text and the forms, with advice as to how
the forms should be filled out, constitutes the unlawful practice of law. But
that is the situation with many approved and accepted texts. Dacey's book is
sold to the public at large. There is no personal contact or relationship with a
particular individual. Nor does there exist that relation of confidence and trust
so necessary to the status of attorney and client. THIS IS THE ESSENTIAL
OF LEGAL PRACTICE — THE REPRESENTATION AND ADVISING OF A
PARTICULAR PERSON IN A PARTICULAR SITUATION. At most the book
assumes to offer general advice on common problems, and does not purport
to give personal advice on a specific problem peculiar to a designated or
readily identified person. Similarly the defendant's publication does not
purport `to give personal advice on a specific problem peculiar to a
designated or readily identified person in a particular situation — in the
publication and sale of the kits, such publication and sale did not constitute
the unlawful practice of law . . .. There being no legal impediment under the
statute to the sale of the kit, there was no proper basis for the injunction
against defendant maintaining an office for the purpose of selling to persons
seeking a divorce, separation, annulment or separation agreement any
printed material or writings relating to matrimonial law or the prohibition in the
memorandum of modification of the judgment against defendant having an
interest in any publishing house publishing his manuscript on divorce and
against his having any personal contact with any prospective purchaser. The
record does fully support, however, the finding that for the charge of $75 or
$100 for the kit, the defendant gave legal advice in the course of personal
contacts concerning particular problems which might arise in the preparation
and presentation of the purchaser's asserted matrimonial cause of action or
pursuit of other legal remedies and assistance in the preparation of
necessary documents (The injunction therefore sought to) enjoin conduct
constituting the practice of law, particularly with reference to the giving of
advice and counsel by the defendant relating to specific problems of
particular individuals in connection with a divorce, separation, annulment of
separation agreement sought and should be affirmed." (State v. Winder, 348,
NYS 2d 270 [1973], cited in Statsky, supra at p. 101.)
1.12. Respondent, of course, states that its services are "strictly non-
diagnostic, non-advisory." It is not controverted, however, that if the services
"involve giving legal advice or counselling," such would constitute practice of
law (Comment, par. 6.2). It is in this light that FIDA submits that a factual
inquiry may be necessary for the judicious disposition of this case.
PINEDAPCGRNMAN
2.10. Annex "A" may be ethically objectionable in that it can give the
impression (or perpetuate the wrong notion) that there is a secret marriage.
With all the solemnities, formalities and other requisites of marriages (See
Articles 2, et seq., Family Code), no Philippine marriage can be secret.
2.11. Annex "B" may likewise be ethically objectionable. The second
paragraph thereof (which is not necessarily related to the first paragraph) fails
to state the limitation that only "paralegal services" or "legal support
services", and not legal services, are available." 11
A prefatory discussion on the meaning of the phrase "practice of law"
becomes exigent for a proper determination of the issues raised by the
petition at bar. On this score, we note that the clause "practice of law" has
long been the subject of judicial construction and interpretation. The courts
have laid down general principles and doctrines explaining the meaning and
scope of the term, some of which we now take into account. LLjur
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedures, knowledge, training and experience. To
engage in the practice of law is to perform those acts which are characteristic
of the profession. Generally, to practice law is to give advice or render any
kind of service that involves legal knowledge or skill. 12 The practice of law
is not limited to the conduct of cases in court. It includes legal advice and
counsel, and the preparation of legal instruments and contracts by which
legal rights are secured, although such matter may or may not be pending in
a court. 13
In the practice of his profession, a licensed attorney at law generally engages
in three principal types of professional activity: legal advice and instructions
to clients to inform them of their rights and obligations, preparation for clients
of documents requiring knowledge of legal principles not possessed by
ordinary layman, and appearance for clients before public tribunals which
possess power and authority to determine rights of life, liberty, and property
according to law, inorder to assist in proper interpretation and enforcement
of law. 14
When a person participates in a trial and advertises himself as a lawyer, he
is in the practice of law. 15 One who confers with clients, advises them as to
their legal rights and then takes the business to an attorney and asks the later
to look after the case in court, is also practicing law. 16 Giving advice for
compensation regarding the legal status and rights of another and the
conduct with respect thereto constitutes a practice of law. 17 One who
renders an opinion as to the proper interpretation of a statute, and receives
pay for it, is, to that extent, practicing law. 18
In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines in
several cases, we laid down the test to determine whether certain acts
constitute "practice of law," thus:
Black defines "practice of law" as:
"The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It
is not limited to appearing in court, or advising and assisting in the conduct
of litigation, but embraces the preparation of pleadings, and other papers
incident to actions and special proceedings, conveyancing, the preparation
of legal instruments of all kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them in matters
connected with the law."
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650). A person
is also considered to be in the practice of law when he:
". . . for valuable consideration engages in the business of advising persons,
firms, associations or corporations as to their rights under the law, or appears
in a representative capacity as an advocate in proceedings, pending or
prospective, before any court, commissioner, referee, board, body,
committee, or commission constituted by law or authorized to settle
controversies and there, in such representative capacity, performs any act or
acts for the purpose of obtaining or defending the rights of their clients under
the law. Otherwise stated, one who, in a representative capacity, engages in
the business of advising clients as to their rights under the law, or while so
engaged performs any act or acts either in court or outside of court for that
purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v. C.S.
Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)."
This Court, in the case of Philippine Lawyers Association v. Agrava (105 Phil.
173, 176-177), stated:
Page 79
"The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to actions
LEGAL ETHICS
and special proceedings, the management of, such actions and proceedings
on behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in matters
connected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings in attachment, and
in matters of estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal instruments, where the
work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jr. p. 262, 263).
"Practice of law under modern conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice
on a large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and
other affairs. Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in litigation.
They require in many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an attorney or counselor
at law bear an intimate relation to the administration of justice by the courts.
No valid distinction, so far as concerns the question set forth in the order, can
be drawn between that part of the work of the lawyer which involves
appearance in court and that part which involves advice and drafting of
instruments in his office. It is of importance to the welfare of the public that
these manifold customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and acting at all times
under the heavy trust obligations to clients which rests upon all attorneys.
(Moran, Comments on the Rules of Court, Vol. 3 [1973 ed.], pp. 665-666,
citing In Re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode
Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139, 144)."
The practice of law, therefore, covers a wide range of activities in and out of
court. Applying the aforementioned criteria to the case at bar, we agree with
the perceptive findings and observations of the aforestated bar associations
that the activities of respondent, as advertised, constitute "practice of law."
The contention of respondent that it merely offers legal support services can
neither be seriously considered nor sustained. Said proposition is belied by
respondent's own description of the services it has been offering, to wit:
"Legal support services basically consist of giving ready information by
trained paralegals to laymen and lawyers, which are strictly non-diagnostic,
non-advisory, through the extensive use of computers and modern
information technology in the gathering, processing, storage, transmission
and reproduction of information and communication, such as computerized
legal research; encoding and reproduction of documents and pleadings
prepared by laymen or lawyers; document search; evidence gathering;
locating parties or witnesses to a case; fact finding investigations; and
assistance to laymen in need of basic institutional services from government
or non-government agencies, like birth, marriage, property, or business
registrations; educational or employment records or certifications, obtaining
documentation like clearances, passports, local or foreign visas; giving
information about laws of other countries that they may find useful, like
foreign divorce, marriage or adoption laws that they can avail of preparatory
to emigration to that foreign country, and other matters that do not involve
representation of clients in court; designing and installing computer systems,
programs, or software for the efficient management of law offices, corporate
legal departments, courts, and other entities engaged in dispensing or
administering legal services." 20
While some of the services being offered by respondent corporation merely
involve mechanical and technical know-how, such as the installation of
computer systems and programs for the efficient management of law offices,
or the computerization of research aids and materials, these will not suffice
to justify an exception to the general rule.
What is palpably clear is that respondent corporation gives out legal
information to laymen and lawyers. Its contention that such function is non-
advisory and non-diagnostic is more apparent than real. In providing
information, for example, about foreign laws on marriage, divorce and
adoption, it strains the credulity of this Court that all that respondent
corporation will simply do is look for the law, furnish a copy thereof to the
client, and stop there as if it were merely a bookstore. With its attorneys and
PINEDAPCGRNMAN
so called paralegals, it will necessarily have to explain to the client the
intricacies of the law and advise him or her on the proper course of action to
be taken as may be provided for by said law. That is what its advertisements
represent and for which services it will consequently charge and be paid.
That activity falls squarely within the jurisprudential definition of "practice of
law." Such a conclusion will not be altered by the fact that respondent
corporation does not represent clients in court since law practice, as the
weight of authority holds, is not limited merely to court appearances but
extends to legal research, giving legal advice, contract drafting, and so forth.
The aforesaid conclusion is further strengthened by an article published in
the January 13, 1991 issue of the Starweek/The Sunday Magazine of the
Philippine Star, entitled "Rx for Legal Problems," where an insight into the
structure, main purpose and operations of respondent corporation was given
by its own "proprietor," Atty. Rogelio P. Nogales:
This is the kind of business that is transacted everyday at The Legal Clinic,
with offices on the seventh floor of the Victoria Building along U.N. Avenue
in Manila. No matter what the client's problem, and even if it is as complicated
as the Cuneta-Concepcion domestic situation, Atty. Nogales and his staff of
lawyers, who, like doctors, are "specialists" in various fields, can take care of
it. The Legal Clinic, Inc. has specialists in taxation and criminal law, medico-
legal problems, labor, litigation and family law. These specialists are backed
up by a battery of paralegals, counsellors and attorneys.
Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in the
medical field toward specialization, it caters to clients who cannot afford the
services of the big law firms.
The Legal Clinic has regular and walk-in clients. "When they come, we start
by analyzing the problem. That's what doctors do also. They ask you how
you contracted what's bothering you, they take your temperature, they
observe you for the symptoms, and so on. That's how we operate, too. And
once the problem has been categorized, then it's referred to one of our
specialists."
There are cases which do not, in medical terms, require surgery or follow-up
treatment. These The Legal Clinic disposes of in a matter of minutes. "Things
like preparing a simple deed of sale or an affidavit of loss can be taken care
of by our staff or, if this were a hospital, the residents or the interns. We can
take care of these matters on a while you wait basis. Again, kung baga sa
ospital, out-patient, hindi kailangang ma-confine. It's just like a common cold
or diarrhea," explains Atty. Nogales.
Those cases which require more extensive "treatment" are dealt with
accordingly. "If you had a rich relative who died and named you her sole heir,
and you stand to inherit millions of pesos of property, we would refer you to
a specialist in taxation. There would be real estate taxes and arrears which
would need to be put in order, and your relative is even taxed by the state for
the right to transfer her property, and only a specialist in taxation would be
properly trained to deal with that problem. Now, if there were other heirs
contesting your rich relative's will, then you would need a litigator, who knows
how to arrange the problem for presentation in court, and gather evidence to
support the case." 21
That fact that the corporation employs paralegals to carry out its services is
not controlling. What is important is that it is engaged in the practice of law
by virtue of the nature of the services it renders which thereby brings it within
the ambit of the statutory prohibitions against the advertisements which it has
caused to be published and are now assailed in this proceeding. prcd
Further, as correctly and appropriately pointed out by the U.P. WILOCI, said
reported facts sufficiently establish that the main purpose of respondent is to
serve as a one-stop-shop of sorts for various legal problems wherein a client
may avail of legal services from simple documentation to complex litigation
and corporate undertakings. Most of these services are undoubtedly beyond
the domain of paralegals, but rather, are exclusive functions of lawyers
engaged in the practice of law. 22
It should be noted that in our jurisdiction the services being offered by private
respondent which constitute practice of law cannot be performed by
paralegals. Only a person duly admitted as a member of the bar, or hereafter
admitted as such in accordance with the provisions of the Rules of Court, and
who is in good and regular standing, is entitled to practice law. 23
Public policy requires that the practice of law be limited to those individuals
found duly qualified in education and character. The permissive right
conferred on the lawyers is an individual and limited privilege subject to
Page 80
withdrawal if he fails to maintain proper standards of moral and professional
conduct. The purpose is to protect the public, the court, the client and the bar
LEGAL ETHICS
from the incompetence or dishonesty of those unlicensed to practice law and
not subject to the disciplinary control of the court. 24
The same rule is observed in the American jurisdiction where from
respondent would wish to draw support for his thesis. The doctrines there
also stress that the practice of law is limited to those who meet the
requirements for, and have been admitted to, the bar, and various statutes
or rules specifically so provide. 25 The practice of law is not a lawful business
except for members of the bar who have complied with all the conditions
required by statute and the rules of court. Only those persons are allowed to
practice law who, by reason of attainments previously acquired through
education and study, have been recognized by the courts as possessing
profound knowledge of legal science entitling them to advise, counsel with,
protect, or defend the rights, claims, or liabilities of their clients, with respect to
the construction, interpretation, operation and effect of law. 26 The
justification for excluding from the practice of law those not admitted to the
bar is found, not in the protection of the bar from competition, but in the
protection of the public from being advised and represented in legal matters
by incompetent and unreliable persons over whom the judicial department
can exercise little control. 27
We have to necessarily and definitely reject respondent's position that the
concept in the United States of paralegals as an occupation separate from
the law profession be adopted in this jurisdiction. Whatever may be its merits,
respondent cannot but be aware that this should first be a matter for judicial
rules or legislative action, and not of unilateral adoption as it has done.
Paralegals in the United States are trained professionals. As admitted by
respondent, there are schools and universities there which offer studies and
degrees in paralegal education, while there are none in the Philippines. 28
As the concept of the "paralegal" or "legal assistant" evolved in the United
States, standards and guidelines also evolved to protect the general public.
One of the major standards, or guidelines was developed by the American
Bar Association which set up Guidelines for the Approval of Legal Assistant
Education Programs (1973). Legislation has even been proposed to certify
legal assistants. There are also associations of paralegals in the United
States with their own code of professional ethics, such as the National
Association of Legal Assistants, Inc. and the American Paralegal
Association. 29
In the Philippines, we still have a restricted concept and limited acceptance
of what may be considered, as paralegal service. As pointed out by FIDA,
some persons not duly licensed to practice law are or have been allowed
limited representation in behalf of another or to render legal services, but
such allowable services are limited in scope and extent by the law, rules or
regulations granting permission therefor. 30
Accordingly, we have adopted the American judicial policy that, in the
absence of constitutional or statutory authority, a person who has not been
admitted as an attorney cannot practice law for the proper administration of
justice cannot be hindered by the unwarranted intrusion of an unauthorized
and unskilled person into the practice of law. 31 That policy should continue to
be one of encouraging persons who are unsure of their legal rights and
remedies to seek legal assistance only from persons licensed to practice law
in the state. 32
Anent the issue on the validity of the questioned advertisements, the Code
of Professional Responsibility provides that a lawyer in making known his
legal services shall use only true, honest, fair, dignified and objective
information or statement of facts. 33 He is not supposed to use or permit the
use of any false, fraudulent, misleading, deceptive, undignified, self-
laudatory or unfair statement or claim regarding his qualifications or legal
services. 34 Nor shall he pay or give something of value to representatives
of the mass media in anticipation of, or in return for, publicity to attract legal
business. 35 Prior to the adoption of the Code of Professional Responsibility,
the Canons of Professional Ethics had also warned that lawyers should not
resort to indirect advertisements for professional employment, such as
furnishing or inspiring newspaper comments, or procuring his photograph to
be published in connection with causes in which the lawyer has been or is
engaged or concerning the manner of their conduct, the magnitude of the
interest involved, the importance of the lawyer's position, and all other like
self-laudation. 36
The standards of the legal profession condemn the lawyer's advertisement
of his talents. A lawyer cannot, without violating the ethics of his profession,
advertise his talents or skills as in a manner similar to a merchant advertising
his goods. 37 The proscription against advertising of legal services or
PINEDAPCGRNMAN
solicitation of legal business rests on the fundamental postulate that the
practice of law is a profession. Thus, in the case of The Director of Religious
Affairs vs. Estanislao R. Bavot 38 an advertisement, similar to those of
respondent which are involved in the present proceeding, 39 was held to
constitute improper advertising or solicitation.
The pertinent part of the decision therein reads:
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 worthy 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.)
We repeat, the canons of the profession tell us that the best advertising
possible for a lawyer is a well-merited reputation for professional capacity
and fidelity to trust, which must be earned as the outcome of character and
conduct. Good and efficient service to a client as well as to the community
has a way of publicizing itself and catching public attention. That publicity is
a normal by-product of effective service which is right and proper. A good
and reputable lawyer needs no artificial stimulus to generate it and to magnify
his success. He easily sees the difference between a normal by-product of
able service and the unwholesome result of propaganda. 40
Of course, not all types of advertising or solicitation are prohibited. The
canons of the profession enumerate exceptions to the rule against
advertising or solicitation and define the extent to which they may be
undertaken. The exceptions are of two broad categories, namely, those
which are expressly allowed and those which are necessarily implied from
the restrictions. 41
The first of such exceptions is the publication in reputable law lists, in a
manner consistent with the standards of conduct imposed by the canons, of
brief biographical and informative data. "Such data must not be misleading
and may include only a statement of the lawyer's name and the names of his
professional associates; addresses, telephone numbers, cable addresses;
branches of law practiced; date and place of birth and admission to the bar;
schools attended with dates of graduation, degrees and other educational
distinction; public or quasi-public offices; posts of honor; legal authorships;
legal teaching positions; membership and offices in bar associations and
committees thereof, in legal and scientific societies and legal fraternities; the
fact of listings in other reputable law lists; the names and addresses of
references; and, with their written consent, the names of clients regularly
represented." 42
The law list must be a reputable law list published primarily for that purpose;
it cannot be a mere supplemental feature of a paper, magazine, trade journal
or periodical which is published principally for other purposes. For that
reason, a lawyer may not properly publish his brief biographical and
informative data in a daily paper, magazine, trade journal or society program.
Nor may a lawyer permit his name to be published in a law list the conduct,
management or contents of which are calculated or likely to deceive or injure
the public or the bar, or to lower the dignity or standing of the profession. 43
The use of an ordinary simple professional card is also permitted. The card
may contain only a statement of his name, the name of the law firm which he
is connected with, address, telephone number and special branch of law
practiced. The publication of a simple announcement of the opening of a law
firm or of changes in the partnership, associates, firm name or office address,
being for the convenience of the profession, is not objectionable. He may
likewise have his name listed in a telephone directory but not under a
designation of special branch of law. 44
Verily, taking into consideration the nature and contents of the
advertisements for which respondent is being taken to task, which even
includes a quotation of the fees charged by said respondent corporation for
Page 81
services rendered, we find and so hold that the time definitely do not and
conclusively cannot fall under any of the above-mentioned exceptions.
LEGAL ETHICS
The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is
repeatedly invoked and constitutes the justification relied upon by
respondent, is obviously not applicable to the case at bar. Foremost is the
fact that the disciplinary rule involved in said case explicitly allows a lawyer,
as an exception to the prohibition against advertisements by lawyers, to
publish a statement of legal fees for an initial consultation or the availability
upon request of a written schedule of fees or an estimate of the fee to be
charged for the specific services. No such exception is provided for,
expressly or impliedly, whether in our former Canons of Professional Ethics
or the present Code of Professional Responsibility. Besides, even the
disciplinary rule in the Bates case contains a proviso that the exceptions
stated therein are "not applicable in any state unless and until it is
implemented by such authority in that state." 46 This goes to show that an
exception to the general rule, such as that being invoked by herein
respondent, can be made only if and when the canons expressly provide for
such an exception. Otherwise, the prohibition stands, as in the case at bar.
LLpr
It bears mention that in a survey conducted by the American Bar Association
after the decision in Bates, on the attitude of the public about lawyers after
viewing television commercials, it was found that public opinion dropped
significantly 47 with respect to these characteristics of lawyers:
Trustworthy from 71% to
14%
Professional from 71% to
14%
Honest from 65% to
14%
Dignified from 45% to
14%
Secondly, it is our firm belief that with the present situation of our legal and
judicial systems, to allow the publication of advertisements of the kind used
by respondent would only serve to aggravate what is already a deteriorating
public opinion of the legal profession whose integrity has consistently been
under attack lately by media and the community in general. At this point in
time, it is of utmost importance in the face of such negative, even if unfair,
criticisms at times, to adopt and maintain that level of professional conduct
which is beyond reproach, and to exert all efforts to regain the high esteem
formerly accorded to the legal profession.
In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to
disciplinary action, to advertise his services except in allowable instances 48
or to aid a layman in the unauthorized practice of law. 49 Considering that
Atty. Rogelio P. Nogales, who is the prime incorporator, major stockholder
and proprietor of The Legal Clinic, Inc. is a member of the Philippine Bar, he
is hereby reprimanded, with a warning that a repetition of the same or similar
acts which are involved in this proceeding will be dealt with more severely.
While we deem it necessary that the question as to the legality or illegality of
the purpose/s for which the Legal Clinic, Inc. was created should be passed
upon and determined, we are constrained to refrain from lapsing into an
obiter on that aspect since it is clearly not within the adjudicative parameters
of the present proceeding which is merely administrative in nature. It is, of
course, imperative that this matter be promptly determined, albeit in a
different proceeding and forum, since, under the present state of our law and
jurisprudence, a corporation cannot be organized for or engage in the
practice of law in this country. This interdiction, just like the rule against
unethical advertising, cannot be subverted by employing some so-called
paralegals supposedly rendering the alleged support services. llcd
The remedy for the apparent breach of this prohibition by respondent is the
concern and province of the Solicitor General who can institute the
corresponding quo warranto action, 50 after due ascertainment of the factual
background and basis for the grant of respondent's corporate charter, in light
of the putative misuse thereof. That spin-off from the instant bar matter is
referred to the Solicitor General for such action as may be necessary under the
circumstances.
ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein
respondent, The Legal Clinic, Inc., from issuing or causing the publication or
dissemination of any advertisement in any form which is of the same or
similar tenor and purpose as Annexes "A" and "B" of this petition, and from
conducting, directly or indirectly, any activity, operation or transaction
proscribed by law or the Code of Professional Ethics as indicated herein. Let
PINEDAPCGRNMAN
copies of this resolution be furnished the Integrated Bar of the Philippines,
the Office of the Bar Confidant and the Office of the Solicitor General for
appropriate action in accordance herewith.
Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Davide, Jr.,
Romero, Nocon, Bellosillo, Melo and Quiason, JJ ., concur.
March 23, 1929
In re LUIS B. TAGORDA,
Duran & Lim for respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a member of the
provincial board of Isabela, admits that previous to the last general elections
he made use of a card written in Spanish and Ilocano, which, in translation,
reads as follows:
LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
Province of Isabela
(NOTE. — As notary public, he can execute for you a deed of sale for the
purchase of land as required by the cadastral office; can renew lost
documents of your animals; can make your application and final requisites
for your homestead; and can execute any kind of affidavit. As a lawyer, he
can help you collect your loans although long overdue, as well as any
complaint for or against you. Come or write to him in his town, Echague,
Isabela. He offers free consultation, and is willing to help and serve the poor.)
The respondent further admits that he is the author of a letter addressed to a
lieutenant of barrio in his home municipality written in Ilocano, which letter, in
translation, reads as follows:
ECHAGUE, ISABELA, September 18, 1928
MY DEAR LIEUTENANT: I would like to inform you of the approaching date
for our induction into office as member of the Provincial Board, that is on the
16th of next month. Before my induction into office I should be very glad to
hear your suggestions or recommendations for the good of the province in
general and for your barrio in particular. You can come to my house at any
time here in Echague, to submit to me any kind of suggestion or
recommendation as you may desire.
I also inform you that despite my membership in the Board I will have my
residence here in Echague. I will attend the session of the Board of Ilagan,
but will come back home on the following day here in Echague to live and
serve with you as a lawyer and notary public. Despite my election as member
of the Provincial Board, I will exercise my legal profession as a lawyer and
notary public. In case you cannot see me at home on any week day, I assure
you that you can always find me there on every Sunday. I also inform you
that I will receive any work regarding preparations of documents of contract
of sales and affidavits to be sworn to before me as notary public even on
Sundays.
I would like you all to be informed of this matter for the reason that some
people are in the belief that my residence as member of the Board will be in
Ilagan and that I would then be disqualified to exercise my profession as
lawyer and as notary public. Such is not the case and I would make it clear
that I am free to exercise my profession as formerly and that I will have my
residence here in Echague.
I would request you kind favor to transmit this information to your barrio
people in any of your meetings or social gatherings so that they may be
informed of my desire to live and to serve with you in my capacity as lawyer
and notary public. If the people in your locality have not as yet contracted the
services of other lawyers in connection with the registration of their land titles,
I would be willing to handle the work in court and would charge only three
pesos for every registration.
Yours respectfully,
(Sgd.) LUIS TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the applicable legal
provisions. Section 21 of the Code of Civil Procedure as originally conceived
related to disbarments of members of the bar. In 1919 at the instigation of
Page 82
the Philippine Bar Association, said codal section was amended by Act No.
2828 by adding at the end thereof the following: "The practice of soliciting
LEGAL ETHICS
cases at law for the purpose of gain, either personally or through paid agents
or brokers, constitutes malpractice."
The statute as amended conforms in principle to the Canons of Professionals
Ethics adopted by the American Bar Association in 1908 and by the
Philippine Bar Association in 1917. Canons 27 and 28 of the Code of Ethics
provide:
27. ADVERTISING, DIRECT OR INDIRECT. — The most worthy and
effective advertisement possible, even for a young lawyer, and especially
with his brother lawyers, 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. The publication or circulation of
ordinary simple business cards, being a matter of personal taste or local
custom, and sometimes of convenience, is not per se improper. But
solicitation of business by circulars or advertisements, or by personal
communications or interview not warranted by personal relations, is
unprofessional. It is equally unprofessional to procure business by indirection
through touters of any kind, whether allied real estate firms or trust
companies advertising to secure the drawing of deeds or wills or offering
retainers in exchange for executorships or trusteeships to be influenced by
the lawyer. Indirect advertisement for business by furnishing or inspiring
newspaper comments concerning the manner of their conduct, the
magnitude of the interest involved, the importance of the lawyer's position,
and all other like self-laudation, defy the traditions and lower the tone of our
high calling, and are intolerable.
28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS. — It
is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in
rare cases where ties of blood, relationship or trust make it his duty to do so.
Stirring up strife and litigation is not only unprofessional, but it is indictable at
common law. It is disreputable to hunt up defects in titles or other causes of
action and inform thereof in order to the employed to bring suit, or to breed
litigation by seeking out those with claims for personal injuries or those having
any other grounds of action in order to secure them as clients, or to employ
agents or runners for like purposes, or to pay or reward directly or indirectly,
those who bring or influence the bringing of such cases to his office, or to
remunerate policemen, court or prison officials, physicians, hospital attaches
or others who may succeed, under the guise of giving disinterested friendly
advice, in influencing the criminal, the sick and the injured, the ignorant or
others, to seek his professional services. A duty to the public and to the
profession devolves upon every member of the bar having knowledge of such
practices upon the part of any practitioner immediately to inform thereof to
the end that the offender may be disbarred. Common barratry consisting of
frequently stirring up suits and quarrels between individuals was a crime at
the common law, and one of the penalties for this offense when committed by
an attorney was disbarment. Statutes intended to reach the same evil have
been provided in a number of jurisdictions usually at the instance of the bar
itself, and have been upheld as constitutional. The reason behind statutes of
this type is not difficult to discover. The law is a profession and not a business.
The lawyer may not seek or obtain employment by himself or through others
for to do so would be unprofessional. (State vs. Rossman [1909], 53 Wash.,
1; 17 Ann. Cas., 625; Peoplevs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C.
L., 1097.)
It becomes our duty to condemn in no uncertain terms the ugly practice of
solicitation of cases by lawyers. It is destructive of the honor of a great
profession. It lowers the standards of that profession. It works against the
confidence of the community in the integrity of the members of the bar. It
results in needless litigation and in incenting to strife otherwise peacefully
inclined citizens.
The solicitation of employment by an attorney is a ground for disbarment or
suspension. That should be distinctly understood.
Giving application of the law and the Canons of Ethics to the admitted facts,
the respondent stands convicted of having solicited cases in defiance of the
law and those canons. Accordingly, the only remaining duty of the court is to
fix upon the action which should here be taken. The provincial fiscal of
Isabela, with whom joined the representative of the Attorney-General in the
oral presentation of the case, suggests that the respondent be only
reprimanded. We think that our action should go further than this if only to
reflect our attitude toward cases of this character of which unfortunately the
respondent's is only one. The commission of offenses of this nature would
amply justify permanent elimination from the bar. But as mitigating,
circumstances working in favor of the respondent there are, first, his
PINEDAPCGRNMAN
intimation that he was unaware of the impropriety of his acts, second, his
youth and inexperience at the bar, and, third, his promise not to commit a
similar mistake in the future. A modest period of suspension would seem to
fit the case of the erring attorney. But it should be distinctly understood that
this result is reached in view of the considerations which have influenced the
court to the relatively lenient in this particular instance and should, therefore,
not be taken as indicating that future convictions of practice of this kind will
not be dealt with by disbarment.
In view of all the circumstances of this case, the judgment of the court is that
the respondent Luis B. Tagorda be and is hereby suspended from the
practice as an attorney-at-law for the period of one month from April 1, 1929,
Street, Johns, Romualdez, and Villa-Real, JJ., concur. Johnson,
J., reserves his vote.
Rule 3.02 – In the choice of a firm name, no false, misleading, or
assumed name shall be used. The continued use of the name of a
deceased partner is permissible provided that the firm indicates in all
its communication that said partner is deceased.
Adm. Case No. 2131 May 10, 1985
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.
Adriano E. Dacanay for and his own behalf.
Madrid, Cacho, Angeles, Dominguez & Pecson Law Office for respondents.
AQUINO, J.:
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.
Rule 3.03 – Where a partner accepts public office, he shall withdraw from the
firm and his name shall be dropped from the firm name unless the law allows
him to practice law concurrently.
Constitution Art 6 Section 14. No Senator or Member of the House of
Page 83
Representatives may personally appear as counsel before any court of
justice or before the Electoral Tribunals, or quasi-judicial and other
LEGAL ETHICS
administrative bodies. Neither shall he, directly or indirectly, be interested
financially in any contract with, or in any franchise or special privilege granted
by the Government, or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter before any office
of the Government for his pecuniary benefit or where he may be called upon
to act on account of his office.
Constitution Art 7 SECTION 13. The President, Vice-President, the Members
of the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during their
tenure. They shall not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not during his tenure be appointed as members
of the Constitutional Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of bureaus or offices,
including government-owned or controlled corporations and their
subsidiaries.
Constitution Art 9 SECTION 2. No Member of a Constitutional Commission
shall, during his tenure, hold any other office or employment. Neither shall he
engage in the practice of any profession or in the active management or
control of any business which in any way be affected by the functions of his
office, nor shall he be financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the Government, any
of its subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.
[A.M. No. P-99-1292. February 26, 1999]
JULIETA BORROMEO SAMONTE, complainant, vs. ATTY. ROLANDO R.
GATDULA, Branch Clerk of Court, respondent.
RESOLUTION
GONZAGA-REYES, J.:
The complaint filed by Julieta Borromeo Samonte charges Rolando R.
Gatdula, RTC, Branch 220, Quezon City with grave misconduct consisting in
the alleged engaging in the private practice of law which is in conflict with his
official functions as Branch Clerk of Court.
Complainant alleges that she is the authorized representative of her sister
Flor Borromeo de Leon, the plaintiff in Civil Case No. 37-14552 for ejectment
filed with the Metropolitan Trial Court of Quezon City, Branch 37. A
typographical error was committed in the complaint which stated that the
address of defendant is No. 63-C instead of 63-B, P. Tuazon Blvd., Cubao,
Quezon City. The mistake was rectified by the filing of an amended complaint
which was admitted by the Court. A decision was rendered in favor of the
plaintiff who subsequently filed a motion for execution. Complainant however,
was surprised to receive a temporary restraining order signed by Judge
Prudencio Castillo of Branch 220, RTC, Quezon City, where Atty. Rolando
Gatdula is the Branch Clerk of Court, enjoining the execution of the decision
of the Metropolitan Trial Court. Complainant alleges that the issuance of the
temporary restraining order was hasty and irregular as she was never notified
of the application for preliminary injunction.
Complainant further alleges that when she went to Branch 220, RTC, Quezon
City, to inquire about the reason for the issuance of the temporary restraining
order, respondent Atty. Rolando Gatdula, blamed her lawyer for writing the
wrong address in the complaint for ejectment and told her that if she wanted
the execution to proceed, she should change her lawyer and retain the law
office of respondent at the same time giving his calling card with the name
"Baligod, Gatdula, Tacardon, Dimailig and Celera" with office at Rm. 220
Mariwasa Bldg., 717 Aurora Blvd., Cubao, Quezon City; otherwise she will
not be able to eject the defendant Dave Knope. Complainant told respondent
that she could not decide because she was only representing her sister. To
her consternation, the RTC Branch 220 issued an order granting the
preliminary injunction as threatened by respondent despite the fact that the
MTC, Branch 37 had issued an Order directing the execution of the Decision
in Civil Case No. 37-14552.
PINEDAPCGRNMAN
Asked to comment, respondent Atty. Gatdula recited the antecedents in the
ejectment case and the issuance of the restraining order by the Regional Trial
Court, and claimed that contrary to complainant Samonte's allegation that
she was not notified of the raffle and the hearing, the Notice of Hearing on
the motion for the issuance of a Temporary Restraining Order was duly
served upon the parties, and that the application for injunctive relief was
heard before the temporary restraining order was issued. The preliminary
injunction was also set for hearing on August 7, 1996.
The respondent's version of the incident is that sometime before the hearing
of the motion for the issuance of a temporary restraining order, complainant
Samonte went to court "very mad" because of the issuance of the order
stopping the execution of the decision in the ejectment case. Respondent
tried to calm her down, and assured her that the restraining order was only
temporary and that the application for preliminary injunction would still be
heard. Later the Regional Trial Court granted the application for a writ of
preliminary injunction. The complainant went back to court "fuming mad"
because of the alleged unreasonableness of the court in issuing the
injunction.
Respondent Gatdula claims that thereafter complainant returned to his office,
and informed him that she wanted to change counsel and that a friend of hers
recommended the Law Finn of "Baligod, Gatdula, Tacardon, Dimailig and
Celera," at the same time showing a calling card, and asking if he could
handle her case. Respondent refused as he was not connected with the law
firm, although he was invited to join but he chose to remain in the judiciary.
Complainant returned to court a few days later and told him that if he cannot
convince the judge to recall the writ of preliminary injunction, she will file an
administrative case against respondent and the judge. The threat was
repeated but the respondent refused to be pressured. Meanwhile, the
Complainant's Motion to Dissolve the Writ of Preliminary Injunction was
denied. Respondent Gatdula claims that the complainant must have filed this
administrative charge because of her frustration in procuring the ejectment
of the defendant lessee from the premises. Respondent prays for the
dismissal of the complaint against him.
The case was referred to Executive Judge Estrella Estrada, RTC, Quezon
City, for investigation, report and recommendation.
In her report Judge Estrada states that the case was set for hearing three
times, on September 7, 1997, on September 17, and on September 24, 1997,
but neither complainant nor her counsel appeared, despite due notice. The
return of service of the Order setting the last hearing stated that complainant
is still abroad. There being no definite time conveyed to the court for the
return of the complainant, the investigating Judge proceeded with the
investigation by "conducting searching questions" upon respondent based on
the allegations in the complaint and asked for the record of Civil Case No. Q-
96-28187 for evaluation. The case was set for hearing for the last time on
October 22, 1997, to give complainant a last chance to appear, but there was
again no appearance despite notice.
The respondent testified in his own behalf to affirm the statements in his
Comment and submitted documentary evidence consisting mainly of the
pleadings in MTC Civil Case No. 37-14552, and in RTC Civil Case No. Q96-
28187 to show that the questioned orders of the court were not improperly
issued.
The investigating judge made the following findings:
"For failure of the complainant to appear at the several hearings despite
notice, she failed to substantiate her allegations in the complaint particularly
that herein respondent gave her his calling card and tried to convince her to
change her lawyer. This being the case, it cannot be established with
certainty that respondent indeed gave her his calling card and even
convinced her to change her lawyer. Moreover, as borne by the records of
Civil Case No. Q-96-28187, complainant was duly notified of all the
proceedings leading to the issuance of the TRO and the subsequent orders
of Judge Prudencio Altre Castillo, Jr. of RTC, Branch 220. Complainant's lack
of interest in prosecuting this administrative case could be an indication that
her filing of the charge against the respondent is only intended to harass the
respondent for her failure to obtain a favorable decision from the Court.
However, based on the record of this administrative case, the calling card
attached as Annex "B" of complainant's affidavit dated September 25, 1996
allegedly given by respondent to complainant would show that the name of
herein respondent was indeed included in the BALIGOD, GATDULA,
Page 84
TACARDON, DIMAILIG & CELERA LAW OFFICES. While respondent
denied having assumed any position in said office, the fact remains that his
LEGAL ETHICS
name is included therein which may therefore tend to show that he has
dealings with said office. Thus, while he may not be actually and directly
employed with the firm, the fact that his name appears on the calling card as
a partner in the Baligod, Gatdula, Tacardon, Dimailig & Celera Law Offices
give the impression that he is connected therein and may constitute an act of
solicitation and private practice which is declared unlawful under Republic Act
No. 6713. It is to be noted, however, that complainant failed to establish by
convincing evidence that respondent actually offered to her the services of
their law office. Thus, the violation committed by respondent in having his
name included/retained in the calling card may only be considered as a minor
infraction for which he must also be administratively sanctioned."
and recommended that Atty. Gatdula be admonished and censured for the
minor infraction he has committed.
Finding: We agree with the investigating judge that the respondent is guilty
of an infraction. The complainant by her failure to appear at the hearings,
failed to substantiate her allegation that it was the respondent who gave her
the calling card of "Baligod, Gatdula, Tacardon, Dimailig and Celera Law
Offices" and that he tried to convince her to change counsels. We find
however, that while the respondent vehemently denies the complainant's
allegations, he does not deny that his name appears on the calling card
attached to the complaint which admittedly came into the hands of the
complainant. The respondent testified before the Investigating Judge as
follows:
"Q: How about your statement that you even gave her a calling card of the
"Baligod, Gatdula, Pardo, Dimailig and Celera law Offices at Room 220
Mariwasa building?
A: I vehemently deny the allegation of the complainant that I gave her a
calling card. I was surprised when she presented (it) to me during one of her
follow-ups of the case before the court. She told me that a friend of hers
recommended such firm and she found out that my name is included in that
firm. I told her that I have not assumed any position in that law firm. And I am
with the Judiciary. since I passed the bar. It is impossible for me to enter an
appearance as her counsel in the very same court where I am the Branch
Clerk of Court."
The above explanation tendered by the Respondent is an admission that it is
his name which appears on the calling card, a permissible form of advertising
or solicitation of legal services.[1] Respondent does not claim that the calling
card was printed without his knowledge or consent and the calling card[2]
carries his name primarily and the name of "Baligod, Gatdula, Tacardon,
Dimailig and Celera with address at 220 Mariwasa Bldg., 717 Aurora Blvd.,
Cubao, Quezon City" in the left comer. The card clearly gives the impression
that he is connected with the said law firm. The inclusion/retention of his
name in the professional card constitutes an act of solicitation which violates
Section 7 sub-par. (b)(2) of Republic Act No. 6713, otherwise known as "Code
of Conduct and Ethical Standards for Public Officials and Employees" which
declares it unlawful for a public official or employee to, among others:
"(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 official functions."
Time and again this Court has said that the conduct and behavior of every
one connected with an office charged with the dispensation of justice, from
the presiding judge to the lowliest clerk. should be circumscribed with the
heavy burden of responsibility. His conduct, at all times must not only be
characterized by proprietor and decorum but above all else must be above
suspicion.[3]
WHEREFORE, respondent Rolando R. Gatdula. Branch Clerk of Court, RTC,
Branch 220, Quezon City is hereby reprimanded for engaging in the private
practice of law with the warning that a repetition of the same offense will be
dealt with more severely. He is further ordered to cause the exclusion of his
name in the firm name of any office engaged in the private practice of law.
SO ORDERED.
Rule 3.04 – A lawyer shall not pay or give anything of value to
representatives of the mass media in anticipation of, or in return for,
publicity to attract legal business.
 It is unethical to use the name of a foreign firm.
 Death of a partner does not extinguish attorney-client relationship
with the law firm.
PINEDAPCGRNMAN
 Negligence of a member in the law firm is negligence of the firm.
CANON 4 – A lawyer shall participate in the improvement of the legal
system by initiating or supporting efforts in law reform and in the
administration of justice.
Examples: Presenting position papers or resolutions for the introduction of
pertinent bills in congress; Petitions with the Supreme Court for the
amendment of the Rules of Court.
CANON 5 – A lawyer shall keep abreast of legal developments,
participate in continuing legal education programs, support efforts to
achieve high standards in law schools as well as in the practical
training of students and assist in disseminating information regarding
the law and jurisprudence.
Objectives of integration of the Bar
 To elevate the standards of the legal profession
 To improve the administration of justice
 To enable the Bar to discharge its responsibility more effectively.
The three-fold obligation of a lawyer
 First, he owes it to himself to continue improving his knowledge
of the laws;
 Second, he owes it to his profession to take an active interest in
the maintenance of high standards of legal education;
 Third, he owes it to the lay public to make the law a part of their
social consciousness.
B.M. 850. October 2, 2001]
MANDATORY CONTINUING LEGAL EDUCATION
RESOLUTION
ADOPTING THE REVISED RULES ON THE CONTINUING LEGAL
EDUCATION FOR MEMBERS OF THE INTEGRATED BAR OF THE
PHILIPPINES
Considering the Rules on the Mandatory Continuing Legal Education (MCLE)
for members of the Integrated Bar of the Philippines (IBP), recommended by
the IBP, endorsed by the Philippine Judicial Academy, and reviewed and
passed upon by the Supreme Court Committee on Legal Education, the
Court hereby resolves to approve, as it hereby approves, the following
Revised Rules for proper implementation:
Rule 1. PURPOSE
SECTION 1. Purpose of the MCLE. Continuing legal education is required of
members of the Integrated Bar of the Philippines (IBP) to ensure that
throughout their career, they keep abreast with law and jurisprudence,
maintain the ethics of the profession and enhance the standards of the
practice of law.
Rule 2. MANDATORY CONTINUING LEGAL EDUCATION
SECTION 1. Commencement of the MCLE. Within two (2) months from the
approval of these Rules by the Supreme Court En Banc, the MCLE
Committee shall be constituted and shall commence the implementation
of the Mandatory Continuing Legal Education (MCLE) program in
accordance with these Rules.
SEC. 2. Requirements of completion of MCLE. Members of the IBP not
exempt under Rule 7 shall complete every three (3) years at least thirty-six
(36) hours of continuing legal education activities approved by the MCLE
Committee. Of the 36 hours:
(a) At least six (6) hours shall be devoted to legal ethics equivalent to six
(6) credit units.
(b) At least four (4) hours shall be devoted to trial and pretrial skills
equivalent to four (4) credit units.
(c) At least five (5) hours shall be devoted to alternative dispute resolution
equivalent to five (5) credit units.
(d) At least nine (9) hours shall be devoted to updates on substantive and
procedural laws, and jurisprudence equivalent to nine (9) credit units.
(e) At least four (4) hours shall be devoted to legal writing and oral advocacy
equivalent to four (4) credit units.
Page 85
(f) At least two (2) hours shall be devoted to international law and
international conventions equivalent to two (2) credit units.
LEGAL ETHICS
(g) The remaining six (6) hours shall be devoted to such subjects as may be
prescribed by the MCLE Committee equivalent to six (6) credit units.
Rule 3. COMPLIANCE PERIOD
SECTION 1. Initial compliance period. -- The initial compliance period shall
begin not later than three (3) months from the adoption of these Rules.
Except for the initial compliance period for members admitted or readmitted
after the establishment of the program, all compliance periods shall be for
thirty-six (36) months and shall begin the day after the end of the previous
compliance period.
SEC. 2. Compliance Groups. -- Members of the IBP not exempt from the
MCLE requirement shall be divided into three (3) compliance groups, namely:
(a) Compliance group 1. -- Members in the National Capital Region (NCR) or
Metro Manila are assigned to Compliance Group 1.
(b) Compliance group 2. -- Members in Luzon outside NCR are assigned to
Compliance Group 2.
(c) Compliance group 3. -- Members in Visayas and Mindanao are assigned
to Compliance Group 3.
Nevertheless, members may participate in any legal education activity
wherever it may be available to earn credit unit toward compliance with
the MCLE requirement.
SEC. 3. Compliance period of members admitted or readmitted after
establishment of the program. Members admitted or readmitted to the Bar
after the establishment of the program shall be assigned to the appropriate
Compliance Group based on their Chapter membership on the date of
admission or readmission.
The initial compliance period after admission or readmission shall begin on
the first day of the month of admission or readmission and shall end on the
same day as that of all other members in the same Compliance Group.
(a) Where four (4) months or less remain of the initial compliance period after
admission or readmission, the member is not required to comply with the
program requirement for the initial compliance.
(b) Where more than four (4) months remain of the initial compliance period
after admission or readmission, the member shall be required to complete a
number of hours of approved continuing legal education activities equal to
the number of months remaining in the compliance period in which the
member is admitted or readmitted. Such member shall be required to
complete a number of hours of education in legal ethics in proportion to the
number of months remaining in the compliance period. Fractions of hours
shall be rounded up to the next whole number.
Rule 4. COMPUTATION OF CREDIT UNITS(CU)
SECTION 1. Guidelines. - CREDIT UNITS ARE EQUIVALENT TO CREDIT
HOURS. CREDIT UNITS measure compliance with the MCLE
requirement under the Rules, based on the category of the lawyers
participation in the MCLE activity. The following are the guidelines for
computing credit units and the supporting documents required
therefor:
PROGRAMS/ACTIVITY CREDIT UNITS SUPPORTING DOCUMENTS
1. SEMINARS, CONVENTIONS, CONFERENCES, SYMPOSIA, IN-HOUSE
EDUCATION PROGRAMS, WORKSHOPS, DIALOGUES, ROUND TABLE
DISCUSSIONS BY APPROVED PROVIDERS UNDER RULE 7 AND
OTHER RELATED RULES
1.1 PARTICIPANT/ 1 CU PER HOUR OF CERTIFICATE OF
ATTENDEE ATTENDANCE ATTENDANCE WITH
NUMBER OF HOURS
1.2 LECTURER FULL CU FOR THE PHOTOCOPY OF
RESOURCE SUBJECT PER PLAQUE OR
SPEAKER COMPLIANCE PERIOD SPONSORS
CERTIFICATION
1.3 PANELIST/REACTOR 1/2 OF CU FOR THE CERTIFICATION
COMMENTATOR/ SUBJECT PER FROM
MODERATOR/ COMPLIANCE PERIOD SPONSORING
COORDINATOR/ ORGANIZATION
FACILITATOR
2. AUTHORSHIP, EDITING AND REVIEW
2.1 LAW BOOK OF NOT FULL CU FOR THE PUBLISHED BOOK
LESS THAN 100 PAGES SUBJECT PER
COMPLIANCE PERIOD
2.2 BOOK EDITOR 1/2 OF THE CU OF PUBLISHED BOOK
AUTHORSHIP CATEGORY WITH PROOF AS
EDITOR
PINEDAPCGRNMAN
2.3 RESEARCH PAPER 1/2 OF CU FOR THE DULY
INNOVATIVE PROGRAM/ SUBJECT PER CERTIFIED/
CREATIVE PROJECT COMPLIANCE PERIOD PUBLISHED
TECHNICAL
REPORT/PAPER
2.4 LEGAL ARTICLE OF AT 1/2 OF CU FOR THE PUBLISHED ARTICLE
LEAST TEN (10) PAGES SUBJECT PER
COMPLIANCE PERIOD
2.5 LEGAL NEWSLETTER/ 1 CU PER ISSUE PUBLISHED
LAW JOURNAL EDITOR NEWSLETTER/JOURNAL
2.6 PROFESSORIAL CHAIR/ FULL CU FOR THE CERTIFICATION OF
BAR REVIEW LECTURE SUBJECT PER LAW DEAN OR
LAW TEACHING/ COMPLIANCE PERIOD BAR REVIEW
DIRECTOR
Rule 5. CATEGORIES OF CREDIT UNITS
SECTION 1. Classes of Credit units. -- Credit units are either participatory
or non-participatory.
SEC. 2. Claim for participatory credit units. -- Participatory credit units may
be claimed for:
(a) Attending approved education activities like seminars, conferences,
conventions, symposia, in-house education programs, workshops, dialogues
or round table discussion.
(b) Speaking or lecturing, or acting as assigned panelist, reactor,
commentator, resource speaker, moderator, coordinator or facilitator in
approved education activities.
(c) Teaching in a law school or lecturing in a bar review class.
SEC. 3. Claim for non-participatory credit units. Non-participatory
credit units may be claimed per compliance period for:
(a) Preparing, as an author or co-author, written materials published or
accepted for publication, e.g., in the form of an article, chapter, book, or book
review which contribute to the legal education of the author member, which
were not prepared in the ordinary course of the members practice or
employment.
(b) Editing a law book, law journal or legal newsletter.
Rule 6. COMPUTATION OF CREDIT HOURS (CH)
SECTION 1. Computation of credit hours. -- Credit hours are computed
based on actual time spent in an education activity in hours to the nearest
one-quarter hour reported in decimals.
Rule 7. EXEMPTIONS
SECTION 1. Parties exempted from the MCLE. -- The following members of
the Bar are exempt from the MCLE requirement:
(a) The President and the Vice President of the Philippines, and the
Secretaries and Undersecretaries of Executive Departments;
(b) Senators and Members of the House of Representatives;
(c) The Chief Justice and Associate Justices of the Supreme Court,
incumbent and retired members of the judiciary, incumbent members of the
Judicial and Bar Council and incumbent court lawyers covered by the
Philippine Judicial Academy program of continuing judicial education;
(d) The Chief State Counsel, Chief State Prosecutor and Assistant
Secretaries of the Department of Justice;
(e) The Solicitor General and the Assistant Solicitors General;
(f) The Government Corporate Counsel, Deputy and Assistant Government
Corporate Counsel;
(g) The Chairmen and Members of the Constitutional Commissions;
(h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy
Ombudsman and the Special Prosecutor of the Office of the Ombudsman;
(i) Heads of government agencies exercising quasi-judicial functions;
(j) Incumbent deans, bar reviewers and professors of law who have teaching
experience for at least ten (10) years in accredited law schools;
(k) The Chancellor, Vice-Chancellor and members of the Corps of Professors
and Professorial Lecturers of the Philippine Judicial Academy; and
(l) Governors and Mayors.
SEC. 2. Other parties exempted from the MCLE. The following Members of
the Bar are likewise exempt:
(a) Those who are not in law practice, private or public.
(b) Those who have retired from law practice with the approval of the IBP
Board of Governors.
SEC. 3. Good cause for exemption from or modification of requirement A
Page 86
member may file a verified request setting forth good cause for exemption
(such as physical disability, illness, post graduate study abroad, proven
LEGAL ETHICS
expertise in law, etc.) from compliance with or modification of any of the
requirements, including an extension of time for compliance, in accordance
with a procedure to be established by the MCLE Committee.
SEC. 4. Change of status. The compliance period shall begin on the first day
of the month in which a member ceases to be exempt under Sections 1, 2,
or 3 of this Rule and shall end on the same day as that of all other members
in the same Compliance Group.
SEC. 5. Proof of exemption. Applications for exemption from or modification
of the MCLE requirement shall be under oath and supported by documents.
Rule 8. STANDARDS FOR APPROVAL OF
EDUCATION ACTIVITIES
SECTION 1. Approval of MCLE program. Subject to the implementing
regulations that may be adopted by the MCLE Committee, continuing legal
education program may be granted approval in either of two (2) ways: (1) the
provider of the activity is an accredited provider and certifies that the activity
meets the criteria of Section 2 of this Rule; and (2) the provider is specifically
mandated by law to provide continuing legal education.
SEC. 2. Standards for all education activities. All continuing legal education
activities must meet the following standards:
(a) The activity shall have significant current intellectual or practical content.
(b) The activity shall constitute an organized program of learning related to
legal subjects and the legal profession, including cross profession activities
(e.g., accounting-tax or medical-legal) that enhance legal skills or the ability
to practice law, as well as subjects in legal writing and oral advocacy.
(c) The activity shall be conducted by a provider with adequate professional
experience.
(d) Where the activity is more than one (1) hour in length, substantive written
materials must be distributed to all participants. Such materials must be
distributed at or before the time the activity is offered.
(e) In-house education activities must be scheduled at a time and location so
as to be free from interruption like telephone calls and other distractions.
Rule 9. ACCREDITATION OF PROVIDERS
SECTION 1. Accreditation of providers. -- Accreditation of providers shall
be done by the MCLE Committee.
SEC. 2. Requirements for accreditation of providers. Any person or group
may be accredited as a provider for a term of two (2) years, which may be
renewed, upon written application. All providers of continuing legal education
activities, including in-house providers, are eligible to be accredited
providers. Application for accreditation shall:
(a) Be submitted on a form provided by the MCLE Committee;
(b) Contain all information requested in the form;
(c) Be accompanied by the appropriate approval fee.
SEC. 3. Requirements of all providers. -- All approved accredited providers
shall agree to the following:
(a) An official record verifying the attendance at the activity shall be
maintained by the provider for at least four (4) years after the completion
date. The provider shall include the member on the official record of
attendance only if the members signature was obtained at the time of
attendance at the activity. The official record of attendance shall contain the
members name and number in the Roll of Attorneys and shall identify the
time, date, location, subject matter, and length of the education activity. A
copy of such record shall be furnished the MCLE COMMITTEE.
(b) The provider shall certify that:
(1) This activity has been approved BY THE MCLE COMMITTEE in the
amount of hours of which hours will apply in (legal ethics,
etc.), as appropriate to the content of the activity;
(2) The activity conforms to the standards for approved education activities
prescribed by these Rules and such regulations as may be prescribed by the
MCLE COMMITTEE.
(c) The provider shall issue a record or certificate to all participants identifying
the time, date, location, subject matter and length of the activity.
(d) The provider shall allow in-person observation of all approved continuing
legal education activity by THE MCLE COMMITTEE, members of the IBP
Board of Governors, or designees of the Committee and IBP staff Board for
purposes of monitoring compliance with these Rules.
(e) The provider shall indicate in promotional materials, the nature of the
activity, the time devoted to each topic and identity of the instructors. The
provider shall make available to each participant a copy of THE MCLE
COMMITTEE-approved Education Activity Evaluation Form.
PINEDAPCGRNMAN
(f) The provider shall maintain the completed Education Activity Evaluation
Forms for a period of not less than one (1) year after the activity, copy
furnished the MCLE COMMITTEE.
(g) Any person or group who conducts an unauthorized activity under this
program or issues a spurious certificate in violation of these Rules shall be
subject to appropriate sanctions.
SEC. 4. Renewal of provider accreditation. The accreditation of a provider
may be renewed every two (2) years. It may be denied if the provider fails to
comply with any of the requirements of these Rules or fails to provide
satisfactory education activities for the preceding period.
SEC. 5. Revocation of provider accreditation. -- the accreditation of any
provider referred to in Rule 9 may be revoked by a majority vote of the MCLE
Committee, after notice and hearing and for good cause.
Rule 10. FEE FOR APPROVAL OF ACTIVITY AND ACCREDITATION OF PROVIDER
SECTION 1. Payment of fees. Application for approval of an education
activity or accreditation as a provider requires payment of the appropriate fee
as provided in the Schedule of MCLE Fees.
Rule 11. GENERAL COMPLIANCE PROCEDURES
SECTION 1. Compliance card. -- Each member shall secure from the MCLE
Committee a Compliance Card before the end of his compliance period. He
shall complete the card by attesting under oath that he has complied with the
education requirement or that he is exempt, specifying the nature of the
exemption. Such Compliance Card must be returned to the Committee not
later than the day after the end of the members compliance period.
SEC. 2. Member record keeping requirement. -- Each member shall maintain
sufficient record of compliance or exemption, copy furnished the MCLE
Committee. The record required to be provided to the members by the
provider pursuant to Section 3 of Rule 9 should be a sufficient record of
attendance at a participatory activity. A record of non-participatory activity
shall also be maintained by the member, as referred to in Section 3 of Rule
5.
Rule 12. NON-COMPLIANCE PROCEDURES
SECTION 1. What constitutes non-compliance. The following shall constitute
non-compliance:
(a) Failure to complete the education requirement within the compliance
period;
(b) Failure to provide attestation of compliance or exemption;
(c) Failure to provide satisfactory evidence of compliance (including evidence
of exempt status) within the prescribed period;
(d) Failure to satisfy the education requirement and furnish evidence of such
compliance within sixty (60) days from receipt of non-compliance notice;
(e) Failure to pay non-compliance fee within the prescribed period;
(f) Any other act or omission analogous to any of the foregoing or intended
to circumvent or evade compliance with the MCLE requirements.
SEC. 2. Non-compliance notice and 60-day period to attain compliance. -
Members failing to comply will receive a Non-Compliance Notice stating the
specific deficiency and will be given sixty (60) days from the date of
notification to file a response clarifying the deficiency or otherwise showing
compliance with the requirements. Such notice shall contain the following
language near the beginning of the notice in capital letters:
IF YOU FAIL TO PROVIDE ADEQUATE PROOF OF COMPLIANCE WITH
THE MCLE REQUIREMENT BY (INSERT DATE 60 DAYS FROM DATE OF
NOTICE), YOU SHALL BE LISTED AS A DELINQUENT MEMBER AND
SHALL NOT BE PERMITTED TO PRACTICE LAW UNTIL SUCH TIME AS
ADEQUATE PROOF OF COMPLIANCE IS RECEIVED BY THE MCLE
COMMITTEE.
Members given sixty (60) days to respond to a Non-Compliance Notice may
use this period to attain the adequate number of credit units for compliance.
Credit units earned during this period may only be counted toward
compliance with the prior compliance period requirement unless units in
excess of the requirement are earned, in which case the excess may be
counted toward meeting the current compliance period requirement.
Rule 13. CONSEQUENCES OF NON-COMPLIANCE
SECTION 1. Non-compliance fee. -- A member who, for whatever reason, is
in non-compliance at the end of the compliance period shall pay a non-
compliance fee.
SEC. 2. Listing as delinquent member. -- A member who fails to comply with
the requirements after the sixty (60) day period for compliance has expired,
Page 87
shall be listed as a delinquent member of the IBP upon the recommendation
of the MCLE Committee. The investigation of a member for non-compliance
LEGAL ETHICS
shall be conducted by the IBPs Commission on Bar Discipline as a fact-
finding arm of the MCLE Committee.
SEC. 3. Accrual of membership fee. -- Membership fees shall continue to
accrue at the active rate against a member during the period he/she is listed
as a delinquent member.
Rule 14. REINSTATEMENT
SECTION 1. Process. -- The involuntary listing as a delinquent member shall
be terminated when the member provides proof of compliance with the MCLE
requirement, including payment of non-compliance fee. A member may attain
the necessary credit units to meet the requirement for the period of non-
compliance during the period the member is on inactive status. These credit
units may not be counted toward meeting the current compliance period
requirement. Credit units earned during the period of non- compliance in
excess of the number needed to satisfy the prior compliance period
requirement may be counted toward meeting the current compliance period
requirement.
SEC. 2. Termination of delinquent listing is an administrative process. The
termination of listing as a delinquent member is administrative in nature AND
it shall be made by the MCLE Committee.
Rule. 15. COMMITTEE ON MANDATORY CONTINUING
LEGAL EDUCATION
SECTION 1. Composition. The MCLE Committee shall be composed of five
(5) members, namely, a retired Justice of the Supreme Court as Chair, and
four (4) members respectively nominated by the IBP, the Philippine Judicial
Academy, a law center designated by the Supreme Court and associations
of law schools and/or law professors.
The members of the Committee shall be of proven probity and integrity. They
shall be appointed by the Supreme Court for a term of three (3) years and
shall receive such compensation as may be determined by the Court.
SEC. 2. Duty of committee. The MCLE Committee shall administer and adopt
such implementing rules as may be necessary subject to the approval of the
Supreme Court. It shall, in consultation with the IBP Board of Governors,
prescribe a schedule of MCLE fees with the approval of the Supreme Court.
SEC. 3. Staff of the MCLE Committee. Subject to approval by the Supreme
Court, the MCLE Committee shall employ such staff as may be necessary
to perform the record-keeping, auditing, reporting, approval and other
necessary functions.
SEC. 4. Submission of annual budget. The MCLE Committee shall submit to
the Supreme Court for approval, an annual budget [for a subsidy] to
establish, operate and maintain the MCLE Program.
This resolution shall take effect on the fifteenth of September 2000, following
its publication in two (2) newspapers of general circulation in the Philippines.
Adopted this 22nd day of August, 2000, as amended on 02 October 2001.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-
Gutierrez, JJ., concur.
Kapunan, J., on official leave.
CANON 6 – These canons shall apply to lawyers in government service
in the discharge of their official tasks.
 Public Officials – include elective and appointive officials and
employees, permanent or temporary, whether in the career or
non-career service, including military and police personnel,
whether or not they receive compensation, regardless of amount.
(Sec. 3 (b), RA 6713).
 The law requires the observance of the following norms of
conduct by every public official in the discharge and execution of
their official duties:
1. commitment to public interest
2. professionalism
3. justness and sincerity
4. political neutrality
5. responsiveness to the public
6. nationalism and patriotism
7. commitment to democracy
8. simple living (Sec. 4, RA 6713)
A.C. No. 3056 August 16, 1991
PINEDAPCGRNMAN
FERNANDO T. COLLANTES, complainant,
vs.
ATTY. VICENTE C. RENOMERON respondent.
PER CURIAM:p
This complaint for disbarment is related to the administrative case which
complainant Attorney Fernando T. Collantes, house counsel for V & G Better
Homes Subdivision, Inc. (V & G for short), filed against Attorney Vicente C.
Renomeron, Register of Deeds of Tacloban City, for the latter's irregular
actuations with regard to the application of V & G for registration of 163 pro
forma Deeds of Absolute Sale with Assignment of lots in its subdivision. The
present complaint charges the respondent with the following offenses:
1. Neglecting or refusing inspite (sic) repeated requests and without sufficient
justification, to act within reasonable time (sic) the registration of 163 Deeds
of Absolute Sale with Assignment and the eventual issuance and transfer of
the corresponding 163 transfer certificates of titles to the GSIS, for the
purpose of obtaining some pecuniary or material benefit from the person or
persons interested therein.
2. Conduct unbecoming of public official.
3. Dishonesty.
4. Extortion.
5. Directly receiving pecuniary or material benefit for himself in connection
with pending official transaction before him.
6. Causing undue injury to a party, the GSIS [or] Government through
manifest partiality, evident bad faith or gross inexcusable negligence.
7. Gross ignorance of the law and procedure. (p. 10, Rollo.)
As early as January 15, 1987, V & G had requested the respondent Register
of Deeds to register some 163 deeds of sale with assignment (in favor of the
GSIS) of lots of the V & G mortgaged to GSIS by the lot buyers. There was
no action from the respondent.
Another request was made on February 16, 1987 for him to approve or deny
registration of the uniform deeds of absolute sale with assignment. Still no
action except to require V & G to submit proof of real estate tax payment and
to clarify certain details about the transactions.
Although V & G complied with the desired requirements, respondent
Renomeron suspended the registration of the documents pending
compliance by V & G with a certain "special arrangement" between them,
which was that V & G should provide him with a weekly round trip ticket from
Tacloban to Manila plus P2,000.00 as pocket money per trip, or, in lieu
thereof, the sale of respondent's Quezon City house and lot by V & G or GSIS
representatives.
On May 19, 1987, respondent confided to the complainant that he would act
favorably on the 163 registrable documents of V & G if the latter would
execute clarificatory affidavits and send money for a round trip plane ticket
for him.
The plane fare amounting to P800 (without the pocket money of P2,000) was
sent to respondent through his niece.
Because of V & G's failure to give him pocket money in addition to plane fare,
respondent imposed additional registration requirements. Fed up with the
respondent's extortionate tactics, the complainant wrote him a letter on May
20, 1987 challenging him to act on all pending applications for registration of
V & G within twenty-four (24) hours.
On May 22, 1987, respondent formally denied registration of the transfer of
Page 88
163 certificates of title to the GSIS on the uniform ground that the deeds of
absolute sale with assignment were ambiguous as to parties and subject
LEGAL ETHICS
matter. On May 26, 1987, Attorney Collantes moved for a reconsideration of
said denial, stressing that:
... since the year 1973 continuously up to December 1986 for a period of
nearly fifteen (15) years or for a sum total of more than 2,000 same set of
documents which have been repeatedly and uniformly registered in the Office
of the Register of Deeds of Tacloban City under Attys. Modesto Garcia and
Pablo Amascual Jr., it is only during the incumbency of Atty. Vicente C.
Renomeron, that the very same documents of the same tenor have been
refused or denied registration ... (p. 15, Rollo.)
On May 27, 1987, respondent elevated the matter en consulta to the
Administrator, National Land Titles and Deeds Registration Administration
(NLTDRA) (now the Land Registration Authority [LRA]). In a Resolution dated
July 27,1987 (Consulta No. 1579), the NLTDRA ruled that the questioned
documents were registrable. Heedless of the NLTDRA's opinion, respondent
continued to sit on V & Gs 163 deeds of sale with assignment.
Exasperated by respondent's conduct, the complainant filed with the
NLTDRA on June 4, 1987 administrative charges (docketed as Adm. Case
No. 87-15), against respondent Register of Deeds.
Upon receipt of the charges, NLTDRA Administrator Teodoro G. Bonifacio
directed respondent to explain in writing why no administrative disciplinary
action should be taken against him. Respondent was further asked whether
he would submit his case on the basis of his answer, or be heard in a formal
investigation.
In his answer dated July 9, 1987, respondent denied the charges of extortion
and of directly receiving pecuniary or material benefit for himself in
connection with the official transactions awaiting his action.
Although an investigator was appointed by NLTDRA Administrator Bonifacio
to hear Attorney Collantes' charges against him, Attorney Renomeron waived
his right to a formal investigation. Both parties submitted the case for
resolution based on the pleadings.
The investigator, Attorney Leonardo Da Jose, recommended dropping the
charges of: (1) dishonesty; (2) causing undue injury to a party through
manifest partiality, evident bad faith or gross inexcusable negligence; and (3)
gross ignorance of the law and procedure. He opined that the charge of
neglecting or refusing, in spite repeated requests and without sufficient
justification, to act within a reasonable time on the registration of the
documents involved, in order to extort some pecuniary or material benefit
from the interested party, absorbed the charges of conduct unbecoming of a
public official, extortion, and directly receiving some pecuniary or material
benefit for himself in connection with pending official transactions before him.
Brushing aside the investigator's recommendation, NLTDRA Administrator
Teodoro G. Bonifacio on February 22, 1988, recommended to Secretary of
Justice Sedfrey A. Ordoñez that the respondent: (1) be found guilty of simple
neglect of duty: (2) be reprimanded to act with dispatch on documents
presented to him for registration; and (3) be warned that a repetition of similar
infraction will be dealt with more severely.
After due investigation of the charges, Secretary Ordoñez found respondent
guilty of grave misconduct.
Our study and consideration of the records of the case indicate that ample
evidence supports the Investigating Officer's findings that the respondent
committed grave misconduct.
The respondent unreasonably delayed action on the documents presented
to him for registration and, notwithstanding representations by the parties
interested for expeditious action on the said documents, he continued with
his inaction.
The records indicate that the respondent eventually formally denied the
registration of the documents involved; that he himself elevated the question
on the registrability of the said documents to Administrator Bonifacio after he
PINEDAPCGRNMAN
formally denied the registration thereof, that the Administrator then resolved
in favor of the registrability of the said documents in question; and that, such
resolution of the Administrator notwithstanding, the respondent still refused
the registration thereof but demanded from the parties interested the
submission of additional requirements not adverted to in his previous denial.
xxx xxx xxx
In relation to the alleged 'special arrangement,' although the respondent
claims that he neither touched nor received the money sent to him, on record
remains uncontroverted the circumstance that his niece, Ms. de la Cruz,
retrieved from him the amount of P800.00 earlier sent to him as plane fare,
not in the original denomination of P100.00 bills but in P50.00 bills. The
respondent had ample opportunity to clarify or to countervail this related
incident in his letter dated 5 September 1987 to Administrator Bonifacio but
he never did so.
... We believe that, in this case, the respondent's being new in office cannot
serve to mitigate his liability. His being so should have motivated him to be
more aware of applicable laws, rules and regulations and should have
prompted him to do his best in the discharge of his duties. (pp. 17-18, Rollo.)
Secretary Ordoñez recommended to President Corazon C. Aquino that
Renomeron be dismissed from the service, with forfeiture of leave credits and
retirement benefits, and with prejudice to re-employment in the government
service, effective immediately.
As recommended by the Secretary of Justice, the President of the
Philippines, by Adm. Order No. 165 dated May 3, 1990, dismissed the
respondent from the government service (pp. 1419, Rollo).
Less than two weeks after filing his complaint against Renomeron in the
NLTDRA, Attorney Collantes also filed in this Court on June 16, 1987, a
disbarment complaint against said respondent.
The issue in this disbarment proceeding is whether the respondent register
of deeds, as a lawyer, may also be disciplined by this Court for his
malfeasances as a public official. The answer is yes, for his misconduct as a
public official also constituted a violation of his oath as a lawyer.
The lawyer's oath (Rule 138, Section 17, Rules of Court; People vs. De Luna,
102 Phil. 968), imposes upon every lawyer the duty to delay no man for
money or malice. The lawyer's oath is a source of his obligations and its
violation is a ground for his suspension, disbarment or other disciplinary
action (Legal Ethics, Ruben E. Agpalo, 1983 Edition, pp. 66-67).
As the late Chief Justice Fred Ruiz Castro said:
A person takes an oath when he is admitted to the Bar which is designed to
impress upon him his responsibilities. He thereby becomes an "officer of the
court" on whose shoulders rests the grave responsibility of assisting the
courts in the proper, fair, speedy, and efficient administration of justice. As
an officer of the court he is subject to a rigid discipline that demands that in
his every exertion the only criterion he that truth and justice triumph. This
discipline is what has given the law profession its nobility, its prestige, its
exalted place. From a lawyer, to paraphrase Justice Felix Frankfurter, are
expected those qualities of truth-speaking, a high sense of honor, full candor,
intellectual honesty, and the strictest observance of fiduciary responsibility�
all of which, throughout the centuries, have been compendiously described
as moral character.
Membership in the Bar is in the category of a mandate to public service of
the highest order. A lawyer is an oath-bound servant of society whose
conduct is clearly circumscribed by inflexible norms of law and ethics, and
whose primary duty is the advancement of the quest of truth and justice, for
which he has sworn to be a fearless crusader. (Apostacy in the Legal
Profession, 64 SCRA 784, 789- 790; emphasis supplied.)
Page 89
The Code of Professional Responsibility applies to lawyers in government
service in the discharge of their official tasks (Canon 6). Just as the Code of
LEGAL ETHICS
Conduct and Ethical Standards for Public Officials requires public officials
and employees to process documents and papers expeditiously (Sec. 5,
subpars. [c] and [d] and prohibits them from directly or indirectly having a
financial or material interest in any transaction requiring the approval of their
office, and likewise bars them from soliciting gifts or anything of monetary
value in the course of any transaction which may be affected by the functions
of their office (See. 7, subpars. [a] and [d]), the Code of Professional
Responsibility forbids a lawyer to engage in unlawful, dishonest, immoral or
deceitful conduct (Rule 1.01, Code of Professional Responsibility), or delay
any man's cause "for any corrupt motive or interest" (Rule 103).
A lawyer shall not engage in conduct that adversely reflects on his fitness to
practice law, nor shall he, whether in public or private life, behave in a
scandalous manner to the discredit of the legal profession. (Rule 7.03, Code
of Professional Responsibility.)
This Court has ordered that only those who are "competent, honorable, and
reliable" may practice the profession of law (Noriega vs. Sison, 125 SCRA
293) for every lawyer must pursue "only the highest standards in the practice
of his calling" (Court Administrator vs. Hermoso, 150 SCRA 269, 278).
The acts of dishonesty and oppression which Attorney Renomeron
committed as a public official have demonstrated his unfitness to practice the
high and noble calling of the law (Bautista vs. Judge Guevarra, 142 SCRA
632; Court Administrator vs. Rodolfo G. Hermoso, 150 SCRA 269). He
should therefore be disbarred.
WHEREFORE, it is hereby ordered that Attorney Vicente C. Renomeron be
disbarred from the practice of law in the Philippines, and that his name be
stricken off the Roll of Attorneys
SO ORDERED.
DIANA RAMOS, A. C. No. 6788
Complainant, (Formerly, CBD 382)
-versus-
ATTY. JOSE R. IMBANG,
Respondent. Promulgated:
August 23, 2007
x ---------------------------------------------------------------------------------------------- x
RESOLUTION
PER CURIAM:
This is a complaint for disbarment or suspension[1] against Atty. Jose R.
Imbang for multiple violations of the Code of Professional Responsibility.
THE COMPLAINT
In 1992, the complainant Diana Ramos sought the assistance of respondent
Atty. Jose R. Imbang in filing civil and criminal actions against the spouses
Roque and Elenita Jovellanos.[2] She gave respondent P8,500 as attorney's
fees but the latter issued a receipt for P5,000 only.[3]
The complainant tried to attend the scheduled hearings of her cases against
the Jovellanoses. Oddly, respondent never allowed her to enter the
courtroom and always told her to wait outside. He would then come out after
several hours to inform her that the hearing had been cancelled and
rescheduled.[4] This happened six times and for each appearance in court,
respondent charged her P350.
PINEDAPCGRNMAN
After six consecutive postponements, the complainant became suspicious.
She personally inquired about the status of her cases in the trial courts of
Bian and San Pedro, Laguna. She was shocked to learn that respondent
never filed any case against the Jovellanoses and that he was in fact
employed in the Public Attorney's Office (PAO).[5]
RESPONDENT'S DEFENSE
According to respondent, the complainant knew that he was in the
government service from the very start. In fact, he first met the complainant
when he was still a district attorney in the Citizen's Legal Assistance Office
(predecessor of PAO) of Bian, Laguna and was assigned as counsel for the
complainant's daughter.[6]
In 1992, the complainant requested him to help her file an action for damages
against the Jovellanoses.[7] Because he was with the PAO and aware that the
complainant was not an indigent, he declined.[8] Nevertheless, he advised the
complainant to consult Atty. Tim Ungson, a relative who was a private
practitioner.[9] Atty. Ungson, however, did not accept the complainant's case
as she was unable to come up with the acceptance fee agreed upon.[10]
Notwithstanding Atty. Ungson's refusal, the complainant allegedly remained
adamant. She insisted on suing the Jovellanoses. Afraid that she might
spend the cash on hand, the complainant asked respondent to keep the
P5,000 while she raised the balance of Atty. Ungson's acceptance fee.[11]
A year later, the complainant requested respondent to issue an antedated
receipt because one of her daughters asked her to account for the P5,000
she had previously given the respondent for safekeeping.[12] Because the
complainant was a friend, he agreed and issued a receipt dated July 15,
1992.[13]
On April 15, 1994, respondent resigned from the PAO.[14] A few months later
or in September 1994, the complainant again asked respondent to assist her
in suing the Jovellanoses. Inasmuch as he was now a private practitioner,
respondent agreed to prepare the complaint. However, he was unable to
finalize it as he lost contact with the complainant.[15]
RECOMMENDATION OF THE IBP
Acting on the complaint, the Commission on Bar Discipline (CBD) of the
Integrated Bar of the Philippines (IBP) where the complaint was filed,
received evidence from the parties. On November 22, 2004, the CBD
submitted its report and recommendation to the IBP Board of Governors.[16]
The CBD noted that the receipt[17] was issued on July 15, 1992 when
respondent was still with the PAO.[18] It also noted that respondent described
the complainant as a shrewd businesswoman and that respondent was a
seasoned trial lawyer. For these reasons, the complainant would not have
accepted a spurious receipt nor would respondent have issued one. The
CBD rejected respondent's claim that he issued the receipt to accommodate
a friend's request.[19] It found respondent guilty of violating the prohibitions on
government lawyers from accepting private cases and receiving lawyer's fees
other than their salaries.[20] The CBD concluded that respondent violated the
following provisions of the Code of Professional Responsibility:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
Rule 16.01. A lawyer shall account for all money or property collected or
received for or from a client.
Rule 18.01. A lawyer should not undertake a legal service which he knows
or should know that he is not qualified to render. However, he may render
such service if, with the consent of his client, he can obtain as collaborating
counsel a lawyer who is competent on the matter.
Page 90
LEGAL ETHICS
Thus, it recommended respondent's suspension from the practice of law for
three years and ordered him to immediately return to the complainant the
amount of P5,000 which was substantiated by the receipt.[21]
The IBP Board of Governors adopted and approved the findings of the CBD
that respondent violated Rules 1.01, 16.01 and 18.01 of the Code of
Professional Responsibility. It, however, modified the CBD's
recommendation with regard to the restitution of P5,000 by imposing interest
at the legal rate, reckoned from 1995 or, in case of respondent's failure to
return the total amount, an additional suspension of six months.[22]
THE COURT'S RULING
We adopt the findings of the IBP with modifications.
Lawyers are expected to conduct themselves with honesty and integrity.[23]
More specifically, lawyers in government service are expected to be more
conscientious of their actuations as they are subject to public scrutiny. They
are not only members of the bar but also public servants who owe utmost
fidelity to public service.[24]
Government employees are expected to devote themselves completely to
public service. For this reason, the private practice of profession is prohibited.
Section 7(b)(2) of the Code of Ethical Standards for Public Officials and
Employees provides:
Section 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 constitute prohibited acts and
transactions of any public official and employee and are hereby declared
unlawful:
xxx xxx xxx
(b) Outside employment and other activities related thereto, public officials
and employees during their incumbency shall not:
xxx xxx xxx
(1) Engage in the private practice of profession unless authorized by the
Constitution or law, provided that such practice will not conflict with their
official function.[25]
Thus, lawyers in government service cannot handle private cases for they
are expected to devote themselves full-time to the work of their respective
offices.
In this instance, respondent received P5,000 from the complainant and
issued a receipt on July 15, 1992 while he was still connected with the PAO.
Acceptance of money from a client establishes an attorney-client
relationship.[26] Respondent's admission that he accepted money from the
complainant and the receipt confirmed the presence of an attorney-client
relationship between him and the complainant. Moreover, the receipt showed
that he accepted the complainant's case while he was still a government
lawyer. Respondent clearly violated the prohibition on private practice of
profession.
Aggravating respondent's wrongdoing was his receipt of attorney's fees. The
PAO was created for the purpose of providing free legal assistance to
indigent litigants.[27] Section 14(3), Chapter 5, Title III, Book V of the Revised
Administrative Code provides:
Sec. 14. xxx
The PAO shall be the principal law office of the Government in extending free
legal assistance to indigent persons in criminal, civil, labor, administrative
and other quasi-judicial cases.[28]
PINEDAPCGRNMAN
As a PAO lawyer, respondent should not have accepted attorney's fees from
the complainant as this was inconsistent with the office's mission.[29]
Respondent violated the prohibition against accepting legal fees other than
his salary.
Canon 1 of the Code of Professional Responsibility provides:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR THE LAW AND
LEGAL PROCESSES.
Every lawyer is obligated to uphold the law.[30] This undertaking includes the
observance of the above-mentioned prohibitions blatantly violated by
respondent when he accepted the complainant's cases and received
attorney's fees in consideration of his legal services. Consequently,
respondent's acceptance of the cases was also a breach of Rule 18.01 of the
Code of Professional Responsibility because the prohibition on the private
practice of profession disqualified him from acting as the complainant's
counsel.
Aside from disregarding the prohibitions against handling private cases and
accepting attorney's fees, respondent also surreptitiously deceived the
complainant. Not only did he fail to file a complaint against the Jovellanoses
(which in the first place he should not have done), respondent also led the
complainant to believe that he really filed an action against the Jovellanoses.
He even made it appear that the cases were being tried and asked the
complainant to pay his appearance fees for hearings that never took place.
These acts constituted dishonesty, a violation of the lawyer's oath not to do
any falsehood.[31]
Respondent's conduct in office fell short of the integrity and good moral
character required of all lawyers, specially one occupying a public office.
Lawyers in public office are expected not only to refrain from any act or
omission which tend to lessen the trust and confidence of the citizenry in
government but also uphold the dignity of the legal profession at all times and
observe a high standard of honesty and fair dealing. A government lawyer is
a keeper of public faith and is burdened with a high degree of social
responsibility, higher than his brethren in private practice.[32]
There is, however, insufficient basis to find respondent guilty of violating Rule
16.01 of the Code of Professional Responsibility. Respondent did not hold
the money for the benefit of the complainant but accepted it as his attorney's
fees. He neither held the amount in trust for the complainant (such as an
amount delivered by the sheriff in satisfaction of a judgment obligation in
favor of the client)[33] nor was it given to him for a specific purpose (such as
amounts given for filing fees and bail bond).[34] Nevertheless, respondent
should return the P5,000 as he, a government lawyer, was not entitled to
attorney's fees and not allowed to accept them.[35]
WHEREFORE, Atty. Jose R. Imbang is found guilty of violating the lawyers
oath, Canon 1, Rule 1.01 and Canon 18, Rule 18.01 of the Code of
Professional Responsibility. Accordingly, he is hereby DISBARRED from the
practice of law and his name is ORDERED STRICKEN from the Roll of
Attorneys. He is also ordered to return to complainant the amount of P5,000
with interest at the legal rate, reckoned from 1995, within 10 days from receipt
of this resolution.
Let a copy of this resolution be attached to the personal records of
respondent in the Office of the Bar Confidant 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.
Rule 6.01 – The primary duty of a lawyer engaged in public prosecution
is not to convict but to see that justice is done. The suppression of facts
or the concealment of witnesses capable of establishing the innocence
of the accused is highly reprehensible and is cause of disciplinary
action.
Page 91
LEGAL ETHICS
G.R. No. 109870 December 1, 1995
EDILBERTO M. CUENCA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
RESOLUTION
FRANCISCO, J.:
After his petition for review of the Court of Appeals' judgment 1 affirming his
conviction for violation of the "Trust Receipts Law" (Presidential Decree No.
115) was denied by this Court in a Resolution dated February 9, 1994,
2 petitioner filed on July 6, 1994 a pleading entitled "SUBSTITUTION OF
COUNSEL WITH MOTION FOR LEAVE TO FILE MOTION FOR NEW
TRIAL" 3 setting forth, in relation to the motion for new trial:
6. The Motion for New Trial shall be grounded on newly discovered evidence
and excusible (sic) negligence, and shall be supported by affidavits of:
(i) an officer of private complainant corporation who will exculpate petitioner;
(ii) an admission against interest by a former officer of the owner of Ultra
Corporation (the Corporation that employed petitioner), which actually
exercised control over the affairs of Ultra; and
(iii) the petitioner wherein he will assert innocence for the first time and
explain why he was unable to do so earlier.
The Court in its July 27, 1994 Resolution, 4 among other things, granted the
substitution but denied the motion for leave to file motion for new trial, "the
petition having been already denied on February 9, 1994."
Notwithstanding, petitioner on August 8, 1994 filed a "MOTION TO ADMIT
ATTACHED MOTION FOR NEW TRIAL", 5 and a "MANIFESTATION AND
SECOND MOTION TO ADMIT" on August 17, 1994. 6 The Court thereafter
required the Solicitor General to comment on said motion and manifestation
within ten (10) days from notice, in a Resolution dated September 7, 1994. 7
In the Comment filed after three (3) extensions of time were given by the
Court, 8 the Solicitor General himself recommends that petitioner be entitled
to a new trial, proceeding from the same impression that a certain Rodolfo
Cuenca's (petitioner's brother) sworn statement is an admission against
interest which may ultimately exonerate petitioner from criminal liability. The
full text of Mr. Rodolfo Cuenca's "Affidavit" 9 reads:
RODOLFO M. CUENCA, Filipino, of legal age, with the residence at
Urdaneta Village, Makati, Metro Manila, after being duly sworn and (sic) state
that:
1. During the years 1967 until February 1983, I was the President and Chief
Executive Officer of Construction Development Corporation of the Philippines
(CDCP).
2. During that period, I controlled an effective majority of the voting shares of
stock of CDCP.
3. Sometime in 1974, upon my initiative, CDCP together with its affiliated
companies, organized a number of wholly-owned service corporations. One
of these was Ultra International Trading Corporation, whose purpose was to
serve and supply the needs of CDCP and its other subsidiaries with lower
value goods and using Ultra's financial resources.
4. The directors in Ultra Corporation were nominees of CDCP, and received
the instructions directly from me and or Mr. Pedro Valdez, Chairman of
CDCP.
5. From Ultra's inception, my brother, Mr. Edilberto M. Cuenca was appointed
President and Chief Executive Officer. On March, 1979, I instructed Ultra
through my brother, Mr. Edilberto Cuenca to purchase for CDCP various steel
materials. These materials were received by CDCP and are covered by the
trust receipts which are the subject of this case.
6. In 1980, CDCP suffered cashflow problems, and consciously omitted
payment to Ultra for the delivery of the said steel materials. As a nominee of
CDCP, Mr. Edilberto M. Cuenca merely acted as agent for CDCP. As such,
CDCP provided him with the guarantees needed to persuade China Bank to
issue the said trust receipts. On the basis of such guarantees, along with
informal assurances issued by CDCP to China Bank that the transactions of
Ultra were undertaken for and on behalf of CDCP and CDCP Mining
Corporation, Ultra was able to obtain credit facilities, among which included
the trust receipts subject of this case.
7. However, Mr. Edilberto M. Cuenca had no power to cause the payment of
said trust receipts because the common Treasurer and controller of both
CDCP and Ultra, Ms. Nora Vinluan, acted under my control and I did not allow
her to make the appropriate payments.
PINEDAPCGRNMAN
8. To my knowledge, CDCP has not paid Ultra the amounts corresponding to
the materials covered by the trust receipts subject of this case.
9. By the time final demand to pay on the trust receipts were (sic) served in
1984, Mr. Edilberto Cuenca was no longer president of Ultra Corporation and
could not have possibly cause (sic) Ultra Corporation to pay.
10. I have executed this affidavit in order to accept personal responsibility for
the trust receipts subject of this case and to exculpate Mr. Edilberto Cuenca
of the criminal charges which he has asked this Honorable Court to review.
11. Accordingly, I also undertake to pay the civil obligations arising from the
subject trust receipts.
(Sgd.)
RODOLFO M. CUENCA
Affiant
And the Solicitor General had this to say:
Ordinarily, it is too late at this stage to ask for a new trial.
However, the sworn statement of Rodolfo Cuenca is a declaration against
his own interests under Section 38, Rule 130, Revised Rules of Court and it
casts doubt on the culpability of his brother Edilberto Cuenca, the petitioner.
Hence, the alleged confession of guilt should be given a hard look by the
Court.
The People is inclined to allow petitioner to establish the genuineness and
due execution of his brother's affidavit in the interest of justice and fair play.
Under Rule 6.01 of Canon 6 of the Code of Professional Responsibility,
prosecutors who represent the People of the Philippines in a criminal case
are not duty bound to seek conviction of the accused but to see that justice
is done. Said Rule 6.01 of Canon 6 states:
Canon 6 — These canons shall apply to lawyers in government service in
the discharge of their official tasks.
Rule 6.01 — The primary duty of a lawyer engaged in public prosecution is
not to convict but to see that justice is done. The suppression of facts or the
concealment of witnesses capable of establishing the innocence of the
accused is highly reprehensible and is cause for disciplinary action.
(Emphasis supplied.)
The above duty is well founded on the instruction of the U.S. Supreme Court
in Berger v. United States, 295 U.S. 78 (1935) that prosecutors represent a
sovereign "whose obligation to govern impartially is compelling as its
obligation to govern at all; and whose interest, therefore in a criminal
prosecution is not that it shall win a case, but that justice shall be done (Time
to Rein in the Prosecution, by Atty. Bruce Fein, published on p. 11, The
Lawyers Review, July 31, 1994). (Emphasis supplied.) 10
Although in "Goduco v. CA" (14 SCRA 282 [1965]) decided some twenty (20)
years ago, this Court ruled that it is not authorized to entertain a motion for
reconsideration and/or new trial predicated on allegedly newly discovered
evidence the rationale of which being:
The judgment of the Court of Appeals is conclusive as to the facts, and
cannot be reviewed by the Supreme Court. Accordingly, in an appeal by
certiorari to the Supreme Court, the latter has no jurisdiction to entertain a
motion for new trial on the ground of newly discovered evidence, for only
questions of fact are involved therein.
the rule now appears to have been relaxed, if not abandoned, in subsequent
cases like "Helmuth, Jr. v. People" 11 and "People v. Amparado". 12
In both cases, the Court, opting to brush aside technicalities and despite the
opposition of the Solicitor General, granted new trial to the convicted accused
concerned on the basis of proposed testimonies or affidavits of persons
which the Court considered as newly discovered and probably sufficient
evidence to reverse the judgment of conviction. Being similarly
circumstanced, there is no nagging reason why herein petitioner should be
denied the same benefit. It becomes all the more plausible under the
circumstances considering that the "People" does not raise any objection to
a new trial, for which reason the Solicitor General ought to be specially
commended for displaying once again such statesmanlike gesture of
impartiality. The Solicitor General's finest hour, indeed.
WHEREFORE, petitioner's Motion For New Trial is hereby GRANTED. Let
the case be RE-OPENED and REMANDED to the court of origin for reception
of petitioner's evidence.
SO ORDERED.
Rule 6.02 – A lawyer in the government service shall not use his public
Page 92
position to promote or advance his private interest, nor allow the latter
to interfere with his public duties.
LEGAL ETHICS
[A.C. No. 4018. March 8, 2005]
OMAR P. ALI, complainant, vs. ATTY. MOSIB A. BUBONG, respondent.
DECISION
PER CURIAM:
This is a verified petition for disbarment[1] filed against Atty. Mosib Ali Bubong
for having been found guilty of grave misconduct while holding the position
of Register of Deeds of Marawi City.
It appears that this disbarment proceeding is an off-shoot of the
administrative case earlier filed by complainant against respondent. In said
case, which was initially investigated by the Land Registration Authority
(LRA), complainant charged respondent with illegal exaction; indiscriminate
issuance of Transfer Certificate of Title (TCT) No. T-2821 in the names of
Lawan Bauduli Datu, Mona Abdullah,[2] Ambobae Bauduli Datu, Matabae
Bauduli Datu, Mooamadali Bauduli Datu, and Amenola Bauduli Datu; and
manipulating the criminal complaint filed against Hadji Serad Bauduli Datu
and others for violation of the Anti-Squatting Law. It appears from the records
that the Baudali Datus are relatives of respondent.[3]
The initial inquiry by the LRA was resolved in favor of respondent. The
investigating officer, Enrique Basa, absolved respondent of all the charges
brought against him, thus:
It is crystal clear from the foregoing that complainant not only failed to prove
his case but that he has no case at all against respondent Mosib Ali Bubong.
Wherefore, premises considered, it is respectfully recommended that the
complaint against respondent be dismissed for lack of merit and evidence.[4]
The case was then forwarded to the Department of Justice for review and in
a report dated 08 September 1992, then Secretary of Justice Franklin Drilon
exonerated respondent of the charges of illegal exaction and infidelity in the
custody of documents. He, however, found respondent guilty of grave
misconduct for his imprudent issuance of TCT No. T-2821 and manipulating
the criminal case for violation of the Anti-Squatting Law instituted against
Hadji Serad Bauduli Datu and the latters co-accused. As a result of this
finding, Secretary Drilon recommended respondents dismissal from service.
On 26 February 1993, former President Fidel V. Ramos issued
Administrative Order No. 41 adopting in toto the conclusion reached by
Secretary Drilon and ordering respondents dismissal from government
service. Respondent subsequently questioned said administrative order
before this Court through a petition for certiorari, mandamus, and
prohibition[5] claiming that the Office of the President did not have the
authority and jurisdiction to remove him from office. He also insisted that
respondents[6] in that petition violated the laws on security of tenure and that
respondent Reynaldo V. Maulit, then the administrator of the LRA committed
a breach of Civil Service Rules when he abdicated his authority to resolve
the administrative complaint against him (herein respondent).
In a Resolution dated 15 September 1994, we dismissed the petition for
failure on the part of petitioner to sufficiently show that public respondent
committed grave abuse of discretion in issuing the questioned order.[7]
Respondent thereafter filed a motion for reconsideration which was denied
with finality in our Resolution of 15 November 1994.
On the basis of the outcome of the administrative case, complainant is now
before us, seeking the disbarment of respondent. Complainant claims that it
has become obvious that respondent had proven himself unfit to be further
entrusted with the duties of an attorney[8] and that he poses a serious threat
to the integrity of the legal profession.[9]
In his Comment, respondent maintains that there was nothing irregular with
his issuance of TCT No. T-2821 in the name of the Bauduli Datus. According
to him, both law[10] and jurisprudence support his stance that it was his
ministerial duty, as the Register of Deeds of Marawi City, to act on
applications for land registration on the basis only of the documents
presented by the applicants. In the case of the Bauduli Datus, nothing in the
documents they presented to his office warranted suspicion, hence, he was
duty-bound to issue TCT No. T-2821 in their favor.
Respondent also insists that he had nothing to do with the dismissal of
criminal complaint for violation of the Anti-Squatting Law allegedly committed
by Hadji Serad Abdullah and the latters co-defendants. Respondent explains
that his participation in said case was a result of the two subpoenas duces
tecum issued by the investigating prosecutor who required him to produce
the various land titles involved in said dispute. He further claims that the
dismissal of said criminal case by the Secretary of Justice was based solely
PINEDAPCGRNMAN
on the evidence presented by the parties. Complainants allegation, therefore,
that he influenced the outcome of the case is totally unjustified.
Through a resolution dated 26 June 1995,[11] this Court referred this matter to
the Integrated Bar of the Philippines (IBP) for investigation, report, and
recommendation. Acting on this resolution, the IBP commenced the
investigation of this disbarment suit. On 23 February 1996, Commissioner
Victor C. Fernandez issued the following order relative to the transfer of
venue of this case. The pertinent portion of this order provides:
ORDER
When this case was called for hearing, both complainant and respondent
appeared.
The undersigned Commissioner asked them if they are willing to have the
reception of evidence vis--vis this case be done in Marawi City, Lanao del
Sur before the president of the local IBP Chapter. Both parties agreed.
Accordingly, transmit the records of this case to the Director for Bar Discipline
for appropriate action.[12]
On 30 March 1996, the IBP Board of Governors passed a resolution
approving Commissioner Fernandezs recommendation for the transfer of
venue of this administrative case and directed the Western Mindanao Region
governor to designate the local IBP chapter concerned to conduct the
investigation, report, and recommendation.[13] The IBP Resolution states:
Resolution No. XII-96-153
Adm. Case No. 4018
Omar P. Ali vs. Atty. Mosib A. Bubong
RESOLVED TO APPROVE the recommendation of Commissioner Victor C.
Fernandez for the Transfer of Venue of the above-entitled case and direct
the Western Mindanao Region Governor George C. Jabido to designate the
local IBP Chapter concerned to conduct the investigation, report and
recommendation.
Pursuant to this resolution, Atty. Benjamin B. Bernardino, Director for Bar
Discipline, wrote a letter dated 23 October 1996 addressed to Governor
George C. Jabido, President of IBP Cotabato Chapter requesting the latter
to receive the evidence in this case and to submit his recommendation and
recommendation as directed by the IBP Board of Governors.[14]
In an undated Report and Recommendation, the IBP Cotabato Chapter[15]
informed the IBP Commission on Bar Discipline (CBD) that the investigating
panel[16] had sent notices to both complainant and respondent for a series of
hearings but respondent consistently ignored said notices. The IBP Cotabato
Chapter concluded its report by recommending that respondent be
suspended from the practice of law for five years.
On 01 July 1998, respondent filed a motion dated 30 June 1998 praying for
the transmittal of the records of this case to the Marawi City-Lanao del Sur
Chapter of the IBP pursuant to Resolution No. XII-96-153 as well as
Commissioner Fernandezs Order dated 23 February 1996.
Commissioner Fernandez thereafter ordered the investigating panel of IBP
Cotabato Chapter to comment on respondents motion.[17] Complying with this
directive, the panel expressed no opposition to respondents motion for the
transmittal of the records of this case to IBP Marawi City.[18] On 25 September
1998, Commissioner Fernandez ordered the referral of this case to IBP
Marawi City for the reception of respondents evidence.[19] This order of
referral, however, was set aside by the IBP Board of Governors in its
Resolution No. XIII-98-268 issued on 4 December 1998. Said resolution
provides:
RESOLVED to DENY the ORDER of Commissioner Victor C. Fernandez for
the transmittal of the case records of the above-entitled case to Marawi City,
rather he is directed to re-evaluate the recommendation submitted by
Cotabato Chapter and report the same to the Board of Governors.[20]
Prior to the issuance of Resolution No. XIII-98-268, respondent filed on 08
October 1998 a motion praying that the recommendation of the IBP Cotabato
Chapter be stricken from the records.[21] Respondent insists that the
investigating panel constituted by said IBP chapter did not have the authority
to conduct the investigation of this case since IBP Resolution XII-96-153 and
Commissioner Fernandezs Order of 23 February 1996 clearly vested IBP
Marawi City with the power to investigate this case. Moreover, he claims that
he was never notified of any hearing by the investigating panel of IBP
Cotabato Chapter thereby depriving him of his right to due process.
Complainant opposed[22] this motion arguing that respondent is guilty of
laches. According to complainant, the report and recommendation submitted
Page 93
by IBP Cotabato Chapter expressly states that respondent was duly notified
of the hearings conducted by the investigating panel yet despite these,
LEGAL ETHICS
respondent did nothing to defend himself. He also claims that respondent did
not even bother to submit his position paper when he was directed to do so.
Further, as respondent is a member of IBP Marawi City Chapter, complainant
maintains that the presence of bias in favor of respondent is possible. Finally,
complainant contends that to refer the matter to IBP Marawi City would only
entail a duplication of the process which had already been completed by IBP
Cotabato Chapter.
In an Order dated 15 October 1999,[23] Commissioner Fernandez directed
IBP Cotabato Chapter to submit proofs that notices for the hearings
conducted by the investigating panel as well as for the submission of the
position paper were duly received by respondent. On 21 February 2000, Atty.
Jabido, a member of the IBP Cotabato Chapter investigating panel, furnished
Commissioner Fernandez with a copy of the panels order dated 4 August
1997.[24] Attached to said order was Registry Receipt No. 3663 issued by the
local post office. On the lower portion of the registry receipt was a handwritten
notation reading Atty. Mosib A. Bubong.
On 20 April 2001, Commissioner Fernandez ordered Atty. Pedro S. Castillo,
Chairman of the Commission on Bar Discipline for Mindanao, to reevaluate
the report and recommendation submitted by IBP Cotabato Chapter. This
directive had the approval of the IBP Board of Governors through its
Resolution No. XIV-2001-271 issued on 30 June 2001, to wit:
RESOLVED to APPROVE the recommendation of Director Victor C.
Fernandez for the Transfer of Venue of the above-entitled case and direct
the CBD Mindanao to conduct an investigation, re-evaluation, report and
recommendation within sixty (60) days from receipt of notice.[25]
Meanwhile, Bainar A. Ali, informed the CBD Mindanao of the death of her
father, Omar P. Ali, complainant in this case. According to her, her father
passed away on 12 June 2002 and that in interest of peace and Islamic
brotherhood, she was requesting the withdrawal of this case.[26]
Subsequently, respondent filed another motion, this time, asking the IBP
CBD to direct the chairman of the Commission on Bar Discipline for
Mindanao to designate and authorize the IBP Marawi City-Lanao del Sur
Chapter to conduct an investigation of this case.[27] This motion was
effectively denied by Atty. Pedro S. Castillo in an Order dated 19 July
2002.[28]According to Atty. Castillo
After going over the voluminous records of the case, with special attention
made on the report of the IBP Cotabato City Chapter, the Complaint and the
Counter-Affidavit of respondent, the undersigned sees no need for any
further investigation, to be able to make a re-evaluation and recommendation
on the Report of the IBP Chapter of Cotabato City.
WHEREFORE, the Motion to authorize the IBP-Chpater of Marawi City,
Zamboanga del Norte is hereby denied. The undersigned will submit his
Report to the Commission on Bar Discipline, IBP National Office within ten
(10) days from date hereof.
In his Report and Recommendation, Atty. Castillo adopted in toto the findings
and conclusion of IBP Cotabato Chapter ratiocinating as follows:
The Complaint for Disbarment is primarily based on the Decision by the
Office of the President in Administrative Case No. 41 dated February 26,
1993, wherein herein respondent was found guilty of Grave Misconduct in:
a) The imprudent issuance of T.C.T. No. T-2821; and,
b) Manipulating the criminal complaint for violation of the anti-squatting law.
And penalized with dismissal from the service, as Register of Deeds of
Marawi City. In the Comment filed by respondent in the instant Adminsitrative
Case, his defense is good faith in the issuance of T.C.T. No. T-2821 and a
denial of the charge of manipulating the criminal complaint for violation of the
anti-squatting law, which by the way, was filed against respondents relatives.
Going over the Decision of the Office of the President in Administrative Case
No. 41, the undersigned finds substantial evidence were taken into account
and fully explained, before the Decision therein was rendered. In other words,
the finding of Grave Misconduct on the part of respondent by the Office of
the President was fully supported by evidence and as such carries a very
strong weight in considering the professional misconduct of respondent in
the present case.
In the light of the foregoing, the undersigned sees no reason for amending or
disturbing the Report and Recommendation of the IBP Chapter of South
Cotabato.[29]
In a resolution passed on 19 October 2002, the IBP Board of Governors
adopted and approved, with modification, the afore-quoted Report and
Recommendation of Atty. Castillo. The modification pertained solely to the
period of suspension from the practice of law which should be imposed on
PINEDAPCGRNMAN
respondent whereas Atty. Castillo concurred in the earlier recommendation
of IBP Cotabato Chapter for a five-year suspension, the IBP Board of
Governors found a two-year suspension to be proper.
On 17 January 2003, respondent filed a Motion for Reconsideration with the
IBP which the latter denied as by that time, the matter had already been
endorsed to this Court.[30]
The issue thus posed for this Courts resolution is whether respondent may
be disbarred for grave misconduct committed while he was in the employ of
the government. We resolve this question in the affirmative.
The Code of Professional Responsibility does not cease to apply to a lawyer
simply because he has joined the government service. In fact, by the express
provision of Canon 6 thereof, the rules governing the conduct of lawyers shall
apply to lawyers in government service in the discharge of their official tasks.
Thus, where a lawyers misconduct as a government official is of such nature
as to affect his qualification as a lawyer or to show moral delinquency, then
he may be disciplined as a member of the bar on such grounds.[31] Although
the general rule is that a lawyer who holds a government office may not be
disciplined as a member of the bar for infractions he committed as a
government official, he may, however, be disciplined as a lawyer if his
misconduct constitutes a violation of his oath a member of the legal
profession.[32]
Indeed, in the case of Collantes v. Atty. Vicente C. Renomeron,[33] we ordered
the disbarment of respondent on the ground of his dismissal from
government service because of grave misconduct. Quoting the late Chief
Justice Fred Ruiz Castro, we declared
[A] person takes an oath when he is admitted to the bar which is designed to
impress upon him his responsibilities. He thereby becomes an officer of the
court on whose shoulders rests the grave responsibility of assisting the courts
in the proper, fair, speedy and efficient administration of justice. As an officer
of the court he is subject to a rigid discipline that demands that in his every
exertion the only criterion be that truth and justice triumph. This discipline is
what has given the law profession its nobility, its prestige, its exalted place.
From a lawyer, to paraphrase Justice Felix Frankfurter, are expected those
qualities of truth-speaking, a high sense of honor, full candor, intellectual
honesty, and the strictest observance of fiduciary responsibility all of which,
throughout the centuries, have been compendiously described as moral
character.[34]
Similarly, in Atty. Julito D. Vitriolo, et al. v. Atty. Felina Dasig,[35] this Court
found sufficient basis to disbar respondent therein for gross misconduct
perpetrated while she was the Officer-in-Charge of Legal Services of the
Commission on Higher Education. As we had explained in that case
[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.[36] (Emphasis supplied)
In the case at bar, respondents grave misconduct, as established by the
Office of the President and subsequently affirmed by this Court, deals with
his qualification as a lawyer. By taking advantage of his office as the Register
of Deeds of Marawi City and employing his knowledge of the rules governing
land registration for the benefit of his relatives, respondent had clearly
demonstrated his unfitness not only to perform the functions of a civil servant
but also to retain his membership in the bar. Rule 6.02 of the Code of
Professional Responsibility is explicit on this matter. It reads:
Rule 6.02 A lawyer in the government service shall not use his public position
to promote or advance his private interests, nor allow the latter to interfere
with his public duties.
Respondents conduct manifestly undermined the peoples confidence in the
public office he used to occupy and cast doubt on the integrity of the legal
profession. The ill-conceived use of his knowledge of the intricacies of the
law calls for nothing less than the withdrawal of his privilege to practice law.
As for the letter sent by Bainar Ali, the deceased complainants daughter,
requesting for the withdrawal of this case, we cannot possibly favorably act
on the same as proceedings of this nature cannot be interrupted or
terminated by reason of desistance, settlement, compromise, restitution,
withdrawal of the charges or failure of the complainant to prosecute the
Page 94
same.[37] As we have previously explained in the case of Irene Rayos-Ombac
v. Atty. Orlando A. Rayos:[38]
LEGAL ETHICS
A case of suspension or disbarment may proceed regardless of interest or
lack of interest of the complainant. What matters is whether, on the basis of
the facts borne out by the record, the charge of deceit and grossly immoral
conduct has been duly proven. This rule is premised on the nature of
disciplinary proceedings. A proceeding for suspension or disbarment is not
in any sense a civil action where the complainant is a plaintiff and the
respondent lawyer is a defendant. Disciplinary proceedings involve no private
interest and afford no redress for private grievance. They are undertaken and
prosecuted solely for the public welfare. They are undertaken for the purpose
of preserving courts of justice from the official ministration of persons unfit to
practice in them. The attorney is called to answer to the court for his conduct
as an officer of the court. The complainant or the person who called the
attention of the court to the attorneys alleged misconduct is in no sense a
party, and has generally no interest in the outcome except as all good citizens
may have in the proper administrative of justice.[39]
WHEREFORE, respondent Atty. Mosib A. Bubong is hereby DISBARRED
and his name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy
of this Decision be entered in the respondents 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.
SO ORDERED.
JOVITO S. OLAZO, A.M. No. 10-5-7-SC
Complainant,
Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
*VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
JUSTICE DANTE O. TINGA (Ret.), MENDOZA, and
Respondent. SERENO, JJ.
Promulgated:
December 7, 2010
x----------------------------------------------------------------------------------------- x
DECISION
BRION, J.:
Before us is the disbarment case against retired Supreme Court Associate
Justice Dante O. Tinga (respondent) filed by Mr. Jovito S. Olazo
(complainant). The respondent is charged of violating Rule 6.02,[1] Rule
6.03[2] and Rule 1.01[3] of the Code of Professional Responsibility for
representing conflicting interests.
Factual Background
In March 1990, the complainant filed a sales application covering a parcel of
land situated in Barangay Lower Bicutan in the Municipality of Taguig. The
land (subject land) was previously part of Fort Andres Bonifacio that was
segregated and declared open for disposition pursuant to Proclamation No.
2476,[4] issued on January 7, 1986, and Proclamation No. 172,[5] issued on
October 16, 1987.
To implement Proclamation No. 172, Memorandum No. 119 was issued by
then Executive Secretary Catalino Macaraig, creating a Committee on
Awards whose duty was to study, evaluate, and make a recommendation on
the applications to purchase the lands declared open for disposition. The
PINEDAPCGRNMAN
Committee on Awards was headed by the Director of Lands and the
respondent was one of the Committee members, in his official capacity as
the Congressman of Taguig and Pateros (from 1987 to 1998); the
respondents district includes the areas covered by the proclamations.
The First Charge: Violation of Rule 6.02
In the complaint,[6] the complainant claimed that the respondent abused his
position as Congressman and as a member of the Committee on Awards
when he unduly interfered with the complainants sales application because
of his personal interest over the subject land. The complainant alleged that
the respondent exerted undue pressure and influence over the complainants
father, Miguel P. Olazo, for the latter to contest the complainants sales
application and claim the subject land for himself. The complainant also
alleged that the respondent prevailed upon Miguel Olazo to accept, on
various dates, sums of money as payment of the latters alleged rights over
the subject land. The complainant further claimed that the respondent
brokered the transfer of rights of the subject land between Miguel Olazo and
Joseph Jeffrey Rodriguez, who is the nephew of the respondents deceased
wife.
As a result of the respondents abuse of his official functions, the
complainants sales application was denied. The conveyance of rights to
Joseph Jeffrey Rodriguez and his sales application were subsequently given
due course by the Department of Environment and Natural Resources
(DENR).
The Second Charge: Violation of Rule 6.03
The second charge involves another parcel of land within the proclaimed
areas belonging to Manuel Olazo, the complainants brother. The complainant
alleged that the respondent persuaded Miguel Olazo to direct Manuel to
convey his rights over the land to Joseph Jeffrey Rodriguez. As a result of
the respondents promptings, the rights to the land were transferred to Joseph
Jeffrey Rodriguez.
In addition, the complainant alleged that in May 1999, the respondent met
with Manuel for the purpose of nullifying the conveyance of rights over the
land to Joseph Jeffrey Rodriguez. The complainant claimed that the
respondent wanted the rights over the land transferred to one Rolando Olazo,
the Barangay Chairman of Hagonoy, Taguig.The respondent in this regard
executed an Assurance where he stated that he was the lawyer of Ramon
Lee and Joseph Jeffrey Rodriguez.
The Third Charge: Violation of Rule 1.01
The complainant alleged that the respondent engaged in unlawful conduct
considering his knowledge that Joseph Jeffrey Rodriguez was not a qualified
beneficiary under Memorandum No. 119. The complainant averred that
Joseph Jeffrey Rodriguez is not a bona fide resident of the proclaimed areas
and does not qualify for an award. Thus, the approval of his sales application
by the Committee on Awards amounted to a violation of the objectives of
Proclamation No. 172 and Memorandum No. 119.
The complainant also alleged that the respondent violated Section 7(b)(2) of
the Code of Conduct and Ethical Standards for Public Officials and
Employees or Republic Act (R.A.) No. 6713 since he engaged in the practice
of law, within the one-year prohibition period, when he appeared as a lawyer
for Ramon Lee and Joseph Jeffrey Rodriguez before the Committee on
Awards.
In his Comment,[7] the respondent claimed that the present complaint is the
third malicious charge filed against him by the complainant. The first one was
submitted before the Judicial and Bar Council when he was nominated as an
Associate Justice of the Supreme Court; the second complaint is now
pending with the Office of the Ombudsman, for alleged violation of Section
3(e) and (i) of R.A. No. 3019, as amended.
Page 95
With his own supporting documents, the respondent presented a different
version of the antecedent events.
LEGAL ETHICS
The respondent asserted that Miguel Olazo owned the rights over the subject
land and he later conveyed these rights to Joseph Jeffrey Rodriguez. Miguel
Olazos rights over the subject land and the transfer of his rights to Joseph
Jeffrey Rodriguez were duly recognized by the Secretary of the DENR before
whom the conflict of rights over the subject land (between Miguel Olazo and
Joseph Jeffrey Rodriguez, on one hand, and the complainant on the other
hand) was brought. In its decision, the DENR found Joseph Jeffrey
Rodriguez a qualified applicant, and his application over the subject land was
given due course. The respondent emphasized that the DENR decision is
now final and executory. It was affirmed by the Office of the President, by the
Court of Appeals and by the Supreme Court.
The respondent also advanced the following defenses:
(1) He denied the complainants allegation that Miguel Olazo told him
(complainant) that the respondent had been orchestrating to get the subject
land. The respondent argued that this allegation was without corroboration
and was debunked by the affidavits of Miguel Olazo and Francisca Olazo,
the complainants sister.
(2) He denied the complainants allegation that he offered the complainant
P50,000.00 for the subject land and that he (the respondent) had exerted
undue pressure and influence on Miguel Olazo to claim the rights over the
subject land. The respondent also denied that he had an inordinate interest
in the subject land.
(3) He claimed that there was nothing wrong in signing as a witness in Miguel
Olazos affidavit where the latter asserted his rights over the subject land. The
affidavit merely attested to the truth.
(4) He asserted that he and Miguel Olazo were cousins and that the latter
decided to sell his rights over the subject land for the medical treatment of
his heart condition and the illness of his daughter, Francisca Olazo. The
respondent insisted that the money he extended to them was a form of loan.
(5) The respondents participation in the transaction between Miguel Olazo
and Joseph Jeffrey Rodriguez involved the payment of the loan that the
respondent extended to Miguel Olazo.
(6) Manuels belated and secondhand allegation in his Sinumpaang
Salaysay, dated January 20, 2000, regarding what his father told him, cannot
prevail over his earlierSinumpaang Salaysay with Francisca Olazo, dated
August 2, 1997. In the said Sinumpaang Salaysay, Manuel categorically
asserted that his father Miguel Olazo, not the complainant, was the farmer-
beneficiary. Manuel also expressed his agreement to the transfer of rights
(Pagpapatibay Sa Paglilipat Ng Karapatan) in favor of Joseph Jeffrey
Rodriguez, and the withdrawal of his fathers application to give way to Joseph
Jeffrey Rodriguezs application.
(7) The complainants allegation that the respondent had pressured and
influenced Miguel Olazo to sell the subject land was not sufficient as it was
lacking in specificity and corroboration. The DENR decision was clear that
the complainant had no rights over the subject land.
The respondent additionally denied violating Rule 1.01 of the Code of
Professional Responsibility. He alleged that during his third term as
Congressman from 1995 to 1997, the conflicting applications of the
complainant, Miguel Olazo and Joseph Jeffrey Rodriguez were not included
in the agenda for deliberation of the Committee on Awards.Rather, their
conflicting claims and their respective supporting documents were before the
Office of the Regional Director, NCR of the DENR. This office ruled over the
conflicting claims only on August 2, 2000. This ruling became the basis of the
decision of the Secretary of the DENR.
Similarly, the respondent cannot be held liable under Rule 6.02 of the Code
of Professional Responsibility since the provision applies to lawyers in the
government service who are allowed by law to engage in private law practice
and to those who, though prohibited from engaging in the practice of law,
have friends, former associates and relatives who are in the active practice
PINEDAPCGRNMAN
of law.[8] In this regard, the respondent had already completed his third term
in Congress and his stint in the Committee on Awards when he represented
Joseph Jeffrey Rodriguez on May 24, 1999.
Lastly, the respondent claimed that he cannot be held liable under Rule 6.03
of the Code of Professional Responsibility since he did not intervene in the
disposition of the conflicting applications of the complainant and Joseph
Jeffrey Rodriguez because the applications were not submitted to the
Committee on Awards when he was still a member.
The Courts Ruling
Generally, 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.[9]He may be disciplined by this Court as a member of the
Bar only when his misconduct also constitutes a violation of his oath as a
lawyer.[10]
The issue in this case calls for a determination of whether the respondents
actions constitute a breach of the standard ethical conduct first, while the
respondent was still an elective public official and a member of the
Committee on Awards; and second, when he was no longer a public official,
but a private lawyer who represented a client before the office he was
previously connected with.
After a careful evaluation of the pleadings filed by both parties and their
respective pieces of evidence, we resolve to dismiss the administrative
complaint.
Accountability of a government lawyer in public office
Canon 6 of the Code of Professional Responsibility highlights the continuing
standard of ethical conduct to be observed by government lawyers in the
discharge of their official tasks. In addition to the standard of conduct laid
down under R.A. No. 6713 for government employees, a lawyer in the
government service is obliged to observe the standard of conduct under the
Code of Professional Responsibility.
Since public office is a public trust, the ethical conduct demanded upon
lawyers in the government service is more exacting than the standards for
those in private practice. Lawyers in the government service are subject to
constant public scrutiny under norms of public accountability. They also bear
the heavy burden of having to put aside their private interest in favor of the
interest of the public; their private activities should not interfere with the
discharge of their official functions.[11]
The first charge involves a violation of Rule 6.02 of the Code of Professional
Responsibility. It imposes the following restrictions in the conduct of a
government lawyer:
A lawyer in the government service shall not use his public position to
promote or advance his private interests, nor allow the latter to interfere with
his public duties.
The above provision prohibits a lawyer from using his or her public position
to: (1) promote private interests; (2) advance private interests; or (3) allow
private interest to interfere with his or her public duties. We previously held
that the restriction extends to all government lawyers who use their public
offices to promote their private interests.[12]
In Huyssen v. Gutierrez,[13] we defined promotion of private interest to include
soliciting gifts or anything of monetary value in any transaction requiring the
approval of his or her office, or may be affected by the functions of his or her
office. In Ali v. Bubong,[14] we recognized that private interest is not limited to
direct interest, but extends to advancing the interest of relatives. We also
ruled that private interest interferes with public duty when the respondent
uses the office and his or her knowledge of the intricacies of the law to benefit
Page 96
relatives.[15]
LEGAL ETHICS
In Vitriolo v. Dasig,[16] we found the act of the respondent (an official of the
Commission on Higher Education) of extorting money from persons with
applications or requests pending before her office to be a serious breach of
Rule 6.02 of the Code of Professional Responsibility.[17] We reached the
same conclusion in Huyssen, where we found the respondent (an employee
of the Bureau of Immigration and Deportation) liable under Rule 6.02 of the
Code of Professional Responsibility, based on the evidence showing that he
demanded money from the complainant who had a pending application for
visas before his office.[18]
Similarly, in Igoy v. Soriano[19] we found the respondent (a Court Attorney of
this Court) liable for violating Rule 6.02 of the Code of Professional
Responsibility, after considering the evidence showing that he demanded
and received money from the complainant who had a pending case before
this Court.
Applying these legal precepts to the facts of the case, we find the absence of
any concrete proof that the respondent abused his position as a
Congressman and as a member of the Committee on Awards in the manner
defined under Rule 6.02 of the Code of Professional Responsibility.
First, the records do not clearly show if the complainants sales application
was ever brought before the Committee on Awards. By the complaints own
account, the complainant filed a sales application in March 1990 before the
Land Management Bureau. By 1996, the complainants sales application was
pending before the Office of the Regional Director, NCR of the DENR due to
the conflicting claims of Miguel Olazo, and, subsequently, of Joseph Jeffrey
Rodriguez. The records show that it was only on August 2, 2000 that the
Office of the Regional Director, NCR of the DENR rendered its decision, or
after the term of the respondents elective public office and membership to
the Committee on Awards, which expired in 1997.
These circumstances do not show that the respondent did in any way
promote, advance or use his private interests in the discharge of his official
duties. To repeat, since the sales application was not brought before the
Committee on Awards when the respondent was still a member, no sufficient
basis exists to conclude that he used his position to obtain personal benefits.
We note in this regard that the denial of the complainants sales application
over the subject land was made by the DENR, not by the Committee on
Awards.
Second, the complainants allegation that the respondent orchestrated the
efforts to get the subject land does not specify how the orchestration was
undertaken. What appears clear in the records is the uncorroborated
Sinumpaang Salaysay of Miguel Olazo, dated May 25, 2003,[20] categorically
stating that the respondent had no interest in the subject land, and neither
was he a contracting party in the transfer of his rights over the subject land.
In the absence of any specific charge, Olazos disclaimer is the nearest
relevant statement on the respondents alleged participation, and we find it to
be in the respondents favor.
Third, the other documents executed by Miguel Olazo, that the complainant
presented to support his claim that the respondent exerted undue pressure
and influence over his father (namely: the letter, dated June 22, 1996, to the
DENR Regional Director-NCR;[21] the Sinumpaang Salaysay dated July 12,
1996;[22] and the Sinumpaang Salaysaydated July 17, 1996[23]), do not
contain any reference to the alleged pressure or force exerted by the
respondent over Miguel Olazo. The documents merely showed that the
respondent helped Miguel Olazo in having his farm lots (covered by the
proclaimed areas) surveyed. They also showed that the respondent merely
acted as a witness in theSinumpaang Salaysay dated July 17, 1996. To our
mind, there are neutral acts that may be rendered by one relative to another,
and do not show how the respondent could have influenced the decision of
Miguel Olazo to contest the complainants sales application. At the same time,
we cannot give any credit to the Sinumpaang Salaysay, dated January 20,
2000, of Manuel. They are not only hearsay but are contrary to what Miguel
Olazo states on the record. We note that Manuel had no personal knowledge,
other than what Miguel Olazo told him, of the force allegedly exerted by the
respondent against Miguel Olazo.
In turn, the respondent was able to provide a satisfactory explanation -
backed by corroborating evidence - of the nature of the transaction in which
PINEDAPCGRNMAN
he gave the various sums of money to Miguel Olazo and Francisca Olazo in
the year 1995. In her affidavits dated May 25, 2003[24] and July 21, 2010,[25]
Francisca Olazo corroborated the respondents claim that the sums of money
he extended to her and Miguel Olazo were loans used for their medical
treatment. Miguel Olazo, in his Sinumpaang Salaysay dated May 25, 2003,
asserted that some of the money borrowed from the respondent was used
for his medical treatment and hospitalization expenses.
The affidavit of Joseph Jeffrey Rodriguez further corroborated the
respondents claim that the latters involvement was limited to being paid the
loans he gave to Miguel Olazo and Francisca Olazo. According to Joseph
Jeffrey Rodriguez, he and Miguel Olazo agreed that a portion of the loan
would be directly paid by Joseph Jeffrey Rodriguez to the respondent and
the amount paid would be considered as part of the purchase price of the
subject land.[26]
It also bears stressing that a facial comparison of the documentary evidence,
specifically the dates when the sums of money were extended by the
respondent on February 21, 1995, September 2, 1995 and October 17, 1995,
and the date when the Deed of Conveyance[27] over the subject land was
executed or on October 25, 1995, showed that the sums of money were
extended prior to the transfer of rights over the subject land. These pieces of
evidence are consistent with the respondents allegation that Miguel Olazo
decided to sell his rights over the subject land to pay the loans he obtained
from the respondent and, also, to finance his continuing medical treatment.
Private practice of law after separation from public office
As proof that the respondent was engaged in an unauthorized practice of law
after his separation from the government service, the complainant presented
the Sinumpaang Salaysay, dated January 20, 2000, of Manuel and the
document entitled Assurance where the respondent legally represented
Ramon Lee and Joseph Jeffrey Rodriguez. Nevertheless, the foregoing
pieces of evidence fail to persuade us to conclude that there was a violation
of Rule 6.03 of the Code of Professional Responsibility.
In Cayetano v. Monsod,[28] we defined the practice of law as any activity, in
and out of court, that requires the application of law, legal procedure,
knowledge, training and experience. Moreover, we ruled that to engage in
the practice of law is to perform those acts which are characteristics of the
profession; to practice law is to give notice or render any kind of service,
which device or service requires the use in any degree of legal knowledge or
skill.
Under the circumstances, the foregoing definition should be correlated with
R.A. No. 6713 and Rule 6.03 of the Code of Professional Responsibility which
impose certain restrictions on government lawyers to engage in private
practice after their separation from the service.
Section 7(b)(2) of R.A. No. 6713 reads:
Section 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:
xxxx
(b) Outside employment and other activities related thereto. Public officials
and employees during their incumbency shall not:
xxxx
(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; xx x
These prohibitions shall continue to apply for a period of one (1) year after
Page 97
resignation, retirement, or separation from public office, except in the case of
subparagraph (b) (2) above, but the professional concerned cannot practice
LEGAL ETHICS
his profession in connection with any matter before the office he used to be
with, in which case the one-year prohibition shall likewise apply.
As a rule, government lawyers are not allowed to engage in the private
practice of their profession during their incumbency.[29] By way of exception,
a government lawyer can engage in the practice of his or her profession
under the following conditions: first, the private practice is authorized by the
Constitution or by the law; and second, the practice will not conflict or tend to
conflict with his or her official functions.[30] The last paragraph of Section 7
provides an exception to the exception. In case of lawyers separated from
the government service who are covered under subparagraph (b) (2) of
Section 7 of R.A. No. 6713, a one-year prohibition is imposed to practice law
in connection with any matter before the office he used to be with.
Rule 6.03 of the Code of Professional Responsibility echoes this restriction
and prohibits lawyers, after leaving the government service, to accept
engagement or employment in connection with any matter in which he had
intervened while in the said service. The keyword in Rule 6.03 of the Code of
Professional Responsibility is the term intervene which we previously
interpreted to include an act of a person who has the power to influence the
proceedings.[31] Otherwise stated, to fall within the ambit of Rule 6.03 of the
Code of Professional Responsibility, the respondent must have accepted
engagement or employment in a matter which, by virtue of his public office,
he had previously exercised power to influence the outcome of the
proceedings.
As the records show, no evidence exists showing that the respondent
previously interfered with the sales application covering Manuels land when
the former was still a member of the Committee on Awards. The complainant,
too, failed to sufficiently establish that the respondent was engaged in the
practice of law. At face value, the legal service rendered by the respondent
was limited only in the preparation of a single document. In Borja, Sr. v.
Sulyap, Inc.,[32] we specifically described private practice of law as one that
contemplates a succession of acts of the same nature habitually or
customarily holding ones self to the public as a lawyer.
In any event, even granting that respondents act fell within the definition of
practice of law, the available pieces of evidence are insufficient to show that
the legal representation was made before the Committee on Awards, or that
the Assurance was intended to be presented before it. These are matters for
the complainant to prove and we cannot consider any uncertainty in this
regard against the respondents favor.
Violation of Rule 1.01
Rule 1.01 prohibits a lawyer from engaging in unlawful, immoral or deceitful
conduct. From the above discussion, we already struck down the
complainants allegation that respondent engaged in an unauthorized
practice of law when he appeared as a lawyer for Ramon Lee and Joseph
Jeffrey Rodriguez before the Committee on Awards.
We find that a similar treatment should be given to the complainants claim
that the respondent violated paragraph 4(1)[33] of Memorandum No. 119 when
he encouraged the sales application of Joseph Jeffrey Rodriguez despite his
knowledge that his nephew was not a qualified applicant. The matter of
Joseph Jeffrey Rodriguezs qualifications to apply for a sales application over
lots covered by the proclaimed areas has been resolved in the affirmative by
the Secretary of the DENR in the decision dated April 3, 2004,[34]when the
DENR gave due course to his sales application over the subject land. We
are, at this point, bound by this finding.
As pointed out by the respondent, the DENR decision was affirmed by the
Office of the President, the Court of Appeals[35] and, finally, the Court, per our
MinuteResolution, dated October 11, 2006, in G.R. No. 173453. In our
Resolution, we dismissed the petition for review on certiorari filed by the
complainant after finding, among others, that no reversible error was
committed by the Court of Appeals in its decision.[36]
All told, considering the serious consequences of the penalty of disbarment
or suspension of a member of the Bar, the burden rests on the complainant
PINEDAPCGRNMAN
to present clear, convincing and satisfactory proof for the Court to exercise
its disciplinary powers.[37] The respondent generally is under no obligation to
prove his/her defense,[38] until the burden shifts to him/her because of what
the complainant has proven. Where no case has in the first place been
proven, nothing has to be rebutted in defense.[39]
With this in mind, we resolve to dismiss the administrative case against the
respondent for the complainants failure to prove by clear and convincing
evidence that the former committed unethical infractions warranting the
exercise of the Courts disciplinary power.
WHEREFORE, premises considered, we DISMISS the administrative case
for violation of Rule 6.02, Rule 6.03 and Rule 1.01 of the Code of Professional
Responsibility, filed against retired Supreme Court Associate Justice Dante
O. Tinga, for lack of merit.
SO ORDERED.
Rule 6.03 – A lawyer shall not, after leaving government service, accept
engagements or employment in connection with any matter in which he
had intervened while in said service.
 Various ways a government lawyer leaves government service:
1. retirement
2. resignation
3. expiration of the term of office
4. dismissal
5. abandonment
 Q: What are the pertinent statutory provisions regarding this
Rule?
A: Sec. 3 (d) RA 3019 as amended and Sec. 7 (b), RA 6713
Sec 3. Corrupt practice of Public Officers. In addition to acts or omission of
public officers already penalized by existing law, the following shall constitute
corrupt practice of any public officer and are hereby declared to be unlawful:
(d) accepting or having any member of his family accept employment in a
private enterprise which has pending official business with him during the
pendency thereof or within one year after termination.
Section 7 (b) of RA 6713 prohibits officials from doing any of the following
acts:
1. own, control, manage or accept employment as officer,
employee, consultant, counsel, broker, agent, trustee or nominee
in any private enterprise regulated, supervised or licensed by
their office unless expressly allowed by law.
These prohibitions shall continue to apply for a period of one (1) year after
resignation, retirement, or separation from public office, except in the case of
subparagraph (b) (2) above, but the professional concerned cannot practice
his profession in connection with any matter before the office he used to be
with, in which case the one year prohibition shall likewise apply.
 Lawyers in the government service are prohibited to 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.
 Misconduct in office as a public official may be a ground for
disciplinary action (if of such character as to affect his
qualification as lawyer or to show moral delinquency).
 Should recommend the acquittal of the accused whose
conviction is on appeal, IF he finds no legal basis to sustain the
conviction.
 Includes restriction is representing conflicting interest (e.g.
Accepting engagements vs. former employer, PNB)
 The OSG is not authorized to represent a public official at any
state of a criminal case.
[G.R. Nos. 151809-12. April 12, 2005]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT
(PCGG), petitioner, vs. SANDIGANBAYAN (Fifth Division), LUCIO C.
TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD P.
SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN,
Page 98
ESTATE OF BENITO TAN KEE HIONG (represented by TARCIANA C.
TAN), FLORENCIO N. SANTOS, JR., HARRY C. TAN, TAN ENG CHAN,
LEGAL ETHICS
CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO,
JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG,
ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED
BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION,
ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS,
INC., FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT
CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT
CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND
TRADE CORP., MARANAW HOTELS AND RESORT CORP., NORTHERN
TOBACCO REDRYING PLANT, PROGRESSIVE FARMS, INC.,
SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO HOLDINGS
& DEVELOPMENT CORP., and ATTY. ESTELITO P.
MENDOZA, respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with significance for it
concerns on one hand, the efforts of the Bar to upgrade the ethics of lawyers
in government service and on the other, its effect on the right of government
to recruit competent counsel to defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered
financial difficulties. GENBANK had extended considerable financial support
to Filcapital Development Corporation causing it to incur daily overdrawings
on its current account with the Central Bank.[1] It was later found by the
Central Bank that GENBANK had approved various loans to directors,
officers, stockholders and related interests totaling P172.3 million, of which
59% was classified as doubtful and P0.505 million as uncollectible.[2] As a
bailout, the Central Bank extended emergency loans to GENBANK which
reached a total of P310 million.[3] Despite the mega loans, GENBANK failed
to recover from its financial woes. On March 25, 1977, the Central Bank
issued a resolution declaring GENBANK insolvent and unable to resume
business with safety to its depositors, creditors and the general public, and
ordering its liquidation.[4] A public bidding of GENBANKs assets was
held from March 26 to 28, 1977, wherein the Lucio Tan group submitted the
winning bid.[5] Subsequently, former Solicitor General Estelito P. Mendoza
filed a petition with the then Court of First Instance praying for the
assistance and supervision of the court in GENBANKs liquidation as
mandated by Section 29 of Republic Act No. 265. In February 1986, the
EDSA I revolution toppled the Marcos government. One of the first acts of
President Corazon C. Aquino was to establish the Presidential Commission
on Good Government (PCGG) to recover the alleged ill-gotten wealth of
former President Ferdinand Marcos, his family and his cronies. Pursuant to
this mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a
complaint for reversion, reconveyance, restitution, accounting and
damages against respondents Lucio Tan, Carmen Khao Tan, Florencio T.
Santos, Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng
Lian, Estate of Benito Tan Kee Hiong, Florencio N. Santos, Jr., Harry C. Tan,
Tan Eng Chan, Chung Poe Kee, Mariano Khoo, Manuel Khoo, Miguel Khoo,
Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T. Wong, Ernesto B. Lim,
Benjamin T. Albacita, Willy Co, Allied Banking Corporation (Allied Bank),
Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic Holdings
Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan
Development Corp., Himmel Industries, Iris Holdings and Development
Corp., Jewel Holdings, Inc., Manufacturing Services and Trade Corp.,
Maranaw Hotels and Resort Corp., Northern Tobacco Redrying Plant,
Progressive Farms, Inc., Shareholdings, Inc., Sipalay Trading Corp., Virgo
Holdings & Development Corp., (collectively referred to herein as
respondents Tan, et al.), then President Ferdinand E. Marcos, Imelda R.
Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio
Licaros. The case was docketed as Civil Case No. 0005 of the Second
Division of theSandiganbayan.[6] In connection therewith, the PCGG issued
several writs of sequestration on properties allegedly acquired by the
above-named persons by taking advantage of their close relationship and
influence with former President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari,
prohibition and injunction to nullify, among others, the writs of sequestration
issued by the PCGG.[7] After the filing of the parties comments, this Court
referred the cases to the Sandiganbayan for proper disposition. These
cases were docketed as Civil Case Nos. 0096-0099. In all these cases,
respondents Tan, et al. were represented by their counsel, former Solicitor
PINEDAPCGRNMAN
General Estelito P. Mendoza, who has then resumed his private practice of
law.
On February 5, 1991, the PCGG filed motions to disqualify respondent
Mendoza as counsel for respondents Tan, et al. with the Second Division
of the Sandiganbayan in Civil Case Nos. 0005[8] and 0096-0099.[9] The
motions alleged that respondent Mendoza, as then Solicitor General[10] and
counsel to Central Bank, actively intervened in the liquidation of GENBANK,
which was subsequently acquired by respondents Tan, et al. and became
Allied Banking Corporation. Respondent Mendoza allegedly intervened in the
acquisition of GENBANK by respondents Tan, et al. when, in his capacity as
then Solicitor General, he advised the Central Banks officials on the
procedure to bring about GENBANKs liquidation and appeared as counsel
for the Central Bank in connection with its petition for assistance in the
liquidation of GENBANK which he filed with the Court of First Instance (now
Regional Trial Court) of Manila and was docketed as Special Proceeding No.
107812. The motions to disqualify invoked Rule 6.03 of the Code of
Professional Responsibility. Rule 6.03 prohibits former government
lawyers from accepting engagement or employment in connection with any
matter in which he had intervened while in said service. On April 22, 1991
the Second Division of the Sandiganbayan issued a resolution denying
PCGGs motion to disqualify respondent Mendoza in Civil Case No. 0005.[11] It
found that the PCGG failed to prove the existence of an inconsistency
between respondent Mendozas former function as Solicitor General and his
present employment as counsel of the Lucio Tan group. It noted that
respondent Mendoza did not take a position adverse to that taken on behalf
of the Central Bank during his term as Solicitor General.[12] It further ruled that
respondent Mendozas appearance as counsel for respondents Tan, et al.
was beyond the one-year prohibited period under Section 7(b) of Republic
Act No. 6713 since he ceased to be Solicitor General in the year 1986. The
said section prohibits a former public official or employee from practicing his
profession in connection with any matter before the office he used to be with
within one year from his resignation, retirement or separation from public
office.[13] The PCGG did not seek any reconsideration of the ruling.[14]
It appears that Civil Case Nos. 0096-0099 were transferred from the
Sandiganbayans Second Division to the Fifth Division.[15] In its resolution
dated July 11, 2001, the Fifth Division of the Sandiganbayan
denied the other PCGGs motion to disqualify respondent Mendoza.[16] It
adopted the resolution of its Second Division dated April 22, 1991, and
observed that the arguments were the same in substance as the motion to
disqualify filed in Civil Case No. 0005. The PCGG sought reconsideration of
the ruling but its motion was denied in its resolution dated December 5,
2001.[17]
Hence, the recourse to this Court by the PCGG assailing the resolutions
dated July 11, 2001 and December 5, 2001 of the Fifth Division of the
Sandiganbayan via a petition forcertiorari and prohibition under Rule 65 of
the 1997 Rules of Civil Procedure.[18] The PCGG alleged that the Fifth
Division acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed resolutions contending that: 1) Rule 6.03
of the Code of Professional Responsibility prohibits a former government
lawyer from accepting employment in connection with any matter in which he
intervened; 2) the prohibition in the Rule is not time-bound; 3) that Central
Bank could not waive the objection to respondent Mendozas appearance on
behalf of the PCGG; and 4) the resolution in Civil Case No. 0005 was
interlocutory, thus res judicata does not apply.[19]
The petition at bar raises procedural and substantive issues of law. In view,
however, of the import and impact of Rule 6.03 of the Code of Professional
Responsibility to the legal profession and the government, we shall cut our
way and forthwith resolve the substantive issue.
I
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional
Responsibility applies to respondent Mendoza. Again, the prohibition states:
A lawyer shall not, after leaving government service, accept engagement or
employment in connection with any matter in which he had intervened while
in the said service.
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical
Page 99
lineage of Rule 6.03 of the Code of Professional Responsibility.
LEGAL ETHICS
In the seventeenth and eighteenth centuries, ethical standards for lawyers
were pervasive in England and other parts of Europe. The early statements
of standards did not resemble modern codes of conduct. They were not
detailed or collected in one source but surprisingly were comprehensive for
their time. The principal thrust of the standards was directed towards the
litigation conduct of lawyers. It underscored the central duty of truth and
fairness in litigation as superior to any obligation to the client. The
formulations of the litigation duties were at times intricate, including specific
pleading standards, an obligation to inform the court of falsehoods and a duty
to explore settlement alternatives. Most of the lawyer's other basic duties --
competency, diligence, loyalty, confidentiality, reasonable fees and service
to the poor -- originated in the litigation context, but ultimately had broader
application to all aspects of a lawyer's practice.
The forms of lawyer regulation in colonial and early post-revolutionary
America did not differ markedly from those in England. The colonies and
early states used oaths, statutes, judicial oversight, and procedural rules to
govern attorney behavior. The difference from England was in the
pervasiveness and continuity of such regulation. The standards set in
England varied over time, but the variation in early America was far greater.
The American regulation fluctuated within a single colony and differed from
colony to colony. Many regulations had the effect of setting some standards
of conduct, but the regulation was sporadic, leaving gaps in the substantive
standards. Only three of the traditional core duties can be fairly characterized
as pervasive in the formal, positive law of the colonial and post-revolutionary
period: the duties of litigation fairness, competency and reasonable fees.[20]
The nineteenth century has been termed the dark ages of legal ethics in
the United States. By mid-century, American legal reformers were filling the
void in two ways. First, David Dudley Field, the drafter of the highly influential
New York Field Code, introduced a new set of uniform standards of conduct
for lawyers. This concise statement of eight statutory duties became law in
several states in the second half of the nineteenth century. At the same time,
legal educators, such as David Hoffman and George Sharswood, and many
other lawyers were working to flesh out the broad outline of a lawyer's duties.
These reformers wrote about legal ethics in unprecedented detail and thus
brought a new level of understanding to a lawyer's duties. A number of mid-
nineteenth century laws and statutes, other than the Field Code, governed
lawyer behavior. A few forms of colonial regulations e.g., the do no falsehood
oath and the deceit prohibitions -- persisted in some states. Procedural law
continued to directly, or indirectly, limit an attorney's litigation behavior. The
developing law of agency recognized basic duties of competence, loyalty and
safeguarding of client property. Evidence law started to recognize with less
equivocation the attorney-client privilege and its underlying theory of
confidentiality. Thus, all of the core duties, with the likely exception of service
to the poor, had some basis in formal law. Yet, as in the colonial and early
post-revolutionary periods, these standards were isolated and did not provide
a comprehensive statement of a lawyer's duties. The reformers, by contrast,
were more comprehensive in their discussion of a lawyer's duties, and they
actually ushered a new era in American legal ethics.[21]
Toward the end of the nineteenth century, a new form of ethical standards
began to guide lawyers in their practice the bar association code of legal
ethics. The bar codes were detailed ethical standards formulated by lawyers
for lawyers. They combined the two primary sources of ethical guidance from
the nineteenth century. Like the academic discourses, the bar association
codes gave detail to the statutory statements of duty and the oaths of office.
Unlike the academic lectures, however, the bar association codes retained
some of the official imprimatur of the statutes and oaths. Over time, the bar
association codes became extremely popular that states adopted them as
binding rules of law. Critical to the development of the new codes was the re-
emergence of bar associations themselves. Local bar associations formed
sporadically during the colonial period, but they disbanded by the early
nineteenth century. In the late nineteenth century, bar associations began to
form again, picking up where their colonial predecessors had left off. Many
of the new bar associations, most notably the Alabama State Bar Association
and the American Bar Association, assumed on the task of drafting
substantive standards of conduct for their members.[22]
In 1887, Alabama became the first state with a comprehensive bar
association code of ethics. The 1887 Alabama Code of Ethics was the model
for several states codes, and it was the foundation for the American Bar
Association's (ABA) 1908 Canons of Ethics.[23]
PINEDAPCGRNMAN
In 1917, the Philippine Bar found that the oath and duties of a lawyer were
insufficient to attain the full measure of public respect to which the legal
profession was entitled. In that year, the Philippine Bar Association adopted
as its own, Canons 1 to 32 of the ABA Canons of Professional Ethics.[24]
As early as 1924, some ABA members have questioned the form and
function of the canons. Among their concerns was the revolving door or the
process by which lawyers and others temporarily enter government service
from private life and then leave it for large fees in private practice, where they
can exploit information, contacts, and influence garnered in government
service.[25] These concerns were classified as adverse-interest conflicts
and congruent-interest conflicts. Adverse-interest
conflicts exist where the matter in which the former government lawyer
represents a client in private practice is substantially related to a matter that
the lawyer dealt with while employed by the government and the interests of
the current and former are adverse.[26] On the other hand, congruent-
interest representation conflicts are unique to government lawyers and
apply primarily to former government lawyers.[27] For several years, the ABA
attempted to correct and update the canons through new canons, individual
amendments and interpretative opinions. In 1928, the ABA amended one
canon and added thirteen new canons.[28] To deal with problems peculiar to
former government lawyers, Canon 36 was minted which disqualified them
both for adverse-interest conflicts and congruent-interest representation
conflicts.[29] The rationale for disqualification is rooted in a concern that the
government lawyers largely discretionary actions would be influenced by the
temptation to take action on behalf of the government client that later could
be to the advantage of parties who might later become private practice
clients.[30] Canon 36 provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter upon
the merits of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public
employ should not, after his retirement, accept employment in
connection with any matter he has investigated or passed upon while
in such office or employ.
Over the next thirty years, the ABA continued to amend many of the canons
and added Canons 46 and 47 in 1933 and 1937, respectively.[31]
In 1946, the Philippine Bar Association again adopted as its own Canons
33 to 47 of the ABA Canons of Professional Ethics.[32]
By the middle of the twentieth century, there was growing consensus that
the ABA Canons needed more meaningful revision. In 1964, the ABA
President-elect Lewis Powell asked for the creation of a committee to study
the adequacy and effectiveness of the ABA Canons. The committee
recommended that the canons needed substantial revision, in part because
the ABA Canons failed to distinguish between the inspirational and the
proscriptive and were thus unsuccessful in enforcement. The legal profession
in the United States likewise observed thatCanon 36 of the ABA Canons of
Professional Ethics resulted in unnecessary disqualification of lawyers for
negligible participation in matters during their employment with the
government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969
ABA Model Code of Professional Responsibility.[33] The basic ethical
principles in the Code of Professional Responsibility were supplemented by
Disciplinary Rules that defined minimum rules of conduct to which the lawyer
must adhere.[34] In the case of Canon 9, DR 9-101(b)[35]became the
applicable supplementary norm. The drafting committee reformulated the
canons into the Model Code of Professional Responsibility, and, in August of
1969, the ABA House of Delegates approved the Model Code.[36]
Despite these amendments, legal practitioners remained unsatisfied with the
results and indefinite standards set forth by DR 9-101(b) and the Model Code
of Professional Responsibility as a whole. Thus, in August 1983, the ABA
adopted new Model Rules of Professional Responsibility. The Model
Rules used the restatement format, where the conduct standards were set-
out in rules, with comments following each rule. The new format was intended
to give better guidance and clarity for enforcement because the only
enforceable standards were the black letter Rules. The Model Rules
eliminated the broad canons altogether and reduced the emphasis on
narrative discussion, by placing comments after the rules and limiting
Page 100
comment discussion to the content of the black letter rules. The Model Rules
made a number of substantive improvements particularly with regard to
conflicts of interests.[37] In particular, the ABA did away with Canon 9,
LEGAL ETHICS
citing the hopeless dependence of the concept of impropriety on the
subjective views of anxious clients as well as the norms indefinite
nature.[38]
In cadence with these changes, the Integrated Bar of the Philippines (IBP)
adopted a proposed Code of Professional Responsibility in 1980 which
it submitted to this Court for approval. The Code was drafted to reflect the
local customs, traditions, and practices of the bar and to conform with new
realities. On June 21, 1988, this Court promulgated the Code of
Professional Responsibility.[39] Rule 6.03 of the Code of Professional
Responsibility deals particularly with former government lawyers, and
provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which he had
intervened while in said service.
Rule 6.03 of the Code of Professional Responsibility retained the general
structure of paragraph 2, Canon 36 of the Canons of Professional Ethics but
replaced the expansive phraseinvestigated and passed upon with the
word intervened. It is, therefore, properly applicable to both adverse-
interest conflicts and congruent-interest conflicts.
The case at bar does not involve the adverse interest aspect of Rule
6.03. Respondent Mendoza, it is conceded, has no adverse interest problem
when he acted as Solicitor General in Sp. Proc. No. 107812 and later as
counsel of respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos.
0096-0099 before the Sandiganbayan. Nonetheless, there remains the
issue of whether there exists a congruent-interest conflict sufficient to
disqualify respondent Mendoza from representing respondents Tan, et al.
I.B. The congruent interest aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning of
matter referred to in the rule and, second, the metes and bounds of the
intervention made by the former government lawyer on the matter. The
American Bar Association in its Formal Opinion 342, defined matter as any
discrete, isolatable act as well as identifiable transaction or conduct involving
a particular situation and specific party, and not merely an act of drafting,
enforcing or interpreting government or agency procedures, regulations or
laws, or briefing abstract principles of law.
Firstly, it is critical that we pinpoint the matter which was the subject of
intervention by respondent Mendoza while he was the Solicitor General. The
PCGG relates the following acts of respondent Mendoza as constituting the
matter where he intervened as a Solicitor General, viz:[40]
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of the
Sandiganbayan (Fifth Division) in issuing the assailed Resolutions dated July
11, 2001 and December 5, 2001 denying the motion to disqualify Atty.
Mendoza as counsel for respondents Tan, et al. The PCGG insists that Atty.
Mendoza, as then Solicitor General, actively intervened in the closure of
GENBANK by advising the Central Bank on how to proceed with the said
banks liquidation and even filing the petition for its liquidation with the CFI of
Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977
prepared by certain key officials of the Central Bank, namely, then Senior
Deputy Governor Amado R. Brinas, then Deputy Governor Jaime C. Laya,
then Deputy Governor and General Counsel Gabriel C. Singson, then
Special Assistant to the Governor Carlota P. Valenzuela, then Asistant to the
Governor Arnulfo B. Aurellano and then Director of Department of
Commercial and Savings Bank Antonio T. Castro, Jr., where they averred
that on March 28, 1977, they had a conference with the Solicitor General
(Atty. Mendoza), who advised them on how to proceed with the liquidation of
GENBANK. The pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor
General and he advised that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board
reporting that studies and evaluation had been made since the last
examination of the bank as of August 31, 1976 and it is believed that the bank
can not be reorganized or placed in a condition so that it may be permitted
to resume business with safety to its depositors and creditors and the general
public.
2. If the said report is confirmed by the Monetary Board, it shall order the
liquidation of the bank and indicate the manner of its liquidation and approve
a liquidation plan.
PINEDAPCGRNMAN
3. The Central Bank shall inform the principal stockholders of Genbank of the
foregoing decision to liquidate the bank and the liquidation plan approved by
the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance
reciting the proceedings which had been taken and praying the assistance of
the Court in the liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the
Monetary Board where it was shown that Atty. Mendoza was furnished
copies of pertinent documents relating to GENBANK in order to aid him in
filing with the court the petition for assistance in the banks liquidation. The
pertinent portion of the said minutes reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with a copy of
the subject memorandum of the Director, Department of Commercial and
Savings Bank dated March 29, 1977, together with copies of:
1. Memorandum of the Deputy Governor, Supervision and Examination
Sector, to the Monetary Board, dated March 25, 1977, containing a report on
the current situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co.,
dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial and Savings
Bank, to the Monetary Board, dated March 24, 1977, submitting, pursuant to
Section 29 of R.A. No. 265, as amended by P.D. No. 1007, a repot on the
state of insolvency of Genbank, together with its attachments; and
4. Such other documents as may be necessary or needed by the Solicitor
General for his use in then CFI-praying the assistance of the Court in the
liquidation of Genbank.
Beyond doubt, therefore, the matter or the act of respondent Mendoza as
Solicitor General involved in the case at bar is advising the Central Bank, on
how to proceed with the said banks liquidation and even filing the petition for
its liquidation with the CFI of Manila. In fine, the Court should resolve whether
his act of advising the Central Bank on the legal procedure to liquidate
GENBANK is included within the concept of matter under Rule
6.03. The procedure of liquidation is given in black and white in Republic
Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination by the
head of the appropriate supervising or examining department or his
examiners or agents into the condition of any bank or non-bank financial
intermediary performing quasi-banking functions, it shall be disclosed that
the condition of the same is one of insolvency, or that its continuance in
business would involve probable loss to its depositors or creditors, it shall be
the duty of the department head concerned forthwith, in writing, to inform the
Monetary Board of the facts, and the Board may, upon finding the statements
of the department head to be true, forbid the institution to do business in the
Philippines and shall designate an official of the Central Bank or a person of
recognized competence in banking or finance, as receiver to immediately
take charge of its assets and liabilities, as expeditiously as possible collect
and gather all the assets and administer the same for the benefit of its
creditors, exercising all the powers necessary for these purposes including,
but not limited to, bringing suits and foreclosing mortgages in the name of the
bank or non-bank financial intermediary performing quasi-banking functions.
...
If the Monetary Board shall determine and confirm within the said period that
the bank or non-bank financial intermediary performing quasi-banking
functions is insolvent or cannot resume business with safety to its depositors,
creditors and the general public, it shall, if the public interest requires, order
its liquidation, indicate the manner of its liquidation and approve a liquidation
plan. The Central Bank shall, by the Solicitor General, file a petition in the
Court of First Instance reciting the proceedings which have been taken and
praying the assistance of the court in the liquidation of such institution. The
court shall have jurisdiction in the same proceedings to adjudicate disputed
claims against the bank or non-bank financial intermediary performing quasi-
banking functions and enforce individual liabilities of the stockholders and do
all that is necessary to preserve the assets of such institution and to
implement the liquidation plan approved by the Monetary Board. The
Page 101
Monetary Board shall designate an official of the Central Bank, or a person
of recognized competence in banking or finance, as liquidator who shall take
over the functions of the receiver previously appointed by the Monetary
LEGAL ETHICS
Board under this Section. The liquidator shall, with all convenient speed,
convert the assets of the banking institution or non-bank financial
intermediary performing quasi-banking functions to money or sell, assign or
otherwise dispose of the same to creditors and other parties for the purpose
of paying the debts of such institution and he may, in the name of the bank
or non-bank financial intermediary performing quasi-banking functions,
institute such actions as may be necessary in the appropriate court to collect
and recover accounts and assets of such institution.
The provisions of any law to the contrary notwithstanding, the actions of the
Monetary Board under this Section and the second paragraph of Section 34
of this Act shall be final and executory, and can be set aside by the court only
if there is convincing proof that the action is plainly arbitrary and made in bad
faith. No restraining order or injunction shall be issued by the court enjoining
the Central Bank from implementing its actions under this Section and the
second paragraph of Section 34 of this Act, unless there is convincing proof
that the action of the Monetary Board is plainly arbitrary and made in bad
faith and the petitioner or plaintiff files with the clerk or judge of the court in
which the action is pending a bond executed in favor of the Central Bank, in
an amount to be fixed by the court. The restraining order or injunction shall
be refused or, if granted, shall be dissolved upon filing by the Central Bank
of a bond, which shall be in the form of cash or Central Bank cashier(s) check,
in an amount twice the amount of the bond of the petitioner or plaintiff
conditioned that it will pay the damages which the petitioner or plaintiff may
suffer by the refusal or the dissolution of the injunction. The provisions of
Rule 58 of the New Rules of Court insofar as they are applicable and not
inconsistent with the provisions of this Section shall govern the issuance and
dissolution of the restraining order or injunction contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the inability of a bank
or non-bank financial intermediary performing quasi-banking functions to pay
its liabilities as they fall due in the usual and ordinary course of business.
Provided, however, That this shall not include the inability to pay of an
otherwise non-insolvent bank or non-bank financial intermediary performing
quasi-banking functions caused by extraordinary demands induced by
financial panic commonly evidenced by a run on the bank or non-bank
financial intermediary performing quasi-banking functions in the banking or
financial community.
The appointment of a conservator under Section 28-A of this Act or the
appointment of a receiver under this Section shall be vested exclusively with
the Monetary Board, the provision of any law, general or special, to the
contrary notwithstanding. (As amended by PD Nos. 72, 1007, 1771 & 1827,
Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to
liquidate GENBANK is not the matter contemplated by Rule 6.03 of the
Code of Professional Responsibility. ABA Formal Opinion No. 342 is clear
as daylight in stressing that the drafting, enforcing or interpreting
government or agency procedures, regulations or laws, or briefing abstract
principles of law are acts which do not fall within the scope of the term matter
and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above
act of respondent Mendoza falls within the definition of matter per ABA
Formal Opinion No. 342. Be that as it may, the said act of respondent
Mendoza which is the matter involved in Sp. Proc. No. 107812 is entirely
different from the matter involved in Civil Case No. 0096. Again, the plain
facts speak for themselves. It is given that respondent Mendoza had nothing
to do with the decision of the Central Bank to liquidate GENBANK. It is also
given that he did not participate in the sale of GENBANK to Allied Bank. The
matter where he got himself involved was in informing Central Bank on
the procedure provided by law to liquidate GENBANK thru the courts and in
filing the necessary petition in Sp. Proc. No. 107812 in the then Court of First
Instance. The subject matter of Sp. Proc. No. 107812, therefore, is not
the same nor is related to but is different from the subject matter in Civil
Case No. 0096. Civil Case No. 0096 involves the sequestration of the
stocks owned by respondents Tan, et al., in Allied Bank on the alleged
ground that they are ill-gotten. The case does not involve the liquidation of
GENBANK. Nor does it involve the sale of GENBANK to Allied Bank.
Whether the shares of stock of the reorganized Allied Bank are ill-gotten is
far removed from the issue of the dissolution and liquidation of GENBANK.
GENBANK was liquidated by the Central Bank due, among others, to the
alleged banking malpractices of its owners and officers. In other words, the
legality of the liquidation of GENBANK is not an issue in the
PINEDAPCGRNMAN
sequestration cases. Indeed, the jurisdiction of the PCGG does not include
the dissolution and liquidation of banks. It goes without saying that Code 6.03
of the Code of Professional Responsibility cannot apply to respondent
Mendoza because his alleged intervention while a Solicitor General in
Sp. Proc. No. 107812 is an intervention on a matter different from the
matter involved in Civil Case No. 0096.
Thirdly, we now slide to the metes and bounds of the
intervention contemplated by Rule 6.03. Intervene means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or circumstance
. . . 2: to occur, fall, or come in between points of time or events . . . 3: to
come in or between by way of hindrance or modification: INTERPOSE . . . 4:
to occur or lie between two things (Paris, where the same city lay on both
sides of an intervening river . . .)[41]
On the other hand, intervention is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that may
affect the interests of others.[42]
There are, therefore, two possible interpretations of the word intervene.
Under the first interpretation, intervene includes participation in a
proceeding even if the intervention is irrelevant or has no effect or little
influence.[43] Under the second interpretation, intervene only includes an act
of a person who has the power to influence the subject proceedings.[44]We hold
that this second meaning is more appropriate to give to the word intervention
under Rule 6.03 of the Code of Professional Responsibility in light of its
history. The evils sought to be remedied by the Rule do not exist where the
government lawyer does an act which can be considered as innocuous such
as x x x drafting, enforcing or interpreting government or agency procedures,
regulations or laws, or briefing abstract principles of law. In fine, the
intervention cannot be insubstantial and insignificant. Originally, Canon
36 provided that a former government lawyer should not, after his retirement,
accept employment in connection with any matter which he has investigated
or passed upon while in such office or employ. As aforediscussed, the broad
sweep of the phrase which he has investigated or passed upon resulted in
unjust disqualification of former government lawyers. The 1969 Code
restricted its latitude, hence, in DR 9-101(b), the prohibition extended only to
a matter in which the lawyer, while in the government service, had
substantial responsibility. The 1983 Model Rules further constricted the
reach of the rule. MR 1.11(a) provides that a lawyer shall not represent a
private client in connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee.
It is, however, alleged that the intervention of respondent Mendoza in Sp.
Proc. No. 107812 is significant and substantial. We disagree. For one, the
petition in the special proceedings is an initiatory pleading, hence, it has to
be signed by respondent Mendoza as the then sitting Solicitor General. For
another, the record is arid as to the actual participation of respondent
Mendoza in the subsequent proceedings. Indeed, the case was in
slumberville for a long number of years. None of the parties pushed for its
early termination. Moreover, we note that the petition filed merely seeks the
assistance of the court in the liquidation of GENBANK. The principal role of
the court in this type of proceedings is to assist the Central Bank in
determining claims of creditors against the GENBANK. The role of the court
is not strictly as a court of justice but as an agent to assist the Central Bank
in determining the claims of creditors. In such a proceeding, the participation
of the Office of the Solicitor General is not that of the usual court litigator
protecting the interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents
a commendable effort on the part of the IBP to upgrade the ethics of lawyers
in the government service. As aforestressed, it is a take-off from similar
efforts especially by the ABA which have not been without difficulties. To
date, the legal profession in the United States is still fine tuning its DR 9-
101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional
Responsibility, the Court took account of various policy considerations
to assure that its interpretation and application to the case at bar will achieve
its end without necessarily prejudicing other values of equal importance.
Page 102
Thus, the rule was not interpreted to cause a chilling effect on government
recruitment of able legal talent. At present, it is already difficult for
government to match compensation offered by the private
LEGAL ETHICS
sector and it is unlikely that government will be able to reverse that situation.
The observation is not inaccurate that the only card that the government may
play to recruit lawyers is have them defer present income in return for the
experience and contacts that can later be exchanged for higher income in
private practice.[45] Rightly, Judge Kaufman warned that the sacrifice of
entering government service would be too great for most men to endure
should ethical rules prevent them from engaging in the practice of a technical
specialty which they devoted years in acquiring and cause the firm with which
they become associated to be disqualified.[46] Indeed, to make government
service more difficult to exit can only make it less appealing to enter.[47]
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a
litigation tactic to harass opposing counsel as well as deprive his client of
competent legal representation. The danger that the rule will be misused to
bludgeon an opposing counsel is not a mere guesswork. The Court of
Appeals for the District of Columbia has noted the tactical use of motions to
disqualify counsel in order to delay proceedings, deprive the opposing party
of counsel of its choice, and harass and embarrass the opponent, and
observed that the tactic was so prevalent in large civil cases in recent years
as to prompt frequent judicial and academic commentary.[48] Even the United
States Supreme Court found no quarrel with the Court of Appeals description
of disqualification motions as a dangerous game.[49] In the case at bar, the
new attempt to disqualify respondent Mendoza is difficult to divine. The
disqualification of respondent Mendoza has long been a dead issue. It was
resuscitated after the lapse of many years and only after PCGG has lost
many legal incidents in the hands of respondent Mendoza. For a fact, the
recycled motion for disqualification in the case at bar was filed more than
four years after the filing of the petitions for certiorari, prohibition and
injunction with the Supreme Court which were subsequently remanded to the
Sandiganbayan and docketed as Civil Case Nos. 0096-0099.[50] At the very
least, the circumstances under which the motion to disqualify in the case at bar
were refiled put petitioners motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned with
the prejudice to the client which will be caused by its misapplication. It
cannot be doubted that granting a disqualification motion causes the client to
lose not only the law firm of choice, but probably an individual lawyer in whom
the client has confidence.[51] The client with a disqualified lawyer must start
again often without the benefit of the work done by the latter.[52] The effects
of this prejudice to the right to choose an effective counsel cannot be
overstated for it can result in denial of due process.
The Court has to consider also the possible adverse effect of a
truncated reading of the rule on the official independence of lawyers in
the government service. According to Prof. Morgan: An individual who has
the security of knowing he or she can find private employment upon leaving
the government is free to work vigorously, challenge official positions when
he or she believes them to be in error, and resist illegal demands by
superiors. An employee who lacks this assurance of private employment
does not enjoy such freedom.[53] He adds: Any system that affects the right
to take a new job affects the ability to quit the old job and any limit on the
ability to quit inhibits official independence.[54] The case at bar involves the
position of Solicitor General, the office once occupied by respondent
Mendoza. It cannot be overly stressed that the position of Solicitor General
should be endowed with a great degree of independence. It is this
independence that allows the Solicitor General to recommend acquittal of the
innocent; it is this independence that gives him the right to refuse to defend
officials who violate the trust of their office. Any undue dimunition of the
independence of the Solicitor General will have a corrosive effect on the rule
of law.
No less significant a consideration is the deprivation of the former
government lawyer of the freedom to exercise his profession. Given the
current state of our law, the disqualification of a former government lawyer
may extend to all members of his law firm.[55] Former government lawyers
stand in danger of becoming the lepers of the legal profession.
It is, however, proffered that the mischief sought to be remedied by Rule 6.03
of the Code of Professional Responsibility is the possible appearance of
impropriety and loss of public confidence in government. But as well
observed, the accuracy of gauging public perceptions is a highly speculative
exercise at best[56] which can lead to untoward results.[57] No less than Judge
Kaufman doubts that the lessening of restrictions as to former government
attorneys will have any detrimental effect on that free flow of information
between the government-client and its attorneys which the canons seek to
PINEDAPCGRNMAN
protect.[58] Notably, the appearance of impropriety theory has been
rejected in the 1983 ABA Model Rules of Professional Conduct[59]and
some courts have abandoned per se disqualification based on Canons 4 and
9 when an actual conflict of interest exists, and demand an evaluation of the
interests of the defendant, government, the witnesses in the case, and the
public.[60]
It is also submitted that the Court should apply Rule 6.03 in all its strictness
for it correctly disfavors lawyers who switch sides. It is claimed that
switching sides carries the danger that former government employee may
compromise confidential official information in the process. But this
concern does not cast a shadow in the case at bar. As afore-discussed, the
act of respondent Mendoza in informing the Central Bank on the procedure
how to liquidate GENBANK is a different matter from the subject matter of
Civil Case No. 0005 which is about the sequestration of the shares of
respondents Tan, et al., in Allied Bank. Consequently, the danger that
confidential official information might be divulged is nil, if not inexistent. To
be sure, there are no inconsistent sides to be bothered about in the case
at bar. For there is no question that in lawyering for respondents Tan, et al.,
respondent Mendoza is not working against the interest of Central Bank. On
the contrary, he is indirectly defending the validity of the action of Central
Bank in liquidating GENBANK and selling it later to Allied Bank. Their
interests coincide instead of colliding. It is for this reason that Central
Bank offered no objection to the lawyering of respondent Mendoza in Civil
Case No. 0005 in defense of respondents Tan, et al. There is no switching
of sides for no two sides are involved.
It is also urged that the Court should consider that Rule 6.03 is intended to
avoid conflict of loyalties, i.e., that a government employee might be
subject to a conflict of loyalties while still in government service.[61] The
example given by the proponents of this argument is that a lawyer who plans
to work for the company that he or she is currently charged with prosecuting
might be tempted to prosecute less vigorously.[62] In the cautionary words of
the Association of the Bar Committee in 1960: The greatest public risks
arising from post employment conduct may well occur during the period of
employment through the dampening of aggressive administration of
government policies.[63] Prof. Morgan, however, considers this concern as
probably excessive.[64] He opines x x x it is hard to imagine that a private firm
would feel secure hiding someone who had just been disloyal to his or her
last client the government. Interviews with lawyers consistently confirm that
law firms want the best government lawyers the ones who were hardest to
beat not the least qualified or least vigorous advocates.[65] But again, this
particular concern is a non factor in the case at bar. There is no charge
against respondent Mendoza that he advised Central Bank on how to
liquidate GENBANK with an eye in later defending respondents Tan, et al. of
Allied Bank. Indeed, he continues defending both the interests of Central
Bank and respondents Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is
perceived as the excessive influence of former officials or their
clout.[66] Prof. Morgan again warns against extending this concern too far.
He explains the rationale for his warning, viz: Much of what appears to be an
employees influence may actually be the power or authority of his or her
position, power that evaporates quickly upon departure from government x x
x.[67] More, he contends that the concern can be demeaning to those sitting
in government. To quote him further: x x x The idea that, present officials
make significant decisions based on friendship rather than on the merit says
more about the present officials than about their former co-worker friends. It
implies a lack of will or talent, or both, in federal officials that does not seem
justified or intended, and it ignores the possibility that the officials will tend to
disfavor their friends in order to avoid even the appearance of favoritism.[68]
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that the
congruent interest prong of Rule 6.03 of the Code of Professional
Responsibility should be subject to a prescriptive period. Mr. Justice Tinga
opines that the rule cannot apply retroactively to respondent Mendoza.
Obviously, and rightly so, they are disquieted by the fact that (1) when
respondent Mendoza was the Solicitor General, Rule 6.03 has not yet
adopted by the IBP and approved by this Court, and (2) the bid to disqualify
Page 103
respondent Mendoza was made after the lapse of time whose length cannot,
by any standard, qualify as reasonable. At bottom, the point they make
relates to the unfairness of the rule if applied without any prescriptive period
LEGAL ETHICS
and retroactively, at that. Their concern is legitimate and deserves to be
initially addressed by the IBP and our Committee on Revision of the Rules of
Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11,
2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan in
Civil Case Nos. 0096-0099 is denied.
No cost.
SO ORDERED.
A.C. No. 6707 March 24, 2006
GISELA HUYSSEN, Complainant,
vs.
ATTY. FRED L. GUTIERREZ, Respondent.
DECISION
PER CURIAM:
This treats of a Complaint1 for Disbarment filed by Gisela Huyssen against
respondent Atty. Fred L. Gutierrez.
Complainant alleged that in 1995, while respondent was still connected with
the Bureau of Immigration and Deportation (BID), she and her three sons,
who are all American citizens, applied for Philippine Visas under Section
13[g] of the Immigration Law. Respondent told complainant that in order that
their visa applications will be favorably acted upon by the BID they needed
to deposit a certain sum of money for a period of one year which could be
withdrawn after one year. Believing that the deposit was indeed required by
law, complainant deposited with respondent on six different occasions from
April 1995 to April 1996 the total amount of US$20,000. Respondent
prepared receipts/vouchers as proofs that he received the amounts
deposited by the complainant but refused to give her copies of official receipts
despite her demands. After one year, complainant demanded from
respondent the return of US$20,000 who assured her that said amount would
be returned. When respondent failed to return the sum deposited, the World
Mission for Jesus (of which complainant was a member) sent a demand letter
to respondent for the immediate return of the money. In a letter dated 1 March
1999, respondent promised to release the amount not later than 9 March
1999. Failing to comply with his promise, the World Mission for Jesus sent
another demand letter. In response thereto, respondent sent complainant a
letter dated 19 March 1999 explaining the alleged reasons for the delay in
the release of deposited amount. He enclosed two blank checks postdated
to 6 April and 20 April 1999 and authorized complainant to fill in the amounts.
When complainant deposited the postdated checks on their due dates, the
same were dishonored because respondent had stopped payment on the
same. Thereafter, respondent, in his letter to complainant dated 25 April
1999, explained the reasons for stopping payment on the checks, and gave
complainant five postdated checks with the assurance that said checks would
be honored. Complainant deposited the five postdated checks on their due
dates but they were all dishonored for having been drawn against insufficient
funds or payment thereon was ordered stopped by respondent. After
respondent made several unfulfilled promises to return the deposited
amount, complainant referred the matter to a lawyer who sent two demand
letters to respondent. The demand letters remained unheeded.
Thus, a complaint2 for disbarment was filed by complainant in the
Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP).
On 15 November 2000, Victor C. Fernandez, Director for Bar Discipline,
required3 respondent to submit his answer within 15 days from receipt
thereof.
In his Counter-Affidavit dated 2 July 2001,4 respondent denied the allegations
in the complaint claiming that having never physically received the money
mentioned in the complaint, he could not have appropriated or pocketed the
same. He said the amount was used as payment for services rendered for
obtaining the permanent visas in the Philippines. Respondent explained thus:
a) Through a close-friend, Jovie Galaraga, a Pastor and likewise a friend of
the complainant, the latter was introduced to me at my office at the Bureau
of Immigration with a big problem concerning their stay in the Philippines,
herself and three sons, one of which is already of major age while the two
others were still minors then. Their problem was the fact that since they have
been staying in the Philippines for almost ten (10) years as holders of
missionary visas (9G) they could no longer extend their said status as under
the law and related polic[i]es of the government, missionary visa holders
PINEDAPCGRNMAN
could only remain as such for ten (10) years after which they could no longer
extend their said status and have to leave the country.
b) Studying their case and being U.S. Citizen (sic), I advised them that they
better secure a permanent visa under Section 3 of the Philippine Immigration
Law otherwise known as Quota Visa and thereafter, provided them with list
of the requirements in obtaining the said visa, one of which is that the
applicant must have a $40,000 deposited in the bank. I also inform that her
son Marcus Huyssen, who was already of major age, has to have the same
amount of show money separate of her money as he would be issued
separate visa, while her two minor children would be included as her
dependents in her said visa application. I advised them to get a lawyer (sic),
complainant further requested me to refer to her to a lawyer to work for their
application, which I did and contacted the late Atty. Mendoza, an Immigration
lawyer, to do the job for the complainant and her family.
c) The application was filed, processed and followed-up by the said Atty.
Mendoza until the same was finished and the corresponding permanent visa
were obtained by the complainant and her family. Her son Marcus Huyssen
was given an independent permanent visa while the other two were made as
dependents of the complainant. In between the processing of the papers and
becoming very close to the complainant, I became the intermediary between
complainant and their counsel so much that every amount that the latter
would request for whatever purpose was coursed through me which request
were then transmitted to the complainant and every amount of money given
by the complainant to their counsel were coursed thru me which is the very
reason why my signature appears in the vouchers attached in the complaint-
affidavit;
d) That as time goes by, I noticed that the amount appeared to be huge for
services of a lawyer that I myself began to wonder why and, to satisfy my
curiosity, I met Atty. Mendoza and inquired from him regarding the matter
and the following facts were revealed to me:
1) That what was used by the complainant as her show money from the bank
is not really her money but money of World Mission for Jesus, which therefore
is a serious violation of the Immigration Law as there was a
misrepresentation. This fact was confirmed later when the said entity sent
their demand letter to the undersigned affiant and which is attached to the
complaint-affidavit;
2) That worst, the same amount used by the complainant, was the very same
amount used by her son Marcus Huyssen, in obtaining his separate
permanent visa. These acts of the complainant and her son could have been
a ground for deportation and likewise constitute criminal offense under the
Immigration Law and the Revised Penal Code. These could have been the
possible reason why complainant was made to pay for quite huge amount.
e) That after they have secured their visas, complainant and her family
became very close to undersigned and my family that I was even invited to
their residence several times;
f) However after three years, complainant demanded the return of their
money given and surprisingly they want to recover the same from me. By
twist of fate, Atty. Mendoza is no longer around, he died sometime 1997;
g) That it is unfortunate that the real facts of the matter is now being hidden
and that the amount of money is now being sought to be recovered from me;
h) That the fact is I signed the vouchers and being a lawyer I know the
consequences of having signed the same and therefore I had to answer for
it and pay. I tried to raised the fund needed but up to the present my standby
loan application has not been released and was informed that the same
would only be forthcoming second week of August. The same should have
been released last March but was aborted due to prevalent condition. The
amount to be paid, according to the complainant has now become doubled
plus attorney’s fees of P200,000.00.
Complainant submitted her evidence on 4 September 2002 and April 2003,
and filed her Formal Offer of Evidence on 25 August 2003.
On several occasions, the complaint was set for reception of respondent’s
evidence but the scheduled hearings (11 settings) were all reset at the
instance of the respondent who was allegedly out of the country to attend to
his client’s needs. Reception of respondent’s evidence was scheduled for the
last time on 28 September 2004 and again respondent failed to appear,
despite due notice and without just cause.
On 5 November 2004, Investigating Commissioner Milagros V. San Juan
Page 104
submitted her report5 recommending the disbarment of respondent. She
justified her recommendation in this manner:
LEGAL ETHICS
At the outset it should be noted that there is no question that respondent
received the amount of US$20,000 from complainant, as respondent himself
admitted that he signed the vouchers (Annexes A to F of complainant)
showing his receipt of said amount from complainant. Respondent however
claims that he did not appropriate the same for himself but that he delivered
the said amount to a certain Atty. Mendoza. This defense raised by
respondent is untenable considering the documentary evidence submitted by
complainant. On record is the 1 March 1999 letter of respondent addressed
to the World Mission for Jesus (Annex H of Complaint) where he stated thus:
"I really understand your feelings on the delay of the release of the deposit
but I repeat, nobody really intended that the thing would happen that way.
Many events were the causes of the said delay particularly the death of then
Commissioner L. Verceles, whose sudden death prevented us the needed
papers for the immediate release. It was only from compiling all on the first
week of January this year, that all the said papers were recovered, hence,
the process of the release just started though some important papers were
already finished as early as the last quarter of last year. We are just going
through the normal standard operating procedure and there is no day since
January that I do not make any follow – ups on the progress of the same."
and his letter dated 19 March 1999 (Annex L of Complaint) where he stated
thus:
"I am sending you my personal checks to cover the refund of the amount
deposited by your good self in connection with the procurement of your
permanent visa and that of your family. It might take some more time before
the Bureau could release the refund as some other pertinent papers are
being still compiled are being looked at the files of the late Commissioner
Verceles, who approved your visa and who died of heart attack. Anyway, I
am sure that everything would be fine later as all the documents needed are
already intact. This is just a bureaucratic delay."
From the above letters, respondent makes it appear that the US$20,000 was
officially deposited with the Bureau of Immigration and Deportation. However,
if this is true, how come only Petty Cash Vouchers were issued by respondent
to complainant to prove his receipt of the said sum and official receipts
therefore were never issued by the said Bureau? Also, why would respondent
issue his personal checks to cover the return of the money to complainant if
said amount was really officially deposited with the Bureau of Immigration?
All these actions of respondent point to the inescapable conclusion that
respondent received the money from complainant and appropriated the same
for his personal use. It should also be noted that respondent has failed to
establish that the "late Atty. Mendoza" referred to in his Counter-Affidavit
really exists. There is not one correspondence from Atty. Mendoza regarding
the visa application of complainant and his family, and complainant has also
testified that she never met this Atty. Mendoza referred to by respondent.
Considering that respondent was able to perpetrate the fraud by taking
advantage of his position with the Board of Special Inquiry of the Bureau of
Immigration and Deportation, makes it more reprehensible as it has caused
damage to the reputation and integrity of said office. It is submitted that
respondent has violated Rule 6.02 of Canon 6 of the Code of Professional
Responsibility which reads:
"A lawyer in the government service shall not use his public position to
promote or advance his private interests, nor allow the latter to interfere with
his public duties."
On 4 November 2004, the IBP Board of Governors approved6 the
Investigating Commissioner’s report with modification, thus:
RESOLVED to ADOPT and APPROVE, as it 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 applicable laws and rules, and
considering respondent’s violation of Rule 6.02 of Canon 6 of the Code of
Professional Responsibility, Atty. Fred L. Gutierrez is hereby DISBARRED
from the practice of law and ordered to return the amount with legal interest
from receipt of the money until payment. This case shall be referred to the
Office of the Ombudsman for prosecution for violation of Anti-Graft and
Corrupt Practices Acts and to the Department of Justice for appropriate
administrative action.
We agree with the IBP Board of Governors that respondent should be
severely sanctioned.
We begin with the veritable fact that lawyers in government service in the
discharge of their official task have more restrictions than lawyers in private
PINEDAPCGRNMAN
practice. Want of moral integrity is to be more severely condemned in a
lawyer who holds a responsible public office.7
It is undisputed that respondent admitted8 having received the US$20,000
from complainant as shown by his signatures in the petty cash vouchers9 and
receipts10 he prepared, on the false representation that that it was needed in
complainant’s application for visa with the BID. Respondent denied he
misappropriated the said amount and interposed the defense that he
delivered it to a certain Atty. Mendoza who assisted complainant and children
in their application for visa in the BID.11 Such defense remains
unsubstantiated as he failed to submit evidence on the matter. While he
claims that Atty. Mendoza already died, he did not present the death
certificate of said Atty. Mendoza. Worse, the action of respondent in shifting
the blame to someone who has been naturally silenced by fate, is not only
impudent but downright ignominious. When the integrity of a member of the
bar is challenged, it is not enough that he deny the charges against him; he
must meet the issue and overcome the evidence against him.12 He must
show proof that he still maintains that degree of morality and integrity which
at all times is expected of him. In the case at bar, respondent clearly fell short
of his duty. Records show that even though he was given the opportunity to
answer the charges and controvert the evidence against him in a formal
investigation, he failed, without any plausible reason, to appear several times
whenever the case was set for reception of his evidence despite due notice.
The defense of denial proferred by respondent is, thus, not convincing. It is
settled that denial is inherently a weak defense. To be believed, it must be
buttressed by a strong evidence of non-culpability; otherwise, such denial is
purely self-serving and is with nil evidentiary value.
When respondent issued the postdated checks as his moral obligation, he
indirectly admitted the charge. Such admissions were also apparent in the
following letters of respondent to complainant:
1) Letter13 dated 01 March 1992, pertinent portion of which reads:
Be that as it may, may I assure you for the last time that the said deposit is
forthcoming, the latest of which is 09 March 1999. Should it not be released
on said date, I understand to pay the same to you out of my personal money
on said date. No more reasons and no more alibis. Send somebody here at
the office on that day and the amount would be given to you wether (sic) from
the Bureau or from my own personal money.
2) Letter14 dated 19 March 1999, reads in part:
I am sending you my personal checks to cover the refund of the amount
deposited by your goodself in connection with the procurement of your
permanent visa and that of your family.
It might take some more time before the Bureau could release the refund as
some other pertinent papers are still being compiled and are being looked at
the files of the late Commissioner Verceles, who approved your visa and who
died of heart attack. Anyway, I am sure that everything would be fine later as
all the documents needed are already intact. This is just a bureaucratic delay.
xxxx
As you would see, I have to pay you in peso. I have issued you 2 checks,
one dated April 6, 1999 and the other one dated April 20, 1999. I leave the
amount vacant because I would want you to fill them up on their due dates
the peso equivalent to $10,000 respectively. This is to be sure that the peso
equivalent of your P20,000 would be well exchanged. I have postdated them
to enable me to raise some more pesos to cover the whole amount but don’t
worry as the Lord had already provided me the means.
3) Letter15 dated 25 April 1999 provides:
Anyway, let me apologize for all these troubles. You are aware that I have
done my very best for the early return of your money but the return is
becoming bleak as I was informed that there are still papers lacking. When I
stopped the payment of the checks I issued, I was of the impression that
everything is fine, but it is not. I guess it is time for me to accept the fact that
I really have to personally return the money out of my own. The issue should
stop at my end. This is the truth that I must face. It may hurt me financially
but it would set me free from worries and anxieties.
I have arranged for a loan from money lenders and was able to secure one
last Saturday the releases of which are on the following:
May 4, 1999- 200,000
May 11, 1999 -200,000
May 20, 1999-200,000
Page 105
June 4, 1999-200,000
I have given my property (lot situated in the province) as my collateral.
LEGAL ETHICS
I am therefore putting an end to this trouble. I am issuing four checks which
I assure you will be sufficiently funded on their due dates by reason of my
aforestated loans. Just bear with me for the last time, if any of these checks,
is returned, don’t call me anymore. Just file the necessary action against me,
I just had to put an end to this matter and look forward. x x x
4) Letter16 dated 12 May 1999, which reads:
The other day I deposited the amount of P289,000 to the bank to cover the
first check I issued. In fact I stopped all payments to all other checks that are
becoming due to some of my creditors to give preference to the check I
issued to you.
This morning when I went to the Bank, I learned that the bank instead of
returning the other checks I requested for stop payment - instead honored
them and mistakenly returned your check. This was a very big surprise to me
and discouragement for I know it would really upset you.
In view of this I thought of sending you the amount of P200,000 in cash which
I initially plan to withdraw from the Bank. However, I could not entrust the
same amount to the bearer nor can I bring the same to your place considering
that its quite a big amount. I am just sending a check for you to immediately
deposit today and I was assured by the bank that it would be honored this
time.
Normally, this is not the actuation of one who is falsely accused of
appropriating the money of another. As correctly observed by the
Investigating Commissioner, respondent would not have issued his personal
checks if said amount were officially deposited with the BID. This is an
admission of misconduct.
Respondent’s act of asking money from complainant in consideration of the
latter’s pending application for visas is violative of Rule 1.0117 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 6.0218 of the Code which bars
lawyers in government service from promoting their private interest.
Promotion of private interest 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.19 Respondent’s conduct in office
betrays the integrity and good moral character required from all lawyers,
especially from one occupying a high public office. 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; he 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 his brethren in private practice.
In a desperate attempt to put up a smoke or to camouflage his misdeed, he
went on committing another by issuing several worthless checks, thereby
compounding his case.
In a recent case, we have held that the issuance of worthless checks
constitutes gross misconduct,20 as the effect "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 since the circulation of
valueless commercial papers 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. Thus, paraphrasing Black’s definition, a
drawer who issues an unfunded check deliberately reneges on his private
duties he owes his fellow men or society in a manner contrary to accepted
and customary rule of right and duty, justice, honesty or good morals."21
Consequently, we have held that the act of a person in issuing a check
knowing at the time of the issuance that he or she does not have sufficient
funds in, or credit with, the drawee bank for the payment of the check in full
upon its presentment, is also a manifestation of moral turpitude.22
Respondent’s acts are more despicable. Not only did he misappropriate the
money of complainant; worse, he had the gall to prepare receipts with the
letterhead of the BID and issued checks to cover up his misdeeds. Clearly,
he does not deserve to continue, being a member of the bar.
Time and again, we have declared that the practice of law is a noble
profession. It is a special privilege bestowed only upon those who are
competent intellectually, academically and morally. A lawyer must at all times
conduct himself, especially in his dealings with his clients and the public at
large, with honesty and integrity in a manner beyond reproach. He must
faithfully perform his duties to society, to the bar, to the courts and to his
PINEDAPCGRNMAN
clients. A violation of the high standards of the legal profession subjects the
lawyer to administrative sanctions which includes suspension and
disbarment.23 More importantly, possession of good moral character must be
continuous as a requirement to the enjoyment of the privilege of law practice;
otherwise, the loss thereof is a ground for the revocation of such privilege.24
Indeed, the primary objective of administrative cases against lawyers is not
only to punish and discipline the erring individual lawyers but also to
safeguard the administration of justice by protecting the courts and the public
from the misconduct of lawyers, and to remove from the legal profession
persons whose utter disregard of their lawyer’s oath have proven them unfit
to continue discharging the trust reposed in them as members of the
bar.25These pronouncement gain practical significance in the case at bar
considering that respondent was a former member of the Board of Special
Inquiry of the BID. It bears stressing also that government lawyers who are
public servants owe fidelity to the public service, a public trust. As such,
government lawyers should be more sensitive to their professional
obligations as their disreputable conduct is more likely to be magnified in the
public eye.26
As a lawyer, who was also a public officer, respondent miserably failed to
cope with the strict demands and high standards of the legal profession.
Section 27, Rule 138 of the Revised Rules of Court mandates that a lawyer
may be disbarred or suspended by this Court for any of the following acts:
(1) deceit; (2) malpractice; (3) gross misconduct in office; (4) grossly immoral
conduct; (5) conviction of a crime involving moral turpitude ; (6) violation of
the lawyer’s oath; (7) willful disobedience of any lawful order of a superior
court; and (8) willfully appearing as an attorney for a party without authority
to do so.27
In Atty. Vitriolo v. Atty. Dasig,28 we ordered the disbarment of a lawyer who,
during her tenure as OIC, Legal Services, Commission on Higher Education,
demanded sums of money as consideration for the approval of applications
and requests awaiting action by her office. In Lim v. Barcelona,29 we also
disbarred a senior lawyer of the National Labor Relations Commission, who
was caught by the National Bureau of Investigation in the act of receiving and
counting money extorted from a certain person.
Respondent’s acts constitute gross misconduct; and consistent with the need
to maintain the high standards of the Bar and thus preserve the faith of the
public in the legal profession, respondent deserves the ultimate penalty of
expulsion from the esteemed brotherhood of lawyers.30
WHEREFORE, Atty. Fred L. Gutierrez is hereby DISBARRED from the
practice of law and ordered to return the amount he received from the
complainant with legal interest from his receipt of the money until payment.
This case shall be referred to the Office of the Ombudsman for criminal
prosecution for violation of Anti-Graft and Corrupt Practices Acts and to the
Department of Justice for appropriate administrative action. Let copies of this
Decision be furnished the Bar Confidant to be spread on the records of the
respondent; 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.
A.C. No. 3701 March 28, 1995
PHILIPPINE NATIONAL BANK, complainant,
vs.
ATTY. TELESFORO S. CEDO, respondent.
RESOLUTION
BIDIN, J.:
In a verified letter-complaint dated August 15, 1991, complainant Philippine
National Bank charged respondent Atty. Telesforo S. Cedo, former Asst.
Vice-President of the Asset Management Group of complainant bank with
violation of Canon 6, Rule 6.03 of the Code of Professional Responsibility,
thus:
A lawyer shall not, after leaving government service, accept engagement or
employment in connection with any matter in which he had intervened while
in said service.
by appearing as counsel for individuals who had transactions with
Page 106
complainant bank in which respondent during his employment with aforesaid
bank, had intervened.
LEGAL ETHICS
Complainant averred that while respondent was still in its employ, he
participated in arranging the sale of steel sheets (denominated as Lots 54-M
and 55-M) in favor of Milagros Ong Siy for P200,000. He even "noted" the
gate passes issued by his subordinate, Mr. Emmanuel Elefan, in favor of Mrs.
Ong Siy authorizing the pull-out of the steel sheets from the DMC Man
Division Compound. When a civil action arose out of this transaction between
Mrs. Ong Siy and complainant bank before the Regional Trial Court of Makati,
Branch 146, respondent who had since left the employ of complainant bank,
appeared as one of the counsels of Mrs. Ong Siy.
Similarly, when the same transaction became the subject of an administrative
case filed by complainant bank against his former subordinate Emmanuel
Elefan, for grave misconduct and dishonesty, respondent appeared as
counsel for Elefan only to be later disqualified by the Civil Service
Commission.
Moreover, while respondent was still the Asst. Vice President of
complainant’s Asset Management Group, he intervened in the handling of
the loan account of the spouses Ponciano and Eufemia Almeda with
complainant bank by writing demand letters to the couple. When a civil action
ensued between complainant bank and the Almeda spouses as a result of
this loan account, the latter were represented by the law firm "Cedo, Ferrer,
Maynigo & Associates" of which respondent is one of the Senior Partners.
In his Comment on the complaint, respondent admitted that he appeared as
counsel for Mrs. Ong Siy but only with respect to the execution pending
appeal of the RTC decision. He alleged that he did not participate in the
litigation of the case before the trial court. With respect to the case of the
Almeda spouses, respondent alleged that he never appeared as counsel for
them. He contended that while the law firm "Cedo Ferrer, Maynigo &
Associates" is designated as counsel of record, the case is actually handled
only by Atty. Pedro Ferrer. Respondent averred that he did not enter into a
general partnership with Atty. Pedro Ferrer nor with the other lawyers named
therein. They are only using the aforesaid name to designate a law firm
maintained by lawyers, who although not partners, maintain one office as
well as one clerical and supporting staff. Each one of them handles their own
cases independently and individually receives the revenues therefrom which
are not shared among them.
In the resolution of this Court dated January 27, 1992, this case was referred
to the Integrated Bar of the Philippines (IBP), for investigation, report and
recommendation.
During the investigation conducted by the IBP, it was discovered that
respondent was previously fined by this Court in the amount of P1,000.00 in
connection with G.R. No. 94456 entitled "Milagros Ong Siy vs. Hon. Salvador
Tensuan, et al." for forum shopping, where respondent appeared as counsel
for petitioner Milagros Ong Siy "through the law firm of Cedo Ferrer Maynigo
and Associates."
The IBP further found that the charges herein against respondent were fully
substantiated. Respondent's averment that the law firm handling the case of
the Almeda spouses is not a partnership deserves scant consideration in the
light of the attestation of complainant's counsel, Atty. Pedro Singson, that in
one of the hearings of the Almeda spouses' case, respondent attended the
same with his partner Atty. Ferrer, and although he did not enter his
appearance, he was practically dictating to Atty. Ferrer what to say and argue
before the court. Furthermore, during the hearing of the application for a writ
of injunction in the same case, respondent impliedly admitted being the
partner of Atty. Ferrer, when it was made of record that respondent was
working in the same office as Atty. Ferrer.
Moreover, the IBP noted that assuming the alleged set-up of the firm is true,
it is in itself a violation of the Code of Professional Responsibility (Rule 15.02)
since the client’s secrets and confidential records and information are
exposed to the other lawyers and staff members at all times.
From the foregoing, the IBP found a deliberate intent on the part of
respondent to devise ways and means to attract as clients former borrowers
of complainant bank since he was in the best position to see the legal
weaknesses of his former employer, a convincing factor for the said clients
to seek his professional service. In sum, the IBP saw a deliberate sacrifice
by respondent of his ethics in consideration of the money he expected to
earn.
The IBP thus recommended the suspension of respondent from the practice
of law for 3 years.
The records show that after the Board of Governors of the IBP had, on
October 4, 1994, submitted to this Court its Report and recommendation in
PINEDAPCGRNMAN
this case, respondent filed a Motion for Reconsideration dated October 25,
1994 of the recommendation contained in the said Report with the IBP Board
of Governors. On December 12, 1994, respondent also filed another "Motion
to Set Hearing" before this Court, the aforesaid Motion for Reconsideration.
In resolving this case, the Court took into consideration the aforesaid
pleadings.
In addition to the findings of the IBP, this Court finds this occasion appropriate
to emphasize the paramount importance of avoiding the representation of
conflicting interests. In the similar case of Pasay Law and Conscience Union,
Inc. vs. Paz, (95 SCRA 24 [1980]) where a former Legal Officer and Legal
Prosecutor of PARGO who participated in the investigation of the Anti-Graft
case against Mayor Pablo Cuneta later on acted as counsel for the said
Mayor in the same anti-graft case, this Court, citing Nombrado vs. Hernandez
(26 SCRA 13 119681) ruled:
The Solicitor General is of the opinion, and we find no reason to disagree
with him, that even if respondent did not use against his client any information
or evidence acquired by him as counsel it cannot be denied that he did
become privy to information regarding the ownership of the parcel of land
which was later litigated in the forcible entry case, for it was the dispute over
the land that triggered the mauling incident which gave rise to the criminal
action for physical injuries. This Court's remarks in Hilado vs. David, 84 Phil.
571, are apropos:
"Communications between attorney and client are, in a great number of
litigations, a complicated affair, consisting of entangled relevant and
irrelevant, secret and well-known facts. In the complexity of what is said in
the course of dealings between an attorney and client, inquiry of the nature
suggested would lead to the revelation, in advance of the trial, of other
matters that might only further prejudice the complainant's cause."
Whatever may be said as to whether or not respondent utilized against his
former client information given to him in a professional capacity, the mere
fact of their previous relationship should have precluded him from appearing
as counsel for the other side in the forcible entry case. In the case ofHilado
vs. David, supra, this Tribunal further said:
Hence the necessity of setting the existence of the bare relationship of
attorney and client as the yardstick for testing incompatibility of interests. This
stern rule is designed not alone to prevent the dishonest practitioner from
fraudulent conduct, but as well to protect the honest lawyer from unfounded
suspicion of unprofessional practice. . . . It is founded on principles of public
policy, of good taste. As has been said in another case, the question is not
necessarily one of the rights of the parties, but as to whether the attorney has
adhered to proper professional standard. With these thoughts in mind, it
behooves attorney, like Caesar's wife, not only to keep inviolate the client's
confidence, but also to avoid the appearance of treachery and double
dealing. Only thus can litigants. be encouraged to entrust their secrets to their
attorneys which is of paramount importance in the administration of justice.
The foregoing disquisition on conflicting interest applies with equal force and
effect to respondent in the case at bar. Having been an executive of
complainant bank, respondent now seeks to litigate as counsel for the
opposite side, a case against his former employer involving a transaction
which he formerly handled while still an employee of complainant, in violation
of Canon 6 of the Canons of Professional Ethics on adverse influence and
conflicting interests, to wit:
It is unprofessional to represent conflicting interests, except by express
conflicting consent of all concerned given after a full disclosure of the facts.
Within the meaning of this canon, a lawyer represents conflicting interest
when, in behalf on one client, it is his duty to contend for that which duty to
another client requires him to oppose.
ACCORDINGLY, this Court resolves to SUSPEND respondent ATTY.
TELESFORO S. CEDO from the practice of law for THREE (3) YEARS,
effective immediately.
Let copies of this resolution be furnished the Integrated Bar of the Philippines
and all courts in Metro Manila.
SO ORDERED.
THE LAWYER AND THE LEGAL PROFESSION
CANON 7 – A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
Page 107
AND DIGNITY OF THE LEGAL PROFESSION, AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR.
LEGAL ETHICS PINEDAPCGRNMAN
A.M. No. 491 October 6, 1989 What the Court viewed with considerable concern was the reported
IN THE MATTER OF THE INQUIRY INTO THE 1989 ELECTIONS OF THE electioneering and extravagance that characterized the campaign conducted
INTEGRATED BAR OF THE PHILIPPINES. by the three candidates for president of the IBP.
I. MEDIA ACCOUNT OF THE ELECTION CAMPAIGN.
PER CURIAM: Emil Jurado, in his column "IBP Group Questions Drilon Election" (Manila
In the election of the national officers of the Integrated Bar of the Philippines Standard, Sunday, June 17, 1989), Luis Mauricio, in two successive
(hereafter "IBP") held on June 3, 1989 at the Philippine International columns: "The Invertebrated Bar" (Malaya, June 10, 1989) and "The
Convention Center (or PICC), the following were elected by the House of Disintegrating Bar" (Malaya, June 20, 1989), and Teodoro Locsin Jr. in an
Delegates (composed of 120 chapter presidents or their alternates) and article, entitled "Pam-Pam" (The Philippines Free Press, July 8,1989), and
proclaimed as officers: the editorial, entitled 'Wrong Forum" of the Daily Globe (June 8, 1989), were
unanimously critical of the "vote-buying and pressure tactics" allegedly
NAME POSITION
employed in the campaign by the three principal candidates: Attys. Violeta C.
Drilon, Nereo Paculdo and Ramon Nisce who reportedly "poured heart, soul,
Atty. Violeta Drilon President money and influence to win over the 120 IBP delegates."
Mr. Jurado mentioned the resentment of Atty. Drilon's rivals who felt at a
Atty. Bella Tiro Executive Vice-President disadvantage because Atty. Drilon allegedly used PNB helicopters to visit far-
flung IBP chapters on the pretext of distributing Bigay Puso donations, and
Atty. Salvador Lao Chairman, House of Delegates she had the added advantage of having regional directors and labor arbiters
of the Department of Labor and Employment (who had been granted leaves
Atty. Renato F. Ronquillo Secretary, House of Delegates of absence by her husband, the Labor Secretary) campaigning for her.
Jurado's informants alleged that there was rampant vote-buying by some
Atty. Teodoro Quicoy Treasurer, House of Delegates members of the U.P. Sigma Rho Fraternity (Secretary Drilon's fraternity), as
well as by some lawyers of ACCRA (Angara, Concepcion, Cruz, Regala and
Atty. Oscar Badelles Sergeant at Arms, House of Delegates Abello Law Office) where Mrs. Drilon is employed, and that government
positions were promised to others by the office of the Labor Secretary.
Atty. Justiniano Cortes Governor & Vice-President for Northern Mr. Mauricio in his column wrote about the same matters and, in addition,
Luzon mentioned "talk of personnel of the Department of Labor, especially
conciliators and employers, notably Chinese Filipinos, giving aid and comfort
Atty. Ciriaco Atienza Governor & Vice-President for Central Luzon to her (Atty. Drilon's) candidacy," the billeting of out-of-town delegates in
plush hotels where they were reportedly "wined and dined continuously,
Atty. Mario Jalandoni Governor & Vice-President for Metro Manila womened and subjected to endless haggling over the price of their votes x x
x" which allegedly "ranged from Pl5,000 to P20,000, and, on the day of the
Atty. Jose Aguilar Governor & Vice-President for Southern election, some twelve to twenty votes which were believed crucial,
Grapilon Luzon appreciated to P50,000."
In his second column, Mr. Mauricio mentioned "how a top official of the
Atty. Teodoro Almine Governor & Vice-President for Bicolandia judiciary allegedly involved himself in IBP politics on election day by closeting
himself with campaigners as they plotted their election strategy in a room of
Atty. Porfirio Siyangco Governor & Vice-President for Eastern the PICC (the Philippine International Convention Center where the
Visayas convention/election were held) during a recess x x x."
Mr. Locsin in his column and editorial substantially re-echoed Mauricio's
reports with some embellishments.
Atty. Ricardo Teruel Governor & Vice-President for Western
II. THE COURT'S DECISION TO INVESTIGATE.
Visayas
Responding to the critical reports, the Court, in its en banc resolution dated
June 15, 1989, directed the outgoing and incoming members of the IBP
Atty. Gladys Tiongco Governor & Vice-President for Eastern Board of Governors, the principal officers and Chairman of the House of
Mindanao Delegates to appear before it on Tuesday, June 20, 1989, at 2:00 o'clock
p.m., and there to inform the Court on the veracity of the aforementioned
Atty. Simeon Governor & Vice-President for Western reports and to recommend, for the consideration of the Court, appropriate
Datumanong Mindanao approaches to the problem of confirming and strengthening adherence to the
The newly-elected officers were set to take the their oath of office on July fundamental principles of the IBP.
4,1989, before the Supreme Court en banc. However,disturbed by the In that resolution the Court "call[ed] to mind that a basic postulate of the
widespread reports received by some members of the Court from lawyers Integrated Bar of the Philippines (IBP), heavily stressed at the time of its
who had witnessed or participated in the proceedings and the adverse organization and commencement of existence, is that the IBP shall be non-
comments published in the columns of some newspapers about the intensive political in character and that there shall be no lobbying nor campaigning in
electioneering and overspending by the candidates, led by the main the choice of members of the Board of Governors and of the House of
protagonists for the office of president of the association, namely, Attorneys Delegates, and of the IBP officers, national, or regional, or chapter. The
Nereo Paculdo, Ramon Nisce, and Violeta C. Drilon, the alleged use of fundamental assumption was that officers, delegates and governors would
government planes, and the officious intervention of certain public officials to be chosen on the basis of professional merit and willingness and ability to
influence the voting, all of which were done in violation of the IBP By-Laws serve."
which prohibit such activities. The Supreme Court en banc, exercising its The resolution went on to say that the "Court is deeply disturbed to note that
power of supervision over the Integrated Bar, resolved to suspend the oath- in connection with the election of members of the Board of Governors and of
taking of the IBP officers-elect and to inquire into the veracity of the reports. the House of Delegates, there is a widespread belief, based on reports
It should be stated at the outset that the election process itself (i.e. the voting carried by media and transmitted as well by word of mouth, that there was
and the canvassing of votes on June 3, 1989) which was conducted by the extensive and intensive campaigning by candidates for IBP positions as well
"IBP Comelec," headed by Justice Reynato Puno of the Court of Appeals, as expenditure of considerable sums of money by candidates, including vote-
was unanimously adjudged by the participants and observers to be above buying, direct or indirect."
board. For Justice Puno took it upon himself to device safeguards to prevent The venerable retired Supreme Court Justice and IBP President Emeritus,
Page 108

tampering with, and marking of, the ballots. Jose B.L. Reyes, attended the dialogue, upon invitation of the Court, to give
counsel and advice. The meeting between the Court en banc on the one
hand, and the outgoing and in coming IBP officers on the other, was an
LEGAL ETHICS
informal one. Thereafter, the Court resolved to conduct a formal inquiry to
determine whether the prohibited acts and activities enumerated in the IBP
By-Laws were committed before and during the 1989 elections of IBP's
national officers.
The Court en banc formed a committee and designated Senior Associate
Justice Andres R. Narvasa, as Chairman, and Associate Justices Teodoro
R. Padilla, Emilio A. Gancayco, Abraham F. Sarmiento, and Carolina C.
Griño-Aquino, as members, to conduct the inquiry. The Clerk of Court, Atty.
Daniel Martinez, acted as the committee's Recording Secretary.
A total of forty-nine (49) witnesses appeared and testified in response to
subpoenas issued by the Court to shed light on the conduct of the elections.
The managers of three five-star hotels the Philippine Plaza, the Hyatt, and
the Holiday Inn where the three protagonists (Drilon, Nisce and Paculdo)
allegedly set up their respective headquarters and where they billeted their
supporters were summoned. The officer of the Philippine National Bank and
the Air Transport Office were called to enlighten the Court on the charge that
an IBP presidential candidate and the members of her slate used PNB planes
to ferry them to distant places in their campaign to win the votes of delegates.
The Philippine Airlines officials were called to testify on the charge that some
candidates gave free air fares to delegates to the convention. Officials of the
Labor Department were also called to enable the Court to ascertain the truth
of the reports that labor officials openly campaigned or worked for the election
of Atty. Drilon.
The newspaper columnists, Messrs. Luis Mauricio, Jesus Bigornia and Emil
Jurado were subpoenaed to determine the nature of their sources of
information relative to the IBP elections. Their stories were based, they said,
on letters, phone calls and personal interviews with persons who claimed to
have knowledge of the facts, but whom they, invoking the Press Freedom
Law, refused to identify.
The Committee has since submitted its Report after receiving, and analyzing
and assessing evidence given by such persons as were perceived to have
direct and personal knowledge of the relevant facts; and the Court, after
deliberating thereon, has Resolved to accept and adopt the same.
III. PROHIBITED ACTS AND PRACTICES UNDER IBP BY-LAWS.
Article I, Section 4 of the IBP By-Laws emphasizes the "strictly non-political"
character of the Integrated Bar of the Philippines, thus:
"SEC. 4. Non-political Bar. — The Integrated Bar is strictly non-political, and
every activity tending to impair this basic feature is strictly prohibited and shall
be penalized accordingly. No lawyer holding an elective, judicial, quasi-
PINEDAPCGRNMAN
Section 12(d) of the By-Laws prescribes sanctions for violations of the above
rules:
(d) Any violation of the rules governing elections or commission of any of the
prohibited acts and practices defined in Section 14 prohibited Acts and
Practices relative to elections) of the by-laws of the Integrated Bar shall be a
ground for the disqualification of a candidate or his removal from office if
elected, without prejudice to the imposition of sanctions upon any erring
member pursuant to the By-laws of the Integrated Bar.
At the formal investigation which was conducted by the investigating
committee, the following violations were established:
(1) Prohibited campaigning and solicitation of votes by the candidates for
president, executive vice-president, the officers of candidate the House of
Delegates and Board of Governors.
The three candidates for IBP President Drilon, Nisce and Paculdo began
travelling around the country to solicit the votes of delegates as early as April
1989. Upon the invitation of IBP President, Leon Garcia, Jr. (t.s.n., July
13,1989, p. 4), they attended the Bench and Bar dialogues held in Cotabato
in April 1989 (t.s.n., June 29, 1989, p. 123), in Tagaytay City, Pampanga, and
in Baguio City (during the conference of chapter presidents of Northern
Luzon (t.s.n., July 3,1989, p. 113; t.s.n., July 10, p. 41; t.s.n., July 13, p. 47)
where they announced their candidacies and met the chapter presidents.
Atty. Nisce admitted that he went around the country seeking the help of IBP
chapter officers, soliciting their votes, and securing their written
endorsements. He personally hand-carried nomination forms and requested
the chapter presidents and delegates to fill up and sign the forms to formalize
their commitment to his nomination for IBP President. He started
campaigning and distributing the nomination forms in March 1989 after the
chapter elections which determined the membership of the House of
Delegates composed of the 120 chapter presidents (t.s.n., June 29, 1989,
pp. 82-86). He obtained forty (40) commitments. He submitted photocopies
of his nomination forms which read:
"Nomination Form
I Join in Nominating
RAMON M. NISCE
as
National President of the
Integrated Bar of the Philippines

judicial, or prosecutory office in the Government or any political subdivision

or instrumentality thereof shall be eligible for election or appointment to any offered or promised to any person."
position in the Integrated Bar or any Chapter thereof. A Delegate, Governor,
officer or employee of the Integrated Bar, or an officer or employee of any
Chapter thereof shall be considered ipso facto resigned from his position as
of the moment he files his certificate of candidacy for any elective public office
or accepts appointment to any judicial, quasi-judicial, or prosecutory office in
the Government or any political subdivision or instrumentality thereof. "'
Section 14 of the same By-Laws enumerates the prohibited acts relative to
IBP elections:
SEC. 14. Prohibited acts and practices relative to elections. — The following
acts and practices relative to election are prohibited, whether committed by
a candidate for any elective office in the Integrated Bar or by any other
member, directly or indirectly, in any form or manner, by himself or through
another person:
(a) Distribution, except on election day, of election campaign material;
(b) Distribution, on election day, of election campaign material other than a
statement of the biodata of a candidate on not more than one page of a legal-
size sheet of paper; or causing distribution of such statement to be done by
persons other than those authorized by the officer presiding at the elections;
(c) Campaigning for or against any candidate, while holding an elective,
judicial, quasi-judicial or prosecutory office in the Government or any political
subdivision, agency or instrumentality thereof;
(d) Formation of tickets, single slates, or combinations of candidates, as well
as the advertisement thereof;
(e) For the purpose of inducing or influencing a member to withhold his vote,
or to vote for or against a candidate, (1) payment of the dues or other
indebtedness of any member; (2) giving of food, drink, entertainment,
transportation or any article of value, or any similar consideration to any
person; or (3) making a promise or causing an expenditure to be made,
LEGAL ETHICS PINEDAPCGRNMAN
Chapter Signature"
Among those who signed the nomination forms were: Onofre P. Tejada,
Candido P. Balbin, Jr., Conizado V. Posadas, Quirico L. Quirico Ernesto
S. Salun-at, Gloria C. Agunos, Oscar B. Bernardo, Feliciano F. Wycoco,
Amor
L. Ibarra, Jose M. Atienza, Jose N. Contreras, Romeo T. Mendoza, Leo
C. Medialdea, Jr., Paulino G. Clarin, Julius Z. Neil, Roem J. Arbolado
Democrito
M. Perez, Abelardo Fermin, Diosdado B. Villarin, Jr., Daniel C.
Macaraeg, Confesor R. Sansano Dionisio E. Bala, Jr., Emesto A.
Amores, Romeo V. Pefianco, Augurio C. Pamintuan, Atlee T. Viray,
Ceferino C. Cabanas, Jose
S. Buban, Diosdado Z. Reloj, Jr., Cesar C. Viola, Oscar C. Fernandez,
Ricardo B. Teruel Rodrigo R. Flores, Sixto Marella, Jr., Arsenio C.
Villalon, Renato F. Ronquillo, Antonio G. Nalapo Romualdo A. Din Jr.,
Jose P. Icaonapo Jr., and Manuel S. Person.
Atty. Nisce admitted that he reserved rooms at the Hyatt Hotel based on
the commitments he had obtained (t.s.n., June 29, 1989, pp. 82-85).
Unfortunately, despite those formal commitments, he obtained only 14
votes in the election (t.s.n., June 29, 1 989, p. 86). The reason, he said,
is that. some of those who had committed their votes to him were
"manipulated, intimidated, pressured, or remunerated" (t.s.n., June
29,1989, pp. 8695; Exhibit "M-4-Nisce," t.s.n., July 4, 1989, pp. 100-1
04).
(2) Use of PNB plane in the campaign.
The records of the Philippine National Bank (Exhibit C-1-Crudo and
Exhibit C-2-Crudo) show that Secretary Fulgencio S. Factoran, Jr. of the
Department of Environment & Natural Resources (DENR) borrowed a
plane from the Philippine National Bank for his Bicol CORD (Cabinet
Officers for Regional Development) Assistant, Undersecretary Antonio
Tria. The plane manifest (Exh. C-2-Crudo) listed Atty. Violeta Drilon,

Page 109
Arturo Tusi (Tiu), Assistant Secretary for Environment and Natural
Resources (DENR) Tony Tria, Atty. Gladys Tiongco, and Amy Wong.
Except for Tony Tria, the rest of the passengers were IBP candidates.
LEGAL ETHICS
Atty. Drilon admitted that she "hitched" a ride on a PNB plane. She said that
she was informed by Atty. Tiu about the availability of a PNB plane (t.s.n.,
July 3,1989, pp. 116-118).
Atty. Tiu, who ran for the position of IBP executive vice-president in the Drilon
ticket, testified that sometime in May 1989 he failed to obtain booking from
the Philippine Airlines for the projected trip of his group to Bicol. He went to
the DENR allegedly to follow up some papers for a client. While at the DENR,
he learned that Assistant Secretary Tria was going on an official business in
Bicol for Secretary Fulgencio Factoran and that he would be taking a PNB
plane. As Assistant Secretary Tria is his fraternity brother, he asked if he,
together with the Drilon group, could hitch a ride on the plane to Bicol. His
request was granted. Their purpose in going to Bicol was to assess their
chances in the IBP elections. The Drilon company talked with the IBP chapter
presidents in Daet, Naga, and Legaspi, and asked for their support (t.s.n.,
July 10, 1989, pp. 549).
Assistant Secretary Antonio S. Tria confirmed the use of a PNB plane by Atty.
Drilon and her group. He recalled that on May 23,1989, DENR Secretary
Factoran instructed him to go to Bicol to monitor certain regional
development projects there and to survey the effect of the typhoon that hit
the region in the middle of May. On the same day, Atty. Tiu, a fraternity
brother (meaning that Tiu belongs to the Sigma Rho fraternity) went to the
DENR office and requested the Secretary (Factoran) if he (Tiu) could be
allowed to hitch a ride on the plane. Assistant Secretary Tria, together with
the Drilon group which included Attorneys Drilon, Grapilon, Amy Wong,
Gladys Tiongco, and Tiu, took off at the Domestic Airport bound for Naga,
Daet and Legaspi. In Legaspi the Drilon group had lunch with Atty. Vicente
Real, Jr., an IBP chapter president (t.s.n., July 10, 1989, pp. 54-69).
(3) Formation of tickets and single slates.
The three candidates, Paculdo, Nisce and Drilon, admitted having formed
their own slates for the election of IBP national officers on June 3, 1989.
Atty. Paculdo's slate consisted of — himself for President; Bella D. Tiro, for
Executive Vice-President; and for Governors: Justiniano P. Cortez (Northern
Luzon), Oscar C. Fernandez (Central Luzon), Mario C.V. Jalandoni (Greater
Manila), Petronilo A. de la Cruz (Southern Luzon), Teodorico C. Almine, Jr.
(Bicolandia), Ricardo B. Teruel (Western Visayas), Porfirio P. Siyangco
(Eastern Visayas), Jesus S. Anonat (Western Mindanao), Guerrero A.
Adaza, Jr. (Eastern Mindanao) (Exhibit M-Nisce).
The Drilon ticket consisted of. Violeta C. Drilon for President, Arturo Tiu for
Executive Vice President, Salvador Lao for Chairman of the House of
Delegates, and, for Governors: Basil Rupisan (Northern 'Luzon), Acong
Atienza (Central Luzon), Amy Wong (Metro Manila), Jose Grapilon (Southern
Tagalog), Teodoro Almine (Bicolandia), Baldomero Estenzo (Eastern
Visayas), Joelito Barrera (Western Visayas), Gladys Tiongco (Eastern
Mindanao), Simeon Datumanong (Western Mindanao) (Exhibit M-1-Nisce).
Atty. Ramon N. Nisce's line-up listed himself and Confessor B. Sansano
Benjamin B. Bernardino, Antonio L. Nalapo Renato F. Ronquillo, Gloria C.
Agunos, Mario Valderrama, Candido P. Balbin Jr., Oscar C. Fernandez,
Cesar G. Viola, Leo C. Medialdea, Jr., Vicente P. Tordilla, Jr., Jose S. Buban,
Joel A. Llosa, Jesus T. Albacite and Oscar V. Badelles.
(4) Giving free transportation to out-of-town delegates and alternates.
Atty. Nisce admitted having bought plane tickets for some delegates to the
convention. He mentioned Oscar Badelles to whom he gave four round-trip
tickets (worth about P10,000) from Iligan City to Manila and back. Badelles
was a voting delegate. Nisce, however, failed to get a written commitment
from him because Atty. Medialdea assured him (Nisce) "sigurado na 'yan,
h'wag mo nang papirmahin." Badelles won as sergeant-at-arms, not in
Nisce's ticket, but in that of Drilon.
Badelles admitted that Nisce sent him three airplane tickets, but he Badelles
said that he did not use them, because if he did, he would be committed to
Nisce, and he Badelles did not want to be committed (t.s.n., July 4,1989, pp.
77-79, 95-96).
Nisce also sent a plane ticket to Atty. Atilano, who was his candidate, and
another ticket to Mrs. Linda Lim of Zamboanga. Records of the Philippine
Airlines showed that Atty. Nisce paid for the plane tickets of Vicente Real, Jr.
(Exh. D-1-Calica), Romeo Fortes (Exh. D-1-Calica), Cesar Batica (Exh. D-2-
Calica), Jose Buban of Leyte (Exh. D-2-Calica), Delsanto Resuello (Exh. D-
3- Calica), and Ceferino Cabanas (Exh. D-3-Calica).
In spite of his efforts and expense, only one of Nisce's candidates won:
Renato Ronquillo of Manila 4, as Secretary of the House of Delegates (t.s.n.
July 3, p. 161).
PINEDAPCGRNMAN
(5) Giving free hotel accommodations, food, drinks, entertainment to
delegates.
(a) ATTY. NEREO PACULDO
Atty. Paculdo alleged that he booked 24 regular rooms and three suites at
the Holiday Inn, which served as his headquarters. The 24 rooms were to be
occupied by his staff (mostly ladies) and the IBP delegates. The three suites
were to be occupied by himself, the officers of the Capitol Bar Association,
and Atty. Mario Jalandoni. He paid P150,000 for the hotel bills of his
delegates at the Holiday Inn, where a room cost P990 per day with breakfast.
Those listed as guests of Atty. Paculdo at the Holiday Inn were: Emesto C.
Perez, Tolomeo Ligutan Judge Alfonso Combong, Ricardo Caliwag, Antonio
Bisnar, Benedicto Balajadia, Jesus Castro, Restituto Villanueva, Serapio
Cribe Juanita Subia, Teodorico J. Almine, Rudy Gumban, Roem Arbolado,
Ricardo Teruel, Shirley Moises, Ramon Roco, Alberto Trinidad, Teodoro
Quicoy Manito Lucero, Fred Cledera Vicente Tordilla, Julian Ocampo,
Francisco Felizmenio Marvel Clavecilla, Amador Capiral, Eufronio Maristela,
Porfirio Siyangco, William Llanes, Jr., Marciano Neri, Guerrero Adaza,
Diosdado Peralta, Luis C. Formilleza, Jr., Democrito Perez, Bruno Flores,
Dennis Rendon, Judge Ceferino Chan, Mario Jalandoni, Kenneth Siruelo
Bella Tiro, Antonio Santos, Tiburcio Edano James Tan, Cesilo A. Adaza,
Francisco Roxas, Angelita Gacutan, Jesse Pimentel, Judge Jaime Hamoy,
Jesus Anonat, Carlos Egay, Judge Carlito Eisma, Judge Jesus Carbon,
Joven Zach, and Benjamin Padon.
Noel de Guzman, Holiday Inn's credit manager, testified that Atty. Paculdo
booked 52 (not 24) rooms, including the presidential suite, which was used
as the Secretariat. The group bookings were made by Atty. Gloria Paculdo,
the wife of Nereo Paculdo (t.s.n. June 28, 1989, pp. 63-68). The total sum of
P227,114.89 was paid to Holiday Inn for the use of the rooms.
(b) ATTY. VIOLETA C. DRILON
The delegates and supporters of Atty. Drilon were billeted at the Philippine
Plaza Hotel where her campaign manager, Atty. Renato Callanta, booked 40
rooms, 5 of which were suites. According to Ms. Villanueva, Philippine Plaza
banquet and conventions manager, the contract that Atty. Callanta signed
with the Philippine Plaza was made in the name of the "IBP c/o Atty.
Callanta."
Mrs. Lourdes Juco, a sales manager of the Philippine Plaza, recalled that it
was Mr. Mariano Benedicto who first came to book rooms for the IBP
delegates. She suggested that he obtain a group (or discounted) rate. He
gave her the name of Atty. Callanta who would make the arrangements with
her. Mr. Benedicto turned out to be the Assistant Secretary of the Department
of Labor and Employment (DOLE).
The total sum of P316,411.53 was paid by Atty. Callanta for the rooms, food,
and beverages consumed by the Drilon group, with an unpaid balance of
P302,197.30. Per Attorney Daniel Martinez's last telephone conversation
with Ms. Villanueva, Atty. Callanta still has an outstanding account of
P232,782.65 at Philippine Plaza.
Atty. Callanta admitted that he signed the contract for 40 rooms at the
Philippine Plaza. He made a downpayment of P123,000. His "working sheet'
showed that the following persons contributed for that down payment:
(a) Nilo Pena (Quasha Law Office) P 25,000
(b) Antonio Carpio 20,000
(c) Toto Ferrer (Carpio Law Office) 10,000
(d) Jay Castro 10,000
(e) Danny Deen 20,000
(f) Angangco Tan (Angara Law Office) 10,000
(g) Alfonso Reyno 20,000
(h) Cosme Rossel 15,300
(t.s.n. July 4, 1 989, pp. 3-4)
Atty. Callanta explained that the above listed persons have been contributing
Page 110
money every time the IBP embarks on a project. This time, they contributed
LEGAL ETHICS
so that their partners or associates could attend the legal aid seminar and
the IBP convention too.
Atty. Drilon alleged that she did not know that Atty. Callanta had billeted her
delegates at the Philippine Plaza. She allegedly did not also know in whose
name the room she occupied was registered. But she did ask for a room
where she could rest during the convention. She admitted, however, that she
paid for her hotel room and meals to Atty. Callanta, through Atty. Loanzon
(t.s.n. July 3,1989).
The following were listed as having occupied the rooms reserved by Atty.
Callanta at the Philippine Plaza: Violeta Drilon, Victoria A. Verciles, Victoria
C. Loanzon, Leopoldo A. Consulto Ador Lao, Victoria Borra, Aimee Wong,
Callanta, Pena, Tiu, Gallardo, Acong Atienza, D. Bernardo, Amores, Silao
Caingat, Manuel Yuson, Simeon Datumanong, Manuel Pecson, Sixto
Marella, Joselito Barrera, Radon Macalalag, Oscar Badelles, Antonio
Acyatan, Ildefonso C. Puerto, Nestor Atienza, Gil Batula Array Corot,
Dimakuta Corot Romeo Fortes Irving Petilla, Teodoro Palma, Gil Palma,
Danilo Deen, Delsanto, Resuello, Araneta, Vicente Real, Sylvio Casuncad
Espina, Guerrero, Julius Neri, Linda Lim, Ben Lim, C. Batica, Luis Formilleza,
Felix Macalag Mariano Benedicto, Atilano, Araneta, Renato Callanta.
Atty. Nilo Pena admitted that the Quasha Law Office of which he is a senior
partner, gave P25,000 to Callanta for rooms at the Philippine Plaza so that
some members of his law firm could campaign for the Drilon group (t.s.n. July
5,1989, pp. 7678) during the legal aid seminar and the IBP convention. Most
of the members of his law firm are fraternity brothers of Secretary Drilon
(meaning, members of the Sigma Rho Fraternity). He admitted being
sympathetic to the candidacy of Atty. Drilon and the members of her slate,
two of whom Jose Grapilon and Simeon Datumanong — are Sigma Rhoans.
They consider Atty. Drilon as a "sigma rho sister," her husband being a sigma
rhoan.
Atty. Antonio Carpio, also a Sigma Rhoan, reserved a room for the members
of his own firm who attended the legal aid seminar and the convention. He
made the reservation through Atty. Callanta to whom he paid P20,000 (t.s.n.
July 6,1989, pp. 30-34).
Atty. Carpio assisted Atty. Drilon in her campaign during the convention, by
soliciting the votes of delegates he knew, like Atty. Albacite his former teacher
(but the latter was already committed to Nisce), and Atty. Romy Fortes, a
classmate of his in the U.P. College of Law (t. t.s.n. July 6, 1989, pp. 22, 29,
39).
(c) ATTY. RAMON NISCE.
Atty. Nisce, through his brother-in-law, Ricardo Paras, entered into a contract
with the Hyatt Hotel for a total of 29 rooms plus one (1) seventh-floor room.
He made a downpayment of P20,000 (t.s.n. June 28, 1989, p. 58) on April
20, 1989, and P37,632.45 on May 10, or a total of P57,632.45.
Ms. Cecile Flores, Ms. Milagros Ocampo, and Mr. Ramon Jacinto, the sales
department manager, credit manager, and reservation manager, respectively
of the Hyatt, testified that Atty. Nisce's bill amounted to P216,127.74 (t.s.n.
June 28, 1989, pp. 57-58; Exhibits E-Flores, F-Jacinto G-Ocampo).
As earlier mentioned, Atty. Nisce admitted that he reserved rooms for those
who committed themselves to his candidacy.
The hotel guests of Atty. Nisce were: Gloria Agunos Dennis Habanel B.
Batula, John E. Asuncion, Reynaldo Cortes, Lourdes Santos, Elmer Datuin,
Romualdo Din, Antonio Nalapo, Israel Damasco, Candido Balbin, Serrano
Balot, Ibarra, Joel Llosa, Eltanal, Ruperto, Asuncion, Q. Pilotin Reymundo P.
Guzman, Zoilo Aguinaldo, Clarin, R. Ronquillo, Dominador Carillo, Filomeno
Balinas, Ernesto Sabulan, Yusop Pangadapun, A. Viray, Icampo, Abelardo
Fermin, C. Quiaoit, Augurio Pamintuan, Daniel Macaraeg, Onofre Tejada.
(6) Campaigning by labor officials for Atty. Violeta Drilon
In violation of the prohibition against "campaigning for or against a candidate
while holding an elective, judicial, quasi-judicial, or prosecutory office in the
Government' (Sec. 14[c], Art. I, IBP By-Laws), Mariano E. Benedicto II,
Assistant Secretary, Department of Labor and Employment, testified that he
took a leave of absence from his office to attend the IBP convention. He
stayed at the Philippine Plaza with the Drilon group admittedly to give "some
moral assistance" to Atty. Violeta Drilon. He did so because he is a member
of the Sigma Rho Fraternity. When asked about the significance of Sigma
Rho, Secretary Benedicto explained: "More than the husband of Mrs. Drilon
being my boss, the significance there is that the husband is my brother in the
Sigma Rho."
He cheered up Mrs., Drilon when her spirits were low. He talked to her
immediate circle which included Art Tiu, Tony Carpio, Nilo Pena, Amy Wong,
PINEDAPCGRNMAN
Atty. Grapilon, Victor Lazatin, and Boy Reyno. They assessed the progress
of the campaign, and measured the strengths and weaknesses of the other
groups The group had sessions as early as the later part of May.
Room 114, the suite listed in the name of Assistant Secretary Benedicto toted
up a bill of P23,110 during the 2-day IBP convention/election. A total of 113
phone calls (amounting to Pl,356) were recorded as emanating from his
room.
Opposite Room 114, was Room 112, also a suite, listed in the names of Mrs.
Drilon, Gladys Tiongco (candidate for Governor, Eastern Mindanao) and Amy
Wong (candidate for Governor, Metro Manila). These two rooms served as
the "action center' or "war room" where campaign strategies were discussed
before and during the convention. It was in these rooms where the supporters
of the Drilon group, like Attys. Carpio, Callanta, Benedicto, the Quasha and
the ACCRA lawyers met to plot their moves.
(7) Paying the dues or other indebtedness of any number (Sec. 14[e], IBP
BY-Laws).
Atty. Teresita C. Sison, IBP Treasurer, testified that she has heard of
candidates paying the IBP dues of lawyers who promised to vote for or
support them, but she has no way of ascertaining whether it was a candidate
who paid the delinquent dues of another, because the receipts are issued in
the name of the member for whom payment is made (t.s.n. June 28, 1989,
pp. 24-28).
She has noticed, though, that there is an upsurge of payments in March,
April, May during any election year. This year, the collections increased by
P100,000 over that of last year (a non-election year from Pl,413,425 to
Pl,524,875 (t.s.n. June 28, 1989, p. 25).
(8) Distribution of materials other than bio-data of not more than one page of
legal size sheet of paper (Sec. 14[a], IBP By-Laws).
On the convention floor on the day of the election, Atty. Paculdo caused to
be distributed his bio-data and copies of a leaflet entitled "My Quest," as wen
as, the lists of his slate. Attys. Drilon and Nisce similarly distributed their
tickets and bio-data.
The campaign materials of Atty. Paculdo cost from P15,000 to P20,000. They
were printed by his own printing shop.
(9) Causing distribution of such statement to be done by persons other than
those authorized by the officer presiding at the election (Sec. 14[b], IBP By-
Laws).
Atty. Paculdo employed uniformed girls to distribute his campaign materials
on the convention floor. Atty. Carpio noted that there were more campaign
materials distributed at the convention site this year than in previous years.
The election was more heated and expensive (t.s.n. July 6,1989, p. 39).
Atty. Benjamin Bernardino, the incumbent President of the IBP Rizal Chapter,
and a candidate for chairman of the House of Delegates on Nisce's ticket,
testified that campaign materials were distributed during the convention by
girls and by lawyers. He saw members of the ACCRA law firm campaigning
for Atty. Drilon (t.s.n. July 3,1989, pp. 142-145).
(10) Inducing or influencing a member to withhold his vote, or to vote for or
against a candidate (Sec. 14[e], IBP BY-Laws).
Atty. Bernardino disclosed that his cousin, Atty. Romeo Capulong, urged him
to withdraw his candidacy for chairman of the House of Delegates and to run
as vice-chairman in Violy Drilon's slate, but he declined (t.s.n. July 3,1989,
pp. 137, 149).
Atty. Gloria Agunos personnel director of the Hyatt Terraces Hotel in Baguio
and president of the Baguio-Benguet IBP Chapter, recalled that in the third
week of May 1989, after the Tripartite meet of the Department of Labor &
Employment at the Green Valley Country Club in Baguio City, she met Atty.
Drilon, together with two labor officers of Region 1, Attys. Filomeno Balbin
and Atty. Mansala Atty. Drilon solicited her (Atty. Agunos') vote and invited
her to stay at the Philippine Plaza where a room would be available for her.
Atty. Paculdo also tried to enlist her support during the chapter presidents'
meeting to choose their nominee for governor for the Northern Luzon region
(t.s.n. July 13,1989, pp. 43-54).
Atty. Nisce testified that a Manila Chapter 4 delegate, Marcial Magsino, who
had earlier committed his vote to Nisce changed his mind when he was
offered a judgeship (This statement, however, is admittedly hearsay). When
Nisce confronted Magsino about the alleged offer, the latter denied that there
was such an offer. Nisce's informant was Antonio G. Nalapo an IBP
Page 111
candidate who also withdrew.
Another Nisce candidate, Cesar Viola, withdrew from the race and refused to
be nominated (t.s.n. June 29, 1989, p. 104). Vicente P. Tordilla who was
LEGAL ETHICS
Nisce's candidate for Governor became Paculdo's candidate instead (t.s.n.
June 29, 1989, p. 104).
Nisce recalled that during the Bench and Bar Dialogue in Cotabato City,
Court Administrator Tiro went around saying, "I am not campaigning, but my
wife is a candidate." Nisce said that the presidents of several IBP chapters
informed him that labor officials were campaigning for Mrs. Drilon (t.s.n. June
29,1989, pp. 109-110). He mentioned Ciony de la Cerna, who allegedly
campaigned in La Union (t.s.n. June 29,1989,p.111)
Atty. Joel A. Llosa, Nisce's supporter and candidate for governor of the
Western Visayas, expressed his disappointment over the IBP elections
because some delegates flip-flopped from one camp to another. He testified
that when he arrived at the Manila Domestic Airport he was met by an
assistant regional director of the DOLE who offered to bring him to the
Philippine Plaza, but he declined the offer. During the legal aid seminar, Atty.
Drilon invited him to transfer to the Philippine Plaza where a room had been
reserved for him. He declined the invitation (t.s.n. July 4,1989, pp. 102-106).
Atty. Llosa said that while he was still in Dumaguete City, he already knew
that the three candidates had their headquarters in separate hotels: Paculdo,
at the Holiday Inn; Drilon, at the Philippine Plaza; and Nisce, at the Hyatt. He
knew about this because a week before the elections, representatives of Atty.
Drilon went to Dumaguete City to campaign. He mentioned Atty. Rodil
Montebon of the ACCRA Law Office, accompanied by Atty. Julve the
Assistant Regional Director of the Department of Labor in Dumaguete City.
These two, he said, offered to give him two PAL tickets and accommodations
at the Philippine Plaza (t.s.n. July 4,1989, pp. 101-104). But he declined the
offer because he was already committed to Atty. Nisce.
Atty. Llosa also revealed that before he left for Manila on May 31, 1989, a
businessman, Henry Dy, approached him to convince him to vote for Atty.
Paculdo. But Llosa told Dy that he was already committed to Nisce.
He did not receive any plane tickets from Atty. Nisce because he and his two
companions (Atty. Eltanal and Atty. Ruperto) had earlier bought their own
tickets for Manila (t.s.n. July 4, 1989, p. 101).
SUMMARY OF CAMPAIGN EXPENSES INCURRED
BY THE CANDIDATES
Atty. Paculdo admitted having spent some P250,000 during his three weeks
of campaigning. Of this amount, the Capitol Bar Association (of which he was
the chapter president) contributed about P150,000. The Capitol Bar
Association is a voluntary bar association composed of Quezon City lawyers.
He spent about P100,000 to defray the expenses of his trips to the provinces
(Bicol provinces, Pampanga, Abra, Mountain Province and Bulacan) (t.s.n.
June 29,1989, pp. 9-14).
Atty. Nisce's hotel bills at the Hyatt amounted to P216,127.74. This does not
include the expenses for his campaign which began several months before
the June 3rd election, and his purchases of airplane tickets for some
delegates.
The records of the Philippine Plaza Hotel, headquarters of Atty. Drilon's
camp, showed that her campaign rang up over P600,000 in hotel bills. Atty.
Callanta paid P316,411.53 for the rooms, food, and beverage consumed by
Atty. Drilon's supporters, but still left an unpaid bill of P302,197.30 at
convention's end.
FINDINGS.
From all the foregoing, it is evident that the manner in which the principal
candidates for the national positions in the Integrated Bar conducted their
campaign preparatory to the elections on June 3, 1989, violated Section 14
of the IBP By-Laws and made a travesty of the idea of a "strictly non-political"
Integrated Bar enshrined in Section 4 of the By-Laws.
The setting up of campaign headquarters by the three principal candidates
(Drilon, Nisce and Paculdo) in five-star hotels: The Philippine Plaza, the
Holiday Inn and The Hyatt the better for them to corral and entertain the
delegates billeted therein; the island hopping to solicit the votes of the chapter
presidents who comprise the 120-member House of Delegates that elects
the national officers and regional governors; the formation of tickets, slates,
or line-ups of candidates for the other elective positions aligned with, or
supporting, either Drilon, Paculdo or Nisce; the procurement of written
commitments and the distribution of nomination forms to be filled up by the
delegates; the reservation of rooms for delegates in three big hotels, at the
expense of the presidential candidates; the use of a PNB plane by Drilon and
some members of her ticket to enable them to "assess their chances" among
the chapter presidents in the Bicol provinces; the printing and distribution of
tickets and bio-data of the candidates which in the case of Paculdo admittedly
PINEDAPCGRNMAN
cost him some P15,000 to P20,000; the employment of uniformed girls (by
Paculdo) and lawyers (by Drilon) to distribute their campaign materials on the
convention floor on the day of the election; the giving of assistance by the
Undersecretary of Labor to Mrs. Drilon and her group; the use of labor
arbiters to meet delegates at the airport and escort them to the Philippine
Plaza Hotel; the giving of pre-paid plane tickets and hotel accommodations
to delegates (and some families who accompanied them) in exchange for
their support; the pirating of some candidates by inducing them to "hop" or
"flipflop" from one ticket to another for some rumored consideration; all these
practices made a political circus of the proceedings and tainted the whole
election process.
The candidates and many of the participants in that election not only violated
the By-Laws of the IBP but also the ethics of the legal profession which
imposes on all lawyers, as a corollary of their obligation to obey and uphold
the constitution and the laws, the duty to "promote respect for law and legal
processes" and to abstain from 'activities aimed at defiance of the law or at
lessening confidence in the legal system" (Rule 1.02, Canon 1, Code of
Professional Responsibility). Respect for law is gravely eroded when lawyers
themselves, who are supposed to be millions of the law, engage in unlawful
practices and cavalierly brush aside the very rules that the IBP formulated for
their observance.
The unseemly ardor with which the candidates pursued the presidency of the
association detracted from the dignity of the legal profession. The spectacle
of lawyers bribing or being bribed to vote one way or another, certainly did
not uphold the honor of the profession nor elevate it in the public's esteem.
The Court notes with grave concern what appear to be the evasions, denials
and outright prevarications that tainted the statements of the witnesses,
including tome of the candidates, during the initial hearing conducted by it
before its fact-finding committee was created. The subsequent investigation
conducted by this Committee has revealed that those parties had been less
than candid with the Court and seem to have conspired among themselves
to deceive it or at least withhold vital information from it to conceal the
irregularities committed during the campaign.
CONCLUSIONS.
It has been mentioned with no little insistence that the provision in the 1987
Constitution (See. 8, Art. VIII) providing for a Judicial and Bar Council
composed of seven (7) members among whom is "a representative of the
Integrated Bar," tasked to participate in the selection of nominees for
appointment to vacant positions in the judiciary, may be the reason why the
position of IBP president has attracted so much interest among the lawyers.
The much coveted "power" erroneously perceived to be inherent in that office
might have caused the corruption of the IBP elections. To impress upon the
participants in that electoral exercise the seriousness of the misconduct
which attended it and the stern disapproval with which it is viewed by this
Court, and to restore the non-political character of the IBP and reduce, if not
entirely eliminate, expensive electioneering for the top positions in the
organization which, as the recently concluded elections revealed, spawned
unethical practices which seriously diminished the stature of the IBP as an
association of the practitioners of a noble and honored profession, the Court
hereby ORDERS:
1. The IBP elections held on June3,1989 should be as they are hereby
annulled.
2. The provisions of the IBP By-Laws for the direct election by the House of
Delegates (approved by this Court in its resolution of July 9, 1985 in Bar
Matter No. 287) of the following national officers:
(a) the officers of the House of Delegates;
(b) the IBP president; and
(c) the executive vice-president,
be repealed, this Court being empowered to amend, modify or repeal the By-
Laws of the IBP under Section 77, Art. XI of said By-Laws.
3. The former system of having the IBP President and Executive Vice-
President elected by the Board of Governors (composed of the governors of
the nine [91 IBP regions) from among themselves (as provided in Sec. 47,
Art. VII, Original IBP By-Laws) should be restored. The right of automatic
succession by the Executive Vice-President to the presidency upon the
expiration of their two-year term (which was abolished by this Court's
resolution dated July 9,1985 in Bar Matter No. 287) should be as it is hereby
Page 112
restored.
4. At the end of the President's two-year term, the Executive Vice-President
shall automatically succeed to the office of president. The incoming board of
LEGAL ETHICS
governors shall then elect an Executive Vice-President from among
themselves. The position of Executive Vice-President shall be rotated among
the nine (9) IBP regions. One who has served as president may not run for
election as Executive Vice-President in a succeeding election until after the
rotation of the presidency among the nine (9) regions shall have been
completed; whereupon, the rotation shall begin anew.
5. Section 47 of Article VII is hereby amended to read as follows:
Section 47. National Officers. — The Integrated Bar of the Philippines shall
have a President and Executive Vice-President to be chosen by the Board of
Governors from among nine (9) regional governors, as much as practicable,
on a rotation basis. The governors shall be ex oficio Vice-President for their
respective regions. There shall also be a Secretary and Treasurer of the
Board of Governors to be appointed by the President with the consent of the
Board.
6. Section 33(b), Art. V, IBP By-Laws, is hereby amended as follows:
(b) The President and Executive Vice President of the IBP shall be the
Chairman and Vice-Chairman, respectively, of the House of Delegates. The
Secretary, Treasurer, and Sergeant-at-Arms shall be appointed by the
President with the consent of the House of Delegates.'
7. Section 33(g) of Article V providing for the positions of Chairman, Vice-
Chairman, Secretary-Treasurer and Sergeant-at- Arms of the House of
Delegates is hereby repealed
8. Section 37, Article VI is hereby amended to read as follows:
Section 37. Composition of the Board. — The Integrated Bar of the
Philippines shall be governed by a Board of Governors consisting of nine (9)
Governors from the nine (9) regions as delineated in Section 3 of the
Integration Rule, on the representation basis of one (1) Governor for each
region to be elected by the members of the House of Delegates from that
region only. The position of Governor should be rotated among the different
Chapters in the region.
9. Section 39, Article V is hereby amended as follows:
Section 39. Nomination and election of the Governors at least one (1) month
before the national convention the delegates from each region shall elect the
governor for their region, the choice of which shall as much as possible be
rotated among the chapters in the region.
10. Section33(a), Article V hereby is amended by addingthe following
provision as part of the first paragraph:
No convention of the House of Delegates nor of the general membership
shall be held prior to any election in an election year.
11. Section 39, (a), (b), (1), (2), (3), (4), (5), (6), and (7) of Article VI should
be as they are hereby deleted.
All other provisions of the By-Laws including its amendment by the
Resolution en banc of this Court of July 9, 1985 (Bar Matter No. 287) that are
inconsistent herewith are hereby repealed or modified.
12. Special elections for the Board of Governors shall be held in the nine (9)
IBP regions within three (3) months, after the promulgation of the Court's
resolution in this case. Within thirty (30) days thereafter, the Board of
Governors shall meet at the IBP Central Office in Manila to elect from among
themselves the IBP national president and executive vice-president. In these
special elections, the candidates in the election of the national officers held
on June 3,1989, particularly identified in Sub-Head 3 of this Resolution
entitled "Formation of Tickets and Single Slates," as well as those identified
in this Resolution as connected with any of the irregularities attendant upon
that election, are ineligible and may not present themselves as candidate for
any position.
13. Pending such special elections, a caretaker board shall be appointed by
the Court to administer the affairs of the IBP. The Court makes clear that the
dispositions here made are without prejudice to its adoption in due time of
such further and other measures as are warranted in the premises.
SO ORDERED.
[A.C No. 4749. January 20, 2000]
SOLIMAN M. SANTOS, JR., complainant, vs. ATTY. FRANCISCO R.
LLAMAS, respondent.
DECISION
MENDOZA, J.:
This is a complaint for misrepresentation and non-payment of bar
membership dues filed against respondent Atty. Francisco R. Llamas.
In a letter-complaint to this Court dated February 8, 1997, complainant
Soliman M. Santos, Jr., himself a member of the bar, alleged that:
PINEDAPCGRNMAN
On my oath as an attorney, I wish to bring to your attention and appropriate
sanction the matter of Atty. Francisco R. Llamas who, for a number of years
now, has not indicated the proper PTR and IBP O.R. Nos. and data (date &
place of issuance) in his pleadings. If at all, he only indicates "IBP Rizal
259060" but he has been using this for at least three years already, as shown
by the following attached sample pleadings in various courts in 1995, 1996
and 1997: (originals available)
Annex A.......- "Ex-Parte Manifestation and Submission"
dated December 1, 1995 in Civil Case No. Q-
95-25253, RTC, Br. 224, QC
Annex B.......- "Urgent Ex-Parte Manifestation Motion" dated
November 13, 1996 in Sp. Proc. No. 95-030,
RTC Br. 259 (not 257), Paraaque, MM
Annex C.......- "An Urgent and Respectful Plea for extension
of Time to File Required Comment and
Opposition" dated January 17, 1997 in CA-G.R.
SP (not Civil Case) No. 42286, CA 6th Div.
This matter is being brought in the context of Rule 138, Section 1 which
qualifies that only a duly admitted member of the bar "who is in good and
regular standing, is entitled to practice law". There is also Rule 139-A,
Section 10 which provides that "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."
Among others, I seek clarification (e.g. a certification) and appropriate action
on the bar standing of Atty. Francisco R. Llamas both with the Bar Confidant
and with the IBP, especially its Rizal Chapter of which Atty. Llamas purports
to be a member. Jksm
Please note that while Atty. Llamas indicates "IBP Rizal 259060" sometimes,
he does not indicate any PTR for payment of professional tax.
Under the Rules, particularly Rule 138, Sections 27 and 28, suspension of
an attorney may be done not only by the Supreme Court but also by the Court
of Appeals or a Regional Trial Court (thus, we are also copy furnishing some
of these courts).
Finally, it is relevant to note the track record of Atty. Francisco R. Llamas, as
shown by:
1........his dismissal as Pasay City Judge per Supreme Court Admin. Matter
No. 1037-CJ En Banc Decision on October 28, 1981 ( in SCRA )
2........his conviction for estafa per Decision dated June 30, 1994 in Crim.
Case No. 11787, RTC Br. 66, Makati, MM (see attached copy of the Order
dated February 14, 1995 denying the motion for reconsideration of the
conviction which is purportedly on appeal in the Court of Appeals).
Attached to the letter-complaint were the pleadings dated December 1, 1995,
November 13, 1996, and January 17, 1997 referred to by complainant,
bearing, at the end thereof, what appears to be respondents signature above
his name, address and the receipt number "IBP Rizal 259060."[1] Also
attached was a copy of the order,[2] dated February 14, 1995, issued by Judge
Eriberto U. Rosario, Jr. of the Regional Trial Court, Branch 66, Makati, denying
respondents motion for reconsideration of his conviction, in Criminal Case No.
11787, for violation of Art. 316, par. 2 of the Revised Penal Code. On April
18, 1997, complainant filed a certification[3] dated March 18, 1997, by the then
president of the Integrated Bar of the Philippines, Atty. Ida R. Macalinao-
Javier, that respondents "last payment of his IBP dues was in 1991. Since
then he has not paid or remitted any amount to cover his membership fees
up to the present."
On July 7, 1997, respondent was required to comment on the complaint
within ten days from receipt of notice, after which the case was referred to
the IBP for investigation, report and recommendation. In his comment-
memorandum,[4] dated June 3, 1998, respondent alleged:[5]
3. That with respect to the complainants absurd claim that for using in 1995,
1996 and 1997 the same O.R. No. 259060 of the Rizal IBP, respondent is
automatically no longer a member in good standing.
Precisely, as cited under the context of Rule 138, only an admitted member
of the bar who is in good standing is entitled to practice law.
Page 113
The complainants basis in claiming that the undersigned was no longer in
good standing, were as above cited, the October 28, 1981 Supreme Court
LEGAL ETHICS
decision of dismissal and the February 14, 1995 conviction for Violation of
Article 316 RPC, concealment of encumbrances. Chief
As above pointed out also, the Supreme Court dismissal decision was set
aside and reversed and respondent was even promoted from City Judge of
Pasay City to Regional Trial Court Judge of Makati, Br. 150.
Also as pointed out, the February 14, 1995 decision in Crim. Case No. 11787
was appealed to the Court of Appeals and is still pending.
Complainant need not even file this complaint if indeed the decision of
dismissal as a Judge was never set aside and reversed, and also had the
decision of conviction for a light felony, been affirmed by the Court of
Appeals. Undersigned himself would surrender his right or privilege to
practice law.
4. That complainant capitalizes on the fact that respondent had been
delinquent in his dues.
Undersigned since 1992 have publicly made it clear per his Income Tax
Return, up to the present, that he had only a limited practice of law. In fact,
in his Income Tax Return, his principal occupation is a farmer of which he is.
His 30 hectares orchard and pineapple farm is located at Calauan, Laguna.
Moreover, and more than anything else, respondent being a Senior Citizen
since 1992, is legally exempt under Section 4 of Rep. Act 7432 which took
effect in 1992, in the payment of taxes, income taxes as an example. Being
thus exempt, he honestly believe in view of his detachment from a total
practice of law, but only in a limited practice, the subsequent payment by him
of dues with the Integrated Bar is covered by such exemption. In fact, he
never exercised his rights as an IBP member to vote and be voted upon.
Nonetheless, if despite such honest belief of being covered by the exemption
and if only to show that he never in any manner wilfully and deliberately failed
and refused compliance with such dues, he is willing at any time to fulfill and
pay all past dues even with interests, charges and surcharges and penalties.
He is ready to tender such fulfillment or payment, not for allegedly saving his
skin as again irrelevantly and frustratingly insinuated for vindictive purposes
by the complainant, but as an honest act of accepting reality if indeed it is
reality for him to pay such dues despite his candor and honest belief in all
food faith, to the contrary. Esmsc
On December 4, 1998, the IBP Board of Governors passed a resolution[6]
adopting and approving the report and recommendation of the Investigating
Commissioner which found respondent guilty, and recommended his
suspension from the practice of law for three months and until he pays his
IBP dues. Respondent moved for a reconsideration of the decision, but this
was denied by the IBP in a resolution,[7] dated April 22, 1999. Hence,
pursuant to Rule 139-B, 12(b) of the Rules of Court, this case is here for final
action on the decision of the IBP ordering respondents suspension for three
months.
The findings of IBP Commissioner Alfredo Sanz are as follows:
On the first issue, Complainant has shown "respondents non-indication of the
proper IBP O.R. and PTR numbers in his pleadings (Annexes "A", "B" and
"C" of the letter complaint, more particularly his use of "IBP Rizal 259060 for
at least three years."
The records also show a "Certification dated March 24, 1997 from IBP Rizal
Chapter President Ida R. Makahinud Javier that respondents last payment of
his IBP dues was in 1991."
While these allegations are neither denied nor categorically admitted by
respondent, he has invoked and cited that "being a Senior Citizen since 1992,
he is legally exempt under Section 4 of Republic Act No. 7432 which took
effect in 1992 in the payment of taxes, income taxes as an example."
....
The above cited provision of law is not applicable in the present case. In fact,
respondent admitted that he is still in the practice of law when he alleged that
the "undersigned since 1992 have publicly made it clear per his Income tax
Return up to the present time that he had only a limited practice of law." (par.
4 of Respondents Memorandum).
Therefore respondent is not exempt from paying his yearly dues to the
Integrated Bar of the Philippines. Esmmis
On the second issue, complainant claims that respondent has misled the
court about his standing in the IBP by using the same IBP O.R. number in
his pleadings of at least six years and therefore liable for his actions.
Respondent in his memorandum did not discuss this issue.
First. Indeed, respondent admits that since 1992, he has engaged in law
practice without having paid his IBP dues. He likewise admits that, as
appearing in the pleadings submitted by complainant to this Court, he
PINEDAPCGRNMAN
indicated "IBP-Rizal 259060" in the pleadings he filed in court, at least for the
years 1995, 1996, and 1997, thus misrepresenting that such was his IBP
chapter membership and receipt number for the years in which those
pleadings were filed. He claims, however, that he is only engaged in a
"limited" practice and that he believes in good faith that he is exempt from
the payment of taxes, such as income tax, under R.A. No. 7432, 4 as a senior
citizen since 1992.
Rule 139-A provides:
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. A fixed sum equivalent to ten percent (10%)
of the collections from each Chapter shall be set aside as a Welfare Fund for
disabled members of the Chapter and the compulsory heirs of deceased
members thereof.
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.
In accordance with these provisions, respondent can engage in the practice
of law only by paying his dues, and it does not matter that his practice is
"limited." While it is true that R.A. No. 7432, 4 grants senior citizens
"exemption from the payment of individual income taxes: provided, that their
annual taxable income does not exceed the poverty level as determined by
the National Economic and Development Authority (NEDA) for that year," the
exemption does not include payment of membership or association dues.
Second. By indicating "IBP-Rizal 259060" in his pleadings and thereby
misrepresenting to the public and the courts that he had paid his IBP dues to
the Rizal Chapter, respondent is guilty of violating the Code of Professional
Responsibility which provides:
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
AND DIGNITY OF THE LEGAL PROFESSION, AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR. Esmso
CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH
TO THE COURT.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of
any court; nor shall he mislead or allow the court to be misled by any artifice.
Respondents failure to pay his IBP dues and his misrepresentation in the
pleadings he filed in court indeed merit the most severe penalty. However, in
view of respondents advanced age, his express willingness to pay his dues
and plea for a more temperate application of the law,[8] we believe the penalty
of one year suspension from the practice of law or until he has paid his IBP
dues, whichever is later, is appropriate.
WHEREFORE, respondent Atty. Francisco R. Llamas is SUSPENDED from
the practice of law for ONE (1) YEAR, or until he has paid his IBP dues,
whichever is later. Let a copy of this decision be attached to Atty. Llamas
personal record in the Office of the Bar Confidant and copies be furnished to
all chapters of the Integrated Bar of the Philippines and to all courts in the
land.
SO ORDERED.
B.M. No. 1222 February 4, 2004
Re: 2003 BAR EXAMINATIONS
RESOLUTION
PER CURIAM:
On 22 September 2003, the day following the bar examination in Mercantile
Law, Justice Jose C. Vitug, Chairman of the 2003 Bar Examinations
Committee, was apprised of a rumored leakage in the examination on the
subject. After making his own inquiries, Justice Vitug reported the matter to
Chief Justice Hilario G. Davide, Jr., and to the other members of the Court,
recommending that the bar examination on the subject be nullified and that
an investigation be conducted forthwith. On 23 September 2003, the Court
adopted the recommendation of Justice Vitug, and resolved to nullify the
examination in Mercantile Law and to hold another examination on 04
October 2003 at eight o’clock in the evening (being the earliest available time
Page 114
and date) at the De La Salle University, Taft Avenue, Manila. The resolution
was issued without prejudice to any action that the Court would further take
on the matter.
LEGAL ETHICS PINEDAPCGRNMAN
Following the issuance of the resolution, the Court received numerous "Upon hearing the news and making preliminary inquiries of his own, Justice
petitions and motions from the Philippine Association of Law Schools and Jose C. Vitug, chairman of the 2003 Bar Examinations Committee, reported
various other groups and persons, expressing agreement to the nullification the matter to the Chief Justice and recommended that the examination in
of the bar examinations in Mercantile Law but voicing strong reservations mercantile law be cancelled and that a formal investigation of the leakage be
against the holding of another examination on the subject. Several reasons undertaken.
were advanced by petitioners or movants, among these reasons being the "Acting on the report and recommendation of Justice Vitug, the Court, in a
physical, emotional and financial difficulties that would be encountered by the resolution dated September 23, 2003, nullified the examination in mercantile
examinees, if another examination on the subject were to be held anew. law and resolved to hold another examination in that subject on Saturday,
Alternative proposals submitted to the Court included the spreading out of October 4, 2003 at eight o’clock in the evening (being the earliest available
the weight of Mercantile Law among the remaining seven bar subjects, i.e., time and date) at the same venue. However, because numerous petitions,
to determine and gauge the results of the examinations on the basis only of protests, and motions for reconsideration were filed against the retaking of
the performance of the examinees in the seven bar subjects. In a resolution, the examination in mercantile law, the Court cancelled the holding of such
dated 29 September 2003, the Court, finding merit in the submissions, examination. On the recommendation of the Office of the Bar Confidant, the
resolved to cancel the scheduled examination in Mercantile Law on 04 Court instead decided to allocate the fifteen (15) percentage points for
October 2003 and to allocate the fifteen percentage points among the seven mercantile law among the seven (7) other bar examination subjects
bar examination subjects. In the same resolution, the Court further resolved (Resolution dated October 7, 2003).
to create a Committee composed of three retired members of the Court that "In a Resolution dated September 29, 2003, the Supreme Court created an
would conduct a thorough investigation of the incident subject of the 23 Investigating Committee composed of three (3) retired Members of the Court
September 2003 resolution. to conduct an investigation of the leakage and to submit its findings and
In a resolution, dated 07 October 2003, the Court adopted the computation recommendations on or before December 15, 2003.
in the allocation of the fifteen percentage points for Mercantile Law among "The Court designated the following retired Associate Justices of the
the remaining seven bar examination subjects, to wit: Supreme Court to compose the Committee:
Original Adjusted Adjusted Chairman: Justice CAROLINA GRIÑO-AQUINO
Relative
Subject Percentage Percentage Relative
Weight Members: Justice JOSE A. R. MELO
Weight Weight Weight
Justice VICENTE V. MENDOZA
Political and
"The Investigating Committee was directed to determine and identify the
International 15% 17.647% 3 3.53%
source of the leakage, the parties responsible therefor and those who
Law
benefited therefrom, and to recommend measures to safeguard the integrity
Labor and of the bar examinations.
Social 10% 11.765% 2 2.35% "The investigation commenced on October 21, 2003 and continued up to
Legislation November 7, 2003. The following witnesses appeared and testified at the
investigation:
Civil law 15% 17.647% 3 3.53% 1. Associate Justice Jose C. Vitug, chairman of the 2003 Bar Examinations
Committee;
Taxation 10% 11.765% 2 2.35% 2. Atty. Marlo Magdoza-Malagar, law clerk in the office of Justice Vitug
3. Atty. Marcial O. T. Balgos, examiner in mercantile law;
Criminal law 10% 11.765% 2 2.35% 4. Cheryl Palma, private secretary of Atty. Balgos;
5. Atty. Danilo De Guzman, assistant lawyer in the firm of Balgos & Perez;
Remedial 6. Atty. Enrico G. Velasco, managing partner of Balgos & Perez;
20% 23.529% 4 4.71%
Law 7. Eduardo J. F. Abella, reviewer in commercial law at the Lex Review
Center;
Legal Ethics 8. Silvestre T. Atienza, office manager of Balgos & Perez;
and Practical 5% 5.882% 1 1.18% 9. Reynita Villasis, private secretary of Atty. De Guzman;
Exercises 10. Ronan Garvida, fraternity brother of Atty. De Guzman;
11. Ronald F. Collado, most illustrious brother of the Beta Sigma Lambda
Fraternity;
100% 20% 12. Jovito M. Salonga, Asst. Division Chief of Systems Development for
In another resolution, dated 14 October 2003, the Court designated the Judicial Application, MlSO;
following retired Associate Justices of the Supreme Court to compose the The Committee held nine (9) meetings - six times to conduct the investigation
Investigating Committee: and three times to deliberate on its report.
"ASSOCIATE JUSTICE JOSE C. VITUG, chairman of the Bar Examinations
Chairman: Justice Carolina C. Griño-Aquino Committee, testified that on Monday morning, September 22, 2003, the day
after the Bar examination in mercantile or commercial law, upon arriving in
Members: Justice Jose A.R. Melo his office in the Supreme Court, his secretary,2 Rose Kawada, informed him
Justice Vicente V. Mendoza that one of the law clerks, Atty. Marlo Magdoza-Malagar, told her that a friend
The Investigating Committee was tasked to determine and identify the source of hers named Ma. Cecilia Delgado-Carbajosa, a bar examinee from Xavier
of leakage, the parties responsible therefor or who might have benefited University in Cagayan de Oro City, who was staying at the Garden Plaza
therefrom, recommend sanctions against all those found to have been Hotel in Paco, confided to her that something was wrong with the examination
responsible for, or who would have benefited from, the incident in question in mercantile law, because previous to the examination, i.e., on Saturday
and to recommend measures to the Court to safeguard the integrity of the afternoon, the eve of the examination, she received a copy of the test
bar examinations. questions in that subject. She did not pay attention to the test questions
On 15 January 2004, the Investigating Committee submitted its report and because no answers were provided, and she was hard-pressed to finish her
recommendation to the Court, herein reproduced in full; thus - review of that subject, using other available bar review materials, of which
"In the morning of September 21, 2003, the third Sunday of the 2003 bar there were plenty coming from various bar review centers.
examinations, the examination in commercial law was held in De la Salle "However, upon perusing the questions after the examinations, Cecilia
Page 115

University on Taft Avenue, Manila, the venue of the bar examinations since noticed that many of them were the same questions that were asked in the
1995. The next day, the newspapers carried news of an alleged leakage in just-concluded-examination.
the said examination.1
LEGAL ETHICS
"Justice Vitug requested Marlo to invite her friend to his office in the Supreme
Court, but Carbajosa declined the invitation. So, Justice Vitug suggested that
Marlo and Rose invite Carbajosa to meet them at Robinson’s Place, Ermita.
She agreed to do that.
"Cecilia Carbajosa arrived at Robinson’s Place at the appointed time and
showed the test questions to Rose and Marlo. Rose obtained a xerox copy
of the leaked questions and compared them with the bar questions in
mercantile law. On the back of the pages, she wrote, in her own hand, the
differences she noted between the leaked questions and the bar examination
questions.
"Rose and Marlo delivered the copy of the leaked questions to Justice Vitug
who compared them with the bar examination questions in mercantile law.
He found the leaked questions to be the exact same questions which the
examiner in mercantile law, Attorney Marcial O. T. Balgos, had prepared and
submitted to him as chairman of the Bar Examinations Committee. However,
not all of those questions were asked in the bar examination. According to
Justice Vitug, only 75% of the final bar questions were questions prepared
by Atty. Balgos; 25% prepared by Justice Vitug himself, were included in the
final bar examination. The questions prepared by Justice Vitug were not
among the leaked test questions.
"Apart from the published news stories about the leakage, Chief Justice
Hilario G. Davide, Jr. and Justice Vitug received, by telephone and mail,
reports of the leakage from Dean Mariano F. Magsalin, Jr. of the Arellano
Law Foundation (Exh. H) and a certain Dale Philip R. De los Reyes (Exh. B
-B-3), attaching copies of the leaked questions and the fax transmittal sheet
showing that the source of the questions was Danny De Guzman who faxed
them to Ronan Garvida on September 17, 2003, four days before the
examination in mercantile law on September 21, 2003 (Exh. B-1).
"ATTORNEY MARLO MAGDOZA-MALAGAR was subpoenaed by the
Committee. She identified the copy of the leaked questions that came from
Cecilia Carbajosa (Exh. A). She testified that, according to Carbajosa, the
latter received the test questions from one of her co-bar reviewees staying,
like her, at the Garden Plaza Hotel in Paco, and also enrolled in the review
classes at the Lex Review Center at the corner of P. Faura Street and Roxas
Boulevard, Ermita. She did not pay for the hand-out because the Lex Review
Center gives them away for free to its bar reviewees.
"ATTORNEY MARCIAL O. T. BALGOS, 71 years of age, senior partner in
the law firm of BALGOS AND PEREZ with offices in Rm. 1009 West Tektite
Tower, Exchange Road, Ortigas Center, Pasig City, testified that in
November 2002, Justice Jose C. Vitug, as chair of the Committee on the
2003 Bar Examinations, invited him to be the examiner in commercial law.
He accepted the assignment and almost immediately began the preparation
of test questions on the subject. Using his personal computer in the law office,
he prepared for three consecutive days, three (3) sets of test questions which
covered the entire subject of Mercantile Law (pp. 3-5, tsn, Oct. 24, 2003). As
he did not know how to prepare the questionnaire in final form, he asked his
private secretary, Cheryl Palma, to format the questions (p. 13, tsn, Oct. 24,
2003). And, as he did not know how to print the questionnaire, he likewise
asked Cheryl Palma to make a print-out (Id., pp. 14-15). All of this was done
inside his office with only him and his secretary there. His secretary printed
only one copy (Id., p. 15). He then placed the printed copy of the test
questions, consisting of three sets, in an envelope which he sealed, and
called up Justice Vitug to inform him that he was bringing the questions to
the latter’s office that afternoon. However, as Justice Vitug was leaving his
office shortly, he advised Atty. Balgos to give the sealed envelope to his
confidential assistant who had been instructed to keep it. When Atty. Balgos
arrived in the office of Justice Vitug, he was met by Justice Vitug’s
confidential assistant to whom he entrusted the sealed envelope containing
the test questions (pp. 19-26, tsn, Oct. 24, 2003).
"Atty. Balgos admitted that he does not know how to operate a computer
except to type on it. He does not know how to open and close his own
computer which has a password for that purpose. In fact, he did not know, as
he still does, the password. It is his secretary, Cheryl Palma, who opened
and closed his computer for him (p. 45, tsn, Oct. 24, 2003).
"Atty. Balgos testified that he did not devise the password himself. It was
Cheryl Palma who devised it (Id., p. 71).
"His computer is exclusively for his own use. It is located inside his room
which is locked when he is not in the office. He comes to the office every
other day only.
PINEDAPCGRNMAN
"He thought that his computer was safely insulated from third parties, and
that he alone had access to it. He was surprised to discover, when reports of
the bar leakage broke out, that his computer was in fact interconnected with
the computers of his nine (9) assistant attorneys (tsn, pp. 30,45). As a matter
of fact, the employees - Jovito M. Salonga and Benjamin R. Katly - of the
Court’s Management Information Systems Office (MISO) who, upon the
request of Atty. Balgos, were directed by the Investigating Committee to
inspect the computer system in his office, reported that there were 16, not 9,
computers connected to each other via Local Area Network (LAN) and one
(1) stand-alone computer connected to the internet (Exh. M). Atty. Balgos’
law partner, former Justice Secretary Hernando Perez, also had a computer,
but Perez took it away when he became the Secretary of Justice.
"The nine (9) assistant attorneys with computers, connected to Attorney
Balgos’ computer, are:
1. Zorayda Zosobrado (she resigned in July 2003)
2. Claravel Javier
3. Rolynne Torio
4. Mark Warner Rosal
5. Charlynne Subia
6. Danilo De Guzman (resigned on October 22, 2003 [Exh. D])
7. Enrico G. Velasco, managing partner
8. Concepcion De los Santos
9. Pamela June Jalandoni
"Upon learning from Justice Vitug of the leakage of the bar questions
prepared by him in mercantile law, Atty. Balgos immediately called together
and questioned his office staff. He interrogated all of them except Atty. Danilo
De Guzman who was absent then. All of them professed to know nothing
about the bar leakage.
"He questioned Silvestre Atienza, the office manager, Atienza is only a
second year law student at MLQU. But he is an expert in installing and
operating computers. It was he and/or his brother Gregorio who
interconnected the computers in the law office, including Attorney Balgos’
computer, without the latter’s knowledge and permission.
"Atienza admitted to Attorney Balgos that he participated in the bar
operations or ‘bar ops’ of the Beta Sigma Lambda law fraternity of which he
is a member, but he clarified that his participation consisted only of bringing
food to the MLQU bar examinees (Tsn, pp. 46-47, Oct. 24, 2003).
"The next day, Attorney Balgos questioned Attorney Danilo De Guzman, also
a member of the Beta Sigma Lambda fraternity, FEU chapter. De Guzman
admitted to him that he downloaded the test questions from Attorney Balgos’
computer and faxed a copy to a fraternity brother. Attorney Balgos was
convinced that De Guzman was the source of the leakage of his test
questions in mercantile law (Tsn, p. 52, Oct. 24, 2003).
"Attorney Balgos prepared a COMPARISON (Exh. E) of the juxtaposed final
bar questions and his proposed test questions, with marginal markings made
by Justice Vicente V. Mendoza (Ret.), indicating whether the questions are
similar: (S); or different: (D), together with the percentage points
corresponding to each question. On the basis of this comparative table and
Atty. Balgos’ indications as to which questions were the same or different
from those given in the final questionnaire, Justice Mendoza computed the
credit points contained in the proposed leaked questions. The proposed
questions constituted 82% of the final bar questions. Attached to this Report
as Annex A is the comparative table and the computation of credit points
marked as Exh. E-1.
"CHERYL PALMA, 34 years old, private secretary of Attorney Balgos for the
past six years, testified that she did not type the test questions. She admitted,
however, that it was she who formatted the questions and printed one copy
as directed by her employer. She confirmed Atty. Balgos’ testimony regarding
her participation in the operation of his personal computer. She disclosed that
what appears in Atty. Balgos’ computer can be seen in the neighborhood
network if the other computers are open and not in use; that Silvestre Atienza
of the accounting section, can access Atty. Balgos’ computer when the latter
is open and not in use.
"ATTORNEY ENRICO VELASCO, managing partner of the firm, testified that
on October 16, 2003, he sent De Guzman a memo (Exh. C) giving him ‘72
hours to explain in writing why you should not be terminated for causing the
Firm an undeserved condemnation and dishonor because of the leakage
Page 116
aforesaid.’
"On October 22, 2003, De Guzman handed in his resignation ‘effective
immediately.’ He explained that:
LEGAL ETHICS
‘Causing the firm, its partners and members to suffer from undeserved
condemnation and humiliation is not only farthest from, but totally out of, my
mind. It is just unfortunate that the incident subject matter of your
memorandum occurred. Rest assured, though, that I have never been part
of any deliberate scheme to malign the good reputation and integrity of the
firm, its partners and members.’ (Exh. D)
"DANILO DE GUZMAN testified that he joined Balgos & Perez in April 2000.
He obtained his LLB degree from FEU in 1998. As a student, he was an
awardee for academic excellence. He passed the 1998 bar examinations
with a grade of 86.4%. In FEU, he joined the Beta Sigma Lambda law
fraternity which has chapters in MLQU, UE and MSU (Mindanao State
University). As a member of the fraternity, he was active during bar
examinations and participated in the fraternity’s ‘bar ops.’
"He testified that sometime in May 2003, when he was exploring Atty. Balgos’
computer, (which he often did without the owner’s knowledge or permission),
to download materials which he thought might be useful to save for future
use, he found and downloaded the test questions in mercantile law consisting
of 12 pages. He allegedly thought they were quizzers for a book that Atty.
Balgos might be preparing. He saved them in his hard disk.
"He thought of faxing the test questions to one of his fraternity ‘brods,’ a
certain Ronan Garvida who, De Guzman thought, was taking the 2003 bar
examinations. Garvida is also a law graduate from FEU. He had taken the
2002 bar examinations, but did not pass.
"On September 17, 2003, four days before the mercantile law bar
examination, De Guzman faxed a copy of the 12-page-test questions (Exhs.
I, I-1, I-2, I-3) to Garvida because earlier he was informed by Garvida that he
was retaking the bar examinations. He advised Garvida to share the
questions with other ‘Betan’ examinees. He allegedly did not charge anything
for the test questions. Later, after the examination was over, Garvida ‘texted’
(sent a text message on his cell phone) him (De Guzman), that he did not
take the bar examination.
"Besides Garvida, De Guzman faxed the mercantile law bar questions to
another fraternity brother named Arlan (surname unknown), through Reynita
(Nanette) Villasis, his secretary (Tsn, pp. 20-28, Oct. 29, 2003). But he
himself faxed the questions to still another ‘brod’ named Erwin Tan who had
helped him during the ‘bar ops’ in 1998 when he (De Guzman) took the bar
examinations (Id., p. 28). He obtained the cell phone numbers of Arlan and
Erwin Tan from Gabby Tanpiengco whom he informed by text message, that
they were ‘guide questions,’ not tips, in the mercantile law examination.
"When he was confronted by Attorney Velasco on Wednesday after the
examination, (news of the leakage was already in all the newspapers), De
Guzman admitted to Attorney Velasco that he faxed the questions to his
fraternity brothers, but he did not reveal where he got the test questions.
"De Guzman received a text message from Erwin Tan acknowledging that
he received the test questions. However, Erwin informed him that the
questions were ‘kalat na kalat’ (all over the place) even if he did not share
them with others (Tsn, pp. 54-55, Oct. 29, 2003).
"De Guzman also contacted Garvida who informed him that he gave copies
of the test questions to Betans Randy Iñigo and James Bugain.
"Arlan also ‘texted’ De Guzman that almost all the questions were asked in
the examination. Erwin Tan commented that many of the leaked questions
were asked in the examination, ‘pero hindi exacto; mi binago’ (they were not
exactly the same; there were some changes).
"De Guzman tried to text Garvida, but he received no response.
"De Guzman disclosed that he learned how to operate a computer from
Silvestre Atienza, the office manager, and through self-study, by asking those
who are knowledgeable on computers. He has been using computers since
1997, and he bought his own computer in 2001, a Pentium 3, which he uses
at home.
"REYNITA VILLASIS, the 36-year-old legal secretary of Attorney De
Guzman, submitted her affidavit (Exh. F) and orally affirmed her participation
in the reproduction and transmittal by fax of the leaked test questions in
mercantile law to Ronan Garvida and Arlan, as testified by De Guzman.
"RONAN GARVIDA, appeared before the Investigating Committee in
compliance with the subpoena that was issued to him. Garvida graduated
from FEU College of Law in 2000. He is about 32 years of age. While still a
student in 1998, he was afflicted with multiple sclerosis or MS, a disease of
the nervous system that attacks the nerve sheaths of the brain and spinal
cord. It is a chronic disabling disease although it may have periods of
remission. It causes its victim to walk with erratic, stiff and staggering gait;
PINEDAPCGRNMAN
the hands and fingers may tremble in performing simple actions; the eyesight
can be impaired, and speech may be slow and slurred (p. 737, Vol. 2,
Reader’s Digest Medical Encyclopedia, 1971 Ed., compiled by Benjamin F.
Miller, M.D.). All these symptoms were present when Garvida testified before
the Committee on November 6, 2003 to answer its questions regarding his
involvement in the leakage of the examiner’s test questions in mercantile law.
"Garvida testified that when he was a freshman at FEU, he became a
member of the Beta Sigma Lambda fraternity where he met and was
befriended by Attorney De Guzman who was his senior by one and a half
years. Although they had been out of touch since he went home to the
province on account of the recurrence of his illness, De Guzman was able
[to] get this cell phone number from his compadre, Atty. Joseph Pajara. De
Guzman told Garvida that he was faxing him ‘possible questions in the bar
examination in mercantile law.’ Because the test questions had no answers,
De Guzman stressed that they were not ‘tips’ but only ‘possible test
questions.’
"Garvida had intended to take the 2003 bar examinations. He enrolled in the
Consortium Review Center in FEU, paying P10,000.00 as enrollment fee.
However, on his way to the Supreme Court to file his application to take the
bar examination, he suffered pains in his wrist - symptoms that his MS had
recurred. His physician advised him to go to the National Orthopedic Hospital
in Quezon City for treatment. This he did.
"He gave up his plan to take the 2003 bar examinations. Nevertheless, he
continued to attend the review classes at the Consortium Review Center
because he did not want to waste completely the P10,000-enrollment fee that
he paid for the review course (‘Nahihinayang ako’). That was presumably
why De Guzman thought that Garvida was taking the bar exams and sent
him a copy of the test questions in mercantile law.
"Upon receipt of the test questions, Garvida faxed a copy to his ‘brod’ Randy
Iñigo who was reviewing at the Consortium Review Center. Randy
photocopied them for distribution to other fraternity brods. Some of the brods
doubted the usefulness of the test questions, but Randy who has a high
regard for De Guzman, believed that the questions were ‘tips.’ Garvida did
not fax the questions to any other person than Randy Iñigo. He allegedly did
not sell the questions to Randy. ‘I could not do that to a brod,’ he explained.
"In view of the fact that one of the copies of the leaked test questions (Exh.
H) bore on the left margin a rubber stamp composed of the Greek initials
‘BEA-MLQU,’ indicating that the source of that copy was the Beta Sigma
Lambda chapter at MLQU, the Committee subpoenaed Ronald Collado, the
Most Illustrious Brother of the Beta Sigma Lambda fraternity of MLQU.
"RONALD COLLADO is a senior law student at the MLQU. He admitted that
his fraternity conducted ‘Bar Ops’ for the 2003 bar exams. Bar Ops are the
biggest activity of the fraternity every year. They start as soon as new officers
of the fraternity are elected in June, and they continue until the bar
examinations are over. The bar operations consist of soliciting funds from
alumni brods and friends to be spent in reproducing bar review materials for
the use of their ‘barristers’ (bar candidates) in the various review centers,
providing meals for their ‘brod’-barristers on examination days; and to rent a
‘bar site’ or place near De la Salle University where the examinees and the
frat members can convene and take their meals during the break time. The
Betans’ bar site for the 2003 bar examinations was located on Leon Guinto
Street, Malate. On September 19 and 21, before [the] start of the
examination, Collado’s fraternity distributed bar review materials for the
mercantile law examination to the examinees who came to the bar site. The
test questions (Exh. H) were received by Collado from a brod, Alan Guiapal,
who had received them from Randy Iñigo.
"Collado caused 30 copies of the test questions to be printed with the logo
and initials of the fraternity (BEA-MLQU) for distribution to the 30 MLQU
examinees taking the bar exams. Because of time constraints, frat members
were unable to answer the test questions despite the clamor for answers, so,
they were given out ‘as is’ - without answers.
"DEAN EDUARDO J. F. ABELLA of the Jose Rizal University law school in
Mandaluyong City, was the reviewer in Mercantile Law and Practical
Exercises at the Lex Review Center which is operated by the Lex Review &
Seminars Inc., of which Dean Abella is one of the incorporators. He learned
about the leakage of test questions in mercantile law when he was delivering
the pre-week lecture on Legal Forms at the Arellano University. The leaked
Page 117
questions were shown to him by his secretary, Jenylyn Domingo, after the
mercantile law exam. He missed the Saturday lecture in mercantile law
because he was suffering from a touch of flu. He gave his last lecture on the
LEGAL ETHICS
subject on Wednesday or Thursday before the exam. He denied having
bought or obtained and distributed the leaked test questions in Mercantile
Law to the bar reviewees in the Lex Review Center.
"F I N D I N G S
"The Committee finds that the leaked test questions in Mercantile Law were
the questions which the examiner, Attorney Marcial O. T. Balgos, had
prepared and submitted to Justice Jose C. Vitug, as chairman of the 2003
Bar Examinations Committee. The questions constituted 82% of the
questions asked in the examination in Mercantile Law in the morning of
September 21, 2003, Sunday, in some cases with slight changes which were
not substantial and in other cases exactly as proposed by Atty. Balgos.
Hence, any bar examinee who was able to get hold of the leaked questions
before the mercantile law examination and answered them correctly, would
have been assured of passing the examination with at least a grade of 82%!
"The circumstance that the leaked test questions consisted entirely of test
questions prepared by Atty. Balgos, proves conclusively that the leakage
originated from his office, not from the Office of Justice Vitug, the Bar
Examinations Chairman.
"Atty. Balgos claimed that the leaked test questions were prepared by him on
his computer. Without any doubt, the source of the leaked test questions was
Atty. Balgos’ computer. The culprit who stole or downloaded them from Atty.
Balgos’ computer without the latter’s knowledge and consent, and who faxed
them to other persons, was Atty. Balgos’ legal assistant, Attorney Danilo De
Guzman, who voluntarily confessed the deed to the Investigating Committee.
De Guzman revealed that he faxed the test questions, with the help of his
secretary Reynita Villasis, to his fraternity ‘brods,’ namely, Ronan Garvida,
Arlan (whose surname he could not recall), and Erwin Tan.
"In turn, Ronan Garvida faxed the test questions to Betans Randy Iñigo and
James Bugain.
"Randy Iñigo passed a copy or copies of the same questions to another
Betan, Alan Guiapal, who gave a copy to the MLQU-Beta Sigma [Lambda’s]
Most Illustrious Brother, Ronald F. Collado, who ordered the printing and
distribution of 30 copies to the MLQU’s 30 bar candidates.
"Attorney Danilo De Guzman’s act of downloading Attorney Balgos’ test
questions in mercantile law from the latter’s computer, without his knowledge
and permission, was a criminal act of larceny. It was theft of intellectual
property; the test questions were intellectual property of Attorney Balgos,
being the product of his intellect and legal knowledge.
"Besides theft, De Guzman also committed an unlawful infraction of Attorney
Balgos’ right to privacy of communication, and to security of his papers and
effects against unauthorized search and seizure - rights zealously protected
by the Bill of Rights of our Constitution (Sections 2 and 3, Article III, 1987
Constitution).
"He transgressed the very first canon of the lawyers’ Code of Professional
Responsibility which provides that ‘[a] lawyer shall uphold the Constitution,
obey the laws of the land, and promote respect for law and legal processes.’
"By transmitting and distributing the stolen test questions to some members
of the Beta Sigma Lambda Fraternity, possibly for pecuniary profit and to
given them undue advantage over the other examiners in the mercantile law
examination, De Guzman abetted cheating or dishonesty by his fraternity
brothers in the examination, which is violative of Rule 1.01 of Canon 1, as
well as Canon 7 of the Code of Professional Responsibility for members of
the Bar, which provide:
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct
Canon 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR.
"De Guzman was guilty of grave misconduct unbecoming a member of the
Bar. He violated the law instead of promoting respect for it and degraded the
noble profession of law instead of upholding its dignity and integrity. His
actuations impaired public respect for the Court, and damaged the integrity
of the bar examinations as the final measure of a law graduate’s academic
preparedness to embark upon the practice of law.
However, the Investigating Committee does not believe that De Guzman was
solely responsible for the leakage of Atty. Balgos’ proposed test questions in
the mercantile law examination. The Committee does not believe that he
acted alone, or did not have the assistance and cooperation of other persons,
such as:
PINEDAPCGRNMAN
"Cheryl Palma, Atty. Balgos’ private secretary, who, according to Atty. Balgos
himself, was the only person who knew the password, who could open and
close his computer; and who had the key to his office where his computer
was kept. Since a computer may not be accessed or downloaded unless it is
opened, someone must have opened Atty. Balgos’ computer in order for De
Guzman to retrieve the test questions stored therein.
"Silvestre Atienza, also a fraternity ‘brod’ of De Guzman, who was
responsible for interconnecting Atty. Balgos’ computer with the other
computers outside Atty. Balgos’ room or office, and who was the only other
person, besides Cheryl Palma, who knew the password of Atty. Balgos’
computer.
"The following persons who received from De Guzman, and distributed
copies of the leaked test questions, appear to have conspired with him to
steal and profit from the sale of the test questions. They could not have been
motivated solely by a desire to help the fraternity, for the leakage was
widespread (‘kalat na kalat’) according to Erwin Tan. The possible co-
conspirators were:
Ronan Garvida,
Arlan,
Erwin Tan,
Randy Iñigo,
Ronald Collado, and
Allan Guiapal
"The Committee does not believe that De Guzman recklessly broke the law
and risked his job and future as a lawyer, out of love for the Beta Sigma
Lambda fraternity. There must have been an ulterior material consideration
for his breaking the law and tearing the shroud of secrecy that, he very well
knows, covers the bar examinations.
"On the other hand, the Committee finds that the theft of the test questions
from Atty. Balgos’ computer could have been avoided if Atty. Balgos had
exercised due diligence in safeguarding the secrecy of the test questions
which he prepared. As the computer is a powerful modern machine which he
admittedly is not fairly familiar with, he should not have trusted it to deep
secret the test questions that he stored in its hard disk. He admittedly did not
know the password of his computer. He relied on his secretary to use the
password to open and close his computer. He kept his computer in a room
to which other persons had access. Unfamiliar with the use of the machine
whose potential for mischief he could not have been totally unaware of, he
should have avoided its use for so sensitive an undertaking as typing the
questions in the bar examination. After all he knew how to use the typewriter
in the use of which he is quite proficient. Atty. Balgos should therefore have
prepared the test questions in his trusty typewriter, in the privacy of his home,
(instead of his law office), where they would have been safe from the prying
eyes of secretaries and assistant attorneys. Atty. Balgos’ negligence in the
preparation and safekeeping of his proposed test questions for the bar
examination in mercantile law, was not the proximate cause of the ‘bar
leakage;’ it was, in fact, the root cause. For, if he had taken those simple
precautions to protect the secrecy of his papers, nobody could have stolen
them and copied and circulated them. The integrity of the bar examinations
would not have been sullied by the scandal. He admitted that ‘Mali siguro
ako, but that was what happened’ (43 tsn, Oct. 24, 2003).
"R E C O M M E N D A T I O N
"This Honorable court in the case of Burbe v. Magulta, A.C. No. 5713, June
10, 2002, 383 SCRA 276, pronounced the following reminder for lawyers:
‘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.’ In another case, it likewise intoned: ‘We cannot overstress the
duty of a lawyer to at all times uphold the integrity and dignity of the legal
profession. He can do this by faithfully performing his duties to society, to the
bar, to the courts, and to his clients.’ (Reyes v. Javier, A.C. No. 5574,
February 2, 2002, 375 SCRA 538). It goes without saying that a lawyer who
violates this precept of the profession by committing a gross misconduct
which dishonors and diminishes the public’s respect for the legal profession,
should be disciplined.
"After careful deliberation, the Investigating Committee recommends that:
"1. Attorney Danilo De Guzman be DISBARRED for he had shown that he is
morally unfit to continue as a member of the legal profession, for grave
Page 118
dishonesty, lack of integrity, and criminal behavior. In addition, he should
make a written PUBLIC APOLOGY and pay DAMAGES to the Supreme
Court for involving it in another ‘bar scandal,’ causing the cancellation of the
LEGAL ETHICS
mercantile law examination, and wreaking havoc upon the image of this
institution.
"2. Attorney Marcial O. T. Balgos should be REPRIMANDED by the Court
and likewise be required to make a written APOLOGY to the Court for the
public scandal he brought upon it as a result of his negligence and lack of
due care in preparing and safeguarding his proposed test questions in
mercantile law. As the Court had to cancel the Mercantile Law examination
on account of the ‘leakage’ of Attorney Balgos’ test questions, which
comprised 82% of the bar questions in that examination, Atty. Balgos is not
entitled to receive any honorarium as examiner for that subject.
"3. FURTHER INVESTIGATION of Danilo De Guzman, Cheryl Palma,
Silvestre Atienza, Ronan Garvida, Arlan, Erwin Tan, Randy Iñigo, James
Bugain, Ronald Collado and Allan Guiapal by the National Bureau of
Investigation and the Philippine National Police, with a view to their criminal
prosecution as probable co-conspirators in the theft and leakage of the test
questions in mercantile law.
"With regard to recommending measures to safeguard the integrity of the bar
examinations and prevent a repetition of future leakage in the said
examinations, inasmuch as this matter is at present under study by the
Court’s Committee on Legal Education and Bar Matters, as an aspect of
proposals for bar reforms, the Investigating Committee believes it would be
well-advised to refrain from including in this report what may turn out to be
duplicative, if not contrary, recommendations on the matter."3
The Court adopts the report, including with some modifications the
recommendation, of the Investigating Committee. The Court, certainly will not
countenance any act or conduct that can impair not only the integrity of the
Bar Examinations but the trust reposed on the Court.
The Court also takes note that Mr. Jovito M. Salonga and Mr. Benjamin R.
Katly, two of its employees assigned to the Management Information
Systems Office (MISO), who were tasked by the Investigating Committee to
inspect the computer system in the office of Atty. Balgos, found that the
Court’s Computer-Assisted Legal Research (CALR) database4 was installed
in the computer used by Atty. Balgos. Mr. Salonga and Mr. Katly reported
that the system, which was developed by the MISO, was intended for the
exclusive use of the Court. The installation thereof to any external computer
would be unauthorized without the permission of the Court. Atty. Velasco
informed the two Court employees that the CALR database was installed by
Atty. De Guzman on the computer being used by Atty. Balgos. The matter
would also need further investigation to determine how Atty. De Guzman was
able to obtain a copy of the Court’s CALR database.
WHEREFORE, the Court, acting on the recommendations of the
Investigating Committee, hereby resolves to -
(1) DISBAR Atty. DANILO DE GUZMAN from the practice of law effective
upon his receipt of this RESOLUTION;
(2) REPRIMAND Atty. MARCIAL O.T. BALGOS and DISENTITLE him from
receiving any honorarium as an Examiner in Mercantile Law;
(3) Direct the National Bureau of Investigation (a) to undertake further
investigation of Danilo De Guzman, Cheryl Palma, Silvestre Atienza, Ronan
Garvida, Erwin Tan, Randy Iñigo, James Bugain, Ronald Collado and Allan
Guiapal with a view to determining their participation and respective
accountabilities in the bar examination leakage and to conduct an
investigation on how Danilo De Guzman was able to secure a copy of the
Supreme Court’s CALR database.
Let a copy of this Resolution be made part of the records of Danilo De
Guzman in the Office of the Bar Confidant, Supreme Court of the Philippines,
and copies to be furnished the Integrated Bar of the Philippines and
circulated by the Office of the Court Administrator to all courts.
SO ORDERED.
[B.M. No. 1370. May 9, 2005]
LETTER OF ATTY. CECILIO Y. AREVALO, JR., REQUESTING
EXEMPTION FROM PAYMENT OF IBP DUES.
DECISION
CHICO-NAZARIO, J.:
This is a request for exemption from payment of the Integrated Bar of the
Philippines (IBP) dues filed by petitioner Atty. Cecilio Y. Arevalo, Jr.
In his letter,[1] dated 22 September 2004, petitioner sought exemption from
payment of IBP dues in the amount of P12,035.00 as alleged unpaid
accountability for the years 1977-2005. He alleged that after being admitted
to the Philippine Bar in 1961, he became part of the Philippine Civil Service
PINEDAPCGRNMAN
from July 1962 until 1986, then migrated to, and worked in, the USA in
December 1986 until his retirement in the year 2003. He maintained that he
cannot be assessed IBP dues for the years that he was working in the
Philippine Civil Service since the Civil Service law prohibits the practice of
ones profession while in government service, and neither can he be
assessed for the years when he was working in the USA.
On 05 October 2004, the letter was referred to the IBP for comment.[2]
On 16 November 2004, the IBP submitted its comment[3] stating inter alia:
that membership in the IBP is not based on the actual practice of law; that a
lawyer continues to be included in the Roll of Attorneys as long as he
continues to be a member of the IBP; that one of the obligations of a member
is the payment of annual dues as determined by the IBP Board of Governors
and duly approved by the Supreme Court as provided for in Sections 9 and
10, Rule 139-A of the Rules of Court; that the validity of imposing dues on
the IBP members has been upheld as necessary to defray the cost of an
Integrated Bar Program; and that the policy of the IBP Board of Governors of
no exemption from payment of dues is but an implementation of the Courts
directives for all members of the IBP to help in defraying the cost of
integration of the bar. It maintained that there is no rule allowing the
exemption of payment of annual dues as requested by respondent, that what
is allowed is voluntary termination and reinstatement of membership. It
asserted that what petitioner could have done was to inform the secretary of
the IBP of his intention to stay abroad, so that his membership in the IBP
could have been terminated, thus, his obligation to pay dues could have been
stopped. It also alleged that the IBP Board of Governors is in the process of
discussing proposals for the creation of an inactive status for its members,
which if approved by the Board of Governors and by this Court, will exempt
inactive IBP members from payment of the annual dues.
In his reply[4] dated 22 February 2005, petitioner contends that what he is
questioning is the IBP Board of Governors Policy of Non-Exemption in the
payment of annual membership dues of lawyers regardless of whether or not
they are engaged in active or inactive practice. He asseverates that the Policy
of Non-Exemption in the payment of annual membership dues suffers from
constitutional infirmities, such as equal protection clause and the due process
clause. He also posits that compulsory payment of the IBP annual
membership dues would indubitably be oppressive to him considering that
he has been in an inactive status and is without income derived from his law
practice. He adds that his removal from nonpayment of annual membership
dues would constitute deprivation of property right without due process of
law. Lastly, he claims that non-practice of law by a lawyer-member in inactive
status is neither injurious to active law practitioners, to fellow lawyers in
inactive status, nor to the community where the inactive lawyers-members
reside.
Plainly, the issue here is: whether or nor petitioner is entitled to exemption
from payment of his dues during the time that he was inactive in the practice
of law that is, when he was in the Civil Service from 1962-1986 and he was
working abroad from 1986-2003?
We rule in the negative.
An Integrated Bar is a State-organized Bar, to which every lawyer must
belong, as distinguished from bar association 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 shares 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.[5]
The integration of the Philippine Bar means the official unification of the entire
lawyer population. This requires membership and financial support of every
attorney as condition sine qua non to the practice of law and the retention of
his name in the Roll of Attorneys of the Supreme Court.[6]
Page 119
Bar integration does not compel the lawyer to associate with anyone. He is
free to attend or not to attend the meetings of his Integrated Bar Chapter or
vote or refuse to vote in its elections as he chooses. The only compulsion to
LEGAL ETHICS PINEDAPCGRNMAN
which he is subjected is the payment of his annual dues. The Supreme Court, period of ten (10) days from receipt of this decision, with a warning that failure
in order to foster the States legitimate interest in elevating the quality of to do so will merit his suspension from the practice of law.
professional legal services, may require that the cost of improving the SO ORDERED.
profession in this fashion be shared by the subjects and beneficiaries of the
regulatory program the lawyers.[7] Rule 7.01 – A lawyer shall be answerable for knowingly making false
Moreover, there is nothing in the Constitution that prohibits the Court, under statements or suppressing a material fact, in connection with his
its constitutional power and duty to promulgate rules concerning the application for admission to the bar.
admission to the practice of law and in the integration of the Philippine Bar[8] -
which power required members of a privileged class, such as lawyers are, to Rule 7.02 – A lawyer shall not support application for admission to the
pay a reasonable fee toward defraying the expenses of regulation of the bar by any person known to him or be unqualified in respect to
profession to which they belong. It is quite apparent that the fee is, indeed, character, education, or other relevant attribute.
imposed as a regulatory measure, designed to raise funds for carrying out
the noble objectives and purposes of integration. Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects
The rationale for prescribing dues has been explained in the Integration of on his fitness to practice law, nor should he, whether in public or private
the Philippine Bar,[9] thus: life, behave in a scandalous manner to the discredit of the legal
For the court to prescribe dues to be paid by the members does not mean profession.
that the Court is attempting to levy a tax.  Upright character; not mere absence of bad character.
A membership fee in the Bar association is an exaction for regulation, while  A lawyer must at all times conduct himself properly as not to put
tax purpose of a tax is a revenue. If the judiciary has inherent power to into question his fitness to practice law.
regulate the Bar, it follows that as an incident to regulation, it may impose a
membership fee for that purpose. It would not be possible to put on an  Avoid scandalous conduct; not only required to refrain from
integrated Bar program without means to defray the expenses. The doctrine adulterous relationships or the keeping of mistress but must also
behave himself as to avoid scandalizing the public by creating
of implied powers necessarily carries with it the power to impose such
the belief that he is flouting those moral standards.
exaction.
The only limitation upon the States power to regulate the privilege of law is
[A.C. No. 4921. March 6, 2003]
that the regulation does not impose an unconstitutional burden. The public
CARMELITA I. ZAGUIRRE, complainant, vs. ATTY. ALFREDO
interest promoted by the integration of the Bar far outweighs the slight
CASTILLO, respondent.
inconvenience to a member resulting from his required payment of the annual
DECISION
dues.
PER CURIAM:
Thus, payment of dues is a necessary consequence of membership in the
Before this Court is a Petition for Disbarment filed by Carmelita I. Zaguirre
IBP, of which no one is exempt. This means that the compulsory nature of
against Atty. Alfredo Castillo on the ground of Gross Immoral Conduct.
payment of dues subsists for as long as ones membership in the IBP remains
The facts as borne by the records are as follows:
regardless of the lack of practice of, or the type of practice, the member is
Complainant and respondent met sometime in 1996 when the two became
engaged in.
officemates at the National Bureau of Investigation (NBI).[1] Respondent
There is nothing in the law or rules which allows exemption from payment of
courted complainant and promised to marry her while representing himself to
membership dues. At most, as correctly observed by the IBP, he could have
be single.[2] Soon they had an intimate relationship that started sometime in
informed the Secretary of the Integrated Bar of his intention to stay abroad
1996 and lasted until 1997.[3] During their affair, respondent was preparing
before he left. In such case, his membership in the IBP could have been
for the bar examinations which he passed. On May 10, 1997, he was
terminated and his obligation to pay dues could have been discontinued.
admitted as a member of the Philippine Bar.[4] It was only around the first
As abovementioned, the IBP in its comment stated that the IBP Board of
week of May 1997 that complainant first learned that respondent was already
Governors is in the process of discussing the situation of members under
married when his wife went to her office and confronted her about her
inactive status and the nonpayment of their dues during such inactivity. In the
relationship with respondent.[5] On September 10, 1997, respondent, who by
meantime, petitioner is duty bound to comply with his obligation to pay
now is a lawyer, executed an affidavit, admitting his relationship with the
membership dues to the IBP.
complainant and recognizing the unborn child she was carrying as his.[6] On
Petitioner also contends that the enforcement of the penalty of removal would
December 09, 1997, complainant gave birth to a baby girl, Aletha Jessa.[7] By
amount to a deprivation of property without due process and hence infringes
this time however, respondent had started to refuse recognizing the child and
on one of his constitutional rights.
giving her any form of support.[8]
This question has been settled in the case of In re Atty. Marcial Edillon,[10] in
Respondent claims that: he never courted the complainant; what transpired
this wise:
between them was nothing but mutual lust and desire; he never represented
. . . Whether the practice of law is a property right, in the sense of its being
himself as single since it was known in the NBI that he was already married
one that entitles the holder of a license to practice a profession, we do not
and with children;[9] complainant is almost 10 years older than him and knew
here pause to consider at length, as it [is] clear that under the police power
beforehand that he is already married;[10] the child borne by complainant is
of the State, and under the necessary powers granted to the Court to
not his, because the complainant was seeing other men at the time they were
perpetuate its existence, the respondents right to practice law before the
having an affair.[11] He admits that he signed the affidavit dated September
courts of this country should be and is a matter subject to regulation and
10, 1997 but explains that he only did so to save complainant from
inquiry. And, if the power to impose the fee as a regulatory measure is
embarrassment. Also, he did not know at the time that complainant was
recognize[d], then a penalty designed to enforce its payment, which penalty
seeing other men.[12]
may be avoided altogether by payment, is not void as unreasonable or
After due hearing, the IBP Commission on Bar Discipline found Atty. Alfredo
arbitrary.
Castillo guilty of gross immoral conduct and recommends that he be meted
But we must here emphasize that the practice of law is not a property right
the penalty of indefinite suspension from the practice of law.
but a mere privilege, and as such must bow to the inherent regulatory power
The Court agrees with the findings and recommendation of the IBP.
of the Court to exact compliance with the lawyers public responsibilities.
The Code of Professional Responsibility provides:
As a final note, it must be borne in mind that membership in the bar is a
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
privilege burdened with conditions,[11] one of which is the payment of
deceitful conduct.
membership dues. Failure to abide by any of them entails the loss of such
xxx xxx xxx
privilege if the gravity thereof warrants such drastic move.
CANON 7 - A lawyer shall at all times uphold the integrity and dignity of the
WHEREFORE, petitioners request for exemption from payment of IBP dues
legal profession, and support the activities of the Integrated Bar.
Page 120

is DENIED. He is ordered to pay P12,035.00, the amount assessed by the

xxx xxx xxx
IBP as membership fees for the years 1977-2005, within a non-extendible
LEGAL ETHICS
Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor should he, whether in public or private life,
behave in a scandalous manner to the discredit of the legal profession.
Immoral conduct has been defined as:
xxx that conduct which is so willful, flagrant, or shameless as to show
indifference to the opinion of good and respectable members of the
community. Furthermore, such conduct must not only be immoral, but
grossly immoral. That is, it must be so corrupt as to constitute a criminal act
or so unprincipled as to be reprehensible to a high degree or committed under
such scandalous or revolting circumstances as to shock the common sense
of decency.[13]
In his affidavit dated September 10, 1997, duly acknowledged before a notary
public, he declared explicitly:
1. That I had a relationship with one Carmelita Zaguirre, my officemate;
2. That as a result of that relationship, she is presently pregnant with my child;
3. That I hereby voluntarily recognize the child now under (sic) her womb to
be my own;
4. That I am willing to support the said child henceforth, including his/her
personal and medical needs, education, housing, food, clothing and other
necessities for living, which I will give through his/her mother, Carmelita
Zaguirre, until he/she becomes of legal age and capable to live on his/her
own;
5. That I undertake to sign the birth certificate as an additional proof that
he/she is my child; however, my failure to sign does not negate the
recognition and acknowledgement already done herein;
6. That I am executing this affidavit without compulsion on my part and being
a lawyer, I have full knowledge of the consequence of such acknowledgment
and recognition.[14]
More incriminating is his handwritten letter dated March 12, 1998 which
states in part:
Ayoko ng umabot tayo sa kung saan-saan pa. All your officemates, e.g., Ate
Ging, Glo, Guy and others (say) that I am the look like(sic) of your daughter.
Heres my bargain. I will help you in supporting your daughter, but I cannot
promise fix amount for monthly support of your daughter. However it shall not
be less than P500 but not more than P1,000.[15]
In the recent case of Luguid vs. Judge Camano, Jr., the Court in castigating
a judge stated that:
...even as an ordinary lawyer, respondent has to conform to the strict
standard of conduct demanded of members of the profession. Certainly,
fathering children by a woman other than his lawful wife fails to meet these
standards.[16]
Siring a child with a woman other than his wife is a conduct way below the
standards of morality required of every lawyer.[17]
Moreover, the attempt of respondent to renege on his notarized statement
recognizing and undertaking to support his child by Carmelita demonstrates
a certain unscrupulousness on his part which is highly censurable,
unbecoming a member of a noble profession, tantamount to self-
stultification.[18]
This Court has repeatedly held:
as officers of the court, lawyers must not only in fact be of good moral
character but must also be seen to be of good moral character and leading
lives in accordance with the highest moral standards of the community. More
specifically, a member of the Bar and officer of the court is not only required
to refrain from adulterous relationships or the keeping of mistresses but must
also so behave himself as to avoid scandalizing the public by creating the
belief that he is flouting those moral standards.[19]
While respondent does not deny having an extra-marital affair with
complainant he seeks understanding from the Court, pointing out that men
by nature are polygamous,[20] and that what happened between them was
nothing but mutual lust and desire.[21] The Court is not convinced. In fact, it is
appalled at the reprehensible, amoral attitude of the respondent.
Respondent claims that he did not use any deception to win her affection.
Granting arguendo that complainant entered into a relationship with him
knowing full well his marital status, still it does not absolve him of gross
immorality for what is in question in a case like this is respondents fitness to
be a member of the legal profession. It is not dependent whether or not the
other party knowingly engaged in an immoral relationship with him.
We agree with the IBP that the defense of in pari delicto is not feasible. The
Court held in Mortel vs. Aspiras:
PINEDAPCGRNMAN
In a disbarment proceeding, it is immaterial that the complainant is in pari
delicto because this is not a proceeding to grant relief to the complainant, but
one to purge the law profession of unworthy members, to protect the public
and the courts.[22]
The illicit relationship with Carmelita took place while respondent was
preparing to take the bar examinations. Thus, it cannot be said that it is
unknown to him that an applicant for admission to membership in the bar
must show that he is possessed of good moral character, a requirement
which is not dispensed with upon admission to membership of the bar.[23] This
qualification is not only a condition precedent to admission to the legal
profession, but its continued possession is essential to maintain ones good
standing in the profession;[24] it is a continuing requirement to the practice of
law[25] and therefore admission to the bar does not preclude a subsequent
judicial inquiry, upon proper complaint, into any question concerning his
mental or moral fitness before he became a lawyer. This is because his
admission to practice merely creates a rebuttable presumption that he has
all the qualifications to become a lawyer.
The Court held:
The practice of law is not a right but a privilege bestowed by the State on
those who show that they possess, and continue to possess, the
qualifications required by law for the conferment of such privilege. We must
stress that membership in the bar is a privilege burdened with conditions. A
lawyer has the privilege to practice law only during good behavior. He can be
deprived of his license for misconduct ascertained and declared by judgment
of the court after giving him the opportunity to be heard.[26]
and in Dumadag vs. Lumaya:
The practice of law is a privilege burdened with conditions. Adherence to the
rigid standards of mental fitness, maintenance of the highest degree of
morality and faithful compliance with the rules of the legal profession are the
conditions required for remaining a member of good standing of the bar and
for enjoying the privilege to practice law.[27]
Respondent repeatedly engaged in sexual congress with a woman not his
wife and now refuses to recognize and support a child whom he previously
recognized and promised to support. Clearly therefore, respondent violated
the standards of morality required of the legal profession and should be
disciplined accordingly.
As consistently held by this Court, disbarment shall not be meted out if a
lesser punishment could be given.[28] Records show that from the time he took
his oath in 1997, he has severed his ties with complainant and now lives with
his wife and children in Mindoro. As of now, the Court does not perceive this
fact as an indication of respondents effort to mend his ways or that he
recognizes the impact of his offense on the noble profession of law.
Nevertheless, the Court deems it more appropriate under the circumstances
that indefinite suspension should be meted out than disbarment. The
suspension shall last until such time that respondent is able to show, to the
full satisfaction of the Court, that he had instilled in himself a firm conviction
of maintaining moral integrity and uprightness required of every member of
the profession.
The rule is settled that a lawyer may be suspended or disbarred for any
misconduct, even if it pertains to his private activities, as long as it shows him
to be wanting in moral character, honesty, probity or good demeanor.[29]
ACCORDINGLY, in view of the foregoing, the Court finds respondent
GUILTY of Gross Immoral Conduct and ordered to suffer INDEFINITE
SUSPENSION from the practice of law.
Let a copy of this Decision be attached to Atty. Castillos personal record in
the Office of the Bar Confidant and a copy thereof be furnished the IBP and
all courts throughout the country.
SO ORDERED.
CANON 8 – A lawyer shall conduct himself with courtesy, fairness and
candor towards his professional colleagues, and shall avoid harassing
tactics against opposing counsel.
Page 121
LEGAL ETHICS
CONRADO QUE, A.C. No. 7054
Complainant,
PUNO, C J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.
ATTY. ANASTACIO REVILLA, Promulgated:
JR.
Respondent. December 4, 2009
x ---------------------------------------------------------------------------------------------
---------- x
DECISION
PER CURIAM:
In a complaint for disbarment,[1] Conrado Que (complainant) accused Atty.
Anastacio Revilla, Jr. (respondent) before the Integrated Bar of the
Philippines Committee on BarDiscipline (IBP Committee on Bar Discipline
or CBD) of committing the following violations of the provisions of the Code
of Professional Responsibility and Rule 138 of the Rules of Court:
(1) The respondents abuse of court remedies and processes by filing a
petition for certiorari before the Court of Appeals (CA), two petitions for
annulment of title before the Regional Trial Court (RTC), a petition for
annulment of judgment before the RTC and lastly, a petition for declaratory
relief before the RTC (collectively, subject cases) to assail and overturn the
final judgments of the Metropolitan Trial Court[2] (MeTC) and RTC[3] in the
unlawful detainer case rendered against the respondents clients. The
respondent in this regard, repeatedly raised the issue of lack of jurisdiction
by the MeTC and RTC knowing fully-well that these courts have jurisdiction
over the unlawful detainer case. The respondent also repeatedly attacked the
complainants and his siblings titles over the property subject of the unlawful
detainer case;
(2) The respondents commission of forum-shopping by filing the subject
cases in order to impede, obstruct, and frustrate the efficient administration
of justice for his own personal gain and to defeat the right of the complainant
and his siblings to execute the MeTC and RTC judgments in the unlawful
detainer case;
(3) The respondents lack of candor and respect towards his adversary and
the courts by resorting to falsehood and deception to misguide, obstruct and
impede the due administration of justice. The respondent asserted falsehood
in the motion for reconsideration of the dismissal of the petition for annulment
of judgment by fabricating an imaginary order issued by the presiding judge
in open court which allegedly denied the motion to dismiss filed by the
respondents in the said case. The complainant alleged that the respondent
did this to cover up his lack of preparation; the respondent also deceived his
clients (who were all squatters) in supporting the above falsehood.[4]
PINEDAPCGRNMAN
(4) The respondents willful and revolting falsehood that unjustly maligned
and defamed the good name and reputation of the late Atty. Alfredo Catolico
(Atty. Catolico), the previous counsel of the respondents clients.
(5) The respondents deliberate, fraudulent and unauthorized appearances in
court in the petition for annulment of judgment for 15 litigants, three of whom
are already deceased;
(6) The respondents willful and fraudulent appearance in the second petition
for annulment of title as counsel for the Republic of the Philippines without
being authorized to do so.
Additionally, the complaint accused the respondent of representing fifty-two
(52) litigants in Civil Case No. Q-03-48762 when no such authority was ever
given to him.
The CBD required the respondent to answer the complaint.
In his Answer,[5] the respondent declared that he is a member of the Kalayaan
Development Cooperative (KDC) that handles pro bono cases for the
underprivileged, the less fortunate, the homeless and those in the
marginalized sector in Metro Manila. He agreed to take over the cases
formerly handled by other KDC members. One of these cases was the
unlawful detainer case handled by the late Atty. Catolico where the
complainant and his siblings were the plaintiffs and the respondents present
clients were the defendants.
With respect to paragraph 1 of the disbarment complaint, the respondent
professed his sincerity, honesty and good faith in filing the petitions
complained of; he filed these petitions to protect the interests of his clients in
their property. The respondent asserted that these petitions were all based
on valid grounds the lack of jurisdiction of the MeTC and the RTC over the
underlying unlawful detainer case, the extrinsic fraud committed by the
late Atty. Catolico, and the extrinsic fraud committed by the complainant
and his family against his clients; he discovered that the allegedly detained
property did not really belong to the complainant and his family but is a forest
land. The respondent also asserted that his resort to a petition for annulment
of judgment and a petition for declaratory relief to contest the final judgments
of the MeTC and RTC were all parts of his legal strategy to protect the
interests of his clients.
On the allegations of falsehood in the motion for reconsideration of the order
of dismissal of the petition for annulment of judgment (covered by paragraph
3 of the disbarment complaint), the respondent maintained that his
allegations were based on his observations and the notes he had taken
during the proceedings on what the presiding judge dictated in open court.
The respondent denied that he had made any unauthorized appearance in
court (with respect to paragraphs 5 and 6 of the disbarment complaint). He
claimed that the 52 litigants in Civil Case No. Q-03-48762 were impleaded
by inadvertence; he immediately rectified his error by dropping them from the
case. On the petition for annulment of judgment, the respondent claimed that
a majority (31 out of 49) of the litigants who signed the certification constituted
sufficient compliance with the rules on forum-shopping. The respondent
likewise denied having represented the Republic of the Philippines in the
second petition for annulment of title. The respondent pointed out that there
was no allegation whatsoever that he was the sole representative of both the
complainants (his clients) and the Republic of the Philippines. The
respondent pointed out that the petition embodied a request to the Office of
the Solicitor General to represent his clients in the case.[6]
The respondent submitted that he did not commit any illegal, unlawful, unjust,
wrongful or immoral acts towards the complainant and his siblings. He
stressed that he acted in good faith in his dealings with them and his conduct
was consistent with his sworn duty as a lawyer to uphold justice and the law
and to defend the interests of his clients. The respondent additionally claimed
Page 122
that the disbarment case was filed because the complainants counsel, Atty.
Cesar P. Uy (Atty. Uy), had an axe to grind against him.
LEGAL ETHICS
Lastly, the respondent posited in his pleadings[7] before the IBP that the
present complaint violated the rule on forum shopping considering that the
subject cases were also the ones on which a complaint was filed against him
in CBD Case No. 03-1099 filed by Atty. Uy before the IBP Committee on Bar
Discipline. The respondent also posited that the present complaint was filed
to harass, ridicule and defame his good name and reputation and, indirectly,
to harass his clients who are marginalized members of the KDC.
The Findings of the Investigating Commissioner
Except for the last charge of unauthorized appearance on behalf of 52
litigants in Civil Case No. Q-03-48762, Investigating Commissioner Renato
G. Cunanan[8](Investigating Commissioner Cunanan) found all the charges
against the respondent meritorious. In his Report and Recommendation, he
stated:
While an attorney admittedly has the solemn duty to defend and protect the
cause and rights of his client with all the fervor and energy within his
command, yet, it is equally true that it is the primary duty of the lawyer to
defend the dignity, authority and majesty of the law and the courts which
enforce it. A lawyer is not at liberty to maintain and defend the cause of his
clients thru means, inconsistent with truth and honor. He may not and must
not encourage multiplicity of suits or brazenly engage in forum-shopping.[9]
On the first charge on abuse of court processes, Investigating Commissioner
Cunanan noted the unnecessary use by the respondent of legal remedies to
forestall the execution of the final decisions of the MTC and the RTC in the
unlawful detainer case against his clients.[10]
On the second charge, the Investigating Commissioner ruled that the act of
the respondent in filing two petitions for annulment of title, a petition for
annulment of judgment and later on a petition for declaratory relief were all
done to prevent the execution of the final judgment in the unlawful detainer
case and constituted prohibited forum-shopping.[11]
On the third and fourth charges, Investigating Commissioner Cunanan found
ample evidence showing that the respondent was dishonest in dealing with
the court as shown in his petition for annulment of judgment; he resorted to
falsities and attributed acts to Atty. Catolico and to the presiding judge, all of
which were untrue. [12]
On the fifth and sixth charges, the Investigating Commissioner disregarded
the respondents explanation that he had no intention to represent without
authority 15 of the litigants (three of whom were already deceased) in the
petition for annulment of judgment (Civil Case No. Q-01-45556). To the
Investigating Commissioner, the respondent merely glossed over the
representation issue by claiming that the authority given by a majority of the
litigants complied with the certification of non-forum shopping requirement.
The Investigating Commissioner likewise brushed aside the respondents
argument regarding his misrepresentation in the second complaint for
annulment of title since he knew very well that only the Solicitor General can
institute an action for reversion on behalf of the Republic of the Philippines.
Despite this knowledge, the respondent solely signed the amended
complaint for and on behalf of his clients and of the Republic.
The Board of Governors of the IBP Committee on Bar Discipline, through its
Resolution No. XVII-2005-164 on CBD Case No. 03-1100, adopted and
approved the Report and Recommendation of Investigating Commissioner
Cunanan and recommended that the respondent be suspended from the
practice of law for two (2) years.[13] On reconsideration, the Board of
Governors reduced the respondents suspension from the practice of law to
one (1) year.[14]
The Issue
The case poses to us the core issues of whether the respondent can be held
liable for the imputed unethical infractions and professional misconduct, and
the penalty these transgressions should carry.
The Courts Ruling
PINEDAPCGRNMAN
Except for the penalty, we agree with the Report and Recommendation
of Investigating Commissioner Cunanan and the Board of Governors of
the IBP Committee on Bar Discipline.
We take judicial notice that this disbarment complaint is not the only one so
far filed involving the respondent; another complaint invoking similar grounds
has previously been filed. In Plus Builders, Inc. and Edgardo C. Garcia v.
Atty. Anastacio E. Revilla, Jr.,[15] we suspended the respondent from the
practice of law for his willful and intentional falsehood before the court; for
misuse of court procedures and processes to delay the execution of a
judgment; and for collaborating with non-lawyers in the illegal practice of
law. We initially imposed a suspension of two (2) years, but in an act of
leniency subsequently reduced the suspension to six (6) months.[16]
Abuse of court procedures and processes
The following undisputed facts fully support the conclusion that the
respondent is guilty of serious misconduct for abusing court procedures and
processes to shield his clients from the execution of the final judgments of
the MeTC and RTC in the unlawful detainer case against these clients:
First, the respondent filed a petition for certiorari (docketed as CA-G.R. SP
No. 53892) with prayer for the issuance of preliminary injunction and
temporary restraining order to question the final judgments of the MeTC and
RTC for lack of jurisdiction. In dismissing the respondents petition, the CA
held:
Even for the sake of argument considering that the petition case be the
proper remedy, still it must be rejected for failure of petitioners to satisfactorily
demonstrate lack of jurisdiction on the part of the Metropolitan Trial Court of
Quezon City over the ejectment case.[17]
Second, notwithstanding the CAs dismissal of the petition for certiorari, the
respondent again questioned the MeTCs and the RTCs lack of jurisdiction
over the unlawful detainer case in a petition for annulment of judgment
(docketed as Civil Case No. Q-01-45556) before the RTC with an ancillary
prayer for the grant of a temporary restraining order and preliminary
injunction. The RTC dismissed this petition on the basis of the motion to
dismiss filed.[18]
Third, the respondent successively filed two petitions (docketed as Civil Case
No. Q-99-38780 and Civil Case No. Q-02-46885) for annulment of the
complainants title to the property involved in the unlawful detainer case. The
records show that these petitions were both dismissed for lack of legal
personality on the part of the plaintiffs to file the petition.[19]
Fourth, after the dismissals of the petition for annulment of judgment and the
petitions for annulment of title, the respondent this time filed a petition for
declaratory relief with prayer for a writ of preliminary injunction to enjoin the
complainant and his siblings from exercising their rights over the same
property subject of the unlawful detainer case. The respondent based the
petition on the alleged nullity of the complainants title because the property
is a part of forest land.
Fifth, the persistent applications by the respondent for injunctive relief in the
four petitions he had filed in several courts the petition for certiorari, the
petition for annulment of judgment, the second petition for annulment of
complainants title and the petition for declaratory relief reveal the
respondents persistence in preventing and avoiding the execution of the final
decisions of the MeTC and RTC against his clients in the unlawful detainer
case.
Under the circumstances, the respondents repeated attempts go beyond the
legitimate means allowed by professional ethical rules in defending the
interests of his client.These are already uncalled for measures to avoid the
enforcement of final judgments of the MeTC and RTC. In these attempts, the
respondent violated Rule 10.03, Canon 10 of the Code of Professional
Page 123
Responsibility which makes it obligatory for a lawyer to observe the rules of
procedure and. . . not [to] misuse them to defeat the ends of justice. By his
actions, the respondent used procedural rules to thwart and obstruct the
LEGAL ETHICS
speedy and efficient administration of justice, resulting in prejudice to the
winning parties in that case.[20]
Filing of multiple actions and forum shopping
The respondent likewise violated Rule 12.02 and Rule 12.04, Canon 12 of
the Code of Professional Responsibility,[21] as well as the rule against forum
shopping, both of which are directed against the filing of multiple actions to
attain the same objective. Both violations constitute abuse of court
processes; they tend to degrade the administration of justice; wreak havoc
on orderly judicial procedure;[22] and add to the congestion of the heavily
burdened dockets of the courts.[23]
While the filing of a petition for certiorari to question the lower courts
jurisdiction may be a procedurally legitimate (but substantively erroneous)
move, the respondents subsequent petitions involving the same property and
the same parties not only demonstrate his attempts to secure favorable ruling
using different fora, but his obvious objective as well of preventing the
execution of the MeTC and RTC decisions in the unlawful detainer case
against his clients. This intent is most obvious with respect to the petitions for
annulment of judgment and declaratory relief, both geared towards
preventing the execution of the unlawful detainer decision, long after this
decision had become final.
Willful, intentional and deliberate
falsehood before the courts
The records also reveal that the respondent committed willful, intentional and
deliberate falsehood in the pleadings he filed with the lower courts.
First, in the petition for annulment of judgment filed before the RTC, Branch
101, Quezon City, the respondent cited extrinsic fraud as one of the grounds
for the annulment sought. The extrinsic fraud was alleged in the last
paragraph of the petition, as follows:
In here, counsel for the petitioners (defendants therein), deliberately
neglected to file the proper remedy then available after receipt of the denial
of their Motion for Reconsideration thuscorruptly sold out the interest of
the petitioners (defendants therein) by keeping them away to the Court and
in complete ignorance of the suit by a false pretense of compromise and
fraudulent acts of alleging representing them when in truth and in fact, have
connived with the attorney of the prevailing party at his defeat to the
prejudice of the petitioner (defendants therein) [24]
Yet, in paragraph 35 of the same petition, the respondent alleged that no
second motion for reconsideration or for new trial, or no other petition with
the CA had been filed, as he believed that the decisions rendered both by
the MeTC and the RTC are null and void.[25] These conflicting claims, no
doubt, involve a fabrication made for the purpose of supporting the petition
for annulment. Worse, it involved a direct and unsubstantiated attack on the
reputation of a law office colleague, another violation we shall separately
discuss below.
Second, the respondent employed another obvious subterfuge when he filed
his second petition for annulment of title, which was an unsuccessful attempt
to circumvent the rule that only the Solicitor General may commence
reversion proceedings of public lands[26] on behalf of the Republic of the
Philippines. This second petition, filed by a private party and not by the
Republic, showed that: (a) the respondent and his clients requested that they
be represented by the Solicitor General in the proceedings; (b) the Republic
of the Philippines was simply impleaded in the amended petition without its
consent as a plaintiff; and (c) the respondent signed the amended petition
where he alone stood as counsel for the plaintiffs. In this underhanded
manner, the respondent sought to compel the Republic to litigate and waste
its resources on an unauthorized and unwanted suit.
Third, the respondent also committed falsehood in his motion for
reconsideration of the order dismissing his petition for annulment of judgment
where he misrepresented to the court and his clients what actually transpired
in the hearing of June 28, 2002 in this wise:
PINEDAPCGRNMAN
Likewise, the proceedings on said date of hearing (June 28, 2002) show, that
after both counsel have argued on the aforesaid pending incident, the
Honorable Presiding Judge, in open court, and in the presence and within
the hearing distance of all the plaintiffs and their counsel as well as the
counsel of the defendants resolved: TO DENY THE MOTION TO DISMISS
FILED AND DIRECTED DEFENDANTS COUNSEL TO FILE AN ANSWER
TO THE COMPLAINT WITHIN THE REMAINING PERIOD.[27][Underscoring
and emphasis theirs]
The records, however, disclose that the scheduled hearing for June 28, 2002
was actually for the respondents application for temporary restraining order
and was not a hearing on the adverse partys motion to dismiss.[28] The records
also show that RTC-Branch 101 held in abeyance the respondents
application for injunctive relief pending the resolution of the motion to dismiss
filed by the adverse party.[29] As stated in the order of the Presiding Judge of
RTC-Branch 101:
Browsing over the records of this case specifically the transcripts of
stenographic notes as transcribed by the Stenographer, the same will
indicate that the allegations in the Motion for Reconsideration are not true.
how can this Court make a ruling on the matter even without stating the
factual and legal bases as required/mandated by the Rules. Moreover, there
are no indications or iota of irregularity in the preparation by Stenographer of
the transcripts, and by the Court interpreter of the Minutes of the open Court
session.[Underscoring theirs]
The records further disclose that despite knowledge of the falsity of his
allegations, the respondent took advantage of his position and the trust
reposed in him by his clients (who are all squatters) to convince them to
support, through their affidavits, his false claims on what allegedly transpired
in the June 28, 2002 hearing. [30]
For these acts, we find the respondent liable under Rule 10.01 of Canon 10
the Code of Professional Responsibility for violating the lawyers duty to
observe candor and fairness in his dealings with the court. This provision
states:
CANON 10 A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH
TO THE COURT
Rule 10.01 A lawyer shall not do any falsehood, nor consent to the doing of
any in Court, nor shall he mislead or allow the Court to be mislead by an
artifice.
Likewise, the respondent violated his duty as an attorney and his oath as a
lawyer never to mislead the judge or any judicial officer by an artifice or false
statement of fact or law.[31] The respondent failed to remember that his duty
as an officer of the court makes him an indispensable participant in the
administration of justice,[32] and that he is expected to act candidly, fairly and
truthfully in his work.[33] His duty as a lawyer obligates him not to conceal the
truth from the court, or to mislead the court in any manner, no matter how
demanding his duties to his clients may be.[34] In case of conflict, his duties to
his client yield to his duty to deal candidly with the court.[35]
In defending his clients interest, the respondent also failed to observe Rule
19.01, Canon 19 of the Code of Professional Responsibility, which reads:
CANON 19 A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL
WITHIN THE BOUNDS OF LAW
Rule 19.01 A lawyer shall employ only fair and honest means to attain the
lawful objectives of his clients x x x
This Canon obligates a lawyer, in defending his client, to employ only such
means as are consistent with truth and honor.[36] He should not prosecute
patently frivolous and meritless appeals or institute clearly groundless
actions.[37] The recital of what the respondent did to prevent the execution of
Page 124
the judgment against his clients shows that he actually committed what the
above rule expressly prohibits.
LEGAL ETHICS
Maligning the name of his fellow lawyers
To support the charge of extrinsic fraud in his petition for annulment of
judgment, the respondent attacked (as quoted above) the name and
reputation of the late Atty. Catolico and accused him of deliberate neglect,
corrupt motives and connivance with the counsel for the adverse party.
We find it significant that the respondent failed to demonstrate how he came
upon his accusation against Atty. Catolico. The respondent, by his own
admission, only participated in the cases previously assigned to Atty.
Catolico after the latter died. At the same time, the respondents petition for
annulment of judgment also represented that no second motion for
reconsideration or appeal was filed to contest the MeTC and RTC decisions
in the unlawful detainer case for the reason that the respondent believed the
said decisions were null and void ab initio.
Under these circumstances, we believe that the respondent has been less
than fair in his professional relationship with Atty. Catolico and is thus liable
for violating Canon 8 of the Code of Professional Responsibility, which
obligates a lawyer to conduct himself with courtesy, fairness, and candor
toward his professional colleagues. He was unfair because he imputed
wrongdoing to Atty. Catolico without showing any factual basis therefor; he
effectively maligned Atty. Catolico, who is now dead and unable to defend
himself.
Unauthorized appearances
We support Investigating Commissioner Cunanans finding that the
respondent twice represented parties without proper authorization: first, in
the petition for annulment of judgment; and second, in the second petition for
annulment of title.[38]
In the first instance, the records show that the respondent filed the petition
for annulment of judgment on behalf of 49 individuals, 31 of whom gave their
consent while the other 15 individuals did not. We cannot agree with the
respondents off-hand explanation that he truly believed that a majority of the
litigants who signed the certification of non-forum shopping in the petition
already gave him the necessary authority to sign for the others. We find it
highly improbable that this kind of lapse could have been committed by a
seasoned lawyer like the respondent, who has been engaged in the practice
of law for more than 30 years and who received rigid and strict training as he
so proudly declares, from the University of the Philippines College of Law
and in the two law firms with which he was previously associated.[39] As
Investigating Commissioner Cunanan found, the respondents explanation of
compliance with the rule on the certification of non-forum shopping glossed
over the real charge of appearing in court without the proper authorization of
the parties he allegedly represented.
In the second instance, which occurred in the second complaint for
annulment of title, the respondent knew that only the Solicitor General can
legally represent the Republic of the Philippines in actions for reversion of
land. Nevertheless, he filed an amended petition where he impleaded the
Republic of the Philippines as plaintiff without its authority and consent, as a
surreptitious way of forcing the Republic to litigate. Notably, he signed the
amended complaint on behalf of all the plaintiffs his clients and the Republic.
In both instances, the respondent violated Sections 21 and 27, Rule 138 of
the Rules of Court when he undertook the unauthorized appearances. The
settled rule is that a lawyer may not represent a litigant without authority from
the latter or from the latters representative or, in the absence thereof, without
leave of court.[40] The willful unauthorized appearance by a lawyer for a party
in a given case constitutes contumacious conduct and also warrants
disciplinary measures against the erring lawyer for professional
misconduct.[41]
The Respondents Defenses
We find no merit in the respondents defenses.
PINEDAPCGRNMAN
Good faith connotes an honest intention to abstain from taking
unconscientious advantage of another. Accordingly, in University of the East
v. Jader we said that "[g]ood faith connotes an honest intention to abstain
from taking undue advantage of another, even though the forms and
technicalities of law, together with the absence of all information or belief of
facts, would render the transaction unconscientious."[42] Bad faith, on the
other hand, is a state of mind affirmatively operating with furtive design or
with some motive of self-interest, ill will or for an ulterior purpose.[43] As both
concepts are states of mind, they may be deduced from the attendant
circumstances and, more particularly, from the acts and statements of the
person whose state of mind is the subject of inquiry.
In this case, we find that the respondent acted in bad faith in defending the
interests of his clients. We draw this conclusion from the misrepresentations
and the dubious recourses he made, all obviously geared towards forestalling
the execution of the final judgments of the MeTC and RTC. That he took
advantage of his legal knowledge and experience and misread the Rules
immeasurably strengthen the presence of bad faith.
We find neither sincerity nor honest belief on the part of the respondent in
pleading the soundness and merit of the cases that he filed in court to prevent
the execution of the MeTC and RTC decisions, considering his own conduct
of presenting conflicting theories in his petitions. The succession of cases he
filed shows a desperation that negates the sincere and honest belief he
claims; these are simply scattershot means to achieve his objective of
avoiding the execution of the unlawful detainer judgment against his clients.
On the respondents allegations regarding his discretion to determine legal
strategy, it is not amiss to note that this was the same defense he raised in
the first disbarment case.[44] As we explained in Plus Builders, the exercise of
a lawyers discretion in acting for his client can never be at the expense of
truth and justice. In the words of this cited case:
While a lawyer owes absolute fidelity to the cause of his client, full devotion
to his genuine interest, and warm zeal in the maintenance and defense of his
rights, as well as the exertion of his utmost learning and ability, he must do
so only within the bounds of the law. He must give a candid and honest
opinion on the merits and probable results of his clients case with the end in
view of promoting respect for the law and legal processes, and counsel or
maintain such actions or proceedings only as appear to him to be just, and
such defenses only as he believes to be honestly debatable under the
law. He must always remind himself of the oath he took upon admission to
the Bar that he will not wittingly or willingly promote or sue any groundless,
false or unlawful suit nor give aid nor consent to the same; and that he will
conduct [himself] as a lawyer according to the best of [his] knowledge and
discretion with all good fidelity as well to the courts as to [his] clients.
Needless to state, the lawyers fidelity to his client must not be pursued at the
expense of truth and the administration of justice, and it must be done within
the bounds of reason and common sense. A lawyers responsibility to protect
and advance the interests of his client does not warrant a course of action
propelled by ill motives and malicious intentions against the other party.[45]
We cannot give credence to the respondents claim that the disbarment case
was filed because the counsel of the complainant, Atty. Uy, had an axe to
grind against him. We reject this argument, considering that it was not Atty.
Uy who filed the present disbarment case against him; Atty. Uy is only the
counsel in this case. In fact, Atty. Uy has filed his own separate disbarment
case against the respondent.
The sui generis nature of a disbarment case renders the underlying motives
of the complainants unimportant and with very little relevance. The purpose
of a disbarment proceeding is mainly to determine the fitness of a lawyer to
continue acting as an officer of the court and a participant in the dispensation
of justice an issue where the complainants personal motives have little
relevance. For this reason, disbarment proceedings may be initiated by the
Court motu proprio upon information of an alleged wrongdoing. As we also
explained in the case In re: Almacen:
Page 125
. . .disciplinary proceedings like the present are sui generis. Neither purely
civil nor purely criminal, this proceeding is not - and does not involve - a trial
of an action or a suit, but is rather an investigation by the Court into the
LEGAL ETHICS
conduct of one of its officers. Not being intended to inflict punishment, it is in
no sense a criminal prosecution.
xxx
It may be initiated by the Court motu proprio. Public interest is its primary
objective, and the real question for determination is whether or not the
attorney is still a fit person to be allowed the privileges as such. Hence, in the
exercise of its disciplinary powers, the Court merely calls upon a member of
the Bar to account for his actuations as an officer of-the Court with the end
in view of preserving the purity of the legal profession and the proper and
honest administration of justice by purging the profession of members who
by their misconduct have proved themselves no longer worthy to be
entrusted with the duties and responsibilities pertaining to the office of an
attorney. In such posture, there can thus be no occasion to speak of a
complainant or a prosecutor.[46]
Hence, we give little or no weight to the alleged personal motivation that
drove the complainant Que and his counsel to file the present disbarment
case.
Conclusion
Based on the foregoing, we conclude that the respondent committed various
acts of professional misconduct and thereby failed to live up to the exacting
ethical standards imposed on members of the Bar. We cannot agree,
however, that only a penalty of one-year suspension from the practice of law
should be imposed. Neither should we limit ourselves to the originally
recommended penalty of suspension for two (2) years.
Given the respondents multiple violations, his past record as previously
discussed, and the nature of these violations which shows the readiness to
disregard court rules and to gloss over concerns for the orderly administration
of justice, we believe and so hold that the appropriate action of this Court is
to disbar the respondent to keep him away from the law profession and from
any significant role in the administration of justice which he has disgraced.
He is a continuing risk, too, to the public that the legal profession serves. Not
even his ardor and overzealousness in defending the interests of his client
can save him. Such traits at the expense of everything else, particularly the
integrity of the profession and the orderly administration of justice, this Court
cannot accept nor tolerate.
Additionally, disbarment is merited because this is not the respondents first
ethical infraction of the same nature. We penalized him in Plus Builders, Inc.
and Edgardo Garcia versus Atty. Anastacio E. Revilla for his willful and
intentional falsehood before the court; for misuse of court procedures and
processes to delay the execution of a judgment; and for collaborating with
non-lawyers in the illegal practice of law. We showed leniency then by
reducing his penalty to suspension for six (6) months. We cannot similarly
treat the respondent this time; it is clear that he did not learn any lesson from
his past experience and since then has exhibited traits of incorrigibility. It is
time to put afinis to the respondents professional legal career for the sake of
the public, the profession and the interest of justice.
WHEREFORE, premises considered, we hereby AFFIRM Resolution No.
XVII-2005-164 dated December 17, 2005 and Resolution No. XVII-2008-657
dated December 11, 2008 of the Board of Governors of the IBP Committee
on Bar Discipline insofar as respondent Atty. Anastacio Revilla, Jr. is found
liable for professional misconduct for violations of the Lawyers Oath; Canon
8; Rules 10.01 and 10.03, Canon 10; Rules 12.02 and 12.04, Canon 12; Rule
19.01, Canon 19 of the Code of Professional Responsibility; and Sections
20(d), 21 and 27 of Rule 138 of the Rules of Court. However, we modify the
penalty the IBP imposed, and hold that the respondent should be
DISBARRED from the practice of law.
SO ORDERED.
[A.C. No. 4807. March 22, 2000]
MANUEL N. CAMACHO, complainant, vs. ATTYS. LUIS MEINRADO C.
PANGULAYAN, REGINA D. BALMORES, CATHERINE V. LAUREL and
PINEDAPCGRNMAN
HUBERT JOAQUIN P. BUSTOS of PANGULAYAN AND ASSOCIATES
LAW OFFICES, respondents.
D E C I S IO N
VITUG, J.: JVITUG
Respondent lawyers stand indicted for a violation of the Code of Professional
Ethics, specifically Canon 9 thereof, viz:
"A lawyer should not in any way communicate upon the subject of
controversy with a party represented by counsel, much less should he
undertake to negotiate or compromise the matter with him, but should only
deal with his counsel. It is incumbent upon the lawyer most particularly to
avoid everything that may tend to mislead a party not represented by counsel
and he should not undertake to advise him as to law." barth
Atty. Manuel N. Camacho filed a complaint against the lawyers comprising
the Pangulayan and Associates Law Offices, namely, Attorneys Luis
Meinrado C. Pangulayan, Regina D. Balmores, Catherine V. Laurel, and
Herbert Joaquin P. Bustos. Complainant, the hired counsel of some expelled
students from the AMA Computer College ("AMACC"), in an action for the
Issuance of a Writ of Preliminary Mandatory Injunction and for Damages,
docketed Civil Case No. Q-97-30549 of the Regional Trial Court, Branch 78,
of Quezon City, charged that respondents, then counsel for the defendants,
procured and effected on separate occasions, without his knowledge,
compromise agreements ("Re-Admission Agreements") with four of his
clients in the aforementioned civil case which, in effect, required them to
waive all kinds of claims they might have had against AMACC, the principal
defendant, and to terminate all civil, criminal and administrative proceedings
filed against it. Complainant averred that such an act of respondents was
unbecoming of any member of the legal profession warranting either
disbarment or suspension from the practice of law.
In his comment, Attorney Pangulayan acknowledged that not one of his co-
respondents had taken part in the negotiation, discussion, formulation, or
execution of the various Re-Admission Agreements complained of and were,
in fact, no longer connected at the time with the Pangulayan and Associates
Law Offices. The Re-Admission Agreements, he claimed, had nothing to do
with the dismissal of Civil Case Q-97-30549 and were executed for the sole
purpose of effecting the settlement of an administrative case involving nine
students of AMACC who were expelled therefrom upon the recommendation
of the Student Disciplinary Tribunal. The students, namely, Ian Dexter
Marquez, Almira O. Basalo, Neil Jason R. Salcedo, Melissa F. Domondon,
Melyda B. De Leon, Leila D. Joven, Signorelli A. Santiago, Michael Ejercito,
and Cleo B. Villareiz,, were all members of the Editorial Board of DATALINE,
who apparently had caused to be published some objectionable features or
articles in the paper. The 3-member Student Disciplinary Tribunal was
immediately convened, and after a series of hearings, it found the students
guilty of the use of indecent language and unauthorized use of the student
publication funds. The body recommended the penalty of expulsion against
the erring students. Jksm
The denial of the appeal made by the students to Dr. Amable R. Aguiluz V,
AMACC President, gave rise to the commencement of Civil Case No. Q-97-
30549 on 14th March 1997 before the Regional Trial Court, Branch 78, of
Quezon City. While the civil case was still pending, letters of apology and Re-
Admission Agreements were separately executed by and/or in behalf of
some of the expelled students, to wit: Letter of Apology, dated 27 May 1997,
of Neil Jason Salcedo, assisted by his mother, and Re-Admission Agreement
of 22 June 1997 with the AMACC President; letter of apology, dated 31 March
1997, of Mrs. Veronica B. De Leon for her daughter Melyda B. De Leon and
Re-Admission Agreement of 09 May 1997 with the AMACC President; letter
of apology, dated 22 May 1997, of Leila Joven, assisted by her mother, and
Re-Admission Agreement of 22 May 1997 with the AMACC President; letter
of apology, dated 22 September 1997, of Cleo Villareiz and Re-Admission
Agreement of 10 October 1997 with the AMACC President; and letter of
apology, dated 20 January 1997, of Michael Ejercito, assisted by his parents,
and Re-Admission Agreement of 23 January 1997 with the AMACC
President.
Following the execution of the letters of apology and Re-Admission
Agreements, a Manifestation, dated 06 June 1997, was filed with the trial
court where the civil case was pending by Attorney Regina D. Balmores of
the Pangulayan and Associates Law Offices for defendant AMACC. A copy
Page 126
of the manifestation was furnished complainant. In his Resolution, dated 14
June 1997, Judge Lopez of the Quezon City Regional Trial Court thereupon
dismissed Civil Case No. Q-97-30549.
LEGAL ETHICS
On 19 June 1999, the Board of Governors of the Integrated Bar of the
Philippines ("IBP") passed Resolution No. XIII-99-163, thus:
"RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner in 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, with
an amendment Atty. Meinrado Pangulayan is suspended from the practice of
law for SIX (6) MONTHS for being remiss in his duty and DISMISSAL of the
case against the other Respondents for they did not take part in the
negotiation of the case." Chief
It would appear that when the individual letters of apology and Re-Admission
Agreements were formalized, complainant was by then already the retained
counsel for plaintiff students in the civil case. Respondent Pangulayan had
full knowledge of this fact. Although aware that the students were
represented by counsel, respondent attorney proceeded, nonetheless, to
negotiate with them and their parents without at the very least communicating
the matter to their lawyer, herein complainant, who was counsel of record in
Civil Case No. Q-97-30549. This failure of respondent, whether by design or
because of oversight, is an inexcusable violation of the canons of
professional ethics and in utter disregard of a duty owing to a colleague.
Respondent fell short of the demands required of him as a lawyer and as a
member of the Bar.
The allegation that the context of the Re-Admission Agreements centers only
on the administrative aspect of the controversy is belied by the
Manifestation[1] which, among other things, explicitly contained the following
stipulation; viz:
"1.......Among the nine (9) signatories to the complaint, four (4) of whom
assisted by their parents/guardian already executed a Re-Admission
Agreement with AMACC President, AMABLE R. AGUILUZ V acknowledging
guilt for violating the AMA COMPUTER COLLEGE MANUAL FOR
DISCIPLINARY ACTIONS and agreed among others to terminate all civil,
criminal and administrative proceedings which they may have against the
AMACC arising from their previous dismissal. Esm
"x x x......x x x x x x
"3. Consequently, as soon as possible, an Urgent Motion to Withdraw from
Civil Case No. Q-97-30549 will by filed them."
The Court can only thus concur with the IBP Investigating Commission and
the IBP Board of Governors in their findings; nevertheless, the recommended
six-month suspension would appear to be somewhat too harsh a penalty
given the circumstances and the explanation of respondent.
WHEREFORE, respondent Atty. Luis Meinrado C. Pangulayan is ordered
SUSPENDED from the practice of law for a period of THREE (3) MONTHS
effective immediately upon his receipt of this decision. The case against the
other respondents is DISMISSED for insufficiency of evidence.
Let a copy of this decision be entered in the personal record of respondent
as an attorney and as a member of the Bar, and furnished the Bar Confidant,
the Integrated Bar of the Philippines and the Court Administrator for
circulation to all courts in the country.
SO ORDERED.
Rule 8.01 – A lawyer shall not, in his professional dealings, use
language which is abusive, offensive or otherwise improper.
Rule 8.02 – A lawyer shall not, directly or indirectly, encroach upon the
professional employment of another lawyer; however, it is the right of
any lawyer without fear or favor, to give proper advice and assistance
to those seeking relief against unfaithful or neglectful counsel.
 It is the duty of a lawyer to inform the SC or the IBP of such
malpractice to the end that the malpractitioner be properly
disciplined.
 Not to use in pleadings and in practice the following:
disrespectful, abusive and abrasive language, offensive
personalities, unfounded accusations or intemperate words
tending to obstruct, embarrass or influence the court in
administering justice.
 Want of intention: not an excuse for the disrespectful language
used. It merely extenuates liability.
PINEDAPCGRNMAN
LINSANGAN VS ATTY TOLENTINO (SUPRA)
CANON 9 – A LAWYER SHALL NOT DIRECTLY OR INDIRECTLY ASSIST
IN THE UNAUTHORIZED PRACTICE OF LAW.
[G.R. Nos. 89591-96. January 24, 2000]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. BONIFACIO SANZ
MACEDA, Presiding Judge of Branch 12, Regional Trial Court of
Antique, and AVELINO T. JAVELLANA, respondents. ULANDU
RESOLUTION
PARDO, J.:
On September 8, 1999, we denied the Peoples motion seeking
reconsideration of our August 13, 1990 decision in these cases. In said
resolution, we held that respondent Judge Bonifacio Sanz Maceda
committed no grave abuse of discretion in issuing the order of August 8, 1989
giving custody over private respondent Avelino T. Javellana to the Clerk of
Court of the Regional Trial Court, Branch 12, San Jose, Antique, Atty.
Deogracias del Rosario, during the pendency of Criminal Cases Nos. 3350-
3355. At that time, sufficient reason was shown why private respondent
Javellana should not be detained at the Antique Provincial Jail. The trial
courts order specifically provided for private respondents detention at the
residence of Atty. del Rosario. However, private respondent was not to be
allowed liberty to roam around but was to be held as detention prisoner in
said residence.
This order of the trial court was not strictly complied with because private
respondent was not detained in the residence of Atty. Del Rosario. He went
about his normal activities as if he were a free man, including engaging in the
practice of law. Despite our resolution of July 30, 1990 prohibiting private
respondent to appear as counsel in Criminal Case No. 4262,[1] the latter
accepted cases and continued practicing law.
On April 7, 1997, Senior State Prosecutor Henrick F. Guingoyon filed with
the Supreme Court a motion seeking clarification on the following questions:
"(1) Does the resolution of this Honorable Court dated July 30, 1990,
prohibiting Atty. Javellana from appearing as counsel refer only to Criminal
Case No. 4262? (2) Is Atty. now (Judge) Deogracias del Rosario still the
custodian of Atty. Javellana? and (3) Since it appears that Atty. (now Judge)
del Rosario never really held and detained Atty. Javellana as prisoner in his
residence, is not Atty. Javellana considered an escapee or a fugitive of justice
for which warrant for his arrest should forthwith be issued?"[2] Mis spped
In a resolution dated June 18, 1997, we "noted" the above motion.
After we denied the motion for reconsideration on September 8, 1999, the
trial court resumed hearing Criminal Cases Nos. 3350-3355. Earlier, on
August 2, 1999, Rolando Mijares filed with the Regional Trial Court, Branch
12, San Jose, Antique, a motion seeking the revocation of the trial courts
custody order and the imprisonment of private respondent Javellana in the
provincial jail.
On November 15, 1999, private respondent Javellana filed with the Supreme
Court an urgent motion seeking to clarify whether the June 18, 1997
resolution finally terminated or resolved the motion for clarification filed by
the State Prosecutor on April 7, 1997.
Private respondent Javellana has been arrested based on the filing of
criminal cases against him. By such arrest, he is deemed to be under the
custody of the law. The trial court gave Atty. Deogracias del Rosario the
custody of private respondent Javellana with the obligation "to hold and
detain" him in Atty. del Rosarios residence in his official capacity as the clerk
of court of the regional trial court. Hence, when Atty. del Rosario was
appointed judge, he ceased to be the personal custodian of accused
Javellana and the succeeding clerk of court must be deemed the custodian
under the same undertaking.
In our mind, the perceived threats to private respondent Javelanas life no
longer exist. Thus, the trial courts order dated August 8, 1989 giving custody
over him to the clerk of court must be recalled, and he shall be detained at
the Provincial Jail of Antique at San Jose, Antique.
Regarding his continued practice of law, as a detention prisoner private
respondent Javellana is not allowed to practice his profession as a necessary
consequence of his status as a detention prisoner. The trial courts order was
clear that private respondent "is not to be allowed liberty to roam around but
Page 127
is to be held as a detention prisoner." The prohibition to practice law referred
not only to Criminal Case No. 4262, but to all other cases as well, except in
LEGAL ETHICS
cases where private respondent would appear in court to defend himself.
Spped
As a matter of law, when a person indicted for an offense is arrested, he is
deemed placed under the custody of the law. He is placed in actual restraint
of liberty in jail so that he may be bound to answer for the commission of the
offense.[3] He must be detained in jail during the pendency of the case against
him, unless he is authorized by the court to be released on bail or on
recognizance.[4] Let it be stressed that all prisoners whether under preventive
detention or serving final sentence can not practice their profession nor
engage in any business or occupation, or hold office, elective or appointive,
while in detention. This is a necessary consequence of arrest and detention.
Consequently, all the accused in Criminal Cases Nos. 3350-3355 must be
confined in the Provincial Jail of Antique.
Considering that the pendency of Criminal Cases Nos. 3350-3355 has
dragged on for more than ten (10) years, the presiding judge of the Regional
Trial Court, Branch 12, San Jose, Antique, is ordered to continue with the trial
of said criminal cases with all deliberate dispatch and to avoid further delay.
WHEREFORE, the August 8, 1989 order of the trial court is hereby SET
ASIDE. All accused in Criminal Cases Nos. 3350-3355, including Avelino T.
Javellana and Arturo F. Pacificador are ordered detained at the Provincial
Jail of Antique, San Jose, Antique, effective immediately, and shall not be
allowed to go out of the jail for any reason or guise, except upon prior written
permission of the trial court for a lawful purpose.
Let copies of this resolution be given to the Provincial Director, PNP Antique
Provincial Police Office, San Jose, Antique and to the Provincial Jail Warden,
Provincial Jail of Antique, San Jose, Antique.
SO ORDERED.
A.M. No. P-220 December 20, 1978
JULIO ZETA, complainant,
vs.
FELICISIMO MALINAO, respondent.
BARREDO, J.:
Administrative complaint against Felicisimo Malinao court interpreter of the
Court of First Instance of Catbalogan, Samar charging as follows:
l — ILLEGALLY APPEARING IN COURT. — MR. Malinao has been
appearing in the municipal court of this town for parties like attorney when he
is not an attorney. Reliable information also says he has been appearing in
the municipal courts of Daram, Zumarraga, Talalora and even Sta. Rita. He
is not authorized to do so we believe. He makes it his means of livelihood as
he collects fees from his clients. He competes with attorneys but does not
pay anything. We believe that his doing so should be stopped for a good
government. These facts can be checked with records of those municipal
courts.
2 — GRAVE MISCONDUCT IN OFFICE. — Being employed in the Court of
First Instance he would instigate persons, especially in his barrio to grab land
rob or coerce. In fact he has cases in the municipal court in this town involving
himself and his men. He incite them telling them not to be afraid as he is a
court employee and has influence over the judges. Those persons being
ignorant would believe him and so would commit crimes. This act of Mr.
Malinao is contrary to good order and peace as he is using his supposed
influences to urge persons to commit crimes.
3 — CRIME OF FALSIFICATION. — Information has it that he is unfaithfully
filing his time record in the CFI. Even he has been out practicing in the
municipal courts sometimes he would fill his time record as present. He
receives salary for those absent days. This can be checked with time record
he has submitted and if he has any application for leave. He may try to cure
it by submitting application for leave but this should not be allowed as he has
already committed crime.
4 — VIOLATION OF EXECUTIVE ORDER AND CIVIL SERVICE LAW.-WE
have reliable information it is prohibited for a civil service employee to engage
in private practice any profession or business without permission from the
Department Head. Mr. Malinao we are sure has not secured that permission
because he should not be allowed to practice as he is not an attorney. If that
were so, he violated that Executive Order and Civil Service Law and we are
urgently and earnestly requesting the Commissioner of Civil Service to
investigate him on this. If warranted he should be given the corresponding
penalty as dismissal because we believe he deserve it. (Page 2, Record.)
PINEDAPCGRNMAN
After respondent filed the following 3rd indorsement relative to the above
complaint:
Respectfully returned to the Honorable, the Secretary of Justice, Manila, thru
the Honorable District Judge, Court of First Instance, Branch I, Catbalogan,
Samar, and thru the Honorable Judicial Superintendent, Department of
Justice, Manila, the undersigned's reply to the preceding endorsements, to
wit: That the alleged letter-complaint of one Julio Zeta is not inclosed in the
first indorsement, which absence has also been noticed and noted on the
right hand corner of the said first indorsement by the Clerk of Court, of this
Court; that despite this absence, and without waiving, however, his right to
any pertinent provision of law, but for respect and courtesy to a Superior, he
hereby states that he has not violated any rule or law, much less Sec. 12,
Rule XVIII of the Civil Service Rules; that his participation for defendants'
cause was gratuitous as they could not engage the services of counsel by
reason of poverty and the absence of one in the locality, said assistance has
also checked the miscarriage of justice by the Presiding Municipal Judge,
now resigned; that he is attaching herewith a carbon-original of a pleading
submitted by Atty. Simeon Quiachon the attorney of record for the defendants
in Civil Case No. 24, entitled 'Jose Kiskisan versus Fidel Pacate, et al. for
Forcible Entry, in the Municipal Court of Talalora, Samar, which is a 'Motion
To Withdraw Exhibits', as Annex 'A', as part of this reply. (Page 5, Rec.)
the Department of Justice that had jurisdiction over the matter then, referred
the said complaint and answer to District Judge Segundo Zosa, Court of First
Instance, Catbalogan, Western Samar, for investigation, report and
recommendation, and after due hearing, Judge Zosa submitted his report
pertinent parts of which read thus:
Inspite of diligent efforts exerted by the Court to subpoena the complainant,
Julio Zeta, who is said to be a resident of Zumarraga, Samar the same had
failed because the said Julio Zeta appears to be a fictitious person
Inspite of the failure of the complainant to appear in the investigation in
connection with his complaint against Felicisimo Malinao, the Court
nevertheless proceeded to investigate the case against him by calling Judge
Restituto Duran of Sta. Rita, Samar, Judge Juanito Reyes of Zumarraga,
Samar and Judge Miguel Avestruz of Daram, Samar.
Judge Restituto Duran of Sta. Rita, Samar, declared that according to his
docket books the respondent appeared as counsel for Vicente Baculanlan in
criminal case No. 1247 in the Municipal Court of Sta. Rita, Samar, for grave
threats and in criminal case No. 1249 for the same accused and Romulo
Villagracia for illegal possession of firearm on August 5, 1960 and on
September 17, 1970.
Judge Miguel Avestruz of Daram, Samar, declared that the respondent
appeared as counsel in civil case No. 39 in the Municipal Court of Daram,
Samar, entitled Felix Versoza versus Victor Payao, et al., for forcible entry on
December 15, 1962, January 26, 1963, February 18, 1963 and on March
1, 1963.
Judge Juanito Reyes declared that on March 27, 1969, the respondent
appeared as counsel for the defendant in civil case No. 318 of the Municipal
Court of Zumarraga entitled Restituto Centino versus Jesus Tizon for forcible
entry and again on June 17, 1970 in the same case.
From the certification of the Clerk of this Court, it appears that the respondent
had the following entries in his daily time record:
1. Was on leave from office on August 5, 1960 and September 17, 1960;
2. Was present in office on December l5, 1962;
3. Was present in office on January 26, 1963, and present also on February
18, 1963 but undertime by 1 hour;
4. Was on leave from office on March 1, 1963;
5. Was on leave from office on March 27, 1969; and
6. Was present in office on June 17, 1970 but undertime by 5 hours.
Comparing the dates when the respondent appeared before the
aforementioned Municipal Courts with his daily time records, he made it
appear that on December 15, 1962 and February 18, 1963 he was present
in his office although according to the testimony of Judge Miguel Avestruz he
was before his Court on December 15, 1962 as well as on February 18, 1963.
Again according to Judge Juanito Reyes the respondent appeared in his
Court on June 17, 1970. The respondent again made it appear in his daily
time record that he was present with an undertime of five hours. The
respondent did not offer any plausible explanation for this irregularity.
Page 128
xxx xxx xxx
With respect to the crime of falsification of his daily time record as shown by
the evidence, he had made it appear that he was present in his office on
LEGAL ETHICS
December 15, 1962, February 18, 1963 and June 17, 1970 when as a matter
of fact he was in the Municipal Court of Daram attending to a case entitled
Felix Versoza versus Victor Payao, et al., for forcible entry as well as in the
Municipal Court of Zumarraga attending to Civil Case No. 318 entitled
Restituto Centino versus Jesus Tizon for forcible entry. The Inquest Judge
respectfully recommends that he be given stern warning and severe
reprimand for this irregularity.
With respect to the fourth charge, for violation of Section 12, Rule XVIII,
Republic Act 2260, as amended, again the evidence shows that respondent
had been appearing as counsel in the municipal courts of Sta. Rita, Daram
and Zumarraga in violation of the rules of the Civil Service Law. (Pp. 28-31,
Record.)
We have carefully reviewed the record, and We find the conclusions of fact
of the Investigator to be amply supported by the evidence, particularly the
documents consisting of public records and the declarations of the judges
before whom respondent had appeared. It is clear to Us that respondent,
apart from appearing as counsel in various municipal courts without prior
permission of his superiors in violation of civil service rules and regulations,
falsified his time record of service by making it appear therein that he was
present in his office on occasions when in fact he was in the municipal courts
appearing as counsel, without being a member of the bar, which,
furthermore, constitutes illegal practice of law. We, therefore, adopt the
above findings of fact of the Investigator.
The defense of respondent that "his participation (sic) for defendants' cause
was gratuitous as they could not engage the services of counsel by reason
of poverty and the absence of one in the locality" cannot, even if true, carry
the day for him, considering that in appearing as counsel in court, he did so
without permission from his superiors and, worse, he falsified his time record
of service to conceal his absence from his office on the dates in question.
Indeed, the number of times that respondent acted as counsel under the
above circumstances would indicate that he was doing it as a regular practice
obviously for considerations other than pure love of justice.
In the premises, it is quite obvious that the offense committed by respondent
is grave, hence it warrants a more drastic sanction than that of reprimand
recommended by Judge Zosa. We find no alternative than to separate him
from the service, with the admonition that he desist from appearing in any
court or investigative body wherein Only members of the bar are allowed to
practice.
WHEREFORE, respondent Felicisimo Malinao is hereby ordered dismissed
from his position as interpreter in the Court of First Instance, CFI, Zumarraga,
Western Samar with prejudice to reemployment in the judicial branch of the
government.
G.R. No. 169517
ROGELIO A. TAN, NORMA TAN
and MALIYAWAO PAGAYOKAN,
Petitioners,
BENEDICTO M. BALAJADIA,
Respondent. Promulgated:
March 14, 2006
x ------------------------------------------------------------------------------------------ x
DECISION
YNARES-SANTIAGO, J.:
Before us is an original petition[1] for contempt filed by petitioners Rogelio
Tan, Norma Tan and Maliyawao Pagayokan against respondent Benedicto
Balajadia.
Petitioners allege that on May 8, 2005, respondent filed a criminal case
against them with the Office of the City of Prosecutor of Baguio City for
usurpation of authority, grave coercion and violation of city tax ordinance due
to the alleged illegal collection of parking fees by petitioners from respondent.
In paragraph 5 of the complaint-affidavit, respondent asserted that he is a
practicing lawyer based in Baguio City with office address at
PINEDAPCGRNMAN
Room B-207, 2/F Lopez Building, Session Road, Baguio City.[2] However,
certifications issued by the Office of the Bar Confidant[3] and the Integrated
Bar of the Philippines[4] showed that respondent has never been admitted to
the Philippine Bar.Hence, petitioners claim that respondent is liable for
indirect contempt for misrepresenting himself as a lawyer.
In his Comment,[5] respondent avers that the allegation in paragraph 5 of the
complaint-affidavit that he is a practicing lawyer was an honest mistake. He
claims that the secretary of Atty. Paterno Aquino prepared the subject
complaint-affidavit which was patterned after Atty. Aquinos complaint-
affidavit.[6] It appears that Atty. Aquino had previously filed a complaint-
affidavit against petitioners involving the same subject matter.
Respondent claims that two complaint-affidavits were drafted by the same
secretary; one for the May 5, 2005 parking incident at 10:00 oclock in the
morning and another for the parking incident on the same date but which
occurred at 1:00 oclock in the afternoon. Respondent insists that the
complaint-affidavit regarding the 1:00 oclock parking incident correctly
alleged that he is a businessman with office address at Room B-204, 2/F
Lopez Building, Session Road, Baguio City.[7] However, the complaint-
affidavit regarding the 10:00 oclock parking incident, which is the subject of
the instant petition, erroneously referred to him as a practicing lawyer
because Atty. Aquinos secretary copied verbatim paragraph 5 of Atty.
Aquinos complaint-affidavit. Hence, it was inadvertently alleged that
respondent is a practicing lawyer based in Baguio City with office address at
Room B-207, 2/F Lopez Building, Session Road, Baguio City, which
statement referred to the person of Atty. Aquino and his law office address.
Liza Laconsay, Atty. Aquinos secretary, executed an affidavit[8] admitting the
mistake in the preparation of the complaint-affidavit. Respondent alleged that
he did not read the complaint-affidavit because he assumed that the two
complaint-affidavits contained the same allegations with respect to his
occupation and office address. Respondent claims that he had no intention
of misrepresenting himself as a practicing lawyer.
In their Reply,[9] petitioners reiterate that respondent should be made liable
for indirect contempt for having made untruthful statements in the complaint-
affidavit and that he cannot shift the blame to Atty. Aquinos secretary.
The sole issue for resolution is whether respondent is liable for indirect
contempt.
Section 3(e), Rule 71 of the Rules of Court provides:
Section 3. Indirect contempt to be punished after charge and hearing. After
a charge in writing has been filed, and an opportunity given to the respondent
to comment thereon within such period as may be fixed by the court and to
be heard by himself or counsel, a person guilty of any of the following acts
may be punished for indirect contempt:
xxxx
(e) Assuming to be an attorney or an officer of a court, and acting as such
without authority;
x x x x.
In several cases,[10] we have ruled that the unauthorized practice of law by
assuming to be an attorney and acting as such without authority constitutes
indirect contempt which is punishable by fine or imprisonment or both. The
liability for the unauthorized practice of law under Section 3(e), Rule 71 of the
Rules of Court is in the nature of criminal contempt and the acts are punished
because they are an affront to the dignity and authority of the court, and
obstruct the orderly administration of justice. In determining liability for
criminal contempt, well-settled is the rule that intent is a necessary element,
and no one can be punished unless the evidence makes it clear that he
intended to commit it.[11]
Page 129
In the case at bar, a review of the records supports respondents claim that
he never intended to project himself as a lawyer to the public. It was a clear
LEGAL ETHICS
inadvertence on the part of the secretary of Atty Aquino. The affidavit of Liza
Laconsay attesting to the circumstances that gave rise to the mistake in the
drafting of the complaint-affidavit conforms to the documentary evidence on
record. Taken together, these circumstances show that the allegation in
paragraph 5 of respondents complaint-affidavit was, indeed, the result of
inadvertence.
Respondent has satisfactorily shown that the allegation that he is a practicing
lawyer was the result of inadvertence and cannot, by itself, establish intent
as to make him liable for indirect contempt. In the cases where we found a
party liable for the unauthorized practice of law, the party was guilty of some
overt act like signing court pleadings on behalf of his client;[12] appearing
before court hearings as an attorney;[13] manifesting before the court that he
will practice law despite being previously denied admission to the bar;[14] or
deliberately attempting to practice law and holding out himself as an attorney
through circulars with full knowledge that he is not licensed to do so.[15]
In the case at bar, no evidence was presented to show that respondent acted
as an attorney or that he intended to practice law. Consequently, he cannot
be made liable for indirect contempt considering his lack of intent to illegally
practice law.
However, while the evidence on record failed to prove respondents deliberate
intent to misrepresent himself as an attorney and act as such without
authority, he is hereby warned to be more careful and circumspect in his
future actions.
WHEREFORE, the petition is DISMISSED. Respondent is WARNED to be
more careful and circumspect in his future actions.
SO ORDERED.
[B. M. No. 1036. June 10, 2003]
DONNA MARIE S. AGUIRRE, complainant, vs. EDWIN L. RANA,
respondent.
DECISION
CARPIO, J.:
The Case
Before one is admitted to the Philippine Bar, he must possess the requisite
moral integrity for membership in the legal profession. Possession of moral
integrity is of greater importance than possession of legal learning. The
practice of law is a privilege bestowed only on the morally fit. A bar candidate
who is morally unfit cannot practice law even if he passes the bar
examinations.
The Facts
Respondent Edwin L. Rana (respondent) was among those who passed the
2000 Bar Examinations.
On 21 May 2001, one day before the scheduled mass oath-taking of
successful bar examinees as members of the Philippine Bar, complainant
Donna Marie Aguirre (complainant) filed against respondent a Petition for
Denial of Admission to the Bar. Complainant charged respondent with
unauthorized practice of law, grave misconduct, violation of law, and grave
misrepresentation.
The Court allowed respondent to take his oath as a member of the Bar during
the scheduled oath-taking on 22 May 2001 at the Philippine International
Convention Center. However, the Court ruled that respondent could not sign
the Roll of Attorneys pending the resolution of the charge against him. Thus,
respondent took the lawyers oath on the scheduled date but has not signed
the Roll of Attorneys up to now.
Complainant charges respondent for unauthorized practice of law and grave
misconduct. Complainant alleges that respondent, while not yet a lawyer,
appeared as counsel for a candidate in the May 2001 elections before the
Municipal Board of Election Canvassers (MBEC) of Mandaon, Masbate.
Complainant further alleges that respondent filed with the MBEC a pleading
dated 19 May 2001 entitled Formal Objection to the Inclusion in the
Canvassing of Votes in Some Precincts for the Office of Vice-Mayor. In this
pleading, respondent represented himself as counsel for and in behalf of Vice
Mayoralty Candidate, George Bunan, and signed the pleading as counsel for
George Bunan (Bunan).
PINEDAPCGRNMAN
On the charge of violation of law, complainant claims that respondent is a
municipal government employee, being a secretary of the Sangguniang
Bayan of Mandaon, Masbate. As such, respondent is not allowed by law to
act as counsel for a client in any court or administrative body.
On the charge of grave misconduct and misrepresentation, complainant
accuses respondent of acting as counsel for vice mayoralty candidate
George Bunan (Bunan) without the latter engaging respondents services.
Complainant claims that respondent filed the pleading as a ploy to prevent
the proclamation of the winning vice mayoralty candidate.
On 22 May 2001, the Court issued a resolution allowing respondent to take
the lawyers oath but disallowed him from signing the Roll of Attorneys until
he is cleared of the charges against him. In the same resolution, the Court
required respondent to comment on the complaint against him.
In his Comment, respondent admits that Bunan sought his specific
assistance to represent him before the MBEC. Respondent claims that he
decided to assist and advice Bunan, not as a lawyer but as a person who
knows the law. Respondent admits signing the 19 May 2001 pleading that
objected to the inclusion of certain votes in the canvassing. He explains,
however, that he did not sign the pleading as a lawyer or represented himself
as an attorney in the pleading.
On his employment as secretary of the Sangguniang Bayan, respondent
claims that he submitted his resignation on 11 May 2001 which was allegedly
accepted on the same date. He submitted a copy of the Certification of
Receipt of Revocable Resignation dated 28 May 2001 signed by Vice-Mayor
Napoleon Relox. Respondent further claims that the complaint is politically
motivated considering that complainant is the daughter of Silvestre Aguirre,
the losing candidate for mayor of Mandaon, Masbate. Respondent prays that
the complaint be dismissed for lack of merit and that he be allowed to sign
the Roll of Attorneys.
On 22 June 2001, complainant filed her Reply to respondents Comment and
refuted the claim of respondent that his appearance before the MBEC was
only to extend specific assistance to Bunan. Complainant alleges that on 19
May 2001 Emily Estipona-Hao (Estipona-Hao) filed a petition for
proclamation as the winning candidate for mayor. Respondent signed as
counsel for Estipona-Hao in this petition. When respondent appeared as
counsel before the MBEC, complainant questioned his appearance on two
grounds: (1) respondent had not taken his oath as a lawyer; and (2) he was
an employee of the government.
Respondent filed a Reply (Re: Reply to Respondents Comment) reiterating
his claim that the instant administrative case is motivated mainly by political
vendetta.
On 17 July 2001, the Court referred the case to the Office of the Bar
Confidant (OBC) for evaluation, report and recommendation.
OBCs Report and Recommendation
The OBC found that respondent indeed appeared before the MBEC as
counsel for Bunan in the May 2001 elections. The minutes of the MBEC
proceedings show that respondent actively participated in the proceedings.
The OBC likewise found that respondent appeared in the MBEC proceedings
even before he took the lawyers oath on 22 May 2001. The OBC believes
that respondents misconduct casts a serious doubt on his moral fitness to be
a member of the Bar. The OBC also believes that respondents unauthorized
practice of law is a ground to deny his admission to the practice of law. The
OBC therefore recommends that respondent be denied admission to the
Philippine Bar.
On the other charges, OBC stated that complainant failed to cite a law which
respondent allegedly violated when he appeared as counsel for Bunan while
he was a government employee. Respondent resigned as secretary and his
resignation was accepted. Likewise, respondent was authorized by Bunan to
represent him before the MBEC.
The Courts Ruling
We agree with the findings and conclusions of the OBC that respondent
engaged in the unauthorized practice of law and thus does not deserve
admission to the Philippine Bar.
Respondent took his oath as lawyer on 22 May 2001. However, the records
show that respondent appeared as counsel for Bunan prior to 22 May 2001,
before respondent took the lawyers oath. In the pleading entitled Formal
Objection to the Inclusion in the Canvassing of Votes in Some Precincts for
Page 130
the Office of Vice-Mayor dated 19 May 2001, respondent signed ascounsel
for George Bunan. In the first paragraph of the same pleading respondent
stated that he was the (U)ndersigned Counsel for, and in behalf of Vice
LEGAL ETHICS
Mayoralty Candidate, GEORGE T. BUNAN. Bunan himself wrote the
MBEC on 14 May 2001 that he had authorized Atty. Edwin L. Rana as his
counsel to represent him before the MBEC and similar bodies.
On 14 May 2001, mayoralty candidate Emily Estipona-Hao also retained
respondent as her counsel. On the same date, 14 May 2001, Erly D. Hao
informed the MBEC that Atty. Edwin L. Rana has been authorized by
REFORMA LM-PPC as the legal counsel of the party and the candidate of
the said party. Respondent himself wrote the MBEC on 14 May 2001 that he
was entering his appearance as counsel for Mayoralty Candidate Emily
Estipona-Hao and for the REFORMA LM-PPC. On 19 May 2001,
respondent signed as counsel for Estipona-Hao in the petition filed before
the MBEC praying for the proclamation of Estipona-Hao as the winning
candidate for mayor of Mandaon, Masbate.
All these happened even before respondent took the lawyers oath. Clearly,
respondent engaged in the practice of law without being a member of the
Philippine Bar.
In Philippine Lawyers Association v. Agrava,[1] the Court elucidated that:
The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and proceedings
on behalf of clients before judges and courts, and in addition, conveyancing.
In general, all advice to clients, and all action taken for them in
matters connected with the law,incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings in attachment, and
in matters of estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal instruments,where the
work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jur. p. 262, 263). (Italics supplied) x x
x 3. c. Where a lawyer or law firm includes non-lawyer
In Cayetano v. Monsod,[2] the Court held that practice of law means any
activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. To engage in the practice of
law is to perform acts which are usually performed by members of the legal
profession. Generally, to practice law is to render any kind of service which
requires the use of legal knowledge or skill.
Verily, respondent was engaged in the practice of law when he appeared in
the proceedings before the MBEC and filed various pleadings, without
license to do so. Evidence clearly supports the charge of unauthorized
practice of law. Respondent called himself counsel knowing fully well that he
was not a member of the Bar. Having held himself out as counsel knowing
that he had no authority to practice law, respondent has shown moral
unfitness to be a member of the Philippine Bar.[3]
The right to practice law is not a natural or constitutional right but is a
privilege. It is limited to persons of good moral character with special
qualifications duly ascertained and certified.The exercise of this privilege
presupposes possession of integrity, legal knowledge, educational
attainment, and even public trust[4] since a lawyer is an officer of the court. A
bar candidate does not acquire the right to practice law simply by passing the
bar examinations. The practice of law is a privilege that can be withheld even
from one who has passed the bar examinations, if the person seeking
admission had practiced law without a license.[5]
The regulation of the practice of law is unquestionably strict. In Beltran, Jr.
v. Abad,[6] a candidate passed the bar examinations but had not taken his
oath and signed the Roll of Attorneys. He was held in contempt of court for
practicing law even before his admission to the Bar. Under Section 3 (e) of
Rule 71 of the Rules of Court, a person who engages in the unauthorized
practice of law is liable for indirect contempt of court.[7]
True, respondent here passed the 2000 Bar Examinations and took the
lawyers oath. However, it is the signing in the Roll of Attorneys that finally
makes one a full-fledged lawyer. The fact that respondent passed the bar
examinations is immaterial. Passing the bar is not the only qualification to
become an attorney-at-law.[8] Respondent should know that two essential
requisites for becoming a lawyer still had to be performed, namely: his
lawyers oath to be administered by this Court and his signature in the Roll of
Attorneys.[9]
On the charge of violation of law, complainant contends that the law does not
allow respondent to act as counsel for a private client in any court or
PINEDAPCGRNMAN
administrative body since respondent is the secretary of the Sangguniang
Bayan.
Respondent tendered his resignation as secretary of the Sangguniang Bayan
prior to the acts complained of as constituting unauthorized practice of law. In
his letter dated 11 May 2001 addressed to Napoleon Relox, vice- mayor and
presiding officer of the Sangguniang Bayan, respondent stated that he was
resigning effective upon your acceptance.[10] Vice-Mayor Relox accepted
respondents resignation effective 11 May 2001.[11] Thus, the evidence does
not support the charge that respondent acted as counsel for a client while
serving as secretary of the Sangguniang Bayan.
On the charge of grave misconduct and misrepresentation, evidence shows
that Bunan indeed authorized respondent to represent him as his counsel
before the MBEC and similar bodies. While there was no misrepresentation,
respondent nonetheless had no authority to practice law.
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the
Philippine Bar.
SO ORDERED.
Rule 9.01 – A lawyer shall not delegate to any unqualified person the
performance of any task which by law may only be performed by a
member of the bar in good standing.
Rule 9.02 – A lawyer shall not divide or stipulate to divide a fee for legal
services with persons not licensed to practice law, except:
1. a. Where there is a pre-existing agreement, with a partner or
associate that , upon the latter’s death, money shall be paid
over a reasonable period of time to his estate or to the
persons specified in the agreement; or
2. b. Where a lawyer undertakes to complete unfinished legal
business of a deceased lawyer; or
employees in a retirement plan, even if the plan is based in
whole or in part of a profit sharing arrangements.
 Lawyer shall not negotiate with the opposite party who is
represented by a counsel. Neither should lawyer attempt to
interview the opposite party and question him as to the facts of
the case even if the adverse party is willing to do so.
 Lawyer should deal only with counsel, even if there’s a fair
agreement.
 Lawyer may however interview any witness or prospective
witness for the opposing side. Limitation: avoid influencing
witness in recital and conduct.
 A lawyer must not take as partner or associate one who:
1. is not a lawyer
2. is disbarred
3. has been suspended from the practice of law
4. foreign lawyer, unless licensed by the SC.
 A lawyer cannot delegate his authority without client’s consent
even to a qualified person.
A.C. No. 6317 August 31, 2006
LUZVIMINDA C. LIJAUCO, Complainant,
vs.
ATTY. ROGELIO P. TERRADO, Respondent.
DECISION
YNARES-SANTIAGO, J.:
On February 13, 2004, an administrative complaint1 was filed by complainant
Luzviminda C. Lijauco against respondent Atty. Rogelio P. Terrado for gross
misconduct, malpractice and conduct unbecoming of an officer of the court
when he neglected a legal matter entrusted to him despite receipt of payment
representing attorney’s fees.
According to the complainant, she engaged the services of respondent
sometime in January 2001 for P70,000.00 to assist in recovering her deposit
with Planters Development Bank, Buendia, Makati branch in the amount of
P180,000.00 and the release of her foreclosed house and lot located in
Calamba, Laguna. The property identified as Lot No. 408-C-2 and registered
Page 131
as TCT No. T-402119 in the name of said bank is the subject of a petition for
the issuance of a writ of possession then pending before the Regional Trial
Court of Binan, Laguna, Branch 24 docketed as LRC Case No. B-2610.
LEGAL ETHICS
Complainant alleged that respondent failed to appear before the trial court in
the hearing for the issuance of the Writ of Possession and did not protect her
interests in the Compromise Agreement which she subsequently entered into
to end LRC Case No. B-2610.2
Respondent denied the accusations against him. He averred that the
P70,000.00 he received from complainant was payment for legal services for
the recovery of the deposit with Planters Development Bank and did not
include LRC Case No. B-2610 pending before the Regional Trial Court of
Biñan, Laguna.
The complaint was referred3 to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. On September 21, 2005, the
Investigating Commissioner submitted his report finding respondent guilty of
violating Rules 1.01 and 9.02 of the Code of Professional Responsibility
which provide:
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
Rule 9.02 – A lawyer shall not divide or stipulate to divide a fee for legal
services with persons not licensed to practice law, except:
a) Where there is a pre-existing agreement with a partner or associate that,
upon the latter’s death, money shall be paid over a reasonable period of time
to his estate or to the persons specified in the agreement; or
b) Where a lawyer undertakes to complete unfinished legal business of a
deceased lawyer; or
c) Where a lawyer or law firm includes non-lawyer employees in a retirement
plan, even if the plan is based in whole or in part, on a profit-sharing
arrangement.
In finding the respondent guilty of violating Rules 1.01 and 9.02 of the Code
of Professional Responsibility, the Investigating Commissioner opined that:
In disbarment proceedings, the burden of proof rests upon the complainant.
To be made the suspension or disbarment of a lawyer, the charge against
him must be established by convincing proof. The record must disclose as
free from doubt a case which compels the exercise by the Supreme Court of
its disciplinary powers. The dubious character of the act done as well as of
the motivation thereof must be clearly demonstrated. x x x.
In the instant scenario, despite the strong protestation of respondent that the
Php70,000.00 legal fees is purely and solely for the recovery of the
Php180,000.00 savings account of complainant subsequent acts and events
say otherwise, to wit:
1.) The Php70,000.00 legal fees for the recovery of a Php180,000.00 savings
deposit is too high;
2.) Respondent actively acted as complainant’s lawyer to effectuate the
compromise agreement.
By openly admitting he divided the Php70,000.00 to other individuals as
commission/referral fees respondent violated Rule 9.02, Canon 9 of the Code
of Professional Responsibility which provides that a lawyer shall not divide or
stipulate to divide a fee for legal services with persons not licensed to practice
law. Worst, by luring complainant to participate in a compromise agreement
with a false and misleading assurance that complainant can still recover after
Three (3) years her foreclosed property respondent violated Rule 1.01,
Canon 1 of the Code of Professional Responsibility which says a lawyer shall
not engage in unlawful, dishonest, immoral or deceitful conduct.4
The Investigating Commissioner thus recommended:
WHEREFORE, finding respondent responsible for aforestated violations to
protect the public and the legal profession from his kind, it is recommended
that he be suspended for Six (6) months with a stern warning that similar acts
in the future will be severely dealt with.5
The IBP Board of Governors adopted the recommendation of the
investigating commissioner.6
We agree with the findings of the IBP.
The practice of law is a privilege bestowed on those who show that they
possessed and continue to possess the legal qualifications for it. Indeed,
lawyers are expected to maintain at all times a high standard of legal
proficiency and morality, including honesty, integrity and fair dealing. They
must perform their fourfold duty to society, the legal profession, the courts
and their clients, in accordance with the values and norms of the legal
profession as embodied in the Code of Professional Responsibility.7
Lawyers are prohibited from engaging in unlawful, dishonest, immoral or
deceitful conduct8 and are mandated to serve their clients with competence
and diligence.9 They shall not neglect a legal matter entrusted to them, and
this negligence in connection therewith shall render them liable.10
PINEDAPCGRNMAN
Respondent’s claim that the attorney’s fee pertains only to the recovery of
complainant’s savings deposit from Planter’s Development Bank cannot be
sustained. Records show that he acted as complainant’s counsel in the
drafting of the compromise agreement between the latter and the bank
relative to LRC Case No. B-2610. Respondent admitted that he explained
the contents of the agreement to complainant before the latter affixed her
signature. Moreover, the Investigating Commissioner observed that the fee
of P70,000.00 for legal assistance in the recovery of the deposit amounting
to P180,000.00 is unreasonable. A lawyer shall charge only fair and
reasonable fees.11
Respondent’s disregard for his client’s interests is evident in the iniquitous
stipulations in the compromise agreement where the complainant conceded
the validity of the foreclosure of her property; that the redemption period has
already expired thus consolidating ownership in the bank, and that she
releases her claims against it.12 As found by the Investigating Commissioner,
complainant agreed to these concessions because respondent misled her to
believe that she could still redeem the property after three years from the
foreclosure. The duty of a lawyer to safeguard his client’s interests
commences from his retainer until his discharge from the case or the final
disposition of the subject matter of litigation. Acceptance of money from a
client establishes an attorney-client relationship and gives rise to the duty of
fidelity to the client’s cause. The canons of the legal profession require that
once an attorney agrees to handle a case, he should undertake the task with
zeal, care and utmost devotion.13
Respondent’s admission14 that he divided the legal fees with two other people
as a referral fee does not release him from liability. A lawyer shall not divide
or stipulate to divide a fee for legal services with persons not licensed to
practice law, except in certain cases.15
Under Section 27, Rule 138 of the Rules of Court, a member of the Bar may
be disbarred or suspended on the following grounds: 1) deceit; 2)
malpractice, or other gross misconduct in office; 3) grossly immoral conduct;
4) conviction of a crime involving moral turpitude; 5) violation of the lawyer’s
oath; 6) willful disobedience to any lawful order of a superior court; and 7)
willfully appearing as an attorney for a party without authority.
In Santos v. Lazaro16 and Dalisay v. Mauricio, Jr.,17 we held that Rule 18.03
of the Code of Professional Responsibility is a basic postulate in legal ethics.
When a lawyer takes a client’s cause, he covenants that he will exercise due
diligence in protecting his rights. The failure to exercise that degree of
vigilance and attention makes such lawyer unworthy of the trust reposed in
him by his client and makes him answerable not just to his client but also to
the legal profession, the courts and society.
A lawyer should give adequate attention, care and time to his client’s case.
Once he agrees to handle a case, he should undertake the task with
dedication and care. If he fails in this duty, he is not true to his oath as a
lawyer. Thus, a lawyer should accept only as much cases as he can
efficiently handle in order to sufficiently protect his clients’ interests. It is not
enough that a lawyer possesses the qualification to handle the legal matter;
he must also give adequate attention to his legal work. Utmost fidelity is
demanded once counsel agrees to take the cudgels for his client’s cause.18
In view of the foregoing, we find that suspension from the practice of law for
six months is warranted. In addition, he is directed to return to complainant
the amount he received by way of legal fees pursuant to existing
jurisprudence.19
WHEREFORE, Atty. Rogelio P. Terrado is found GUILTY of violating Rules
1.01, 9.02, 18.02 and 20.01 of the Code of Professional Responsibility. He is
SUSPENDED from the practice of law for six (6) months effective from notice,
and STERNLY WARNED that any similar infraction will be dealt with more
severely. He is further ordered to RETURN, within thirty (30) days from notice,
the sum of P70,000.00 to complainant Luzviminda C. Lijauco and to submit
to this Court proof of his compliance within three (3) days therefrom. Let
copies of this Decision be entered in the record of respondent and served on
the IBP, as well as on the Court Administrator who shall circulate it to all
courts for their information and guidance.
SO ORDERED.
Page 132
LEGAL ETHICS
PLUS BUILDERS, INC., and A.C. No. 7056
EDGARDO C. GARCIA, Present:
Complainants,
PUNO, C J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
-versus- TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE
CASTRO,
BRION, and
PERALTA, JJ.
ATTY. ANASTACIO E. REVILLA, Promulgated:
JR., February 11, 2009
Respondent.
RESOLUTION
NACHURA, J.
Before us is a motion for reconsideration of our Decision dated September
13, 2006, finding respondent guilty of gross misconduct for committing a
willful and intentional falsehood before the court, misusing court procedure
and processes to delay the execution of a judgment and collaborating with
non-lawyers in the illegal practice of law.
To recall, the antecedents of the case are as follows:
On November 15, 1999, a decision was rendered by the Provincial
Adjudicator of Cavite (PARAD) in favor of herein complainant, Plus Builders,
Inc. and against the tenants/farmers Leopoldo de Guzman, Heirs of
Bienvenido de Guzman, Apolonio Ilas and Gloria Martirez Siongco, Heirs of
Faustino Siongco, Serafin Santarin, Benigno Alvarez and Maria Esguerra,
who were the clients of respondent, Atty. Anastacio E. Revilla, Jr. The
PARAD found that respondents clients were mere tenants and not rightful
possessors/owners of the subject land. The case was elevated all the way
up to the Supreme Court, with this Court sustaining complainants rights over
the land. Continuing to pursue his clients lost cause, respondent was found
to have committed intentional falsehood; and misused court processes with
the intention to delay the execution of the decision through the filing of several
motions, petitions for temporary restraining orders, and the last, an action to
quiet title despite the finality of the decision. Furthermore, he allowed non-
lawyers to engage in the unauthorized practice of law holding themselves out
as his partners/associates in the law firm.
The dispositive portion of the decision thus reads:
WHEREFORE, Anastacio E. Revilla, Jr. is hereby found guilty of gross
misconduct and is SUSPENDED for two years from the practice of law,
effective upon his receipt of this Decision. He is warned that a repetition of
the same or similar acts will be dealt with more severely.
Let copies of this Decision be entered in the record of respondent as attorney
and served on the IBP, as well as on the court administrator who shall
circulate it to all courts for their information and guidance.[1]
Respondent duly filed a motion for reconsideration within the reglementary
period, appealing to the Court to take a second look at his case and praying
that the penalty of suspension of two years be reduced to mere reprimand or
admonition for the sake of his family and the poor clients he was defending.[2]
PINEDAPCGRNMAN
Respondent maintains that he did not commit the acts complained of. The
courses of action he took were not meant to unduly delay the execution of
the DARAB Decision dated November 19, 1999, but were based on his
serious study, research and experience as a litigation lawyer for more than
20 years and on the facts given to him by his clients in the DARAB case. He
believes that the courses of action he took were valid and proper legal theory
designed to protect the rights and interests of Leopoldo de Guzman, et. al.[3]
He stresses that he was not the original lawyer in this case. The lawyer- client
relationship with the former lawyer was terminated because Leopoldo de
Guzman, et. al. felt that their former counsel did not explain/argue their
position very well, refused to listen to them and, in fact, even castigated them.
As the new counsel, respondent candidly relied on what the tenants/farmers
told him in the course of his interview. They maintained that they had been in
open, adverse, continuous and notorious possession of the land in the
concept of an owner for more than 50 years. Thus, the filing of the action to
quiet title was resorted to in order to determine the rights of his clients
respecting the subject property. He avers that he merely exhausted all
possible remedies and defenses to which his clients were entitled under the
law, considering that his clients were subjected to harassment and threats of
physical harm and summary eviction by the complainant.[4] He posits that he
was only being protective of the interest of his clients as a good father would
be protective of his own family,[5] and that his services to Leopoldo de
Guzman, et. al were almost pro bono.[6]
Anent the issue that he permitted his name to be used for unauthorized
practice of law, he humbly submits that there was actually no sufficient
evidence to prove the same or did he fail to dispute this, contrary to the
findings of the Integrated Bar of the Philippines (IBP). He was counsel of
Leopoldo de Guzman, et al. only and not of the cooperative Kalayaan
Development Cooperative (KDC). He was just holding his office in this
cooperative, together with Attys. Dominador Ferrer, Efren Ambrocio, the late
Alfredo Caloico and Marciano Villavert. He signed the retainer agreement
with Atty. Dominador to formalize their lawyer-client relationship, and the
complainants were fully aware of such arrangement.[7]
Finally, he submits that if he is indeed guilty of violating the rules in the
courses of action he took in behalf of his clients, he apologizes and
supplicates the Court for kind consideration, pardon and forgiveness. He
reiterates that he does not deserve the penalty of two years suspension,
considering that the complaint fails to show him wanting in character,
honesty, and probity; in fact, he has been a member of the bar for more than
20 years, served as former president of the IBP Marinduque Chapter, a legal
aide lawyer of IBP Quezon City handling detention prisoners and pro bono
cases, and is also a member of the Couples for Christ, and has had strict
training in the law school he graduated from and the law offices he worked
with.[8] He is the sole breadwinner in the family with a wife who is jobless, four
(4) children who are in school, a mother who is bedridden and a sick sister to
support. The familys only source of income is respondents private practice of
law, a work he has been engaged in for more than twenty- five (25) years up
to the present.[9]
On August 15, 2008, the Office of the Bar Confidant (OBC) received a letter
from respondent, requesting that he be issued a clearance for the renewal of
his notarial commission. Respondent stated therein that he was aware of the
pendency of the administrative cases[10] against him, but pointed out that said
cases had not yet been resolved with finality. Respondent sought
consideration and compassion for the issuance of the clearance --
considering present economic/financial difficulties -- and reiterating the fact
that he was the sole breadwinner in the family.
It is the rule that when a lawyer accepts a case, he is expected to give his full
attention, diligence, skill and competence to the case, regardless of its
importance and whether he accepts it for a fee or for free.[11] A lawyers
devotion to his clients cause not only requires but also entitles him to deploy
every honorable means to secure for the client what is justly due him or to
present every defense provided by law to enable the latters cause to
Page 133
succeed.[12] In this case, respondent may not be wanting in this regard. On
the contrary, it is apparent that the respondents acts complained of were
committed out of his over-zealousness and misguided desire to protect the
LEGAL ETHICS
interests of his clients who were poor and uneducated. We are not unmindful
of his dedication and conviction in defending the less fortunate. Taking the
cudgels from the former lawyer in this case is rather commendable, but
respondent should not forget his first and foremost responsibility as an officer
of the court. We stress what we have stated in our decision that, in support
of the cause of their clients, lawyers have the duty to present every remedy
or defense within the authority of the law. This obligation, however, is not to
be performed at the expense of truth and justice.[13] This is the criterion that
must be borne in mind in every exertion a lawyer gives to his case.[14] Under
the Code of Professional Responsibility, a lawyer has the duty to assist in the
speedy and efficient administration of justice, and is enjoined from unduly
delaying a case by impeding execution of a judgment or by misusing court
processes.[15]
Certainly, violations of these canons cannot be countenanced, as respondent
must have realized with the sanction he received from this Court. However,
the Court also knows how to show compassion and will not hesitate to refrain
from imposing the appropriate penalties in the presence of mitigating factors,
such as the respondents length of service, acknowledgment of his or her
infractions and feeling of remorse, family circumstances, humanitarian and
equitable considerations, and respondents advanced age, among other
things, which have varying significance in the Courts determination of the
imposable penalty. Thus, after a careful consideration of herein respondents
motion for reconsideration and humble acknowledgment of his misfeasance,
we are persuaded to extend a degree of leniency towards him.[16] We find the
suspension of six (6) months from the practice of law sufficient in this case
IN VIEW OF THE FOREGOING, the letter-request dated August 15, 2008 is
NOTED. Respondents Motion for Reconsideration is PARTIALLY
GRANTED. The Decision dated September 13, 2006 is hereby MODIFIED in
that respondent is SUSPENDED from the practice of law for a period of six
(6) months, effective upon receipt of this Resolution. Respondent is
DIRECTED to inform the Court of the date of his receipt of said Resolution
within ten (10) days from receipt thereof.
CHAPTER III
THE LAWYER AND THE COURTS
CANON 10 – A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH
TO THE COURT.
Rule 10.01 – A lawyer shall not do any falsehood, nor consent to the
doing of any in court; nor shall he mislead or allow the court to be
mislead by any artifice.
Canon 32, CPE
A lawyer should not render any service or advice to any client – no matter
how powerful or important is the cause – which will involve disloyalty to the
laws of the country which he is bound to uphold and obey.
A.C. No. 6198 September 15, 2006
RENATO M. MALIGAYA, complainant,
vs.
ATTY. ANTONIO G. DORONILLA, JR., respondent.
RESOLUTION
CORONA, J.:
Atty. Antonio G. Doronilla, Jr. of the Judge Advocate General's Service is
before us on a charge of unethical conduct for having uttered a falsehood in
open court during a hearing of Civil Case No. Q-99-38778.1
Civil Case No. Q-99-38778 was an action for damages filed by complainant
Renato M. Maligaya, a doctor and retired colonel of the Armed Forces of the
Philippines, against several military officers for whom Atty. Doronilla stood as
counsel. At one point during the February 19, 2002 hearing of the case, Atty.
Doronilla said:
And another matter, Your Honor. I was appearing in other cases he
[complainant Maligaya] filed before against the same defendants. We had
an agreement that if we withdraw the case against him, he will also
PINEDAPCGRNMAN
withdraw all the cases. So, with that understanding, he even retired and
he is now receiving pension.2 (emphasis supplied)
Considering this to be of some consequence, presiding Judge Reynaldo B.
Daway asked a number of clarificatory questions and thereafter ordered Atty.
Doronilla to put his statements in writing and "file the appropriate pleading."3
Weeks passed but Atty. Doronilla submitted no such pleading or anything
else to substantiate his averments.
On April 29, 2002, Maligaya filed a complaint against Atty. Doronilla in the
Integrated Bar of the Philippines (IBP) Commission on Bar Discipline.4 The
complaint, which charged Atty. Doronilla with "misleading the court through
misrepresentation of facts resulting [in] obstruction of justice,"5 was referred
to a commissioner6 for investigation. Complainant swore before the
investigating commissioner that he had never entered into any agreement to
withdraw his lawsuits.7 Atty. Doronilla, who took up the larger part of two
hearings to present evidence and explain his side, admitted several times
that there was, in fact, no such agreement.8 Later he explained in his
memorandum that his main concern was "to settle the case amicably among
comrades in arms without going to trial"9 and insisted that there was no proof
of his having violated the Code of Professional Responsibility or the lawyer's
oath.10 He pointed out, in addition, that his false statement (or, as he put it,
his "alleged acts of falsity") had no effect on the continuance of the case and
therefore caused no actual prejudice to complainant.11
In due time, investigating commissioner Lydia A. Navarro submitted a report
and recommendation finding Atty. Doronilla guilty of purposely stating a
falsehood in violation of Canon 10, Rule 10.01 of the Code of Professional
Responsibility12 and recommending that he be "suspended from the
government military service as legal officer for a period of three months."13
This was adopted and approved in toto by the IBP Board of Governors on
August 30, 2003.14
There is a strong public interest involved in requiring lawyers who, as officers
of the court, participate in the dispensation of justice, to behave at all times
in a manner consistent with truth and honor.15 The common caricature that
lawyers by and large do not feel compelled to speak the truth and to act
honestly should not become a common reality.16 To this end, Canon 10 and
Rule 10.01 of the Code of Professional Responsibility state:
CANON 10 – A LAWYER OWES CANDOR, FAIRNESS, AND GOOD FAITH
TO THE COURT.
Rule 10.01 – A lawyer shall not do any falsehood, nor consent to the doing
of any in court; nor shall he mislead, or allow the Court to be misled by any
artifice.
By stating untruthfully in open court that complainant had agreed to withdraw
his lawsuits, Atty. Doronilla breached these peremptory tenets of ethical
conduct. Not only that, he violated the lawyer's oath to "do no falsehood, nor
consent to the doing of any in court," of which Canon 10 and Rule 10.01 are
but restatements. His act infringed on every lawyer's duty to "never seek to
mislead the judge or any judicial officer by an artifice or false statement of
fact or law."17
Atty. Doronilla's unethical conduct was compounded, moreover, by his
obstinate refusal to acknowledge the impropriety of what he had done. From
the very beginning of this administrative case, Atty. Doronilla maintained the
untenable position that he had done nothing wrong in the hearing of Civil
Case No. Q-99-38778. He persisted in doing so even after having admitted
that he had, in that hearing, spoken of an agreement that did not in truth exist.
Rather than express remorse for that regrettable incident, Atty. Doronilla
resorted to an ill-conceived attempt to evade responsibility, professing that
the falsehood had not been meant for the information of Judge Daway but
only as "a sort of question" to complainant regarding a "pending proposal" to
settle the case.18
The explanation submitted by Atty. Doronilla, remarkable only for its
speciousness,19 cannot absolve him. If anything, it leads us to suspect an
unseemly readiness on his part to obfuscate plain facts for the unworthy
purpose of escaping his just deserts. There is in his favor, though, a
presumption of good faith20 which keeps us from treating the incongruity of
his proffered excuse as an indication of mendacity. Besides, in the light of his
avowal that his only aim was "to settle the case amicably among comrades
in arms without going to trial,"21perhaps it is not unreasonable to assume that
what he really meant to say was that he had intended the misrepresentation
Page 134
as a gambit to get the proposed agreement on the table, as it were. But even
if that had been so, it would have been no justification for speaking falsely in
court. There is nothing in the duty of a lawyer to foster peace among
LEGAL ETHICS
disputants that, in any way, makes it necessary under any circumstances for
counsel to state as a fact that which is not true. A lawyer's duty to the court
to employ only such means as are consistent with truth and honor22 forbids
recourse to such a tactic. Thus, even as we give Atty. Doronilla the benefit of
the doubt and accept as true his avowed objective of getting the parties to
settle the case amicably, we must call him to account for resorting to
falsehood as a means to that end.
Atty. Doronilla's offense is within the ambit of Section 27, Rule 138 of the
Rules of Court, which in part declares:
A member of the bar may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit x x x or for any violation of the
oath which he is required to take before admission to practice x x x.
The suspension referred to in the foregoing provision means only suspension
from the practice of law. For this reason, we disagree with the IBP's
recommendation for Atty. Doronilla's suspension from the government
military service. After all, the only purpose of this administrative case is to
determine Atty. Doronilla's liability as a member of the legal profession, not
his liability as a legal officer in the military service. Thus, it would be improper
for us to order, as a penalty for his breach of legal ethics and the lawyer's
oath, his suspension from employment in the Judge Advocate General's
Service. Of course, suspension from employment as a military legal officer
may well follow as a consequence of his suspension from the practice of
law but that should not be reason for us to impose it as a penalty for his
professional misconduct. We would be going beyond the purpose of this
proceeding were we to do so. Therefore, we shall treat the IBP's
recommendation as one for suspension from the practice of law.
At any rate, we are not inclined to adopt the IBP's recommendation on the
duration of Atty. Doronilla's suspension. We need to consider a few
circumstances that mitigate his liability somewhat. First, we give him credit
for exhibiting enough candor to admit, during the investigation, the falsity of
the statement he had made in Judge Daway's courtroom. Second, the
absence of material damage to complainant may also be considered as a
mitigating circumstance.23 And finally, since this is Atty. Doronilla's first
offense, he is entitled to some measure of forbearance.24
Nonetheless, his unrepentant attitude throughout the conduct of this
administrative case tells us that a mere slap on the wrist is definitely not
enough. Atty. Doronilla, it seems, needs time away from the practice of law
to recognize his error and to purge himself of the misbegotten notion that an
effort to compromise justifies the sacrifice of truthfulness in court.
WHEREFORE, Atty. Antonio G. Doronilla, Jr. is hereby SUSPENDED from
the practice of law for TWO MONTHS.He is WARNED that a repetition of the
same or similar misconduct shall be dealt with more severely.
Let a copy of this Resolution be attached to his personal record and copies
furnished the Integrated Bar of the Philippines, the Office of the Court
Administrator, the Chief-of-Staff of the Armed Forces of the Philippines and
the Commanding General of the AFP Judge Advocate General's Service.
SO ORDERED.
A.C. No. 3731 September 7, 2007
MANUEL S. SEBASTIAN, complainant,
vs.
ATTY. EMILY A. BAJAR, respondent.
DECISION
CARPIO, J.:
The Case
On 18 October 1991, Manuel S. Sebastian (complainant) filed a disbarment
complaint against Atty. Emily A. Bajar (respondent) for "obstructing,
disobeying, resisting, rebelling, and impeding final decisions of Regional Trial
Courts, the Court of Appeals and of the Honorable Supreme Court, and also
for submitting those final decisions for the review and reversal of the DARAB,
an administrative body, and for contemptuous acts and dilatory tactics."
The Facts
Complainant alleged the following:
1. Respondent is a lawyer of the Bureau of Agrarian Legal Assistance (BALA)
of the Department of Agrarian Reform who represented Fernando Tanlioco
(Tanlioco) in numerous cases which raised the same issues.1 Tanlioco is an
agricultural lessee of a land owned by complainant’s spouse and sister-in-
law (landowners). The landowners filed an Ejectment case against Tanlioco
on the basis of a conversion order of the land use from agricultural to
PINEDAPCGRNMAN
residential. The Regional Trial Court (RTC) rendered judgment ordering
Tanlioco’s ejectment subject to the payment of disturbance compensation.2
The RTC’s judgment was affirmed by the Court of Appeals3 and the
Supreme Court.4
2. Respondent, as Tanlioco’s counsel, filed another case for Specific
Performance to produce the conversion order. The RTC dismissed the
complaint due to res judicata and lack of cause of action.5
3. Respondent filed a case for Maintenance of Possession with the
Department of Agrarian Reform Adjudication Board. The case raised the
same issues of conversion and disturbance compensation.6
4. Respondent has violated Rule 10.03 of the Code of Professional
Responsibility since she misused the rules of procedure through forum-
shopping to obstruct the administration of justice.7
On 18 November 1991, the Court issued a resolution requiring respondent
to comment on the complaint lodged against her.8
After a second Motion for Extension of Time to Submit Comment,9
respondent submitted her Comment alleging the following:
1. Complainant is not the real party-in-interest. He is also not authorized to
prosecute the disbarment suit.10
2. Respondent has fulfilled allegiance to the "Attorney’s Oath" and performed
duties in accordance with Section 20 of Rule 138 of the Revised Rules of
Court.11
3. Respondent’s client, Tanlioco, merely availed of all legal remedies to
obtain benefits secured for him by law.12
On 10 March 1992, complainant filed his Reply. Complainant alleged that
respondent did not confront the issues of her disbarment squarely but raised
issues that were decided upon with finality by the courts.13
On 25 March 1992, the Court issued a Resolution requiring respondent to file
a Rejoinder within 10 days from notice.14
On 3 June 1992, complainant filed a Manifestation dated 2 June 1992 stating
that respondent failed to comply with the 25 March 1992 Court Resolution to
file a Rejoinder.15
On 7 October 1992, the Court ordered respondent to show cause why she
should not be subjected to disciplinary action for failure to comply with the
Court’s 25 March 1992 Resolution. The Court also required respondent to
Comment on the complainant’s 2 June 1992 Manifestation.16
On 3 February 1993, respondent filed a Manifestation alleging that she had
substantially complied with the Court’s orders relative to her defenses. She
advised the Court that she had transferred to the Public Attorney’s Office and
since she was no longer a "BALA lawyer," the cases involved in this
proceeding had become moot and academic.17
On 1 March 1993, the Court issued a Resolution stating that the
administrative case against respondent "has not been mooted and nothing
set out in her ‘Manifestation’ excuses her failure to obey this Court’s
Resolutions of 25 March 1992 and 7 October 1992."18 The Court had also
resolved to impose a fine of P500 or imprisonment of five days and to require
respondent to comply with the 25 March 1992 and 7 October 1992
Resolutions.19
On 24 August 1993, complainant filed a Manifestation stating that respondent
had not complied with the Court’s orders.20
On 29 September 1993, the Court issued a Resolution ordering the arrest of
respondent for detention at the National Bureau of Investigation (NBI) for five
days. The Court reiterated that respondent should comply with the 25 March
1992 and 7 October 1992 Resolutions.21
On 20 October 1993, the NBI arrested respondent. The NBI detained
respondent for five days and released her on 25 October 1993.22
On 10 November 1993, the Court issued a Resolution referring the case to
the Integrated Bar of the Philippines (IBP) for hearing and decision.23
On 11 November 1993, respondent filed a Rejoinder. Respondent claimed
that complainant had no legal personality to file this case.24 Respondent also
alleged that she was merely protecting the interest of Tanlioco as she was
sworn to do so in her oath of office. Respondent contended that "she had
comported herself as [an] officer of the court, at the risk of being disciplined
by the latter if only to impart truth and justice."25
On 22 November 1995, Investigating Commissioner Plaridel C. Jose
(Investigating Commissioner Jose) submitted his report and
recommendation to the IBP. Investigating Commissioner Jose enumerated
Page 135
respondent’s violations of the Code of Professional Responsibility that
rendered her unfit to continue the practice of law:
LEGAL ETHICS
1. Respondent appealed a case for purposes of delay which amounted to an
obstruction of justice.26
2. Respondent abused her right of recourse to the courts. The duplication or
multiplication of suits should be avoided,27 and respondent’s acts were
tantamount to forum-shopping which is a reprehensible manipulation of court
processes and proceedings.28
3. Respondent uttered disrespectful language and shouted at everybody
during the hearing on 25 May 1995.29 The want of intention is not an excuse
for the disrespectful language used.
On 4 October 1996, the IBP transmitted to the Court a copy of IBP Resolution
No. XII-96-149 dated 30 March 1996. The IBP Board of Governors adopted
and approved Investigating Commissioner Jose’s recommendation that
respondent be "suspended indefinitely from the practice of law for Unethical
Practices and attitude showing her propensity and incorrigible character to
violate the basic tenets and requirements of the Code of Professional
Responsibility rendering her unfit to continue in the practice of law."30
Governor Angel R. Gonzales recommended her "outright disbarment."31
In its 20 January 1997 Resolution, the Court noted the IBP Resolution
suspending respondent indefinitely.32
On 13 April 1999, the Court issued a Resolution directing the Office of the
Court Administrator (OCA) to circularize the resolution of the IBP dated 30
March 1996 suspending respondent indefinitely from the practice of law.33
On 7 June 1999, the OCA, through Court Administrator Alfredo L. Benipayo,
issued Circular No. 30-99 informing all courts that respondent had been
suspended indefinitely.
On 30 January 2003, respondent filed a Motion to Consider the Case Closed
and Terminated. Respondent apologized for her demeanor and prayed that
the suspension be lifted.34
On 16 June 2003, the Court issued a Resolution referring the case to the IBP
for report and recommendation.35
On 29 August 2003, Investigating Commissioner Demaree J.B. Raval
(Investigating Commissioner Raval) conducted a hearing. Respondent
claimed that she did not receive any notice of the OCA’s Circular on her
indefinite suspension.36 Respondent alleged that the Court Resolution which
she received merely noted the IBP’s Resolution on her indefinite
suspension.37 Respondent claimed that she only knew of the suspension
when she filed an application for a judicial position in Mandaluyong City.38
In the hearing, respondent admitted that she continued to practice law as a
Prosecutor in Mandaluyong City despite her suspension because she
believed that a notation by the Court in the 20 January 1997 Resolution did
not mean an implementation of the IBP’s Resolution on her indefinite
suspension.39
Due to the absence of complainant and his counsel, another hearing was
held on 19 September 2003. Complainant’s counsel asserted that
respondent had been practicing law in the midst of her suspension and this
constituted a violation of the suspension order which she wanted to be
lifted.40 Investigating Commissioner Raval asked respondent to present a
valid ground to lift the suspension order.41 Respondent requested that her
detention for five days at the NBI be converted into a five-year suspension,
one year for every day of detention such that she would have served five
years of indefinite suspension.42
Investigating Commissioner Raval then directed the parties to file
simultaneously their Verified Position Papers.43
In his Position Paper and Comment, complainant posited that respondent’s
motion did not state valid grounds to convince the Court to lift the suspension
order. Complainant stated that by continuing to practice law, "she is flaunting
her defiance of the Supreme Court by showing that she can hoodwink
another branch of government."44Complainant also prayed for respondent’s
disbarment due to the gravity of her offense.45
In respondent’s Position Paper, she reiterated that complainant is not the real
party-in-interest since the property that was litigated was owned by
complainant’s wife. She asserted that she never betrayed her client’s cause,
she was never unfaithful to her oath, and it was complainant who filed this
case for harassment. Respondent prayed that the case be considered closed
and terminated due to lack of merit.46
Respondent also sent a letter to Investigating Commissioner Raval and
attached a copy of a Resolution in a Preliminary Investigation case which she
handled. Respondent contended that in this Preliminary Investigation case,
PINEDAPCGRNMAN
she recommended its dismissal because the offended party was not the real
party-in-interest.47
Respondent insisted that complainant did not have the personality to file the
disbarment complaint against her; hence, it should have been dismissed
outright.48
After the parties filed their position papers, the IBP Board of Governors
issued Resolution No. XVI-2004-229 dated 16 April 2004. The IBP adopted
Investigating Commissioner Raval’s Report and Recommendation that
respondent be disbarred for her "manifest flagrant misconduct in disobeying
the SC Order of her Indefinite Suspension."49
As culled from the records, the Court had merely noted IBP Resolution No.
XII-96-149 which recommended respondent’s indefinite suspension. "The
term ‘noted’ means that the Court has merely taken cognizance of the
existence of an act or declaration, without exercising a judicious deliberation
or rendering a decision on the matter — it does not imply agreement or
approval."50 Hence, the penalty of indefinite suspension imposed by the IBP
Board of Governors has not attained finality. Section 12 of Rule 139-B
provides:
Section 12. Review and Decision by the Board of Governors. —
xxx
(b) If the Board, by the vote of a majority of its total membership, determines
that the respondent should be suspended from the practice of law or
disbarred, it shall issue a resolution setting forth its findings and
recommendations which, together with the whole record of the case, shall
forthwith be transmitted to the Supreme Court for final action.
(Emphasis supplied)
Necessarily, the Court will now give its "final action" on this complaint.
The Ruling of the Court
After a careful review of the records, the Court finds the evidence on record
sufficient to support the IBP’s findings. However, the Court disagrees with the
penalty imposed on respondent.
Administrative proceedings against lawyers are sui generis51 and they belong
to a class of their own.52 They are neither civil nor criminal actions but rather
investigations by the Court into the conduct of its officer.53 They involve no
private interest and afford no redress for private grievance.54
A disciplinary action against a lawyer is intended to protect the administration
of justice from the misconduct of its officers. This Court requires that its
officers shall be competent, honorable, and reliable men in whom the public
may repose confidence.55 "Lawyers must at all times faithfully perform their
duties to society, to the bar, to the courts, and to their clients. Their conduct
must always reflect the values and norms of the legal profession as embodied
in the Code of Professional Responsibility. On these considerations, the
Court may disbar or suspend lawyers for any professional or private
misconduct showing them to be wanting in moral character, honesty, probity,
and good demeanor — or to be unworthy to continue as officers of the
Court."56
Clear preponderant evidence is necessary to justify the imposition of the
penalty in disbarment or suspension proceedings.57
The evidence presented shows that respondent failed to comply with the
Court’s lawful orders in two instances:
1. In the 25 March 1992 Court Resolution, respondent was required to file a
rejoinder within 10 days from notice. However, she only submitted the
rejoinder on 11 November 1993 after she was detained at the NBI for five
days for failure to heed the Court’s order.
2. In the 7 October 1992 Court Resolution, respondent was required to
comment on complainant’s manifestation. She instead submitted a
manifestation on 3 February 1993 or almost four months thereafter. In her
manifestation, respondent alleged that she had substantially complied with
the Court’s orders. However, the Court in its 1 March 1993 Resolution stated
that nothing set out in respondent’s manifestation excused her failure to obey
the Court’s Resolutions.
These acts constitute willful disobedience of the lawful orders of this Court,
which under Section 27, Rule 13858 of the Rules of Court is in itself a sufficient
cause for suspension or disbarment. Respondent’s cavalier attitude in
repeatedly ignoring the orders of the Supreme Court constitutes utter
disrespect to the judicial institution.59Respondent’s conduct indicates a high
degree of irresponsibility. A Court’s Resolution is "not to be construed as a
Page 136
mere request, nor should it be complied with partially, inadequately, or
selectively."60 Respondent’s obstinate refusal to comply with the Court’s
orders "not only betrays a recalcitrant flaw in her character; it also
LEGAL ETHICS
underscores her disrespect of the Court’s lawful orders which is only too
deserving of reproof."61
Lawyers are called upon to obey court orders and processes and
respondent’s deference is underscored by the fact that willful disregard
thereof will subject the lawyer not only to punishment for contempt but to
disciplinary sanctions as well. In fact, graver responsibility is imposed upon
a lawyer than any other to uphold the integrity of the courts and to show
respect to their processes.62
Respondent’s failure to comply with the Court’s directive to file a Rejoinder
and to file a Comment also constitutes gross misconduct. The Court defined
gross misconduct as "any inexcusable, shameful, flagrant, or unlawful
conduct on the part of the person concerned in the administration of justice
which is prejudicial to the rights of the parties or to the right determination of
a cause." It is a "conduct that is generally motivated by a premeditated,
obstinate, or intentional purpose."63
In Bernal Jr. v. Fernandez,64 the Court held that failure to comply with the
Court’s directive to comment on a letter-complaint constitutes gross
misconduct and insubordination, or disrespect. In Cuizon v. Macalino,65 a
lawyer’s failure to comply with the Court’s Resolutions requiring him to file his
comment was one of the infractions that merited his disbarment.
Furthermore, respondent’s defenses are untenable. Firstly, respondent
contends that complainant is not the real party-in-interest since the property
that was litigated was owned by complainant’s wife. The Court is not
persuaded with this defense.
The procedural requirement observed in ordinary civil proceedings that only
the real party-in-interest must initiate the suit does not apply in disbarment
cases. In fact, the person who called the attention of the court to a lawyer’s
misconduct "is in no sense a party, and generally has no interest in the
outcome."66 "A compromise or withdrawal of charges does not terminate an
administrative complaint against a lawyer."67
In Heck v. Santos,68 the Court held that "any interested person or the court
motu proprio may initiate disciplinary proceedings." The right to institute
disbarment proceedings is not confined to clients nor is it necessary that the
person complaining suffered injury from the alleged wrongdoing. Disbarment
proceedings are matters of public interest and the only basis for the judgment
is the proof or failure of proof of the charges.69
Secondly, respondent avers that she merely availed of all the legal remedies
for her client. In Suzuki v. Tiamson,70 the Court enunciated that "while lawyers
owe their entire devotion to the interest of their clients and zeal in the defense
of their client’s rights, they should not forget that they are first and foremost,
officers of the court, bound to exert every effort to assist in the speedy and
efficient administration of justice." Respondent’s act of filing cases with
identical issues in other venues despite the final ruling which was affirmed by
the Court of Appeals and the Supreme Court is beyond the bounds of the
law. "To permit lawyers to resort to unscrupulous practices for the protection
of the supposed rights of their clients is to defeat one of the purposes of the
state — the administration of justice."71
Respondent abused her right of recourse to the courts. Respondent, acting
as Tanlioco’s counsel, filed cases for Specific Performance and Maintenance
of Possession despite the finality of the decision in the Ejectment case which
involves the same issues. The Court held that "an important factor in
determining the existence of forum-shopping is the vexation caused to the
courts and the parties-litigants by the filing of similar cases to claim
substantially the same reliefs.72 Indeed, "while a lawyer owes fidelity to the
cause of his client, it should not be at the expense of truth and administration
of justice."73
Canon 19 of the Code of Professional Responsibility mandates lawyers to
represent their clients with zeal but within the bounds of the law. It is evident
from the records that respondent filed other cases to thwart the execution of
the final judgment in the Ejectment case. Clearly, respondent violated the
proscription in Canon 19.
The penalty of suspension or disbarment is meted out in clear cases of
misconduct that seriously affect the standing and character of the lawyer as
an officer of the court. In this case, respondent has shown her great
propensity to disregard court orders. Respondent’s acts of wantonly
disobeying her duties as an officer of the court show an utter disrespect for
the Court and the legal profession. However, the Court will not disbar a
lawyer if it finds that a lesser penalty will suffice to accomplish the desired
end.
PINEDAPCGRNMAN
Respondent’s acts constitute gross misconduct and willful disobedience of
lawful orders of a superior court. Respondent also violated Canon 19 of the
Code of Professional Responsibility. Her suspension is consequently
warranted.
WHEREFORE, respondent Atty. Emily A. Bajar is hereby SUSPENDED from
the practice of law for a period ofTHREE YEARS effective from notice, with
a STERN WARNING that a repetition of the same or similar acts will be dealt
with more severely.
Let copies of this Decision be furnished the Office of the Bar Confidant to be
appended to respondent’s personal record as an attorney, the Integrated Bar
of the Philippines, the Department of Justice, and all courts in the country for
their information and guidance.
SO ORDERED.
[A.C. No. 5379. May 9, 2003]
WALTER T. YOUNG, complainant, vs. CEASAR G. BATUEGAS,
MIGUELITO NAZARENO V. LLANTINO and FRANKLIN Q.
SUSA, respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
On December 29, 2000, Atty. Walter T. Young filed a Verified Affidavit-
Complaint for disbarment against Attys. Ceasar G. Batuegas, Miguelito
Nazareno V. Llantino and Franklin Q. Susa for allegedly committing
deliberate falsehood in court and violating the lawyers oath.[1]
Complainant is the private prosecutor in Criminal Case No. 00-187627 for
Murder, entitled People of the Philippines versus Crisanto Arana, Jr., pending
before the Regional Trial Court of Manila, Branch 27. On December 13, 2000,
respondents Batuegas and Llantino, as counsel for accused, filed a
Manifestation with Motion for Bail, alleging that the accused has voluntarily
surrendered to a person in authority. As such, he is now under detention.[2]
Upon personal verification with the National Bureau of Investigation (NBI)
where accused Arana allegedly surrendered, complainant learned that he
surrendered only on December 14, 2000, as shown by the Certificate of
Detention executed by Atty. Rogelio M. Mamauag, Chief of the Security
Management Division of the NBI.
Respondent Susa, the Branch Clerk of Court of RTC of Manila, Branch 27,
calendared the motion on December 15, 2000 despite the foregoing
irregularity and other formal defects, namely, the lack of notice of hearing to
the private complainant, violation of the three-day notice rule, and the failure
to attach the Certificate of Detention which was referred to in the Motion as
Annex 1.
Respondents filed their respective comments, declaring that on December
13, 2000, upon learning that a warrant of arrest was issued against their
client, they filed the Manifestation with Motion for Bail with the trial court.
Then they immediately fetched the accused in Cavite and brought him to the
NBI to voluntarily surrender. However, due to heavy traffic, they arrived at the
NBI at 2:00 a.m. the next day; hence, the certificate of detention indicated
that the accused surrendered on December 14, 2000. They argued that there
was neither unethical conduct nor falsehood in the subject pleading as their
client has voluntarily surrendered and was detained at the NBI. As regards
the lack of notice of hearing, they contend that complainant, as private
prosecutor, was not entitled to any notice. Nevertheless, they furnished the
State and City prosecutors copies of the motion with notice of hearing thereof.
Moreover, the hearing of a motion on shorter notice is allowed under Rule
15, Sec. 4(2) of the Rules of Court.[3]
For his part, respondent Susa argues in his comment that he was no longer
in court when his co-respondents filed the Manifestation with Motion for Bail.
Ms. Teofila A. Pea, Clerk III, received the said Motion and noticed that it was
set for hearing on December 15, 2000 and the Certificate of Detention was
not attached. However, the presiding judge instructed her to receive the
Motion subject to the presentation of the Certificate of Detention before the
hearing. Thus, the inclusion of the Motion in the courts calendar on December
15, 2000 was authorized by the presiding judge and, thus, was done by
respondent Susa in faithful performance of his ministerial duty.
In a Resolution dated August 13, 2001,[4] the instant case was referred to the
Integrated Bar of the Philippines for investigation, report and
Page 137
recommendation or decision.
On December 7, 2001, the Investigating Commissioner, Rebecca Villanueva-
Maala, submitted her report and recommendation as follows:
LEGAL ETHICS
WHEREFORE, the foregoing premises considered, it is respectfully
recommended that Atty. Ceasar G. Batuegas and Atty. Miguelito Nazareno
V. Llantino be suspended from the practice of their profession as a
lawyer/member of the Bar for a period of six (6) months from receipt hereof.
The complaint against Atty. Franklin Q. Susa, upon the other hand, is hereby
recommended dismissed for lack of merit.[5]
The foregoing Report and Recommendation was adopted and approved by
the IBP-Commission on Bar Discipline in Resolution No. XV-2002-400, to wit:
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
in view of respondents commission of deliberate falsehood, Atty. Batuegas
and Atty. Llantino are hereby SUSPENDED from the practice of law for six
(6) months. The complaint against Atty. Susa is hereby DISMISSED for lack
of merit.[6]
We agree with the findings and recommendations of the Investigating
Commissioner. Respondents Batuegas and Llantino are guilty of deliberate
falsehood.
A lawyer must be a disciple of truth.[7] He swore upon his admission to the
Bar that he will do no falsehood nor consent to the doing of any in court and
he shall conduct himself as a lawyer according to the best of his knowledge
and discretion with all good fidelity as well to the courts as to his clients.[8] He
should bear in mind that as an officer of the court his high 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 conclusion.[9] The courts, on the other
hand, are entitled to expect only complete honesty from lawyers appearing
and pleading before them.[10] While a lawyer has the solemn duty to defend
his clients rights and is expected to display the utmost zeal in defense of his
clients cause, his conduct must never be at the expense of truth.[11]
The Court may disbar or suspend a lawyer for misconduct, whether in his
professional or private capacity, which shows him to be wanting in moral
character, in honesty, probity, and good demeanor, thus proving unworthy to
continue as an officer of the court.[12]
Evidently, respondent lawyers fell short of the duties and responsibilities
expected from them as members of the bar. Anticipating that their Motion for
Bail will be denied by the court if it found that it had no jurisdiction over the
person of the accused, they craftily concealed the truth by alleging that
accused had voluntarily surrendered to a person in authority and was under
detention. Obviously, such artifice was a deliberate ruse to mislead the court
and thereby contribute to injustice. To knowingly allege an untrue statement
of fact in the pleading is a contemptuous conduct that we strongly condemn.
They violated their oath when they resorted to deception.
Respondents contend that their allegation of the accuseds detention was
merely a statement of an ultimate fact which still had to be proved by
evidence at the hearing of the Motion.That they were able to show that their
client was already under the custody of the NBI at the hearing held on
December 15, 2000 does not exonerate them. The fact remains that the
allegation that the accused was in the custody of the NBI on December 13,
2000 was false.
In Comia vs. Antona, we held:
It is of no moment that the accused eventually surrendered to the police
authorities on the same date tentatively scheduled for the hearing of the
application for bail. To our mind, such supervening event is of no bearing and
immaterial; it does not absolve respondent judge from administrative liability
considering that he should not have accorded recognition to the application
for bail filed on behalf of persons who, at that point, were devoid of personality
to ask such specific affirmative relief from the court.[13]
In this jurisdiction, whether bail is a matter of right or discretion, reasonable
notice of hearing is required to be given to the prosecutor or fiscal, or at least,
he must be asked for his recommendation.[14]
In the case at bar, the prosecution was served with notice of hearing of the
motion for bail two days prior to the scheduled date. Although a motion may
be heard on short notice, respondents failed to show any good cause to
justify the non-observance of the three-day notice rule. Verily, as lawyers,
they are obliged to observe the rules of procedure and not to misuse them to
defeat the ends of justice.[15]
Finally, we are in accord with the Investigating Commissioner that
respondent clerk of court should not be made administratively liable for
PINEDAPCGRNMAN
including the Motion in the calendar of the trial court, considering that it was
authorized by the presiding judge. However, he is reminded that his
administrative functions, although not involving the discretion or judgment of
a judge, are vital to the prompt and sound administration of justice.[16] Thus,
he should not hesitate to inform the judge if he should find any act or conduct
on the part of lawyers which are contrary to the established rules of
procedure.
WHEREFORE, in view of the foregoing, respondent Attys. Ceasar G.
Batuegas, Miguelito Nazareno V. Llantino are found guilty of committing
deliberate falsehood. Accordingly, they are SUSPENDED from the practice
of law for a period of six (6) months with a warning that a repetition of the
same or similar act will be dealt with more severely.
Let a copy of this Resolution be attached to the personal records of Attys.
Ceasar G. Batuegas and Miguelito Nazareno V. Llantino in the Office of the
Bar Confidant and copies thereof be furnished the Integrated Bar of the
Philippines.
SO ORDERED.
Rule 10.02 – A lawyer shall not knowingly misquote or misrepresent the
contents of the paper, the language or the argument of opposing
counsel, or the text of a decision of authority, or knowingly cite as law
a provision already rendered inoperative by repeal or amendment, or
assert as a fact that which has not been approved.
(missing case INSULAR LIFE EMPLOYEES VS INSULAR LIFE
ASSOCIATION)
Rule 10.03 – A lawyer shall observe the rules of procedure and shall not
misuse them to defeat the ends of justice.
 Judge-lawyer relationship: based on independence and self-
respect.
 Lawyer’s duty to the court:
1. respect and loyalty
2. fairness, truth and candor
3. no attempt to influence courts
 Cases of falsehood:
1. stating in the Deed of Sale that property is free from all liens
and encumbrances when not so
2. encashing check payable to a deceased cousin by signing
the latter’s name on the check
3. falsifying a power of attorney and using it in collecting the
money due to the principal
4. alleging in one pleading that the clients were mere lessees
and in another pleading that the same clients were owners
5. presenting falsified documents in court which he knows to
be false
6. filing false charges on groundless suits
7. using in pleadings the IBP number of another lawyer
8. unsolicited appearances
9. use of fictitious residence certificate
10. misquotation/misrepresentation
11. citing a repealed or amended provision
12. asserting a fact not proved
13. verbatim reproductions down to the last word and
punctuation mark
14. slight typo mistake: not sufficient to place him in contempt
ROC RULE 138 Section 20. Duties of attorneys. — It is the duty of an
attorney:
(d) To employ, for the purpose of maintaining the causes confided to
him, such means only as are consistent with truth and honor, and never
seek to mislead the judge or any judicial officer by an artifice or false
statement of fact or law;
CANON 11 – A LAWYER SHALL OBSERVE AND MAINTAIN THE
RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
Page 138
SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
LEGAL ETHICS
Rule 11.01 – A lawyer shall appear in court properly attired.
 A lawyer may NOT wear outlandish or colorful clothing to
court.
 As an officer of the court and in order to maintain the dignity
and respectability of the legal profession, a lawyer who
appears in court must be properly attired. Consequently, the
court can hold a lawyer IN CONTEMPT of court if he does not
appear in proper attire. Any deviation from the commonly
accepted norm of dressing in court (barong or tie, not both)
is enough to warrant a citing for contempt.
Rule 11.02 – A lawyer shall punctually appear at court hearings.
Rule 11.03 – A lawyer shall abstain from scandalous, offensive, or
menacing language or behavior before the courts.
ATTY. BONIFACIO T. BARANDON, JR., A.C. No. 5768
Complainant,
Present:
CARPIO, J., Chairperson,
- versus - BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.
ATTY. EDWIN Z. FERRER, SR.,
Respondent. Promulgated:
March 26, 2010
x ----------------------------------------------------------------------------------------- x
DECISION
ABAD, J.:
This administrative case concerns a lawyer who is claimed to have hurled
invectives upon another lawyer and filed a baseless suit against him.
The Facts and the Case
On January 11, 2001 complainant Atty. Bonifacio T. Barandon, Jr. filed a
complaint-affidavit[1] with the Integrated Bar of the Philippines Commission on
Bar Discipline (IBP-CBD) seeking the disbarment, suspension from the
practice of law, or imposition of appropriate disciplinary action against
respondent Atty. Edwin Z. Ferrer, Sr. for the following offenses:
1. On November 22, 2000 Atty. Ferrer, as plaintiffs counsel in Civil Case
7040, filed a reply with opposition to motion to dismiss that contained
abusive, offensive, and improper language which insinuated that Atty.
Barandon presented a falsified document in court.
2. Atty. Ferrer filed a fabricated charge against Atty. Barandon in Civil Case
7040 for alleged falsification of public document when the document
allegedly falsified was a notarized document executed on February 23, 1994,
at a date when Atty. Barandon was not yet a lawyer nor was assigned in
Camarines Norte. The latter was not even a signatory to the document.
3. On December 19, 2000, at the courtroom of Municipal Trial Court (MTC)
Daet before the start of hearing, Atty. Ferrer, evidently drunk, threatened
Atty.Barandon saying, Laban kung laban, patayan kung patayan, kasama a
ng lahat ng pamilya. Wala na palang magaling na abogado sa Camarines N
orte, ang abogadona rito ay mga taga-
Camarines Sur, umuwi na kayo sa Camarines Sur, hindi kayo taga-rito.
4. Atty. Ferrer made his accusation of falsification of public document without
bothering to check the copy with the Office of the Clerk of Court and, with
PINEDAPCGRNMAN
gross ignorance of the law, failed to consider that a notarized document is
presumed to be genuine and authentic until proven otherwise.
5. The Court had warned Atty. Ferrer in his first disbarment case against
repeating his unethical act; yet he faces a disbarment charge for sexual
harassment of an office secretary of the IBP Chapter in Camarines Norte; a
related criminal case for acts of lasciviousness; and criminal cases for libel
and grave threats that Atty.Barandon filed against him. In October 2000, Atty.
Ferrer asked Atty. Barandon to falsify the daily time record of his son who
worked with the Commission on Settlement of Land Problems, Department
of Justice. When Atty. Barandon declined,
Atty. Ferrer repeatedly harassed him with inflammatory language.
Atty. Ferrer raised the following defenses in his answer with motion to
dismiss:
1. Instead of having the alleged forged document submitted for examination,
Atty. Barandon filed charges of libel and grave threats against him. These
charges came about because Atty. Ferrers clients filed a case for falsification
of public document against Atty. Barandon.
2. The offended party in the falsification case, Imelda Palatolon, vouchsafed
that her thumbmark in the waiver document had been falsified.
3. At the time Atty. Ferrer allegedly uttered the threatening remarks against
Atty. Barandon, the MTC Daet was already in session. It was improbable that
the court did not take steps to stop, admonish, or cite Atty. Ferrer in direct
contempt for his behavior.
4. Atty. Barandon presented no evidence in support of his allegations that
Atty. Ferrer was drunk on December 19, 2000 and that he degraded the law
profession. The latter had received various citations that speak well of his
character.
5. The cases of libel and grave threats that Atty. Barandon filed against Atty.
Ferrer were still pending. Their mere filing did not make the latter guilty of the
charges. Atty. Barandon was forum shopping when he filed this disbarment
case since it referred to the same libel and grave threats subject of the
criminal cases.
In his reply affidavit,[2] Atty. Barandon brought up a sixth ground for
disbarment. He alleged that on December 29, 2000 at about 1:30 p.m., while
Atty. Ferrer was on board his sons taxi, it figured in a collision with a tricycle,
resulting in serious injuries to the tricycles passengers.[3] But neither Atty.
Ferrer nor any of his co-passengers helped the victims and, during the police
investigation, he denied knowing the taxi driver and blamed the tricycle driver
for being drunk. Atty. Ferrer also prevented an eyewitness from reporting the
accident to the authorities.[4]
Atty. Barandon claimed that the falsification case against him had already
been dismissed. He belittled the citations Atty. Ferrer allegedly received. On
the contrary, in its Resolution 00-1,[5] the IBP-Camarines Norte Chapter
opposed his application to serve as judge of the MTC of Mercedes,
Camarines Sur, on the ground that he did not have the qualifications,
integrity, intelligence, industry and character of a trial judge and that he was
facing a criminal charge for acts of lasciviousness and a disbarment case
filed by an employee of the same IBP chapter.
On October 10, 2001 Investigating Commissioner Milagros V. San Juan of
the IBP-CBD submitted to this Court a Report, recommending the suspension
for two years of Atty.Ferrer. The Investigating Commissioner found enough
evidence on record to prove Atty. Ferrers violation of Canons
8.01 and 7.03 of the Code of Professional Responsibility. He attributed to
Atty. Barandon, as counsel in Civil Case 7040, the falsification of the plaintiffs
affidavit despite the absence of evidence that the document had in fact been
falsified and that Atty. Barandon was a party to it. The Investigating
Commissioner also found that Atty. Ferrer uttered the threatening remarks
Page 139
imputed to him in the presence of other counsels, court personnel, and
litigants before the start of hearing.
LEGAL ETHICS
On June 29, 2002 the IBP Board of Governors passed Resolution XV-2002-
225,[6] adopting and approving the Investigating Commissioners
recommendation but reduced the penalty of suspension to only one year.
Atty. Ferrer filed a motion for reconsideration but the Board denied it in its
Resolution[7] of October 19, 2002 on the ground that it had already endorsed
the matter to the Supreme Court. On February 5, 2003, however, the Court
referred back the case to the IBP for resolution of Atty. Ferrers motion for
reconsideration.[8] On May 22, 2008 the IBP Board of Governors adopted and
approved the Report and Recommendation[9] of the Investigating
Commissioner that denied Atty. Ferrers motion for reconsideration.[10]
On February 17, 2009, Atty. Ferrer filed a Comment on Board of Governors
IBP Notice of Resolution No. XVIII-2008.[11] On August 12, 2009 the Court
resolved to treat Atty.Ferrers comment as a petition for review under Rule
139 of the Revised Rules of Court. Atty. Barandon filed his comment,[12]
reiterating his arguments before the IBP. Further, he presented certified
copies of orders issued by courts in Camarines Norte that warned Atty. Ferrer
against appearing in court drunk.[13]
The Issues Presented
The issues presented in this case are:
1. Whether or not the IBP Board of Governors and the IBP Investigating
Commissioner erred in finding respondent Atty. Ferrer guilty of the charges
against him; and
2. If in the affirmative, whether or not the penalty imposed on him is justified.
The Courts Ruling
We have examined the records of this case and find no reason to disagree
with the findings and recommendation of the IBP Board of Governors and the
Investigating Commissioner.
The practice of law is a privilege given to lawyers who meet the high
standards of legal proficiency and morality. Any violation of these standards
exposes the lawyer to administrative liability.[14]
Canon 8 of the Code of Professional Responsibility commands all lawyers to
conduct themselves with courtesy, fairness and candor towards their fellow
lawyers and avoid harassing tactics against opposing counsel. Specifically,
in Rule 8.01, the Code provides:
Rule 8.01. A lawyer shall not, in his professional dealings, use language
which is abusive, offensive or otherwise improper.
Atty. Ferrers actions do not measure up to this Canon. The evidence shows
that he imputed to Atty. Barandon the falsification of the Salaysay Affidavit of
the plaintiff in Civil Case 7040. He made this imputation with pure malice for
he had no evidence that the affidavit had been falsified and that Atty.
Barandon authored the same.
Moreover, Atty. Ferrer could have aired his charge of falsification in a proper
forum and without using offensive and abusive language against a fellow
lawyer. To quote portions of what he said in his reply with motion to dismiss:
1. That the answer is fraught with grave and culpable misrepresentation and
FALSIFICATION of documents, committed to mislead this Honorable Court,
but with concomitant grave responsibility of counsel for Defendants, for
distortion and serious misrepresentation to the court, for presenting a grossly
FALSIFIED document, in violation of his oath of office as a government
employee and as member of the Bar, for the reason, that, Plaintiff, IMELDA
PALATOLON, has never executed the SALAYSAY AFFIDAVIT, wherein her
fingerprint has been falsified, in view whereof, hereby DENY the same
including the affirmative defenses, there being no knowledge or information
to form a belief as to the truth of the same, from pars. (1) to par.
(15) which are all lies and mere fabrications, sufficient ground for
DISBARMENT of the one responsible for said falsification and distortions.[15]
PINEDAPCGRNMAN
The Court has constantly reminded lawyers to use dignified language in their
pleadings despite the adversarial nature of our legal system.[16]
Atty. Ferrer had likewise violated Canon 7 of the Code of Professional
Responsibility which enjoins lawyers to uphold the dignity and integrity of the
legal profession at all times. Rule 7.03 of the Code provides:
Rule 7.03. A lawyer shall not engage in conduct that adversely reflect on his
fitness to practice law, nor shall he, whether in public or private life behave
in scandalous manner to the discredit of the legal profession.
Several disinterested persons confirmed Atty. Ferrers drunken invectives at
Atty. Barandon shortly before the start of a court hearing. Atty. Ferrer did not
present convincing evidence to support his denial of this particular charge.
He merely presented a certification from the police that its blotter for the day
did not report the threat he supposedly made.Atty. Barandon
presented, however, the police blotter on a subsequent date that recorded his
complaint against Atty. Ferrer.
Atty. Ferrer said, Laban kung laban, patayan kung patayan, kasama ang la
hat ng pamilya. Wala na palang magaling na abogado sa Camarines Norte,
ang abogado na rito aymga taga-
Camarines Sur, umuwi na kayo sa Camarines Sur, hindi kayo taga-
rito. Evidently, he uttered these with intent to annoy, humiliate, incriminate,
and discredit Atty.Barandon in the presence of lawyers, court personnel, and
litigants waiting for the start of hearing in court. These language is
unbecoming a member of the legal profession. The Court cannot
countenance it.
Though a lawyers language may be forceful and emphatic, it should always
be dignified and respectful, befitting the dignity of the legal profession. The
use of intemperate language and unkind ascriptions has no place in the
dignity of judicial forum.[17] Atty. Ferrer ought to have realized that this sort of
public behavior can only bring down the legal profession in the public
estimation and erode public respect for it. Whatever moral righteousness
Atty. Ferrer had was negated by the way he chose to express his indignation.
Contrary to Atty. Ferrers allegation, the Court finds that he has been
accorded due process. The essence of due process is to be found in the
reasonable opportunity to be heard and submit any evidence one may have
in support of ones defense.[18] So long as the parties are given the opportunity
to explain their side, the requirements of due process are satisfactorily
complied with.[19] Here, the IBP Investigating Commissioner gave Atty.
Ferrer all the opportunities to file countless pleadings and refute all the
allegations of Atty.Barandon.
All lawyers should take heed that they are licensed officers of the courts who
are mandated to maintain the dignity of the legal profession, hence they must
conduct themselves honorably and fairly.[20] Atty. Ferrers display of improper
attitude, arrogance, misbehavior, and misconduct in the performance of his
duties both as a lawyer and officer of the court, before the public and the
court, was a patent transgression of the very ethics that lawyers are sworn to
uphold.
ACCORDINGLY, the Court AFFIRMS the May 22, 2008 Resolution of the
IBP Board of Governors in CBD Case 01-809 and ORDERS the suspension
of Atty. Edwin Z.Ferrer, Sr. from the practice of law for one year effective
upon his receipt of this Decision.
Let a copy of this Decision be entered in Atty. Ferrers personal record as an
attorney with the Office of the Bar Confidant and a copy of the same be
served to the IBP and to the Office of the Court Administrator for circulation
to all the courts in the land.
SO ORDERED.
Adm. Case No. 7252 November 22, 2006
[CBD 05-1434]
Page 140
JOHNNY NG, Complainant,
vs.
ATTY. BENJAMIN C. ALAR, Respondent.
LEGAL ETHICS
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Before the Court is Resolution No. XVII-2006-223 dated April 27, 2006 of the
IBP Board of Governors, to wit:
RESOLVED to 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 Respondent’s propensity to resort to undeserved language and
disrespectful stance, Atty. Benjamin C. Alar is hereby REPRIMANDED with
a stern Warning that severe penalties will be imposed in case similar
misconduct is again committed. Likewise, the counter complaint against Atty.
Jose Raulito E. Paras and Atty. Elvin Michael Cruz is hereby DISMISSED for
lack of merit.
A verified complaint1 dated February 15, 2005 was filed by Johnny Ng
(complainant) against Atty. Benjamin C. Alar (respondent) before the
Integrated Bar of the Philippines (IBP), Commission on Bar Discipline (CBD),
for Disbarment.
Complainant alleges that he is one of the respondents in a labor case with
the National Labor Relations Commission (NLRC) docketed as NLRC NCR
CA No. 040273-04, while respondent is the counsel for complainants. The
Labor Arbiter (LA) dismissed the complaint. On appeal, the NLRC rendered
a Decision2affirming the decision of the LA. Respondent filed a Motion for
Reconsideration with Motion to Inhibit (MRMI),3pertinent portions of which
read:
x x x We cannot help suspecting that the decision under consideration
was merely copied from the pleadings of respondents-appellees with
very slight modifications. But we cannot accept the suggestion, made by
some knowledgeable individuals, that the actual writer of the said
decision is not at all connected with the NLRC First Division.
x x x Why did the NLRC, First Division, uphold the Labor Arbiter in
maintaining that the separation pay should be only one half month per
year of service? Is jurisprudence on this not clear enough, or is there
another reason known only to them?
x x x If this is not grave abuse of discretion on the part of the NLRC,
First Division, it is ignominious ignorance of the law on the part of the
commissioners concerned.
The NLRC wants proof from the complainants that the fire actually resulted
in prosperity and not losses. xxxRespondents failed to prove their claim
of losses. And the Honorable Commissioners of the First Division lost
their ability to see these glaring facts.
x x x How much is the separation pay they should pay? One month per year
of service – and all of it to the affected workers – not to some people in
the NLRC in part.
x x x They should have taken judicial notice of this prevalent practices of
employers xxx. If the Honorable Commissioners, of the First Division do
not know this, they are indeed irrelevant to real life.
x x x we invite the Honorable Commissioners of the First Division to see
for themselves the evidence before them and not merely rely on their
reviewers and on the word of their ponente. If they do this honestly they
cannot help seeing the truth. Yes, honesty on the part of the
Commissioners concerned is what is lacking, not the evidence. Unfair
labor practice stares them in the face.
If labor arbiter Santos was cross-eyed in his findings of fact, the
Honorable Commissioners of the First Division are doubly so – and with
malice thrown in. If the workers indeed committed an illegal strike, how
come their only "penalty" is removing their tent? It is obvious that the Labor
Arbiter and the Honorable Commissioners know deep in their small
hearts that there was no strike. This is the only reason for the finding of
"illegal strike". Without this finding, they have no basis to remove the tent;
they have to invent that basis.
x x x The union in its "Union Reply To The Position Paper Of Management"
and its Annexes has shown very clearly that the so called strike is a myth. But
Commissioner Dinopol opted to believe the myth instead of the facts.
He fixed his sights on the tent in front of the wall and closed his eyes
to the open wide passage way and gate beside it. His eyes, not the
ingress and egress of the premises, are blocked by something so thick
he cannot see through it. His impaired vision cannot be trusted, no
doubt about it.
PINEDAPCGRNMAN
Commissioner Dinopol has enshrined a novel rule on money claims.
Whereas, before, the established rule was, in cases of money claims the
employer had the burden of proof of payment. Now it is the other way around.
x x x For lack of a better name we should call this new rule the "Special
Dinopol Rule". But only retirable commissioners are authorized to
apply this rule and only when the money claims involved are
substantial. When they are meager the ordinary rules apply.
x x x how Commissioner Dinopol is able to say that the pay slips proved that
the sixteen (16) claimants were already paid their service incentive leave pay.
This finding is copied verbatim from the cross-eyed decision of Labor
Arbiter Santos x x x .
The evidence already on record proving that the alleged blocking of the
ingress and egress is a myth seem invisible to the impaired sight of
Commissioner Dinopol. He needs more of it. x x x
Commissioner Dinopol by his decision under consideration (as
ponente [of] the decision that he signed and caused his co-
commissioners in the First Division to sign) has shown great and
irreparable impartiality, grave abuse of discretion and ignorance of the
law. He is a shame to the NLRC and should not be allowed to have
anything to do with the instant case any more. Commissioner Go and
Chairman Señeres, by negligence, are just as guilty as Dinopol but,
since the NLRC rules prohibit the inhibition of the entire division, Chairman
Señeres should remain in the instant case and appoint two (2) other
commissioners from another division to sit with him and pass final judgment
in the instant case.4 (Emphasis supplied)
In his Answer with Counter-Complaint dated April 6, 2005, respondent Alar
contends that the instant complaint only intends to harass him and to
influence the result of the cases between complainant and the workers in the
different fora where they are pending; that the Rules of Court/Code of
Professional Responsibility applies only suppletorily at the NLRC when the
NLRC Rules of Procedure has no provision on disciplinary matters for
litigants and lawyers appearing before it; that Rule X of the NLRC Rules of
Procedure provides for adequate sanctions against misbehaving lawyers and
litigants appearing in cases before it; that the Rules of Court/Code of
Professional Responsibility does not apply to lawyers practicing at the NLRC,
the latter not being a court; that LAs and NLRC Commissioners are not
judges nor justices and the Code of Judicial Conduct similarly do not apply
to them, not being part of the judiciary; and that the labor lawyers who are
honestly and conscientiously practicing before the NLRC and get paid on a
contingent basis are entitled to some latitude of righteous anger when they
get cheated in their cases by reason of corruption and collusion by the cheats
from the other sectors who make their lives and the lives of their constituents
miserable, with impunity, unlike lawyers for the employers who get paid, win
or lose, and therefore have no reason to feel aggrieved.5
Attached to the Counter-Complaint is the affidavit of union president Marilyn
Batan wherein it is alleged that Attys. Paras and Cruz violated the Code of
Professional Responsibility of lawyers in several instances, such that while
the labor case is pending before the NLRC, respondents Paras and Cruz filed
a new case against the laborers in the Office of the City Engineer of Quezon
City (QC) to demolish the tent of the workers, thus splitting the jurisdiction
between the NLRC and the City Engineer's Office (CEO) of QC which
violates Canon 12, Rules 12.02 and 13.03; that although Ng signed the
disbarment complaint against Alar, respondents Paras’s and Cruz’s office
instigated the said complaint which violates Canon 8; that Ng's company did
not pay income tax for the year 2000 allegedly for non-operation due to fire
and respondents consented to this act of the employer which violates Canon
19, Rule 19.02; and that when the case started, there were more or less 100
complainants, but due to the acts of the employer and the respondents, the
number of complainants were reduced to almost half which violates Canon
19, Rule 19-01, 19-02 and 19-03.6
In Answer to the Counter-Complaint dated April 14, 2005,7 respondents
Paras and Cruz alleged: At no time did they file multiple actions arising from
the same cause of action or brook interference in the normal course of judicial
proceedings; the reliefs sought before the CEO has nothing to do with the
case pending before the NLRC; the demolition of the nuisance and illegal
structures is a cause of action completely irrelevant and unrelated to the labor
cases of complainant; the CEO was requested to investigate certain
Page 141
nuisance structures located outside the employer's property, which consist
of shanties, tents, banners and other paraphernalia which hampered the free
ingress to and egress out of the employer's property and present clear and
LEGAL ETHICS
present hazards; the Office of the City Engineer found the structures violative
of pertinent DPWH and MMDA ordinances; the pendency of a labor case with
the NLRC is completely irrelevant since the holding of a strike, legal or not,
did not validate or justify the construction of illegal nuisance structures; the
CEO proceeded to abate the nuisance structures pursuant to its power to
protect life, property and legal order; it was not their idea to file the disbarment
complaint against respondent Alar; they merely instructed their client on how
to go about filing the case, after having been served a copy of the derogatory
MRMI; Canon 8 should not be perceived as an excuse for lawyers to turn
their backs on malicious acts done by their brother lawyers; the complaint
failed to mention that the only reason the number of complainants were
reduced is because of the amicable settlement they were able to reach with
most of them; their engagement for legal services is only for labor and
litigation cases; at no time were they consulted regarding the tax concerns of
their client and therefore were never privy to the financial records of the latter;
at no time did they give advice regarding their client's tax concerns;
respondent Alar's attempt at a disbarment case against them is unwarranted,
unjustified and obviously a mere retaliatory action on his part.
The case, docketed as CBD Case No. 05-1434, was assigned by the IBP to
Commissioner Patrick M. Velez for investigation, report and
recommendation. In his Report and Recommendation, the Investigating
Commissioner found respondent guilty of using improper and abusive
language and recommended that respondent be suspended for a period of
not less than three months with a stern warning that more severe penalty will
be imposed in case similar misconduct is again committed.
On the other hand, the Investigating Commissioner did not find any
actionable misconduct against Attys. Paras and Cruz and therefore
recommended that the Counter-Complaint against them be dismissed for
lack of merit.
Acting on the Report and Recommendation, the IBP Board of Governors
issued the Resolution hereinbefore quoted. While the Court agrees with the
findings of the IBP, it does not agree that respondent Alar deserves only a
reprimand.
The Code of Professional Responsibility mandates:
CANON 8 – A lawyer shall conduct himself with courtesy, fairness and candor
toward his professional colleagues, and shall avoid harassing tactics against
opposing counsel.
Rule 8.01 — A lawyer shall not, in his professional dealings, use language
which is abusive, offensive or otherwise improper.
CANON 11 – A lawyer shall observe and maintain the respect due to the
courts and to judicial officers and should insist on similar conduct by others.
Rule 11.03 – A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.
Rule 11.04 – A lawyer shall not attribute to a Judge motives not supported
by the record or have no materiality to the case.
The MRMI contains insults and diatribes against the NLRC, attacking both its
moral and intellectual integrity, replete with implied accusations of partiality,
impropriety and lack of diligence. Respondent used improper and offensive
language in his pleadings that does not admit any justification.
In Lacurom v. Jacoba,8 the Court ratiocinated as follows:
Well-recognized is the right of a lawyer, both as an officer of the court and as
a citizen, to criticize in properly respectful terms and through legitimate
channels the acts of courts and judges. However, even the most hardened
judge would be scarred by the scurrilous attack made by the 30 July 2001
motion on Judge Lacurom's Resolution. On its face, the Resolution presented
the facts correctly and decided the case according to supporting law and
jurisprudence. Though a lawyer's language may be forceful and emphatic, it
should always be dignified and respectful, befitting the dignity of the legal
profession. The use of unnecessary language is proscribed if we are to
promote high esteem in the courts and trust in judicial administration. In Uy
v. Depasucat,9 the Court held that a lawyer shall abstain from scandalous,
offensive or menacing language or behavior before the Courts. It must be
remembered that the language vehicle does not run short of expressions
which are emphatic but respectful, convincing but not derogatory, illuminating
but not offensive.10 A lawyer's language should be forceful but dignified,
emphatic but respectful as befitting an advocate and in keeping with the
dignity of the legal profession.11 Submitting pleadings containing countless
insults and diatribes against the NLRC and attacking both its moral and
intellectual integrity, hardly measures to the sobriety of speech demanded of
a lawyer.
PINEDAPCGRNMAN
Respondent's assertion that the NLRC not being a court, its commissioners,
not being judges or justices and therefore not part of the judiciary; and that
consequently, the Code of Judicial Conduct does not apply to them, is
unavailing. In Lubiano v. Gordolla,12 the Court held that respondent became
unmindful of the fact that in addressing the NLRC, he nonetheless remained
a member of the Bar, an oath-bound servant of the law, whose first duty is
not to his client but to the administration of justice and whose conduct ought
to be and must be scrupulously observant of law and ethics.13
Respondent’s argument that labor practitioners are entitled to some latitude
of righteous anger is unavailing. It does not deter the Court from exercising
its supervisory authority over lawyers who misbehave or fail to live up to that
standard expected of them as members of the Bar.14
The Court held in Rheem of the Philippines v. Ferrer,15 thus:
2. What we have before us is not without precedent. Time and again, this
Court has admonished and punished, in varying degrees, members of the
Bar for statements, disrespectful or irreverent, acrimonious or defamatory, of
this Court or the lower courts. Resort by an attorney – in a motion for
reconsideration – to words which may drag this Court down into disrepute, is
frowned upon as "neither justified nor in the least necessary, because in
order to call the attention of the court in a special way to the essential points
relied upon in his argument and to emphasize the force thereof, the many
reasons stated in the motion" are "sufficient," and such words "superfluous."
It is in this context that we must say that just because Atty. Armonio "thought
best to focus the attention" of this Court "to the issue in the case" does not
give him unbridled license in language. To be sure, lawyers may come up
with various methods, perhaps much more effective, in calling the Court’s
attention to the issues involved. The language vehicle does not run short of
expressions, emphatic but respectful, convincing but not derogatory,
illuminating but not offensive.
To be proscribed then is the use of unnecessary language which jeopardizes
high esteem in courts, creates or promotes distrust in judicial administration,
or which could have the effect of "harboring and encouraging discontent
which, in many cases, is the source of disorder, thus undermining the
foundation upon which rests that bulwark called judicial power to which those
who are aggrieved turn for protection and relief." Stability of judicial
institutions suggests that the Bar stand firm on this precept.
The language here in question, respondents aver, "was the result of
overenthusiasm." It is but to repeat an old idea when we say that enthusiasm,
or even excess of it, is not really bad. In fact, the one or the other is no less
a virtue, if channeled in the right direction. However, it must be circumscribed
within the bounds of propriety and with due regard for the proper place of
courts in our system of government.16
Respondent has clearly violated Canons 8 and 11 of the Code of
Professional Responsibility. His actions erode the public’s perception of the
legal profession.
However, the penalty of reprimand with stern warning imposed by the IBP
Board of Governors is not proportionate to respondent’s violation of the
Canons of the Code of Professional Responsibility. Thus, he deserves a
stiffer penalty of fine in the amount of P5,000.00.
Anent the Counter-Complaint filed against Attys. Paras and Cruz, the Court
finds no reason to disturb the following findings and recommendation of the
Investigating Commissioner, as approved by the IBP Board of Governors, to
wit:
The Counter-complainant Batan failed to submit any position paper to
substantiate its claims despite sufficient opportunity to do so.1âwphi1
At any rate, it must be noted that the alleged case with the Office of the City
Engineer really partakes of a different cause of action, which has nothing to
do with the NLRC case. The decision was made by the city engineer.
Respondent’s remedy should be to question that decision, not bring it to this
Commission which has no jurisdiction over it. We can not substitute our
judgment for the proper courts who should determine the propriety or
sagacity of the city engineer’s action.
Furthermore, parties are not prohibited from availing themselves of remedies
available in law provided; these acts do not exceed the bounds of decency.
In supporting the action against respondent’s conduct, no such abuse may
be gleaned. Indeed, it is the attorney’s duty as an officer of the court to defend
a judge from unfounded criticism or groundless personal attack. This requires
Page 142
of him not only to refrain from subjecting the judge to wild and groundless
accusation but also to discourage other people from so doing and to come to
his defense when he is so subjected. By the very nature of his position a
LEGAL ETHICS
judge lacks the power, outside of his court, to defend himself against
unfounded criticism and clamor and it is the attorney, and no other, who can
better or more appropriately support the judiciary and the incumbents of the
judicial positions. (Agpalo, p. 143 citing People v. Carillo, 77 Phil. 572 (1946);
Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970); see
Cabansag v. Fernandez, 102 Phil. 152 (1957) Whether the disbarment
complaint was filed by Ng or by his lawyers is therefore not of great import,
what is more apropos would be the contents of the complaint and whether
the same is sufficient to consider disciplinary sanctions.
Likewise, the tax case is a different matter altogether. Since the respondent
lawyers have already stated that they were not engaged as counsels to take
care of their client’s tax problems, then they cannot be held accountable for
the same. If any wrongdoing has been committed by complainant Ng, he
should answer for that and those lawyers who were responsible for such acts
be held liable jointly. There is no showing [that] attorneys Paras and Cruz
were responsible for that tax fiasco.1âwphi1
Finally, while it may be true that Batan’s group has been greatly diminished
from about 100 claimants to less than half the number is not by itself an
actionable misconduct. Lawyers are duty bound to foster amicable settlement
of cases; litigation and adversarial proceedings while a necessary part of the
practice is not encouraged, because it will save expenses and help
unclogged [sic] the dockets. If the compromise is fair then there is no reason
to prevent the same. There is nothing in the counter-complaint which shows
that the compromise agreement and waivers executed appear to be unfair,
hence no reason to hold lawyers liable for the same. Besides, a "compromise
is as often the better part of justice as prudence the part of valor and a lawyer
who encourages compromise is no less the client’s champion in settlement
out of court than he is the client’s champion in the battle in court." (Curtis,
The Advocate: Voices in Court, 5 (1958); cited in Agpalo’s Legal Ethics, p.
86, 1980 ed.) What is therefore respondent Alar[‘]s beef with the execution
of these waivers if these were executed freely by his clients?
All told, we do not find anything actionable misconduct against Attorneys
Paras and Cruz; hence the dismissal of the counter-complaint against them
is proper for absolute lack of merit.17
ACCORDINGLY, we find respondent Atty. Benjamin C. Alar GUILTY of
violation of Canons 8 and 11 of the Code of Professional Responsibility. He
is imposed a fine of P5,000.00 with STERN WARNING that a repetition of
the same or similar act in the future will be dealt with more severely.
The Counter-Complaint against Atty. Jose Raulito E. Paras and Atty. Elvin
Michael Cruz is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 71169 August 30, 1989
JOSE D. SANGALANG and LUTGARDA D. SANGALANG, petitioners,
FELIX C. GASTON and DOLORES R. GASTON, JOSE V. BRIONES and
ALICIA R. BRIONES, and BEL-AIR VILLAGE ASSOCIATION,
INC.,intervenors-petitioners,
vs.
INTERMEDIATE APPELLATE COURT and AYALA
CORPORATION, respondents.
G.R. No. 74376 August 30, 1989
BEL-AIR VILLAGE ASSOCIATION, INC., petitioner,
vs.
THE INTERMEDIATE APPELLATE COURT, ROSARIO DE JESUS
TENORIO, and CECILIA GONZALEZ,respondents.
G.R. No. 76394 August 30, 1989
BEL-AIR VILLAGE ASSOCIATION, INC., petitioner,
vs.
THE COURT OF APPEAL and EDUARDO and BUENA
ROMUALDEZ respondents.
G.R. No. 78182 August 30, 1989
BEL-AIR VILLAGE ASSOCIATION, INC., petitioner,
vs.
COURT OF APPEALS, DOLORES FILLEY and J. ROMERO &
ASSOCIATES, respondents.
G.R. No. 82281 August 30, 1989
BEL-AIR VILLAGE ASSOCIATION, INC., petitioner,
vs.
COURT OF APPEALS, VIOLETA MONCAL, and MAJAL DEVELOPMENT
CORPORATION, respondents.
PINEDAPCGRNMAN
RESOLUTION
SARMIENTO, J.:
The incident before the Court refers to charges for contempt against Atty. J.
Cezar Sangco, counsel for the petitioners Spouses Jose and Lutgarda
Sangalang. (G.R. No. 71169.)
On February 2, 1989, the Court issued a Resolution, requiring, among other
things, Atty. Sangco to show cause why he should not be punished for
contempt "for using intemperate and accusatory language." 1 On March 2,
1989, Atty. Sangco filed an explanation.
The Court finds Atty. Sangco's remarks in his motion for reconsideration,
reproduced as follows:
...
This Decision of this Court in the above-entitled case reads more like a Brief
for Ayala ... 2
... [t]he Court not only put to serious question its own integrity and
competence but also jeopardized its own campaign against graft and
corruption undeniably pervading the judiciary ... 3
...
The blatant disregard of controlling, documented and admitted facts not put
in issue, such as those summarily ignored in this case; the extraordinary
efforts exerted to justify such arbitrariness and the very strained and
unwarranted conclusions drawn therefrom, are unparalleled in the history of
this Court ... 4
...
... [T]o ignore the fact that Jupiter Street was originally constructed for the
exclusive benefit of the residents of Bel- Air Village, or rule that respondent
Court's admission of said fact is "inaccurate," as Ayala's Counsel himself
would like to do but did not even contend, is a manifestation of this Court's
unusual partiality to Ayala and puts to serious question its integrity on that
account. 5
...
[i]t is submitted that this ruling is the most serious reflection on the Court's
competence and integrity and exemplifies its manifest partiality towards
Ayala. It is a blatant disregard of documented and incontrovertible and
uncontroverted factual findings of the trial court fully supported by the records
and the true significance of those facts which both the respondent court and
this Court did not bother to read and consequently did not consider and
discuss, least of all in the manner it did with respect to those in which it arrived
at conclusions favorable to Ayala. 6
To totally disregard Ayala's written letter of application for special
membership in BAVA which clearly state that such membership is necessary
because it is a new development in their relationship with respect to its
intention to give its commercial lot buyers an equal right to the use of Jupiter
Street without giving any reason therefor, smacks of judicial arrogance ... 7
...
... [A]re all these unusual exercise of such arbitrariness above suspicion? Will
the current campaign of this Court against graft and corruption in the judiciary
be enhanced by such broad discretionary power of courts? 8
disparaging, intemperate, and uncalled for. His suggestions that the Court
might have been guilty of graft and corruption in acting on these cases are
not only unbecoming, but comes, as well, as an open assault upon the
Court's honor and integrity. In rendering its judgment, the Court yielded to the
records before it, and to the records alone, and not to outside influences,
much less, the influence of any of the parties. Atty. Sangco, as a former judge
of an inferior court, should know better that in any litigation, one party
prevails, but his success will not justify indictments of bribery by the other
party. He should be aware that because of his accusations, he has done an
enormous disservice to the integrity of the highest tribunal and to the stability
of the administration of justice in general.
As a former judge, Atty. Sangco also has to be aware that we are not bound
by the findings of the trial court (in which his clients prevailed).lâwphî1.ñèt
But if we did not agree with the findings of the court a quo, it does not follow
that we had acted arbitrarily because, precisely, it is the office of an appeal
to review the findings of the inferior court.
To be sure, Atty. Sangco is entitled to his opinion, but not to a license to insult
the Court with derogatory statements and recourses to argumenta ad
Page 143
hominem. In that event, it is the Court's duty "to act to preserve the honor
and dignity ... and to safeguard the morals and ethics of the legal profession."
9
LEGAL ETHICS
We are not satisfied with his explanation that he was merely defending the
interests of his clients. As we held inLaureta, a lawyer's "first duty is not to
his client but to the administration of justice; to that end, his client's success
is wholly subordinate; and his conduct ought to and must always be
scrupulously observant of law and ethics." 10And while a lawyer must
advocate his client's cause in utmost earnest and with the maximum skill he
can marshal, he is not at liberty to resort to arrogance, intimidation, and
innuendo.
That "[t]he questions propounded were not meant or intended to accuse but
to ... challenge the thinking in the Decision, 11 comes as an eleventh-hour
effort to cleanse what is in fact and plainly, an unfounded accusation.
Certainly, it is the prerogative of an unsuccessful party to ask for
reconsideration, but as we held in Laureta, litigants should not "'think that
they will win a hearing by the sheer multiplication of words' ". 12 As we
indicated (see Decision denying the motions for reconsideration in G.R. Nos.
71169, 74376, 76394, 78182, and 82281, and deciding G.R. No. 60727,
dated August 25, 1989), the movants have raised no new arguments to
warrant reconsideration and they can not veil that fact with inflammatory
language.
Atty. Sangco himself admits that "[a]s a judge I have learned to live with and
accept with grace criticisms of my decisions". 13 Apparently, he does not
practice what he preaches. Of course, the Court is not unreceptive to
comment and critique of its decisions, but provided they are fair and dignified.
Atty. Sangco has transcended the limits of fair comment for which he
deserves this Court's rebuke.
In our "show-cause" Resolution, we sought to hold Atty. Sangco in contempt,
specifically, for resort to insulting language amounting to disrespect toward
the Court within the meaning of Section 1, of Rule 71, of the Rules of Court.
Clearly, however, his act also constitutes malpractice as the term is defined
by Canon 11 of the Code of Professional Responsibility, as follows:
CANON 11-A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT
DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD
INSIST ON SIMILAR CONDUCT BY OTHERS.
Rule 11.01...
Rule 11.02...
Rule 11.03-A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.
Rule 11.04-A lawyer should not attribute to a Judge motives not supported
by the record or have no materiality to the case.
Rule 11.05...
Thus, aside from contempt, Atty. Sangco faces punishment for professional
misconduct or malpractice.
WHEREFORE Atty. J. Cezar Sangco is (1) SUSPENDED from the practice
of law for three (3) months effective from receipt hereof, and (2) ORDERED
to pay a fine of P 500.00 payable from receipt hereof. Let a copy of this
Resolution be entered in his record.
IT IS SO ORDERED.
G.R. No. L-27654 February 18, 1970
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION
AGAINST ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO H.
CALERO,
vs.
VIRGINIA Y. YAPTINCHAY.
RESOLUTION
CASTRO, J.:
Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's
Certificate of Title," filed on September 25, 1967, in protest against what he
therein asserts is "a great injustice committed against his client by this
Supreme Court." He indicts this Court, in his own phrase, as a tribunal
"peopled by men who are calloused to our pleas for justice, who ignore
without reasons their own applicable decisions and commit culpable
violations of the Constitution with impunity." His client's he continues, who
was deeply aggrieved by this Court's "unjust judgment," has become "one of
the sacrificial victims before the altar of hypocrisy." In the same breath that
he alludes to the classic symbol of justice, he ridicules the members of this
Court, saying "that justice as administered by the present members of the
Supreme Court is not only blind, but also deaf and dumb." He then vows to
PINEDAPCGRNMAN
argue the cause of his client "in the people's forum," so that "the people may
know of the silent injustice's committed by this Court," and that "whatever
mistakes, wrongs and injustices that were committed must never be
repeated." He ends his petition with a prayer that
... a resolution issue ordering the Clerk of Court to receive the certificate of
the undersigned attorney and counsellor-at-law IN TRUST with reservation
that at any time in the future and in the event we regain our faith and
confidence, we may retrieve our title to assume the practice of the noblest
profession.
He reiterated and disclosed to the press the contents of the aforementioned
petition. Thus, on September 26, 1967, the Manila Times published
statements attributed to him, as follows:
Vicente Raul Almacen, in an unprecedented petition, said he did it to expose
the tribunal's"unconstitutional and obnoxious" practice of arbitrarily denying
petitions or appeals without any reason.
Because of the tribunal's "short-cut justice," Almacen deplored, his client was
condemned to pay P120,000, without knowing why he lost the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this
petition, "where our Supreme Court is composed of men who are calloused
to our pleas for justice, who ignore without reason their own applicable
decisions and commit culpable violations of the Constitution with impunity.
xxx xxx xxx
He expressed the hope that by divesting himself of his title by which he earns
his living, the present members of the Supreme Court "will become
responsive to all cases brought to its attention without discrimination, and will
purge itself of those unconstitutional and obnoxious "lack of merit" or "denied
resolutions. (Emphasis supplied)
Atty. Almacen's statement that
... our own Supreme Court is composed of men who are calloused to our
pleas of [sic] justice, who ignore their own applicable decisions and commit
culpable violations of the Constitution with impunity
was quoted by columnist Vicente Albano Pacis in the issue of the Manila
Chronicle of September 28, 1967. In connection therewith, Pacis commented
that Atty. Almacen had "accused the high tribunal of offenses so serious that
the Court must clear itself," and that "his charge is one of the constitutional
bases for impeachment."
The genesis of this unfortunate incident was a civil case entitled Virginia Y.
Yaptinchay vs. Antonio H. Calero,1 in which Atty. Almacen was counsel for
the defendant. The trial court, after due hearing, rendered judgment against
his client. On June 15, 1966 Atty. Almacen received a copy of the decision.
Twenty days later, or on July 5, 1966, he moved for its reconsideration. He
served on the adverse counsel a copy of the motion, but did not notify the
latter of the time and place of hearing on said motion. Meanwhile, on July 18,
1966, the plaintiff moved for execution of the judgment. For "lack of proof of
service," the trial court denied both motions. To prove that he did serve on
the adverse party a copy of his first motion for reconsideration, Atty. Almacen
filed on August 17, 1966 a second motion for reconsideration to which he
attached the required registry return card. This second motion for
reconsideration, however, was ordered withdrawn by the trial court on August
30, 1966, upon verbal motion of Atty. Almacen himself, who, earlier, that is,
on August 22, 1966, had already perfected the appeal. Because the plaintiff
interposed no objection to the record on appeal and appeal bond, the trial
court elevated the case to the Court of Appeals.
But the Court of Appeals, on the authority of this Court's decision in Manila
Surety & Fidelity Co., Inc. vs. Batu Construction & Co., L-16636, June 24,
1965, dismissed the appeal, in the following words:
Upon consideration of the motion dated March 27, 1967, filed by plaintiff-
appellee praying that the appeal be dismissed, and of the opposition thereto
filed by defendant-appellant; the Court RESOLVED TO DISMISS, as it
hereby dismisses, the appeal, for the reason that the motion for
reconsideration dated July 5, 1966 (pp. 90-113, printed record on appeal)
does not contain a notice of time and place of hearing thereof and is,
therefore, a useless piece of paper (Manila Surety & Fidelity Co., Inc. vs. Batu
Construction & Co., G.R. No. L-16636, June 24, 1965), which did not interrupt
the running of the period to appeal, and, consequently, the appeal was
perfected out of time.
Page 144
Atty. Almacen moved to reconsider this resolution, urging that Manila Surety
& Fidelity Co. is not decisive. At the same time he filed a pleading entitled
"Latest decision of the Supreme Court in Support of Motion for
LEGAL ETHICS
Reconsideration," citing Republic of the Philippines vs. Gregorio A.
Venturanza, L-20417, decided by this Court on May 30, 1966, as the
applicable case. Again, the Court of Appeals denied the motion for
reconsideration, thus:
Before this Court for resolution are the motion dated May 9, 1967 and the
supplement thereto of the same date filed by defendant- appellant, praying
for reconsideration of the resolution of May 8, 1967, dismissing the appeal.
Appellant contends that there are some important distinctions between this
case and that of Manila Surety and Fidelity Co., Inc. vs. Batu Construction &
Co., G.R. No. L- 16636, June 24, 1965, relied upon by this Court in its
resolution of May 8, 1967. Appellant further states that in the latest
case,Republic vs. Venturanza, L-20417, May 30, 1966, decided by the
Supreme Court concerning the question raised by appellant's motion, the
ruling is contrary to the doctrine laid down in the Manila Surety & Fidelity Co.,
Inc. case.
There is no substantial distinction between this case and that of Manila
Surety & Fidelity Co.
In the case of Republic vs. Venturanza, the resolution denying the motion to
dismiss the appeal, based on grounds similar to those raised herein was
issued on November 26, 1962, which was much earlier than the date of
promulgation of the decision in the Manila Surety Case, which was June 24,
1965. Further, the resolution in the Venturanza case was interlocutory and
the Supreme Court issued it "without prejudice to appellee's restoring the
point in the brief." In the main decision in said case (Rep. vs. Venturanza the
Supreme Court passed upon the issue sub silencio presumably because of
its prior decisions contrary to the resolution of November 26, 1962, one of
which is that in the Manila Surety and Fidelity case. Therefore Republic vs.
Venturanza is no authority on the matter in issue.
Atty. Almacen then appealed to this Court by certiorari. We refused to take
the case, and by minute resolution denied the appeal. Denied shortly
thereafter was his motion for reconsideration as well as his petition for leave
to file a second motion for reconsideration and for extension of time. Entry of
judgment was made on September 8, 1967. Hence, the second motion for
reconsideration filed by him after the Said date was ordered expunged from
the records.
It was at this juncture that Atty. Almacen gave vent to his disappointment by
filing his "Petition to Surrender Lawyer's Certificate of Title," already adverted
to — a pleading that is interspersed from beginning to end with the insolent
contemptuous, grossly disrespectful and derogatory remarks hereinbefore
reproduced, against this Court as well as its individual members, a behavior
that is as unprecedented as it is unprofessional.
Nonetheless we decided by resolution dated September 28, 1967 to withhold
action on his petition until he shall have actually surrendered his certificate.
Patiently, we waited for him to make good his proffer. No word came from
him. So he was reminded to turn over his certificate, which he had earlier
vociferously offered to surrender, so that this Court could act on his petition.
To said reminder he manifested "that he has no pending petition in
connection with Case G.R. No. L-27654, Calero vs. Yaptinchay, said case is
now final and executory;" that this Court's September 28, 1967 resolution did
not require him to do either a positive or negative act; and that since his offer
was not accepted, he "chose to pursue the negative act."
In the exercise of its inherent power to discipline a member of the bar for
contumely and gross misconduct, this Court on November 17, 1967 resolved
to require Atty. Almacen to show cause "why no disciplinary action should be
taken against him." Denying the charges contained in the November 17
resolution, he asked for permission "to give reasons and cause why no
disciplinary action should be taken against him ... in an open and public
hearing." This Court resolved (on December 7) "to require Atty. Almacen to
state, within five days from notice hereof, his reasons for such request,
otherwise, oral argument shall be deemed waived and incident submitted for
decision." To this resolution he manifested that since this Court is "the
complainant, prosecutor and Judge," he preferred to be heard and to answer
questions "in person and in an open and public hearing" so that this Court
could observe his sincerity and candor. He also asked for leave to file a
written explanation "in the event this Court has no time to hear him in person."
To give him the ampliest latitude for his defense, he was allowed to file a
written explanation and thereafter was heard in oral argument.
His written answer, as undignified and cynical as it is unchastened, offers -
no apology. Far from being contrite Atty. Almacen unremittingly repeats his
PINEDAPCGRNMAN
jeremiad of lamentations, this time embellishing it with abundant sarcasm
and innuendo. Thus:
At the start, let me quote passages from the Holy Bible, Chapter 7, St.
Matthew: —
"Do not judge, that you may not be judged. For with what judgment you judge,
you shall be judged, and with what measure you measure, it shall be
measured to you. But why dost thou see the speck in thy brother's eye, and
yet dost not consider the beam in thy own eye? Or how can thou say to thy
brother, "Let me cast out the speck from thy eye"; and behold, there is a
beam in thy own eye? Thou hypocrite, first cast out the beam from thy own
eye, and then thou wilt see clearly to cast out the speck from thy brother's
eyes."
"Therefore all that you wish men to do to you, even to do you also to them:
for this is the Law and the Prophets."
xxx xxx xxx
Your respondent has no intention of disavowing the statements mentioned in
his petition. On the contrary, he refirms the truth of what he stated, compatible
with his lawyer's oath that he will do no falsehood, nor consent to the doing
of any in court. But he vigorously DENY under oath that the underscored
statements contained in the CHARGE are insolent, contemptuous, grossly
disrespectful and derogatory to the individual members of the Court; that they
tend to bring the entire Court, without justification, into disrepute; and
constitute conduct unbecoming of a member of the noble profession of law.
xxx xxx xxx
Respondent stands four-square that his statement is borne by TRUTH and
has been asserted with NO MALICE BEFORE AND AFTER THOUGHT but
mainly motivated with the highest interest of justice that in the particular case
of our client, the members have shown callousness to our various pleas for
JUSTICE, our pleadings will bear us on this matter, ...
xxx xxx xxx
To all these beggings, supplications, words of humility, appeals for charity,
generosity, fairness, understanding, sympathy and above all in the highest
interest of JUSTICE, — what did we get from this COURT? One word,
DENIED, with all its hardiness and insensibility. That was the unfeeling of the
Court towards our pleas and prayers, in simple word, it is plain callousness
towards our particular case.
xxx xxx xxx
Now that your respondent has the guts to tell the members of the Court that
notwithstanding the violation of the Constitution, you remained unpunished,
this Court in the reverse order of natural things, is now in the attempt to inflict
punishment on your respondent for acts he said in good faith.
Did His Honors care to listen to our pleadings and supplications for JUSTICE,
CHARITY, GENEROSITY and FAIRNESS? Did His Honors attempt to justify
their stubborn denial with any semblance of reason, NEVER. Now that your
respondent is given the opportunity to face you, he reiterates the same
statement with emphasis, DID YOU? Sir. Is this. the way of life in the
Philippines today, that even our own President, said: — "the story is current,
though nebulous ,is to its truth, it is still being circulated that justice in the
Philippines today is not what it is used to be before the war. There are those
who have told me frankly and brutally that justice is a commodity, a
marketable commodity in the Philippines."
xxx xxx xxx
We condemn the SIN, not the SINNER. We detest the ACTS, not the
ACTOR. We attack the decision of this Court, not the members. ... We were
provoked. We were compelled by force of necessity. We were angry but we
waited for the finality of the decision. We waited until this Court has performed
its duties. We never interfered nor obstruct in the performance of their duties.
But in the end, after seeing that the Constitution has placed finality on your
judgment against our client and sensing that you have not performed your
duties with "circumspection, carefulness, confidence and wisdom", your
Respondent rise to claim his God given right to speak the truth and his
Constitutional right of free speech.
xxx xxx xxx
The INJUSTICES which we have attributed to this Court and the further
violations we sought to be prevented is impliedly shared by our President. ...
.
xxx xxx xxx
Page 145
What has been abhored and condemned, are the very things that were
applied to us. Recalling Madam Roland's famous apostrophe during the
French revolution, "O Liberty, what crimes are committed in thy name", we
LEGAL ETHICS
may dare say, "O JUSTICE, what technicalities are committed in thy name'
or more appropriately, 'O JUSTICE, what injustices are committed in thy
name."
xxx xxx xxx
We must admit that this Court is not free from commission of any abuses, but
who would correct such abuses considering that yours is a court of last resort.
A strong public opinion must be generated so as to curtail these abuses.
xxx xxx xxx
The phrase, Justice is blind is symbolize in paintings that can be found in all
courts and government offices. We have added only two more symbols, that
it is also deaf and dumb. Deaf in the sense that no members of this Court
has ever heard our cries for charity, generosity, fairness, understanding
sympathy and for justice; dumb in the sense, that inspite of our beggings,
supplications, and pleadings to give us reasons why our appeal has been
DENIED, not one word was spoken or given ... We refer to no human defect
or ailment in the above statement. We only describe the. impersonal state of
things and nothing more.
xxx xxx xxx
As we have stated, we have lost our faith and confidence in the members of
this Court and for which reason we offered to surrender our lawyer's
certificate, IN TRUST ONLY. Because what has been lost today may be
regained tomorrow. As the offer was intended as our self-imposed sacrifice,
then we alone may decide as to when we must end our self-sacrifice. If we
have to choose between forcing ourselves to have faith and confidence in
the members of the Court but disregard our Constitution and to uphold the
Constitution and be condemned by the members of this Court, there is no
choice, we must uphold the latter.
But overlooking, for the nonce, the vituperative chaff which he claims is not
intended as a studied disrespect to this Court, let us examine the grain of his
grievances.
He chafes at the minute resolution denial of his petition for review. We are
quite aware of the criticisms2 expressed against this Court's practice of
rejecting petitions by minute resolutions. We have been asked to do away
with it, to state the facts and the law, and to spell out the reasons for denial.
We have given this suggestion very careful thought. For we know the abject
frustration of a lawyer who tediously collates the facts and for many weary
hours meticulously marshalls his arguments, only to have his efforts rebuffed
with a terse unadorned denial. Truth to tell, however, most petitions rejected
by this Court are utterly frivolous and ought never to have been lodged at all.3
The rest do exhibit a first-impression cogency, but fail to, withstand critical
scrutiny. By and large, this Court has been generous in giving due course to
petitions forcertiorari.
Be this as it may, were we to accept every case or write a full opinion for
every petition we reject, we would be unable to carry out effectively the
burden placed upon us by the Constitution. The proper role of the Supreme
Court, as Mr. Chief Justice Vinson of the U.S. Supreme Court has defined it,
is to decide "only those cases which present questions whose resolutions will
have immediate importance beyond the particular facts and parties involved."
Pertinent here is the observation of Mr. Justice Frankfurter in Maryland vs.
Baltimore Radio Show, 94 L. ed 562, 566:
A variety of considerations underlie denials of the writ, and as to the same
petition different reasons may read different justices to the same result ... .
Since there are these conflicting, and, to the uninformed, even confusing
reasons for denying petitions for certiorari, it has been suggested from time
to time that the Court indicate its reasons for denial. Practical considerations
preclude. In order that the Court may be enabled to discharge its
indispensable duties, Congress has placed the control of the Court's
business, in effect, within the Court's discretion. During the last three terms
the Court disposed of 260, 217, 224 cases, respectively, on their merits. For
the same three terms the Court denied, respectively, 1,260, 1,105,1,189
petitions calling for discretionary review. If the Court is to do its work it would
not be feasible to give reasons, however brief, for refusing to take these
cases. The tune that would be required is prohibitive. Apart from the fact that
as already indicated different reasons not infrequently move different
members of the Court in concluding that a particular case at a particular time
makes review undesirable.
Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098, May 31,
1963 (60 O.G. 8099), this Court, through the then Chief Justice Cesar
Bengzon, articulated its considered view on this matter. There, the petitioners
PINEDAPCGRNMAN
counsel urged that a "lack of merit" resolution violates Section 12 of Article
VIII of the Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same question has been
raised before; and we held that these "resolutions" are not "decisions" within
the above constitutional requirement. They merely hold that the petition for
review should not be entertained in view of the provisions of Rule 46 of the
Rules of Court; and even ordinary lawyers have all this time so understood
it. It should be remembered that a petition to review the decision of the Court
of Appeals is not a matter of right, but of sound judicial discretion; and so
there is no need to fully explain the court's denial. For one thing, the facts
and the law are already mentioned in the Court of Appeals' opinion.
By the way, this mode of disposal has — as intended — helped the Court in
alleviating its heavy docket; it was patterned after the practice of the U.S.
Supreme Court, wherein petitions for review are often merely ordered
"dismissed".
We underscore the fact that cases taken to this Court on petitions for
certiorari from the Court of Appeals have had the benefit of appellate review.
Hence, the need for compelling reasons to buttress such petitions if this Court
is to be moved into accepting them. For it is axiomatic that the supervisory
jurisdiction vested upon this Court over the Court of Appeals is not intended
to give every losing party another hearing. This axiom is implied in sec. 4 of
Rule 45 of the Rules of Court which recites:
Review of Court of Appeals' decision discretionary.—A review is not a matter
of right but of sound judicial discretion, and will be granted only when there
are special and important reasons therefor. The following, while neither
controlling nor fully measuring the court's discretion, indicate the character of
reasons which will be considered:
(a) When the Court of Appeals has decided a question of substance, not
theretofore determined by the Supreme Court, nor has decided it in a way
probably not in accord with law or with the applicable decisions of the
Supreme Court;
(b) When the Court of Appeals has so far departed from the accepted and
usual course of judicial proceedings, or so far sanctioned such departure by
the lower court, as to call for the exercise of the power of supervision.
Recalling Atty. Almacen's petition for review, we found, upon a
thoroughgoing examination of the pleadings. and records, that the Court of
Appeals had fully and correctly considered the dismissal of his appeal in the
light of the law and applicable decisions of this Court. Far from straying away
from the "accepted and usual course of judicial proceedings," it traced the
procedural lines etched by this Court in a number of decisions. There was,
therefore, no need for this Court to exercise its supervisory power.
As a law practitioner who was admitted to the Bar as far back as 1941, Atty.
Almacen knew — or ought to have known — that for a motion for
reconsideration to stay the running of the period of appeal, the movant must
not only serve a copy of the motion upon the adverse party (which he did),
but also notify the adverse party of the time and place of hearing (which
admittedly he did not). This rule was unequivocally articulated in Manila
Surety & Fidelity vs. Batu Construction & Co., supra:
The written notice referred to evidently is prescribed for motions in general
by Rule 15, Sections 4 and 5 (formerly Rule 26), which provides that such
notice shall state the time, and place of hearing and shall be served upon all
the Parties concerned at least three days in advance. And according to
Section 6 of the same Rule no motion shall be acted upon by the court without
proof of such notice. Indeed it has been held that in such a case the motion
is nothing but a useless piece of paper (Philippine National Bank v. Damasco,
I,18638, Feb. 28, 1963; citing Manakil v. Revilla, 42 Phil. 81; Roman Catholic
Bishop of Lipa v. Municipality of Unisan, 41 Phil. 866; and Director of Lands
vs. Sanz, 45 Phil. 117). The reason is obvious: Unless the movant sets the
time and place of hearing the Court would have no way to determine whether
that party agrees to or objects to the motion, and if he objects, to hear him
on his objection, since the Rules themselves do not fix any period within
which he may file his reply or opposition.
If Atty. Almacen failed to move the appellate court to review the lower court's
judgment, he has only himself to blame. His own negligence caused the
forfeiture of the remedy of appeal, which, incidentally, is not a matter of right.
To shift away from himself the consequences of his carelessness, he looked
for a "whipping boy." But he made sure that he assumed the posture of a
Page 146
martyr, and, in offering to surrender his professional certificate, he took the
liberty of vilifying this Court and inflicting his exacerbating rancor on the
LEGAL ETHICS
members thereof. It would thus appear that there is no justification for his
scurrilous and scandalous outbursts.
Nonetheless we gave this unprecedented act of Atty. Almacen the most
circumspect consideration. We know that it is natural for a lawyer to express
his dissatisfaction each time he loses what he sanguinely believes to be a
meritorious case. That is why lawyers are given 'wide latitude to differ with,
and voice their disapproval of, not only the courts' rulings but, also the
manner in which they are handed down.
Moreover, every citizen has the right to comment upon and criticize the
actuations of public officers. This right is not diminished by the fact that the
criticism is aimed at a judicial authority,4 or that it is articulated by a lawyer.5
Such right is especially recognized where the criticism concerns a concluded
litigation,6 because then the court's actuations are thrown open to public
consumption.7 "Our decisions and all our official actions," said the Supreme
Court of Nebraska,8 "are public property, and the press and the people have
the undoubted right to comment on them, criticize and censure them as they
see fit. Judicial officers, like other public servants, must answer for their official
actions before the chancery of public opinion."
The likely danger of confusing the fury of human reaction to an attack on
one's integrity, competence and honesty, with "imminent danger to the
administration of justice," is the reason why courts have been loath to inflict
punishment on those who assail their actuations.9 This danger lurks
especially in such a case as this where those who Sit as members of an
entire Court are themselves collectively the aggrieved parties.
Courts thus treat with forbearance and restraint a lawyer who vigorously
assails their actuations. 10 For courageous and fearless advocates are the
strands that weave durability into the tapestry of justice. Hence, as citizen
and officer of the court, every lawyer is expected not only to exercise the
right, but also to consider it his duty to expose the shortcomings and
indiscretions of courts and judges. 11
Courts and judges are not sacrosanct. 12 They should and expect critical
evaluation of their performance. 13 For like the executive and the legislative
branches, the judiciary is rooted in the soil of democratic society, nourished
by the periodic appraisal of the citizens whom it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer of the
court and as a citizen, to criticize in properly respectful terms and through
legitimate channels the acts of courts and judges. The reason is that
An attorney does not surrender, in assuming the important place accorded to
him in the administration of justice, his right as a citizen to criticize the
decisions of the courts in a fair and respectful manner, and the independence
of the bar, as well as of the judiciary, has always been encouraged by the
courts. (In re Ades, 6 F Supp. 487) .
Criticism of the courts has, indeed, been an important part of the traditional
work of the bar. In the prosecution of appeals, he points out the errors of
lower courts. In written for law journals he dissects with detachment the
doctrinal pronouncements of courts and fearlessly lays bare for -all to see
that flaws and inconsistence" of the doctrines (Hill v. Lyman, 126 NYS 2d
286). As aptly stated by Chief Justice Sharswood in Ex Parte Steinman, 40
Am. Rep. 641:
No class of the community ought to be allowed freer scope in the expansion
or publication of opinions as to the capacity, impartiality or integrity of judges
than members of the bar. They have the best opportunities for observing and
forming a correct judgment. They are in constant attendance on the courts.
... To say that an attorney can only act or speak on this subject under liability
to be called to account and to be deprived of his profession and livelihood,
by the judge or judges whom he may consider it his duty to attack and
expose, is a position too monstrous to be entertained.
... .
Hence, as a citizen and as Officer of the court a lawyer is expected not only
to exercise the right, but also to consider it his duty to avail of such right. No
law may abridge this right. Nor is he "professionally answerable for a scrutiny
into the official conduct of the judges, which would not expose him to legal
animadversion as a citizen." (Case of Austin, 28 Am. Dee. 657, 665).
Above all others, the members of the bar have the beat Opportunity to
become conversant with the character and efficiency of our judges. No class
is less likely to abuse the privilege, as no other class has as great an interest
in the preservation of an able and upright bench. (State Board of Examiners
in Law v. Hart, 116 N.W. 212, 216)
To curtail the right of a lawyer to be critical of the foibles of courts and judges
is to seal the lips of those in the best position to give advice and who might
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consider it their duty to speak disparagingly. "Under such a rule," so far as
the bar is concerned, "the merits of a sitting judge may be rehearsed, but as
to his demerits there must be profound silence." (State v. Circuit Court, 72
N.W. 196)
But it is the cardinal condition of all such criticism that it shall be bona fide,
and shall not spill over the walls of decency and propriety. A wide chasm
exists between fair criticism, on the One hand, and abuse and slander of
courts and the judges thereof, on the other. Intemperate and unfair criticism
is a gross violation of the duty of respect to courts. It is Such a misconduct
that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties
which are not mere flux and ferment. His investiture into the legal profession
places upon his shoulders no burden more basic, more exacting and more
imperative than that of respectful behavior toward the courts. He vows
solemnly to conduct himself "with all good fidelity ... to the courts; 14 and the
Rules of Court constantly remind him "to observe and maintain the respect
due to courts of justice and judicial officers." 15 The first canon of legal ethics
enjoins him "to maintain towards the courts a respectful attitude, not for the
sake of the temporary incumbent of the judicial office, but for the maintenance
of its supreme importance."
As Mr. Justice Field puts it:
... the obligation which attorneys impliedly assume, if they do not by express
declaration take upon themselves, when they are admitted to the Bar, is not
merely to be obedient to the Constitution and laws, but to maintain at all times
the respect due to courts of justice and judicial officers. This obligation is not
discharged by merely observing the rules of courteous demeanor in open
court, but includes abstaining out of court from all insulting language and
offensive conduct toward judges personally for their judicial acts. (Bradley, v.
Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential
to the orderly administration of justice. Hence, in the — assertion of their
clients' rights, lawyers — even those gifted with superior intellect are enjoined
to rein up their tempers.
The counsel in any case may or may not be an abler or more learned lawyer
than the judge, and it may tax his patience and temper to submit to rulings
which he regards as incorrect, but discipline and self-respect are as
necessary to the orderly administration of justice as they are to the
effectiveness of an army. The decisions of the judge must be obeyed,
because he is the tribunal appointed to decide, and the bar should at all times
be the foremost in rendering respectful submission. (In Re Scouten, 40 Atl.
481)
We concede that a lawyer may think highly of his intellectual endowment That
is his privilege. And he may suffer frustration at what he feels is others' lack
of it. That is his misfortune. Some such frame of mind, however, should not
be allowed to harden into a belief that he may attack a court's decision in
words calculated to jettison the time-honored aphorism that courts are the
temples of right. (Per Justice Sanchez in Rheem of the Philippines vs. Ferrer,
L-22979. June 26, 1967)
In his relations with the courts, a lawyer may not divide his personality so as
to be an attorney at one time and a mere citizen at another. Thus, statements
made by an attorney in private conversations or communications 16 or in the
course of a political, campaign, 17 if couched in insulting language as to bring
into scorn and disrepute the administration of justice, may subject the
attorney to disciplinary action.
Of fundamental pertinence at this juncture is an examination of relevant
parallel precedents.
1. Admitting that a "judge as a public official is neither sacrosanct nor immune
to public criticism of his conduct in office," the Supreme Court of Florida in
State v. Calhoon, 102 So. 2d 604, 608, nevertheless declared that "any
conduct of a lawyer which brings into scorn and disrepute the administration
of justice demands condemnation and the application of appropriate
penalties," adding that:
It would be contrary to, every democratic theory to hold that a judge or a court
is beyond bona fide comments and criticisms which do not exceed the
bounds of decency and truth or which are not aimed at. the destruction of
public confidence in the judicial system as such. However, when the likely
impairment of the administration of justice the direct product of false and
Page 147
scandalous accusations then the rule is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for putting
out and circulating a leaflet entitled "JUSTICE??? IN OTUMWA," which
LEGAL ETHICS
accused a municipal judge of having committed judicial error, of being so
prejudiced as to deny his clients a fair trial on appeal and of being subject to
the control of a group of city officials. As a prefatory statement he wrote:
"They say that Justice is BLIND, but it took Municipal Judge Willard to prove
that it is also DEAF and DUMB!" The court did not hesitate to find that the
leaflet went much further than the accused, as a lawyer, had a right to do.
The entire publication evidences a desire on the part Of the accused to
belittle and besmirch the court and to bring it into disrepute with the general
public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California affirmed
the two-year suspension of an attorney who published a circular assailing a
judge who at that time was a candidate for re-election to a judicial office. The
circular which referred to two decisions of the judge concluded with a
statement that the judge "used his judicial office to enable -said bank to keep
that money." Said the court:
We are aware that there is a line of authorities which place no limit to the
criticism members of the bar may make regarding the capacity, impartiality,
or integrity of the courts, even though it extends to the deliberate publication
by the attorney capable of correct reasoning of baseless insinuations against
the intelligence and integrity of the highest courts. See State Board, etc. v.
Hart. 116 N.W. 212, 17 LRA (N.S.) 585, 15 Ann Cas 197 and note: Ex parte
Steinman 95 Pac. 220, 40 Am. Rep. 637. In the first case mentioned it was
observed, for instance:
"It may be (although we do not so decide) that a libelous publication by an
attorney, directed against a judicial officer, could be so vile and of such a
nature as to justify the disbarment of its author."
Yet the false charges made by an attorney in that case were of graver
character than those made by the respondent here. But, in our view, the
better rule is that which requires of those who are permitted to enjoy the
privilege of practicing law the strictest observance at all times of the principles
of truth, honesty and fairness, especially in their criticism of the courts, to the
end that the public confidence in the due administration of justice be upheld,
and the dignity and usefulness of the courts be maintained. In re Collins, 81
Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an attorney,
representing a woman who had been granted a divorce, attacked the judge
who set aside the decree on bill of review. He wrote the judge a threatening
letter and gave the press the story of a proposed libel suit against the judge
and others. The letter began:
Unless the record in In re Petersen v. Petersen is cleared up so that my name
is protected from the libel, lies, and perjury committed in the cases involved,
I shall be compelled to resort to such drastic action as the law allows and the
case warrants.
Further, he said: "However let me assure you I do not intend to allow such
dastardly work to go unchallenged," and said that he was engaged in dealing
with men and not irresponsible political manikins or appearances of men.
Ordering the attorney's disbarment, the Supreme Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever there is proper
ground for serious complaint against a judge, it is the right and duty of a
lawyer to submit his grievances to the proper authorities, but the public
interest and the administration of the law demand that the courts should have
the confidence and respect of the people. Unjust criticism, insulting language,
and offensive conduct toward the judges personally by attorneys, who are
officers of the court, which tend to bring the courts and the law into disrepute
and to destroy public confidence in their integrity, cannot be permitted. The
letter written to the judge was plainly an attempt to intimidate and influence
him in the discharge of judicial functions, and the bringing of the unauthorized
suit, together with the write-up in the Sunday papers, was intended and
calculated to bring the court into disrepute with the public.
5. In a public speech, a Rhode Island lawyer accused the courts of the state
of being influenced by corruption and greed, saying that the seats of the
Supreme Court were bartered. It does not appear that the attorney had
criticized any of the opinions or decisions of the Court. The lawyer was
charged with unprofessional conduct, and was ordered suspended for a
period of two years. The Court said:
A calumny of that character, if believed, would tend to weaken the authority
of the court against whose members it was made, bring its judgments into
contempt, undermine its influence as an unbiased arbiter of the people's
right, and interfere with the administration of justice. ...
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Because a man is a member of the bar the court will not, under the guise of
disciplinary proceedings, deprive him of any part of that freedom of speech
which he possesses as a citizen. The acts and decisions of the courts of this
state, in cases that have reached final determination, are not exempt from
fair and honest comment and criticism. It is only when an attorney transcends
the limits of legitimate criticism that he will be held responsible for an abuse
of his liberty of speech. We well understand that an independent bar, as well
as independent court, is always a vigilant defender of civil rights. In Re Troy,
111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six
months for submitting to an appellate court an affidavit reflecting upon the
judicial integrity of the court from which the appeal was taken. Such action,
the Court said, constitutes unprofessional conduct justifying suspension from
practice, notwithstanding that he fully retracted and withdrew the statements,
and asserted that the affidavit was the result of an impulse caused by what
he considered grave injustice. The Court said:
We cannot shut our eyes to the fact that there is a growing habit in the
profession of criticising the motives and integrity of judicial officers in the
discharge of their duties, and thereby reflecting on the administration of
justice and creating the impression that judicial action is influenced by corrupt
or improper motives. Every attorney of this court, as well as every other
citizen, has the right and it is his duty, to submit charges to the authorities in
whom is vested the power to remove judicial officers for any conduct or act
of a judicial officer that tends to show a violation of his duties, or would justify
an inference that he is false to his trust, or has improperly administered the
duties devolved upon him; and such charges to the tribunal, if based upon
reasonable inferences, will be encouraged, and the person making them
protected. ... While we recognize the inherent right of an attorney in a case
decided against him, or the right of the Public generally, to criticise the
decisions of the courts, or the reasons announced for them, the habit of
criticising the motives of judicial officers in the performance of their official
duties, when the proceeding is not against the officers whose acts or motives
are criticised, tends to subvert the confidence of the community in the courts
of justice and in the administration of justice; and when such charges are
made by officers of the courts, who are bound by their duty to protect the
administration of justice, the attorney making such charges is guilty of
professional misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:
I accepted the decision in this case, however, with patience, barring possible
temporary observations more or less vituperative and finally concluded, that,
as my clients were foreigners, it might have been expecting too much to look
for a decision in their favor against a widow residing here.
The Supreme Court of Alabama declared that:
... the expressions above set out, not only transcend the bounds of propriety
and privileged criticism, but are an unwarranted attack, direct, or by
insinuation and innuendo, upon the motives and integrity of this court, and
make out a prima facie case of improper conduct upon the part of a lawyer
who holds a license from this court and who is under oath to demean himself
with all good fidelity to the court as well as to his client.
The charges, however, were dismissed after the attorney apologized to the
Court.
8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney
published in a newspaper an article in which he impugned the motives of the
court and its members to try a case, charging the court of having arbitrarily
and for a sinister purpose undertaken to suspend the writ of habeas corpus.
The Court suspended the respondent for 30 days, saying that:
The privileges which the law gives to members of the bar is one most
subversive of the public good, if the conduct of such members does not
measure up to the requirements of the law itself, as well as to the ethics of
the profession. ...
The right of free speech and free discussion as to judicial determination is of
prime importance under our system and ideals of government. No right
thinking man would concede for a moment that the best interest to private
citizens, as well as to public officials, whether he labors in a judicial capacity
or otherwise, would be served by denying this right of free speech to any
individual. But such right does not have as its corollary that members of the
bar who are sworn to act honestly and honorably both with their client and
Page 148
with the courts where justice is administered, if administered at all, could ever
properly serve their client or the public good by designedly misstating facts
or carelessly asserting the law. Truth and honesty of purpose by members of
LEGAL ETHICS
the bar in such discussion is necessary. The health of a municipality is none
the less impaired by a polluted water supply than is the health of the thought
of a community toward the judiciary by the filthy wanton, and malignant
misuse of members of the bar of the confidence the public, through its duly
established courts, has reposed in them to deal with the affairs of the private
individual, the protection of whose rights he lends his strength and money to
maintain the judiciary. For such conduct on the part of the members of the
bar the law itself demands retribution — not the court.
9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of an
affidavit by an attorney in a pending action using in respect to the several
judges the terms criminal corrupt, and wicked conspiracies,," "criminal
confederates," "colossal and confident insolence," "criminal prosecution,"
"calculated brutality," "a corrupt deadfall," and similar phrases, was
considered conduct unbecoming of a member of the bar, and the name of
the erring lawyer was ordered stricken from the roll of attorneys.
10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring attorney
claimed that greater latitude should be allowed in case of criticism of cases
finally adjudicated than in those pending. This lawyer wrote a personal letter
to the Chief Justice of the Supreme Court of Minnesota impugning both the
intelligence and the integrity of the said Chief Justice and his associates in
the decisions of certain appeals in which he had been attorney for the
defeated litigants. The letters were published in a newspaper. One of the
letters contained this paragraph:
You assigned it (the property involved) to one who has no better right to it
than the burglar to his plunder. It seems like robbing a widow to reward a
fraud, with the court acting as a fence, or umpire, watchful and vigilant that
the widow got no undue
advantage. ... The point is this: Is a proper motive for the decisions
discoverable, short of assigning to the court emasculated intelligence, or a
constipation of morals and faithlessness to duty? If the state bar association,
or a committee chosen from its rank, or the faculty of the University Law
School, aided by the researches of its hundreds of bright, active students, or
if any member of the court, or any other person, can formulate a statement
of a correct motive for the decision, which shall not require fumigation before
it is stated, and quarantine after it is made, it will gratify every right-minded
citizen of the state to read it.
The Supreme Court of Minnesota, in ordering the suspension of the attorney
for six months, delivered its opinion as follows:
The question remains whether the accused was guilty of professional
misconduct in sending to the Chief Justice the letter addressed to him. This
was done, as we have found, for the very purpose of insulting him and the
other justices of this court; and the insult was so directed to the Chief Justice
personally because of acts done by him and his associates in their official
capacity. Such a communication, so made, could never subserve any good
purpose. Its only effect in any case would be to gratify the spite of an angry
attorney and humiliate the officers so assailed. It would not and could not
ever enlighten the public in regard to their judicial capacity or integrity. Nor
was it an exercise by the accused of any constitutional right, or of any
privilege which any reputable attorney, uninfluenced by passion, could ever
have any occasion or desire to assert. No judicial officer, with due regard to
his position, can resent such an insult otherwise than by methods sanctioned
by law; and for any words, oral or written, however abusive, vile, or indecent,
addressed secretly to the judge alone, he can have no redress in any action
triable by a jury. "The sending of a libelous communication or libelous matter
to the person defamed does not constitute an actionable publication." 18 Am.
& Eng. Enc. Law (2d Ed.) p. 1017. In these respects the sending by the
accused of this letter to the Chief Justice was wholly different from his other
acts charged in the accusation, and, as we have said, wholly different
principles are applicable thereto.
The conduct of the accused was in every way discreditable; but so far as he
exercised the rights of a citizen, guaranteed by the Constitution and
sanctioned by considerations of public policy, to which reference has been
made, he was immune, as we hold, from the penalty here sought to be
enforced. To that extent his rights as a citizen were paramount to the
obligation which he had assumed as an officer of this court. When, however
he proceeded and thus assailed the Chief Justice personally, he exercised
no right which the court can recognize, but, on the contrary, willfully violated
his obligation to maintain the respect due to courts and judicial officers. "This
obligation is not discharged by merely observing the rules of courteous
demeanor in open court, but it includes abstaining out of court from all
PINEDAPCGRNMAN
insulting language and offensive conduct toward the judges personally for
their official acts."Bradley v. Fisher, 13 Wall. (U.S.) 355, 20 L. Ed. 646. And
there appears to be no distinction, as regards the principle involved, between
the indignity of an assault by an attorney upon a judge, induced by his official
act, and a personal insult for like cause by written or spoken words addressed
to the judge in his chambers or at his home or elsewhere. Either act
constitutes misconduct wholly different from criticism of judicial acts
addressed or spoken to others. The distinction made is, we think entirely
logical and well sustained by authority. It was recognized in Ex parte
McLeod supra. While the court in that case, as has been shown, fully
sustained the right of a citizen to criticise rulings of the court in actions which
are ended, it held that one might be summarily punished for assaulting a
judicial officer, in that case a commissioner of the court, for his rulings in a
cause wholly concluded. "Is it in the power of any person," said the court, "by
insulting or assaulting the judge because of official acts, if only the assailant
restrains his passion until the judge leaves the building, to compel the judge
to forfeit either his own self-respect to the regard of the people by tame
submission to the indignity, or else set in his own person the evil example of
punishing the insult by taking the law in his own hands? ... No high-minded,
manly man would hold judicial office under such conditions."
That a communication such as this, addressed to the Judge personally,
constitutes professional delinquency for which a professional punishment
may be imposed, has been directly decided. "An attorney who, after being
defeated in a case, wrote a personal letter to the trial justice, complaining of
his conduct and reflecting upon his integrity as a justice, is guilty of
misconduct and will be disciplined by the court." Matter of Manheim 133 App.
Div. 136, 99 N.Y. Supp. 87 The same is held in Re Griffin (City Ct.) 1 N.Y. 7
and in Re Wilkes (City Ct.) 3 N.Y. In the latter case it appeared that the
accused attorney had addressed a sealed letter to a justice of the City Court
of New York, in which it was stated, in reference to his decision: "It is not law;
neither is it common sense. The result is I have been robbed of 80." And it
was decided that, while such conduct was not a contempt under the state,
the matter should be "called to the attention of the Supreme Court, which has
power to discipline the attorney." "If," says the court, "counsel learned in the
law are permitted by writings leveled at the heads of judges, to charge them
with ignorance, with unjust rulings, and with robbery, either as principals or
accessories, it will not be long before the general public may feel that they
may redress their fancied grievances in like manner, and thus the lot of a
judge will be anything but a happy one, and the administration of justice will
fall into bad repute."
The recent case of Johnson v. State (Ala.) 44 South. 671, was in this respect
much the same as the case at bar. The accused, an attorney at law, wrote
and mailed a letter to the circuit judge, which the latter received by due course
of mail, at his home, while not holding court, and which referred in insulting
terms to the conduct of the judge in a cause wherein the accused had been
one of the attorneys. For this it was held that the attorney was rightly
disbarred in having "willfully failed to maintain respect due to him [the judge]
as a judicial officer, and thereby breached his oath as an attorney." As
recognizing the same principle, and in support of its application to the facts
of this case, we cite the following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L.
Ed. 214; Beene v. State, 22 Ark. 149;Commonwealth v. Dandridge, 2 Va.
Cas. 408; People v. Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49 Am. Rep.
351; Smith's Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's Appeal, 186 Pa. 270,
Atl. 481.
Our conclusion is that the charges against the accused have been so far
sustained as to make it our duty to impose such a penalty as may be sufficient
lesson to him and a suitable warning to others. ...
11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's
suspension for 18 months for publishing a letter in a newspaper in which he
accused a judge of being under the sinister influence of a gang that had
paralyzed him for two years.
12. In In Re Graves, 221 Pac. 411, the court held that an attorney's
unjustifiable attack against the official acts and decisions of a judge
constitutes "moral turpitude." There, the attorney was disbarred for criticising
not only the judge, but his decisions in general claiming that the judge was
dishonest in reaching his decisions and unfair in his general conduct of a
case.
Page 149
13. In In Re Doss, 12 N.E. 2d 659, an attorney published newspaper articles
after the trial of cases, criticising the court in intemperate language. The
invariable effect of this sort of propaganda, said the court, is to breed
LEGAL ETHICS
disrespect for courts and bring the legal profession into disrepute with the
public, for which reason the lawyer was disbarred.
14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied with the
loss of a case, prepared over a period of years vicious attacks on jurists. The
Oklahoma Supreme Court declared that his acts involved such gross moral
turpitude as to make him unfit as a member of the bar. His disbarment was
ordered, even though he expressed an intention to resign from the bar.
The teaching derived from the above disquisition and impressive affluence of
judicial pronouncements is indubitable: Post-litigation utterances or
publications, made by lawyers, critical of the courts and their judicial
actuations, whether amounting to a crime or not, which transcend the
permissible bounds of fair comment and legitimate criticism and thereby tend
to bring them into disrepute or to subvert public confidence in their integrity
and in the orderly administration of justice, constitute grave professional
misconduct which may be visited with disbarment or other lesser appropriate
disciplinary sanctions by the Supreme Court in the exercise of the
prerogatives inherent in it as the duly constituted guardian of the morals and
ethics of the legal fraternity.
Of course, rarely have we wielded our disciplinary powers in the face of
unwarranted outbursts of counsel such as those catalogued in the above-
cited jurisprudence. Cases of comparable nature have generally been
disposed of under the power of courts to punish for contempt which, although
resting on different bases and calculated to attain a different end,
nevertheless illustrates that universal abhorrence of such condemnable
practices.
A perusal of the more representative of these instances may afford
enlightenment.
1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel branded the denial
of his motion for reconsideration as "absolutely erroneous and constituting
an outrage to the rigths of the petitioner Felipe Salcedo and a mockery of the
popular will expressed at the polls," this Court, although conceding that
It is right and plausible that an attorney, in defending the cause and rights of
his client, should do so with all the fervor and energy of which he is capable,
but it is not, and never will be so for him to exercise said right by resorting to
intimidation or proceeding without the propriety and respect which the dignity
of the courts requires. The reason for this is that respect for the courts
guarantees the stability of their institution. Without such guaranty, said
institution would be resting on a very shaky foundation,
found counsel guilty of contempt inasmuch as, in its opinion, the statements
made disclosed
... an inexcusable disrespect of the authority of the court and an intentional
contempt of its dignity, because the court is thereby charged with no less
than having proceeded in utter disregard of the laws, the rights to the parties,
and 'of the untoward consequences, or with having abused its power and
mocked and flouted the rights of Attorney Vicente J. Francisco's client ... .
2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the Press
Freedom Law, reaching to, the imprisonment for contempt of one Angel
Parazo, who, invoking said law, refused to divulge the source of a news item
carried in his paper, caused to be published in i local newspaper a statement
expressing his regret "that our High Tribunal has not only erroneously
interpreted said law, but it is once more putting in evidence the incompetency
or narrow mindedness of the majority of its members," and his belief that "In
the wake of so many blunders and injustices deliberately committed during
these last years, ... the only remedy to put an end to go much evil, is to
change the members of the Supreme Court," which tribunal he denounced
as "a constant peril to liberty and democracy" and "a far cry from the
impregnable bulwark of justice of those memorable times of Cayetano
Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who were
the honor and glory of the Philippine Judiciary." He there also announced
that one of the first measures he would introduce in then forthcoming session
of Congress would have for its object the complete reorganization of the
Supreme Court. Finding him in contempt, despite his avowals of good faith
and his invocation of the guarantee of free speech, this Court declared:
But in the above-quoted written statement which he caused to be published
in the press, the respondent does not merely criticize or comment on the
decision of the Parazo case, which was then and still is pending consideration
by this Court upon petition of Angel Parazo. He not only intends to intimidate
the members of this Court with the presentation of a bill in the next Congress,
of which he is one of the members, reorganizing the Supreme Court and
reducing the number of Justices from eleven, so as to change the
PINEDAPCGRNMAN
members of this Court which decided the Parazo case, who according to his
statement, are incompetent and narrow minded, in order to influence the final
decision of said case by this Court, and thus embarrass or obstruct the
administration of justice. But the respondent also attacks the honesty and
integrity of this Court for the apparent purpose of bringing the Justices of this
Court into disrepute and degrading the administration. of justice ... .
To hurl the false charge that this Court has been for the last years committing
deliberately so many blunders and injustices, that is to say, that it has been
deciding in favor of Que party knowing that the law and justice is on the part
of the adverse party and not on the one in whose favor the decision was
rendered, in many cases decided during the last years, would tend
necessarily to undermine the confidence of the people in the honesty and
integrity of the members of this Court, and consequently to lower ,or degrade
the administration of justice by this Court. The Supreme Court of the
Philippines is, under the Constitution, the last bulwark to which the Filipino
people may repair to obtain relief for their grievances or protection of their
rights when these are trampled upon, and if the people lose their confidence
in the honesty and integrity of the members of this Court and believe that they
cannot expect justice therefrom, they might be driven to take the law into their
own hands, and disorder and perhaps chaos might be the result. As a
member of the bar and an officer of the courts, Atty. Vicente Sotto, like any
other, is in duty bound to uphold the dignity and authority of this Court, to
which he owes fidelity according to the oath he has taken as such attorney, and
not to promote distrust in the administration of justice. Respect to the courts
guarantees the stability of other institutions, which without such guaranty
would be resting on a very shaky foundation.
Significantly, too, the Court therein hastened to emphasize that
... an attorney as an officer of the court is under special obligation to be
respectful in his conduct and communication to the courts; he may be
removed from office or stricken from the roll of attorneys as being guilty of
flagrant misconduct (17 L.R.A. [N.S.], 586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against Alfonso
Ponce Enrile, et al., supra, where counsel charged this Court with having
"repeatedly fallen" into ,the pitfall of blindly adhering to its previous
"erroneous" pronouncements, "in disregard of the law on jurisdiction" of the
Court of Industrial Relations, our condemnation of counsel's misconduct was
unequivocal. Articulating the sentiments of the Court, Mr. Justice Sanchez
stressed:
As we look back at the language (heretofore quoted) employed in the motion
for reconsideration, implications there are which inescapably arrest attention.
It speaks of one pitfall into which this Court has repeatedly fallen whenever
the jurisdiction of the Court of Industrial Relations comes into question. That
pitfall is the tendency of this Court to rely on its own pronouncements in
disregard of the law on jurisdiction. It makes a sweeping charge that the
decisions of this Court, blindly adhere to earlier rulings without as much as
making any reference to and analysis of the pertinent statute governing the
jurisdiction of the industrial court. The plain import of all these is that this
Court is so patently inept that in determining the jurisdiction of the industrial
court, it has committed error and continuously repeated that error to the point
of perpetuation. It pictures this Court as one which refuses to hew to the line
drawn by the law on jurisdictional boundaries. Implicit in the quoted
statements is that the pronouncements of this Court on the jurisdiction of the
industrial court are not entitled to respect. Those statements detract much
from the dignity of and respect due this Court. They bring into question the
capability of the members — and some former members of this Court to
render justice. The second paragraph quoted yields a tone of sarcasm which
counsel labelled as "so called" the "rule against splitting of jurisdiction."
Similar thoughts and sentiments have been expressed in other
cases 18 which, in the interest of brevity, need not now be reviewed in detail.
Of course, a common denominator underlies the aforecited cases — all of
them involved contumacious statements made in pleadings filed pending
litigation. So that, in line with the doctrinal rule that the protective mantle of
contempt may ordinarily be invoked only against scurrilous remarks or
malicious innuendoes while a court mulls over a pending case and not after
the conclusion thereof, 19 Atty. Almacen would now seek to sidestep the
thrust of a contempt charge by his studied emphasis that the remarks for
which he is now called upon to account were made only after this Court had
Page 150
written finis to his appeal. This is of no moment.
The rule that bars contempt after a judicial proceeding has terminated, has
lost much of its vitality. For sometime, this was the prevailing view in this
LEGAL ETHICS
jurisdiction. The first stir for a modification thereof, however, came when,
inPeople vs. Alarcon, 20 the then Chief Justice Manuel V. Moran dissented
with the holding of the majority, speaking thru Justice Jose P. Laurel, which
upheld the rule above-adverted to. A complete disengagement from the
settled rule was later to be made in In re Brillantes, 21 a contempt proceeding,
where the editor of the Manila Guardian was adjudged in contempt for
publishing an editorial which asserted that the 1944 Bar Examinations were
conducted in a farcical manner after the question of the validity of the said
examinations had been resolved and the case closed. Virtually, this was an
adoption of the view expressed by Chief Justice Moran in his dissent in
Alarcon to the effect that them may still be contempt by publication even after
a case has been terminated. Said Chief Justice Moran in Alarcon:
A publication which tends to impede, obstruct, embarrass or influence the
courts in administering justice in a pending suit or proceeding, constitutes
criminal contempt which is 'summarily punishable by courts. A publication
which tends to degrade the courts and to destroy public confidence in them
or that which tends to bring them in any way into disrepute, constitutes
likewise criminal contempt, and is equally punishable by courts. What is
sought, in the first kind of contempt, to be shielded against the influence of
newspaper comments, is the all-important duty of the courts to administer
justice in the decision of a pending case. In the second kind of contempt, the
punitive hand of justice is extended to vindicate the courts from any act or
conduct calculated to bring them into disfavor or to destroy public confidence
in them. In the first there is no contempt where there is no action pending, as
there is no decision which might in any way be influenced by the newspaper
publication. In the second, the contempt exists, with or without a pending
case, as what is sought to be protected is the court itself and its dignity.
Courts would lose their utility if public confidence in them is destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the circumstance that
his statements and actuations now under consideration were made only after
the judgment in his client's appeal had attained finality. He could as much be
liable for contempt therefor as if it had been perpetrated during the pendency
of the said appeal.
More than this, however, consideration of whether or not he could be held
liable for contempt for such post litigation utterances and actuations, is here
immaterial. By the tenor of our Resolution of November 17, 1967, we have
confronted the situation here presented solely in so far as it concerns Atty.
Almacen's professional identity, his sworn duty as a lawyer and his fitness as
an officer of this Court, in the exercise of the disciplinary power the morals
inherent in our authority and duty to safeguard and ethics of the legal
profession and to preserve its ranks from the intrusions of unprincipled and
unworthy disciples of the noblest of callings. In this inquiry, the pendency or
non-pendency of a case in court is altogether of no consequence. The sole
objective of this proceeding is to preserve the purity of the legal profession,
by removing or suspending a member whose misconduct has proved himself
unfit to continue to be entrusted with the duties and responsibilities belonging
to the office of an attorney.
Undoubtedly, this is well within our authority to do. By constitutional mandate,
22 our is the solemn duty, amongst others, to determine the rules for
admission to the practice of law. Inherent in this prerogative is the
corresponding authority to discipline and exclude from the practice of law
those who have proved themselves unworthy of continued membership in
the Bar. Thus —
The power to discipline attorneys, who are officers of the court, is an inherent
and incidental power in courts of record, and one which is essential to an
orderly discharge of judicial functions. To deny its existence is equivalent to
a declaration that the conduct of attorneys towards courts and clients is not
subject to restraint. Such a view is without support in any respectable
authority, and cannot be tolerated. Any court having the right to admit
attorneys to practice and in this state that power is vested in this court-has
the inherent right, in the exercise of a sound judicial discretion to exclude
them from practice. 23
This, because the admission of a lawyer to the practice of law is a
representation to all that he is worthy of their confidence and respect. So
much so that —
... whenever it is made to appear to the court that an attorney is no longer
worthy of the trust and confidence of the public and of the courts, it becomes,
not only the right, but the duty, of the court which made him one of its officers,
and gave him the privilege of ministering within its bar, to withdraw the
privilege. Therefore it is almost universally held that both the admission and
PINEDAPCGRNMAN
disbarment of attorneys are judicial acts, and that one is admitted to the bar
and exercises his functions as an attorney, not as a matter of right, but as a
privilege conditioned on his own behavior and the exercise of a just and
sound judicial discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend has risen above
being a mere inherent or incidental power. It has been elevated to an express
mandate by the Rules of Court. 25
Our authority and duty in the premises being unmistakable, we now proceed
to make an assessment of whether or not the utterances and actuations of
Atty. Almacen here in question are properly the object of disciplinary
sanctions.
The proffered surrender of his lawyer's certificate is, of course, purely
potestative on Atty. Almacen's part. Unorthodox though it may seem, no
statute, no law stands in its way. Beyond making the mere offer, however, he
went farther. In haughty and coarse language, he actually availed of the said
move as a vehicle for his vicious tirade against this Court. The integrated
entirety of his petition bristles with vile insults all calculated to drive home his
contempt for and disrespect to the Court and its members. Picturing his client
as "a sacrificial victim at the altar of hypocrisy," he categorically denounces
the justice administered by this Court to be not only blind "but also deaf and
dumb." With unmitigated acerbity, he virtually makes this Court and its
members with verbal talons, imputing to the Court the perpetration of "silent
injustices" and "short-cut justice" while at the same time branding its
members as "calloused to pleas of justice." And, true to his announced threat
to argue the cause of his client "in the people's forum," he caused the
publication in the papers of an account of his actuations, in a calculated effort
;to startle the public, stir up public indignation and disrespect toward the
Court. Called upon to make an explanation, he expressed no regret, offered
no apology. Instead, with characteristic arrogance, he rehashed and
reiterated his vituperative attacks and, alluding to the Scriptures, virtually
tarred and feathered the Court and its members as inveterate hypocrites
incapable of administering justice and unworthy to impose disciplinary
sanctions upon him.
The virulence so blatantly evident in Atty. Almacen's petition, answer and oral
argumentation speaks for itself. The vicious language used and the scurrilous
innuendoes they carried far transcend the permissible bounds of legitimate
criticism. They could never serve any purpose but to gratify the spite of an
irate attorney, attract public attention to himself and, more important of all,
bring ;this Court and its members into disrepute and destroy public
confidence in them to the detriment of the orderly administration of justice.
Odium of this character and texture presents no redeeming feature, and
completely negates any pretense of passionate commitment to the truth. It is
not a whit less than a classic example of gross misconduct, gross violation of
the lawyer's oath and gross transgression of the Canons of Legal Ethics. As
such, it cannot be allowed to go unrebuked. The way for the exertion of our
disciplinary powers is thus laid clear, and the need therefor is unavoidable.
We must once more stress our explicit disclaimer of immunity from criticism.
Like any other Government entity in a viable democracy, the Court is not, and
should not be, above criticism. But a critique of the Court must be intelligent
and discriminating, fitting to its high function as the court of last resort. And
more than this, valid and healthy criticism is by no means synonymous to
obloquy, and requires detachment and disinterestedness, real qualities
approached only through constant striving to attain them. Any criticism of the
Court must, possess the quality of judiciousness and must be informed -by
perspective and infused by philosophy. 26
It is not accurate to say, nor is it an obstacle to the exercise of our authority
in ;the premises, that, as Atty. Almacen would have appear, the members of
the Court are the "complainants, prosecutors and judges" all rolled up into
one in this instance. This is an utter misapprehension, if not a total distortion,
not only of the nature of the proceeding at hand but also of our role therein.
Accent should be laid on the fact that disciplinary proceedings like the
present are sui generis. Neither purely civil nor purely criminal, this
proceeding is not — and does not involve — a trial of an action or a suit, but
is rather an investigation by the Court into the conduct of its officers. 27 Not
being intended to. inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein It may be
Page 151
initiated by the Court motu proprio. 28 Public interest is its primary objective,
and the real question for determination is whether or not the attorney is still
a fit person to be allowed the privileges as such. Hence, in the exercise of its
LEGAL ETHICS
disciplinary powers, the Court merely calls upon a member of the Bar to
account for his actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest
administration of justice b
y purging the profession of members who by their misconduct have proved
themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. 29 In such posture,
there can thus be no occasion to speak of a complainant or a prosecutor.
Undeniably, the members of the Court are, to a certain degree, aggrieved
parties. Any tirade against the Court as a body is necessarily and inextricably
as much so against the individual members thereof. But in the exercise of its
disciplinary powers, the Court acts as an entity separate and distinct from the
individual personalities of its members. Consistently with the intrinsic nature
of a collegiate court, the individual members act not as such individuals but.
only as a duly constituted court. Their distinct individualities are lost in the
majesty of their office.30 So that, in a very real sense, if there be any
complainant in the case at bar, it can only be the Court itself, not the individual
members thereof — as well as the people themselves whose rights, fortunes
and properties, nay, even lives, would be placed at grave hazard should the
administration of justice be threatened by the retention in the Bar of men unfit
to discharge the solemn responsibilities of membership in the legal fraternity.
Finally, the power to exclude persons from the practice of law is but a
necessary incident of the power to admit persons to said practice. By
constitutional precept, this power is vested exclusively in this Court. This duty
it cannot abdicate just as much as it cannot unilaterally renounce jurisdiction
legally invested upon it. 31 So that even if it be conceded that the members
collectively are in a sense the aggrieved parties, that fact alone does not and
cannot disqualify them from the exercise of that power because public policy
demands that they., acting as a Court, exercise the power in all cases which
call for disciplinary action. The present is such a case. In the end, the
imagined anomaly of the merger in one entity of the personalities of
complainant, prosecutor and judge is absolutely inexistent.
Last to engage our attention is the nature and extent of the sanctions that
may be visited upon Atty. Almacen for his transgressions. As marked out by
the Rules of Court, these may range from mere suspension to total removal
or disbarment. 32 The discretion to assess under the circumstances the
imposable sanction is, of course, primarily addressed to the sound discretion
of the Court which, being neither arbitrary and despotic nor motivated by
personal animosity or prejudice, should ever be controlled by the imperative
need that the purity and independence of the Bar be scrupulously guarded
and the dignity of and respect due to the Court be zealously maintained.
That the misconduct committed by Atty. Almacen is of considerable gravity
cannot be overemphasized. However, heeding the stern injunction that
disbarment should never be decreed where a lesser sanction would
accomplish the end desired, and believing that it may not perhaps be futile to
hope that in the sober light of some future day, Atty. Almacen will realize that
abrasive language never fails to do disservice to an advocate and that in
every effervescence of candor there is ample room for the added glow of
respect, it is our view that suspension will suffice under the circumstances.
His demonstrated persistence in his misconduct by neither manifesting
repentance nor offering apology therefor leave us no way of determining how
long that suspension should last and, accordingly, we are impelled to decree
that the same should be indefinite. This, we are empowered to do not alone
because jurisprudence grants us discretion on the matter 33 but also because,
even without the comforting support of precedent, it is obvious that if we have
authority to completely exclude a person from the practice of law, there is no
reason why indefinite suspension, which is lesser in degree and effect, can
be regarded as falling outside of the compass of that authority. The merit of
this choice is best shown by the fact that it will then be left to Atty. Almacen
to determine for himself how long or how short that suspension shall last. For,
at any time after the suspension becomes effective he may prove to this
Court that he is once again fit to resume the practice of law.
ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul
Almacen be, as he is hereby, suspended from the practice of law until further
orders, the suspension to take effect immediately.
Let copies of this resolution. be furnished the Secretary of Justice, the
Solicitor General and the Court of Appeals for their information and guidance.
Rule 11.04 – A lawyer shall not attribute to a judge motives not
supported by the record or having no materiality to the case.
PINEDAPCGRNMAN
ASEAN PACIFIC PLANNERS, G.R. No. 162525
APP
CONSTRUCTION AND
DEVELOPMENT Present:
CORPORATION*
AND CESAR GOCO, QUISUMBING, J., Chairperson,
Petitioners, CARPIO MORALES,
TINGA,
VELASCO, JR., and
- versus - BRION, JJ.
CITY OF URDANETA, CEFERINO
J. CAPALAD, WALDO C. DEL Promulgated:
CASTILLO, NORBERTO M. DEL
PRADO, JESUS A. ORDONO September 23, 2008
AND AQUILINO MAGUISA,**
Respondents.
x ---------------------------------------------------------------------------------------------- x
DECISION
QUISUMBING, J.:
The instant petition seeks to set aside the Resolutions[1] dated April 15, 2003
and February 4, 2004 of the Court of Appeals in CA-G.R. SP No. 76170.
This case stemmed from a Complaint[2] for annulment of contracts with prayer
for preliminary prohibitory injunction and temporary restraining order filed by
respondent Waldo C. Del Castillo, in his capacity as taxpayer, against
respondents City of Urdaneta and Ceferino J. Capalad doing business under
the name JJEFWA Builders, and petitioners Asean Pacific Planners (APP)
represented by Ronilo G. Goco and Asean Pacific Planners Construction and
Development Corporation (APPCDC) represented by Cesar D. Goco.
Del Castillo alleged that then Urdaneta City Mayor Rodolfo E. Parayno
entered into five contracts for the preliminary design, construction and
management of a four-storey twin cinema commercial center and hotel
involving a massive expenditure of public funds amounting to P250 million,
funded by a loan from the Philippine National Bank (PNB). For minimal work,
the contractor was allegedly paid P95 million. Del Castillo also claimed that
all the contracts are void because the object is outside the commerce of men.
The object is a piece of land belonging to the public domain and which
remains devoted to a public purpose as a public elementary school.
Additionally, he claimed that the contracts, from the feasibility study to
management and lease of the future building, are also void because they
were all awarded solely to the Goco family.
In their Answer,[3] APP and APPCDC claimed that the contracts are valid.
Urdaneta City Mayor Amadeo R. Perez, Jr., who filed the citys Answer,[4]
joined in the defense and asserted that the contracts were properly executed
by then Mayor Parayno with prior authority from the Sangguniang
Panlungsod. Mayor Perez also stated that Del Castillo has no legal capacity
to sue and that the complaint states no cause of action. For respondent
Ceferino J. Capalad, Atty. Oscar C. Sahagun filed an Answer[5] with
compulsory counterclaim and motion to dismiss on the ground that Del
Castillo has no legal standing to sue.
Respondents Norberto M. Del Prado, Jesus A. Ordono and Aquilino Maguisa
became parties to the case when they jointly filed, also in their capacity as
taxpayers, a Complaint-in-Intervention[6] adopting the allegations of Del
Castillo.
After pre-trial, the Lazaro Law Firm entered its appearance as counsel for
Urdaneta City and filed an Omnibus Motion[7] with prayer to (1) withdraw
Urdaneta Citys Answer; (2) drop Urdaneta City as defendant and be joined
as plaintiff; (3) admit Urdaneta Citys complaint; and (4) conduct a new pre-
trial. Urdaneta City allegedly wanted to rectify its position and claimed that
inadequate legal representation caused its inability to file the necessary
pleadings in representation of its interests.
In its Order[8] dated September 11, 2002, the Regional Trial Court (RTC) of
Urdaneta City, Pangasinan, Branch 45, admitted the entry of appearance of
the Lazaro Law Firm and granted the withdrawal of appearance of the City
Page 152
Prosecutor. It also granted the prayer to drop the city as defendant and
admitted its complaint for consolidation with Del Castillos complaint, and
directed the defendants to answer the citys complaint.
LEGAL ETHICS
In its February 14, 2003 Order,[9] the RTC denied reconsideration of the
September 11, 2002 Order. It also granted Capalads motion to expunge all
pleadings filed by Atty. Sahagun in his behalf. Capalad was dropped as
defendant, and his complaint filed by Atty. Jorito C. Peralta was admitted and
consolidated with the complaints of Del Castillo and Urdaneta City. The RTC
also directed APP and APPCDC to answer Capalads complaint.
Aggrieved, APP and APPCDC filed a petition for certiorari before the Court
of Appeals. In its April 15, 2003 Resolution, the Court of Appeals dismissed
the petition on the following grounds: (1) defective verification and
certification of non-forum shopping, (2) failure of the petitioners to submit
certified true copies of the RTCs assailed orders as mere photocopies were
submitted, and (3) lack of written explanation why service of the petition to
adverse parties was not personal.[10] The Court of Appeals also denied APP
and APPCDCs motion for reconsideration in its February 4, 2004
Resolution.[11]
Hence, this petition, which we treat as one for review on certiorari under Rule
45, the proper remedy to assail the resolutions of the Court of Appeals.[12]
Petitioners argue that:
I.
THE APPELLATE COURT PALPABLY ERRED AND GRAVELY ABUSED
ITS JUDICIAL PREROGATIVES BY SUMMARILY DISMISSING THE
PETITION ON THE BASIS OF PROCEDURAL TECHNICALITIES DESPITE
SUBSTANTIAL COMPLIANCE [THEREWITH]
II.
THE TRIAL COURT PALPABLY ERRED AND GRAVELY ABUSED ITS
JUDICIAL PREROGATIVES BY CAPRICIOUSLY
(a.) Entertaining the taxpayers suits of private respondents del Castillo,
del Prado, Ordono and Maguisa despite their clear lack of legal standing to
file the same.
(b.) Allowing the entry of appearance of a private law firm to represent the
City of Urdaneta despite the clear statutory and jurisprudential prohibitions
thereto.
(c.) Allowing Ceferino J. Capalad and the City of Urdaneta to switch sides,
by permitting the withdrawal of their respective answers and admitting their
complaints as well as allowing the appearance of Atty. Jorito C. Peralta to
represent Capalad although Atty. Oscar C. Sahagun, his counsel of record,
had not withdrawn from the case, in gross violation of well settled rules and
case law on the matter.[13]
We first resolve whether the Court of Appeals erred in denying
reconsideration of its April 15, 2003 Resolution despite APP and APPCDCs
subsequent compliance.
Petitioners argue that the Court of Appeals should not have dismissed the
petition on mere technicalities since they have attached the proper
documents in their motion for reconsideration and substantially complied with
the rules.
Respondent Urdaneta City maintains that the Court of Appeals correctly
dismissed the petition because Cesar Goco had no proof he was authorized
to sign the certification of non-forum shopping in behalf of APPCDC.
Indeed, Cesar Goco had no proof of his authority to sign the verification and
certification of non-forum shopping of the petition for certiorari filed with the
Court of Appeals.[14] Thus, the Court of Appeals is allowed by the rules the
discretion to dismiss the petition since only individuals vested with authority
by a valid board resolution may sign the certificate of non-forum shopping in
behalf of a corporation. Proof of said authority must be attached; otherwise,
the petition is subject to dismissal.[15]
However, it must be pointed out that in several cases,[16] this Court had
considered as substantial compliance with the procedural requirements the
submission in the motion for reconsideration of the authority to sign the
verification and certification, as in this case. The Court notes that the
attachments in the motion for reconsideration show that on March 5, 2003,
the Board of Directors of APPCDC authorized Cesar Goco to institute the
petition before the Court of Appeals.[17] On March 22, 2003, Ronilo Goco
doing business under the name APP, also appointed his father, Cesar Goco,
as his attorney-in-fact to file the petition.[18] When the petition was filed on
March 26, 2003[19]before the Court of Appeals, Cesar Goco was duly
authorized to sign the verification and certification except that the proof of his
authority was not submitted together with the petition.
Similarly, petitioners submitted in the motion for reconsideration certified true
copies of the assailed RTC orders and we may also consider the same as
substantial compliance.[20] Petitioners also included in the motion for
PINEDAPCGRNMAN
reconsideration their explanation[21] that copies of the petition were personally
served on the Lazaro Law Firm and mailed to the RTC and Atty. Peralta
because of distance. The affidavit of service[22] supported the explanation.
Considering the substantial issues involved, it was thus error for the appellate
court to deny reinstatement of the petition.
Having discussed the procedural issues, we shall now proceed to address
the substantive issues raised by petitioners, rather than remand this case to
the Court of Appeals. In our view, the issue, simply put, is: Did the RTC err
and commit grave abuse of discretion in (a) entertaining the taxpayers suits;
(b) allowing a private law firm to represent Urdaneta City; (c) allowing
respondents Capalad and Urdaneta City to switch from being defendants to
becoming complainants; and (d) allowing Capalads change of attorneys?
On the first point at issue, petitioners argue that a taxpayer may only sue
where the act complained of directly involves illegal disbursement of public
funds derived from taxation. The allegation of respondents Del
Castillo, Del Prado, Ordono and Maguisa that the construction of the project
is funded by the PNB loan contradicts the claim regarding illegal
disbursement since the funds are not directly derived from taxation.
Respondents Del Castillo, Del Prado, Ordono and Maguisa counter that their
personality to sue was not raised by petitioners APP and APPCDC in their
Answer and that this issue was not even discussed in the RTCs assailed
orders.
Petitioners contentions lack merit. The RTC properly allowed the taxpayers
suits. In Public Interest Center, Inc. v. Roxas,[23] we held:
In the case of taxpayers suits, the party suing as a taxpayer must prove that
he has sufficient interest in preventing the illegal expenditure of money raised
by taxation. Thus, taxpayers have been allowed to sue where there is a claim
that public funds are illegally disbursed or that public money is being
deflected to any improper purpose, or that public funds are wasted through
the enforcement of an invalid or unconstitutional law.
xxxx
Petitioners allegations in their Amended Complaint that the loan contracts
entered into by the Republic and NPC are serviced or paid through a
disbursement of public funds are not disputed by respondents, hence, they
are invested with personality to institute the same.[24]
Here, the allegation of taxpayers Del Castillo, Del Prado, Ordono and
Maguisa that P95 million of the P250 million PNB loan had already been paid
for minimal work is sufficient allegation of overpayment, of illegal
disbursement, that invests them with personality to sue. Petitioners do not
dispute the allegation as they merely insist, albeit erroneously, that public
funds are not involved. Under Article 1953[25] of the Civil Code, the city
acquired ownership of the money loaned from PNB, making the money public
fund. The city will have to pay the loan by revenues raised from local taxation
or by its internal revenue allotment.
In addition, APP and APPCDCs lack of objection in their Answer on the
personality to sue of the four complainants constitutes waiver to raise the
objection under Section 1, Rule 9 of the Rules of Court.[26]
On the second point, petitioners contend that only the City Prosecutor can
represent Urdaneta City and that law and jurisprudence prohibit the
appearance of the Lazaro Law Firm as the citys counsel.
The Lazaro Law Firm, as the citys counsel, counters that the city was inutile
defending its cause before the RTC for lack of needed legal advice. The city
has no legal officer and both City Prosecutor and Provincial Legal Officer are
busy. Practical considerations also dictate that the city and Mayor Perez must
have the same counsel since he faces related criminal cases. Citing
Mancenido v. Court of Appeals,[27] the law firm states that hiring private
counsel is proper where rigid adherence to the law on representation would
deprive a party of his right to redress a valid grievance.[28]
We cannot agree with the Lazaro Law Firm. Its appearance as
Urdaneta Citys counsel is against the law as it provides expressly who should
represent it. The City Prosecutor should continue to represent the city. Section
481(a)[29] of the Local Government Code (LGC) of 1991[30] mandates the
appointment of a city legal officer. Under Section 481(b)(3)(i)[31] of the LGC,
the city legal officer is supposed to represent the city in all civil actions, as in
this case, and special proceedings wherein the city or any of its officials is a
party. In Ramos v. Court of Appeals,[32] we cited that under Section 19[33] of
Republic Act No. 5185,[34] city governments may already create the position
Page 153
of city legal officer to whom the function of the city fiscal (now prosecutor) as
legal adviser and officer for civil cases of the city shall be transferred.[35] In
the case of Urdaneta City, however, the position of city
LEGAL ETHICS
legal officer is still vacant, although its charter[36] was enacted way back in
1998.
Because of such vacancy, the City Prosecutors appearance as counsel of
Urdaneta City is proper. The City Prosecutor remains as the citys legal
adviser and officer for civil cases, a function that could not yet be transferred
to the city legal officer. Under the circumstances, the RTC should not have
allowed the entry of appearance of the Lazaro Law Firmvice the City
Prosecutor. Notably, the citys Answer was sworn to before the City
Prosecutor by Mayor Perez. The City Prosecutor prepared the citys pre-trial
brief and represented the city in the pre-trial conference. No question was
raised against the City Prosecutors actions until the Lazaro Law Firm entered
its appearance and claimed that the city lacked adequate legal
representation.
Moreover, the appearance of the Lazaro Law Firm as counsel for
Urdaneta City is against the law. Section 481(b)(3)(i) of the LGC provides
when a special legal officer may be employed, that is, in actions or
proceedings where a component city or municipality is a party adverse to the
provincial government. But this case is not between Urdaneta City and
theProvince of Pangasinan. And we have consistently held that a local
government unit cannot be represented by private counsel[37] as only public
officers may act for and in behalf of public entities and public funds should
not be spent to hire private lawyers.[38] Pro bono representation in
collaboration with the municipal attorney and prosecutor has not even been
allowed.[39]
Neither is the law firms appearance justified under the instances listed in
Mancenido when local government officials can be represented by private
counsel, such as when a claim for damages could result in personal liability.
No such claim against said officials was made in this case. Note that before it
joined the complainants, the city was the one sued, not its officials. That the
firm represents Mayor Perez in criminal cases, suits in his personal
capacity,[40] is of no moment.
On the third point, petitioners claim that Urdaneta City is estopped to reverse
admissions in its Answer that the contracts are valid and, in its pre-trial brief,
that the execution of the contracts was in good faith.
We disagree. The court may allow amendment of pleadings.
Section 5,[41] Rule 10 of the Rules of Court pertinently provides that if
evidence is objected to at the trial on the ground that it is not within the issues
raised by the pleadings, the court may allow the pleadings to be amended
and shall do so with liberality if the presentation of the merits of the action
and the ends of substantial justice will be subserved thereby. Objections
need not even arise in this case since the Pre-trial Order[42] dated April 1,
2002 already defined as an issue whether the contracts are valid. Thus, what
is needed is presentation of the parties evidence on the issue. Any evidence
of the city for or against the validity of the contracts will be relevant and
admissible. Note also that under Section 5, Rule 10, necessary amendments
to pleadings may be made to cause them to conform to the evidence.
In addition, despite Urdaneta Citys judicial admissions, the trial court is still
given leeway to consider other evidence to be presented for said admissions
may not necessarily prevail over documentary evidence,[43] e.g., the contracts
assailed. A partys testimony in open court may also override admissions in
the Answer.[44]
As regards the RTCs order admitting Capalads complaint and dropping him
as defendant, we find the same in order. Capalad insists that Atty. Sahagun
has no authority to represent him. Atty. Sahagun claims otherwise. We note,
however, that Atty. Sahagun represents petitioners who claim that the
contracts are valid. On the other hand, Capalad filed a complaint for
annulment of the contracts. Certainly, Atty. Sahagun cannot represent totally
conflicting interests. Thus, we should expunge all pleadings filed by Atty.
Sahagun in behalf of Capalad.
Relatedly, we affirm the order of the RTC in allowing Capalads change of
attorneys, if we can properly call it as such, considering Capalads claim that
Atty. Sahagun was never his attorney.
Before we close, notice is taken of the offensive language used by Attys.
Oscar C. Sahagun and Antonio B. Escalante in their pleadings before us and
the Court of Appeals.They unfairly called the Court of Appeals a court of
technicalities[45] for validly dismissing their defectively prepared petition.
They also accused the Court of Appeals of protecting, in their view, an
incompetent judge.[46] In explaining the concededly strong language, Atty.
Sahagun further indicted himself. He said that the Court of Appeals dismissal
of the case shows its impatience and readiness to punish petitioners for a
PINEDAPCGRNMAN
perceived slight on its dignity and such dismissal smacks of retaliation and
does not augur for the cold neutrality and impartiality demanded of the
appellate court.[47]
Accordingly, we impose upon Attys. Oscar C. Sahagun and Antonio B.
Escalante a fine of P2,000[48] each payable to this Court within ten days from
notice and we remind them that they should observe and maintain the respect
due to the Court of Appeals and judicial officers;[49] abstain from offensive
language before the courts;[50] and not attribute to a Judge motives not
supported by the record.[51] Similar acts in the future will be dealt with more
severely.
WHEREFORE, we (1) GRANT the petition; (2) SET ASIDE the Resolutions
dated April 15, 2003 and February 4, 2004 of the Court of Appeals in CA-
G.R. SP No. 76170; (3) DENY the entry of appearance of the Lazaro Law
Firm in Civil Case No. U-7388 and EXPUNGE all pleadings it filed as counsel
of Urdaneta City; (4) ORDER the City Prosecutor to represent Urdaneta City
in Civil Case No. U-7388; (5) AFFIRM the RTC in admitting the complaint of
Capalad; and (6) PROHIBIT Atty. Oscar C. Sahagun from representing
Capalad and EXPUNGE all pleadings that he filed in behalf of Capalad.
Let the records of Civil Case No. U-7388 be remanded to the trial court for
further proceedings.
Finally, we IMPOSE a fine of P2,000 each on Attys. Oscar C. Sahagun and
Antonio B. Escalante for their use of offensive language, payable to this Court
within ten (10) days from receipt of this Decision.
UDGE UBALDINO A. LACUROM, A.C. No. 5921
Presiding Judge, Regional Trial Court,
Cabanatuan City, Branch 29 and Present:
Pairing Judge, Branch 30,
Complainant, QUISUMBING, J.,
Chairperson,
CARPIO,
- versus - CARPIO MORALES, and TINGA, JJ.
ATTY. ELLIS F. JACOBA and Promulgated:
ATTY. OLIVIA VELASCO-JACOBA,
Respondents. March 10, 2006
x --------------------------------------------------------------------------------------------- x
DECISION
CARPIO, J.:
The Case
This administrative case arose from a complaint filed on 22 October 2001 by
Judge Ubaldino A. Lacurom (Judge Lacurom), Pairing
Judge, Regional Trial Court of CabanatuanCity, Branch 30, against
respondent-spouses Atty. Ellis F. Jacoba and Atty. Olivia Velasco- Jacoba
(respondents). Complainant charged respondents with violation of Rules
11.03,[1] 11.04,[2] and 19.01[3] of the Code of Professional Responsibility.
The Facts
The Jacoba-Velasco-Jacoba Law Firm is counsel for plaintiff Alejandro
R. Veneracion (Veneracion) in a civil case for unlawful detainer against
defendant
FedericoBarrientos (Barrientos).[4] The Municipal Trial Court of Cabanatuan
City rendered judgment in favor of Veneracion but Barrientos appealed to the
Regional Trial Court. The case was raffled to Branch 30 where Judge
Lacurom was sitting as pairing judge.
On 29 June 2001, Judge Lacurom issued a Resolution (Resolution) reversing
the earlier judgments rendered in favor of Veneracion.[5]
Page 154
The dispositive portion reads:
LEGAL ETHICS
WHEREFORE, this Court hereby REVERSES its Decision dated December
22, 2000, as well as REVERSES the Decision of the court a quo dated July
22, 1997.
Furthermore, the plaintiff-appellee Alejandro Veneracion is ordered to
CEASE and DESIST from ejecting the defendant-appellant Federico
Barrientos from the 1,000 square meterhomelot covered by TCT No. T-
75274, and the smaller area of one hundred forty-seven square meters,
within the 1,000 sq.m. covered by TCT No. T-78613, and the house thereon
standing covered by Tax Declaration No. 02006-01137, issued by the City
Assessor of Cabanatuan City; and Barrientos is ordered to pay
Veneracion P10,000.00 for the house covered by Tax Declaration No. 02006-
01137.
SO ORDERED.[6]
Veneracions counsel filed a Motion for Reconsideration (with Request for
Inhibition)[7] dated 30 July 2001 (30 July 2001 motion), pertinent portions of
which read:
II. PREFATORY STATEMENT
This RESOLUTION of REVERSAL is an ABHORRENT NULLITY as it is
entirely DEVOID of factual and legal basis. It is a Legal MONSTROSITY in
the sense that the Honorable REGIONAL TRIAL COURT acted as if it were
the DARAB (Dept. of Agrarian Reform ADJUDICATION BOARD)! x x x HOW
HORRIBLE and TERRIBLE! The mistakes are very patent and glaring! x x x
xxxx
III. GROUNDS FOR RECONSIDERATION
1. The Honorable Pairing Court Presiding Judge ERRED in Peremptorily and
Suddenly Reversing the Findings of the Lower Court Judge and the Regular
RTC Presiding Judge:
x x x The defendant filed a Motion for Reconsideration, and after a very
questionable SHORT period of time, came this STUNNING and SUDDEN
REVERSAL. Without any legal or factual basis, the Hon. Pairing Judge
simply and peremptorily REVERSED two (2) decisions in favor of the plaintiff.
This is highly questionable, if not suspicious, hence, this Motion for
Reconsideration.
xxxx
[The Resolution] assumes FACTS that have not been established and
presumes FACTS not part of the records of the case, all loaded in favor of
the alleged TENANT. Clearly, the RESOLUTION is an INSULT to the
Judiciary and an ANACHRONISM in the Judicial Process. Need we say
more?
xxxx
4. The Honorable Pairing Court Presiding Judge ERRED in Holding That the
Defendant is Entitled to a Homelot, and That the Residential LOT in Question
is That Homelot:
THIS ERROR IS STUPENDOUS and a real BONER. Where did the
Honorable PAIRING JUDGE base this conclusion? x
x x This HORRENDOUS MISTAKE must be corrected here and now!
xxxx
6. The Honorable Pairing Court Presiding Judge ERRED Grievously in
Holding and Declaring that The [court] A QUO Erroneously Took Cognizance
of the Case and That It Had No Jurisdiction over the Subject-Matter:
PINEDAPCGRNMAN
Another HORRIBLE ERROR! Even an average Law Student knows that
JURISDICTION is determined by the averments of the COMPLAINT and not
by the averments in the answer! This is backed up by a Litany of Cases!
xxxx
7. FINALLY, the Honorable Pairing Court Presiding Judge Ridiculously
ERRED in Ordering the Defendant To Pay P10,000.00 to the Plaintiff As
Payment for Plaintiffs HOUSE:
THIS IS the Last STRAW, but it is also the Best ILLUSTRATION of the
Manifold GLARING ERRORS committed by the Hon. Pairing Court Judge.
xxxx
This Order of the Court for the plaintiff to sell his RESIDENTIAL HOUSE to
the defendant for the ridiculously LOW price of P10,000.00 best illustrates
the Long Line of Faultyreasonings and ERRONEOUS conclusions of the
Hon. Pairing Court Presiding Judge. Like the proverbial MONSTER, the
Monstrous Resolution should be slain on sight![8]
The 30 July 2001 motion prayed that (1) Judge Lacurom inhibit himself in
order to give plaintiff a fighting chance and (2) the Resolution be reconsidered
and set aside.[9]Atty. Olivia Velasco-Jacoba (Velasco-Jacoba) signed the
motion on behalf of the Jacoba-Velasco-Jacoba Law Firm.
On 6 August 2001, Judge Lacurom ordered Velasco-Jacoba to appear before
his sala and explain why she should not be held in contempt of court for the
very disrespectful, insulting and humiliating contents of the 30 July 2001
motion.[10] In her Explanation, Comments and Answer,[11] Velasco- Jacoba
claimed that His Honor knows beforehand who actually prepared the subject
Motion; records will show that the undersigned counsel did not actually or
actively participate in this case.[12] Velasco-Jacoba disavowed any conscious
or deliberate intent to degrade the honor and integrity of the Honorable Court
or to detract in any form from the respect that is rightfully due all courts of
justice.[13]She rationalized as follows:
x x x at first blush, [the motion] really appears to contain some sardonic,
strident and hard-striking adjectives. And, if we are to pick such stringent
words at random and bunch them together, side-by-side x x x then
collectively and certainly they present a cacophonic picture of total and utter
disrespect. x x x
xxxx
We most respectfully submit that plaintiff & counsel did not just fire a staccato
of incisive and hard-hitting remarks, machine-gun style as to be called
contumacious and contemptuous. They were just articulating their feelings of
shock, bewilderment and disbelief at the sudden reversal of their good
fortune, not driven by any desire to just cast aspersions at the Honorable
Pairing judge. They must believe that big monumental errors deserve equally
big adjectives, no more no less. x x x The matters involved were [neither]
peripheral nor marginalized, and they had to call a spade a spade. x x x [14]
Nevertheless, Velasco-Jacoba expressed willingness to apologize for
whatever mistake [they] may have committed in a moment of unguarded
discretion when [they] may have stepped on the line and gone out of bounds.
She also agreed to have the allegedly contemptuous phrases stricken off the
record.[15]
On 13 September 2001, Judge Lacurom found Velasco-Jacoba guilty of
contempt and penalized her with imprisonment for five days and a fine of
P1,000.[16]
Page 155
Velasco-Jacoba moved for reconsideration of the 13 September 2001 order.
She recounted that on her way out of the house for an afternoon hearing,
LEGAL ETHICS
Atty. Ellis Jacoba (Jacoba) stopped her and
said O, pirmahan mo na ito kasi last day na, baka mahuli. (Sign this as it is
due today, or it might not be filed on time.) She signed the pleading handed
to her without reading it, in trusting blind faith on her husband of 35 years
with whom she entrusted her whole life and future.[17] This pleading turned
out to be the 30 July 2001 motion which Jacoba drafted but could not sign
because of his then suspension from the practice of law.[18]
Velasco-Jacoba lamented that Judge Lacurom had found her guilty of
contempt without conducting any hearing. She accused Judge Lacurom of
harboring a personal vendetta, ordering her imprisonment despite her status
as senior lady lawyer of the IBP Nueva Ecija Chapter, already a senior
citizen, and a grandmother many times over.[19] At any rate, she argued,
Judge Lacurom should have inhibited himself from the case out of
delicadeza because [Veneracion] had already filed against him criminal
cases before the Office of the City Prosecutor of Cabanatuan City and before
the Ombudsman.[20]
The records show that with the assistance of counsel Jacoba and
the Jacoba-Velasco-Jacoba Law Firm, Veneracion had executed an affidavit
on 23 August 2001 accusing Judge Lacurom of knowingly rendering unjust
judgment through inexcusable negligence and ignorance[21] and violating
Section 3(e) of Republic Act No. 3019 (RA 3019).[22] The first charge became
the subject of a preliminary investigation[23] by the City Prosecutor
of Cabanatuan City. On the second charge, Veneracion set forth his
allegations in a Complaint-Affidavit[24] filed on 28 August 2001 with the Office
of the Deputy Ombudsman for Luzon.
Judge Lacurom issued another order on 21 September 2001, this time
directing Jacoba to explain why he should not be held in contempt.[25]
Jacoba complied by filing an Answer with Second Motion for Inhibition,
wherein he denied that he typed or prepared the 30 July 2001 motion.
Against Velasco-Jacobas statements implicating
him, Jacobainvoked the marital privilege rule in evidence.[26]
Judge Lacurom later rendered a Professional Responsibility. The outcome of this case has no bearing on the
decision[27] finding Jacoba guilty of contempt of court and sentencing him to
pay a fine ofP500.
On 22 October 2001, Judge Lacurom filed the present complaint against
respondents before the Integrated Bar of the Philippines (IBP).
Report and Recommendation of the IBP
Respondents did not file an answer and neither did they appear at the hearing
set by IBP Commissioner Atty. Lydia A. Navarro (IBP Commissioner
Navarro) despite sufficient notice.[28]
IBP Commissioner Navarro, in her Report and Recommendation of 10
October 2002, recommended the suspension of respondents from the
practice of law for six months.[29]IBP Commissioner Navarro found that
respondents were prone to us[ing] offensive and derogatory remarks and
phrases which amounted to discourtesy and disrespect for authority.[30]
Although the remarks were not directed at Judge Lacurom
personally, they were aimed at his position as a judge, which is a smack on the
judiciary system as a whole.[31]
The IBP Board of Governors (IBP Board) adopted IBP Commissioner
Navarros Report and Recommendation, except for the length of suspension
which the IBP Board reduced to three months.[32] On 10 December 2002, the
IBP Board transmitted its recommendation to this Court, together with the
documents pertaining to the case.
Several days later, Velasco-Jacoba sought reconsideration of the IBP Board
decision, thus:[33]
xxxx
PINEDAPCGRNMAN
3. For the information of the Honorable Commission, the present complaint
of Judge Lacurom is sub judice; the same issues involved in this case
are raised before the Honorable Court of Appeals presently pending in
CA-G.R. SP No. 66973 for Certiorari and Mandatory Inhibition with TRO
and Preliminary Injunction x x x;
4. We filed an Administrative Case against Judge Lacurom before the
Supreme Court involving the same issues we raised in the aforementioned
Certiorari case, which was dismissed by the Supreme Court for being
premature, in view of the pending Certiorari case before the Court of Appeals;
5. In like manner, out of respect and deference to the Court of Appeals, the
present complaint should likewise be dismissed and/or suspended pending
resolution of the certiorari case by the Court of Appeals.[34] (Emphasis
supplied)
The Courts Ruling
On a preliminary note, we reject Velasco-Jacobas contention that the present
complaint should be considered sub judice in view of the petition for certiorari
and mandatory inhibition with preliminary injunction (petition for certiorari)[35]
filed before the Court of Appeals.
The petition for certiorari, instituted by Veneracion and Velasco-Jacoba on 4
October 2001, seeks to nullify the following orders issued by Judge
Lacurom in Civil Case No. 2836: (1) the Orders dated 26 September 2001
and 9 November 2001 denying respondents respective motions for inhibition;
and (2) the 13 September 2001 Order which found Velasco- Jacoba guilty of
contempt. The petitioners allege that Judge Lacurom acted with grave abuse
of discretion [amounting] to lack of jurisdiction, in violation of express
provisions of the law and applicable decisions of the Supreme Court.[36]
Plainly, the issue before us is respondents liability under the Code of
resolution of the petition for certiorari, as there is neither identity of issues nor
causes of action.
Neither should the Courts dismissal of the administrative complaint against
Judge Lacurom for being premature impel us to dismiss this complaint. Judge
Lacuroms orders in Civil Case No. 2836 could not be the subject of an
administrative complaint against him while a petition for certiorari assailing
the same orders is pending with an appellate court.Administrative remedies
are neither alternative nor cumulative to judicial review where such review is
available to the aggrieved parties and the same has not been resolved with
finality. Until there is a final declaration that the challenged order or judgment
is manifestly erroneous, there will be no basis to conclude whether the judge
is administratively liable.[37]
The respondents are situated differently within the factual setting of this case.
The corresponding implications of their actions also give rise to different
liabilities. We first examine the charge against Velasco-Jacoba.
There is no dispute that the genuine signature of Velasco-Jacoba appears
on the 30 July 2001 motion. Velasco-Jacobas responsibility as counsel is
governed by Section 3, Rule 7 of the Rules of Court:
SEC. 3. Signature and address.Every pleading must be signed by the party
or counsel representing him x x x.
The signature of counsel constitutes a certificate by him that he has
read the pleading, that to the best of his knowledge, information, and
belief there is good ground to support it, and that it is not interposed for
delay.
x x x Counsel who x x x signs a pleading in violation of this Rule, or
alleges scandalous or indecent matter therein x x x shall be subject to
appropriate disciplinary action. (Emphasis supplied)
Page 156
By signing the 30 July 2001 motion, Velasco-Jacoba in effect certified that
she had read it, she knew it to be meritorious, and it was not for the purpose
LEGAL ETHICS
of delaying the case. Her signature supplied the motion with legal effect and
elevated its status from a mere scrap of paper to that of a court document.
Velasco-Jacoba insists, however, that she signed the 30 July 2001 motion
only because of her husbands request but she did not know its contents
beforehand. Apparently, this practice of signing each others pleadings is a
long-standing arrangement between the spouses. According to Velasco-
Jacoba, [s]o implicit is [their] trust for each other that this happens all the
time. Through the years, [she] already lost count of the number of pleadings
prepared by one that is signed by the other.[38] By Velasco-Jacobas own
admission, therefore, she violated Section 3 of Rule 7. This violation is an act
of falsehood before the courts, which in itself is a ground
for subjecting her to disciplinary action, independent of any other ground
arising from the contents of the 30 July 2001 motion.[39]
We now consider the evidence as regards Jacoba. His name does not appear
in the 30 July 2001 motion. He asserts the inadmissibility of Velasco- Jacobas
statement pointing to him as the author of the motion.
The Court cannot easily let Jacoba off the hook. Firstly, his Answer with
Second Motion for Inhibition did not contain a denial of his wifes account.
Instead, Jacoba impliedly admitted authorship of the motion by stating that
he trained his guns and fired at the errors which he perceived and believed
to be gigantic and monumental.[40]
Secondly, we find Velasco-Jacobas version of the facts more plausible, for
two reasons: (1) her reaction to the events was immediate and spontaneous,
unlike Jacobasdefense which was raised only after a considerable time had
elapsed from the eruption of the controversy; and (2) Jacoba had been
counsel of record for Veneracion in Civil Case No. 2836, supporting Velasco-
Jacobas assertion that she had not actually participate[d] in the prosecution
of the case.
Moreover, Jacoba filed a Manifestation in Civil Case No. 2836, praying that
Judge Lacurom await the outcome of the petition for certiorari before deciding
the contempt charge against him.[41] This petition for certiorari anchors some
of its arguments on the premise that the motion was, in fact, Jacobas
handiwork.[42]
The marital privilege rule, being a rule of evidence, may be waived by failure
of the claimant to object timely to its presentation or by any conduct that may
be construed as implied consent.[43] This waiver applies to Jacoba who
impliedly admitted authorship of the 30 July 2001 motion.
The Code of Professional Responsibility provides:
Rule 11.03.A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.
Rule 11.04.A lawyer shall not attribute to a Judge motives not supported by
the record or have no materiality to the case.
No doubt, the language contained in the 30 July 2001 motion greatly
exceeded the vigor required of Jacoba to defend ably his clients cause. We
recall his use of the following words and phrases: abhorrent nullity, legal
monstrosity, horrendous mistake, horrible error, boner, and an insult to the
judiciary and an anachronism in the judicial process. Even Velasco- Jacoba
acknowledged that the words created a cacophonic picture of total and utter
disrespect.[44]
Respondents nonetheless try to exculpate themselves by saying that every
remark in the 30 July 2001 motion was warranted. We disagree.
Well-recognized is the right of a lawyer, both as an officer of the court and as
a citizen, to criticize in properly respectful terms and through legitimate
channels the acts of courts and judges.[45] However, even the most hardened
judge would be scarred by the scurrilous attack made by the 30 July 2001
PINEDAPCGRNMAN
motion on Judge Lacuroms Resolution. On its face, the Resolution presented
the facts correctly and decided the case according to supporting law and
jurisprudence. Though a lawyers language may be forceful and emphatic, it
should always be dignified and respectful, befitting the dignity of the legal
profession.[46] The use of unnecessary language is proscribed if we are to
promote high esteem in the courts and trust in judicial administration.[47]
In maintaining the respect due to the courts, a lawyer is not merely enjoined
to use dignified language but also to pursue the clients cause through fair
and honest means, thus:
Rule 19.01.A lawyer shall employ only fair and honest means to attain the
lawful objectives of his client and shall not present, participate in presenting
or threaten to present unfounded criminal charges to obtain an improper
advantage in any case or proceeding.
Shortly after the filing of the 30 July 2001 motion but before its resolution,
Jacoba assisted his client in instituting two administrative cases against
Judge Lacurom. As we have earlier noted, Civil Case No. 2836 was then
pending before Judge Lacuroms sala. The Courts attention is drawn to the
fact that the timing of the filing of these administrative cases could very well
raise the suspicion that the cases were intended as leverage against Judge
Lacurom.
Respondent spouses have both been the subject of administrative cases
before this Court. In Administrative Case No. 2594, we suspended
Jacoba from the practice of law for a period of six months because of his
failure to file an action for the recovery of possession of property despite the
lapse of two and a half years from receipt by him of P550 which his client gave
him as filing and sheriffs fees.[48] In Administrative Case No. 5505, Jacoba was
once again found remiss in his duties when he failed to file the appellants
brief, resulting in the dismissal of his clients appeal. We imposed the penalty
of one year suspension.[49]
As for Velasco-Jacoba, only recently this Court fined her P5,000 for
appearing in barangay conciliation proceedings on behalf of a party, knowing
fully well the prohibition contained in Section 415 of the Local Government
Code.[50]
In these cases, the Court sternly warned respondents that a repetition of
similar acts would merit a stiffer penalty. Yet, here again we are faced with
the question of whether respondents have conducted themselves with the
courtesy and candor required of them as members of the bar and officers of
the court. We find respondents to have fallen short of the mark.
WHEREFORE, we SUSPEND Atty. Ellis F. Jacoba from the practice of law
for two (2) years effective upon finality of this Decision.
We also SUSPEND Atty. Olivia Velasco-Jacoba from the practice of law for
two (2) months effective upon finality of this Decision. We STERNLY
WARN respondents that a repetition of the same or similar infraction shall
merit a more severe sanction.
Let copies of this Decision be furnished the Office of the Bar Confidant, to be
appended to respondents personal records as attorneys; the Integrated Bar
of the Philippines; and all courts in the country for their information and
guidance.
SO ORDERED.
Rule 11.05 – A lawyer shall submit grievances against a judge to the
proper authorities already.
 A lawyer is an officer of the court. He occupies a quasi-judicial
office with a tripartite obligation to the courts, to the public and to
his clients.
 The public duties of the attorney take precedence over his private
duties. His first duty is to the courts. Where duties to the courts
conflict with his duties to his clients, the latter must yield to the
Page 157
former.
LEGAL ETHICS
 Lawyers must be respectful not only in actions but also in the use
of language whether in oral arguments or in pleadings.
 Must exert efforts that others (including clients, witnesses) shall
deal with the courts and judicial officers with respect.
 Obedience to court orders and processes.
 Criticisms of courts must not spill the walls of decency. There is
a wide difference between fair criticism and abuse and slander of
courts and judges. Intemperate and unfair criticism is a gross
violation of the duty to respect the courts. It amounts to
misconduct which subjects the lawyer to disciplinary action.
 A mere disclaimer of any intentional disrespect by appellant is
not a ground for exoneration. His intent must be determined by a
fair interpretation of the languages employed by him. He cannot
escape responsibility by claiming that his words did not mean
what any reader must have understood them to mean.
 Lawyer can demand that the misbehavior of a judge be put on
record.
 Lawyers must be courageous enough to expose arbitrariness
and injustice of courts and judges.
 A lawyer may submit grievances against judges in the Supreme
Court, Ombudsman, or Congress (for impeachment of SC judges
only).
CONST ART VIII:
SECTION 6. The Supreme Court shall have administrative supervision over
all courts and the personnel thereof.
SECTION 11. The Members of the Supreme Court and judges of lower courts
shall hold office during good behavior until they reached the age of seventy
years or become incapacitated to discharge the duties of their office. The
Supreme Court en banc shall have the power to discipline judges of lower
courts, or order their dismissal by a vote of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted
thereon.
G.R. No. L-27654 February 18, 1970
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION
AGAINST ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO H.
CALERO,
vs.
VIRGINIA Y. YAPTINCHAY.
RESOLUTION
CASTRO, J.:
Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's
Certificate of Title," filed on September 25, 1967, in protest against what he
therein asserts is "a great injustice committed against his client by this
Supreme Court." He indicts this Court, in his own phrase, as a tribunal
"peopled by men who are calloused to our pleas for justice, who ignore
without reasons their own applicable decisions and commit culpable
violations of the Constitution with impunity." His client's he continues, who
was deeply aggrieved by this Court's "unjust judgment," has become "one of
the sacrificial victims before the altar of hypocrisy." In the same breath that
he alludes to the classic symbol of justice, he ridicules the members of this
Court, saying "that justice as administered by the present members of the
Supreme Court is not only blind, but also deaf and dumb." He then vows to
argue the cause of his client "in the people's forum," so that "the people may
know of the silent injustice's committed by this Court," and that "whatever
mistakes, wrongs and injustices that were committed must never be
repeated." He ends his petition with a prayer that
... a resolution issue ordering the Clerk of Court to receive the certificate of
the undersigned attorney and counsellor-at-law IN TRUST with reservation
that at any time in the future and in the event we regain our faith and
confidence, we may retrieve our title to assume the practice of the noblest
profession.
He reiterated and disclosed to the press the contents of the aforementioned
petition. Thus, on September 26, 1967, the Manila Times published
statements attributed to him, as follows:
PINEDAPCGRNMAN
Vicente Raul Almacen, in an unprecedented petition, said he did it to expose
the tribunal's"unconstitutional and obnoxious" practice of arbitrarily denying
petitions or appeals without any reason.
Because of the tribunal's "short-cut justice," Almacen deplored, his client was
condemned to pay P120,000, without knowing why he lost the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this
petition, "where our Supreme Court is composed of men who are calloused
to our pleas for justice, who ignore without reason their own applicable
decisions and commit culpable violations of the Constitution with impunity.
xxx xxx xxx
He expressed the hope that by divesting himself of his title by which he earns
his living, the present members of the Supreme Court "will become
responsive to all cases brought to its attention without discrimination, and will
purge itself of those unconstitutional and obnoxious "lack of merit" or "denied
resolutions. (Emphasis supplied)
Atty. Almacen's statement that
... our own Supreme Court is composed of men who are calloused to our
pleas of [sic] justice, who ignore their own applicable decisions and commit
culpable violations of the Constitution with impunity
was quoted by columnist Vicente Albano Pacis in the issue of the Manila
Chronicle of September 28, 1967. In connection therewith, Pacis commented
that Atty. Almacen had "accused the high tribunal of offenses so serious that
the Court must clear itself," and that "his charge is one of the constitutional
bases for impeachment."
The genesis of this unfortunate incident was a civil case entitled Virginia Y.
Yaptinchay vs. Antonio H. Calero,1 in which Atty. Almacen was counsel for
the defendant. The trial court, after due hearing, rendered judgment against
his client. On June 15, 1966 Atty. Almacen received a copy of the decision.
Twenty days later, or on July 5, 1966, he moved for its reconsideration. He
served on the adverse counsel a copy of the motion, but did not notify the
latter of the time and place of hearing on said motion. Meanwhile, on July 18,
1966, the plaintiff moved for execution of the judgment. For "lack of proof of
service," the trial court denied both motions. To prove that he did serve on
the adverse party a copy of his first motion for reconsideration, Atty. Almacen
filed on August 17, 1966 a second motion for reconsideration to which he
attached the required registry return card. This second motion for
reconsideration, however, was ordered withdrawn by the trial court on August
30, 1966, upon verbal motion of Atty. Almacen himself, who, earlier, that is,
on August 22, 1966, had already perfected the appeal. Because the plaintiff
interposed no objection to the record on appeal and appeal bond, the trial
court elevated the case to the Court of Appeals.
But the Court of Appeals, on the authority of this Court's decision in Manila
Surety & Fidelity Co., Inc. vs. Batu Construction & Co., L-16636, June 24,
1965, dismissed the appeal, in the following words:
Upon consideration of the motion dated March 27, 1967, filed by plaintiff-
appellee praying that the appeal be dismissed, and of the opposition thereto
filed by defendant-appellant; the Court RESOLVED TO DISMISS, as it
hereby dismisses, the appeal, for the reason that the motion for
reconsideration dated July 5, 1966 (pp. 90-113, printed record on appeal)
does not contain a notice of time and place of hearing thereof and is,
therefore, a useless piece of paper (Manila Surety & Fidelity Co., Inc. vs. Batu
Construction & Co., G.R. No. L-16636, June 24, 1965), which did not interrupt
the running of the period to appeal, and, consequently, the appeal was
perfected out of time.
Atty. Almacen moved to reconsider this resolution, urging that Manila Surety
& Fidelity Co. is not decisive. At the same time he filed a pleading entitled
"Latest decision of the Supreme Court in Support of Motion for
Reconsideration," citing Republic of the Philippines vs. Gregorio A.
Venturanza, L-20417, decided by this Court on May 30, 1966, as the
applicable case. Again, the Court of Appeals denied the motion for
reconsideration, thus:
Before this Court for resolution are the motion dated May 9, 1967 and the
supplement thereto of the same date filed by defendant- appellant, praying
for reconsideration of the resolution of May 8, 1967, dismissing the appeal.
Appellant contends that there are some important distinctions between this
case and that of Manila Surety and Fidelity Co., Inc. vs. Batu Construction &
Page 158
Co., G.R. No. L- 16636, June 24, 1965, relied upon by this Court in its
resolution of May 8, 1967. Appellant further states that in the latest
case,Republic vs. Venturanza, L-20417, May 30, 1966, decided by the
LEGAL ETHICS
Supreme Court concerning the question raised by appellant's motion, the
ruling is contrary to the doctrine laid down in the Manila Surety & Fidelity Co.,
Inc. case.
There is no substantial distinction between this case and that of Manila
Surety & Fidelity Co.
In the case of Republic vs. Venturanza, the resolution denying the motion to
dismiss the appeal, based on grounds similar to those raised herein was
issued on November 26, 1962, which was much earlier than the date of
promulgation of the decision in the Manila Surety Case, which was June 24,
1965. Further, the resolution in the Venturanza case was interlocutory and
the Supreme Court issued it "without prejudice to appellee's restoring the
point in the brief." In the main decision in said case (Rep. vs. Venturanza the
Supreme Court passed upon the issue sub silencio presumably because of
its prior decisions contrary to the resolution of November 26, 1962, one of
which is that in the Manila Surety and Fidelity case. Therefore Republic vs.
Venturanza is no authority on the matter in issue.
Atty. Almacen then appealed to this Court by certiorari. We refused to take
the case, and by minute resolution denied the appeal. Denied shortly
thereafter was his motion for reconsideration as well as his petition for leave
to file a second motion for reconsideration and for extension of time. Entry of
judgment was made on September 8, 1967. Hence, the second motion for
reconsideration filed by him after the Said date was ordered expunged from
the records.
It was at this juncture that Atty. Almacen gave vent to his disappointment by
filing his "Petition to Surrender Lawyer's Certificate of Title," already adverted
to — a pleading that is interspersed from beginning to end with the insolent
contemptuous, grossly disrespectful and derogatory remarks hereinbefore
reproduced, against this Court as well as its individual members, a behavior
that is as unprecedented as it is unprofessional.
Nonetheless we decided by resolution dated September 28, 1967 to withhold
action on his petition until he shall have actually surrendered his certificate.
Patiently, we waited for him to make good his proffer. No word came from
him. So he was reminded to turn over his certificate, which he had earlier
vociferously offered to surrender, so that this Court could act on his petition.
To said reminder he manifested "that he has no pending petition in
connection with Case G.R. No. L-27654, Calero vs. Yaptinchay, said case is
now final and executory;" that this Court's September 28, 1967 resolution did
not require him to do either a positive or negative act; and that since his offer
was not accepted, he "chose to pursue the negative act."
In the exercise of its inherent power to discipline a member of the bar for
contumely and gross misconduct, this Court on November 17, 1967 resolved
to require Atty. Almacen to show cause "why no disciplinary action should be
taken against him." Denying the charges contained in the November 17
resolution, he asked for permission "to give reasons and cause why no
disciplinary action should be taken against him ... in an open and public
hearing." This Court resolved (on December 7) "to require Atty. Almacen to
state, within five days from notice hereof, his reasons for such request,
otherwise, oral argument shall be deemed waived and incident submitted for
decision." To this resolution he manifested that since this Court is "the
complainant, prosecutor and Judge," he preferred to be heard and to answer
questions "in person and in an open and public hearing" so that this Court
could observe his sincerity and candor. He also asked for leave to file a
written explanation "in the event this Court has no time to hear him in person."
To give him the ampliest latitude for his defense, he was allowed to file a
written explanation and thereafter was heard in oral argument.
His written answer, as undignified and cynical as it is unchastened, offers -
no apology. Far from being contrite Atty. Almacen unremittingly repeats his
jeremiad of lamentations, this time embellishing it with abundant sarcasm
and innuendo. Thus:
At the start, let me quote passages from the Holy Bible, Chapter 7, St.
Matthew: —
"Do not judge, that you may not be judged. For with what judgment you judge,
you shall be judged, and with what measure you measure, it shall be
measured to you. But why dost thou see the speck in thy brother's eye, and
yet dost not consider the beam in thy own eye? Or how can thou say to thy
brother, "Let me cast out the speck from thy eye"; and behold, there is a
beam in thy own eye? Thou hypocrite, first cast out the beam from thy own
eye, and then thou wilt see clearly to cast out the speck from thy brother's
eyes."
PINEDAPCGRNMAN
"Therefore all that you wish men to do to you, even to do you also to them:
for this is the Law and the Prophets."
xxx xxx xxx
Your respondent has no intention of disavowing the statements mentioned in
his petition. On the contrary, he refirms the truth of what he stated, compatible
with his lawyer's oath that he will do no falsehood, nor consent to the doing
of any in court. But he vigorously DENY under oath that the underscored
statements contained in the CHARGE are insolent, contemptuous, grossly
disrespectful and derogatory to the individual members of the Court; that they
tend to bring the entire Court, without justification, into disrepute; and
constitute conduct unbecoming of a member of the noble profession of law.
xxx xxx xxx
Respondent stands four-square that his statement is borne by TRUTH and
has been asserted with NO MALICE BEFORE AND AFTER THOUGHT but
mainly motivated with the highest interest of justice that in the particular case
of our client, the members have shown callousness to our various pleas for
JUSTICE, our pleadings will bear us on this matter, ...
xxx xxx xxx
To all these beggings, supplications, words of humility, appeals for charity,
generosity, fairness, understanding, sympathy and above all in the highest
interest of JUSTICE, — what did we get from this COURT? One word,
DENIED, with all its hardiness and insensibility. That was the unfeeling of the
Court towards our pleas and prayers, in simple word, it is plain callousness
towards our particular case.
xxx xxx xxx
Now that your respondent has the guts to tell the members of the Court that
notwithstanding the violation of the Constitution, you remained unpunished,
this Court in the reverse order of natural things, is now in the attempt to inflict
punishment on your respondent for acts he said in good faith.
Did His Honors care to listen to our pleadings and supplications for JUSTICE,
CHARITY, GENEROSITY and FAIRNESS? Did His Honors attempt to justify
their stubborn denial with any semblance of reason, NEVER. Now that your
respondent is given the opportunity to face you, he reiterates the same
statement with emphasis, DID YOU? Sir. Is this. the way of life in the
Philippines today, that even our own President, said: — "the story is current,
though nebulous ,is to its truth, it is still being circulated that justice in the
Philippines today is not what it is used to be before the war. There are those
who have told me frankly and brutally that justice is a commodity, a
marketable commodity in the Philippines."
xxx xxx xxx
We condemn the SIN, not the SINNER. We detest the ACTS, not the
ACTOR. We attack the decision of this Court, not the members. ... We were
provoked. We were compelled by force of necessity. We were angry but we
waited for the finality of the decision. We waited until this Court has performed
its duties. We never interfered nor obstruct in the performance of their duties.
But in the end, after seeing that the Constitution has placed finality on your
judgment against our client and sensing that you have not performed your
duties with "circumspection, carefulness, confidence and wisdom", your
Respondent rise to claim his God given right to speak the truth and his
Constitutional right of free speech.
xxx xxx xxx
The INJUSTICES which we have attributed to this Court and the further
violations we sought to be prevented is impliedly shared by our President. ...
.
xxx xxx xxx
What has been abhored and condemned, are the very things that were
applied to us. Recalling Madam Roland's famous apostrophe during the
French revolution, "O Liberty, what crimes are committed in thy name", we
may dare say, "O JUSTICE, what technicalities are committed in thy name'
or more appropriately, 'O JUSTICE, what injustices are committed in thy
name."
xxx xxx xxx
We must admit that this Court is not free from commission of any abuses, but
who would correct such abuses considering that yours is a court of last resort.
A strong public opinion must be generated so as to curtail these abuses.
xxx xxx xxx
The phrase, Justice is blind is symbolize in paintings that can be found in all
Page 159
courts and government offices. We have added only two more symbols, that
it is also deaf and dumb. Deaf in the sense that no members of this Court
has ever heard our cries for charity, generosity, fairness, understanding
LEGAL ETHICS
sympathy and for justice; dumb in the sense, that inspite of our beggings,
supplications, and pleadings to give us reasons why our appeal has been
DENIED, not one word was spoken or given ... We refer to no human defect
or ailment in the above statement. We only describe the. impersonal state of
things and nothing more.
xxx xxx xxx
As we have stated, we have lost our faith and confidence in the members of
this Court and for which reason we offered to surrender our lawyer's
certificate, IN TRUST ONLY. Because what has been lost today may be
regained tomorrow. As the offer was intended as our self-imposed sacrifice,
then we alone may decide as to when we must end our self-sacrifice. If we
have to choose between forcing ourselves to have faith and confidence in
the members of the Court but disregard our Constitution and to uphold the
Constitution and be condemned by the members of this Court, there is no
choice, we must uphold the latter.
But overlooking, for the nonce, the vituperative chaff which he claims is not
intended as a studied disrespect to this Court, let us examine the grain of his
grievances.
He chafes at the minute resolution denial of his petition for review. We are
quite aware of the criticisms2 expressed against this Court's practice of
rejecting petitions by minute resolutions. We have been asked to do away
with it, to state the facts and the law, and to spell out the reasons for denial.
We have given this suggestion very careful thought. For we know the abject
frustration of a lawyer who tediously collates the facts and for many weary
hours meticulously marshalls his arguments, only to have his efforts rebuffed
with a terse unadorned denial. Truth to tell, however, most petitions rejected
by this Court are utterly frivolous and ought never to have been lodged at all.3
The rest do exhibit a first-impression cogency, but fail to, withstand critical
scrutiny. By and large, this Court has been generous in giving due course to
petitions forcertiorari.
Be this as it may, were we to accept every case or write a full opinion for
every petition we reject, we would be unable to carry out effectively the
burden placed upon us by the Constitution. The proper role of the Supreme
Court, as Mr. Chief Justice Vinson of the U.S. Supreme Court has defined it,
is to decide "only those cases which present questions whose resolutions will
have immediate importance beyond the particular facts and parties involved."
Pertinent here is the observation of Mr. Justice Frankfurter in Maryland vs.
Baltimore Radio Show, 94 L. ed 562, 566:
A variety of considerations underlie denials of the writ, and as to the same
petition different reasons may read different justices to the same result ... .
Since there are these conflicting, and, to the uninformed, even confusing
reasons for denying petitions for certiorari, it has been suggested from time
to time that the Court indicate its reasons for denial. Practical considerations
preclude. In order that the Court may be enabled to discharge its
indispensable duties, Congress has placed the control of the Court's
business, in effect, within the Court's discretion. During the last three terms
the Court disposed of 260, 217, 224 cases, respectively, on their merits. For
the same three terms the Court denied, respectively, 1,260, 1,105,1,189
petitions calling for discretionary review. If the Court is to do its work it would
not be feasible to give reasons, however brief, for refusing to take these
cases. The tune that would be required is prohibitive. Apart from the fact that
as already indicated different reasons not infrequently move different
members of the Court in concluding that a particular case at a particular time
makes review undesirable.
Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098, May 31,
1963 (60 O.G. 8099), this Court, through the then Chief Justice Cesar
Bengzon, articulated its considered view on this matter. There, the petitioners
counsel urged that a "lack of merit" resolution violates Section 12 of Article
VIII of the Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same question has been
raised before; and we held that these "resolutions" are not "decisions" within
the above constitutional requirement. They merely hold that the petition for
review should not be entertained in view of the provisions of Rule 46 of the
Rules of Court; and even ordinary lawyers have all this time so understood
it. It should be remembered that a petition to review the decision of the Court
of Appeals is not a matter of right, but of sound judicial discretion; and so
there is no need to fully explain the court's denial. For one thing, the facts
and the law are already mentioned in the Court of Appeals' opinion.
By the way, this mode of disposal has — as intended — helped the Court in
alleviating its heavy docket; it was patterned after the practice of the U.S.
PINEDAPCGRNMAN
Supreme Court, wherein petitions for review are often merely ordered
"dismissed".
We underscore the fact that cases taken to this Court on petitions for
certiorari from the Court of Appeals have had the benefit of appellate review.
Hence, the need for compelling reasons to buttress such petitions if this Court
is to be moved into accepting them. For it is axiomatic that the supervisory
jurisdiction vested upon this Court over the Court of Appeals is not intended
to give every losing party another hearing. This axiom is implied in sec. 4 of
Rule 45 of the Rules of Court which recites:
Review of Court of Appeals' decision discretionary.—A review is not a matter
of right but of sound judicial discretion, and will be granted only when there
are special and important reasons therefor. The following, while neither
controlling nor fully measuring the court's discretion, indicate the character of
reasons which will be considered:
(a) When the Court of Appeals has decided a question of substance, not
theretofore determined by the Supreme Court, nor has decided it in a way
probably not in accord with law or with the applicable decisions of the
Supreme Court;
(b) When the Court of Appeals has so far departed from the accepted and
usual course of judicial proceedings, or so far sanctioned such departure by
the lower court, as to call for the exercise of the power of supervision.
Recalling Atty. Almacen's petition for review, we found, upon a
thoroughgoing examination of the pleadings. and records, that the Court of
Appeals had fully and correctly considered the dismissal of his appeal in the
light of the law and applicable decisions of this Court. Far from straying away
from the "accepted and usual course of judicial proceedings," it traced the
procedural lines etched by this Court in a number of decisions. There was,
therefore, no need for this Court to exercise its supervisory power.
As a law practitioner who was admitted to the Bar as far back as 1941, Atty.
Almacen knew — or ought to have known — that for a motion for
reconsideration to stay the running of the period of appeal, the movant must
not only serve a copy of the motion upon the adverse party (which he did),
but also notify the adverse party of the time and place of hearing (which
admittedly he did not). This rule was unequivocally articulated in Manila
Surety & Fidelity vs. Batu Construction & Co., supra:
The written notice referred to evidently is prescribed for motions in general
by Rule 15, Sections 4 and 5 (formerly Rule 26), which provides that such
notice shall state the time, and place of hearing and shall be served upon all
the Parties concerned at least three days in advance. And according to
Section 6 of the same Rule no motion shall be acted upon by the court without
proof of such notice. Indeed it has been held that in such a case the motion
is nothing but a useless piece of paper (Philippine National Bank v. Damasco,
I,18638, Feb. 28, 1963; citing Manakil v. Revilla, 42 Phil. 81; Roman Catholic
Bishop of Lipa v. Municipality of Unisan, 41 Phil. 866; and Director of Lands
vs. Sanz, 45 Phil. 117). The reason is obvious: Unless the movant sets the
time and place of hearing the Court would have no way to determine whether
that party agrees to or objects to the motion, and if he objects, to hear him
on his objection, since the Rules themselves do not fix any period within
which he may file his reply or opposition.
If Atty. Almacen failed to move the appellate court to review the lower court's
judgment, he has only himself to blame. His own negligence caused the
forfeiture of the remedy of appeal, which, incidentally, is not a matter of right.
To shift away from himself the consequences of his carelessness, he looked
for a "whipping boy." But he made sure that he assumed the posture of a
martyr, and, in offering to surrender his professional certificate, he took the
liberty of vilifying this Court and inflicting his exacerbating rancor on the
members thereof. It would thus appear that there is no justification for his
scurrilous and scandalous outbursts.
Nonetheless we gave this unprecedented act of Atty. Almacen the most
circumspect consideration. We know that it is natural for a lawyer to express
his dissatisfaction each time he loses what he sanguinely believes to be a
meritorious case. That is why lawyers are given 'wide latitude to differ with,
and voice their disapproval of, not only the courts' rulings but, also the
manner in which they are handed down.
Moreover, every citizen has the right to comment upon and criticize the
actuations of public officers. This right is not diminished by the fact that the
criticism is aimed at a judicial authority,4 or that it is articulated by a lawyer.5
Page 160
Such right is especially recognized where the criticism concerns a concluded
litigation,6 because then the court's actuations are thrown open to public
consumption.7 "Our decisions and all our official actions," said the
LEGAL ETHICS
Supreme Court of Nebraska,8 "are public property, and the press and the
people have the undoubted right to comment on them, criticize and censure
them as they see fit. Judicial officers, like other public servants, must answer
for their official actions before the chancery of public opinion."
The likely danger of confusing the fury of human reaction to an attack on
one's integrity, competence and honesty, with "imminent danger to the
administration of justice," is the reason why courts have been loath to inflict
punishment on those who assail their actuations.9 This danger lurks
especially in such a case as this where those who Sit as members of an
entire Court are themselves collectively the aggrieved parties.
Courts thus treat with forbearance and restraint a lawyer who vigorously
assails their actuations. 10 For courageous and fearless advocates are the
strands that weave durability into the tapestry of justice. Hence, as citizen
and officer of the court, every lawyer is expected not only to exercise the
right, but also to consider it his duty to expose the shortcomings and
indiscretions of courts and judges. 11
Courts and judges are not sacrosanct. 12 They should and expect critical
evaluation of their performance. 13 For like the executive and the legislative
branches, the judiciary is rooted in the soil of democratic society, nourished
by the periodic appraisal of the citizens whom it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer of the
court and as a citizen, to criticize in properly respectful terms and through
legitimate channels the acts of courts and judges. The reason is that
An attorney does not surrender, in assuming the important place accorded to
him in the administration of justice, his right as a citizen to criticize the
decisions of the courts in a fair and respectful manner, and the independence
of the bar, as well as of the judiciary, has always been encouraged by the
courts. (In re Ades, 6 F Supp. 487) .
Criticism of the courts has, indeed, been an important part of the traditional
work of the bar. In the prosecution of appeals, he points out the errors of
lower courts. In written for law journals he dissects with detachment the
doctrinal pronouncements of courts and fearlessly lays bare for -all to see
that flaws and inconsistence" of the doctrines (Hill v. Lyman, 126 NYS 2d
286). As aptly stated by Chief Justice Sharswood in Ex Parte Steinman, 40
Am. Rep. 641:
No class of the community ought to be allowed freer scope in the expansion
or publication of opinions as to the capacity, impartiality or integrity of judges
than members of the bar. They have the best opportunities for observing and
forming a correct judgment. They are in constant attendance on the courts.
... To say that an attorney can only act or speak on this subject under liability
to be called to account and to be deprived of his profession and livelihood,
by the judge or judges whom he may consider it his duty to attack and
expose, is a position too monstrous to be entertained.
... .
Hence, as a citizen and as Officer of the court a lawyer is expected not only
to exercise the right, but also to consider it his duty to avail of such right. No
law may abridge this right. Nor is he "professionally answerable for a scrutiny
into the official conduct of the judges, which would not expose him to legal
animadversion as a citizen." (Case of Austin, 28 Am. Dee. 657, 665).
Above all others, the members of the bar have the beat Opportunity to
become conversant with the character and efficiency of our judges. No class
is less likely to abuse the privilege, as no other class has as great an interest
in the preservation of an able and upright bench. (State Board of Examiners
in Law v. Hart, 116 N.W. 212, 216)
To curtail the right of a lawyer to be critical of the foibles of courts and judges
is to seal the lips of those in the best position to give advice and who might
consider it their duty to speak disparagingly. "Under such a rule," so far as
the bar is concerned, "the merits of a sitting judge may be rehearsed, but as
to his demerits there must be profound silence." (State v. Circuit Court, 72
N.W. 196)
But it is the cardinal condition of all such criticism that it shall be bona fide,
and shall not spill over the walls of decency and propriety. A wide chasm
exists between fair criticism, on the One hand, and abuse and slander of
courts and the judges thereof, on the other. Intemperate and unfair criticism
is a gross violation of the duty of respect to courts. It is Such a misconduct
that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties
which are not mere flux and ferment. His investiture into the legal profession
places upon his shoulders no burden more basic, more exacting and more
imperative than that of respectful behavior toward the courts. He vows
PINEDAPCGRNMAN
solemnly to conduct himself "with all good fidelity ... to the courts; 14 and the
Rules of Court constantly remind him "to observe and maintain the respect
due to courts of justice and judicial officers." 15 The first canon of legal ethics
enjoins him "to maintain towards the courts a respectful attitude, not for the
sake of the temporary incumbent of the judicial office, but for the maintenance
of its supreme importance."
As Mr. Justice Field puts it:
... the obligation which attorneys impliedly assume, if they do not by express
declaration take upon themselves, when they are admitted to the Bar, is not
merely to be obedient to the Constitution and laws, but to maintain at all times
the respect due to courts of justice and judicial officers. This obligation is not
discharged by merely observing the rules of courteous demeanor in open
court, but includes abstaining out of court from all insulting language and
offensive conduct toward judges personally for their judicial acts. (Bradley, v.
Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential
to the orderly administration of justice. Hence, in the — assertion of their
clients' rights, lawyers — even those gifted with superior intellect are enjoined
to rein up their tempers.
The counsel in any case may or may not be an abler or more learned lawyer
than the judge, and it may tax his patience and temper to submit to rulings
which he regards as incorrect, but discipline and self-respect are as
necessary to the orderly administration of justice as they are to the
effectiveness of an army. The decisions of the judge must be obeyed,
because he is the tribunal appointed to decide, and the bar should at all times
be the foremost in rendering respectful submission. (In Re Scouten, 40 Atl.
481)
We concede that a lawyer may think highly of his intellectual endowment That
is his privilege. And he may suffer frustration at what he feels is others' lack
of it. That is his misfortune. Some such frame of mind, however, should not
be allowed to harden into a belief that he may attack a court's decision in
words calculated to jettison the time-honored aphorism that courts are the
temples of right. (Per Justice Sanchez in Rheem of the Philippines vs. Ferrer,
L-22979. June 26, 1967)
In his relations with the courts, a lawyer may not divide his personality so as
to be an attorney at one time and a mere citizen at another. Thus, statements
made by an attorney in private conversations or communications 16 or in the
course of a political, campaign, 17 if couched in insulting language as to bring
into scorn and disrepute the administration of justice, may subject the
attorney to disciplinary action.
Of fundamental pertinence at this juncture is an examination of relevant
parallel precedents.
1. Admitting that a "judge as a public official is neither sacrosanct nor immune
to public criticism of his conduct in office," the Supreme Court of Florida in
State v. Calhoon, 102 So. 2d 604, 608, nevertheless declared that "any
conduct of a lawyer which brings into scorn and disrepute the administration
of justice demands condemnation and the application of appropriate
penalties," adding that:
It would be contrary to, every democratic theory to hold that a judge or a court
is beyond bona fide comments and criticisms which do not exceed the
bounds of decency and truth or which are not aimed at. the destruction of
public confidence in the judicial system as such. However, when the likely
impairment of the administration of justice the direct product of false and
scandalous accusations then the rule is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for putting
out and circulating a leaflet entitled "JUSTICE??? IN OTUMWA," which
accused a municipal judge of having committed judicial error, of being so
prejudiced as to deny his clients a fair trial on appeal and of being subject to
the control of a group of city officials. As a prefatory statement he wrote:
"They say that Justice is BLIND, but it took Municipal Judge Willard to prove
that it is also DEAF and DUMB!" The court did not hesitate to find that the
leaflet went much further than the accused, as a lawyer, had a right to do.
The entire publication evidences a desire on the part Of the accused to
belittle and besmirch the court and to bring it into disrepute with the general
public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California affirmed
the two-year suspension of an attorney who published a circular assailing a
Page 161
judge who at that time was a candidate for re-election to a judicial office. The
circular which referred to two decisions of the judge concluded with a
LEGAL ETHICS
statement that the judge "used his judicial office to enable -said bank to keep
that money." Said the court:
We are aware that there is a line of authorities which place no limit to the
criticism members of the bar may make regarding the capacity, impartiality,
or integrity of the courts, even though it extends to the deliberate publication
by the attorney capable of correct reasoning of baseless insinuations against
the intelligence and integrity of the highest courts. See State Board, etc. v.
Hart. 116 N.W. 212, 17 LRA (N.S.) 585, 15 Ann Cas 197 and note: Ex parte
Steinman 95 Pac. 220, 40 Am. Rep. 637. In the first case mentioned it was
observed, for instance:
"It may be (although we do not so decide) that a libelous publication by an
attorney, directed against a judicial officer, could be so vile and of such a
nature as to justify the disbarment of its author."
Yet the false charges made by an attorney in that case were of graver
character than those made by the respondent here. But, in our view, the
better rule is that which requires of those who are permitted to enjoy the
privilege of practicing law the strictest observance at all times of the principles
of truth, honesty and fairness, especially in their criticism of the courts, to the
end that the public confidence in the due administration of justice be upheld,
and the dignity and usefulness of the courts be maintained. In re Collins, 81
Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an attorney,
representing a woman who had been granted a divorce, attacked the judge
who set aside the decree on bill of review. He wrote the judge a threatening
letter and gave the press the story of a proposed libel suit against the judge
and others. The letter began:
Unless the record in In re Petersen v. Petersen is cleared up so that my name
is protected from the libel, lies, and perjury committed in the cases involved,
I shall be compelled to resort to such drastic action as the law allows and the
case warrants.
Further, he said: "However let me assure you I do not intend to allow such
dastardly work to go unchallenged," and said that he was engaged in dealing
with men and not irresponsible political manikins or appearances of men.
Ordering the attorney's disbarment, the Supreme Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever there is proper
ground for serious complaint against a judge, it is the right and duty of a
lawyer to submit his grievances to the proper authorities, but the public
interest and the administration of the law demand that the courts should have
the confidence and respect of the people. Unjust criticism, insulting language,
and offensive conduct toward the judges personally by attorneys, who are
officers of the court, which tend to bring the courts and the law into disrepute
and to destroy public confidence in their integrity, cannot be permitted. The
letter written to the judge was plainly an attempt to intimidate and influence
him in the discharge of judicial functions, and the bringing of the unauthorized
suit, together with the write-up in the Sunday papers, was intended and
calculated to bring the court into disrepute with the public.
5. In a public speech, a Rhode Island lawyer accused the courts of the state
of being influenced by corruption and greed, saying that the seats of the
Supreme Court were bartered. It does not appear that the attorney had
criticized any of the opinions or decisions of the Court. The lawyer was
charged with unprofessional conduct, and was ordered suspended for a
period of two years. The Court said:
A calumny of that character, if believed, would tend to weaken the authority
of the court against whose members it was made, bring its judgments into
contempt, undermine its influence as an unbiased arbiter of the people's
right, and interfere with the administration of justice. ...
Because a man is a member of the bar the court will not, under the guise of
disciplinary proceedings, deprive him of any part of that freedom of speech
which he possesses as a citizen. The acts and decisions of the courts of this
state, in cases that have reached final determination, are not exempt from
fair and honest comment and criticism. It is only when an attorney transcends
the limits of legitimate criticism that he will be held responsible for an abuse
of his liberty of speech. We well understand that an independent bar, as well
as independent court, is always a vigilant defender of civil rights. In Re Troy,
111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six
months for submitting to an appellate court an affidavit reflecting upon the
judicial integrity of the court from which the appeal was taken. Such action,
the Court said, constitutes unprofessional conduct justifying suspension from
practice, notwithstanding that he fully retracted and withdrew the statements,
PINEDAPCGRNMAN
and asserted that the affidavit was the result of an impulse caused by what
he considered grave injustice. The Court said:
We cannot shut our eyes to the fact that there is a growing habit in the
profession of criticising the motives and integrity of judicial officers in the
discharge of their duties, and thereby reflecting on the administration of
justice and creating the impression that judicial action is influenced by corrupt
or improper motives. Every attorney of this court, as well as every other
citizen, has the right and it is his duty, to submit charges to the authorities in
whom is vested the power to remove judicial officers for any conduct or act
of a judicial officer that tends to show a violation of his duties, or would justify
an inference that he is false to his trust, or has improperly administered the
duties devolved upon him; and such charges to the tribunal, if based upon
reasonable inferences, will be encouraged, and the person making them
protected. ... While we recognize the inherent right of an attorney in a case
decided against him, or the right of the Public generally, to criticise the
decisions of the courts, or the reasons announced for them, the habit of
criticising the motives of judicial officers in the performance of their official
duties, when the proceeding is not against the officers whose acts or motives
are criticised, tends to subvert the confidence of the community in the courts
of justice and in the administration of justice; and when such charges are
made by officers of the courts, who are bound by their duty to protect the
administration of justice, the attorney making such charges is guilty of
professional misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:
I accepted the decision in this case, however, with patience, barring possible
temporary observations more or less vituperative and finally concluded, that,
as my clients were foreigners, it might have been expecting too much to look
for a decision in their favor against a widow residing here.
The Supreme Court of Alabama declared that:
... the expressions above set out, not only transcend the bounds of propriety
and privileged criticism, but are an unwarranted attack, direct, or by
insinuation and innuendo, upon the motives and integrity of this court, and
make out a prima facie case of improper conduct upon the part of a lawyer
who holds a license from this court and who is under oath to demean himself
with all good fidelity to the court as well as to his client.
The charges, however, were dismissed after the attorney apologized to the
Court.
8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney
published in a newspaper an article in which he impugned the motives of the
court and its members to try a case, charging the court of having arbitrarily
and for a sinister purpose undertaken to suspend the writ of habeas corpus.
The Court suspended the respondent for 30 days, saying that:
The privileges which the law gives to members of the bar is one most
subversive of the public good, if the conduct of such members does not
measure up to the requirements of the law itself, as well as to the ethics of
the profession. ...
The right of free speech and free discussion as to judicial determination is of
prime importance under our system and ideals of government. No right
thinking man would concede for a moment that the best interest to private
citizens, as well as to public officials, whether he labors in a judicial capacity
or otherwise, would be served by denying this right of free speech to any
individual. But such right does not have as its corollary that members of the
bar who are sworn to act honestly and honorably both with their client and
with the courts where justice is administered, if administered at all, could ever
properly serve their client or the public good by designedly misstating facts
or carelessly asserting the law. Truth and honesty of purpose by members of
the bar in such discussion is necessary. The health of a municipality is none
the less impaired by a polluted water supply than is the health of the thought
of a community toward the judiciary by the filthy wanton, and malignant
misuse of members of the bar of the confidence the public, through its duly
established courts, has reposed in them to deal with the affairs of the private
individual, the protection of whose rights he lends his strength and money to
maintain the judiciary. For such conduct on the part of the members of the
bar the law itself demands retribution — not the court.
9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of an
affidavit by an attorney in a pending action using in respect to the several
judges the terms criminal corrupt, and wicked conspiracies,," "criminal
Page 162
confederates," "colossal and confident insolence," "criminal prosecution,"
"calculated brutality," "a corrupt deadfall," and similar phrases, was
LEGAL ETHICS
considered conduct unbecoming of a member of the bar, and the name of
the erring lawyer was ordered stricken from the roll of attorneys.
10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring attorney
claimed that greater latitude should be allowed in case of criticism of cases
finally adjudicated than in those pending. This lawyer wrote a personal letter
to the Chief Justice of the Supreme Court of Minnesota impugning both the
intelligence and the integrity of the said Chief Justice and his associates in
the decisions of certain appeals in which he had been attorney for the
defeated litigants. The letters were published in a newspaper. One of the
letters contained this paragraph:
You assigned it (the property involved) to one who has no better right to it
than the burglar to his plunder. It seems like robbing a widow to reward a
fraud, with the court acting as a fence, or umpire, watchful and vigilant that
the widow got no undue
advantage. ... The point is this: Is a proper motive for the decisions
discoverable, short of assigning to the court emasculated intelligence, or a
constipation of morals and faithlessness to duty? If the state bar association,
or a committee chosen from its rank, or the faculty of the University Law
School, aided by the researches of its hundreds of bright, active students, or
if any member of the court, or any other person, can formulate a statement
of a correct motive for the decision, which shall not require fumigation before
it is stated, and quarantine after it is made, it will gratify every right-minded
citizen of the state to read it.
The Supreme Court of Minnesota, in ordering the suspension of the attorney
for six months, delivered its opinion as follows:
The question remains whether the accused was guilty of professional
misconduct in sending to the Chief Justice the letter addressed to him. This
was done, as we have found, for the very purpose of insulting him and the
other justices of this court; and the insult was so directed to the Chief Justice
personally because of acts done by him and his associates in their official
capacity. Such a communication, so made, could never subserve any good
purpose. Its only effect in any case would be to gratify the spite of an angry
attorney and humiliate the officers so assailed. It would not and could not
ever enlighten the public in regard to their judicial capacity or integrity. Nor
was it an exercise by the accused of any constitutional right, or of any
privilege which any reputable attorney, uninfluenced by passion, could ever
have any occasion or desire to assert. No judicial officer, with due regard to
his position, can resent such an insult otherwise than by methods sanctioned
by law; and for any words, oral or written, however abusive, vile, or indecent,
addressed secretly to the judge alone, he can have no redress in any action
triable by a jury. "The sending of a libelous communication or libelous matter
to the person defamed does not constitute an actionable publication." 18 Am.
& Eng. Enc. Law (2d Ed.) p. 1017. In these respects the sending by the
accused of this letter to the Chief Justice was wholly different from his other
acts charged in the accusation, and, as we have said, wholly different
principles are applicable thereto.
The conduct of the accused was in every way discreditable; but so far as he
exercised the rights of a citizen, guaranteed by the Constitution and
sanctioned by considerations of public policy, to which reference has been
made, he was immune, as we hold, from the penalty here sought to be
enforced. To that extent his rights as a citizen were paramount to the
obligation which he had assumed as an officer of this court. When, however
he proceeded and thus assailed the Chief Justice personally, he exercised
no right which the court can recognize, but, on the contrary, willfully violated
his obligation to maintain the respect due to courts and judicial officers. "This
obligation is not discharged by merely observing the rules of courteous
demeanor in open court, but it includes abstaining out of court from all
insulting language and offensive conduct toward the judges personally for
their official acts."Bradley v. Fisher, 13 Wall. (U.S.) 355, 20 L. Ed. 646. And
there appears to be no distinction, as regards the principle involved, between
the indignity of an assault by an attorney upon a judge, induced by his official
act, and a personal insult for like cause by written or spoken words addressed
to the judge in his chambers or at his home or elsewhere. Either act
constitutes misconduct wholly different from criticism of judicial acts
addressed or spoken to others. The distinction made is, we think entirely
logical and well sustained by authority. It was recognized in Ex parte
McLeod supra. While the court in that case, as has been shown, fully
sustained the right of a citizen to criticise rulings of the court in actions which
are ended, it held that one might be summarily punished for assaulting a
judicial officer, in that case a commissioner of the court, for his rulings in a
PINEDAPCGRNMAN
cause wholly concluded. "Is it in the power of any person," said the court, "by
insulting or assaulting the judge because of official acts, if only the assailant
restrains his passion until the judge leaves the building, to compel the judge
to forfeit either his own self-respect to the regard of the people by tame
submission to the indignity, or else set in his own person the evil example of
punishing the insult by taking the law in his own hands? ... No high-minded,
manly man would hold judicial office under such conditions."
That a communication such as this, addressed to the Judge personally,
constitutes professional delinquency for which a professional punishment
may be imposed, has been directly decided. "An attorney who, after being
defeated in a case, wrote a personal letter to the trial justice, complaining of
his conduct and reflecting upon his integrity as a justice, is guilty of
misconduct and will be disciplined by the court." Matter of Manheim 133 App.
Div. 136, 99 N.Y. Supp. 87 The same is held in Re Griffin (City Ct.) 1 N.Y. 7
and in Re Wilkes (City Ct.) 3 N.Y. In the latter case it appeared that the
accused attorney had addressed a sealed letter to a justice of the City Court
of New York, in which it was stated, in reference to his decision: "It is not law;
neither is it common sense. The result is I have been robbed of 80." And it
was decided that, while such conduct was not a contempt under the state,
the matter should be "called to the attention of the Supreme Court, which has
power to discipline the attorney." "If," says the court, "counsel learned in the
law are permitted by writings leveled at the heads of judges, to charge them
with ignorance, with unjust rulings, and with robbery, either as principals or
accessories, it will not be long before the general public may feel that they
may redress their fancied grievances in like manner, and thus the lot of a
judge will be anything but a happy one, and the administration of justice will
fall into bad repute."
The recent case of Johnson v. State (Ala.) 44 South. 671, was in this respect
much the same as the case at bar. The accused, an attorney at law, wrote
and mailed a letter to the circuit judge, which the latter received by due course
of mail, at his home, while not holding court, and which referred in insulting
terms to the conduct of the judge in a cause wherein the accused had been
one of the attorneys. For this it was held that the attorney was rightly
disbarred in having "willfully failed to maintain respect due to him [the judge]
as a judicial officer, and thereby breached his oath as an attorney." As
recognizing the same principle, and in support of its application to the facts
of this case, we cite the following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L.
Ed. 214; Beene v. State, 22 Ark. 149;Commonwealth v. Dandridge, 2 Va.
Cas. 408; People v. Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49 Am. Rep.
351; Smith's Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's Appeal, 186 Pa. 270,
Atl. 481.
Our conclusion is that the charges against the accused have been so far
sustained as to make it our duty to impose such a penalty as may be sufficient
lesson to him and a suitable warning to others. ...
11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's
suspension for 18 months for publishing a letter in a newspaper in which he
accused a judge of being under the sinister influence of a gang that had
paralyzed him for two years.
12. In In Re Graves, 221 Pac. 411, the court held that an attorney's
unjustifiable attack against the official acts and decisions of a judge
constitutes "moral turpitude." There, the attorney was disbarred for criticising
not only the judge, but his decisions in general claiming that the judge was
dishonest in reaching his decisions and unfair in his general conduct of a
case.
13. In In Re Doss, 12 N.E. 2d 659, an attorney published newspaper articles
after the trial of cases, criticising the court in intemperate language. The
invariable effect of this sort of propaganda, said the court, is to breed
disrespect for courts and bring the legal profession into disrepute with the
public, for which reason the lawyer was disbarred.
14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied with the
loss of a case, prepared over a period of years vicious attacks on jurists. The
Oklahoma Supreme Court declared that his acts involved such gross moral
turpitude as to make him unfit as a member of the bar. His disbarment was
ordered, even though he expressed an intention to resign from the bar.
The teaching derived from the above disquisition and impressive affluence of
judicial pronouncements is indubitable: Post-litigation utterances or
publications, made by lawyers, critical of the courts and their judicial
Page 163
actuations, whether amounting to a crime or not, which transcend the
permissible bounds of fair comment and legitimate criticism and thereby tend
to bring them into disrepute or to subvert public confidence in their integrity
LEGAL ETHICS
and in the orderly administration of justice, constitute grave professional
misconduct which may be visited with disbarment or other lesser appropriate
disciplinary sanctions by the Supreme Court in the exercise of the
prerogatives inherent in it as the duly constituted guardian of the morals and
ethics of the legal fraternity.
Of course, rarely have we wielded our disciplinary powers in the face of
unwarranted outbursts of counsel such as those catalogued in the above-
cited jurisprudence. Cases of comparable nature have generally been
disposed of under the power of courts to punish for contempt which, although
resting on different bases and calculated to attain a different end,
nevertheless illustrates that universal abhorrence of such condemnable
practices.
A perusal of the more representative of these instances may afford
enlightenment.
1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel branded the denial
of his motion for reconsideration as "absolutely erroneous and constituting
an outrage to the rigths of the petitioner Felipe Salcedo and a mockery of the
popular will expressed at the polls," this Court, although conceding that
It is right and plausible that an attorney, in defending the cause and rights of
his client, should do so with all the fervor and energy of which he is capable,
but it is not, and never will be so for him to exercise said right by resorting to
intimidation or proceeding without the propriety and respect which the dignity
of the courts requires. The reason for this is that respect for the courts
guarantees the stability of their institution. Without such guaranty, said
institution would be resting on a very shaky foundation,
found counsel guilty of contempt inasmuch as, in its opinion, the statements
made disclosed
... an inexcusable disrespect of the authority of the court and an intentional
contempt of its dignity, because the court is thereby charged with no less
than having proceeded in utter disregard of the laws, the rights to the parties,
and 'of the untoward consequences, or with having abused its power and
mocked and flouted the rights of Attorney Vicente J. Francisco's client ... .
2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the Press
Freedom Law, reaching to, the imprisonment for contempt of one Angel
Parazo, who, invoking said law, refused to divulge the source of a news item
carried in his paper, caused to be published in i local newspaper a statement
expressing his regret "that our High Tribunal has not only erroneously
interpreted said law, but it is once more putting in evidence the incompetency
or narrow mindedness of the majority of its members," and his belief that "In
the wake of so many blunders and injustices deliberately committed during
these last years, ... the only remedy to put an end to go much evil, is to
change the members of the Supreme Court," which tribunal he denounced
as "a constant peril to liberty and democracy" and "a far cry from the
impregnable bulwark of justice of those memorable times of Cayetano
Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who were
the honor and glory of the Philippine Judiciary." He there also announced that
one of the first measures he would introduce in then forthcoming session of
Congress would have for its object the complete reorganization of the
Supreme Court. Finding him in contempt, despite his avowals of good faith
and his invocation of the guarantee of free speech, this Court declared:
But in the above-quoted written statement which he caused to be published
in the press, the respondent does not merely criticize or comment on the
decision of the Parazo case, which was then and still is pending consideration
by this Court upon petition of Angel Parazo. He not only intends to intimidate
the members of this Court with the presentation of a bill in the next Congress,
of which he is one of the members, reorganizing the Supreme Court and
reducing the number of Justices from eleven, so as to change the members
of this Court which decided the Parazo case, who according to his statement,
are incompetent and narrow minded, in order to influence the final decision of
said case by this Court, and thus embarrass or obstruct the administration of
justice. But the respondent also attacks the honesty and integrity of this Court
for the apparent purpose of bringing the Justices of this Court into disrepute
and degrading the administration. of justice ... .
To hurl the false charge that this Court has been for the last years committing
deliberately so many blunders and injustices, that is to say, that it has been
deciding in favor of Que party knowing that the law and justice is on the part
of the adverse party and not on the one in whose favor the decision was
rendered, in many cases decided during the last years, would tend
necessarily to undermine the confidence of the people in the honesty and
integrity of the members of this Court, and consequently to lower ,or degrade
PINEDAPCGRNMAN
the administration of justice by this Court. The Supreme Court of the
Philippines is, under the Constitution, the last bulwark to which the Filipino
people may repair to obtain relief for their grievances or protection of their
rights when these are trampled upon, and if the people lose their confidence
in the honesty and integrity of the members of this Court and believe that
they cannot expect justice therefrom, they might be driven to take the law into
their own hands, and disorder and perhaps chaos might be the result. As a
member of the bar and an officer of the courts, Atty. Vicente Sotto, like any
other, is in duty bound to uphold the dignity and authority of this Court, to
which he owes fidelity according to the oath he has taken as such attorney, and
not to promote distrust in the administration of justice. Respect to the courts
guarantees the stability of other institutions, which without such guaranty
would be resting on a very shaky foundation.
Significantly, too, the Court therein hastened to emphasize that
... an attorney as an officer of the court is under special obligation to be
respectful in his conduct and communication to the courts; he may be
removed from office or stricken from the roll of attorneys as being guilty of
flagrant misconduct (17 L.R.A. [N.S.], 586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against Alfonso
Ponce Enrile, et al., supra, where counsel charged this Court with having
"repeatedly fallen" into ,the pitfall of blindly adhering to its previous
"erroneous" pronouncements, "in disregard of the law on jurisdiction" of the
Court of Industrial Relations, our condemnation of counsel's misconduct was
unequivocal. Articulating the sentiments of the Court, Mr. Justice Sanchez
stressed:
As we look back at the language (heretofore quoted) employed in the motion
for reconsideration, implications there are which inescapably arrest attention.
It speaks of one pitfall into which this Court has repeatedly fallen whenever
the jurisdiction of the Court of Industrial Relations comes into question. That
pitfall is the tendency of this Court to rely on its own pronouncements in
disregard of the law on jurisdiction. It makes a sweeping charge that the
decisions of this Court, blindly adhere to earlier rulings without as much as
making any reference to and analysis of the pertinent statute governing the
jurisdiction of the industrial court. The plain import of all these is that this
Court is so patently inept that in determining the jurisdiction of the industrial
court, it has committed error and continuously repeated that error to the point
of perpetuation. It pictures this Court as one which refuses to hew to the line
drawn by the law on jurisdictional boundaries. Implicit in the quoted
statements is that the pronouncements of this Court on the jurisdiction of the
industrial court are not entitled to respect. Those statements detract much
from the dignity of and respect due this Court. They bring into question the
capability of the members — and some former members of this Court to
render justice. The second paragraph quoted yields a tone of sarcasm which
counsel labelled as "so called" the "rule against splitting of jurisdiction."
Similar thoughts and sentiments have been expressed in other
cases 18 which, in the interest of brevity, need not now be reviewed in detail.
Of course, a common denominator underlies the aforecited cases — all of
them involved contumacious statements made in pleadings filed pending
litigation. So that, in line with the doctrinal rule that the protective mantle of
contempt may ordinarily be invoked only against scurrilous remarks or
malicious innuendoes while a court mulls over a pending case and not after
the conclusion thereof, 19 Atty. Almacen would now seek to sidestep the
thrust of a contempt charge by his studied emphasis that the remarks for
which he is now called upon to account were made only after this Court had
written finis to his appeal. This is of no moment.
The rule that bars contempt after a judicial proceeding has terminated, has
lost much of its vitality. For sometime, this was the prevailing view in this
jurisdiction. The first stir for a modification thereof, however, came when,
inPeople vs. Alarcon, 20 the then Chief Justice Manuel V. Moran dissented
with the holding of the majority, speaking thru Justice Jose P. Laurel, which
upheld the rule above-adverted to. A complete disengagement from the
settled rule was later to be made in In re Brillantes, 21 a contempt proceeding,
where the editor of the Manila Guardian was adjudged in contempt for
publishing an editorial which asserted that the 1944 Bar Examinations were
conducted in a farcical manner after the question of the validity of the said
examinations had been resolved and the case closed. Virtually, this was an
adoption of the view expressed by Chief Justice Moran in his dissent in
Page 164
Alarcon to the effect that them may still be contempt by publication even after
a case has been terminated. Said Chief Justice Moran in Alarcon:
LEGAL ETHICS
A publication which tends to impede, obstruct, embarrass or influence the
courts in administering justice in a pending suit or proceeding, constitutes
criminal contempt which is 'summarily punishable by courts. A publication
which tends to degrade the courts and to destroy public confidence in them
or that which tends to bring them in any way into disrepute, constitutes
likewise criminal contempt, and is equally punishable by courts. What is
sought, in the first kind of contempt, to be shielded against the influence of
newspaper comments, is the all-important duty of the courts to administer
justice in the decision of a pending case. In the second kind of contempt, the
punitive hand of justice is extended to vindicate the courts from any act or
conduct calculated to bring them into disfavor or to destroy public confidence
in them. In the first there is no contempt where there is no action pending, as
there is no decision which might in any way be influenced by the newspaper
publication. In the second, the contempt exists, with or without a pending
case, as what is sought to be protected is the court itself and its dignity.
Courts would lose their utility if public confidence in them is destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the circumstance that
his statements and actuations now under consideration were made only after
the judgment in his client's appeal had attained finality. He could as much be
liable for contempt therefor as if it had been perpetrated during the pendency
of the said appeal.
More than this, however, consideration of whether or not he could be held
liable for contempt for such post litigation utterances and actuations, is here
immaterial. By the tenor of our Resolution of November 17, 1967, we have
confronted the situation here presented solely in so far as it concerns Atty.
Almacen's professional identity, his sworn duty as a lawyer and his fitness as
an officer of this Court, in the exercise of the disciplinary power the morals
inherent in our authority and duty to safeguard and ethics of the legal
profession and to preserve its ranks from the intrusions of unprincipled and
unworthy disciples of the noblest of callings. In this inquiry, the pendency or
non-pendency of a case in court is altogether of no consequence. The sole
objective of this proceeding is to preserve the purity of the legal profession,
by removing or suspending a member whose misconduct has proved himself
unfit to continue to be entrusted with the duties and responsibilities belonging
to the office of an attorney.
Undoubtedly, this is well within our authority to do. By constitutional mandate,
22 our is the solemn duty, amongst others, to determine the rules for
admission to the practice of law. Inherent in this prerogative is the
corresponding authority to discipline and exclude from the practice of law
those who have proved themselves unworthy of continued membership in
the Bar. Thus —
The power to discipline attorneys, who are officers of the court, is an inherent
and incidental power in courts of record, and one which is essential to an
orderly discharge of judicial functions. To deny its existence is equivalent to
a declaration that the conduct of attorneys towards courts and clients is not
subject to restraint. Such a view is without support in any respectable
authority, and cannot be tolerated. Any court having the right to admit
attorneys to practice and in this state that power is vested in this court-has
the inherent right, in the exercise of a sound judicial discretion to exclude
them from practice. 23
This, because the admission of a lawyer to the practice of law is a
representation to all that he is worthy of their confidence and respect. So
much so that —
... whenever it is made to appear to the court that an attorney is no longer
worthy of the trust and confidence of the public and of the courts, it becomes,
not only the right, but the duty, of the court which made him one of its officers,
and gave him the privilege of ministering within its bar, to withdraw the
privilege. Therefore it is almost universally held that both the admission and
disbarment of attorneys are judicial acts, and that one is admitted to the bar
and exercises his functions as an attorney, not as a matter of right, but as a
privilege conditioned on his own behavior and the exercise of a just and
sound judicial discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend has risen above
being a mere inherent or incidental power. It has been elevated to an express
mandate by the Rules of Court. 25
Our authority and duty in the premises being unmistakable, we now proceed
to make an assessment of whether or not the utterances and actuations of
Atty. Almacen here in question are properly the object of disciplinary
sanctions.
PINEDAPCGRNMAN
The proffered surrender of his lawyer's certificate is, of course, purely
potestative on Atty. Almacen's part. Unorthodox though it may seem, no
statute, no law stands in its way. Beyond making the mere offer, however, he
went farther. In haughty and coarse language, he actually availed of the said
move as a vehicle for his vicious tirade against this Court. The integrated
entirety of his petition bristles with vile insults all calculated to drive home his
contempt for and disrespect to the Court and its members. Picturing his client
as "a sacrificial victim at the altar of hypocrisy," he categorically denounces
the justice administered by this Court to be not only blind "but also deaf and
dumb." With unmitigated acerbity, he virtually makes this Court and its
members with verbal talons, imputing to the Court the perpetration of "silent
injustices" and "short-cut justice" while at the same time branding its
members as "calloused to pleas of justice." And, true to his announced threat
to argue the cause of his client "in the people's forum," he caused the
publication in the papers of an account of his actuations, in a calculated effort
;to startle the public, stir up public indignation and disrespect toward the
Court. Called upon to make an explanation, he expressed no regret, offered
no apology. Instead, with characteristic arrogance, he rehashed and
reiterated his vituperative attacks and, alluding to the Scriptures, virtually
tarred and feathered the Court and its members as inveterate hypocrites
incapable of administering justice and unworthy to impose disciplinary
sanctions upon him.
The virulence so blatantly evident in Atty. Almacen's petition, answer and oral
argumentation speaks for itself. The vicious language used and the scurrilous
innuendoes they carried far transcend the permissible bounds of legitimate
criticism. They could never serve any purpose but to gratify the spite of an
irate attorney, attract public attention to himself and, more important of all,
bring ;this Court and its members into disrepute and destroy public
confidence in them to the detriment of the orderly administration of justice.
Odium of this character and texture presents no redeeming feature, and
completely negates any pretense of passionate commitment to the truth. It is
not a whit less than a classic example of gross misconduct, gross violation of
the lawyer's oath and gross transgression of the Canons of Legal Ethics. As
such, it cannot be allowed to go unrebuked. The way for the exertion of our
disciplinary powers is thus laid clear, and the need therefor is unavoidable.
We must once more stress our explicit disclaimer of immunity from criticism.
Like any other Government entity in a viable democracy, the Court is not, and
should not be, above criticism. But a critique of the Court must be intelligent
and discriminating, fitting to its high function as the court of last resort. And
more than this, valid and healthy criticism is by no means synonymous to
obloquy, and requires detachment and disinterestedness, real qualities
approached only through constant striving to attain them. Any criticism of the
Court must, possess the quality of judiciousness and must be informed -by
perspective and infused by philosophy. 26
It is not accurate to say, nor is it an obstacle to the exercise of our authority
in ;the premises, that, as Atty. Almacen would have appear, the members of
the Court are the "complainants, prosecutors and judges" all rolled up into
one in this instance. This is an utter misapprehension, if not a total distortion,
not only of the nature of the proceeding at hand but also of our role therein.
Accent should be laid on the fact that disciplinary proceedings like the
present are sui generis. Neither purely civil nor purely criminal, this
proceeding is not — and does not involve — a trial of an action or a suit, but
is rather an investigation by the Court into the conduct of its officers. 27 Not
being intended to. inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein It may be
initiated by the Court motu proprio. 28 Public interest is its primary objective,
and the real question for determination is whether or not the attorney is still
a fit person to be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to
account for his actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by their
misconduct have proved themselves no longer worthy to be entrusted with
the duties and responsibilities pertaining to the office of an attorney. 29 In
such posture, there can thus be no occasion to speak of a complainant or a
prosecutor.
Page 165
Undeniably, the members of the Court are, to a certain degree, aggrieved
parties. Any tirade against the Court as a body is necessarily and inextricably
as much so against the individual members thereof. But in the exercise of its
LEGAL ETHICS
disciplinary powers, the Court acts as an entity separate and distinct from the
individual personalities of its members. Consistently with the intrinsic nature
of a collegiate court, the individual members act not as such individuals but.
only as a duly constituted court. Their distinct individualities are lost in the
majesty of their office.30 So that, in a very real sense, if there be any
complainant in the case at bar, it can only be the Court itself, not the individual
members thereof — as well as the people themselves whose rights, fortunes
and properties, nay, even lives, would be placed at grave hazard should the
administration of justice be threatened by the retention in the Bar of men unfit
to discharge the solemn responsibilities of membership in the legal fraternity.
Finally, the power to exclude persons from the practice of law is but a
necessary incident of the power to admit persons to said practice. By
constitutional precept, this power is vested exclusively in this Court. This duty
it cannot abdicate just as much as it cannot unilaterally renounce jurisdiction
legally invested upon it. 31 So that even if it be conceded that the members
collectively are in a sense the aggrieved parties, that fact alone does not and
cannot disqualify them from the exercise of that power because public policy
demands that they., acting as a Court, exercise the power in all cases which
call for disciplinary action. The present is such a case. In the end, the
imagined anomaly of the merger in one entity of the personalities of
complainant, prosecutor and judge is absolutely inexistent.
Last to engage our attention is the nature and extent of the sanctions that
may be visited upon Atty. Almacen for his transgressions. As marked out by
the Rules of Court, these may range from mere suspension to total removal
or disbarment. 32 The discretion to assess under the circumstances the
imposable sanction is, of course, primarily addressed to the sound discretion
of the Court which, being neither arbitrary and despotic nor motivated by
personal animosity or prejudice, should ever be controlled by the imperative
need that the purity and independence of the Bar be scrupulously guarded
and the dignity of and respect due to the Court be zealously maintained.
That the misconduct committed by Atty. Almacen is of considerable gravity
cannot be overemphasized. However, heeding the stern injunction that
disbarment should never be decreed where a lesser sanction would
accomplish the end desired, and believing that it may not perhaps be futile
to hope that in the sober light of some future day, Atty. Almacen will realize
that abrasive language never fails to do disservice to an advocate and that
in every effervescence of candor there is ample room for the added glow of
respect, it is our view that suspension will suffice under the circumstances.
His demonstrated persistence in his misconduct by neither manifesting
repentance nor offering apology therefor leave us no way of determining how
long that suspension should last and, accordingly, we are impelled to decree
that the same should be indefinite. This, we are empowered to do not alone
because jurisprudence grants us discretion on the matter 33 but also because,
even without the comforting support of precedent, it is obvious that if we have
authority to completely exclude a person from the practice of law, there is no
reason why indefinite suspension, which is lesser in degree and effect, can
be regarded as falling outside of the compass of that authority. The merit of
this choice is best shown by the fact that it will then be left to Atty. Almacen
to determine for himself how long or how short that suspension shall last. For,
at any time after the suspension becomes effective he may prove to this
Court that he is once again fit to resume the practice of law.
ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul
Almacen be, as he is hereby, suspended from the practice of law until further
orders, the suspension to take effect immediately.
Let copies of this resolution. be furnished the Secretary of Justice, the
Solicitor General and the Court of Appeals for their information and guidance.
CANON 12 – A LAWYER SHALL EXERT EVERY EFFORT AND
CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT
ADMINISTRATION OF JUSTICE.
ROC RULE 138
Section 20. Duties of attorneys. — It is the duty of an attorney:
(g) Not to encourage either the commencement or the continuance of an
action or proceeding, or delay any man's cause, from any corrupt motive or
interest;
Rule 12.01 – A lawyer shall not appear for trial unless he has adequately
prepared himself with the law and the facts of his case, the evidence he
PINEDAPCGRNMAN
will adduce and the order of its preference. He should also be ready
with the original documents for comparison with the copies.
 Newly hired counsel: must acquaint himself with all the
antecedent proceedings and processes that have transpired in
the record prior to his takeover.
 If presenting documentary exhibits, he must be ready with the
originals for the purpose of comparison with copies thereof.
Rule 18.02 - A lawyer shall not handle any legal matter without adequate
preparation.
[A.C. No. 4762. June 28, 2004]
LINDA VDA. DE ESPINO, complainant, vs. ATTY. PEPITO C.
PRESQUITO, respondent.
RESOLUTION
PUNO, J.:
On June 9, 1997, Linda Vda. de Espino wrote a letter-complaint[1] with the
then Court Administrator Alfredo Benipayo, charging respondent Atty. Pepito
C. Presquito, a member of the Integrated Bar of the Philippines (IBP),
Misamis Oriental Chapter, for having employed fraud, trickery and dishonest
means in refusing to honor and pay [her] late husband Virgilio Espino, when
he was still alive, the sum of P763,060.00. According to complainant,
respondents unlawful refusal and dilatory tactics partly triggered the death of
her husband, who died disillusioned and embittered.[2] The letter-complaint
and affidavit also alleged that notwithstanding the numerous oral demands
by Mr. Espino and complainant (after the death of Mr. Espino), respondent
still refused to pay the amounts represented by the eight checks which had
all been dishonored. Complainant surmised that Atty. Presquitos refusal to
pay may be due to his reliance on the influence of his father-in-law, a former
Executive Judge of the RTC (Cagayan de Oro), and of his uncle, an RTC
judge (Cagayan de Oro).
The records show that sometime in September 1995, respondent was
introduced to complainants late husband, Mr. Virgilio M. Espino. Mr. Espino,
a resident of Davao City, had sought the assistance of respondent, a resident
of Cagayan de Oro, regarding the sale of his piece of land with an area of
11,057.59 sq.m. situated in Misamis Oriental. The discussion between Mr.
Espino and the respondent resulted in the sale of the property to
respondent.[3] Under the terms of the agreement between Mr. Espino and
respondent,[4] the purchase price of the land was P1,437,410.00, payable on
a staggered basis and by installments.[5] Pursuant to the terms of payment in
the agreement, respondent issued eight post-dated checks,
totalingP736,060.00.[6] Respondent then entered into a joint venture or
partnership agreement with Mrs. Guadalupe Ares for the subdivision of the
land into home-size lots and its development, with a portion of the land
retained by respondent for his own use.[7] The land was eventually titled in
the name of respondent and Mrs. Ares, and subdivided into 35 to 36 lots.
Meanwhile, the eight post-dated checks issued by respondent were all
dishonored. Mr. Espino made repeated demands for payment from
respondent but the latter refused. Mr. Espino died in December 1996. His
widow, complainant, then tried to collect from respondent the value of the
eight checks. When complainants numerous pleas remained unheeded, she
filed the complaint in June 1997.
In his comment dated September 22, 1997, respondent denied any
wrongdoing, and said that the allegations that he had employed fraud,
trickery and dishonest means with the late Mr. Espino were totally false and
baseless. The complaint, according to respondent, stemmed from
complainants lack of knowledge as to the real story of the transaction
between complainants husband and respondent. He also vehemently took
exception to the imputation that he was banking on the influence of his father-
in-law and uncle-in-law.
Respondent does not deny the issuance of the eight checks. What
respondent claims, however, is that the nonpayment was justified by the
unresolved problems he and Mrs. Ares have with respect to the right-of-way
of the land. He alleged that Mr. Espino had made assurances that the land
had a right-of-way required for its development, but respondent later found
out that such road-right-of-way required the consent of four other land
Page 166
owners, and the expense would be considerably more than he was made to
believe. According to respondent, he and Mr. Espino had agreed that the
latter would not encash the checks or demand the equivalent of the same
LEGAL ETHICS
until the right-of-way problem of the land had been resolved.[8] Respondents
position is that until the problem of obtaining a right-of-way to the land has
been resolved, nothing has yet accrued against him or Mrs. Ares (his
partner), as it would be very unfair and unjust for them to pay Mr. Espino
when the land could not be developed and sold.[9]
Respondent also alleged that he was entitled to set-off against the amount
he owes Mr. Espino or his heirs from the purchase of the land, the advances
he made to Mr. Espino, and the cost he incurred when he defended Mr.
Espinos son in a criminal case. He later on manifested that he has fully paid
the portion of the land which had been titled in his name through the same
advances and incurred expenses.[10]
In a resolution dated November 26, 1997,[11] the case was referred to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation/decision, and assigned to the IBP-Commission on Bar
Discipline (CBD).
In the IBP-CBD report dated November 12, 2002,[12] Investigating
Commissioner Caesar R. Dulay found that the facts and credible evidence
made available in this case indubitably establish respondents failure to live
up to the demands of the Lawyers Code of Professional Responsibility and
the Canons of Professional Ethics. For having failed to act with candor and
fairness toward complainant, Commissioner Dulay recommended that
respondent be suspended from the practice of law for six (6) months, and
ordered to immediately account with complainant regarding the sale of the
piece of land which had been subdivided in the name of respondent and his
business partner. On June 21, 2003, the Board of Governors of the IBP
passed a Resolution adopting/approving the Report and Recommendation of
Commissioner Dulay, finding that respondents lack of fairness and candor
and honesty [was] in violation of Rule 1.01 of the Code of Professional
Responsibility.
After a careful consideration of the record of the instant case, we agree that
respondent was wanting in fairness, candor and honesty demanded of him
by the Code of Professional Responsibility and the Canons of Professional
Ethics. We find, however, the recommended penalty of six (6) months
suspension too light considering respondents gross misconduct.
Complainants testimony and exhibits have clearly established that: (1) there
was an agreement between respondent and complainants late husband for
the sale of the latters land; (2) respondent had issued the eight checks in
connection with said agreement; (3) these checks were dishonored and
remain unpaid; and (4) the land sold had an existing road-right-of-
way.Complainants exhibits were formally offered as early as January 6,
1999,[13] and were admitted without objection from respondent.[14]
In the face of these uncontroverted facts, it was incumbent upon respondent
to prove a legal excuse or defense for nonpayment of the eight checks.
Respondent utterly failed in this regard.
From the termination of complainants presentation of evidence on December
1998 until Commissioner Dulays report on November 12, 2002, the records
show that respondent was unable to present evidence - either testimonial or
documentary - to prove that he had legal cause to refuse payment, or that he
was entitled to legal compensation. Even respondents own statements -
which, without corroborating evidence, remain mere self-serving allegations
- fall short of testimony, as he failed to submit to cross-examination by
opposing counsel or for clarificatory questions by the IBP-CBD. Worse,
respondent attached eighteen documents to his comment, but only went so
far as to mark (without a formal offer) the agreement between him and Mr.
Espino (for the sale of the land), and the partnership agreement between him
and Mrs. Ares. Thus, respondent had no evidence other than his own
allegations.
Respondents failure to present evidence is a breach of Rule 12.01 of the
Code of Professional Responsibility,[15] especially in the light of the numerous
postponements and resettings he requested for and was granted with, on the
ground that he needed more time to prepare his evidence. We note that
respondent was first scheduled to present his evidence on December 14,
1998. Two years - five resettings, and three orders submitting the case for
resolution - later, respondent still had not proffered testimonial or
documentary evidence.
Respondent claims that his failure to present evidence was due to his
financial difficulties, i.e., he could not afford to spend for travel expenses of
his witnesses.[16] We are not persuaded. First, it boggles the mind how
financial constraints could have prevented respondent from presenting the
originals of the documents attached to his comment, proving, among others,
PINEDAPCGRNMAN
the alleged advances and costs on Mr. Espinos behalf. The originals of these
documents are presumably in his possession. Second, with respect to the
absence of testimony, respondent could have submitted the affidavits of his
witnesses - the taking of which he could have done himself in Cagayan de
Oro to keep down the cost. The records are clear that he was allowed this
option.[17] But he did neither.
All these circumstances lead us to the ineluctable conclusion that respondent
could not present evidence because there really was none to justify his
nonpayment.[18]
Even if we were to excuse respondents procedural lapse and consider his
written pleadings as testimony, we agree with Commissioner Dulay that
respondents problems with respect to the right-of-way or his partnership with
Mrs. Ares do not excuse his nonpayment. As stated in the IBP-CBD report:
[T]he solution to the right-of-way problem however clearly lies in the hands
of respondent.We note that respondent has already taken title over the
property together with Guadalupe Ares by making complainants late
husband, sign over the property by way of the Deed of Sale. We therefore
find respondents position vis--vis the widowed complainant sneaky and
unfair. We reiterate that respondent has assumed responsibility for the
negotiations on the road-right-of-way and was aware of the problem. To [sic]
our mind he has used the alleged road-right-of-way problem only as an
afterthought and a reason to delay and in fact deny the complainant payment
of what is due her. Respondent also alleges and blames the deceased
husband of complainant for the failed project but the facts show
otherwise. They are just bare allegations and remain
unsubstantiated. Besides, respondent and Ares took risks in the business
venture and are now the titled owners of the property. The seller cannot be
blamed for any failure in the project. Respondents actuations in the whole
transaction is [sic] not at par with the standards demanded of him as a
member of the bar. Respondent is lacking in fairness and candour [sic] and
honesty. The fact that he has unreasonably delayed and failed to account
with complainant for a long time and the fact of his having allowed the checks
he issued to bounce is [sic] unacceptable and censurable behavior for a
member of the bar.[19] [citations omitted]
Having no legal defense to refuse payment of the eight dishonored checks,
respondents indifference to complainants entreaties for payment was
conduct unbecoming of a member of the bar and an officer of the court.
Respondent violated the Code of Professional Responsibility by his unlawful,
dishonest and deceitful conduct towards complainant and her late
husband,[20] first by allowing the eight (8) checks he issued to bounce, then
by ignoring the repeated demands for payment until complainant was forced
to file this complaint, and finally by deliberately delaying the disposition of this
case with dilatory tactics. Considering that the property of complainant and
her late husband is already in respondent and Mrs. Ares name, the injustice
of respondents different maneuvers to evade payment of the eight checks -
due and unpaid since 1996 - becomes more manifest.
It should be stressed that respondent issued eight (8) worthless checks,
seemingly without regard to its deleterious effects to public interest and public
order. We have already declared, most recently in Lao v. Medel,[21] that the
issuance of worthless checks constitutes gross misconduct, and puts the
erring lawyers moral character in serious doubt, though it is not related to his
professional duties as a member of the bar.[22] He not only sets himself liable
for a serious criminal offense under B.P. Blg. 22, but also transgresses the
Code of Professional Responsibility, specifically the mandate of Canon 1 to
obey the laws of the land and promote the respect for law.
It behooves respondent to remember that a lawyer may be suspended or
disbarred for any misconduct, even if it pertains to his private activities, as
long as it shows him to be wanting in moral character, honesty, probity or
good demeanor. Possession of good moral character is not only a good
condition precedent to the practice of law, but a continuing qualification for
all members of the bar.[23] A lawyer may be disciplined for any conduct, in his
professional or private capacity, that renders him unfit to continue to be an
officer of the court.[24] Thus, the Code of Professional Responsibility provides:
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
xxx xxx xxx
Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his
Page 167
fitness to practice law, nor shall he, whether in public or private life, behave
in a scandalous manner to the discredit of the legal profession.
LEGAL ETHICS
Given the foregoing, and in line with jurisprudence involving lawyers who
issued worthless checks - Lao v. Medel,[25] Co v. Bernardino,[26] and Ducat v.
Villalon, Jr.,[27] - we find respondents reprehensible conduct warrants
suspension from the practice of law for one (1) year.
WHEREFORE, respondent ATTY. PEPITO C. PRESQUITO is found guilty
of gross misconduct and is hereby SUSPENDED from the practice of law for
one (1) year, and ORDERED to immediately account with complainant
regarding the sale of the piece of land, which has been subdivided in the
name of respondent and his business partner.
Let a copy of this decision be spread in his file at the Office of the Bar
Confidant and of the Integrated Bar of the Philippines.
SO ORDERED.
Rule 12.02 – A lawyer shall not file multiple actions arising from the
same cause.
 Forum shopping – omission to disclose pendency of appeal
or prior dismissal of his case by a court of concurrent
jurisdiction.
 Forum shopping exists when as a result of an adverse
opinion in one forum:
1. a party seeks favorable opinion (other than by appeal or
certiorari) in another; or
2. when he institutes two or more actions or proceedings
grounded on the same cause, on the gamble that one or the
other would make a favorable disposition (Benguet Electric
Corp. vs. Flores, 287 SCRA 449, March 12, 1998).
 The most important factor in determining the existence of
forum-shopping is the VEXATION caused the courts and
party-litigants by a party who asks different courts to rule on
the same related causes, asking the same relief.
 Forum shopping constitutes DIRECT CONTEMPT of court
and may subject the offending lawyer to disciplinary action.
Rule 12.03 – A lawyer shall not, after obtaining extensions of time to file
pleadings, memoranda or briefs, let the period lapse without submitting
the same or offering an explanation for his failure to do so.
 Asking for extension of time must be in good faith.
PINEDAPCGRNMAN
of complainant, complainant filed a Motion to Quash the Information which
the trial court granted.[2] Respondents Motion for Reconsideration of the
quashal of the Information was denied[3]
Respondent also filed six other criminal complaints against complainant for
violation of Article 31 of Republic Act No. 6938 (Cooperative Code of the
Philippines) before the Office of the Provincial Prosecutor, but he eventually
filed a Motion to Withdraw them.[4]
On October 10, 2001, complainant, who was Chairperson of the General
Mariano Alvarez Service Cooperative, Inc. (GEMASCO), received a Notice
of Special General Assembly of GEMASCO on October 14, 2001 to consider
the removal of four members of the Board of Directors (the Board), including
her and the General Manager.[5] The notice was signed by respondent.
At the October 14, 2001 Special General Assembly presided by respondent
and PNP Sr. Supt. Angelito L. Gerangco (Gerangco), who were not members
of the then current Board,[6] Gerango, complainants predecessor, as Chair of
the GEMASCO board, declared himself Chair, appointed others to replace
the removed directors, and appointed respondent as Board Secretary.
On October 15, 2001, respondent and his group took over the GEMASCO
office and its premises, the pumphouses, water facilities, and operations. On
even date, respondent sent letter-notices to complainant and the four
removed directors informing them of their removal from the Board and as
members of GEMASCO, and advising them to cease and desist from further
discharging the duties of their positions.[7]
Complainant thus filed on October 16, 2001 with the Cooperative
Development Authority (CDA)-Calamba a complaint for annulment of the
proceedings taken during the October 14, 2001 Special General Assembly.
The CDA Acting Regional Director (RD), by Resolution of February 21, 2002,
declared the questioned general assembly null and void for having been
conducted in violation of GEMASCOs By-Laws and the Cooperative Code of
the Philippines.[8] The RDs Resolution of February 21, 2002 was later vacated
for lack of jurisdiction[9] of CDA.

ATTY. ILUMINADA M. VAFLOR- A.C. No. 6273 In her present complainant[10] against respondent for disbarment,
FABROA, complainant alleged that respondent:
Complainant, Present:
X X X PROMOTED OR SUED A GROUNDLESS, FALSE OR UNLAWFUL
PUNO, C.J., SUIT, AND GAVE AID AND CONSENT TO THE SAME[11]
CARPIO,
CORONA, X X X DISOBEYED LAWS OF THE LAND, PROMOTE[D] DISRESPECT
- versus - CARPIO MORALES, FOR LAW AND THE LEGAL PROFESSION[12]
VELASCO, JR.,
NACHURA, X X X DID NOT CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND
ATTY. OSCAR PAGUINTO, LEONARDO-DE CANDOR TOWARD HIS PROFESSIONAL COLLEAGUE AND ENGAGED
Respondent. CASTRO, IN HARASSING TACTICS AGAINST OPPOSING COUNSEL[13]
BRION,
PERALTA, X X X VIOLATED CANON 19 A LAWYER SHALL REPRESENT HIS CLIENT
BERSAMIN, WITH ZEAL WITHIN THE BOUNDS OF THE LAW[14]
DEL CASTILLO,
ABAD, X X X RUINED AND DAMAGED NOT ONLY THE GEN. MARIANO
VILLARAMA, JR., ALVAREZ SERVICES COOPERATIVE, INC. (GEMASCO, INC.) BUT THE
PEREZ, and ENTIRE WATER-CONSUMING COMMUNITY AS WELL[15]
MENDOZA, JJ.
Despite the Courts grant,[16] on respondents motion,[17] of extension of time to
Promulgated: file Comment, respondent never filed any comment. The Court thus required
March 15, 2010 him to showcause why he should not be disciplinarily dealt with,[18] but just
x --------------------------------------------------------------------------------------------- x the same he failed to comply.[19]

DECISION The Court thus referred the complaint to the Integrated Bar of the Philippines
(IBP) for investigation, report, and recommendation.[20]
CARPIO MORALES, J.:
Page 168

An Information for Estafa[1] was filed on June 21, 2001 against Atty. It appears that during the mandatory conference before the IBP, complainant
Iluminada M. Vaflor-Fabroa (complainant) along with others based on a joint proposed the following issues:
affidavit-complaint which Atty. Oscar Paguinto (respondent) prepared and
notarized. As the joint affidavit-complaint did not indicate the involvement
LEGAL ETHICS
1. Whether or not the acts of respondent constitute violations of the Code
of Professional Responsibility, particularly the following:
1.1 Canon 1 A lawyer shall uphold the Constitution, obey the laws of the land
and promote respect for law and legal [processes].
1.2 Canon 8 A lawyer shall conduct himself with courtesy, fairness, and
candor toward his professional colleagues, and shall avoid harassing tactics
against opposing counsel.
1.3 Canon 10 A lawyer owes candor, fairness and good faith to the court.
1.4 Canon 19 A lawyer shall represent his client with zeal within the bounds
of the law.
1.5 Rule 12.03 A lawyer shall not, after obtaining extensions of time to file
pleadings, memoranda or briefs, let the period lapse without submitting the
same or offering an explanation for his failure to do so.
2. Whether or not the above acts of respondent constitute violations of his
lawyers oath, particularly the following:
2.1 support the Constitution and obey the laws as well as the legal orders of
the duly constituted authorities therein
2.2 will do no falsehood, nor consent to the doing of any in court
2.3 will not wittingly or willingly promote or sue any groundless, false or
unlawful suit, nor give aid nor consent to the same
2.4 will delay no man for money or malice
3. Whether or not the above acts of [respondent] complained of are
grounds for disbarment or suspension of attorneys by the Supreme Court as
provided for in Section 27, Rule 138 of the Revised Rules of Court.[21]
Respondents counsel who represented him during the conference proposed
the issue of whether, on the basis of the allegations of the complaint,
misconduct was committed by respondent.[22]
After the conclusion of the conference, both parties were ordered to submit
position papers.[23] Complainant filed hers,[24] but respondent, despite grant,
on his motion, of extension of time, did not file any position paper.
In her Report and Recommendation,[25] Investigating Commissioner Lolita
A. Quisumbing found respondent guilty of violating the Lawyers Oath as well
as Canons 1, 8, 10, and Rule 12.03 of the Code of Professional
Responsibility. Noting that respondent had already been previously
suspended for six months, the Commissioner recommended that respondent
be suspended for two years.
The IBP Commission on Bar Discipline (CBD) Board of Governors opted for
the dismissal of the complaint, however, for lack of merit.[26]
On Motion for Reconsideration,[27] the IBP-CBD Board of Governors
recommended that respondent be suspended from the practice of law for six
months.
The Court finds that by conniving with Gerangco in taking over the Board of
Directors and the GEMASCO facilities, respondent violated the provisions of
the Cooperative Code of the Philippines and the GEMASCO By-Laws. He
also violated the Lawyers Oath, which provides that a lawyer shall support
the Constitution and obey the laws.
When respondent caused the filing of baseless criminal complaints against
complainant, he violated the Lawyers Oath that a lawyer shall not wittingly or
willingly promote or sue any groundless, false or unlawful suit, nor give aid
or consent to the same.
PINEDAPCGRNMAN
When, after obtaining an extension of time to file comment on the complaint,
respondent failed to file any and ignored this Courts subsequent show cause
order, he violated Rule 12.03 of the Code of Professional Responsibility,
which states that A lawyer shall not, after obtaining extensions of time to file
pleadings, memoranda or briefs, let the period lapse without submitting the
same or offering an explanation for his failure to do so. Sebastian
v. Bajar[28] teaches:
x x x Respondents cavalier attitude in repeatedly ignoring the orders of the
Supreme Court constitutes utter disrespect to the judicial institution.
Respondents conduct indicates a high degree of irresponsibility. A Courts
Resolution is not to be construed as a mere request, nor should it be
complied with partially, inadequately, or selectively. Respondents obstinate
refusal to comply with the Courts orders not only betrays a recalcitrant flaw
in her character; it also underscores her disrespect of the Courts lawful orders
which is only too deserving of reproof.
Lawyers are called upon to obey court orders and processes and
respondents deference is underscored by the fact that willful disregard
thereof will subject the lawyer not only to punishment for contempt but to
disciplinary sanctions as well. In fact, graver responsibility is imposed upon
a lawyer than any other to uphold the integrity of the courts and to show
respect to their processes.[29] (Citations omitted).
The Court notes that respondent had previously been suspended from the
practice of law for six months for violation of the Code of Professional
Responsibility,[30] he having been found to have received an acceptance fee
and misled the client into believing that he had filed a case for her when he
had not.[31] It appears, however, that respondent has not reformed his ways.
A more severe penalty this time is thus called for.
WHEREFORE, respondent, Atty. Oscar P. Paguinto, is
SUSPENDED for two years from the practice of law for violation of Canons 1,
8, 10, and Rule 12.03 of the Code of Professional Responsibility and the
Lawyers Oath, effective immediately.
Let copies of this Decision be furnished the Office of the Bar Confidant, to be
appended to respondents personal record as an attorney; the Integrated Bar
of the Philippines; and all courts in the country for their information and
guidance.
SO ORDERED.
A.C. No. 7922 October 1, 2013
MARY ANN T.MATTUS, Complainant,
vs.
ATTY. ALBERT T. VILLASECA, Respondent.
DECISION
PER CURIAM:
Before us is a complaint for disbarment filed by complainant Mary Ann T.
Mattus against Atty. Albert T. Villaseca for gross and inexcusable negligence
in handling Criminal Case No. 10309-02.
Background Facts
The complainant, German Bernardo D. Mattus and Dexter Aligan were the
accused in Criminal Case No. 10309-02 – a case for estafa thru falsification
of public document filed in the Regional Trial Court (RTC), Branch 20, Imus,
Cavite. The complainant and her husband, German, engaged the services of
Atty. Villaseca to represent them in the proceedings. The complainant
maintained that she and German were convicted due to Atty. Villaseca’s
gross and inexcusable negligence in performing his duties as their counsel.
In her complaint-affidavit,1 the complainant alleged, among others, that Atty.
Villaseca: (1) was often absent during court hearings but still collected
appearance fees; (2) frequently sought the postponement of trial when he
was present; (3) failed to ask the RTC to direct a National Bureau of
Investigation expert to examine the signatures of the spouses Leslie and
Zuraida Porter2 in the special power of attorney (SPA); (4) failed to file a
Page 169
demurrer to evidence despite having been granted sufficient time by the RTC
to submit one; (5) failed to present evidence on behalf of the defense, and
only filed a memorandum; (6) did not inform her and German of the dates of
LEGAL ETHICS
the presentation of defense evidence and the promulgation of judgment; and
(7) erroneously indicated the wrong case number in the notice of appeal.
According to the complainant, Atty. Villaseca’s negligence in handling the
case resulted in her own and her husband’s conviction.
In the Court’s Resolution3 of July 16, 2008, we required Atty. Villaseca to
comment on the complaint.
On September 10, 2008, Atty. Villaseca filed his comment,4 refuting the
allegations against him. Atty. Villaseca explained that he made known to the
complainant that the testimony of a handwriting expert was necessary only if
the prosecution would be able to produce the original copy of the SPA. Atty.
Villaseca also claimed that his absences during the hearings, as well as his
numerous motions for postponement, were justified and were never intended
for delay. He denied having collected appearance fees when he did not
attend the scheduled hearings, and maintained that the fees he received
were intended to compensate him for his services in the other cases filed by
the complainant. Atty. Villaseca further claimed that he immediately corrected
the case number in the notice of appeal when he discovered this error.
In a Resolution5dated October 15, 2008, we referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The IBPs’ Report and Recommendation
In his Report and Recommendation6 dated September 16, 2009,Investigating
Commissioner Salvador B. Hababag recommended that Atty. Villaseca be
suspended for six (6) months from the practice of law.
Commissioner Hababag ruled that Atty. Villaseca’s reckless and gross
negligence deprived his clients of due process; his actuations in the criminal
case showed utter disregard for his clients’ life and liberty. Commissioner
Hababag explained that Atty. Villaseca failed to file a demurrer to evidence
despite the sufficient length of time that had been given to him by the RTC to
submit this pleading, and waived his right to present evidence for the
defense, opting instead to file a memorandum only. Commissioner Hababag
concluded that Atty. Villaseca’s failure to properly attend to the interests of
his clients led to their conviction.
In Resolution No. XIX-2011-2517 dated May 14, 2011, the IBP Board of
Governors adopted and approved the findings of the Investigating
Commissioner, but increased Atty. Villaseca’s period of suspension from the
practice of law from six (6) months to one (1) year.
Our Ruling
After a careful review of the records, the Court finds the evidence on record
sufficient to support the IBP’s findings. We, however, increase Atty.
Villaseca’s period of suspension from the practice of law from one (1) year to
five (5) years.
We stress at the outset that a lawyer "is expected to exert his best efforts and
ability to preserve his client's cause, for the unwavering loyalty displayed to
his client likewise serves the ends of justice."8 Once a lawyer agrees to take
up the cause of a client, the lawyer owes fidelity to such cause and must
always be mindful of the trust and confidence reposed in him. He owes entire
devotion to the interest of the client, warm zeal in maintenance and defense
of his client’s rights, and the exertion of his utmost learning and ability to the
end that nothing be taken or withheld from his client, save by the rules of law,
legally applied. A lawyer who performs his duty with diligence and candor not
only protects the interest of his client; he also serves the ends of justice, does
honor to the bar, and helps maintain the respect of the community to the legal
profession.9
The records of the present case show that Atty. Villaseca had been grossly
remiss in handling Criminal Case No. 10309-02. To recall, Atty. Villaseca
requested for time to file demurrer to evidence after the prosecution had
rested its case. In its order 10 of July 1, 2004, the RTC gave him 20 days from
receipt of the transcript of stenographic notes within which to file a demurrer
to evidence. Atty. Villaseca, however, did not file a demurrer to evidence,
without offering any explanation why he failed to do so. As a result, the RTC
issued an order 11 stating that Atty. Villaseca "is deemed to have waived his
right to file the said pleading."
To our mind, Atty. Villaseca’s failure to submit a demurrer to evidence to
explain such omission constitutes inexcusable negligence; it showed his lack
of devotion and zeal in preserving his clients’ cause. We point out that nine
months had lapsed from the time the RTC granted Atty. Villaseca 20 days to
file the demurrer to the time it ruled that he was deemed to have waived his
right to file this pleading. Clearly, Atty. Villaseca’s actuations violated Rule
12.03 of the Code of Professional Responsibility which states that "a lawyer
PINEDAPCGRNMAN
shall not, after obtaining extensions of time to file pleadings, memoranda or
briefs, let the period lapse without submitting the same or offering an
explanation for his failure to do so."
The records further disclosed that after Atty. Villaseca’s failure to file a
demurrer to evidence, the RTC set the initial presentation of defense
evidence on May 9, 2005. However, this hearing was postponed thrice: the
May 9, 2005 hearing was reset to August 8, 2005 due to Atty. Villaseca’s
failure to appear;12 the August 8, 2005 hearing was reset to November 17,
2005 upon Atty. Villaseca’s motion;13 and the November 17, 2005 hearing
was reset to March 1, 2006 because of Atty. Villaseca’s manifestation that
his intended first witness was unavailable.14During the March 1, 2006hearing,
the respondent manifested that the defense would no longer present any
evidence, and moved that he be given time to file a memorandum.15
We point out that the prosecution rested its case on July 1, 2004; yet Atty.
Villaseca waited until March 1, 2006 only to manifest that he would no longer
present any evidence. We are at a loss why Atty. Villaseca chose not to
present any evidence for the defense, considering that the accused wanted
and were ready to take the witness stand. As a result, the testimony of the
lone prosecution witness remained uncontroverted. To make matters worse,
Atty. Villaseca directed German to attend the hearing on June 6, 2007without
informing him that it was already the date of the promulgation of
judgment.1âwphi1
The Code of Professional Responsibility states that "a lawyer owes fidelity to
the cause of his client and he shall be mindful of the trust and confidence
reposed in him."16 It further mandates that "a lawyer shall serve his client with
competence and diligence."17 It also states that "a lawyer shall not neglect a
legal matter entrusted to him, and his negligence in connection therewith
shall render him liable."18
Atty. Villaseca’s failure to present any testimonial, object or documentary
evidence for the defense reveals his lack of diligence in performing his duties
as an officer of the Court; it showed his indifference towards the cause of his
clients. Considering that the liberty and livelihood of his clients were at stake,
Atty. Villaseca should have exerted efforts tore but the presented prosecution
evidence. He could have presented the complainant and/or her husband to
the witness stand, instead of just opting to file a memorandum. Or, at the very
least, the reason for this move should have been fully explained to the clients,
and later to the IBP and to this Court. But no such explanation ever came.
We are thus left with the stark reality that Atty. Villaseca failed to file, despite
the promise made to the lower court, a demurrer to evidence. After failing in
this first line of defense for his clients, it should have been incumbent upon
Atty. Villaseca to present evidence for the defense, but again, he
unexplainably failed to do this, leaving the lower court with no evidence to
appreciate except that of the prosecution, to the detriment of his clients’
cause.
We emphasize that while a lawyer has complete discretion on what legal
strategy to employ in a case entrusted to him, he must present every remedy
or defense within the authority of the law to support his client’s cause. A
memorandum, no matter how lengthy, should not be made a substitute for
testimonial, object or documentary evidence, more so in a criminal case
where a conviction could lead to dire consequences. In saying so, we are not
insinuating that the RTC decision would have tilted in favor of the defense
had Atty. Villaseca presented evidence; we simply stress that utmost fidelity
and attention are demanded once counsel agrees to take the cudgels for his
client's cause.
We again remind members of the bar to live up to the standards and norms
expected of the legal profession by upholding the ideals and principles
embodied in the Code of Professional Responsibility. A lawyer engaged to
represent a client bears the responsibility of protecting the latter's interest
with utmost diligence. It is his duty to serve his client with competence and
diligence, and he should exert his best efforts to protect, within the bounds of
the law, the interests of his client.19 A lawyer’s diligence and vigilance is more
imperative in criminal cases, where the life and liberty of an accused is at
stake. Verily, the entrusted privilege to practice law carries with it the
corresponding duties, not only to the client, but also to the court, to the bar
and to the public. As we explained in Spouses Bautista v. Atty. Arturo Cefra:20
The practice of law is a privilege bestowed by the State on those who show
that they possess the legal qualifications for it. Lawyers are expected to
Page 170
maintain at all times a high standard of legal proficiency and morality,
including honesty, integrity and fair dealing. They must perform their fourfold
duty to society, the legal profession, the courts and their clients, in
LEGAL ETHICS
accordance with the values and norms of the legal profession as embodied
in the Code of Professional Responsibility.
"The appropriate penalty on an errant lawyer depends on the exercise of
sound judicial discretion based on the surrounding facts."21 Under the
circumstances, we find that the IBP’s recommended penalty of one year’s
suspension from the practice of law is not commensurate to Atty. Villaseca’s
transgressions. His incompetence and appalling indifference to his duty to
his client, the courts and society indicate a high degree of irresponsibility that
casts dishonor on the legal profession.
The present case finds a close forerunner in Santeco v. Atty. Avance,22
where we suspended Atty. Luna B. Avance from the practice of law for five(5)
years for being grossly remiss in the performance of her duties as counsel. In
this cited case, the civil case entrusted to Atty. Avance was dismissed for
failure to prosecute. During the pendency of her motion for reconsideration
(which she had filed way beyond the reglementary period), she told her client
that she would file a petition for certiorari before the CA to assail the dismissal
of the civil case. She did not file this petition, but failed to inform her client of
this omission. Moreover, Atty. Avance stopped appearing as counsel for her
client without notifying the latter.
Atty. Villaseca’s negligence in the present case had much graver
implications, as the legal matter entrusted to him involved not merely money
or property, but the very liberty and livelihood of his clients. We stress that
the moment Atty. Villaseca agreed to handle the complainant’s criminal case,
he became duty-bound to serve his clients with competence and diligence,
and to champion their cause with whole-hearted fidelity. By failing to afford
his clients every remedy and defense that is authorized by the law, Atty.
Villaseca fell short of what is expected of him as an officer of the Court. We
cannot overstress the duty of a lawyer to uphold the integrity and dignity of
the legal profession by faithfully performing his duties to society, to the bar,
to the courts and to his clients.
All told, Atty. Villaseca showed a wanton and utter disregard to his clients’
cause; his failure to exercise due diligence in attending to their interest in the
criminal case caused them grave prejudice. Under the circumstances, we
find a five-year suspension from the practice of law to be a sufficient and
appropriate sanction against him. The increased penalty serves the purpose
of protecting the interest of the Court, the legal profession and the public.
WHEREFORE premises considered, we find Atty. Albert T. Villaseca guilty
of negligence, in violation of Rules 12.03 and 18.03 and Canon 17 of the
Code of Professional Responsibility. He is hereby SUSPENDED from the
practice of law for five (5) years, effective upon his receipt of this Decision,
and STERNLY WARNED that a repetition of the same or similar offense will
be dealt with more severely.
Let a copy of this Decision be furnished to the Office of the Bar Confidant,
the Integrated Bar of the Philippines, and the Office of the Court Administrator
for circulation to all the courts.
SO ORDERED.
Rule 12.04 – A lawyer shall not unduly delay a case, impede the
execution of a judgment or misuse court processes.
G.R. No. 133090 January 19, 2001
REXIE EFREN A. BUGARING AND ROYAL BECHTEL BUILDERS,
INC., petitioners,
vs.
HON. DOLORES S. ESPAÑOL, in her capacity as Presiding Judge of the
Regional Trial Court Branch 90, Imus, Cavite, respondent.
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision dated March 6,
1998 of the Court of Appeals1affirming the decision of the Regional Trial
Court of Cavite, Branch 90, Imus, Cavite, declaring petitioner Rexie Efren A.
Bugaring guilty in direct contempt of court.1âwphi1.nêt
The incident subject of the petition occurred during a hearing held on
December 5, 1996 of Civil Case NO. 1266-96 entitled "Royal Becthel2
Builders, Inc. vs. Spouses Luis Alvaran and Beatriz Alvaran, et al.", for
Annulment of Sale and Certificates of Title, Specific Performance and
Damages with Prayer for Preliminary Injunction and/or Temporary
Restraining Order in the sala of respondent judge Dolores S. Español of the
Regional Trial Court of Cavite, Branch 90, Imus, Cavite.
Pursuant to a motion filed by the previous counsel of Royal Bechtel Builders,
Inc., the trial court issued an order on February 27, 1996 directing the
PINEDAPCGRNMAN
Register of Deeds of the Province of Cavite to annotate at the back of certain
certificates of title a notice of lis pendens. Before the Register of Deeds of
the Province of Cavite could comply with said order, the defendant Spouses
Alvaran on April 15, 1996, filed a motion to cancel lis pendens. On July 19,
1996, petitioner, the newly appointed counsel of Royal Bechtel Builders, Inc.,
filed an opposition to the motion to cancel lis pendens. On August 16, 1996,
the motion to cancel lis pendens was granted by the court. Petitioner filed a
motion for reconsideration, which was opposed by the defendants. On
November 5, 1996, petitioner filed an Urgent Motion to Resolve, and on
November 6, 1996, filed a Rejoinder to Opposition and Motion for Contempt
of Court.3
During the hearing of the motion for contempt of court held on December 5,
1996, the following incident transpired:
ATTY. For the plaintiff, your Honor, we are ready.
BUGARING:
ATTY. Same appearance for the defendant, your Honor.
CORDERO:
ATTY. Your Honor please, we are ready with respect to the
BUGARING: prosecution of our motion for contempt, your Honor. May
we know from the record if the Register of Deeds is
properly notified for today's hearing.
COURT: Will you call on the Register of Deeds.
INTERPRETER: Atty. Diosdado Concepcion, He is here, your Honor.
ATTY. We are ready, your Honor.
BUGARING:
COURT: There is a motion for contempt in connection with the
order of this Court which directed your office to register
lis pendens of the complaint in connection with this case
of Royal Becthel Builder, Inc. versus spouses Luis
Alvaran and Beatriz Alvaran, et al.
ATTY. Your Honor, I just received this morning at ten o'clock [in
CONCEPCION: the morning] the subpoena.
ATTY. May we put in on record that as early as November 6,
BUGARING: 1996, the Office of the Register of Deeds was furnished
with a copy of our motion, your Honor please, and the
record will bear it out. Until now they did not file any
answer, opposition or pleadings or pleadings with
respect to this motion.
ATTY. Well I was not informed because I am not the Register of
CONCEPCION: Deeds. I am only the Deputy Register of Deeds and I was
not informed by the receiving clerk of our office regarding
this case. As a matter of fact I was surprised when I
received this morning the subpoena, your Honor.
ATTY. Your Honor please, may we put that on record that the
BUGARING: manifestation of the respondent that he was not
informed.
COURT: That is recorded. This is a Court of record and everything
that you say here is recorded.
ATTY. Yes your Honor please, we know that but we want to be
BUGARING: specific because we will be [filing] a case against this
receiving clerk who did not [inform] him your Honor
please, with this manifestation of the Deputy of the
Register of Deeds that is irregularity in the performance
of the official duty of the clerk not to inform the parties
concerned.
COURT: Counsel, the Court would like to find out who this fellow
who is taking the video recording at this proceedings.
There is no permission from this Court that such
proceedings should be taken.
ATTY. Your Honor, my Assistant. I did not advise him to take a
BUGARING: video he just accompanied me this morning.
Page 171
COURT: Right, but the video recording is prepared process and
you should secure the permission of this Court.
LEGAL ETHICS
ATTY. Actually, I did not instruct him to take some video tape.
BUGARING:
COURT: Why would he be bringing camera if you did not give him
the go signal that shots should be done.
ATTY. This Court should not presume that, your Honor please,
BUGARING: we just came from an occasion last night and I am not
yet come home, your Honor please. I could prove your
Honor please, that the contents of that tape is other
matters your Honor please. I was just surprised why he
took video tape your Honor please, that we ask the
apology of this Court if that offend this Court your Honor
please.
COURT: It is not offending because this is a public proceedings
but the necessary authority or permission should be
secured.
ATTY. In fact I instructed him to go out, your Honor.
BUGARING:
COURT: After the court have noticed that he is taking a video
tape.
ATTY. Yes, your Honor, in fact that is not my personal problem
BUGARING: your Honor please, that is personal to that guy your
Honor please if this representation is being ….
COURT: That is very shallow, don't give that alibi.
ATTY. At any rate, your Honor please, we are going to mark our
BUGARING: documentary evidence as part of our motion for
contempt, your Honor please.
COURT: What has the Register of Deeds got to say with this
matter?
ATTY. Well as I have said before, I have not received any
CONCEPCION: motion regarding this contempt you are talking. I am
willing now to testify.
ATTY. Your Honor I am still of the prosecution stage, it is not
BUGARING: yet the defense. This is a criminal proceedings, contempt
proceedings is a criminal.
ATTY. Your Honor please, may I ask for the assistance from the
CONCEPCION: Fiscal.
COURT: If this is going to proceed, we need the presence of a
Fiscal or a counsel for the Register of Deeds.
ATTY. Can I appoint an outside lawyer not a Fiscal but a private
CONCEPCION: counsel, your Honor.
COURT: That is at your pleasure. The Court will consider that you
should be amply represented.
ATTY. As a matter of fact I have a lawyer here, Atty. Barzaga if
CONCEPCION: he is willing….
ATTY. Yes, your Honor, I will just review the records.
BARZAGA4:
ATTY. Anyway your Honor please, I will not yet present my
BUGARING: witness but I will just mark our documentary exhibits
which are part of the record of the case and thereafter
your Honor please….
COURT: You wait for a minute counsel because there is a
preparation being done by newly appointed counsel of
the respondent, Atty. Barzaga is considered as the
privately hired counsel of the register of deeds and the
respondent of this contempt proceedings. How much
time do you need to go over the record of this case so
that we can call the other case in the meanwhile.
ATTY. Second call, your Honor.
PINEDAPCGRNMAN
------------------------------------------------------
-------------------------------------
COURT: Are you ready Atty. Barzaga?
ATTY. Yes, your Honor. Well actually your Honor, after
BARZAGA: reviewing the record of the case your Honor, I noticed
that the motion for contempt of Court was filed on
November 6, 1966 and in paragraph 6 thereof, your
Honor it is stated that, 'the record of the case shows up
to the filing of this motion, the Register as well as the
Deputy Register Diosdado Concepcion of the Office of
the Register of Deeds of the Province of Cavite, did not
comply with the Court Orders dated February 27, 1996,
March 29, 1996, respectively.' However, your Honor,
Atty. Diosdado Concepcion has shown to me a letter
coming from Atty. Efren A. Bugaring dated September
18, 1996 addressed to the Register regarding this notice
of Lis Pendens pertaining to TCT Nos. T-519248,
519249 and 519250 and this letter request, your Honor
for the annotation of the lis pendens clearly shows that it
has been already entered in the book of primary entry.
We would like also to invite the attention of the Hon.
Court that the Motion for Contempt of Court was filed on
November 6, 1996. The letter for the annotation of the lis
pendens was made by the counsel for the plaintiff only
on September 18, 1996, your Honor. However, your
Honor, as early as August 16, 1996 an Order has already
been issued by the Hon. Court reading as follows,
'Wherefore in view of the above, the motion of the
defendant is GRANTED and the Register of Deeds of the
Province of Cavite, is hereby directed to CANCEL the
notice of lis pendens annotated at the back of Certificate
of Title Nos. 519248, 51949 (sic) and 51950 (sic).'
ATTY. Your Honor please, may we proceed your Honor, will first
BUGARING: mark our documentary evidence.
COURT: You wait until the Court allows you to do what you want
to do, okay. The counsel has just made manifestation,
he has not prayed for anything. So let us wait until he is
finished and then wait for the direction of this Court what
to do to have an orderly proceedings in this case.
ATTY. Considering your Honor, that the issues appear to be a
BUGARING: little bit complicated your Honor, considering that the
order regarding the annotation of the lis pendens has
already been revoked by the Hon. Court your Honor, we
just request that we be given a period of ten days from
today your Honor, within which to submit our formal
written opposition your Honor.
COURT: Counsel, will you direct your attention to the
manifestation filed earlier by Atty. Tutaan in connection
with the refusal of the Register of Deeds to annotate the
lis pendens because of certain reasons. According to the
manifestation of Atty. Tutaan and it is appearing in the
earlier part of the record of this case, the reason for that
is because there was a pending subdivision plan, it is so
stated. I think it was dated March, 1996. May 1 have the
record please.
ATTY. Yes, your Honor.
BARZAGA:
COURT: This Court would like to be enlightened with respect to
that matter.
ATTY. Well, according to Atty. Diosdado Concepcion he could
BUGARING: already explain this, your Honor.
COURT: Have it properly addressed as part of the manifestation
Page 172

so that this court can be guided accordingly. Because

BARZAGA: this Court believes that the root of the matter started from
LEGAL ETHICS
that. After the submission of the …. What are you
suppose to submit?
ATTY. Comment your Honor, on the motion to cite Atty.
BUGARING: Diosdado Concepcion in contempt of Court.
COURT: After the submission of the Comment and furnishing a
copy of the comment to the counsel for the plaintiff, this
Court is going to give the counsel for the plaintiff an equal
time within which to submit his reply.
ATTY. Your Honor please, it is the position of this
BUGARING: representation your Honor please, that we will be
marking first our documentary evidence because this is
set for hearing for today, your Honor please.
COURT: If you are going to mark your evidence and they do not
have their comment yet what are we going to receive as
evidence.
ATTY. If your Honor please …
BUGARING:
COURT: Will you listen to the Court and just do whatever you have
to do after the submission of the comment.
ATTY. I am listening, your Honor please, but the record will
BUGARING: show that the motion for contempt was copy furnished
with the Register of Deeds and Diosdado Concepcion.
COURT: Precisely, if you are listening then you will get what the
Court would want to do. This should be an orderly
proceedings and considering that this is a Court of
record the comment has to be in first then in your reply
you can submit your evidence to rebut the argument that
is going to be put up by the respondent and so we will be
able to hear the case smoothly.
ATTY. My point here your Honor please, is that the respondent
BUGARING: had been long time furnished of this contempt
proceedings. With a copy of the motion they should have
filed it in due time in accordance with the rules and
because it is scheduled for trial, we are ready to mark
our evidence and present to this Court, your Honor
COURT: (Banging the gavel) Will you listen.
ATTY. I am listening, your Honor.
BUGARING:
COURT: And this Court declares that you are out of order.
ATTY. Well, if that is the contention of the Court your Honor
BUGARING: please, we are all officers of the Court, your Honor,
please, we have also ---- and we know also our
procedure, your Honor.
COURT: If you know your procedure then you follow the
procedure of the Court first and then do whatever you
want.
ATTY. Yes, your Honor please, because we could feel the
BUGARING: antagonistic approach of the Court of this representation
ever since I appeared your Honor please and I put on
record that I will be filing an inhibition to this Hon. Court.
COURT: Do that right away. (Banging the gavel)
ATTY. Because we could not find any sort of justice in town.
BUGARING:
COURT: Do that right away.
ATTY. We are ready to present our witness and we are deprive
BUGARING: to present our witness.
COURT: You have presented a witness and it was an adverse
witness that was presented.
PINEDAPCGRNMAN
ATTY. I did not….
BUGARING:
COURT: With respect to this, the procedure of the Court is for the
respondent to file his comment.
ATTY. Well your Honor please, at this point in time I don't want
BUGARING: to comment on anything but I reserve my right to inhibit
this Honorable Court before trying this case.
COURT: You can do whatever you want.
ATTY. Yes, your Honor, that is our prerogative your Honor.
BUGARING:
COURT: As far as this Court is concerned it is going to follow the
rules.
ATTY. Yes, your Honor, we know all the rules.
BUGARING:
COURT: Yes, you know your rules that's why you are putting the
cart ahead of the horse.
ATTY. No your Honor, I've been challenged by this Court that I
BUGARING: know better than this Court. Modestly (sic) aside your
Honor please, I've been winning in many certiorari
cases, your Honor.
COURT: Okay, okay, do that, do that. I am going to cite you for
contempt of Court. (Banging the gavel) You call the
police and I am going to send this lawyer in jail. (Turning
to the Sheriff)
ATTY. I am just manifesting and arguing in favor of my client
BUGARING: your Honor please.
COURT: You have been given enough time and you have been
abusing the discretion of this Court.
ATTY. I am very sorry your Honor, if that is the appreciation of
BUGARING: the Court but this is one way I am protecting my client,
your Honor.
COURT: That is not the way to protect your client that is an abuse
of the discretion of this Court. (Turning to the Sheriff)
"Will you see to it that this guy is put in jail." (pp. 29-42.
Rollo)
Hence, in an Order dated December 5, 1996, Judge Español cited petitioner
in direct contempt of court, thus:
During the hearing of this case, plaintiffs and counsel were present together
with one (1) operating a video camera who was taking pictures of the
proceedings of the case while counsel, Atty. Rexie Efren Bugaring was
making manifestation to the effect that he was ready to mark his documentary
evidence pursuant to his Motion to cite (in contempt of court) the Deputy
Register of Deeds of Cavite, Diosdado Concepcion.
The Court called the attention of said counsel who explained that he did not
cause the appearance of the cameraman to take pictures, however, he
admitted that they came from a function, and that was the reason why the
said cameraman was in tow with him and the plaintiffs. Notwithstanding the
flimsy explanation given, the counsel sent out the cameraman after the Court
took exception to the fact that although the proceedings are open to the public
and that it being a court of record, and since its permission was not sought,
such situation was an abuse of discretion of the Court.
When the respondent, Deputy Register of Deeds Concepcion manifested
that he needed the services of counsel and right then and there appointed
Atty. Elpidio Barzaga to present him, the case was allowed to be called again.
On the second call, Atty. Burgaring started to insist that he be allowed to
mark and present his documentary evidence in spite of the fact that Atty.
Barzaga was still manifesting that he be allowed to submit a written pleading
for his client, considering that the Motion has so many ramifications and the
issues are complicated.
At this point, Atty. Bugaring was insisting that he be allowed to mark his
Page 173
documentary evidence and was raring to argue as in fact he was already
perorating despite the fact that Atty. Barzaga has not yet finished with his
manifestation. As Atty. Bugaring appears to disregard orderly procedure, the
LEGAL ETHICS
Court directed him to listen and wait for the ruling of the Court for an orderly
proceeding.
While claiming that he was listening, he would speak up anytime he felt like
doing so. Thus, the Court declared him out of order, at which point, Atty.
Bugaring flared up the uttered words insulting the Court; such as: 'that he
knows better than the latter as he has won all his cases of certiorari in the
appellate Courts, that he knows better the Rules of Court; that he was going
to move for the inhibition of the Presiding Judge for allegedly being
antagonistic to his client,' and other invectives were hurled to the discredit of
the Court.
Thus, in open court, Atty. Bugaring was declared in direct contempt and order
the Court's sheriff to arrest and place him under detention.
WHEREFORE, in view of the foregoing and the fact that Atty. Rexie Efren
Bugaring committed an open defiance, even challenging the Court in a
disrespectful, arrogant, and contumacious manner, he is declared in direct
contempt of Court and is sentenced to three (3) days imprisonment and
payment of a fine of P3,000.00. His detention shall commence immediately
at the Municipal Jail of Imus, Cavite.5
Pursuant to said Order, the petitioner served his three (3) day sentence at
the Imus Municipal Jail, and paid the fine of P3,000.00.6
While serving the first day of his sentence on December 5, 1996, petitioner
filed a motion for reconsideration of the Order citing him in direct contempt of
court. The next day, December 6, 1996, petitioner filed another motion
praying for the resolution of his motion for reconsideration. Both motions
were never resolved and petitioner was released on December 8, 1996.7
To clear his name in the legal circle and the general public, petitioner filed a
petition before the Court of Appeals praying for the annulment of the Order
dated December 5, 1996 citing him in direct contempt of court and the
reimbursement of the fine of P3,000.00 on grounds that respondent Judge
Dolores S. Español had no factual and legal basis in citing him in direct
contempt of court, and that said Order was null and void for being in violation
of the Constitution and other pertinent laws and jurisprudence.8
The Court of Appeals found that from a thorough reading of the transcript of
stenographic notes of the hearing held on December 5, 1996, it was obvious
that the petitioner was indeed arrogant, at times impertinent, too
argumentative, to the extent of being disrespectful, annoying and sarcastic
towards the court.9 It affirmed the order of the respondent judge, but found
that the fine of P3,000.00 exceeded the limit of P2,000.00 prescribed by the
Rules of Court,10 and ordered the excess of P1,000.00 returned to petitioner.
On March 6, 1998, it rendered judgment, the dispositive portion of which
reads:
WHEREFORE, the petition is hereby DISMISSED for lack of merit and the
assailed order dated December 5, 1996 issued by the trial court is hereby
AFFIRMED with the modification that the excess fine of P1,000.00 is
ORDERED RETURNED to the petitioner.
Before us, petitioner ascribes to the Court of Appeals this lone error:
THE APPELLATE COURT COMMITTED A REVERSIBLE ERROR IN
AFFIRMING THE ASSAILED ORDER OF THE TRIAL COURT WHICH TO
PETITIONER'S SUBMISSIONS SMACKS OF OPPRESSION AND ABUSE
OF AUTHORITY, HENCE IT COMMITTED A GRAVE ERROR OF LAW IN
ITS QUESTIONED DECISION.11
Petitioner insists that a careful examination of the transcript of stenographic
notes of the subject proceedings would reveal that the contempt order issued
by respondent judge had no factual and legal basis. It would also show that
he was polite and respectful towards the court as he always addressed the
court with the phrase "your honor please."
We disagree.
Section 1, Rule 71 of the Rules of Court as amended by Administrative
Circular No. 22-95 provides:
Direct contempt punished summarily. – A person guilty of misbehavior in the
presence of or so near a court or judge as to obstruct or interrupt the
proceedings before the same, including disrespect toward the court or judge,
offensive personalities toward others, or refusal to be sworn or to answer as
a witness, or to subscribe an affidavit or deposition when lawfully required to
do so, may be summarily adjudged in contempt by such court or judge and
punished by a fine not exceeding two thousand pesos or imprisonment not
exceeding ten (10) days, or both, if it be a superior court, or a judge thereof,
or by a fine not exceeding two hundred pesos or imprisonment not exceeding
one (1) day, or both, if it be an inferior court.
PINEDAPCGRNMAN
We agree with the statement of the Court of Appeals that petitioner's alleged
deference to the trial court in consistently addressing the respondent judge
as "your Honor please" throughout the proceedings is belied by his behavior
therein:
1. the veiled threat to file a petition for certiorari against the trial court (pp. 14-
15, tsn, December 5, 1996; pp. 41-42, Rollo) is contrary to Rule 11.03, Canon
11 of the Code of Professional Responsibility which mandates that "a lawyer
shall abstain from scandalous, offensive or menacing language or behavior
before the Courts".
2. the hurled uncalled for accusation that the respondent judge was partial in
favor of the other party (pp. 13-14, tsn, December 5, 1996; pp. 40-41, Rollo)
is against Rule 11.04, Canon 11 of the Code of Professional Responsibility
which enjoins lawyers from attributing to a judge "motives not supported by
the record or have no materiality to the case".
3. behaving without due regard to the trial court's order to maintain order in
the proceedings (pp. 9-13, tsn, December 5, 1996; pp. 36-40, Rollo) I in utter
disregard to Canon 1 of the Canons of Professional Ethics which makes it a
lawyer's duty to "maintain towards the courts (1) respectful attitude" in order
to maintain its importance in the administration of justice, and Canon 11 of
the Code of Professional Responsibility which mandates lawyers to "observe
and maintain the respect due to the Courts and to judicial officers and should
insist on similar conduct by others".
4. behaving without due regard or deference to his fellow counsel who at the
time he was making representations in behalf of the other party, was rudely
interrupted by the petitioner and was not allowed to further put a word in
edgewise (pp. 7-13, tsn, December 5, 1996; pp. 34-39, Rollo) is violative of
Canon 8 of the Code of Professional Ethics which obliges a lawyer to conduct
himself with courtesy, fairness and candor toward his professional
colleagues, and
5. The refusal of the petitioner to allow the Registrar of Deeds of the Province
of Cavite, through counsel, to exercise his right to be heard (Ibid) is against
Section 1 of Article III, 1997 Constitution on the right to due process of law,
Canon 18 of the Canons of Professional Ethics which mandates a lawyer to
always treat an adverse witness "with fairness and due consideration," and
Canon 12 of Code of Professional Responsibility which insists on a lawyer to
"exert every effort and consider it his duty to assist in the speedy and efficient
administration of justice."
The Court cannot therefore help but notice the sarcasm in the petitioner's use
of the phrase "your honor please." For, after using said phrase he manifested
utter disrespect to the court in his subsequent utterances. Surely this
behavior from an officer of the Court cannot and should not be countenanced,
if proper decorum is to be observed and maintained during court
proceedings.12
Indeed, the conduct of petitioner in persisting to have his documentary
evidence marked to the extent of interrupting the opposing counsel and the
court showed disrespect to said counsel and the court, was defiant of the
court's system for an orderly proceeding, and obstructed the administration
of justice. The power to punish for contempt is inherent in all courts and is
essential to the preservation of order in judicial proceedings and to the
enforcement of judgments, orders, and mandates of the court, and
consequently, to the due administrative of justice.13 Direct contempt is
committed in the presence of or so near a court or judge, as in the case at
bar, and can be punished summarily without hearing.14 Hence, petitioner
cannot claim that there was irregularity in the actuation of respondent judge
in issuing the contempt order inside her chamber without giving the petitioner
the opportunity to defend himself or make an immediate reconsideration. The
records show that petitioner was cited in contempt of court during he hearing
in the sala of respondent judge, and he even filed a motion for
reconsideration of the contempt order on the same day.15
Petitioner argued that while it might appear that he was carried by his
emotions in espousing the case of his client – by persisting to have his
documentary evidence marked despite the respondent judge's contrary order
– he did so in the honest belief that he was bound to protect the interest of
his client to the best of his ability and with utmost diligence.
The Court of Appeals aptly stated:
But "a lawyer should not be carried away in espousing his client's cause"
(Buenaseda v. Flavier, 226 SCRA 645, 656). He should not forget that he is
Page 174
an officer of the court, bound to exert every effort and placed under duty, to
assist in the speedy and efficient administration of justice Presiding Judge,
RTC, Br. 15, Ozamis City, 249 SCRA 432, 439). He should not, therefore,
LEGAL ETHICS
misuse the rules of procedure to defeat the ends of justice per Rule 10.03.
Canon 10 of the Canons of Professional Responsibility, or unduly delay a
case, impede the execution of a judgment or misuse court processes, in
accordance with Rule 12.04, Canon 12 of the same Canons (Ibid).
"Lawyers should be reminded that their primary duty is to assist the courts in
the administration of justice. Any conduct which tends to delay, impede or
obstruct the administration of justice contravenes such lawyer's duty."16
Although respondent judge was justified in citing petitioner in direct contempt
of court, she erred in imposing a fine in the amount of P3,000.00 which
exceeded the ceiling of P2,000.00 under Supreme Court Administrative
Circular No. 22-95 which took effect on November 16, 1995. It was not
established that the fine was imposed in bad faith. The Court of Appeals thus
properly ordered the return of the excess of P1,000.00. Aside from the fine,
the three days imprisonment meted out to petitioner was justified and within
the 10-day limit prescribed in Section 1, Rule 71 of the Rules of Court, as
amended.
It is our view and we hold, therefore, that the Court of Appeals did not commit
any reversible error in its assailed decision.
WHEREFORE, the assailed Decision dated March 6, 1998 of the Court of
Appeals is hereby AFFIRMED. The Regional Trial Court of Cavite, Branch
90, Imus, Cavite is ordered to return to the petitioner, Rexie Efren A.
Bugaring, the sum of P1,000.00 out of the original fine of
P3,000.00.1âwphi1.nêt
SO ORDERED.
G.R. No. L-27662 October 29, 1968
MANILA PEST CONTROL, INC., petitioner,
vs.
WORKMEN'S COMPENSATION COMMISSION, ATANACIO A. MARDO,
as Chief Hearing Officer of Regional Officer of the Department of Labor,
CITY SHERIFF OF MANILA and MARIO ABITRIA, respondents.
Manuel A. Corpuz for petitioner.
Pagano C. Villavieja and Cecilia E. Curso for public respondent Atanacio A.
Mardo.
Hector C. Regino for private respondent.
FERNANDO, J.:
This Court, in a resolution of June 21, 1967, was persuaded, regrettably as it
turned out, to give due course to acertiorari and prohibition proceeding with a
plea for preliminary injunction, a restraining order being issued, in view of the
rather vehement and earnest protestations of petitioner Manila Pest ControI,
Inc. that it was denied procedural due process. As will be more fully explained,
such is not the case at all.
More specifically, it was alleged that on February 24, 1967, respondent
Workmen's Compensation Commission, through its referee, considered a
complaint filed against it by the other respondent, Mario Abitria, for
compensation submitted for decision after he and a physician had testified,
petitioner's counsel having failed to appear at the hearing of February 24,
1967.1 Then came, according to the petition, a motion for reconsideration
dated March 7, 1967, petitioner praying that he be allowed to present
evidence on his behalf.2 It was denied in an order of April 4, 1967, as a
decision had already been rendered against petitioner, as employer,
awarding respondent Abitria P6,000.00 as his disability compensation
benefit. It was also pointed out in such order that there was no plea in such
motion for reconsideration for such decision being set aside, as it was limited
to seeking an opportunity to cross-examine the witnesses. It could not be
granted as the matter was looked upon as "moot and academic."3 It was then
alleged in the petition that on April 11, 1967, a motion for reconsideration of
the aforesaid order was filed with the averment that petitioner was not aware
of any decision rendered in the case as no copy of the same had theretofore
been furnished to its counsel.4 After a denial of such motion for
reconsideration on April 24, 1967, and a plea for execution on behalf of
respondent Abitria, which was granted on June 14, 1967, the City Sheriff of
Manila, likewise made a respondent, levied on petitioner's properties on June
14, 1967, by virtue of the above writ of execution.5
It is petitioner's contention that in the light of the above alleged infringement
of procedural due process, the actuation of respondent Commission was
either in excess of its jurisdiction or with grave abuse of discretion. That was
the basis for the relief sought, seeking a writ of preliminary injunction
restraining City Sheriff of Manila, from proceeding with the sale at public
PINEDAPCGRNMAN
auction of petitioner's properties and after hearing, annulling the aforesaid
writ of execution and likewise all the proceedings in RO4-WC Case No. 5503,
thereafter making the injunction permanent, and ordering respondent Abitria
to pay petitioner the sum of P500.00 as attorney'sfees. Thus was imparted
more than just a semblance of plausibility to the petition, deceptive in
character, as subsequent pleadings proved, but nonetheless insufficient to
call for its summary dismissal.
On June 21, 1967, this Court issued a resolution to this effect: "The
respondents in L-27662 (Manila Pest Control, Inc. vs. Workmen's
Compensation Commission, et al.) are required to file, within 10 days from
notice hereof, an answer (not a motion to dismiss) to the petition for
prohibition; let temporary restraining order issue, effective immediately and
until further orders from this Court."
The answer of respondent Workmen's Compensation Commission of July
21, 1967 and the later pleadings, revealed quite a different story. It is now
quite clear that instead of being the offended party suffering from a legitimate
grievance, its right to due process having been summarily disregarded,
petitioner was not above resorting to every technicality the law affords to
evade the performance of an obligation, which under the law it must fulfill,
namely, to compensate for the serious and debilitating ailment of tuberculosis
acquired in the course of employment by respondent Abitria. Accordingly, the
petition for certiorari and prohibition should be, as it is hereby, denied.
The facts as found by respondent Workmen's Compensation Commission,
which must be deemed conclusive, can yield no other conclusion but the
undeniable liability for compensation to respondent Abitria on the part of
petitioner. Thus: "From the recorded evidence, it appears that claimant was
employed with the respondent since February 4, 1956, working six (6) days
a week and receiving an average monthly wage of P180.00 as laborer for the
respondent. He was assigned in the Research Division which conducted
research on rat traps and other matters regarding extermination of pests,
animals and insects. It was testified to by the claimant and his witnesses that
in the place of his employment he was made to inhale dangerous fumes as
the atmosphere was polluted with poisonous chemical dusts. The working
condition of his place of work was also warm and humid in view of the
products being manufactured by the respondent. He was not extended any
protective device and he was also made to lift heavy objects in the painting
and soldering. In his soldering work muriatic acid and soldering paste [were]
used. Sometime in July, 1966 while the claimant was soldering [he] began to
experience symptoms of pulmonary tuberculosis. Because of his spitting of
blood or hemoptysis, he went to consult Dr. Felix Tuazon of the Quezon
Institute whose diagnosis was pulmonary tuberculosis, chronic, active
moderately advanced, right: minimal, left. He was confined at the Quezon
Institute under the care of Dr. Felix Tuazon. According to the attending
physician, he was admitted in the hospital ward as a hemoptic patient or one
who is bleeding from the lungs. When he was admitted he was prescribed
Vita K. ampules, bronocal, ablocid, duestrep injections and other anti-TB
drugs. His clinical history showed that the claimant was diagnosed with
severe coughing followed by expectoration of fresh blood amounting to two
glassful [when] he was brought to the Philippine General Hospital and given
injection and was X-rayed. From that hospital he was transferred to the
Quezon Institute where he was subsequently admitted. The attending
physician testified further that the right lung had bronchogenous lesions in
the upper lobe with honeycomb at 2nd and 3rd intercostal space, while the
left lung had fibrotic lesion behind the anterior rib II. ... He was discharged
from the Quezon Institute on September 3, 1966, but the illness was not yet
arrested although there was stopping of the hemoptysis. The doctor testified
on cross examination that the nature of work of the claimant involving
strenuous physical exertion and other factors of work such as the lowering of
his resistance in view of the enormous inhalation of chemical fumes also
brought about the aggravation of the claimant's present condition. According
to the claimant the respondent was duly notified of his illness through the
general manager and in view of the respondent's refusal to pay him disability
compensation despite repeated demands, claimant filed this instant claim."6
The sole issue then, as accurately set forth in the above decision, was "to
determine in this case ... whether ... there is sufficient or substantial evidence
in support of the claim for disability compensation benefits under the
Workmen's Compensation Law. The evidence on record is crystal clear that
Page 175
the claimant had already substantially proven his case and all indications
point that the illness of moderately advanced, pulmonary tuberculosis was
service connected in view of his work as laborer involving strenuous physical
LEGAL ETHICS
exertion which brought about the lowering of his resistance due to the
massive inhalation of injurious chemical fumes to the extent that he was
made an easy prey to the contraction of TB bacilli. The fact that there was no
evidence on record that claimant was sick upon entrance to his employment,
it is presumed that he was normal in every respect during the first period of
his employment and the disease of pulmonary tuberculosis showed only
during the later part of his employment when he was assigned in the research
division of the respondent. The attending physician himself stated that
claimant's exposure to his work aggravated the illness and we believe that
the respondent had failed to dispute the work connection as there is no
showing that claimant's ailment was due to the lowering of his resistance by
causes other than the nature of his work as laborer of the respondent."7
It must be a realization that no valid defenses could be interposed that
prompted petitioner to rely on the alleged deprivation of due process, a
contention, which as will now be shown, is without basis.
The petition was so worded that the employer's right to be heard appeared
to have been disregarded. No further attention should be accorded such an
alleged grievance. If it did not introduce any evidence, it had itself solely to
blame. No fault could be attributed to respondent Workmen's Compensation
Commission. There must be such a realization on the part of petitioner for its
four-page memorandum submitted in lieu of oral argument did not bother to
discuss such a matter at all. Accordingly, such a contention need not detain
us further as it ought never to have been raised in the first place.
Petitioner would make much however of the allegation that, as shown in the
answer of respondent Workmen's Compensation Commission,8 the decision
was sent to a certain Attorney Manuel Camacho but care of petitioner's
counsel, Attorney Manuel Corpuz. Petitioner would emphasize that the one
"officially furnished" with a copy of such decision was not its counsel, who
was without any connection with the aforesaid Attorney Camacho. It would
conclude, therefore, that it had not received a copy of a decision which could
not thereafter reach the stage of finality calling for a writ of execution.
This contention was squarely met in the reply-memorandum of November 6,
1967 of the Workmen's Compensation Commission. Why it happened thus
was explained in an affidavit of one of its employees, a certain Gerardo
Guzman, included therein.9 As set forth in such reply memorandum: "As
stated in the affidavit of Mr. Guzman, he went to the office of Atty. Corpuz,
on March 10, 1967 to deliver a copy of the decision ..., but Atty. Corpuz
refused to receive the said decision alleging that he was no longer handling
the case. Atty. Corpuz, instead instructed Mr. Guzman to deliver the said
decision to Atty. Camacho since it was already Atty, Camacho who was
handling the case, and Atty. Camacho, according to Atty. Corpuz, even had
the records of the case."10In view of such instruction, it was further noted,
Guzman "went the office of Atty. Camacho, but since Atty. Camacho was not
around he handed the copy of the decision to the receiving clerk therein, who
received it as evidenced by the stamp pad bearing the name of the Law Office
of Camacho, Zapa, Andaya & Associates on the attached true copy of the
Notice of Decision, ..."11
From which it could make the apt observation. "It is indeed sad to note that
after the Counsel for Petitioner refused to receive the copy of said decision,
he is now impugning the delivery of said decision to Atty. Camacho and is
denying knowledge of it when in fact and truth the delivery of said decision
to Atty. Camacho was made per his instruction to Mr. Guzman, as evidenced
by the attached affidavit of Mr. Guzman."12
In view of the rather persuasive character of such an affidavit and the
understandable reflection on the actuation of counsel for petitioner, there
was, as could be expected submitted by petitioner's counsel a rejoinder,
dated November 26, 1967. He would have this Court believe that the reply-
memorandum is contradicted by what appeared in respondents' answer,
where it was stated that a copy of the decision was received, not by him but
by the law office of a certain Attorney Camacho. He would then ask why
Guzman did not serve a copy of the decision to him. He would even assume,
for argument sake, that there was a refusal on his part to accept a copy of
this decision, but he would argue why did not Guzman, who could be
expected to know the duties of a service officer, fail "to state said refusal in
his official return."
Which of the above conflicting versions is entitled to credence? That of
respondent Workmen's Compensation Commission would appear to be more
in accordance with the realities of the situation. It is entitled to belief.
This would not be the first time, in the first place, where out of excess of zeal
and out of a desire to rely on every conceivable defense that could delay if
PINEDAPCGRNMAN
not defeat the satisfaction of an obligation incumbent on one's client, counsel
would attempt to put the most favorable light on a course of conduct which
certainly cannot be given the stamp of approval. Not that it would clear
counsel of any further responsibility. His conduct leaves much to be desired.
His responsibility aside, it made evident why, to repeat the effort to evade
liability by petitioner by invoking the due process guaranty must not be
rewarded with success.
Under the above circumstances, no due process question arose. What was
done satisfied such a constitutional requirement. An effort was made to serve
petitioner with a copy of the decision; that such effort failed was attributable
to the conduct of its own counsel. True, there was a denial; it is far from
persuasive, as already noted. It does not have the ring of truth. There is no
reason why the decision would have been served on some other counsel if
there where no such misinformation, if there where no such attempt to
mislead.
No benefit would have accrued to respondent Workmen's Compensation
Commission. It was merely performing its official function. Certainly, it could
be expected to see to it that the law's beneficiaries were not inconvenienced,
much less frustrated, by its failure to follow the regular procedure prescribed.
It was unlikely that the employee entrusted with serving a copy of the
decision, in this particular case, and in this particular case alone, would
depart so radically from what the law requires, if there were no such
intervening cause that resulted in his going astray. How could petitioner
escape responsibility?
Petitioner, and petitioner alone, could be expected to furnish such a cause.
Who would benefit thereby? The answer cannot be in doubt. Through such
circumstance, wether intended or otherwise, a basis was laid for at least a
delay of the fulfillment of a just claim. For it is to be noted that there is no, as
there could not be any, valid ground for denying compensation to respondent
Abitria on the facts as found. Considering how great and pressing the
laborer's need for the compensation due him was and the consequent
temptation to settle for less if in the meanwhile, the money he had the right
to expect, was not forthcoming, petitioner, as the employer liable, had
everything to gain and nothing to lose by such a turn of events. Even if it were
an honest mistake, the consequences were still deplorable.
It is quite revealing that in not one of the pleadings filed by petitioner did it
ever indicate how it could validly avoid its liability under the Workmen's
Compensation Commission which disclosed that the ailment suffered by
respondent Abitria while in its employment was indeed compensable. Neither
in its memorandum submitted on October 19, 1967 nor rejoinder of
November 21, 1967, did it ever occur to petitioner to allege that if given the
opportunity for hearing it could interpose a plausible, not to say a valid
defense. It did not do so because it could not do so. Our decisions as to the
undeniable liability of an employer similarly situated are impressive for their
number and unanimity.13
It would thus be grimly ironic if the due process concept, in itself an assurance
and a guaranty of justice and fairness, would be the very vehicle to visit on a
hapless and impoverished litigant injustice and unfairness. The law itself
would stand in disrepute, if such a gross perversion of its dictates were
allowed. Any other view is unthinkable. Otherwise, there would be a
stultification of all our efforts to promote social justice14 and a mockery of the
constitutional ideal of protection to labor.15
Considering the above, it is not enough that petitioner be required to pay
forthwith the sum due respondent Abitria. The unseemly conduct, under the
above circumstances disclosed, of petitioner's counsel, Attorney Manuel A.
Corpuz calls for words of reproof.
It is one thing to exert to the utmost one's ability to protect the interest of
one's client. It is quite another thing, and this is to put it at its mildest, to take
advantage of any unforeseen turn of events, if not to create one, to delay if
not to defeat the recovery of what is justly due and demandable, especially
so, when as in this case, the obligee is a necessitous and poverty-stricken
man suffering from a dreaded disease, that unfortunately afflicts so many of
our countrymen and even more unfortunately requires an outlay far beyond
the means of our poverty stricken masses.
The ancient and learned profession of the law stresses fairness and honor;
that must ever be kept in mind by everyone who is enrolled in its ranks and
who expects to remain a member in good standing. This Tribunal is rightfully
Page 176
entrusted with the serious responsibility of seeing to it that no deviation from
such a norm should be countenanced. If what occurred here would not be
characterized for the shocking thing it was, then it could be said that the law
LEGAL ETHICS
is less than fair and far from honorable. What happens then to the ideal that
only he is fit to belong to such a profession who remains a faithful votary at
the altar of justice? Such an ideal may be difficult to approximate. That is
true, but let it not be said that when such a notorious breach of its lofty
standard took place, as unfortunately it did in this case, this Court exhibited
magnificent unconcern.
WHEREFORE, this petition for certiorari and prohibition with preliminary
injunction is denied. With treble costs against petitioner to be paid by his
counsel, Attorney Manuel A. Corpuz.
[A.C. No. 6289. December 16, 2004]
JULIAN MALONSO, complainant, vs. ATTY. PETE PRINCIPE,
respondent.
DECISION
TINGA, J.:
The duty of courts is not alone to see that lawyers act in a proper and lawful
manner; it is also their duty to see that lawyers are paid their just and lawful
fees. Certainly, no one, not even the Court can deny them that right; there is
no law that authorizes them to do so.[1]
In a Complaint[2] for disbarment dated 6 June 2001 filed before the Integrated
Bar of the Philippines (IBP), Julian Malonso claimed that Atty. Pete Principe,
without any authority entered his appearance as Malonsos counsel in the
expropriation proceedings initiated by the National Power Corporation
(NAPOCOR). In addition, he complained that Atty. Principe, after illegally
representing him in the said case, claimed forty (40%) of the selling price of
his land to the NAPOCOR by way of attorneys fees and, further, in a Motion
to Intervene, claimed to be a co-owner of Malonsos property.[3]
In his Answer,[4] respondent replied that the services of his law office,
Principe Villano Villacorta and Clemente Law Offices, was engaged by
Samahan ng mga Dadaanan at Maapektuhan ng NAPOCOR, Inc.
(SANDAMA), through its President, Danilo Elfa, as embodied in the Contract
of Legal Services executed on 01 April 1997.[5] The Contract states in part:
The parties mutually agree one with the other as follows:
I. SECOND PARTY engages the services of the FIRST PARTY as their
lawyer of the collection, claim, and/ or payment of just compensation of its
members with the NAPOCOR;
II. FIRST PARTY accepts the engagement; both parties further agree on the
following conditions:
A. Scope of Work - negotiation, legal documentation, attendance to court
proceedings and other related activities;
B. Payment of Fees is on contingent basis. No acceptance fees, appearance
and liaison fees;
C. The legal fees or payment to FIRST PARTY:
1. Forty (40%) Percent of the selling price between NAPOCOR and the
SANDAMA members; this forty (40%) [percent] is the maximum rate and may
be negotiated depending on the volume of work involved;
2. Legal Fees as stated above shall cover:
i.) Attorneys Fees of FIRST PARTY;
ii.) His representation expenses and commitment expenses;
iii.) Miscellaneous Expenses, etc.
D. Both parties agree to exert their best efforts to increase or secure the best
price from NAPOCOR.
Respondent claimed that complainant Malonso is a member of SANDAMA
and that said member executed a special power of attorney[6] in favor of Elfa,
which served as the latters authority to act in behalf of Malonso. In the
document, Malonso authorized Elfa in the following manner:
Ako, si JULIAN M. MALONSO, nasa hustong gulang, may asawa, Pilipino at
naninirahan sa 92 New York St. Cubao, Q.C., sa pamamagitan nito ay
ITINATALAGA at BINIBIGYANG KAPANGYARIHAN si G. DANILO V. ELFA,
nasa hustong gulang, may asawa, Pilipino at naninirahan sa 038 Dulong
Bayan, San Jose del Monte, Bulacan, upang gumanap at umakda para sa
akin/amin upang gumawa tulad ng mga sumusunod:
1. PANGASIWAAN, ISAAYOS at MAKIPAGKASUNDO (negotiate) para sa
pagbebenta ng akin/aming lupa, sa National Power Corp. (NAPOCOR), na
may Titulo Bilang T-229122, na nasasakupan ng Dulong Bayan, San Jose
del Monte, Bulacan;
2. TUMAYONG KINATAWAN O REPRESENTANTE ko/naming saan man at
ano man maging sa hukuman o alin man sa mga opisinang may kinalaman
hinggil sa aming nabanggit na pagbebenta ng akin/aming lupa;
PINEDAPCGRNMAN
3. TUMANGGAP AT MAGSUMITE ng mga papeles na nauukol sa lupang
nabanggit sa Bilang 1;
4. GUMANAP ng ano man sa inaakala ni G. DANILO V. ELFA na nararapat,
matuwid at makabubuti para sa nabanggit sa Bilang 1;
5. NA sa pamamagitan ng kasunduan at kapasyahang ito ay binibigyan ng
karapatan at kapangyarihang lumagda sa lahat ng papeles/dokumento si G.
Danilo V. Elfa, ngunit sa isang pasubali na HINDI KAILAN MAN SIYA DAPAT
AT WALA SIYANG KARAPATANG LUMAGDA S GANAP NA BENTAHAN
(ABSOLUTE DEED OF SALE).
DITOY AKING IGINAGAWAD sa naturan naming kinatawan ang lahat ng
karapatang kumilos at magsagawa upang isakatuparan ang kapangyarihang
magbili sa bisa ng karapatang dito ay iginagawad sa kanya nang kahalintulad
nang kung kami, sa ganang aming sarili ang mismong nagsasagawa, at ditoy
AMING PINAGTITIBAY ang lahat ng kanyang gawin na nasa aming naman
ang lubos na karapatang siya ay palitan o bawiin ang Gawad na Karapatang
ito.
In his Reply,[7] Malonso reiterated that he did not authorize Elfa to act in his
behalf, considering that while the Contract of Legal Services entered into by
Atty. Principe and Elfa was dated 01 April 1997, the special power of attorney
he executed bore a much later date, 27 November 1997. Moreover, he could
not have authorized Elfa to hire a lawyer in his behalf since he already had
his own lawyer in the person of Atty. Benjamin Mendoza.
To counter this argument, Atty. Principe commented that the agreement
entered into by SANDAMA and his law firm is a continuing one and hence,
Malonso was within the coverage of the contract even if he executed the
special power of attorney on a later date. Likewise, as a member of
SANDAMA, Malonso is bound to honor the organizations commitments.[8]
The Court adopts the chronological order of events as found by the IBP
Investigating Commissioner, Julio C. Elamparo:
In the early part of 1997, National Power Corp. (NPC for brevity) instituted
expropriation proceedings against several lot owners in Bulacan including
the complainant in this case.
On April 1, 1997, a Contract of Legal Services was entered into between the
law firm Principe Villano and Clemente Law Offices and SANDAMA, Inc.
(Samahan ng mga Dadaanan at Maapektuhan ng National Power
Corporation) represented by its President Danilo V. Elfa. SANDAMA is the
organization of lot owners affected by the expropriation proceedings.
Complainant is a member of this organization.
On November 27, 1997, complainant executed a Kasulatan ng Pagbibigay
Kapangyarihan in favor of Danilo Elfa appointing the latter as the attorney-in-
fact of the complainant on the matter of negotiation with the NPC.
On December 21, 1999, NPCs Board of Directors approved the amicable
settlement of the expropriation cases by paying all the lot owners the total of
One Hundred Three Million Four Hundred Thirteen Thousand Two
Hundred Pesos (P103,413,200.00).
More that two (2) years after the expropriation cases were instituted and while
complainant was represented therein by Atty. Benjamin Mendoza, or on
January 18, 2000, respondent filed an Ex-Parte Motion to Separate Legal
Fees From Selling Price Between Plaintiffs and Defendants.
About ten days after respondent filed his motion to separate legal fees,
respondent filed his Notice of Entry of Appearance (dated January 28, 2000)
claiming that respondent is the legal counsel of the complainant, a defendant
in said case.
On February 12, 2000, Sixty Nine (69) lot owners including the complainant
wrote a letter to NPC informing the latter that they have never authorized Mr.
Danilo Elfa to hire the services of the respondents law firm to represent them
in the expropriation cases.
On February 17, 2000, complainant filed an Opposition to respondents entry
of appearance and motion to separate legal fees.
On March 7, 2000, respondent filed a Notice of Attorneys Lien claiming 40%
of the selling price of the properties being expropriated by NPC.
On April 10, 2000, respondent filed a Notice of Adverse Claim before the
Register of Deeds of Bulacan claiming 40% of the rights, title and interest of
the lot owners over their lots being expropriated including that of complainant.
On November 20, 2000, respondent herein filed a Motion for Leave to
Intervene in the expropriation case claiming to be a co-owner of the property
being expropriated.
Page 177
On February 26, 2001, respondent filed an Opposition to the Compromise
Agreement submitted by the lot owners and NPC for court approval.
LEGAL ETHICS
Because of the actions taken by the respondent, the execution of the decision
approving the compromise agreement between the lot owners and the NPC
was delayed.[9]
The Report found that the Contract of Legal Services is between SANDAMA,
a corporate being, and respondents law firm. SANDAMA is not a party in all
of the expropriation proceedings instituted by NAPOCOR, neither does it
claim co-ownership of the properties being expropriated. Furthermore, the
power of attorney was executed by Malonso in favor of Elfa and not
SANDAMA, and that said power of attorney was executed after SANDAMA
entered into the Contract of Legal Services. Thus, the Report concluded that
the right of co-ownership could not be derived from the said documents.[10]
Likewise, the Report noted that the right of legal representation could not be
derived from the above-mentioned documents. A contract for legal services
between a lawyer and his client is personal in nature and cannot be
performed through intermediaries. Even Elfa, the attorney-in-fact of Malonso,
was never authorized to engage legal counsels to represent the former in the
expropriation proceedings. Moreover, SANDAMA is not a party litigant in the
expropriation proceedings and thus Atty. Principe has no basis to interfere in
the court proceeding involving its members.
The Investigating Commissioner concluded that from the evidence presented
by both parties, Atty. Principe was guilty of misrepresentation. Atty. Principe
was found to have violated Canon 3, Rule 3.01, Canon 10, Rule 10.01 and
Rule 12.04.[11] In representing himself as Malonsos and the other lot owners
legal counsel in the face of the latters opposition, Atty. Principe was found to
be guilty of gross or serious misconduct. Likewise, his act of falsely claiming
to be the co-owner of properties being expropriated and his filing of several
actions to frustrate the implementation of the decision approving the
compromise agreement make his conduct constitutive of malpractice. The
Report recommended the penalty of two (2) years suspension from the
practice of law. [12]
In its Resolution[13] dated 25 October 2003, the IBP Board of Governors
ordained:
RESOLUTION NO. XVI-2003-241
CBD Case No. 01-848
Julian Malonso v.
Atty. Pete Principe
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, with
modification, and considering respondents violation of Rule 3.01 of Canon
3, Rule 10.01 of Canon 10 and Rule 12.04 of Canon 12 of the Code of
Professional Responsibility, Atty. Pedro Principe is hereby
SUSPENDED from the practice of law for one (1) year.
In his Appeal Memorandum,[14] respondent claims that the Resolution No.
XVI-2003-241 has no factual and legal basis, the complaint having been
motivated by pure selfishness and greed, and the Resolution itself invalid for
having failed to comply with Rule 139-B of the Rules of Court.[15] According
to the respondent, the Investigating Commissioner continued to investigate
the instant case despite the lapse of three months provided under Section 8
of Rule 139-B, without any extension granted by the Supreme Court.[16]
Moreover, in the subsequent review made by the IBP Board of Governors,
no actual voting took place but a mere consensus, and the required number
of votes provided by the Rules was not secured considering that there were
only five (5) governors present.[17] Respondent opines that the actions of the
IBP Board were aimed at preventing him from pursuing his known intention to
run for IBP National President.[18]
We find for the respondent.
It is the duty of the Supreme Court to see to it that a lawyer accounts for his
behavior towards the court, his client, his peers in the profession and the
public. However, the duty of the Court is not limited to disciplining those guilty
of misconduct, but also to protecting the reputation of those wrongfully
charged, much more, those wrongfully found guilty.
On the other hand, the IBP is aimed towards the elevation of the standards
of the law profession, the improvement of the administration of justice, and
the enabling of the Bar to discharge its public responsibility more
effectively.[19] Despite its duty to police the ranks, the IBP is not exempt from
the duty to promote respect for the law and legal processes and to abstain
from activities aimed at defiance of the law or at lessening confidence in the
PINEDAPCGRNMAN
legal system.[20] Respect for law is gravely eroded when lawyers themselves,
who are supposed to be minions of the law, engage in unlawful practices and
cavalierly brush aside the very rules formulated for their observance.[21] For
the very same reasons, the Court cannot accept the explanation[22] of Atty.
Carlos L. Valdez, Jr. on the non-holding of a formal voting for respondents
case that:
Eventually, the Board reached a consensus to reduce the recommended
penalty from two years to one year suspension. Since there was already a
consensus, the Board did not hold a formal voting. A formal voting became
unnecessary inasmuch as it was obvious that the decision of the Board
became unanimous.
I assure the Honorable Justices of the Supreme Court that due process was
observed and the Rules governing the Disbarment and Discipline of
Attorneys were faithfully observed and complied with by the IBP Board of
Governors.
The procedures outlined by the Rules are meant to ensure that the innocents
are spared from the wrongful condemnation and that only the guilty are
meted out their just due. These rules cannot be taken lightly.[23]
This Court underscores the procedural transgression incurred by the IBP
Board when it issued Resolution No. XVI-2003-241 which was reached
through a mere consensus, and not through a formal voting, with the required
number of votes not secured. As to the issue of the protracted investigation
without the requisite permission from the Supreme Court to extend the
investigation period, we agree with respondent that no such request was
made to this Court.
The pertinent provisions of Rule 139-B read:
Sec. 8. Investigation. Upon joinder of issues or upon failure of the respondent
to answer, the Investigator shall, with deliberate speed, proceed with the
investigation of the case. He shall have the power to issue subpoenas and
administer oaths. The respondent shall be given full opportunity to defend
himself, to present witnesses on his behalf, and be heard by himself and
counsel. However, if upon reasonable notice, the respondent fails to appear,
the investigation shall proceed ex parte.
The Investigator shall terminate the investigation within three (3) months from
the date of its commencement, unless extended for good cause by the Board
of Governors upon prior application.
...
Sec. 12. Review and decision by the Board of Governors. (a)
(b) If the Board, by the vote of a majority of its total membership, determines
that the respondent should be suspended from the practice of law or
disbarred, it shall issue a resolution setting forth its findings and
recommendations which, together with the whole record of the case, shall
forthwith be transmitted to the Supreme Court for final action.
Relevantly, Sec. 6, Rule 139-A of the Rules of Court provides in part:
Sec. 6. Board of Governors. the Integrated Bar shall be governed by a Board
of Governors. Nine Governors shall be elected by the House of Delegates
from the nine Regions on the representation basis of one Governor from each
Region.
The Board shall meet regularly once every three months, on such date and
at such time and place as it shall designate. A majority of all the members of
the Board shall constitute a quorum to do business.
From these provisions, it is clear that before a lawyer may be suspended
from the practice of law by the IBP, there should be (1) a review of the
investigators report; (2) a formal voting; and (3) a vote of at least five (5)
members of the Board. The rationale for this rule is simple: a decision
reached by the Board in compliance with the procedure is the official decision
of the Board as a body and not merely as the collective view of the individual
members thereof. This is in keeping with the very nature of a collegial body
which arrives at its decisions only after deliberation, the exchange of views
and ideas, and the concurrence of the required majority vote.[24] Thus, the
vote of the majority would be necessary for the validity of the Boards
resolution. Without a vote having been taken, Resolution No. XVI-2003-241
(CBD Case No. 01-848) is void and has no effect.
The Court views with disapproval the fashion by which the IBP Board of
Governors, with a fellow lawyer and fellow governors reputation and good
name at stake, cavalierly brushed aside the procedural rules outlined no less
by this Court for the discipline and protection of its members. The IBP, more
Page 178
than anyone, knows that the success of a lawyer in his profession depends
almost entirely on his reputation. Anything, which will harm his good name,
is to be deplored.[25] And yet the IBP Board of Governors, despite clear
LEGAL ETHICS
evidence to the contrary, and without any remorse, even asserted that due
process was observed and the Rules governing the Disbarment and
Discipline of Attorneys were faithfully observed and complied.
Normally, non-compliance with the procedural rules would result in the
remand of the case.[26] However, on many occasions, the Court, in the public
interest and the expeditious administration of justice, has resolved actions on
the merits instead of remanding them for further proceedings, such as where
the ends of justice would not be subserved by the remand of the case, or
when public interest demands an early disposition of the case, or where the
trial court had already received all the evidence of the parties.[27] In view of
the delay in resolving the instant complaint against the respondent, and in
the interest of justice and speedy disposition of cases, the Court opts to
resolve the same based on the records before it.[28]
Before delving at length on the merits of the other aspect of the present
proceedings, there is need to dwell first on a dimension of expropriation
proceedings which is uniquely its own.
There are two stages in every action for expropriation. The first is concerned
with the determination by the courts of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of its exercise in the context
of the facts involved in the suit. The second phase is concerned with the
determination by the court, with the assistance of commissioners, of the just
compensation for the property sought to be taken which relates to the
valuation thereof. The order fixing the just compensation on the basis of the
evidence before, and findings of, the commissioners would be final and would
dispose of the second stage of the suit, leaving nothing more to be done by
the Court regarding the issue.[29] During this stage, the main bone of
contention is the valuation of the property concerned.
The second stage which involves the issue of just compensation is as
important, if not more, than the first stage which refers to the issue of public
purpose. But as it frequently happens, as in this case, the public purpose
dimension is not as fiercely contested. Moreover, in their quest to secure
what they believe to be the fair compensation of their property, the owners
seek inroads to the leverages of executive power where compensation
compromises are commenced and given imprimatur. In this dimension, the
services of lawyers different from the ordinary litigator may prove to be handy
or even necessary. Negotiations are mostly out of court and relies, for most
part, on the sagacity, persuasion, patience, persistence and resourcefulness
of the negotiator.
In the instant case, the trial court had already ruled on the valuation of the
properties subject of the expropriation, the same order which is subject of the
appeal filed by the NAPOCOR. Aware that it might take a long time before
the said appeal is finally resolved, and in view of the delay in the adjudication
of the case, the landowners and NAPOCOR negotiated for a compromise
agreement. To assist them, the landowners, through SANDAMA and its
president, Danilo Elfa, engaged the services of a lawyer in the person of
respondent. It is clear that respondent was hired precisely for the negotiation
phase of the case.
Now, on to the merits.
As a legal entity, a corporation has a personality distinct and separate from
its individual stockholders or members and from that of its officers who
manage and run its affairs.[30] The rule is that obligations incurred by the
corporation, acting through its directors, officers and employees, are its sole
liabilities.[31] Thus, property belonging to a corporation cannot be attached to
satisfy the debt of a stockholder and vice versa, the latter having only an
indirect interest in the assets and business of the former.[32] Thus, as summed
by the IBP investigator, respondent is the lawyer of SANDAMA, but
SANDAMA is not a party litigant in all of the expropriation cases; thus
respondent had no basis to interfere in the court proceedings involving the
members. But things are not as simple as that.
A review of the records reveals that respondent had grounds to believe that
he can intervene and claim from the individual landowners. For one, the
incorporation of the landowners into SANDAMA was made and initiated by
respondents firm so as to make negotiations with NAPOCOR easier and
more organized. SANDAMA was a non-stock, non-profit corporation aimed
towards the promotion of the landowners common interest. It presented a
unified front which was far easier to manage and represent than the individual
owners. In effect, respondent still dealt with the members, albeit in a
collective manner.
Second, respondent relied on the representation of Danilo Elfa, former
SANDAMA president and attorney-in-fact of the members, with whom he
PINEDAPCGRNMAN
entered into a contract for legal services. Respondent could not have
doubted the authority of Elfa to contract his firms services. After all, Elfa was
armed with a Board Resolution from SANDAMA, and more importantly,
individual grants of authority from the SANDAMA members, including
Malonso.
Third, the contract for legal services clearly indicated a contingent fee of forty
percent (40%) of the selling price of the lands to be expropriated, the same
amount which was reflected in the deed of assignment made by the individual
members of SANDAMA. Respondent could have easily and naturally
assumed that the same figure assigned to SANDAMA was the same amount
earmarked for its legal services as indicated in their service contract. Being
a non-stock, non-profit corporation, where else would SANDAMA get the
funds to pay for the legal fees due to respondent and his firm but from the
contribution of its members.
Lastly, respondents legal services were disengaged by SANDAMAs new
President Yolanda Bautista around the same time when the SANDAMA
members abandoned and disauthorized former SANDAMA president Elfa,
just when the negotiations bore fruit. With all these circumstances,
respondent, rightly or wrongly, perceived that he was also about to be
deprived of his lawful compensation for the services he and his firm rendered
to SANDAMA and its members. With the prevailing attitude of the SANDAMA
officers and members, respondent saw the immediate need to protect his
interests in the individual properties of the landowners. The hairline
distinction between SANDAMA and its individual members interests and
properties, flowing as it does from a legal fiction which has evolved as a
mechanism to promote business intercourse but not as an instrument of
injustice, is simply too tenuous, impractical and even unfair in view of the
circumstances.
Thus, the Court cannot hold respondent guilty of censurable conduct or
practice justifying the penalty recommended. While filing the claim for
attorneys fees against the individual members may not be the proper remedy
for respondent, the Court believes that he instituted the same out of his
honest belief that it was the best way to protect his interests. After all,
SANDAMA procured his firms services and was led to believe that he would
be paid for the same. There is evidence which tend to show that respondent
and his firm rendered legal and even extra-legal services in order to assist
the landowners get a favorable valuation of their properties. They facilitated
the incorporation of the landowners to expedite the negotiations between the
owners, the appraisers, and NAPOCOR. They sought the assistance of
several political personalities to get some leverage in their bargaining with
NAPOCOR. Suddenly, just after concluding the compromise price with
NAPOCOR and before the presentation of the compromise agreement for
the courts approval, SANDAMA disengaged the services of respondents law
firm.
With the validity of its contract for services and its authority disputed, and
having rendered legal service for years without having received anything in
return, and with the prospect of not getting any compensation for all the
services it has rendered to SANDAMA and its members, respondent and his
law firm auspiciously moved to protect their interests. They may have been
mistaken in the remedy they sought, but the mistake was made in good faith.
Indeed, while the practice of law is not a business venture, a lawyer
nevertheless is entitled to be duly compensated for professional services
rendered.[33] It is but natural that he protect his interest, most especially when
his fee is on a contingent basis.[34]
Respondent was disengaged by SANDAMA after a compromise agreement
was entered into by the lot owners and NAPOCOR.[35] Its motions for
separate legal fees as well as for intervention were dismissed by the trial
court. Prescinding from the ultimate outcome of an independent action to
recover attorneys fees, the Court does not see any obstacle to respondent
filing such action against SANDAMA or any of its members. Any counsel,
worthy of his hire, is entitled to be fully recompensed for his services.[36] Such
independent action may be the proper venue to show entitlement to the
attorneys fees he is claiming, and for his client to refute the same. [37] If
respondent could resort to such separate action which obviously is more
cumbersome and portends to be more protracted, there is similarly no rhyme
or reason to preclude him from filing mere motions such as the ones he
resorted to for the purpose of providing what he perceives to be his legitimate
Page 179
claim. The bottom line is that respondent is not proscribed from seeking
recovery of attorneys fees for the services he and his firm rendered to
SANDAMA and its members. As to whether he would succeed in the quest,
 LEGAL ETHICS
that is another story which obviously does not have to be resolved in this
case.
The fact that the contract stipulates a maximum of forty percent (40%)
contingent fees does not make the contract illegal or unacceptable.
Contingent fees are not per se prohibited by law. Its validity depends, in large
measure, upon the reasonableness of the amount fixed as contingent fee
under the circumstances of the case.[38] Nevertheless, when it is shown that
a contract for a contingent fee was obtained by undue influence exercised by
the attorney upon his client or by any fraud or imposition, or that the
compensation is clearly excessive, the Court must, and will protect the
aggrieved party.[39]
WHEREFORE, this case is DISMISSED and considered CLOSED. The
Integrated Bar of the Philippines is enjoined to comply with the procedure
outlined in Rule 139-B in all cases involving the disbarment and discipline of
attorneys.
SO ORDERED.
Rule 12.05 – A lawyer shall refrain from talking to his witness during a
break or recess in the trial, while the witness is still under examination.
Rule 12.06 – A lawyer shall not knowingly assist a witness to
misrepresent himself or to impersonate another.
PINEDAPCGRNMAN
Herein complainants were among the complainants in NLRC Case No. 00-
0403180-98, Microplast, Inc. Workers Union, Represented by its Union
President Zoilo Ardan, et al. v. Microplast, Incorporated and/or Johnny Rodil
and Manuel Rodil, for Unfair Labor Practice (ULP) and Illegal Dismissal, while
respondent was the counsel for the therein respondents. Said case was
consolidated with NLRC Case No. 00-04-03161- 98, Microplast
Incorporated v. Vilma Ardan, et al., for Illegal Strike.
By Decision of August 29, 2001,[3] Labor Arbiter Ariel Cadiente Santos
dismissed the Illegal Strike case, and declared the employer-clients of
respondent guilty of ULP.Thus, the Labor Arbiter disposed:
WHEREFORE, premises considered, the complaint for illegal strike is
dismissed for lack of merit.
Respondents Microplast, Inc., Johnny Rodil and Manuel Rodil are hereby
declared guilty of Unfair Labor Practice for union busting and that the
dismissal of the nine (9) complainants are declared illegal. All the
respondents in NLRC Case No. 00-04-03161-98 for illegal dismissal are
directed to reinstate all the complainants to their former position with full
backwagesfrom date of dismissal until actual reinstatement computed as
follows:

Rule 12.07 – A lawyer shall not abuse, browbeat or harass a witness nor xxxx
needlessly inconvenience him.
3. CRISANTO CONOS
Rights and obligations of a witness – a witness must answer questions, Backwages:
although his answer may tend to establish a claim against him. Basic Wage:
However, it is the right of a witness: 2/21/98 10/30/99 = 20.30 mos.
1. to be protected from irrelevant, improper, or insulting questions P198.00 x 26 days x 20.30 = P104, 504.40
and from harsh or insulting demeanor; 10/31/99 - 10/31/00 = 12 mos.
2. not to be detained longer than the interest of justice requires; P223.50 x 26 days x 12 = 69, 732.00
3. not to be examined except only as to matters pertinent to the 11/01/00 - 8/30/01 = 10 mos.
issue; P250.00 x 26 days x 10 = 65,000.00
4. not to give any answer which will tend to subject him to a penalty P239,236.40
for an offense unless otherwise provided by law, or 13th Month Pay:
5. nor to give answer which will tend to degrade his reputation, 1/12 of P239,236.40 = 19,936.36
unless it be to the very fact at issue or to a fact from which the SILP
fact in issue would be presumed. But a witness must answer to 2/16/98 - 12/31/98 = 10.33 mos.
the fact of his previous final conviction for an offense. (Rule 132, P198.00 x 5 days x 10.33/ 12 = 852.22
Sec. 3, RRC) 1/1/99 - 12/31/99 = 12mos.
P223.50 x 5 days x 12/12 = 1,117.50
RENERIO SAMBAJON, RONALD A.C. No. 7062 1/1/00 - 10/30/01 = 20 mos.
SAMBAJON, CRISANTO CONOS, and [Formerly CBD Case No. 04- P250.00 x 5 days x 20/12 = 2,083.33
FREDILYN BACULBAS, 1355] 4,053.05
Complainants, P263,225.81
Present: xxxx

QUISUMBING, J., Chairperson, 7. RONALD SAMBAJON

- versus - CARPIO, (same as Conos) 263,225.81
CARPIO MORALES, 8.FREDELYN BACULBAS
TINGA, and (same as Conos) 263,225.81
VELASCO, JR., JJ. 9. RENEIRO SAMBAJON (same as Conos) 263,225.81
Promulgated: Total Backwages P2,370,674.38
ATTY. JOSE A. SUING, September 26, 2006
Respondent. Respondents are jointly and severally liable to pay the above-mentioned
backwages including the various monetary claims stated in the Manifestation
x ---------------------------------------------------------------------------------------------- x dated August 24, 1998 except payment of overtime pay and to pay 10%
attorneys fees of all sums owing to complainants.[4] (Emphasis and
DECISION underscoring supplied)

CARPIO MORALES, J.:
Complainants, via a complaint[1] filed before the Integrated Bar of the
Philippines (IBP), have sought the disbarment of Atty. Jose A. Suing
(respondent) on the grounds of deceit, malpractice, violation of Lawyers Oath
and the Code of Professional Responsibility.[2]
The Decision having become final and executory, the Labor Arbiter issued
on September 2, 2003 a Writ of Execution.[5]
In the meantime, on the basis of individual Release Waiver and Quitclaims
dated February 27, 2004 purportedly signed and sworn to by seven of the
Page 180

complainants in the ULP and Illegal Dismissal case before Labor Arbiter
Santos in the presence of respondent, the Labor Arbiter dismissed said case
LEGAL ETHICS
insofar as the seven complainants were concerned, by Order dated March 9,
2004. [6]
Herein complainants, four of the seven who purportedly executed the
Release Waiver and Quitclaims, denied having signed and sworn to before
the Labor Arbiter the said documents or having received the considerations
therefor. Hence, spawned the administrative complaint at bar, alleging that
respondent, acting in collusion with his clients Johnny and Manuel Rodil,
frustrated the implementation of the Writ of Execution by presenting before
the Labor Arbiter the spurious documents.
In a related move, complainants also filed a criminal complaint for
Falsification against respondent, together with his clients Johnny and Manuel
Rodil, before the Prosecutors Office of Quezon City where it was docketed
as I.S. No. 04-5203.[7]
In his Report and Recommendation[8] dated September 27, 2005, IBP
Commissioner Salvador B. Hababag, who conducted an investigation of the
administrative complaint at bar, recommended that respondent be faulted for
negligence and that he be reprimanded therefor with warning, in light of his
following discussion:
The issue to be resolved is whether or not respondent can be disbarred for
his alleged manipulation of four alleged RELEASE WAIVER AND
QUITCLAIM by herein complainants who subsequently disclaimed the same
as bogus and falsified.
A lawyer takes an oath when he is admitted to the Bar. By doing so he
thereby becomes an Officer of the Court on whose shoulders rests the grave
responsibility of assisting the courts in the proper, fair, speedy and efficient
administration of justice.
Mindful of the fact that the present proceedings involve, on the one hand, the
right of a litigant to seek redress against a member of the Bar who has,
allegedly caused him damaged, either through malice or negligence, while in
the performance of his duties as his counsel, and, on the other, the right of
that member of the Bar to protect and preserve his good name and
reputation, we have again gone over and considered [the] aspects of the
case.
All the cases protesting and contesting the genuineness, veracity and due
execution of the questioned RELEASE WAIVER AND QUITCLAIM namely:
Urgent Ex-Parte Motion to Recall, Appeal and Falsification are
PENDING resolution in their respective venues. Arbiter Ariel Cadiente
Santos, who was supposed to know the identities of the herein complainants
is not impleaded by the complainants when it was his solemn duty and
obligation to ascertain true and real identities of person executing Release
Waiver with Quitclaim.
The old adage that in the performance of an official duty there is that
presumption of regularity unless proven otherwise, such was proven in the
January 28, 2005 clarificatory questioning . . . :
xxxx
. . . In the case at bar, the question of whether or not respondent actually
committed the despicable act would seem to be fairly debatable under
the circumstances.[9](Emphasis and underscoring supplied)
The Board of Governors of the IBP, by Resolution No. XVII-2005-226,
approved and adopted the Report and Recommendation of Commissioner
Hababag.
After the records of the case were forwarded to the Office of the Bar
Confidant (OBC), the Director for Bar Discipline of the IBP[10] transmitted
additional records including a Motion to Amend the Resolution No. XVII-
2005-226[11] filed by respondent.
One of the complainants, Renerio Sambajon (Sambajon), by Petition[12] filed
before the OBC, assailed the IBP Board Resolution. The Petition was filed
three days after the 15-day period to assail the IBP Resolution. Sambajon
PINEDAPCGRNMAN
explains that while his counsel received the Resolution on February 27, 2006,
he only learned of it when he visited on March 16, 2006 his counsel who
could not reach him, he (Sambajon) having transferred from one residence
to another.
Giving Sambajon the benefit of the doubt behind the reason for the 3-day
delay in filing the present petition, in the interest of justice, this Court gives
his petition due course.
In respondents Motion to Amend the IBP Board Resolution, he does not deny
that those whom he met face to face before Commissioner Hababag were
not the same persons whom he saw before Labor Arbiter Santos on February
27, 2004. [13] He hastens to add though that he was not familiar with the
complainants as they were not attending the hearings before Arbiter
Santos.[14] Complainants[15] and their former counsel Atty. Rodolfo
Capocyan[16] claim otherwise, however. And the Minutes[17] of the
proceedings before the National Conciliation Mediation Board in a related
case, NCMB-NCR-NS-02-081-98, Re: Microplast, Inc., Labor Dispute, which
minutes bear respondents and complainants signatures, belie respondents
claim that he had not met complainants before.
Respondent, who declared that he went to the Office of the Labor Arbiter on
February 27, 2004 on the request of his clients who told him that on February
27, 2004 the seven claimants w[ould] be at the office of Arbiter Santos [to]
submit their respective quitclaims and waivers, heaps on the Labor Arbiter
the responsibility of ascertaining the identity of the parties who executed the
Release Waiver and Quitclaims. But respondent himself had the same
responsibility. He was under obligation to protect his clients interest,
especially given the amount allegedly given by them in consideration of the
execution of the documents. His answers to the clarificatory questions of
Commissioner Hababag do not, however, show that he discharged such
obligation.
COMM. HABABAG:
But is it not a fact [that it is] also your duty to ask.. that the money of your
client would go to the deserving employee?
ATTY. SUING:
I did not do that anymore, Your Honor, because there was already as you
call it before a precedent in February of 1998 when my client directly made
settlement to the nine or eight of the seventeen original complainants, Your
Honor, and I did not participate. Hindi po ako nakialam don sa kanilang
usapan because it is my belief that the best way, Your Honor, to have a
dispute settled between the parties is that we let them do the discussion, well
let them do the settlement because sometimes you know, Your Honor, sad
to say, when lawyers are involved in a matters [sic] of settlement the dispute
does not terminate as in this case, Your Honor.
xxxx
COMM. HABABAG:
Yes. What made you appear on said date and time before Arbiter Santos?
ATTY. SUING:
I was called by my client to go to the office of Arbiter Santos, number one, to
witness the signing of the documents of Quitclaim and Waiver; number 2,
so that according to them someone as a lawyer will represent them in that
proceedings.
COMM. HABABAG:
My query, did it not surprise you that no money was given to you and yet
there would be a signing of Quitclaim Receipt and Release?
ATTY. SUING:
Page 181
I am not, your Honor, because it happened before and there were no
complaints, Your Honor.
LEGAL ETHICS PINEDAPCGRNMAN
COMM. HABABAG: CANON 17 A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
Just because it happened before you did not bother to see to it that there is REPOSED IN HIM.
a voucher so you just rely on your precedent, is that what you mean? CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE
AND DILIGENCE.
ATTY. SUING: xxxx

Yes, Your Honor, because I always believe that the parties who are talking
and it is my client who knows them better than I do, Your Honor.
COMM. HABABAG:
So, you just followed the instruction of your client to be present at Arbiter
Cadiente Santos office because there would be signing of Quitclaim Receipt
and Release, it that clear?
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable.
To be sure, respondents client Manuel Rodil did not request him to go to the
Office of Labor Arbiter Cadiente to be a mere passive witness to the signing
of the Release Waiver and Quitclaims. That he was requested to go there
could only mean that he would exert vigilance to protect his clients interest.
This he conceded when he acknowledged the purpose of his presence at the
Office of Labor Arbiter Santos, thus:

ATTY. SUING: ATTY. SUING:

Yes, Your Honor. To go there, Your Honor, and represent them and see that these document[s]
are properly signed and that these people are properly identified and
COMM. HABABAG: verified them in front of Arbiter Ariel Cadiente Santos.[19] (Emphasis and
underscoring supplied)
[You] [d]id not bother to ask your client where is the money intended
for the payment of these workers? That there was an alleged precedent in 1998 when a group of complainants
entered into a compromise agreement with his clients in which he did not
ATTY. SUING: participate and from which no problem arose did not excuse him from
carrying out the admitted purpose of going to the Labor Arbiters office that
I did not ask. [the complainants] are properly identified . . . in front of [the] Arbiter.

COMM. HABABAG:
You did not asked [sic] your client who will prepare the documents?
ATTY. SUING:
As far as the documents are concerned, Your Honor.
COMM. HABABAG:
The Quitclaim Receipt and Release?
ATTY. SUING:
Yes, Your Honor, I remember this. They asked me before February of 1998.
COMM. HABABAG:
When you say they whom are you referring to?
ATTY. SUING:
Im referring to my client, Your Honor.
COMM. HABABAG:
They asked me attorney can you please prepare us a document of Quitclaim
and Waiver or give us a simple [sic] of Quitclaim and Waiver. I do recall that I
made one but this document, Your Honor, is only a single document where
all the signatories named are present because my purpose there really, Your
Honor, is that so that each of them will be there together and they will identify
themselves, see each other para ho siguradong sila-sila yong magkakasama
at magkakakilanlan. x x x x And when the signing took place in February of
2004 it was made for any [sic] individual, Your Honor, no longer the
document that I prepared when all of the seven will be signing in one
document.
COMM. HABABAG:
Okay. You did not inquire from your client whom [sic] made the changes?
ATTY. SUING:
I did not anymore because, Your Honor, at the time when I was there, there
are already people there, the seven complainants plus another woman.[18]
Besides, by respondents own information, Labor Arbiter Santos was
entertaining doubts on the true identity of those who executed the Release
Waiver and Quitclaims.[20]That should have alerted him to especially exercise
the diligence of a lawyer to protect his clients interest. But he was not and he
did not.
Diligence is the attention and care required of a person in a given situation
and is the opposite of negligence. A lawyer serves his client with diligence by
adopting that norm of practice expected of men of good intentions. He thus
owes entire devotion to the interest of his client, warm zeal in the defense
and maintenance of his rights, and the exertion of his utmost learning, skill,
and ability to ensure that nothing shall be taken or withheld from him, save
by the rules of law legally applied. It is axiomatic in the practice of law that
the price of success is eternal diligence to the cause of the client.
The practice of law does not require extraordinary diligence (exactissima
diligentia) or that extreme measure of care and caution which persons of
unusual prudence and circumspection use for securing and preserving their
rights. All that is required is ordinary diligence (diligentia) or that degree of
vigilance expected of a bonus pater familias. x x x[21] (Italics in the original;
underscoring supplied)
And this Court notes the attempt of respondent to influence the answers of
his client Manuel Rodil when the latter testified before Commissioner Manuel
Hababag:
COMM. HABABAG:
May pinirmahan dito na Quitclaim Receipt and Release. Ito ho ba sinong may
gawa nitong Receipt Waiver and Quitclaim?
MR. RODIL:
Sila po.
COMM. HABABAG:
Ibig mong sabihin ibinigay sa yo to ng complainant o sinong nag-abot sa iyo
nitong Receipt Waiver and Quitclaim?
Page 182

(Emphasis and underscoring supplied) MR. RODIL:

The Code of Professional Responsibility provides: Si Atty. Suing po.
LEGAL ETHICS PINEDAPCGRNMAN
ATTY. SUING: COMM. HABABAG:
In fact, ang tanong sa iyo kung ibinigay daw sa iyo yong mga dokumentong
ito or what? Ang sagot mo kay attorney. Sinong attorney ang tinutukoy mo?

COMM. HABABAG: MR. RODIL:

Okay, uulitin ko ha, tagalog na ang tanong ko sa iyo ha hindi na English. Ito Atty. Suing po.
bang Release Waiver and Quitclaim sino ang may gawa nito, sino ang
nagmakinilya nito? COMM. HABABAG:
Okay.
MR. RODIL:
Kami yata ang gumawa niyan. ATTY. SUING:
Your Honor,
COMM. HABABAG:
Pag sinabi mong kami yata ang may gawa sino sa inyong mga officer, tauhan COMM. HABABAG:
o abogado ang gumawa nito? Pabayaan mo muna. Ill come to that. Magkano kung iyong natatandaan ang
perang inabot kay Atty. Suing?
MR. RODIL:
Matagal na ho yan eh. MR. RODIL:
Yan ang hindi ko matandaan.
xxxx
x x x x[22] (Emphasis and underscoring supplied)
COMM. HABABAG:
Okay. Pangalawang gusto kong itanong. Sino ang naghatid nito kay Ariel Thus, not only did respondent try to coach his client or influence him to
Cadiente Santos para pirmahan ni Ariel Cadiente Santos? answer questions in an apparent attempt not to incriminate him (respondent).
MR. RODIL: His client contradicted respondents claim that the Release Waiver and
Si attorney po. Quitclaim which he (respondent) prepared was not the one presented at the
Arbiters Office, as well as his implied claim that he was not involved in
ATTY. SUING: releasing to the complainants the money for and in consideration of the
Wait. I did not bring the documents. The Commissioner is asking kung sino execution of the documents.
ang nagdala ng mga dokumento?
MR. RODIL: As an officer of the court, a lawyer is called upon to assist in the
Yong mga tao. administration of justice. He is an instrument to advance its cause. Any act
on his part that tends to obstruct, perverts or impedes the administration of
xxxx justice constitutes misconduct.[23] While the Commission on Bar Discipline is
not a court, the proceedings therein are nonetheless part of a judicial
COMM. HABABAG: proceeding, a disciplinary action being in reality an investigation by the Court
Simple ang tanong ko ha. Intindihin mo muna. Kanino mo inabot into the misconduct of its officers or an examination into his character.[24]
ang bayad sa nakalagay dito sa Release waiver and Quitclaim?
In Bantolo v. Castillon, Jr.[25] the respondent lawyer was found guilty of gross
MR. RODIL: misconduct for his attempts to delay and obstruct the investigation being
Kay attorney po. conducted by the IBP. Nonetheless, this Court found that a suspension of
one month from the practice of law was enough to give him the opportunity
to retrace his steps back to the virtuous path of the legal profession.
COMM. HABABAG: While the disbarment of respondent is, under the facts and circumstances
Pag sinabi mong kay attorney sinong tinutukoy mong attorney? attendant to the case, not reasonable, neither is reprimand as recommended
by the IBP. This Court finds that respondents suspension from the practice
ATTY. SUING: of law for six months is in order.
Yong ibinigay na pera pambayad saan, yon ang tanong.
WHEREFORE, respondent, Atty. Jose A. Suing, is found GUILTY of
negligence and gross misconduct and is SUSPENDED from the practice of
COMM. HABABAG: law for a period of Six (6) Months, with WARNING that a repetition of the
Sundan mo ang tanong ko ha. Ako ang nagtatanong hindi ang abogado mo. same or similar acts will be dealt with more severely.

MR. RODIL:
Opo.

COMM. HABABAG: Let a copy of this Decision be furnished the Office of the Bar Confidant, the
Huwag kang tatawa. Im reminding you serious tayo dito. Integrated Bar of the Philippines, and all courts throughout the country.

MR. RODIL: SO ORDERED.

Opo serious po. PRESIDENTIAL DECREE No. 1829

PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION
COMM. HABABAG: OF CRIMINAL OFFENDERS

Sabi mo may inabutan kang taong pera? WHEREAS, crime and violence continue to proliferate despite the sustained
vigorous efforts of the government to effectively contain them;
Page 183

MR. RODIL: WHEREAS, to discourage public indifference or apathy towards the

Opo. apprehension and prosecution of criminal offenders, it is necessary to
LEGAL ETHICS
penalize acts which obstruct or frustrate or tend to obstruct or frustrate the
successful apprehension and prosecution of criminal offenders;
NOW, THEREFORE, I, FERDINAND, E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by law do hereby decree
and order the following:
Section 1. The penalty of prision correccional in its maximum period, or a
fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any
person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:
(a) preventing witnesses from testifying in any criminal proceeding or from
reporting the commission of any offense or the identity of any offender/s by
means of bribery, misrepresentation, deceit, intimidation, force or threats;
(b) altering, destroying, suppressing or concealing any paper, record,
document, or object, with intent to impair its verity, authenticity, legibility,
availability, or admissibility as evidence in any investigation of or official
proceedings in, criminal cases, or to be used in the investigation of, or official
proceedings in, criminal cases;
(c) harboring or concealing, or facilitating the escape of, any person he
knows, or has reasonable ground to believe or suspect, has committed any
offense under existing penal laws in order to prevent his arrest prosecution
and conviction;
(d) publicly using a fictitious name for the purpose of concealing a crime,
evading prosecution or the execution of a judgment, or concealing his true
name and other personal circumstances for the same purpose or purposes;
(e) delaying the prosecution of criminal cases by obstructing the service of
process or court orders or disturbing proceedings in the fiscal's offices, in
Tanodbayan, or in the courts;
(f) making, presenting or using any record, document, paper or object with
knowledge of its falsity and with intent to affect the course or outcome of the
investigation of, or official proceedings in, criminal cases;
(g) soliciting, accepting, or agreeing to accept any benefit in consideration of
abstaining from, discounting, or impeding the prosecution of a criminal
offender;
(h) threatening directly or indirectly another with the infliction of any wrong
upon his person, honor or property or that of any immediate member or
members of his family in order to prevent such person from appearing in the
investigation of, or official proceedings in, criminal cases, or imposing a
condition, whether lawful or unlawful, in order to prevent a person from
appearing in the investigation of or in official proceedings in, criminal cases;
(i) giving of false or fabricated information to mislead or prevent the law
enforcement agencies from apprehending the offender or from protecting the
life or property of the victim; or fabricating information from the data gathered
in confidence by investigating authorities for purposes of background
information and not for publication and publishing or disseminating the same
to mislead the investigator or to the court.
If any of the acts mentioned herein is penalized by any other law with a higher
penalty, the higher penalty shall be imposed.
Section 2. If any of the foregoing acts is committed by a public official or
employee, he shall in addition to the penalties provided thereunder, suffer
perpetual disqualification from holding public office.
Section 3. This Decree shall take effect immediately.
Done in the City of Manila, this 16th day of January, in the year of Our Lord,
nineteen hundred and eighty-one.
Rule 12.08 – A lawyer shall avoid testifying in behalf of his client,
except:
1. a. on formal matters, such as the mailing, authentication or
custody of an instrument and the like:
2. b. on substantial matters, in cases where his testimony is
essential to the ends of justice, in which event he must,
during his testimony, entrust the trial of the case to another
counsel.
G.R. No. L-35252 October 21, 1932
THE PHILIPPINE NATIONAL BANK, plaintiff-appellant,
vs.
UY TENG PIAO, defendant-appellee.
PINEDAPCGRNMAN
Nat. M. Balboa and Dominador J. Endriga for appellant.
Antonio Gonzales for appellee.
VICKERS, J.:
This is an appeal by the plaintiff a decision of the Court of First Instance of
Manila absolving the defendant from the complaint, without a special finding
as to costs.
The appellant makes the following assignments of error:
The trial court erred:
1. In finding that one Mr. Pecson gave a promise to appellee Uy Teng Piao
to condone the balance of the judgment rendered against the said Uy Teng
Piao and in favor of the Philippine National Bank in civil case No. 26328 of
the Court o First Instance of Manila.
2. In finding that merely in selling the property described in certificate of title
No. 11274 situated at Ronquillo Street, Manila, to Mariano Santos for P8,600
(Exhibit 2), the appellant had undoubtedly given the alleged promise of
condonation to appellee Uy Teng Piao.
3. In finding that the consideration of document Exhibit 1 is the condonation
of the balance of the judgment rendered in said civil case No. 26328.
4. In finding that said Mr. Pecson, granting that the latter has actually given
such promise to condone, could bind the appellant corporation.
5. In holding that the absence of demand for payment upon appellee Uy Teng
Piao for the balance of the said judgment from February 11, 1925 up to the
year 1930 is "una senal inequivoca una prueba evidente" of the condonation
of the balance of the said judgment.
6. In finding that by the sale of the said property to Mariano Santos for the
sum of P8,600, the said judgment in civil case No. 26328 has been more
than fully paid even discounting the sum of P1,300 which appellant paid as
the highest bidder for the said property.
7. In declaring that the offer of appellee Uy Teng Piao as shown by Exhibits
D and D-1, reflects only the desire of the said appellee Uy Teng Piao to avoid
having a case with the appellant bank.
8. In finally absolving appellee Uy Teng Piao and in not sentencing him to
pay the amount claimed in the complaint with costs.
On September 9, 1924, the Court of First Instance of Manila rendered a
judgment in favor of the Philippine National Bank and against Uy Teng Piao
in civil case No. 26328 for the sum of P17,232.42 with interest at 7 per cent
per annum from June 1, 1924, plus 10 per cent of the sum amount for
attorney's fees and costs. The court ordered the defendant to deposit said
amount with the clerk of the court within three months from the date of the
judgment, and in case of his failure to do so that the mortgaged properties
described in transfer certificates of title Nos. 7264 and 8274 should be sold
at public auction in accordance with the law and the proceeds applied to the
payment of the judgment.
Uy Teng Piao failed to comply with the order of the court, and the sheriff of
the City of Manila sold the two parcels of land at public auction to the
Philippine National Bank on October 14, 1924 for P300 and P1,000
respectively.
On February 11, 1925, the Philippine National Bank secured from Uy Teng
Piao a waiver of his right to redeem the property described in Transfer
Certificate of Title No. 8274, and on the same date the bank sold said
property to Mariano Santos for P8,600.1awphil.net
Page 184
Evidently the other parcel, Transfer Certificate of Title No. 7264, was
subsequently resold by the bank for P2,700, because the account of the
LEGAL ETHICS
defendant was credited with the sum of P11,300. In other words, the bank
credited the defendant with the full amount realized by it when it resold the
two parcels of land.
The bank brought the present action to revive the judgment for the balance
of P11,574.33, with interest at 7 per cent per annum from August 1, 1930.
In his amended answer the defendant alleged as a special defense that he
waived his right to redeem the land described in transfer certificate of title No.
8274 in consideration of an understanding between him and the bank that
the bank would not collect from him the balance of the judgment. It was on
this ground that the trial court absolved the defendant from the complaint.
In our opinion the defendant has failed to prove any valid agreement on the
part of the bank not to collect from him the remainder of the judgment. The
alleged agreement rests upon the uncorroborated testimony of the
defendant, the pertinent part of whose testimony on direct examination was
as follows:
P. En este documento aparece que usted, por consideracion de valor
recibido del Banco Nacional demandante en la presente causa, renuncia a
su derecho de recompra de la propiedad vendida por el Sheriff en publica
subasta el catorce de octubre de mil novecientos veintecuatro a favor del
Banco Nacional; ¿quiere usted explicar al Honorable Juzgado, cual es esta
consideracion de valor? — R. Si, señor. Esto desde mil novecientos
veintitres o mil novecientos veintecuatro, no recuerdo bien, me haba dicho
el señor Pecson, porque algunas veces yo no podia pagar esos intereses
mensuales. Entonces me dijo Pecson, "¿como puede usted recibir alquileres
y no paga usted intereses?"
P. ¿Quien es ese señor Pecson? — R. Era encargado de este asunto.
P. ¿Que era el del Banco Nacional, usted sabe? — R. Era encargado de
estas transacciones. Cuando tenia necesidad siempre llamaba yo al señor
Pecson. Entonces hable al señor Pecson que somos comerciantes, algunas
veces los alquileres no pueden cobrarse por anticipado.
Sr. ENDRIGA. No es responsiva la contestacion a la pregunta.
Sr. GONZALEZ. Si esta explicando y no ha terminado el testigo su
contestacion.
JUZGADO. Que la termine.
TESTIGO. Me dijo el señor Pecson que es cosa mala para mi "¿por que
usted cobra alquileres y no paga los intereses? Mejor deje usted ya todos
sus bienes para cubrir sus deudas.
P. El señor Pecson le dijo a usted "mejor deje usted ya todos sus bienes,"
¿a que bienes se referia el ? — R. Al terreno de Ronquillo y al terreno de
Paco.
P. ¿Cual de esos terrenos, el de Ronquillo o el de Paco, el que se refiere
aqui en el Exhibit 1? — R. Paco, primeramente, los dos ambos.
P. Pero este Exhibit 1, ¿a que se refiere; al de Paco o al de Ronquillo? — R.
Parece que Paco.
P. ¿No recuerda usted muy bien? — R. No recuerdo.
P. Y cuando le dijo a usted el señor Pecson mejor que dejara todos sus
bienes, ¿le dijo a usted a favor de quien iba usted a dejar sus bienes? — R.
Al Banco Nacional.
P. ¿Y que le dijo a usted, si le dijo a usted algo el señor Pecson con respecto
al saldo deudor que usted todavia era en deber a favor del Banco Nacional?
— R. No recuerdo mas; pero mas o menos de catorce mil pesos.
P. ¿Que le dijo el con respeto al saldo, si el cobraria todavia o se le
condonaria?
PINEDAPCGRNMAN
Sr. ENDRIGA. Es alternativa la pregunta. Me opongo.
JUZGADO. Cambiese la pregunta.
P. ¿Que le dijo a usted con respeto al saldo, una vez otorgado este Exhibit
1?
SR. ENDRIGA. La pregunta no tiene ninguna base. Nos openemos.
Sr. GONZALES. Si dice el que se havian vendido todos los terrenos.
JUZGADO. Puede contestar.
Sr. ENDRIGA. Excepcion.
R. Me dijo que para que usted no cobre alquileres y no pague intereses deje
usted esos terrenos de Ronquillo y terreno de Paco para cubrir ya todas mis
deudas. Entonces dije ya, si, como yo tengo buena fe con este Banco. Hasta
que al fin yo dije que queria yo comprar.
P. Cuando usted firmo el once de febrero de mil novecientos veintecinco este
documento Exhibit 1, ¿recibio usted algun centimo de dinero del Banco? —
R. Nada, absolutamente.
When asked on cross-examination if Pecson was not in Iloilo at the time of
the execution of defendant's waiver of his right to redeem, the defendant
answered that he did not know; asked when Pecson had spoken to him about
the matter, the defendant replied that he did not remember.
One of the attorneys for the plaintiff testified that the defendant renounced
his right to redeem the parcel of land in Calle Ronquillo, Exhibit 1, because a
friend of the defendant was interested in buying it.
The bank ought to have presented Pecson as a witness, or his deposition, if
he was not residing in Manila at the time of the trial.
With respect to the testimony of the bank's attorney, we should like to
observe that although the law does not forbid an attorney to be a witness and
at the same time an attorney in a cause, the courts prefer that counsel should
not testify as a witness unless it is necessary, and that they should withdraw
from the active management of the case. (Malcolm, Legal Ethics, p. 148.)
Canon 19 of the Code of Legal Ethics reads as follows:
When a lawyer is a witness for his client, except as to merely formal matters,
such as the attestation or custody of an instrument and the like, he should
leave the trial of the case to other counsel. Except when essential to the ends
of justice, a lawyer should avoid testifying in court in behalf of his client.
Defendant's testimony as to the alleged agreement is very uncertain. There
is no mention in Exhibit 1 as to such an agreement on the part of the bank.
Exhibit 1 relates only to the land in Calle Ronquillo. If Pecson had made any
such agreement as the defendant claims, it is reasonable to suppose that he
would have required the defendant to waive his right to redeem both parcels
of land, and that the defendant, a Chines business man, would have insisted
upon some evidence of the agreement in writing. It appears to us that the
defendant waived his right to redeem the land in Calle Ronquillo, because a
friend of his wished to purchase it and was willing to pay therefor P8,600, and
the bank agreed to credit the defendant with the full amount of the sale.
Furthermore, if it be conceded that there was such an understanding
between Pecson and the defendant as the latter claims, it is not shown that
Pecson was authorized to make any such agreement for the bank. Only the
board of directors or the persons empowered by the board of directors could
bind the bank by such an agreement. There is no merit in the contention that
since the bank accepted the benefit of the waiver it cannot now repudiate the
alleged agreement. The fact that the bank after having bought the land for
Page 185
P1,000 resold it at the instance of the defendant for P8,600 and credited the
defendant with the full amount of the resale was a sufficient consideration for
the execution of defendant's waiver of his right to redeem.
LEGAL ETHICS
For the foregoing reasons, the decision appealed from is reversed, and the
defendant is condemned to pay the plaintiff the sum of P11,574.38 with
interest thereon at the rate of 7 per cent per annum from August 1, 1930, and
the costs of both instances.
ROC RULE 3 Section 16. Death of party; duty of counsel. — Whenever
a party to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the court
within thirty (30) days after such death of the fact thereof, and to give
the name and address of his legal representative or representatives.
Failure of counsel to comply with his duty shall be a ground for
disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the counsel for the deceased
party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified time
to procure the appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately appear for and
on behalf of the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be recovered as
costs. (16a, 17a)
CANON 13 – A LAWYER SHALL RELY UPON THE MERITS OF HIS
CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO
INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING THE
COURT.
G.R. No. 75209 September 30, 1987
NESTLE PHILIPPINES, INC., petitioner,
vs.
HON. AUGUSTO S. SANCHEZ, MINISTER OF LABOR AND
EMPLOYMENT and THE UNION OF FILIPRO EMPLOYEES, respondents.
No. 78791 September 30, 1987
KIMBERLY INDEPENDENT LABOR UNION FOR SOLIDARITY,
ACTIVISM AND NATIONALISM-OLALIA,petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, MANUEL AGUILAR, MA.
ESTRELLA ALDAS, CAPT. REY L. LANADA, COL. VIVENCIO MANAIG
and KIMBERLY-CLARK PHILIPPINES, INC., respondents.
RESOLUTION
PER CURIAM:
During the period July 8-10. 1987, respondent in G.R. No. 75029, Union of
Filipro Employees, and petitioner in G.R. No. 78791, Kimberly Independent
Labor Union for Solidarity, Activism and Nationalism-Olalia intensified the
intermittent pickets they had been conducting since June 17, 1987 in front of
the Padre Faura gate of the Supreme Court building. They set up pickets'
quarters on the pavement in front of the Supreme Court building, at times
obstructing access to and egress from the Court's premises and offices of
justices, officials and employees. They constructed provisional shelters along
the sidewalks, set up a kitchen and littered the place with food containers and
trash in utter disregard of proper hygiene and sanitation. They waved their
red streamers and placards with slogans, and took turns haranguing the court
all day long with the use of loud speakers.
These acts were done even after their leaders had been received by Justices
Pedro L. Yap and Marcelo B. Fernan as Chairmen of the Divisions where
their cases are pending, and Atty. Jose C. Espinas, counsel of the Union of
Filipro Employees, had been called in order that the pickets might be
informed that the demonstration must cease immediately for the same
constitutes direct contempt of court and that the Court would not entertain
their petitions for as long as the pickets were maintained. Thus, on July 10,
1987, the Court en banc issued a resolution giving the said unions the
PINEDAPCGRNMAN
opportunity to withdraw graciously and requiring Messrs. Tony Avelino. Lito
Payabyab, Eugene San Pedro, Dante Escasura, Emil Sayao and Nelson
Centeno, union leaders of respondent Union of Filipro Employees in the
Nestle case and their counsel of record, Atty. Jose C. Espinas; and Messrs.
Ernesto Facundo, Fausto Gapuz, Jr. and Antonio Gonzales, union leaders of
petitioner Kimberly Independent Labor Union for Solidarity, Activism and
Nationalism-Olalia in the Kimberly case to appear before the Court on July
14, 1987 at 10:30 A.M. and then and there to SHOW CAUSE why they should
not be held in contempt of court. Atty. Jose C. Espinas was further required
to SHOW CAUSE why he should not be administratively dealt with.
On the appointed date and time, the above-named individuals appeared
before the Court, represented by Atty. Jose C. Espinas, in the absence of
Atty. Potenciano Flores, counsel of record of petitioner in G.R. No. 78791,
who was still recuperating from an operation.
Atty. Espinas, for himself and in behalf of the union leaders concerned,
apologized to the Court for the above-described acts, together with an
assurance that they will not be repeated. He likewise manifested to the Court
that he had experienced to the picketers why their actions were wrong and
that the cited persons were willing to suffer such penalty as may be warranted
under the circumstances. 1 He, however, prayed for the Court's leniency
considering that the picket was actually spearheaded by the leaders of the
"Pagkakaisa ng Mangagawa sa Timog Katagalogan" (PAMANTIK), an
unregistered loose alliance of about seventy-five (75) unions in the Southern
Tagalog area, and not by either the Union of Filipro Employees or the
Kimberly Independent Labor Union. 2
Atty. Espinas further stated that he had explained to the picketers that any
delay in the resolution of their cases is usually for causes beyond the control
of the Court and that the Supreme Court has always remained steadfast in
its role as the guardian of the Constitution.
To confirm for the record that the person cited for contempt fully understood
the reason for the citation and that they wig abide by their promise that said
incident will not be repeated, the Court required the respondents to submit a
written manifestation to this effect, which respondents complied with on July
17, 1987.
We accept the apologies offered by the respondents and at this time, forego
the imposition of the sanction warranted by the contemptuous acts described
earlier. The liberal stance taken by this Court in these cases as well as in the
earlier case of AHS/PHILIPPINES EMPLOYEES UNION vs. NATIONAL
LABOR RELATIONS COMMISSION, et al., G.R. No. 73721, March 30, 1987,
should not, however, be considered in any other light than an
acknowledgment of the euphoria apparently resulting from the rediscovery of
a long-repressed freedom. The Court will not hesitate in future similar
situations to apply the full force of the law and punish for contempt those who
attempt to pressure the Court into acting one way or the other in any case
pending before it. Grievances, if any, must be ventilated through the proper
channels, i.e., through appropriate petitions, motions or other pleadings in
keeping with the respect due to the Courts as impartial administrators of
justice entitled to "proceed to the disposition of its business in an orderly
manner, free from outside interference obstructive of its functions and
tending to embarrass the administration of justice." 3
The right of petition is conceded to be an inherent right of the citizen under
all free governments. However, such right, natural and inherent though it may
be, has never been invoked to shatter the standards of propriety entertained
for the conduct of courts. For "it is a traditional conviction of civilized society
everywhere that courts and juries, in the decision of issues of fact and law
should be immune from every extraneous influence; that facts should be
decided upon evidence produced in court; and that the determination of such
facts should be uninfluenced by bias, prejudice or sympathies." 4
Moreover, "parties have a constitutional right to have their causes tried fairly
in court by an impartial tribunal, uninfluenced by publication or public clamor.
Every citizen has a profound personal interest in the enforcement of the
fundamental right to have justice administered by the courts, under the
protection and forms of law free from outside coercion or interference." 5 The
aforecited acts of the respondents are therefore not only an affront to the
dignity of this Court, but equality a violation of the above-stated right of the
adverse parties and the citizenry at large.
We realize that the individuals herein cited who are non-lawyers are not
Page 186
knowledgeable in her intricacies of substantive and adjective laws. They are
not aware that even as the rights of free speech and of assembly are
protected by the Constitution, any attempt to pressure or influence courts of
LEGAL ETHICS
justice through the exercise of either right amounts to an abuse thereof, is no
longer within the ambit of constitutional protection, nor did they realize that
any such efforts to influence the course of justice constitutes contempt of
court. 6 The duty and responsibility of advising them, therefore, rest primarily
and heavily upon the shoulders of their counsel of record. Atty. Jose C.
Espinas, when his attention was called by this Court, did his best to
demonstrate to the pickets the untenability of their acts and posture. Let this
incident therefore serve as a reminder to all members of the legal profession
that it is their duty as officers of the court to properly apprise their clients on
matters of decorum and proper attitude toward courts of justice, and to labor
leaders of the importance of a continuing educational program for their
members.
WHEREFORE, the contempt charges against herein respondents are
DISMISSED. Henceforth, no demonstrations or pickets intended to pressure
or influence courts of justice into acting one way or the other on pending
cases shall be allowed in the vicinity and/or within the premises of any and
all courts.
SO ORDERED.
[A.C. No. 6052. December 11, 2003]
IN RE: PETITION TO DISQUALIFY ATTY. LEONARD DE VERA, ON
LEGAL AND MORAL GROUNDS, FROM BEING ELECTED IBP
GOVERNOR FOR EASTERN MINDANAO IN THE MAY 31, IBP
ELECTIONS
OLIVER OWEN L. GARCIA, EMMANUEL RAVANERA and TONY VELEZ,
petitioners, vs. ATTY. LEONARD DE VERA And IBP BOARD OF
GOVERNORS,respondents.
DECISION
TlNGA, J.:
This is a Petition[1] filed by Attys. Oliver Owen L. Garcia, Emmanuel Ravanera
and Tony Velez, mainly seeking the disqualification of respondent Atty.
Leonard De Vera from being elected Governor of Eastern Mindanao in the
16th Intergrated Bar of the Philippines (IBP) Regional Governors elections.
Petitioner Garcia is the Vice-President of the Bukidnon IBP Chapter, while
petitioners Ravanera and Velez are the past President and the incumbent
President, respectively, of the Misamis Oriental IBP Chapter. The facts as
culled from the pleadings of the parties follow.
The election for the 16th IBP Board of Governors (IBP Board) was set on
April 26, 2003, a month prior to the IBP National Convention scheduled on
May 22-24, 2003. The election was so set in compliance with Section 39,
Article VI of the IBP By Laws, which reads:
SECTION 39. Nomination and election of the Governors. At least one month
before the national convention, the delegates from each region shall elect the
governor of their region, the choice of which shall as much as possible be
rotated among the chapters in the region.
Later on, the outgoing IBP Board, in its Resolution[2] No. XV-2003-99 dated
April 16, 2003, reset the elections to May 31, 2003, or after the IBP National
Convention.
Respondent De Vera, a member of the Board of Directors of the Agusan del
Sur IBP Chapter in Eastern Mindanao, along with Atty. P. Angelica Y.
Santiago, President of the IBP Rizal Chapter, sent a letter[3] dated 28 March
2003, requesting the IBP Board to reconsider its Resolution of April 6, 2003.
Their Motion was anchored on two grounds viz. (1) adhering to the mandate
of Section 39 of the IBP By Laws to hold the election of Regional Governors
at least one month prior to the national convention of the IBP will prevent it
from being politicized since post-convention elections may otherwise lure the
candidates into engaging in unacceptable political practices, and; (2) holding
the election on May 31, 2003 will render it impossible for the outgoing IBP
Board from resolving protests in the election for governors not later than May
31, 2003, as expressed in Section 40 of the IBP By Laws, to wit:
SECTION 40. Election contests. - Any nominee desiring to contest an
election shall, within two days after the announcement of the results of the
elections, file with the President of the Integrated Bar a written protest setting
forth the grounds therefor. Upon receipt of such petition, the President shall
forthwith call a special meeting of the outgoing Board of Governors to
consider and hear the protest, with due notice to the contending parties. The
decision of the Board shall be announced not later than the following May 31,
and shall be final and conclusive.
On April 26, 2003, the IBP Board denied the request for reconsideration in
its Resolution No. XV-2003-162.[4]
PINEDAPCGRNMAN
On May 26, 2003, after the IBP national convention had been adjourned in
the afternoon of May 24, 2003, the petitioners filed a Petition[5] dated 23 May
2003 before the IBP Board seeking (1) the postponement of the election for
Regional Governors to the second or third week of June 2003; and (2) the
disqualification of respondent De Vera from being elected Regional Governor
for Eastern Mindanao Region.
The IBP Board denied the Petition in a Resolution issued on May 29, 2003.
The pertinent portions of the Resolution read:
WHEREAS, two specific reliefs are being sought, to wit, first, the
postponement of the elections for regional governors and, second, the
disqualification of Atty. Leonard de Vera.
WHEREAS, anent the first relief sought, the Board finds no compelling
justification for the postponement of the elections especially considering that
preparations and notices had already been completed.
WHEREAS, with respect to the disqualifications of Atty. Leonard de Vera,
this Board finds the petition to be premature considering that no nomination
has yet been made for the election of IBP regional governor.
PREMISES CONSIDERED, the Board hereby resolves, as it hereby
resolves, to deny the petition.[6]
Probably thinking that the IBP Board had not yet acted on their Petition, on
the same date, May 29, 2003, the petitioners filed the present Petition before
this Court, seeking the same reliefs as those sought in their Petition before
the IBP.
On the following day, May 30, 2003, acting upon the petitioners application,
this Court issued a Temporary Restraining Order (TRO), directing the IBP
Board, its agents, representatives or persons acting in their place and stead
to cease and desist from proceeding with the election for the IBP Regional
Governor in Eastern Mindanao.[7]
Citing the IBP By-Laws, the petitioners expound on the mechanics for the
selection of the IBP officers from the Chapter Officers up to the Regional
Governors constituting the IBP Board which is its highest policy-making body,
as well as the underlying dynamics, to wit:
IBP Chapter Officers headed by the President are elected for a term of two
years. The IBP Chapter Presidents in turn, elect their respective Regional
Governors following the rotation rule. The IBP has nine (9) regions,
viz: Northern Luzon, Central Luzon, Greater Manila, Southern Luzon,
Bicolandia, Eastern Visayas, Western Visayas, Eastern Mindanao and
Western Mindanao. The governors serve for a term of two (2) years
beginning on the 1st of July of the first year and ending on the 30th of June
of the second year.
From the members of the newly constituted IBP Board, an Executive Vice
President (EVP) shall be chosen, also on rotation basis. The rationale for the
rotation rule in the election of both the Regional Governors and the Vice
President is to give everybody a chance to serve the IBP, to avoid politicking
and to democratize the selection process.
Finally, the National President is not elected. Under the By-Laws, whoever is
the incumbent EVP will automatically be the National President for the
following term.
Petitioners elucidate that at present, all the IBP regions, except Eastern
Mindanao, have had two (2) National Presidents each. Following the rotation
rule, whoever will be elected Regional Governor for Eastern Mindanao
Region in the 16th Regional Governors elections will automatically become
the EVP for the term July 1, 2003 to June 30, 2005. For the next term in turn,
i.e., from July 1, 2005 to June 20, 2007, the EVP immediately before then will
automatically assume the post of IBP National President.
Petitioners asseverate that it is in this light that respondent De Vera had
transferred his IBP membership from the Pasay, Paranaque, Las Pinas and
Muntinlupa (PPLM) Chapter to Agusan del Sur Chapter, stressing that he
indeed covets the IBP presidency.[8] The transfer of IBP membership to
Agusan del Sur, the petitioners went on, is a brazen abuse and misuse of the
rotation rule, a mockery of the domicile rule and a great insult to lawyers from
Eastern Mindanao for it implies that there is no lawyer from the region
qualified and willing to serve the IBP.[9]
Adverting to the moral fitness required of a candidate for the offices of
regional governor, executive vice-president and national president, the
petitioners submit that respondent De Vera lacks the requisite moral aptitude.
According to them, respondent De Vera was sanctioned by the Supreme
Page 187
Court for irresponsibly attacking the integrity of the SC Justices during the
deliberations on the constitutionality of the plunder law. They add that he
could have been disbarred in the United States for misappropriating his
LEGAL ETHICS
clients funds had he not surrendered his California license to practice law.
Finally, they accuse him of having actively campaigned for the position of
Eastern Mindanao Governor during the IBP National Convention held on May
22-24, 2003, a prohibited act under the IBP By-Laws.[10]
After seeking leave of court, respondent De Vera filed on June 9, 2003 a
Respectful Comment [11] on the Petition.
In his defense, respondent De Vera raises new issues. He argues that this
Court has no jurisdiction over the present controversy, contending that the
election of the Officers of the IBP, including the determination of the
qualification of those who want to serve the organization, is purely an internal
matter, governed as it is by the IBP By-Laws and exclusively regulated and
administered by the IBP. Respondent De Vera also assails the petitioners
legal standing, pointing out that the IBP By-Laws does not have a provision
for the disqualification of IBP members aspiring for the position of Regional
governors, for instead all that it provides for is only an election protest under
Article IV, Section 40, pursuant to which only a qualified nominee can validly
lodge an election protest which is to be made after, not before, the election.
He posits further that following the rotation rule, only members from the
Surigao del Norte and Agusan del Sur IBP chapters are qualified to run for
Governor for Eastern Mindanao Region for the term 2003-2005, and the
petitioners who are from Bukidnon and Misamis Oriental are not thus
qualified to be nominees.[12]
Meeting the petitioners contention head on, respondent De Vera avers that
an IBP member is entitled to select, change or transfer his chapter
membership.[13] He cites the last paragraph of Section 19, Article II and
Section 29-2, Article IV of the IBP By-Laws, thus:
Article II, Section 19. Registration. - xxx Unless he otherwise registers his
preference for a particular Chapter, a lawyer shall be considered a member
of the Chapter of the province, city, political subdivision or area where his
office or, in the absence thereof, his residence is located. In no case shall
any lawyer be a member of more than one Chapter.
Article IV, Section 29-2. Membership- The Chapter comprises all members
registered in its membership roll. Each member shall maintain his
membership until the same is terminated on any of the grounds set forth in
the By-Laws of the Integrated Bar, or he transfers his membership to another
Chapter as certified by the Secretary of the latter, provided that the transfer
is made not less than three months immediately preceding any Chapter
election.
The right to transfer membership, respondent De Vera stresses, is also
recognized in Section 4, Rule 139-A of the Rules of Court which is exactly
the same as the first of the above-quoted provisions of the IBP By-Laws,
thus:
Rule 139-A, Section 4. xxx Unless he otherwise registers his preference for
a particular Chapter, a lawyer shall be considered a member of the Chapter
of the province, city, political subdivision or area where his office, or, in the
absence thereof, his residence is located. In no case shall any lawyer be a
member of more than one Chapter.
Clarifying that it was upon the invitation of the officers and members of the
Agusan del Sur IBP Chapter that he transferred his IBP membership,
respondent De Vera submits that it is unfair and unkind for the petitioners to
state that his membership transfer was done for convenience and as a mere
subterfuge to qualify him for the Eastern Mindanao governorship.[14]
On the moral integrity question, respondent De Vera denies that he exhibited
disrespect to the Court or to any of its members during its deliberations on
the constitutionality of the plunder law. As for the administrative complaint
filed against him by one of his clients when he was practicing law in
California, which in turn compelled him to surrender his California license to
practice law, he maintains that it cannot serve as basis for determining his
moral qualification (or lack of it) to run for the position he is aspiring for. He
explains that there is as yet no final judgment finding him guilty of the
administrative charge, as the records relied upon by the petitioners are mere
preliminary findings of a hearing referee which are recommendatory in
character similar to the recommendatory findings of an IBP Commissioner on
Bar Discipline which are subject to the review of and the final decision of the
Supreme Court. He also stresses that the complainant in the California
administrative case has retracted the accusation that he misappropriated the
complainants money, but unfortunately the retraction was not considered by
the investigating officer. Finally, on the alleged politicking he committed
during the IBP National Convention held on May 22-24, 2003, he states that
it is baseless to assume that he was campaigning simply because he
PINEDAPCGRNMAN
declared that he had 10 votes to support his candidacy for governorship in
the Eastern Mindanao Region and that the petitioners did not present any
evidence to substantiate their claim that he or his handlers had billeted the
delegates from his region at the Century Park Hotel.[15]
On July 7, 2003, the petitioners filed their Reply[16] to the Respectful Comment
of respondent De Vera who, on July 15, 2003, filed an Answer and
Rejoinder.[17]
In a Resolution[18] dated 5 August 2003, the Court directed the other
respondent in this case, the IBP Board, to file its comment on the
Petition. The IBP Board, through its General Counsel, filed a
Manifestation[19] dated 29 August 2003, reiterating the position stated in its
Resolution dated 29 May 2003 that it finds the petition to be premature
considering that no nomination has as yet been made for the election of IBP
Regional Governors.[20]
Based on the arguments of the parties, the following are the main issues, to
wit:
(1) whether this Court has jurisdiction over the present controversy;
(2) whether petitioners have a cause of action against respondent De Vera,
the determination of which in turn requires the resolution of two sub-issues,
namely:
(a) whether the petition to disqualify respondent De Vera is the proper
remedy under the IBP By-Laws; and
(b) whether the petitioners are the proper parties to bring this suit;
(3) whether the present Petition is premature;
(4) assuming that petitioners have a cause of action and that the present
petition is not premature, whether respondent De Vera is qualified to run for
Governor of the IBP Eastern Mindanao Region;
Anent the first issue, in his Respectful Comment respondent De Vera
contends that the Supreme Court has no jurisdiction on the present
controversy. As noted earlier, respondent De Vera submits that the election
of the Officers of the IBP, including the determination of the qualification of
those who want to serve the IBP, is purely an internal matter and exclusively
within the jurisdiction of the IBP.
The contention is untenable. Section 5, Article VIII of the 1987 Constitution
confers on the Supreme Court the power to promulgate rules affecting the
IBP, thus:
Section 5. The Supreme Court shall have the following powers:
....
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and the legal assistance
to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court. (Emphasis
supplied)
Implicit in this constitutional grant is the power to supervise all the activities
of the IBP, including the election of its officers.
The authority of the Supreme Court over the IBP has its origins in the 1935
Constitution. Section 13, Art. VIII thereof granted the Supreme Court the
power to promulgate rules concerning the admission to the practice of law. It
reads:
SECTION 13. The Supreme Court shall have the power to promulgate rules
concerning pleading, practice, and procedure in all courts, and the admission
to the practice of law. Said rules shall be uniform for all courts of the same
grade and shall not diminish, increase, or modify substantive rights. The
existing laws on pleading, practice, and procedure are hereby repealed as
statutes, and are declared Rules of Courts, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the
power to repeal, alter or supplement the rules concerning pleading, practice,
and procedure, and the admission to the practice of law in the Philippines.
The above-quoted sections in both the 1987 and 1935 Constitution and the
similarly worded provision in the intervening 1973 Constitution[21] through all
the years have been the sources of this Courts authority to supervise
individual members of the Bar. The term Bar refers to the collectivity of all
persons whose names appear in the Roll of Attorneys.[22] Pursuant to this
Page 188
power of supervision, the Court initiated the integration of the Philippine Bar
by creating on October 5, 1970 the Commission on Bar Integration, which
was tasked to ascertain the advisability of unifying the Philippine Bar.[23] Not
LEGAL ETHICS
long after, Republic Act No. 6397[24] was enacted and it confirmed the power
of the Supreme Court to effect the integration of the Philippine Bar. Finally,
on January 1, 1973, in the per curiam Resolution of this Court captioned In
the Matter of the Integration of the Bar to the Philippines, we ordained the
Integration of the Philippine Bar in accordance with Rule 139-A, of the Rules
of Court, which we promulgated pursuant to our rule-making power under the
1935 Constitution.
The IBP By-Laws, the document invoked by respondent De Vera in asserting
IBP independence from the Supreme Court, ironically recognizes the full
range of the power of supervision of the Supreme Court over the IBP. For
one, Section 77[25] of the IBP By-Laws vests on the Court the power to amend,
modify or repeal the IBP By-Laws, either motu propio or upon
recommendation of the Board of Governors of the IBP. Also in Section 15,[26]
the Court is authorized to send observers in IBP elections, whether local or
national. Section 44[27] empowers the Court to have the final decision on the
removal of the members of the Board of Governors.
On the basis of its power of supervision over the IBP, the Supreme Court
looked into the irregularities which attended the 1989 elections of the IBP
National Officers. In Bar Matter No. 491 entitled In the Matter of the Inquiry
into the 1989 Elections of the Integrated Bar of the Philippines the Court
formed a committee to make an inquiry into the 1989 elections. The results
of the investigation showed that the elections were marred by irregularities,
with the principal candidates for election committing acts in violation of
Section 14 of the IBP By-Laws.28 The Court invalidated the elections and
directed the conduct of special elections, as well as explicitly disqualified from
running thereat the IBP members who were found involved in the
irregularities in the elections, in order to impress upon the participants, in that
electoral exercise the seriousness of the misconduct which attended it and
the stern disapproval with which it is viewed by this Court, and to restore the
non-political character of the IBP and reduce, if not entirely eliminate,
expensive electioneering.
The Court likewise amended several provisions of the IBP By-Laws. First, it
removed direct election by the House of Delegates of the (a) officers of the
House of Delegates; (b) IBP President; and (c) Executive Vice-President
(EVP). Second, it restored the former system of the IBP Board choosing the
IBP President and the Executive Vice President (EVP) from among
themselves on a rotation basis (Section 47 of the By-Laws, as amended) and
the automatic succession by the EVP to the position of the President upon
the expiration of their common two-year term. Third, it amended Sections 37
and 39 by providing that the Regional Governors shall be elected by the
members of their respective House of Delegates and that the position of
Regional Governor shall be rotated among the different chapters in the
region.
The foregoing considerations demonstrate the power of the Supreme Court
over the IBP and establish without doubt its jurisdiction to hear and decide
the present controversy.
In support of its stance on the second issue that the petitioners have no cause
of action against him, respondent De Vera argues that the IBP By-Laws does
not allow petitions to disqualify candidates for Regional Governors since what
it authorizes are election protests or post-election cases under Section 40
thereof which reads:
SECTION 40. Election contests. - Any nominee desiring to contest an
election shall, within two days after the announcement of the results of the
elections, file with the President of the Integrated Bar a written protest setting
forth the grounds therefor. Upon receipt of such petition, the President shall
forthwith call a special meeting of the outgoing Board of Governors to
consider and hear the protest, with due notice to the contending parties. The
decision of the Board shall be announced not later than the following May 31,
and shall be final and conclusive.
Indeed, there is nothing in the present IBP By-Laws which sanctions the
disqualification of candidates for IBP governors. The remedy it provides for
questioning the elections is the election protest. But this remedy, as will be
shown later, is not available to just anybody.
Before its amendment in 1989, the IBP By-Laws allowed the disqualification
of nominees for the position of regional governor. This was carefully detailed
in the former Section 39(4) of the IBP By-Laws, to wit:
SECTION 39 (4) Disqualification proceedings. - Any question relating to the
eligibility of a candidate must be raised prior to the casting of ballots, and
shall be immediately decided by the Chairman. An appeal from such decision
may be taken to the Delegates in attendance who shall forthwith resolve the
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appeal by plurality vote. Voting shall be by raising of hands. The decision of
the Delegates shall be final, and the elections shall thereafter proceed.
Recourse to the Board of Governors may be had in accordance with Section
40.
The above-quoted sub-section was part of the provisions on nomination and
election of the Board of Governors. Before, members of the Board were
directly elected by the members of the House of Delegates at its annual
convention held every other year.29 The election was a two-tiered process.
First, the Delegates from each region chose by secret plurality vote, not less
than two nor more than five nominees for the position of Governor for their
Region. The names of all the nominees, arranged by region and in
alphabetical order, were written on the board within the full view of the House,
unless complete mimeographed copies of the lists were distributed to all the
Delegates.30 Thereafter, each Delegate, or, in his absence, his alternate
voted for only one nominee for Governor for each Region.31 The nominee
from every Region receiving the highest number of votes was declared and
certified elected by the Chairman.32
In the aftermath of the controversy which arose during the 1989 IBP
elections, this Court deemed it best to amend the nomination and election
processes for Regional Governors. The Court localized the elections,
i.e, each Regional Governor is nominated and elected by the delegates of the
concerned region, and adopted the rotation process through the following
provisions, to wit:
SECTION 37: Composition of the Board. - The Integrated Bar of the
Philippines shall be governed by a Board of Governors consisting of nine (9)
Governors from the nine (9) regions as delineated in Section 3 of the
Integration Rule, on the representation basis of one Governor for each region
to be elected by the members of the House of Delegates from that region
only. The position of Governor should be rotated among the different
chapters in the region.
SECTION 39: Nomination and election of the Governors. - At least one (1)
month before the national convention the delegates from each region shall
elect the governor for their region, the choice of which shall as much as
possible be rotated among the chapters in the region.
The changes adopted by the Court simplified the election process and thus
made it less controversial. The grounds for disqualification were reduced, if
not totally eradicated, for the pool from which the Delegates may choose their
nominees is diminished as the rotation process operates.
The simplification of the process was in line with this Courts vision of an
Integrated Bar which is non-political33 and effective in the discharge of its role
in elevating the standards of the legal profession, improving the
administration of justice and contributing to the growth and progress of the
Philippine society.34
The effect of the new election process convinced this Court to remove the
provision on disqualification proceedings. Consequently, under the present
IBP By-Laws, the instant petition has no firm ground to stand on.
Respondent De Vera likewise asseverates that under the aforequoted
Section 40 of the IBP By-Laws, petitioners are not the proper persons to bring
the suit for they are not qualified to be nominated in the elections of regional
governor for Eastern Mindanao. He argues that following the rotation rule
under Section 39 of the IBP By-Laws as amended, only IBP members from
Agusan del Sur and Surigao del Norte are qualified to be nominated.
Truly, with the applicability of Section 40 of the IBP By-Laws to the present
petition, petitioners are not the proper parties to bring the suit. As provided in
the aforesaid section, only nominees can file with the President of the IBP a
written protest setting forth the grounds therefor. As claimed by respondent
De Vera, and not disputed by petitioners, only IBP members from Agusan del
Sur and Surigao del Norte are qualified to be nominated and elected at the
election for the 16th Regional Governor of Eastern Mindanao. This is
pursuant to the rotation rule enunciated in the aforequoted Sections 37 and
38 of the IBP By-Laws. Petitioner Garcia is from Bukidnon IBP Chapter while
the other petitioners, Ravanera and Velez, are from the Misamis Oriental IBP
Chapter. Consequently, the petitioners are not even qualified to be
nominated at the forthcoming election.
On the third issue relating to the ripeness or prematurity of the present
petition.
This Court is one with the IBP Board in its position that it is premature for the
Page 189
petitioners to seek the disqualification of respondent De Vera from being
elected IBP Governor for the Eastern Mindanao Region. Before a member is
elected governor, he has to be nominated first for the post. In this case,
LEGAL ETHICS
respondent De Vera has not been nominated for the post. In fact, no
nomination of candidates has been made yet by the members of the House
of Delegates from Eastern Mindanao. Conceivably too, assuming that
respondent De Vera gets nominated, he can always opt to decline the
nomination.
Petitioners contend that respondent de Vera is disqualified for the post
because he is not really from Eastern Mindanao. His place of residence is in
Paraaque and he was originally a member of the PPLM IBP Chapter. He only
changed his IBP Chapter membership to pave the way for his ultimate goal
of attaining the highest IBP post, which is the national presidency. Petitioners
aver that in changing his IBP membership, respondent De Vera violated the
domicile rule.
The contention has no merit. Under the last paragraph of Section 19 Article
II, a lawyer included in the Roll of Attorneys of the Supreme Court can register
with the particular IBP Chapter of his preference or choice, thus:
Section 19. Registration. -
....
Unless he otherwise registers his preference for a particular Chapter, a
lawyer shall be considered a member of the Chapter of the province, city,
political subdivision or area where his office or, in the absence thereof, his
residence is located. In no case shall any lawyer be a member of more than
one Chapter. (Underscoring supplied)
It is clearly stated in the afore-quoted section of the By-Laws that it is not
automatic that a lawyer will become a member of the chapter where his place
of residence or work is located. He has the discretion to choose the particular
chapter where he wishes to gain membership. Only when he does not
register his preference that he will become a member of the Chapter of the
place where he resides or maintains his office. The only proscription in
registering ones preference is that a lawyer cannot be a member of more
than one chapter at the same time.
The same is provided in Section 29-2 of the IBP By-Laws. In fact, under this
Section, transfer of IBP membership is allowed as long as the lawyer
complies with the conditions set forth therein, thus:
SECTION 29-2. Membership - The Chapter comprises all members
registered in its membership roll. Each member shall maintain his
membership until the same is terminated on any of the grounds set forth in
the By-Laws of the Integrated Bar, or he transfers his membership to another
Chapter as certified by the Secretary of the latter, provided that the transfer
is made not less than three months immediately preceding any Chapter
election.
The only condition required under the foregoing rule is that the transfer must
be made not less than three months prior to the election of officers in the
chapter to which the lawyer wishes to transfer.
In the case at bar, respondent De Vera requested the transfer of his IBP
membership to Agusan del Sur on 1 August 2001. One month thereafter, IBP
National Secretary Jaime M. Vibar wrote a letter35 addressed to Atty. Amador
Z. Tolentino, Jr., Secretary of IBP PPLM Chapter and Atty. Lyndon J.
Romero, Secretary of IBP Agusan del Sur Chapter, informing them of
respondent De Veras transfer and advising them to make the necessary
notation in their respective records. This letter is a substantial compliance
with the certification mentioned in Section 29-2 as aforequoted. Note that De
Veras transfer was made effective sometime between August 1, 2001 and
September 3, 2001. On February 27, 2003, the elections of the IBP Chapter
Officers were simultaneously held all over the Philippines, as mandated by
Section 29-12.a of the IBP By-Laws which provides that elections of Chapter
Officers and Directors shall be held on the last Saturday of February of every
other year.36 Between September 3, 2001 and February 27, 2003, seventeen
months had elapsed. This makes respondent De Veras transfer valid as it
was done more than three months ahead of the chapter elections held on
February 27, 2003.
Petitioners likewise claim that respondent De Vera is disqualified because he
is not morally fit to occupy the position of governor of Eastern Mindanao.
We are not convinced. As long as an aspiring member meets the basic
requirements provided in the IBP By-Laws, he cannot be barred. The basic
qualifications for one who wishes to be elected governor for a particular
region are: (1) he is a member in good standing of the IBP;37 2) he is included
in the voters list of his chapter or he is not disqualified by the Integration Rule,
by the By-Laws of the Integrated Bar, or by the By-Laws of the Chapter to
which he belongs;38 (3) he does not belong to a chapter from which a regional
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governor has already been elected, unless the election is the start of a new
season or cycle;39 and (4) he is not in the government service.40
There is nothing in the By-Laws which explicitly provides that one must be
morally fit before he can run for IBP governorship. For one, this is so because
the determination of moral fitness of a candidates lies in the individual
judgment of the members of the House of Delegates. Indeed, based on each
members standard of morality, he is free to nominate and elect any member,
so long as the latter possesses the basic requirements under the law. For
another, basically the disqualification of a candidate involving lack of moral
fitness should emanate from his disbarment or suspension from the practice
of law by this Court, or conviction by final judgment of an offense which
involves moral turpitude.
Petitioners, in assailing the morality of respondent De Vera on the basis of
the alleged sanction imposed by the Supreme Court during the deliberation
on the constitutionality of the plunder law, is apparently referring to this
Courts Decision dated 29 July 2002 in In Re: Published Alleged Threats
Against Members of the Court in the Plunder Law Case Hurled by Atty.
Leonard De Vera.41 In this case, respondent De Vera was found guilty of
indirect contempt of court and was imposed a fine in the amount of Twenty
Thousand Pesos (P20,000.00) for his remarks contained in two newspaper
articles published in the Inquirer. Quoted hereunder are the pertinent portions
of the report, with De Veras statements written in italics.
PHILIPPINE DAILY INQUIRER
Tuesday, November 6, 2001
Erap camp blamed for oust-Badoy maneuvers
Plunder Law
De Vera asked the Supreme Court to dispel rumors that it would vote in favor
of a petition filed by Estradas lawyers to declare the plunder law
unconstitutional for its supposed vagueness.
De Vera said he and his group were greatly disturbed by the rumors from
Supreme Court insiders.
Reports said that Supreme Court justices were tied 6-6 over the
constitutionality of the Plunder Law, with two other justices still undecided
and uttered most likely to inhibit, said Plunder Watch, a coalition formed by
civil society and militant groups to monitor the prosecution of Estrada.
We are afraid that the Estrada camps effort to coerce, bribe, or influence the
justices- considering that it has a P500 million slush fund from the aborted
power grab that May-will most likely result in a pro-Estrada decision declaring
the Plunder Law either unconstitutional or vague, the group said.42
PHILIPPINE DAILY INQUIRER
Monday, November 19, 2001
SC under pressure from Erap pals, foes
Xxx
People are getting dangerously, passionate.. .emotionally charged. said
lawyer Leonard De Vera of the Equal Justice for All Movement and a leading
member of the Estrada Resign movement.
He voiced his concern that a decision by the high tribunal rendering the
plunder law unconstitutional would trigger mass actions, probably more
massive than those that led to People Power II.
Xxx
De Vera warned of a crisis far worse than the jueteng scandal that led to
People Power II if the rumor turned out to be true.
People wouldnt just swallow any Supreme Court decision that is basically
wrong. Sovereignty must prevail. 43
In his Explanation submitted to the Court, respondent De Vera admitted to
have made said statements but denied to have uttered the same to degrade
the Court, to destroy public confidence in it and to bring it into disrepute.44 He
explained that he was merely exercising his constitutionally guaranteed right
to freedom of speech.
The Court found the explanation unsatisfactory and held that the statements
were aimed at influencing and threatening the Court to decide in favor of the
constitutionality of the Plunder Law.45
The ruling cannot serve as a basis to consider respondent De Vera immoral.
The act for which he was found guilty of indirect contempt does not involve
moral turpitude.
In Tak Ng v. Republic of the Philippines46 cited in Villaber v. Commission on
Elections,47 the Court defines moral turpitude as an act of baseness, vileness
Page 190
or depravity in the private and social duties which a man owes his fellow men,
or to society in general, contrary to the accepted and customary rule of right
and duty between man and man, or conduct contrary to justice, honesty,
LEGAL ETHICS
modesty or good morals.48 The determination of whether an act involves
moral turpitude is a factual issue and frequently depends on the
circumstances attending the violation of the statute.49
In this case, it cannot be said that the act of expressing ones opinion on a
public interest issue can be considered as an act of baseness, vileness or
depravity. Respondent De Vera did not bring suffering nor cause undue injury
or harm to the public when he voiced his views on the Plunder Law.50
Consequently, there is no basis for petitioner to invoke the administrative
case as evidence of respondent De Veras alleged immorality. On the
administrative complaint that was filed against respondent De Vera while he
was still practicing law in California, he explained that no final judgment was
rendered by the California Supreme Court finding him guilty of the charge. He
surrendered his license to protest the discrimination he suffered at the hands
of the investigator and he found it impractical to pursue the case to the end.
We find these explanations satisfactory in the absence of contrary proof. It is
a basic rule on evidence that he who alleges a fact has the burden to prove
the same.51 In this case, the petitioners have not shown how the
administrative complaint affects respondent De Veras moral fitness to run for
governor.
Finally, on the allegation that respondent de Vera or his handlers had housed
the delegates from Eastern Mindanao in the Century Park Hotel to get their
support for his candidacy, again petitioners did not present any proof to
substantiate the same. It must be emphasized that bare allegations,
unsubstantiated by evidence, are not equivalent to proof under our Rules of
Court.52
WHEREFORE, the Petition to disqualify respondent Atty. Leonard De Vera
to run for the position of IBP Governor for Eastern Mindanao in the 16th
election of the IBP Board of Governors is hereby DISMISSED. The
Temporary Restraining Order issued by this Court on 30 May 2003 which
enjoined the conduct of the election for the IBP Regional Governor in Eastern
Mindanao is hereby LIFTED. Accordingly, the IBP Board of Governors is
hereby ordered to hold said election with proper notice and with deliberate
speed.
SO ORDERED.
Rule 13.01 – A lawyer shall not extend extraordinary attention or
hospitality to, nor seek opportunity for, cultivating familiarity with
judges.
Rule 13.02 – A lawyer shall not make public statements in the media
regarding a pending case tending to arouse public opinion for or
against a party.
G.R. No. L-12871 July 25, 1959
TIMOTEO V. CRUZ, petitioner,
vs.
FRANCISCO G. H. SALVA, respondent.
Baizas and Balderrama for petitioner.
City Attorney Francisco G. H. Salva in his own behalf.
MONTEMAYOR, J.:
This is a petition for certiorari and prohibition with preliminary injunction filed
by Timoteo V. Cruz against Francisco G. H. Salva, in his capacity as City
Fiscal of Pasay City, to restrain him from continuing with the preliminary
investigation he was conducting in September, 1957 in connection with the
killing of Manuel Monroy which took place on June 15, 1953 in Pasay City.
To better understand the present case and its implications, the following facts
gathered from the pleadings and the memoranda filed by the parties, may be
stated.
Following the killing of Manuel Monroy in 1953 a number of persons were
accused as involved and implicated in said crime. After a long trial, the Court
of First Instance of Pasay City found Oscar Castelo, Jose de Jesus, Hipolito
Bonifacio, Bienvenido Mendoza, Francis Berdugo and others guilty of the
crime of murder and sentenced them to death. They all appealed the
sentence although without said appeal, in view of the imposition of the
extreme penalty, the case would have to be reviewed automatically by this
Court. Oscar Castelo sought a new trial which was granted and upon retrial,
he was again found guilty and his former conviction of sentence was affirmed
and reiterated by the same trial court.
It seems that pending appeal, the late President Magsaysay ordered a
reinvestigation of the case. The purpose of said reinvestigation does not
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appear in the record. Anyway, intelligence agents of the Philippine
Constabulary and investigators of Malacañang conducted the investigation
for the Chief Executive, questioned a number of people and obtained what
would appear to be confession, pointing to persons, other than those
convicted and sentenced by the trial court, as the real killers of Manuel
Monroy.
Counsel for Oscar Castelo and his co-defendants wrote to respondent Fiscal
Salva to conduct a reinvestigation of the case presumably on the basis of the
affidavits and confessions obtained by those who had investigated the case
at the instance of Malacañang. Fiscal Salva conferred with the Solicitor
General as to what steps he should take. A conference was held with the
Secretary of Justice who decided to have the results of the investigation by
the Philippine Constabulary and Malacañang investigators made available to
counsel for the appellants.
Taking advantage of this opportunity, counsel for the appellants filed a motion
for new trial with this Tribunal supporting the same with the so-called
affidavits and confessions of some of those persons investigated, such as
the confessions of Sergio Eduardo y de Guzman, Oscar Caymo, Pablo
Canlas, and written statements of several others. By resolution of this
Tribunal, action on said motion for new trial was deferred until the case was
studied and determined on the merits. In the meantime, the Chief, Philippine
Constabulary, head sent to the Office of Fiscal Salva copies of the same
affidavits and confessions and written statements, of which the motion for
new trial was based, and respondent Salva proceeded to conduct a
reinvestigation designating for said purposes a committee of three composed
of himself as chairman and Assistant City Attorneys Herminio A. Avendañio
and Ernesto A. Bernabe.
In connection with said preliminary investigation being conducted by the
committee, petitioner Timoteo Cruz was subpoenaed by respondent to
appear at his office on September 21, 1957, to testify "upon oath before me
in a certain criminal investigation to be conducted at the time and place by
this office against you and Sergio Eduardo, et al., for murder." On September
19, 1957, petitioner Timoteo Cruz wrote to respondent Salva asking for the
transfer of the preliminary investigation from September 21, due to the fact
that this counsel, Atty. Crispin Baizas, would attend a hearing on that same
day in Naga City. Acting upon said request for postponement, Fiscal Salva
set the preliminary investigation on September 24. On that day, Atty. Baizas
appeared for petitioner Cruz, questioned the jurisdiction of the committee,
particularly respondent Salva, to conduct the preliminary investigation in view
of the fact that the same case involving the killing of Manuel Monroy was
pending appeal in this Court, and on the same day filed the present petition
for certiorari and prohibition. This Tribunal gave due course to the petition for
certiorari and prohibition and upon the filing of a cash bond of P200.00 issued
a writ of preliminary injunction thereby stopping the preliminary investigation
being conducted by respondent Salva.
The connection, if any, that petitioner Cruz had with the preliminary
investigation being conducted by respondent Salva and his committee was
that affidavits and confessions sent to Salva by the Chief, Philippine
Constabulary, and which were being investigated, implicated petitioner Cruz,
even picturing him as the instigator and mastermind in the killing of Manuel
Monroy.
The position taken by petitioner Cruz in this case is that inasmuch as the
principal case of People vs. Oscar Castelo, et al., G.R. No. L-10794, is
pending appeal and consideration before us, no court, much less a
prosecuting attorney like respondent Salva, had any right or authority to
conduct a preliminary investigation or reinvestigation of the case for that
would be obstructing the administration of justice and interferring with the
consideration on appeal of the main case wherein appellants had been found
guilty and convicted and sentenced; neither had respondent authority to cite
him to appear and testify at said investigation.
Respondent Salva, however, contends that if he subpoenaed petitioner Cruz
at all, it was because of the latter's oral and personal request to allow him to
appear at the investigation with his witnesses for his own protection, possibly,
to controvert and rebut any evidence therein presented against him. Salva
claims that were it not for this request and if, on the contrary, Timoteo Cruz
had expressed any objection to being cited to appear in the investigation he
(Salva) would never have subpoenaed him.
Page 191
Although petitioner Cruz now stoutly denies having made such request that
he be allowed to appear at the investigation, we are inclined to agree with
Fiscal Salva that such a request had been made. Inasmuch as he, Timoteo
LEGAL ETHICS
Cruz, was deeply implicated in the killing of Manuel Monroy by the affidavits
and confessions of several persons who were being investigated by Salva
and his committee, it was but natural that petitioner should have been
interested, even desirous of being present at that investigation so that he
could face and cross examine said witnesses and affiants when they testified
in connection with their affidavits or confessions, either repudiating,
modifying or ratifying the same. Moreover, in the communication, addressed
to respondent Salva asking that the investigation, scheduled for September
21, 1957, be postponed because his attorney would be unable to attend,
Timoteo Cruz expressed no opposition to the subpoena, not even a hint that
he was objecting to his being cited to appear at the investigation.
As to the right of respondent Salva to conduct the preliminary investigation
which he and his committee began ordinarily, when a criminal case in which
a fiscal intervened though nominally, for according to respondent, two
government attorneys had been designed by the Secretary of Justice to
handle the prosecution in the trial of the case in the court below, is tried and
decided and it is appealed to a higher court such as this Tribunal, the
functions and actuations of said fiscal have terminated; usually, the appeal is
handled for the government by the Office of the Solicitor General.
Consequently, there would be no reason or occasion for said fiscal to conduct
a reinvestigation to determine criminal responsibility for the crime involved in
the appeal.
However, in the present case, respondent has, in our opinion, established a
justification for his reinvestigation because according to him, in the original
criminal case against Castelo, et al., one of the defendants named Salvador
Realista y de Guzman was not included for the reason that he was arrested
and was placed within the jurisdiction of the trial court only after the trial
against the other accused had commenced, even after the prosecution had
rested its case and the defense had begun to present its evidence. Naturally,
Realista remained to stand trial. The trial court, according to respondent, at
the instance of Realista, had scheduled the hearing at an early date, that is
in August, 1957. Respondent claims that before he would go to trial in the
prosecution of Realista he had to chart his course and plan of action, whether
to present the same evidence, oral and documentary, presented in the
original case and trial, or, in view of the new evidence consisting of the
affidavits and confessions sent to him by the Philippine Constabulary, he
should first assess and determine the value of said evidence by conducting
an investigation and that should he be convinced that the persons criminally
responsible for the killing of Manuel Monroy were other than those already
tried and convicted, like Oscar Castelo and his co-accused and co-
appellants, including Salvador Realista, then he might act accordingly and
even recommend the dismissal of the case against Realista.
In this, we are inclined to agree with respondent Salva. For, as contended by
him and as suggested by authorities, the duty and role of prosecuting
attorney is not only to prosecute and secure the conviction of the guilty but
also to protect the innocent.
We cannot overemphasize the necessity of close scrutiny and investigation
of the prosecuting officers of all cases handled by them, but whilst this court
is averse to any form of vacillation by such officers in the prosecution of public
offenses, it is unquestionable that they may, in appropriate cases, in order to
do justice and avoid injustice, reinvestigate cases in which they have already
filed the corresponding informations. In the language of Justice Sutherland
of the Supreme Court of the United States, theprosecuting officer "is the
representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape nor innocent suffer. He may prosecute
with earnestness and vigor — indeed, he should do so. But, while he may
strike had blows, he is not at liberty to strike foul ones. It is as much his duty
to refrain from improper methods calculated to produce a wrongful conviction
as it is to use every legitimate means to bring about a just one. (69 United
States law Review, June, 1935, No. 6, p. 309, cited in the case of Suarezvs.
Platon, 69 Phil., 556)
With respect to the right of respondent Salva to cite petitioner to appear and
testify before him at the scheduled preliminary investigation, under the law,
petitioner had a right to be present at that investigation since as was already
stated, he was more or less deeply involved and implicated in the killing of
Monroy according to the affiants whose confessions, affidavits and
PINEDAPCGRNMAN
testimonies respondent Salva was considering or was to consider at said
preliminary investigation. But he need not be present at said investigation
because his presence there implies, and was more of a right rather than a
duty or legal obligation. Consequently, even if, as claimed by respondent
Salva, petitioner expressed the desire to be given an opportunity to be
present at the said investigation, if he latter changed his mind and renounced
his right, and even strenuously objected to being made to appear at said
investigation, he could not be compelled to do so.
Now we come to the manner in which said investigation was conducted by
the respondent. If, as contended by him, the purpose of said investigation
was only to acquaint himself with and evaluate the evidence involved in the
affidavits and confessions of Sergio Eduardo, Cosme Camo and others by
questioning them, then he, respondent, could well have conducted the
investigation in his office, quietly, unobtrusively and without much fanfare,
much less publicity.
However, according to the petitioner and not denied by the respondent, the
investigation was conducted not in respondent's office but in the session hall
of the Municipal Court of Pasay City evidently, to accommodate the big crowd
that wanted to witness the proceeding, including members of the press. A
number of microphones were installed. Reporters were everywhere and
photographers were busy taking pictures. In other words, apparently with the
permission of, if not the encouragement by the respondent, news
photographers and newsmen had a filed day. Not only this, but in the course
of the investigation, as shown by the transcript of the stenographic notes
taken during said investigation, on two occasions, the first, after Oscar
Caymo had concluded his testimony respondent Salva, addressing the
newspapermen said, "Gentlemen of the press, if you want to ask questions I
am willing to let you do so and the question asked will be reproduced as my
own"; and the second, after Jose Maratella y de Guzman had finished
testifying and respondent Salva, addressing the newsmen, again said,
"Gentlemen of the press is free to ask questions as ours." Why respondent
was willing to abdicate and renounce his right and prerogative to make and
address the questions to the witnesses under investigation, in favor of the
members of the press, is difficult for us to understand, unless he, respondent,
wanted to curry favor with the press and publicize his investigation as much
as possible. Fortunately, the gentlemen of the press to whom he accorded
such unusual privilege and favor appeared to have wisely and prudently
declined the offer and did not ask questions, this according to the transcript
now before us.
But, the newspapers certainly played up and gave wide publicity to what took
place during the investigation, and this involved headlines and extensive
recitals, narrations of and comments on the testimonies given by the
witnesses as well as vivid descriptions of the incidents that took place during
the investigation. It seemed as though the criminal responsibility for the killing
of Manuel Monroy which had already been tried and finally determined by the
lower court and which was under appeal and advisement by this Tribunal,
was being retried and redetermined in the press, and all with the apparent
place and complaisance of respondent.
Frankly, the members of this Court were greatly disturbed and annoyed by
such publicity and sensationalism, all of which may properly be laid at the
door of respondent Salva. In this, he committed what was regard a grievous
error and poor judgment for which we fail to find any excuse or satisfactory
explanation. His actuations in this regard went well beyond the bounds of
prudence, discretion and good taste. It is bad enough to have such undue
publicity when a criminal case is being investigated by the authorities, even
when it being tried in court; but when said publicity and sensationalism is
allowed, even encouraged, when the case is on appeal and is pending
consideration by this Tribunal, the whole thing becomes inexcusable, even
abhorrent, and this Court, in the interest of justice, is constrained and called
upon to put an end to it and a deterrent against its repetition by meting an
appropriate disciplinary measure, even a penalty to the one liable.
Some of the members of the Court who appeared to feel more strongly than
the others favored the imposition of a more or less severe penal sanction.
After mature deliberation, we have finally agreed that a public censure would,
for the present, be sufficient.
In conclusion, we find and hold that respondent Salva was warranted in
holding the preliminary investigation involved in this case, insofar as Salvador
Page 192
Realista is concerned, for which reason the writ of preliminary injunction
issued stopping said preliminary investigation, is dissolved; that in view of
petitioner's objection to appear and testify at the said investigation,
LEGAL ETHICS
respondent may not compel him to attend said investigation, for which
reason, the subpoena issued by respondent against petitioner is hereby set
aside.
In view of the foregoing, the petition for certiorari and prohibition is granted
in part and denied in part. Considering the conclusion arrived at by us,
respondent Francisco G. H. Salva is hereby publicly reprehended and
censured for the uncalled for and wide publicity and sensationalism that he
had given to and allowed in connection with his investigation, which we
consider and find to be contempt of court; and, furthermore, he is warned that
a repetition of the same would meet with a more severe disciplinary action
and penalty. No costs.
G.R. No. L-30894 March 25, 1970
EDUARDO L. MARTELINO, CIRILO OROPESA, TEODORO FACELO,
RUPERTO AMISOTO, ALBERTO SOTECO, SOLFERINO TITONG, ET
AL., petitioners,
vs.
JOSE ALEJANDRO, RUBEN S. MONTOYA, SIXTO R. ALHAMBRA,
AVELINO C. MENEZ, EFRAIN S. MACLANG, ET AL., respondents.
Amelito R. Mutuc for petitioners.
Colonel Manuel V. Reyes (Judge Advocate General, GSC), Major Samuel
M. Soriano (JAGS), Major Higinio E. Dacanay, Jr. (JAGS, PC) and Solicitor
General Felix V. Makasiar, Assistant Solicitor General Crispin V. Bautista,
Solicitor Jaime M. Lantin and Guillermo Nakar, Jr. for respondents.
CASTRO, J.:
This case presents another aspect of the court-martial proceedings against
the petitioner, Major Eduardo Martelino, alias Abdul Latif Martelino, of the
Armed Forces of the Philippines, and the officers and men under him, for
violation of the 94th and 97th Articles of War, as a result of the alleged
shooting on March 18, 1968 of some Muslim recruits then undergoing
commando training on the island of Corregidor. Once before the question
was raised before this Court whether the general court-martial, convened on
April 6, 1968 to try the case against the petitioners, acquired jurisdiction over
the case despite the fact that earlier, on March 23, a complaint for frustrated
murder had been filed in the fiscal's office of Cavite City by Jibin Arula (who
claimed to have been wounded in the incident) against some of the herein
petitioners. The proceedings had to be suspended until the jurisdiction issue
could be decided. On June 23, 1969 this Court ruled in favor of the jurisdiction
of the military court.1
The jurisdiction question thus settled, attention once again shifted to the
general court-martial, but no sooner had the proceedings resumed than
another hitch developed. This came about as the petitioners, the accused in
the court-martial proceedings, in turn came to this Court, seeking relief
against certain orders of the general court-martial.
It appears that at the hearing on August 12, 1969 the petitioner Martelino
sought the disqualification of the President of the general court-martial,
following the latter's admission that he read newspaper stories of the
Corregidor incident. The petitioner contended that the case had received
such an amount of publicity in the press and other news media and in fact
was being exploited for political purposes in connection with the presidential
election on November 11, 1969 as to imperil his right to a fair trial. After
deliberating, the military court denied the challenge.
Thereafter the petitioners raised peremptory challenges against Col.
Alejandro, as president of the court-martial, and Col. Olfindo, Lt. Col.
Camagay, Lt. Col. Valones, Lt. Col. Blanco and Col. Malig, as members. With
regard to peremptory challenges it was the petitioners' position that for each
specification each accused was entitled to one such challenge. They later
changed their stand and adopted that of the trial judge advocate that "for
each specification jointly tried, all of the accused are entitled to only 1
peremptory challenge; and that with respect to the specifications tried
commonly, each one of the accused is entitled to one peremptory challenge."
They there contended that they were entitled to a total of eleven peremptory
challenges. On the other hand the court-martial ruled that the accused were
entitled to only one peremptory challenge as the specifications were being
jointly tried.
The petitioners therefore filed this petition for certiorari and prohibition, to
nullify the orders of the court-martial denying their challenges, both
peremptory and for cause. They allege that the adverse publicity given in the
mass media to the Corregidor incident, coupled with the fact that it became
PINEDAPCGRNMAN
an issue against the administration in the 1969 elections, was such as to
unduly influence the members of the court-martial. With respect to
peremptory challenges, they contend that they are entitled to eleven such
challenges, one for each specification.
On August 29, 1969 this Court gave due course to the petition, required the
respondents as members of the general court-martial to answer and, in the
meantime, restrained them from proceeding with the case.
In their answer the respondents assert that despite the publicity which the
case had received, no proof has been presented showing that the court-
martial's president's fairness and impartiality have been impaired. On the
contrary, they claim, the petitioner's own counsel expressed confidence in
the "integrity, experience and background" of the members of the court. As a
preliminary consideration, the respondents urge this Court to throw out the
petition on the ground that it has no power to review the proceedings of the
court-martial, "except for the purpose of ascertaining whether the military
court had jurisdiction of the person and subject matter, and whether, though
having such jurisdiction, it had exceeded its powers in the sentence
pronounced," and that at any rate the petitioners failed to exhaust remedies
available to them within the military justice system.
I
It is true that civil courts as a rule exercise no supervision or correcting power
over the proceedings of courts-martial, and that mere errors in their
proceedings are not open to consideration. "The single inquiry, the test, is
jurisdiction."2 But it is equally true that in the exercise of their undoubted
discretion, courts-martial may commit such an abuse of discretion — what in
the language of Rule 65 is referred to as "grave abuse of discretion" — as to
give rise to a defect in their jurisdiction.3 This is precisely the point at issue in
this action suggested by its nature as one for certiorari and prohibition,
namely, whether in overruling the petitioners' challenges, the general court-
martial committed such an abuse of discretion as to call for the exercise of
the corrective powers of this Court. It is thus obvious that no other way is
open to this Court by which it may avoid passing upon the constitutional issue
thrust upon it. Nor will the fact that there may be available remedies within
the system of military justice bar review considering that the questions raised
are questions of law.4
And so the threshold question is whether the publicity given to the case
against the petitioners was such as to prejudice their right to a fair trial. As
already stated, the petitioner Martelino challenged the court-martial president
on the ground that newspaper accounts of what had come to be referred to
as the "Corregidor massacre" might unduly influence the trial of their case.
The petitioner's counsel referred to a news item appearing in the July 29,
1969 issue of the Daily Mirror and cited other news reports to the effect that
"coffins are being prepared for the President (of the Philippines) in Jolo," that
according to Senator Aquino "massacre victims were given sea burial," and
that Senator Magsaysay, opposition Vice President candidate, had gone to
Corregidor and "found bullet shells." In addition the petitioners cite in this
Court a Manila Times editorial of August 26, 1969 which states that "The
Jabidah [code name of the training operations] issue was bound to come up
in the course of the election campaign. The opposition could not possibly
ignore an issue that is heavily loaded against the administration." The
petitioners argue that under the circumstances they could not expect a just
and fair trial and that, in overruling their challenge for cause based on this
ground, the general court-martial committed a grave abuse of discretion. In
support of their contention they invoke the rulings of the United States
Supreme Court in Irvin v. Dowd,5 Rideau vs. Louisiana,6 Estes v. Texas,7
and Shepard v. Maxwell.8
An examination of the cases cited, however, will show that they are widely
disparate from this case in a fundamental sense. In Irvin, for instance, the
Supreme Court found that shortly after the petitioner's arrest in connection
with six murders committed in Vanderburgh County, Indiana, the prosecutor
and police officials issued press releases stating that the petitioner had
confessed to the six murders and that "a barrage of newspaper headlines
articles, cartoons and pictures was unleashed against him during the six or
seven months preceding his trial." In reversing his conviction, the Court said:
Here the "pattern of deep and bitter prejudice' shown to be present
throughout the community, ... was clearly reflected in the sum total of the voir
dire examination of a majority of the jurors finally placed in the jury box. Eight
Page 193
out of the 12 thought petitioner was guilty. With such an opinion permeating
their minds, it would be difficult to say that each could exclude this
preconception of guilt from his deliberations. The influence that lurks in an
LEGAL ETHICS
opinion once formed is so persistent that it unconsciously fights detachment
from the processes of the average man. ... Where one's life is at stake — and
accounting for the frailties of human nature — we can only say that in the
light of the circumstances here the finding of impartiality does not meet the
constitutional standard.9
Irvin marks the first time a state conviction was struck down solely on the
ground of prejudicial publicity. 10 In the earlier case of Shepherd v. Florida,
11 which involved elements of publicity, the reversal of the conviction was
based solely on racial discrimination in the selection of the jury, although to
concurring Justice Jackson, who was joined by Justice Frankfurter, "It is hard
to imagine a more prejudicial influence than a press release by the officer of
the court charged with defendants' custody stating that they had confessed,
and here just such a statement unsworn to, unseen, uncross- examined and
uncontradicted, was conveyed by the press to the jury. 12
In Rideau, the petitioner, suspect in the robbery of a bank in Lake Charles,
Louisiana and in the kidnapping of three of its employees, and in the killing
of one of them, was similarly given "trial by publicity." Thus, the day after his
arrest, a moving picture film was taken of him in an "interview" with the sheriff.
The "interview," which lasted approximately 20 minutes, consisted of
interrogation by the sheriff and admission by Rideau that he had perpetrated
the bank robbery, kidnapping and murder. The interview was seen and heard
on television by 24,000 people. Two weeks later he was arraigned. His
lawyers promptly moved for a change of venue but their motion was denied
and Rideau was convicted and sentenced to death. Rideau's counsel had
requested that jurors be excused for cause, having exhausted all of their
peremptory challenges, but these challenges for cause had been denied by
the trial judge. In reversing his conviction, the Court said:
[W]e hold that it was a denial of due process of law to refuse the request for
a change of venue, after the people of Calcasieu Parish had been exposed
repeatedly and in depth to the spectacle of Rideau personally confessing in
detail to the crimes with which he was later to be charged. For anyone who
has ever watched television the conclusion cannot be avoided that this
spectacle, to the tens of thousands of people who saw and heard it, in a very
real sense was Rideau's trial — at which he pleaded guilty to murder. Any
subsequent court proceedings in a community so pervasively exposed to
such a spectacle could be but a hollow formality. 13
In the third case, Estes, the Court voided a televised criminal trial for being
inherently a denial of due process.
The state ... says that the use of television in the instant case was "without
injustice to the person immediately concerned," basing its position on the fact
that the petitioner has established no isolate prejudice and that this must be
shown in order to invalidate a conviction in these circumstances. The State
paints too broadly in this contention, for this Court itself has found instances
in which a showing of actual prejudice is not a prerequisite to reversal. This
is such a case. It is true that in most cases involving claims of due process
deprivations we require a showing of identifiable prejudice to the accused.
Nevertheless, at times a procedure employed by the State involves such a
probability that prejudice will result that it is inherently lacking in due process.
14
In Sheppard, the celebrated murder case of Sam Sheppard, who was
accused of the murder of his wife Marilyn, the Supreme Court observed a
"carnival atmosphere" in which "bedlam reigned at the courthouse ... and
newsmen took over practically the entire courtroom, hounding most of the
participants in the trial, especially Sheppard." It observed that "despite the
extent and nature of the publicity to which the jury was exposed during the
trial, the judge refused defense counsel's other requests that the jury be
asked whether they had read or heard specific prejudicial comment about the
case. ... In these circumstances, we assume that some of this material
reached members of the jury." The Court held:
From the cases coming here we note that unfair and prejudicial news
comment on pending trials has become increasingly prevalent. Due process
requires that the accused receive a trial by an impartial jury free from outside
influences. Given the pervasiveness of modern communications and the
difficulty of effacing prejudicial publicity from the minds of the jurors, the trial
courts must take strong measures to ensure that the balance is never
weighed against the accused. And appellate tribunals have the duty to make
an independent evaluation of the circumstances. Of course, there is nothing
that proscribes the press from reporting events that transpire in the
courtroom. But where there is a reasonable likelihood that prejudicial news
prior to trial will prevent a fair trial, the judge should continue the case until
PINEDAPCGRNMAN
the threat abates, or transfer it to another county not so permeated with
publicity. In addition sequestration of the jury was something the judge should
have sua sponte with counsel. If publicity during the proceeding threatens
the fairness of the trial, a new trial should be ordered. But we must remember
that reversals are but palliatives; the cure lies in those remedial measures
that will prevent the prejudice at its inception. The courts must take such
steps by rule and regulation that will protect their processes from prejudicial
outside interference. Neither prosecutors, counsel for defense, the accused,
witnesses, court staff nor enforcement officers coming under the jurisdiction
of the court should be permitted to frustrate its function. Collaboration
between counsel and the press as to information affecting the fairness of a
criminal trial is not only subject to regulation, but is highly censurable and
worthy of disciplinary measure. 15
In contrast the spate of publicity in this case before us did not focus on the
guilt of the petitioners but rather on the responsibility of the Government for
what was claimed to be a "massacre" of Muslim trainees. If there was a "trial
by newspaper" at all, it was not of the petitioners but of the Government.
Absent here is a showing of failure of the court-martial to protect the accused
from massive publicity encouraged by those connected with the conduct of
the trial 16 either by a failure to control the release of information or to remove
the trial to another venue or to postpone it until the deluge of prejudicial
publicity shall have subsided. Indeed we cannot say that the trial of the
petitioners was being held under circumstances which did not permit the
observance of those imperative decencies of procedure which have come to
be identified with due process.
At all events, even granting the existence of "massive" and "prejudicial"
publicity, since the petitioners here do not contend that the respondents have
been unduly influenced but simply that they might be by the "barrage" of
publicity, we think that the suspension of the court-martial proceedings has
accomplished the purpose sought by the petitioners' challenge for cause, by
postponing the trial of the petitioner until calmer times have returned. The
atmosphere has since been cleared and the publicity surrounding the
Corregidor incident has so far abated that we believe the trial may now be
resumed in tranquility.
II
Article of War 18 provides that "Each side shall be entitled to one peremptory
challenge, but the law member of the court shall not be challenged except for
cause." The general court-martial originally interpreted this provision to mean
that the entire defense was entitled to only one peremptory challenge.
Subsequently, on August 27, 1969, it changed its ruling and held that the
defense was entitled to eight peremptory challenges, but the petitioners
declined to exercise their right to challenge on the ground that this Court had
earlier restrained further proceedings in the court-martial.
It is the submission of the petitioners that "for every charge, each side may
exercise one peremptory challenge," and therefore because there are eleven
charges they are entitled to eleven separate peremptory challenges. The
respondents, upon the other hand, argue that "for each specification jointly
tried, all of the accused are entitled to only one peremptory challenge and
that with respect to specifications tried commonly each of the accused is
entitled to one peremptory challenge." Although there are actually a total of
eleven specifications against the petitioners, three of these should be
considered as merged with two other specifications, "since in fact they allege
the same offenses committed in conspiracy, thus leaving a balance of eight
specifications." The general court-martial thereof takes the position that all
the 23 petitioners are entitled to a total of only eight peremptory challenges.
We thus inescapably confront, and therefore now address, the issue here
posed.
We are of the view that both the petitioners and the general court-martial
misapprehend the true meaning, intent and scope of Article of War 18. As
will hereinafter be demonstrated, each of the petitioners is entitled as a matter
of right to one peremptory challenge. The number of specifications and/or
charges, and whether the accused are being jointly tried or undergoing a
common trial, are of no moment.
In the early formative years of the infant Philippine Army, after the passage
in 1935 of Commonwealth Act No. 1 (otherwise known as the National
Defense Act), except for a handful of Philippine Scout officers and graduates
of the United States military and naval academies who were on duty with the
Page 194
Philippine Army, there was a complete dearth of officers learned in military
law, this aside from the fact that the officer corps of the developing army was
numerically inadequate for the demands of the strictly military aspects of the
LEGAL ETHICS
national defense program. Because of these considerations it was then felt
that peremptory challenges should not in the meanwhile be permitted and
that only challenges for cause, in any number, would be allowed. Thus Article
18 of the Articles of War (Commonwealth Act No. 408), as worded on
September 14, 1938, the date of the approval of the Act, made no mention
or reference to any peremptory challenge by either the trial judge advocate
of a court-martial or by the accused. After December 17, 1958, when the
Manual for Courts-Martial 17 of the Philippine Army became effective, the
Judge Advocate General's Service of the Philippine Army conducted a
continuing and intensive program of training and education in military law,
encompassing the length and breadth of the Philippines. This program was
pursued until the outbreak of World War II in the Pacific on December 7,
1941. After the formal surrender of Japan to the allies in 1945, the officer
corps of the Armed Forces of the Philippines had expanded to a very large
number, and a great many of the officers had been indoctrinated in military
law. It was in these environmental circumstances that Article of War 18 was
amended on June 12, 1948 to entitle "each side" to one peremptory
challenge, with the sole proviso that "the law member of court shall not be
challenged except for cause."
By its very inherent nature a peremptory challenge does not require any
reason or ground therefor to exist or to be stated. It may be used before,
during, or after challenges for cause, or against a member of the court-martial
unsuccessfully challenged for cause, or against a new member if not
previously utilized in the trial. A member challenged peremptorily is forthwith
excused from duty with the court-martial.
The right of challenge comes from the common law with the trial by jury itself,
and has always been held essential to the fairness of trial by jury. 18
As was said by Blackstone, and repeated by Mr. Justice Story: 'In criminal
cases, or at least in capital ones, there is in favorem vitae, allowed to the
prisoner an arbitrary and capricious species of challenge to a certain number
of jurors, without showing any cause at all, which is called a peremptory
challenge; a provision full of that tenderness and humanity to prisoners, for
which our English laws are justly famous. This is grounded on two reasons:
1) As every one must be sensible, what sudden impression and
unaccountable prejudices we are apt to conceive upon the bare looks and
gestures of another; and how necessary it is that a prisoner (when put to
defend his life) should have a good opinion of his jury, the want of which
might totally disconcert him; the law has conceived a prejudice even without
being able to assign a reason for his dislike. 2) Because, upon challenges for
cause shown, if the reason assigned prove insufficient to set aside the juror,
perhaps the bare questioning his indifference may sometimes provoke a
resentment, to prevent all ill consequences from which, the prisoner is still at
liberty, if he pleases, peremptorily to set him aside.' 19
The right to challenge is in quintessence the right to reject, not to select. If
from the officers who remain an impartial military court is obtained, the
constitutional right of the accused to a fair trial is maintained 20
As we have hereinbefore stated, each of the 23 petitioners (accused before
the general court-martial) is entitled to one peremptory challenge,
21 irrespective of the number of specifications and/or charges and regardless
of whether they are tried jointly or in common. Three overriding reasons
compel us to this conclusion.
First, a peremptory challenge is afforded to an accused who, whether rightly
or wrongly, honestly feels that the member of the court peremptorily
challenged by him cannot sit in judgment over him, impartially. Every
accused person is entitled to a fair trial. It is not enough that objectively the
members of the court may be fair and impartial. It is likewise necessary that
subjectively the accused must feel that he is being tried by a fair and impartial
body of officers. Because the petitioners may entertain grave doubts as to
the fairness or impartiality of distinct, separate and different individual
members of the court-martial, it follows necessarily that each of the accused
is entitled to one peremptory challenge.
Second, Article of War 18 does not distinguish between common trials and
joint trials, nor does it make the nature or number of specifications and/or
charges a determinant. Reference is made by the respondents here to US
military law, in support of their argument that for each specification jointly
tried all of the accused are entitled to only one peremptory challenge and
with respect to all specifications tried in common each of the accused is
entitled to one peremptory challenge. We have carefully scrutinized U.S.
military law, and it is unmistakable from our reading thereof that each
PINEDAPCGRNMAN
accused person, whether in a joint or common trial, unquestionably enjoys
the right to one peremptory challenge. 22
Third, a perceptive analysis of the companion articles 23 to Article 18
convinces us that the word, "each side," as used in the said article in
reference to the defense, should be construed to mean each accused person.
Thus, Articles of War 17 (Trial Judge Advocate to Prosecute; Counsel to
Defend), 19 (Oath), 21 (Refusal or Failure to Plead), 28 (Court to Announce
Action), 29 (Closed Sessions), 30 (Method of Voting), and 36 (Irregularities
— Effect of), unequivocally speak of and refer to the "accused" in the singular.
ACCORDINGLY, subject to our pronouncement that each of the 23
petitioners is entitled to one separate peremptory challenge, the present
petition is denied. The temporary restraining order issued by this Court on
August 29, 1969 is hereby lifted. No pronouncement as to costs. .
[A.M. No. 01-4-03-SC. June 29, 2001]
RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE
SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER
PRESIDENT JOSEPH E. ESTRADA, SECRETARY OF JUSTICE
HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG
PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY. RICARDO
ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR
OF THE PHILIPPINES, oppositors.
DECISION
VITUG, J.:
The travails of a deposed President continue. The Sandiganbayan reels to
start hearing the criminal charges against Mr. Joseph E. Estrada. Media
seeks to cover the event via live television and live radio broadcast and
endeavors this Court to allow it that kind of access to the proceedings.
On 13 March 2001, the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), an
association representing duly franchised and authorized television and radio
networks throughout the country, sent a letter[1]requesting this Court to allow
live media coverage of the anticipated trial of the plunder and other criminal
cases filed against former President Joseph E. Estrada before the
Sandiganbayan in order "to assure the public of full ransparency in the
proceedings of an unprecedented case in our history."[2] The request was
seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the Chief
Justice and, still later, by Senator Renato Cayetano and Attorney Ricardo
Romulo.
On 17 April 2001, the Honorable Secretary of Justice Hernando Perez
formally filed the instant petition,[3] submitting the following exegesis:
"3. The foregoing criminal cases involve the previous acts of the former
highest official of the land, members of his family, his cohorts and, therefore,
it cannot be over emphasized that the prosecution thereof, definitely involves
a matter of public concern and interest, or a matter over which the entire
citizenry has the right to know, be informed and made aware of.
" 4. There is no gainsaying that the constitutional right of the people to be
informed on matters of public concern, as in the instant cases, can best be
recognized, served and satisfied by allowing the live radio and television
coverage of the concomitant court proceedings.
"5. Moreover, the live radio and television coverage of the proceedings will
also serve the dual purpose of ensuring the desired transparency in the
administration of justice in order to disabuse the minds of the supporters of
the past regime of any and all unfounded notions, or ill-perceived attempts
on the part of the present dispensation, to 'railroad' the instant criminal cases
against the Former President Joseph Ejercito Estrada."[4]
Public interest, the petition further averred, should be evident bearing in mind
the right of the public to vital information affecting the nation.
In effect, the petition seeks a re-examination of the 23rd October 1991
resolution of this Court in a case for libel filed by then President Corazon C.
Aquino. The resolution read:
"The records of the Constitutional Commission are bereft of discussion
regarding the subject of cameras in the courtroom. Similarly, Philippine
courts have not had the opportunity to rule on the question squarely.
While we take notice of the September 1990 report of the United States
Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, still
the current rule obtaining in the Federal Courts of the United States prohibit
Page 195
the presence of television cameras in criminal trials. Rule 53 of the Federal
Rules of Criminal Procedure forbids the taking of photographs during the
progress of judicial proceedings or radio broadcasting of such proceedings
LEGAL ETHICS
from the courtroom. A trial of any kind or in any court is a matter of serious
importance to all concerned and should not be treated as a means of
entertainment. To so treat it deprives the court of the dignity which pertains
to it and departs from the orderly and serious quest for truth for which our
judicial proceedings are formulated.
"Courts do not discriminate against radio and television media by forbidding
the broadcasting or televising of a trial while permitting the newspaper
reporter access to the courtroom, since a television or news reporter has the
same privilege, as the news reporter is not permitted to bring his typewriter
or printing press into the courtroom.
"In Estes vs. Texas, the United States Supreme Court held that television
coverage of judicial proceedings involves an inherent denial of the due
process rights of a criminal defendant. Voting 5-4, the Court through 'Mr.
Justice Clark, identified four (4) areas of potential prejudice which might arise
from the impact of the cameras on the jury, witnesses, the trial judge and the
defendant. The decision in part pertinently stated:
"'Experience likewise has established the prejudicial effect of telecasting on
witnesses. Witnesses might be frightened, play to the camera, or become
nervous. They are subject to extraordinary out-of-court influences which
might affect their testimony. Also, telecasting not only increases the trial
judge's responsibility to avoid actual prejudice to the defendant, it may as
well affect his own performance. Judges are human beings also and are
subject to the same psychologjcal reactions as laymen. For the defendant,
telecasting is a form of mental harassment and subjects him to excessive
public exposure and distracts him from the effective presentation of his
defense.
'The television camera is a powerful weapon which intentionally or
inadvertently can destroy an accused and his case in the eyes of the public.'
"Representatives of the press have no special standing to apply for a writ of
mandate to compel a court to permit them to attend a trial, since within the
courtroom, a reporter's constitutional rights are no greater than those of any
other member of the public. Massive intrusion of representatives of the news
media into the trial itself can so alter or destroy the constitutionally necessary
judicial atmosphere and decorum that the requirements of impartiality
imposed by due process of law are denied the defendant and a defendant in
a criminal proceeding should not be forced to run a gauntlet of reporters and
photographers each time he enters or leaves the courtroom.
"Considering the prejudice it poses to the defendant's right to due process as
well as to the fair and orderly administration of justice, and considering further
that the freedom of the press and the right of the people to information may
be served and satisfied by less distracting, degrading and prejudicial means,
live radio and television coverage of court proceedings shall not be allowed.
Video footages of court hearings for news purposes shall be restricted and
limited to shots of the courtroom, the judicial officers, the parties and their
counsel taken prior to the commencement of official proceedings. No video
shots or photographs shall be permitted during the trial proper.
"Accordingly, in order to protect the parties right to due process, to prevent
the distraction of the participants in the proceedings and in the last analysis,
to avoid miscarriage of justice, the Court resolved to PROHIBIT live radio and
television coverage of court proceedings. Video footages of court hearings
for news purposes shall be limited and restricted as above indicated."
Admittedly, the press is a mighty catalyst in awakening public consciousness,
and it has become an important instrument in the quest for truth.[5] Recent
history exemplifies media's invigorating presence, and its contribution to
society is quite impressive. The Court, just recently, has taken judicial notice
of the enormous effect of media in stirring public sentience during the
impeachment trial, a partly judicial and partly political exercise, indeed the
most-watched program in the boob-tubes during those times, that would soon
culminate in EDSA II.
The propriety of granting or denying the instant petition involve the weighing
out of the constitutional guarantees of freedom of the press and the right to
public information, on the one hand, and the fundamental rights of the
accused, on the other hand, along with the constitutional power of a court to
control its proceedings in ensuring a fair and impartial trial.[6]
When these rights race against one another, jurisprudence[7] tells us that the
right of the accused must be preferred to win.
With the possibility of losing not only the precious liberty but also the very life
of an accused, it behooves all to make absolutely certain that an accused
receives a verdict solely on the basis of a just and dispassionate judgment,
PINEDAPCGRNMAN
a verdict that would come only after the presentation of credible evidence
testified to by unbiased witnesses unswayed by any kind of pressure,
whether open or subtle, in proceedings that are devoid of histrionics that
might detract from its basic aim to ferret veritable facts free from improper
influence,[8] and decreed by a judge with an unprejudiced mind, unbridled by
running emotions or passions.
Due process guarantees the accused a presumption of innocence until the
contrary is proved in a trial that is not lifted above its individual settings nor
made an object of public's attention[9] and where the conclusions reached are
induced not by any outside force or influence[10] but only by evidence and
argument given in open court, where fitting dignity and calm ambiance is
demanded.
Witnesses and judges may very well be men and women of fortitude, able to
thrive in hardy climate, with every reason to presume firmness of mind and
resolute endurance, but it must also be conceded that "television can work
profound changes in the behavior of the people it focuses on."[11] Even while
it may be difficult to quantify the influence, or pressure that media can bring
to bear on them directly and through the shaping of public opinion, it is a fact,
nonetheless, that, indeed, it does so in so many ways and in varying degrees.
The conscious or unconscious effect that such coverage may have on the
testimony of witnesses and the decision of judges cannot be evaluated but, it
can likewise be said, it is not at all unlikely for a vote of guilt or innocence to
yield to it.[12] It might be farcical to build around them an impregnable armor
against the influence of the most powerful media of public opinion.[13]
To say that actual prejudice should first be present would leave to near
nirvana the subtle threats to justice that a disturbance of the mind so
indispensable to the calm and deliberate dispensation of justice can
create.[14] The effect of television may escape the ordinary means of proof,
but it is not far-fetched for it to gradually erode our basal conception of a trial
such as we know it now.[15]
An accused has a right to a public trial but it is a right that belongs to him,
more than anyone else, where his life or liberty can be held critically in
balance. A public trial aims to ensure that he is fairly dealt with and would not
be unjustly condemned and that his rights are not compromised in secrete
conclaves of long ago. A public trial is not synonymous with publicized trial;
it only implies that the court doors must be open to those who wish to come,
sit in the available seats, conduct themselves with decorum and observe the
trial process. In the constitutional sense, a courtroom should have enough
facilities for a reasonable number of the public to observe the proceedings,
not too small as to render the openness negligible and not too large as to
distract the trial participants from their proper functions, who shall then be
totally free to report what they have observed during the proceedings.[16]
The courts recognize the constitutionally embodied freedom of the press and
the right to public information. It also approves of media's exalted power to
provide the most accurate and comprehensive means of conveying the
proceedings to the public and in acquainting the public with the judicial
process in action; nevertheless, within the courthouse, the overriding
consideration is still the paramount right of the accused to due
process[17] which must never be allowed to suffer diminution in its
constitutional proportions. Justice Clark thusly pronounced, "while a
maximum freedom must be allowed the press in carrying out the important
function of informing the public in a democratic society, its exercise must
necessarily be subject to the maintenance of absolute fairness in the judicial
process."[18]
This Court, in the instance[19] already mentioned, citing Estes vs. Texas,[20]
the United States Supreme Court holding the television coverage of judicial
proceedings as an inherent denial of due process rights of an accused, also
identified the following as being likely prejudices:
"1. The potential impact of television x x x is perhaps of the greatest
significance. x x x. From the moment the trial judge announces that a case
will be televised it becomes a cause celebre. The whole community, x x x
becomes interested in all the morbid details surrounding it. The approaching
trial immediately assumes an important status in the public press and the
accused is highly publicized along with the offense with which he is charged.
Every juror carries with him into the jury box these solemn facts and thus
increases the chance of prejudice that is present in every criminal case. x x x
Page 196
"2. The quality of the testimony in criminal trials will often be impaired. The
impact upon a witness of the knowledge that he is being viewed by a vast
LEGAL ETHICS PINEDAPCGRNMAN
audience is simply incalculable. Some may be demoralized and frightened, disappear with technological advances in the television equipment but
some cocky and given to overstatement; memories may falter, as with inhered, rather, in the hypothesis that the mere presence of cameras and
anyone speaking publicly, and accuracy of statement may be severely recording devices might have an effect on the trial participants prejudicial to
undermined. x x x. Indeed, the mere fact that the trial is to be televised might the accused."[26]
render witnesses reluctant to appear and thereby impede the trial as well as Parenthetically, the United States Supreme Court and other federal courts
the discovery of the truth. do not allow live television and radio coverage of their proceedings.
"3. A major aspect of the problem is the additional responsibilities the The sad reality is that the criminal cases presently involved are of great
presence of television places on the trial judge. His job is to make certain that dimensions so involving as they do a former President of the Republic. It is
the accused receives a fair trial. This most difficult task requires his undivided undeniable that these cases have twice become the nation's focal points in
attention. x x x the two conflicting phenomena of EDSA II and EDSA III where the magnitude
4. Finally, we cannot ignore the impact of courtroom television on the of the events has left a still divided nation. Must these events be invited anew
defendant. Its presence is a form of mental - if not physical-harassment, and risk the relative stability that has thus far been achieved? The
resembling a police line-up or the third degree. The inevitable close-up of his transcendental events in our midst do not allow us to, turn a blind eye to yet
gestures and expressions during the ordeal of his trial might well transgress another possible extraordinary case of mass action being allowed to now
his personal sensibilities, his dignity, and his ability to concentrate on the creep into even the business of the courts in the dispensation of justice under
proceedings before him - sometimes the difference between life and death - a rule of law. At the very least, a change in the standing rule of the court
dispassionately, freely and without the distraction of wide public surveillance. contained in its resolution of 23 October 1991 may not appear to be
A defendant on trial for a specific crime is entitled to his day in court, not in a propitious.
stadium, or a city or nationwide arena. The heightened public clamor resulting Unlike other government offices, courts do not express the popular will of the
from radio and television coverage will inevitably result in prejudice." people in any sense which, instead, are tasked to only adjudicate justiciable
In his concurring opinion in Estes, Mr. Justice Harlan opined that live controversies on the basis of what alone is submitted before them.[27] A trial
television and radio coverage could have mischievous potentialities for is not a free trade of ideas. Nor is a competing market of thoughts the known
intruding upon the detached atmosphere that should always surround the test truth in a courtroom.[28]
judicial process.[21] The Court is not all that unmindful of recent technological and scientific
The Integrated Bar of the Philippines, in its Resolution of 16 April 2001, advances but to chance forthwith the life or liberty of any person in a hasty
expressed its own concern on the live television and radio coverage of the to bid to use and apply them, even before ample safety nets are provided
criminal trials of Mr. Estrada; to paraphrase: Live television and radio and the concerns heretofore expressed are aptly addressed, is a price too
coverage can negate the rule on exclusion of witnesses during the hearings high to pay.
intended to assure a fair trial; at stake in the criminal trial is not only the life WHEREFORE, the petition is DENIED.
and liberty of the accused but the very credibility of the Philippine criminal SO ORDERED.
justice system, and live television and radio coverage of the trial could allow
the "hooting throng" to arrogate unto themselves the task of judging the guilt
of the accused, such that the verdict of the court will be acceptable only if FOODSPHERE, INC., A.C. No. 7199
popular; and live television and radio coverage of the trial will not subserve Complainant, [Formerly CBD 04-1386]
the ends of justice but will only pander to the desire for publicity of a few
grandstanding lawyers. Present:
It may not be unlikely, if the minority position were to be adopted, to see
protracted delays in the prosecution of cases before trial courts brought about PUNO, C.J.
by petitions seeking a declaration of mistrial on account of undue publicity - versus - QUISUMBING,
and assailing a court a quo's action either allowing or disallowing live media YNARES-SANTIAGO,
coverage of the court proceedings because of supposed abuse of discretion CARPIO,
on the part of the judge. CORONA,
En passant, the minority would view the ponencia as having modified the CARPIO MORALES,
case law on the matter. Just to the contrary, the Court effectively reiterated ATTY. MELANIO L. MAURICIO, JR., CHICO-NAZARIO
its standing resolution of 23 October 1991. Until 1991, the Court had yet to Respondent. VELASCO, JR.,
establish the case law on the matter, and when it did in its 23rd October NACHURA,
resolution, it confirmed, in disallowing live television and radio coverage of LEONARDO-DE CASTRO,
court proceedings, that "the records of the Constitutional Commission (were) BRION,
bereft of discussion regarding the subject of cameras in the courtroom" and PERALTA, and
that "Philippine courts (had) not (theretofore) had the opportunity to rule on BERSAMIN, JJ.
the question squarely."
But were the cases decided by the U.S. courts and cited in the minority
opinion really in point? Promulgated:
In Nebraska Press Association vs. Stewart,[22] the Nebraska State trial July 22, 2009
judge issued an order restraining news media from publishing accounts of x --------------------------------------------------------------------------------------------- x
confession or admissions made by the accused or facts strongly implicating
him. The order was struck down. In Richmond Newspaper, Inc., vs. DECISION
Virginia,[23] the trial judge closed the courtroom to the public and all
participants except witnesses when they testify. The judge was reversed by CARPIO MORALES, J.:
the U.S. Supreme Court which ruled that criminal trials were historically open.
In Globe Newspaper vs. Superior Court,[24] the US Supreme Court voided Foodsphere, Inc. (complainant), a corporation engaged in the business of
a Massachusetts law that required trial judges to exclude the press and the meat processing and manufacture and distribution of canned goods and
public from the courtroom during the testimony of a minor victim of certain grocery products under the brand name CDO, filed a Verified Complaint[1] for
sexual offenses. disbarment before the Commission on Bar Discipline (CBD) of the Integrated
Justice Stewart, in Chandler vs. Florida,[25] where two police officers Bar of the Philippines (IBP) against Atty. Melanio L. Mauricio, Jr., popularly
charged with burglary sought to overturn their conviction before the US known as Batas Mauricio (respondent), a writer/columnist of tabloids
Supreme Court upon the ground that the television coverage had infringed including Balitang Patas BATAS, Bagong TIKTIK, TORO and HATAW!,and
Page 197

their right to fair trial, explained that "the constitutional violation perceived by a host of a television program KAKAMPI MO ANG BATAS telecast over
the Estes Court did not stem from the physical disruption that might one day UNTV and of a radio program Double B-BATAS NG BAYAN aired over
LEGAL ETHICS
DZBB, for (1) grossly immoral conduct; (2) violation of lawyers oath and (3)
disrespect to the courts and to investigating prosecutors.
The facts that spawned the filing of the complaint are as follows:
On June 22, 2004, a certain Alberto Cordero (Cordero) purportedly bought
from a grocery in Valenzuela City canned goods including a can of CDO Liver
spread. On June 27, 2004, as Cordero and his relatives were eating bread
with the CDO Liver spread, they found the spread to be sour and soon
discovered a colony of worms inside the can.
Corderos wife thus filed a complaint with the Bureau of Food and Drug
Administration (BFAD). Laboratory examination confirmed the presence of
parasites in the Liver spread.
Pursuant to Joint DTI-DOH-DA Administrative Order No. 1, Series of 1993,
the BFAD conducted a conciliation hearing on July 27, 2004 during which the
spouses Cordero demanded P150,000 as damages from complainant.
Complainant refused to heed the demand, however, as being in
contravention of company policy and, in any event, outrageous.
Complainant instead offered to return actual medical and incidental expenses
incurred by the Corderos as long as they were supported by receipts, but the
offer was turned down. And the Corderos threatened to bring the matter to
the attention of the media.
Complainant was later required by the BFAD to file its Answer to the
complaint. In the meantime or on August 6, 2004, respondent sent
complainant via fax a copy of the front page of the would-be August 10-16,
2004 issue of the tabloid Balitang Patas BATAS, Vol. 1, No. 12[2] which
complainant found to contain articles maligning, discrediting and imputing
vices and defects to it and its products. Respondent threatened to publish
the articles unless complainant gave in to the P150,000 demand of the
Corderos. Complainant thereupon reiterated its counter-offer earlier
conveyed to the Corderos, but respondent turned it down.
Respondent later proposed to settle the matter for P50,000, P15,000 of which
would go to the Corderos and P35,000 to his BATAS Foundation. And
respondent directed complainant to place paid advertisements in the tabloids
and television program.
The Corderos eventually forged a KASUNDUAN[3] seeking the withdrawal of
their complaint before the BFAD. The BFAD thus dismissed the complaint.[4]
Respondent, who affixed his signature to the KASUNDUAN as a witness,
later wrote in one of his articles/columns in a tabloid that he prepared the
document.
On August 11, 2004, respondent sent complainant an Advertising Contract[5]
asking complainant to advertise in the tabloid Balitang Patas BATAS for its
next 24 weekly issues at P15,000 per issue or a total amount of P360,000,
and a Program Profile[6] of the television program KAKAMPI MO ANG BATAS
also asking complainant to place spot advertisements with the following rate
cards: (a) spot buy 15-second TVC at P4,000; (b) spot buy 30-second TVC at
P7,700; and (c) season buy [13 episodes, 26 spots] of 30- second TVC for
P130,000.
As a sign of goodwill, complainant offered to buy three full-page
advertisements in the tabloid amounting to P45,000 at P15,000 per
advertisement, and three spots of 30-second TVC in the television program
at P7,700 each or a total of P23,100. Acting on complainants offer,
respondent relayed to it that he and his Executive Producer were
disappointed with the offer and threatened to proceed with the publication of
the articles/columns.[7]
On August 28, 2004, respondent, in his radio program Double B- BATAS NG
BAYAN at radio station DZBB, announced the holding of a supposed contest
sponsored by said program, which announcement was transcribed as
follows:
PINEDAPCGRNMAN
OK, at meron akong pa-contest, total magpapasko na o ha, meron pa-contest
si Batas Mauricio ang Batas ng Bayan. Ito yung ating pa-contest, hulaan
ninyo, tatawag kayo sa telepono, 433-7549 at 433-7553. Ang mga premyo
babanggitin po natin sa susunod pero ito muna ang contest, o, aling liver
spread ang may uod? Yan kita ninyo yan, ayan malalaman ninyo yan.
Pagka-nahulaan yan ah, at sasagot kayo sa akin, aling liver spread ang
may uod at anong companya ang gumagawa nyan? Itawag po ninyo sa
433-7549 st 433-7553. Open po an[g] contest na ito sa lahat ng ating
tagapakinig. Pipiliin natin ang mananalo, kung tama ang inyong sagot. Ang
tanong, aling liver spread sa Pilipinas an[g] may uod? [8] (Emphasis and
italics in the original; underscoring supplied)
And respondent wrote in his columns in the tabloids articles which put
complainant in bad light. Thus, in the August 31- September 6, 2004 issue of
Balitang Patas BATAS, he wrote an article captioned KADIRI ANG CDO
LIVER SPREAD! In another article, he wrote IBA PANG PRODUKTO NG
CDO SILIPIN![9] which appeared in the same publication in its September 7-
13, 2004 issue. And still in the same publication, its September 14-20, 2004
issue, he wrote another article entitled DAPAT BANG PIGILIN ANG CDO.[10]
Respondent continued his tirade against complainant in his column LAGING
HANDA published in another tabloid, BAGONG TIKTIK, with the following
articles:[11] (a) Uod sa liver spread, Setyembre 6, 2004 (Taon 7, Blg.276);[12]
(b) Uod, itinanggi ng CDO, Setyembre 7, 2004 (Taon 7, Blg.277);[13] (c)
Pagpapatigil sa CDO, Setyembre 8, 2004 (Taon 7, Blg.278);[14] (d) Uod sa
liver spread kumpirmado, Setyembre 9, 2004 (Taon 7, Blg.279);[15] (e)
Salaysay ng nakakain ng uod, Setyembre 10, 2004 (Taon 7, Blg.280);[16]
(f)Kaso VS. CDO itinuloy, Setyembre 11, 2004 (Taon 7, Blg.281);[17] (g)
Kasong Kidnapping laban sa CDO guards, Setyembre 14, 2004 (Taon 7,
Blg.284);[18] (h) Brutalidad ng CDO guards, Setyembre 15, 2004 (Taon 7,
Blg.285);[19] (i) CDO guards pinababanatan sa PNP, Setyembre 17, 2004
(Taon 7, Blg.287);[20] (j) May uod na CDO liver spread sa Puregold binili,
Setyembre 18, 2004 (Taon 7, Blg.288);[21] (k) Desperado na ang CDO,
Setyembre 20, 2004 (Taon 7, Blg.290);[22] (l) Atty. Rufus Rodriguez
pumadrino sa CDO, Setyembre 21, 2004 (Taon 7,Blg. 291);[23] (m)
Kasunduan ng CDO at Pamilya Cordero, Setyembre 22, 2004 (Taon 7,Blg.
292);[24] (n) Bakit nagbayad ng P50 libo ang CDO, Setyembre 23, 2004
(Taon 7,Blg. 293).[25]
In his September 8, 2004 column Anggulo ng Batas published in Hataw!,
respondent wrote an article Reaksyon pa sa uod ng CDO Liver Spread.[26]
And respondent, in several episodes in September 2004 of his television
program Kakampi Mo ang Batas aired over UNTV, repeatedly complained of
what complainant claimed to be the same baseless and malicious
allegations/issues against it.[27]
Complainant thus filed criminal complaints against respondent and several
others for Libel and Threatening to Publish Libel under Articles 353 and 356
of the Revised Penal Code before the Office of the City Prosecutor of Quezon
City and Valenzuela City. The complaints were pending at he time of the filing
of the present administrative complaint.[28]
In the criminal complaints pending before the Office of the City Prosecutor of
Valenzuela City, docketed as I.S. Nos. V-04-2917-2933, respondent filed his
Entry of Appearance with Highly Urgent Motion to Elevate These Cases to
the Department of Justice,[29] alleging:
xxxx
2.N. The question here is this: What gives, Honorable (???) Prosecutors of
the Office of the City Prosecutor of Valenzuela City?
xxxx
2.R. Can an ordinary person like Villarez simply be tossed around, waiting
for miracles to happen?
2.S. Why? How much miracle is needed to happen here before this Office
Page 198
would ever act on his complaint?
xxxx
LEGAL ETHICS
8. With a City Prosecutor acting the way he did in the case filed by Villarez,
and with an investigating prosecutor virtually kowtowing to the wishes of his
boss, the Chief Prosecutor, can Respondents expect justice to be meted to
them?
9. With utmost due respect, Respondents have reason to believe that justice
would elude them in this Office of the City Prosecutor of Valenzuela City, not
because of the injustice of their cause, but, more importantly, because of the
injustice of the system;
10. Couple all of these with reports that many a government office in
Valenzuela City had been the willing recipient of too many generosities in the
past of the Complainant, and also with reports that a top official of the City
had campaigned for his much coveted position in the past distributing
products of the Complainant, what would one expect the Respondents to
think?
11. Of course, not to be lost sight of here is the attitude and behavior
displayed even by mere staff and underlings of this Office to people who dare
complain against the Complainant in their respective turfs. Perhaps, top
officials of this Office should investigate and ask their associates and
relatives incognito to file, even if on a pakunwari basis only, complaints
against the Complainant, and they would surely be given the same rough and
insulting treatment that Respondent Villarez got when he filed his kidnapping
charge here;[30]
And in a Motion to Dismiss [the case] for Lack of Jurisdiction[31] which
respondent filed, as counsel for his therein co-respondents-staffers of the
newspaper Hataw!, before the Office of the City Prosecutor of Valenzuela
City, respondent alleged:
xxxx
5. If the Complainant or its lawyer merely used even a little of whatever is
inside their thick skulls, they would have clearly deduced that this Office
has no jurisdiction over this action.[32] (Emphasis supplied)
xxxx
Meanwhile, on October 26, 2004, complainant filed a civil case against
respondent and several others, docketed as Civil Case No. 249-V- 04,[33]
before the Regional Trial Court, Valenzuela City and raffled to Branch 75
thereof.
The pending cases against him and the issuance of a status quo order
notwithstanding, respondent continued to publish articles against
complainant[34] and to malign complainant through his television shows.
Acting on the present administrative complaint, the Investigating
Commissioner of the Integrated Bar of the Philippines (IBP) came up with the
following findings in his October 5, 2005 Report and Recommendation:[35]
I.
xxxx
In Civil Case No. 249-V-04 entitled Foodsphere, Inc. vs. Atty. [Melanio]
Mauricio, et al., the Order dated 10 December 2004 (Annex O of the
Complaint) was issued by Presiding Judge Dionisio C. Sison which in part
reads:
Anent the plaintiffs prayer for the issuance of a temporary restraining order
included in the instant plaintiffs motion, this Court, inasmuch as the
defendants failed to appear in court or file an opposition thereto, is
constrained to GRANT the said plaintiffs prater, as it is GRANTED, in order
to maintain STATUS QUO, and that all the defendants, their agents,
representatives or any person acting for and in behalf are hereby
restrained/enjoined from further publishing, televising and/or broadcasting
any matter subject of the Complaint in the instant case more specifically the
imputation of vices and/or defects on plaintiff and its products.
PINEDAPCGRNMAN
Complainant alleged that the above-quoted Order was served on respondent
by the Branch Sheriff on 13 December 2004. Respondent has not denied the
issuance of the Order dated 10 December 2004 or his receipt of a copy
thereof on 13 December 2004.
Despite his receipt of the Order dated 10 December 2004, and the clear
directive therein addressed to him to desists [sic] from further publishing,
televising and/or broadcasting any matter subject of the Complaint in the
instant case more specifically the imputation of vices and/or defects on
plaintiff and its products, respondent in clear defiance of this Order came out
with articles on the prohibited subject matter in his column Atty. Batas, 2004
in the December 16 and 17, 2004 issues of the tabloid Balitang Bayan Toro
(Annexes Q and Q-1 of the Complaint).
The above actuations of respondent are also in violation of Rule 13.03 of the
Canon of Professional Responsibility which reads: A lawyer shall not make
public statements in the media regarding a pending case tending to arouse
public opinion for or against a party.
II.
xxxx
In I.S. No. V.04-2917-2933, then pending before the Office of the City
Prosecutor of Valenzuela City, respondent filed his Entry of Appearance with
Highly Urgent Motion to Elevate These Cases To the Department of Justice.
In said pleading, respondent made the following statements:
xxxx
The above language employed by respondent undoubtedly casts aspersions
on the integrity of the Office of the City Prosecutor and all the Prosecutors
connected with said Office. Respondent clearly assailed the impartiality and
fairness of the said Office in handling cases filed before it and did not even
design to submit any evidence to substantiate said wild allegations. The use
by respondent of the above-quoted language in his pleadings is manifestly
violative of Canon 11 of the Code of Professional Responsibility which
provides: A lawyer [s]hall [o]bserve and [m]aintain [t]he [re]spect [d]ue [t]o
[t]he [c]ourts [a]nd [t]o [j]udicial [o]fficers [a]nd [s]hould [i]nsist [o]n [s]imilar
[c]onduct [b]y [o]thers.
III.
The Kasunduan entered into by the Spouses Cordero and herein
complainant (Annex C of the Complaint) was admittedly prepared, witnessed
and signed by herein respondent.
xxxx
In its Order dated 16 August 2004, the Bureau of Food and Drugs recognized
that the said Kasunduan was not contrary to law, morals, good customs,
public order and policy, and this accordingly dismissed the complaint filed by
the Spouses Cordero against herein complainant.
However, even after the execution of the Kasunduan and the consequent
dismissal of the complaint of his clients against herein complainant,
respondent inexplicably launched a media offensive intended to disparage
and put to ridicule herein complainant. On record are the numerous articles
of respondent published in 3 tabloids commencing from 31 August to 17
December 2004 (Annexes G to Q-1). As already above-stated, respondent
continued to come out with these articles against complainant in his tabloid
columns despite a temporary restraining order issued against him expressly
prohibiting such actions. Respondent did not deny that he indeed wrote said
articles and submitted them for publication in the tabloids.
Respondent claims that he was prompted by his sense of public service, that
Page 199
is, to expose the defects of complainants products to the consuming public.
Complainant claims that there is a baser motive to the actions of respondent.
Complainant avers that respondent retaliated for complainants failure to give
LEGAL ETHICS
in to respondents request that complainant advertise in the tabloids and
television programs of respondent. Complainants explanation is more
credible. Nevertheless, whatever the true motive of respondent for his
barrage of articles against complainant does not detract from the fact that
respondent consciously violated the spirit behind the Kasunduan which he
himself prepared and signed and submitted to the BFAD for approval.
Respondent was less than forthright when he prepared said Kasunduan and
then turned around and proceeded to lambaste complainant for what was
supposedly already settled in said agreement. Complainant would have been
better of with the BFAD case proceeding as it could have defended itself
against the charges of the Spouses Cordero. Complainant was helpless
against the attacks of respondent, a media personality. The actuations of
respondent constituted, to say the least, deceitful conduct contemplated
under Rule 1.01 of Canon 1 of the Code of Professional
Responsibility.[36](Underscoring supplied)
The IBP Board of Governors, by Resolution No. XVIII-2006-114 dated March
20, 2006, adopted the findings and recommendation of the Investigating
Commissioner to suspend respondent from the practice of law for two years.
The Court finds the findings/evaluation of the IBP well-taken.
The Court, once again, takes this occasion to emphasize the necessity for
every lawyer to act and comport himself in a manner that promotes public
confidence in the integrity of the legal profession,[37] which confidence may
be eroded by the irresponsible and improper conduct of a member of the bar.
By the above-recited acts, respondent violated Rule 1.01 of the Code of
Professional Responsibility which mandates lawyers to refrain from engaging
in unlawful, dishonest, immoral or deceitful conduct. For, as the IBP found,
he engaged in deceitful conduct by, inter alia, taking advantage of the
complaint against CDO to advance his interest to obtain funds for his
BATAS Foundation and seek sponsorships and advertisements for the
tabloids and his television program.
He also violated Rule 13.02 of the Code of Professional Responsibility, which
mandates:
A lawyer shall not make public statements in the media regarding a pending
case tending to arouse public opinion for or against a party.
For despite the pendency of the civil case against him and the issuance of a
status quo order restraining/enjoining further publishing, televising and
broadcasting of any matter relative to the complaint of CDO, respondent
continued with his attacks against complainant and its products. At the same
time, respondent violated Canon 1 also of the Code of Professional
Responsibility, which mandates lawyers to uphold the Constitution, obey the
laws of the land and promote respect for law and legal processes. For he
defied said status quo order, despite his (respondents) oath as a member of
the legal profession to obey the laws as well as the legal orders of the duly
constituted authorities.
Further, respondent violated Canon 8 and Rule 8.01 of the Code of
Professional Responsibility which mandate, viz:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor
toward his professional colleagues, and shall avoid harassing tactics against
opposing counsel.
Rule 8.01 A lawyer shall not, in his professional dealings, use language which
is abusive, offensive or otherwise improper, by using intemperate language.
Apropos is the following reminder in Saberon v. Larong:[38]
To be sure, the adversarial nature of our legal system has tempted members
of the bar to use strong language in pursuit of their duty to advance the
interests of their clients.
However, while a lawyer is entitled to present his case with vigor and
courage, such enthusiasm does not justify the use of offensive and abusive
PINEDAPCGRNMAN
language. Language abounds with countless possibilities for one to be
emphatic but respectful, convincing but not derogatory, illuminating but not
offensive.
On many occasions, the Court has reminded members of the Bar to abstain
from all offensive personality and to advance no fact prejudicial to the honor
and reputation of a party or witness, unless required by the justice of the
cause with which he is charged. In keeping with the dignity of the legal
profession, a lawyers language even in his pleadings must be
dignified.[39](Underscoring supplied)
By failing to live up to his oath and to comply with the exacting standards of
the legal profession, respondent also violated Canon 7 of the Code of
Professional Responsibility, which directs a lawyer to at all times uphold the
integrity and the dignity of the legal profession.[40]
The power of the media to form or influence public opinion cannot be
underestimated. In Dalisay v. Mauricio, Jr.,[41] the therein complainant
engaged therein-herein respondents services as she was impressed by the
pro-poor and pro-justice advocacy of respondent, a media personality,[42]
only to later find out that after he demanded and the therein complainant paid
an exorbitant fee, no action was taken nor any pleadings prepared by him.
Respondent was suspended for six months.
On reading the articles respondent published, not to mention listening to him
over the radio and watching him on television, it cannot be gainsaid that the
same could, to a certain extent, have affected the sales of complainant.
Back to Dalisay, this Court, in denying therein-herein respondents motion for
reconsideration, took note of the fact that respondent was motivated by
vindictiveness when he filed falsification charges against the therein
complainant.[43]
To the Court, suspension of respondent from the practice of law for three
years is, in the premises, sufficient.
WHEREFORE, Atty. Melanio Mauricio is, for violation of the lawyers oath and
breach of ethics of the legal profession as embodied in the Code of
Professional Responsibility, SUSPENDED from the practice of law for three
years effective upon his receipt of this Decision. He is WARNED that a
repetition of the same or similar acts will be dealt with more severely.
Let a copy of this Decision be attached to his personal record and copies
furnished the Integrated Bar of the Philippines and the Office of the Court
Administrator for dissemination to all courts.
SO ORDERED.
Rule 13.03 – A lawyer shall not brook or invite interference by another
branch or agency of the government in the normal course of judicial
proceedings.
 The judge has the corresponding duty not to convey or permit
others to convey the impression that they are in a special position
to influence the judge.
 Discussing cases with the judge privately should be avoided.
 Test when public statement is contemptuous: The character of
the act done and its direct tendency to prevent and obstruct the
discharge of official duty.
 To warrant a finding of “prejudicial publicity”, there must be an
allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the “barrage” of publicity.
 Lawyer is equally guilty as the client if he induces the latter to
cause the publicity.
G.R. No. 90083 October 4, 1990
Page 200
KHALYXTO PEREZ MAGLASANG, accused-petitioner,
vs.
LEGAL ETHICS
PEOPLE OF THE PHILIPPINES, Presiding Judge ERNESTO B.
TEMPLADO (San Carlos City Court), Negros Occidental, respondents.
Marceliano L. Castellano for petitioner.
RESOLUTION
PER CURIAM:
On June 22, 1989, a petition for certiorari 1 entitled "Khalyxto Perez
Maglasang vs. People of the Philippines, Presiding Judge, Ernesto B.
Templado (San Carlos City Court) Negros Occidental," was filed by
registered mail with the Court. Due to non-compliance with the requirements
of Circular No. 1-88 of the Court, specifically the non- payment of P316.50
for the legal fees and the non-attachment of the duplicate originals or duly
certified true copies of the questioned decision and orders of the respondent
judge denying the motion for reconsideration, the Court dismissed the
petition on July 26, 1989. 2
On September 9, 1989, Atty. Marceliano L. Castellano, as counsel of the
petitioner, moved for a reconsideration of the resolution dismissing the
petition. 3 This time, the amount of P316.50 was remitted and the Court was
furnished with a duplicate copy of the respondent judge's decision, and also
the IBP O.R. No. and the date of the payment of his membership dues. The
motion for reconsideration did not contain the duplicate original or certified
true copies of the assailed orders. Thus, in a Resolution dated October 18,
1989, the motion for reconsideration was denied "with FINALITY."4
Three months later, or on January 22, 1990 to be exact, the Court received
from Atty. Castellano a copy of a complaint dated December 19, 1989, filed
with the Office of the President of the Philippines whereby Khalyxto Perez
Maglasang, through his lawyer, Atty. Castellano, as complainant, accused all
the five Justices of the Court's Second Division with "biases and/or ignorance
of the law or knowingly rendering unjust judgments or resolution." 5The
complaint was signed by Atty. Castellano "for the complainant" with the
conformity of one Calixto B. Maglasang, allegedly the father of accused-
complainant Khalyxto. 6 By reason of the strong and intemperate language
of the complaint and its improper filing with the Office of the President, which,
as he should know as a lawyer, has no jurisdiction to discipline, much more,
remove, Justices of the Supreme Court, on February 7, 1990, Atty.
Castellano was required to show cause why he should not be punished for
contempt or administratively dealt with for improper conduct. 7 On March 21,
1990, Atty. Castellano filed by registered mail his "Opposition To Cite For
Contempt Or Administratively Dealt With For An Improper Conduct (sic)." 8
In his "Opposition", Atty. Castellano claimed that the complaint "was a
constructive criticism intended to correct in good faith the erroneous and very
strict practices of the Justices concerned, as Respondents (sic). 9 Atty.
Castellano further disputed the authority and jurisdiction of the Court in
issuing the Resolution requiring him to show cause inasmuch as "they are
Respondents in this particular case and no longer as Justices and as such
they have no more jurisdiction to give such order." 10 Thus, according to him,
"the most they (Justices) can do by the mandate of the law and procedure
(sic) is to answer the complaint satisfactorily so that they will not be punished
in accordance with the law just like a common tao." 11
Notwithstanding his claim that the complaint was a "constructive criticism,"
the Court finds the various statements made by Atty. Castellano in the
complaint he lodged with the Office of the President of the Philippines and in
his "Opposition" filed with the Court portions of which read as follows:
VI
That with all these injustices of the 2nd Division, as assigned to that most
Honorable Supreme Court, the complainant was legally constrained to file
this Administrative Complaint to our Motherly President who is firm and
determined to phase-out all the scalawags (Marcos Appointees and
Loyalists) still in your administration without bloodshed but by honest and just
investigations, which the accused-complainant concurs to such procedure
and principle, or otherwise, he could have by now a rebel with the
undersigned with a cause for being maliciously deprived or unjustly denied
of Equal Justice to be heard by our Justices designated to the Highest and
most Honorable Court of the Land (Supreme Court); 12 (Emphasis ours.)
VII
That the Honorable Supreme Court as a Court has no fault at all for being
Constitutionally created, but the Justices assigned therein are fallables (sic),
being bias (sic), playing ignorance of the law and knowingly rendering unjust
Resolutions the reason observed by the undersigned and believed by him in
good faith, is that they are may be Marcos-appointees, whose common
intention is to sabotage the Aquino Administration and to rob from innocent
PINEDAPCGRNMAN
Filipino people the genuine Justice and Democracy, so that they will be left
in confusion and turmoil to their advantage and to the prejudice of our
beloved President's honest, firm and determined Decision to bring back the
real Justice in all our Courts, for the happiness, contentment and progress of
your people and the only country which God has given us. — PHILIPPINES.
13 (Emphasis ours.)
VIII
That all respondents know the law and the pure and simple meaning of
Justice, yet they refused to grant to the poor and innocent accused-
complainant, so to save their brethren in rank and office (Judiciary) Judge
Ernesto B. Templado, . . . 14
IX
. . . If such circulars were not known to the undersigned, it's the fault of the
Justices of the Honorable Supreme Court, the dismissal of the petition was
based more of money reasons. . . . This is so for said Equal Justice is our
very Breath of Life to every Filipino, who is brave to face the malicious acts
of the Justices of the Second Division, Supreme Court. By reason of fear for
the truth Respondents ignore the equal right of the poor and innocent-
accused (complainant) to be heard against the rich and high-ranking person
in our Judiciary to be heard in equal justice in our Honorable Court, for the
respondents is too expensive and can't be reached by an ordinary man for
the Justices therein areinconsiderate, extremely strict and meticulous to the
common tao and hereby grossly violate their Oath of Office and our
Constitution "to give all possible help and means to give equal Justice to any
man, regardless of ranks and status in life" 15 (Emphasis ours.)
xxx xxx xxx
5. That the undersigned had instantly without delay filed a Motion for
Reconsideration to the Resolution which carries with it a final denial of his
appeal by complying (sic) all the requirements needed for a valid appeal yet
the respondents denied just the same which legally hurt the undersigned in
the name of Justice, for the Respondents-Justices, were so strict or
inhumane and soinconsiderate that there despensation (sic) of genuine
justice was too far and beyond the reach of the Accused-Appellant, as a
common tao, as proved by records of both cases mentioned above. 16
xxx xxx xxx
D. That by nature a contempt order is a one sided weapon commonly abused
by Judges and Justices, against practicing lawyers, party-litigants and all
Filipino people in general for no Judges or Justices since the beginning of
our Court Records were cited for contempt by any presiding Judge. That this
weapon if maliciously applied is a cruel means to silence a righteous and
innocent complainant and to favor any person with close relation. 17
scurrilous and contumacious. His allegations that the Court in dismissing his
petition did so "to save their brethren in rank and office (Judiciary) Judge
Ernesto B. Templado," and that the dismissal was "based more for (sic)
money reasons;" and his insinuation that the Court maintains a double
standard in dispensing justice — one set for the rich and another for the poor
— went beyond the bounds of "constructive criticism." They are not relevant
to the cause of his client. On the contrary, they cast aspersion on the Court's
integrity as a neutral and final arbiter of all justiciable controversies brought
before it. Atty. Castellano should know that the Court in resolving complaints
yields only to the records before it and not to any extraneous influence as he
disparagingly intimates.
It bears stress that the petition was dismissed initially by the Court for the
counsel's failure to fully comply with the requirements laid down in Circular
No. 1-88, a circular on expeditious disposition of cases, adopted by the Court
on November 8, 1988, but effective January 1, 1989, after due publication. It
is true that Atty. Castellano later filed on behalf of his client a motion for
reconsideration and remitted the necessary legal fees, 18 furnished the Court
with a duplicate original copy of the assailed trial court's decision, 19 and
indicated his IBP O.R. No. and the date he paid his dues. 20 But he still fell
short in complying fully with the requirements of Circular No. 1-88. He failed
to furnish the Court with duplicate original or duty certified true copies of the
other questioned orders issued by the respondent trial court judge. At any
rate, the explanation given by Atty. Castellano did not render his earlier
negligence excusable. Thus, as indicated in our Resolution dated October
18, 1989 which denied with finality his motion for reconsideration, "no valid
or compelling reason (having been) adduced to warrant the reconsideration
Page 201
sought." Precisely, under paragraph 5 of Circular No. 1-88 it is provided that
"(S)ubsequent compliance with the above requirements will not warrant
LEGAL ETHICS
reconsideration of the order of dismissal unless it be shown that such non-
compliance was due to compelling reasons."
It is clear that the case was lost not by the alleged injustices Atty. Castellano
irresponsibly ascribed to the members of the Court's Second Division, but
simply because of his inexcusable negligence and incompetence. Atty.
Castellano, however, seeks to pass on the blame for his deficiencies to the
Court, in the hope of salvaging his reputation before his client. Unfortunately,
the means by which Atty. Castellano hoped to pass the buck so to speak, are
grossly improper. As an officer of the Court, he should have known better
than to smear the honor and integrity of the Court just to keep the confidence
of his client. Time and again we have emphasized that a "lawyer's duty is not
to his client but to the administration of justice; to that end, his client's success
is wholly subordinate; and his conduct ought to and must always be
scrupulously observant of law and ethics." 21 Thus, "while a lawyer must
advocate his client's cause in utmost earnest and with the maximum skill he
can marshal, he is not at liberty to resort to arrogance, intimidation, and
innuendo." 22
To be sure, the Court does not pretend to be immune from criticisms. After
all, it is through the criticism of its actions that the Court, composed of fallible
mortals, hopes to correct whatever mistake it may have unwittingly
committed. But then again, "[i]t is the cardinal condition of all such criticism
that it shall be bona fide and shall not spill over the walls of decency and
propriety. A wide chasm exists between fair criticism, on the one hand, and
abuse and slander of courts and the judges thereof, on the other. Intemperate
and unfair criticism is a gross violation of the duty of respect to courts." 23 In
this regard, it is precisely provided under Canon 11 of the Code of
Professional Responsibility that:
CANON 11-A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT
DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD
INSIST ON SIMILAR CONDUCT BY OTHERS.
xxx xxx xxx
RULE 11.03 — A lawyer shall abstain from scandalous, offensive or
menancing language or behavior before the courts.
RULE 11.04 — A lawyer should not attribute to a judge motives not supported
by the record or have materiality to the case.
xxx xxx xxx
We further note that in filing the "complaint" against the justices of the Court's
Second Division, even the most basic tenet of our government system — the
separation of powers between the judiciary, the executive, and the legislative
branches has — been lost on Atty. Castellano. We therefore take this
occasion to once again remind all and sundry that "the Supreme Court is
supreme — the third great department of government entrusted exclusively
with the judicial power to adjudicate with finality all justiciable disputes, public
and private. No other department or agency may pass upon its judgments or
declare them 'unjust.'" 24 Consequently, and owing to the foregoing, not even
the President of the Philippines as Chief Executive may pass judgment on
any of the Court's acts.
Finally, Atty. Castellano's assertion that the complaint "was a constructive
criticism intended to correct in good faith the erroneous and very strict
practices of the Justices, concerned as Respondents (sic)" is but a last
minute effort to sanitize his clearly unfounded and irresponsible accusation.
The arrogance displayed by counsel in insisting that the Court has no
jurisdiction to question his act of having complained before the Office of the
President, and in claiming that a contempt order is used as a weapon by
judges and justices against practicing lawyers, however, reveals all too
plainly that he was not honestly motivated in his criticism. Rather, Atty.
Castellano's complaint is a vilification of the honor and integrity of the
Justices of the Second Division of the Court and an impeachment of their
capacity to render justice according to law.
WHEREFORE, Atty. Marceliano L. Castellano is found guilty of CONTEMPT
OF COURT and IMPROPER CONDUCT as a member of the Bar and an
officer of the Court, and is hereby ordered to PAY within fifteen (15) days
from and after the finality of this Resolution a fine of One Thousand
(P1,000.00) Pesos, or SUFFER ten (10) days imprisonment in the municipal
jail of Calatrava, Negros Occidental in case he fails to pay the fine
seasonably, and SUSPENDED from the practice of law throughout the
Philippines for six (6) months as soon as this Resolution becomes final, with
a WARNING that a repetition of any misconduct on his part will be dealt with
more severely. Let notice of this Resolution be entered in Atty. Castellano's
record, and be served on the Integrated Bar of the Philippines, the Court of
PINEDAPCGRNMAN
Appeals, and the Executive Judges of the Regional Trial Courts and other
Courts of the country, for their information and guidance.
SO ORDERED.
THE LAWYER AND THE CLIENT
A. NATURE OF ATTORNEY-CLIENT RELATIONSHIP
(1) Strictly Personal
(2) Highly confidential
(3) Fiduciary
FORMS OF EMPLOYMENT OF THE COUNSEL
(1) Oral
(2) Written
(3) Implied
A written contract between the counsel and the client is the best evidence to
show the presence of an attorney-client relationship. However, it is not
essential for the employment of an attorney.
B. THE CONCEPT OF RETAINER OR EMPLOYMENT
a. Concept of Retainer and its Necessity ROC Rule 138 Section 21.
Authority of attorney to appear. — an attorney is presumed to be properly
authorized to represent any cause in which he appears, and no written power
of attorney is required to authorize him to appear in court for his client, but
the presiding judge may, on motion of either party and on reasonable grounds
therefor being shown, require any attorney who assumes the right to appear
in a case to produce or prove the authority under which he appears, and to
disclose, whenever pertinent to any issue, the name of the person who
employed him, and may thereupon make such order as justice requires. An
attorneys wilfully appear in court for a person without being employed, unless
by leave of the court, may be punished for contempt as an officer of the court
who has misbehaved in his official transactions.
b. Employment to a Law Firm
CANON 14 – A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE
NEEDY.
Rule 14.01 – A lawyer shall not decline to represent a person solely on
account of the latter’s race, sex, creed or status of life, or because of
his own opinion regarding the guilt of said person.
ROC 138 Section 20. Duties of attorneys. — It is the duty of an attorney:
(a) To maintain allegiance to the Republic of the Philippines and to
support the Constitution and obey the laws of the Philippines.
(b) To observe and maintain the respect due to the courts of justice and
judicial officers;
(c) To counsel or maintain such actions or proceedings only as appear
to him to be just, and such defenses only as he believes to be honestly
debatable under the law.
(d) To employ, for the purpose of maintaining the causes confided to
him, such means only as are consistent with truth and honor, and never
seek to mislead the judge or any judicial officer by an artifice or false
statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to himself,
to preserve the secrets of his client, and to accept no compensation in
connection with his client's business except from him or with his
knowledge and approval;
(f) To abstain from all offensive personality and to advance no fact
prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which he is charged;
(g) Not to encourage either the commencement or the continuance of
an action or proceeding, or delay any man's cause, from any corrupt
motive or interest;
(h) Never to reject, for any consideration personal to himself, the cause
of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and honorable
means, regardless of his personal opinion as to the guilt of the accused,
Page 202
to present every defense that the law permits, to the end that no person
may be deprived of life or liberty, but by due process of law.
LEGAL ETHICS
A.C. No. 6155 March 14, 2006
MA. GINA L. FRANCISCO, JOSEPHINE S. TAN and CARLOS M.
JOAQUIN, Complainants,
vs.
ATTY. JAIME JUANITO P. PORTUGAL, Respondent.
DECISION
TINGA, J.:
Complainants filed before this Court an affidavit-complaint1 on 15 August
2003 against Atty. Jaime Juanito P. Portugal (respondent) for violation of the
Lawyer’s Oath, gross misconduct, and gross negligence. Complainants are
related to petitioners in G.R. No. 152621-23 entitled SPO1 Ernest C.
Francisco, SPO1 Donato F. Tan and PO3 Rolando M. Joaquin v. People of
the Philippines, in whose behalf respondent filed the Petition for Review on
Certiorari (Ad Cautelam) in the case.
The complaint against respondent originated from his alleged mishandling of
the above-mentioned petition which eventually led to its denial with finality by
this Court to the prejudice of petitioners therein.
The facts are as follows:
On 21 March 1994, SPO1 Ernesto C. Francisco, SPO1 Donato F. Tan and
PO3 Rolando M. Joaquin (eventually petitioners in G.R. No. 152621-23,
collectively referred to herein as the accused) were involved in a shooting
incident which resulted in the death of two individuals and the serious injury
of another. As a result, Informations were filed against them before the
Sandiganbayan for murder and frustrated murder. The accused pleaded not
guilty and trial ensued. After due trial, the Sandiganbayan2 found the accused
guilty of two counts of homicide and one count of attempted homicide.
At that juncture, complainants engaged the services of herein respondent for
the accused. Respondent then filed a Motion for Reconsideration with the
Sandiganbayan but it was denied in a Resolution dated 21 August 2001.
Unfazed by the denial, respondent filed an Urgent Motion for Leave to File
Second Motion for Reconsideration, with the attached Second Motion for
Reconsideration.3 Pending resolution by the Sandiganbayan, respondent
also filed with this Court a Petition for Review on Certiorari (Ad Cautelam) on
3 May 2002.
Thereafter, complainants never heard from respondent again despite the
frequent telephone calls they made to his office. When respondent did not
return their phone inquiries, complainants went to respondent’s last known
address only to find out that he had moved out without any forwarding
address.
More than a year after the petition was filed, complainants were constrained
to personally verify the status of thead cautelam petition as they had neither
news from respondent about the case nor knowledge of his whereabouts.
They were shocked to discover that the Court had already issued a
Resolution4 dated 3 July 2002, denying the petition for late filing and non-
payment of docket fees.
Complainants also learned that the said Resolution had attained finality and
warrants of arrest5 had already been issued against the accused because
respondent, whose whereabouts remained unknown, did nothing to prevent
the reglementary period for seeking reconsideration from lapsing.
In his Comment,6 respondent states that it is of vital significance that the
Court notes that he was not the original counsel of the accused. He only met
the accused during the promulgation of the Sandiganbayan decision
convicting the accused of two counts of homicide and one count of attempted
homicide. He was merely requested by the original counsel to be on hand,
assist the accused, and be present at the promulgation of the Sandiganbayan
decision.
Respondent claims that there was no formal engagement undertaken by the
parties. But only because of his sincere effort and in true spirit of the Lawyer’s
Oath did he file the Motion for Reconsideration. Though admitting its highly
irregular character, respondent also made informal but urgent and personal
representation with the members of the Division of the Sandiganbayan who
promulgated the decision of conviction. He asserts that because of all the
efforts he put into the case of the accused, his other professional obligations
were neglected and that all these were done without proper and adequate
remuneration.
As to the ad cautelam petition, respondent maintains that it was filed on time.
He stresses that the last day of filing of the petition was on 3 April 2002 and
on that very day, he filed with this Court a Motion for Extension of Time to
File Petition for Review,7 seeking an additional thirty (30) days to file the
PINEDAPCGRNMAN
petition. Subsequently, on 3 May 2002, he filed the petition by registered mail
and paid the corresponding docket fees. Hence, so he concludes, it was filed
within the reglementary period.
Soon thereafter, respondent recounted all the "herculean" efforts he made in
assisting the accused for almost a year after the promulgation of the
Sandiganbayan decision. He considered the fact that it was a case he had
just inherited from the original counsel; the effect of his handling the case on
his other equally important professional obligations; the lack of adequate
financial consideration for handling the case; and his plans to travel to the
United States to explore further professional opportunities. He then decided
to formally withdraw as counsel for the accused. He wrote a letter to PO3
Rolando Joaquin (PO3 Joaquin), who served as the contact person between
respondent and complainants, explaining his decision to withdraw as their
counsel, and attaching the Notice to Withdraw which respondent instructed
the accused to sign and file with the Court. He sent the letter through
registered mail but unfortunately, he could not locate the registry receipt
issued for the letter.
Respondent states that he has asked the accused that he be discharged from
the case and endorsed the Notice of Withdrawal to PO3 Joaquin for the latter
to file with the Court. Unfortunately, PO3 Joaquin did not do so, as he was
keenly aware that it would be difficult to find a new counsel who would be as
equally accommodating as respondent. Respondent suggests this might
have been the reason for the several calls complainants made to his office.
On 9 February 2004, the Court resolved to refer the matter to the Integrated
Bar of the Philippines (IBP) for investigation, report and
recommendation.1awph!l.net
The case was assigned to Investigating Commissioner Leland R. Villadolid,
Jr. (Commissioner Villadolid) who sent notices of hearing to the parties but
of the three complainants, only complainant Carlos Joaquin appeared. Thus,
in the mandatory conference held, the other two complainants were declared
as having waived their rights to further participate in the IBP proceedings.8
The parties were directed to file their respective position papers and on 27
May 2005, Commissioner Villadolid submitted his Report and
Recommendation finding respondent guilty of violation of the Code of
Professional Responsibility9 and recommended the imposition of penalty
ranging from reprimand to suspension of six (6) months.1awph!l.net10 On 12
November 2005, the Board of Directors of the IBP resolved to adopt and
approve Commissioner Villadolid’s recommendation to find respondent guilty
and specifically to recommend his suspension for six (6) months as penalty.
The only issue to be resolved in the case at bar is, considering all the facts
presented, whether respondent committed gross negligence or misconduct
in handling G.R. No. 152621-23, which eventually led to the ad
cautelam petition’s dismissal with finality.
After careful consideration of the records of the case, the Court finds the
suspension recommended by the IBP proper.
In a criminal case like that handled by respondent in behalf of the accused,
respondent has a higher duty to be circumspect in defending the accused for
it is not only the property of the accused which stands to be lost but more
importantly, their right to their life and liberty. As held in Regala v.
Sandiganbayan:11
Thus, in the creation of lawyer-client relationship, there are rules, ethical
conduct and duties that breathe life into it, among those, the fiduciary duty to
his client which is of very delicate, exacting and confidential character,
requiring a very high degree of fidelity and good faith, that is required by
reason of necessity and public interest x x x .
It is also the strict sense of fidelity of a lawyer to his client that distinguishes
him from any other profession in society. x x x12
At the onset, the Court takes notice that the ad cautelam petition was actually
filed out of time. Though respondent filed with the Sandiganbayan an Urgent
Motion for Leave to File Second Motion for Reconsideration with the attached
Second Motion for Reconsideration, he should have known that a second
motion for reconsideration is a prohibited pleading13 and it rests on the sound
discretion of the Sandiganbayan to admit it or not. Thus, in effect, the motion
did not toll the reglementary period to appeal. Having failed to do so, the
accused had already lost their right to appeal long before respondent filed his
motion for extension. Therefore, respondent cannot now say he filed the ad
cautelam petition on time. Also important to note is the allegation of
Page 203
complainants that the Sandiganbayan denied the second motion for
reconsideration in its Resolution dated 7 February 2002. This respondent
does not dispute.
LEGAL ETHICS
As to respondent’s conduct in dealing with the accused and complainants,
he definitely fell short of the high standard of assiduousness that a counsel
must perform to safeguard the rights of his clients. As aptly observed by
Commissioner Villadolid, respondent had not been quite candid in his
dealings with the accused or complainants. The Court notes that though
respondent represented to the accused that he had changed his office
address, still, from the examination of the pleadings14 he filed, it can be
gleaned that all of the pleadings have the same mailing address as that
known to complainants. Presumably, at some point, respondent’s office
would have received the Court’s Resolution dismissing the petition. Of
course, the prudent step to take in that situation was to at least inform the
client of the adverse resolution since they had constantly called respondent’s
office to check the status of the case. Even when he knew that complainants
had been calling his office, he opted not to return their calls.
Respondent professed an inkling that the several phone calls of
complainants may have been about the letter he sent PO3 Joaquin regarding
his desire to be discharged as counsel of the case. However, though aware
of such likelihood, respondent still did not return their calls. Had he done so,
he and complainants could have threshed out all unresolved matters
between them.
Had respondent truly intended to withdraw his appearance for the accused,
he as a lawyer who is presumably steeped in court procedures and practices,
should have filed the notice of withdrawal himself instead of the accused. At
the very least, he should have informed this Court through the appropriate
manifestation that he had already given instructions to his clients on the
proper way to go about the filing of the Notice of Withdrawal, as suggested
by Commissioner Villadolid. In not so doing, he was negligent in handling the
case of the accused.
Certainly, respondent ought to know that he was the one who should have
filed the Notice to Withdraw and not the accused. His tale that he sent a
registered letter to the accused and gave them instructions on how to go
about respondent’s withdrawal from the case defies credulity. It should have
been respondent who undertook the appropriate measures for the proper
withdrawal of his representation. He should not have relied on his client to do
it for him if such was truly the case. Without the presentation of the alleged
registry receipt (or the return card, which confirms the receipt of the mail by
the recipient) of the letter he allegedly sent to PO3 Joaquin, the Court cannot
lend credence to respondent’s naked claim, especially so that complainants
have been resolute in their stand that they did not hear from respondent after
the latter had filed the ad cautelam petition. He could relieve himself of his
responsibility as counsel only first by securing the written conformity of the
accused and filing it with the court pursuant to Rule 138, Section 26 of the
Rules of Court.15
The rule in this jurisdiction is that a client has the absolute right to terminate
the attorney-client relation at anytime with or without cause. The right of an
attorney to withdraw or terminate the relation other than for sufficient cause
is, however, considerably restricted. Among the fundamental rules of ethics
is the principle that an attorney who undertakes to conduct an action impliedly
stipulates to carry it to its conclusion. He is not at liberty to abandon it without
reasonable cause. A lawyer’s right to withdraw from a case before its final
adjudication arises only from the client’s written consent or from a good
cause.16
We agree with Commissioner Villadolid that the dismissal of the ad cautelam
petition was primarily due to the gross negligence of respondent. The Court
has stressed in Aromin v. Boncavil17 that:
Once he agrees to take up the cause of the client, the lawyer owes fidelity to
such cause and must always be mindful of the trust and confidence reposed
in him. He must serve the client with competence and diligence, and
champion the latter’s cause with wholehearted fidelity, care, and devotion.
Elsewise stated, he owes entire devotion to the interest of the client, warm
zeal in the maintenance and defense of his client’s rights, and the exertion of
the his utmost learning and ability to the end that nothing be taken or withheld
from his client, save by the rules of law, legally applied. This simply means
that his client is entitled to the benefit of any and every remedy and defense
that is authorized by the law of the land and he may expect his lawyer to
assert every such remedy or defense. If much is demanded from an attorney,
it is because the entrusted privilege to practice law carries with it the
correlative duties not only to the client but also to the court, to the bar, and to
the public. A lawyer who performs his duty with diligence and candor not only
protects the interest of his client; he also serves the ends of justice, does
PINEDAPCGRNMAN
honor to the bar, and helps maintain the respect of the community to the legal
profession.18
Respondent has time and again stated that he did all the endeavors he
enumerated without adequate or proper remuneration. However,
complainants have sufficiently disputed such claim when they attached in
their position paper filed before the IBP a machine validated deposit slip in
the amount of P15,500.00 for the Metro Bank savings account of one Jaime
Portugal with account number 7186509273.19 Respondent has neither
admitted nor denied having claimed the deposited amount.
The Court also rejects respondent’s claim that there was no formal
engagement between the parties and that he made all his efforts for the case
without adequate and proper consideration. In the words of then Justice
Panganiban (presently Chief Justice) in Burbe v. Atty. Magulta:20
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 of
public service, not money, is the primary consideration.21
Also to the point is another case where this Court ruled, thus:
A written contract is not an essential element in the employment of an
attorney; the contract may be express or implied. To establish the relation, it
is sufficient that the advice and assistance of an attorney is sought and
received in any matter pertinent to his profession. x x x 22
Hence, even if respondent felt under-compensated in the case he undertook
to defend, his obligation embodied in the Lawyer’s Oath and the Code of
Professional Responsibility still remains unwavering. The zeal and the
degree of fervor in handling the case should neither diminish nor cease just
because of his perceived insufficiency of remuneration.
Lastly, the Court does not appreciate the offensive appellation respondent
called the shooting incident that the accused was engaged in. He described
the incident, thus: "the accused police officers who had been convicted of
[h]omicide for the ‘salvage’ of Froilan G. Cabiling and Jose M. Chua and
[a]ttempted [h]omicide of Mario C. Macato."23 Rule 14.0124 of the Code of
Professional Responsibility clearly directs lawyers not to discriminate clients
as to their belief of the guilt of the latter. It is ironic that it is the defense
counsel that actually branded his own clients as being the culprits that
"salvaged" the victims. Though he might think of his clients as that, still it is
unprofessional to be labeling an event as such when even the
Sandiganbayan had not done so.
The IBP Board of Governors recommended the suspension of respondent
for six (6) months, the most severe penalty recommended by Commissioner
Villadolid, but did not explain why such penalty was justified. In a fairly recent
case where the lawyer failed to file an appeal brief which resulted to the
dismissal of the appeal of his client in the Court of Appeals, the Court
imposed upon the erring lawyer the penalty of three (3) months’
suspension.25The Court finds it fit to impose the same in the case at bar.
WHEREFORE, premises considered, respondent is hereby SUSPENDED
from the practice of law for three (3) months. Let a copy of the Resolution be
furnished the Bar Confidant for appropriate annotation in the record of
respondent.
SO ORDERED.
Rule 14.02 – A lawyer shall not decline, except for serious and sufficient
cause, an appointment as counsel de oficio or as amicus curae or a
request from the Integrated Bar of the Philippines or any of its chapters
for rendition of free legal aid.
ROC RULE 138 Section 30. Attorney to be heard before removal or
suspension. — No attorney shall be removed or suspended from the
practice of his profession, until he has had full opportunity upon
reasonable notice to answer the charges against him, to produce
witnesses in his own behalf, and to be heard by himself or counsel. But
if upon reasonable notice he fails to appear and answer the accusation,
the court may proceed to determine the matter ex parte.
Section 20 (h) Never to reject, for any consideration personal to himself,
the cause of the defenseless or oppressed;
ROC RULE 116 Section 6. Duty of court to inform accused of his right
Page 204
to counsel. — Before arraignment, the court shall inform the accused
of his right to counsel and ask him if he desires to have one. Unless the
accused is allowed to defend himself in person or has employed a
LEGAL ETHICS
counsel of his choice, the court must assign a counsel de oficio to
defend him. (6a)
Section 7. Appointment of counsel de oficio. — The court, considering
the gravity of the offense and the difficulty of the questions that may
arise, shall appoint as counsel de oficio only such members of the bar
in good standing who, by reason of their experience and ability, can
competently defend the accused. But in localities where such members
of the bar are not available, the court may appoint any person, resident
of the province and of good repute for probity and ability, to defend the
accused. (7a)
Section 8. Time for counsel de oficio to prepare for arraignment. —
Whenever a counsel de oficio is appointed by the court to defend the
accused at the arraignment, he shall be given a reasonable time to
consult with the accused as to his plea before proceeding with the
arraignment. (8)
ROC RULE 124 Section 2. Appointment of counsel de oficio for the
accused. — If it appears from the record of the case as transmitted that
(a) the accused is confined in prison, (b) is without counsel de parte on
appeal, or (c) has signed the notice of appeal himself, the clerk of court
of the Court of Appeals shall designate a counsel de oficio.
An appellant who is not confined in prison may, upon request, be
assigned a counsel de oficio within ten (10) days from receipt of the
notice to file brief and he establishes his right thereto. (2a)
PRESIDENTIAL DECREE No. 543 August 21, 1974
AUTHORIZING THE DESIGNATION OF MUNICIPAL JUDGES AND
LAWYERS IN ANY BRANCH OF THE GOVERNMENT SERVICE TO ACT
AS COUNSEL DE OFICIO FOR THE ACCUSED WHO ARE INDIGENT IN
PLACES WHERE THERE ARE NO AVAILABLE PRACTICING
ATTORNEYS
WHEREAS, under existing law, Municipal Judges and other lawyers in
the government service are prohibited from practicing law;
WHEREAS, there are some places where there are no available legal
practitioners, as a result of which the trial of cases in court is delayed
to the prejudice particularly of detention prisoners;
WHEREAS, for the protection of the rights of the accused who cannot
afford to hire lawyers from other places and to prevent miscarriage of
justice, it is necessary that they be provided with counsel;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution as
commander-in-Chief of the Armed Forces of the Philippines, and
pursuant to Proclamation No. 1081, dated September 21, 1972, and
General Order No. 1, dated September 22, 1972, as amended, do hereby
order and decree as follows:
Section 1. Designation of Municipal Judges and lawyers in any branch
of the government service, as counsel de oficio. In places where there
are no available practicing lawyers, the District Judge or Circuit
Criminal Court Judge shall designate a municipal judge or a lawyer
employed in any branch, subdivision or instrumentality of the
government within the province, as counsel de oficio for an indigent
person who is facing a criminal charge before his court, and the
services of such counsel de oficio shall be duly compensated by the
Government in accordance with Section thirty-two, Rule One Hundred
Thirty Eight of the Rules of Court.
If the criminal case wherein the services of a counsel de oficio are
needed is pending before a City or municipal court, the city or municipal
judge concerned shall immediately recommend to the nearest District
Judge the appointment of a counsel de oficio, and the District Judge
shall forthwith appoint one in accordance with the preceding
paragraph.
For purposes of this Decree an indigent person is anyone who has no
visible means of support or whose income does not exceed P300 per
month or whose income even in excess of P300 is insufficient for the
subsistence of his family, which fact shall be determined by the Judge
in whose court the case is pending, taking into account the number of
the members of his family dependent upon him for subsistence.
PINEDAPCGRNMAN
Section 2. Repealing Clause. All laws and decrees inconsistent with this
Decree are hereby repealed.
Section 3. Effectivity. This Decree shall take effect immediately.
DONE in the City of Manila, this 21st day of August, in the year of Our
Lord, nineteen hundred and seventy-four.
G.R. No. L-26868 February 27, 1969
IN THE MATTER OF ATTORNEY LOPE E. ADRIANO Member of the
Philippine Bar. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
REMIGIO ESTEBIA, accused-appellant.
SANCHEZ, J.:
Once again, this Court is confronted with the unwanted task of ascertaining
whether certain acts and conduct of a member of the Bar deserve disciplinary
action.
The problem arose because of facts that follow:
One Remigio Estebia was convicted of rape by the Court of First Instance of
Samar, 1 and sentenced to suffer the capital punishment. His case came up
before this Court on review.
On December 14, 1966, Lope E. Adriano, a member of the Bar, was
appointed by this Court as Estebia's counselde oficio. In the notice of his
appointment, Adriano was required to prepare and file his brief within thirty
days from notice. He was advised that to enable him to examine the case,
the record would be at his disposal. Adriano received this notice on
December 20, 1966. On January 19, 1967, Adriano sought for a 30-day
extension to file appellant's brief in mimeographed form. On February 18,
Adriano again moved for a 20-day extension (his second). This was followed
by a third filed on March 8, for fifteen days. And a fourth on March 27, also
for fifteen days. He moved for a "last" extension of ten days on April 11. On
April 21, he even sought a special extension of five days. All these motions
for extension were granted. The brief was due on April 26, 1967. But no brief
was filed.
On September 25, 1967, Adriano was ordered to show cause within ten days
from notice thereof why disciplinary action should not be taken against him
for failure to file appellant's brief despite the lapse of the time therefor.
Adriano did not bother to give any explanation.
For failing to comply with the September 25, 1967 resolution, this Court, on
October 3, 1968, resolved to impose upon him a fine of P500 payable to this
Court within fifteen days from notice with a warning that upon further non-
compliance with the said resolution of September 25, 1967 within the same
period of fifteen days, "more drastic disciplinary action will be taken against
him." Still, counsel paid no heed.
Finally, on December 5, 1968, this Court ordered Adriano to show cause
within ten days from notice thereof why he should not be suspended from the
practice of law "for gross misconduct and violation of his oath of office as
attorney." By express order of this Court, the resolution was personally
served upon him on December 18, 1968. He ignored the resolution.
Upon the facts just narrated, we now pass judgment.
1. By specific authority, this Court may assign an attorney to render
professional aid to a destitute appellant in a criminal case who is unable to
employ an attorney. Correspondingly, a duty is imposed upon the lawyer so
assigned "to render the required service." 2 A lawyer so appointed "as
counsel for an indigent prisoner", our Canons of Professional Ethics demand,
"should always exert his best efforts" in the indigent's behalf. 3
No excuse at all has been offered for non-presentation of appellant's brief.
And yet, between December 20, 1966, when he received notice of his
appointment, and December 5, 1968, when the last show cause order was
issued by this Court, more than sufficient time was afforded counsel to
prepare and file his brief de oficio. The death sentence below imposed was
upon a plea of guilty. The record of the proceedings leading to the lower
court's sentence consists of but 31 pages. Counsel had the record since
January 19, 1967. In fact, in his third motion for extension of time, he
manifested that the drafting of apellant's brief "is more than half-way through"
and that "additional time is needed to review, effectuate the necessary
corrections, put in final form and print the said brief." In his motion for fourth
extension, he intimated that the preparation of the brief "is almost through"
and that "additional time is needed to redraft and rehash some significant
Page 205
portions of said brief and have the same stencilled and mimeographed upon
completion of a definitive text." His motion for last (fifth) extension of time
came with the excuse that he "suddenly got sick (influenza) in the course of
LEGAL ETHICS
redrafting and rehashing some significant portions of said brief, which ailment
hampered and interrupted his work thereon for sometime." Finally, in his
"Special Extension of Time" to file brief, he claimed that he needed only five
days from April 21, 1967 to put said brief in final form and have the same
stencilled and mimeographed.lawphi1.nêt
In the face of the fact that no brief has ever been filed, counsel's statements
in his motions for extension have gone down to the level of empty and
meaningless words; at best, have dubious claim to veracity.
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. His is to render effective assistance. The accused
defendant expects of him due diligence, not mere perfunctory representation.
We do not accept the paradox that responsibility is less where the defended
party is poor. It has been said that courts should "have no hesitancy in
demanding high standards of duty of attorneys appointed to defend indigent
persons charged with crime." 4 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 self interest. Because of this, a lawyer should remain ever
conscious of his duties to the indigent he defends.
Worth remembering is the 1905 case of In the matter of Jose Robles Lahesa.
5 He was counsel de oficio before the Supreme Court in two cases: one for
robo en cuadrilla and the other for homicide. He failed to take any action in
behalf of the defendants in both eases. This Court imposed upon him a fine
of P200. Significant is the pronouncement we there made that: "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 result in delays in the prosecution of
criminal cases and the detention of accused persons pending appeal." The
validity of the foregoing observation remains to the present day. 6 It applies
to the present case.
Here, appellant was without brief since December 20, 1966. The effect of this
long delay need not be essayed. We, therefore, find that Attorney Lope E.
Adriano has violated his oath that he will conduct himself as a lawyer
according to the best of his "knowledge and discretion".
2. An attorney's duty of prime importance is "[t]o observe and maintain the
respect due to the courts of justice and judicial officers. The first Canon of
the Code of Ethics enjoins a lawyer "to maintain towards the Courts a
respectful attitude, not for the sake of the temporary incumbent of the judicial
office, but for the maintenance of its supreme importance." By the oath of
office, the lawyer undertook to "obey the laws as well as the legal orders of
the duly constituted authorities." In People vs. Carillo, 8 this Court's pointed
observation was that as an officer of the court, it is a lawyer's "sworn and
moral duty to help build and not destroy unnecessarily that high esteem and
regard towards the courts so essential to the proper administration of justice."
Here, we have a clear case of an attorney whose acts exhibit willful dis-
obedience of lawful orders of this Court. A cause sufficient is thus present for
suspension or disbarment. 9 Counsel has received no less than three
resolutions of this Court requiring compliance of its orders. To be recalled is
that on September 25, 1967, this Court directed him, in ten days from notice,
to show cause why disciplinary action should not be taken against him for his
failure to file appellant's brief despite the lapse of the time therefor. Nothing
was done by counsel for over a year. To impress upon counsel the gravity of
his repeated failure to obey this Court's orders, on October 3,1968, a fine of
P500 was clamped upon him. He was directed to pay that fine in ten days.
He was in that order also required to file his brief in fifteen days. He was
warned that more drastic disciplinary action would be taken upon his failure
to do either. Still he remained unmoved. Then, this Court issued the
peremptory order of December 5, 1968 commanding him to show cause
within ten days from notice thereof why he should not be suspended from the
practice of law for gross misconduct and violation of his oath of office. The
Court made it certain that this order would reach him. He personally
acknowledged receipt thereof. He has not paid the fine. He has done nothing.
This is 1969. No brief has as yet been filed. And this, inspite of the fact that
as early as March 27, 1967, when he moved for a fourth extension of time to
file his brief de oficio, he represented to this Court that all that was needed
was to redraft and to rehash some significant portions of the brief which was
almost through and to have the same stencilled and mimeographed upon
completion of a definitive text.
PINEDAPCGRNMAN
Disrespect is here present. Contumacy is as patent. Disciplinary action is in
order.
Controlling here is the 1961 decision In the Matter of Atty. Filoteo Dianala Jo.
10 There, as here, counsel failed to file appellant's brief (in a criminal case)
despite extensions of time granted him by this Court. Likewise, this Court
issued a show-cause order why disciplinary action should not be taken
against him. The explanation was considered unsatisfactory. This Court
imposed a fine of P50 payable in ten days from notice. Attorney Dianala Jo
did not pay that fine. Came the subsequent resolution of this Court advising
him to pay the fine, otherwise, he would be arrested and confined to jam. This
warning was not heeded. On November 18, 1960, the Court resolved to give
him ten days from notice within which to explain why he should not be
suspended from the practice of law. Despite receipt of this notice, he did not
care to explain his behaviour which this Court considered as "consumacy and
unwillingness to comply with the lawful orders of this Court of which he is an
officer or to conduct himself as a lawyer should, in violation of his oath of
office." He was suspended from the practice of law for three months.
In the present case, counsel's pattern of conduct, it would seem to us, reveals
a propensity on the part of counsel to benumb appreciation of his obligation
as counsel de oficio and of the courtesy and respect that should be accorded
this Court.
For the reasons given, we vote to suspend Attorney Lope E. Adriano from
the practice of law throughout the Philippines for a period of one (1) year.
Let a copy of this resolution be attached to the personal record, in this Court,
of Lope E. Adriano as member of the Bar. So ordered.
*A LAWYER SHALL NOT DECLINE APPOINTMENT BY THE COURT OF
THE IBP
Rule 14.03 – A lawyer may refuse to accept representation of a client if:
1. a. He is not in position to carry out the work effectively and
competently.
2. b. He labors under conflict of interest between him and the
prospective client or between a present client and the
prospective client.
A.C. No. 6160 March 30, 2006
NESTOR PEREZ , Complainant,
vs.
ATTY. DANILO DE LA TORRE, Respondent.
DECISION
YNARES-SANTIAGO, J.:
In a letter-complaint1 dated July 30, 2003 addressed to then Chief Justice
Hilario G. Davide, Jr., complainant Nestor Perez charged respondent Atty.
Danilo de la Torre with misconduct or conduct unbecoming of a lawyer for
representing conflicting interests.
Perez alleged that he is the barangay captain of Binanuaanan, Calabanga,
Camarines Sur; that in December 2001, several suspects for murder and
kidnapping for ransom, among them Sonny Boy Ilo and Diego Avila, were
apprehended and jailed by the police authorities; that respondent went to the
municipal building of Calabanga where Ilo and Avila were being detained and
made representations that he could secure their freedom if they sign the
prepared extrajudicial confessions; that unknown to the two accused,
respondent was representing the heirs of the murder victim; that on the
strength of the extrajudicial confessions, cases were filed against them,
including herein complainant who was implicated in the extrajudicial
confessions as the mastermind in the criminal activities for which they were
being charged.
Respondent denied the accusations against him. He explained that while
being detained at the Calabanga Municipal Police Jail, Avila sought his
assistance in drafting an extrajudicial confession regarding his involvement
in the crimes of kidnapping for ransom, murder and robbery. He advised Avila
to inform his parents about his decision to make an extrajudicial confession,
apprised him of his constitutional rights and of the possibility that he might be
utilized as a state-witness.
Respondent claimed that when Ilo sought his assistance in executing his
Page 206
extrajudicial confession, he conferred with Ilo in the presence of his parents;
and only after he was convinced that Ilo was not under undue compulsion did
he assist the accused in executing the extrajudicial confession.
LEGAL ETHICS
The complaint was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.2 On August 16, 2005, the
Investigating Commissioner submitted his report with the following
recommendation:
WHEREFORE, it is respectfully recommended that Atty. Danilo de la Torre
be suspended for one (1) year from the practice of the legal profession for
violation of Rule 15.03 of the Code of Professional Responsibility.
RESPECTFULLY SUBMITTED.
The Board of Governors of the IBP modified the recommendation by
increasing the period of suspension to two years.
In finding the respondent guilty of representing conflicting interests, the
Investigating Commissioner opined that:
In administrative proceedings, the complainant has the burden of proving, by
substantial evidence, the allegations in his complaint. The complainant was
able to prove by substantial evidence his charge against Atty. de la Tor[r]e.
The respondent admitted that his services as a lawyer were retained by both
Avila and Ilo. Perez was able to show that at the time that Atty. de la Torre
was representing the said two accused, he was also representing the interest
of the victim’s family. This was declared by the victim’s daughter, Vicky de
Chavez, who testified before Branch 63 of the Regional Trial Court of
Camarines Sur that her family retained the services of Atty. Danilo de la Torre
to prosecute the case against her father’s killers. She even admitted that she
was present when Atty. de la Torre met with and advised Avila and Ilo on one
occasion. This is proof that the respondent consciously offered his services
to Avila and Ilo despite the fact that he was already representing the family
of the two accused’s victim. It may not even be improbable that respondent
purposely offered to help the accused in order to further his other clients’
interest. The respondent failed to deny these facts or offer competent
evidence to refute the said facts despite the ample opportunity given him.
Under Rule 15.03 of the Code of Professional Responsibility, a lawyer shall
not represent conflicting interests except by written consent of all concerned
given after a full disclosure of the facts. Respondent is therefore duty bound
to refrain from representing two parties having conflicting interests in a
controversy. By doing precisely the foregoing, and without any proof that he
secured the written consent of both parties after explaining to them the
existing conflict of interest, respondent should be sanctioned.
We agree with the findings of the IBP except for the recommended penalty.
There is conflict of interests when a lawyer represents inconsistent interests
of two or more opposing parties. The test is "whether or not in behalf of one
client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to
oppose it for the other client. In brief, if he argues for one client, this argument
will be opposed by him when he argues for the other client." This rule covers
not only cases in which confidential communications have been confided, but
also those in which no confidence has been bestowed or will be used.3
There is a representation of conflicting interests if the acceptance of the new
retainer will require the attorney to do anything which will injuriously affect his
first client in any matter in which he represents him and also whether he will
be called upon in his new relation, to use against his first client any
knowledge acquired through their connection.4
The prohibition against representing conflicting interest is founded on
principles of public policy and good taste. In the course of a lawyer-client
relationship, the lawyer learns all the facts connected with the client’s case,
including the weak and strong points of the case. The nature of that
relationship is, therefore, one of trust and confidence of the highest degree.
It behooves lawyers not only to keep inviolate the client’s confidence, but also
to avoid the appearance of impropriety and double-dealing for only then can
litigants be encouraged to entrust their secrets to their lawyers, which is of
paramount importance in the administration of justice.5
To negate any culpability, respondent explained that he did not offer his legal
services to accused Avila and Ilo but it was the two accused who sought his
assistance in executing their extrajudicial confessions. Nonetheless, he
acceded to their request to act as counsel after apprising them of their
constitutional rights and after being convinced that the accused were under
no compulsion to give their confession.
The excuse proferred by the respondent does not exonerate him from the
clear violation of Rule 15.03 of the Code of Professional Responsibility which
prohibits a lawyer from representing conflicting interests except by written
consent of all concerned given after a full disclosure of the facts.
As found by the IBP, at the time respondent was representing Avila and Ilo,
two of the accused in the murder of the victim Resurreccion Barrios, he was
PINEDAPCGRNMAN
representing the family of the murder victim. Clearly, his representation of
opposing clients in the murder case invites suspicion of double-dealing and
infidelity to his clients.
What is unsettling is that respondent assisted in the execution by the two
accused of their confessions whereby they admitted their participation in
various serious criminal offenses knowing fully well that he was retained
previously by the heirs of one of the victims. Respondent, who presumably
knows the intricacies of the law, should have exercised his better judgment
before conceding to accused’s choice of counsel. It did not cross his mind to
inhibit himself from acting as their counsel and instead, he even assisted
them in executing the extrajudicial confession.
Considering that this is respondent’s first infraction, disbarment as sought by
the complaint is deemed to be too severe. Under the present circumstances,
we find that a suspension from the practice of law for three years is
warranted.
WHEREFORE, Atty. Danilo de la Torre is found GUILTY of violation of Rule
15.03 of the Code of Professional Responsibility for representing conflicting
interests. He is SUSPENDED for THREE YEARS from the practice of law,
effective upon his receipt of this Decision. He is WARNED that a repetition
of the same or similar acts will be dealt with more severely.
Let copies of this Decision be entered in the record of respondent and served
on the IBP, as well as on the Court Administrator who shall circulate it to all
courts for their information and guidance.
SO ORDERED.
[A. C. No. 5485. March 16, 2005]
ELMER CANOY, complainant, vs. ATTY. JOSE MAX ORTIZ,
respondent.
DECISION
TINGA, J.:
There are no good reasons that would justify a lawyer virtually abandoning
the cause of the client in the midst of litigation without even informing the
client of the fact or cause of desertion. That the lawyer forsook his legal
practice on account of what might be perceived as a higher calling, election
to public office, does not mitigate the dereliction of professional duty.
Suspension from the practice is the usual penalty, and there is no reason to
deviate from the norm in this case.
A Complaint[1] dated 10 April 2001 was filed with the Office of the Bar
Confidant by Elmer Canoy (Canoy) accusing Atty. Jose Max Ortiz (Atty. Ortiz)
of misconduct and malpractice. It was alleged that Canoy filed a complaint
for illegal dismissal against his former employer, Coca Cola Bottlers
Philippines. The complaint was filed with the National Labor Relations
Commission (NLRC) Regional Arbitration Board VI in Bacolod City.[2] Atty.
Ortiz appeared as counsel for Canoy in this proceeding. In 1998, the labor
arbiter hearing the complaint ordered the parties to submit their respective
position papers. Canoy submitted all the necessary documents and records
to Atty. Ortiz for the preparation of the position paper. Thereafter, he made
several unfruitful visits to the office of Atty. Ortiz to follow-up the progress of
the case. After a final visit at the office of Atty. Ortiz in April of 2000, during
which Canoy was told to come back as his lawyer was not present, Canoy
decided to follow-up the case himself with the NLRC. He was shocked to
learn that his complaint was actually dismissed way back in 1998, for failure
to prosecute, the parties not having submitted their position papers.[3] The
dismissal was without prejudice. Canoy alleged that Atty. Ortiz had never
communicated to him about the status of the case, much less the fact that he
failed to submit the position paper.
The Comment[4] filed by Atty. Ortiz is the epitome of self-hagiography. He
informs the Court that since commencing his law practice in 1987, he has
mostly catered to indigent and low-income clients, at considerable financial
sacrifice to himself. Atty. Ortiz claims that for more than ten years, his law
office was a virtual adjunct of the Public Attorneys Office with its steady
stream of non-paying clients in the hundreds or thousands.[5] At the same
time, he hosted a legal assistance show on the radio, catering to far-flung
municipalities and reaching the people who need legal advice and
assistance.[6] Atty. Ortiz pursued on with this lifestyle until his election as
Councilor of Bacolod City, a victory which he generously attributes to the help
of the same people whom he had helped by way of legal assistance before.[7]
Page 207
Canoy was among those low-income clients whom Atty. Ortiz deigned to
represent. The lawyer was apparently confident that the illegal dismissal case
would eventually be resolved by way of compromise. He claims having
LEGAL ETHICS
prepared the position paper of Canoy, but before he could submit the same,
the Labor Arbiter had already issued the order dismissing the case.[8]Atty.
Ortiz admits though that the period within which to file the position paper had
already lapsed. He attributes this failure to timely file the position paper to the
fact that after his election as Councilor of Bacolod City, he was frankly
preoccupied with both his functions as a local government official and as a
practicing lawyer. Eventually, his desire to help was beyond physical
limitations, and he withdrew from his other cases and his free legal services.[9]
According to Atty. Ortiz, Mr. Canoy should have at least understood that
during all that time, he was free to visit or call the office and be entertained
by the secretary as [he] would normally report to the office in the afternoon
as he had to attend to court trials and report to the Sanggunian office.[10] He
states that it was his policy to inform clients that they should be the ones to
follow-up their cases with his office, as it would be too difficult and a financial
burden to attend making follow-ups with hundreds of clients, mostly indigents
with only two office personnel.[11]
Nonetheless, Atty. Ortiz notes that the dismissal of Canoys complaint was
without prejudice, thus the prescriptive period had been tolled. He claims not
being able to remember whether he immediately informed Canoy of the
dismissal of the case, though as far as he could recall, Canoy had conveyed
a message to him that he had a lawyer to handle the case, thus his office did
not insist on refiling the same.[12]
The matter was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[13] Canoy eventually submitted a
motion withdrawing the complaint, but this was not favorably acted upon by
the IBP in view of the rule that the investigation of a case shall not be
interrupted or terminated by reason of withdrawal of the
charges.[14]Eventually, the investigating commissioner concluded that clearly,
the records show that [Atty. Ortiz] failed to exercise that degree of
competence and diligence required of him in prosecuting his clients (sic)
claim, and recommended that Atty. Ortiz be reprimanded.[15] The IBP
Commission on Discipline adopted the recommendation, with the slight
modification that Atty. Ortiz be likewise warned that a repetition of the same
negligence shall be dealt with more severely in the future.
The Court is sensitive to the difficulties in obtaining legal representation for
indigent or low-income litigants. Apart from the heroic efforts of government
entities such as the Public Attorneys Office, groups such as the IBP National
Committee on Legal Aid and the Office of Legal Aid of the UP College of Law
have likewise been at the forefront in the quest to provide legal representation
for those who could not otherwise afford the services of lawyers. The efforts
of private practitioners who assist in this goal are especially commendable,
owing to their sacrifice in time and resources beyond the call of duty and
without expectation of pecuniary reward.
Yet, the problem of under-representation of indigent or low-income clients is
just as grievous as that of non-representation. Admirable as the apparent
focus of Atty. Ortizs legal practice may have been, his particular
representation of Canoy in the latters illegal dismissal case leaves much to
be desired.
Several of the canons and rules in the Code of Professional Responsibility
guard against the sort of conduct displayed by Atty. Ortiz with respect to the
handling of Canoys case.
CANON 17A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
REPOSED IN HIM.
CANON 18A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE
AND DILIGENCE.
...
Rule 18.03A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
Rule 18.04A lawyer shall keep the client informed of the status of his case
and shall respond within a reasonable time to the clients request for
information.
...
CANON 22A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR
GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
...
Rule 22.02 A lawyer who withdraws or is discharged shall, subject to a
retainer lien, immediately turn over all papers and property to which the client
PINEDAPCGRNMAN
is entitled, and shall cooperate with his successor in the orderly transfer of
the matter, including all information necessary for the proper handling of the
matter.
Atty. Ortiz should have filed the position paper on time, owing to his duty as
counsel of Canoy to attend to this legal matter entrusted to him. His failure to
do so constitutes a violation of Rule 18.03 of the Code of Professional
Responsibility.
Once he agrees to take up the cause of a client, a lawyer owes fidelity to
such cause and must always be mindful of the trust and confidence reposed
in him. He must serve the client with competence and diligence and
champion the latter's cause with wholehearted fidelity, care and devotion.
Elsewise stated, he owes entire devotion to the interest of the client, warm
zeal in the maintenance and defense of his client's rights, and the exertion of
his utmost learning and ability to the end that nothing be taken or withheld
from his client, save by the rules of law, legally applied. This simply means
that his client is entitled to the benefit of any and every remedy and defense
that is authorized by the law of the land and he may expect his lawyer to
assert every such remedy or defense. If much is demanded from an attorney,
it is because the entrusted privilege to practice law carries with it the
correlative duties not only to the client but also to the court, to the bar and to
the public. A lawyer who performs his duty with diligence and candor not only
protects the interest of his client; he also serves the ends of justice, does
honor to the bar and helps maintain the respect of the community to the legal
profession.[16]
If indeed Atty. Ortizs schedule, workload, or physical condition was such that
he would not be able to make a timely filing, he should have informed Canoy
of such fact. The relationship of lawyer-client being one of confidence, there
is ever present the need for the client to be adequately and fully informed of
the developments of the case and should not be left in the dark as to the
mode and manner in which his/her interests are being defended.[17]
There could have been remedies undertaken to this inability of Atty. Ortiz to
file on time the position paper had Canoy been told of such fact, such as a
request for more time to file the position paper, or maybe even the hiring of
collaborating counsel or substitution of Atty. Ortiz as counsel. Since Atty.
Ortiz did not exercise the necessary degree of care by either filing the position
paper on time or informing Canoy that the paper could not be submitted
seasonably, the ignominy of having the complaint dismissed for failure to
prosecute could not be avoided.
That the case was dismissed without prejudice, thus allowing Canoy to refile
the case, hardly serves to mitigate the liability of Atty. Ortiz, as the failure to
file the position paper is per sea violation of Rule 18.03.[18]
Neither is the Court mollified by the circumstance of Atty. Ortizs election as
a City Councilor of Bacolod City, as his adoption of these additional duties
does not exonerate him of his negligent behavior. The Code of Professional
Responsibility does allow a lawyer to withdraw his legal services if the lawyer
is elected or appointed to a public office.[19] Statutes expressly prohibit the
occupant of particular public offices from engaging in the practice of law, such
as governors and mayors,[20] and in such instance, the attorney-client
relationship is terminated.[21] However, city councilors are allowed to practice
their profession or engage in any occupation except during session hours,
and in the case of lawyers such as Atty. Ortiz, subject to certain prohibitions
which are not relevant to this case.[22] In such case, the lawyer nevertheless
has the choice to withdraw his/her services.[23] Still, the severance of the
relation of attorney-client is not effective until a notice of discharge by the
client or a manifestation clearly indicating that purpose is filed with the court
or tribunal, and a copy thereof served upon the adverse party, and until then,
the lawyer continues to be counsel in the case.[24]
Assuming that Atty. Ortiz was justified in terminating his services, he,
however, cannot just do so and leave complainant in the cold unprotected.[25]
Indeed, Rule 22.02 requires that a lawyer who withdraws or is discharged
shall, subject to a lien, immediately turn over all papers and property to which
the client is entitled, and shall cooperate with his successor in the orderly
transfer of the matter. Atty. Ortiz claims that the reason why he took no further
action on the case was that he was informed that Canoy had acquired the
services of another counsel. Assuming that were true, there was no apparent
coordination between Atty. Ortiz and this new counsel.
In fact, it took nearly two years before Canoy had learned that the position
Page 208
paper had not been filed and that the case had been dismissed. This was
highly irresponsible of Atty. Ortiz, much more so considering that Canoy was
one of the indigent clients whom Atty. Ortiz proudly claims as his favored
LEGAL ETHICS
clientele. It does not escape the Courts attention that Atty. Ortiz faults Canoy
for not adequately following up the case with his office.[26] He cannot now shift
the blame to complainant for failing to inquire about the status of the case,
since, as stated above, it was his duty as lawyer to inform his clients of the
status of cases entrusted to him.[27]
The appropriate sanction is within the sound discretion of this Court. In cases
of similar nature, the penalty imposed by the Court consisted of either a
reprimand, a fine of five hundred pesos with warning, suspension of three
months, six months, and even disbarment in aggravated cases.[28] Given the
circumstances, the Court finds the penalty recommended by the IBP too
lenient and instead suspends Atty. Ortiz from the practice of law for one (1)
month. The graver penalty of suspension is warranted in lieu of an admonition
or a reprimand considering that Atty. Ortizs undisputed negligence in failing
to timely file the position paper was compounded by his failure to inform
Canoy of such fact, and the successive dismissal of the complaint.
Lawyers who devote their professional practice in representing litigants who
could ill afford legal services deserve commendation. However, this mantle
of public service will not deliver the lawyer, no matter how well-meaning, from
the consequences of negligent acts. It is not enough to say that all pauper
litigants should be assured of legal representation. They deserve quality
representation as well.
WHEREFORE, respondent Atty. Jose Max S. Ortiz is ordered SUSPENDED
from the practice of law for one (1) month from notice, with the warning that
a repetition of the same negligence will be dealt with more severely. Let a
copy of this decision be attached to respondent's personal record in the
Office of the Bar Confidant and copies be furnished to all chapters of the
Integrated Bar of the Philippines and to all the courts in the land.
SO ORDERED.
Rule 14.04 – A lawyer who accepts the cause of a person unable to pay
his professional fees shall observe the same standard of conduct
governing his relations with paying clients.
 Duties to Client:
1. owe utmost learning and ability
2. maintain inviolate the confidence of the client
3. disclose all circumstances/interest regarding the
controversy
4. undivided loyalty
5. not reject cause of defenseless and oppressed
6. candor, fairness and loyalty
7. hold in trust money or property
8. respond with zeal to the cause of the client
 Appointment of Amicus Curae
1. by application to the judge
2. the judge on his own initiative may invite the lawyer
3. no right to interfere with or control the condition of the
record, no control over the suit
 Cannot refuse on the ground of insufficient of compensation or
lack of it
IN RE ATTY ADRIANO (supra)
CANON 15 – A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND
LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS
CLIENT.
ROC RULE 138 Section 3. Requirements for lawyers who are citizens of
the United States of America. — Citizens of the United States of America
who, before July 4, 1946, were duly licensed members of the Philippine
Bar, in active practice in the courts of the Philippines and in good and
regular standing as such may, upon satisfactory proof of those facts
before the Supreme Court, be allowed to continue such practice after
taking the following oath of office:
I . . . . . . . . . . . . . . . . . . . . . . . . . . ., having been permitted to continue in
the practice of law in the Philippines, do solemnly swear that I recognize
the supreme authority of the Republic of the Philippines; I will support
its Constitution and obey the laws as well as the legal orders of the duly
constituted authorities therein; I will do no falsehood, nor consent to
PINEDAPCGRNMAN
the doing of any in court; I will not wittingly or willingly promote or sue
any groundless, false or unlawful suit, nor give aid nor consent to the
same; I will delay no man for money or malice, and will conduct myself
as a lawyer according to the best of may knowledge and discretion with
all good fidelity as well as to the courts as to my clients; and I impose
upon myself this voluntary obligation without any mental reservation
or purpose of evasion. So help me God.
[A.C. No. 5135. September 22, 1999]
ELSIE B. AROMIN, FE B. YABUT, TIBURCIO B. BALLESTEROS, JR., and
JULIAN B. BALLESTEROS, complainants, vs. ATTY. VALENTIN O.
BONCAVIL,respondent.
DECISION
MENDOZA, J.:
This is a complaint[1] filed by Elsie B. Aromin, Fe B. Yabut, Tiburcio B.
Ballesteros, Jr., and Julian B. Ballesteros against Atty. Valentin O. Boncavil
for violation of the Code of Professional Responsibility.
Complainants allege that their late father, Tiburcio Ballesteros, engaged the
services of respondent as counsel in two cadastral cases then pending in the
Regional Trial Court, Branch 18, Pagadian City, to wit: Cadastral Case No.
N-14, LRC CAD RMC No. N-475, Lot No. 6576, Pls-119, entitled The Director
of Lands, Petitioner, v. Faustina Calibo, Claimant, v. Tiburcio Ballesteros,
Claimant, and Cadastral Case No. N-14, LRC CAD. REG. No. N-475, Lot No.
7098, Pls-119, entitled The Director of Lands, Petitioner, v. Belinda Tagailo-
Bariuan, Claimant, v. Tiburcio Ballesteros, Claimant; that despite receipt of
the adverse decision in the two cases on August 8, 1991, respondent did not
inform herein complainants of the same nor file either a motion for
reconsideration or a notice of appeal to prevent the decision from becoming
final; that respondent did not file either a written offer of evidence despite the
trial courts directive for him to do so; and that it took respondent four years
from the time complainants father died before he filed a motion to substitute
herein complainants in the trial court. The foregoing acts and omissions of
respondent are alleged to be in violation of the following provisions of the
Code of Professional Responsibility:
CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND
LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS
CLIENT.
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
REPOSED IN HIM.
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE
AND DILIGENCE.
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable.
Rule 18.04 - A lawyer shall keep the client informed of the status of his case
and shall respond within a reasonable time to the clients request for
information.
Complainants pray that such disciplinary sanctions as may be appropriate be
imposed against Atty. Valentin Boncavil.
In his answer,[2] respondent alleges that the day before the cadastral court
rendered its decision, he met by chance herein complainant Julian
Ballesteros, who, after inquiring as to the status of the cadastral cases and
learning that the same had already been submitted for resolution, told him
You are too busy to attend to our case, it would be better if somebody else
would take over, to which, according to respondent, he replied, It is all right
with me, it is your privilege; that as a self-respecting legal practitioner, he did
not want to continue rendering unwanted legal services to a client who has
lost faith in his counsel; that he thus considered himself discharged as
counsel in the two cadastral cases and relieved of the obligation either to
move for a reconsideration of the decision or to file a notice of appeal and to
notify herein complainants of the decision against them; that, contrary to
complainants assertion, he did make an offer of evidence, although he
reserved the right to submit authenticated copies of the documentary
evidence from the Bureau of Lands in Manila; that the delay in the substitution
of Tiburcio Ballesteros with his heirs was because neither the heirs nor the
administrator of the intestate estate of Tiburcio Ballesteros informed him of
Page 209
the latters death despite the heirs knowledge that he was the counsel in the
two cadastral cases.
LEGAL ETHICS
On June 8, 1994, complainants moved for a judgment on the pleadings,
alleging that the facts are not in dispute and the respondents answer admits
the material allegations of the complaint.[3]
On June 13, 1994, IBP Commissioner Plaridel C. Jose required respondent
to comment on the foregoing motion within five (5) days from notice.[4] On
October 12, 1995, he set the case for hearing on November 17, 1995.[5]
On November 17, 1995, however, only complainants Tiburcio Ballesteros, Jr.
and Fe Yabut and their counsel appeared. This fact, together with
respondents failure to comment on complainants motion submitting the case
for resolution on the basis of the pleadings, prompted Commissioner Jose to
grant complainants motion.[6]
On June 21, 1996, Commissioner Jose submitted his report recommending
that respondent be suspended from the practice of law for six months with
warning that repetition of the same or similar acts shall be dealt with more
severely.
On May 17, 1997, the IBP Board of Governors passed Resolution No. XII-
97-16 approving Commissioner Joses report and recommendation.
After due consideration of the records of this case, the Court finds the
recommendation of the IBP to be well taken.
The facts clearly show that respondent violated Canon 18 of the Code of
Professional Responsibility which provides that a lawyer shall serve his client
with competence and diligence. By abandoning complainants cases,
respondent violated Rule 18.03 of the same Code which requires that a
lawyer not neglect a legal matter entrusted to him, and his negligence in
connection therewith shall render him liable. As stated in Santiago v. Fojas:[7]
Once he agrees to take up the cause of a client, the lawyer owes fidelity to
such cause and must always be mindful of the trust and confidence reposed
in him. He must serve the client with competence and diligence, and
champion the latters cause with wholehearted fidelity, care, and devotion.
Elsewise stated, he owes entire devotion to the interest of the client, warm
zeal in the maintenance and defense of his clients rights, and the exertion of
his utmost learning and ability to the end that nothing be taken or withheld from
his client, save by the rules of law, legally applied. This simply means that his
client is entitled to the benefit of any and every remedy and defense that is
authorized by the law of the land and he may expect his lawyer to assert
every such remedy or defense. If much is demanded from an attorney, it is
because the entrusted privilege to practice law carries with it the correlative
duties not only to the client but also to the court, to the bar, and to the public.
A lawyer who performs his duty with diligence and candor not only protects
the interest of his client; he also serves the ends of justice, does honor to the
bar, and helps maintain the respect of the community to the legal profession.
Nor can we sustain respondents claim that he did not file either a motion for
reconsideration or a notice of appeal from the decision in the two cases
because he was under the impression from the remark of Julian Ballesteros
that complainants no longer wanted to retain his services. As a member of
the bar, he ought to know that the only way to be relieved as counsel in a
case is to have either the written conformity of his client or an order from the
court relieving him as counsel. Thus, Rule 138, 26 of the Rules of Court
provides:
An attorney may retire at any time from any action or special proceeding, by
the written consent of his client filed in court. He may also retire at any time
from an action or special proceeding, without the consent of his client, should
the court, on notice to the client and attorney, and on hearing, determine that
he ought to be allowed to retire. In case of substitution, the name of the
attorney newly employed shall be entered on the docket of the court in place
of the former one, and written notice of the change shall be given to the
adverse party.
As a matter of fact, Julian Ballesteros, who allegedly made the remarks which
became the basis for respondents inaction, denied ever having made those
statements, much less having discharged respondent as counsel.[8]
Moreover, Julian Ballesteros is only one of the heirs of Tiburcio Ballesteros,
and it has not been shown that he was speaking on behalf of the other heirs
when he allegedly relieved respondent of his services. In any case, if
respondent had really been discharged as counsel, although not in
accordance with the Rules of Court, he should have informed the trial court
and asked that he be allowed to withdraw from the cases.[9] Until his dismissal
or withdrawal is made of record, any judicial notice sent to him was binding
upon his clients even though as between them the professional relationship
may have been terminated.[10] He cannot validly claim that, in
PINEDAPCGRNMAN
any case, the decision has not yet become final for want of service on the
Solicitor General, for the period within which complainants can file a motion
for reconsideration or notice of appeal is counted from receipt of the decision
by their counsel of record.
Nor is this the first time that respondent is remiss in his professional obligation
toward complainants. In his answer, he practically admits that he was late in
moving for the substitution of Tiburcio Ballesteros by herein complainant
heirs. Respondents excuse that he was not immediately informed by
complainants of their fathers death is without merit. Four years after the death
of complainants father is simply too long a period for him not to have known
of his clients death, especially as it appears that he and complainants live in
close proximity with each other. During those four years, surely occasions
would have arisen where respondent had to confer with Tiburcio Ballesteros
regarding the cases.
Respondent also, in effect, admits that he failed to file a written offer of
evidence as required by the court in its order, dated June 21, 1983. What he
actually filed was only a provisional written offer of evidence because the
documents offered were not certified true copies. What the Court makes of
respondents garbled explanation[11] for this lapse is that he could not bother
to go to the Bureau of Lands in Manila to get certified true copies because a
check with the Bureau of Lands in Pagadian City showed the same
documentary evidence to be substantially the same true copies. If that were
the case, respondent did not explain why he did not then go to the Pagadian
City branch of the Bureau of Lands to get the certified true copies of his
documentary evidence.
The recommended penalty of suspension from the practice of law for six
months for respondents gross negligence in the handling of the two cadastral
cases is in accordance with our decisions.[12]
WHEREFORE, the Court RESOLVED to suspend respondent Atty. Valentin
O. Boncavil from the practice of law for six (6) months from notice with a
warning that a repetition of a similar offense will be dealt with more severely.
Let a copy of this decision be attached to Atty. Boncavils personal record in
the Office of the Bar Confidant and copies be furnished to all chapters of the
Integrated Bar of the Philippines (IBP) and to all the courts in the land.
SO ORDERED.
[A.C. No. 5474. August 28, 2003]
REDENTOR S. JARDIN, complainant, vs. ATTY. DEOGRACIAS VILLAR,
JR. respondent.
DECISION
TINGA, J.:
Law is a profession and lawyers are professionals. Implicit in professionalism
is a certain level of competence and dedication. Far from measuring up to
the standards of a lawyers conduct set in the Code of Professional
Responsibility which are also the hallmarks of professionalism, the lawyer
charged in this case virtually abandoned his clients cause.
This is a complaint for disbarment filed by complainant Redentor S. Jardin
against respondent Atty. Deogracias Villar, Jr., who was his counsel in a
case, for the latters failure to formally offer the documentary exhibits, which
failure resulted in the dismissal of the case.
The complainant Redentor S. Jardin is the plaintiff in Civil Case No. 21480 of
the Metropolitan Trial Court, Quezon City. A building contractor, he engaged
the services of the respondent to represent him in the case which is for the
collection of the sum of One Hundred Five Thousand Seven Hundred Forty
Four and 80/100 Pesos (P105,744.80), representing the alleged unpaid
contract price for the repair of the house of the defendants in the case.[1] The
case went its course, but later despite several extensions of time given by
the trial court, the respondent failed to file his formal offer of exhibits.[2]
Consequently, on May 7, 2001, the trial court issued an Order the full text of
which reads as follows:
When this case was called for continuation of hearing, Atty. Rodrigo C.
Reyes, counsel for the defendants manifested that up to this date, Atty. Villar,
Jr., counsel for the plaintiff has not formally offer (sic) the documentary
exhibits for the plaintiff in writing as Order (sic) by the Court.
Records show that on February 26, 2001, Atty. Villar, Jr. was given an
extension period of TEN (10) days within which to formally offer the
Page 210
documentary exhibits in writing copy furnished Atty. Reyes, counsel for the
defendants who was given a period of Five (5) days within which to comment
and/or oppose the admissibility of the said exhibits and set the continuation
LEGAL ETHICS
of the hearing of this case for the presentation of evidence for the defendant
on March 30, 2001.
On March 30, 2001, when this case was called for hearing records show that
Atty. Villar, Jr., counsel for the plaintiff has not complied yet with the formal
offer of documentary exhibits for the plaintiff and again, in the interest of
justice, the Court give (sic) Atty. Villar, Jr. another period of TEN (10) days
within which to formally offer the documentary exhibits in writing and set the
continuation of the hearing of this case for today for the presentation of
evidence for the defendant.
Records show however, that on this date, the said counsel for the plaintiff
have (sic) not complied with the submission of documentary exhibits for the
plaintiff. For lack of interest on the part of the counsel for the plaintiff to further
prosecute this case, upon motion of Atty. Reyes the oral testimonial evidence
submitted by the plaintiff is hereby ordered WITHDRAWN from the records
and upon further motion of ordered WITHDRAWN from the records and upon
further motion of Atty. Reyes, this case is hereby ordered DISMISSED for
lack of interest on the part of the plaintiff to further prosecute this case.
Upon motion of Atty. Reyes, set the continuation of the hearing of this case
for the presentation of evidence on the counter claim on the part of the
defendant on June 15, 2001 at 8:30 oclock in the morning.[3]
The dismissal of the collection case prompted the complainant to file a
verified Affidavit-Complaint[4] dated July 4, 2001 for the disbarment of the
respondent with this Court, wherein he also alleged the developments which
transpired after the dismissal of the case, viz: that he already terminated the
services of the respondent as his counsel; that the respondent failed to return
the originals of the documentary exhibits entrusted to him; and that the
respondent finally handed over the documents only as an aftermath of a
heated argument he had with the complainants wife.
In a Resolution[5] dated September 10, 2001, this Court required the
respondent to comment on the complaint against him. However, the
respondent failed to file his comment despite two (2) extensions of time
granted to him. Thus, the Court resolved to dispense with the filing of the
respondents comment and referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.[6]
Similarly, the respondent failed to file his answer as required by the
Commission on Bar Discipline of the IBP.[7] Hence, the averments made, as
well as the evidence submitted by the complainant, are undisputed.
Investigating Commissioner Attorney Milagros V. San Juan, IBP Commission
on Bar Discipline, found the respondent liable for negligence and
recommended his suspension from the practice of law for a period of six (6)
months, with the warning that a similar conduct in the future will be dealt with
more severely. The salient portions of the Report and Recommendationdated
March 4, 2003 of the Investigating Commissioner are as follows:
Complainants contention that respondent Villar failed to file plaintiffs Formal
Offer of Documentary Evidence is substantiated by the Orders dated 26
February 2001, 30 March 2001 and 7 May 2001 (Annexes 7, 9 and 10
respectively). The Order dated 7 May 2001 (Annex 10 of complainants
Affidavit) reads:
....
It is clear from the above-quoted Order that it was the failure of respondent
Villar to file the Formal Offer of Documentary Exhibits which led to the
dismissal of Civil Case No. 21480 to the prejudice of respondents client,
herein complainant. Respondent Villar has failed to offer any explanation for
his failure to file the Formal Offer of Exhibits within the several extensions of
time given him by the trial court to do so. There is no doubt that it was part of
respondents obligation to complainant as the latters counsel of record in Civil
Case No. 21480, to file said Formal Offer of Documentary Exhibits, and
respondents dereliction of this duty has prejudiced the interests of
respondents client. In accepting Civil Case No. 21480, it was respondents
obligation to take all measures to protect the interests of his client in
accordance with Canon (sic) 18 & 19 of the Code of Professional
Responsibility but it was respondents negligence or omission which has
caused damage to such interests.[8]
In its Resolution dated April 26, 2003, the IBP Board of Governors adopted
and approved said Report and Recommendation of the Investigating
Commissioner.
We are also in full accord with the findings and recommendation of the
Investigating Commissioner.
PINEDAPCGRNMAN
At the outset, we find particularly glaring the respondents disregard of the
resolution of this Court directing him to file his comment on the complaint. He
exhibited a similar attitude in failing to file his answer when required by the
Commission on Bar Discipline. The repeated cavalier conduct belies
impudence and lack of respect for the authority of this Court.
The record clearly shows that the respondent has been languid in the
performance of his duties as counsel for the complainant. He was given by
the trial court several extensions of time: first, an extension of ten (10) days
from February 26, 2001 or until March 8, 2001, and; second, another
extension of ten (10) days from March 30, 2001, when the case was called
for hearing and the court noted that no such formal offer had been filed then,
or until April 9, 2001. It must also be emphasized that there was an interim
period of twenty two (22) days between March 8, 2001 and March 30, 2001,
and another interval of twenty-seven (27) days from April 9, 2001 until May
7, 2001 when the Order dismissing the case was issued. Effectively,
therefore, respondent had three (3) months and nine (9) days within which to
file the formal offer of exhibits.[9] The respondent did not bother to give an
explanation even in mitigation or extenuation of his inaction.
Manifestly, the respondent has fallen short of the competence and diligence
required of every member of the Bar. The pertinent Canons of the Code of
Professional Responsibilityprovide:
CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER
IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT
ADMINISTRATION OF JUSTICE.
....
Rule 12.03 - A lawyer shall not, after obtaining extensions of time to file
pleadings, memoranda or briefs, let the period lapse without submitting the
same or offering an explanation for his failure to do so.
CANON 17 A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
REPOSED IN HIM.
CANON 18 A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE
AND DILIGENCE.
....
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him and
his negligence in connection therewith shall render him liable.
....
CANON 19 - A LAWYER SHAL REPRESENT HIS CLIENT WITH ZEAL
WITHIN THE BOUNDS OF THE LAW.
It is indeed dismaying to note the respondents patent violation of his duty as
a lawyer. He committed a serious transgression when he failed to exert his
utmost learning and ability and to give entire devotion to his clients cause. His
client had relied on him to file the formal offer of exhibits among other things.
But he failed him. Resulting as it did in the dismissal of the case, his failure
constitutes inexcusable default. It therefore behooves the Court to take action
on the respondents mortal infraction, which caused undeserved and
needless prejudice to his clients interest, adversely affected the confidence
of the community in the legal profession and eroded the publics trust in the
judicial system. As an attorney, the respondent is sworn to do his level best
and to observe full fidelity to the courts and his clients.[10] This means that in
relation to his duty to his clients he should put his maximum skills and full
commitment to bear in representation of their causes.
We can only echo our pronouncements in Basas v. Icawat,[11] to wit:
Respondent manifestly fell short of the diligence required of his profession,
in violation of Canon 18 of the Code of Professional Responsibility, which
mandates that a lawyer shall serve his client with competence and
diligence. Rule 18.03 provides:
"A lawyer shall not neglect a legal matter entrusted to him, and his negligence
in connection therewith shall render him liable."
As we reiterated in Aromin, et al. v. Boncavil, A. C. No. 5135, September 22,
1999:
Once he agrees to take up the cause of a client, the lawyer owes fidelity to
such cause and must always be mindful of the trust and confidence reposed
in him. He must serve the client with competence and diligence, and
champion the latter's cause with wholehearted fidelity, care, and devotion.
Elsewise stated, he owes entire devotion to the interest of the client, warm
zeal in the maintenance and defense of his client's rights, and the exertion of
Page 211
his utmost learning and ability to the end that nothing be taken or withheld
from his client, save by the rules of law, legally applied. This simply means
that his client is entitled to the benefit of any and every remedy and defense
LEGAL ETHICS PINEDAPCGRNMAN
that is authorized by the law of the land he may expect his lawyer to assert in behalf of PENTA RESORTS
every such remedy or defense. If much is demanded from an attorney, it is CORPORATION/Attorney-in-
because the entrusted privilege to practice law carries with it the correlative Fact of LUMOT A. JALANDONI,
duties not only to the client but also to the court, to the bar, and to the public. Complainant, Present:
A lawyer who performs his duty with diligence and candor not only protects
the interest of his client; he also serves the ends of justice, does honor to the PUNO, J., Chairperson,
bar, and helps maintain the respect of the community to the legal profession.[12]
SANDOVAL-GUTIERREZ,
This Court has emphatically ruled that the trust and confidence necessarily
- v e r s u s - CORONA,
reposed by clients requires in the attorney a high standard and appreciation
of his duty to his clients, his profession, the courts and the public.[13] Every AZCUNA and
case a lawyer accepts deserves his full attention, diligence, skill and GARCIA, JJ.
competence, regardless of its importance and whether he accepts it for a fee
or free.[14] Certainly, a member of the Bar who is worth his title cannot afford ATTY. NICANOR V. VILLAROSA,
to practice the profession in a lackadaisical fashion. A lawyers lethargy from Respondent. Promulgated:
the perspective of the Canons is both unprofessional and unethical.
The IBP recommended the suspension of the respondent from the practice June 15, 2006
of law for a period of six (6) months. We find the recommended penalty
commensurate with the offense committed. x --------------------------------------------------------------------------- x
In Aromin v. Boncavil,[15] this Court suspended a lawyer for six (6) months for
his failure to file a written offer of evidence despite the trial courts directive.
The failure to file formal offer of evidence is in pari materia with failure to file
RESOLUTION
brief, which as this Court held in Perla Compania de Seguros, Inc. v.
Saquilabon[16] constitutes inexcusable negligence. In the Saquilabon case,
the respondent lawyer was suspended from the practice of law for a period CORONA, J.
of six (6) months. The Court likewise imposed the same penalty upon the Humberto C. Lim Jr.[1] filed a verified complaint for disbarment against
respondents in the cases of In Re: Atty. David Briones,[17] Spouses Galen v. respondent Atty. Nicanor V. Villarosa on July 7, 2000.[2] On February 19,
Paguinigan,[18] Spouses Rabanal v. Rabanal[19] for their failure to file the 2002, respondent moved for the consolidation of the said complaint with the
briefs of their respective clients. following substantially interrelated cases earlier filed with the First Division of
WHEREFORE, in view of the foregoing, respondent Atty. Deogracias Villar this Court:
is SUSPENDED from the practice of law for six (6) months effective upon 1. Administrative Case No. 5463: Sandra F. Vaflor v. Atty. Adoniram
finality hereof, with the WARNING that the repetition of a similar violation will P. Pamplona and Atty. Nicanor V. Villarosa;
be dealt with even more severely. 2. Administrative Case No. 5502: Daniel A. Jalandoni v. Atty.
Let a copy of this decision be entered in the personal records of respondent Nicanor V. Villarosa.
as a member of the Bar, and copies furnished the Bar Confidant, the
Integrated Bar of the Philippines, and the Court Administrator for circulation
In a resolution dated February 24, 2003, this Court considered Administrative
to all courts in the country.
Case No. 5463 closed and terminated.[3] On February 4, 2004, considering
SO ORDERED.
the pleadings filed in Administrative Case No. 5502, the Court resolved:
Rule 15.01 – A lawyer in conferring with a prospective client, shall
ascertain as soon as practicable whether the matter would involve a (a) to NOTE the notice of the resolution dated September 27, 2003
conflict with another client or his own interest, and if so, shall forthwith of the Integrated Bar of the Philippines dismissing the case against
inform the prospective client. respondent for lack of merit; and

Rule 15.03 – A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of the
facts.
Rule on Conflicting Interest
It is generally the rule based on sound public policy that an attorney
cannot represent adverse interest. It is highly improper to represent both
sides of an issue. The proscription against representation of conflicting
interest finds application where the conflicting interest arises with respect to
the same general matter and is applicable however slight such adverse
interest may be. It applies although the attorney’s intention and motives were
honest and he acted in good faith. However, representation of conflicting
interest may be allowed where the parties consent to the representation after
full disclosure of facts. (Nakpil vs. Valdez, 286 SCRA 758).
 General Rule:An attorney cannot represent adverse interest.
 Exception:Where the parties consent to the representation after
full disclosure of facts.
 The TEST in determining Conflicting Interest: The test is whether
or not the acceptance of a new relation will prevent an attorney
from the full discharge of his duty of individual fidelity and loyalty
to his client or invite suspicion of unfaithfulness in double-dealing
in the performance thereof.(Tiana vs. Ocampo)
(b) to DENY, for lack of merit, the petition filed by complainant
praying that the resolution of the Integrated Bar of the Philippines dismissing
the instant case be reviewed and that proper sanctions be imposed upon
respondent.[4]
No motion for reconsideration of the aforesaid denial in Administrative Case
No. 5502 appears in the records. The Court is now called upon to determine
the merits of this remaining case (A.C. No. 5303) against respondent.
The complaint read:
AS FIRST CAUSE OF ACTION
xxx xxx xxx
- II -
That respondent is a practicing lawyer and a member of the Integrated Bar
of the Philippines, Bacolod City, Negros Occidental Chapter. That sometime
on September 19, 1997, Lumot A. Jalandoni, Chairman/President of PRC
was sued before RTC, Branch 52 in Civil Case No. 97-9865, RE: Cabiles et
al. vs. Lumot Jalandoni, et al. The latter engaged the legal services of herein
Page 212

respondent who formally entered his appearance on October 2, 1997 as

HUMBERTO C. LIM, JR., A.C. No. 5303 counsel for the defendants Lumot A. Jalandoni/Totti Anlap Gargoles.
Respondent as a consequence of said Attorney-Client relationship
LEGAL ETHICS
represented Lumot A. Jalandoni et al in the entire proceedings of said case.
Utmost trust and confidence was reposed on said counsel, hence delicate
and confidential matters involving all the personal circumstances of his client
were entrusted to the respondent. The latter was provided with all the
necessary information relative to the property in question and likewise on legal
matters affecting the corporation (PRC) particularly [involving] problems
[which affect] Hotel Alhambra. Said counsel was privy to all transactions and
affairs of the corporation/hotel.
- III -
That it was respondent who exclusively handled the entire proceedings of
afore-cited Civil Case No. 97-9865 [and] presented Lumot A. Jalandoni as
his witness prior to formally resting his case. However, on April 27, 1999
respondent, without due notice prior to a scheduled hearing, surprisingly filed
a Motion to withdraw as counsel, one day before its scheduled hearing on
April 28, 1999. A careful perusal of said Motion to Withdraw as Counsel will
conclusively show that no copy thereof was furnished to Lumot A. Jalandoni,
neither does it bear her conformity. No doubt, such notorious act of
respondent resulted to (sic) irreparable damage and injury to Lumot A.
Jalandoni, et al since the decision of the court RTC, Branch 52 proved
adverse to Lumot A. Jalandoni, et al. The far reaching effects of the untimely
and unauthorized withdrawal by respondent caused irreparable damage and
injury to Lumot A. Jalandoni, et al; a highly meritorious case in favor of his
client suddenly [suffered] unexpected defeat.
- IV -
That the grounds alleged by respondent for his withdrawal as counsel of
Lumot A. Jalandoni, et al. was that he is [a] retained counsel of Dennis G.
Jalbuena and the Fernando F. Gonzaga, Inc. It was Dennis G. Jalbuena who
recommended him to be the counsel of Lumot A. Jalandoni, et al. It is worthy
to note that from the outset, respondent already knew that Dennis G.
Jalbuena is the son-in-law of Lumot A. Jalandoni being married to her eldest
daughter, Carmen J. Jalbuena. The other directors/officers of PRC were
comprised of the eldest sibling of the remaining children of Lumot A.
Jalandoni made in accordance with her wishes, with the exception of Carmen
J. Jalbuena, the only daughter registered as one of the incorporators of PRC,
obviously, being the author of the registration itself [sic]. Respondent further
stated that he cannot refuse to represent Dennis G. Jalbuena in the case filed
against the latter before the City Prosecutors Office by PRC/Lumot A.
Jalandoni due to an alleged retainership agreement with said Dennis G.
Jalbuena. [He] likewise represented Carmen J. Jalbuena and one Vicente
Delfin when PRC filed the criminal complaint against them. On April 06, 1999,
twenty-one (21) days prior to respondents filing of his Motion to Withdraw as
Counsel of Lumot A. Jalandoni, et al., respondent entered his appearance
with Bacolod City Prosecutor OIC-Vicente C. Acupan, through a letter
expressly stating that effective said date he was appearing as counsel for
both Dennis G. Jalbuena and Carmen J. Jalbuena and Vicente Delfin in the
Estafa case filed by the corporation (PRC) against them. Simply stated, as
early as April 6, 1999 respondent already appeared for and in behalf of the
Sps. Carmen and Dennis Jalbuena/Vicente Delfin while concurrently
representing Lumot A. Jalandoni, et al. in Civil Case No. 97-9865. However,
despite being fully aware that the interest of his client Lumot A. Jalandoni
[holding an equivalent of Eighty-two (82%) percent of PRCs shares of stocks]
and the interest of PRC are one and the same, notwithstanding the fact that
Lumot A. Jalandoni was still his client in Civil Case No. 97-9862, respondent
opted to represent opposing clients at the same time. The corporations
complaint for estafa (P3,183,5525.00) was filed against the Sps. Dennis and
Carmen J. Jalbuena together with UCPB bank manager Vicente Delfin.
Succeeding events will show that respondent instead of desisting from further
violation of his [lawyers] oath regarding fidelity to his client, with extreme
arrogance, blatantly ignored our laws on Legal Ethics, by palpably
PINEDAPCGRNMAN
and despicably defending the Sps. Dennis and Carmen J. Jalbuena in all the
cases filed against them by PRC through its duly authorized representatives,
before the Public Prosecutors Office, Bacolod City (PP vs. Sps. Dennis and
Carmen J. Jalbuena for False Testimony/Perjury, viol. of Art. 183 RPC under
BC I.S. No. 2000-2304; viol. of Art. 363, 364, 181 and 183 RPC under BC
I.S. 2000-2343, PP vs. Carmen J. Jalbuena for viol. of Art. 315 under BC I.S.
2000-2125 and various other related criminal cases against the Sps. Dennis
and Carmen Jalbuena).
AS SECOND CAUSE OF ACTION
xxx xxx xxx
-I-
xxx xxx xxx
There is no dispute that respondent was able to acquire vast resources of
confidential and delicate information on the facts and circumstances of [Civil
Case No. 97-9865] when Lumot A. Jalandoni was his client which knowledge
and information was acquired by virtue of lawyer-client relationship between
respondent and his clients. Using the said classified information which should
have been closely guarded respondent did then and there, willfully,
unlawfully, feloniously conspired and confabulated with the Sps. Dennis and
Carmen J. Jalbuena in concocting the despicable and fabricated charges
against his former clients denominated as PP vs. Lumot A. Jalandoni,
Pamela J. Yulo, Cristina J. Lim and Leica J. Lim for viol. of Art. 172 of Revised
Penal Code due to a board resolution executed by the corporation which the
Sps. Jalbuena, with the assistance of herein respondent, claimed to have
been made without an actual board meeting due to an alleged lack of
quorum, [among other things]. Were it not for said fiduciary relation between
client and lawyer, respondent will not be in a position to furnish his
conspirator spouses with confidential information on Lumot A.
Jalandoni/PRC, operator of Alhambra Hotel.
- II -
Adding insult to injury, respondent opted to deliberately withhold the entire
case file including the marked exhibits of the Cabiles case for more than three
(3) months after his untimely unilateral withdrawal therefrom, despite
repeated demands from [his] client. On July 26, 1999, capitalizing on his
knowledge of the indispensability of said documents particularly the marked
exhibits, which deadline to file the formal offer of exhibits was continually
impressed upon the new counsel by the court, respondent suddenly
interposed an amount of five thousand (P5,000.00) pesos as consideration
prior to or simultaneous to the turnover of said documents. [On] July 29,
1999, left with no other alternative owing to the urgency of the situation, PRC
issued Check No. 2077686 for P5,000.00 in payment thereof. This was duly
received by respondents office on the same date. Such dilatory tactics
employed by respondent immensely weakened the case of Lumot A.
Jalandoni eventually resulting to (sic) an adverse decision against [her].
Further demonstrating before this Honorable Court the notoriety of
respondent in representing conflicting interest which extended even beyond
the family controversy was his improper appearance in court in Civil Case
No. 99-10660, RE: Amy Albert Que vs. Penta Resorts Corp., this time
favoring the party opponent of defendant who is even outside the family
circle. During the pre-trial hearing conducted on May 5, 1999, while still
[holding] exclusive possession of the entire case file of his client in Civil Case
No. 97-9865, respondent brazenly positioned himself beside Atty. Adoniram
P. Pamplona, counsel of plaintiff [in] a suit against his client Lumot A.
Jalandoni/PRC, coaching said counsel on matters [he was privy to] as
counsel of said client. Facts mentioned by said counsel of the plaintiff starting
from the last par. of page 25 until and including the entire first par. of page
Page 213
26 were the exact words dictated by respondent. The entire incident was
personally witnessed by herein complainant [who was] only an arms length
away from them during the hearing. However, the particular portion showing
LEGAL ETHICS
the said irregular acts of respondent was deliberately excluded by the court
stenographer from the transcript, despite her detailed recollection and
affirmation thereof to herein complainant. This prompted the new counsel of
Lumot A. Jalandoni/PRC to complain to the court why Atty. Nicanor Villarosa
was coaching Atty. Pamplona in such proceedings. Said corrections were
only effected after repeated demands to reflect the actual events which
[transpired] on said pre-trial.[5] (emphasis ours)
In an addendum to the July 4, 2000 complaint, Lim also pointed to certain
acts of respondent which allegedly violated the Rules of Court ― perpetration
of falsehood and abuse of his influence as former public prosecutor. These
supposedly affected the status of the cases that Lim filed against the clients
of respondent.[6]
In a motion to dismiss dated October 30, 2000, respondent claimed that the
complainant violated Circular No. 48-2000 because, in his verification, Lim
stated:
3. That [he] prepared this instant complaint for disbarment against Atty.
Nicanor V. Villarosa, read its contents, the same are all true and correct to
[his] own personal knowledge and belief.[7] (emphasis ours)
Section 4, Rule 7 of the Rules of Court explicitly provides that:
SEC. 4. Verification. Except when otherwise specifically required by law or
rule, pleadings need not be under oath, verified or accompanied by affidavit.
(5a)
A pleading is verified by an affidavit that the affiant has read the pleading and
that the allegations therein are true and correct of his personal knowledge or
based on authentic records.
A pleading required to be verified which contains verification based on
information and belief or upon knowledge, information and belief, or
lacks a proper verification, shall be treated as an unsigned pleading.
(As amended, A.M. 00-2-10, May 1, 2000.) (emphasis ours)
While the Rules provide that an unsigned pleading produces no legal
effect,[8] the court may, in its discretion, allow such deficiency to be remedied
if it appears that the same was due to mere inadvertence and not intended
for delay.[9] We find that Lim was not shown to have deliberately filed the
pleading in violation of the Rules.
In his comment dated December 1, 2000, respondent, reiterating his ground
for the dismissal of the complaint, added:
[that] complainant Humberto C. Lim, Jr. has not only violated the Rule on
Civil Procedure but he was/is NOT duly authorize[d] by the Penta Resorts
Corp. (PRC) nor [by] Lumot A. Jalandoni to file this complaint against [him].
Neither [was Lim] a proper party to file this complaint. This fact is an
additional ground to have his case dismissed because Humberto C. Lim Jr.
exceeded whatever authority was granted to him as embodied in a resolution
and the Special Power of Attorney allegedly granted to him by the
complainants.[10]
To bolster his assertion that the complaint against him was unfounded,
respondent presented the following version in his defense:
FACTS OF THE CASE
xxx xxx xxx
PINEDAPCGRNMAN
That Mrs. Jalandoni has two sons-in-law, namely Dennis G. Jalbuena
married to her daughter, Carmen J. Jalbuena, and Humberto C. Lim Jr., the
herein complainant married to her daughter, Cristina J. Lim.
That Mrs. Lumot Jalandoni organized a corporation namely the Penta
Resorts Corporation (PRC) where she owned almost ninety seven percent
(97%). In other words, in reality, Penta Resorts Corporation is a single
proprietorship belonging to Mrs. Jalandoni. That the only property of the
corporation is as above-stated, the Alhambra Hotel, constructed solely
through the effort of the spouses Jalbuena on that parcel of land now claimed
by the Cabiles family.
That sometime on the year 1997 the case above-cited (Civil Case No. 97-
9865) was filed before the court against the sisters.
That [he], being RETAINED counsel of the spouses Dennis and Carmen J.
Jalbuena was RECOMMENDED by the spouses to the sisters to answer the
complaint filed against them.
II.
That as counsel to the sisters, [he] filed a Motion for Extension Of Time To
File Answer and ultimately, [he] filed an Answer With Counter-Claim And
Prayer For Issuance Of Writ Of Preliminary Injunction.
That reading the Answer it is clear that the defense of the sisters totally rest
on public documents (the various titles issued to the land in question
because of the series [of changes] in ownership) and the sisters and their
parents actual occupation and possession thereof. xxx xxx xxx
Mr. Lim[s] accusation against [him] in the light of the above-facts is the best
evidence of Humberto C. Lim, Jr.s penchant for exaggeration and distortion
of the truth. Since the defense of the sisters to retain ownership of the land
in question is based on PUBLIC documents, what delicate and confidential
matters involving personal circumstances of the sisters allegedly entrusted
to [him], is Mr. Humberto C. Lim, Jr. talking about in paragraphs I and II of his
Complaint? What [privity] to all transactions and affairs of the
corporation/hotel is he referring to? Whatever transactions the corporation
may have been involved in or [may be getting involved into], is totally
immaterial and irrelevant to the defense of the sisters.
There was nothing personal [about the] circumstances of the sisters nor
transactions of the corporation [which were] discussed. The documents being
offered as evidence, [he] reiterate[s] for emphasis, are public; the
presumption is that the whole world knows about them.
That [he] [also] vehemently den[ies] another distorted allegation of Mr. Lim
that [he] represented Mrs. Jalandoni [in] the entire proceedings of [the] case.
[Lim] himself attested that [he] [filed] [his] Motion to Withdraw As Counsel,
dated April 26, 1999 , before the trial court, sometime on April 27, 1999. How
then could [he] have represented Mrs. Jalandoni for [the] entire
proceedings of the case?
Further, Mr. Lim intentionally hid from this Honorable Court the important
fact that [his] Motion to Withdraw was APPROVED by the trial court because
of the possibility of a conflict of interest. xxx xxx xxx. [11]
Respondent discredited Lims claim that he deliberately withheld the records
of the cited civil case. He insisted that it took him just a few days, not three
months, to turn over the records of the case to Lim.[12] While he admitted an
oversight in addressing the notice of the motion to withdraw as counsel to
Mrs. Totti Anlap Gargoles instead of Mrs. Jalandoni at Hotel Alhambra, he
maintained that it was the height of hypocrisy to allege that Mrs. Jalandoni
Page 214
was not aware of his motion to withdraw[13] since Mrs. Gargoles is Mrs.
Jalandonis sister and Hotel Alhambra is owned by PRC which, in turn,
actually belongs to Mrs. Jalandoni. Respondent also argued that no prejudice
LEGAL ETHICS PINEDAPCGRNMAN
was suffered by Mrs. Jalandoni because she was already represented
by
LEGAL ETHICS
Atty. Lorenzo S. Alminaza from the first hearing date.[14] In fact, respondent
contended, it was he who was not notified of the substitution of counsels.[15]
As to the bill of P 5,000, respondent stated:
That Mr. Lim begrudge[s] [him] for billing Mrs. Jalandoni Five Thousand
(Php5,000.00) Pesos. Mr. Humberto C. Lim Jr. conveniently forgets that the
net worth of the property together with its improvements, under litigation in
that Cabiles, et al. vs. Gargoles et al. case, is a minimum of THIRTY
MILLION (Php30,000,000.00) PESOS then, and more so now. [He] cannot
find any law which prohibits a counsel from billing a client for services in
proportion to the services he rendered.[16]
In view of these developments, respondent was adamant that:
the only real question to be answered in this complaint is why Mr. Lim so
consistently [determined] to immerse the Jalandoni family [in] a series of
criminal and civil suits and to block all attempts to reconcile the family by
prolonging litigations, complaints and filing of new ones in spite of the
RESOLUTION of the corporation and the UNDERTAKING of the
members.[17]
On June 18, 2001, the Court resolved to refer the complaint to the Integrated
Bar of the Philippines (IBP) for investigation. Commissioner Lydia A. Navarro
made the following report and recommendation:
xxx xxx xxx
After going over the [pieces of evidence] submitted by the parties[,] the
undersigned noted that from the onset, PRC had a case wherein respondent
was its counsel. Later on, complainant had a case against spouses Jalbuena
where the parties were related to each other and the latter spouses were
represented by the respondent as their retained counsel; after respondent
had allegedly withdrawn as counsel for the complainant in Civil Case No. 97-
9865.
Being the husband of one of the complainants which respondent himself
averred in his answer, it is incumbent upon Humberto Lim Jr. to represent his
wife as one of the representatives of PRC and Alhambra Hotel in the
administrative complaint to protect not only her interest but that of the
[familys].
From the facts obtaining, it is evident that complainant had a lawyer-client
relationship with the respondent before the latter [was] retained as counsel
by the Spouses Jalbuena when the latter were sued by complainants
representative.
We cannot disregard the fact that on this situation for some reason or another
there existed some confidentiality and trust between complainants and
respondent to ensure the successful defense of their cases.
Respondent for having appeared as counsel for the Spouses Jalbuena when
charged by respondents former client Jalandoni of PRC and Alhambra Hotel,
represented conflicting interests in violation of the Canon of Professional
Responsibility.
As such therefore, the Undersigned has no alternative but to respectfully
recommend the suspension of the respondent from the practice of law for a
period of six (6) months from receipt hereof.
RESPECTFULLY SUBMITTED.
Pasig City, June 20, 2002.[18]
PINEDAPCGRNMAN
The IBP Board of Governors (Board), however, reversed the
recommendation of the investigating commissioner and resolved to dismiss
the case on August 3, 2002.[19] Lumot A. Jalandoni filed a motion for
reconsideration (MR) on October 18, 2002 but the Board denied the MR since
it no longer had jurisdiction to consider and resolve a matter already
endorsed to this Court.[20]
Before delving into the core issues of this case, we need to address some
preliminary matters.
Respondent argues that the alleged resolution of PRC and the special power
of attorney given by Lumot A. Jalandoni to Humberto did not contemplate the
filing of an administrative complaint.[21] Citing the Rules of Court, respondent
said that:
[s]uch complaints are personal in nature and therefore, the filing of the same,
cannot be delegated by the alleged aggrieved party to any third person
unless expressly authorized by law.
We must note, however, the following:
SECTION 1. How instituted. Proceedings for disbarment, suspension or
discipline of attorneys may be taken by the Supreme Court motu propio, or
by the Integrated Bar of the Philippines (IBP) upon the verified complaint of
any person. The complaint shall state clearly and concisely the facts
complained of and shall be supported by affidavits or persons having
personal knowledge of the facts therein alleged and/or by such documents
a may substantiate said facts.
The IBP Board of Governors may, motu propio or upon referral by the
Supreme Court or by a Chapter Board of Officers, or at the instance of any
person, initiate and prosecute proper charges against any erring
attorneys.[22] (emphasis ours)
Complaints against members of the Bar are pursued to preserve the integrity
of the legal profession, not for private vendetta. Thus, whoever has such
personal knowledge of facts constituting a cause of action against erring
lawyers may file a verified complaint with the Court or the IBP.[23] Corollary to
the public interest in these proceedings is the following rule:
SEC. 11. Defects. No defect in a complaint, notice, answer, or in the
proceeding or the Investigators Report shall be considered as
substantial unless the Board of Governors, upon considering the whole
record, finds that such defect has resulted or may result in a miscarriage
of justice, in which event the Board shall take such remedial action as the
circumstances may warrant, including invalidation of the entire
proceedings.[24] (emphasis ours)
Respondent failed to substantiate his allegation that Lims complaint was
defective in form and substance, and that entertaining it would result in a
miscarriage of justice. For the same reason, we will no longer put in issue the
filing at the onset of a motion to dismiss by respondent instead of an answer
or comment.[25]
The core issues before us now are:
1. whether there existed a conflict of interest in the cases
represented and handled by respondent, and
2. whether respondent properly withdrew his services as counsel of
record in Civil Case No. 97-9865.
Page 215
CONFLICT OF INTEREST
LEGAL ETHICS
Petitioners alleged that as an offshoot of representing conflicting interests,
breach of attorney-client confidentiality and deliberate withholding of records
were committed by respondent. To effectively unravel the alleged conflict of
interest, we must look into the cases involved.
In Civil Case No. 97-9865, respondent represented Lumot A. Jalandoni and
Totti Anlap Gargoles. This was a case for the recovery of possession of
property involving Hotel Alhambra, a hotel owned by PRC.
In BC I.S. No. 99-2192, Lim v. Vicente Delfin, Spouses Dennis and Carmen
Jalbuena, respondent was counsel for Delfin and the spouses Jalbuena. In
this case, plaintiff Cristina Lim sued the spouses Jalbuena and Delfin on the
basis of two checks issued by PRC for the construction of Hotel Alhambra.[26]
The corporate records allegedly reflected that the contractor, AAQ Sales and
Construction (AAQSC), was already paid in full yet Amy Albert Que of
AAQSC still filed a collection case against PRC for an unpaid balance.[27] In
her complaint-affidavit, Cristina averred:
PINEDAPCGRNMAN
The rule on conflict of interests covers not only cases in which confidential
communications have been confided but also those in which no confidence
has been bestowed or will be used.[33]
Another test of the inconsistency of interests is whether the acceptance of a
new relation will prevent an attorney from the full discharge of his duty of
undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness
or double-dealing in the performance thereof, and also whether he will be
called upon in his new relation to use against his first client any knowledge
acquire in the previous employment. The first part of the rule refers to cases
in which the opposing parties are present clients either in the same action
or in a totally unrelated case; the second part pertains to those in which
the adverse party against whom the attorney appears is his former client in
a matter which is related, directly or indirectly, to the present
controversy.[34] (emphasis ours)

11. That it was respondent Carmen J. Jalbuena, who took advantage of [her]
signatures in blank in DBP Check Nos. 0865590 and 0865591, and who filled
up the spaces of the payee, date and amount without the knowledge and
consent of any officer of the corporation and [herself], after which she caused
the delivery of the same checks to her husband Dennis Jalbuena, who
encashed without [their] knowledge and consent, and received the proceeds
of the same checks (as evidenced by his signature in receipt of payment on
the dorsal side of the said checks) with the indispensable participation and
cooperation of respondent Vicente B. Delfin, the Asst. Vice President and
Branch Head of UCPB.[28]
Notably, in his comment, respondent stated:
There was a possibility of conflict of interest because by this time, or one
month before [he] filed [his] Motion to Withdraw, Mrs. Jalandoni /Penta
Resorts Corporation, Mr. Lim, through his wife, Cristina J. Lim, by another
counsel, Atty. Lorenzo S. Alminaza, filed a criminal complaint against the
spouses Dennis and Carmen J. Jalbuena on March 26, 1999 under BC-I.S.
Case No. 99-2192.[29]
Similarly, in BC I.S. Nos. 00-1370, 2000-2304, 2000-2343, 00-2125, 00-
2230, 00-880, respondent positioned himself against PRCs interests.
The rule prohibits a lawyer from representing new clients whose interests
oppose those of a former client in any manner, whether or not they are parties
in the same action or in totally unrelated cases. The cases here directly or
indirectly involved the parties connection to PRC, even if neither PRC nor
Lumot A. Jalandoni was specifically named as party-litigant in some of the
cases mentioned.
An attorney owes to his client undivided allegiance. After being retained and
receiving the confidences of the client, he cannot, without the free and
intelligent consent of his client, act both for his client and for one whose
interest is adverse to, or conflicting with that of his client in the same general
matter. The prohibition stands even if the adverse interest is very slight;
neither is it material that the intention and motive of the attorney may
have been honest.[35] (emphasis ours)
The representation by a lawyer of conflicting interests, in the absence of the
written consent of all parties concerned after a full disclosure of the facts,
constitutes professional misconduct which subjects the lawyer to disciplinary
action.[36]
client any knowledge acquired through their connection.[32] (emphasis ours)

And, in Civil Case No. 99-10660, a collection case against PRC, Atty.
Alminaza of PRC was alarmed by the appearance of respondent at the table
in court for AAQSCs counsel.[30]

Canon 15 of the Code of Professional Responsibility (CPR) highlights the

need for candor, fairness and loyalty in all the dealings of lawyers with their
clients. Rule 15.03 of the CPR aptly provides:

Rule 15.03 A lawyer shall not represent conflicting interests except by written
consent of all concerned given after a full disclosure of the facts.

It is only upon strict compliance with the condition of full disclosure of facts
that a lawyer may appear against his client; otherwise, his representation of
conflicting interests is reprehensible.[31] Conflict of interest may be
determined in this manner:
There is representation of conflicting interests if the acceptance of the new
retainer will require the attorney to do anything which will injuriously
affect his first client in any matter in which he represents him and also
whether he will be called upon in his new relation, to use against his first
LEGAL ETHICS PINEDAPCGRNMAN
Even respondents alleged effort to settle the existing controversy among
the family members[37] was improper because the written consent of all
concerned was still required.[38] A lawyer who acts as such in settling a
dispute cannot represent any of the parties to it.[39]

WITHDRAWAL AS COUNSEL IN CIVIL CASE NO. 97-9865

The next bone of contention was the propriety of respondents

withdrawal as counsel for Lumot A. Jalandoni in Civil Case No. 97-9865
to fulfill an alleged retainership agreement with the spouses Jalbuena in
a suit by PRC, through Cristina Lim, against the Jalbuenas and Delfin
(BC I.S. No. 99-2192). In his December 1, 2000 comment, respondent
stated that it was he who was not notified of the hiring of Atty. Alminaza
as the new counsel in that case and that he withdrew from the case with
the knowledge of Lumot A. Jalandoni and with leave of court.

The rule on termination of attorney-client relations may be summarized

as follows:

The relation of attorney and client may be terminated by the client, by

the lawyer or by the court, or by reason of circumstances beyond the

Page 216
control of the client or the lawyer.The termination of the attorney-client
relationship entails certain duties on the part of the client and his
lawyer.[40]
LEGAL ETHICS
Accordingly, it has been held that the right of an attorney to withdraw or
terminate the relation other than for sufficient cause is considerably
restricted. Canon 22 of the CPR reads:
Canon 22 A lawyer shall withdraw his services only for good cause and upon
notice appropriate in the circumstances.
An attorney may only retire from a case either by written consent of his client
or by permission of the court after due notice and hearing, in which event the
attorney should see to it that the name of the new lawyer is recorded in the
case.[41] A lawyer who desires to retire from an action without the written
consent of his client must file a petition for withdrawal in court.[42] He must
serve a copy of his petition upon his client and the adverse party at least
three days before the date set for hearing, otherwise the court may treat the
application as a mere scrap of paper.[43]Respondent made no such move. He
admitted that he withdrew as counsel on April 26, 1999, which withdrawal
was supposedly approved by the court on April 28, 1999. The conformity of
Mrs. Jalandoni was only presumed by Atty. Villarosa because of the
appearance of Atty. Alminaza in court, supposedly in his place.
[A client] may discharge his attorney at any time with or without cause and
thereafter employ another lawyer who may then enter his appearance. Thus,
it has been held that a client is free to change his counsel in a pending case
and thereafter retain another lawyer to represent him. That manner of
changing a lawyer does not need the consent of the lawyer to be dismissed.
Nor does it require approval of the court.[44]
The appearance of Atty. Alminaza in fact was not even to substitute for
respondent but to act as additional counsel.[45] Mrs. Jalandonis conformity to
having an additional lawyer did not necessarily mean conformity to
respondents desire to withdraw as counsel. Respondents speculations on
the professional relationship of Atty. Alminaza and Mrs. Jalandoni find no
support in the records of this case.
Respondent should not have presumed that his motion to withdraw as
counsel[46] would be granted by the court. Yet, he stopped appearing as Mrs.
Jalandonis counsel beginning April 28, 1999, the first hearing date. No order
from the court was shown to have actually granted his motion for withdrawal.
Only an order dated June 4, 1999 had a semblance of granting his motion:
When this case was called for hearing Atty. Lorenzo Alminaza appeared for
the defendants considering that Atty. Nicanor Villarosa has already
withdrawn his appearance in this case which the Court considered it to
be approved as it bears the conformity of the defendants.[47] (emphasis ours)
That Mrs. Jalandoni continued with Atty. Alminazas professional engagement
on her behalf despite respondents withdrawal did not absolve the latter of the
consequences of his unprofessional conduct, specially in view of the
conflicting interests already discussed. Respondent himself stated that his
withdrawal from Civil Case No. 97-9865 was due to the possibility of a conflict
of interest.[48]
Be that as it may, the records do not support the claim that respondent
improperly collected P5,000 from petitioner. Undoubtedly, respondent
provided professional services to Lumot A. Jalandoni. Furthermore, there is
no evidence that the documents belonging to Mrs. Jalandoni were
deliberately withheld. The right of an attorney to retain possession of a clients
documents, money or other property which may have lawfully come into his
possession in his professional capacity, until his lawful fees and
disbursements have been fully paid, is well-established.[49]
PINEDAPCGRNMAN
Finally, we express our utter dismay with Lims apparent use of his wifes
community tax certificate number in his complaint for disbarment against
respondent.[50] This is not, however, the forum to discuss this lapse.
WHEREFORE, in view of the foregoing, respondent Atty. Nicanor V. Villarosa
is hereby found GUILTY of violating Canon 15 and Canon 22 of the Code of
Professional Responsibility and is SUSPENDED from the practice of law for
one (1) year, effective upon receipt of this decision, with aSTERN WARNING
that a repetition of the same or similar acts will be dealt with more severely.
Let a copy of this resolution be entered into the records of respondent and
furnished to the Office of the Clerk of Court, the Office of the Bar Confidant,
the Integrated Bar of the Philippines, and all courts in the Philippines, for their
information and guidance.
SO ORDERED.
[A.C. No. 5804. July 1, 2003]
BENEDICTO HORNILLA and ATTY. FEDERICO D.
RICAFORT, complainants, vs. ATTY. ERNESTO S.
SALUNAT, respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
On November 21, 1997, Benedicto Hornilla and Federico D. Ricafort filed an
administrative complaint[1] with the Integrated Bar of the Philippines (IBP)
Commission on Bar Discipline, against respondent Atty. Ernesto S. Salunat
for illegal and unethical practice and conflict of interest. They alleged that
respondent is a member of the ASSA Law and Associates, which was the
retained counsel of the Philippine Public School Teachers Association
(PPSTA). Respondents brother, Aurelio S. Salunat, was a member of the
PPSTA Board which approved respondents engagement as retained counsel
of PPSTA.
Complainants, who are members of the PPSTA, filed an intra-corporate case
against its members of the Board of Directors for the terms 1992-1995 and
1995-1997 before the Securities and Exchange Commission, which was
docketed as SEC Case No. 05-97-5657, and a complaint before the Office of
the Ombudsman, docketed as OMB Case No. 0-97-0695, for unlawful
spending and the undervalued sale of real property of the PPSTA.
Respondent entered his appearance as counsel for the PPSTA Board
members in the said cases.Complainants contend that respondent was guilty
of conflict of interest because he was engaged by the PPSTA, of which
complainants were members, and was being paid out of its corporate funds
where complainants have contributed. Despite being told by PPSTA
members of the said conflict of interest, respondent refused to withdraw his
appearance in the said cases.
Moreover, complainants aver that respondent violated Rule 15.06[2] of the
Code of Professional Responsibility when he appeared at the meeting of the
PPSTA Board and assured its members that he will win the PPSTA cases.
In his Answer,[3] respondent stressed that he entered his appearance as
counsel for the PPSTA Board Members for and in behalf of the ASSA Law
and Associates. As a partner in the said law firm, he only filed a Manifestation
of Extreme Urgency in OMB Case No. 0-97-0695.[4] On the other hand, SEC
Case No. 05-97-5657 was handled by another partner of the firm, Atty.
Agustin V. Agustin. Respondent claims that it was complainant Atty. Ricafort
who instigated, orchestrated and indiscriminately filed the said cases against
members of the PPSTA and its Board.
Respondent pointed out that his relationship to Aurelio S. Salunat was
immaterial; and that when he entered into the retainer contract with the
PPSTA Board, he did so, not in his individual capacity, but in representation
of the ASSA Law Firm. He denied that he ensured the victory of the PPSTA
Board in the case he was handling. He merely assured the Board that the
truth will come out and that the case before the Ombudsman will be
dismissed for lack of jurisdiction, considering that respondents therein are
not public officials, but private employees.Anent the SEC case, respondent
alleged that the same was being handled by the law firm of Atty. Eduardo de
Mesa, and not ASSA.
By way of Special and Affirmative Defenses, respondent averred that
Page 217
complainant Atty. Ricafort was himself guilty of gross violation of his oath of
office amounting to gross misconduct, malpractice and unethical conduct for
filing trumped-up charges against him and Atty. De Mesa. Thus, he prayed
LEGAL ETHICS
that the complaint against him be dismissed and, instead, complainant
Ricafort be disciplined or disbarred.
The complainant was docketed as CBD Case No. 97-531 and referred to the
IBP Commission on Bar Discipline. After investigation, Commissioner Lydia
A. Navarro recommended that respondent be suspended from the practice
of law for six (6) months. The Board of Governors thereafter adopted
Resolution No. XV-3003-230 dated June 29, 2002, approving the report and
recommendation of the Investigating Commissioner.
Respondent filed with this Court a Motion for Reconsideration of the above
Resolution of the IBP Board of Governors.
The pertinent rule of the Code of Professional Responsibility provides:
RULE 15.03. A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of the facts.
There is conflict of interest when a lawyer represents inconsistent interests
of two or more opposing parties. The test is whether or not in behalf of one
client, it is the lawyers duty to fight for an issue or claim, but it is his duty to
oppose it for the other client. In brief, if he argues for one client, this argument
will be opposed by him when he argues for the other client.[5]This rule covers
not only cases in which confidential communications have been confided, but
also those in which no confidence has been bestowed or will be used.[6] Also,
there is conflict of interests if the acceptance of the new retainer will require
the attorney to perform an act which will injuriously affect his first client in any
matter in which he represents him and also whether he will be called upon in
his new relation to use against his first client any knowledge acquired through
their connection.[7] Another test of the inconsistency of interests is whether
the acceptance of a new relation will prevent an attorney from the full
discharge of his duty of undivided fidelity and loyalty to his client or invite
suspicion of unfaithfulness or double dealing in the performance thereof.[8]
In this jurisdiction, a corporations board of directors is understood to be that
body which (1) exercises all powers provided for under the Corporation Code;
(2) conducts all business of the corporation; and (3) controls and holds all
property of the corporation.[9] Its members have been characterized as
trustees or directors clothed with a fiduciary character.[10] It is clearly separate
and distinct from the corporate entity itself.
Where corporate directors have committed a breach of trust either by their
frauds, ultra vires acts, or negligence, and the corporation is unable or
unwilling to institute suit to remedy the wrong, a stockholder may sue on
behalf of himself and other stockholders and for the benefit of the corporation,
to bring about a redress of the wrong done directly to the corporation and
indirectly to the stockholders.[11] This is what is known as a derivative suit,
and settled is the doctrine that in a derivative suit, the corporation is the real
party in interest while the stockholder filing suit for the corporations behalf is
only nominal party. The corporation should be included as a party in the
suit.[12]
Having thus laid a suitable foundation of the basic legal principles pertaining
to derivative suits, we come now to the threshold question: can a lawyer
engaged by a corporation defend members of the board of the
same corporation in a derivative suit? On this issue, the following disquisition
is enlightening:
The possibility for conflict of interest here is universally recognized. Although
early cases found joint representation permissible where no conflict of
interest was obvious, the emerging rule is against dual representation in all
derivative actions. Outside counsel must thus be retained to represent one
of the defendants. The cases and ethics opinions differ on whether there
must be separate representation from the outset or merely from the time the
corporation seeks to take an active role. Furthermore, this restriction on dual
representation should not be waivable by consent in the usual way; the
corporation should be presumptively incapable of giving valid consent.[13]
(underscoring ours)
In other jurisdictions, the prevailing rule is that a situation wherein a lawyer
represents both the corporation and its assailed directors unavoidably gives
rise to a conflict of interest. The interest of the corporate client is paramount
and should not be influenced by any interest of the individual corporate
officials.[14] The rulings in these cases have persuasive effect upon us.After
due deliberation on the wisdom of this doctrine, we are sufficiently convinced
that a lawyer engaged as counsel for a corporation cannot represent
members of the same corporations board of directors in a derivative suit
brought against them. To do so would be tantamount to representing
conflicting interests, which is prohibited by the Code of Professional
Responsibility.
PINEDAPCGRNMAN
In the case at bar, the records show that SEC Case No. 05-97-5657, entitled
Philippine Public School Teachers Assn., Inc., et al. v. 1992-1995 Board of
Directors of the Philippine Public School Teachers Assn. (PPSTA), et al., was
filed by the PPSTA against its own Board of Directors. Respondent admits that
the ASSA Law Firm, of which he is the Managing Partner, was the retained
counsel of PPSTA. Yet, he appeared as counsel of record for the respondent
Board of Directors in the said case. Clearly, respondent was guilty of conflict
of interest when he represented the parties against whom his other client, the
PPSTA, filed suit.
In his Answer, respondent argues that he only represented the Board of
Directors in OMB Case No. 0-97-0695. In the said case, he filed a
Manifestation of Extreme Urgency wherein he prayed for the dismissal of the
complaint against his clients, the individual Board Members. By filing the said
pleading, he necessarily entered his appearance therein.[15] Again, this
constituted conflict of interests, considering that the complaint in the
Ombudsman, albeit in the name of the individual members of the PPSTA,
was brought in behalf of and to protect the interest of the corporation.
Therefore, respondent is guilty of representing conflicting interests.
Considering however, that this is his first offense, we find the penalty of
suspension, recommended in IBP Resolution No. XV-2002-230 dated June
29, 2002, to be too harsh. Instead, we resolve to admonish respondent to
observe a higher degree of fidelity in the practice of his profession.
ACCORDINGLY, respondent Atty. Ernesto Salunat is found GUILTY of
representing conflicting interests and is ADMONISHED to observe a higher
degree of fidelity in the practice of his profession. He is further WARNED that
a repetition of the same or similar acts will be dealt with more severely.
SO ORDERED.
LETICIA GONZALES, A.C. No. 6836
Complainant,
Present:
PANGANIBAN, C.J., Chairman,
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, and
CHICO-NAZARIO, JJ.
Promulgated:
ATTY. MARCELINO
CABUCANA,
Respondent. January 23, 2006
x------------------------------------------------------
-----x
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Before this Court is a complaint filed by Leticia Gonzales (Gonzales) praying
that Atty. Marcelino Cabucana, (respondent) be disbarred for representing
conflicting interests.
On January 8, 2004, Gonzales filed a petition before the Integrated Bar of
the Philippines (IBP) alleging that: she was the complainant in a case for sum
of money and damages filed before the Municipal Trial Court in Cities
(MTCC) of Santiago City, docketed as Civil Case No. 1-567 where she was
represented by the law firm CABUCANA, CABUCANA, DE GUZMAN AND
CABUCANA LAW OFFICE, with Atty. Edmar Cabucana handling the case
and herein respondent as an associate/partner; on February 26, 2001, a
decision was rendered in the civil case ordering the losing party to pay
Gonzales the amount of P17,310.00 with interest and P6,000.00 as attorneys
Page 218
fees; Sheriff Romeo Gatcheco, failed to fully implement the writ of execution
issued in connection with the judgment which prompted Gonzales to file a
complaint against the said sheriff with this Court; in September 2003,
LEGAL ETHICS
Sheriff Gatcheco and his wife went to the house of Gonzales; they harassed
Gonzales and asked her to execute an affidavit of desistance regarding her
complaint before this Court; Gonzales thereafter filed against the Gatchecos
criminal cases for trespass, grave threats, grave oral defamation, simple
coercion and unjust vexation; notwithstanding the pendency of Civil Case No.
1-567, where respondents law firm was still representing Gonzales, herein
respondent represented the Gatchecos in the cases filed by Gonzales
against the said spouses; respondent should be disbarred from the practice
of law since respondents acceptance of the cases of the Gatchecos violates
the lawyer-client relationship between complainant and respondents law firm
and renders respondent liable under the Code of Professional Responsibility
(CPR) particularly Rules 10.01,[1] 13.01,[2] 15.02,[3] 15.03,[4] 21.01[5] and
21.02.[6]
On January 9, 2004, the IBP-Commission on Bar Discipline ordered Atty.
Marcelino Cabucana, Jr. to submit his Answer to the complaint.[7]
In his Answer, respondent averred: He never appeared and represented
complainant in Civil Case No. 1-567 since it was his brother, Atty. Edmar
Cabucana who appeared and represented Gonzales in said case. He
admitted that he is representing Sheriff Gatcheco and his wife in the cases
filed against them but claimed that his appearance is pro bonoand that the
spouses pleaded with him as no other counsel was willing to take their case.
He entered his appearance in good faith and opted to represent the spouses
rather than leave them defenseless. When the Gatchecos asked for his
assistance, the spouses said that the cases filed against them by Gonzales
were merely instigated by a high ranking official who wanted to get even with
them for their refusal to testify in favor of the said official in another case. At
first, respondent declined to serve as counsel of the spouses as he too did
not want to incur the ire of the high-ranking official, but after realizing that he
would be abdicating a sworn duty to delay no man for money or malice,
respondent entered his appearance as defense counsel of the spouses free
of any charge. Not long after, the present complaint was crafted against
respondent which shows that respondent is now the subject of a demolition
job. The civil case filed by Gonzales where respondents brother served as
counsel is different and distinct from the criminal cases filed by complainant
against the Gatcheco spouses, thus, he did not violate any canon on legal
ethics. [8]
Gonzales filed a Reply contending that the civil case handled by respondents
brother is closely connected with the cases of the Gatchecos which the
respondent is handling; that the claim of respondent that he is handling the
cases of the spouses pro bono is not true since he has his own agenda in
offering his services to the spouses; and that the allegation that she is filing
the cases against the spouses because she is being used by a powerful
person is not true since she filed the said cases out of her own free will.[9]
The Commission on Bar Discipline of the IBP sent to the parties a Notice of
Mandatory Conference dated March 1, 2004.[10] On the scheduled
conference, only a representative of complainant appeared.[11]
Commissioner Demaree Raval of the IBP-CBD then directed both parties to
file their respective verified position papers.[12]
Complainant filed a Memorandum reiterating her earlier assertions and
added that respondent prepared and notarized counter-affidavits of the
Gatcheco spouses; that the high-ranking official referred to by respondent is
Judge Ruben Plata and the accusations of respondent against the said judge
is an attack against a brother in the profession which is a violation of the
CPR; and that respondent continues to use the name of De Guzman in their
law firm despite the fact that said partner has already been appointed as
Assistant Prosecutor of Santiago City, again in violation of the CPR.[13]
Respondent filed his Position Paper restating his allegations in his Answer.[14]
On August 23, 2004, Commissioner Wilfredo E.J.E. Reyes issued an Order
notifying both parties to appear before his office on October 28, 2004 for a
clarificatory question regarding said case.[15] On the said date, only
respondent appeared[16] presenting a sworn affidavit executed by Gonzales
withdrawing her complaint against respondent. It reads:
SINUMPAANG SALAYSAY
PINEDAPCGRNMAN
TUNGKOL SA PAG-UURONG NG DEMANDA
Ako, si LETICIA GONZALES, nasa tamang edad, Pilipino, may asawa, at
nakatira sa Barangay Dubinan East, Santiago City, makaraang manumpa
ayon sa batas ay nagsasabing:
Ako ang nagdedemanda o petitioner sa CBD Case No. 04-1186 na may
pamagat na Leticia Gonzales versus Atty. Marcelino C. Cabucana, Jr. na
kasalukuyang nahaharap sa Commission on Bar Discipline ng Integrated Bar
of the Philippines
Ang pagkakahain ng naturang demanda ay nag-ugat sa di-
pagkakaintindihan na namamagitan sa akin at nina Mr. and Mrs. Romeo and
Anita Gatcheco.
Dahil sa aking galit sa naturang mag-asawa, idinawit ko si Atty. Marcelino C.
Cabucana, Jr. sa sigalot na namamagitan sa akin at sa mag- asawang
Gatcheco, gayong nalalaman ko na si Atty. Marcelino C. Cabucana ay
walang nalalaman sa naturang di pagkakaintindihan.
Makaraang pag-isipang mabuti ang paghain ko ng demanda kontra kay Atty.
Marcelino C. Cabucana, Jr., nakumbinsi ako na ang pagdedemanda ko kay
Atty. Marcelino C. Cabucana, Jr. ay isang malaking pagkakamali dahil siya
ay walang kinalalaman (sic) sa di pagkakaintindihan naming(sic) ng mag-
asawang Gatcheco.
Si Atty. Marcelino C. Cabucana, Jr. ay di ko rin naging abogado sa Civil Case
No. 1-567 (MTCC Br. I Santiago City) na inihain ko kontra kay Eduardo
Mangano.
Nais kong ituwid ang lahat kung kayat aking iniuurong ang naturang kasong
inihain ko kontra kay Atty. Marcelino C. Cabucana, Jr. at dahil dito ay hindi
na ako interesado pang ituloy and naturang kaso, at aking hinihiling sa
kinauukulan na dismisin na ang naturang kaso.
Ginawa ko ang sinumpaang salaysay na ito upang patotohanan sa lahat ng
nakasaad dito.[17]
Commissioner Reyes issued an Order dated October 28, 2004 requiring
Gonzales to appear before him on November 25, 2004, to affirm her
statements and to be subject to clarificatory questioning.[18] However, none
of the parties appeared.[19] On February 17, 2005, only respondent was
present. Commissioner Reyes then considered the case as submitted for
resolution.[20]
On February 24, 2005, Commissioner Reyes submitted his Report and
Recommendation, portions of which are quoted hereunder:
The Undersigned Commissioner believes that the respondent made a
mistake in the acceptance of the administrative case of Romeo Gatcheco,
however, the Commission (sic) believes that there was no malice and bad
faith in the said acceptance and this can be shown by the move of the
complainant to unilaterally withdraw the case which she filed against Atty.
Marcelino C. Cabucana, Jr. However, Atty. Cabucana is reminded to be more
careful in the acceptance of cases as conflict of interests might arise.
It is respectfully recommended that Atty. Marcelino C. Cabucana, Jr. (be)
sternly warned and reprimanded andadvised to be more circumspect and
careful in accepting cases which might result in conflict of interests.[21]
On June 25, 2005, a Resolution was passed by the Board of Governors of
the IBP, to wit:
RESOLUTION NO. XVI-2005-153
CBD CASE NO. 03-1186
Leticia Gonzales vs.
Atty. Marcelino Cabucana, Jr.
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Page 219
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 that respondent
LEGAL ETHICS
made (a) mistake in the acceptance of the administrative case of Romeo
Gatcheco, Atty. Marcelino Cabucana, Jr. is hereby WARNED and
REPRIMANDED and advised to be more circumspect and careful in
accepting cases which might result in conflict of interests.[22]
Before going to the merits, let it be clarified that contrary to the report of
Commissioner Reyes, respondent did not only represent the Gatcheco
spouses in the administrative case filed by Gonzales against them. As
respondent himself narrated in his Position Paper, he likewise acted as their
counsel in the criminal cases filed by Gonzales against them.[23]
With that settled, we find respondent guilty of violating Rule 15.03 of Canon
15 of the Code of Professional Responsibility, to wit:
Rule 15.03 A lawyer shall not represent conflicting interest except by written
consent of all concerned given after a full disclosure of the facts.
It is well-settled that a lawyer is barred from representing conflicting interests
except by written consent of all concerned given after a full disclosure of the
facts.[24] Such prohibition is founded on principles of public policy and good
taste as the nature of the lawyer-client relations is one of trust and confidence
of the highest degree.[25] Lawyers are expected not only to keep inviolate the
clients confidence, but also to avoid the appearance of treachery and double-
dealing for only then can litigants be encouraged to entrust their secrets to
their lawyers, which is of paramount importance in the administration of
justice.[26]
One of the tests of inconsistency of interests is whether the acceptance of a
new relation would prevent the full discharge of the lawyers duty of undivided
fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-
dealing in the performance of that duty.[27]
As we expounded in the recent case of Quiambao vs. Bamba,[28]
The proscription against representation of conflicting interests applies to a
situation where the opposing parties are present clients in the same action
or in an unrelated action. It is of no moment that the lawyer would not be
called upon to contend for one client that which the lawyer has to oppose for
the other client, or that there would be no occasion to use the confidential
information acquired from one to the disadvantage of the other as the two
actions are wholly unrelated. It is enough that the opposing parties in one
case, one of whom would lose the suit, are present clients and the nature or
conditions of the lawyers respective retainers with each of them would affect
the performance of the duty of undivided fidelity to both clients.[29]
The claim of respondent that there is no conflict of interests in this case, as
the civil case handled by their law firm where Gonzales is the complainant
and the criminal cases filed by Gonzales against the Gatcheco spouses are
not related, has no merit. The representation of opposing clients in said
cases, though unrelated, constitutes conflict of interests or, at the very least,
invites suspicion of double-dealing which this Court cannot allow.[30]
Respondent further argued that it was his brother who represented Gonzales
in the civil case and not him, thus, there could be no conflict of interests. We
do not agree. As respondent admitted, it was their law firm which represented
Gonzales in the civil case. Such being the case, the rule against representing
conflicting interests applies.
As we explained in the case of Hilado vs. David:[31]
[W]e can not sanction his taking up the cause of the adversary of the party
who had sought and obtained legal advice from his firm; this, not necessarily
to prevent any injustice to the plaintiff but to keep above reproach the honor
and integrity of the courts and of the bar. Without condemning the
respondents conduct as dishonest, corrupt, or fraudulent, we do believe that
upon the admitted facts it is highly inexpedient. It had the tendency to bring
the profession, of which he is a distinguished member, into public disrepute
and suspicion and undermine the integrity of justice.[32]
The claim of respondent that he acted in good faith and with honest intention
will also not exculpate him as such claim does not render the prohibition
inoperative.[33]
In the same manner, his claim that he could not turn down the spouses as
no other lawyer is willing to take their case cannot prosper as it is settled that
PINEDAPCGRNMAN
while there may be instances where lawyers cannot decline representation
they cannot be made to labor under conflict of interest between a present
client and a prospective one.[34] Granting also that there really was no other
lawyer who could handle the spouses case other than him, still he should
have observed the requirements laid down by the rules by conferring with the
prospective client to ascertain as soon as practicable whether the matter
would involve a conflict with another client then seek the written consent of
all concerned after a full disclosure of the facts.[35] These respondent failed to
do thus exposing himself to the charge of double-dealing.
We note the affidavit of desistance filed by Gonzales. However, we are not
bound by such desistance as the present case involves public interest.[36]
Indeed, the Courts exercise of its power to take cognizance of administrative
cases against lawyers is not for the purpose of enforcing civil remedies
between parties, but to protect the court and the public against an attorney
guilty of unworthy practices in his profession.[37]
In similar cases where the respondent was found guilty of representing
conflicting interests a penalty ranging from one to three years suspension
was imposed.[38]
We shall consider however as mitigating circumstances the fact that he is
representing the Gatcheco spouses pro bono and that it was his firm and not
respondent personally, which handled the civil case of Gonzales. As
recounted by complainant herself, Atty. Edmar Cabucana signed the civil
case of complainant by stating first the name of the law firm CABUCANA,
CABUCANA, DE GUZMAN AND CABUCANA LAW OFFICE, under which,
his name and signature appear; while herein respondent signed the
pleadings for the Gatcheco spouses only with his name,[39] without any
mention of the law firm. We also note the observation of the IBP
Commissioner Reyes that there was no malice and bad faith in respondents
acceptance of the Gatchecos cases as shown by the move of complainant to
withdraw the case.
Thus, for violation of Rule 15.03, Canon 15 of the Code of Professional
Responsibility and taking into consideration the aforementioned mitigating
circumstances, we impose the penalty of fine of P2,000.00.
WHEREFORE, Resolution No. XVI-2005-153 of the Integrated Bar of the
Philippines is APPROVED with MODIFICATION that respondent Atty.
Marcelino Cabucana, Jr. isFINED the amount of Two Thousand Pesos
(P2,000.00) with a STERN WARNING that a commission of the same or
similar act in the future shall be dealt with more severely.
SO ORDERED.
[A.C. No. 5580. June 15, 2005]
SAN JOSE HOMEOWNERS ASSOCIATION INC., as represented by
REBECCA V. LABRADOR, complainant, vs. ATTY. ROBERTO B.
ROMANILLOS,respondent.
DECISION
PER CURIAM:
This is a Petition[1] for disbarment against Atty. Roberto B. Romanillos for
allegedly representing conflicting interests and for using the title Judge
despite having been found guilty of grave and serious misconduct in Zarate
v. Judge Romanillos.[2]
The facts are as follows:
In 1985, respondent represented San Jose Homeowners Association, Inc.
(SJHAI) before the Human Settlements Regulation Commission (HSRC) in a
case[3] against Durano and Corp., Inc. (DCI) for violation of the Subdivision
and Condominium Buyers Protection Act (P.D. No. 957). SJHAI alleged that
Lot No. 224 was designated as a school site in the subdivision plan that DCI
submitted to the Bureau of Lands in 1961 but was sold by DCI to spouses
Ramon and Beatriz Durano without disclosing it as a school site.
While still the counsel for SJHAI, respondent represented Myrna and Antonio
Montealegre in requesting for SJHAIs conformity to construct a school
building on Lot No. 224 to be purchased from Durano.
Page 220
When the request was denied, respondent applied for clearance before the
Housing and Land Use Regulatory Board (HLURB) in behalf of Montealegre.
LEGAL ETHICS
Petitioners Board of Directors terminated respondents services as counsel
and engaged another lawyer to represent the association.
Respondent also acted as counsel for Lydia Durano-Rodriguez who
substituted for DCI in Civil Case No. 18014 entitled San Jose Homeowners,
Inc. v. Durano and Corp., Inc. filed before the Regional Trial Court of Makati
City, Branch 134. Thus, SJHAI filed a disbarment case against respondent
for representing conflicting interests, docketed as Administrative Case No.
4783.
In her Report[4] dated August 3, 1998, Investigating Commissioner Lydia A.
Navarro of the Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP) made the following findings:
Respondent failed to observe candor and fairness in dealing with his clients,
knowing fully well that the Montealegre case was adverse to the Complainant
wherein he had previously been not only an active board member but its
corporate secretary having access to all its documents confidential or
otherwise and its counsel in handling the implementation of the writ of
execution against its developer and owner, Durano and Co. Inc.
Moreso, when Respondent acted as counsel for the substituted defendant
Durano and Co. Inc., Lydia Durano-Rodriguez; the conflict of interest
between the latter and the Complainant became so revealing and yet
Respondent proceeded to represent the former.
For his defense of good faith in doing so; inasmuch as the same wasnt
controverted by the Complainant which was his first offense; Respondent
must be given the benefit of the doubt to rectify his error subject to the
condition that should he commit the same in the future; severe penalty will
be imposed upon him.[5]
The Investigating Commissioner recommended dismissal of the complaint
with the admonition that respondent should observe extra care and diligence
in the practice of his profession to uphold its dignity and integrity beyond
reproach.
The IBP Board of Governors adopted and approved the report and
recommendation of the Investigating Commissioner, which we noted in a
resolution dated March 8, 1999.
Notwithstanding the admonition, respondent continued representing Lydia
Durano-Rodriguez before the Court of Appeals[6] and this Court[7] and even
moved for the execution of the decision.
Thus, a second disbarment case was filed against respondent for violation of
the March 8, 1999 Resolution in A.C. No. 4783 and for his alleged deceitful
conduct in using the title Judge although he was found guilty of grave and
serious misconduct.
Respondent used the title Judge in his office letterhead, correspondences
and billboards which was erected in several areas within the San Jose
Subdivision sometime in October 2001.
In his Comment and Explanation,[8] respondent claimed that he continued to
represent Lydia Durano-Rodriguez against petitioner despite the March 8,
1999 Resolution because it was still pending when the second disbarment
case was filed. He maintained that the instant petition is a rehash of the first
disbarment case from which he was exonerated. Concerning the title Judge,
respondent stated that since the filing of the instant petition he had ceased
to attach the title to his name.
On July 7, 2003, the matter was referred to the IBP for investigation, report
and recommendation.[9]
Investigating Commissioner Leland R. Villadolid, Jr. reported that respondent
did not violate the admonition because it referred to future cases only and
not to cases subject of A.C. No. 4783. Besides, petitioner never questioned
the propriety of respondents continued representation of Lydia Durano-
Rodriguez on appeal until the case was terminated.
The Investigating Commissioner, however, believed that respondent was
deceitful when he used the title Judge, thus creating a false impression that
he was an incumbent.
The Investigating Commissioner recommended thus:
In view of the foregoing considerations, this Commissioner respectfully
recommends the following penalty range to be deliberated upon by the Board
for imposition on Respondent: minimum penalty of reprimand to a maximum
penalty of four (4) months suspension. It is further recommended that in
addition to the penalty to be imposed, a stern warning be given to
Respondent in that should he violate his undertaking/promise not to handle
any case in the future where the Complainant would be the adverse party
and/or should he again use the title of Judge which would create an
PINEDAPCGRNMAN
impression that he is still connected to the judiciary, a more severe penalty
shall be imposed on him by the Commission.
RESPECTFULLY SUBMITTED.
The IBP Board of Governors approved with modification the report and
recommendation of the Investigating Commissioner, thus:
RESOLVED to 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 violation of Rule 1.01 and Rule 3.01 of the Code of Professional
Responsibility, Atty. Roberto Romanillos is hereby SUSPENDED from the
practice of law for six (6) months with a WARNING that should he violate his
undertaking/promise a more severe penalty shall be imposed against him.
Undoubtedly, respondent represented the inconsistent interests of SJHAI,
DCI as substituted by Lydia Durano-Rodriguez and the Montealegres.
Respondent was admonished yet he continued to represent Durano-
Rodriguez against SJHAI.
It is inconsequential that petitioner never questioned the propriety of
respondents continued representation of Lydia Durano-Rodriguez. The lack
of opposition does not mean tacit consent. As long as the lawyer represents
inconsistent interests of two (2) or more opposing clients, he is guilty of
violating his oath. Rule 15.03 of the Code of Professional Responsibility
specifically mandates that a lawyer shall not represent conflicting interests
except by written consent of all concerned given after a full disclosure.
Incidentally, it is also misleading for respondent to insist that he was
exonerated in A.C. No. 4783.
We agree with the IBP that respondents continued use of the title Judge
violated Rules 1.01 and 3.01 of the Code of Professional Responsibility
prohibiting a lawyer from engaging in deceitful conduct and from using any
misleading statement or claim regarding qualifications or legal services. The
quasi-judicial notice he posted in the billboards referring to himself as a judge
is deceiving. It was a clear attempt to mislead the public into believing that
the order was issued in his capacity as a judge when he was dishonorably
stripped of the privilege.
Respondent did not honorably retire from the judiciary. He resigned from
being a judge during the pendency of Zarate v. Judge Romanillos, where he
was eventually found guilty of grave and serious misconduct and would have
been dismissed from the service had he not resigned.
In that case, respondent was found guilty of illegal solicitation and receipt of
P10,000.00 from a party litigant. We ruled thus:
Considering the foregoing, respondent Judge Roberto B. Romanillos is
hereby found guilty of grave and serious misconduct affecting his integrity
and honesty. He deserves the supreme penalty of dismissal. However,
respondent, in an obvious attempt to escape punishment for his misdeeds,
tendered his resignation during the pendency of this case. Consequently, we
are now precluded from dismissing respondent from the service.
Nevertheless, the ruling in People v. Valenzuela (135 SCRA 712 [1985]),
wherein the respondent judge likewise resigned before the case could be
resolved, finds application in this case. Therein it was held that the rule that
the resignation or retirement of a respondent judge in an administrative case
renders the case moot and academic, is not a hard and fast rule.
ACCORDINGLY, in view of our aforestated finding that respondent Judge
Romanillos is guilty of grave and serious misconduct which would have
warranted his dismissal from the service had he not resigned during the
pendency of this case, and it appearing that respondent has yet to apply for
his retirement benefits and other privileges if any; the Court, consistent with
the penalties imposed in Valenzuela (supra.), hereby orders the
FORFEITURE of all leave and retirement benefits and privileges to which
herein respondent Judge Romanillos may be entitled WITH PREJUDICE to
reinstatement and/or reemployment in any branch or instrumentality of
government, including government-owned or controlled agencies or
corporations.
SO ORDERED.[10]
The penalty imposed upon him in said case included forfeiture of all leave
and retirement benefits and privileges to which he may be entitled with
prejudice to reinstatement and/or reemployment in any branch or
Page 221
instrumentality of government, including government-owned or controlled
agencies or corporations. Certainly, the use of the title Judge is one of
suchprivileges.
LEGAL ETHICS PINEDAPCGRNMAN
We have previously declared that the use of titles such as Justice is reserved 3. The disclosure of such identity will provide for the only link
to incumbent and retired members of the Supreme Court, the Court of in order to convict the accused, otherwise, the government
Appeals and the Sandiganbayan and may not be used by any other official has no case.
of the Republic, including those given the rank of Justice.[11] By analogy, the  Requisites of Privileged Communication:
title Judge should be reserved only to judges, incumbent and retired, and not 1. Atty.-client relationship (or a kind of consultancy
to those who were dishonorably discharged from the service. As correctly relationship with a prospective client
pointed out by the Investigating Commissioner, the right to retain and use 2. Communication made by client to lawyer in the course of
said title applies only to the aforementioned members of the bench and no lawyer’s professional employment
other, and certainly not to those who were removed or dismissed from the 3. Communication is intended to be confidential (see Rule 130,
judiciary, such as respondent. Sec. 21(b), Rules of Court)
Membership in the legal profession is a special privilege burdened with  When communication is not privileged:
conditions.[12] It is bestowed upon individuals who are not only learned in law,
1. after pleading has been filed
but also known to possess good moral character.[13] Lawyers should act and
2. communication intended by the client to be sent to a third
comport themselves with honesty and integrity in a manner beyond reproach,
person through his counsel (it loses its confidential
in order to promote the publics faith in the legal profession.[14]
character as soon as it reaches the hands of third person)
To say that lawyers must at all times uphold and respect the law is to state
the obvious, but such statement can never be overemphasized. Considering  Even if the communication is unprivileged, the rule of ethics
that, of all classes and professions, [lawyers are] most sacredly bound to prohibits him from voluntarily revealing or using to his
uphold the law, it is imperative that they live by the law. Accordingly, lawyers benefit or to that of a third person, to the disadvantage of the
who violate their oath and engage in deceitful conduct have no place in the client, the said communication unless the client consents
legal profession.[15] thereto.
Disbarment is the most severe form of disciplinary sanction. We are mindful  This is applicable to students under the Student Practice
that the power to disbar must always be exercised with great caution, for only Law Program
the most imperative reasons,[16] and in clear cases of misconduct affecting
the standing and moral character of the lawyer as an officer of the court and RAMOS VS ATTY IMBANG (SUPRA)
as a member of the bar.[17]
This is not respondents first infraction as an officer of the court and a member MA. LUISA HADJULA, A.C. No. 6711
of the legal profession. He was stripped of his retirement benefits and other Complainant, Present:
privileges in Zarate v. Judge Romanillos.[18] In A.C. No. 4783, he got off lightly
with just an admonition. Considering his previous infractions, respondent PUNO, C.J., Chairperson,
*SANDOVAL-GUTIERREZ,
should have adhered to the tenets of his profession with extra fervor and
vigilance. He did not. On the contrary, he manifested undue disrespect to our CORONA,
mandate and exhibited a propensity to violate the laws. He is thus unfit to - versus - AZCUNA, and
discharge the duties of his office and unworthy of the trust and confidence GARCIA, JJ.
reposed on him as an officer of the court. His disbarment is consequently
warranted. Promulgated:
Section 27, Rule 138 of the Revised Rules of Court provides:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds ATTY. ROCELES F. MADIANDA, July 3, 2007
therefor. A member of the bar may be disbarred or suspended from his office Respondent.
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 x ------------------------------------------------------------------------------------- x
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 DECISION
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 GARCIA, J.:
through paid agents or brokers, constitutes malpractice.
WHEREFORE, respondent Atty. Roberto B. Romanillos is DISBARRED and
his name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of Under consideration is Resolution No. XVI-2004-472 of the Board of
this Decision be entered in respondents record as a member of the Bar, and Governors, Integrated Bar of the Philippines (IBP), relative to the complaint
notice of the same be served on the Integrated Bar of the Philippines, and on for disbarment filed by herein complainant Ma. Luisa Hadjula against
the Office of the Court Administrator for circulation to all courts in the country. respondent Atty. Roceles F. Madianda.
SO ORDERED.
The case started when, in an AFFIDAVIT-COMPLAINT[1] bearing date
Rule 15.02 – A lawyer shall be bound by the rule on privilege September 7, 2002 and filed with the IBP Commission on Bar Discipline,
communication in respect of matters disclosed to him by a prospective complainant charged Atty. Roceles F. Madianda with violation of Article 209[2]
client. of the Revised Penal Code and Canon Nos. 15.02 and 21.02 of the Code of
Professional Responsibility.
Rule on Revealing Client’s Identity
In said affidavit-complaint, complainant alleged that she and respondent
 General Rule: A lawyer may not invoke privilege
used to be friends as they both worked at the Bureau of Fire Protection (BFP)
communication to refuse revealing a client’s identity.
(Regala vs. Sandiganbayan, 262 SCRA 122, September 20, whereat respondent was the Chief Legal Officer while she was the Chief
1996) Nurse of the Medical, Dental and Nursing Services. Complainant claimed
Exceptions: that, sometime in 1998, she approached respondent for some legal advice.
1. When by divulging such identity, it would implicate the client Complainant further alleged that, in the course of their conversation which
to that same controversy for which the lawyer’s services was supposed to be kept confidential, she disclosed personal secrets and
were required. produced copies of a marriage contract, a birth certificate and a baptismal
Page 222

2. It would open client to civil liability certificate, only to be informed later by the respondent that she (respondent)
would refer the matter to a lawyer friend. It was malicious, so complainant
LEGAL ETHICS
states, of respondent to have refused handling her case only after she had
already heard her secrets.
Continuing, complainant averred that her friendship with respondent soured
after her filing, in the later part of 2000, of criminal and disciplinary actions
against the latter. What, per complainants account, precipitated the filing was
when respondent, then a member of the BFP promotion board, demanded a
cellular phone in exchange for the complainants promotion.
According to complainant, respondent, in retaliation to the filing of the
aforesaid actions, filed a COUNTER COMPLAINT[3] with the Ombudsman
charging her (complainant)with violation of Section 3(a) of Republic Act No.
3019,[4] falsification of public documents and immorality, the last two charges
being based on the disclosures complainant earlier made to respondent. And
also on the basis of the same disclosures, complainant further stated, a
disciplinary case was also instituted against her before the Professional
Regulation Commission.
Complainant seeks the suspension and/or disbarment of respondent for the
latters act of disclosing personal secrets and confidential information she
revealed in the course of seeking respondents legal advice.
In an order dated October 2, 2002, the IBP Commission on Bar Discipline
required respondent to file her answer to the complaint.
In her answer, styled as COUNTER-AFFIDAVIT,[5] respondent denied giving
legal advice to the complainant and dismissed any suggestion about the
existence of a lawyer-client relationship between them. Respondent also
stated the observation that the supposed confidential data and sensitive
documents adverted to are in fact matters of common knowledge in the BFP.
The relevant portions of the answer read:
5. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in
paragraph 4 of her AFFIDAVIT-COMPLAINT for reason that she never WAS
MY CLIENT nor we ever had any LAWYER-CLIENT RELATIONSHIP that
ever existed ever since and that never obtained any legal advice from me
regarding her PERSONAL PROBLEMS or PERSONAL SECRETS. She
likewise never delivered to me legal documents much more told me some
confidential information or secrets. That is because I never entertain LEGAL
QUERIES or CONSULTATION regarding PERSONAL MATTERS since I
know as a LAWYER of the Bureau of Fire Protection that I am not allowed to
privately practice law and it might also result to CONFLICT OF INTEREST.
As a matter of fact, whenever there will be PERSONAL MATTERS referred
to me, I just referred them to private law practitioners and never entertain the
same, NOR listen to their stories or examine or accept any document.
9. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in
paragraph 8 of her AFFIDAVIT-COMPLAINT, the truth of the matter is that
her ILLICIT RELATIONSHIP and her illegal and unlawful activities are known
in the Bureau of Fire Protection since she also filed CHILD SUPPORT case
against her lover where she has a child .
Moreover, the alleged DOCUMENTS she purportedly have shown to me
sometime in 1998, are all part of public records .
Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing the instant case just
to get even with me or to force me to settle and withdraw the CASES I FILED
AGAINST HER since she knows that she will certainly be DISMISSED FROM
SERVICE, REMOVED FROM THE PRC ROLL and CRIMINALLY
CONVICTED of her ILLICIT, IMMORAL, ILLEGAL and UNLAWFUL ACTS.
On October 7, 2004, the Investigating Commissioner of the IBP Commission
on Bar Discipline came out with a Report and Recommendation, stating that
the information related by complainant to the respondent is protected under
the attorney-client privilege communication. Prescinding from this postulate,
the Investigating Commissioner found the respondent to have violated legal
ethics when she [revealed] information given to her during a legal
PINEDAPCGRNMAN
consultation, and accordingly recommended that respondent be
reprimanded therefor, thus:
WHEREFORE, premises considered, it is respectfully recommended that
respondent Atty. Roceles Madianda be reprimanded for revealing the secrets
of the complainant.
On November 4, 2004, the IBP Board of Governors issued Resolution No.
XVI-2004-472 reading 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
as Annex A; and , finding the recommendation fully supported by the
evidence on record and the applicable laws and rules, and considering the
actuation of revealing information given to respondent during a legal
consultation, Atty. Roceles Madianda is hereby REPRIMANDED.
We AGREE with the recommendation and the premises holding it together.
As it were, complainant went to respondent, a lawyer who incidentally was
also then a friend, to bare what she considered personal secrets and
sensitive documents for the purpose of obtaining legal advice and
assistance. The moment complainant approached the then receptive
respondent to seek legal advice, a veritable lawyer-client relationship evolved
between the two. Such relationship imposes upon the lawyer certain
restrictions circumscribed by the ethics of the profession. Among the burdens
of the relationship is that which enjoins the lawyer, respondent in this
instance, to keep inviolate confidential information acquired or revealed
during legal consultations. The fact that one is, at the end of the day, not
inclined to handle the clients case is hardly of consequence. Of little moment,
too, is the fact that no formal professional engagement follows the
consultation.Nor will it make any difference that no contract whatsoever was
executed by the parties to memorialize the relationship. As we said in Burbe
v. Magulta,[6] -
A lawyer-client relationship was established from the very first moment
complainant asked respondent for legal advise 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.
It 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 employments is established.
Likewise, a lawyer-client relationship exists notwithstanding the close
personal relationship between the lawyer and the complainant or the non-
payment of the formers fees.
Dean Wigmore lists the essential factors to establish the existence of the
attorney-client privilege communication, viz:
(1) Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal advisor,
(8) except the protection be waived.[7]
Page 223
With the view we take of this case, respondent indeed breached his duty of
preserving the confidence of a client. As found by the IBP Investigating
Commissioner, the documents shown and the information revealed in
LEGAL ETHICS
confidence to the respondent in the course of the legal consultation in
question, were used as bases in the criminal and administrative complaints
lodged against the complainant.
The purpose of the rule of confidentiality is actually to protect the client from
possible breach of confidence as a result of a consultation with a lawyer.
The seriousness of the respondents offense notwithstanding, the Court feels
that there is room for compassion, absent compelling evidence that the
respondent acted with ill-will.Without meaning to condone the error of
respondents ways, what at bottom is before the Court is two former friends
becoming bitter enemies and filing charges and counter-charges against
each other using whatever convenient tools and data were readily available.
Unfortunately, the personal information respondent gathered from her
conversation with complainant became handy in her quest to even the score.
At the end of the day, it appears clear to us that respondent was actuated by
the urge to retaliate without perhaps realizing that, in the process of giving
vent to a negative sentiment, she was violating the rule on confidentiality.
IN VIEW WHEREOF, respondent Atty. Roceles F. Madianda is hereby
REPRIMANDED and admonished to be circumspect in her handling of
information acquired as a result of a lawyer-client relationship. She is also
STERNLY WARNED against a repetition of the same or similar act
complained of.
SO ORDERED.
ETHICAL CONSIDERATIONS IN TAKING A BAD CASE
Rule 15.04 – A lawyer may, with the written consent of all concerned,
act as mediator, conciliator or arbitrator in settling disputes.
ATTY JALANDONI VS VILLAROSA (SUPRA)
Rule 15.05 – A lawyer, when advising his client, shall give a candid and
honest opinion on the merits and probable results of the client’s case,
neither overstating nor understating the prospects of the case.
[A.C. No. 6424. March 4, 2005]
CONSORCIA S. ROLLON, complainant, vs. Atty. CAMILO NARAVAL,
respondent.
DECISION
PANGANIBAN, J.:
Lawyers owe fidelity to their clients. The latters money or other property
coming into the formers possession should be deemed to be held in trust and
should not under any circumstance be commingled with the lawyers own;
much less, used by them. Failure to observe these ethical principles
constitutes professional misconduct and justifies the imposition of disciplinary
sanctions.
The Case and the Facts
Before us is a letter-complaint against Atty. Camilo Naraval, filed by
Consorcia S. Rollon with the Davao City Chapter of the Integrated Bar of the
Philippines (IBP) on November 29, 2001. The Affidavit[1] submitted by
complainant alleges the following:
Sometime in October of 2000, I went to the office of Atty. Camilo F. Naraval
together with my son, Freddie Rollon, to seek his assistance in a case filed
against me before the Municipal Trial Court in Cities Branch 6, Davao City
entitled Rosita Julaton vs. Consorcia S. Rollon for Collection of Sum of
Money with Prayer for Attachment;
After going over the documents I brought with me pertaining to the said case,
Atty. Naraval agreed to be my lawyer and I was required to pay the amount
of Eight Thousand Pesos (Php 8,000.00) for the filing and partial service fee,
which amount was paid by me on October 18, 2000, a copy of the Official
Receipt is hereto attached as Annex A to form part hereof;
As per the instruction of Atty. Naraval, my son, Freddie, returned to his office
the following week to make follow-up on said case. However, I was informed
later by my son Freddie that Atty. Naraval was not able to act on my case
because the latter was so busy. Even after several follow-ups were made
with Atty. Naraval, still there was no action done on our case;
PINEDAPCGRNMAN
Sometime in November 29, 2001, I decided to withdraw the amount I paid to
Atty. Naraval, because of the latters failure to comply with our mutual
agreement that he will assist me in the above-mentioned case;
My son Freddie Rollon went to Atty. Naravals office that same day to inform
Atty. Naraval of our decision to withdraw the amount I have paid and to
retrieve my documents pertaining to said case. Unfortunately, despite our
several follow-ups, Atty. Naraval always said that he cannot return the
documents because they were in their house, and that he could not give us
back the amount we paid him (Php 8,000.00) because he has no money;
Having failed to obtain any response, I decided to refer the matter to Atty.
Ramon Edison Batacan, IBP President of Davao City and to Atty. Pedro
Castillo, the Commissioner on Bar D[i]scipline;
x x x x x x x x x.
In an Order dated March 12, 2002,[2] the IBP Commission on Bar Discipline
(CBD), through Director Victor C. Fernandez, directed respondent to submit
his answer to the Complaint. The same directive was reiterated in the CBDs
May 31, 2002 Order[3] issued through Commissioner Jovy C. Bernabe.
Respondent did not file any answer despite his receipt of the Orders.[4]
Not having heard from him despite adequate notice, the CBD proceeded with
the investigation ex parte. Its Order[5] dated November 11, 2002, issued
through Commissioner Bernabe, required complainant to submit her position
paper within ten days from receipt thereof, after which the case was to be
deemed submitted for resolution.
The CBD received complainants Position Paper[6] on December 10, 2002.
Report of the Investigating Commissioner
In his Report and Recommendation dated October 16, 2003, Investigating
Commissioner Acerey C. Pacheco recommended that respondent be
suspended from the practice of law for one (1) year for neglect of duty and/or
violation of Canons 15 and 18 of the Code of Professional Responsibility.
The Report reads in part as follows:
Canon 18 of the Code of Professional Responsibility requires every lawyer
to serve his client with utmost dedication, competence and diligence. He
must not neglect a legal matter entrusted to him, and his negligence in this
regard renders him administratively liable x x x.
In the case at bar, the deplorable conduct of the respondent in
misrepresenting to the complainant that he will render legal services to her,
and after receiving certain amount from the latter as payment for filing fee
and service fee did nothing in return, has caused unnecessary dishonor to
the bar. By his own conduct the respect of the community to the legal
profession, of which he swore to protect, has been tarnished.
xxxxxxxxx
In fact, complainant claimed to have been shortchanged by the respondent
when he failed to properly appraised her of the status of her case which she
later on found to have become final and executory. Apparently, the civil suit
between Rosita Julaton and the complainant have been decided against the
latter and which judgment has long become final and executory. However,
despite full knowledge by the respondent of such finality based on the
documents furnished to him, respondent withheld such vital information and
did not properly appraise the complainant. Thus, respondent violated the
mandate in Canon 15 x x x.[7]
IBP Board of Governors Resolution
On February 27, 2004, the IBP Board of Governors issued Resolution No.
XVI-2004-64 upholding the above-quoted Report. The Board recommended
the suspension of respondent from the practice of law for two (2) years for
violation of Rules 15 and 18 of the Code of Professional Responsibility and
the restitution of complainants P8,000.
The Courts Ruling
We agree with the Resolution of the IBP Board of Governors.
Respondents Administrative Liability
Ordinarily, lawyers are not obliged to act either as advisers or as advocates
of any person who may wish to become their client.[8] They may decline
employment and refuse to accept representation, if they are not in a position
to carry it out effectively or competently.[9] But once they agree to handle a
case, attorneys are required by the Canons of Professional Responsibility to
undertake the task with zeal, care and utmost devotion.[10]
Acceptance of money from a client establishes an attorney-client relationship
and gives rise to the duty of fidelity to the clients cause.[11] Every case
Page 224
accepted by a lawyer deserves full attention, diligence, skill and competence,
regardless of importance.[12] The Code of Professional Responsibility clearly
states:
LEGAL ETHICS
CANON 17 A lawyer owes fidelity to the cause of his client and he shall be
mindful of the trust and confidence reposed in him.
CANON 18 - A lawyer shall serve his client with competence and diligence.
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him and
his negligence in connection therewith shall render him liable.
Rule 18.04 - A lawyer shall keep his client informed of the status of his case
and shall respond within a reasonable time to the clients request for
information.
Hence, practising lawyers may accept only as many cases as they can
efficiently handle.[13] Otherwise, their clients would be prejudiced. Once
lawyers agree to handle a case, they should undertake the task with
dedication and care. If they do any less, then they fail their lawyers oath.[14]
The circumstances of this case indubitably show that after receiving the
amount of P8,000 as filing and partial service fee, respondent failed to render
any legal service in relation to the case of complainant. His continuous
inaction despite repeated followups from her reveals his cavalier attitude and
appalling indifference toward his clients cause, in brazen disregard of his
duties as a lawyer. Not only that. Despite her repeated demands, he also
unjustifiably failed to return to her the files of the case that had been entrusted
to him. To top it all, he kept the money she had likewise entrusted to him.
Furthermore, after going through her papers, respondent should have given
her a candid, honest opinion on the merits and the status of the case.
Apparently, the civil suit between Rosita Julaton and complainant had been
decided against the latter. In fact, the judgment had long become final and
executory. But he withheld such vital information from complainant. Instead,
he demanded P8,000 as filing and service fee and thereby gave her hope
that her case would be acted upon.
Rule 15.05 of the Code of Professional Responsibility requires that lawyers
give their candid and best opinion to their clients on the merit or lack of merit
of the case, neither overstating nor understating their evaluation thereof.
Knowing whether a case would have some prospect of success is not only a
function, but also an obligation on the part of lawyers.[15] If they find that their
clients cause is defenseless, then it is their bounden duty to advise the latter
to acquiesce and submit, rather than to traverse the incontrovertible.[16] The
failure of respondent to fulfill this basic undertaking constitutes a violation of
his duty to observe candor, fairness and loyalty in all his dealings and
transactions with his clients.[17]
Likewise, as earlier pointed out, respondent persistently refused to return the
money of complainant despite her repeated demands. His conduct was
clearly indicative of lack of integrity and moral soundness; he was clinging to
something that did not belong to him, and that he absolutely had no right to
keep or use.[18]
Lawyers are deemed to hold in trust their clients money and property that
may come into their possession.[19] As respondent obviously did nothing on
the case of complainant, the amount she had given -- as evidenced by the
receipt issued by his law office -- was never applied to the filing fee. His failure
to return her money upon demand gave rise to the presumption that he had
converted it to his own use and thereby betrayed the trust she had reposed
in him.[20] His failure to do so constituted a gross violation of professional
ethics and a betrayal of public confidence in the legal profession.[21]
The Code exacts from lawyers not only a firm respect for law, legal processes
and the courts,[22] but also mandates the utmost degree of fidelity and good
faith in dealing with the moneys entrusted to them pursuant to their fiduciary
relationship.[23] Respondent clearly fell short of the demands required of him
as a member of the bar. His inability to properly discharge his duty to his
client makes him answerable not just to her, but also to this Court, to the legal
profession, and to the general public.[24] Given the crucial importance of his
role in the administration of justice, his misconduct diminished the confidence
of the public in the integrity and dignity of the profession.[25]
WHEREFORE, Atty. Camilo Naraval is found GUILTY of violating Rule 15.05
and Canons 16, 17 and 18 of the Code of Professional Responsibility and is
hereby SUSPENDED from the practice of law for a period of two (2) years,
effective upon his receipt of this Decision. Furthermore, he is ORDERED TO
RESTITUTE, within thirty (30) days from notice of this Decision, complainants
eight thousand pesos (P8,000), plus interest thereon, at the rate of six
percent per annum, from October 18, 2000, until fully paid. Let copies of this
Decision be furnished all courts, the Office of the Bar Confidant, as well as the
National Office and the Davao City Chapter of the Integrated Bar of the
Philippines.
SO ORDERED.
PINEDAPCGRNMAN
[A.C. No. 5534. January 17, 2005]
JAYNE Y. YU, complainant, vs. RENATO LAZARO
BONDAL, respondent.
DECISION
CARPIO MORALES, J.:
Atty. Renato Lazaro Bondal (respondent) stands charged in a complaint[1]
filed by Jayne Y. Yu (complainant) for gross negligence and violation of
Canon 16[2] and Rule 16.03[3] of the Code of Professional Responsibility
arising from his alleged failure to attend to the five cases she referred to him
and to return, despite demand, the amount of P51,716.54 she has paid him.
By complainants allegation, the following spawned the filing of the present
administrative complaint:
On March 30, 2000, she engaged the services of respondent as counsel in
the following cases: (1) Jayne Yu. v. Swire Realty and Development Corp, for
Rescission with Damages filed before the Housing and Land Use Regulatory
Board, (2) I.S. No. 00-22089-90, Jayne Yu v. Lourdes Fresnoza Boon, for
Estafa, (3) I.S. No. 2000-G-22087-88, Jayne Yu v. Julie Teh, for violation of
Batas Pambansa Blg. 22, (4) I.S. No. 2000-D-11826, Jayne Yu v. Mona Lisa
San Juan for violation of Batas Pambansa Blg. 22, and (5) I.S. No. 2000-D-
11827, Jayne Yu v. Elizabeth Chan Ong, also for violation of Batas
Pambansa Blg. 22.[4]
In the Retainer Agreement[5] dated March 30, 2000, complainant agreed to
pay respondent the amount of P200,000.00 as Acceptance Fee for the five
cases, with an Appearance Fee of P1,500.00 pesos per hearing; and in the
event that damages are recovered, she would pay respondent 10% thereof
as success fee.
Complainant later issued two checks, BPI Family Bank No. 94944 and BPI
Family Bank No. 94968, dated February 20, 2001 and April 5, 2001 in the
amount of P30,000.00 andP21,716.54, respectively.[6]
Despite receipt of above-said amounts, respondent failed to file a case
against Swire Realty and Development Corp;[7] due to respondents
negligence, the case for estafa against Lourdes Fresnoza Boon was
dismissed by the Office of the City Prosecutor of Makati City and was not
timely appealed to the Department of Justice;[8] respondent negligently failed
to inform complainant, before she left for abroad, to leave the necessary
documents for purposes of the preliminary investigation of the case filed
against Julie Teh before the Office of the City Prosecutor of Makati City,
which case was eventually dismissed by Resolution dated August 14, 2000;[9]
and respondent compelled her to settle the two cases for violation of
B.P. Blg. 22 against Mona Lisa San Juan and Elizabeth Chan Ong under
unfair and unreasonable terms.[10]
Respondent thus demanded from respondent, by letter[11] of June 14, 2001,
for the return of all the records she had entrusted him bearing on the subject
cases.
Through complainants counsel (Chavez Laureta and Associates Law Office)
which sent a letter[12] to respondent, she reiterated her demand for the return
of the records of the cases.
Respondent did return but only the records bearing on the estafa case
against Lourdes Fresnoza Boon and the B.P. Blg. 22 case against Mona Lisa
San Juan.
Complainant through counsel thus demanded, by letter[13] of August 8, 2001,
the return of the rest of the files, particularly that dealing with Swire Realty
and Development Corporation and Julie Teh. In the same letter, complainant
also demanded the refund of the amounts covered by the above-said two BPI
Family Bank Checks amounting to P51,716.54, they being intended to
represent payment of filing fees for the case against Swire Realty and
Development Corporation which respondent failed to file.
As respondent failed and continues to refuse to comply with complainants
valid demands in evident bad faith and to her prejudice, she filed the present
complaint charging him with flagrant violation of Canon 16 and Canon 16.03
of the Code of Professional Responsibility.
By Resolution[14] of February 4, 2002, this Court directed respondent to file
his Comment. Respondent, through his counsel, the Escobido and Pulgar
Law Offices, filed a motion for extension for thirty days or up to April 9, 2002,
which was granted by Resolution of May 27, 2002. No copy was, however,
Page 225
furnished respondents counsel.[15]
As respondent failed to file his Comment on the present complaint, this Court,
by Resolution of July 21, 2003, considered the filing of respondents comment
LEGAL ETHICS
deemed waived and allowed complainant to present her evidence before the
Office of the Bar Confidant.[16]
At the hearing before the Officer of the Bar Confidant, complainant echoed
her allegations in the complaint.
As to the other cases referred by complainant to respondent, complainant
testified that the case against Julie Enriquez-Teh was dismissed because
respondent failed to present the original checks subject of the case;[17] that
the estafa case against Ms. Lourdes Boon was dismissed and was never
appealed;[18] and that she was prodded by respondent to settle the two cases
for B.P. Blg. 22 even if she was not satisfied with the terms thereof,
respondent having assured her that he would waive his 10% success fee in
the case against Swire Development.[19]
And complainant submitted the following documentary evidence: (1) Retainer
Agreement between her and Atty. Renato Lazaro Bondal;[20] (2) BPI Family
Bank Check No. 94944 dated February 20, 2001 for P30,000.00 payable to
cash;[21] (3) BPI Family Bank Check No. 94968 dated April 5, 2001 for
P21,716.54 payable to cash;[22] (4) Resolution of the City Prosecutor of
Makati dated August 18, 2000 on a case between Jayne Yu and Lourdes
Fresnoza Boon;[23] (5) Resolution of the City Prosecutor of Makati on a case
between her and Julie Enriquez-Teh;[24] (5) her letter to respondent dated
June 14, 2001 requesting the return of pertinent records of the cases referred
to him;[25] (6) letter of Francisco I. Chavez to respondent dated July 18, 2001
reiterating the request for the return of the records and an accounting of the
amount of P51,716.54;[26] (7) letter of Francisco I. Chavez to respondent
dated August 8, 2001 confirming the receipt of two folders relative to the
cases she filed against Lourdes Fresnoza Boon and Mona Lisa San Juan,
requesting Atty. Bondal to return the files bearing on Swire Realty and
Development Corporation and Julie Teh, and demanding the refund of the
amount of P51,716.54.[27]
The Office of the Bar Confidant, by Report and Recommendation,[28]
recommends the dismissal of the complaint for failure of complainant to
substantiate it.
From the records of the case, it is culled that except for the case against
Swire Development Corporation, the other 4 cases referred by complainant
to respondent were filed in court but were dismissed or terminated for causes
not attributable to respondent.
The case for estafa against Lourdes Fresnoza Boon in I.S. No. 00-22089-90
was dismissed by the Makati Prosecutors Office by Resolution dated August
18, 2000 due to lack of probable cause and, in any event, the issues raised
therein were in the nature of intra-corporate disputes which are properly
cognizable by another forum, viz:
After careful examination and evaluation of the evidence adduced both by c
omplainant and respondent, undersigned Investigating Prosecutor finds no
probable cause to hold respondent for the offense charged of Estafa.
Apparently, there was no deceit and/or unfaithfulness or abuse of confidence
employed by respondent when complainant agreed to invest her money in
the restaurant business under the name and style of La Gondola, Inc. which
is owned by respondent. xxx In the present case, though, complainant
alleged that respondent immediately upon receipt of the P4,800,000.00
representing her investment in the restaurant business, executed earlier in
favor of Philippine Commercial and International Bank whereby La Gondola
assumed the loans and credit accommodations obtained by Lucre
Export/Import Inc., using the funds of La Gondola, Inc.; respondent being the
President and majority owner of the latter corporation. However, outside of
the mere allegation of complainant that respondent allegedly assumed the
loans and credit accommodations extended to the other company using the
funds of La Gondola, Inc., no concrete and real evidence were presented
and/or proven to this effect by complainant. xxx
Moreover, it is apparent that the issues being raised by complainant appears
to be intra-corporate disputes which could be very well settled in another
forum.[29] (Underscoring supplied)
Notably, a similar complaint for the same offense, docketed as I.S. No. 99-
H-2780, had been previously filed by complainant against Ms. Boon which
case was dismissed for insufficiency of evidence.[30] As thus observed by the
Office of the Bar Confidant, the filing of an appeal from the prosecutors
resolution would have been inutile since the facts and issues raised in the
estafa case had already been twice passed upon by the Office of the City
Prosecutor, hence, it would likely be dismissed.[31]
No fault or negligence can also be attributed to respondent in the dismissal
of I.S. No. 2000-G-22087-88 against Julie Teh. By Resolution of August 14,
PINEDAPCGRNMAN
2000 of the Makati Prosecutors Office, it is clear that it was dismissed, in the
main, on the ground that the offense charged did not actually exist and
complainant failed to appear and present the original checks, viz:
After a careful evaluation of the evidence on record, the undersigned
recommends for the dismissal of the present complaints on the following
grounds:
1. Despite reasonable opportunity given to her, complainant failed to appear
and present the original copies of the subject checks and other documents
attached to the complaint.
2. The subject checks were presented after the 90-day period hence there is
no more presumption of knowledge of the insufficiency of funds. Accordingly,
the burden is shifted upon the complainant to prove that at the time the
checks were issued, the drawer knew that he had insufficient funds. There is
no allegation much less proof to that effect. The result is that the element of
knowledge of insufficiency of funds or credit is not present, therefore the
crime does not exist.[32]
On the alleged failure of respondent to appear during the hearing of I.S. No.
2000-G-22087-88 and his failure to present the original of the checks subject
thereof, they being then in the possession of complainant who was abroad at
that time:[33] Such failure to present the original of the checks cannot solely be
attributed to respondent, for she herself was guilty of neglect.[34]
As for the alleged compulsion in the settlement of her two complaints for
violation of B.P. Blg. 22 in accordance with the terms dictated by the therein
respondents Mona Lisa San Juan and Elizabeth Chan Ong, upon the
promise of respondent that he would waive the 10% success fee in the
complaint to be filed against Swire Development: Assuming the truthfulness
of her allegation that respondent compelled her to settle, what the terms were
as alleged to have been dictated by Ms. San Juan and Ms. Chan Ong, and
the manner and/or extent of prejudice she suffered, complainant did not
establish. Moreover, she failed to show that the promise by respondent that
he would waive the 10% success fee was for the purpose of defrauding her
or of such nature as to constitute undue influence, thereby depriving her of
reasonable freedom of choice.
Subsequent to the amicable settlement, it appears that complainant never
raised any objection to the terms of the compromise. As an accepted rule,
when a client, upon becoming aware of the compromise and the judgment
thereon, fails to promptly repudiate the action of his attorney, he will not
afterwards be heard to complain about it.[35]
As for complainants claim that the amount of P51,716.54, which was the only
amount on record that complainant paid for respondents legal services, was
intended for the filing fees in the complaint against Swire Development
Corporation, the same was not substantiated as in fact the retainer
agreement does not so confirm.
We would like to thank you for retaining our law firm in the handling and
representation of your
case. In regard to the five cases you referred to us, our aggregate Acceptan
ce fee is P200,000 Pesos with anAppearance fee of P1,500.00 Pesos per h
earing. As regards the damages to be recovered, we will get 10% thereof by
way of Success Fee.[36] (Underscoring supplied)
If, admittedly, the only payment given to complainant by respondent is the
amount of P51,716.54, then complainant still owes respondent more, as
respondent rendered his legal services in 4 out of the 5 cases. An acceptance
fee is not a contingent fee, but is an absolute fee arrangement which entitles
a lawyer to get paid for his efforts regardless of the outcome of the litigation.
That complainant was dissatisfied with the outcome of the four cases does
not render void the above retainer agreement for respondent appears to have
represented the interest of complainant. Litigants need to be reminded that
lawyers are not demi-gods or magicians who can always win their cases for
their clients no matter the utter lack of merit of the same or how passionate
the litigants may feel about their cause.[37]
In sum, this Court finds well taken the finding of the Office of the Bar
Confidant that complainant failed to establish the guilt of respondent by clear,
convincing and satisfactory proof. The charges against him must thus be
dismissed.[38]
However, since respondent had been advised by complainant through
counsel Chavez Laureta and Associates, by letter of July 18, 2001, that she
intended to terminate his services, as of said date, he was obliged, under
Page 226
Rule 22.02 of the Code of Professional Responsibility, viz:
Rule 22.02 A lawyer who withdraws or is discharged shall, subject to a
retainer lien, immediately turn over all papers and property to which the client
LEGAL ETHICS PINEDAPCGRNMAN
is entitled, and shall cooperate with his successor in the orderly transfer of By complainants account, respondent cajoled her into buying several parcels
the matter, including all information necessary for the proper handling of the of land located at Tagaytay City, Las Pias City, Makati City, Quezon City, and
matter, Pasay City.She related the details surrounding the intended acquisition of
to immediately turn over all papers and property which complainant entrusted property as follows:
to his successor.
WHEREFORE, the complaint is hereby DISMISSED. Respondent is, Re the Tagaytay City Property
however, hereby directed to RETURN all the records in his possession
relative to the cases he handled for complainant. Respondent represented to complainant that his client Teresita Monzon
(Teresita) owned an untitled 27-hectare property located at Tagaytay City.
Rule 15.06 – A lawyer shall not state nor imply that he is able to Through the Tagaytay Twins, Inc., complainant and Teresita executed a
influence any public official, tribunal or legislative body. Memorandum of Agreement dated March 21, 2003 (Tagaytay MOA)[8]
prepared by respondent under which she agreed to finance the titling of the
TANU REDDI, A.C. No. 7027 property in the total amount of P20,000,000, and that once titled, the property
Complainant, Present: would be offered for sale, the proceeds of which would be divided equally
between her and Teresita. Complainant thereupon made staggered
PUNO,* C.J., payments of US$1,000, P2,000,000, and US$36,360 to Teresita.[9]
QUISUMBING,** Acting C.J.,
YNARES-SANTIAGO,* Complainant was later to discover that 996 square meters of the 27-hectare
CARPIO, property had been purchased by Aldio Properties, Inc. in an extrajudicial
- versus - AUSTRIA-MARTINEZ, foreclosure sale, which sale Teresita challenged in an action for annulment
CORONA, before the Regional Trial Court of Tagaytay City. In said action, respondent
CARPIO MORALES, was Teresitas counsel of record.[10]
AZCUNA,*
TINGA, Re the Las Pias City Property
ATTY. DIOSDADO C. SEBRIO, JR., CHICO-NAZARIO,
Respondent. VELASCO, JR.,* Respondent offered to complainant the option to purchase a house and lot
NACHURA, located at Las Pias City, which were encumbered by a mortgage, and which
LEONARDO-DE CASTRO, respondent represented as owned and being sold by one Francisca Parales
BRION, & (Francisca)[11] to finance an urgently needed heart surgery of her daughter.[12]
PERALTA, JJ.
Promulgated: On respondents advice, complainant obtained a franchise to operate a
Jollibee food outlet, with the agreement that out of the profits that its operation
January 30, 2009 would generate, she would get 50% while respondent and Immaculada would
share the remaining 50%.[13] Complainant thus sent respondent sums of
x --------------------------------------------------------------------------------------------- x money for the acquisition of both the Las Pias property and a franchise to
operate a Jollibee outlet.[14]
DECISION
Re the Makati City Property
PER CURIAM:
Respondent introduced complainant to a certain Mario C. Mangco (Mangco),
Tanu Reddi (complainant), an American citizen of Indian descent and a alleged legal officer of the intestate estate of one Faustino Ramos (Ramos),
practicing endodontist in New York, seeks the disbarment of Atty. Diosdado which estate was alleged to be the owner of a real property located at the
C. Sebrio, Jr. (respondent) for allegedly deceiving her into giving him a total consular area adjacent to Forbes Park in Makati City.[15] Complainant having
of US$ 3,000,000 for the purpose of, among other things, purchasing several been interested in acquiring the property, respondent prepared a
real estate properties for resale. Memorandum of Agreement (Makati MOA) which she, together with Mangco,
forged on March 20, 2004.[16]
From the records of the case, the following facts are gathered:
Under the Makati MOA, complainant agreed to, as she did, release
Taking after her parents who had been involved in various charitable P10,000,000 representing the cost of development and titling of the property,
activities in India, complainant nurtured philanthropic desires of her own and payment of back taxes; and an additional P2,000,000 for the execution
consisting primarily in opening a hospital with modern facilities in an of the Makati MOA.
underdeveloped part of Asia.[1]
Complainant was later to learn that the property was neither owned by the
Together with Immaculada Luistro (Immaculada), a Filipino citizen,[2] who intestate estate of Ramos nor for sale.
was her assistant of over 10 years, complainant visited the Philippines for the
first time in 2000. Noting the level of poverty in the country and the lack of Re the Quezon City Property
medical services for the poor,[3] she decided to put up a hospital.[4]
Respondent broached to complainant the idea of buying the land on which
Immaculada suggested to complainant to consider engaging in the real SM North Mall in Quezon City stands, he representing that it belongs to his
estate business in the Philippines in order to speed up the generation of client, purportedly a retired US Navy employee who resides in Mindanao.[17]
funds.[5] Heeding the suggestion, complainant returned to the Philippines in Complainant assented and transmitted large sums of money to respondent for
2003 to explore opportunities in the real estate business.[6] the purpose of, among other things, filing a petition for injunction against SM
North Mall, paying back taxes, and titling of the land.[18]
Complainant was introduced to respondent who would help her acquire real
properties for development and/or resale. Since she could not acquire Re the Pasay City Property
ownership of lands in thePhilippines, respondent advised her to use
corporate vehicles to effect the purchases. Three corporations were thus Complainant sent respondent hefty amounts of money for the purchase of a
Page 227

formed Tagaytay Twins, Inc., Manila Chic Twins, Inc., and Tanu, Inc.[7] vacant lot located along Roxas Boulevard in Pasay City, alleged to belong to
Florenda Estrada (Florenda) and Alma Mallari (Alma), but which was
mortgaged to one Atty. Go to secure a loan of P5,000,000.[19] She also
LEGAL ETHICS
defrayed expenses, on the strength of respondents representations, to
secure title to the lot, settle the mortgage obligation, relocate squatters on
the lot, and bribe a judge to close the transaction.[20]
Complainant subsequently discovered that there was no such vacant lot
along Roxas Boulevard in Pasay City; instead, she found out that the vacant
lot referred to was titled in the names of Philippine Bank of Communications
(PBC) and Banco De Oro Universal Bank (BDO).[21]
In light of the foregoing developments, complainants counsel, by letter dated
December 19, 2005,[22] demanded from respondent the return of the amount
of US$3,000,000, claimed to be part of the total sum of money she had sent
to him for all the transactions that did not come about. No amount has been
returned to complainant.
Hence, spawned the filing on January 27, 2006[23] of the present complaint
for disbarment against respondent.
By his Comment, respondent admits receiving a total of US$544,828 from
complainant[24] which amount he claims was used not only for the purchase
of the Las Pias property and discharge of the mortgage thereon, but also for
the setting up of the earlier mentioned corporations, as well as for the
downpayment on the Makati property and related expenses.[25]
Respondent likewise admits having represented to complainant that the Las
Pias City property belonged to one Francisca,[26] certificate of title to which
and the corresponding deed of sale signed by Francisca, by his claim, are in
his possession; but the title has not been transferred to Tanu, Inc., as agreed,
in view of complainants failure to provide the money needed therefor, he
adding that he is also exercising his retaining lien over the Las Pias
documents.[27]
Specifically with respect to the Makati property, respondent claims having
paid P500,000 to Mangco representing initial payment[28] thereof.
Regarding the Tagaytay City property, respondent admits that the Tagaytay
MOA exists, and avers that it is complainant who wants to get out of a
perfected sale in order to recover her partial payment amounting to
approximately P4,000,000.[29]
With respect to the Quezon City property, respondent states that he is willing
to surrender all the documents pertaining thereto, but would do so only if
complainant is first ordered to pay him his professional fees.[30]
As for the Pasay City property, respondent denies complainants claims
thereon as mere preposterous allegations.
Following the filing by complainant of her Reply, the Court referred the case
to the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation/decision by Resolution of January 22, 2007.[31]
At the mandatory conference scheduled by the IBP Commission on Bar
Discipline on September 13, 2007 before Commissioner Lolita A.
Quisumbing (the Commissioner),[32]respondent failed to appear despite
notice. He instead sent a representative who sought a resetting as, allegedly,
respondent was in Ilocos attending to an important family matter.[33] The
Commissioner, finding respondents absence inexcusable, given that he had
ample time to file a motion for resetting but he did not, considered respondent
to have waived his right to participate in the proceedings.[34] Complainant
thereupon presented evidence ex-parte and submitted her position paper.[35]
In her Report and Recommendation[36] submitted to the IBP Board of
Governors on December 14, 2007, the Commissioner found respondent to
have committed fraudulent acts which constitute violations of the lawyers
oath and numerous provisions of the Code of Professional Responsibility
(CPR), viz:
1. Respondent violated CANON 1 which states: A lawyer shall uphold the
Constitution, obey the laws of the land and promote respect for the law and
for legal processes.
PINEDAPCGRNMAN
Respondent committed estafa punishable under Art. 315 of the Revised
Penal Code. With unfaithfulness and abuse of confidence, he
misappropriated millions of pesos which was [sic] given to him on his
misrepresentation that such were needed for the acquisition of the
aforementioned properties.
Respondent also committed an unlawful act (i.e., falsification as part of his
fraudulent scheme) when he tampered with the Articles of Incorporation of
Tanu, Inc.. A perusal of the Articles of Incorporation given by respondent to
complainant shows that the incorporators are Tanu Reddi, Michael Lee,
Prasuna Reddy, Ahalya Devi, and Robert Juntilla. When complainant
obtained a copy of the same in September 2005, she discovered that other
names were inserted. The names of respondent, Clarito D. Cardozo, Brian
Pellazar, and Michael Angelo Lopez were intercalated. (Exhibit W)
2. He likewise violated Rule 1.01 of the CPR which provides: A lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct.
He engaged in unlawful, dishonest and deceitful conduct when he offered
properties for sale to complainant on the misrepresentation that complainant
was dealing with the true owners thereof. This is very clear from the
documents he asked complainant to sign; namely, the Memorandum of
Agreement (Exhibit D) for the Tagaytay property, Deed of Conditional Sale
(Exhibit U) for the Pasay City property, and Memorandum of Agreement
(Exhibit M) for the Makati City property. The certificates of title, tax declaration
and other documents obtained by complainant from the various government
agencies reveal that all these properties aforementioned were either
fictitious, not susceptible to sale, simulated, or inexistent.
3. Respondent violated Canon 16 and Rule 16.01 of the CPR which state:
CANON 16 A lawyer shall hold in trust all moneys and properties of his client
that may come into his possession.
Rule 16.01 A lawyer shall account for all money or property collected or
received for or from the client.
He failed to account for the sums of money he received from complainant
and failed to return the same upon demand. (Copy of demand letter dated 19
December 2005, Exhibit T)
4. Respondent violated Rule 15.06 of the CPR which provides:
A lawyer shall not state or imply that he is able to influence any public official,
tribunal or legislative body.
He convinced complainant to pay bribe money to our judges since, he claims,
that it is a common practice in the Philippines.[37] (Underscoring supplied)
The Commissioner thus recommended that respondent be disbarred; that his
name be ordered stricken from the roll of attorneys; and that he be ordered
to return the total amount of US$3,000,000 to complainant.
By Resolution of January 17, 2008,[38] the IBP Board of Governors adopted
and approved the Report and Recommendation of the Commissioner, with
the modification that respondent was ordered to return only the admitted
amount he received from complainant (US$544,828), without prejudice to
complainants recovery of the other amounts claimed in the appropriate
forum.
The Court sustains the IBP Board of Governors, except its
findings/conclusion that respondent committed estafa and falsification. This
is not the proper forum to determine whether he committed these offenses.
The Court finds, however, that respondents dishonest and deceitful conduct
with respect to the intended transactions, real property acquisitions which
Page 228
turned out to be bogus, is sufficiently established.
LEGAL ETHICS
It bears emphasis that respondent admits having received from complainant
at least US$544,828. He claims, however, that the amount was used for the
purchase of the Las Pias property and the discharge of the mortgage
thereon, the setting up of the corporations earlier mentioned, and the
downpayment on the Makati property and related representation expenses
therefor. The Court finds that the claim does not lie.
All that respondent presented to account for the money is a handwritten
acknowledgment of a supposed partial payment of P500,000 for the Makati
property, purportedly executed by one Mangco.[39] By any standard, this
document is a mere piece of paper, Mangco not having been presented, if
he exists at all, to confirm that he indeed issued the receipt. Since respondent
failed to credibly account, upon demand, for the money held by him in trust
an element of misappropriation[40] complainants claim that respondent
employed deceit on her is established.
Respondents culpability is further highlighted by his utter lack of regard for
the seriousness of the charges against him. His defenses raised in his
Comment consist mainly in bare denials. When the integrity of a member of
the bar is challenged, it is not enough that he denies the charges against him;
he must meet the issue and overcome the evidence against him.[41] He must
show proof that he still maintains that degree of morality and integrity which
at all times is expected of him.[42] This, respondent miserably failed to do.
PINEDAPCGRNMAN
The Court also sustains the order of the IBP for respondent to return only the
amount of US$544,828. While complainant submitted documents showing
her bank remittances involving different sums of money, some of these
remittances were not made in the name of respondent.[46] And as complainant
herself declares, the amount of US$3,000,000 is a mere estimate of
her total claim.[47] Thus, only the return of the admitted amount
of US$544,828 is in order. As reflected above, complainant is not precluded
from litigating her claim for any balance due her in the proper forum.
WHEREFORE, respondent Diosdado C. Sebrio, Jr. is DISBARRED, and his
name is ORDERED STRICKEN from the Roll of Attorneys. He is ORDERED
TO RETURN to complainant the amount of US$544,828. Let a copy of this
Decision be entered in his record as a member of the Bar; and let 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.
SO ORDERED.
Rule 15.07 – A lawyer shall impress upon his client compliance with the
laws and the principles of fairness.

as the general public is concerned, than the possession of legal learning.[45]

Respondents justification for his non-presentation of any documents to
substantiate the so-called property acquisitions that he is exercising his
retaining lien over them as, allegedly, his professional fees have not been
paid is incredible.

If those documents actually exist, and considering that his license to practice
law is on the line, respondent could have readily attached even photocopies
thereof to his Comment in order to lend a semblance of credibility to his claim.
His retaining lien claim remains just that. Worse, it only amounts to an
admission that he acted as counsel for complainant; yet, he completely failed
to show that in his dealings on her behalf, he put her interests before his.

As to the recommended penalty of disbarment, the Court finds the same to

be in order.

Section 27, Rule 138 of the Rules of Court provides:

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 to do so. x x
x.

To reiterate, by his own admission, respondent received a total of

US$544,828 from complainant, which he could not properly account for. The
orchestrated manner in which he carried out his fraudulent scheme, in
connivance with other persons, and by taking advantage of complainants
naivete in the workings of the real estate business in the Philippines, depict
a man whose character falls way, way short of the exacting standards
required of him as a member of the bar and an officer of the court. Thus,
respondent is no longer fit to remain as such.

The Court is mindful that disbarment is the most severe form of disciplinary
sanction and, as such, the power to disbar must always be exercised with
great caution, and only for the most imperative reasons and in clear cases of
misconduct affecting the standing and moral character of the lawyer as an
officer of the court and a member of the bar.[43] If the practice of law, however,
is to remain an honorable profession and attain its basic ideals, those
enrolled in its ranks should not only master its tenets and principles but
should also, in their lives, accord continuing fidelity to them.[44] The
requirement of good moral character is, in fact, of much greater import, as far
LEGAL ETHICS PINEDAPCGRNMAN
RURAL BANK OF CALAPE, A.C. No. 5736
INC. (RBCI) BOHOL,
Complainant, Present:

CARPIO, J., Chairperson,

- versus - NACHURA,
PERALTA,
ABAD, and
PEREZ,* JJ.

ATTY. JAMES BENEDICT

FLORIDO, Promulgated:
Respondent.
June 18, 2010
x --------------------------------------------------------------------------------------------- x

DECISI

ON

CARPIO,

J.:

The Case

This is a complaint for disbarment filed by the members of the Board of

Directors[1] of the Rural Bank of Calape, Inc. (RBCI) Bohol against
respondent Atty. James Benedict Florido (respondent) for acts
constituting grave coercion and threats when he, as counsel for the
minority stockholders of RBCI, led his clients in physically taking over
the management and operation of the bank through force, violence and
intimidation.

The Facts

On 18 April 2002, RBCI filed a complaint for disbarment against

respondent.[2] RBCI alleged that respondent violated his oath and the
Code of Professional Responsibility (Code).

According to RBCI, on 1 April 2002, respondent and his clients, Dr.

Domeciano Nazareno, Dr. Remedios Relampagos, Dr. Manuel
Relampagos, and Felix Rengel (Nazareno-Relampagos group), through
force and intimidation, with the use of armed men, forcibly took over the

Page 229
management and the premises of RBCI. They also forcibly evicted Cirilo
A. Garay (Garay), the bank manager, destroyed the banks vault, and
installed their own staff to run the bank.
LEGAL ETHICS
In his comment, respondent denied RBCIs allegations. Respondent
explained that he acted in accordance with the authority granted upon him
by the Nazareno-Relampagos group, the lawfully and validly elected Board
of Directors of RBCI. Respondent said he was merely effecting a lawful and
valid change of management. Respondent alleged that a termination notice
was sent to Garay but he refused to comply. On 1 April 2002, to ensure a
smooth transition of managerial operations, respondent and the Nazareno-
Relampagos group went to the bank to ask Garay to step down. However,
Garay reacted violently and grappled with the security guards long firearm.
Respondent then directed the security guards to prevent entry into the bank
premises of individuals who had no transaction with the bank.
Respondent, through the orders of the Nazareno-Relampagos group, also
changed the locks of the banks vault.
Respondent added that the criminal complaint for malicious mischief filed
against him by RBCI was already dismissed; while the complaint for grave
coercion was ordered suspended because of the existence of a prejudicial
question. Respondent said that the disbarment complaint was filed against
him in retaliation for the administrative cases he filed against RBCIs counsel
and the trial court judges of Bohol.
Moreover, respondent claimed that RBCI failed to present any evidence to
prove their allegations. Respondent added that the affidavits attached to the
complaint were never identified, affirmed, or confirmed by the affiants and
that none of the documentary exhibits were originals or certified true copies.
The Ruling of the IBP
On 28 September 2005, IBP Commissioner Leland R. Villadolid, Jr.
(Commissioner Villadolid, Jr.) submitted his report and declared that
respondent failed to live up to the exacting standards expected of him as
vanguard of law and justice.[3] Commissioner Villadolid, Jr. recommended the
imposition on respondent of a penalty of suspension from the practice of law
for six months to one year with a warning that the repetition of similar conduct
in the future will warrant a more severe penalty.
According to Commissioner Villadolid, Jr., respondent knew or ought to have
known that his clients could not just forcibly take over the management and
premises of RBCI without a valid court order. Commissioner Villadolid, Jr.
noted that the right to manage and gain majority control over RBCI was one
of the issues pending before the trial court in Civil Case No. 6628.
Commissioner Villadolid, Jr. said that respondent had no legal basis to
implement the take over of RBCI and that it was a naked power grab without
any semblance of legality whatsoever.
Commissioner Villadolid, Jr. added that the administrative complaint against
respondent before the IBP is independent of the dismissal and suspension
of the criminal cases against respondent. Commissioner Villadolid, Jr. also
noted that RBCI complied with the IBP Rules of Procedure when they filed a
verified complaint and submitted duly notarized affidavits. Moreover, both
RBCI and respondent agreed to dispense with the mandatory conference
hearing and, instead, simultaneously submit their position papers.
On 20 March 2006, the IBP Board of Governors issued Resolution No. XVII-
2006-120 which declared that respondent dismally failed to live up to the
exacting standards of the law profession and suspended respondent from
the practice of law for one year with a warning that repetition of similar
conduct will warrant a more severe penalty.[4]
On 5 July 2006, respondent filed a motion for reconsideration. In its 11
December 2008 Resolution, the IBP denied respondents motion.[5]
The Ruling of the Court
We affirm the IBP Board of Governors resolution.
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.[6] Likewise, it is the lawyers duty to promote respect for the law and legal
PINEDAPCGRNMAN
processes and to abstain from activities aimed at defiance of the law or
lessening confidence in the legal system.[7]
Canon 19 of the Code provides that a lawyer shall represent his client with
zeal within the bounds of the law. For this reason, Rule 15.07 of the Code
requires a lawyer to impress upon his client compliance with the law and
principles of fairness. A lawyer must employ only fair and honest means to
attain the lawful objectives of his client.[8] It is his duty to counsel his clients
to use peaceful and lawful methods in seeking justice and refrain from doing
an intentional wrong to their adversaries.[9]
We agree with Commissioner Villadolid, Jr.s conclusion:
Lawyers are indispensable instruments of justice and peace. Upon taking
their professional oath, they become guardians of truth and the rule of law.
Verily, when they appear before a tribunal, they act not merely as
representatives of a party but, first and foremost, as officers of the court.
Thus, their duty to protect their clients interests is secondary to their
obligation to assist in the speedy and efficient administration of justice. While
they are obliged to present every available legal remedy or defense, their
fidelity to their clients must always be made within the parameters of law and
ethics, never at the expense of truth, the law, and the fair administration of
justice.[10]
A lawyers duty is not to his client but to the administration of justice. To that
end, his clients success is wholly subordinate. His conduct ought to and must
always be scrupulously observant of the law and ethics.[11] Any means, not
honorable, fair and honest which is resorted to by the lawyer, even in the
pursuit of his devotion to his clients cause, is condemnable and unethical.[12]
WHEREFORE, we find respondent Atty. James Benedict Florido GUILTY of
violating Canon 19 and Rules 1.02 and 15.07 of the Code of Professional
Responsibility.Accordingly, we SUSPEND respondent from the practice of
law for one year effective upon finality of this Decision.
Let copies of this decision be furnished the Office of the Bar Confidant, to be
appended to respondents personal record as attorney. Likewise, copies shall
be furnished to the Integrated Bar of the Philippines and in all courts in the
country for their information and guidance.
SO ORDERED.
Rule 15.08 – A lawyer who is engaged in another profession or
occupation concurrently with the practice of law shall make clear to his
client whether he is acting as a lawyer or in another capacity.
 Lawyers should refrain from giving any advice unless they have
obtained sufficient understanding of their client’s cause. A careful
investigation and examination of the facts must first be had before
any legal opinion be given by the lawyer to the client.
 To avoid breach of legal ethics, a lawyer should keep any
business, in which is engaged in concurrently with the practice of
law, entirely separate and apart from the latter.
[A.C. No. 4763. March 20, 2003]
DR. GIL Y. GAMILLA, NORMA S. CALAGUAS, IRMA E. POTENCIANO,
EDITHA OCAMPO, LUZ DE GUZMAN, GLICERIA BALDRES,
FERDINAND LIMOS, MA. LOURDES C. MEDINA, HIDELITA GABO,
CORAZON CUI, REMEDIOS T. GARCIA, RENE ARNEJO, RENE LUIS
TADLE, LAURA ABARA, PHILIP AGUINALDO, BENEDICTA ALAVA,
LEONCIO CASAL, CARMELITA ESPINA, ZENAIDA FAMORCA, CELSO
NIERA, CESAR REYES, NATIVIDAD SANTOS and MAFEL
YSRAEL, complainants, vs. ATTY. EDUARDO J. MARIO JR.,
respondent.
DECISION
BELLOSILLO, J.:
THIS DISBARMENT CASE EMANATED from an intra-union leadership
dispute some seventeen (17) years ago that spilled over to the instant
complaint alleging impropriety and double-dealing in the disbursement of
Page 230
sums of money entrusted by the University of Sto. Tomas to respondent Atty.
Eduardo J. Mario Jr. as president of the UST Faculty Union and his core of
LEGAL ETHICS
officers and directors for distribution among faculty members of the
university.[1]
For a sense of history, sometime in 1986 respondent Atty. Mario Jr. as
president of the UST Faculty Union and other union officers entered into a
collective bargaining agreement with the management of UST for the
provision of economic benefits amounting to P35 million. Instead of creating
a harmonious relationship between the contracting parties, the collective
bargaining agreement regrettably engendered disputes arising from the
interpretation and implementation thereof one of which even reached this
Court.[2]
The 1986 collective bargaining agreement expired in 1988 but efforts to forge
a new one unfortunately failed. In 1989 the faculty members of UST went on
strike and as a counter-measure UST terminated the employment of sixteen
(16) officers and directors of the UST Faculty Union including respondent.
The dismissal precipitated anew bitter legal battles which were resolved by
this Court in favor of the dismissed employees by ordering their reinstatement
with back wages.[3]
In 1990 Secretary of Labor Ruben D. Torres prescribed the terms and
conditions of a five (5)-year collective bargaining agreement between UST
and the UST Faculty Union retroactive to 1988 when the 1986 collective
bargaining agreement expired. In the same year, the administration of UST
and the UST Faculty Union also entered into a compromise agreement for
the payment of P7,000,000.00 from which P5,000,000.00 was intended to
settle the back wages and other claims of the sixteen (16) union officers and
directors of the UST Faculty Union, including herein respondent, who were
earlier ordered reinstated by this Court, and the sum of P2,000,000.00 to
satisfy the remaining obligations of UST under the 1986 collective bargaining
agreement. It appears from the record that only P5,000,000.00 for the back
wages and other claims of respondent Atty. Mario and other concerned union
officers and directors was paid immediately by UST while the satisfaction of
the balance of P2,000,000.00 was apparently deferred to some unspecified
time.
In 1992 UST and the UST Faculty Union executed a memorandum of
agreement to settle the salary increases and other benefits under the
collective bargaining agreement effective 1988 for the period 1 June 1991 to
31 May 1993 for a total of P42,000,000.00. It was agreed that the benefits
accruing from 1 June 1991 to 31 October 1992 were to be taken from the
sum of P42,000,000.00 which UST would release directly to the faculty
members, while the remainder of the P42,000,000.00 package would be
ceded by UST to the UST Faculty Union which would then disburse the
balance to cover the benefits from 1 November 1992 to 31 May 1993. The
memorandum of agreement also charged the amount of P2,000,000.00
agreed upon in the 1990 compromise agreement as well as the attorneys
fees of Atty. Mario worth P4,200,000.00 against the P42,000,000.00 outlay.
In accordance with the memorandum of agreement, UST took care of the
disbursement of P20,226,221.60 from the total commitment
of P42,000,000.00 to pay for the following expenses: (a) P2,000,000.00 as
payment for unpaid obligations to faculty members under the 1986 collective
bargaining agreement; (b) P13,833,597.96 for the salary increases of faculty
members from 1 June 1991 to 31 October 1992; (c) P192,623.64 for
telephone, electricity and water billings; and, (d) P4,200,000.00 paid to the
UST Faculty Union as attorneys fees. The expenses left a collectible sum
of P21,773,778.40 from the obligation of P42,000,000.00. The university
however relinquished only P18,038,939.37 to the UST Faculty Union which
wasP3,734,839.03 short of the balance of P21,773,778.40. In the meantime,
the UST Faculty Union placed P9,766,570.01 of the amount received from
UST in the money market to earn as it did make P1,146,381.27 in interest.
For benefits corresponding to 1 November 1992 to 31 May 1993, the UST
Faculty Union charged against the short-changed amount of P18,038,939.37
a total of P16,723,638.27 consisting of the following expenses:
(a) P10,521,800.64 as the amount paid for salary increases beginning 1
November 1992 to 31 May 1993; (b) P578,296.31 which was refunded to the
faculty members whose salaries were reduced as a result of their
participation in the 1989 strike; (c) P2,045,192.97 as amount paid to the
faculty members representing their December 1992 bonus; and,
(d) P3,578,348.35 for reimbursements to the University of Santo Tomas. The
expenses left a balance of P5,050,140.13, i.e., the remainder of
P1,315,301.10 out of theP18,038,939.37 earlier turned over by UST to the
UST Faculty Union, plus the deficit amount of P3,734,839.03 which UST later
turned over to the UST Faculty Union after previously failing to deliver the
PINEDAPCGRNMAN
amount. To the sum of P5,050,140.13, the UST Faculty Union added the
interest earnings of P1,146,381.27 from money market investments as well
as the amount ofP192,632.64 representing the disallowed amount of
expenses earlier deducted by UST from the P42,000,000.00 package. All in
all, the money left in the possession of the UST Faculty Union was
P6,389,154.04 which it distributed among the faculty members in 1994.
Complainants as members of the UST Faculty Union questioned the alleged
lack of transparency among the officers and directors of the union in the
management and disbursement of the monetary benefits for the faculty
members. They initiated two (2) complaints with the Office of the Regional
Director, National Capital Region, Department of Labor and Employment,
one on 18 October 1995, docketed as Case No. NCR-OD-M-9412-022, and
another, on 16 November 1996, docketed as Case No. NCR-OD-M-9510-
028. In both pleadings, they prayed for the expulsion of the officers and
directors of the union led by respondent Atty. Mario because of their alleged
failure to account for the balance of the P42,000,000.00 ceded to them by
UST and the attorneys fees amounting to P4,200,000.00 which they
deducted from the benefits allotted to faculty members.[4]
On 2 July 1997 complainants filed the instant complaint for disbarment
against Atty. Mario accusing him of (a) compromising their entitlements under
the 1986 collective bargaining agreement without the knowledge, consent or
ratification of the union members, and worse, for only P2,000,000.00 when
they could have received more than P9,000,000.00; (b) failing to account for
the P7,000,000.00 received by him and other officers and directors in the
UST Faculty Union under the 1990 compromise agreement; (c) lack of
transparency in the administration and distribution of the remaining balance
of the P42,000,000.00 package under the 1992 memorandum of agreement;
(d) refusal to remit and account for the P4,200,000.00 in favor of the faculty
members although the amount was denominated as attorneys fees.
Complainants asserted that respondent violated Rules 1.01[5] and 1.02[6] of
Canon 1; Rule 15.08[7]of Canon 15; Rules 16.01,[8] 16.02[9] and 16.03[10] of
Canon 16; and Rule 20.04[11] of Canon 20, of the Code of Professional
Responsibility.
On 4 November 1997, after several extensions Atty. Mario filed his comment
on the complaint. He alleged that the issues raised therein were the same
issues involved in the two (2) complaints before the Bureau of Labor
Relations and therefore constituted forum-shopping, and further explained
that he had adequately accounted for the disbursement of the money
demanded by complainants.
On 18 March 1998 we referred the disbarment complaint and the comment
thereon to the Integrated Bar of the Philippines for investigation, report and
recommendation within ninety (90) days from notice thereof.
On 18 May 1999 we received the Report of IBP Commissioner Lydia A.
Navarro as well as the Resolution of 30 March 1999 of the IBP Board of
Governors adopting and approving theReport which found the complaint
meritorious and suspended respondent Atty. Mario from the practice of law
until such time that the required detailed accounting of the questioned
remittances made by UST to the UST [Faculty Union] during his incumbency
as President and Legal Counsel has been officially submitted and reported
to the UST [Faculty Union] and to the IBP.
On 7 September 1999 respondent filed his comment on the IBP
Report and Resolution and alleged the same contentions he previously
asserted. On 27 October 1999 we referred the case back to the IBP for a
more detailed investigation and submission of report and recommendation
within sixty (60) days from notice.
In the meantime, or on 27 May 1999, the Regional Director found merit in the
two (2) complaints docketed as Case No. NCR-OD-M-9412-022 and Case
No. NCR-OD-M-9510-028 and ordered the expulsion of respondent and the
other officers and directors of the union led by respondent Atty. Mario
because of their failure to account for the balance of the P42,000,000.00 that
had been delivered to them by the management of UST, and their collection
of exorbitant and illegal attorneys fees amounting to P4,200,000.00.[12]
On 9 March 2000 the Bureau of Labor Relations in the appeal docketed as
BLR-A-TR-52-25-10-99 set aside the Order of the Regional Director. It found
that the balance of theP42,000,000.00 which UST delivered to the UST
Faculty Union had been fully and adequately accounted for by respondent
and the other officers and directors of the union.[13] Nonetheless, the Bureau
Page 231
of Labor Relations ordered respondent and the other officers and directors of
the union to distribute the attorneys fees of P4,200,000.00 among the
LEGAL ETHICS
faculty members and to immediately hold the elections for union officers and
directors in view of the expiration of their respective terms of office.
On 16 March 2001 the Decision of the Bureau of Labor Relations was
affirmed in toto by the Court of Appeals in CA-G.R. SP No. 60657.[14]
The Decision of the Court of Appeals was elevated to this Court, docketed
G.R. No. 149763, where the case is allegedly still pending resolution.
On 25 September 2002 we received the detailed Report and
Recommendation of IBP Commissioner Lydia A. Navarro and the IBP
Resolution of 3 August 2002 of the Board of Governors adopting and
approving the Report which recommended the lifting of Atty. Marios
suspension from law practice since he had sufficiently accounted for the
funds in question.
For a start, it appears that complainants did not file a petition with this Court
to review the IBP Resolution exonerating respondent from the accusations
against him and lifting his suspension from the practice of law, an action
otherwise required under Sec. 12, Rule 139-B of the Rules of Court if the
case against respondent could still proceed in this Court.Nevertheless since
the IBP Resolution is merely recommendatory, and considering further the
instructional value of this case to members of the Bench, many of whom are
engaged simultaneously in other businesses or professions, we find it
prudent and judicious to decide the instant case once and for all.
In fine, there are ethical lapses on the part of respondent Atty. Eduardo J.
Mario Jr. in the manner by which he secured the P7,000,000.00 by virtue of
the compromise agreement and the P4,200,000.00 attorneys fees under the
memorandum of agreement. Although the record shows that the Bureau of
Labor Relations found respondent as having adequately accounted for the
disbursement of the funds which the UST Faculty Union received through the
series of agreements with the management of UST, this Court believes that
Atty. Mario failed to avoid conflict of interests, first, when he negotiated for
the compromise agreement wherein he played the diverse roles of union
president, union attorney and interested party being one of the dismissed
employees seeking his own restitution, and thereafter, when he obtained the
attorneys fees of P4,200,000.00 without full prior disclosure of the
circumstances justifying such claim to the members of the UST Faculty
Union.
As one of the sixteen (16) union officers and directors seeking compensation
from the University of Santo Tomas for their illegal dismissal, respondent was
involved in obvious conflict of interests when in addition he chose to act as
concurrent lawyer and president of the UST Faculty Union in forging the
compromise agreement. The test of conflict of interest among lawyers is
whether the acceptance of a new relation will prevent an attorney from the full
discharge of his duty of undivided fidelity and loyalty to his client or invite
suspicion of unfaithfulness or double-dealing in the performance thereof.[15]
In the same manner, it is undoubtedly a conflict of interests for an attorney to
put himself in a position where self-interest tempts, or worse, actually impels
him to do less than his best for his client.
Thus it has been held that an attorney or any other person occupying
fiduciary relations respecting property or persons is utterly disabled from
acquiring for his own benefit the property committed to his custody for
management.[16] This rule is entirely independent of whether fraud has
intervened as in fact no fraud need be shown; no excuse will be heard from
an attorney because the rule stands on the moral obligation to refrain from
placing oneself in positions that ordinarily excite conflict between self-interest
and integrity.
Necessarily, a lawyer cannot continue representing a client in an action or
any proceeding against a party even with the clients consent after the lawyer
brings suit in his own behalf against the same defendant if it is uncertain
whether the defendant will be able to satisfy both judgments.[17] No doubt, a
lawyer is not authorized to have financial stakes in the subject matter of the
suit brought in behalf of his client.[18]
In the instant case, quite apart from the issue of validity of the 1990
compromise agreement, this Court finds fault in respondents omission of that
basic sense of fidelity to steer clear of situations that put his loyalty and
devotion to his client, the faculty members of UST, open to question. Atty.
Mario both as lawyer and president of the union was duty bound to protect
and advance the interest of union members and the bargaining unit above
his own. This obligation was jeopardized when his personal interest as one
of the dismissed employees of UST complicated the negotiation process and
eventually resulted in the lopsided compromise agreement that rightly or
PINEDAPCGRNMAN
wrongly brought money to him and the other dismissed union officers and
directors, seemingly or otherwise at the expense of the faculty members.
The facts would affirm this observation. In brokering the compromise
agreement, respondent received P5,000,000.00 as compensation for the
dismissed union officials while onlyP2,000,000.00 apparently settled USTs
obligations in favor of the faculty members under the 1986 collective
bargaining agreement when their original claim amounted to at
leastP9,000,000.00. Worse, the P2,000,000.00 concession for
accountabilities demandable long ago in 1986 was paid only in 1992 under
the memorandum of agreement, or a period of more than two (2) years after
the execution of the compromise agreement, in contrast to the immediate
payment of the P5,000,000.00 to Atty. Mario and the other union officers and
directors.
Respondent Atty. Mario ought to have disclosed to the members of the UST
Faculty Union, if not the entire bargaining unit of faculty members, his interest
in the compromise agreement as one of the dismissed union officers seeking
compensation for the claim of back wages and other forms of damages, and
also the reasons for reducing the claim of the faculty members from more
than P9,000,000.00 to only P2,000,000.00. As the record shows, the
explanations for respondents actions were disclosed only years after the
consummation of the compromise agreement, particularly only after the
instant complaint for disbarment was filed against him, when the accounting
should have been forthcoming either before or during the settlement of the
labor case against the management of UST.
Equally important, since respondent and the other union officers and
directors were to get for themselves a lions share of the compromise as they
ultimately did, Atty. Mario should have unambiguously divulged and made
clear to his client the compelling probability of conflict of interests. He should
have voluntarily turned over the reins of legal representation to another
lawyer who could have acted on the matter with a deep sense of impartiality
over the several claims against UST and an unfettered commitment to the
cause of the faculty members.
Furthermore, there was lack of notice and transparency in respondents dual
role as lawyer and president of the UST Faculty Union when he obtained
P4,200,000.00 as attorneys fees.Without ruling on the validity of the collection
of attorneys fees so as not to pre-empt the decision in G.R. No. 149763 on
this issue, the record does not show any justification for such huge amount of
compensation nor any clear differentiation between his legal services and his
tasks as union president comprising in all probability the same duties for
which he had collected a hefty compensation as attorney for the union.
The situation of Atty. Mario is not any different from that of an executor or
administrator of an estate who may not charge against the estate any
professional fee for legal services rendered by him because his efforts as
such are already paid for in his capacity as executor or administrator.[19]
Indeed, he could have avoided complaints and perceptions of self-
enrichment arising from the levy of attorneys fees by spelling out the terms
and bases for the claim of P4,200,000.00 since the compensation for his
services as president of the union should have otherwise covered his legal
services as well.
Regardless of the motivations of respondent in perfecting the compromise
agreement or demanding the inexplicable attorneys fees, his actions were
not transparent enough to allow the bargaining unit ample information to
decide freely and intelligently. Clearly, he violated Canon 15 of the Code of
Professional Responsibility requiring every lawyer to observe candor,
fairness and loyalty in all his dealings and transactions with his clients.
Lawyers are vanguards in the bastion of justice so they are without doubt
expected to have a bigger dose of service-oriented conscience and a little
less of self-interest.
As indispensable part of the system of administering justice, attorneys must
comply strictly with the oath of office and the canons of professional ethics -
a duty more than imperative during these critical times when strong and
disturbing criticisms are hurled at the practice of law. The process of imbibing
ethical standards can begin with the simple act of openness and candor in
dealing with clients, which would progress thereafter towards the ideal that a
lawyers vocation is not synonymous with an ordinary business proposition
but a serious matter of public interest.
Page 232
The evidence on record proves that Atty. Mario failed to disclose at crucial
moments significant information about the manner by which he secured the
P7,000,000.00 by virtue of the compromise agreement and
LEGAL ETHICS
the P4,200,000.00 attorneys fees under the memorandum of agreement. A
simple accounting of the money that he and others concerned received from
UST, as well as an explanation on the details of the agreements, would have
enlightened the faculty members about the probability of conflict of interests
on respondents part and guided them to look for alternative actions to protect
their own interests.
In light of the irrefragable fact of respondents misdemeanor, a possible
mitigation of his actionable conduct was that the attorneys fees and the
compromise agreement were negotiated and finalized under the most
strenuous circumstances where his leadership and that of his core officers
and directors were incessantly challenged by complainants allegedly aided
by factions within UST itself. He might also have believed that the settlement
achieved immense benefits for his constituents which would not have been
otherwise obtained if he had chosen to relinquish the rein of legal
representation to some other lawyer. Finally, it was not improbable for him to
suppose though wrongly that he could represent and in some manner serve
the interests of all of them, including his own, by pushing for and seeking the
approval of the agreements himself. [20]
We reiterate that the objective of a disciplinary case is not so much to punish
the individual attorney as to protect the dispensation of justice by sheltering
the judiciary and the public from the misconduct or inefficiency of officers of
the court. Restorative justice not retribution is our goal in this type of
proceedings. In view of this, instead of taking a more stern measure against
respondent, a reprimand and a warning would be sufficient disciplinary action
in accordance with our ruling in Sumangil v. Sta. Romana.[21] Hence, Atty.
Mario is admonished to refrain from all appearances and acts of impropriety
including circumstances indicating conflict of interests, and to behave at all
times with circumspection and dedication befitting a member of the Bar,
especially observing candor, fairness and loyalty in all transactions with his
client.[22]
WHEREFORE, respondent Atty. Eduardo J. Mario Jr. is REPRIMANDED for
his misconduct with a warning that a more drastic punishment will be imposed
on him upon a repetition of the same act.
SO ORDERED.
CANON 16 – A lawyer shall hold in trust all moneys and properties of
his client that may come into his possession.
Art. 1491. The following persons cannot acquire by purchase, even at a
public or judicial auction, either in person or through the mediation of
another:
(1) The guardian, the property of the person or persons who may be
under his guardianship;
(2) Agents, the property whose administration or sale may have been
entrusted to them, unless the consent of the principal has been given;
(3) Executors and administrators, the property of the estate under
administration;
(4) Public officers and employees, the property of the State or of any
subdivision thereof, or of any government-owned or controlled
corporation, or institution, the administration of which has been
intrusted to them; this provision shall apply to judges and government
experts who, in any manner whatsoever, take part in the sale;
(5) Justices, judges, prosecuting attorneys, clerks of superior and
inferior courts, and other officers and employees connected with the
administration of justice, the property and rights in litigation or levied
upon an execution before the court within whose jurisdiction or
territory they exercise their respective functions; this prohibition
includes the act of acquiring by assignment and shall apply to lawyers,
with respect to the property and rights which may be the object of any
litigation in which they may take part by virtue of their profession.
(6) Any others specially disqualified by law.
Rule 16.01 – A lawyer shall account for all money or property collected
or received for or from the client.
ATTY. RICARDO M. A.C. No. 7820
SALOMON, JR.,
Complainant, Present:
QUISUMBING, J., Chairperson,
PINEDAPCGRNMAN
CARPIO MORALES,
- versus - TINGA,
VELASCO, JR., and
BRION, JJ.
Promulgated:
ATTY. JOSELITO C. FRIAL,
Respondent. September 12, 2008
x ------------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
In his sworn complaint[1] filed before the Integrated Bar of the Philippines
(IBP) on December 22, 2006, complainant Atty. Ricardo M. Salomon, Jr.
charged respondent Atty. Joselito C. Frial with violating his Lawyers Oath
and/or gross misconduct arising from his actuations with respect to two
attached vehicles. Complainant, owner of the vehicles in question, asked that
Atty. Frial be disbarred.
The instant complaint has its beginning in the case, Lucy Lo v. Ricardo
Salomon et al., docketed as Civil Case No. 05-111825 before the Regional
Trial Court in Manila, in which a writ of preliminary attachment was issued in
favor of Lucy Lo, Atty. Frials client. The writ was used to attach two (2) cars
of complainanta black 1995 Volvo and a green 1993 Nissan Sentra.
According to Atty. Salomon, the attaching sheriff of Manila, instead of
depositing the attached cars in the court premises, turned them over to Atty.
Frial, Los counsel. Atty. Salomon claimed that on several occasions, the
Nissan Sentra was spotted being used by unauthorized individuals. For
instance, on December 26, 2005, barangay captain Andrew Abundo saw the
Nissan Sentra in front of a battery shop on Anonas St., Quezon City. On
February 18, 2006, Architect Roberto S. Perez and three others saw and took
video and photo shots of the same car while in the Manresa Shell station at
P. Tuazon Blvd. corner 20th Avenue, Quezon City. Also sometime in June
2006, Robert M. Perez, complainants driver, saw the said car in another Shell
station near Kamias Street. On December 16, 2006, Arlene Carmela M.
Salomon spotted it driven by bondsman Ferdinand Liquigan allegedly with
Atty. Frials consent. As Atty. Salomon further alleged, when the misuse of
the car was reported, paving for Liquigans apprehension, Atty. Frial, in a
letter, acknowledged having authorized Liquigan to bring the car in custodia
legis to a mechanic.
As to the Volvo, Atty. Salomon averred that during mediation, Atty. Frial
deliberately withheld information as to its whereabouts. As it turned out later,
the Volvo was totally destroyed by fire, but the court was not immediately put
on notice of this development.
In his Answer,[2] Atty. Frial admitted taking custody of the cars thru his own
undertaking, without authority and knowledge of the court. The subject
vehicles, according to him, were first parked near the YMCA building in front
of the Manila City Hall where they remained for four months. He said that
when he went to check on the vehicles condition sometime in December
2005, he found them to have been infested and the wirings underneath the
hoods gnawed by rats. He denied personally using or allowing others the use
of the cars, stating in this regard that if indeed the Nissan Sentra was spotted
on Anonas St., Quezon City on December 26, 2005, it could have been the
time when the car was being transferred from the YMCA. The February 18,
2006 and June 2006 sightings, so Atty. Frial claimed, possibly occurred when
the Nissan Sentra was brought to the gas station to be filled up. He said that
the car could not have plausibly been spotted in Project 3 on December 13,
2006, parked as it was then in front of Liquigans house for mechanical check-
up.
During the mandatory conference/hearing before the IBP Commission on Bar
Discipline, the parties agreed on the following key issues to be resolved: (1)
whether or not Atty. Frial used the cars for his personal benefit; and (2)
whether or not Atty. Frial was guilty of infidelity in the custody of the attached
properties.
Page 233
Thereafter and after the submission by the parties of their respective position
papers, the Commission submitted a Report dated October 9, 2007 which
LEGAL ETHICS
the IBP Board of Governors forthwith adopted and then transmitted to this
Court. In the Report, the following were deduced from the affidavits of Andrew
Abundo, Roberto Perez, Robert Perez, and Dante Batingan: (1) at no time
was Atty. Frial seen driving the Sentra; (2) Abundo learned that at that time
the car was spotted at the battery shop, the unnamed driver bought a new
battery for the car which was not inappropriate since a battery was for the
preservation of the car; (3) Atty. Frial admitted that the Nissan Sentra was seen
gassed up on February 18, 2006 and in June 2006 and there was no reason
to gas up the Nissan Sentra on those times unless it was being used;
(4) Roberto Perez said the Nissan Sentra was used to buy goats meat; and
(5) photos of the Nissan Sentra in different places obviously showed it was
being used by others.
In the same Report, the Commission observed that while there is perhaps no
direct evidence tying up Atty. Frial with the use of the Nissan Sentra, the
unyielding fact remains that it was being used by other persons during the
time he was supposed to have custody of it. In addition, whoever drove the
Nissan Sentra on those occasions must have received the car key from Atty.
Frial. When Atty. Frial took custody of the Nissan Sentra and Volvo cars, he
was duty bound to keep and preserve these in the same condition he
received them so as to fetch a good price should the vehicles be auctioned.
As to the burnt Volvo, Atty. Frial admitted receiving it in excellent condition
and that there was no court order authorizing him to remove the car from the
YMCA premises. Admitted too was the fact that he secured the release of
the Volvo on the strength alone of his own written undertaking;[3] and that the
car was almost totally destroyed by fire onFebruary 4, 2006 at 1:45 a.m.[4]
while parked in his residence. He could not, however, explain the
circumstances behind the destruction, but admitted not reporting the burning
to the court or the sheriff. While the burning of the car happened before the
mediation hearing, Atty. Frial, upon inquiry of Atty. Salomon, did not give
information as to the whereabouts of the cars.
The destruction of the Volvo in Atty. Frials residence was not an ordinary
occurrence; it was an event that could have not easily escaped his attention.
Accordingly, there is a strong reason to believe that Atty. Frial deliberately
concealed the destruction of said vehicle from the court during the hearings
in Civil Case No. 05-111828, which were the opportune times to reveal the
condition of the Volvo car.
On the basis of the foregoing premises, the Commission concluded that Atty.
Frial committed acts clearly bearing on his integrity as a lawyer, adding that
he failed to observe the diligence required of him as custodian of the cars.
The Commission thus recommended that Atty. Frial be suspended from the
practice of law for one (1) year.
The findings and the recommendation of the Commission are well-taken.
A writ of attachment issues to prevent the defendant from disposing of the
attached property, thus securing the satisfaction of any judgment that may
be recovered by the plaintiff or any proper party.[5] When the objects of the
attachment are destroyed, then the attached properties would necessarily be
of no value and the attachment would be for naught.
From the evidence adduced during the investigation, there is no question that
Atty. Frial is guilty of grave misconduct arising from his violation of Canon 11
of the Canons of Professional Ethics that states:
11. Dealing with trust property
The lawyer should refrain from any action whereby for his personal benefit or
gain he abuses or takes advantage of the confidence reposed in him by his
client.
Money of the client or collected for the client or other trust property coming
into the possession of the lawyer should be reported and accounted for
promptly and should not under any circumstances be commingled with his
own or be used by him. (Emphasis ours.)
PINEDAPCGRNMAN
A lawyer is first and foremost an officer of the court. As such, he is expected
to respect the courts order and processes. Atty. Frial miserably fell short of
his duties as such officer. He trifled with the writ of attachment the court
issued.
Very patently, Atty. Frial was remiss in his obligation of taking good care of
the attached cars. He also allowed the use of the Nissan Sentra car by
persons who had no business using it. He did not inform the court or at least
the sheriff of the destruction of the Volvo car. What is worse is that he took
custody of them without so much as informing the court, let alone securing,
its authority.
For his negligence and unauthorized possession of the cars, we find Atty.
Frial guilty of infidelity in the custody of the attached cars and grave
misconduct. We must mention, at this juncture, that the victorious parties in
the case are not without legal recourse in recovering the Volvos value from
Atty. Frial should they desire to do so.
The Court, nevertheless, is not inclined to impose, as complainant urges, the
ultimate penalty of disbarment. The rule is that disbarment is meted out only
in clear cases of misconduct that seriously affect the standing and moral
character of a lawyer as an officer of the court and member of the bar.[6] With
the view we take of the case, there is no compelling evidence tending to show
that Atty. Frial intended to pervert the administration of justice for some
dishonest purpose.
Disbarment, jurisprudence teaches, should not be decreed where any
punishment less severe, such as reprimand, suspension, or fine, would
accomplish the end desired.[7]This is as it should be considering the
consequence of disbarment on the economic life and honor of the erring
person. In the case of Atty. Frial, the Court finds that a years suspension from
the practice of his legal profession will provide him with enough time to
ponder on and cleanse himself of his misconduct.
WHEREFORE, Atty. Joselito C. Frial is adjudged guilty of grave misconduct
and infidelity in the custody of properties in custodia legis. He is hereby
SUSPENDED from the practice of law for a period of one (1) year effective
upon his receipt of this Decision. Let notice of this Decision be entered in his
personal record as an attorney with the Office of the Bar Confidant and notice
of the same served on the IBP and on the Office of the Court Administrator
for circulation to all the courts concerned.
A.C. No. 7057 July 25, 2006
DAVID L. ALMENDAREZ, JR., complainant,
vs.
ATTY. MINERVO T. LANGIT, respondent.
DECISION
CARPIO, J.:
The Case
On 5 May 2004, David L. Almendarez, Jr. ("complainant") filed this complaint-
affidavit1 before the Integrated Bar of the Philippines (IBP), seeking the
disbarment of Atty. Minervo T. Langit ("respondent") for acts unbecoming a
lawyer.
The facts are undisputed:
Complainant, as attorney-in-fact of his mother Pura Lioanag Vda. de
Almendarez, was the plaintiff in an ejectment case before the Municipal Trial
Court of Dagupan City, Branch 2 ("trial court"). Respondent served as
complainant's counsel. While the case was pending, defendant Roger
Bumanlag ("Bumanlag") deposited monthly rentals for the property in dispute
to the Branch Clerk of Court.
On 3 February 1994, the trial court rendered a decision in the ejectment case
based on a compromise agreement executed by complainant and Bumanlag.
On 18 December 1995, the trial court issued an alias writ of execution for the
satisfaction of the decision. A court order2 dated 2 March 2000 granted the
Omnibus Motion for Execution and Withdrawal of Deposited Rentals filed by
respondent as complainant's counsel. Respondent filed a second motion for
withdrawal of deposited rentals, which the trial court also granted on 16
Page 234
March 2000.
Sometime in May 2003, complainant learned that respondent was able to
withdraw the rentals deposited by Bumanlag. Felicidad Daroy ("Daroy"),
LEGAL ETHICS
Officer-in-Charge Clerk of Court, confirmed this to complainant who received
from Daroy copies of the two withdrawal slips drawn from the trial court's
savings account. One slip dated 10 March 2000 was for P28,000,3 and
another slip dated 19 April 2000 was for P227,000.4 Thus, respondent
received a total of P255,000, as evidenced by two receipts5 signed by him.
The withdrawals were made through Daroy's authorized representative
Antonia Macaraeg, but Daroy personally delivered the money to respondent.
Respondent did not inform complainant of these transactions.
Complainant, through his new counsel Atty. Miguel D. Larida, sent
respondent on 30 June 2003 a final demand letter for the accounting and
return of the P255,000.6 Respondent failed to reply.
Hence, complainant filed this case for disbarment against respondent for
failing to account for complainant's funds. Complainant further accuses
respondent of neglecting to pursue the implementation of the writ of
execution issued in the ejectment case.
On 12 May 2004, IBP Director for Bar Discipline Rogelio A. Vinluan ("IBP
Director Vinluan") ordered respondent to submit his Answer to the complaint.
Respondent did not file an answer despite receipt of the notice.7
On 4 October 2004, IBP Investigating Commissioner Caesar R. Dulay ("IBP
Commissioner Dulay") notified the parties to appear before him for a
mandatory conference on 15 November 2004, later reset to 17 January 2005.
Only complainant appeared at the conference, prompting IBP Commissioner
Dulay to order the conference terminated and to declare that respondent had
waived his right to participate in the proceedings. IBP Commissioner Dulay
directed the parties to file their respective position papers. Complainant
submitted his position paper on 22 March 2005. Again, respondent took no
action.
Findings and Recommendation of the IBP
On 8 June 2005, IBP Commissioner Dulay submitted his Report and
Recommendation ("Report")8 with the finding that respondent failed to
account for money he held in trust for complainant. The Report considered
complainant's evidence "clear and convincing" enough to justify disciplinary
action against respondent for violation of Rule 16.01 of the Code of
Professional Responsibility. IBP Commissioner Dulay recommended that
respondent be declared guilty of gross misconduct and suspended for one
year, aside from being ordered to render an accounting of the money he had
received.
In a Resolution9 dated 17 December 2005, the IBP Board of Governors
approved the Report, with the modification that the penalty of suspension be
increased to two years.
The Court's Ruling
We sustain the findings of the IBP.
Respondent committed a flagrant violation of his oath when he received the
sum of money representing the monthly rentals intended for his client, without
accounting for and returning such sum to its rightful owner. Respondent
received the money in his capacity as counsel for complainant. Therefore,
respondent held the money in trust for complainant. The Code of
Professional Responsibility ("Code") states:
CANON 16 — A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS
POSSESSION.
Rule 16.01—A lawyer shall account for all money or property collected or
received for or from the client.
Rule 16.03—A lawyer shall deliver the funds and property to his client when
due or upon demand. However, he shall have a lien over the funds and may
apply so much thereof as may be necessary to satisfy his lawful fees and
disbursements, giving notice promptly thereafter to his client. He shall also
have a lien to the same extent on all judgments and executions he has
secured for his client as provided for in the Rules of Court.
Respondent should have immediately notified complainant of the trial court's
approval of the motion to withdraw the deposited rentals. Upon release of the
funds to him, respondent could have collected any lien which he had over
them in connection with his legal services, provided he gave prompt notice
to complainant. A lawyer is not entitled to unilaterally appropriate his client's
money for himself by the mere fact that the client owes him attorney's fees.10
In this case, respondent did not even seek to prove the existence of any lien,
or any other right that he had to retain the money.
Respondent's failure to turn over the money to complainant despite the
latter's demands gives rise to the presumption that he had converted the
money for his personal use and benefit. This is a gross violation of general
PINEDAPCGRNMAN
morality as well as of professional ethics, impairing public confidence in the
legal profession.11 More specifically, it renders respondent liable not only for
violating the Code but also for contempt, as stated in Section 25, Rule 138 of
the Rules of Court:
SEC. 25. Unlawful retention of client's funds; contempt — When an attorney
unjustly retains in his hands money of his client after it has been demanded
he may be punished for contempt as an officer of the Court who has
misbehaved in his official transactions; but proceedings under this section
shall not be a bar to a criminal prosecution.
Additionally, respondent failed to observe Canon 1712 of the Code, which
obligates the lawyer to take up the cause of his client with entire zeal and
devotion. It seems that after respondent received the withdrawn deposits, he
never contacted complainant again. He did not pursue the implementation of
the writ of execution issued in the ejectment case, to the prejudice of
complainant. By his inaction, respondent violated the trust and confidence
reposed in him. For in agreeing to be complainant's counsel, respondent
undertook to take all steps necessary to safeguard complainant's interest in
the case.
The misconduct of respondent is aggravated by his unjustified refusal to heed
the orders of the IBP requiring him to file an answer to the complaint-affidavit
and, afterwards, to appear at the mandatory conference. Although
respondent did not appear at the conference, the IBP gave him another
chance to defend himself through a position paper. Still, respondent ignored
this directive, exhibiting a blatant disrespect for authority. Indeed, he is justly
charged with conduct unbecoming a lawyer, for a lawyer is expected to
uphold the law and promote respect for legal processes.13 Further, a lawyer
must observe and maintain respect not only to the courts, but also to judicial
officers and other duly constituted authorities,14 including the IBP. Under Rule
139-B of the Rules of Court, the Court has empowered the IBP to conduct
proceedings for the disbarment, suspension, or discipline of attorneys.
The relation of attorney and client is highly fiduciary, requiring utmost good
faith, loyalty, and fidelity on the part of the attorney. Respondent miserably
failed in this regard. Instead, he demonstrated a lack of integrity, care, and
devotion required by the legal profession from its members. Whenever a
lawyer is no longer worthy of the trust and confidence of the public, this Court
has the right and duty to withdraw his privilege as officer of the Court and
member of the Bar.15
WHEREFORE, we find Atty. Minervo T. Langit GUILTY of violating Canons
1, 11, 16, and 17 of the Code of Professional Responsibility. We
SUSPEND respondent from the practice of law for two years effective upon
finality of this Decision. We ORDER respondent to RESTITUTE, within 30
days from finality of this Decision, complainant's P255,000, with interest at
12% per annum from 30 June 2003 until fully paid. We DIRECTrespondent to
submit to the Court proof of payment within 15 days from payment of the full
amount.
Let copies of this Decision be furnished all courts, the Office of the Bar
Confidant, as well as the Integrated Bar of the Philippines, for their notice and
guidance.
SO ORDERED.
[A.C. No. 4904. August 12, 2004]
ANA A. CHUA and MARCELINA HSIA, complainants, vs. ATTY. SIMEON
M. MESINA, JR., respondent.
DECISION
PER CURIAM:
By a verified complaint[1] received by the Office of the Bar Confidant on May
5, 1998,[2] Ana Alvaran Chua and Marcelina Hsia administratively charged
Atty. Simeon M. Mesina, Jr., for breach of professional ethics, gross
professional misconduct, and culpable malpractice.
As related by complainants, the following facts gave rise to the filing of the
complaint.
Respondent was, for years, Ana Alvaran Chua and her now deceased
husband Chua Yap Ans legal counsel and adviser upon whom they reposed
trust and confidence. They were in fact lessees of a building situated at
Burgos Street, Cabanatuan City (Burgos property) owned by respondents
Page 235
family, and another property containing an area of 854 sq. m., situated at
Melencio Street, Cabanatuan City (Melencio property), also owned by
respondents family whereon they (spouses Chua) constructed their
LEGAL ETHICS
house. These two properties were mortgaged by the registered owner,
respondents mother Felicisima Melencio vda. de Mesina (Mrs. Mesina), in
favor of the Planters Development Bank to secure a loan she obtained.
As Mrs. Mesina failed to meet her obligation to the bank, respondent
convinced complainant Ana Chua and her husband to help Mrs. Mesina by
way of settling her obligation in consideration for which the Melencio property
would be sold to them at P850.00/sq. m.
Accommodating respondents request, the spouses Chua and their business
partner, herein co-complainant Marcelina Hsia, settled Mrs. Mesinas bank
obligation in the amount ofP983,125.40.
A Deed of Absolute Sale dated January 19, 1985[3] conveying the Melencio
property for P85,400.00 was thereafter executed by Mrs. Mesina, whose
name appears therein as Felicisima M. Melencio, in favor of complainants.
As complainants were later apprised of the amount of capital gains tax they
were to pay, they consulted respondent about it. Respondent thus suggested
to them that another Deed of Absolute Sale should be executed, antedated
to 1979 before the effectivity of the law mandating the payment of capital
gains tax. As suggested by respondent, another Deed of Absolute Sale
antedated February 9, 1979[4] was executed by Mrs. Mesina, whose name
again appears therein as Felicisima M. Melencio, in favor of complainants
wherein the purchase price was also indicated to be P85,400.00.
After liquidating the advances made by the Chua spouses in the redemption
of the MESINA properties, Mrs. Mesina was found to have an existing
balance due the spouses in the amount of P400,000.00, on account of which
they advised respondent about it. Respondent, by Affidavit of February 18,
1986, acknowledged such obligation to be his and undertook to settle it within
two years.
Complainants were subsequently issued on January 21, 1986 a title over the
Melencio property.
Not long after the execution of the February 9, 1979 Deed of Absolute Sale
or in February 1986, one Juanito Tecson (Tecson) filed an Affidavit[5] dated
February 20, 1986 before the Cabanatuan City Prosecutors Office charging
respondents mother, the spouses Chua, Marcelina Hsia and the two
witnesses to the said Deed of Absolute Sale, for Falsification of Public
Document and violation of the Internal Revenue Code. In his complaint
affidavit, Tecson alleged that he was also a lessee of the Melencio property
and was, along with the Chua spouses, supposed to purchase it but that
contrary to their agreement, the property was sold only to complainant and
her co-complainant, to his exclusion. Tecson went on to relate that the
February 9, 1979 Deed of Absolute Sale did not reflect the true value of the
Melencio property and was antedated to evade payment of capital gains tax.
Tecson submitted documents showing that indeed the July 9, 1979 Deed of
Absolute Sale was antedated.
Respondent thereupon hatched a plan to dodge the falsification charge
against Mrs. Mesina et al. He proposed to complainants that they would
simulate a deed of sale of the Melencio property wherein complainants would
resell it to Mrs. Mesina.
Heeding the proposal of respondent, complainants executed a Deed of
Absolute Sale dated April 1, 1986[6] conveying to Felicisima M. Melencio the
Melencio property for P85,400.00.
A new title was accordingly issued on April 4, 1986 in the name of Felicisima
M. Melencio, the owners copy of which was entrusted to complainants.
Tecson subsequently filed before the Cabanatuan City Prosecutors Office an
Affidavit of Desistance dated September 5, 1986[7] alleging that his filing of
the criminal complaint arose out of mere misunderstanding and difference
with herein complainants and their co-respondents and he had no sufficient
evidence against them.
Some years later or on May 2, 1990, respondent approached complainants
and told them that he would borrow the owners copy of Mrs. Mesinas title
with the undertaking that he would, in four months, let Mrs. Mesina execute
a deed of sale over the Melencio property in complainants favor. In fact,
respondent gave complainants a written undertaking[8] dated May 2, 1990
reading:
Received the owners duplicate copy of TCT No. 4383 issued by the Register
of Deeds, Cabanatuan City registered in the name of Felicisima Mesina,
widow, consisting of about 854 square meters more or less located at calle
Melencio, Cabanatuan City from Mrs. Ana Chua and Marcelina Hsia.
I promise to and undertake to have the Deed of Sale of the above-
mentioned property in favor of Ana
Chua and Marcelina Hsia to be signed by Mrs. Felicisima Mesina, within fou
PINEDAPCGRNMAN
r (4) months from datehereof so that the above-mentioned property and title
maybe transferred in the name of Ana Chua and Macelina Hsia.
(Underscoring supplied)
In the meantime, Mrs. Mesina died in the early part of 1991.
Despite respondents repeated promises to effect the transfer of title in
complainants name, he failed to do so. Complainants were later informed
that the Melencio property was being offered for sale to the public.
The spouses Chua and complainant Marcelina Hsia thus filed on August 24,
1992 a Complaint[9] against respondent and his two siblings before the
Regional Trial Court (RTC) of Nueva Ecija in Cabanatuan City, for
Declaration of Nullity of Sale and Reconveyance of Real Property.
As of the time of the filing of the present administrative complaint in 1998, the
civil case against the Mesina siblings was still pending.
This Court, by Resolution of July 13, 1998,[10] directed respondent to file
Comment on the complaint within ten days.
By Resolution of December 2, 1998,[11] this Court, noting that the copy of the
Resolution of July 13, 1998 requiring respondent to comment on the
complaint sent to him at his office address at S. M. Mesina Law Office, 30
Jupiter St., Paseo de Roxas, Bel-Air Subd., Makati City was returned
unserved with the notation Moved, considered the Resolution of July 13,
1998 served on respondent by substituted service pursuant to Rule 13,
Section 8 of the 1997 Rules of Civil Procedure. Respondent was accordingly
deemed to have waived the filing of the required comment.
By the same Resolution of December 2, 1998, the case was referred to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation within ninety days.
The IBP, acting on the complaint, issued a notice of hearing on September
14, 2001,[12] copy of which was sent to respondent at his office address via
registered mail, covered by Registry Receipt No. 2605 of the Meralco Post
Office.[13] On the scheduled date of hearing, complainants personally
appeared with their counsel. Respondent failed to show up.
Given the length of time that the case remained pending from its filing, the
IBP Commission on Bar Discipline, by Order of October 12, 2001,[14] directed
complainants to just file their position paper with affidavits and supporting
documents in lieu of actual presentation of witnesses and to serve a copy
thereof to respondent at his last known address.
In compliance with the IBP Order, complainants filed on April 1, 2002 their
position paper,[15] annexed to which were photocopies of: 1) a May 5, 1993
Certification[16] issued by the Metrobank Cabanatuan Branch certifying that it
issued the demand drafts to the payees enumerated below, which were
debited from the account of Mr. Chua Yap An under Savings Account No.
760:
D/D No. Payee Amount Date of Issue
214597 Planters Dev. Bank P 805,299.54 12-19-85
214760 Planters Dev. Bank 100,000.00 01-14-86
214761 Atty. Simeon Mesina, Jr. 77,826.10 01-14-86;
2) Affidavit dated February 18, 1986[17] of respondent acknowledging a debt
of P400,000.00 to complainant Ana Alvaran Chua and promising to pay
interest thereon within 2 years to commence upon the signing thereof
[February 16, 1998] and, in the event no partial or full payment of the principal
is made within 2 years, Ana Alvaran Chua is under no obligation to pay any
lease rentals over the lot situated in Burgos Avenue, Cabanatuan City where
the Oceanic Hardware Bldg. is erected; 3) Deed of Absolute Sale dated
January 19, 1985[18] and 4) Deed of Absolute Sale dated July 9, 1979,[19] both
executed by Felicisima M. Melencio in favor of complainant; 5) TCT No. T-
48114[20] issued by the Cabanatuan City in the name of complainants on
January 21, 1986; 6) Affidavit of Juanito C. Tecson[21] dated January 20, 1986
charging complainants et al. for Falsification of Public Documents; 7) Deed
of Absolute Sale dated April 1, 1986 executed by complainants in favor of
Mrs. Mesina;[22] and 8) TCT No. T-48383issued on April 4, 1986 in the name
of Felicisima M. Melencio;[23] and 9) Complaint of spouses Chua Yap An and
Ana Alvaran Chua and Marcelina Hsia, for Declaration of Nullity of Deed of
Sale and Reconveyance of Real Property against respondent and his two
siblings.[24]
A copy of complainants position paper was sent on March 18, 2002 to
respondent at his office address by registered mail covered by Registry
Receipt No. 5278.[25] There is no showing if respondent received this mail
Page 236
matter.
The IBP once more scheduled, by notice of December 13, 2002,[26] a hearing
of the administrative case to January 15, 2003, copy of which notice was sent
LEGAL ETHICS PINEDAPCGRNMAN
to respondent at his office address by registered mail covered by Registry CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
Receipt No. 2953 issued by the Meralco Post Office.[27] AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE
On the scheduled hearing on January 15, 2003, the IBP Investigating ACTIVITIES OF THE INTEGRATED BAR.
Commissioner, by Order of even date,[28] noted the presence of Rule 7.03. - A lawyer shall not engage in conduct that adversely reflects on
complainants, and the absence of respondent, copy of the notice of hearing his fitness to practice law, nor shall he, whether in public or private life,
to whom was returned unserved with the notation RTS-Moved. The case was behave in a scandalous manner to the discredit of the legal profession.
thereupon deemed submitted for report and recommendation. CANON 15. A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND
On June 21, 2003, the IBP passed Resolution No. XV-2003-342[29] adopting LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS
and approving the report and recommendation of Atty. Rebecca Villanueva- CLIENTS.
Maala, the Investigating Commissioner of the case. Rule 15.07. - A lawyer shall impress upon his client compliance with the laws
In her March 3, 2003 Report and Recommendation,[30] Investigation and the principles of fairness.
Commissioner Maala observed as follows: CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
A lawyer should not engage or participate on any unlawful, dishonest, AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
immoral or deceitful conduct. The moral character he displayed when he REPOSED IN HIM.
applied for admission at the Bar must be maintained incessantly. Otherwise, WHEREFORE, respondent ATTY. SIMEON M. MESINA, JR. is, for gross
his privilege to practice the legal profession may be withdrawn from him (Rule misconduct, hereby DISBARRED.
1.01, Code of Professional Responsibility). On the basis of the Let copies of this Decision be furnished all courts, the Integrated Bar of the
uncontroverted facts and evidence presented, respondent Atty. Philippines, and the Office of the Bar Confidant.
Simeon M. Mesina has committed gross misconduct which shows him to be SO ORDERED.
unfit for the office and unworthy of the privilege which his license and law
confer upon him,
and recommended that respondent be suspended for a period of One (1) A.C. No. 7337 September 29, 2014
Year. ROLANDO VIRAY, Complainant,
This Court finds that indeed, respondent is guilty of gross misconduct. vs.
First, by advising complainants to execute another Deed of Absolute Sale ATTY. EUGENIO T. SANICAS, Respondent.
antedated to 1979 to evade payment of capital gains taxes, he violated his RESOLUTION
duty to promote respect for law and legal processes,28 and not to abet DEL CASTILLO, J.:
activities aimed at defiance of the law;29 That respondent intended to, as he This is a verified Complaint for Disbarment/Gross Immoral Conduct1 filed
did defraud not a private party but the government is aggravating.30 with this Court on September 18, 2006 by complainant Rolando Viray
Second, when respondent convinced complainants to execute another (complainant) against respondent Atty. Eugenio T. Sanicas (respondent).
document, a simulated Deed of Absolute Sale wherein they made it appear Factual Antecedents
that complainants reconveyed the Melencio property to his mother, he Complainant alleges that he engaged the services of respondent relative to
committed dishonesty.31 a labor case2 he filed against Ester Lopez and Teodoro Lopez III (spouses
Third, when on May 2, 1990 respondent inveigled his own clients, the Chua Lopez). On February 26, 2001, the Labor Arbiter ruled in favor of complainant
spouses, into turning over to him the owners copy of his mothers title upon and disposed of the case as follows:
the misrepresentation that he would, in four months, have a deed of sale WHEREFORE, premises considered, judgment is hereby rendered ordering
executed by his mother in favor of complainants, he likewise committed respondents Ester Lopez and Teodoro Lopez III to pay complainant Rolando
dishonesty. Viray of the following, to wit:
That the signature of Felicisima M. Melencio in the 1985 document32 and that 1. Backwages ........................... P146,726.67
in the 1979 document33 are markedly different is in fact is a badge of 2. Separation Pay ......................... 24,000.00
falsification of either the 1979 or the 1985 document or even both. 3. Service Incentive Leave Pay ......... .1,538.46
A propos is this Courts following pronouncement in Nakpil v. Valdez34 4. Attorney's Fees ........................ .17,226.51
As a rule, a lawyer is not barred from dealing with his client or a total amount of One Hundred Eighty Nine Thousand Fom Hw1dred
but the business transaction must be characterized with utmost honesty an Ninety One Pesos & 64/100 (Pl89,491.60) [sic] to be deposited with the
d good faith. The measure of good faith which an attorney is required toexe Cashier of this Office, wjthin ten (10) days from receipt hereof
rcise in his dealings with his client is a much higher standard that is require All other claims are hereby denied for lack of merit.
d in business dealings where the parties trade at arms length. Business SO ORDERED.3
transactions between an attorney and his client are disfavored and Subsequently, an Alias Writ of Execution4 was issued relative to aforesaid
discouraged by the policy of the law. Hence, courts carefully watch these decision. During the implementation of said writ, however, complainant
transactions to assure that no advantage is taken by a lawyer over his discovered that respondent had already collected the total amount of
client. This rule is founded on public policy for, by virtue of his office, an P95,000.00 from spouses Lopez. Respondent received said amount in the
attorney is in an easy position to take advantage of the credulity and following manner:
ignorance of his client. Thus, no presumption of innocence or improbability Date Voucher No. Amount Purpose
of wrongdoing is considered in an attorneys favor.35 (Underscoring supplied)
Respondent having welched on his promise to cause the reconveyance of 0210512004 7802 P20,000.00 Attorney's fees
the Melencio property to complainants, consideration of whether he should
be ordered to honor such promise should be taken up in the civil case filed 02/13/2004 7833 10,000.00 Partial payment for judgment
for the purpose, the issue there being one of ownership while that in the case
at bar is moral fitness.37 0212612004 7848 10,000.00 Partial payment for judgment
In fine, respondent violated his oath of office and, more specifically, the
03/12/2004 7894 20,000.00 Partial payment for judgment
following canons of the Code of Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE 0410212004 7932 5,000.00 Partial payment for judgment
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES. 0410612004 7941 5,000.00 Partial payment for judgment
Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. 04/13/2004 7944 5,000.00 Partial payment for judgment
Rule 1.02. - A lawyer shall not counsel or abet activities aimed at defiance of
04/16/2004 7954 10,000.00 Partial payment for judgment
Page 237

the law or at lessening confidence in the legal system.

0413012004 7977 10,000.00 Partial payment for judgment
LEGAL ETHICS PINEDAPCGRNMAN
Execution was issued and being implemented when complainant discovered
that spouses Lopez had already given respondent the total amount of
Total Amount: P95,000.00 P95,000.00 as partial payment for the monetary awards granted to him by the
labor tribunal.
Complainant also discovered that respondent misrepresented to spouses
To make matters worse, respondent withheld and refused to deliver to the
Lopez that he is authorized to receive payments on his behalf, when in truth
complainant said amount, which he merely received on behalf of his client,
and in fact he is not. Consequently, complainant made several verbal
even after demand. Complainant brought the matter before the barangay, but
demands to the respondent to remit to him the amount of P95,000.00, less
respondent simply ignored the same. Such failure and inordinate refusal on
his attorney's fees of P20,000.00. But respondent did not budge. Thus,
the part of the respondent to render an accounting and return the money after
complainant lodged a complaint before the Office of the Punong Barangay of
demand raises the presumption that he converted it to his own use.14 His
Brgy. Felisa, Bacolod City. Respondent, however, ignored the summons to
unjustified withholding of the funds also warrants the imposition of
attend a conference before the barangay to resolve the issues.
disciplinary action against him.15
In his Comment,5 respondent admits that he received P95,000.00 from
Respondent justifies his action by asserting that complainant authorized him
spouses Lopez on installments, but denies that he was not authorized to
to receive payment. He implies that he is also authorized to apply the sum of
accept it. He explains that complainant agreed to pay him additional
money he received from spouses Lopez to his additional 25o/o attorney's
attorney's fees equivalent to 25o/o of the total monetary award, on top of the
fees and reimbursement for all expenses he incurred for the case, in the total
attorney's fees that may be awarded by the labor tribunal, and to refund all
amount of P72,275.13. However, after deducting from the amount of
expenses respondent incurred relative to the case. Thus, from the total award
P95,000.00 the amounts of P20,000.00, P17,000.00, andP2,000.00, what
ofP189,491.60, the sum of P17,226.57 representing respondent's
was left to respondent, to his dismay was only P56,000.00.
professional fees has to be deducted, leaving a balance of
The Court is not impressed. As aptly observed by the Investigating
P172,275.13.6 Then from said amount, complainant proposed that he will get
Commissioner, other than his self-serving statements, there is nothing in the
P100,000.00 and the balance of P72,275.13 shall belong to respondent as
records which would support respondent's claim that he was authorized to
and for his additional 25o/o attorney's fees and reimbursement for all
receive the payments. Neither is there proof that complainant agreed to pay
expenses he incurred while handling the case. However, after receiving the
him additional 25% attorney's fees and reimburse him for all expenses he
amount ofP95,000.00 and deducting therefrom the amounts of
allegedly incurred in connection with the case. Respondent did not present
P20,000.007 attorney's fees, P17,000.00 earlier given to complainant, and
any document, retainer's agreement, or itemized breakdown of the amount
P2,000.00 paid to the sheriff, what was left to respondent was only
to be reimbursed to support his claim.1âwphi1 In any event, even assuming
P56,000.00. Respondent whines that this amount is way below the promised
that respondent was authorized to receive payments, the same does not
25o/o attorney's fees and refund of expenses in the total amount of
exempt him from his duty of promptly informing his client of the amounts he
P72,275.13.
received in the course of his professional employment. "The fiduciary nature
Respondent asserts that, in any event, complainant will still be receiving a
of the relationship between counsel and client imposes on a lawyer the duty
sum greater than what he expects to receive. He avers that complainant is
to account for the money or property collected or received for or from the
still entitled to receive from spouses Lopez the sum of P93,491.60. Adding
client. He is obliged to render a prompt accounting of all the property and
the Pl 7,000.00 respondent previously remitted to complainant, the latter will
money he has collected for his client."16 "The fact that a lawyer has a lien for
get a total amount of P110,491.60. This amount, according to respondent,
his attorney's fees on the money in his hands collected for his client does not
exceeds the amount of P100,000.00 complainant agreed to and expected to
relieve him from the obligation to make a prompt accounting."17 Moreover, a
receive.
lawyer has no right "to unilaterally appropriate his client's money for himself
IBP's Report and Recommendation
by the mere fact alone that the client owes him attorney's fees."18
On February 26, 2007,8 we referred this case to the Integrated Bar of the
In sum, "[r]espondent's failure to immediately account for and return the
Philippines (IBP) for investigation, report and recommendation. On January
money when due and upon demand violated the trust reposed in him,
31, 2011, the Investigating Commissioner issued his Report and
demonstrated his lack of integrity and moral soundness, and warrants the
Recommendation9 with the following recommendation:
imposition of disciplinary action."19
In view of the foregoing, it is respectfully recommended that the respondent
The Penalty
be meted the penalty of two (2) years suspension. Respondent is also
"The penalty for gross misconduct consisting in the failure or refusal despite
ordered to return, in restitution all the amounts in his possession which are
demand of a lawyer to account for and to return money or property belonging
due to complainant, less his rightful attorney's fees.10 On October 28, 2011,
to a client has been suspension from the practice of law for two years."20
the IBP Board of Governors adopted Resolution No. XX-2011-139,11 which
Thus, the IBP Board of Governors did not err in recommending the imposable
approved the Report and Recommendation of the Investigating
penalty. Considering, however, that this is respondent's first offense and he
Commissioner suspending respondent from the practice of law for two years,
is already a nonagenarian,21 the Court, in the exercise of its compassionate
but with the modification that respondent should restitute the sum of
judicial discretion, finds that a penalty of one year suspension is sufficient.
P85,500.0012 to the complainant.
WHEREFORE, the Court finds respondent Atty. Eugenio T. Sanicas GUILTY
Issue
of gross misconduct and accordingly SUSPENDS him from the practice of law
The essential issue in this case is whether the respondent is guilty of gross
for one (1) year upon the finality of this Resolution, with a warning that a
misconduct for his failure to promptly account to his client the funds received
repetition of the same or similar act or offense shall be dealt with more
in the course of his professional engagement and return the same upon
severly.
demand.
Atty. Sanicas is ordered to return to complainant, within 90 days from finality
The Court's Ruling
of this Resolution, the net amount ofP85,500.00 with interest at the rate of
"The Code of Professional Responsibility demands the utmost degree of
6% per annum from finality of this Resolution until the full amount is returned.
fidelity and good faith in dealing with the moneys entrusted to lawyers
Failure to comply with the foregoing directive will warrant the imposition of a
because of their fiduciary relationship."13 Specifically, Rule 16.01 of the Code
more severe penalty.
imposes upon the lawyer the duty to "account for all money or property
Let copies of this Resolution be furnished the Office of the Bar Confidant and
collected or received for or from the client." Rule 16.03 thereof, on the other
noted in Atty. Sanicas' record as a member of the Bar.
hand, mandates that "[a] lawyer shall deliver the funds xx x of his client when
due or upon demand."
Rule 16.02 – A lawyer shall keep the funds of each client separate and
In this case, respondent on nine separate occasions from February 5, 2004
apart from his own and those of others kept by him.
to April 30, 2004 received payments for attorney's fees and partial payments
for monetary awards on behalf of complainant from spouses Lopez. But
[A.C. No. 1526. January 31, 2005]
despite the number of times over close to three months he had been
Page 238

NAZARIA S. HERNANDEZ (DECEASED), SUBSTITUTED BY LUCIANO

receiving payment, respondent neither informed the complainant of such fact
S. HERNANDEZ, JR., complainant, vs. ATTY. JOSE C. GO, respondent.
nor rendered an accounting thereon. It was only when an Alias Writ of
DECISION
LEGAL ETHICS
PER CURIAM:
For our resolution is the verified letter-complaint[1] for disbarment against Atty.
Jose C. Go dated June 23, 1975 filed by Nazaria S. Hernandez (now
deceased). Both parties are from Zamboanga City.
The allegations in the letter-complaint are:
Sometime in 1961, complainants husband abandoned her and her son,
Luciano S. Hernandez, Jr. Shortly thereafter, her husbands numerous
creditors demanded payments of his loans. Fearful that the various mortgage
contracts involving her properties will be foreclosed and aware of impending
suits for sums of money against her, complainant engaged the legal services
of Atty. Jose C. Go, herein respondent.
Respondent instilled in complainant a feeling of helplessness, fear,
embarrassment, and social humiliation. He advised her to give him her land
titles covering Lots 848-A, 849-Q, and 849-P at Zamboanga City so he could
sell them to enable her to pay her creditors. He then persuaded her to
execute deeds of sale in his favor without any monetary or valuable
consideration. Complainant agreed on condition that he would sell the lots
and from the proceeds pay her creditors.
Complainant also owned Lots 2118, 2139, and 1141-A, likewise located in
Zamboanga City, which were mortgaged to her creditors. When the
mortgages fell due, respondent redeemed the lots. Again, he convinced her
to execute deeds of sale involving those lots in his favor. As a result,
respondent became the registered owner of all the lots belonging to
complainant.
Sometime in 1974, complainant came to know that respondent did not sell
her lots as agreed upon. Instead, he paid her creditors with his own funds
and had her land titles registered in his name, depriving her of her real
properties worth millions.
In our Resolution dated September 24, 1975, respondent was required to file
his comment on the complaint.
Instead of filing his comment, respondent submitted a motion to dismiss on
the ground that the complaint is premature since there is pending before the
then Court of First Instance of Zamboanga City Civil Case No. 1781[2] for
recovery of ownership and declaration of nullity of deeds of sale filed by
complainant against him involving the subject lots.
On November 14, 1975, we issued a Resolution denying respondents motion
and requiring him to submit his answer.
In his answer dated December 19, 1975, respondent denied the allegations
in the instant complaint. He averred that he sold, in good faith, complainants
lots to various buyers, including himself, for valuable consideration. On
several occasions, he extended financial assistance to complainant and even
invited her to live with his family. His children used to call her Lola due to her
frequent visits to his residence. He prayed that the complaint be dismissed
for failure to state a cause of action.
On January 17, 1977, we referred the case to the Office of the Solicitor
General (OSG) for investigation, report, and recommendation.
It was only on March 13, 1990 or after 13 years, 1 month and 26 days that
the OSG filed a motion to refer the instant case to the IBP for the retaking of
the testimonies of complainants witnesses and the submission of its report
and recommendation.
On April 4, 1990, we issued a Resolution referring the case to the IBP for
investigation, report, and recommendation.
The Report and Recommendation dated June 15, 2004 of Atty. Lydia A.
Navarro, Commissioner of the IBP Commission on Bar Discipline, is quoted
as follows:
A careful examination and evaluation of the evidence submitted by the
parties showed that all the properties of the complainant are presently owned
by the respondent by virtue of several deeds of sale executed by the
complainant in favor of the respondent without monetary consideration
except Lot 849-D situated in Tomas Claudio which was returned by the
respondent to the complainant on September 5, 1974.
It is evident from the records that respondent was the one who notarized the
documents involving the said properties redeemed or repurchased by the
complainant from her creditors which ended up in respondents name like in
the deed of sale executed by Victoriano Dejerano in favor of Nazaria
Hernandez over Lots 1141-A-3-A and 1141-A-3-B; deed of sale executed by
Antonio Masrahon on September 3, 1961regarding Lot No. 1141-A; deed of
absolute sale executed by Francisco Esperat over the Curuan properties on
November 9, 1971 and the cancellation of the mortgage executed by Alfonso
Enriquez on July 18, 1964 over the Tomas Claudio properties.
PINEDAPCGRNMAN
The foregoing legal activities and operations of the respondent in addition to
his having discussed, advised and gave solutions to complainants legal
problems and liabilities to her creditors and even requested her creditors for
extension of time to pay complainants accounts constitute practice of law as
legal counsel for consultation aside from representing complainant in other
cases; a mute proof of a lawyer-client relations between them, a fact also
admitted by the respondent.
It is incumbent upon the respondent to have rendered a detailed report to the
complainant on how he paid complainants creditors without selling her
properties. Instead of selling to buyers at higher price, he paid them out of
his own funds; then later on admitted that he was one of the purchasers of
complainants properties in utter disregard of their agreement and no
evidence was submitted by the respondent concerning the value of the said
sale of complainants properties.
As such, respondent did not adhere faithfully and honestly in his obligation
and duty as complainants legal adviser and counsel when he took advantage
of the trust and confidence reposed in him by the complainant in ultimately
putting complainants properties in his name and possession in violation of
Canon 17 of the Code of Professional Responsibility.
WHEREFORE, in view of the foregoing, the undersigned respectfully
recommends that respondent Atty. Jose C. Go be suspended from the
practice of law for a period of six (6) months from receipt hereof and the IBP
Chapter where he is a registered member be furnished a copy of the same
for implementation hereof, subject to the approval of the Honorable Members
of the Board of Governors.
On July 30, 2004, the IBP Board of Governors passed Resolution No. XVI-
2004-39 adopting and approving the Report of Commissioner Navarro with
modification in the sense that the recommended penalty of suspension from
the practice of law was increased from six (6) months to three (3) years.
We sustain the Resolution of the IBP Board of Governors finding that
respondent violated the Code of Professional Responsibility. However, we
have to modify its recommended penalty.
Canon 16 of the Code of Professional Responsibility, the principal source of
ethical rules for lawyers in this jurisdiction, provides:
A lawyer shall hold in trust all moneys and properties of his client that
may come into his possession.
Respondent breached this Canon. His acts of acquiring for himself
complainants lots entrusted to him are, by any standard, acts constituting
gross misconduct, a grievous wrong, a forbidden act, a dereliction in duty,
willful in character, and implies a wrongful intent and not mere error in
judgment.[3] Such conduct on the part of respondent degrades not only
himself but also the name and honor of the legal profession. He violated this
Courts mandate that lawyers must at all times conduct themselves,
especially in their dealing with their clients and the public at large, with
honesty and integrity in a manner beyond reproach.[4]
Canon 17 of the same Code states:
A lawyer owes fidelity to the cause of his client and he shall be mindful
of the trust and confidence reposed in him.
The records show that complainant reposed such high degree of trust and
confidence in herein respondent, that when she engaged his services, she
entrusted to him her land titles and allowed him to sell her lots, believing that
the proceeds thereof would be used to pay her creditors. Respondent,
however, abused her trust and confidence when he did not sell her properties
to others but to himself and spent his own money to pay her obligations. As
correctly observed by Investigating IBP Commissioner Lydia Navarro,
respondent is duty-bound to render a detailed report to the complainant on
how much he sold the latters lots and the amounts paid to her creditors.
Obviously, had he sold the lots to other buyers, complainant could have
earned more. Records show that she did not receive any amount from
respondent. Clearly, respondent did not adhere faithfully and honestly in his
duty as complainants counsel.
Undoubtedly, respondents conduct has made him unfit to remain in the legal
profession. He has definitely fallen below the moral bar when he engaged in
deceitful, dishonest, unlawful and grossly immoral acts. We have been
exacting in our demand for integrity and good moral character of members of
the Bar. They are expected at all times to uphold the integrity and dignity of
the legal profession[5] and refrain from any act or omission which might lessen
Page 239
the trust and confidence reposed by the public in the fidelity, honesty, and
integrity of the legal profession.[6] Membership in the legal profession is a
privilege.[7] And whenever it is made to appear that an attorney is no longer
LEGAL ETHICS
worthy of the trust and confidence of his clients and the public, it becomes
not only the right but also the duty of this Court, which made him one of its
officers and gave him the privilege of ministering within its Bar, to withdraw
the privilege.[8]Respondent, by his conduct, blemished not only his integrity
as a member of the Bar, but also the legal profession.
Public interest requires that an attorney should exert his best efforts and
ability to protect the interests of his clients. A lawyer who performs that duty
with diligence and candor not only protects his clients cause; he also serves
the ends of justice and does honor to the bar and helps maintain the respect
of the community to the legal profession.
It is a time-honored rule that 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 legal profession.[9]
Section 27, Rule 138 of the Revised Rules of Court mandates that a lawyer
may be disbarred or suspended by this Court for any of the following acts:
(1) deceit; (2) malpractice; (3)gross misconduct in office; (4) grossly
immoral conduct; (5) conviction of a crime involving moral turpitude; (6)
violation of the lawyers oath; (7) willful disobedience of any lawful order of a
superior court; and (8) willfully appearing as an attorney for a party without
authority to do so.[10]
In Rayos-Ombac vs. Rayos,[11] we ordered the disbarment of lawyer when he
deceived his 85-year old aunt into entrusting him with all her money and later
refused to return the same despite demand. In Navarro vs. Meneses
III,[12] we disbarred a member of the Bar for his refusal or failure to account
for the P50,000.00 he received from a client to settle a case. In Docena
vs. Limson,[13] we expelled from the brotherhood of lawyers, an attorney who
extorted money from his client through deceit and misrepresentation. In
Busios vs. Ricafort,[14] an attorney was stripped of his license to practice law
for misappropriating his clients money.
Considering the depravity of respondents offense, we find the penalty
recommended by the IBP too light. It bears reiterating that a lawyer who takes
advantage of his clients financial plight to acquire the latters properties for
his own benefit is destructive of the confidence of the public in the fidelity,
honesty, and integrity of the legal profession. Thus, for violation of Canon 16
and Canon 17 of the Code of Professional Responsibility, which constitutes
gross misconduct, and consistent with the need to maintain the high
standards of the Bar and thus preserve the faith of the public in the legal
profession, respondent deserves the ultimate penalty, that of expulsion from
the esteemed brotherhood of lawyers.
WHEREFORE, respondent JOSE S. GO is found guilty of gross misconduct
and is DISBARRED from the practice of law. His name is ordered STRICKEN
from the Roll of Attorneys EFFECTIVE IMMEDIATELY.
Let copies of this Decision be furnished the Bar Confidant, the Integrated Bar
of the Philippines and all courts throughout the country.
SO ORDERED.
ERLINDA R. TAROG, A.C. No. 8253
Complainant, (Formerly CBD Case No. 03-
1067)
Present:
CORONA, Chief Justice,
CARPIO,
- versus - CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
ATTY. ROMULO L. RICAFORT, DEL CASTILLO,
Respondent. ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
PINEDAPCGRNMAN
Promulgated:
March 15, 2011
x ------------------------------------------------------------------------------------------x
DECISION
PER CURIAM:
We resolve a complaint for disbarment for alleged grave misconduct brought
against Atty. Romulo L. Ricafort for his failure to account for and to return the
sums of money received from his clients for purposes of the civil action to
recover their property from a foreclosing banking institution he was handling
for them. The original complainant was Arnulfo A. Tarog, but his wife, Erlinda
R. Tarog, substituted him upon his intervening death.
Antecedents
In 1992, the Tarogs sought the advice of Atty. Jaime L. Miralles regarding
their bank-foreclosed property located in the Bicol Region. Atty. Miralles
advised them to engage a Bicol-based attorney for that purpose. Thus, they
went to see Atty. Ricafort accompanied by Vidal Miralles, their friend who
was a brother of Atty. Miralles.[1] They ultimately engaged Atty. Ricafort as
their attorney on account of his being well-known in the community, and being
also the Dean of the College of Law of Aquinas University where their son
was then studying.
Having willingly accepted the engagement, Atty. Ricafort required the Tarogs
to pay P7,000.00 as filing fee, which they gave to him.[2] He explained the
importance of depositing P65,000.00 in court to counter the P60,000.00
deposited by Antonio Tee, the buyer of the foreclosed property. After they
informed him that they had only P60,000.00, he required them to add some
more amount (dagdagan niyo ng konti).[3] To raise the P65,000.00 for the
Tarogs, therefore, Vidal solicited a loan from one Sia with the guarantee of
his brother Atty. Miralles. Sia issued a check in that amount in the name of
Arnulfo.[4]
On November 7, 1992, the Tarogs and Vidal went to the office of Atty.
Ricafort to deliver the P65,000.00. When Arnulfo said that he had first to
encash the check at the bank, Atty. Ricafort persuaded him to entrust the
check to him instead so that he (Atty. Ricafort) would be the one to encash it
and then deposit the amount in court. On that representation, Arnulfo handed
the check to Atty. Ricafort.[5]
After some time, the Tarogs visited Atty. Ricafort to verify the status of the
consignation. Atty. Ricafort informed them that he had not deposited the
amount in court, but in his own account. He promised to return the money,
plus interest. Despite several inquiries about when the amount would be
returned, however, the Tarogs received mere assurances from Atty. Ricafort
that the money was in good hands.
The Tarogs further claimed that the Regional Trial Court, Branch 52, in
Sorsogon (RTC), where their complaint for annulment of sale was being
heard, had required the parties to file their memoranda. Accordingly, they
delivered P15,000.00 to Atty. Ricafort for that purpose, but he did not file the
memorandum.[6]
When it became apparent to the Tarogs that Atty. Ricafort would not make
good his promise of returning the P65,000.00, plus interest, Arnulfo
demanded by his letter dated December 3, 2002 that Atty. Ricafort return the
P65,000.00, plus interest, and the P15,000.00 paid for the filing of the
memorandum.[7] Yet, they did not receive any reply from Atty. Ricafort.
Page 240
LEGAL ETHICS
In his defense, Atty. Ricafort denied that the P65,000.00 was intended to be
deposited in court, insisting that the amount was payment for his legal
services under a package deal, that is, the amount included his acceptance
fee, attorneys fee, and appearance fees from the filing of the complaint for
annulment of sale until judgment, but excluding appeal. He claimed that the
fees were agreed upon after considering the value of the property, his skill
and experience as a lawyer, the labor, time, and trouble involved, and his
professional character and social standing; that at the time he delivered the
check, Arnulfo read, understood, and agreed to the contents of the complaint,
which did not mention anything about any consignation;[8] and that Arnulfo,
being a retired school principal, was a learned person who would not have
easily fallen for any scheme like the one they depicted against him.
Findings of the IBP Commissioner
Following his investigation, Commissioner Wilfredo E.J.E. Reyes of the
Integrated Bar of the Philippines-Commission on Bar Discipline rendered his
Report and Recommendation dated October 7, 2004,[9] in which he
concluded that:
It is respectfully recommended that respondent, Atty. Romulo L. Ricafort be
DISBARRED and be ordered to return the amount of P65,000 and P15,000
which he got from his client.
RESPECTFULLY SUBMITTED.
Commissioner Reyes regarded the testimonies of Erlinda and Vidal more
credible than the testimony of Atty. Ricafort, observing:
Based on the said testimony, statements and actuations of complainant
Erlinda Tarog and his collaborating witness, we find their statements to be
credible.
Atty. Ricafort in his testimony attempted to show that the amount of
P65,000.00 was paid to him by the complainant as acceptance fee on a
package deal basis and under said deal, he will answer the filing fee,
attorneys fees and other expenses incurred up to the time the judgment is
rendered. He presented a transcript of stenographic notes wherein it was
stated that complainant himself did not consign the money in court. The
respondent admitted in his testimony that he did not have any retainer
agreement nor any memorandum signed or any receipt which would prove
that the amount of P65,000.00 was received as an acceptance fee for the
handling of the case.
Atty. Romulo Ricafort stated that there was no retainer agreement and that
he issued only receipt because the late Arnulfo Tarog will not pay unless a
receipt is issued.
The Undersigned Commissioner asked the respondent Basically you
describe that thing that will happen in the litigation related to the payment of
fees. But when you received thatP65,000.00 did you not put anything there
that you will describe the nature of legal work which you will undertake
considering that you have considered this P65,000.00 as your attorneys
fees?And Atty. Ricafort stated: Yes I did. I do not know why they were not
showing the receipt. That is a big amount, Your Honor. They demanded for
me the receipt of P30,000.00 how much more with that P65,000.00. They
demanded for the receipt of that P65,000.00 but I cannot explain the reason
why
During the clarificatory questioning, the Undersigned Commissioner also
asked Atty. Ricafort why he did not answer the demand letter sent by Arnulfo
Tarog and the proof of service of the said letter was presented by the
complainant. Conveniently, Atty. Ricafort stated that he did not receive the
letter and it was received by their helper who did not forward the letter to him.
He also adopted the position that the complainant was demanding
PINEDAPCGRNMAN
the P65,000.00 wherefore this case was filed. When confronted by the
testimony of Mr. Vidal Miralles, the respondent Atty. Ricafort just denied the
allegation that he received the P65,000.00 for deposit to the court. He also
denied that Mr. Miralles has visited his residence for follow-up the
reimbursement.
The Undersigned Commissioner asked the respondent if he has personal
animosity with Arnuldo Tarog, Erlinda Tarog and Vidal Miralles and if there
are any reason why this case was filed against him. In his answer the
respondent stated that we have been very good friends for the past ten (10)
years and he said that in fact he was surprised when the complaint was filed
against him and they even attached the decision of the Supreme Court for
his suspension and maybe they are using this case to be able to collect from
him.
The main defense of the respondent is that the complainant in this case
testified that the total amount to redeem his property is P240,000.00 and
when asked whether he consigned the money to the court to redeem the
property he answered in the negative.
The alleged payment of P65,000.00 was made prior to the said testimony
sometime in 1992. Hence, it was stated on complainants affidavit that on
November 7, 1992, prior to filing said complaint I had given him the sum of
Sixty Five Thousand Pesos to be deposited to the Regional Trial Court
representing redemption money of the Real Estate Mortgage. The amount
ofP65,000.00 is very much close to the amount of the principal obligation of
the complainant and it is not surprising for a non-lawyer to hold on to the
belief that with the filing of the case for annulment of foreclosure his case
would be strengthened by making a deposit in court hence, the motivation to
produce the deposit was logical and natural insofar as the complainant is
concerned. The testimony of the complainant in court that the bank needed
P240,000.00 for the redemption of the property will have no bearing on the
actuation of the complainant who has been required to deposit
P65,000.00 by his lawyer. The Undersigned Commission has no alternative
but to believe in the credibility and truthfulness of complainants narration that
of Mrs. Erlinda Tarog and Vidal Miralles.[10]
Commissioner Reyes concluded that Atty. Ricafort violated Canon 15, and
Rules 16.01, 16.02 and 16.03 of Canon 16 of the Code of Professional
Responsibility by taking advantage of the vulnerability of his clients and by
being dishonest in his dealings with them by refusing to return the amount of
P65,000.00 to them.
On November 4, 2004, the IBP Board of Governors adopted Resolution No.
XVI-2004-473,[11] resolving to return the matter to Commissioner Reyes for a
clarification of whether or not there was evidence to support the claim that
the P65,000.00 had been in payment of attorneys fees and other expenses.
On October 11, 2005, Commissioner Reyes issued a second Report and
Recommendation,[12] in which he declared that Atty. Ricafort did not present
any retainer agreement or receipt to prove that the amount of P65,000.00
had been part of his attorneys fees; that Atty. Ricafort had willfully ignored
the demand of Arnulfo by not replying to the demand letter; that, instead, Atty.
Ricafort had insisted that the househelp who had received the demand letter
had not given it to him; and that in his (Commissioner Reyes) presence, Atty.
Ricafort had also promised to the complainant that he would settle his liability,
but Atty. Ricafort did not make good his promise despite several resettings
to allow him to settle his obligation.
Action of IBP Board of Governors
Through Resolution No. XVII-2006-569,[13] therefore, the IBP Board of
Page 241
Governors adopted and approved the Report and Recommendation of
Commissioner Reyes and recommended the disbarment of Atty. Ricafort and
LEGAL ETHICS
the order for him to return the amounts of P65,000.00 and P15,000.00 to
Erlinda, viz:
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
as Annex A and, finding the recommendation fully supported by the evidence
on record and the applicable laws and rules, and considering that
Respondent has taken advantage of his client [sic] vulnerability and has been
dishonest with his dealings to his client, Atty. Romulo L. Ricafort is hereby
DISBARRED and Ordered to Return the amount ofP65,000 and P15,000 to
complainant.
Atty. Ricafort moved for reconsideration,[14] maintaining that a retainer
agreement was immaterial because he had affirmed having received the
P65,000.00 and having issued a receipt for the amount; that he had not kept
the receipt because the practice of lawyers in most instances is that receipt
is issued without duplicate as it behooves upon the client to demand for a
receipt;[15] that considering that the Tarogs had produced a photocopy of the
receipt he had issued for the P30,000.00 in connection with their appeal, it
followed that a similar receipt for attorneys fees had been made at the time
when the case had been about to be filed in the RTC; that the testimonies of
Erlinda and Vidal were inconsistent with Arnulfos affidavit; and that he did not
receive Arnulfos demand letter, which was received by one Gemma Agnote
(the name printed on the registry receipt), whom he did not at all know.
Acting on Atty. Ricaforts motion for reconsideration, the IBP Board of
Governors downgraded the penalty from disbarment to indefinite
suspension,[16] thus:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED the Recommendation of the Board of Governors First Division
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, the Motion for Reconsideration is hereby
DENIED with modification of Resolution No. XVII-2006-509 of the Board of
Governors dated 18 November 2006, that in lieu of the Disbarment of Atty.
Romulo Ricafort, he is INDEFINITELY SUSPENDED from the practice of law
and Ordered to return the amount of P65,000 and P15,000 to complainant.
Atty. Ricafort filed a second motion for reconsideration,[17] assailing the
resolution of the IBP Board of Governors for violating Section 12, Rule 139-
B of the Rules of Court requiring the decision of the IBP Board of Governors
to be in writing and to clearly and distinctly state the facts and reasons on
which the decision was based.
Hence, the administrative case is now before the Court for resolution.
Ruling
We affirm the findings of the Commissioner Reyes, because they were
supported by substantial evidence. However, we impose the penalty of
disbarment instead of the recommended penalty of indefinite suspension,
considering that Atty. Ricafort committed a very serious offense that was
aggravated by his having been previously administratively sanctioned for a
similar offense on the occasion of which he was warned against committing
a similar offense.
A.
Version of the complainants was
more credible than version of Atty. Ricafort
Atty. Ricafort admitted receiving the P65,000.00 from the Tarogs. Even so,
we have two versions about the transaction. On the one hand, the Tarogs
PINEDAPCGRNMAN
insisted that the amount was to be consigned in court for purposes of their
civil case; on the other hand, Atty. Ricafort claimed that the amount was for
his fees under a package deal arrangement.
Commissioner Reyes considered the Tarogs version more credible.
We hold that Commissioner Reyes appreciation of the facts was correct and
in accord with human experience.
Firstly, it is easier to believe that Atty. Ricafort persuaded the Tarogs on the
need for that amount to be deposited in court for purposes of their civil case.
Being non-lawyers, they had no idea about the requirement for them to
consign any amount in court, due to the substantive and procedural
implications of such requirement being ordinarily known only to lawyers.
Their ready and full reliance on Atty. Ricaforts representations about the
requirement to consign that amount in court was entirely understandable in
view of their awareness of Atty. Ricaforts standing in the legal community of
the place. Besides, as Commissioner Reyes observed, it was not far-fetched
for the Tarogs to believe that an amount close in value to their original
obligation was necessary to be deposited in court to boost their chances of
recovering their property.
Secondly, Atty. Ricaforts denial of receipt of Arnulfos demand letter was
incredible. He already initially admitted receiving the letter through a
househelp.[18] His denial came only subsequently and for the first time
through his motion for reconsideration dated December 30, 2006,[19] in which
he completely turned about to declare that the Gemma Agnote who had
received the letter was unknown to him.[20] Expectedly, Commissioner Reyes
disregarded his denial, because not only was the denial an apparently
belated afterthought, it was even contradicted by his earlier admission of
receipt. In any event, the fact that Gemma Agnote was even the househelp
whom Atty. Ricafort had adverted to becomes very plausible under the
established circumstances.
Thirdly, Atty. Ricafort explained that he had no copies of the receipts for the
P65,000.00 and P15,000.00 issued to the Tarogs because the practice of
lawyers in most instances is that receipt is issued without duplicate as it
behooves upon the client to demand for a receipt.[21] But such explanation
does not persuade us. Ethical and practical considerations made it both
natural and imperative for him to issue receipts, even if not demanded, and
to keep copies of the receipts for his own records. He was all too aware that
he was accountable for the moneys entrusted to him by the clients, and that
his only means of ensuring accountability was by
issuing and keeping receipts. Rule 16.01 of theCode of Professional
Responsibility expressly enjoins such accountability, viz:
Rule 16.01 - A lawyer shall account for all money or property collected or
received for or from the client.
Definitely, Atty. Ricafort had a highly fiduciary and confidential relation with
the Tarogs. As such, he was burdened with the legal duty to promptly account
for all the funds received from or held by him for them.[22]
And, fourthly, to buttress his denial that the P65,000.00 was not intended for
deposit in court, Atty. Ricafort insisted that Arnulfo did not object to the
omission from the complaint in the civil action of any mention of consignation.
However, the complaint that he himself had written and filed for the Tarogs
contradicted his insistence, specifically in its paragraph 16, which averred the
plaintiffs (i.e., Tarogs) readiness and willingness to deposit the amount of
P69,345.00 (inclusive of the redemption price and interest) in court, thus:
16. And to show willingness and sincerity of the plaintiffs, they are ready and
willing to deposit the amount of P69,345.00 as redemption price plus
Page 242
reasonable accrued interests, if there are any; [23]
LEGAL ETHICS
Nor could the Tarogs have conjured or invented the need for consignation.
The consignation was a notion that could have emanated only from him as
their lawyer. In fact, Erlinda recalled while testifying before the IBP
Commission on Bar Discipline that they had brought to their meeting with
Atty. Ricafort only P60,000.00 for the consignation, but that Atty. Ricafort had
to instruct them to raise the amount. The excerpt of her pertinent testimony
follows:
Comm. Reyes: Madam Witness, in this affidavit you stated that your late
husband and Mr. Vidal Miralles went to the office of Atty. Ricafort to advise
the latter that we already had the sum ofP65,000.00 in the form of check,
how did you come to know this fact?
Witness: Paano po ba sabi nya na magdeposit ng P65,000.00 tapos may
P60,000.00 kami sabi niya dagdagan niyo ng konti.
Comm. Reyes: Kinausap ba niya kayo?
Witness: Nandoon po ako.
Comm. Reyes: Where you present when the check was given?
Witness: Yes.
Comm. Reyes: So, alam niyo, nakita niyo na binigay yong P65,000.00 na
tseke?
Witness: Opo.
Comm. Reyes: Alam niyo ba kung ano ang nangyari doon sa tseke na
idiniposit?
Witness: Noong una sinabi niya sa amin na ididiposit niya sa court.
Comm. Reyes: Nalaman niyo ba na hindi naman pala idiniposit sa court?
Witness: Opo.
Comm. Reyes: Kailan niyo nalaman?
Witness: Nagsabi siya tapos sinabi pa niya na yong interest sa bank ay
ibinigay niya sa amin ang sabi naming salamat.[24]
B.
Atty. Ricaforts acts and actuations constituted
serious breach of his fiduciary duties as an attorney
The Code of Professional Responsibility demands the utmost degree of
fidelity and good faith in dealing with the moneys entrusted to lawyers
because of their fiduciary relationship.[25] In particular, Rule 16.01 of the
Code of Professional Responsibility states:
Rule 16.01 - A lawyer shall account for all money or property collected or
received for or from the client.
Undoubtedly, Atty. Ricafort was required to hold in trust any money and
property of his clients that came into his possession,[26] and he needed to be
always mindful of the trust and confidence his clients reposed in him.[27] Thus,
having obtained the funds from the Tarogs in the course of his professional
employment, he had the obligation to deliver such funds to his clients (a)
when they became due, or (b) upon demand.[28]
Furthermore, Rule 16.02 of the Code of Professional Responsibility, imposes
on an attorney the positive obligation to keep all funds of his client separate
and apart from his own and from those of others kept by him, to wit:
PINEDAPCGRNMAN
Rule 16.02 - A lawyer shall keep the funds of each client separate and apart
from his own and those of others kept by him.
Atty. Ricaforts act of obtaining P65,000.00 and P15,000.00 from the Tarogs
under the respective pretexts that the amount would be deposited in court
and that he would prepare and file the memorandum for the Tarogs erected
a responsibility to account for and to use the amounts in accordance with the
particular purposes intended. For him to deposit the amount of P65,000.00
in his personal account without the consent of the Tarogs and not return it
upon demand, and for him to fail to file the memorandum and yet not return
the amount of P15,000.00 upon demand constituted a serious breach of his
fiduciary duties as their attorney. He reneged on his duty to render an
accounting to his clients showing that he had spent the amounts for the
particular purposes intended.[29] He was thereby presumed to have
misappropriated the moneys for his own use to the prejudice of his clients
and in violation of the clients trust reposed in him.[30] He could not escape
liability, for upon failing to use the moneys for the purposes intended, he
should have immediately returned the moneys to his clients.[31]
Atty. Ricaforts plain abuse of the confidence reposed in him by his clients
rendered him liable for violation of Canon 16,[32] particularly Rule 16.01,
supra, and Canon 17,[33] all of the Code of Professional Responsibility. His
acts and actuations constituted a gross violation of general morality and of
professional ethics that impaired public confidence in the legal profession and
deserved punishment.[34]
Without hesitation, therefore, we consider Atty. Ricaforts acts and conduct
as gross misconduct, a serious charge under Rule 140 of the Rules of Court,
to wit:
Section 8. Serious charges. Serious charges include:
xxx
3. Gross misconduct constituting violations of the Code of Judicial Conduct;
xxx
That this offense was not the first charged and decided against Atty. Ricafort
aggravated his liability. In Nuez v. Ricafort,[35] decided in 2002, the Court
found him to have violated Rules 1.01[36] of Canon 1 and Rule 12.03[37] and
Rule 12.04[38] of Canon 12 of the Code of Professional Responsibility in
relation to his failure to turn over the proceeds of the sale of realty to the
complainant (who had authorized him to sell the realty in her behalf). His
failure to turn over the proceeds compelled the complainant to commence in
the RTC a civil action to recover the proceeds against him and his wife. The
Court meted on him the penalty of indefinite suspension, and warned him
against the commission of similar acts, stating:
We concur with the findings of the Investigating Commissioner, as adopted
and approved by the Board of Governors of the IBP, that respondent Atty.
Romulo Ricafort is guilty of grave misconduct in his dealings with
complainant. Indeed, the record shows respondents grave misconduct and
notorious dishonesty.
There is no need to stretch ones imagination to arrive at an inevitable
conclusion that respondent gravely abused the confidence that complainant
reposed in him and committed dishonesty when he did not turn over the
proceeds of the sale of her property. Worse, with palpable bad faith, he
compelled the complainant to go to court for the recovery of the proceeds of
the sale and, in the process, to spend money, time and energy therefor. Then,
despite his deliberate failure to answer the complaint resulting in his having
been declared in default, he appealed from the judgment to the Court of
Page 243
Appeals. Again, bad faith attended such a step because he did not pay the
docket fee despite notice. Needless to state, respondent wanted to prolong
the travails and agony of the complainant and to enjoy the fruits of what
LEGAL ETHICS
rightfully belongs to the latter. Unsatisfied with what he had already unjustly
and unlawfully done to complainant, respondent issued checks to satisfy the
alias writ of execution. But, remaining unrepentant of what he had done and
in continued pursuit of a clearly malicious plan not to pay complainant of what
had been validly and lawfully adjudged by the court against him, respondent
closed the account against which the checks were drawn. There was deceit
in this. Respondent never had the intention of paying his obligation as proved
by the fact that despite the criminal cases for violation of B.P. Blg. 22, he did
not pay the obligation.
All the foregoing constituted grave and gross misconduct in blatant violation
of Rule 1.01 of Canon 1 of the Code of Professional Responsibility which
provides:
A lawyer shall not engage in unlawful, dishonest and immoral or deceitful
conduct.
Respondents claim of good faith in closing his account because he thought
complainant has already encashed all checks is preposterous. The account
was closed on or before 26 February 1996. He knew that there were still other
checks due on 29 February 1996 and 15 March 1996 which could not be
encashed before their maturity dates.
By violating Rule 1.01 of Canon 1 of the Code of Professional Responsibility,
respondent diminished public confidence in the law and the lawyers (Busios
v. Ricafort, 283 SCRA 407 [1997]; Ducat v. Villalon,
337 SCRA 622 [2000]). Instead of promoting such confidence and respect,
he miserably failed to live up to the standards of the legal profession (Gonato
v. Adaza, 328 SCRA 694 [2000];Ducat v. Villalon, supra).
Respondents act of issuing bad checks in satisfaction of the alias writ of
execution for money judgment rendered by the trial court was a clear attempt
to defeat the ends of justice. His failure to make good the checks despite
demands and the criminal cases for violation of B.P. Blg. 22 showed his
continued defiance of judicial processes, which he, as an officer of the court,
was under continuing duty to uphold.[39]
Bearing in mind his administrative record, and considering that the penalty
for violation of Canon 16 ranges from suspension for six months,[40] to
suspension for one year,[41] to suspension for two years,[42] depending on the
amount involved and the severity of the lawyers misconduct, we rule that
disbarment is the commensurate punishment for Atty. Ricafort, who has
shown no reformation in his handling of trust funds for his clients.
WHEREFORE, we find and declare Atty. Romulo L. Ricafort guilty of a
violation of Canon 16, Rule 16.01 and Canon 17 of the Code of Professional
Responsibility and, accordingly, disbar him. The Bar Confidant is directed to
strike out his name from the Roll of Attorneys.
Atty. Ricafort is ordered to return to Erlinda R. Tarog the sums of P65,000.00
and P15,000.00, plus interest of six percent per annum reckoned from the
demand made on December 3, 2002, within twenty days from notice.
This decision is effective immediately.
Let a copy of this decision be furnished to the Office of the Court
Administrator for circulation to all courts, and to the Integrated Bar of the
Philippines, for its reference.
SO ORDERED.
Rule 16.03 – A lawyer shall deliver the funds and property of his client
when due or upon demand. However, he shall have a lien over the funds
and may apply so much thereof as may be necessary to satisfy his
lawful fees and disbursements, giving notice promptly thereafter to
PINEDAPCGRNMAN
his client. He shall also have a lien to the same extent on all judgments
and executions he has secured for his client as provided for the Rules
of Court.
Attorneys’ Liens – an attorney shall have a lien upon the funds,
documents and papers of his client which have lawfully come into his
possession and may retain the same until his lawful fees and disbursements
have been paid, and may apply such finds to the satisfaction thereof. He shall
also have a lien to the same extent upon all judgements for the payment of
money, and executions issued in pursuance of such judgements which he has
secured in a litigation of his client, from and after the time when he shall have
caused a statement of his claim of such lien to be entered upon the records
of the court rendering such judgement, or issuing such execution, and shall
have caused written notice thereof to be delivered to his client and to the
adverse party; and he shall have the same right and power over such
judgments and executions as his client would have to enforce his lien and
secure the payment of his fees and disbursements. (Sec, 37, Rule 138, RRC)
[A.C. No. 4349. December 22, 1997]
LOURDES R. BUSIOS, complainant, vs. ATTY. FRANCISCO
RICAFORT, respondent.
RESOLUTION
PER CURIAM:
In a sworn complaint for disbarment dated 31 October 1994 but received by
us on 21 November 1994, complainant Lourdes R. Busios charged
respondent Atty. Francisco Ricafort, a practicing lawyer in Oas, Albay, with
having committed the crime of estafa under Article 315 (1) (b) of the Revised
Penal Code by misappropriating the sum of P32,000.00. Of this
amount,P30,000.00 was entrusted to respondent for deposit in the bank
account of complainants husband, while P2,000.00 represented the amount
respondent demanded from complainant supposedly for a bond in Civil Case
No. 5814, when no such bond was required.
In the resolution of 18 January 1995, we required respondent to comment on
the complaint. Despite his receipt of a copy of the resolution, respondent did
not comply, compelling us in the resolution of 17 July 1995 to require him to
show cause why he should not be disciplinarily dealt with or held in contempt
for such failure.
Again respondent failed to comply. Hence in the resolution of 25 September
1996, we ordered him once more to file his comment within ten (10) days
from notice, and within the same period, to pay a fine of P1,000.00 or suffer
imprisonment of ten (10) days should he fail to so pay. In a Compliance and
Motion dated 24 October 196, respondent transmitted the fine ofP1,000.00
by way of postal money order, but asked for five (5) days from date to file his
comment. As respondent still failed to so file, we then declared, in the
resolution of 2 December 1996, that respondent was deemed to have waived
his right to file his comment, and referred the complaint to the Office of the
Bar Confidant for reception of complainants evidence and submission of a
report and recommendation thereon.
On 16 October 1997, the Bar Confidant, Atty. Erlinda C. Verzosa, submitted
her Report and Recommendation, material portions of which read as follows:
Respondent Atty. Francisco Ricafort stands charged with having
misappropriated the sum of P30,000.00 intended for his clients as well as
having deceived his clients into giving him the sum of P2,000.00 purportedly
to be deposited as a bond in the case he was handling.
Complainant Lourdes R. Busios is one of the heirs of Pedro Rodrigo who are
the defendants in Civil Case No. 1584, apparently a case involving the
properties of the late Pedro Rodrigo, father of herein complainant.
Respondent was the counsel of record for the defendants in the said case.
On July 10, 1994, complainant representing her co-heirs, executed a special
power of attorney, appointing and constituting respondent and/or Pedro
Rodrigo, Jr. to be her true and lawful attorney-in-fact with the following
powers:
1. To attend to and represent me, testify, or otherwise enter into compromise
during the pre-trial stage or other proceedings in Civil Case No. 1584, entitled
Heirs of Rosario Rodrigo-Reantaso, vs. Heirs of Pedro Rodrigo Sr., et al. now
pending before the Regional Trial Court, Branch 12, Ligao, Albay;
2 To demand, collect and receipt for any and all sums of money that may
Page 244
now be deposited in said court by the defendant Oas Standard High School
or hereafter be deposited by said defendant, due and owing to me or said
LEGAL ETHICS
Heirs of Pedro Rodrigo Sr., representing the rentals of said defendants for
the lease of the property involved in said case; and
3 To sign, authenticate, issue and deliver any and all deeds, instruments,
papers and other records necessary and pertinent to the above stated
transactions.
On August 10, 1994, the Regional Trial Court of Ligao, Albay, Br. 12 issued
an order, directing the Clerk of Court to release any and all deposits of rentals
made in connection with this case (Civil Case No. 1584) to the defendants
Heirs of Pedro Rodrigo through Lourdes Rodrigo Businos who were receiving
the rentals from Oas Standard High School prior to the institution of this case.
In a letter dated August 10, 1994, the Clerk of Court of RTC, Ligao informed
herein complainant that respondent had already received the rental deposit
of P25,000.00 on eve date (see Annex C to the complaint). Respondent also
received from Oas Standard High School on August 17, 1994 the sum
of P5,000.00 as payment for rental of school site for the month of July 1994
(See Annex D to the complaint). The said sum was entrusted to respondent
with an obligation on his part to deposit the same in the account of
complainants husband at PNB, Ligao Branch. Instead, however, of
depositing the money, respondent converted the money to his own personal
use, and despite several demands, he failed to return the same to
complainant. She was thus constrained to file a criminal case for estafa and
an administrative case for disbarment against him. Thus, on November 21,
1994, complainant filed the instant administrative case against respondent.
Complainant further accuses respondent for demanding and
receiving P2,000.00 from her which he said will be used for the bond in Civil
Case No. 1584, but said amount was never used as intended since no bond
was required in the said case. Thus, respondent merely pocketed the said
amount.
xxx xxx xxx
Complainant, upon questioning by the undersigned, testified that: She
authorized respondent to withdraw the money amounting to P35,000.00
representing the rental fee paid by Oas Standard High School from the Clerk
of Court, with the instruction to deposit the same in her savings account at
the PNB. After she was informed by the court that respondent had already
withdrawn the money, she expected in vain to receive the money a week later
in Tarlac as respondent failed to effect the deposit of the said sum in her
account. She demanded from him to give her the money, but he informed her
that he had already spent the same. He promised, though to pay her the said
amount. (pp. 7-8, TSN, Reception of Evidence, April 18, 1997). She clarified
that respondent withdrew only the sum of P30,000.00 from the Clerk of Court,
while the P5,000.00 was withdrawn by respondent from Oas Standard High
School (TSN, p. 8). Despite several demands, both from her and her lawyer,
respondent failed to make good his promise to give her the money he
withdrew from the Clerk of Court and Oas Standard High School (TSN, pp.
11-13). She was then constrained to file a criminal case for estafa and an
administrative case against respondent sometime in November of 1994 to
recover the money in question (TSN, pp. 14-16).On their third hearing of the
estafa case sometime in 1995, respondent came with the money and paid
complainant inside the courtroom (TSN, pp. 15, 19-20). Because of this
development, she did not anymore pursue the estafa case against
respondent (TSN, p. 17). She has no intention, however, of withdrawing the
instant complaint (TSN, p. 18).
She further testified that respondent demanded from her the sum of
P2,000.00 for the bond required in the civil case. (TSN, p. 18). Respondent did
not give her a receipt for the said amount. (TSN, p. 19). Respondent gave back
the P2,000.00 to complainant. He paid complainant a total of
P60,000.00 representing the money he withdrew from the Clerk of Court and
Oas Standard High School, the P2,000.00 he got from complainant and
attorneys fees, which he undertook to foot as a way of settlement. (TSN, p.
19).
Although complainant failed to submit the original or certified true copies of
the documents in support of her complaint against respondent, respondents
repeated failure to comply with several resolutions of the Court requiring him
to comment on the complaint lends credence to the allegations of the
complainant. It manifests his tacit admission thereto. We have no other
alternative, therefore, but to accept the said documents at their [sic] face
value.
There is no doubt that respondent is guilty of having used the money of his
clients without their consent. As the evidentiary value of the documents
should be given more weight than the oral testimony of complainant, we
PINEDAPCGRNMAN
place the amount illegally used by respondent at P30,000.00 and not
P35,000.00 as claimed by complainant. Respondents illegal use of his clients
money is made more manifest [by] his letters to complainant, all promising
the latter to make good his promise to pay the money he withdrew from the
Clerk of Court and Oas Standard High School (See Annex E to the
complaint).
It bears emphasis that a lawyer, under his oath, pledges himself not to delay
any man for money or malice and is bound to conduct himself with all good
fidelity to his clients. He is obligated to report promptly the money of his client
that has come into his possession. He should not commingle it with his
private property or use it for his personal purposes without his cllients [sic]
consent. He should maintain a reputation for honesty and fidelity to private
trust (Daroy vs. Legaspi, 65 SCRA 304).
Money collected by a lawyer in pursuance of a judgment in favor of his clients
is held in trust and must be immediately turned over to them (Aya vs.
Bigornia, 57 Phil. 8).
Respondent, by converting the money of his clients to his own personal use
without their consent , and by deceiving the complainant into giving him the
amount of P2,000.00 purportedly to be used as a bond which was not
required, is, undoubtedly, guilty of deceit, malpractice and gross misconduct.
By so doing, he betrays the confidence reposed in him by his clients. Not only
has he degraded himself but as an unfaithful lawyer he has besmirched the
fair name of an honorable profession.
His belated payment of the amount he illegally used and fraudulently
obtained do not relieve him from any liability if only to impress upon him that
the relation between an attorney and his client is highly fiduciary in its nature
and of a very delicate, exacting and confidential character, requiring high
degree of fidelity and good faith. In view of that special relationship, lawyers
are bound to promptly account for money or property received by them on
behalf of their clients and failure to do so constitutes professional misconduct
(Daroy vs. Legaspi, supra).
Moreover, his repeated failure to comply with the resolutions of the Court,
requiring him to comment on the complaint indicate the high degree of
irresponsibility of respondent.
PREMISES CONSIDERED, it is respectfully recommended that respondent
Atty.Francisco Ricafort be SUSPENDED from the practice of law for a period
of ONE (1) YEAR.
While the findings are in order, the penalty recommended is not
commensurate to respondents infractions.
Plainly, respondent breached Section 25 of Rule 138 of the Rules of Court,
Rule 1.01 of Canon 1 and Rules 16.01, 16.02 and 16.03 of Canon 16 of the
Code of Professional Responsibility which read:
SEC. 25 Unlawful retention of clients funds; contempt.--When an attorney
unjustly retains in his hands money of his client after it has been demanded
he may be punished for contempt as an officer of the Court who has
misbehaved in his official transactions; but proceedings under this section
shall not be a bar to a criminal prosecution.
CANON 1- A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES.
Rule 1.01- A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS
POSSESSION.
Rule 16.01-- A lawyer shall account for all money or property collected or
received for or from the client.
Rule 16.02-- A lawyer shall keep the funds of each client separate and apart
from his own and those of others kept by him.
Rule 16.03-- A lawyer shall deliver the funds and property of his client when
due or upon demand. However, he shall have a lien over the funds and may
apply so much thereof as may be necessary to satisfy his lawful fees and
disbursements, giving notice promptly thereafter to his client. He shall also
have a lien to the same extent on all judgments and executions he has
secured for his client as provided for in the Rules of Court.
Respondents transgressions manifested dishonesty and amounted to grave
misconduct and grossly unethical behavior which caused dishonor, not
Page 245
merely to respondent, but to the noble profession to which he belongs, for it
cannot be denied that the respect of litigants for the profession is inexorably
diminished whenever a member of the Bar betrays their trust and confidence.
LEGAL ETHICS
This Court has been nothing short of exacting in its demand for integrity and
good moral character from members of the Bar. In Marcelo v. Javier (A.C.
No. 3248, 18 September 1992, 214 SCRA 1, 12-13), reiterated in Fernandez
v. Grecia, (A.C. No. 3694, 17 June 1993, 223 SCRA 425, 434), this Court
declared:
A lawyer shall at all times uphold the integrity and dignity of the legal
profession. The trust and confidence necessarily reposed by clients require
in the attorney a high standard and appreciation of his duty to his clients, his
profession, the courts and the public. The bar should maintain a high
standard of legal proficiency as well as of honesty and fair dealing . Generally
speaking, a lawyer can do honor to the legal profession by faithfully
performing his duties to society, to the bar, to the courts and to his clients. To
this end, nothing should be done by any member of the legal fraternity which
might tend to lessen in any degree the confidence of the public in the fidelity,
honesty and integrity of the profession.
Here, respondent chose to forget that by swearing the lawyers oath, he
became a guardian of truth and the rule of law and an indispensable
instrument in the fair and impartial administration of justice -- a vital function
of democracy a failure of which is disastrous to society.
Any departure from the path which a lawyer must follow as demanded by the
virtues of his profession shall not be tolerated by this Court as the disciplining
authority. This is specially so, as here, where respondent even deliberately
defied the lawful orders of the Court for him to file his comment on the
complaint, thereby transgressing Canon 11 of the Code of Professional
Responsibility which requires a lawyer to observe and maintain the respect
due the courts.
WHEREFORE, for dishonesty, grave misconduct, grossly unethical behavior
in palpable disregard of Section 25 of Rule 138 of the Rules of Court, Rule
1.01 of Canon 1 and Rules 16.01, 16.02 and 16.03 of Canon 16 of the Code
of Professional Responsibility, aggravated by a violation of Canon 11 thereof,
and consistent with the urgent need to maintain the esteemed traditions and
high standards of the legal profession and to preserve undiminished public
faith in the members of the Philippine Bar, the Court Resolves to DISBAR
respondent ATTY. FRANCISCO RICAFORT from the practice law. His name
is hereby stricken from the Roll of Attorneys.
This resolution shall take effect immediately and copies thereof furnished the
Office of the Bar Confidant, to be appended to respondents personal record;
the National Office and the Albay Chapter of the Integrated bar of the
Philippines; the Philippines Judges Association; and all courts of the land for
their information and guidance.
SO ORDERED.
A.M. No. 2144 April 10, 1989
CELEDONIO QUILBAN, ROMUALDO DALAGAN, FORTUNATO
RAMIREZ AMADOR ALARCON and LUIS AGAWAN, complainant, vs.
ATTY. SANTIAGO R. ROBINOL, respondent.
A.M. No. 2180 April 10, 1989
ATTY. SANTIAGO R. ROBINOL, complainant,
vs.
ATTY. A. R. MONTEMAYOR, respondent.
RESOLUTION
PER CURIAM:
Subjected to frustrations were the dreams of thirty-two (32) squatter families
to own the land of approximately 50 square meters each on which their
respective homes were built. To vindicate their rights they have aired their
plight before this Court. Thwarted, too, was the benevolence shown by the
original owner of the land which parted with its property at a giveaway price
thinking that it was accommodating the landless squatters.
The antecedent facts follow:
The Colegio de San Jose, a Jesuit corporation, (Colegio, for short) used to
own a parcel of land at the Seminary Road, Barrio Bathala, Quezon City.
Through its administrator, Father Federico Escaler, it sold said land to the
Quezon City Government as the site for the Quezon City General Hospital
but reserved an area of 2,743 square meters as a possible development site.
Squatters, however, settled in the area since 1965 or 1966.
Sometime in 1970, the Colegio, through Father Escaler gave permission to
Congressman Luis R. Taruc to build on the reserved site a house for his
PINEDAPCGRNMAN
residence and a training center for the Christian Social Movement. Seeing
the crowded shanties of squatters, Congressman Taruc broached to Father
Escaler the Idea of donating or selling the land cheap to the squatters.
Congressman Taruc then advised the squatters to form an organization and
choose a leader authorized to negotiate with Father Escaler. Following that
advice, the squatters formed the "Samahang Pagkakaisa ng Barrio Bathala"
(Samahan, for brevity), with Bernabe Martin as President (Exhibit "24",
Robinol), who was entrusted with the task of negotiating on their behalf for
the sale of the land to them.
But instead of working for the welfare of the Samahan, Martin went to one
Maximo Rivera, a realtor, with whom he connived to obtain the sale to the
exclusion of the other Samahan members. On 28 March 1971, the land was
ultimately sold to Rivera at P 15 per square meter or a total consideration of
P 41,961.65. The prevailing price of the land in the vicinity then was P 100 to
P 120 per square meter. It was evident that Father Escaler had been made
to believe that Rivera represented the squatters on the property. On the same
date, 28 March 1971, Rivera obtained TCT No. 175662 to the property in his
name alone.
In 1972, thirty-two heads of families of the Samahan filed Civil Case No. Q-
16433, Branch IV, Quezon City, entitled "Celedonio Quilban, et al., Plaintiffs,
vs. Maximo Rivera, et al., Defendants." with the principal prayer that said
defendants be ordered to execute a deed of conveyance in favor of said
plaintiffs after reimbursement by the latter of the corresponding amount paid
by Rivera to the Colegio. The Court of First Instance of Quezon City,
however, dismissed the case.
To prosecute the appeal before the Court of Appeals, the Samahan members
hired as their counsel Atty. Santiago R. Robinol for which the latter was paid
P 2,000.00 as attorney's fees on 8 October 1975 (Exhibit "I"). Atty. Robinol
was also to be given by the members a part of the land, subject matter of the
case, equal to the portion that would pertain to each of them. What was
initially a verbal commitment on the land sharing was confirmed in writing on
10 March 1979 (Exhibit "2").
On 14 November 1978, the Court of Appeals reversed the CFI Decision by:
(1) ordering defendant Maximo Rivera and all his co-defendants to execute
a deed of conveyance of the land in question in favor of herein plaintiffs after
the payment of the corresponding amount paid by the defendants to the
Colegio de San Jose, Inc., and in case of refusal or failure on their part to do
so, ordering the Clerk of Court to execute the same in favor of plaintiffs and
declaring TCT No. 175662 (Annex E) null and void and ordering the Register
of Deeds of Quezon City to cancel said certificate and issue a new one in lieu
thereof in the name of plaintiffs-appellants, upon presentation of the deed of
conveyance to be executed in favor of appellants and (2) ordering appellees
jointly and severally to pay appellants the sum of P 2,000.00 as attomey's
fees, plus costs." (p. 30, Report and Recommendation)
To raise the amount of P 41,961.65 ordered paid by the Court of Appeals,
plus expenses for ejectment of the non-plaintiffs occupying the property,
conveyance, documentation, transfer of title etc., the five officers of the
Samahan collected, little by little, P 2,500.00 from each head of family. The
Treasurer, Luis Agawan, issued the proper receipts prepared by Atty.
Robinol. On 18 May 1979, the sum of P 68,970.00 was turned over to Atty.
Robinol by the officers; on 31 May 1979 the amounts of P l,030.00 and P
2,500.00 respectively; and on 2 June 1979, the sum of P 2,500.00, or a total
of P 75,000.00.
After almost a year, the five officers discovered that no payment had been
made to Rivera. When queried, Atty. Robinol replied that there was an
intervention filed in the civil case and that a Writ of Execution had not yet
been issued by the Court of First Instance of Quezon City. However, it turned
out that the motion for intervention had already been dismissed. After
confronting Atty. Robinol with that fact, the latter gave other excuses, which
the officers discovered to have no basis at all.
On 6 March 1980, 21 out of 32 plaintiffs arrived at a "first consensus" to
change their counsel, Atty. Robinol (Exhibit "3"). The officers of the Samahan
thereafter approached Atty. Anacleto R. Montemayor, who agreed to be their
counsel, after he was shown the document of 6 March 1980 containing the
consensus of the Samahan members to change Atty. Robinol as their lawyer.
Upon Atty. Montemayor's advice, the officers sent Atty. Robinol a letter dated
17 March 1980 informing the latter of their decision to terminate his services
Page 246
and demanding the return of the P 75,000.00 deposited with him (Exhibit "5").
Atty. Robinol turned deaf ears to the demand. A subsequent letter of the
LEGAL ETHICS
same tenor, dated 31 March 1980 (Exhibit "6"), was similarly disregarded by
Atty. Robinol.
On 20 March 1980, Atty. Montemayor formally entered his appearance in
Civil Case No. Q-16433 as counsel for the plaintiffs (Exhibit "8"), vice Atty.
Robinol, on the strength of the authority dated 18 March 1980 given him by
plaintiffs in said civil case through the five officers (Exhibit "9"). Atty.
Montemayor then filed on 20 March 1980 a Motion for Execution praying that
the defendants and/or the Clerk of Court be directed to execute a deed of
conveyance in favor of the plaintiffs (Exhibit "10"). At the hearing of the
Motion for Execution on 5 June 1980, Atty. Robinol manifested that he had
no objection to the appearance of and his substitution by Atty. Montemayor
(Exhibits "11" & "11-A").
Because Atty. Robinol, however, still questioned the first consensus dated 6
March 1980, another document labelled the "second consensus" (Exhibit "E")
was signed by 21 plaintiffs during a meeting held for the purpose on 24
November 1980 to the effect that they had decided to change Atty. Robinol
as their counsel because he had delayed paying for their land
notwithstanding the Decision of the Court of Appeals in their favor.
Administrative Case No. 2144
On 15 April 1980 the Samahan officers filed this Administrative Complaint
before this Court requesting the invention of Atty. Robinol for refusal to return
the P 75,000.00 and praying that the Court exercise its power of discipline
over members of the Bar unworthy to practice law. The details of their
Complaint were embodied in their Joint Affidavit executed on 14 April 1980
describing what had transpired between them and Atty. Robinol.
In his defense, Atty. Robinol maintains that he was hired by Complainants to
appeal their case to the Court of appeals after they had lost in the lower
Court; that their agreement as to attomey's fees was on a contingent basis if
he obtains a reversal of the lower Court Decision, they wig give him a portion
of the property subject matter of the litigation equal to the portion that will
pertain to each of the 32 plaintiffs in Civil Case No. Q-16433; that he did not
receive P 70,000.00 from Complainants on 18 May 1979 but only P
56,470.00; that he prepared and signed the receipt dated 18 May 1979
showing that he received P 70,000.00 only to save complainants from
embarrassment and shame should their co-plaintiff ask for proof that they
(Complainants) have paid their shares, which they have not; that the correct
amount in his possession is only P 62,470.00-it would really be P 75,000.00
had the five Complainants paid their shares in the amount of P 12,500.00 at
P 2,500.00 each and one Fortunate Ramirez paid his balance of P 30.00;
that he had the right to hold the money in his possession as guarantee for
the payment of his attomey's fees of get a portion of the property that win
pertain to each of the plaintiffs, he wants his portion converted to cash, and
the cash equivalent of his portion is P 50,000.00 (2,743 square meters
divided by 32 plaintiffs equals 85 square meters for each plaintiff, multiplied
by P 500.00 up per square meter); that considering that P 50,000.00 is even
less than one-half (1/ 2) per cent of the total value of the property, which is
more than a million pesos, such amount is not unreasonable; that he is ready
to give back the amount of P 12,470.00, representing the difference between
P 50,000.00 and the amount of P 62,470.00 in his possession; that
complainants cannot make this Court a collection agency and that while this
Court has the exclusive disciplinary power over members of the Bar, it is
equally true that the Court cannot pass judgment on Complainants' plea that
the amount deposited by respondent be returned to them as this prayer
should be ventilated in an ordinary action; that he does not have the slightest
intention to appropriate the money in his possession (P 62,470.00) for
himself, but he is holding it until his attomey's fees are satisfied there being
no guarantee for its satisfaction because of Complainants' adamant refusal
to pay him; that there was no previous notice to him of his discharge; and
that Atty. Montemayor accepted the case without his Robinols formal
withdrawal and conformity.
Administrative Case No. 2180
Pursuing that tack on 29 July 1980, Atty. Robinol filed a complaint for
Disbarment against Atty. Anacleto R. Montemayor for alleged gross unethical
conduct unbecoming of a lawyer in that Atty. Montemayor readily accepted
the case without his Robinols formal withdrawal and conformity and knowing
fully well that there was no consensus of all the plaintiffs to discharge him as
their counsel.
For his part, Atty. Montemayor denied that the attomey's fees agreed upon
by plaintiffs and Atty. Robinol were purely on a contingent basis, the truth
being that the attomey's fees were payable on a cash basis of P 2,000.00
PINEDAPCGRNMAN
retainer fee, as evidenced by the receipt signed by Atty. Robinol (Annex "I"),
plus whatever amount is adjudicated as attomey's fees by the Court of
Appeals; that the contingent fee referred to by Atty. Robinol was the result of
his insistent demand after the Court of Appeals Decision in Civil Case No. Q-
16433 was already final, as shown by the date of the agreement (Annex "2");
that twenty [20] out of thirty-two [32] members of the Samahan signed the
agreement to discharge Atty. Robinol and hire a substitute counsel as shown
by Annex "3", which is a majority of the membership and, therefore, a valid
consensus; that he agreed to act as counsel if only to arrest the growing belief
of the Samahan that most members of the Philippine Bar are unprincipled;
that although there was no formal Motion for substitution, there was
substantial compliance with Sec. 26, Rule 138 of the Rules of Court, as
shown by the formal entry of appearance in Civil Case No. Q-1 6433 (Annex
"8"), the written consent of the clients (Annex "9"), notice to Atty. Robinol of
his discharge and substitution (Annexes "10' and "11"), non-objection by
Robinol of his appearance as counsel (Annex "l 2"), and implied consent of
the Court to the substitution as shown by its Order of 29 May 1980 (Annex "l
3"); that his professional and personal actuations as counsel for the plaintiffs
in Civil Case No. Q-16433, CFI-Quezon City, do not cause dishonor either to
himself or to the Philippine Bar; and that the Complaint against him should
be dismissed.
On 1 September 1980 and on 17 December 1980, the Court referred Adm.
Case No. 2144 and Adm. Case No. 2180, respectively, to the Office of the
Solicitor General for investigation, report and recommendation. On 15
December 1988, the Solicitor General submitted his compliance and
recommended:
1. That Atty. Santiago R. Robinol be suspended for three months for refusing
to deliver the funds of the plaintiffs in his possession, with the warning that a
more severe penalty will be imposed for a repetition of the same or similar
act, and that he be ordered to return to the plaintiffs, through the
complainants in Adm. Case No. 2134, the sum of P 75,000.00.
2. That the case against Atty. Anacleto R. Montemayor, Adm. Case No. 2180,
be dismissed, since he has not committed any misconduct imputed to him by
Atty. Robinol. (pp. 59-60, Rollo)
Except for the disciplinary sanction suggested for Atty. Robinol, we concur
with the recommendations.
Re: Atty. Santiago R. Robinol
Atty. Robinol has, in fact, been guilty of ethical infractions and grave
misconduct that make him unworthy to continue in the practice of the
profession. After the Court of Appeals had rendered a Decision favorable to
his clients and he had received the latter's funds, suddenly, he had a change
of mind and decided to convert the payment of his fees from a portion of land
equivalent to that of each of the plaintiffs to P 50,000.00, which he alleges to
be the monetary value of that area. Certainly, Atty. Robinol had no right to
unilaterally appropriate his clients' money not only because he is bound by a
written agreement but also because, under the circumstances, it was highly
unjust for him to have done so. His clients were mere squatters who could
barely eke out an existence They had painstakingly raised their respective
quotas of P 2,500.00 per family with which to pay for the land only to be
deprived of the same by one who, after having seen the color of money, heart
lessly took advantage of them.
Atty. Robinol has no basis to claim that since he was unjustly dismissed by
his clients he had the legal right to retain the money in his possession. Firstly,
there was justifiable ground for his discharge as counsel. His clients had lost
confidence in him for he had obviously engaged in dilatory tactics to the
detriment of their interests, which he was duty-bound to protect. Secondly,
even if there were no valid ground, he is bereft of any legal right to retain his
clients' funds intended for a specific purpose the purchase of land. He stands
obliged to return the money immediately to their rightful owners.
The principle of quantum meruit applies if a lawyer is employed without a
price agreed upon for his services in which case he would be entitled to
receive what he merits for his services, as much as he has earned. In this
case, however, there was an express contract and a stipulated mode of
compensation. The implied assumpsit onquantum meruit therefore, is
inapplicable.
But Atty. Robinol seeks to impress upon the Court that he had received only
the sum of P 62,470.00 and not P 75,000.00 claiming that five (5) officers of
Page 247
the Samahan had not yet paid their shares to P 12,500.00.
We agree with the Solicitor General that complainants' evidence on this score
is the more credible and that he had, in fact, received the total sum of P
LEGAL ETHICS
75,000.00 inclusive of the share of P 12,500.00 of the five (5) officers of the
Somalian For, in the pleadings filed by Atty. Robinol himself in the civil case
below, namely, the Motion for Execution on 5 June 1979; the Motion for
Postponement on 31 August 1979; and the Motion to Set Hearing of Motion
for Execution on 10 March 1980, he made mention of seven (7) persons,
who, as of that time, had not yet submitted their corresponding shares which
list, however, did not include any of the five (5) officers of the Samahan.
Inevitable, therefore, is the conclusion that Atty. Robinol has rendered
himself unfit to continue in the practice of law. He has not only violated his
oath not to delay any man for money and to conduct himself with all good
fidelity to his clients. He has also brought the profession into disrepute with
people who had reposed in it full faith and reliance for the fulfillment of a life-
time ambition to acquire a homelot they could call their own.
Re: Atty. Anacleto R. Montemayor
In so far as Atty. Montemayor is concerned, we agree with the findings of the
Solicitor General that he has not exposed himself to any plausible charge of
unethical conduct in the exercise of his profession when he agreed to serve
as counsel for the plaintiffs in Civil Case No. Q-16433.
Of the thirty-two (32) plaintiffs in said civil case, twenty-one (21) had signed
the first consensus of 6 March 1980 expressing their resolve to change their
lawyer. In as much as Atty. Robinol sought to exclude seven (7) of the
plaintiffs (out of 32) for non-payment of their shares, only twenty five (25) of
them should be considered in determining the majority. Consequently,
twenty-one (21) out of twenty-five (25) is sufficient to make the said
consensus binding. It is more than a simple majority.
Moreover, the following developments estop Atty. Robinol from questioning
his discharge as counsel: On 17 March 1980 he was informed in writing by
plaintiffs of the termination of his services (Exhibit "5"). That was followed by
another letter of 31 March 1980 of the same tenor (Exhibit "6"). In his
Memorandum of 12 December 1985 and during the proceedings before the
lower Court on 5 June 1980 he had stated that he had no objection to Atty.
Montemayor's appearance in Civil Case Q-16433. When the latter did enter
his appearance, therefore, on 20 March 1980 it was only after assuring
himself that Atty. Robinol's services had been formally terminated. He had in
no way encroached upon the professional employment of a colleague.
There is no gainsaying that clients are free to change their counsel in a
pending case at any time (Section 26, Rule 138, Rules of Court) and
thereafter employ another lawyer who may then enter his appearance. In this
case, the plaintiffs in the civil suit below decided to change their lawyer, Atty.
Robinol, for loss of trust and confidence. That act was well within their
prerogative.
In so far as the complaint for disbarment filed by Atty. Robinol against Atty.
Montemayor is concerned, therefore, we find the same absolutely without
merit.
ACCORDINGLY, 1) In Administrative Case No. 2144, Atty. Santiago R.
Robinol is hereby DISBARRED for having violated his lawyer's oath to delay
no man for money, broken the fiduciary relation between lawyer and client,
and proven himself unworthy to continue in the practice of law. By reason of
his unethical actuations, he is hereby declared to have forfeited his rights to
attomey's fees and is ordered to return the amount of P 75,000.00 to the
plaintiffs in Civil Case No. Q-16433 through the complainant in the
aforementioned Administrative Case.
2) Administrative Case No. 2180 against Atty. Anacleto R. Montemayor for
disbarment is hereby DISMISSED for lack of merit.
Let copies of this Resolution be entered in the respective personal records
of Attys. Santiago R. Robinol and Anacleto R. Montemayor.
This Resolution is immediately executory.
SO ORDERED.
Rule 16.04 – A lawyer shall not borrow money from his client unless the
client’s interests are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client
except, when in the interest of justice, he has to advance necessary
expenses in the legal matter he is handling for the client.
 Attorney’s lien is not an excuse for non-rendition of accounting
 Cannot disburse client’s money to client’s creditors without
authority.
PINEDAPCGRNMAN
 Failure to deliver upon demand gives rise to the presumption that
he has misappropriated the funds for his own use to the prejudice
of the client and in violation of the trust reposed in him.
 Notify client if retaining lien shall be implemented
 When a lawyer enforces a charging lien against his client, the
client-lawyer relationship is terminated.
 The principle behind Rule 16.04 is to prevent the lawyer from
taking advantage of his influence over the client or to avoid
acquiring a financial interest in the outcome of the case.
[A.M. No. 5925. March 11, 2003]
RUBY MAE BARNACHEA, complainant, vs. ATTY. EDWIN T.
QUIOCHO, respondent.
RESOLUTION
CALLEJO, SR., J.:
On January 3, 2002, Ruby Mae Barnachea filed a verified complaint for
breach of lawyer-client relations against respondent Atty. Edwin T. Quiocho.
It appears that respondent had not been in the private practice of the law for
quite some time. However, in September 2001, he decided to revive his legal
practice with some associates. Complainant engaged the legal services of
respondent for the latter to cause the transfer under her name of the title over
a property covered by Transfer Certificate of Title No. 334411 previously
owned by her sister, Lutgarda Amor D. Barnachea. The latter sold said
property to complainant under an unnotarized deed of absolute sale.
Complainant drew and issued BPI Family Bank Check No. 0052304 in the
amount of P11,280.00 and BPI Family Bank Check No. 0052305 in the
amount of P30,000.00, both dated September 5, 2001, or the total amount of
P41,280.00 for the expenses for said transfer and in payment for
respondents legal services. Respondent enchased the checks.
However, despite the lapse of almost two months, respondent failed to
secure title over the property in favor of complainant. The latter demanded
that respondent refund to her the amount of P41,280.00 and return the
documents which she earlier entrusted to him. However, respondent failed to
comply with said demands. On November 1, 2001, complainant received a
letter from respondent informing her that he had failed to cause the transfer
of the property under her name and that he was returning the documents and
title she had entrusted to him and refunding to her the amount of P41,280.00
through his personal check No. DIL 0317787. Said check was drawn against
his account with the Bank of Commerce (Diliman Branch) in the amount of
P41,280.00 and was postdated December 1, 2001. Respondent told
complainant that he needed more time to fund the check. However,
respondent failed to fund the check despite the demands of complainant.
In his Answer to the complaint, respondent denied that complainant
contracted his legal services. Although respondent admitted having received
the two checks from complainant, he claimed that said checks were intended
to cover actual and incidental expenses for transportation, communication,
representation, necessary services, taxes and fees for the cancellation and
transfer of TCT No. 334411 under the name of complainant and not for legal
services. He asserted that he acted in good faith as shown by the fact of his
return of complainants documents with an explanatory letter and his issuance
of a personal check for P41,280.00 dated December 1, 2001. He insisted that
he would not compromise for such meager amount his personal standing as
well as his membership in the legal profession. His failure to transfer the title
of the property under the name of the complainant was caused by his
difficulty in making good the claimed amount, compounded by his affliction
with diabetes and the consequent loss of sight of his right eye.
Respondent further alleged that he was a licensed real estate and insurance
broker and had been a freelance business management consultant. At the
same time he engaged in real estate brokering, pre-need products marketing
for Prudential Life, and life insurance underwriting for Insular Life. In 1999,
he gave up the practice of his profession as a lawyer and subsequently
managed to put up a business center with fellow insurance underwriters for
their common insurance underwriting practice. He further claimed that
sometime in August, 2001, an insurance client introduced complainant as an
insurance prospect to him. In the course of their dealing, complainant
intimated to respondent her willingness to consider respondents insurance
Page 248
proposal provided the latter would help her facilitate the cancellation and
eventual transfer to her name the property covered by TCT No. 334411 in
the name of complainants sister, Lutgarda Amor D. Barnachea. Respondent
LEGAL ETHICS
agreed to help complainant in the transfer of the title to her name, with the
condition that no diligent study or verification of complainants documents, nor
preparation of any additional document or any application or petition
whatsoever, will be made by respondent. He explained to complainant that
his task was merely to go through the regular process of presenting the
available documents, paying the taxes and fees, and following up the
processing for the cancellation and issuance of the certificate of title. In other
words, respondent offered to complainant services which a non-lawyer
familiar with the procedure and the related offices can perform and provide
to the complainant with respect to the transfer of the title of the property in
her name.
Respondent asserted that in the latter part of September 2001, he discovered
and became aware for the first time that the original copy of TCT No. 334411
with the Register of Deeds of Quezon City was destroyed in a fire in Quezon
City Hall several years earlier and that complainants copy of the title needed
to be reconstituted before it can be cancelled and transferred.At about the
same time, the working relations of respondent in the business center with
his non-lawyer associates had become difficult and strained, impelling him to
sever his business relations with them and cease from to going to the
business center. Consequently, telephone communications between
respondent and complainant at the business center was cut.Communications
became much more limited when, apart from the fact that respondent did not
have a landline at his residence, respondents mobile phone was stolen
sometime in October 2001.
The Integrated Bar of the Philippines (IBP) designated Atty. Dennis B. Funa
as Commissioner to conduct a formal investigation of the complaint. Despite
several settings, respondent failed to appear and adduce evidence.
On April 26, 2002, Investigating Commissioner Dennis B. Funa submitted his
report and recommendation stating in part that:
1. Respondent is not able to meet his financial obligations due to financial
difficulties, and that respondent is in good faith in his failure to meet this
obligation.
2. It is recommended that respondent be ORDERED TO REPAY HIS
CLIENT within ninety (90) days from receipt of this Decision. The principal
amount being P41,280.00. Failure to comply with the Order shall be
considered as proof of evident bad faith, and shall be considered in the
continuing evaluation of the case in view of the continued failure to repay his
client.
3. Respondent should also be given a WARNING that a repetition shall be
dealt with more severely.[1]
The Investigating Commissioner gave credence to the claim of complainant
that she engaged the legal services of respondent and paid him for his
services and that respondent failed in his undertaking and refund the amount
of P41,280.00 to complainant despite her demands and that respondent
appeared to be evading the complainant.
On October 19, 2002, the IBP Board of Governors passed Resolution No.
XV-2002-550 adopting and approving the Investigating Commissioners
recommendation with the additional sanction of reprimand for respondent:
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,
with modification. Respondent is hereby reprimanded and ordered to return
the Forty One Thousand Two Hundred Eighty (P41,280.00) Pesos to
complainant within ninety (90) days from receipt of notice.[2]
While the Court agrees with the Board of Governors that respondent should
be meted a disciplinary sanction, it finds that the penalty of reprimand
recommended by the Board of Governors is not commensurate to the gravity
of the wrong committed by respondent. As found by the Investigating
Commissioner, the complainant engaged the legal services of the
respondent. As admitted in his letter to the complainant, respondent had just
resumed his private practice of law two months before complainant
contracted his services for the notarization of the Deed of Absolute Sale, the
registration thereof with the Register of Deeds and the transfer of the title
over the property to the complainant:
NOVEMBER 1, 2002
DEAR RUBY,
I AM SORRY I AM RETURNING YOUR DOCUMENTS WITHOUT
CHANGES.
PINEDAPCGRNMAN
I HAD A SERIES OF MONEY PROBLEMS RIGHT AFTER YOU GAVE ME
THE TWO CHECKS AND COMING WITH THE AMOUNTS WITH
PERSONAL FUNDS.
I WAS REVIVING MY LEGAL PRACTICE ONLY FOR TWO MONTHS
WHICH WE MET AND HAD JUST SET UP THE OFFICE WITH TWO
ASSOCIATES WHICH A FEW WEEKS LATER WE HAD DISAGREEMENTS
AND DECIDED TO DISBAND. I WILL HAVE TO REFURBISH MY OFFICE. I
AM ISSUING MY PERSONAL CHECK TO GUARANTEE THE AMOUNT I
TOOK. I NEED A LITTLE TIME TO COVER THE AMOUNT. THANKS FOR
YOUR UNDERSTANDING.
(Sgd.) EDWIN.[3]
Respondents claim that complainant did not retain his legal services flies in
the face of his letter to complainant. Even if it were true that no attorney-client
relationship existed between them, case law has it that an attorney may be
removed or otherwise disciplined not only for malpractice and dishonesty in
the profession but also for gross misconduct not connected with his
professional duties, making him unfit for the office and unworthy of the
privileges which his license and the law confer upon him.[4]
In this case, respondent failed to comply with his undertaking for almost two
months. Worse, despite demands of complainant, he failed to refund the
amount of P41,280.00 and to return to complainant the deed of absolute sale
and title over the property. Respondents claim that complainant could not
contact him because he did not have any landline at his residence and that
his mobile phone was stolen in October 2001, is hard to believe. He failed to
adduce a morsel of evidence to prove that his telephone at the business
center was cut or that his mobile phone had been stolen. Even then,
respondent could have easily contacted the complainant at her residence or
could have written her a letter informing her that the original copy of TCT No.
324411 in the custody of the Register of Deeds was burned when the Quezon
City Hall was gutted by fire and that there was a need for the reconstitution
of said title. Neither did respondent adduce evidence that he was a life
insurance underwriter for Insular Life or that he had been sick with diabetes
and had lost his sight in his right eye. Respondent simply refused to adduce
evidence to prove his allegations in his Answer to the complaint.
The Court is led to believe that respondents failure to cause the transfer of
the title of the property under the name of complainant was due to a financial
problem that beset him shortly after he received the checks from
complainant. It can easily be inferred from respondents letter that he used
complainants money to alleviate if not solve his financial woes. What
compounded respondents unethical conduct was his drawing of a personal
check and delivering the same to complainant without sufficient funds in his
bank account to cover the check.Even as he promised to fund his account
with the drawee bank, respondent failed to do so when the check became
due.
A lawyer is obliged to hold in trust money or property of his client that may
come to his possession. He is a trustee to said funds and property.[5] He is to
keep the funds of his client separate and apart from his own and those of
others kept by him. Money entrusted to a lawyer for a specific purpose such
as for the registration of a deed with the Register of Deeds and for expenses
and fees for the transfer of title over real property under the name of his client
if not utilized, must be returned immediately to his client upon demand
therefor. The lawyers failure to return the money of his client upon demand
gave rise to a presumption that he has misappropriated said money in
violation of the trust reposed on him.[6] The conversion by a lawyer funds
entrusted to him by his client is a gross violation of professional ethics and a
betrayal of public confidence in the legal profession.[7]
In this case, respondent intransigeantly refused to return to the complainant
the amount of P41,280.00 which he received for the expenses for the transfer
to her of the title of the property and for his professional fees. His dishonest
conduct was compounded by his interjection of flimsy excuses for his
obstinate refusal to refund the amount to complainant.
The relation of attorney and client is highly fiduciary in nature and is of a very
delicate, exacting and confidential character.[8] A lawyer is duty-bound to
observe candor, fairness and loyalty in all his dealings and transactions with
his clients.[9] The profession, therefore, demands of an attorney an absolute
abdication of every personal advantage conflicting in any way, directly or
indirectly, with the interest of his client. In this case, respondent miserably
Page 249
failed to measure up to the exacting standard expected of him.
IN LIGHT OF ALL THE FOREGOING, Respondent Atty. Edwin T. Quiocho
is found guilty of violation of Canons 15 and 16 of the Code of Professional
LEGAL ETHICS
Responsibility. He is SUSPENDED from the practice of law for One (1) Year
with a stern warning that a repetition of the same or similar acts shall be dealt
with more severely. He is DIRECTED to restitute to the complainant the full
amount of P41,280.00 within ten (10) days from notice hereof. Respondent
is further DIRECTED to submit to the Court proof of payment of said amount
within ten (10) days from said payment. If Respondent fails to restitute the
said amount within the aforesaid period, he shall be meted an additional
suspension of three (3) months for every month or fraction thereof of delay
until he shall have paid the said amount in full. In case a subsidiary penalty
of suspension for his failure to restitute the said amount shall be necessary,
respondent shall serve successively the penalty of his one year suspension
and the subsidiary penalty. This is without prejudice to the right of the
complainant to institute the appropriate action for the collection of said
amount.
SO ORDERED.
G.R. No. L-35702 May 29, 1973
DOMINGO D. RUBIAS, plaintiff-appellant,
vs.
ISAIAS BATILLER, defendant-appellee.
Gregorio M. Rubias for plaintiff-appellant.
Vicente R. Acsay for defendant-appellee.
TEEHANKEE, J.:
In this appeal certified by the Court of Appeals to this Court as involving
purely legal questions, we affirm the dismissal order rendered by the Iloilo
court of first instance after pre-trial and submittal of the pertinent
documentary exhibits.
Such dismissal was proper, plaintiff having no cause of action, since it was
duly established in the record that the application for registration of the land
in question filed by Francisco Militante, plaintiff's vendor and predecessor
interest, had been dismissed by decision of 1952 of the land registration court
as affirmed by final judgment in 1958 of the Court of Appeals and hence,
there was no title or right to the land that could be transmitted by the
purported sale to plaintiff.
As late as 1964, the Iloilo court of first instance had in another case of
ejectment likewise upheld by final judgment defendant's "better right to
possess the land in question . having been in the actual possession thereof
under a claim of title many years before Francisco Militante sold the land to
the plaintiff."
Furthermore, even assuming that Militante had anything to sell, the deed of
sale executed in 1956 by him in favor of plaintiff at a time when plaintiff was
concededly his counsel of record in the land registration case involving the
very land in dispute (ultimately decided adversely against Militante by the
Court of Appeals' 1958 judgment affirming the lower court's dismissal of
Militante's application for registration) was properly declared inexistent and
void by the lower court, as decreed by Article 1409 in relation to Article 1491
of the Civil Code.
The appellate court, in its resolution of certification of 25 July 1972, gave the
following backgrounder of the appeal at bar:
On August 31, 1964, plaintiff Domingo D. Rubias, a lawyer, filed a suit to
recover the ownership and possession of certain portions of lot under Psu-
99791 located in Barrio General Luna, Barotac Viejo, Iloilo which he bought
from his father-in-law, Francisco Militante in 1956 against its present
occupant defendant, Isaias Batiller, who illegally entered said portions of the
lot on two occasions — in 1945 and in 1959. Plaintiff prayed also for damages
and attorneys fees. (pp. 1-7, Record on Appeal). In his answer with counter-
claim defendant claims the complaint of the plaintiff does not state a cause
of action, the truth of the matter being that he and his predecessors-in-
interest have always been in actual, open and continuous possession since
time immemorial under claim of ownership of the portions of the lot in
question and for the alleged malicious institution of the complaint he claims
he has suffered moral damages in the amount of P 2,000.00, as well as the
sum of P500.00 for attorney's fees. ...
On December 9, 1964, the trial court issued a pre-trial order, after a pre-trial
conference between the parties and their counsel which order reads as
follows..
PINEDAPCGRNMAN
'When this case was called for a pre-trial conference today, the plaintiff
appeared assisted by himself and Atty. Gregorio M. Rubias. The defendant
also appeared, assisted by his counsel Atty. Vicente R. Acsay.
A. During the pre-trial conference, the parties have agreed that the following
facts are attendant in this case and that they will no longer introduced any
evidence, testimonial or documentary to prove them:
1. That Francisco Militante claimed ownership of a parcel of land located in
the Barrio of General Luna, municipality of Barotac Viejo province of Iloilo,
which he caused to be surveyed on July 18-31, 1934, whereby he was issued
a plan Psu-99791 (Exhibit "B"). (The land claimed contained an area of
171:3561 hectares.)
2. Before the war with Japan, Francisco Militante filed with the Court of First
Instance of Iloilo an application for the registration of the title of the land
technically described in psu-99791 (Exh. "B")opposed by the Director of
Lands, the Director of Forestry and other oppositors. However, during the
war with Japan, the record of the case was lost before it was heard, so after
the war Francisco Militante petitioned this court to reconstitute the record of
the case. The record was reconstituted on the Court of the First Instance of
Iloilo and docketed as Land Case No. R-695, GLRO Rec. No. 54852. The
Court of First Instance heard the land registration case on November 14,
1952, and after the trial this court dismissed the application for registration.
The appellant, Francisco Militante, appealed from the decision of this Court
to the Court of Appeals where the case was docketed as CA-GR No. 13497-
R..
3. Pending the disposal of the appeal in CA-GR No. 13497-R and more
particularly on June 18, 1956, Francisco Militante sold to the plaintiff,
Domingo Rubias the land technically described in psu-99791 (Exh. "A"). The
sale was duly recorded in the Office of the Register of Deeds for the province
of Iloilo as Entry No. 13609 on July 11, 1960 (Exh. "A-1").
(NOTE: As per deed of sale, Exh. A, what Militante purportedly sold to
plaintiff-appellant, his son-in-law, for the sum of P2,000.00 was "a parcel of
untitled land having an area Of 144.9072 hectares ... surveyed under Psu
99791 ... (and) subject to the exclusions made by me, under (case) CA-
i3497, Land Registration Case No. R-695, G.L.R.O. No. 54852, Court of First
Instance of the province of Iloilo. These exclusions referred to portions of the
original area of over 171 hectares originally claimed by Militante as applicant,
but which he expressly recognized during the trial to pertain to some
oppositors, such as the Bureau of Public Works and Bureau of Forestry and
several other individual occupants and accordingly withdrew his application
over the same. This is expressly made of record in Exh. A, which is the Court
of Appeals' decision of 22 September 1958 confirming the land registration
court's dismissal of Militante's application for registration.)
4. On September 22,1958 the Court of appeals in CA-G.R. No. 13497-R
promulgated its judgment confirming the decision of this Court in Land Case
No. R-695, GLRO Rec. No. 54852 which dismissed the application for
Registration filed by Francisco Militante (Exh. "I").
5. Domingo Rubias declared the land described in Exh. 'B' for taxation
purposes under Tax Dec. No. 8585 (Exh. "C") for 1957; Tax Dec. Nos. 9533
(Exh. "C-1") and 10019 (Exh. "C-3")for the year 1961; Tax Dec. No. 9868
(Exh. "C-2") for the year 1964, paying the land taxes under Tax Dec. No.
8585 and 9533 (Exh. "D", "D-1", "G-6").
6. Francisco Militante immediate predecessor-in-interest of the plaintiff, has
also declared the land for taxation purposes under Tax Dec. No. 5172 in 1940
(Exh. "E") for 1945; under Tax Dec. No. T-86 (Exh. "E-1") for 1948; under
Tax Dec. No. 7122 (Exh. "2"), and paid the land taxes for 1940 (Exhs. "G"
and "G-7"), for 1945 46 (Exh. "G-1") for 1947 (Exh. "G-2"), for 1947 & 1948
(Exh. "G-3"), for 1948 (Exh. "G-4"), and for 1948 and 1949 (Exh. "G-5").
7. Tax Declaration No. 2434 in the name of Liberato Demontaño for the land
described therein (Exh. "F") was cancelled by Tax. Dec. No. 5172 of
Francisco Militante (Exh. "E"). Liberato Demontaño paid the land tax under
Tax Dec. No. 2434 on Dec. 20, 1939 for the years 1938 (50%) and 1959
(Exh. "H").
8. The defendant had declared for taxation purposes Lot No. 2 of the Psu-
155241 under Tax Dec. Not. 8583 for 1957 and a portion of Lot No. 2, Psu-
155241, for 1945 under Tax Dec. No. 8584 (Exh. "2-A" Tax No. 8583 (Exh.
"2") was revised by Tax Dec. No. 9498 in the name of the defendant (Exh.
"2-B") and Tax Dec. No. 8584 (Exh. "2-A") was cancelled by Tax Dec. No.
Page 250
9584 also in the name of the defendant (Exh. "2-C"). The defendant paid the
land taxes for Lot 2, Psu-155241, on Nov. 9, 1960 for the years 1945 and
1946, for the year 1950, and for the year 1960 as shown by the certificate of
LEGAL ETHICS
the treasurer (Exh. "3"). The defendant may present to the Court other land
taxes receipts for the payment of taxes for this lot.
9. The land claimed by the defendant as his own was surveyed on June 6
and 7,1956, and a planapproved by Director of Land on November 15, 1956
was issued, identified as Psu 155241 (Exh. "5").
10. On April 22, 1960, the plaintiff filed forcible Entry and Detainer case
against Isaias Batiller in the Justice of the Peace Court of Barotac Viejo
Province of Iloilo (Exh. "4") to which the defendant Isaias Batiller riled his
answer on August 29, 1960 (Exh. "4-A"). The Municipal Court of Barotac
Viejo after trial, decided the case on May 10, 1961 in favor of the defendant
and against the plaintiff (Exh. "4-B"). The plaintiff appealed from the decision
of the Municipal Court of Barotac Viejo which was docketed in this Court as
Civil Case No. 5750 on June 3, 1961, to which the defendant, Isaias Batiller,
on June 13, 1961 filed his answer (Exh. "4-C"). And this Court after the trial.
decided the case on November 26, 1964, in favor of the defendant, Isaias
Batiller and against the plaintiff (Exh. "4-D").
(NOTE: As per Exh. 4-B, which is the Iloilo court of first instance decision of
26 November 1964dismissing plaintiff's therein complaint for ejectment
against defendant, the iloilo court expressly found "that plaintiff's complaint
is unjustified, intended to harass the defendant" and "that the defendant,
Isaias Batiller, has a better right to possess the land in question described in
Psu 155241 (Exh. "3"), Isaias Batiller having been in the actual physical
possession thereof under a claim of title many years before Francisco
Militante sold the land to the plaintiff-hereby dismissing plaintiff'scomplaint
and ordering the plaintiff to pay the defendant attorney's fees ....")
B. During the trial of this case on the merit, the plaintiff will prove by
competent evidence the following:
1. That the land he purchased from Francisco Militante under Exh. "A" was
formerly owned and possessed by Liberato Demontaño but that on
September 6, 1919 the land was sold at public auction by virtue of a judgment
in a Civil Case entitled "Edw J. Pflieder plaintiff vs. Liberato Demontaño
Francisco Balladeros and Gregorio Yulo, defendants", of which Yap Pongco
was the purchaser (Exh. "1-3"). The sale was registered in the Office of the
Register of Deeds of Iloilo on August 4, 1920, under Primary Entry No. 69
(Exh. "1"), and a definite Deed of Sale was executed by Constantino A.
Canto, provincial Sheriff of Iloilo, on Jan. 19, 1934 in favor of Yap Pongco
(Exh. "I"), the sale having been registered in the Office of the Register of
Deeds of Iloilo on February 10, 1934 (Exh. "1-1").
2. On September 22, 1934, Yap Pongco sold this land to Francisco Militante
as evidenced by a notarial deed (Exh. "J") which was registered in the
Registry of Deeds on May 13, 1940 (Exh. "J-1").
3. That plaintiff suffered damages alleged in his complaint.
C. Defendants, on the other hand will prove by competent evidence during
the trial of this case the following facts:
1. That lot No. 2 of the Psu-1552 it (Exh. '5') was originally owned and
possessed by Felipe Batiller, grandfather of the defendant Basilio Batiller, on
the death of the former in 1920, as his sole heir. Isaias Batiller succeeded his
father , Basilio Batiller, in the ownership and possession of the land in the
year 1930, and since then up to the present, the land remains in the
possession of the defendant, his possession being actual, open, public,
peaceful and continuous in the concept of an owner, exclusive of any other
rights and adverse to all other claimants.
2. That the alleged predecessors in interest of the plaintiff have never been
in the actual possession of the land and that they never had any title thereto.
3. That Lot No. 2, Psu 155241, the subject of Free Patent application of the
defendant has beenapproved.
4. The damages suffered by the defendant, as alleged in his counterclaim."' 1
The appellate court further related the developments of the case, as follows:
On August 17, 1965, defendant's counsel manifested in open court that
before any trial on the merit of the case could proceed he would file a motion
to dismiss plaintiff's complaint which he did, alleging that plaintiff does not
have cause of action against him because the property in dispute which he
(plaintiff) allegedly bought from his father-in-law, Francisco Militante was the
subject matter of LRC No. 695 filed in the CFI of Iloilo, which case was
brought on appeal to this Court and docketed as CA-G.R. No. 13497-R in
which aforesaid case plaintiff was the counsel on record of his father-in-law,
Francisco Militante. Invoking Arts. 1409 and 1491 of the Civil Code which
reads:
'Art. 1409. The following contracts are inexistent and void from the beginning:
xxx xxx xxx
PINEDAPCGRNMAN
(7) Those expressly prohibited by law.
'ART. 1491. The following persons cannot acquire any purchase, even at a
public auction, either in person of through the mediation of another: .
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior
courts, and other officers and employees connected with the administration
of justice, the property and rights of in litigation or levied upon an execution
before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring an
assignment and shall apply tolawyers, with respect to the property and rights
which may be the object of any litigation in which they may take part by virtue
of their profession.'
defendant claims that plaintiff could not have acquired any interest in the
property in dispute as the contract he (plaintiff) had with Francisco Militante
was inexistent and void. (See pp. 22-31, Record on Appeal). Plaintiff strongly
opposed defendant's motion to dismiss claiming that defendant can not
invoke Articles 1409 and 1491 of the Civil Code as Article 1422 of the same
Code provides that 'The defense of illegality of contracts is not available to
third persons whose interests are not directly affected' (See pp. 32-35 Record
on Appeal).
On October 18, 1965, the lower court issued an order disclaiming plaintiffs
complaint (pp. 42-49, Record on Appeal.) In the aforesaid order of dismissal
the lower court practically agreed with defendant's contention that the
contract (Exh. A) between plaintiff and Francism Militante was null and void.
In due season plaintiff filed a motion for reconsideration (pp. 50-56 Record
on Appeal) which was denied by the lower court on January 14, 1966 (p. 57,
Record on Appeal).
Hence, this appeal by plaintiff from the orders of October 18, 1965 and
January 14, 1966.
Plaintiff-appellant imputes to the lower court the following errors:
'1. The lower court erred in holding that the contract of sale between the
plaintiff-appellant and his father-in-law, Francisco Militante, Sr., now
deceased, of the property covered by Plan Psu-99791, (Exh. "A") was void,
not voidable because it was made when plaintiff-appellant was the counsel
of the latter in the Land Registration case.
'2. The lower court erred in holding that the defendant-appellee is an
interested person to question the validity of the contract of sale between
plaintiff-appellant and the deceased, Francisco Militante, Sr.
'3. The lower court erred in entertaining the motion to dismiss of the
defendant-appellee after he had already filed his answer, and after the
termination of the pre-trial, when the said motion to dismiss raised a collateral
question.
'4. The lower court erred in dismissing the complaint of the plaintiff-appellant.'
The appellate court concluded that plaintiffs "assignment of errors gives rise
to two (2) legal posers — (1) whether or not the contract of sale between
appellant and his father-in-law, the late Francisco Militante over the property
subject of Plan Psu-99791 was void because it was made when plaintiff was
counsel of his father-in-law in a land registration case involving the property
in dispute; and (2) whether or not the lower court was correct in entertaining
defendant-appellee's motion to dismiss after the latter had already filed his
answer and after he (defendant) and plaintiff-appellant had agreed on some
matters in a pre-trial conference. Hence, its elevation of the appeal to this
Court as involving pure questions of law.
It is at once evident from the foregoing narration that the pre-trial conference
held by the trial court at which the parties with their counsel agreed and
stipulated on the material and relevant facts and submitted their respective
documentary exhibits as referred to in the pre-trial order, supra, 2 practically
amounted to a fulldress trial which placed on record all the facts and exhibits
necessary for adjudication of the case.
The three points on which plaintiff reserved the presentation of evidence at
the-trial dealing with the source of the alleged right and title of Francisco
Militante's predecessors, supra, 3 actually are already made of record in
thestipulated facts and admitted exhibits. The chain of Militante's alleged title
and right to the land as supposedly traced back to Liberato Demontaño was
actually asserted by Militante (and his vendee, lawyer and son-in-law, herein
plaintiff) in the land registration case and rejected by the Iloilo land
registration court which dismissed Militante's application for registration of
Page 251
the land. Such dismissal, as already stated, was affirmed by the final
judgment in 1958 of the Court of Appeals. 4
LEGAL ETHICS
The four points on which defendant on his part reserved the presentation of
evidence at the trial dealing with his and his ancestors' continuous, open,
public and peaceful possession in the concept of owner of the land and the
Director of Lands' approval of his survey plan thereof, supra, 5 are likewise
already duly established facts of record, in the land registration case as well
as in the ejectment case wherein the Iloilo court of first instance recognized
the superiority of defendant's right to the land as against plaintiff.
No error was therefore committed by the lower court in dismissing plaintiff's
complaint upon defendant's motion after the pre-trial.
1. The stipulated facts and exhibits of record indisputably established
plaintiff's lack of cause of action and justified the outright dismissal of the
complaint. Plaintiff's claim of ownership to the land in question was
predicated on the sale thereof for P2,000.00 made in 1956 by his father-in-
law, Francisco Militante, in his favor, at a time when Militante's application for
registration thereof had already been dismissed by the Iloilo land registration
court and was pending appeal in the Court of Appeals.
With the Court of Appeals' 1958 final judgment affirming the dismissal of
Militante's application for registration, the lack of any rightful claim or title of
Militante to the land was conclusively and decisively judicially determined.
Hence, there was no right or title to the land that could be transferred or sold
by Militante's purported sale in 1956 in favor of plaintiff.
Manifestly, then plaintiff's complaint against defendant, to be declared
absolute owner of the land and to be restored to possession thereof with
damages was bereft of any factual or legal basis.
2. No error could be attributed either to the lower court's holding that the
purchase by a lawyer of the property in litigation from his client is categorically
prohibited by Article 1491, paragraph (5) of the Philippine Civil Code,
reproduced supra; 6 and that consequently, plaintiff's purchase of the
property in litigation from his client (assuming that his client could sell the
same since as already shown above, his client's claim to the property was
defeated and rejected) was void and could produce no legal effect, by virtue
of Article 1409, paragraph (7) of our Civil Code which provides that contracts
"expressly prohibited or declared void by law' are "inexistent and that
"(T)hese contracts cannot be ratified. Neither can the right to set up the
defense of illegality be waived."
The 1911 case of Wolfson vs. Estate of Martinez 7 relied upon by plaintiff as
holding that a sale of property in litigation to the party litigant's lawyer "is not
void but voidable at the election of the vendor" was correctly held by the lower
court to have been superseded by the later 1929 case of Director of Lands
vs. Abagat. 8 In this later case of Abagat, the Court expressly cited two
antecedent cases involving the same transaction of purchase of property in
litigation by the lawyer which was expressly declared invalid under Article
1459 of the Civil Code of Spain (of which Article 1491 of our Civil Code of the
Philippines is the counterpart) upon challenge thereof not by the vendor-
client but by the adverse parties against whom the lawyer was to enforce his
rights as vendee thus acquired.
These two antecedent cases thus cited in Abagat clearly superseded (without
so expressly stating the previous ruling in Wolfson:
The spouses, Juan Soriano and Vicente Macaraeg, were the owners of
twelve parcels of land. Vicenta Macaraeg died in November, 1909, leaving a
large number of collateral heirs but no descendants. Litigation between the
surviving husband, Juan Soriano, and the heirs of Vicenta immediately arose,
and the herein appellant Sisenando Palarca acted as Soriano's lawyer. On
May 2, 1918, Soriano executed a deed for the aforesaid twelve parcels of
land in favor of Sisenando Palarca and on the following day, May 3, 1918,
Palarca filed an application for the registration of the land in the deed. After
hearing, the Court of First Instance declared that the deed was invalid by
virtue of the provisions of article 1459 of the Civil Code, which prohibits
lawyers and solicitors from purchasing property rights involved in any
litigation in which they take part by virtue of their profession. The application
for registration was consequently denied, and upon appeal by Palarca to the
Supreme Court, the judgement of the lower court was affirmed by a decision
promulgated November 16,1925. (G.R. No. 24329, Palarca vs. Director of
Lands, not reported.)
In the meantime cadastral case No. 30 of the Province of Tarlac was
instituted, and on August 21, 1923, Eleuteria Macaraeg, as administratrix of
the estate of Vicente Macaraeg, filed claims for the parcels in question.
Buenaventura Lavitoria administrator of the estate of Juan Soriano, did
likewise and so did Sisenando Palarca. In a decision dated June 21, 1927,
the Court of First Instance, Judge Carballo presiding, rendered judgment in
PINEDAPCGRNMAN
favor of Palarea and ordered the registration of the land in his name. Upon
appeal to this court by the administration of the estates of Juan Soriano and
Vicente Macaraeg, the judgment of the court below was reversed and the
land adjudicated to the two estates as conjugal property of the deceased
spouses. (G.R. No. 28226, Director of Lands vs. Abagat, promulgated May
21, 1928, not reported.) 9
In the very case of Abagat itself, the Court, again affirming the invalidity and
nullity of the lawyer's purchase of the land in litigation from his client, ordered
the issuance of a writ of possession for the return of the land by the lawyer
to the adverse parties without reimbursement of the price paid by him and
other expenses, and ruled that "the appellant Palarca is a lawyer and is
presumed to know the law. He must, therefore, from the beginning, have
been well aware of the defect in his title and is, consequently, a possessor in
bad faith."
As already stated, Wolfson and Abagat were decided with relation to Article
1459 of the Civil Code of Spain then adopted here, until it was superseded
on August 30, 1950 by the Civil Code of the Philippines whose counterpart
provision is Article 1491.
Article 1491 of our Civil Code (like Article 1459 of the Spanish Civil Code)
prohibits in its six paragraphs certain persons, by reason of the relation of
trust or their peculiar control over the property, from acquiring such property
in their trust or control either directly or indirectly and "even at a public or
judicial auction," as follows: (1) guardians; (2) agents; (3) administrators; (4)
public officers and employees; judicial officers and employees, prosecuting
attorneys, and lawyers; and (6) others especially disqualified by law.
In Wolfson which involved the sale and assignment of a money judgment by
the client to the lawyer, Wolfson, whose right to so purchase the judgment
was being challenged by the judgment debtor, the Court, through Justice
Moreland, then expressly reserved decision on "whether or not the judgment
in question actually falls within the prohibition of the article" and held only that
the sale's "voidability can not be asserted by one not a party to the transaction
or his representative," citing from Manresa 10 that "(C)onsidering the question
from the point of view of the civil law, the view taken by the code, we must
limit ourselves to classifying as void all acts done contrary to the express
prohibition of the statute. Now then: As the code does not recognize such
nullity by the mere operation of law, the nullity of the acts hereinbefore
referred to must be asserted by the person having the necessary legal
capacity to do so and decreed by a competent court."
11
The reason thus given by Manresa in considering such prohibited
acquisitions under Article 1459 of the Spanish Civil Code as merely voidable
at the instance and option of the vendor and not void — "that the Code does
not recognize such nullity de pleno derecho" — is no longer true and
applicable to our own Philippine Civil Code which does recognize the
absolute nullity of contracts "whose cause, object, or purpose is contrary to
law, morals, good customs, public order or public policy" or which are
"expressly prohibited or declared void by law" and declares such contracts
"inexistent and void from the beginning." 12
The Supreme Court of Spain and modern authors have likewise veered from
Manresa's view of the Spanish codal provision itself. In its sentencia of 11
June 1966, the Supreme Court of Spain ruled that the prohibition of Article
1459 of the Spanish Civil Code is based on public policy, that violation of the
prohibition contract cannot be validated by confirmation or ratification,
holding that:
... la prohibicion que el articulo 1459 del C.C. establece respecto a los
administradores y apoderados, la cual tiene conforme a la doctrina de esta
Sala, contendia entre otras, en S. de 27-5-1959, un fundamento de orden
moral lugar la violacion de esta a la nulidad de pleno derecho del acto o
negocio celebrado, ... y prohibicion legal, afectante orden publico, no cabe
con efecto alguno la aludida retification ... 13
The criterion of nullity of such prohibited contracts under Article 1459 of the
Spanish Civil Code (Article 1491 of our Civil Code) as a matter of public order
and policy as applied by the Supreme Court of Spain to administrators and
agents in its above cited decision should certainly apply with greater reason
to judges, judicial officers, fiscals and lawyers under paragraph 5 of the codal
article.
Citing the same decisions of the Supreme Court of Spain, Gullon Ballesteros,
Page 252
his "Curso de Derecho Civil, (Contratos Especiales)" (Madrid, 1968) p. 18,
affirms that, with respect to Article 1459, Spanish Civil Code:.
LEGAL ETHICS
Que caracter tendra la compra que se realice por estas personas?
Porsupuesto no cabe duda de que el caso (art.) 1459, 40 y 50, la nulidad
esabsoluta porque el motivo de la prohibicion es de orden publico. 14
Perez Gonzales in such view, stating that "Dado el caracter prohibitivo
delprecepto, la consequencia de la infraccion es la nulidad radical y ex lege."
15
Castan, quoting Manresa's own observation that.
"El fundamento do esta prohibicion es clarisimo. No sa trata con este
precepto tan solo de guitar la ocasion al fraude; persiguese, ademasel
proposito de rodear a las personas que intervienen en la administrcionde
justicia de todos los retigios que necesitan pora ejercer su ministerio
librandolos de toda suspecha, que aunque fuere in fundada, redundura
endescredito de la institucion." 16 arrives at the contrary and now accepted
view that "Puede considerace en nuestro derecho inexistente 'o radicalmente
nulo el contrato en los siguentes cases: a) ...; b) cuando el contrato se ha
celebrado en violacion de una prescripcion 'o prohibicion legal, fundada
sobre motivos de orden publico(hipotesis del art. 4 del codigo) ..." 17
It is noteworthy that Caltan's rationale for his conclusion that fundamental
consideration of public policy render void and inexistent such expressly
prohibited purchase (e.g. by public officers and employees of government
property intrusted to them and by justices, judges, fiscals and lawyers of
property and rights in litigation and submitted to or handled by them, under
Article 1491, paragraphs (4) and (5) of our Civil Code) has been adopted in
a new article of our Civil Code, viz, Article 1409 declaring such prohibited
contracts as "inexistent and void from the beginning." 18
Indeed, the nullity of such prohibited contracts is definite and permanent and
cannot be cured by ratification. The public interest and public policy remain
paramount and do not permit of compromise or ratification. In his aspect, the
permanent disqualification of public and judicial officers and lawyers
grounded on public policy differs from the first three cases of guardians,
agents and administrators (Article 1491, Civil Code), as to whose
transactions it had been opined that they may be "ratified" by means of and
in "the form of a new contact, in which cases its validity shall be determined
only by the circumstances at the time the execution of such new contract.
The causes of nullity which have ceased to exist cannot impair the validity of
the new contract. Thus, the object which was illegal at the time of the first
contract, may have already become lawful at the time of the ratification or
second contract; or the service which was impossible may have become
possible; or the intention which could not be ascertained may have been
clarified by the parties. The ratification or second contract would then be valid
from its execution; however, it does not retroact to the date of the first
contract." 19
As applied to the case at bar, the lower court therefore properly acted upon
defendant-appellant's motion to dismiss on the ground of nullity of plaintiff's
alleged purchase of the land, since its juridical effects and plaintiff's alleged
cause of action founded thereon were being asserted against defendant-
appellant. The principles governing the nullity of such prohibited contracts
and judicial declaration of their nullity have been well restated by Tolentino
in his treatise on our Civil Code, as follows:
Parties Affected. — Any person may invoke the in existence of the contract
whenever juridical effects founded thereon are asserted against him. Thus, if
there has been a void transfer of property, the transferor can recover it by the
accion reinvindicatoria; and any prossessor may refuse to deliver it to the
transferee, who cannot enforce the contract. Creditors may attach property
of the debtor which has been alienated by the latter under a void contract; a
mortgagee can allege the inexistence of a prior encumbrance; a debtor can
assert the nullity of an assignment of credit as a defense to an action by the
assignee.
Action On Contract. — Even when the contract is void or inexistent, an action
is necessary to declare its inexistence, when it has already been fulfilled.
Nobody can take the law into his own hands; hence, the intervention of the
competent court is necessary to declare the absolute nullity of the contract
and to decree the restitution of what has been given under it. The judgment,
however, will retroact to the very day when the contract was entered into.
If the void contract is still fully executory, no party need bring an action to
declare its nullity; but if any party should bring an action to enforce it, the
other party can simply set up the nullity as a defense.20
ACCORDINGLY, the order of dismissal appealed from is hereby affirmed,
with costs in all instances against plaintiff-appellant. So ordered.
PINEDAPCGRNMAN
CANON 17 – A lawyer owes fidelity to the cause of his client and he
shall be mindful of the trust and confidence reposed in him.
 No fear of judicial disfavor or public popularity should restrain him
from full discharge of his duty.
 It is the duty of the lawyer at the time of retainer to disclose to the
client all the circumstances of his relations to th ze parties and
any interest in, or connection with, the controversy which might
influence the client in the selection of counsel.
 The lawyer owes loyalty to his client even after the relation of
attorney and client has terminated. It is not good practice to
permit him afterwards to defend in another case other persons
against his former client under the pretext that the case is distinct
from and independent of the former case.
A.C. No. 9532 October 8, 2013
MARIA CRISTINA ZABALJAUREGUI PITCHER, Complainant,
vs.
ATTY. RUSTICO B. GAGATE, Respondent.
DECISION
PERLAS-BERNABE, J.:
For the Court s resolution is an administrative complaint1 filed by Maria
Cristina Zabaljauregui Pitcher (complainant) against Atty. Rustico B. Gagate
(respondent), . charging him for gross ignorance of the law and unethical
practice of law.
The facts
Complainant claimed to be the legal wife of David B. Pitcher (David),2 a British
national who passed away on June 18, 2004.3 Prior to his death, David was
engaged in business in the Philippines and owned, among others, 40% of the
shareholdings in Consulting Edge, Inc.4 (Consulting Edge), a domestic
corporation. In order to settle the affairs of her deceased husband,
complainant engaged the services of respondent.5
On June 22, 2004, complainant and respondent met with Katherine Moscoso
Bantegui Bantegui),6 a major stockholder of Consulting Edge,7 in order to
discuss the settlement of David’s interest in the company.8 They agreed to
another meeting which was, however, postponed by Bantegui. Suspecting
that the latter was merely stalling for time in order to hide something,
respondent insisted that the appointment proceed as scheduled.9
Eventually, the parties agreed to meet at the company premises on June 28,
2004. However, prior to the scheduled meeting, complainant was prevailed
upon by respondent to put a paper seal on the door of the said premises,
assuring her that the same was legal.10
On the scheduled meeting, Bantegui expressed disappointment over the
actions of complainant and respondent, which impelled her to just leave the
matter for the court to settle. She then asked them to leave, locked the office
and refused to give them a duplicate key.11
Subsequently, however, respondent, without the consent of Bantegui,
caused the change in the lock of the Consulting Edge office door,12 which
prevented the employees thereof from entering and carrying on the
operations of the company. This prompted Bantegui to file before the Office
of the City Prosecutor of Makati (Prosecutor’s Office) a complaint for grave
coercion against complainant and respondent.13 In turn, respondent advised
complainant that criminal and civil cases should be initiated against Bantegui
for the recovery of David's personal records/business interests in Consulting
Edge.14 Thus, on January 17, 2005, the two entered in Memorandum of
Agreement,15 whereby respondent undertook the filing of the cases against
Bantegui, for which complainant paid the amount of P150,000.00 as
acceptance fee and committed herself to pay respondentP1,000.00 for every
court hearing.16
On November 18, 2004, the Prosecutor’s Office issued a Resolution17 dated
October 13, 2004, finding probable cause to charge complainant and
respondent for grave coercion. The corresponding Information was filed
before the Metropolitan Trial Court of Makati City, Branch 63, docketed as
Criminal Case No. 337985 (grave coercion case), and, as a matter of course,
warrants of arrest were issued against them.18 Due to the foregoing,
respondent advised complainant to go into hiding until he had filed the
necessary motions in court. Eventually, however, respondent abandoned the
grave coercion case and stopped communicating with complainant.19Failing
Page 253
to reach respondent despite diligent efforts,20 complainant filed the instant
LEGAL ETHICS
administrative case before the Integrated Bar of the Philippines (IBP) -
Commission on Bar Discipline (CBD), docketed as CBD Case No. 06-1689.
Despite a directive21 from the IBP-CBD, respondent failed to file his answer
to the complaint. The case was set for mandatory conference on November
24, 2006,22 which was reset twice,23 on January 12, 2007 and February 2,
2007, due to the absence of respondent. The last notice sent to respondent,
however, was returned unserved for the reason "moved out."24 In view
thereof, Investigating Commissioner Tranquil S. Salvador III declared the
mandatory conference terminated and required the parties to submit their
position papers, supporting documents, and affidavits.25
The IBP’s Report and Recommendation
On March 18, 2009, Investigating Commissioner Pedro A. Magpayo, Jr.
(Commissioner Magpayo) issued a Report and Recommendation,26
observing that respondent failed to safeguard complainant's legitimate
interest and abandoned her in the grave coercion case. Commissioner
Magpayo pointed out that Bantegui is not legally obliged to honor complainant
as subrogee of David because complainant has yet to establish her kinship
with David and, consequently, her interest in Consulting Edge.27 Hence, the
actions taken by respondent, such as the placing of paper seal on the door of
the company premises and the changing of its lock, were all uncalled for.
Worse, when faced with the counter legal measures to his actions, he
abandoned his client's cause.28Commissioner Magpayo found that
respondent’s acts evinced a lack of adequate preparation and mastery of the
applicable laws on his part, in violation of Canon 529 of the Code of
Professional Responsibity (Code), warranting his suspension from the
practice of law for a period of six months.30
The IBP Board of Governors adopted and approved the aforementioned
Report and Recommendation in Resolution No. XX-2011-261 dated
November 19, 2011 (November 19, 2011 Resolution), finding the same to be
fully supported by the evidence on record and the applicable laws and rules.31
In a Resolution32 dated October 8, 2012, the Court noted the Notice of the
IBP’s November 19, 2011 Resolution, and referred the case to the Office of
the Bar Confidant (OBC) for evaluation, report and recommendation.33
The OBC's Report and Recommendation
On February 11, 2013, the OBC submitted a Report and Recommendation34
dated February 6, 2013, concluding that respondent grossly neglected his
duties to his client and failed to safeguard the latter's rights and interests in
wanton disregard of his duties as a lawyer.35 It deemed that the six-month
suspension from the practice of law as suggested by the IBP was an
insufficient penalty and, in lieu thereof, recommended that respondent be
suspended for three years.36 Likewise, it ordered respondent to return the
P150,000.00 he received from complainant as acceptance fee.37 The Court's
Ruling
After a careful perusal of the records, the Court concurs with and adopts the
findings and conclusions of the OBC.
The Court has repeatedly emphasized that the relationship between a lawyer
and his client is one imbued with utmost trust and confidence. In this regard,
clients are led to expect that lawyers would be ever-mindful of their cause
and accordingly exercise the required degree of diligence in handling their
affairs. For his part, the lawyer is expected to maintain at all times a high
standard of legal proficiency, and to devote his full attention, skill, and
competence to the case, regardless of its importance and whether he
accepts it for a fee or for free.38 To this end, he is enjoined to employ only fair
and honest means to attain lawful objectives.39 These principles are
embodied in Canon 17, Rule 18.03 of Canon 18, and Rule 19.01 of Canon
19 of the Code which respectively state:
CANON 17 - A lawyer owes fidelity to the cause of his client and he shall be
mindful of the trust and confidence reposed in him.
CANON 18 – A lawyer shall serve his client with competence and diligence.
xxxx
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable.
xxxx
CANON 19 – A lawyer shall represent his client with zeal within the bounds
of the law.
Rule 19.01 – A lawyer shall employ only fair and honest means to attain the
lawful objectives of his client and shall not present, participate in presenting
or threaten to present unfounded criminal charges to obtain an improper
advantage in any case or proceeding.
xxxx
PINEDAPCGRNMAN
Keeping with the foregoing rules, the Court finds that respondent failed to
exercise the required diligence in handling complainant’s cause since he:
first, failed to represent her competently and diligently by acting and
proffering professional advice beyond the proper bounds of law; and, second,
abandoned his client’s cause while the grave coercion case against them
was pending.
Anent the first infraction, it bears emphasis that complainant's right over the
properties of her deceased husband, David, has yet to be sufficiently
established. As such, the high-handed action taken by respondent to enforce
complainant's claim of ownership over the latter’s interest in Consulting Edge
– i.e., causing the change of the office door lock which thereby prevented the
free ingress and egress of the employees of the said company – was highly
improper. Verily, a person cannot take the law into his own hands, regardless
of the merits of his theory. In the same light, respondent's act of advising
complainant to go into hiding in order to evade arrest in the criminal case can
hardly be maintained as proper legal advice since the same constitutes
transgression of the ordinary processes of law. By virtue of the foregoing,
respondent clearly violated his duty to his client to use peaceful and lawful
methods in seeking justice,40 in violation of Rule 19.01, Canon 19 of the Code
as above-quoted. To note further, since such courses of action were not only
improper but also erroneous, respondent equally failed to serve his client with
competence and diligence in violation of Canon 18 of the Code. In the same
regard, he also remained unmindful of his client’s trust in him – in particular,
her trust that respondent would only provide her with the proper legal advice
in pursuing her interests – thereby violating Canon 17 of the Code.
With respect to the second infraction, records definitively bear out that
respondent completely abandoned complainant during the pendency of the
grave coercion case against them; this notwithstanding petitioner’s efforts to
reach him as well as his receipt of the P150,000.00 acceptance fee. It is
hornbook principle that a lawyer’s duty of competence and diligence includes
not merely reviewing the cases entrusted to his care or giving sound legal
advice, but also consists of properly representing the client before any court
or tribunal, attending scheduled hearings or conferences, preparing and filing
the required pleadings, prosecuting the handled cases with reasonable
dispatch, and urging their termination even without prodding from the client
or the court.41 Hence, considering respondent’s gross and inexcusable
neglect by leaving his client totally unrepresented in a criminal case, it cannot
be doubted that he violated Canon 17, Rule 18.03 of Canon 18, and Rule
19.01 of Canon 19 of the Code.
In addition, it must be pointed out that respondent failed to file his answer to
the complaint despite due notice.1âwphi1This demonstrates not only his lack
of responsibility but also his lack of interest in clearing his name, which, as
case law directs, is constitutive of an implied admission of the charges
leveled against him.42 In fine, respondent should be held administratively
liable for his infractions as herein discussed. That said, the Court now
proceeds to determine the appropriate penalty to be imposed against
respondent.
Several cases show that lawyers who have been held liable for gross
negligence for infractions similar to those committed by respondent were
suspended from the practice of law for a period of two years. In Jinon v. Jiz,43
a lawyer who neglected his client's case, misappropriated the client's funds
and disobeyed the IBP’s directives to submit his pleadings and attend the
hearings was suspended from the practice of law for two years. In Small
v. Banares,44 the Court meted a similar penalty against a lawyer who failed
to render any legal service even after receiving money from the complainant;
to return the money and documents he received despite demand; to update
his client on the status of her case and respond to her requests for
information; and to file an answer and attend the mandatory conference
before the IBP. Also, in Villanueva v. Gonzales,45 a lawyer who neglected
complainant’s cause; refused to immediately account for his client’s money
and to return the documents received; failed to update his client on the status
of her case and to respond to her requests for information; and failed to
submit his answer and to attend the mandatory conference before the IBP
was suspended from the practice of law for two years. However, the Court
observes that, in the present case, complainant was subjected to a graver
injury as she was prosecuted for the crime of grave coercion largely due to
the improper and erroneous advice of respondent. Were it not for
Page 254
respondent’s imprudent counseling, not to mention his act of abandoning his
client during the proceedings, complainant would not have unduly suffered
the harbors of a criminal prosecution. Thus, considering the superior degree
LEGAL ETHICS
of the prejudice caused to complainant, the Court finds it apt to impose
against respondent a higher penalty of suspension from the practice of law
for a period of three years as recommended by the OBC.
In the same light, the Court sustains the OBC’s recommendation for the
return of the P150,000.00 acceptance fee received by respondent from
complainant since the same is intrinsically linked to his professional
engagement. While the Court has previously held that disciplinary
proceedings should only revolve around the determination of the respondent-
lawyer’s administrative and not his civil liability,46 it must be clarified that this
rule remains applicable only to claimed liabilities which are purely civil in
nature – for instance, when the claim involves moneys received by the lawyer
from his client in a transaction separate and distinct and not intrinsically
linked to his professional engagement (such as the acceptance fee in this
case). Hence, considering further that the fact of respondent’s receipt of the
P150,000.00 acceptance fee from complainant remains undisputed,47 the
Court finds the return of the said fee, as recommended by the OBC, to be in
order.
WHEREFORE respondent Atty. Rustico B. Gagate is found guilty of violating
Canon 17 Rule 18.03 of Canon 18 and Rule 19.01 of Canon 19 of the Code
of Professional Responsibility. Accordingly, he is hereby SUSPENDED from
the practice of law for a period of three 3) years, effective upon the finality of
this Decision, with a stem warning that a repetition of the same or similar acts
will be dealt with more severely.
Further, respondent is ORDERED to return to complainant Maria Cristina
Zabaljauregui Pitcher the P150,000.00 acceptance fee he received from the
latter within ninety (90) days from the finality of this Decision. Failure to
comply with the foregoing directive will warrant the imposition of a more
severe penalty.
Let a copy of this Decision be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines, and the Office of the Court Administrator
for circulation t
A.M. Case No. 3195. December 18, 1989
MA. LIBERTAD SJ CANTILLER, complainant,
vs.
ATTY. HUMBERTO V. POTENCIANO, respondent.
Eduardo Cabreros, Jr. for complainant.
RESOLUTION
PER CURIAM
Public interest requires that an attorney exert his best efforts and ability in
the prosecution or defense of his client's cause. A lawyer who performs that
duty with diligence and candor not only protects the interests of his client; he
also serves the ends of justice, does honor to the bar and helps maintain the
respect of the community to the legal profession. This is so because the
entrusted privilege to practice law carries with it the correlative duties not only
to the client but also to the court, to the bar or to the public. That circumstance
explains the public concern for the maintenance of an untarnished standard
of conduct by every attorney towards his client. 1
Subject of this administrative complaint is Humberto V. Potenciano, a
practicing lawyer and a member of the Philippine Bar under Roll No. 21862.
He is charged with deceit, fraud, and misrepresentation, and also with gross
misconduct, malpractice and of acts unbecoming of an officer of the court.
The essential facts are as follows: 2
Complainant herein is the sister of Peregrina Cantiller, defendant in an action
for "ejectment" docketed as Civil Case No. 6046 before the Metropolitan Trial
Court of Manila, Branch 57, San Juan, Metro Manila.
Another action, likewise involving Peregrina but this time as plaintiff, was then
pending before the Regional Trial Court, Branch 168, Pasig, Metro Manila
docketed as Civil Case No. 54117 for "reconveyance with damages." Both
actions involve the apartment unit being rented by complainant and her
sister.
When the two cases were concluded, Peregrina came out the losing party.
Civil Case No. 54117 for reconveyance was ordered dismissed by the
Regional Trial Court on June 8, 1987 while Civil Case No. 6046 for ejectment
was decided by the Metropolitan Trial Court against her.
On October 8, 1987 pursuant to the writ of execution issued in Civil Case No.
6046 for ejectment, complainant and Peregrina were served a notice to
vacate the rented premises within four (4) days from receipt of notice.
PINEDAPCGRNMAN
Desperate and at a loss on what to do, they consulted a certain Sheriff
Pagalunan, on the matter. Pagalunan, in turn, introduced them to herein
respondent. After such introduction, the parties "impliedly agreed" that
respondent would handle their case. Forthwith, a petition entitled "Annulment
of Judgment, Annulment of Sale and Damages with prayer for Preliminary
Injunction and/or Status Quo Order, etc." was prepared by respondent to
forestall the execution of the order to vacate in Civil Case No. 6046.
In the afternoon of October 9,1987, the complainant was made to sign by
respondent what she described as a "[h]astily prepared, poorly conceived,
and haphazardly composed 3 petition for annulment of judgment.
Complainant alleges that respondent promised her that the necessary
restraining order would be secured if only because the judge who would hear
the matter was his "katsukaran" (close friend).
Thereupon, the petition was filed with the Regional Trial Court, Branch 153,
Pasig, Metro Manila and docketed as Civil Case No. 55118. Respondent
demanded from the complainant one thousand pesos (P l,000.00) as
attorney's fee which the latter paid that same afternoon.
However, when the case was raffled and assigned to Branch 153, the
presiding judge asked respondent to withdraw as counsel in the case on the
ground of their friendship.
On October 11, 1987, respondent went to the house of complainant and
asked her to be ready with two thousand pesos (P 2,000.00) to be given to
another judge who will issue the restraining order in the ejectment case (Civil
Case No. 6046). Complainant and her sister were only able to raise the
amount of one thousand pesos which they immediately gave to respondent.
Later respondent informed the complainant and her sister that he could not
locate the judge who would issue the restraining order. The parties, then,
instead went to the Max's Restaurant where respondent ordered some food
- including two plastic bags of food allegedly to be given to the judge who
would issue the restraining order. At this juncture, respondent asked for the
remaining balance of the two thousand pesos (P 2,000.00) which he earlier
demanded. Complainant gave her last money-a ten dollar ($ 10.00) bill.
Sometime after the filing of Civil Case No. 55118, respondent informed
complainant and Peregrina that there was a need to file another case with
the Regional Trial Court to enable them to retain possession of the
apartment. For this purpose, respondent told complainant to prepare the
amount of Ten Thousand Pesos (P 10,000.00) allegedly to be deposited with
the Treasurer's Office of Pasig as purchase price of the apartment and
another one thousand pesos (P 1,000.00) to cover the expenses of the suit.
Respondent stressed to the complainant the need and urgency of filing the
new complaint.
Complainant and Peregrina raised the said amounts through the kindness of
some friends and relatives. On October 26,1987, the money was handed
over to the respondent.
On the same date, a complaint for "Specific Performance, Annulment of
Simulated or Spurious Sale with Damages," later docketed as Civil Case No.
55210, was filed by respondent with the Regional Trial Court, Branch 165,
Pasig, Metro Manila.
At the hearing of the preliminary injunction in Civil Case No. 55118 on
October 30, 1987, respondent, contrary to his promise that he would secure
a restraining order, withdrew his appearance as counsel for complainant.
Complainant was not able to get another lawyer as replacement. Thus, no
restraining order or preliminary injunction was obtained. As a consequence,
the order to vacate in Civil Case No. 6046 was eventually enforced and
executed.
Sometime thereafter, it came to complainant's knowledge that there was
really no need to make a deposit of ten thousand pesos (P l0,000.00) relative
to Civil Case No. 55210. After further inquiry, she found out that in fact there
was no such deposit made. Thus, on December 23,1987, complainant sent
a demand letter to respondent asking for the return of the total amount of
eleven thousand pesos (P 11,000.00) which the former earlier gave to the
latter. However, this letter was never answered and the money was never
returned. Hence, complainant lodged this administrative complaint against
herein respondent.
Meanwhile, on December 29,1987, the Regional Trial Court, Branch 153,
dismissed Civil Case No. 55118 for failure to state a cause of action. 4 On
January 20,1988, Civil Case No. 5521 0 was likewise dismissed for being
Page 255
identical with Civil Case No. 55118. 5
Respondent in his answer contends that the filing of Civil Cases Nos. 55118
and 55210 was done in good faith and that the allegations of complainant
LEGAL ETHICS
relative to the administrative charge against him are all lies, product of one's
imagination and only intended to harrass him. 6
This Court agrees that the petitions in Civil Cases Nos. 55118 and 55210
appear to be poorly prepared and written. having represented himself
capable of picking up the cudgels for the apparently lost cause of
complainant respondent should have carefully prepared the pleadings if only
to establish the justness of his representation. The little time involved is no
excuse. Complainant reposed full faith in him. His first duty was to file the
best pleading within his capability. Apparently respondent was more
interested in getting the most out of the complainant who was in a hopeless
situation. He bragged about his closeness to the judge concerned in one
case and talked about the need to "buy" the restraining order in the other.
Worse still he got P 10,000.00 as alleged deposit in court which he never
deposited. Instead he pocketed the same. The pattern to milk the
complainant dry is obvious.
When a lawyer takes a client's cause, he thereby covenants that he will exert
all effort for its prosecution until its final conclusion. The failure to exercise
due diligence or the abandonment of a client's cause makes such lawyer
unworthy of the trust which the client had reposed on him. The acts of
respondent in this case violate the most elementary principles of professional
ethics . 7
The Court finds that respondent failed to exercise due diligence in protecting
his client's interests. Respondent had knowledge beforehand that he would
be asked by the presiding judge in Civil Case No. 55118 to withdraw his
appearance as counsel by reason of their friendship. Despite such prior
knowledge, respondent took no steps to find a replacement nor did he inform
complainant of this fact.
Even assuming that respondent had no previous knowledge that he would
be asked to withdraw, the record is quite clear that four (4) days prior to the
hearing of the preliminary injunction in Civil Case No. 55118 respondent
already filed a motion therein withdrawing as complainant's counsel
interposing as reason therefor his frequent attacks of pain due to
hemorrhoids. Despite this void, respondent failed to find a replacement. He
did not even ask complainant to hire another lawyer in his stead. 8
His actuation is definitely inconsistent with his duty to protect with utmost
dedication the interest of his client and of the fidelity, trust and confidence
which he owes his client. 9 More so in this case, where by reason of his gross
negligence complainant thereby suffered by losing all her cases.
The filing of Civil Case No. 55210 on October 26, 1987, the same day that
he had already filed a motion to withdraw as counsel for complainant in Civil
Case No. 55118, reveals his lack of good faith as an advocate. He also failed
to appear for the complainant in said case. It was all a show to get more
money from her. This adversely reflects on his fitness to practice law. When
confronted with this evident irregularity, he lamely stated that while he did not
physically appear for complainant he nevertheless prepared and drafted the
pleadings.
His services were engaged by complainant hoping that the property subject
of the ejectment proceeding would be returned to her. In fact, it was
respondent who persuaded complainant that the filing of these two cases
simultaneously were the means by which this objective can be achieved. His
duty was not only to prepare the pleadings but to represent complainant until
the termination of the cases. This he failed to do.
His representation that there was an immediate need to file Civil Case No.
55210 when he already knew that he could no longer physically handle the
same is an act of deception of his client. 10 It shows lack of fidelity to his oath
of office as a member of the Philippine bar.
The allegation of respondent that the ten thousand pesos (P 10,000.00) was
given to him as fee for his services, is simply incredible. Indeed, such amount
is grossly disproportionate with the service he actually rendered. 11 And his
failure to return even a portion of the amount upon demand of complainant
all the more bolsters the protestation of complainant that respondent does
not deserve to remain as an officer of the court.
Lawyers are indispensable part of the whole system of administering justice
in this jurisdiction. At a time when strong and disturbing criticisms are being
hurled at the legal profession, strict compliance with one's oath of office and
the canons of professional ethics is an imperative.
Lawyers should be fair, honest, respectable, above suspicion and beyond
reproach in dealing with their clients. The profession is not synonymous with
an ordinary business proposition. It is a matter of public interest.
PINEDAPCGRNMAN
WHEREFORE, after considering the entirety of the circumstances present in
this case, this Court finds Atty. Humberto V. Potenciano to be guilty of the
charges against him and hereby SUSPENDS him from the practice of law for
an indefinite period until such time he can demonstrate that he has
rehabilitated himself as to deserve to resume the practice of law.
Finally, respondent is hereby ordered to return to complainant herein the sum
of eleven thousand pesos (P11,000.00) with legal interest from the date of
this resolution until it is actually returned.
SO ORDERED.
A.M. No. 1311 July 18, 1991
RAMONA L. VDA. DE ALISBO and NORBERTO S. ALISBO, petitioners,
vs.
ATTY. BENITO JALANDOON, SR., respondent.
GRIÑO-AQUINO, J.:
A verified complaint for disbarment was filed with then Secretary of National
Defense Juan Ponce Enrile on January 2, 1974, by Ramona L. Vda. de Alisbo
and Norberto S. Alisbo against their former counsel, Attorney Benito
Jalandoon, Sr., charging him with deceit, malpractice, and professional
infidelity. The complaint was referred to this Court on February 5, 1974.
After the complainants had submitted the required number of copies of their
complaint, the respondent was ordered to file his answer thereto which he
did on June 5, 1974.
On August 20, 1974, the complainants filed a reply.
On August 28, 1974, the Court referred the complaint to the Solicitor General
for investigation, report and recommendation. On February 2, 1990, or after
sixteen (16) years, the Solicitor General submitted his report to the Court,
together with the transcripts of stenographic notes taken at the investigation
and folders of exhibits submitted by the parties.
The facts of the case, as found by the Solicitor General, are the following:
On March 16, 1970, Ramon Alisbo engaged respondent Attorney Benito
Jalandoon, Sr., as his counsel to commence an action to recover his share
of the estate of the deceased spouses Catalina Sales and Restituto Gozuma
which had been adjudicated to him under the judgment dated April 29, 1961
of the Court of First Instance of Negros Oriental in Civil Case No. 4963,
because Alisbo failed to file a motion for execution of the judgment in his
favor within the reglementary five-year period (Sec. 6, Rule, 39, Rules of
Court). The salient provisions of the Contract for Professional Services
(Exhibit A) between Alisbo and Attorney Jalandoon were the following:
1. That respondent will decide whether or not to file a suit for the recovery of
Ramon Alisbo's share or claim;
2. That respondent will shoulder all expenses of litigation; and
3. As attorney's fees, respondent will be paid fifty per cent (50%) of the value
of the property recovered.
On April 18, 1970, respondent prepared a complaint for revival of the
judgment in Civil Case No. 4963 but filed it only on September 12, 1970 on
five (5) months later. It was docketed as Civil Case No. 9559, entitled:
"Ramon S. Alisbo, Teotimo S. Alisbo and Pacifico S. Alisbo vs. Carlito Sales,
in his own capacity and as Judicial Administrator of the deceased Pedro
Sales." The complaint was signed by respondent alone. However, no sooner
had he filed the complaint than he withdrew it and filed in its stead (on the
same day and in the same case) a second complaint dated August 31, 1970,
with Ramon S. Alisbo as the lone plaintiff, praying for the same relief. Teotimo
S. Alisbo and Pacifico S. Alisbo were excluded as plaintiffs and were
impleaded as defendants instead. Attorneys Bernardo B. Pablo and Benito
Jalandoon, Sr. (herein respondent) signed as counsel.
On December 8, 1971, an amended complaint was filed wherein the plaintiffs
were: Ramon S. Alisbo, assisted by his judicial guardian, Norberto S. Alisbo,
and eight (8) others, namely: Pacifico S. Alisbo, Ramona Vda. de Alisbo and
Ildefonso, Evangeline, Teotimo, Jr., Reynaldo, Elizabeth and Teresita, all
surnamed Alisbo. The amended complaint was signed by Attorney Bernardo
B. Pablo alone as counsel of the plaintiffs.
On August 21, 1973, defendant Carlito Sales filed a Motion to Dismiss the
complaint on the ground that the action for revival of judgment in Civil Case
No. 4963 had already prescribed (Exh. 21). Plaintiffs filed an Opposition to
the Motion to Dismiss (Exh. 22).
Page 256
On October 3, 1973, the Court of First Instance of Negros Occidental
dismissed the complaint on the ground of prescription as the judgment in Civil
Case No. 4963 became final on May 30, 1961 yet, and, although a complaint
LEGAL ETHICS
for revival of said judgment was filed by Ramon Alisbo on September 12,
1970, before the ten-year prescriptive period expired, that complaint was null
and void for Ramon Alisbo was insane, hence, incompetent and without legal
capacity to sue when he instituted the action. The subsequent filing of an
Amended Complaint on December 8, 1972, after the statutory limitation
period had expired, was too late to save the plaintiffs right of action.
Thereafter, nothing more was done by any of the parties in the case.
On January 2, 1974, the complainants charged respondent Attorney Benito
Jalandoon, Sr. with having deliberately caused the dismissal of Civil Case
No. 9559 and with having concealed from them the material fact that he had
been the former legal counsel of Carlito Sales, their adversary in the probate
proceedings. The respondent filed a general denial of the charges against
him.
When Ramon S. Alisbo engaged the services of Attorney Jalandoon to
enforce the decision in Civil Case No. 4963, that decision was already nine
(9) years old, hence, it could no longer be executed by mere motion (Sec. 6,
Rule 39, Rules of Court). Complainants had only about a year left within
which to enforce the judgment by an independent action.
Ramon Alisbo was already insane or incompetent when he hired Attorney
Jalandoon to file Civil Case No. 9559 for him. Attorney Jalandoon concealed
from Alisbo the fact that he (Atty. Jalandoon) had been the former counsel of
Carlito Sales in the probate proceedings where Alisbo and Sales had litigated
over their shares of the inheritance.
However, according to Attorney Jalandoon, it was only on October 6, 1972,
when Civil Case No. 9559 was called for pre-trial, that he discovered his
previous professional relationship with Sales. At that time, the ten-year
prescriptive period for revival of the judgment in favor of Alisbo had already
expired. He thereupon asked Alisbo's permission to allow him (Jalandoon) to
withdraw from the case. He also informed the court about his untenable
position and requested that he be allowed to retire therefrom. His request
was granted.
In his report to the Court, the Solicitor General made the following
observations:
Evident from the foregoing is the fact that in handling the case for Ramon S.
Alisbo which eventually led to its dismissal, respondent committed several
errors, among which are:
1. He did not verify the real status of Ramon Alisbo before filing the case.
Otherwise, his lack of capacity to sue would not have been at issue.
2. He postponed the motion to revive judgment and gave way instead to a
motion to resolve pending incidents in Civil Case 4963. In doing so, he
frittered away precious time.
3. He dropped Ramon Alisbo's co-plaintiffs and impleaded them as
defendants. Otherwise, the complaint would have been defective only in part.
Had not respondent committed the above mistakes, Civil Case No. 9559 in
all probability would not have been dismissed on the ground of prescription.
(pp. 9-10, Solicitor General's Report.)
While the Solicitor General does not believe that Attorney Jalandoon's
mistakes in handling Alisbo's case were deliberate or made with malice
aforethought because there is no "proof of collusion or conspiracy between
respondent and those who would benefit from the dismissal of Civil Case No.
9559 . . . and that, on the other hand, respondent stood to gain substantially
(50% of the amount recovered) if he had succeeded in having the judgment
revived and executed" (pp. 10-11, Solicitor General's Report), still those
errors are so gross and glaring that they could not have resulted from mere
negligence or lack of due care.
Attorney Jalandoon's pretense that he did not know before the pre-trial that
the Sales defendants had been his clients in the past, is unbelievable
because:
1. Before he filed the complaint for revival of judgment, he had had several
interviews with Ramon S. Alisbo and Norberto Alisbo regarding Civil Case
No. 4963.
2. He must have done some research on the court records of Civil Case No.
4963, so he could not have overlooked his own participation in that case as
counsel for Carlito Sales, et al.
3. To prepare the complaint for revival of judgment (Civil Case No. 9559), he
had to inform himself about the personal circumstances of the defendants-
Carlito Sales, et al. The fact that they had been his clients could not have
eluded him.
In view of his former association with the Saleses, Attorney Jalandoon, as a
dutiful lawyer, should have declined the employment proffered by Alisbo on
PINEDAPCGRNMAN
the ground of conflict of interest. Had he done that soon enough, the Alisbos
(herein complainants) would have had enough time to engage the services
of another lawyer and they would not have lost their case through prescription
of the action.
The actuations of respondent attorney violated Paragraphs 1 and 2, No. 6 of
the Canons of Professional Ethics which provide:
6. ADVERSE INFLUENCE AND CONFLICTING INTEREST
It is the duty of a lawyer at the time of retainer to disclose to the client all the
circumstances of his relations to the parties, and any interest in or connection
with the controversy, which might influence the client in the selection of
counsel.
It is unprofessional to represent conflicting interests, except by express
consent of all concerned given after a full disclosure of the facts. Within the
meaning of this canon, a lawyer represents conflicting interests when, in
behalf of one client, it is his duty to contend for that which duty to another
client requires him to oppose. (pp. 14-15, Solicitor General's Report.)
The impression we gather from the facts is that Attorney Jalandoon used his
position as Alisbo's counsel precisely to favor his other client, Carlito Sales,
by delaying Alisbo's action to revive the judgment in his favor and thereby
deprive him of the fruits of his judgment which Attorney Jalandoon, as Sales'
counsel, had vigorously opposed. Thus, although Atty. Jalandoon prepared
Alisbo's complaint for revival of judgment on April 18, 1970, he delayed its
filing until September 12, 1970. He postponed filing the action by asking the
Court instead to resolve pending incidents in said Civil Case No. 4963. By
doing that, he frittered away what little time was left before the action would
prescribe. The original complaint which he filed in the names of Ramon Alisbo
and his brothers was onlypartially defective because of Ramon's
incompetence. By dropping the other plaintiffs, leaving alone the incompetent
Ramon to prosecute the action, respondent made the second complaint
wholly defective and ineffectual to stop the running of the prescriptive period.
After filing the complaint, Attorney Jalandoon sat on the case. While he
allegedly found out about Ramon Alisbo's insanity on July 17, 1971 only, he
amended the complaint to implead Alisbo's legal guardian as plaintiff on
December 8, 1971 only, or almost five (5) months later. By that time the
prescriptive period had run out.
The surrounding circumstances leave us with no other conclusion than that
Attorney Jalandoon, betrayed his client Ramon Alisbo's trust and did not
champion his cause with that wholehearted fidelity, care and devotion that a
lawyer is obligated to give to every case that he accepts from a client. There
is more than simple negligence resulting in the extinguishment and loss of
his client's right of action; there is a hint of duplicity and lack of candor in his
dealings with his client, which call for the exercise of this Court's disciplinary
power.
The Honorable Solicitor General who conducted the investigation of this case
found respondent Attorney Benito Jalandoon, Sr. guilty of serious misconduct
and infidelity. Although the Solicitor General recommended the suspension
of respondent Attorney Benito Jalandoon Sr. from the practice of law for a
period of one (1) year, the Court, after due deliberation, decided to suspend
him for a period of two (2) years from the finality of this decision.
IT IS SO ORDERED.
A.M. No. 2490 February 7, 1991
FULGENCIO A. NGAYAN, TOMASA K. NGAYAN and BELLA AURORA
NGAYAN, complainants,
vs.
ATTY. FAUSTINO F. TUGADE, respondent.
RESOLUTION
PER CURIAM:
This case refers to disciplinary proceedings initiated by the herein
complainants Fulgencio A. Ngayan, Tomasa K. Ngayan and Bella Aurora
Ngayan in a letter-complaint dated November 16, 1982 against respondent
lawyer for violation of sub-paragraphs (e) and (f) of Section 20, Rule 138 of
the Rules of Court of the Philippines.
It appears that respondent lawyer was formerly a counsel for complainants
either as defense counsel or private prosecutor in the following cases:
(a) People v. Fulgencio A. Ngayan, City Court of Manila, Branch Criminal
Page 257
Case No. 053773-CR for light threat;
(b) People v. Tomasa Ngayan and Bella Aurora Ngayan, City Court of Manila,
Branch VIII, Criminal Case No. 053594-CR, for unjust vexation;
LEGAL ETHICS
(c) People v. Bella Aurora Ngayan, City Court of Manila, Branch II, Criminal
Case No. 053599-CR, for grave threats;
(d) People v. Roberto Leonido, City Court of Manila, Branch XIV, Criminal
Case No. 053649-CR, for trespass to dwelling; and People v. Nestor Campo,
Branch XIV, Criminal Case No. 053650-CR, for threats;
(e) Fulgencio A. Ngayan and Tomasa K. Ngayan v. Rowena Soriano and
Robert Leonido for grave threats and trespass; Fulgencio A. Ngayan and
Tomasa K. Ngayan v. Rowena Soriano, for grave defamation, Office of the
City Fiscal of Manila before Assistant City Fiscal Elmer K. Calledo, I.S. No.
82-8564. (pp. 1-2,Rollo)
The factual antecedents of this case are as follows:
Complainants alleged that they asked respondent to prepare an affidavit to
be used as basis for a complaint to be filed against Mrs. Rowena Soriano
and Robert Leonido as a consequence of the latter's unauthorized entry into
complainants' dwelling. Without thoroughly reading the same, Mrs. Tomasa
A. Ngayan allegedly signed it because she was rushed to do the same. After
signing, Mrs. Ngayan noted a paragraph which did not mention that Robert
Leonido was with Rowena Soriano when both suddenly barged into
complainants' residence. Mrs. Ngayan allegedly told respondent about his
omission and in front of her, respondent crossed out the paragraph she
complained about and promised to make another affidavit. In the meantime,
complainants filed motions to discharge the respondent as their counsel.
Complainants allegedly made a follow up after discharging respondent and
found that the name of Robert Leonido was not included in the charge. Since
the omission was remedied by their new counsel and the case was
subsequently filed in court, the adverse parties filed a motion for
reinvestigation and attached thereto the first affidavit of complainants which
was crossed out. Complainants averred that the motion was filed by Atty.
Apolo P. Gaminda, a former classmate of respondent. They further said that
respondent was also a lawyer of the brother of Robert Leonido in an
insurance company. Complainants further alleged that the motion for
reinvestigation was set for hearing before Assistant City Fiscal Milagros F.
Garcia-Beza where respondent himself executed and submitted an affidavit
as exhibit for Robert Leonido and Rowena Soriano controverting the affidavit
of complainants notwithstanding the fact that he prepared the latter's affidavit
when he was still their counsel.
They further alleged that before he executed and submitted his affidavit,
respondent sent a personal letter to Fiscal Beza denouncing complainants
and stating that he is filing criminal and civil cases against them.
Complainants charged respondent for violation of paragraphs (e) and (f) of
Section 20, Rule 138, Rules of Court, which provide:
(e) To maintain inviolate the confidence, and at every peril to himself, to
preserve the secrets of his client, and to accept no compensation in
connection with his client's business except from him or with his knowledge
and approval;
(f) To abstain from all offensive personality and to advance no fact prejudicial
to the honor or reputation of a party or witnesses, unless required by the
justice of the cause with which he is charged;
Complainants claim that paragraph (e) above was violated by respondent
when the affidavit he prepared for complainants but subsequently crossed-
out was submitted as evidence against complainants in the motion for
reinvestigation. As to paragraph (f), complainants averred that respondent
violated it when he sent a letter to the fiscal saying that his name was being
adversely affected by the false affidavits of complainants and for that reason,
respondent was contemplating to file a criminal and civil action for damages
against them.
In a resolution of the Second Division of this Court dated January 19, 1983,
respondent was required to answer the complaint against him but respondent
failed. Thus, on May 25, 1983, for failure of the respondent to file an answer,
this Court resolved to refer this case to the Solicitor General for investigation,
report and recommendation. Thereupon, the Solicitor General set the
complaint for hearing on September 26, 1983, October 17 and 18,1983 and
November 24,1983, all of which dates, respondent was duly notified.
However, respondent never appeared on any date. Accordingly, the Solicitor
General made findings of facts based on the aforesaid claims of
complainants and said:
Consistent with respondent's failure to file an answer to the complaint herein
filed against him, he also did not appear, despite due notice on the four
occasions when the hearing of the present complaint was set at the Office of
the Solicitor General. Neither has respondent shown concern or interest
PINEDAPCGRNMAN
about the status of the complaint filed against him. The inaction of respondent
to the resolutions of this Honorable Court requiring him to file his Answer to
the Complaint filed against him and his subsequent failure to attend the
hearings on the said complaint indicate that respondent has not obeyed the
legal orders of the duly constituted authorities and he has not conducted
himself as a lawyer according to the best of his knowledge and discretion
with all good fidelity as well to the courts as to his clients (Sec. 3, Rule 138,
Rules of Court). Further, lawyers are particularly called upon to obey court
orders and processes. They should stand foremost in complying with the
court's directives or instructions being themselves officers of the court (p. 75,
Legal Ethics, Ruben Agpalo, 2nd Ed.). This lack of concern shown by
respondent regarding the matter that involved the very foundation of his right
to engage in the practice of law would show how much less he would regard
the interest of Ms clients.1
He thus recommended that the respondent lawyer be disbarred and his name
dropped from attorney's roll.1âwphi1 In this report, he averred that the
conduct of respondent as above-shown constitutes unprofessional conduct
and an outright violation of the provisions of Section 3 and paragraphs (e)
and (f) of Section 20 of Rule 138 of the Rules of Court.
In disbarment proceedings, the burden of proof rests upon the complainant,
and for the court to exercise its disciplinary powers, the case against the
respondent must be established by clear, convincing and satisfactory proof
(Santos v. Dichoso, Adm. Case No. 1825, August 22, 1978, 84 SCRA 622).
In the case at bar, complainants claim that respondent furnished the adverse
parties in a certain criminal case with a copy of their discarded affidavit, thus
enabling them to use it as evidence against complainants. This actuation
constitutes betrayal of trust and confidence of his former clients in violation
of paragraph (e), Section 20, Rule 138 of the Rules of Court. Inasmuch as
respondent failed to answer the complaint filed against him and despite due
notice on four occasions, he consistently did not appear on the scheduled
hearing set by the Office of the Solicitor General, this claim remained
uncontroverted. Besides, We tend to believe the said claim of complainants
when it is taken together with their other claim that respondent's actuations
from the beginning tend to show that he was partial to the adverse parties as
he even tried to dissuade complainants from filing charges against Robert
Leonido. This partiality could be explained by the fact that respondent is the
former classmate of Atty. Apolo P. Gaminda, the adverse parties' counsel
and the fact that respondent is the lawyer of the brother of Robert Leonido in
an insurance company.
Respondent's act of executing and submitting an affidavit as exhibit for
Robert Leonido and Rowena Soriano advancing facts prejudicial to the case
of his former clients such as the fact that the crime charged in complainants'
affidavit had prescribed and that he was asked to prepare an affidavit to make
the offense more grave so as to prevent the offense from prescribing
demonstrates clearly an act of offensive personality against complainants,
violative of the first part of paragraph (f), Section 20, Rule 138, Rules of Court.
Likewise, respondent's act of joining the adverse parties in celebrating their
victory over the dismissal of the case against them shows not only his bias
against the complainants but also constitutes a degrading act on the part of
a lawyer. It was meant only to titillate the anger of complainants.
Additionally, respondent's failure to answer the complaint against him and his
failure to appear at the investigation are evidence of his flouting resistance to
lawful orders of the court and illustrate his despiciency for his oath of office in
violation of Section 3, Rule 138, Rules of Court.
We have fully scrutinized and evaluated the records of this case and We
cannot but find that strong and unassailable reasons exist to render it Our
irremissible duty to impose a disciplinary sanction on respondent. But We
feel that disbarment is too harsh considering the circumstances of the case.
We hold that suspension from the practice of law for a period of one (1) year
should be imposed on respondent for the aforestated misconduct.
ACCORDINGLY, respondent Faustino F. Tugade is hereby SUSPENDED
from the practice of law for a period of one (1) year, effective from receipt of
this resolution.
Let a copy of this resolution be furnished to the Bar Confidant and the
Integrated Bar of the Philippines and spread on the personal records of
respondent.
SO ORDERED.
Page 258
[B.M. No. 793. July 30, 2004]
LEGAL ETHICS
IN RE: SUSPENSION FROM THE PRACTICE OF LAW IN THE
TERRITORY OF GUAM OF ATTY. LEON G. MAQUERA
RESOLUTION
TINGA, J.:
May a member of the Philippine Bar who was disbarred or suspended from
the practice of law in a foreign jurisdiction where he has also been admitted
as an attorney be meted the same sanction as a member of the Philippine
Bar for the same infraction committed in the foreign jurisdiction? There is a
Rule of Court provision covering this cases central issue. Up to this juncture,
its reach and breadth have not undergone the test of an unsettled case.
In a Letter dated August 20, 1996,[1] the District Court of Guam informed this
Court of the suspension of Atty. Leon G. Maquera (Maquera) from the
practice of law in Guam for two (2) years pursuant to the Decision rendered
by the Superior Court of Guam on May 7, 1996 in Special Proceedings Case
No. SP0075-94,[2] a disciplinary case filed by the Guam Bar Ethics Committee
against Maquera.
The Court referred the matter of Maqueras suspension in Guam to the Bar
Confidant for comment in its Resolution dated November 19, 1996.[3] Under
Section 27, Rule 138 of the Revised Rules of Court, the disbarment or
suspension of a member of the Philippine Bar in a foreign jurisdiction, where
he has also been admitted as an attorney, is also a ground for his disbarment
or suspension in this realm, provided the foreign courts action is by reason
of an act or omission constituting deceit, malpractice or other gross
misconduct, grossly immoral conduct, or a violation of the lawyers oath.
In a Memorandum dated February 20, 1997, then Bar Confidant Atty. Erlinda
C. Verzosa recommended that the Court obtain copies of the record of
Maqueras case since the documents transmitted by the Guam District Court
do not contain the factual and legal bases for Maqueras suspension and are
thus insufficient to enable her to determine whether Maqueras acts or
omissions which resulted in his suspension in Guam are likewise violative of
his oath as a member of the Philippine Bar.[4]
Pursuant to this Courts directive in its Resolution dated March 18, 1997,[5] the
Bar Confidant sent a letter dated November 13, 1997 to the District Court of
Guam requesting for certified copies of the record of the disciplinary case
against Maquera and of the rules violated by him.[6]
The Court received certified copies of the record of Maqueras case from the
District Court of Guam on December 8, 1997.[7]
Thereafter, Maqueras case was referred by the Court to the Integrated Bar
of the Philippines (IBP) for investigation report and recommendation within
sixty (60) days from the IBPs receipt of the case records.[8]
The IBP sent Maquera a Notice of Hearing requiring him to appear before
the IBPs Commission on Bar Discipline on July 28, 1998.[9] However, the
notice was returned unserved because Maquera had already moved from his
last known address in Agana, Guam and did not leave any forwarding
address.[10]
On October 9, 2003, the IBP submitted to the Court its Report and
Recommendation and its Resolution No. XVI-2003-110, indefinitely
suspending Maquera from the practice of law within the Philippines until and
unless he updates and pays his IBP membership dues in full.[11]
The IBP found that Maquera was admitted to the Philippine Bar on February
28, 1958. On October 18, 1974, he was admitted to the practice of law in the
territory of Guam. He was suspended from the practice of law in Guam for
misconduct, as he acquired his clients property as payment for his legal
services, then sold it and as a consequence obtained an unreasonably high
fee for handling his clients case.[12]
In its Decision, the Superior Court of Guam stated that on August 6, 1987,
Edward Benavente, the creditor of a certain Castro, obtained a judgment
against Castro in a civil case.Maquera served as Castros counsel in said
case. Castros property subject of the case, a parcel of land, was to be sold
at a public auction in satisfaction of his obligation to Benavente.Castro,
however, retained the right of redemption over the property for one year. The
right of redemption could be exercised by paying the amount of the judgment
debt within the aforesaid period.[13]
At the auction sale, Benavente purchased Castros property for Five Hundred
U.S. Dollars (US$500.00), the amount which Castro was adjudged to pay
him.[14]
On December 21, 1987, Castro, in consideration of Maqueras legal services
in the civil case involving Benavente, entered into an oral agreement with
Maquera and assigned his right of redemption in favor of the latter.[15]
PINEDAPCGRNMAN
On January 8, 1988, Maquera exercised Castros right of redemption by
paying Benavente US$525.00 in satisfaction of the judgment debt.
Thereafter, Maquera had the title to the property transferred in his name.[16]
On December 31, 1988, Maquera sold the property to C.S. Chang and C.C.
Chang for Three Hundred Twenty Thousand U.S. Dollars
(US$320,000.00).[17]
On January 15, 1994, the Guam Bar Ethics Committee (Committee)
conducted hearings regarding Maqueras alleged misconduct.[18]
Subsequently, the Committee filed a Petition in the Superior Court of Guam
praying that Maquera be sanctioned for violations of Rules 1.5[19] and
1.8(a)[20] of the Model Rules of Professional Conduct (Model Rules) in force
in Guam. In its Petition, the Committee claimed that Maquera obtained an
unreasonably high fee for his services. The Committee further alleged that
Maquera himself admitted his failure to comply with the requirement in Rule
1.8 (a) of the Model Rules that a lawyer shall not enter into a business
transaction with a client or knowingly acquire a pecuniary interest adverse to
a client unless the transaction and the terms governing the lawyers
acquisition of such interest are fair and reasonable to the client, and are fully
disclosed to, and understood by the client and reduced in writing.[21]
The Committee recommended that Maquera be: (1) suspended from the
practice of law in Guam for a period of two [2] years, however, with all but
thirty (30) days of the period of suspension deferred; (2) ordered to return to
Castro the difference between the sale price of the property to the Changs
and the amount due him for legal services rendered to Castro; (3) required
to pay the costs of the disciplinary proceedings; and (4) publicly reprimanded.
It also recommended that other jurisdictions be informed that Maquera has
been subject to disciplinary action by the Superior Court of Guam.[22]
Maquera did not deny that Castro executed a quitclaim deed to the property
in his favor as compensation for past legal services and that the transaction,
except for the deed itself, was oral and was not made pursuant to a prior
written agreement. However, he contended that the transaction was made
three days following the alleged termination of the attorney-client relationship
between them, and that the property did not constitute an exorbitant fee for
his legal services to Castro.[23]
On May 7, 1996, the Superior Court of Guam rendered its
Decision[24] suspending Maquera from the practice of law in Guam for a
period of two (2) years and ordering him to take the Multi-State Professional
Responsibility Examination (MPRE) within that period. The court found that
the attorney-client relationship between Maquera and Castro was not yet
completely terminated when they entered into the oral agreement to transfer
Castros right of redemption to Maquera on December 21, 1987. It also held
that Maquera profited too much from the eventual transfer of Castros property
to him since he was able to sell the same to the Changs with more than
US$200,000.00 in profit, whereas his legal fees for services rendered to
Castro amounted only to US$45,000.00. The court also ordered him to take
the MPRE upon his admission during the hearings of his case that he was
aware of the requirements of the Model Rules regarding business
transactions between an attorney and his client in a very general sort of
way.[25]
On the basis of the Decision of the Superior Court of Guam, the IBP
concluded that although the said court found Maquera liable for misconduct,
there is no evidence to establish that [Maquera] committed a breach of ethics
in the Philippines.[26] However, the IBP still resolved to suspend him
indefinitely for his failure to pay his annual dues as a member of the IBP since
1977, which failure is, in turn, a ground for removal of the name of the
delinquent member from the Roll of Attorneys under Section 10, Rule 139-A
of the Revised Rules of Court.[27]
The power of the Court to disbar or suspend a lawyer for acts or omissions
committed in a foreign jurisdiction is found in Section 27, Rule 138 of the
Revised Rules of Court, as amended by Supreme Court Resolution dated
February 13, 1992, which states:
Section 27. Disbarment or 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
Page 259
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 appearing as attorney for a party to a
LEGAL ETHICS
case without authority to do so. The practice of soliciting cases at law for the
purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice.
The disbarment or suspension of a member of the Philippine Bar by a
competent court or other disciplinatory agency in a foreign jurisdiction
where he has also been admitted as an attorney is a ground for his
disbarment or suspension if the basis of such action includes any of
the acts hereinabove enumerated.
The judgment, resolution or order of the foreign court or disciplinary
agency shall be prima facie evidence of the ground for disbarment or
suspension (Emphasis supplied).
The Court must therefore determine whether Maqueras acts, namely:
acquiring by assignment Castros right of redemption over the property
subject of the civil case where Maquera appeared as counsel for him;
exercising the right of redemption; and, subsequently selling the property for
a huge profit, violate Philippine law or the standards of ethical behavior for
members of the Philippine Bar and thus constitute grounds for his suspension
or disbarment in this jurisdiction.
The Superior Court of Guam found that Maquera acquired his clients property
by exercising the right of redemption previously assigned to him by the client
in payment of his legal services. Such transaction falls squarely under Article
1492 in relation to Article 1491, paragraph 5 of the Civil Code of the
Philippines. Paragraph 5 of Article 1491[28] prohibits the lawyers acquisition
by assignment of the clients property which is the subject of the litigation
handled by the lawyer. Under Article 1492,[29] the prohibition extends to sales
in legal redemption.
The prohibition ordained in paragraph 5 of Article 1491 and Article 1492 is
founded on public policy because, by virtue of his office, an attorney may
easily take advantage of the credulity and ignorance of his client[30] and
unduly enrich himself at the expense of his client.
The case of In re: Ruste[31] illustrates the significance of the aforementioned
prohibition. In that case, the attorney acquired his clients property subject of
a case where he was acting as counsel pursuant to a deed of sale executed
by his clients in his favor. He contended that the sale was made at the
instance of his clients because they had no money to pay him for his services.
The Court ruled that the lawyers acquisition of the property of his clients
under the circumstances obtaining therein rendered him liable for
malpractice. The Court held:
Whether the deed of sale in question was executed at the instance of the
spouses driven by financial necessity, as contended by the respondent, or at
the latters behest, as contended by the complainant, is of no moment. In
either case an attorney occupies a vantage position to press upon or dictate
his terms to a harassed client, in breach of the rule so amply protective of the
confidential relations, which must necessarily exist between attorney and
client, and of the rights of both.[32]
The Superior Court of Guam also hinted that Maqueras acquisition of Castros
right of redemption, his subsequent exercise of said right, and his act of
selling the redeemed property for huge profits were tainted with deceit and
bad faith when it concluded that Maquera charged Castro an exorbitant fee
for his legal services. The court held that since the assignment of the right of
redemption to Maquera was in payment for his legal services, and since the
property redeemed by him had a market value of US$248,220.00 as of
December 21, 1987 (the date when the right of redemption was assigned to
him), he is liable for misconduct for accepting payment for his legal services
way beyond his actual fees which amounted only to US$45,000.00.
Maqueras acts in Guam which resulted in his two (2)-year suspension from
the practice of law in that jurisdiction are also valid grounds for his suspension
from the practice of law in the Philippines. Such acts are violative of a lawyers
sworn duty to act with fidelity toward his clients. They are also violative of the
Code of Professional Responsibility, specifically, Canon 17 which states that
[a] lawyer owes fidelity to the cause of his client and shall be mindful the trust
and confidence reposed in him; and Rule 1.01 which prohibits lawyers from
engaging in unlawful, dishonest, immoral or deceitful conduct. The
requirement of good moral character is not only a condition precedent to
admission to the Philippine Bar but is also a continuing requirement to
maintain ones goods standing in the legal profession.[33]
It bears stressing that the Guam Superior Courts judgment ordering
Maqueras suspension from the practice of law in Guam does not
automatically result in his suspension or disbarment in the Philippines. Under
Section 27,[34] Rule 138 of the Revised Rules of Court, the acts which led to
PINEDAPCGRNMAN
his suspension in Guam are mere grounds for disbarment or suspension in
this jurisdiction, at that only if the basis of the foreign courts action includes
any of the grounds for disbarment or suspension in this jurisdiction.[35]
Likewise, the judgment of the Superior Court of Guam only constitutes prima
facie evidence of Maqueras unethical acts as a lawyer.[36] More
fundamentally, due process demands that he be given the opportunity to
defend himself and to present testimonial and documentary evidence on the
matter in an investigation to be conducted in accordance with Rule 139-B of
the Revised Rules of Court. Said rule mandates that a respondent lawyer
must in all cases be notified of the charges against him. It is only after
reasonable notice and failure on the part of the respondent lawyer to appear
during the scheduled investigation that an investigation may be conducted ex
parte.[37]
The Court notes that Maquera has not yet been able to adduce evidence on
his behalf regarding the charges of unethical behavior in Guam against him,
as it is not certain that he did receive the Notice of Hearing earlier sent by the
IBPs Commission on Bar Discipline. Thus, there is a need to ascertain
Maqueras current and correct address in Guam in order that another notice,
this time specifically informing him of the charges against him and requiring
him to explain why he should not be suspended or disbarred on those
grounds (through this Resolution), may be sent to him.
Nevertheless, the Court agrees with the IBP that Maquera should be
suspended from the practice of law for non-payment of his IBP membership
dues from 1977 up to the present.[38]Under Section 10, Rule 139-A of the
Revised Rules of Court, non-payment of membership dues for six (6) months
shall warrant suspension of membership in the IBP, and default in such
payment for one year shall be ground for removal of the name of the
delinquent member from the Roll of Attorneys.[39]
WHEREFORE, Atty. Leon G. Maquera is required to SHOW CAUSE, within
fifteen (15) days from receipt of this Resolution, why he should not be
suspended or disbarred for his acts which gave rise to the disciplinary
proceedings against him in the Superior Court of Guam and his subsequent
suspension in said jurisdiction.
The Bar Confidant is directed to locate the current and correct address of
Atty. Maquera in Guam and to serve upon him a copy of this Resolution.
In the meantime, Atty. Maquera is SUSPENDED from the practice of law for
ONE (1) YEAR or until he shall have paid his membership dues, whichever
comes later.
Let a copy of this Resolution be attached to Atty. Maqueras personal record
in the Office of the Bar Confidant and copies be furnished to all chapters of
the Integrated Bar of the Philippines and to all courts in the land.
SO ORDERED.
CANON 18 – A lawyer shall serve his client with competence and
diligence.
[A.C. No. 6297. July 13, 2004]
DOLORES D. PARIAS, complainant, vs. ATTY. OSCAR P. PAGUINTO,
respondent.
DECISION
CARPIO, J.:
The Case
A lawyer has the duty to give adequate attention and time to every case he
accepts. A lawyer impliedly warrants that he possesses the necessary
diligence, learning and skill to handle each case. He should exert his best
judgment and exercise reasonable and ordinary care and diligence in the
pursuit or defense of his clients cause.
The Facts
Sometime in October 2001, complainant Dolores Dryden Parias (Parias)
engaged the services of respondent Atty. Oscar P. Paguinto (Paguinto) to
annul her marriage to Danilo Soriano. They agreed that for the legal services,
Parias would pay Paguinto an acceptance fee of P25,000, the filing fee of
P2,500 and other incidental expenses.
On 2 December 2001, Parias paid Paguinto P10,000 in cash as partial
payment of the acceptance fee. An acknowledgment receipt evidenced this
payment.[1] Parias gave Paguinto a diskette containing a narration of what
Page 260
happened between her and her estranged husband Danilo Soriano. Parias
also furnished Paguinto with a copy of her marriage contract with Soriano.
LEGAL ETHICS
Before the end of December 2001, Parias gave Paguinto P2,500 for the filing
fee.
Sometime between January and April 2002, Parias inquired from Paguinto
on the progress of her annulment case. Paguinto informed her that the case
was filed with the Regional Trial Court of Manila, Branch 64 (RTC-Manila,
Branch 64), before Judge Ricaforte and that the hearing was scheduled on
25 April 2002. Before the hearing, Parias requested for a meeting with
Paguinto but the secretary informed her that the hearing was cancelled. The
secretary further informed Parias that the judge reset the succeeding
hearings originally scheduled on 29 May 2002 and 26 June 2002 because
the judge was sick or out of town.
On the first week of July 2002, Parias went to the trial court to inquire about
her case but the court personnel in RTC-Manila, Branch 64 informed her that
there was no such case filed in their court. Parias asked Paguinto for the
case number, date of filing, copy of the petition and the court where the
annulment case was pending. Paguinto told Parias that the records were at
his office and that he was in Malolos, Bulacan attending to a case. It turned
out that there was no annulment case filed in RTC-Manila, Branch 64.
Paguinto promised to return the money that Parias paid as down payment.
However, Paguinto returned the P10,000 only after Parias filed with the
Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines
(IBP) the present complaint for disbarment.
In the Order dated 14 February 2003,[2] the CBD directed Paguinto to answer
the complaint. Paguinto asked for an extension of 15 days to file his Answer.
The CBD granted the extension in the Order dated 19 March 2003.[3]
However, Paguinto failed to file his Answer within the extended period and
thus the CBD declared him in default in the Order dated 15 July 2003.[4] After
the hearing, Parias submitted her Position Paper praying that the CBD
declare Paguinto guilty of violation of Rule 16.01 and Rule 18.03 of the Code
of Professional Responsibility.
On 10 September 2003, Parias filed an Affidavit of Withdrawal[5] of the
complaint. Parias stated that Paguinto personally explained exhaustively the
reasons why he failed to comply with his obligations and she realized that the
complaint arose due to a misapprehension of facts, misunderstanding and
miscommunication. Parias manifested that she was withdrawing the
complaint, as she was no longer interested in pursuing the case.
On the same date, Paguinto filed a Manifestation and Motion[6] explaining that
he failed to attend the hearing on 30 July 2003 because he was in Tabuk,
Kalinga attending a hearing in a criminal case for frustrated homicide. He
apologized to Parias for his actuations claiming himself solely to be blamed.
He further declared that he failed to timely prepare and file the petition for
annulment because he spends his time mostly in Gen. Mariano Alvarez,
Cavite where he practices law catering to those clients who have less in life.
Commissioners Report & Recommendation
The IBP designated Atty. Rebecca Villanueva-Maala (Commissioner) as
Commissioner to conduct a formal investigation of the case. The
Commissioner found Paguinto negligent in performing his duties as a lawyer
and as an officer of the court. The Commissioner declared that a lawyer has
the duty to give adequate attention, care and time to his cases, accepting
only as many cases as he can handle. Paguinto failed to comply with this
duty. The Commissioner recommended the suspension of Paguinto from the
practice of law for six months.
The Courts Ruling
We agree with the Commissioner.
Parias gave Paguinto P10,000 cash as partial payment of the acceptance
fee. Parias also gave Paguinto P2,500 for the filing fee. Paguinto led Parias
to believe that he had filed the annulment case. Paguinto informed Parias
that the case was filed with the RTC-Manila, Branch 64, before Judge
Ricaforte. However, Parias later found out that Paguinto never filed the
annulment case in court.
Rule 16.01 of the Code of Professional Responsibility (the Code) provides
that a lawyer shall account for all money or property collected for or from the
client. Acceptance of money from a client establishes an attorney-client
relationship and gives rise to the duty of fidelity to the clients cause.[7] Money
entrusted to a lawyer for a specific purpose, such as for filing fee, but not
used for failure to file the case must immediately be returned to the client on
demand.[8] Paguinto returned the money only after Parias filed this
administrative case for disbarment.
Paguinto should know that as a lawyer, he owes fidelity to the cause of his
client. When a lawyer accepts a case, his acceptance is an implied
PINEDAPCGRNMAN
representation that he possesses the requisite academic learning, skill and
ability to handle the case. The lawyer has the duty to exert his best judgment
in the prosecution or defense of the case entrusted to him and to exercise
reasonable and ordinary care and diligence in the pursuit or defense of the
case.
A lawyer should give adequate attention, care and time to his case. Once he
agrees to handle a case, he should undertake the task with dedication and
care. If he fails in this duty, he is not true to his oath as a lawyer. Hence, a
lawyer must accept only as much cases as he can efficiently handle,
otherwise his clients interests will suffer.[9] It is not enough that a lawyer
possesses the qualification to handle the legal matter. He must also give
adequate attention to his legal work.
The lawyer owes it to his client to exercise his utmost learning and ability in
handling his cases. A license to practice law is a guarantee by the courts to
the public that the licensee possesses sufficient skill, knowledge and
diligence to manage their cases.[10] The legal profession demands from a
lawyer the vigilance and attention expected of a good father of a family.
In Gamalinda vs. Alcantara,[11] we ruled:
A lawyer owes fidelity to the cause of his client and must be mindful of the
trust and confidence reposed in him. He shall serve his client with
competence and diligence, and his duty of entire devotion to his clients cause
not only requires, but entitles him to employ every honorable means to secure
for the client what is justly due him or to present every defense provided by
law to enable the latters cause to succeed. An attorneys duty to safeguard
the clients interests commences from his retainer until his effective release
from the case or the final disposition of the whole subject matter of the
litigation. During that period, he is expected to take such reasonable steps
and such ordinary care as his clients interests may require.
And failure to do so violates Canon 18 of the Code.[12]
Rule 18.01 of the Code is clear. A lawyer shall not undertake a legal service
that he is not qualified to render. Rule 18.02 of the Code provides that a
lawyer shall not handle any legal matter without adequate preparation. He
has the duty to prepare for trial with diligence and deliberate speed. Rule
18.03 of the Code also provides that a lawyer shall not neglect a legal matter
entrusted to him and his negligence shall render him liable.
One last point. Parias executed an Affidavit of Withdrawal[13] of the complaint
stating that she was withdrawing the administrative complaint against
Paguinto after realizing that said complaint against the respondent arose due
to misapprehension of facts, misunderstanding and miscommunication.
Paguinto, on the other hand, submitted a Manifestation and Motion
apologizing to Parias for his actuations and admitting that he was solely to
be blamed. A compromise or withdrawal of charges does not terminate an
administrative complaint against a lawyer,[14] especially in this case where the
lawyer admitted his misconduct.
Pariass affidavit of withdrawal of the disbarment case does not exonerate
Paguinto in any way. We reiterate our ruling in Rayos-Ombac v.
Rayos[15] that
[A] proceeding for suspension or disbarment is not in any sense a civil action
where the complainant is a plaintiff and the respondent lawyer is a defendant.
Disciplinary proceedings involve no private interest and afford no redress for
private grievance. They are undertaken solely for the public welfare. x x x
The attorney is called upon to answer to the court for his conduct as an officer
of the court. The complainant or the person who called the attention of the
court to the attorneys alleged misconduct is in no sense a party, and has
generally no interest in the outcome except as all good citizens may have in
the proper administration of justice.
WHEREFORE, we find respondent Atty. Oscar P. Paguinto GUILTY of
violation of the Code of Professional Responsibility. Accordingly, we penalize
Atty. Oscar P. Paguinto with SUSPENSION for SIX (6) MONTHS from the
practice of law effective upon receipt of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant, to be
appended to respondents personal record as an attorney; the Integrated Bar
of the Philippines; and all courts in the country for their information and
guidance.
SO ORDERED.
Rule 18.01 – A lawyer shall not undertake a legal service which he
Page 261
knows or should know that he is not qualified to render. However, he
may render such service if, with the consent of his client, he can obtain
as collaborating counsel a lawyer who is competent on the matter.
LEGAL ETHICS
[A.C. No. 5817. May 27, 2004]
EMMA V. DE JUAN, complainant, vs. ATTY. OSCAR R. BARIA
III, respondent.
RESOLUTION
QUISUMBING, J.:
In her Salaysay filed with the Office of the Bar Confidant on August 29, 2002,
complainant, former client of respondent, charged respondent with
negligence in handling her labor case and threats against her person.
The complainant alleged that respondent Atty. Oscar R. Baria III, as her
counsel in NLRC NCR CA No. 022654-00/NLRC RAB IV-7-11287-99-
R, Emma De Juan v. Triple AAA Antique/Mr. Yappe and Mr. Godofredo
Nadia, negligently failed to file motion for reconsideration of the decision
dated September 24, 2001 of the NLRC in her behalf.[1]
The complainant avers that she was hired by Triple AAA on or about
December 15, 1998 as packer on probation status for six months in its
Packing Department.[2] Based on a performance evaluation citing her
irregular attendance and inefficiency, the company terminated her services
on June 11, 1999,[3] after waiting for two weeks for her to report. She claims
that she was terminated without notice nor explanation[4] so she filed a
complaint before the National Labor Relations Commission (NLRC) against
the company for illegal dismissal, non-payment of premium pay for holiday,
rest day, and 13th month pay. She also claimed moral and exemplary
damages and attorneys fees.[5]
In search of a lawyer, she asked the assistance of Banahaw Broadcasting
Corporation (BBC) which assigned respondent to handle her labor case.
Respondent represented complainant on a contingency fee agreement.
On December 29, 1999, the Labor Arbiter rendered a decision in favor of
complainant.[6] Triple AAA appealed to the NLRC. In a decision promulgated
on September 24, 2001, the NLRC reversed the Labor Arbiter and declared
there was no illegal dismissal.[7]
Complainant blamed respondent for the reversal. She said that she came to
know of the reversal of the Labor Arbiters decision when she called
respondent in October 2001. When she asked the respondent what they
should do, respondent answered, Paano iyan ihaehhindi ako marunong
gumawa ng Motion for Reconsideration. Sometime in November 2001, her
husband called respondent to ask if he did anything in connection with the
NLRCs Decision and he was advised by respondents secretary that, Sabi ni
Attyhuwag na kayong magpakita sa kanya dahil galit na galit sa inyo si
Attorney at baka kung ano pa ang magawa niya sa inyo.[8]
The Court required respondent to comment and referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.[9]
In his Comment, respondent explained that soon after passing the bar in
1999, he was employed as a broadcaster in DWANs radio program offering
free legal services to the poor. He gave free legal services to indigent clients
one of whom was complainant. As a practice, he said he forewarned his
clients that he was just a new lawyer and that they should not expect too
much from him because of his limited legal experience. According to
respondent he tried to explain to complainant the legal remedies available to
her as well as the time her case may take.It appeared to him that complainant
did not fully grasp the usual delays that may be involved in her case. He
recalled that when he told complainant that the Labor Arbiters decision was
in her favor, she was so jubilant at the money judgment. Later however, the
complainant became furious when he told her that Triple AAA Antique had
appealed. Respondent filed a Motion for Writ of Execution of the Labor
Arbiters Decision but this Motion was ruled premature. Respondent then filed
an opposition to the appeal filed by Triple AAA but the NLRC still gave due
course to the appeal. While Triple AAAs appeal was pending resolution he
told complainant to call him every week so that she could be advised of any
developments in her case. He generously suggested that complainant call
collect to lessen her expenses. He even allowed complainant and her
husband to stay in his home when they came to Manila from the province.He
said he even fed them when they were in Manila.
In October 2001, the NLRC rendered its decision reversing the Labor Arbiter.
By this time, according to respondent, he confronted complainant for lying to
him about her employment with Triple AAA and told her that because of her
lies there was a possibility she could lose the appeal. He advised complainant
to get a more experienced lawyer for her appeal because as a
PINEDAPCGRNMAN
new lawyer he was not confident he could handle her appeal. Thereafter,
complainant no longer contacted him and at some time, he even had to ask
her whereabouts from her relatives.
On December 2001, respondent received calls from the staff of Raffy Tulfo,
a radio commentator. In one of these calls, his wife talked to one of Tulfos
employees and she was told that complainant told Tulfo that the respondent
received money from Triple AAA Antique. As a result Tulfo lambasted him on
his radio program. Respondent thereafter called Tulfo, explained his side,
and demanded that the latter apologize on air otherwise he would file a libel
case against Tulfo.
Sometime in January 2002, respondents secretary received a call from the
complainants husband. When respondents secretary confronted the
husband regarding the Tulfo incident, complainants husband retorted,
Sabihin mo sa kanya mag ingat siya at baka may mangyari sa kanya. Shortly
thereafter, respondent began receiving death threats over the phone and also
noticed armed men casing his office. He reported these calls and presence of
suspicious armed men to the police.
Respondent surmises that complainant believed Triple AAA paid him off and
he pocketed money supposedly for her. Respondent vehemently denied he
did. He asks that Triple AAA be summoned to bear witness to his story.
Respondent asserts that he has not committed any breach of his oath and
that he has vigorously pursued his clients cause to the end. He avers that it
was his clients own negligence and folly that caused her to lose her case. He
asks that the complaint be dismissed.
In a Resolution dated March 15, 2003, this Court referred the case to the IBP
for investigation, report and recommendation. In turn, the IBP Commission
on Bar Discipline required complainant to reply. In her reply written in Filipino,
complainant denied that she accepted money from respondent during the
pendency of her labor case, except on one occasion when she borrowed
P100 from respondents secretary for travel fare back to the province. She
reiterated that she filed her Salaysay because of respondents failure to file a
motion for reconsideration.She further insists that she does not believe that
respondent did not know how to file a motion for reconsideration as he claims
since she was aware that even a law student would know how to.
In its Resolution dated August 30, 2003, the IBP approved the
recommendation of the Commission on Bar Discipline. The IBP Board of
Governors found respondent guilty of negligence in handling the aforecited
labor case and recommended that respondent be suspended from practicing
law for three months. The charge of grave threats was dismissed for
complainants failure to substantiate the same.[10]
The core issue is whether the respondent committed culpable negligence, as
would warrant disciplinary action, in failing to file for the complainant a motion
for reconsideration from the decision of the NLRC.
No lawyer is obliged to advocate for every person who may wish to become
his client, but once he agrees to take up the cause of a client, the lawyer
owes fidelity to such cause and must be mindful of the trust and confidence
reposed in him.[11] Further, among the fundamental rules of ethics is the
principle that an attorney who undertakes an action impliedly stipulates to
carry it to its termination, that is, until the case becomes final and executory.
A lawyer is not at liberty to abandon his client and withdraw his services
without reasonable cause and only upon notice appropriate in the
circumstances.[12] Any dereliction of duty by a counsel, affects the client.[13]
This means that his client is entitled to the benefit of any and every remedy
and defense that is authorized by the law and he may expect his lawyer to
assert every such remedy or defense.[14]
The records reveal that indeed the respondent did not file a motion for
reconsideration of the NLRC such that the said decision eventually had
become final and executory. Respondent does not refute this. His excuse
that he did not know how to file a motion for reconsideration is lame and
unacceptable. After complainant had expressed an interest to file a motion
for reconsideration, it was incumbent upon counsel to diligently return to his
books and re-familiarize himself with the procedural rules for a motion for
reconsideration. Filing a motion for reconsideration is not a complicated legal
task.
We are however, not unaware that respondent had been forthright and
candid with his client when he warned her of his lack of experience as a new
lawyer. We are also not unaware that he had advised complainant to get a
Page 262
new lawyer. However, his candor cannot absolve him. As already stressed
by this Court:
LEGAL ETHICS
A lawyer is expected to be familiar with these rudiments of law and procedure
and anyone who acquires his service is entitled to not just competent service
but also whole-hearted devotion to his clients cause.It is the duty of a lawyer
to serve his client with competence and diligence and he should exert his
best efforts to protect within the bounds of law the interest of his client. A
lawyer should never neglect a legal matter entrusted to him, otherwise his
negligence in fulfilling his duty will render him liable for disciplinary action.[15]
Again, the Court held in the case of Santos v. Lazaro,[16] that Rule 18.03 of
the Code of Professional Responsibility[17] explicitly provides that negligence
of lawyers in connection with legal matters entrusted to them for handling
shall render them liable.
Without a proper revocation of his authority and withdrawal as counsel,
respondent remains counsel of record and whether or not he has a valid
cause to withdraw from the case, he cannot just do so and leave his client
out in the cold. An attorney may only retire from the case either by a written
consent of his client or by permission of the court after due notice and
hearing, in which event the attorney should see to it that the name of the new
attorney is recorded in the case.[18] Respondent did not comply with these
obligations.
WHEREFORE, respondent lawyer Oscar R. Baria III is hereby FINED in the
amount of P5,000.00, with a stern warning that a repetition of this or similar
offense will be dealt with more severely.
SO ORDERED.
ROLLON vs NARAVAL (SUPRA)
Rule 18.02 – A lawyer shall not handle any legal matter without
adequate preparation.
(Rules of Court)
Preparation of Pleadings, Interviewing the Witnesses, What to do in
Case of Conflict of Trial Dates. Adoption of System to Insure Receipt of
Mails, Notice of Change of Address, Notice of Death of Client
[A.C. No. 5394. December 2, 2002*]
RIZALINO FERNANDEZ, complainant, vs. ATTY. REYNALDO NOVERO,
JR. respondent.
DECISION
MENDOZA, J.:
This is a complaint for disbarment against Atty. Reynaldo Novero, Jr. for
alleged patent and gross neglect in the handling of Civil Case No. 7500 which
complainant Rizalino Fernandez and others had filed against the Bacolod
City Water District before the Regional Trial Court, Branch 49, Bacolod City.
In his letter,[1] dated October 16, 1996, to the Court Administrator,
complainant imputed the following negligent acts to respondent which led to
the dismissal of Civil Case No. 7500:
1. Respondent did not attend the scheduled hearing on January 11, 1996 nor
seek a postponement thereof, for which reason the trial court considered
respondent to have waived further presentation of his evidence and directed
him to formally offer his exhibits for admission on January 30, 1996;
2. Notwithstanding receipt of the order dated January 11, 1996, respondent
failed to formally offer his exhibits on January 30, 1996, prompting the trial
court to order the dismissal of the case;
3. While respondent filed a motion for reconsideration of the order of
dismissal, he did not file his motion within the reglementary period, as a result
of which the said motion, actually filed on May 7, 1996, was denied by the
trial court on May 14, 1996 for having been filed out of time;
4. When asked for an explanation regarding the dismissal of the case,
respondent informed complainant through a letter, dated July 30, 1996, that
he had filed a motion for reconsideration of the order of dismissal, but the
motion, which had been filed a long time ago, had not yet been resolved by
the trial court;
5. Respondent tried to shift the blame on complainant by claiming that the
latter insisted on presenting his sister from Manila as their last witness. The
truth was that complainants sister had already testified and there was no
more witness to present; and
6. Respondent only attended one (1) hearing in the civil case.
In his answer,[2] dated September 3, 1997, respondent averred that the
complaint filed against him was baseless and was purely malicious and
speculative considering the fact that it was not made under oath. He alleged
PINEDAPCGRNMAN
that complainant engaged his legal services after the first counsel had
withdrawn from the case because of a misunderstanding with
complainant. He stated that he had no knowledge of what had happened in
the case before he handled it because complainant did not furnish him the
records and stenographic notes of the previous proceedings despite his
repeated requests. Respondent further claimed that he failed to formally offer
the exhibits as evidence because complainant could not be reached when
he was needed for conference and the latter even tried to take over the
handling of the case by insisting on presenting more witnesses who
nevertheless failed to appear during trial despite several postponements.
The case was referred to the Office of the Bar Confidant (OBC), which
submitted a report,[3] dated February 3, 2001, finding respondent guilty of
violation of the Code of Professional Responsibility and recommending his
suspension from the practice of law for one (1) month.
Thereafter, the Court referred the case to the Integrated Bar of the Philippines
(IBP), which in its report and recommendation, dated October 15, 2001, found
respondent remiss in observing the standard care, diligence and competence
prescribed for members of the bar in the performance of their professional
duties. The IBP Investigating Commissioner recommended that respondent
be suspended from the practice of law for a period of six (6) months with
warning that the commission of the same or similar offenses will be dealt with
more severely in the future.[4] The report and recommendation of the
Investigating Commissioner was approved on June 29, 2002 by the IBP
Board of Governors.[5]
Respondent filed a motion for reconsideration, dated September 17, 2002,
alleging that the Court should not have taken cognizance of the complaint
because it was not verified.According to him, the complaint was a mere
political ploy to discredit him because he was aspiring for a congressional
seat in the 1998 elections. He denied complainants claim that he attended
only one hearing. He explained that he was not able to terminate his
presentation of evidence because complainant insisted on presenting as
witness his sister who was residing in Manila, even though the latter
repeatedly failed to appear in court despite several postponements. He
claimed that complainant had told him that his intention was really to delay
the case as he was using the same as his leverage in a criminal case filed or
to be filed against him by the Bacolod City Water District for his alleged water
tapping. When he refused to go along with the scheme, complainant
allegedly threatened to change counsel. Respondent further alleged that
complainants attitude is apparent from the fact that the latter caused to be
disseminated several copies of the IBP Resolution recommending his
(respondents) suspension and distributed them to radio stations in Bacolod
City. For these reasons, respondent sought the reversal of the IBP
Resolution.[6]
After review of the records of this case, the Court finds the report of the
Investigating Commissioner of the IBP to be well taken. The records clearly
show that respondent has been negligent in the performance of his duties as
complainants counsel. His failure to file his formal offer of exhibits constitutes
inexcusable negligence as it proved fatal to the cause of his client since it led
to the dismissal of the case. To compound his inefficiency, respondent filed
a motion for reconsideration outside the reglementary period, which was thus
accordingly denied by the trial court for being filed out of time. Hence, the
order issued by the trial court dismissing the case became final.
Respondents acts and omission clearly constitute violation of the Code of
Professional Responsibility which provides in pertinent parts:
CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
REPOSED IN HIM.
CANON 18. A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE
AND DILIGENCE.
Rule 18.02 A lawyer shall not handle any legal matter without adequate
preparation.
Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
As this Court has held:
A counsel must constantly keep in mind that his actions or omissions, even
malfeasance or nonfeasance, would be binding on his client. Verily, a lawyer
owes to the client the exercise of utmost prudence and capability in that
Page 263
representation. Lawyers are expected to be acquainted with the rudiments of
law and legal procedure, and anyone who deals with them has the right to
LEGAL ETHICS
expect not just a good amount of professional learning and competence but
also a whole-hearted fealty to the clients cause.[7]
Respondents attempt to evade responsibility by shifting the blame on
complainant is apparent. His averment that complainant failed to turn over to
him the records and stenographic notes of the case only highlights his
incompetence and inadequacy in handling complainants case. Considering
that respondent has been practicing law for almost 15 years, he should have
known that he could easily obtain a copy of the records and stenographic
notes from the court where the case was docketed.
Respondent likewise refers to the alleged obnoxious attitude of complainant
in trying to manipulate the manner in which he was handling the case as the
main reason for his failure to formally offer his exhibits in contravention of the
order of the court. But respondent should bear in mind that while a lawyer
owes utmost zeal and devotion to the interest of his client, he also has the
responsibility of employing only fair and honest means to attain the lawful
objectives of his client and he should not allow the latter to dictate the
procedure in handling the case.[8] As this Court said in another case:
A lawyer owes entire devotion in protecting the interest of his client, warmth
and zeal in the defense of his rights. He must use all his learning and ability
to the end that nothing can be taken or withheld from his client except in
accordance with the law. He must present every remedy or defense within
the authority of the law in support of his clients cause, regardless of his own
personal views. In the full discharge of his duties to his client, the lawyer
should not be afraid of the possibility that he may displease the judge or the
general public.[9]
As to the contention of respondent that the Court should not have taken
cognizance of the complaint because the letter-complaint was not verified,
as required in Rule 139-B, 1 of the Rules of Court on Disbarment and
Discipline of Attorneys,[10] suffice it to say that such constitutes only a formal
defect and does not affect the jurisdiction of the Court over the subject matter
of the complaint. The verification is merely a formal requirement intended to
secure an assurance that matters which are alleged are true and correct the
court may simply order the correction of unverified pleadings or act on it and
waive strict compliance with the rules in order that the ends of justice may be
served.[11]
However, instead of suspension for six (6) months as recommended by the
IBP Investigating Commissioner, we hold that the suspension of respondent
Atty. Reynaldo Novero, Jr. for one (1) month, as recommended by the Office
of the Bar Confidant, would be commensurate considering that this is the first
time Atty. Novero is found guilty of neglect of his clients case.
WHEREFORE, in view of the foregoing, Atty. Reynaldo Novero, Jr. is
SUSPENDED from the practice of law for one (1) month effective upon
finality hereof with WARNING that a repetition of the same negligent act
charged in this complaint will be dealt with even more severely.
SO ORDERED.
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him
and his negligence in connection therewith shall render him liable.
[A.C. No. 5092. August 11, 2004]
LUCILA S. BARBUCO, complainant, vs. ATTY. RAYMUNDO N.
BELTRAN, respondent.
DECISION
YNARES-SANTIAGO, J.:
A lawyer shall serve his client with competence and diligence.[1] While a
lawyer may decline to render services for a person for valid reasons, once
he agrees to take up the cause of a client, he begins to owe fidelity to that
cause and must always be mindful of the trust and confidence reposed in
him. He must serve his client with competence and diligence, and champion
the latters cause with wholehearted fidelity, care and devotion.[2]
On July 9, 1999, Lucila S. Barbuco filed a Sworn Complaint[3] against Atty.
Raymundo N. Beltran for malpractice of law, negligence and dishonesty.
It appears that on March 31, 1998, complainant, through her son, Benito B.
Sy, engaged the services of respondent for the purpose of filing an appeal
before the Court of Appeals from the decision of the Regional Trial Court of
Cavite, Branch 21, in the case entitled, Alexander Bermido, Plaintiff versus
Lucila Barbuco, Defendant. On August 6, 1998, complainant, through Benito
B. Sy, gave respondent the total sum of P3,500.00 for payment of the docket
fees.
PINEDAPCGRNMAN
Complainants appeal, docketed as CA-G.R. CV No. 58180, was dismissed
by the Court of Appeals in a Resolution[4] dated September 25, 1998 for
failure to file Appellants Brief,pursuant to Rule 50, Section 1(e) of the 1997
Rules of Civil Procedure.
Complainant found out that her appeal had been dismissed only on June 4,
1999, when her son went to the Court of Appeals to verify the status of the
case.
When asked to comment on the charges filed against him,[5] respondent
Beltran averred that the docket fees were paid on time and that on
September 22, 1998, he filed the Appellants Brief[6] with the Court of Appeals.
However, the appeal was dismissed. On October 19, 1998, respondent filed
a motion for reconsideration,[7] on the ground that he received the notice to
file brief on June 25, 1998; however, on June 26, 1998, he met a vehicular
accident which physically incapacitated him for several days; and that as a
result of the accident, he suffered head injuries which caused him to lose
track of deadlines for the filing of pleadings.
On March 9, 1999, the Motion for Reconsideration was denied on the ground
that the brief for defendant-appellant was filed forty-three (43) days late.[8]
On November 22, 1999, the complaint against respondent Beltran was
referred to the Integrated Bar of the Philippines for investigation, report and
recommendation.[9]
After hearing, Commissioner Rebecca Villanueva-Maala of the IBP
Commission on Bar Discipline, submitted on October 6, 2003 her findings
and recommendation that respondent Beltran be suspended from the
practice of law for a period of five (5) years.
On October 25, 2003, the IBP Board of Governors passed Resolution No.
XVI-2003-234 affirming the recommendation of Commissioner Villanueva-
Maala but modified the recommended period of suspension from five (5)
years to six (6) months only.
After a careful review of the records and evidence, we find no cogent reason
to deviate from the findings and the recommendation of the IBP Board of
Governors. Respondents conduct relative to the belated filing of the
Appellants Brief falls below the standards exacted upon lawyers on
dedication and commitment to their clients cause.
Rule 18.03 of the Code of Professional Responsibility for Lawyers states:
A lawyer shall not neglect a legal matter entrusted to him, and his negligence
in connection therewith shall render him liable.
An attorney is bound to protect his clients interest to the best of his ability and
with utmost diligence. Failure to file brief within the reglementary period
certainly constitutes inexcusable negligence, more so if the delay of FORTY
THREE (43) days resulted in the dismissal of the appeal.
The fact that respondent was involved in a vehicular accident and suffered
physical injuries as a result thereof cannot serve to excuse him from filing his
pleadings on time considering that he was a member of a law firm composed
of not just one lawyer. This is shown by the receipt he issued to complainant
and the pleadings which he signed for and on behalf of the Beltran, Beltran
and Beltran Law Office. As such, respondent could have asked any of his
partners in the law office to file the Appellants Brief for him or, at least, to file
a Motion for Extension of Time to file the said pleading.
In B.R. Sebastian Enterprises, Inc. v. Court of Appeals,[10] we ruled that the
confusion in the office of the law firm following the death of one of its partners
is not a valid justification for failing to file the brief. We further ruled in the said
case that upon receipt of the notice to file the brief, the law firm should have
re-assigned the case to another associate.
The failure to timely file a pleading is by itself inexcusable negligence on the
part of respondent. Complainants liability is further compounded by his failure
to maintain an open line of communication with his client, in violation of the
provisions of Rule 18.04, which reads:
A lawyer shall keep the client informed of the status of his case and shall
respond within a reasonable time to the clients request for information.
Clearly, respondents series of inadvertence prejudiced the case of the
complainant. We can not overstress the duty of a lawyer to uphold the
integrity and dignity of the legal profession by faithfully performing his duties
to society, to the bar, to the courts and to his clients.[11]
Every member of the Bar should always bear in mind that every case that a
lawyer accepts deserves his full attention, diligence, skill and competence,
regardless of its importance and whether he accepts it for a fee or for free. A
Page 264
lawyers fidelity to the cause of his client requires him to be ever mindful of
the responsibilities that should be expected of him. He is mandated to exert
his best efforts to protect the interest of his client within the bounds of the
LEGAL ETHICS
law. The Code of Professional Responsibility dictates that a lawyer shall
serve his client with competence and diligence and he should not neglect a
legal matter entrusted to him.[12]
WHEREFORE, Atty. Raymundo N. Beltran is found guilty of negligence and
malpractice and is SUSPENDED from the practice of law for a period of SIX
(6) MONTHS effective immediately.
Let a copy of this Decision be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines, and to all the courts.
SO ORDERED.
[A.C. No. 3967. September 3, 2003]
ARTEMIO ENDAYA, complainant, vs. ATTY. WILFREDO OCA,
respondent.
DECISION
TINGA, J.:
The law is no brooding omnipresence in the sky, so spoke Justice Holmes.
He must have made the statement because invariably the legal system is
encountered in human form, notably through the lawyers. For practical
purposes, the lawyers not only represent the law; they are the law.[1] With
their ubiquitous presence in the social milieu, lawyers have to be responsible.
The problems they create in lawyering become public difficulties. To keep
lawyers responsible underlies the worth of the ethics of lawyering. Indeed,
legal ethics is simply the aesthetic term for professional responsibility.
The case before us demonstrates once again that when a lawyer violates his
duties to his client, the courts, the legal profession and the public, he engages
in conduct which is both unethical and unprofessional.
This case unfolded with a verified Complaint[2] filed on January 12, 1993 by
complainant Artemio Endaya against respondent Atty. Wifredo Oca for
violation of the lawyers oath and what complainant termed as professional
delinquency or infidelity.[3] The antecedents are:
On November 7, 1991, a complaint for unlawful detainer docketed as Civil
Case No. 34-MCTC-T was filed with the Municipal Circuit Trial Court of
Taysan-Lobo, Batangas by Apolonia H. Hornilla, Pedro Hernandez, Santiago
Hernandez and Dominador Hernandez against complainant and his spouse
Patrosenia Endaya.[4]
On December 13, 1991, the complainant and his wife as defendants in the
case filed their answer which was prepared by a certain Mr. Isaias Ramirez.
A preliminary conference was conducted on January 17, 1992, which
complainant and his wife attended without counsel. During the conference,
complainant categorically admitted that plaintiffs were the declared owners
for taxation purposes of the land involved in the case. Continuation of the
preliminary conference was set on January 31, 1992. Thereafter,
complainant sought the services of the Public Attorneys Office in Batangas
City and respondent was assigned to handle the case for the complainant
and his wife.[5]
At the continuation of the preliminary conference, respondent appeared as
counsel for complainant and his spouse. He moved for the amendment of the
answer previously filed by complainant and his wife, but his motion was
denied.[6] Thereafter, the court, presided by Acting Trial Court Judge Teodoro
M. Baral, ordered the parties to submit their affidavits and position papers
within ten days from receipt of the order. The court also decreed that thirty
days after receipt of the last affidavit and position paper, or upon expiration
of the period for filing the same, judgment shall be rendered on the case.[7]
Respondent failed to submit the required affidavits and position paper, as
may be gleaned from the Decision dated March 19, 1992 of the MCTC where
it was noted that only the plaintiffs submitted their affidavits and position
papers.[8]
Nonetheless, the court dismissed the complaint for unlawful detainer
principally on the ground that the plaintiffs are not the real parties-in- interest.
The dispositive portion of the Decisionreads:
WHEREFORE, this case is hereby dismissed on the ground that the plaintiffs
have no legal capacity to sue as they are not the real party (sic) in interest,
in addition to the fact that there is no privity of contract between the plaintiffs
and the defendants as to the verbal lease agreement.
SO ORDERED.[9]
Plaintiffs appealed the Decision to the Regional Trial Court (RTC) of
Batangas City, Branch 1, where the case was docketed as Civil Case No.
3378. On April 10, 1992, the RTC directed the parties to file their respective
memoranda.[10] Once again, respondent failed the complainant and his wife.
As observed by the RTC in its Decision[11] dated September 7, 1992,
PINEDAPCGRNMAN
respondent did not file the memorandum for his clients, thereby prompting
the court to consider the case as submitted for decision.[12]
In its Decision, the RTC reversed the decision appealed from as it held that
plaintiffs are the co-owners of the property in dispute and as such are parties-
in-interest.[13] It also found that the verbal lease agreement was on a month-
to-month basis and perforce terminable by the plaintiffs at the end of any
given month upon proper notice to the defendants.[14] It also made a finding
that defendants incurred rentals in arrears.[15] The decretal portion of the
Decision reads, thus:
WHEREFORE, premises considered, the Decision of the Municipal Circuit
Trial Court of Taysan-Lobo dated March 19, 1992, is REVERSED and SET
ASIDE and new one entered, to wit:
Defendants ARTEMIO ENDAYA and PATROSENIA ENDAYA and all
persons claiming under them are hereby ordered to vacate and dismantle
their house on the land subject of the verbal lease agreement at their own
expense. The defendants are likewise ordered to pay the monthly rental of
P25.00 from the month of January 1991 to November 1991 and ONE
THOUSAND (P1,000.00) PESOS monthly from December 1991 until the
defendants finally vacate and surrender possession of the subject property
to the plaintiffs and to pay attorneys fee in the amount of TEN THOUSAND
(P10,000.00) PESOS.
No pronouncement as to cost.[16]
Complainant received a copy of the Decision on October 7, 1992. Two days
later, or on October 9, 1992, complainant confronted respondent with the
adverse decision but the latter denied receipt of a copy thereof. Upon inquiry
with the Branch Clerk of Court, however, complainant found out that
respondent received his copy back on September 14, 1992.[17]
Having lost the unlawful detainer case, on January 12, 1993 complainant filed
the present administrative complaint against the respondent for professional
delinquency consisting of his failure to file the required pleadings in behalf of
the complainant and his spouse. Complainant contends that due to
respondents inaction he lost the opportunity to present his cause and
ultimately the case itself.[18]
In his Comment[19] dated March 17, 1993, respondent denies that he
committed professional misconduct in violation of his oath, stressing that he
was not the original counsel of complainant and his spouse.[20] He further
avers that when he agreed to represent complainant at the continuation of
the preliminary conference in the main case, it was for the sole purpose of
asking leave of court to file an amended answer because he was made to
believe by the complainant that the answer was prepared by a non-lawyer.
Upon discovering that the answer was in fact the work of a lawyer, forthwith
he asked the court to relieve him as complainants counsel, but he was
denied. He adds that he agreed to file the position paper for the complainant
upon the latters undertaking to provide him with the documents which support
the position that plaintiffs are not the owners of the property in dispute. As
complainant had reneged on his promise, he claims that he deemed it more
prudent not to file any position paper as it would be a repetition of the answer.
He offers the same reason for not filing the memorandum on appeal with the
RTC. Finally, respondent asserts that he fully explained his stand as regards
Civil Case No. 34-MCTC-T to the complainant.[21]
Pursuant to our Resolution[22] dated May 10, 1993, complainant filed his
Reply[23] to respondents Comment wherein he merely reiterated his
allegations in the Complaint.
On July 28, 1993, this Court directed respondent to file his rejoinder within
ten days from notice of our Resolution.[24] But he failed to do so despite the
lapse of a considerable period of time. This prompted the Court to require
respondent to show cause why he should not be disciplinarily dealt with or
held in contempt and to file his rejoinder, both within ten (10) days from
notice.[25]
In his Explanation[26] dated February 28, 1997, respondent admits having
received a copy of the resolution requiring him to file a rejoinder. However,
he asserts that he purposely did not file a rejoinder for he believed in good
faith that a rejoinder to complainants reply is no longer necessary. [27] He
professes that in electing not to file a rejoinder he did not intend to cast
disrespect upon the Court.[28]
On June 16, 1997, we referred this case to the Office of the Bar Confidant
for evaluation, report and recommendation.[29]
Page 265
In its Report[30] dated February 6, 2001, the Office of the Bar Confidant found
respondent negligent in handling the case of complainant and his wife and
LEGAL ETHICS
recommended that he be suspended from the practice of law for one month.
The pertinent portions of the Report read, thus:
It is to be noted that after appearing at the preliminary conference before the
Municipal Circuit Trial Court, respondent was never heard from again.
Respondents seeming indifference to the cause of his client, specially when
the case was on appeal, caused the defeat of herein complainant.
Respondent practically abandoned complainant in the midst of a storm. This
is even more made serious of the fact that respondent, at that time, was
assigned at the Public Attorneys Office- a government entity mandated to
provide free and competent legal assistance.
A lawyers devotion to his clients cause not only requires but also entitles him
to deploy every honorable means to secure for the client what is justly due
him or to present every defense provided by law to enable the latters cause
to succeed. (Miraflor vs. Hagad, 244 SCRA 106)
....
The facts, however, do not show that respondent employed every legal and
honorable means to advance the cause of his client. Had respondent tried
his best, he could have found some other defenses available to his client; but
respondent was either too lazy or too convinced that his client had a losing
case.
....
For intentionally failing to submit the pleadings required by the court,
respondent practically closed the door to the possibility of putting up a fair
fight for his client. As the Court once held, A client is bound by the negligence
of his lawyer. (Diaz-Duarte vs. Ong, 298 SCRA 388)[31]
However, the Bar Confidant did not find complainant entirely faultless. She
observed, viz:
Respondents allegation that complainant failed in his promise to submit the
documents to support his claim was not denied by complainant; hence, it is
deemed admitted. Complainant is not without fault; for misrepresenting that
he could prove his claim through supporting documents, respondent was
made to believe that he had a strong leg to stand on. A party cannot blame
his counsel for negligence when he himself was guilty of neglect. (Macapagal
vs. Court of Appeals, 271 SCRA 491)[32]
On April 18, 2001, we referred the case to the Integrated Bar of the
Philippines for investigation, report and recommendation.
Several hearings were set by the IBP but complainant did not appear even
once. Respondent attended five hearings, but he failed to present evidence
in support of his defense, as required by Investigating Commissioner Victor
C. Fernandez. This compelled the latter to make his report on the basis of
the pleadings and evidence forwarded by the Office of the Bar Confidant.
On October 11, 2002, Commissioner Fernandez issued
his Report[33] wherein he concurred with the findings and recommendation of
the Office of the Bar Confidant.
In a Resolution[34] dated April 26, 2003, the IBP Board of Governors adopted
the Report of Commissioner Fernandez.
The Court is convinced that respondent violated the lawyers oath not only
once but a number of times in regard to the handling of his clients cause. The
repeated violations also involve defilement of several Canons in the Code of
Professional Responsibility.
Right off, the Court notes that respondent attributes his failure to file the
required pleadings for the complainant and his wife invariably to his strong
personal belief that it was unnecessary or futile to file the pleadings. This was
true with respect to the affidavits and position paper at the MCTC level, the
appeal memorandum at the RTC level and the rejoinder at this Courts level.
In the last instance, it took respondent as long as three years, under
compulsion of a show cause order at that, only to manifest his predisposition
not to file a rejoinder after all. In other words, at the root of respondents
transgressions is his seeming stubborn mindset against the acts required of
him by the courts. This intransigent attitude not only belies lack of diligence
and commitment but evinces absence of respect for the authority of this Court
and the other courts involved.
The lawyers oath embodies the fundamental principles that guide every
member of the legal fraternity. From it springs the lawyers duties and
responsibilities that any infringement thereof can cause his disbarment,
suspension or other disciplinary action.[35]
Found in the oath is the duty of a lawyer to protect and safeguard the interest
of his client. Specifically, it requires a lawyer to conduct himself to the best of
his knowledge and discretion with all good fidelity as well to the courts as to
his clients.[36] This duty is further stressed in Canon 18 of the Code of
PINEDAPCGRNMAN
Professional Responsibility which mandates that (A) lawyer shall serve his
client with competence and diligence.
In this case, evidence abound that respondent failed to demonstrate the
required diligence in handling the case of complainant and his spouse. As
found by the Office of the Bar Confidant,[37] after appearing at the second
preliminary conference before the MCTC, respondent had not been heard of
again until he commented on the complaint in this case. Without disputing
this fact, respondent reasons out that his appearance at the conference was
for the sole purpose of obtaining leave of court to file an amended answer
and that when he failed to obtain it because of complainants fault he asked
the court that he be relieved as counsel.[38] The explanation has undertones
of dishonesty for complainant had engaged respondent for the entire case
and not for just one incident. The alternative conclusion is that respondent
did not know his procedure for under the Rules on Summary Procedure[39] the
amended answer is a prohibited pleading.
Even assuming respondent did in fact ask to be relieved, this could not mean
that less was expected from him. Once a lawyer takes the cudgels for a
clients case, he owes it to his client to see the case to the end. This, we
pointed out in Legarda v. Court of Appeals,[40] thus:
It should be remembered that the moment a lawyer takes a clients cause, he
covenants that he will exert all effort for its prosecution until its final
conclusion. A lawyer who fails to exercise due diligence or abandons his
clients cause make him unworthy of the trust reposed on him by the latter.[41]
Also, we held in Santiago v. Fojas,[42] every case a lawyer accepts deserves
his full attention, diligence, skill, and competence, regardless of its
importance and whether he accepts if for a fee or for free. In other words,
whatever the lawyers reason is for accepting a case, he is duty bound to do
his utmost in prosecuting or defending it.
Moreover, a lawyer continues to be a counsel of record until the lawyer-client
relationship is terminated either by the act of his client or his own act, with
permission of the court. Until such time, the lawyer is expected to do his best
for the interest of his client [43]
Thus, when respondent was directed to file affidavits and position paper by
the MCTC, and appeal memorandum by the RTC, he had no choice but to
comply. However, respondent did not bother to do so, in total disregard of
the court orders. This constitutes negligence and malpractice proscribed by
Rule 18.03 of the Code of Professional Responsibility which mandates that
(A) lawyer shall not neglect a legal matter entrusted to him and his negligence
in connection therewith shall render him liable.
Respondents failure to file the affidavits and position paper at the MCTC did
not actually prejudice his clients, for the court nevertheless rendered a
decision favorable to them.However, the failure is per se a violation of Rule
18.03.
It was respondents failure to file appeal memorandum before the RTC which
made complainant and his wife suffer as it resulted in their loss of the case.
As found by the Office of the Bar Confidant, to which we fully subscribe, in
not filing the appeal memorandum respondent denied complainant and his
spouse the chance of putting up a fair fight in the dispute. Canon
19prescribes that (A) lawyer shall represent his client with zeal within the
bounds of the law. He should exert all efforts to avail of the remedies allowed
under the law. Respondent did not do so, thereby even putting to naught the
advantage which his clients apparently gained by prevailing at the MCTC
level. Verily, respondent did not even bother to put up a fight for his clients.
Clearly, his conduct fell short of what Canon 19 requires and breached the
trust reposed in him by his clients.
We cannot sustain respondents excuse in not filing the affidavits and position
paper with the MCTC and the appeal memorandum with the RTC. He claims
that he did not file the required pleadings because complainant failed to
furnish him with evidence that would substantiate complainants allegations
in the answer. He argues that absent the supporting documents, the
pleadings he could have filed would just be a repetition of the answer.
However, respondent admits in his comment that complainant furnished him
with the affidavit of persons purporting to be barangay officials attesting to an
alleged admission by Felomino Hernandez, the brother of the plaintiffs in the
unlawful detainer case, that he had already bought the disputed property.[44]
This did not precipitate respondent into action despite the evidentiary value
of the affidavit, which was executed by disinterested persons. Said affidavit
Page 266
could have somehow bolstered the claim of complainant and his wife which
was upheld by the MCTC that plaintiffs are not the real parties-in-interest.
While respondent could have thought this
LEGAL ETHICS
affidavit to be without probative value, he should have left it to the sound
judgment of the court to determine whether the affidavit supports the
assertions of his clients. That could have happened had he filed the required
position paper and annexed the affidavit thereto.
Further, notwithstanding his belief that without the supporting documents
filing the required pleadings would be a futile exercise, still respondent should
have formally and promptly manifested in court his intent not to file the
pleadings to prevent delay in the disposition of the case.[45] Specifically, the
RTC would not have waited as it did for the lapse of three months from June
5,1992, the date when plaintiffs-appellants submitted their appeal
memorandum, before it rendered judgment. Had it known that respondent
would not file the appeal memorandum, the court could have decided the
case much earlier.
For his failure to inform the court, respondent violated Canon 12, to wit:
Canon 12: A lawyer shall exert every effort and consider it his duty to assist
in the speedy and efficient administration of justice.
Respondent likewise failed to demonstrate the candor he owed his client.
Canon 17 provides that (A) lawyer owes fidelity to the cause of his client and
he shall be mindful of the trust and confidence reposed in him. When
complainant received the RTC decision, he talked to respondent about it.[46]
However, respondent denied knowledge of the decision despite his receipt
thereof as early as September 14, 1992. Obviously, he tried to evade
responsibility for his negligence. In doing so, respondent was untruthful to
complainant and effectively betrayed the trust placed in him by the latter.
On top of all these is respondents employment as a lawyer of the Public
Attorneys Office which is tasked to provide free legal assistance for indigents
and low-income persons so as to promote the rule of law in the protection of
the rights of the citizenry and the efficient and speedy administration of
justice.[47] Against this backdrop, respondent should have been more
judicious in the performance of his professional obligations. As we held in
Vitriola v. Dasig[48] lawyers in the government are public servants who owe the
utmost fidelity to the public service. Furthermore, a lawyer from the
government is not exempt from observing the degree of diligence required in
the Code of Professional Responsibility. Canon 6 of the Code provides that
the canons shall apply to lawyers in government service in the discharge of
their official tasks.
At this juncture, it bears stressing that much is demanded from those who
engage in the practice of law because they have a duty not only to their
clients, but also to the court, to the bar, and to the public. The lawyers
diligence and dedication to his work and profession not only promote the
interest of his client, it likewise help attain the ends of justice by contributing
to the proper and speedy administration of cases, bring prestige to the bar
and maintain respect to the legal profession.[49]
The determination of the appropriate penalty to be imposed on an errant
attorney involves the exercise of sound judicial discretion based on the facts
of the case.[50] In cases of similar nature, the penalty imposed by this Court
consisted of reprimand,[51] fine of five hundred pesos with warning,[52]
suspension of three months,[53] six months,[54] and even disbarment in
aggravated cases.[55]
The facts and circumstances in this case indubitably show respondents
failure to live up to his duties as a lawyer in consonance with the strictures of
the lawyers oath and the Code of Professional Responsibility, thereby
warranting his suspension from the practice of law. At various stages of the
unlawful detainer case, respondent was remiss in the performance of his duty
as counsel.
To reiterate, respondent did not submit the affidavits and position paper when
required by the MCTC. With his resolution not to file the pleadings already
firmed up, he did not bother to inform the MCTC of his resolution in mockery
of the authority of the court. His stubbornness continued at the RTC, for
despite an order to file an appeal memorandum, respondent did not file any.
Neither did he manifest before the court that he would no longer file the
pleading, thus further delaying the proceedings. He had no misgivings about
his deviant behavior, for despite receipt of a copy of the adverse decision by
the RTC he opted not to inform his clients accordingly. Worse, he denied
knowledge of the decision when confronted by the complainant about it.
At this Courts level, respondents stubborn and uncaring demeanor surfaced
again when he did not file a rejoinder to complainants reply.
Respondents story projects in vivid detail his appalling indifference to his
clients cause, deplorable lack of respect for the courts and a brazen disregard
of his duties as a lawyer.
PINEDAPCGRNMAN
However, we are not unmindful of some facts which extenuate respondents
misconduct. First, when complainant sought the assistance of respondent as
a PAO lawyer, he misrepresented that his answer was prepared by someone
who is not a lawyer. Second, when complainant showed respondent a copy
of their answer with the MCTC, he assured him that he had strong evidence
to support the defense in the answer that plaintiffs were no longer the owners
of the property in dispute. However, all that he could provide respondent was
the affidavit of the barangay officials. Last but not least, it is of public
knowledge that the Public Attorneys Office is burdened with a heavy
caseload.
All things considered, we conclude that suspension for two (2) months from
the practice of law is the proper and just penalty.
WHEREFORE, respondent Atty. Wilfredo Oca is ordered SUSPENDED from
the practice of law for two (2) months from notice, with the warning that a
similar misconduct will be dealt with more severely. Let a copy of this decision
be attached to respondents personal record in the Office of the Bar Confidant
and copies be furnished to all chapters of the Integrated Bar of the Philippines
(IBP) and to all the courts in the land.
SO ORDERED.
VALERIANA U. DALISAY, A.C. No. 5655
Complainant,
Present:
PANGANIBAN, J., Chairman,
SANDOVAL-GUTIERREZ,
-versus- CORONA,
CARPIO MORALES, and
GARCIA, JJ.
Promulgated:
ATTY. MELANIO MAURICIO, JR.,
Respondent. January 23, 2006
x ------------------------------------------------------------------------------------------ x
RESOLUTION
SANDOVAL-GUTIERREZ, J.:
At bar is a motion for reconsideration of our Decision dated April 22, 2005
finding Atty. Melanio Batas Mauricio, Jr., respondent, guilty of malpractice
and gross misconduct and imposing upon him the penalty of suspension from
the practice of law for a period of six (6) months.
A brief revisit of facts is imperative, thus:
On October 13, 2001, Valeriana U. Dalisay, complainant, engaged
respondents services as counsel in Civil Case No. 00-044, entitled Lucio De
Guzman, etc., complainants, v. Dalisay U. Valeriana, respondent, pending
before the Municipal Trial Court, Branch 1, Binangonan, Rizal.
Notwithstanding his receipt of documents and attorneys fees in the total
amount of P56,000.00 from complainant, respondent never rendered legal
services for her. As a result, she terminated the attorney-client relationship
and demanded the return of her money and documents, but respondent
refused.
On January 13, 2004, Investigating Commissioner Lydia A. Navarro of the
Integrated Bar of the Philippines (IBP) Commission on Bar Discipline, found
that for the amount of P56,000.00 paid by the complainant x x x, no action
had been taken nor any pleadings prepared by the respondent except his
alleged conferences and opinions rendered when complainant frequented his
law office. She recommended that respondent be required to refund the
amount of P56,000.00 to the complainant, and surprisingly, that the
Page 267
complaint be dismissed.
LEGAL ETHICS
On February 27, 2004, the IBP Board of Governors passed Resolution No.
XVI-2004-121, adopting and approving in toto Commissioner Navarros
Report and Recommendation.
On April 22, 2005, we rendered the assailed Decision.
Incidentally, upon learning of our Decision, respondent went to the MTC,
Branch I, Binangonan, Rizal to verify the status of Civil Case No. 00-044.
There, he learned of the trial courts Decision dated December 6, 2001
holding that the tax declarations and title submitted by complainant are not
official records of the Municipal Assessor and the Registry of Deed.
Thereupon, respondent filed a Sworn Affidavit Complaint[1] against
complainant charging her with violations of Article 171[2] and 172,[3] and/or
Article 182[4] of the Revised Penal Code. He alleged that complainant offered
tampered evidence.
In this motion for reconsideration, respondent raises the following arguments:
First, complainant did not engage his services as counsel in Civil Case No.
00-044. She hired him for the purpose of filing two new petitions, a petition
for declaration of nullity of title and a petition for review of a decree.
Second, Civil Case No. 00-044 was considered submitted for decision as
early as August 6, 2001, or more than two months prior to October 13, 2001,
the date he was engaged as counsel, hence, he could not have done
anything anymore about it. Third, complainant refused to provide him with
documents related to the case, preventing him from doing his job.
And fourth, complainant offered tampered evidence in Civil Case No. 00-004,
prompting him to file falsification cases against her.
In her opposition to the motion, complainant contends that: (1) respondent
violated the principle of confidentiality between a lawyer and his client when
he filed falsification charges against her; (2) respondent should have returned
her money; (3) respondent should have verified the authenticity of her
documents earlier if he really believed that they are falsified; and (4) his
refusal to return her money despite this Courts directive constitutes
contempt.
We deny respondents motion for reconsideration.
It is axiomatic that no lawyer is obliged to act either as adviser or advocate
for every person who may wish to become his client. He has the right to
decline employment. But once he accepts money from a client, an attorney-
client relationship is established, giving rise to the duty of fidelity to the clients
cause.[5] From then on, he is expected to be mindful of the trust and
confidence reposed in him. He must serve the client with competence and
diligence, and champion the latters cause with wholehearted devotion.[6]
Respondent assumed such obligations when he received the amount
of P56,000.00 from complainant and agreed to handle Civil Case No. 00-044.
Unfortunately, he had been remiss in the performance of his duties. As we
have ruled earlier, there is nothing in the records to show that he
(respondent) entered his appearance as counsel of record for complainant in
Civil Case No. 00-044. Neither is there any evidence nor pleading submitted
to show that he initiated new petitions.
With ingenuity, respondent now claims that complainant did not engage his
services for Civil Case No. 00-044 but, instead, she engaged him for the filing
of two new petitions. This is obviously a last-ditch attempt to evade
culpability. Respondent knows very well that if he can successfully
disassociate himself as complainants counsel in Civil Case No.00-044, he
cannot be held guilty of any dereliction of duties.
But respondents current assertion came too late in the day. He is already
bound by his previous statements. In his Verified Comment on the Affidavit-
Complaint,[7] he categorically stated that complainant engaged his services
in Civil Case No. 00-044, originally handled by Atty. Oliver Lozano, thus:
4.a. Complainant was referred to the Respondent by Atty. Oliver Lozano.
4.b. The referral intrigued Respondent no end, simply because Atty. Oliver
Lozano is a bright lawyer and is very much capable of handling Civil Case
No. 00-044.
4.c. Respondent-out of respect from Atty. Oliver Lozano did not inquire the
reason for the referral. But he was made to understand that he was being
referred because Atty. Oliver Lozano believed that Respondent would be in
a better position to prosecute and/or defend the Complainant in Civil Case
No. 00-044.
xxxxxx
PINEDAPCGRNMAN
5.c. Complainant went to the law office of Respondent on October 13, 2001
and demanded that he provides her with free legal service.
xxxxxx
5.e. Respondent, however, told Complainant that the case (Civil Case No.
00-044) would not entitle her to a free legal service and advised her to just
re-engage the services of Atty. Oliver Lozano.
5.f. Undaunted, Complainant asked Respondent to assess her case and how
she and her lawyer should go prosecuting and/or defending her position
therein.
5.g. Honestly believing that Complainant was no longer represented by
counsel in Civil Case No. 00-044 at that time, Respondent gave his
professional opinion on the factual and legal matters surrounding the said
case.
5.h. Apparently impressed with the opinion of the Respondent, Complainant
became even more adamant in asking the former to represent her in Civil
Case No. 00-044.
5.i. Respondent then told Complainant that she would be charged as a
regular client is she insists in retaining his services.
5.j. It was at this juncture that Complainant asked Respondent about his fees.
5.k. After re-assessing Civil Case No. 00-044, Respondent told Complainant
that he will have to charge her with an acceptance fee of One Hundred
Thousand Pesos (P100,000.00), aside form being charged for
papers/pleadings that may have to be prepared and filed in court in
connection with the aforesaid case.
xxxxxx
5.n. A few days after, Respondent got a call from Atty. Oliver Lozano. The
said Atty. Oliver Lozano interceded for and in behalf of Complainant and
asked that the acceptance fee that Respondent was charging the
Complainant be reduced.
xxxxxx
5.r. Complainant then returned to the office of the Respondent on October
20, 2001. The latter then informed the former of his conversation with Atty.
Oliver Lozano and his (respondents) decision to reduce the acceptance fee.
5.s. Complainant was very grateful at the time, even shedding a tear or two
simply because Respondent had agreed to handle her case at a greatly
reduced acceptance fee.
Statements of similar tenor can also be found in respondents Memorandum[8]
filed with the IBP.
Undoubtedly, respondents present version is a flagrant departure from his
previous pleadings. This cannot be countenanced. A party should decide
early what version he is going to advance. A change of theory in the latter
stage of the proceedings is objectionable, not due to the strict application of
procedural rules, but because it is contrary to the rules of fair play, justice
and due process.[9] The present administrative case was resolved by the IBP
on the basis of respondents previous admission that complainant engaged
his legal services in Civil Case No. 00-044. He cannot now unbind himself
from such admission and its consequences. In fact, if anything at all has been
achieved by respondents inconsistent assertions, it is his dishonesty to this
Court.
At any rate, assuming arguendo that complainant indeed engaged
respondents services in filing the two (2) new petitions, instead of Civil Case
No. 00-044, still, his liability is unmistakable. There is nothing in the records
to show that he filed any petition. The ethics of the profession demands that,
Page 268
in such a case, he should immediately return the filing fees to complainant.
In Parias v. Paguinto,[10] we held that a lawyer shall account for all money or
property collected from the client. Money entrusted to a lawyer for a specific
LEGAL ETHICS
purpose, such as for filing fee, but not used for failure to file the case must
immediately be returned to the client on demand. Per records, complainant
made repeated demands, but respondent is yet to return the money.
Neither do we find merit in respondents second argument. The fact that Civil
Case No. 00-044 was already submitted for decision does not justify his
inaction. After agreeing to handle Civil Case No. 00-044, his duty is, first and
foremost, to enter his appearance. Sadly, he failed to do this simple task. He
should have returned complainants money. Surely, he cannot expect to be
paid for doing nothing.
In his third argument, respondent attempts to evade responsibility by shifting
the blame to complainant. He claims that she refused to provide him with
documents vital to the case. He further claims that he would be violating the
Code of Professional Responsibility by handling a case without adequate
preparation. This is preposterous. When a lawyer accepts a case, his
acceptance is an implied representation that he possesses the requisite
academic learning, skill and ability to handle the case.[11] As a lawyer,
respondent knew where to obtain copies of the certificates of title. As a matter
of fact, he admitted that his Law Office, on its own, managed to verify the
authenticity of complainants title. It bears reiterating that respondent did not
take any action on the case despite having been paid for his services. This
is tantamount to abandonment of his duties as a lawyer and taking undue
advantage of his client.
Finally, in an ironic twist of fate, respondent became the accuser of
complainant. In his fourth argument, respondent accuses her of offering
falsified documentary evidence in Civil Case No. 00-004, prompting him to
file falsification cases against her. He thus justifies his inability to render legal
services to complainant.
Assuming that complainant indeed offered falsified documentary evidence in
Civil Case No. 00-044, will it be sufficient to exonerate respondent? We
believe not. First, Canon 19 outlines the procedure in dealing with clients who
perpetrated fraud in the course of a legal proceeding. Consistent with its
mandate that a lawyer shall represent his client with zeal and only within the
bounds of the law, Rule 19.02 of the same Canon specifically provides:
Rule 19.02 A lawyer who has received information that his clients has, in the
course of the representation, perpetrated a fraud upon a person or
tribunal, shall promptly call upon the client to rectify the same, and failing
which he shall terminate the relationship with such client in accordance with
the Rules of Court.
As a lawyer, respondent is expected to know this Rule. Instead of inaction,
he should have confronted complainant and ask her to rectify her fraudulent
representation. If complainant refuses, then he should terminate his
relationship with her.
Understandably, respondent failed to follow the above-cited Rule. This is
because there is no truth to his claim that he did not render legal service to
complainant because she falsified the documentary evidence in Civil Case
No.00-044. This brings us to the second reason why we cannot sustain his
fourth argument. The pleadings show that he learned of the alleged
falsification long after complainant had terminated their attorney-client
relationship. It was a result of his active search for a justification of his
negligence in Civil Case No. 00-044. As a matter of fact, he admitted that he
verified the authenticity of complainants title only after the news of his
suspension spread in the legal community. To our mind, there is absurdity in
invoking subsequent knowledge of a fact as justification for an act or omission
that is fait accompli.
Obviously, in filing falsification charges against complainant, respondent was
motivated by vindictiveness.
In fine, let it be stressed that the authority of an attorney begins with his or
her retainer.[12] It gives rise to a relationship between an attorney and a client
that is highly fiduciary in nature and of a very delicate, exacting, and
confidential character, requiring a high degree of fidelity and good faith.[13] If
much is demanded from an attorney, it is because the entrusted privilege to
practice law carries with it the correlative duties not only to the client but also
to the court, to the bar, and to the public. A lawyer who performs his duty with
diligence and candor not only protects the interest of his client; he also serves
the ends of justice, does honor to the bar, and helps maintain the respect of
the community to the legal profession.[14] Indeed, law is an exacting goddess
demanding of her votaries not only intellectual but also moral discipline.
WHEREFORE, we DENY respondents motion for reconsideration. Our
Decision dated April 22, 2005 is immediately executory. Respondent is
PINEDAPCGRNMAN
directed to report immediately to the Office of the Bar Confidant his
compliance with our Decision.
Let a copy of this Resolution be attached to his personal record and copies
furnished the Integrated Bar of the Philippines and the Office of the Court
Administrator for dissemination to all courts.
SO ORDERED.
Rule 18.04 – A lawyer shall keep the client informed of the status of his
case and shall respond within a reasonable time to the client’s request
for information.
 Competence: sufficiency of lawyer’s qualification to deal with the
matter in question and includes knowledge and skill and the
ability to use them effectively in the interest of the client.
 A lawyer must keep himself constantly abreast with the trend of
authoritative pronouncements and developments in all branches
of law.
 There must be extraordinary diligence in prosecution or defense
of his client’s cause.
 If a lawyer errs like any other human being, he is not answerable
for every error or mistake, and will be protected as long as he
acts honestly and in good faith to the best of his skill and
knowledge.
 Lawyer is not an insurer of the result in a case where he is
engaged in the counsel.
DOMINGA RUIZ, APOLONIA RUIZ, G.R. No. 166386
FLORENCIO RUIZ, CORNELIA
RUIZ, OLIMPIO RUIZ, and HEIRS Present:
OF TOMASA RUIZ,
Petitioners, AUSTRIA-MARTINEZ,
Acting Chairperson,
TINGA,*
- versus - CHICO-NAZARIO,
NACHURA, and
DE CASTRO,** JJ.
CIRILA DELOS SANTOS, Promulgated:
Respondent.*** January 27, 2009
x------------------------------------------------------
----x
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari and mandamus seeking that
the Resolutions dated September 21, 2004[1] and December 21, 2004[2] of the
Court of Appeals (CA) in CA-G.R. SP No. 85872 be reversed and set aside;
and that the CA be directed to give due course to the petition for
certiorari, prohibition and mandamus filed before it by herein petitioners.
A brief factual background is necessary for a proper perspective in the
resolution of herein petition.
Dominga, Apolonia, Florencio, Cornelia, Tomasa and Olimpio, all surnamed
Ruiz (petitioners), were the original owners of seven parcels of land with a
total area of 194,284 square meters located in Barangay Kaytinga, Alfonso,
Cavite, covered by OCT No. P-4017 in the name of Tomasa, covering 46,235
sq. meters; OCT No. P-4018 in the name of Cornelia, 49,803 sq. meters;
OCT No. P-4288 in the name of Dominga, 19,649 sq. meters; OCT No. P-
4289 in the name of Apolonia, 19,649 sq. meters; OCT No. P-4290 in the
name of Olimpio, 19,650 sq. meters; OCT No. P-4291 in the name of
Page 269
Florencio, 19,650 sq. meters; and OCT No. P-4292 in the name of Cornelia,
19,648 sq. meters (collectively referred to as subject property).
LEGAL ETHICS
Cirila delos Santos (respondent) is a duly licensed real estate broker.
Sometime in 1995, Olimpio gave respondent the plan of the subject property
and verbally authorized her to sell the same. Thereafter, respondent referred
in writing the subject property to Odessa Antiporda (Antiporda), a realtor and
a fellow estate broker, who had earlier informed respondent that she had a
prospective buyer interested to buy a land with an area of about 15 to 20
hectares to be used as a retirement village. Antiporda in turn referred the
subject property to one Alfred Tantiansu (Tantiansu). Olimpio then gave
respondent a written authority to sell the same.[3]
In May 1996, respondent introduced Olimpio to Tantiansu and they all went
together to the location of the properties. Tantiansu showed interest in the
properties and asked for the lowering of price, which Olimpio pegged at
P315.00 per square meter. Respondent asked Olimpio for the renewal of her
authority, to sell to which the former obliged. In the authority to sell, it was
specified that she would still be paid her commission even after the said
authority expired, provided she registered in writing her prospective buyer
with whom she negotiated during the period of authority. Accordingly,
respondent notified petitioners in writing that Tantiansu was her buyer. [4]
A meeting was subsequently held among Olimpio, respondent and Tantiansu
in Tantiansu's office where the prospective buyer showed interest in buying
the properties. A few weeks later, a meeting was held between Olimpio and
Tantiansu only, without respondent. Olimpio asked respondent to lower her
commission from 5% to 2.5%; otherwise, the sale would not push through.But
respondent, through a letter sent to Olimpio, answered that she was
amenable to a commission of 4%.[5]
Respondent later learned that the properties were sold to different
corporations at P60.00 per square meter, as indicated in the deeds of sale.
Upon her verification of the articles of incorporation of the corporation- buyers
with the Securities and Exchange Commission, she found out that the
corporations were owned by Tantiansu. Respondent then demanded the
payment of her broker's commission, but was unheeded.
Respondent filed with the Regional Trial Court (RTC), Branch 275, Las Pias
City, a complaint[6] for collection of sum of money and damages against all
petitioners, alleging that it was through her effort as a real estate broker that
she was able to bring about the consummation of the sale of the subject
property, to petitioners' immense gain and benefits; that despite the sale and
her repeated demands, petitioners refused to pay her broker's fee.
Petitioners Domingo Ruiz, et al. filed their Answer with counterclaim and
alleged as affirmative defense that at the time of the consummation of the
sale of the subject properties, there was no longer any existing broker's
agreement between them; that respondent had no more authority from them
to sell the properties or, assuming there was such authority, the same had
already lapsed or expired; that it was petitioners' understanding at the time
of the sale of the subject properties that Tantiansu, the buyer, would be
responsible for the payment of the broker's commission, whoever the broker
may be; that petitioners knew that respondent had initially claimed her
broker's commission from Tantiansu; but after Tantiansu's death, and failing
to collect any broker's commission from said buyer, respondent commenced
the present action against them.
Issues having been joined, a full-blown trial on the merits ensued.
On September 22, 2003, the RTC[7] rendered its judgment, the dispositive
portion of which reads:
WHEREFORE, judgment is rendered in favor of plaintiff [respondent] and
against the defendants [petitioners], ordering the latter to pay the plaintiff
jointly and severally the sum of P2,447,524.80 plus legal interest thereon
from the filing of the complaint and moral damages of P500,000.00 as well
as exemplary damages of P200,000.00 and attorney's fees of P100,000.00
and P2,000.00 per court appearance and to pay the cost.[8]
Petitioners filed their notice of appeal.[9] On November 6, 2003, respondent
filed her Comment and/or opposition thereto, alleging that the appeal was not
PINEDAPCGRNMAN
perfected for failure of petitioners to file the docket/appeal fee within the
reglementary period to appeal.
In an Order[10] dated January 16, 2004, the RTC denied petitioners' appeal
and considered the appeal barred for failure of petitioners to pay the appeal
fee within the reglementary period as provided under Section 4, Rule 41 of
the Rules of Civil Procedure. It ruled that the decision had already become
final and executory, and there was nothing more to be appealed to the CA.
With the denial of their appeal, petitioners filed a petition for relief[11] alleging
that they were prevented from awaiting themselves of an appeal due to
mistake and excusable negligence of their counsel on record, and that they
had a good and substantial defense. Attached to the petition was the Affidavit
of Merit of Atty. Mark Edsel Ang (Atty. Ang), petitioners' former counsel,
wherein he stated that when he received the decision on September 30,
2003, he immediately sent copies thereof to petitioners by registered mail, as
four of the six petitioners live abroad while the other two live in Cavite; that
he communicated with the RTC Clerk of Court the fact that a notice of appeal
was already filed and the fees would be paid as soon as he got the
confirmation of petitioners' desire to appeal, to which the clerk of court gave
her assurance on the acceptance of the late payment of docket fees; that he
received a long distance call from petitioner Cornelia on October 15, 2003
confirming petitioners' desire to appeal the decision; thus, he paid the
appellate fees on October 24, 2003. Atty. Ang admitted that it was through
his negligence that the appeal was belatedly filed.
In its Decision[12] dated June 18, 2004, the RTC denied the petition for relief
for lack of merit. The RTC found no merit in petitioners' contention that the
error of counsel to pay the appellate fees in due time was a mistake
constituting excusable negligence and ruled that the mistake of counsel binds
his client. The RTC held that petitioners' claim of a good and valid defense
was belied by the court's findings and conclusions contained in its Decision
dated September 22, 2003.
In an Order[13] dated June 24, 2004, the RTC granted the motion for execution
filed by respondent on the ground that the decision dated September
22, 2003 had already become final and executory.
On July 5, 2004, notices of garnishment[14] were issued to the different banks
by sheriff Josefino Ortiz. Notice[15] of sale on execution of the subject property
was scheduled on September 3, 2004.
Petitioners filed a petition for certiorari, prohibition, and mandamus with
prayer for the issuance of a temporary restraining order/writ of preliminary
injunction with the CA, verified and certified by Dominga, seeking to set aside
the following: (1) Order dated January 16, 2004, which denied petitioners'
notice of appeal; (2) Decision dated June 18, 2004 denying petitioners'
petition for relief; (3) Order dated June 24, 2004 declaring the Decision as
final and executory and granting the motion for execution filed by respondent;
(4) notice of garnishment issued on July 5, 2004; and notice of sale.
On September 21, 2004, the CA dismissed the petition, the dispositive
portion of which reads:
WHEREFORE, for being procedurally flawed, at the very least, this petition
is hereby DENIED DUE COURSE, and consequently DISMISSED. And since
the temporary restraining order and/or writ of preliminary injunction is merely
an adjunct to the main case, the same must be pro tanto denied. [16]
The reasons given by the CA dismissing the petition outright are as follows:
(1) No motion for reconsideration was filed against the challenged Order
issued by the respondent judge on January 16, 2004. Well settled is the rule
that a filing of a motion for reconsideration is a prerequisite to the institution
of a special civil action for certiorari.
(2) The names of the heirs of the petitioner Tomasa Ruiz are not
indicated, in violation of the first par. Section 3, Rule 46 of the 1997 Rules,
Page 270
which requires that the petition shall contain the full names and actual
addresses of all petitioners and respondents, a concise statement of the
LEGAL ETHICS
matters involved, the factual background of the case, and the grounds relied
upon for the relief prayed for.
(3) There is no special power of attorney executed by the said heirs
authorizing Dominga to sign the verification and certification in their own
behalf.[17]
Petitioners' motion for reconsideration was denied in the assailed Resolution
dated December 21, 2004, as the CA found that the arguments put forward
in the motion were a virtual rehash of those alleged in support of the petition.
Hence, herein petition raising the following issues:
1. WHETHER A MOTION FOR RECONSIDERATION IS
REQUIRED BEFORE RESORTING TO THE PETITION FOR CERTIORARI
FILED BY PETITIONERS BEFORE THE CA;
2. WHETHER THE NAMES OF THE HEIRS OF THE PETITIONER
TOMASA RUIZ ARE INDICATED IN THE PETITION;
3. WHETHER THERE IS NO SPECIAL POWER OF ATTORNEY
EXECUTED BY SAID HEIRS AUTHORIZING PETITIONER TO SIGN THE
VERIFICATION AND CERTIFICATION ON THEIR OWN BEHALF.
4. WHETHER THE CA ACTED WITH HASTE ON ITS BASESLESS
CONCLUSION THAT PETITIONERS' MOTION FOR RECONSIDERATION
IS A VIRTUAL REHASH OF THOSE ALLEGED IN SUPPORT OF ITS
PETITION.[18]
The parties filed their respective memoranda.
Anent the first issue, petitioners assert that the CA erred in finding that the
filing of a motion for reconsideration is a prerequisite for the institution of a
special civil action for certiorari.
Under the peculiar circumstances of the present case, we agree with
petitioners. There is no question that the filing of a motion for reconsideration
before resort to certiorari will lie is intended to afford the court an opportunity
to correct any actual or fancied error attributed to it by way of re-examination
of the legal and factual aspects of the case.[19]
However, the filing of a motion for reconsideration before availing of the
remedy of certiorari is not always a sine qua non[20] requirement, as there are
recognized exceptions: (a) where the order is a patent nullity, as where the
court a quo has no jurisdiction; (b) where the questions raised in the
certiorari proceedings have been duly, or are the same as those, raised and
passed upon by the lower court; (c) where there is an urgent necessity for
the resolution of the question and any further delay would prejudice the
interests of the government or of the petitioner, or the subject matter of the
action is perishable; (d) where, under the circumstances, a motion for
reconsideration would be useless; (e) where petitioner was deprived of due
process and there is extreme urgency for relief; (f) where, in a criminal case,
relief from an order of arrest is urgent and the granting of such relief by the
trial court is improbable; (g) where the proceedings in the lower court are a
nullity for lack of due process; (h) where the proceedings were ex parte, or in
which the petitioner had no opportunity to object; and (i) where the issue
raised is one purely of law, or public interest is involved.[21] We find this case
falling under exceptions b, c and d.
Petitioners' notice of appeal was earlier denied by the RTC due to the late
payment of docket fees, and it ruled that its decision dated September 22,
2003 had already become final and executory and there was nothing more
to be appealed to the CA. Clearly then, a motion for reconsideration would
be useless in the light of such declaration by the RTC.
Petitioners' subsequent petition for relief from the denial of appeal was
denied by the RTC in its Decision dated June 18, 2004. The court reiterated
its disquisition found in its main decision dated September 22, 2003. In fact,
just after the petition for relief was denied on June 18, 2004, the RTC issued
an Order dated June 24, 2004 granting the motion for execution filed by
PINEDAPCGRNMAN
respondent. Thereafter, on July 5, 2004, notices of garnishment of
petitioners' goods, stocks, interest on stocks, shares and any other personal
properties in their control and possession were already served by the sheriff
on the different banks. Thus, petitioners sufficiently showed that there was
an urgent necessity for the filing of the petition with the CA to rule on the
issue of the denial of appeal and the petition for relief.
Anent the second issue, the CA erred in finding that the names of the heirs
of petitioner Tomasa Ruiz were not indicated in the petition. In the petition
filed before the CA, it was alleged that the petitioners are as follows:
Dominga Ruiz, resident of Kaytinga, Alfonso Cavite;
Apolonia Ruiz, resident of 105 Eagle Head Drive, Fort Washington,
Maryland, USA;
Cornelia Ruiz, resident of 12903 Turnberry Circle, Fort Washington,
Maryland, USA;
Olimpio Ruiz, resident of 4510 N. Troy, Chicago, Illinois, USA;
Florencio Ruiz, resident of Detecon Al Saudia Co. Ltd., PO Box 31443,
Jeddah, 21497;
Heirs of Tomasa Ruiz, all the above residents of the above-mentioned
addresses.[22]
In their motion for reconsideration of the CA Resolution dated September 21,
2004, petitioners alleged that there was substantial compliance with the
requirement that the full names and actual residents of all petitioners must
be stated, since all the petitioners are the only children of the late Tomasa
Ruiz, a fact that they had sufficiently alleged in their petition. We find such
explanation plausible, considering that the phrase heirs of Tomasa Ruiz was
followed by the words all the above, which means that the heirs of Tomasa
are the persons whose names are immediately preceding.
As to the third issue, we also find that the CA erred in finding that there were
no special powers of attorney (SPAs) executed by the heirs of Tomasa
authorizing petitioner Dominga to sign the verification and certification on
their behalf. However, an examination of the CA rollo shows that when the
petition was filed with the CA, attached were separate SPAs[23] of petitioners
Apolonia, Cornelia, Olimpio, Florencio, the heirs of Tomasa, executed in
favor of their co-petitioner Dominga, giving her the authority to sign the
required verification and certification of non-forum shopping.
Anent the fourth issue, we rule that the CA hastily concluded that the
allegations in petitioners' motion for reconsideration of the Resolution dated
September 21, 2000, were a mere rehash of those in support of their petition
for certiorari. Notably, the motion had sufficiently stated the circumstances
which would excuse petitioners for their non-filing of a motion for
reconsideration of the RTC decision dated June 24, 2004 before resorting to a
petition for certiorari in the CA, to wit: the RTC's declaration that its decision
had already become final and executory and that there was nothing more to
be appealed to the CA; and the granting of respondent's motion for execution
as well as the sheriff's implementation of such writ by the issuance of notices
of garnishment.Petitioners also pointed out to the CA that it had overlooked
the fact that the names of the heirs of Tomasa Ruiz were alleged in the petition
and clarified that they were the only heirs of petitioner Tomasa and that they
had executed separate SPAs in favor of petitioner Dominga.
Thus, the CA committed a reversible error in outrightly dismissing the petition
and not giving due course to it as well as in denying petitioners' motion for
reconsideration.
Petitioners further claim that the RTC should have given due course to their
notice of appeal of the RTC Decision dated September 22, 2003 to the CA
since the late payment of appellate docket fees was due to the mistake and
excusable negligence of their counsel and they had a good and substantial
defense.
Instead of remanding the case to the CA which would only unduly prolong
the disposition of the case between the parties, we shall resolve[24] the
substantive issue raised in the petition forcertiorari filed with the CA, to wit:
Page 271
Whether the RTC committed grave abuse of discretion in denying petitioners'
petition for relief from denial of appeal.
LEGAL ETHICS
To begin with, petitioners, through counsel, received a copy of the RTC
decision dated September 22, 2003 on September 30 2003. Thus, petitioners
had until October 15, 2003 within which to perfect their appeal by filing the
notice of appeal[25] and paying the appellate docket and other legal fees.[26]
On October 14, 2003, petitioners filed their notice of appeal through
registered mail without paying the appeal fees.
It is a well-settled rule that the mere filing of the notice of appeal is not
enough, for it must be accompanied by the payment of the correct appellate
docket fees.[27] Payment in full of docket fees within the prescribed period is
mandatory.[28] It is an essential requirement without which the decision
appealed from would become final and executory as if no appeal has been
filed.Failure to perfect an appeal within the prescribed period is not a mere
technicality but jurisdictional, and failure to perfect an appeal renders the
judgment final and executory.[29]
Hence, there is no question that the RTC correctly dismissed petitioners'
appeal pursuant to Section 13, Rule 41 of the Rules of Court which reads:
SEC. 13. Dismissal of appeal. Prior to the transmittal of the original record or
the record on appeal to the appellate court, the trial court may,
motu proprio or on motion dismiss the appeal for having been taken out of
time, or for non-payment of the docket and other lawful fees within the
reglementary period.
However, petitioners filed a petition for relief from the RTC Order that did not
giving due course to their notice of appeal on the grounds of mistake and
excusable negligence committed by their counsel. They contend that their
counsel mistakenly erred when he relied in good faith on the affirmation made
by the trial court's clerk of court that the appeal fees would be accepted even
after the period for the filing of the notice of appeal; that counsel also
mistakenly relied on jurisprudence that technical rules of procedure would be
relaxed provided that the same were substantially complied with; that
counsel's negligence should not be binding on them; that they have good and
substantial defenses which would result in the dismissal of the complaint or
a reduction of the monetary awards set forth in the decision.
Section 2, Rule 38 of the Rules of Court provides:
Section 2. Petition for relief from denial of appeal. When a judgment or final
order is rendered by any court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has been prevented from taking
an appeal, he may file a petition in such court and in the same case praying
that the appeal be given due course.
Negligence to be excusable must be one which ordinary diligence and
prudence could not have guarded against.[30] Petitioners' counsel filed a
notice of appeal within the reglementary period for filing the same without,
however, paying the appellate docket fees. Counsel very well knew that
under the Rules of Court, the full amount of appellate docket and other lawful
fees must be paid within the same period that the notice of appeal was filed,
as he even allegedly communicated to the clerk of court his request for
additional time in order to consolidate the confirmation of petitioners' desire
to appeal.
The failure of counsel to pay the appellate docket fees on time constitutes
negligence. Despite receiving an overseas call on October 15, 2003, i.e., the
last day to file the appeal, from petitioner Cornelia, who then lived in
Japan and expressed in behalf of the other petitioners their desire to appeal
the RTC decision, he paid the fees only on October 24, 2003.
It bears stressing that the Rules of Court explicitly provides for the procedure
for the perfection of appeal. The counsel of petitioners should not have relied
on the alleged assurance by the clerk of court of the acceptance of the late
payment of docket fees. As an officer of the court, he should know that the
affirmation of the clerk of court could not prevail over the specific requirement
of the rules. The rules of procedure are meant to be followed and not to be
subjected to the whims and convenience of the parties and their counsels or
by mere opinions of the clerk of court.
PINEDAPCGRNMAN
Atty. Ang should not have presumed that the rules of procedure would be
relaxed in favor of his clients. His reliance on jurisprudence that the
application of the technical rules of procedure would be relaxed if the same
was subsequently complied with is not justified. The liberal application of
rules of procedure for perfecting appeals is still the exception, and not the
rule; and it is only allowed in exceptional circumstances to better serve the
interest of justice.[31] Atty. Ang's negligence in not paying the docket fees on
time cannot be considered as excusable. The circumstances surrounding this
case do not warrant the relaxation of the rules.
Petitioners insist that they are not bound by the mistake of their counsel,
citing De Guzman v. Sandiganbayan[32] and Samala v. Court of Appeals.[33]
In De Guzman, petitioner was convicted by the Sandiganbayan of anti-graft
and corrupt practices act for his failure to account for the P200,000.00 he
received for certain training programs of the Department of Agriculture based
on the testimony of the lone prosecution witness that no such training
program was held at the designated places. Petitioner sought to be relieved
from what he considered as the serious and costly mistake of his former
lawyers in demurring to the prosecution evidence after leave was denied, the
effect of which deprived him of presenting the pieces of documentary
evidence showing due disbursement of the P200,000 received for the training
program which was actually conducted. The original documents were all
along kept in the records section of the Bureau of Plant Industry; and these
original copies were readily available, which if presented would have
completely belied the accusation against him. We ruled that since no less
than petitioner's liberty was at stake, the higher interests of justice and equity
demand that petitioner be not penalized for the costly mistake of his previous
counsel.
In contrast, the present case does not involve the life or liberty of petitioners,
and they were adequately heard with all the issues fully ventilated and
evidence presented before the decision was rendered.
In Samala, the last day for filing the notice of appeal fell on a Friday, October
13, 1995. The person to whom the filing of the notice was entrusted suffered
stomach pains and was able to file it only on the next business day which
was October 16, a Monday. We held that the delay was only for one day, as
Saturday and Sunday were excluded and, considering the facts of the case,
found the delay to be excusable.
In the case of herein petitioners, the payment of the docket fees was done
nine days after the lapse of the period to appeal. In fact, in the affidavit of
merit of petitioners' counsel attached to the petition for relief, he stated that
on October 15, 2003, which was the last day to appeal, he received a long
distance call from petitioner Cornelia who confirmed their desire to appeal
the decision.However counsel, instead of immediately paying the appeal fee,
waited for nine days before doing so.
Petitioners also allege that subsequent and substantial compliance with the
rule may call for the relaxation of the rules of procedure, citing our ruling in
Jaro v. Court of Appeals.[34]
We are not persuaded.
In Jaro, the CA dismissed the petition filed before it for being defective, as it
was not in the form of a petition for review and the annexes thereto attached
were certified as true xerox copies by counsel, not by the proper public official
who had custody of the records. Petitioner subsequently filed an amended
petition in the proper form accompanied by annexes, all of which were
certified true copies by the Department of Agriculture Regional Adjudication
Board. This Court ruled that there was more than substantial compliance,
and the hard stance taken by the CA was unjustified under the
circumstances. Notably, petitioner therein committed a lapse in the formal
requirement which was curable by amendment. In the present case,
however, petitioners failed to pay the appellate docket fees on time, which is
jurisdictional and which divests the trial court of jurisdiction to act on the
appeal. The payment of the appellate docket and other lawful fees is not a
mere technicality of law or procedure.[35] It is an essential requirement,
without which the decision or final order appealed from would become final
and executory, as if no appeal was filed at all.[36]
The failure of petitioners' counsel to perfect the appeal binds petitioners. It is
Page 272
settled that clients are bound by the mistakes, negligence and omission of
their counsel.[37] While, exceptionally, the client may be excused from the
failure of counsel, the factual circumstances in the present case do not give
LEGAL ETHICS
us sufficient reason to suspend the rules of the most mandatory
character. Petitioners themselves may not be said to be entirely faultless.
Atty. Ang, petitioners' counsel, claims that as soon as he received the
decision, he sent copies to petitioners. Records show that at that time, while
some of the petitioners were already abroad, Dominga and Tomasa were still
living in Cavite. Cornelia who lives abroad was able to receive a copy of the
decision and was able to make an overseas call to Atty. Ang to express her
desire to appeal the decision. However, neither Dominga nor Tomasa who
only live in Cavite, took steps to call Atty. Ang at the earliest possible time to
protect their interest. No prudent party would leave the fate of his case
completely to his lawyer.[38] It is the duty of the client to be in touch with his
counsel so as to be constantly posted about the case.[39] Thus, we find that
there was participatory negligence on the part of petitioners, which would not
relieve them of the consequence of the negligence of their counsel.
The Court may deign to veer away from the general rule only if, in its
assessment, the appeal on its face appears absolutely meritorious.[40]
Indeed, the Court has, in a number of instances, relaxed procedural rules in
order to serve and achieve substantial justice.[41] However, the instant
case does not warrant the desired relaxation. Respondent has sufficiently
shown that she was authorized in writing by petitioners to sell the subject
property; that respondent was instrumental in bringing about the meeting of
petitioner Olimpio and Tantiansu and the transaction concerning the sale of
subject property; and that it was proven by evidence that the buyer of the
subject property was Tantiansu. Thus, respondent is entitled to the broker's
commission as agreed upon between her and the petitioners. Petitioners'
claim that Tantiansu had explicitly bound himself to pay the broker's
commission after the consummation of the sale would not relieve petitioners
of their liability to respondent since, as correctly held by RTC, whatever
Tantiansu and petitioners agreed relative to the payment of broker's
commission is binding only upon themselves and not binding on respondent
who does not appear to have consented thereto.
Thus, we find no grave abuse of discretion committed by the RTC in denying
petitioners' petition for relief, since they were not prevented from filing their
notice of appeal and payment of docket fees by mistake or excusable
negligence that would have deprived them of their day in court. Such relief
under Rule 38, Section 2 of the Rules of Court will not be granted to a party
who seeks to be relieved from the effects of the judgment when the loss of
the remedy of law was due to his own negligence, or a mistaken mode of
procedure for that matter; otherwise, the petition for relief will be tantamount
to reviving the right of appeal which has already been lost, because of either
inexcusable negligence or counsels mistake in procedure.[42]
It bears stressing that appeal is not a right, but a mere statutory privilege.[43]
Corollary to this principle is that the appeal must be exercised strictly in
accordance with the provisions set by law.[44]
WHEREFORE, the petition for review is DENIED.
Cost against petitioners.
SO ORDERED.
SPS. ANTONIO and NORMA A.C. No. 4676
SORIANO,
Complainants, Present:
PANGANIBAN, C.J.
Chairperson,
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.
Promulgated:
ATTY. REYNALDO P.
REYES, May 4, 2006
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - -x
DECISION
PINEDAPCGRNMAN
CHICO-NAZARIO, J.:
For alleged gross negligence in handling two civil cases, a complaint[1] for
disbarment was filed by complainant spouses Antonio and Norma
Soriano against Atty. Reynaldo P. Reyes.
Complainants alleged that sometime in the latter part of 1990, they engaged
the services of respondent in a case they filed against Peninsula
Development Bank entitled,Norton Resources and Development
Corporation, et al. v. Peninsula Development Bank. The case was for
Declaration of Nullity with Injunction and/or Restraining Order before the
Regional Trial Court (RTC) of Davao City, Br. 13, docketed as Civil Case No.
20-465-90.[2] While the case was pending, respondent reassured
complainants that he was diligently attending to the case and will inform them
of the status of their case.
In 1994, complainants again engaged the services of respondent in a case
they filed against the Technology
and Livelihood Resource Center entitled, Spouses Antonio M.Soriano and
Norma Soriano v. Technology and Livelihood Resource Center for
Declaration of Nullity with Injunction and Temporary Restraining Order before
the RTC ofDavao City, Br. 16, docketed as Civil Case No. 22-674- 94.[3]
During the pendency of the second case, complainants inquired from
respondent the status of the earlier Civil Case No. 20-465-90, the latter
informed them that the same was still pending and/or ongoing.
Later, complainants learned that Civil Case No. 20-465-90 was dismissed[4]
on 16 December 1991 for failure of the respondent to file a pre- trial brief.
The dismissal reads:
On record is a pre-trial brief filed by defendant, thru counsel, Atty. Marlon
B. Llauder, and this morning a supplemental pre-trial brief was submitted by
defendants counsel. Atty. Reynaldo Reyes, counsel for the plaintiffs is
present in Court but he moved for a suspension of the pre-trial conference
this morning for the reason that plaintiffs are proposing to amicably settle this
case. Defendants counsel vehemently objected to the postponement of the
pre-trial conference and instead moved for a declaration of plaintiffs as non-
suited for the reason that up to this time, plaintiffs have not submitted their
pre-trial brief in violation of the Order of the Court, dated October 11, 1991,
wherein plaintiffs counsel was afforded five (5) days from said date within
which to submit to Court plaintiffs pre-trial brief.
The said motion is well-taken for the reason that the records failed to show
that plaintiffs filed pre-trial brief. They are thus, declared as non-suited.
This case is hereby ordered dismissed.[5] (Underscoring supplied.)
A motion[6] for reconsideration was filed but the same was denied in an Order
dated 27 April 1992.
As to Civil Case No. 22-674-94, complainants likewise found out that the
case was dismissed for failure to prosecute. The order reads:
The records show that summons with a copy of the complaint have been
served upon the defendant on May 11, 1994, but plaintiffs did not file the
necessary pleadings in order to prosecute the same.
IN VIEW HEREOF, for failure to prosecute this case is ordered DISMISSED.
Furnish copy of this order, Atty. Reynaldo P. Reyes, plaintiffs counsel and
defendants counsel, Atty. Francisco Figura.[7] (Underscoring supplied.)
Upon filing of a Motion for Reconsideration, though, the case was
reconsidered and reinstated[8] on 15 August 1995.
Claiming that the acts of respondent greatly prejudiced and damaged them,
complainants filed a Complaint for disbarment against respondent before this
Court.
Page 273
LEGAL ETHICS
On 20 October 1997, the Supreme Court referred[9] the case to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation or
decision.
In his Comment,[10] respondent admitted that he was hired by the
complainants in the case against the Peninsula Development Bank in the
latter part of 1990. He averred that Peninsula Development Bank foreclosed
the property of the complainants for failure to pay monetary obligations
amounting to several millions of pesos. He said that some of the properties
of the complainants were foreclosed in 1989, and the one-year redemption
period was to expire in the latter part of 1990. About one week before the
expiration of the redemption period, the complainants, through the
respondent, filed a case against the Peninsula Development Bank before the
RTC of Davao City, which was docketed as Civil Case No. 20-465-90. From
the time of the filing of the complaint up to the present, herein complainants
are in continuous possession of the already foreclosed properties, consisting
of a Ford Econovan and farm tractors. According to respondent,
complainants are still holding office in the real properties subject of the
foreclosure and a portion thereof is being rented by a big taxi company. He
disclosed that at the time he was hired in 1990, the agreement was that he
would be paid the amount of Three Hundred Thousand Pesos (P300,000.00)
as attorneys fees in five years. Respondent claimed that he assisted
complainants in applying for a loan to pay off their obligations with Peninsula
Development Bank but because of the numerous estafa cases filed against
complainants, said loans did not materialize. Respondent further claimed that
their agreed strategy was to arrange a settlement with regard to Civil Case
No. 20-465-90. Respondent said he later realized that the complainants had
no interest in paying their obligations to Peninsula Development Bank, and
his attorneys fees. Respondent added that they differed in opinion with regard
to the handling of the case and that complainants did not understand that the
filing of the case had already helped them gain time to negotiate with the bank
especially on the matter of interest incurred by their loans. Finally, respondent
concluded by saying that his attorneys fees, paid in meager installments,
remain outstanding and unpaid.
In their reply,[11] complainants refuted respondents allegation of the alleged
numerous estafa cases filed against them. Complainants averred that the
certification attached by respondent showing that there were estafa cases
filed against them has no bearing insofar as the disbarment case is
concerned. They likewise denied that respondent assisted them in their loan
application. They engaged the services of the respondent to prevent them
from losing their properties to the Peninsula Development Bank and for no
other reason. Finally, complainants maintained that respondent was paid his
attorneys fees.
As early as 27 June 2000, the case had already been scheduled for hearing
by Commissioner Agustine V. Gonzaga of the Commission on Bar Discipline.
On 18 January 2002, after several hearings, the Commission admitted the
documentary evidence offered as part of the testimony of complainants. On
1 March 2002, the day respondent was ordered to present his defense
evidence, he failed to appear. Counsel for the complainants moved that the
respondent be deemed to have waived his right to present his evidence for
failure to appear on scheduled hearing despite due notice. In the interest of
substantial justice, respondent was given a period of 10 days to comment on
the complainants motion and scheduled the case for hearing on 19 April
2002. Despite due notice, however, respondent again failed to appear, thus,
the Hearing Commissioner declared that respondent was considered to have
waived his right to present his defense evidence. The parties were given 20
days from 19 April 2002 to file their respective memoranda, after which the
case will be deemed submitted for resolution.
Only complainants filed a memorandum.
On 28 May 2003, Investigating Commissioner Milagros V. San Juan found
respondent negligent in handling the cases of complainants; hence, said
Investigating Commissioner recommended that he be disbarred. The
pertinent portions of the report read:
There is no question that the respondent was engaged by the complainants
as their counsel in two cases, namely Civil Case No. 20-465-90 and Civil
Case No. 22-674-94. The respondent accepted both cases by filing a case
PINEDAPCGRNMAN
of Nullity with Injunction and/or Restraining Order before the Regional Trial
Court Br. 13, Davao City, against Peninsula Development Bank and
againstLivelihood Resource Center for Declaration of Nullity with Injunction
and/or Temporary Restraining Order docketed as 22-674-94, Br. 16 RTC
Davao City. The failure and negligence of respondent in handling the
aforementioned cases is fully reflected in the Order of the Court re: Civil Case
No. 20-465-90 which reads:
On record is a pretrial brief filed by defendant thru counsel, Atty. Marlon
B. Llander and this morning a supplemental pretrial brief was submitted by
defendants counsel, Atty. Reynaldo Reyes, counsel for the plaintiff is present
in court but he moved for a suspension of the pretrial conference this morning
for the reason that plaintiffs are proposing to amicably settle this case.
Defendants counsel vehemently objected to the postponement of the pretrial
conference and instead moved for a declaration of plaintiffs as nonsuited for
the reason that up to this time, plaintiff have not submitted their pretrial brief
in violation of the Order of the Court, dated October 11, 1991 wherein
plaintiffs counsel was afforded five (5) days time from date within which to
submit to court plaintiffs pretrial brief.
The motion is well taken for the reason that the records failed to show that
plaintiffs filed pretrial brief. They are thus declared as nonsuited.
This case is hereby ordered dismissed. x x x Regarding Civil Case No. 22-
674-94, Regional Trial Court Br. 16, Davao City in the case filed against
Technology and Livelihood Resource Center the court issued an Order dated
May 5, 1995 which reads:
The record show that summons with a copy of the Complaint have been
served upon the defendant on May 11, 1994, but plaintiffs did not file the
necessary pleadings in order to prosecute the same.
In view hereof, for failure to prosecute this case is ordered Dismissed. x
x x The records show that the real status of the cases were kept from the
complainants by respondent. Despite the dismissal of both cases due to
respondents negligence and irresponsibility he continued receiving
compensation from complainants are evidenced by the receipts and
vouchers which respondent acknowledged with his signatures. (Exhibits F,
G, H, H-1 and I). Likewise, the respondent deceived the complainant by
giving them false hopes that everything was alright and there was no problem
regarding the cases.
All the foregoing show that there is clear violation of his oath as a lawyer
particularly Canon 17 and Canon 18 of the Code of Professional
Responsibility. Thus, it is submitted that Atty. Reynaldo P. Reyes be meted
the penalty of Disbarment.[12]
On 21 June 2003, the IBP Board of Governors adopted and approved[13] the
recommendation of the Investigating Commissioner.
In the interregnum, a Motion to Withdraw Testimony and Evidence[14] was
filed by complainant Norma B. Soriano before this Court, stating that:
1. That although the complainant in this case names the spouses
Antonio Soriano and Norma B. Soriano as the complainants, it is only
complainant Norma B. Soriano who has testified and presented evidence
during the hearing of this case due to the untimely demise of her husband,
complainant Antonio Soriano;
2. That subsequently to the undersigned complainants testimony
and presentation of evidence, she has come upon information and facts that
need to be reviewed and re-examine[d] in the highest interests of justice;
3. That before going into those information and facts that she
came to learn after she gave her testimony before this Honorable Board, it is
important to stress the following antecedent circumstances:
Page 274
(a) That it was undersigned complainants late husband who
conferred constantly with respondent Atty. Reynaldo P. Reyes;
LEGAL ETHICS
(b) That herein complainant was not present in a conference with
Atty. Reyes at the time his professional services were hired. So, it was only
the deceased complainant Antonio Soriano who was familiar with the scope
of professional engagement;
(c) That undersigned complainant did not participate in the
conference between her late husband and respondent counsel on the agreed
strategy because the late husband was the one actively managing the affairs
of the family. Moreover, herein complainant was not really knowledgeable of
the facts and details involved in the cases handled by respondent counsel;
(d) That for example, it was only later after her testimony that she
learned that respondent was also attending to and handling the other cases
of the late complainant AntonioSoriano, especially those cases filed in
Makati, Complainant herein had the mistaken impression that the
complainant-decedent had availed of the services of lawyers inMakati.
Hence, the fees that respondent Atty. Reyes received after the cases below
were for those cases in Makati;
(e) That it was a surprise for herein undersigned complainant to
also learn that respondent Atty. Reyes went out of his way to accompany her
late husband to a financier, who was an intimate friend of respondent, in
Quezon City for the purpose (sic) sourcing the necessary funds to pay off our
obligations to some creditors as the agreed strategy at the very start. Thus,
it appears that respondent counsel went out of his way to help the late
complainant Antonio Soriano solve his problems; and
(f) That I likewise subsequently learned that when respondent
counsel became a city councilor of Davao City, he did what he can to help
the late complainant AntonioSoriano have a council clearance over a parcel
of land that he was selling for a memorial park.
4. That the foregoing facts and information that herein
undersigned complainant learned after she gave her testimony seriously
prompts her to seek the withdrawal of her testimony and her evidence in
order that she can re-evaluate the same; and
5. That complainant herein is filing the instant motion in the
interests of truth and justice as it is farthest from her intention to have this
case resolved through an inadvertent presentation of facts that do not exactly
reflect the entirety of the story and the truth, no matter how innocently and in
good faith they were presented.[15]
The above quoted motion is tantamount to a withdrawal or desistance of the
complaint.
As we have previously ruled, the affidavit of withdrawal of the disbarment
case executed by a complainant does not automatically exonerate the
respondent.
A case of suspension or disbarment may proceed regardless of interest or
lack of interest of the complainant.[16] What matters is whether, on the basis
of the facts borne out by the record, the charge of negligence has been duly
proved. This rule is premised on the nature of disciplinary proceedings. A
proceeding for suspension or disbarment is not in any sense a civil action
where the complainant is a plaintiff and the respondent lawyer is a defendant.
Disciplinary proceedings involve no private interest and afford no redress for
private grievance. They are undertaken and prosecuted solely for the public
welfare. They are undertaken for the purpose of preserving courts of justice
from the official ministration of persons unfit to practice in them. The attorney
is called to answer to the court for his conduct as an officer of the court. The
complainant or the person who called the attention of the court to the
attorneys alleged misconduct is in no sense a party, and has generally no
interest in the outcome except as all good citizens may have in the proper
administration of justice. Hence, if the evidence on record warrants, the
respondent may be suspended or disbarred despite the desistance of
complainant or his withdrawal of the charges.[17] Accordingly, notwithstanding
PINEDAPCGRNMAN
the motion to withdraw evidence and testimony, the disbarment proceeding
should proceed.
Looking into the merits of the complaint against respondent, we decide to
modify the findings of the IBP.
As to Civil Case No. 20-465-90, records show that it was dismissed for failure
of respondent to file the pre-trial brief.
Respondents failure to file the pre-trial brief constitutes inexcusable
negligence.[18] The importance of filing a pre-trial brief cannot be gainsaid. For
one, the lawyers are compelled to prepare their cases in advance. They
eliminate haphazard preparation. Since pre-trial is a serious business of the
court, preparation of the lawyers and parties for the pre-trial in both questions
of fact and of law cannot be overemphasized as an essential requirement for
a pre-trial conference. They enable both parties to view the documentary
evidence of the other even before they are presented in court. They enable
the parties to know the testimonies of each others witnesses. Pre-trial briefs
also apprise the courts of the additional points the parties are willing to
stipulate upon, or the additional points which could be inquired into for the
purpose of additional stipulations. They also apprise the court of the
respective demands of the parties, thus, enabling the court to discuss more
intelligently an amicable settlement between or among the parties.[19] The
failure to submit a pre-trial brief could very well, then, be fatal to the case of
the client as in fact it is a ground for dismissal of the case. [20] For this reason,
respondents failure to submit the pre-trial brief to the court within the given
period constitutes negligence which entails disciplinary action. Not only is it
a dereliction of duty to his client but to the court as well. Hence, this Court, in
Spouses Galen v. Atty. Paguirigan,[21] explained:
An attorney is bound to protect his clients interest to the best of his ability and
with utmost diligence. A failure to file brief for his client certainly constitutes
inexcusable negligence on his part. The respondent has indeed committed a
serious lapse in the duty owed by him to his client as well as to the Court not
to delay litigation and to aid in the speedy administration of justice.
In this case, respondent did not only fail to file the pre-trial brief within the
given period. Worse, he had not submitted the required pre-trial brief even at
the time he filed a motion for reconsideration of the order of dismissal several
months later. Expectedly, the motion for reconsideration was denied by the
court. Respondents negligence is apparent in the trial courts denial of the
motion for reconsideration, to wit:
The court, in the exercise of sound discretion, afforded the plaintiffs who were
then present, five (5) days from October 11, 1991, within which to submit to
the Court plaintiff pre-trial brief, but despite the order, and until December 16,
1991, a period of more than two (2) months has elapsed, yet herein plaintiffs
still failed to file or submit the required pre-trial brief, which to the mind of this
Court, is an obstinate refusal on the part of the plaintiffs to file said pre-trial
brief, despite counsels knowledge of the importance of the same.
The plaintiffs, even in the filing of their Motion for reconsideration did not even
care to attach pre-trial brief if indeed they are sincere in their intention to do
so.
Clearly, respondent was not able to protect his clients interest through his
own fault.
A lawyer is expected to be familiar with the rudiments of law and procedure
and anyone who acquires his service is entitled to, not just competent
service, but also whole-hearted devotion to his clients cause. It is the duty of
a lawyer to serve his client with competence and diligence and he should
exert his best efforts to protect, within the bounds of law, the interest of his
client. A lawyer should never neglect a legal matter entrusted to him,
otherwise his negligence in fulfilling his duty will render him liable for
disciplinary action.[22]
Page 275
Canon 18, Rule 18.03 of the Code of Professional Responsibility provides
that a lawyer shall not neglect a legal matter entrusted to him and his
negligence in connection therewith shall render him liable. In this case, by
LEGAL ETHICS PINEDAPCGRNMAN
reason of Atty. Reyess negligence, complainant suffered actual loss. He
should have given adequate attention, care and time to his cases. This is why
a practicing lawyer may accept only so many cases that he can efficiently
handle. Otherwise, his clients will be prejudiced. Once he agrees to handle a
case, he should undertake the task with dedication and care. If he should do
any less, then he is not true to his lawyers oath.[23]

Respondents excuse that complainants, from the time of filing of the

complaint up to the time of filing his comment, were in continuous possession
of the foreclosed property is flimsy. It only shows the cavalier attitude which
respondent took towards his clients cause.

Anent Civil Case No. 22-624-94, the case was indeed dismissed for failure
to prosecute although the said dismissal was later on reconsidered.
However, this does not detract to the conclusion that, truly, respondent failed
to demonstrate the required diligence in handling the case of
complainants.[24]

Quite apart from the above, respondent also lacked candor in dealing with
his clients as he omitted to apprise complainants of the status of the two
cases and even assured the complainants that he was diligently attending to
said cases.[25]

In Garcia v. Atty. Manuel,[26] this Court found therein respondent lawyer in

bad faith for failing to inform his client of the status of the case. In said
decision, the court has adamantly stressed that the lawyer-client relationship
is highly fiduciary.[27] There is always a need for the client to receive from the
lawyer periodic and full updates on developments affecting the case. The
lawyer should apprise the client on the mode and manner that the lawyer is
utilizing to defend the clients interests.[28]

In failing to inform his clients of the status of their cases, respondent failed to
exercise such skill, care, and diligence as men of the legal profession
commonly possess and exercise in such manners of professional
employment.[29]

Time and again we have stated that disbarment is the most severe form of
disciplinary sanction, and, as such, the power to disbar must always be
exercised with great caution for only the most imperative reasons and in clear
cases of misconduct affecting the standing and moral character of the lawyer
as an officer of the court and a member of the bar. Accordingly, disbarment
should not be decreed where any punishment less severe such as a
reprimand, suspension, or fine would accomplish the end desired.[30]

The appropriate penalty on an errant lawyer depends on the exercise of

sound judicial discretion based on the surrounding facts. The penalties for a
lawyers failure to file the required brief or pleading range from reprimand,
warning with fine, suspension and in grave cases, disbarment. In one case,[31]
the penalty for a lawyers failure to file a pre-trial brief and other pleadings
such as position papers leading to the dismissal of the case, is suspension
of six months. Therefore, we find the penalty of disbarment as recommended
by the IBP to be unduly harsh and we deem it appropriate to impose the
penalty of one (1) year suspension, taking into account that this appears to
be his first offense.

WHEREFORE, in view of the foregoing, respondent Atty. Reynaldo Reyes is

found GUILTY of violating Canons 17 and 18 of the Code
of Professional Responsibility and is SUSPENDED from the practice of law
for one (1) year effective upon finality hereof with WARNING that a repetition
of the same negligent act charged in this complaint will be dealt with more
severely.

Let copies of this Decision be furnished the Office of the Bar Confidant, to be
appended to respondents personal records as attorney; the
Page 276
LEGAL ETHICS
Integrated Bar of the Philippines; and all courts of the country for their
information and guidance.
SO ORDERED.
OFELIA R. SOMOSOT, A.C. No. 7024
Complainant,
Present:
QUISUMBING, J., Chairperson,
CORONA,*
- versus - CARPIO MORALES,
TINGA, and
BRION, JJ.
ATTY. GERARDO F. LARA, Promulgated:
Respondent.
January 30, 2009
x ----------------------------------------------------------------------------------------- x
DECISION
BRION, J.:
Once again, we are faced in this complaint for disbarment with the problem
of a client-lawyer relationship developing into a legal action between the
lawyer and the client.[1] The complaining client is Ofelia R. Somosot
(complainant), a defendant in a collection case before the trial court; her
defense was handled by Atty. Gerardo F. Lara (respondent).[2]
The Factual Background
In support of her complaint for disbarment, the complainant alleged that she
retained the services of the respondent as her counsel in Civil Case No. Q01-
43544, entitledGolden Collection Marketing Corporation v. Ofelia Somosot,
et al., filed against her and her co-defendants for the collection of a sum of
money amounting to P1.3 Million. Her defense was that it was the plaintiff
who actually owed her P800,000.00. She claimed that she had the evidence
to prove this defense at the trial. The respondent agreed to handle the case
and duly entered his appearance as counsel after securing his acceptance
fee.
The complainant expected the respondent to perform his duty as counsel and
to defend her interests to the utmost. She alleged, however, that after filing
the Answer to the Complaint, the respondent failed to fully inform her of
further developments in the case. She only heard about the case when there
was already a decision against her and her co-defendants. She even
belatedly learned that the respondent had sought his discharge as counsel
without her knowledge and consent. Contrary to the respondent's claim that
he could no longer locate her, she claimed that the respondent knew all along
where she lived and could have easily contacted her had he been in good
faith.
After the court denied the respondent's motion to withdraw from the case, the
complainant claimed that the respondent represented her interests in a half-
hearted manner, resulting in the grant of the plaintiff's motion for judgment
on the pleadings. Allegedly, the respondent failed to properly oppose the
motion and she was thereafter deprived of the chance to present her
evidence. Execution of the courts decision followed, resulting in the sale of
her house and lot at public auction despite her efforts to reverse the judgment
with the help of another lawyer. Thereafter, a third party to whom her property
had been mortgaged sued her.
The complainant bewailed the respondent's evasive attitude when she
confronted him about her problem with his representation. She found the
respondents excuse that he could not contact her because she had changed
her office address to be unsatisfactory. She accused the respondent of
PINEDAPCGRNMAN
miserably failing to comply with his oath as a lawyer and to discharge his duty
of ably representing her.
In his comment,[3] the respondent denied that he failed to exercise the
diligence required of him as counsel in Civil Case No. Q01-43544. He argued
that pursuant to his oath as counsel, he pursued the complainant's case
according to his own ability and knowledge. He alleged that:[4]
1. He filed the complainant's Answer with Counterclaim on July 16, 2001.
He presented all the complainants defenses and claims, but the plaintiff,
Golden Collection Marketing Corporation, filed for interrogatories and request
for admission. He filed an objection to the plaintiff's motion on the ground that
the interrogatories and request for admission are, by law, properly addressed
to the complainant herself and not to him as counsel.
2. He filed a reply to the plaintiff's comment (on his objection) and the case
proceeded despite the complainants failure to pay his billing from May 3,
2001 to August 2, 2001 amounting to P27,000.00
3. On November 1, 2001, he joined the government service as consultant
in the Board of Investments and full-time counsel to BOI Gov. J. Antonio
Leviste. He tried to inform the complainant of his appointment and to collect
his billings at her office in Greenhills, but the office was locked. A security
guard told him that the complainant had moved without leaving any
forwarding address. He even tried to contact complainant and her husband's
cellular phones, to no avail.
4. Desperate, he filed a notice of withdrawal of appearance with the
explanation that the conformity of the complainant could not be obtained
since the complainant's corporation had moved its office without informing
him of its new location, and the complainant had not been communicating
with him.[5] He later learned that the complainant had moved to Pasig City.
5. In late December 2001, he was able to talk with the complainant by
phone and he informed her that he could no longer handle cases for the
complainant's company, thereby terminating his relationship with
complainant. He advised the complainant to look for another lawyer; the
complainant replied that she already had another lawyer.
6. Despite his situation and aware that the court had denied his motion to
withdraw from the case, the respondent continued rendering legal services
as the complainant's counsel. He filed a motion for reconsideration of the
Court's decision dated June 3, 2002. He likewise filed an urgent opposition
to the winning partys motion for execution.
7. On September 2, 2005, he received a letter from the complainant giving
him one final opportunity to convince me, why she should not pursue
disbarment proceedings.He promptly prepared a reply which, upon her
suggestion, he delivered at the complainant's residence.
8. He thought that he had given the complainant a satisfactory explanation
only to learn later that she filed a complaint for disbarment against him.
9. The respondent expressed his regret for what happened to the case,
but stressed that he did not abandon the complainant and the cases he had
been handling for her company. He did not likewise neglect to perform his
duties as counsel. On the insinuation that he may have been bought, he
emphasized he that cannot and will never abandon a client as a Christian
lawyer and a family man.
In a Resolution dated July 17, 2006, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation. The complainant filed a Position Paper (dated January 12,
2007) before the IBP Commission on Bar Discipline through her counsel
Honorato V. Reyes, Jr.[6] She reiterated in this position paper the allegations
in her complaint. She could not understand how a simple collection case
against her where she felt she had a good defense and which she expected
Page 277
to go through a full-blown litigation could be lost virtually through a mere
technicality, i.e., through a judgment on the pleadings for her failure to answer
the plaintiffs interrogatories and request for admission. She insisted
LEGAL ETHICS
she had not been informed by the respondent of the plaintiff's motion for
written interrogatories and request for admission. Had he informed her, she
could have responded.
The complainant was even more surprised to learn that the respondent tried
to withdraw from the case because she (the complainant) could not be
contacted. She maintained that she had never transferred her residence
where she could be reached had the respondent exerted a meaningful effort
to contact her. She claimed that the respondent was able to do so later when
he was collecting the balance of his legal fees. She denied that she had not
paid respondent his retainer fees.
The complainant stressed that the respondent violated his oath as a lawyer
by mishandling her case, resulting in the loss of her house and lot and other
damages.
The respondents Position Paper (dated January 3, 2007) essentially
reflected the arguments presented in his Comment before this Court.[7] He
clarified that the complainant did not incur extra expenses in defending
herself in the collection case since its handling was part of the services
covered by his retainer. He insisted that he vigorously pursued the case and
defended the complainant to the utmost despite the complainants unpaid
billings of P27,000.00.
The respondent contended that he had good reasons not to continue as the
complainant's counsel. He reasoned out that under the Code of Professional
Responsibility, a lawyer may withdraw from a case upon a good cause such
as when the client deliberately fails to pay the fees for the lawyers services,
or fails to comply with the terms of the retainer agreement, or when the lawyer
is elected or appointed to public office.[8] Two of these possible causes
applied to his situation; he was appointed legal consultant at the BOI
requiring full-time work and the complainant had failed to pay his legal fees
to him amounting to P27,000.00. He filed the formal notice of withdrawal
without the conformity of the complainant because he could not locate her.
The respondent insinuated that that the complainant's real intent was merely
to harass him and his family as indicated by her non-appearance, despite
due notice, at the preliminary conference before the IBP. He argued that he
could not be disbarred considering that it was the complainant who was
negligent in informing him of her whereabouts.While he expressed regret for
what happened in the case, he insisted that he exerted every effort to locate
her, filed the necessary pleadings, protected her and her company's interest
as best as he could.
The IBP Recommendation
In a letter to the Chief Justice dated January 28, 2007, the IBP Board of
Governors, through the IBP Commission on Bar Discipline, transmitted to the
Court a Notice of Resolution[9] and the records of the case. The resolution
was for the adoption and approval of the Report and Recommendation of
Commissioner Rico A. Limpingco who had investigated the case. [10]
Commissioner Limpingco recommended that respondent be reprimanded for
lack of reasonable diligence in representing the complainant.
His recommendation was based on the following evaluation:
It appears that the respondent was to some degree, remiss in fulfilling his
duties to complainant Somosot. While it may be true that he had filed an
answer in Civil Case No. Q01-43544, objected to the plaintiff's interrogatories
and requests for admission, asked for reconsideration of the decision
rendered by the court and opposed the adverse party's efforts to have the
same executed, it can nevertheless be seen that the remedial measures
taken by the respondent were inadequate, especially in view of the direction
which the proceedings were taking.
The respondent is not incorrect in saying that a lawyer may be relieved of his
duties even without the conformity of his client when he lost all contact with
the latter, and the complainant's failure to settle his unpaid fees is not
received without sympathy. The fact remains,however, that the respondent's
efforts to be discharged as counsel were disallowed by the court, under the
circumstances, he was bound by his oath to represent complainant Somosot
and to advocate her cause to the best of his ability.
PINEDAPCGRNMAN
The respondent claims that in late December 2001, he was finally able to talk
to complainant Somosot and was told that she already had another lawyer
by the name of Atty. Tomas Dulay.Considering his stated desire to withdraw
from the case and his own declaration that he had again come into the means
of contacting the complainant, it is thus entirely puzzling why he did not at
this point, revive his efforts to be relieved of his responsibilities in Civil Case
No. Q02-43544 given complainant Somosot's alleged engagement of Atty.
Tomas Dulay and her presumed willingness to give her consent to such
discharge. As it is, respondent Atty. Lara remained as counsel of record and
for some undisclosed reason did not appeal the decision against his client.
This is not to say that the client is entirely without fault. While complainant
Ofelia Somosot's narrative is in many respects at odds with that of the
respondent, it is nevertheless clear from her submissions that she never
made any effort to contact the respondent to follow up the status of the case,
but instead expected the latter to take complete initiative in this regard.
It has been held that it is the duty of a party-litigant to remain in contact with
his lawyer in order to be informed of the progress of his case. True enough,
the party-litigant should not rely totally on his counsel to litigate his case even
if the latter expressly assures that the former's presence in court will no longer
be needed. No prudent party will leave the fate of his case entirely to his
lawyer. Absence in one or two hearings may be negligible but want of inquiry
or update on the status of his case for several months (four, in this case) is
inexcusable. It is the duty of a party-litigant to be in contact with his counsel
from time to time in order to be informed of the progress of his case. Thus the
complainant did not do, and such circumstance can only mitigate in
respondent's favor.
The Court's Ruling
As the IBP did, we find that the respondent deserves to be sanctioned for
having fallen short of the standards required of him as defense counsel in
Civil Case No. Q01-43544. He violated the basic rule, expressed under
Canon 18 of the Code of Professional Responsibility,[11] that a lawyer shall
serve his client with competence and diligence.[12]
While it may be said that the respondent did not completely abandon the
case, his handing of the complainants defense left much to be desired.
The records show that the plaintiff in the collection case filed interrogatories
and a request for admission. The respondent duly filed his objection to the
plaintiffs move, but the court apparently allowed the interrogatories and
request for admission and directed the complainant (as the defendant in the
civil case) to respond. The complainant was never informed of this
development and the omission eventually led to the grant of the plaintiffs
motion for judgment on the pleadings, which in turn led to the decision against
the defendants.[13]
In his submissions before this Court and before the IBP, the respondent
alleged that he objected to the interrogatories and request for admission and
did all he could, even filing a reply to the defendants comment to his
objection. He likewise alleged that from May 3, 2001 to August 2, 2001, the
complainant had not paid the billings sent to her; that the complainant could
not be contacted because she had closed her office without any forwarding
address;[14] that as of November 1, 2001, he had been appointed as a
consultant in the office of BOI Governor J. Antonio Leviste; and that he
continued to represent the complainant even after the trial courts decision by
filing a motion for reconsideration and opposing the plaintiffs motion for
execution.[15]
After examining the whole record of the case, we find the respondent's
positions to be very revealing with respect to what they say and do not say.
First, the respondent failed to precisely allege in his submissions how he tried
to contact the defendant on or about the time the interrogatories and request
for admission were pending. It appears that he really had not; by his own
admission, his attempt to contact the complainant came in December 2001
and only to inform her of his government appointment and to collect his
Page 278
billings. It was only after the discovery of the closure of the defendants office
did the respondent try to contact the complainant and her husband by cellular
phone, but they could not be reached.
LEGAL ETHICS
Second. The interrogatories/admission issue happened in August 2001,
which tells us that the respondent at about that time was already very
sensitive about his billing issue against his client as he had not been paid
from May to August 2001. Assuming the non-payment to be true, such failure
should not be a reason not to inform the client of an important development,
or worse, to withhold vital information from her. As the court held in Luisito
Balatbat v. Atty. Edgardo Arias,[16] a client must never be left in the dark for
to do so would destroy the trust, faith and confidence reposed in the retained
lawyer in particular and the legal profession in general.
Third. The respondent failed to provide details on the developments that led
to the adverse rulings on the interrogatories/admissions and the judgment on
the pleadings. We gather under Annex G of the respondents Comment filed
with this Court that the trial court ruled in open court on March 8, 2002 that a
judgment on the pleadings was appropriate. This was confirmed by an Order
of the same date (attached as Annex B to the complainants Position Paper
before the IBP) which partly states;
The Court NOTES the manifestation of Atty. Honorato M. Guttierez, counsel
for the plaintiff that the defendants have not been appearing in the case
for one (1) year as perDecember 14, 2001 Order of this Court. The Court
even denied the Notice of Withdrawal of Appearance of Atty. Lara, counsel
for the defendants, with the end purpose of obviating the further delays of the
proceedings of this case. Moreover, in the said Order, this Court ruled that
the Rule on judgment on the pleading under Rule 34 of the Rules of
Court will now obtain.
The respondent never bothered to explain this court order whose highlighted
portions give hints on the reasons for the adverse developments for the
defendants. While the records do not explicitly state what remedies the
respondent took to react to the Order and to the trial court ruling on the
interrogatories/admission issue, we feel it safe to assume that the respondent
did not move at all to question the trial courts rulings; nowhere in the records,
both from the complainants and the respondents end, is there any allegation
that the respondent sought to review the trial courts rulings. What intrigues
us is that the respondent could have reacted to the trial court's ruling on the
interrogatories/request for admission; he was aware of the recourses open
to him under the ruling in Briboneria v. Court of Appeals, G.R. 101682,
December 4, 1992, that he cited in his objection to the interrogatories and
request for admission.
Fourth, on the matter of the respondents withdrawal from the case, the
respondent might have had valid reasons to withdraw and terminate his
relationship with his client. As the respondent now states, he could withdraw
under paragraphs (e) and (f) of the Code of Professional Responsibility[17] -
i.e., deliberate failure of the client to pay the fees for the services, or failure
to comply with the retainer agreement, or appointment or election to public
office. However, he does not appear to have cited these reasons before the
trial court. Instead, he merely filed a Notice of Withdrawal of Appearance,
citing his clients unknown location and failure to communicate as reasons for
his clients lack of express consent to his withdrawal.[18] It is undisputed that
the trial court denied the respondent's notice of withdrawal; thus, he remained
as counsel of record burdened with all the responsibilities that his
representation carried.
By his own admission, the respondent succeeded in contacting the
complainant in late December, 2001, i.e., soon after he filed his notice of
withdrawal with the trial court. As Commissioner Limpingco observed, it was
quite puzzling that he did not then revive his efforts to be relieved of his
responsibilities in the case, given the complainant's reported engagement of
a new counsel. He could have then secured his clients consent to his
withdrawal but did not.
Fifth. As Commissioner Limpingco did, we wonder why the respondent did
not appeal the decision against his client. It even appears from one of the
annexes (Annex I of the respondents comment) that he did not immediately
inform the complainant of the decision against her. To quote the
complainants letter (Annex I):
However, for reasons you have not fully explained, you virtually
abandoned the case and interest therein after having initially filed an answer
in my behalf.
PINEDAPCGRNMAN
You never informed me of any further developments in the case. As a result,
I lost the said case by reason of default and technicality.
You never informed me of this loss, thus denying me the opportunity to
appeal the adverse decision. . .
The respondent never bothered to refuse this very damaging allegation;
neither in his Position Paper before the IBP nor in the Comment filed with us
did he offer an explanation.Thus, it appears that the respondent could not
have really taken any instructions from his client on how to handle the trial
courts adverse decision. He simply took it upon himself to decide not to appeal
the trial courts decision and the denial of his motion for reconsideration.
While the respondent expressed regret for the reverses the complainant
suffered, regret is a belated response that will not bring back the
complainants lost case. It cannot erase the fact that he mishandled the
complainants defense. By the exacting standards of the legal profession, he
has been weighed and found wanting.
What lightens the impact of the respondents mishandling of the case is the
complainants own failings as a client. The non-payment of fees is a factor
that we cannot simply disregard. As a rule, law practice is not a pro bono
proposition and a lawyers sensitivity and concern for unpaid fees are
understandable; lawyers incur expenses in running their practice and
generally depend, too, on their law practice income for their living expenses.
Likewise, the respondents appointment as a consultant should be considered
although it is a matter that none of the parties have fully examined. Both the
non-payment of fees and the appoint to a public office, however, were not
reasons properly presented before the trial court through a motion that
informed the court of all the surrounding circumstances of the desired
withdrawal. Instead, another reason was given by way of a mere notice
lacking the clients express consent. Thus, the courts denial of the desired
withdrawal was not totally unexpected.
More than these reasons and as Commissioner Limpingco correctly noted,
the complainant never made any effort to contact the respondent to follow up
the status of her case, expecting instead the respondent to take full and
complete initiative in this regard. While the respondent, as counsel, has the
obligation to inform his client of the material developments in the case,
particularly of the aspects of the case that would require the clients
instructions or participation, this obligation is balanced by a complementary
duty on the part of a party-litigant to remain in contact with his lawyer in order
to be informed of the progress of the case.
The complainants failing in this regard is her failure to inform her counsel of
her change of business address, a serious lapse but one that a resourceful
counsel could have easily handled. In a balancing, the greater fault still lies
with the respondent as he did not appear, based on the records of the case,
to be a lawyer whose practice routine included regular reporting to clients on
matters other than billings. We note that he did not bother to report (or even
allege that he bothered to report) on the interrogatories and request for
admission incidents that can make or break a case as it did break the
defendants case before the trial court. Despite knowledge of his clients
location gained in late December 2001, he did not likewise bother to inform
the complainant of the adverse decision against her in June 2002, taking it
upon himself to simply file a motion for reconsideration and to accept the
courts ruling when his motion was denied. In our view, these are law practice
mortal sins that we cannot allow to simply be glossed over or be penalized
by a simple reprimand.
However, we cannot also disbar the respondent as the complainant demands
in light of the complainants own contributory faults. Disbarment is an ultimate
remedy in the professional world, no less serious and weighty as the power
to impose reclusion perpetua in criminal cases; in both, recovery from the
penalty although not totally impossible is extremely difficult to attain. Thus,
we must at all times act with caution and due consideration, taking into
Page 279
account not only the interests of the immediate parties, but the interest of the
public, the bar and the administration of justice as well.
LEGAL ETHICS
The general public must know that the legal profession is a closely regulated
profession where transgressions merit swift but commensurate penalties; it
is a profession that they can trust because we guard our ranks and our
standards well. The Bar must sit up and take notice of what happened in this
case to be able to guard against any repetition of the respondents
transgressions, particularly his failure to report the developments of an
ongoing case to his clients. Unless the Bar takes a pro-active stance, we
cannot really blame members of the public who are not very well disposed
towards, and who may even distrust, the legal profession after hearing
experiences similar to what the complainant suffered. The administration of
justice is served well when we demonstrate that effective remedies exist to
address the injustice and inequities that may result from transgressions by
those acting in the dispensation of justice process.
In these lights, we hold that while the respondent is liable for a clear case of
misconduct that seriously affects his standing and character as an officer of
the Court and as a member of the Bar, this liability ought to be tempered by
the mitigating circumstances we pointed out above. We therefore cannot
impose disbarment as penalty. Given the mitigating circumstances and the
extent of their effects on the respondents culpability, we hold that a three-
month suspension from the practice of law is the penalty that is more in
keeping with the damage the complainant suffered and the interests that the
public, the bar and the administration of justice have to protect.
WHEREFORE, premises considered, respondent ATTY. GERARDO F.
LARA is hereby SUSPENDED from the practice of law for a period of three
(3) months, effective upon receipt of a copy of this Decision.
SO ORDERED.
CANON 19 – A lawyer shall represent his client with zeal within the
bounds of the law.
SAMBAJON et al vs Atty Suing (SUPRA)
Rule 19.01 – A lawyer shall employ only fair and honest means to attain
the lawful objectives of his client and shall not present, participate in
presenting or threaten to present unfounded criminal charges to obtain
an improper advantage in any case or proceeding.
ROC RULE 138 sec 20 (d) To employ, for the purpose of maintaining the
causes confided to him, such means only as are consistent with truth
and honor, and never seek to mislead the judge or any judicial officer
by an artifice or false statement of fact or law;
FERNANDO MARTIN O. PENA, A.C. No. 7298
Complainant, [Formerly CBD Case No. 05-1565]
Present:
- versus - QUISUMBING, J.,
Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
ATTY. LOLITO G. APARICIO, VELASCO, JR., JJ.
Respondent.
Promulgated:
June 25, 2007
x ---------------------------------------------------------------------------- x
RESOLUTION
TINGA, J.:
PINEDAPCGRNMAN
In this administrative complaint, a lawyer is charged with violation of Rule
19.01 of Canon 19 of the Code of Professional Responsibility for writing a
demand letter the contents of which threatened complainant with the filing of
criminal cases for tax evasion and falsification of documents.
Atty. Lolito G. Aparicio (respondent) appeared as legal counsel for Grace C.
Hufana in an illegal dismissal case before the National Labor Relations
Commission (NLRC). Sometime in August 2005, complainant Fernando
Martin O. Pena, as President of MOF Company, Inc. (Subic), received a
notice from the Conciliation and Mediation Center of the NLRC for a
mediation/conciliation conference. In the conference, respondent, in behalf
of his client, submitted a claim for separation pay arising from her alleged
illegal dismissal. Complainant rejected the claim as being baseless.
Complainant thereafter sent notices to Hufana for the latter to explain her
absences and to return to work. In reply to this return to work notice,
respondent wrote a letter to complainant reiterating his clients claim for
separation pay. The letter also contained the following threat to the company:
BUT if these are not paid on August 10, 2005, we will be constrained to file
and claim bigger amounts including moral damages to the tune of millions
under established precedence of cases and laws. In addition to other multiple
charges like:
1. Tax evasion by the millions of pesos of income not reported to the
government.
2. Criminal Charges for Tax Evasion
3. Criminal Charges for Falsification of Documents
4. Cancellation of business license to operate due to violations of laws.
These are reserved for future actions in case of failure to pay the above
amounts as settlements in the National Labor Relations Commission
(NLRC).[1]
Believing that the contents of the letter deviated from accepted ethical
standards, complainant filed an administrative complaint[2] with the
Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP).
Respondent filed an Answer with Impleader (Motion to Dismiss and
Counterclaims)[3] claiming that Atty. Emmanuel A. Jocson, complainants legal
counsel, also played an important part in imputing the malicious, defamatory,
and fabricated charges against him. Respondent also pointed out that the
complaint had no certification against forum shopping and was motivated
only to confuse the issues then pending before the Labor Arbiter. By way of
counterclaim, respondent asked for damages and for the disbarment of Atty.
Jocson. Respondent also asked the IBP to endorse the prosecution of Atty.
Jocson for Usurpation of Public Functions[4] and for violation of the Notarial
Law.[5]
A mandatory conference was held on 6 December 2005 but respondent
failed to appear.[6] Both parties were thereafter required to submit their
position papers.
The Report and Recommendation[7] of Investigating Commissioner Milagros
V. San Juan found that complainant, failed to file his position paper and to
comply with Administrative Circular No. 04-94 requiring a certificate against
forum shopping and, accordingly, recommended the dismissal of the
complaint against respondent. On 26 May 2006, the IBP Board of Governors
adopted and approved the Report and Recommendation of the Investigating
Commissioner.[8] On 10 July 2006, the IBP Commission on Bar Discipline
transmitted to the Supreme Court the notice of said Resolution and the
records of the case.[9] Thereafter, on 18 August 2006, respondent filed with
the IBP a Motion for Reconsideration (for Modification of Decision)[10]
reiterating his claim of damages against complainant in the amount of four
hundred million pesos (P400,000,000.00), or its equivalent in dollars, for filing
the false, malicious, defamers [sic], fraudulent, illegal fabricators [sic],
malevolent[,] oppressive, evasive filing [of] a groundless and false suit.[11]
Page 280
LEGAL ETHICS
Complainant thereafter filed this Petition for Review (of the Resolution of the
IBP Commission on Bar Discipline)[12] alleging that he personally submitted
and filed with the IBP his position paper, after serving a copy thereof on
respondent by registered mail. He further alleges that he was deprived of his
right to due process when the IBP dismissed his complaint without
considering his position paper and without ruling on the merits thereof.
Complainant accordingly prays for the reversal and setting aside of the 26
May 2006 Resolution[13] of the IBP Board of Governors and the remand of the
case to the IBP Commission on Bar Discipline for proper adjudication and
disposition on the merits.
Based on the records, there is truth to complainants assertion that he filed
his position paper on 21 December 2005, after serving a copy of the same to
respondent. The IBP stamp on the front page of said document shows that it
was received by the IBP on 21 December 2005. The registry receipt attached
to the same document also shows that it was sent by registered mail to
respondent on the same date. [14]
Complainant, however, omitted to offer any explanation in his petition before
this Court for his failure to attach a certification against forum shopping in his
complaint against respondent.
The requirement of a certification against forum shopping was originally
required by Circular No. 28-91, dated 8 February 1994, issued by this Court
for every petition filed with the Court or the Court of Appeals. Administrative
Circular No. 04-94, made effective on 1 April 1994, expanded the certification
requirement to include cases filed in courts and quasi-judicial agencies below
this Court and the Court of Appeals. Ultimately, the Court adopted
paragraphs (1) and (2) of Administrative Circular No. 04- 94
tobecome Section 5, Rule 7 of the 1997 Rules of Civil Procedure.[15] Said rule
states that a violation thereof would constitute contempt of court and be
cause for the summary dismissal of both petitions without prejudice to the
taking of appropriate action against the counsel of the party concerned.[16]
PINEDAPCGRNMAN
proceedings against the same respondent, because such other proceedings
or action is one that necessarily involves the same issues as the one posed
in the disbarment complaint to which the certification is supposedly to be
attached.
Further, the rationale for the requirement of a certification against forum
shopping is to apprise the Court of the pendency of another action or claim
involving the same issues in another court, tribunal or quasi-judicial agency,
and thereby precisely avoid the forum shopping situation. Filing multiple
petitions or complaints constitutes abuse of court processes,[19] which tends
to degrade the administration of justice, wreaks havoc upon orderly judicial
procedure, and adds to the congestion of the heavily burdened dockets of
the courts.[20] Furthermore, the rule proscribing forum shopping seeks to
promote candor and transparency among lawyers and their clients in the
pursuit of their cases before the courts to promote the orderly administration
of justice, prevent undue inconvenience upon the other party, and save the
precious time of the courts. It also aims to prevent the embarrassing situation
of two or more courts or agencies rendering conflicting resolutions or
decisions upon the same issue.[21]
It is in this light that we take a further look at the necessity of attaching a
certification against forum shopping to a disbarment complaint. It would seem
that the scenario sought to be avoided, i.e., the filing of multiple suits and the
possibility of conflicting decisions, rarely happens in disbarment complaints
considering that said proceedings are either taken by the Supreme Court
motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified
complaint of any person.[22] Thus, if the complainant in a disbarment case
fails to attach a certification against forum shopping, the pendency of another
disciplinary action against the same respondent may still be ascertained with
ease. We have previously held that the rule requiring a certification of forum
shopping to accompany every initiatory pleading, should not be interpreted
with such absolute literalness as to subvert its own ultimate and legitimate
objective or the goal of all rules of procedurewhich is to achieve substantial
justice as expeditiously as possible.[23]

such proceedings, must refer to another administrative case for disciplinary

The Investigating Commissioner and the IBP Board of Governors took
against complainant his failure to attach the certification against forum
shopping to his complaint and consequently dismissed his complaint. This
Court, however, disagrees and, accordingly, grants the petition. However, a
remand of the case to the IBP would unduly prolong its adjudication.

The Courts determination is anchored on the sui generis nature of

disbarment proceedings, the reasons for the certification against forum
shopping requirement, complainants subsequent compliance with the
requirement, and the merit of complainants complaint against respondent.

The Court, in the case of In re Almacen,[17] dwelt on the sui generis character
of disciplinary proceedings against lawyers, thus:

Disciplinary proceedings against lawyers are sui generis. Neither purely civil
nor purely criminal, they do not involve a trial of an action or a suit, but is
rather an investigation by the Court into the conduct of one of its officers. Not
being intended to inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be
initiated by the Court motu proprio. Public interest is its primary objective, and
the real question for determination is whether or not the attorney is still a fit
person to be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to
account for his actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by their
misconduct have proved themselves no longer worthy to be entrusted with the
duties and responsibilities pertaining to the office of an attorney. In such
posture, there can thus be no occasion to speak of a complainant or a
prosecutor.[18] [Emphasis supplied]

In view of the nature of disbarment proceedings, the certification against

forum shopping to be attached to the complaint, if one is required at all in
LEGAL ETHICS PINEDAPCGRNMAN
At any rate, complainants subsequent compliance with the requirement
cured the supposed defect in the original complaint. The records show
that complainant submitted the required certification against forum
shopping on 6 December 2006 when he filed his Comment/Opposition
to respondents Motion to Dismiss the present petition.

Finally, the intrinsic merit of complainants case against respondent

justifies the grant of the present petition. Respondent does not deny
authorship of the threatening letter to complainant, even spiritedly
contesting the charge that the letter is unethical.

Canon 19 of the Code of Professional Responsibility states that a lawyer

shall represent his client with zeal within the bounds of the law,
reminding legal practitioners that a lawyers duty is not to his client but
to the administration of justice; to that end, his clients success is wholly
subordinate; and his conduct ought to and must always be scrupulously
observant of law and ethics.[24] In particular, Rule 19.01 commands that
a lawyer shall employ only fair and honest means to attain the lawful
objectives of his client and shall not present, participate in presenting or
threaten to present unfounded criminal charges to obtain an improper
advantage in any case or proceeding. Under this Rule, a lawyer should
not file or threaten to file any unfounded or baseless criminal case or
cases against the adversaries of his client designed to secure a leverage
to compel the adversaries to yield or withdraw their own cases against
the lawyers client.[25]

In the case at bar, respondent did exactly what Canon 19 and its Rule
proscribe. Through his letter, he threatened complainant that should the
latter fail to pay the amounts they propose as settlement, he would file
and claim bigger amounts including moral damages, as well as multiple
charges such as tax evasion, falsification of documents, and
cancellation of business license to operate due to violations of laws. The
threats are not only unethical for violating Canon 19, but they also

Page 281
amount to blackmail.

Blackmail is the extortion of money from a person by threats of

accusation or exposure or opposition in the public prints,obtaining of
value from a person
LEGAL ETHICS
as a condition of refraining from making an accusation against him, or
disclosing some secret calculated to operate to his prejudice. In common
parlance and in general acceptation, it is equivalent to and synonymous with
extortion, the exaction of money either for the performance of a duty, the
prevention of an injury, or the exercise of an influence. Not infrequently, it is
extorted by threats, or by operating on the fears or the credulity, or by
promises to conceal or offers to expose the weaknesses, the follies, or the
crime of the victim.[26]
In Sps. Boyboy v. Atty. Yabut, Jr.,[27] we held that [a]n accusation for blackmail
and extortion is a very serious one which, if properly substantiated, would
entail not only respondents disbarment from the practice of law, but also a
possible criminal prosecution.[28] While the respondent in Boyboy was
exonerated for lack of evidence, the same may not be said of respondent in
the present case for he admits to writing the offensive letter.
In fact, respondent does not find anything wrong with what he wrote,
dismissing the same as merely an act of pointing out massive violations of
the law by the other party, and, with boldness, asserting that a lawyer is under
obligation to tell the truth, to report to the government commission of offenses
punishable by the State.[29] He further asserts that the writing of demand
letters is a standard practice and tradition and that our laws allow and
encourage the settlement of disputes.
Respondents assertions, however, are misleading, for it is quite obvious that
respondents threat to file the cases against complainant was designed to
secure some leverage to compel the latter to give in to his clients demands.
It was not respondents intention to point out complainants violations of the
law as he so gallantly claims. Far from it, the letter even contains an implied
promise to keep silent about the said violations if payment of the claim is
made on the date indicated.
Indeed, the writing of demand letters is a standard practice and tradition in
this jurisdiction. It is usually done by a lawyer pursuant to the principal-agent
relationship that he has with his client, the principal. Thus, in the performance
of his role as agent, the lawyer may be tasked to enforce his clients claim
and to take all the steps necessary to collect it, such as writing a letter of
demand requiring payment within a specified period. However, the letter in
this case contains more than just a simple demand to pay. It even contains a
threat to file retaliatory charges against complainant which have nothing to
do with his clients claim for separation pay. The letter was obviously designed
to secure leverage to compel complainant to yield to their claims. Indeed,
letters of this nature are definitely proscribed by the Code of Professional
Responsibility.
Respondent cannot claim the sanctuary provided by the privileged
communication rule under which a private communication executed in the
performance of a legal duty is not actionable. The privileged nature of the
letter was removed when respondent used it to blackmail complainant and
extort from the latter compliance with the demands of his client.
However, while the writing of the letter went beyond ethical standards, we
hold that disbarment is too severe a penalty to be imposed on respondent,
considering that he wrote the same out of his overzealousness to protect his
clients interests. Accordingly, the more appropriate penalty is reprimand.
WHEREFORE, premises considered, the petition is granted. The 26 May
2006 Resolution of the IBP Board of Governors is hereby REVERSED and
SET ASIDE. Respondent Atty. Lolito G. Aparicio is hereby found liable for
violation of Rule 19.01 of Canon 19 of the Code of Professional
Responsibility, and is accordingly meted out the penalty of REPRIMAND,
with the STERN WARNING that a repetition of the same or similar act will be
dealt with more severely.
SO ORDERED.
QUE VS ATTY REVILLA JR. (SUPRA)
Rule 19.02 – A lawyer who has received information that his client has,
in the course of the representation, perpetuated a fraud upon a person
PINEDAPCGRNMAN
or tribunal, shall promptly call upon the client to rectify the same, and
failing which he ha to terminate the relationship with such client in
accordance with the Rules of Court.
PENA VS ATTY APARICIO (SUPRA)
DALISAY VS ATTY MAURICIO (SUPRA)
DONTON VS DR TANSINGCO (SUPRA)
Rule 19.03 – A lawyer shall not allow his client to dictate the procedure
in handling the case.
 General Rule: Negligence binds client
Exception: Reckless imprudence (deprives client of due process)
Results in outright deprivation of one’s property through technicality
 Must not present in evidence any document known to be false;
nor present a false witness.
 Negative pregnant is improper since it is an ambiguous pleading
(improper if in bad faith and the purpose is to confuse the other
party)
In defense: present every defense the law permits.
 Lawyer should do his best efforts to restrain and to prevent his
clients from perpetrating acts which he himself ought not to do.
Or else, withdraw. But lawyer shall not volunteer the information
about the client’s commission of fraud to anyone – counter to duty
to maintain client’s confidence and secrets.
ATTY. ELMER C. SOLIDON, A.C. No. 8158
Complainant,
Present:
CARPIO, J., Chairperson,
BRION,
DEL CASTILLO,
- versus - ABAD, and
PEREZ, JJ.
Promulgated:
ATTY. RAMIL E. MACALALAD, February 24, 2010
Respondent.
x------------------------------------------------------------------------------------------
-------------x
DECISION
BRION, J.:
In a verified complaint[1] before the Commission on Bar Discipline of the
Integrated Bar of the Philippines (IBP Commission on Bar Discipline), Atty.
Elmer C. Solidon (Atty. Solidon) sought the disbarment of Atty. Ramil E.
Macalalad (Atty. Macalalad) for violations of Rule 16.01,[2] Rule 18.03,[3] and
Rule 18.04[4] of the Code of Professional Responsibility involving negligence
in handling a case.
The Facts
Atty. Macalalad is the Chief of the Legal Division of the Department of
Environment and Natural Resources (DENR), Regional Office 8,
Tacloban City. Although he is in public service, the DENR Secretary has
given him the authority to engage in the practice of law.
While on official visit to Eastern Samar in October 2005, Atty. Macalalad was
introduced to Atty. Solidon by a mutual acquaintance, Flordeliz Cabo-Borata
(Ms. Cabo-Borata). Atty. Solidon asked Atty. Macalalad to handle the judicial
titling of a parcel of land located in Borongan, Eastern Samar and owned by
Atty. Solidons relatives. For a consideration of Eighty Thousand Pesos
(P80,000.00), Atty. Macalalad accepted the task to be completed within a
period of eight (8) months. Atty. Macalalad received Fifty Thousand Pesos
(P50,000.00) as initial payment; the remaining balance of Thirty Thousand
Pesos (P30,000.00) was to be paid when Atty. Solidon received the
Page 282
certificate of title to the property.
Atty. Macalalad has not filed any petition for registration over the property
sought to be titled up to the present time.
LEGAL ETHICS
In the Complaint, Position Papers[5] and documentary evidence submitted,
Atty. Solidon claimed that he tried to contact Atty. Macalalad to follow-up on
the status of the case six (6) months after he paid the initial legal fees. He did
this through phone calls and text messages to their known acquaintances and
relatives, and, finally, through a letter sent by courier to Atty. Macalalad.
However, he did not receive any communication from Atty. Macalalad.
In the Answer,[6] Position Paper,[7] and affidavits of witnesses, Atty. Macalalad
posited that the delay in the filing of the petition for the titling of the property
was caused by his clients failure to communicate with him. He also explained
that he had no intention of reneging on his obligation, as he had already
prepared the draft of the petition. He failed to file the petition simply because
he still lacked the needed documentary evidence that his clients should have
furnished him. Lastly, Atty. Macalalad denied that Atty. Solidon tried to
communicate with him.
The Findings of the IBP
In his Report and Recommendation dated June 25, 2008, Investigating
Commissioner Randall C. Tabayoyong made the following finding of
negligence against Atty. Macalalad:
complainant submitted in his position paper the affidavit of Flordeliz Cabo-
Borata, the mutual acquaintance of both complainant and respondent. In the
said affidavit, Mrs. Cabo-Borata described how she repeatedly followed-up
the matter with respondent and how respondent turned a deaf ear towards
the same. There is nothing on record which would prompt this Office to view
the allegations therein with caution. In fact, considering that the allegations
corroborate the undisputed facts of the instant case...
As respondent has failed to duly present any reasonable excuse for the non-
filing of the application despite the lapse of about a year from the time his
services were engaged, it is plain that his negligence in filing the application
remains uncontroverted. And such negligence is contrary to the mandate
prescribed in Rule 18.03, Canon 18 of the Code of Professional
Responsibility, which enjoins a lawyer not to neglect a legal matter entrusted
to him. In fact, Rule 18.03 even provides that his negligence in connection
therewith shall render him liable.
Acting on this recommendation, the Board of Governors of the IBP
Commission on Bar Discipline passed Resolution No. XVIII-2008-336 dated
July 17, 2008, holding that:
RESOLVED TO ADOPT and APPROVE, as it is hereby unanimously
ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the above-entitled
case, herein made part of this Resolution and, finding the recommendation
fully supported by the evidence on record and the applicable laws and rules,
and considering Respondents violation of Rule 18.03 of the Code of
Professional Responsibility, Atty. Ramil E. Macalalad is hereby
SUSPENDED from the practice of law for three (3) months and Ordered
to Return the amount of Fifty Thousand Pesos (P50,000) with 12% interest
per annum to complainant
The case is now before this Court for our final action pursuant to Section
12(b), Rule 139-B of the Rules of Court, considering that the IBP Commission
on Bar Discipline imposed the penalty of suspension on Atty. Macalalad.
The Courts Ruling
We agree with the IBPs factual findings and legal conclusions.
In administrative cases against lawyers, the quantum of proof required is
preponderance of evidence which the complainant has the burden to
discharge.[8] We fully considered the evidence presented and we are fully
satisfied that the complainants evidence, as outlined above, fully satisfies the
required quantum of proof in proving Atty. Macalalads negligence.
PINEDAPCGRNMAN
Rule 18.03, Canon 18 of the Code of Professional Responsibility provides for
the rule on negligence and states:
Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him
and his negligence in connection therewith shall render him liable.
This Court has consistently held, in construing this Rule, that the mere failure
of the lawyer to perform the obligations due to the client is considered per se
a violation.
Thus, in Villafuerte v. Cortez,[9] we held that a lawyer is negligent if he failed
to do anything to protect his clients interest after receiving his acceptance
fee. In In Re: Atty. Briones,[10] we ruled that the failure of the counsel to
submit the required brief within the reglementary period (to the prejudice of
his client who languished in jail for more than a year) is an offense that
warrants disciplinary action. In Garcia v. Atty. Manuel, we penalized a
lawyer for failing to inform the client of the status of the case, among other
matters.[11]
Subsequently, in Reyes v. Vitan,[12] we reiterated that the act of receiving
money as acceptance fee for legal services in handling the complainants
case and, subsequently, in failing to render the services, is a clear violation
of Canon 18 of the Code of Professional Responsibility. We made the same
conclusion in Canoy v. Ortiz[13] where we emphatically stated that the
lawyers failure to file the position paper was per se a violation of Rule 18.03
of the Code of Professional Responsibility.
The circumstance that the client was also at fault does not exonerate a lawyer
from liability for his negligence in handling a case. In Canoy, we accordingly
declared that the lawyer cannot shift the blame to his client for failing to follow
up on his case because it was the lawyers duty to inform his client of the
status of the case.[14] Our rulings inMacarilay v. Seria,[15] in Heirs of
Ballesteros v. Apiag,[16] and in Villaflores v. Limos[17] were of the same
tenor. In Villaflores, we opined that even if the client has been equally at fault
for the lack of communication, the main responsibility remains with the lawyer
to inquire and know the best means to acquire the required information. We
held that as between the client and his lawyer, the latter has more control in
handling the case.
All these rulings drive home the fiduciary nature of a lawyers duty to his client
once an engagement for legal services is accepted. A lawyer so engaged to
represent a client bears the responsibility of protecting the latters interest with
utmost diligence.[18] The lawyer bears the duty to serve his client with
competence and diligence, and to exert his best efforts to protect, within the
bounds of the law, the interest of his or her client.[19] Accordingly,
competence, not only in the knowledge of law, but also in the management
of the cases by giving these cases appropriate attention and due preparation,
is expected from a lawyer.[20]
The records in this case tell us that Atty. Macalalad failed to act as he
committed when he failed to file the required petition. He cannot now shift the
blame to his clients since it was his duty as a lawyer to communicate with
them. At any rate, we reject Atty. Macalalads defense that it was his clients
who failed to contact him. Although no previous communication transpired
between Atty. Macalalad and his clients, the records nevertheless show that
Atty. Solidon, who contracted Atty. Macalalads services in behalf of his
relatives, tried his best to reach him prior to the filing of the present
disbarment case. Atty. Solidon even enlisted the aid of Ms. Cabo-Borata to
follow-up on the status of the registration application with Atty. Macalalad.
As narrated by Ms. Cabo-Borata in her affidavit,[21] she succeeded several
times in getting in touch with Atty. Macalalad and on those occasions asked
him about the progress of the case. To use Ms. Cabo-Boratas own words,
she received no clear-cut answers from him; he just informed her that
everything was on process. We give credence to these narrations
considering Atty. Macalalads failure to contradict them or deny their veracity,
in marked contrast with his vigorous denial of Atty. Solidons allegations.
We consider, too, that other motivating factors specifically, the monetary
Page 283
consideration and the fixed period of performance should have made it more
imperative for Atty. Macalalad to promptly take action and initiate
LEGAL ETHICS PINEDAPCGRNMAN
communication with his clients. He had been given initial payment and should
have at least undertaken initial delivery of his part of the engagement. x -----------------------------------------------------------------------------------------------x

We further find that Atty. Macalalads conduct refutes his claim of willingness
to perform his obligations. If Atty. Macalalad truly wanted to file the petition,
he could have acquired the necessary information from Atty. Solidon to
enable him to file the petition even pending the IBP Commission on Bar
Discipline investigation. As matters now stand, he did not take any action to
initiate communication. These omissions unequivocally point to Atty.
Macalalads lack of due care that now warrants disciplinary action.
In addition to the above finding of negligence, we also find Atty. Macalalad
guilty of violating Rule 16.01 of the Code of Professional Responsibility which
requires a lawyer to account for all the money received from the client. In this
case, Atty. Macalalad did not immediately account for and promptly return
the money he received from Atty. Solidon even after he failed to render any
legal service within the contracted time of the engagement.[22]
The Penalty
Based on these considerations, we modify the IBP Commission on Bar
Disciplines recommended penalty by increasing the period of Atty.
Macalalads suspension from the practice of law from three (3) months, to six
(6) months.[23] In this regard, we follow the Courts lead in Parias v. Paguinto[24]
where we imposed on the respondent lawyer suspension of six
(6) months from the practice of law for violations of Rule 16.01 and Rule
18.03 of the Code of Professional Responsibility.
WHEREFORE, premises considered, we hereby AFFIRM WITH
MODIFICATION Resolution No. XVIII-2008-336 dated July 17, 2008 of the
Board of Governors of the IBP Commission on Bar Discipline. We impose on
Atty. Ramil E. Macalalad the penalty of SIX (6) MONTHS SUSPENSION
from the practice of law for violations of Rule 16.03 and Rule
18.03 of the Code of Professional Responsibility, effective upon finality of this
Decision. Atty. Macalalad is STERNLY WARNED that a repetition of the
same or similar acts will be dealt with more severely.
Atty. Macalalad is also ORDERED to RETURN to Atty. Elmer C. Solidon the
amount of Fifty Thousand Pesos (P50,000.00) with interest of twelve percent
(12%) per annum from the date of promulgation of this Decision until the full
amount is returned.
DECISION
SERENO, J.:
These consolidated petitions began as a simple case for payment of services
rendered and for reimbursement of costs. The case spun a web of suits and
counter-suits because of: (1) the size of the award for agents fee rendered in
favor of Atty. Magdaleno Pea (Pea) PhP24,000,000 rendered by the trial
court; (2) the controversial execution of the full judgment award of
PhP28,500,000 (agents fee plus reimbursement for costs and other
damages) pending appeal; and (3) the finding of solidary liability against
Urban Bank, Inc., and several of its corporate officers and directors together
with the concomitant levying and sale in execution of the personal (even
conjugal) properties of those officers and directors; and (4) the fact that
assets with declared conservative values of at least PhP181 Million which,
together with those with undeclared values could reach very much more than
such amount,[1] were levied or sold on execution pending appeal to satisfy
the PhP28.5 Million award in favor of Atty. Pea. Incidentally, two supersedeas
bonds worth PhP80 Million (2.8 times the amount of the judgment) were filed
by Urban Bank and some of its officers and directors to stay the execution
pending appeal.
Had the four attendant circumstances not afflicted the original case, it would
have been an open-and-shut review where this Court, applying even just the
minimum equitable principle against unjust enrichment would have easily
affirmed the grant of fair recompense to Atty. Pea for services he rendered
for Urban Bank if such had been ordered by the trial court.
That Atty. Pea should be paid something by Urban Bank is not in dispute the
Court of Appeals (CA) and the Regional Trial Court (RTC) of Bago City,
agreed on that. What they disagreed on is the basis and the size of the award.
The trial court claims that the basis is an oral contract of agency and the
award should be PhP28,5000,000; while, the appellate court said that Atty.
Pea can only be paid under the legal principle against unjust enrichment, and
the total award in his favor should only amount to PhP3,000,000.

Let copies of this Decision be furnished the Office of the Bar Confidant
and noted in Atty. Macalalads record as a member of the Bar. In the eyes of the trial court, the controlling finding is that Atty. Pea should be
believed when he testified that in a telephone conversation, the president of
SO ORDERED. Urban Bank, Teodoro Borlongan, a respondent herein, agreed to pay him for
his services 10% of the value of the property then worth PhP240,000,000, or
CANON 20 – A LAWYER SHALL CHARGE ONLY FAIR AND PhP24,000,000. Costs and other awards additionally amount to
REASONABLE FEES. PhP4,500,000, for a total award of PhP28,500,000 according to the trial
MAGDALENO M. PEA, G. R. No. 162562 court. To the Court of Appeals, such an award has no basis, as in fact, no

Page 284
Petitioner,BANK, INC,
URBAN G.R. No. 145817 contract of agency exists between Atty. Pea and Urban Bank. Hence, Atty.
Petitioner, Present: Pea should only be recompensed according to the principle of unjust

- versus - BRION, J.,

Acting
MAGDALENO M. PEA, Chairperson,
URBAN
Respondent. BANK, INC., TEODORO VILLARAMA,*
BORLONGAN, DELFIN C. GONZALEZ,
x --------------------------------------------- x JR., MENDOZA,**
BENJAMIN L. DE LEON, P. SIERVO H. DIZON, SERENO, and
ERIC
DELFIN L. C.LEE, BEN T. JR.,
GONZALEZ, LIM, BENJAMIN
JR., CORAZONL. DE PERLAS-
G. R. No. 145822
BEJASA,
LEON, andandERICARTURO
L. LEE,MANUEL, JR., BERNABE,*** JJ.
Respondents.
Petitioners, Promulgated:

- versus -
October 19, 2011
MAGDALENO M. PEA,
Respondent.
x --------------------------------------------- x
LEGAL ETHICS
enrichment, and that he should be awarded the amount of PhP3,000,000
only for his services and reimbursements of costs.
The disparity in the size of the award given by the trial court vis--vis that of
the Court of Appeals (PhP28,500,000 v. PhP3,000,000) must be placed in
the context of the service that Atty. Pea proved that he rendered for Urban
Bank. As the records bear, Atty. Peas services consisted of causing the
departure of unauthorized sub-tenants in twenty-three commercial
establishments in an entertainment compound along Roxas Boulevard. It
involved the filing of ejectment suits against them, Peas personal defense in
the counter-suits filed against him, his settlement with them to the tune of
PhP1,500,000, which he advanced from his own funds, and his retention of
security guards and expenditure for other costs amounting to more or less
PhP1,500,000. There is no claim by Atty. Pea of any service beyond those.
He claims damages from the threats to his life and safety from the angry
tenants, as well as a vexatious collection suit he had to face from a creditor-
friend from whom he borrowed PhP3,000,000 to finance the expenses for the
services he rendered Urban Bank.
At the time the award of PhP28,500,000 by the trial court came out in 1999,
the net worth of Urban Bank was PhP2,219,781,104.[2] While the bank would
be closed by theBangko Sentral ng Pilipinas (BSP) a year later for having
unilaterally declared a bank holiday contrary to banking rules, there was no
reason to believe that at the time such award came out it could not satisfy a
judgment of PhP28,500,000, a sum that was only 1% of its net worth, and a
miniscule 0.2% of its total assets of PhP11,933,383,630.[3] In fact, no
allegation of impending insolvency or attempt to abscond was ever raised by
Atty. Pea and yet, the trial court granted execution pending appeal.
Interestingly, Pea had included as co-defendants with Urban Bank in the RTC
case, several officers and board directors of Urban Bank. Not all board
directors were sued, however. With respect to those included in the
complaint, other than against Teodoro Borlongan, Corazon Bejasa, and
Arturo Manuel, no evidence was ever offered as to their individual actions
that gave rise to Atty. Peas cause of action the execution of the agency
contract and its breach and yet, these officers and directors were made
solidarily liable by the trial court with Urban Bank for the alleged breach of
the alleged corporate contract of agency. Execution pending appeal was also
granted against them for this solidary liability resulting in the levy and sale in
execution pending appeal of not only corporate properties of Urban Bank but
also personal properties of the individual bank officers and directors. It would
have been interesting to find out what drove Atty. Pea to sue the bank officers
and directors of Urban Bank and why he chose to sue only some, but not all
of the board directors of Urban Bank, but there is nothing on the record with
which this analysis can be pursued.
Before us are: (a) the Petitions of Urban Bank (G. R. No. 145817) and the
De Leon Group (G R. No. 145822) questioning the propriety of the grant of
execution pending appeal, and (b) the Petition of Atty. Pea (G. R. No.
162562) assailing the CAs decision on the substantive merits of the case with
respect to his claims of compensation based on an agency agreement.
Ordinarily, the final resolution by the Supreme Court of an appeal from a trial
court decision would have automatic, generally-understood consequences
on an order issued by the trial court for execution pending appeal. But this is
no ordinary case, and the magnitude of the disproportions in this case is too
mind-boggling that this Court must exert extra effort to correct whatever
injustices have been occasioned in this case. Thus, our dispositions will
include detailed instructions for several judicial officials to implement.
At core, these petitions can be resolved if we answer the following questions:
1. What is the legal basis for an award in favor of Pea for the services he
rendered to Urban Bank? Should it be a contract of agency the fee for which
was orally agreed on as Pea claims? Should it be the application of the Civil
Code provisions on unjust enrichment? Or is it to be based on something
PINEDAPCGRNMAN
else or a combination of the legal findings of both the RTC and the CA? How
much should the award be?
2. Are the officers and directors of Urban Bank liable in their personal
capacities for the amount claimed by Pea?
3. What are the effects of our answers to questions (1) and (2), on the various
results of the execution pending appeal that happened here?
Factual Background of the Controversy
Urban Bank, Inc. (both petitioner and respondent in these two consolidated
cases),[4] was a domestic Philippine corporation, engaged in the business of
banking.[5] The eight individual respondents in G. R. No. 162562 were officers
and members of Urban Banks board of directors, who were sued in their
official and personal capacities.[6] On the other hand, Benjamin L. De Leon,
Delfin C. Gonzalez, Jr., and Eric L. Lee, (hereinafter the de Leon Group), are
the petitioners in G. R. No. 145822 and are three of the same bank officers
and directors, who had separately filed the instant Petition before the Court.
Petitioner-respondent Atty. Magdaleno M. Pea (Pea)[7] is a lawyer by
profession and was formerly a stockholder, director and corporate secretary
of Isabel Sugar Company, Inc. (ISCI).[8]
ISCI owned a parcel of land[9] located in Pasay City (the Pasay property).[10]
In 1984, ISCI leased the Pasay property for a period of 10 years.[11] Without
its consent[12]and in violation of the lease contract,[13] the lessee subleased
the land to several tenants, who in turn put up 23 establishments, mostly beer
houses and night clubs, inside the compound.[14] In 1994, a few months before
the lease contract was to expire, ISCI informed the lessee[15] and his tenants[16]
that the lease would no longer be renewed and that it intended to take over
the Pasay property[17] for the purpose of selling it.[18]
Two weeks before the lease over the Pasay property was to expire, ISCI and
Urban Bank executed a Contract to Sell, whereby the latter would pay ISCI
the amount of PhP241,612,000 in installments for the Pasay property.[19]
Both parties agreed that the final installment of PhP25,000,000 would be
released by the bank upon ISCIs delivery of full and actual possession of the
land, free from any tenants.[20] In the meantime, the amount of the final
installment would be held by the bank in escrow. The escrow provision in the
Contract to Sell, thus, reads:
The SELLER (ISCI) agrees that from the proceeds of the purchase prices of
the subject Property (Pasay property), the BUYER (Urban Bank) shall
withhold the amount of PHP 25,000,000.00 by way of escrow and shall
release this amount to the SELLER only upon its delivery to the BUYER
of the full and actual possession and control of the Subject Property,
free from tenants, occupants, squatters or other structures or from any
liens, encumbrances, easements or any other obstruction or
impediment to the free use and occupancy by the buyer of the subject
Property or its exercise of the rights to ownership over the subject
Property, within a period of sixty (60) days from the date of payment by the
BUYER of the purchase price of the subject Property net of the amounts
authorized to be deducted or withheld under Item II (a) of this Contract.[21]
(Emphasis supplied)
ISCI then instructed Pea, who was its director and corporate secretary, to
take over possession of the Pasay property[22] against the tenants upon the
expiration of the lease. ISCIs president, Mr. Enrique G. Montilla III (Montilla),
faxed a letter to Pea, confirming the latters engagement as the corporations
agent to handle the eviction of the tenants from the Pasay property, to wit:[23]
MEMORANDUM
TO: Atty. Magdaleno M. Pena
Director
Page 285
FROM: Enrique G. Montilla III
President
DATE: 26 November 1994
LEGAL ETHICS
You are hereby directed to recover and take possession of the property
of the corporation situated at Roxas Boulevard covered by TCT No.
5382 of the Register of Deeds for Pasay City immediately upon the
expiration of the contract of lease over the said property on 29
November 1994. For this purpose you are authorized to engage the services
of security guards to protect the property against intruders. You may also
engage the services of a lawyer in case there is a need to go to court to
protect the said property of the corporation. In addition you may take
whatever steps or measures are necessary to ensure our continued
possession of the property.
(sgd.) ENRIQUE G. MONTILLA III
President[24]
On 29 November 1994, the day the lease contract was to expire, ISCI and
Urban Bank executed a Deed of Absolute Sale[25] over the Pasay property for
the amount agreed upon in the Contract to Sell, but subject to the above
escrow provision.[26] The title to the land was eventually transferred to the
name of Urban Bank on 05 December 1994.[27]
On 30 November 1994, the lessee duly surrendered possession of the Pasay
property to ISCI,[28] but the unauthorized sub-tenants refused to leave the
area.[29] Pursuant to his authority from ISCI, Pea had the gates of the property
closed to keep the sub-tenants out.[30] He also posted security guards at the
property,[31] services for which he advanced payments.[32] Despite the closure
of the gates and the posting of the guards, the sub-tenants would come back
in the evening, force open the gates, and proceed to carry on with their
businesses.[33] On three separate occasions, the sub-tenants tried to break
down the gates of the property, threw stones, and even threatened to return
and inflict greater harm on those guarding it.[34]
In the meantime, a certain Marilyn G. Ong, as representative of ISCI, faxed
a letter to Urban Bank addressed to respondent Corazon Bejasa, who was
then the banks Senior Vice-President requesting the issuance of a formal
authority for Pea.[35] Two days thereafter, Ms. Ong faxed another letter to the
bank, this time addressed to its president, respondent Teodoro Borlongan.[36]
She repeated therein the earlier request for authority for Pea, since the
tenants were questioning ISCIs authority to take over the Pasay property.[37]
In response to the letters of Ms. Ong, petitioner-respondent bank, through
individual respondents Bejasa and Arturo E. Manuel Senior Vice-President
and Vice-President, respectively advised Pea[38] that the bank had noted the
engagement of his services by ISCI and stressed that ISCI remained as the
lawyers principal.[39]
To prevent the sub-tenants from further appropriating the Pasay property,[40]
petitioner-respondent Pea, as director and representative of ISCI, filed a
complaint for injunction[41] (the First Injunction Complaint) with the RTC-
Pasay City.[42] Acting on ISCIs prayer for preliminary relief, the trial court
favorably issued a temporary restraining order (TRO),[43] which was duly
implemented.[44] At the time the First Injunction Complaint was filed, a new
title to the Pasay property had already been issued in the name of Urban
Bank.[45]
On 19 December 1994, when information reached the judge that the Pasay
property had already been transferred by ISCI to Urban Bank, the trial court
recalled the TRO and issued a break-open order for the property. According
to Pea, it was the first time that he was apprised of the sale of the land by
ISCI and of the transfer of its title in favor of the bank.[46] It is not clear from
the records how such information reached the judge or what the break-open
order was in response to.
On the same day that the TRO was recalled, petitioner-respondent Pea
immediately contacted ISCIs president, Mr. Montilla, who in turn confirmed
the sale of the Pasay property to Urban Bank.[47] Pea told Mr. Montilla that
because of the break-open order of the RTC-Pasay City, he (Pea) would be
PINEDAPCGRNMAN
recalling the security guards he had posted to secure the property. Mr.
Montilla, however, asked him to suspend the planned withdrawal of the
posted guards, so that ISCI could get in touch with petitioner-respondent
bank regarding the matter.[48]
Later that same day, Pea received a telephone call from respondent Bejasa.
After Pea informed her of the situation, she allegedly told him that Urban
Bank would be retaining his services in guarding the Pasay property, and that
he should continue his efforts in retaining possession thereof. He insisted,
however, on talking to the Banks president. Respondent Bejasa gave him the
contact details of respondent Borlongan, then president of Urban Bank.[49]
The facts regarding the following phone conversation and correspondences
are highly-controverted. Immediately after talking to respondent Bejasa, Pea
got in touch with Urban Banks president, respondent Borlongan. Pea
explained that the policemen in Pasay City were sympathetic to the tenants
and were threatening to force their way into the premises. He expressed his
concern that violence might erupt between the tenants, the city police, and
the security guards posted in the Pasay property. Respondent Borlongan
supposedly assured him that the bank was going to retain his services, and
that the latter should not give up possession of the subject land.
Nevertheless, petitioner-respondent Pea demanded a written letter of
authority from the bank. Respondent Borlongan acceded and instructed him
to see respondent Bejasa for the letter.[50]
In the same telephone conversation, respondent Borlongan allegedly asked
Pea to maintain possession of the Pasay property and to represent Urban
Bank in any legal action that might be instituted relative to the property. Pea
supposedly demanded 10% of the market value of the property as
compensation and attorneys fees and reimbursement for all the expenses
incurred from the time he took over land until possession was turned over to
Urban Bank. Respondent Borlongan purportedly agreed on condition that
possession would be turned over to the bank, free of tenants, not later than
four months; otherwise, Pea would lose the 10% compensation and attorneys
fees. [51]
Later that afternoon, Pea received the banks letter dated 19 December 1994,
which was signed by respondents Bejasa and Manuel, and is quoted below:
This is to confirm the engagement of your services as the authorized
representative of Urban Bank, specifically to hold and maintain
possession of our abovecaptioned property [Pasay property] and to
protect the same from former tenants, occupants or any other person
who are threatening to return to the said property and/or interfere with
your possession of the said property for and in our behalf.
You are likewise authorized to represent Urban Bank in any court action that
you may institute to carry out the aforementioned duties, and to prevent any
intruder, squatter or any other person not otherwise authorized in writing by
Urban [B]ank from entering or staying in the premises.[52] (Emphasis
supplied)
On even date, ISCI sent Urban Bank a letter, which acknowledged ISCIs
engagement of Pea and commitment to pay for any expenses that may be
incurred in the course of his services. ISCIs letter reads:
This has reference to your property located along Roxas Boulevard, Pasay
City [Pasay property] which you purchased from Isabela Sugar Company
under a Deed of Absolute Sale executed on December 1, 1994.
In line with our warranties as the Seller of the said property and our
undertaking to deliver to you the full and actual possession and control of
said property, free from tenants, occupants or squatters and from any
obstruction or impediment to the free use and occupancy of the property by
Urban Bank, we have engaged the services of Atty. Magdaleno M. Pea
to hold and maintain possession of the property and to prevent the
former tenants or occupants from entering or returning to the premises.
In view of the transfer of the ownership of the property to Urban Bank, it may
be necessary for Urban Bank to appoint Atty. Pea likewise as its authorized
representative for purposes of holding/maintaining continued possession of
Page 286
the said property and to represent Urban Bank in any court action that may
be instituted for the abovementioned purposes.
LEGAL ETHICS
It is understood that any attorneys fees, cost of litigation and any other
charges or expenses that may be incurred relative to the exercise by
Atty. Pea of his abovementioned duties shall be for the account of
Isabela Sugar Company and any loss or damage that may be incurred to
third parties shall be answerable by Isabela Sugar Company.[53] (Emphasis
supplied)
The following narration of subsequent proceedings is uncontroverted.
Pea then moved for the dismissal of ISCIs First Injunction Complaint, filed on
behalf of ISCI, on the ground of lack of personality to continue the action,
since the Pasay property, subject of the suit, had already been transferred to
Urban Bank.[54] The RTC-Pasay City dismissed the complaint and recalled its
earlier break-open order.[55]
Thereafter, petitioner-respondent Pea, now in representation of Urban Bank,
filed a separate complaint[56] (the Second Injunction Complaint) with the RTC-
Makati City, to enjoin the tenants from entering the Pasay property.[57] Acting
on Urban Banks preliminary prayer, the RTC-Makati City issued a TRO.[58]
While the Second Injunction Complaint was pending, Pea made efforts to
settle the issue of possession of the Pasay property with the sub-tenants.
During the negotiations, he was exposed to several civil and criminal cases
they filed in connection with the task he had assumed for Urban Bank, and
he received several threats against his life.[59] The sub-tenants eventually
agreed to stay off the property for a total consideration of PhP1,500,000.[60]
Pea advanced the payment for the full and final settlement of their claims
against Urban Bank.[61]
Pea claims to have borrowed PhP3,000,000 from one of his friends in order
to maintain possession thereof on behalf of Urban Bank.[62] According to him,
although his creditor-friend granted him several extensions, he failed to pay
his loan when it became due, and it later on became the subject of a separate
collection suit for payment with interest and attorneys fees.[63] This collection
suit became the basis for Atty. Peas request for discretionary execution
pending appeal later on.
On 07 February 1995, within the four-month period allegedly agreed upon in
the telephone conversation, Pea formally informed Urban Bank that it could
already take possession of the Pasay property.[64] There was however no
mention of the compensation due and owed to him for the services he had
rendered.
On 31 March 1995, the bank subsequently took actual possession of the
property and installed its own guards at the premises.[65]
Pea thereafter made several attempts to contact respondents Borlongan and
Bejasa by telephone, but the bank officers would not take any of his calls. On
24 January 1996, or nearly a year after he turned over possession of the
Pasay property, Pea formally demanded from Urban Bank the payment of
the 10% compensation and attorneys fees allegedly promised to him during
his telephone conversation with Borlongan for securing and maintaining
peaceful possession of the property.[66]
Proceedings on the Complaint for Compensation
On 28 January 1996, when Urban Bank refused to pay for his services in
connection with the Pasay property, Pea filed a complaint[67] for recovery of
agents compensation and expenses, damages and attorneys fees in RTC-
Bago City in the province of Negros Occidental.[68] Interestingly, Pea sued
only six out of the eleven members of the Board of the Directors of Urban
Bank.[69] No reason was given why the six directors were selected and the
others excluded from Peas complaint. In fact, as pointed out, Atty. Pea
mistakenly impleaded as a defendant, Ben Y. Lim, Jr., who was never even
a member of the Board of Directors of Urban Bank; while, Ben T. Lim, Sr.,
PINEDAPCGRNMAN
father and namesake of Ben Y. Lim, Jr., who had been a director of the bank,
already passed away in 1997.[70]
In response to the complaint of Atty. Pea, Urban Bank and individual bank
officers and directors argued that it was ISCI, the original owners of the Pasay
property, that had engaged the services of Pea in securing the premises;
and, consequently, they could not be held liable for the expenses Pea had
incurred.[71]
On 28 May 1999, the RTC-Bago City[72] ruled in favor of Pea, after finding that
an agency relationship had indeed been created between him and Urban
Bank. The eight directors and bank officers were found to be solidarily liable
with the bank for the payment of agencys fees. The trial court thus ordered
Urban Bank and all eight defendant bank directors and officers whom Pea
sued to pay the total amount of PhP28,500,000 (excluding costs of suit):
WHEREFORE, premised from the foregoing, judgment is hereby rendered
ordering defendants to pay plaintiff jointly and severally the following
amounts:
1. P24,000,000 as compensation for plaintiffs services plus the
legal rate of interest from the time of demand until fully paid;
2. P3,000,000 as reimbursement of plaintiffs expenses;
3. P1,000,000 as and for attorneys fees;
4. P500,000 as exemplary damages;
5. Costs of suit.
SO ORDERED.[73]
Urban Bank and the individual defendant bank directors and officers filed a
common Notice of Appeal,[74] which was given due course.[75] In the appeal,
they questioned the factual finding that an agency relationship existed
between the bank and Pea.[76]
Although they put up a single defense in the proceedings in the lower court,
Urban Bank and individual defendants contracted different counsel and filed
separate Briefs on appeal in the appellate court.
In its Brief,[77] Urban Bank[78] assigned as errors the trial courts reliance on the
purported oral contract of agency and Peas claims for compensation during
the controverted telephone conversation with Borlongan, which were
allegedly incredible.
Meanwhile, Benjamin L. de Leon, Delfin Gonzalez, Jr., and Eric L. Lee (the
De Leon Group),[79] the petitioners in the instant Petition docketed as G. R.
No. 145822, argued that, even on the assumption that there had been an
agency contract with the bank, the trial court committed reversible error in
holding them as bank directors solidarily liable with the corporation.[80]
On the other hand, Teodoro Borlongan, Corazon M. Bejasa, Arturo Manuel,
Jr., Ben Y. Lim, Jr., and P. Siervo H. Dizon (the Borlongan Group)[81]
reiterated similar arguments as those of the De Leon Group, adding that the
claimed compensation of 10% of the purchase price of the Pasay property
was not reasonable.[82]
Pea refuted all of their arguments[83] and prayed that the trial courts Decision
be affirmed.[84]
Acting favorably on the appeal, the Court of Appeals[85] annulled the Decision
of the RTC-Bago City and ruled that no agency relationship had been
created. Nevertheless, it ordered Urban Bank to reimburse Pea for his
expenses and to give him reasonable compensation for his efforts in clearing
the Pasay property of tenants in the amount of PhP3,000,000, but absolved
the bank directors and officers from solidary liability. The dispositive portion
of the CA decision reads as follows:
WHEREFORE, in view of the foregoing considerations, the May 28, 2000
Decision [sic] and the October 19, 2000 [sic] Special Order of the RTC of
Bago City, Branch 62,[86] are hereby ANNULLED AND SET ASIDE.
However, the plaintiff-appellee [Pea] in CA GR CV No. 65756 is awarded
Page 287
the amount of P3 Million as reimbursement for his expenses as well as
reasonable compensation for his efforts in clearing Urban Banks
property of unlawful occupants. The award of exemplary damages,
LEGAL ETHICS
attorneys fees and costs of suit are deleted, the same not having been
sufficiently proven. The petition for Indirect Contempt against all the
respondents is DISMISSED for utter lack of merit. [87] (Emphasis supplied)
Pea duly filed a Motion for Reconsideration of the unfavorable CA
Decision.[88] The appellate court, however, denied his motion.[89] The CA
Decision and Resolution were appealed by Pea to this Court, through one of
the three consolidated Rule 45 Petitions before us (G. R. No. 162562).
Execution Pending Appeal
On 07 June 1999, prior to the filing of the notice of appeal of Urban Bank and
individual bank officers,[90] Pea moved for execution pending appeal[91] of the
Decision rendered by the RTC-Bago City,[92] which had awarded him a total
of PhP28,500,000 in compensation and damages.[93]
In supporting his prayer for discretionary execution, Pea cited the pending
separate civil action for collection filed against him by his creditor-friend, who
was demanding payment of a PhP3,000,000 loan.[94] According to Pea, he
had used the proceeds of the loan for securing the banks Pasay property. No
other reason for the prayer for execution pending appeal was given by
Pea other than this collection suit.[95]
In opposition to the motion, Urban Bank countered that the collection case
was not a sufficient reason for allowing execution pending appeal.[96]
On 29 October 1999, the RTC-Bago City, through Judge Henry J. Trocino,[97]
favorably granted Peas motion and issued a Special Order authorizing
execution pending appeal.[98] In accordance with this Special Order, Atty.
Josephine Mutia-Hagad, the clerk of court and ex officio sheriff, issued a Writ
of Execution[99] on the same day.[100] The Special Order and Writ of Execution
were directed at the properties owned by Urban Bank as well as the
properties of the eight individual bank directors and officers.
On 04 November 1999, affected by the trial courts grant of execution pending
appeal, Urban Bank[101] filed a Rule 65 Petition with the CA to enjoin the
Special Order and Writ of Execution issued by the trial court with a prayer for
a TRO.[102]
On 09 November 1999, the appellate court favorably granted the TRO and
preliminarily prohibited the implementation of the Special Order and Writ of
Execution.[103]
On 12 January 2000, the CA eventually granted Urban Banks Rule 65
Petition, and the RTCs Special Order and Writ of Execution, which permitted
execution pending appeal, were annulled. The appellate court ruled:[104]
WHEREFORE, the instant petition is GRANTED. The Special Order and writ
of execution, both dated October 29, 1999, are ANNULLED and SET ASIDE.
Respondents are directed to desist from further implementing the writ of
execution and to lift the garnishment and levy made pursuant thereto. [105]
On 02 February 2000, Pea moved for the reconsideration of the CAs
Decision;[106] while petitioners filed their corresponding Comment/Opposition
thereto.[107]
During the pendency of Peas Motion for Reconsideration, Urban Bank
declared a bank holiday on 26 April 2000 and was placed under receivership
of the Philippine Deposit Insurance Corporation (PDIC).[108]
In its Amended Decision dated 18 August 2000, the CA[109] favorably granted
Peas Motion for Reconsideration, and reversed its earlier Decision to allow
execution pending appeal.[110] The appellate court found that the bank holiday
declared by the BSP after the promulgation of its earlier Decision, PDICs
receivership of Urban Bank, and the imminent insolvency thereof constituted
changes in the banks conditions that would justify execution pending
PINEDAPCGRNMAN
On 29 August 2000, Urban Bank and its officers moved for the
reconsideration of the Amended Decision.[112] The De Leon Group
subsequently filed several Supplemental Motions for Reconsideration.[113]
Thereafter, respondents Teodoro Borlongan and Corazon M. Bejasa also
filed their separate Supplemental Motion for Reconsideration,[114] as did
petitioner Ben T. Lim, Jr.[115]
On 19 October 2000, the Court of Appeals denied the motion for
reconsideration for lack of merit and the other subsequent Supplemental
Motions for Reconsideration for being filed out of time.[116] The appellate court
also ordered Pea to post an indemnity bond.[117] The Amended Decision and
the Resolution were the subjects of several Rule 45 Petitions filed by Urban
Bank and individual petitioners (G. R. Nos. 145817, 145818 and 145822).
On the same day the CA denied its Motion for Reconsideration, the De Leon
Group immediately moved for the stay of execution pending appeal upon the
filing of a supersedeas bond.[118]
On 31 October 2000, the CA[119] granted the stay of the execution upon the
filing by the De Leon Group of a PhP40,000,000 bond in favor of Pea.[120] Pea
moved for the reconsideration of the stay order.[121]
In its Resolution dated 08 December 2000,[122] the appellate court denied
Peas Motion for Reconsideration and a stay order over the execution pending
appeal was issued in favor of the De Leon Group, after they had filed their
supersedeas bond.[123] The stay of execution pending appeal, however,
excluded Urban Bank.[124]
On 08 December 2000, Pea posted his indemnity bond as required by the
CA.[125]
As mentioned earlier, Urban Bank, the De Leon Group, and the Borlongan
Group filed around December 2000 separate Rule 45 Petitions in this Court,
to assail the unfavorable CA Amended Decision and Resolution that affirmed
the execution pending appeal. The details of these Rule 45 Petitions will be
discussed in detail later on.
In the meantime, Export and Industry Bank (EIB) submitted its proposal for
rehabilitation of Urban Bank to the BSP, and requested that the troubled bank
be removed from receivership of the PDIC. On 12 July 2001, or almost a year
after the Court of Appeals amended its decision to allow execution pending
appeal, the rehabilitation plan of Urban Bank was approved by the Monetary
Board of the BSP.[126] Thus, the Monetary Board subsequently lifted PDICs
statutory receivership of the bank.[127]
On 14 September 2001, Urban Bank, trying to follow the lead of the De Leon
Group, made a similar request with the Court of Appeals for approval of its
own supersedeas bond,[128] for the same amount of PhP40,000,000, and
prayed that the execution of the RTC-Bago Citys Decision against it be
stayed as well.[129]
Sometime in September and October 2001, Urban Bank began receiving
notices of levy and garnishment over its properties. After it received Notice
of the impending public execution sale of its shares in the Tagaytay
Highlands International Golf Club,[130] Urban Bank reiterated its request for
the approval of the supersedeas bond with the Court of Appeals and the
issuance of the corresponding stay order.[131]
The appellate court, however, merely noted Urban Banks motion on the
ground that there was no showing whether a petition to the Supreme Court
had been filed or given due course or denied.[132]
appeal.[111]
LEGAL ETHICS PINEDAPCGRNMAN
After the denial by the Court of Appeals of Urban Banks motion for
approval of its supersedeas bond, some of the levied properties of
Urban Bank and the other bank officers were sold on public auction. The
table below lists the properties that appear on record to have been levied

Page 288
and/or sold on execution pending appeal and the approximate value of
some of these properties. They do not include properties covered by the
Petition docketed as G. R. No. 145818.
LEGAL ETHICS PINEDAPCGRNMAN
One Club Borlongans 1,000,000 Notice of
TABLE OF LEVIED, GARNISHED AND/OR EXECUTED PROPERTIES Share in club share Sale on
PENDING APPEAL Manila Polo was Execution
Owner/ Property Estimated Total Remarks Club (No. estimated to on
Defenda Description Value or Amount 3433)[146] be valued at Personal
nt Price at P1,000,000.[1 Property
Public
47] dated 25
Auction August
Three Club As of 06 4,800,000 2000[148]
Shares December One Club One club 500,000
Tagaytay 1999, one Share in share was
Highlands share was Subic Bay estimated to
International selling at Yacht be valued at
Golf Club[133] P1.6 Club[149] P500,000.[150
]
Million.[134]
Three Club As of 06 2,000,000[ Atty. Pea One Club As of 06 870,000
Shares in December 137] was one of Share in December
Teodoro
Makati 1999, MSCI the Baguio 1999, one
Borlong
Sports, Club, Club Shares winning Country share was
an
Inc. A and B were bidders in Club[151] selling at
(MSCI) [Cove selling at the P870,000.[152
]
red by Stock PhP650,000 auction
Certificate and sale One Club As of 06 650,000
Nos. A-1893, PhP700,000, together Share in December
A-2305 and respectively.[ with his MSCI[153] 1999, MSCI
B-762][135] 136] creditor Club Shares
friend, A and B were
Roberto selling at
Ignacio, PhP650,000
and Atty. and
Ramon PhP700,000
Ereeta. respectively.[
154]
85 The highest 85,000,00 Intervenor
Condominiu bid price 0 Unimega Real No estimate
m Units in the obtained for purchased Property[155] available on
Urban Bank the the 10 record.
Urban One Club Gonzales 4,000,000 Notice of
Plaza, Makati condominium condomini
Bank Share in club share Sale on
City[138] units um units in
wasPhP1M the Manila Polo was Execution
at the time of auction Club (No. estimated to on
the execution sale for 3818)[156] be valued at Personal
sale.[139] P1M each P4,000,000.[1 Property
or a total of 57] dated 25
P10 M.[140] August
A 155 sqm. 12,400,00 2000[158]
condominium 0 One Club Gonzales 1,077,000
unit, Makati Share in club share
City (CCT Baguio was
No. Country estimated to
57697) [141] Club.[159] be valued at
Estimates P1,077,000.[1
A 12.5 sqm. 500,000 Delfin C.
are based on 60]
condominium Gonzale
report of One Club 2,000,000
parking Gonzales
Urban s, Jr.
space Share in club share
Bank[142] Alabang
(Parking was
Three, Unit Country Club estimated to
P-46) in (Member No. be valued at
Makati City 550)[161] P2,000,000.[1
62]
(CCT No.
57698)[143] 30,585 P20.00 per 611,700
A 64,677 Value based 35,572,35 shares of share[164]
sqm. land in on estimate 0 stock in D. C.
Tagaytay of Urban Gonzales,
City (TCT No. Bank[145] Jr., Inc.[163]
20471)[144] 40 Shares of P50.00 per 2,000
stock in D. C. share[166]
Page 289

Gonzales,
Jr., Inc.[165]
LEGAL ETHICS PINEDAPCGRNMAN
One Club De Leons 5,050,000 Notice of One Club Lees club 500,000
Share in Share was Sale on Share in share was
Manila Polo estimated at Execution Subic Yacht estimated to
Club (with P4 M for the on Club[184] be valued at
Associate share and Personal P500,000.[185
Membership) P1.05 M for Property ]

[No. the associate dated 25 60,757 P20.00 per 1,214,140

0597][167] membership.[ August Shares of share
168]
2000[169] stock in EQL
One Club De Leons 450,000 Properties,
Benjami Share in share was Inc.[186]
n L. de MSCI (Stock estimated at 40 Shares of P50.00 per 2,000
Leon Certificate P450,000.[171 stock in EQL share
No. A- ]
Properties,
175)[170] Inc.[187]
One Club As of 06 870,000 Cash 100,000
Share in December garnished
Baguio 1999, one from BPI
Country Club share was Account[188]
(5523)[172] selling at No
least records
P870,000.[173 available
]
as to
No properties
records Ben T.
levied,
available Lim, Jr.
garnished
as to or
P. properties executed
Siervo levied, pending
G. Dizon garnished appeal.
or Corazon Real No estimated
executed Bejasa Property[189] value.
pending Arturo Real No estimated
appeal. Manuel, Property[190] value.
One Club Lees club 4,000,000 Notice of Jr.,
Share in share was Sale on TOTAL VALUE 181,919,1
Manila Polo estimated to Execution 90
Club be valued at on
(2038)[174] P4,000,000.[1 Personal The sum of PhP181,919,190 does not include many other properties and it
75] Property is not difficult to believe that the total value covered reached more than
dated 25 that.[191] In summary, the estimated values and/or purchase prices at the
August auction sale of the properties of Urban Bank and its officers amounted to no
2000[176] less than PhP181,919,190 already. This amounts to almost six times the
One Club Lees club 15,750,00 value of the award given by the trial court. Otherwise stated, Pea, as
Share in share was 0 judgment creditor, was overly secured by the levied and/or garnished
Manila Golf estimated to properties for the amount of PhP28,500,000, where the judgment award was
Club, Inc.[177] be valued at still subject of reversal on appeal.
P15,750,000.
Eric L. [178]
On 22 October 2001, Urban Bank, with respect to its pending Rule 45 Petition
Lee One Club Lees club 2,000,000 in this Court, moved for the approval of its PhP40,000,000 supersedeas
Share in Sta. share was bond[192] and requested that the Court stay the execution pending appeal.[193]
Elena Golf estimated to Pea opposed the motion on the ground that it had already been rendered
Club, Inc. be valued at moot and academic by the sale of the properties of the bank.[194]
(Class A P2,000,000.[1
Share) [179] 80] On 23 October 2002, or almost a year after some of the condominium units
Two Club Lees club 1,000,000 Notice of were sold in a public auction, EIB, as the successor of Urban Bank,
Shares in shares were Sale on expressed to the sheriff of RTC-Bago City an intent to redeem the said
Tagaytay estimated to Execution condominium units.[195] Thus, EIB tendered three managers checks in the
Highlands be valued at on total amount of PhP22,108,800[196] to redeem the properties that were
Intl Golf Club, P1,000,000.[1 Personal previously under the name of Urban Bank.[197] Although the trial court noted
Inc. [181] 82] Property the banks Manifestation,[198] the sheriff returned the EIBs managers checks.
dated 25 Thus, on 29 October 2002, EIB, through a motion, was prompted to turn over
August the checks to the trial court itself.[199]
2000[183]
When Urban Bank supposedly failed to redeem the condominium units
according to the sheriff,[200] final Certificates of Sale were issued in favor of
Page 290

Unimega on 04 November 2002.[201] Upon the latters motion, RTC-Bago City,

in its Order dated 13 November 2002, ordered the Register of Deeds of
Makati to transfer the Condominium Certificates of Title to the name of
LEGAL ETHICS
Unimega.[202] It has not been shown, though, whether this Order was
followed.
This Court, acting on Urban Banks earlier motion to approve its supersedeas
bond, granted the same in its Resolution dated 19 November 2001.[203] Pea
moved for reconsideration of the approval,[204] but his motion was
subsequently denied by the Court.[205]
Proceedings in the Supreme Court (G. R. Nos. 145817, 145818 & 145822)
On 21 December 2000, Urban Bank,[206] represented by its receiver,
PDIC,[207] filed a Rule 45 Petition with this Court (docketed as G. R. No.
145817) to assail the CAs Amended Decision and Resolution granting
execution pending appeal.[208] In response, Pea moved for the denial of the
petition on the grounds of lack merit, violation of the rule against forum
shopping, and non-payment of docket fees, among others.[209] In a separate
Comment,[210] Pea also argued that the appellate court had committed no
error when it considered the banks imminent insolvency as a good reason for
upholding the validity of the execution pending appeal.
On the other hand, the Borlongan Group[211] filed a separate Rule 45 Petition
questioning the same Decision and Resolution, docketed as G. R. No.
145818.[212] This Court initially denied their petition on the ground that it failed
to sufficiently show that the CA committed reversible order.[213] The Borlongan
Group twice moved for the reconsideration of the denial of their petition; but
the Court nonetheless denied both motions for lack of merit.[214] This denial
of the petition in G. R. No. 145818 became final and executory, with the
issuance of the Entry of Judgment.[215]
Meanwhile, another Rule 45 Petition (G. R. No. 145822)[216] was filed by the
De Leon Group, assailing the same Decisions of the appellate court. The
Court also preliminarily denied this petition on the ground that the De Leon
Group failed to file the appeal within the reglementary period and to pay
certain fees.[217]
Despite the denial of the Rule 45 Petition in G. R. No. 145822 filed by the De
Leon Group, the Court nonetheless ordered that the case be consolidated
with Urban Banks own Rule 45 Petition in G. R. No. 145817.[218] The Court
subsequently gave due course to both of these petitions.[219] In compliance
with the Courts Order,[220] Urban Bank[221] and the De Leon Group[222] filed
their respective Memoranda.
As detailed earlier, the Court granted and approved Urban Banks
supersedeas bond and stayed the execution pending appeal.
Considering the favorable stay of execution pending appeal, EIB, as the new
owner and successor of Urban Bank, immediately wrote to tell[223] the
corporate secretary of MSCI not to effect the cancellation or transfer of Urban
Banks three MSCI stock certificates previously sold in a public auction. [224] In
reply, MSCI explained that since there was no injunction or stay order, it had
no other option but to comply with the trial courts Order for the transfer.
Eventually, however, it could not effect the transfer of one of the shares to
Pea because a club share had already been previously registered in his
name, and the clubs bylaws prohibited a natural person from owning more
than one share.[225]Meanwhile, one of the winning bidders in the public
auction sale of the MSCI shares wrote to the latter to demand that the club
share previously owned by Urban Bank be transferred to him.[226]
On 04 February 2002, considering the conflicting claims of Urban Bank
(through EIB) and the winning bidders of the club shares, MSCI filed a Motion
for Clarification of the Courts Resolution staying the execution pending
appeal.[227]
In its Motion for Clarification dated 06 August 2002, Urban Bank likewise
requested clarification of whether the stay order suspended, as well, its right
to redeem the properties sold at a public auction.[228] The copy of Urban
Banks motion for clarification intended for Pea was mistakenly sent to the
wrong counsel.
PINEDAPCGRNMAN
In its Resolution dated 13 November 2002, the Court explained that its earlier
stay order prohibited the MSCI from transferring the shares, and that the one-
year period for redemption of the banks properties was likewise suspended:
WHEREFORE, the Court hereby RESOLVES to clarify that as a
consequence of its approval of the supersedeas bond, the running of the
one-year period for petitioner Urban Bank to redeem the properties sold
at the public auctions held on October 4, 11 and 25, 2001 as well as the
consolidation of the titles in favor of the buyers, is SUSPENDED OR
STAYED. MSCI is also prohibited from transferring petitioner Urban Banks
MSCI club shares to the winning bidders in the execution sale held on
October 11, 2001.[229] (Emphasis supplied)
On 09 December 2002, Pea moved that the Courts Resolution be recalled,
because he was not given an opportunity to be heard on Urban Banks Motion
for Clarification, which was sent to a different counsel.[230] Interposing its
objection, the bank argued that the error in mistakenly sending the Motion for
clarification to a different counsel was by sheer inadvertence,[231] but Pea was
nonetheless aware of the motion, and that the Courts clarification did not
create or diminish his rights in any case.[232]
The Motion for Clarification filed by Urban Bank, the Courts Resolution dated
13 November 2002 and Peas Omnibus Motion praying for the recall of the
said Resolution became the subject of an administrative case (Administrative
Case No. 6332), which was treated as a separate matter and later on de-
consolidated with the instant Petitions.[233]The Court had even called for an
executive session[234] in which Pea, among others, appeared and was
questioned by the then members of the Courts First Division, namely retired
Chief Justice Hilario Davide, Justices Jose Vitug, Antonio Carpio and Adolfo
Azcuna. Although the Petitions had earlier been assigned to Justice Carpio,
he has since taken no part in the proceedings of this case and this resulted
in the re-raffling of the Petitions. The transfer and unloading of the case by
the subsequently assigned Justices as well as Peas numerous motions for
inhibition and/or re-raffle has likewise cause considerable delay in the
disposition of the instant Petitions and the Administrative Case.
Unimega, which was the winning bidder of some of the publicly executed
condominium units of Urban Bank, moved to intervene in the case and to
have the Courts same Resolution suspending the one-year period of
redemption of the properties be reconsidered.[235] Unimega claimed that
ownership of the banks titles to the 10 condominium units had already been
transferred to the former at the time the Court issued the Resolution; and,
thus, there was no more execution to be suspended or stayed. Only Urban
Bank[236]opposed the motion[237]of intervenor Unimega on the ground that the
latter was not a buyer in good faith, and that the purchase price was grossly
disproportional to the fair market value of the condominium units.[238]
The Court eventually granted the Motion to Intervene considering that the
intervenors title to the condominium units purchased at the public auction
would be affected, favorably or otherwise, by the judgment of the Court in
this case. However, it held in abeyance the resolution of intervenors Motion
for Reconsideration, which might preempt the decision with respect to the
propriety of execution pending appeal.[239] Thereafter, the bank adopted its
earlier Opposition to the intervention as its answer to Unimegas petition-in-
intervention.[240] Also in answer thereto, the De Leon Group adopted its earlier
Manifestation and Comment.[241]
Intervenor Unimega then requested that a writ of possession be issued in its
favor covering the 10 condominium units sold during the public auction.[242]
The Court required the parties to file their comments on the request.[243] The
Lim[244] and Borlongan Groups[245] manifested separately that they would not
be affected by a resolution of the request of intervenor Unimega, since the
latter was not among the contending parties to the incident. Pea similarly
interposed no objection to the issuance of the writ of possession.[246] In
contrast, Urban Bank opposed the application of Unimega on the ground that
the latter was not entitled to possession of the levied properties, because the
rules of extrajudicial foreclosure were not applicable to execution sales under
Rule 39, and that intervenor was also not a buyer in good faith.[247] In a similar
Page 291
vein, the De Leon Group opposed the application for a writ of possession, and
further argued that the Court had already suspended the running of the one-
year period of redemption in the execution
LEGAL ETHICS
sale.[248] Accordingly, intervenor Unimega countered that the right of
redemption of the levied properties had already expired without having been
exercised by the judgment debtor.[249]
In summary, the Court shall resolve the substantial issues in the following:
(a) the Petition of Pea (G. R. No. 162562) assailing the CAs decision on the
substantive merits of the case with respect to his claims of compensation
based on an agency agreement; and (b) the Petitions of Urban Bank (G. R.
No. 145817) and the De Leon Group (G R. No. 145822) questioning the
propriety of the grant of execution pending appeal.
OUR RULING
I buyer of the subject Property or its exercise of the rights to ownership over
Pea is entitled to payment for compensation for services rendered as
agent of Urban Bank, but on the basis of the principles of unjust
enrichment andquantum meruit, and not on the purported oral contract.
The Court finds that Pea should be paid for services rendered under the
agency relationship that existed between him and Urban Bank based on the
civil law principle against unjust enrichment, but the amount of payment he
is entitled to should be made, again, under the principle against unjust
enrichment and on the basis of quantum meruit.
In a contract of agency, agents bind themselves to render some service or to
do something in representation or on behalf of the principal, with the consent
or authority of the latter.[250] The basis of the civil law relationship of agency
is representation, [251] the elements of which include the following: (a) the
relationship is established by the parties consent, express or implied; (b) the
object is the execution of a juridical act in relation to a third person; (c) agents
act as representatives and not for themselves; and (d) agents act within the
scope of their authority.[252]
Whether or not an agency has been created is determined by the fact that
one is representing and acting for another.[253] The law makes no presumption
of agency; proving its existence, nature and extent is incumbent upon the
person alleging it.[254]
With respect to the status of Atty. Peas relationship with Urban Bank, the trial
and the appellate courts made conflicting findings that shall be reconciled by
the Court. On one end, the appellate court made a definitive ruling that no
agency relationship existed at all between Pea and the bank, despite the
services performed by Pea with respect to the Pasay property purchased by
the bank. Although the Court of Appeals ruled against an award of agents
compensation, it still saw fit to award Pea with Ph3,000,000 for expenses
incurred for his efforts in clearing the Pasay property of tenants.[255] On the
other extreme, the trial court heavily relied on the sole telephone
conversation between Pea and Urban Banks President to establish that the
principal-agent relationship created between them included an agreement to
pay Pea the huge amount of PhP24,000,000. In its defense, Urban Bank
insisted that Pea was never an agent of the bank, but an agent of ISCI, since
the latter, as seller of the Pasay property committed to transferring it free from
tenants. Meanwhile, Pea argues on the basis of his successful and peaceful
ejectment of the sub-tenants, who previously occupied the Pasay property.
Based on the evidence on records and the proceedings below, the
Court concludes that Urban Bank constituted Atty. Pea as its agent to
secure possession of the Pasay property. This conclusion, however, is
not determinative of the basis of the amount of payment that must be
made to him by the bank. The context in which the agency was created
lays the basis for the amount of compensation Atty. Pea is entitled to.
The transactional history and context of the sale between ISCI and Urban
Bank of the Pasay property, and Atty. Peas participation in the transfer of
possession thereof to Urban Bank provide crucial linkages that establish the
nature of the relationship between the lawyer and the landowner-bank.
The evidence reveals that at the time that the Contract to Sell was executed
on 15 November 1994, and even when the Deed of Absolute Sale was
executed two weeks later on 29 November 1994, as far as Urban Bank was
concerned, Pea was nowhere in the picture. All discussions and
correspondences were between the President and Corporate Secretary of
Urban Bank, on one hand, and the President of ISCI, on the other. The title
PINEDAPCGRNMAN
to the Pasay property was transferred to Urban Bank on 5 December 1994.
Interestingly, Pea testifies that it was only on 19 December 1994 that he
learned that the land had already been sold by ISCI to Urban Bank,
notwithstanding the fact that Pea was a director of ISCI. Pea was not asked
to render any service for Urban Bank, neither did he perform any service for
Urban Bank at that point.
ISCI undertook in the Contract to Sell, to physically deliver the property to
Urban Bank, within 60 days from 29 November 1994,[256] under conditions of
full and actual possession and control ..., free from tenants, occupants,
squatters or other structures or from any liens, encumbrances, easements or
any other obstruction or impediment to the free use and occupancy by the
the subject Property....[257] To guarantee this undertaking, ISCI agreed to the
escrow provision where PhP25,000,000 (which is a little over 10% of the
value of the Pasay property) would be withheld by Urban Bank from the total
contract price until there is full compliance with this undertaking.
Apparently to ensure that ISCI is able to deliver the property physically clean
to Urban Bank, it was ISCIs president, Enrique Montilla who directed on 26
November 1994 one of its directors, Pea, to immediately recover and take
possession of the property upon expiration of the contract of lease on 29
November 1994.[258] Pea thus first came into the picture as a director of ISCI
who was constituted as its agent to recover the Pasay property against the
lessee as well as the sub-tenants who were occupying the property in
violation of the lease agreement.[259] He was able to obtain possession of the
property from the lessee on the following day, but the unauthorized sub-
tenants refused to vacate the property.
It was only on 7 December 1994, that Urban Bank was informed of the
services that Pea was rendering for ISCI. The faxed letter from ISCIs Marilyn
Ong reads:
Atty. Magdaleno M. Pea, who has been assigned by Isabela Sugar
Company, Inc., to take charge of inspecting the tenants would like to
request an authority similar to this from the Bank, as new owners. Can you
please issue something like this today as he needs this.[260]
Two days later, on 9 December 1994, ISCI sent Urban Bank another letter
that reads:
Dear Mr. Borlongan, I would like to request for an authorization from Urban
Bank as per attached immediately as the tenants are questioning the
authority of the people there who are helping us to take over
possession of the property. (Emphasis supplied)[261]
It is clear from the above that ISCI was asking Urban Bank for help to comply
with ISCIs own contractual obligation with the bank under the terms of the
sale of the Pasay property. Urban Bank could have ignored the request, since
it was exclusively the obligation of ISCI, as the seller, to deliver a clean
property to Urban Bank without any help from the latter.
A full-bodied and confident interpretation of the contracts between ISCI and
Urban Bank should have led the latter to inform the unauthorized sub-tenants
that under its obligation as seller to Urban Bank, it was under duty and had
continuing authority to recover clean possession of the property, despite the
transfer of title. Yet, what unauthorized sub-tenant, especially in the kind of
operations being conducted within the Pasay property, would care to listen
or even understand such argument?
Urban Bank thus chose to cooperate with ISCI without realizing the kind of
trouble that it would reap in the process. In an apparent attempt to allow the
efforts of ISCI to secure the property to succeed, it recognized Peas role in
helping ISCI, but stopped short of granting him authority to act on its behalf.
In response to the two written requests of ISCI, Urban Bank sent this letter to
Pea on 15 December 1994:
This is to advise you that we have noted the engagement of your services by
Isabela Sugar Company to recover possession of the Roxas Boulevard
property formerly covered by TCT No. 5382, effective November 29, 1994. It
Page 292
is understood that your services have been contracted by and your
principal remains to be the Isabela Sugar Company, which as seller of
the property and under the terms of our Contract to Sell dated November 29,
LEGAL ETHICS
1994, has committed to deliver the full and actual possession of the said
property to the buyer, Urban Bank, within the stipulated period.
[262] (Emphasis supplied)
Up to this point, it is unmistakable that Urban Bank was staying clear from
making any contractual commitment to Pea and conveyed its sense that
whatever responsibilities arose in retaining Pea were to be shouldered by
ISCI.
According to the RTC-Bago City, in the reversed Decision, Atty. Pea only
knew of the sale between ISCI and Urban Bank at the time the RTC-Pasay
City recalled the TRO and issued a break-open order:
when information reached the (Pasay City) judge that the Pasay property had
already been transferred by ISCI to Urban Bank, the trial court recalled the
TRO and issued a break-open order for the property. According to Pea, it
was the first time that he was apprised of the sale of the land by ISCI and of
the transfer of its title in favor of the bank.[263]
There is something contradictory between some of the trial courts factual
findings and Peas claim that it was only on 19 December 1994 that he first
learned of the sale of the property to Urban Bank. It is difficult to believe Pea
on this point considering: (1) that he was a board director of ISCI and a sale
of this significant and valuable property of ISCI requires the approval of the
board of directors of ISCI; and (2) that ISCI twice requested Urban Bank for
authority to be issued in his favor (07 and 9 December 1994), 12 and 10 days
before 19 December 1994, since it would be contrary to human experience
for Pea not to have been informed by an officer of ISCI beforehand that a
request for authority for him was being sent to Urban Bank.
The sequence of fast-moving developments, edged with a sense of panic,
with respect to the decision of the RTC-Pasay City to recall the temporary
restraining order and issue a break-open order on 19 December 1994 in the
First Injunction Complaint, is highly enlightening to this Court.
First, Pea allegedly called up the president of ISCI, Montilla, who, according
to Pea, confirmed to him that the Pasay property had indeed been sold to
Urban Bank.
Second, Pea allegedly told Montilla that he (Pea) would be withdrawing his
guards from the property because of the break-open order from the RTC-
Pasay City.
Third, Montilla requested Pea to suspend the withdrawal of the guards while
ISCI gets in touch with Urban Bank.
Fourth, apparently in view of Montillas efforts, Bejasa, an officer of Urban
Bank called Pea and according to the latter, told him that Urban Bank would
continue retaining his services and for him to please continue with his effort
to secure the property.
Fifth, this statement of Bejasa was not enough for Pea and he insisted that
he be enabled to talk with no less than the President of Urban Bank,
Borlongan. At this point, Bejasa gave him the phone number of Borlongan.
Sixth, immediately after the conversation with Bejasa, Pea calls Borlongan
and tells Borlongan that violence might erupt in the property because the
Pasay City policemen, who were sympathetic to the tenants, were
threatening to force their way through the property.
At this point, if indeed this conversation took place, which Borlongan
contests, what would have been the response of Borlongan? Any prudent
president of a bank, which has just purchased a PhP240,000,000 property
plagued by unauthorized and unruly sub-tenants of the previous owner,
would have sought to continue the possession of ISCI, thru Pea, and he
would have agreed to the reasonable requests of Pea. Borlongan could also
have said that the problem of having the sub-tenants ejected is completely
ISCIs and ISCI should resolve the matter on its own that without bothering
the bank, with all its other problems. But the specter of violence, especially
as night was approaching in a newly-bought property of Urban Bank, was not
PINEDAPCGRNMAN
something that any publicly-listed bank would want publicized. To the extent
that the violence could be prevented by the president of Urban Bank, it is
expected that he would opt to have it prevented.
But could such response embrace the following legal consequences as Pea
claims to have arisen from the telephone conversation with Borlongan: (1) A
contract of agency was created between Pea and Urban Bank whereby
Borlongan agreed to retain the services of Pea directly; (2) This contract of
agency was to be embodied in a written letter of authority from Urban Bank;
and (3) The agency fee of Pea was to be 10% of the market value as
attorneys fees and compensation and reimbursement of all expenses of Pea
from the time he took over the land until possession is turned over to Urban
Bank.
This Court concludes that the legal consequences described in statements
(1) and (2) above indeed took place and that the facts support them.
However, the evidence does not support Peas claim that Urban Bank agreed
to attorneys fees and compensation of 10% of the market value of the
property.
Urban Banks letter dated 19 December 1994 confirmed in no uncertain terms
Peas designation as its authorized representative to secure and maintain
possession of the Pasay property against the tenants. Under the terms of the
letter, petitioner-respondent bank confirmed his engagement (a) to hold and
maintain possession of the Pasay property; (b) to protect the same from
former tenants, occupants or any other person who are threatening to return
to the said property and/or interfere with your possession of the said property
for and in our behalf; and (c) to represent the bank in any instituted court
action intended to prevent any intruder from entering or staying in the
premises.[264]
These three express directives of petitioner-respondent banks letter admits
of no other construction than that a specific and special authority was given
to Pea to act on behalf of the bank with respect to the latters claims of
ownership over the property against the tenants. Having stipulated on the
due execution and genuineness of the letter during pretrial,[265] the bank is
bound by the terms thereof and is subject to the necessary consequences of
Peas reliance thereon. No amount of denial can overcome the presumption
that we give this letter that it means what it says.
In any case, the subsequent actions of Urban Bank resulted in the ratification
of Peas authority as an agent acting on its behalf with respect to the Pasay
property. By ratification, even an unauthorized act of an agent becomes an
authorized act of the principal.[266]
Both sides readily admit that it was Pea who was responsible for clearing the
property of the tenants and other occupants, and who turned over possession
of the Pasay property to petitioner-respondent bank.[267] When the latter
received full and actual possession of the property from him, it did not protest
or refute his authority as an agent to do so. Neither did Urban Bank contest
Peas occupation of the premises, or his installation of security guards at the
site, starting from the expiry of the lease until the property was turned over to
the bank, by which time it had already been vested with ownership thereof.
Furthermore, when Pea filed the Second Injunction Complaint in the RTC-
Makati City under the name of petitioner-respondent bank, the latter did not
interpose any objection or move to dismiss the complaint on the basis of his
lack of authority to represent its interest as the owner of the property. When
he successfully negotiated with the tenants regarding their departure from its
Pasay property, still no protest was heard from it. After possession was
turned over to the bank, the tenants accepted PhP1,500,000 from Pea, in full
and final settlement of their claims against Urban Bank, and not against
ISCI.[268]
In all these instances, petitioner-respondent bank did not repudiate the
actions of Pea, even if it was fully aware of his representations to third parties
on its behalf as owner of the Pasay property. Its tacit acquiescence to his
dealings with respect to the Pasay property and the tenants spoke of its intent
to ratify his actions, as if these were its own. Even assuming arguendo that
Page 293
it issued no written authority, and that the oral contract was not substantially
established, the bank duly ratified his acts as its agent by its acquiescence
LEGAL ETHICS
and acceptance of the benefits, namely, the peaceful turnover of possession
of the property free from sub-tenants.
Even if, however, Pea was constituted as the agent of Urban Bank, it does
not necessarily preclude that a third party would be liable for the payment of
the agency fee of Pea. Nor does it preclude the legal fact that Pea while an
agent of Urban Bank, was also an agent of ISCI, and that his agency from
the latter never terminated. This is because the authority given to Pea by both
ISCI and Urban Bank was common to secure the clean possession of the
property so that it may be turned over to Urban Bank. This is an ordinary legal
phenomenon that an agent would be an agent for the purpose of pursuing a
shared goal so that the common objective of a transferor and a new
transferee would be met.
Indeed, the Civil Code expressly acknowledged instances when two or more
principals have granted a power of attorney to an agent for a common
transaction.[269] The agency relationship between an agent and two
principals may even be considered extinguished if the object or the purpose
of the agency is accomplished.[270] In this case, Peas services as an agent of
both ISCI and Urban Bank were engaged for one shared purpose or
transaction, which was to deliver the property free from unauthorized sub-
tenants to the new owner a task that Pea was able to achieve and is entitled
to receive payment for.
That the agency between ISCI and Pea continued, that ISCI is to shoulder
the agency fee and reimbursement for costs of Pea, and that Urban Bank
never agreed to pay him a 10% agency fee is established and supported by
the following:
First, the initial agency relationship between ISCI and Pea persisted. No
proof was ever offered that the letter of 26 November 1994 of Mr. Montilla of
ISCI to Pea, for the latter to immediately recover and take possession of the
property upon expiration of the contract of lease on 29 November 1994 was
terminated. It is axiomatic that the appointment of a new agent for the same
business or transaction revokes the previous agency from the day on which
notice thereof was given to the former agent.[271] If it is true that the agency
relationship was to be borne by Urban Bank alone, Pea should have
demonstrated that his previous agency relationship with ISCI is incompatible
with his new relationship with Urban Bank, and was thus terminated.
Second, instead, what is on the record is that ISCI confirmed the continuation
of this agency between Pea and itself and committed to pay for the services
of Pea, in its letter to Urban Bank dated 19 December 1994 which reads:
In line with our warranties as the Seller of the said property and our
undertaking to deliver to you the full and actual possession and control of
said property, free from tenants, occupants or squatters and from any
obstruction or impediment to the free use and occupancy of the property by
Urban Bank, we have engaged the services of Atty. Magdaleno M. Pea
to hold and maintain possession of the property and to prevent the
former tenants or occupants from entering or returning to the premises.
In view of the transfer of the ownership of the property to Urban Bank, it may
be necessary for Urban Bank to appoint Atty. Pea likewise as its authorized
representative for purposes of holding/maintaining continued possession of
the said property and to represent Urban Bank in any court action that may
be instituted for the abovementioned purposes.
It is understood that any attorneys fees, cost of litigation and any other
charges or expenses that may be incurred relative to the exercise by
Atty. Pea of his abovementioned duties shall be for the account of
Isabela Sugar Company and any loss or damage that may be incurred to
third parties shall be answerable by Isabela Sugar Company.[272] (Emphasis
supplied)
Third, Pea has never shown any written confirmation of his 10% agency fee,
whether in a note, letter, memorandum or board resolution of Urban Bank.
An agency fee amounting to PhP24,000,000 is not a trifling amount, and
corporations do not grant their presidents unilateral authority to bind the
corporation to such an amount, especially not a banking corporation which is
closely supervised by the BSP for being a business seriously imbued with
public interest. There is nothing on record except the self-serving testimony
of Pea that Borlongan agreed to pay him this amount in the controverted
telephone conversation.
PINEDAPCGRNMAN
Fourth, while ordinarily, uncontradicted testimony will be accorded its full
weight, we cannot grant full probative value to the testimony of Pea for the
following reasons: (a) Pea is not a credible witness for testifying that he only
learned of the sale of the property of 19 December 1994 when the acts of
ISCI, of Urban Bank and his own up to that point all indicated that he must
have known about the sale to Urban Bank; and (b) it is incredible that Urban
Bank will agree to add another PhP24,000,000 to the cost of the property by
agreeing to the agency fee demanded by Pea. No prudent and reasonable
person would agree to expose his corporation to a new liability of
PhP24,000,000 even if, in this case, a refusal would lead to the Pasay City
policemen and unauthorized sub-tenants entering the guarded property and
would possibly erupt in violence.
Peas account of an oral agreement with Urban Bank for the payment of
PhP24,000,000 is just too much for any court to believe. Whatever may be
the agreement between Pea and ISCI for compensation is not before this
Court. This is not to say, however, that Urban Bank has no liability to Pea. It
has. Payment to him is required because the Civil Code demands that no
one should be unjustly enriched at the expense of another. This payment is
to be measured by the standards of quantum meruit.
Amount of Compensation
Agency is presumed to be for compensation. But because in this case we
find no evidence that Urban Bank agreed to pay Pea a specific amount or
percentage of amount for his services, we turn to the principle against unjust
enrichment and on the basis of quantum meruit.
Since there was no written agreement with respect to the compensation due
and owed to Atty. Pea under the letter dated 19 December 1994, the Court
will resort to determining the amount based on the well-established rules on
quantum meruit.
Agency is presumed to be for compensation.[273] Unless the contrary intent is
shown, a person who acts as an agent does so with the expectation of
payment according to the agreement and to the services rendered or results
effected.[274] We find that the agency of Pea comprised of services ordinarily
performed by a lawyer who is tasked with the job of ensuring clean
possession by the owner of a property. We thus measure what he is entitled
to for the legal services rendered.
A stipulation on a lawyers compensation in a written contract for professional
services ordinarily controls the amount of fees that the contracting lawyer
may be allowed to collect, unless the court finds the amount to be
unconscionable.[275] In the absence of a written contract for professional
services, the attorneys fees are fixed on the basis ofquantum meruit,[276] i.e.,
the reasonable worth of the attorneys services.[277] When an agent performs
services for a principal at the latters request, the law will normally imply a
promise on the part of the principal to pay for the reasonable worth of those
services.[278] The intent of a principal to compensate the agent for services
performed on behalf of the former will be inferred from the principals request
for the agents.[279]
In this instance, no extra-ordinary skills employing advanced legal training
nor sophisticated legal maneuvering were required to be employed in
ejecting 23 sub-tenants who have no lease contract with the property owner,
and whose only authority to enter the premises was unlawfully given by a
former tenant whose own tenancy has clearly expired. The 23 sub-tenants
operated beer houses and nightclubs, ordinary retail establishments for
which no sophisticated structure prevented easy entry. After Pea succeeded
in locking the gate of the compound, the sub-tenants would open the padlock
and resume their businesses at night. Indeed, it appears that only security
guards, chains and padlocks were needed to keep them out. It was only the
alleged connivance of Pasay City policemen that Peas ability to retain the
Page 294
possession was rendered insecure. And how much did it take Pea to enter
into a settlement agreement with them and make all these problems go
away? By Peas own account, PhP1,500,000 only. That means that each
LEGAL ETHICS
tenant received an average of PhP65,217.40 only. Surely, the legal services
of Pea cannot be much more than what the sub-tenants were willing to settle
for in the first place. We therefore award him the equivalent amount of
PhP1,500,000 for the legal and other related services he rendered to eject
the illegally staying tenants of Urban Banks property.
The Court of Appeals correctly reversed the trial court and found it to have
acted with grave abuse of discretion in granting astounding monetary awards
amounting to a total of PhP28,500,000 without any basis.[280] For the lower
court to have latched on to the self-serving claims of a telephone agreement
as sufficient support for extending a multi-million peso award is highly
irregular. Absent any clear basis for the amount of the lawyers compensation,
the trial court should have instinctively resorted to quantum meruit, instead
of insisting on a figure with circumstantial and spurious justification.
We cannot also agree with the Decision penned by Judge Edgardo L. Catilo
characterizing Penas 10% fee as believable because it is nearly congruent
to the PhP25 Million retention money held in escrow for ISCI until a clean
physical and legal turn-over of the property is effected:
We now come to the reasonableness of the compensation prayed for by the
plaintiff which is 10% of the current market value which defendants claim to
be preposterous and glaringly excessive. Plaintiff [Pea] testified that
defendant Borlongan agreed to such an amount and this has not been denied
by Ted Borlongan. The term current market value of the property is hereby
interpreted by the court to mean the current market value of the property at
the time the contract was entered into. To interpret it in accordance with the
submission of the plaintiff that it is the current market value of the property at
the time payment is made would be preposterous. The only evidence on
record where the court can determine the market value of the property at the
time the contract of agency was entered into between plaintiff and defendant
is the consideration stated in the sales agreement between Isabela Sugar
Company, Inc. and Urban bank which isP241,612,000.00. Ten percent of this
amount is a reasonable compensation of the services rendered by the
plaintiff considering the no cure, no pay arrangement between the parties
and the risks which plaintiff had to undertake.[281]
In the first place, the Decision of Judge Catilo makes Peas demand of an
agency fee of PhP24 Million, an additional burden on Urban Bank. The
Decision does not make the retention money responsible for the same, or
acquit Urban Bank of any liability to ISCI if it pays the PhP24 Million directly
to Pena instead of ISCI. In the second place, the amount of money that is
retained by transferees of property transactions while the transferor is
undertaking acts to ensure a clean and peaceful transfer to the transferee
does not normally approximate a one-to-one relationship to the services of
ejecting unwanted occupants. They may be inclusive of other costs, and not
only legal costs, with enough allowances for contingencies, and may take
into consideration other liabilities as well. The amount can even be entirely
arbitrary, and may have been caused by the practice followed by Urban Bank
as advised by its officers and lawyers or by industry practice in cases where
an expensive property has some tenancy problems. In other words, Judge
Catilos statement is a non sequitur, is contrary to normal human experience,
and sounds like an argument being made to fit Peas demand for a shocking
pay-out.
In any case, 10% of the purchase price of the Pasay property a staggering
PhP24,161,200 is an unconscionable amount, which we find reason to
reduce. Neither will the Court accede to the settlement offer of Pea to Urban
Bank of at least PhP38,000,000 for alleged legal expenses incurred during
the course of the proceedings,[282] an amount that he has not substantiated
at any time.
Lawyering is not a business; it is a profession in which duty to public service,
not money, is the primary consideration.[283] The principle of quantum meruit
applies if lawyers are employed without a price agreed upon for their
services, in which case they would be entitled to receive what they merit for
their services, or as much as they have earned.[284] In fixing a reasonable
compensation for the services rendered by a lawyer on the basis of quantum
meruit, one may consider factors such as the time spent and extent of
services rendered; novelty and difficulty of the questions involved;
importance of the subject matter; skill demanded; probability of losing other
employment as a result of acceptance of the proffered case; customary
PINEDAPCGRNMAN
charges for similar services; amount involved in the controversy and the
resulting benefits for the client; certainty of compensation; character of
employment; and professional standing of the lawyer.[285]
Hence, the Court affirms the appellate courts award of PhP3,000,000 to Pea,
for expenses incurred corresponding to the performance of his services. An
additional award of PhP1,500,000 is granted to him for the services he
performed as a lawyer in securing the rights of Urban Bank as owner of the
Pasay property.
II
The corporate officers and directors of Urban Bank are not solidarily or
personally liable with their properties for the corporate liability of Urban
Bank to Atty. Pea.
The obligation to pay Peas compensation, however, falls solely on Urban
Bank. Absent any proof that individual petitioners as bank officers acted in
bad faith or with gross negligence or assented to a patently unlawful act, they
cannot be held solidarily liable together with the corporation for services
performed by the latters agent to secure possession of the Pasay property.
Thus, the trial court had indeed committed grave abuse of discretion when it
issued a ruling against the eight individual defendant bank directors and
officers and its Decision should be absolutely reversed and set aside.
A corporation, as a juridical entity, may act only through its directors, officers
and employees.[286] Obligations incurred as a result of the acts of the directors
and officers as corporate agents are not their personal liabilities but those of
the corporation they represent.[287] To hold a director or an officer personally
liable for corporate obligations, two requisites must concur: (1) the
complainant must allege in the complaint that the director or officer assented
to patently unlawful acts of the corporation, or that the officer was guilty of
gross negligence or bad faith; and (2) the complainant must clearly and
convincingly prove such unlawful acts, negligence or bad faith.[288] To hold a
director, a trustee or an officer personally liable for the debts of the
corporation and, thus, pierce the veil of corporate fiction, bad faith or gross
negligence by the director, trustee or officer in directing the corporate affairs
must be established clearly and convincingly.[289]
Pea failed to allege and convincingly show that individual defendant bank
directors and officers assented to patently unlawful acts of the bank, or that
they were guilty of gross negligence or bad faith. Contrary to his claim, the
Complaint[290] in the lower court never alleged that individual defendants
acquiesced to an unlawful act or were grossly negligent or acted in bad
faith.[291] Neither is there any specific allegation of gross negligence or action
in bad faith that is attributable to the individual defendants in performance of
their official duties.
In any event, Pea did not adduce any proof that the eight individual
defendants performed unlawful acts or were grossly negligent or in bad faith.
Aside from the general allegation that they were corporate officers or
members of the board of directors of Urban Bank, no specific acts were
alleged and proved to warrant a finding of solidary liability. At most,
petitioners Borlongan, Bejasa and Manuel were identified as those who had
processed the agency agreement with Pea through their telephone
conversations with him and/or written authorization letter.
Aside from Borlongan, Bejasa and Manuel, Atty. Pea in the complaint pointed
to no specific act or circumstance to justify the inclusion of Delfin C.
Gonzalez, Jr., Benjamin L. de Leon, P. Siervo H. Dizon, Eric L. Lee, and Ben
T. Lim, Jr., except for the fact that they were members of the Board of
Directors of Urban Bank at that time. That the five other members of the
Board of Directors were excluded from Peas complaint highlights the
peculiarity of their inclusion. What is more, the complaint mistakenly included
Ben Y. Lim, Jr., who had not even been a member of the Board of Directors
of Urban Bank. In any case, his father and namesake, Ben T. Lim, Sr., who
had been a director of the bank at that time, had already passed away in
1997.
Page 295
In ruling for the solidary liability of the other bank directors, the decision of
the trial court hinged solely on the purported admission of Arturo Manuel, Jr.,
that the transactions with Atty. Pea were approved by the Board of Directors:
LEGAL ETHICS
In this case, plaintiff testified as to the personal participation of defendants
Ted Borlongan and Corazon Bejasa in the subject transaction. On the other
hand, with respect to the other defendants, it was the defendants themselves,
through witness Arturo Manuel, Jr., who admitted that all the transactions
involved in this case were approved by the board of directors. Thus, the
court has sufficient basis to hold the directors jointly and severally liable with
defendant Urban Bank, Inc.[292] (Emphasis supplied)
The Decision of the RTC-Bago City must be utterly rejected on this point
because its conclusion of any cause of action, much less actual legal liability
on the part of Urban Banks corporate officers and directors are shorn of any
factual finding. That they assented to the transactions of the bank with
respect to Atty. Peas services without any showing that these corporate
actions were patently unlawful or that the officers were guilty of gross
negligence or bad faith is insufficient to hold them solidarily liable with Urban
Bank. It seems absurd that the trial court will hold the impleaded selected
members of the Board of Directors only, but not the others who also
purportedly approved the transactions. Neither is the reason behind the
finding of solidariness with Urban Bank in such liability explained at all. It is
void for completely being devoid of facts and the law on which the finding of
liability is based.
The Court of Appeals correctly rejected the claim of personal liability against
the individual petitioners when it held as follows:
The plaintiff-appellees complaint before the court a quo does not point to any
particular act of either one or all of the defendants-appellants that will subject
them to personal liability. His complaint merely asserts that defendant
Borlongan and Atty. Bejasa acted for and in behalf of Urban Bank in securing
his services in protecting the banks newly acquired property. Hence, We
cannot allow the same.[293]
Pea had argued that individual defendant bank directors and officers should
be held personally and solidarily liable with petitioner-respondent bank, since
they failed to argue for limited corporate liability.[294] The trial court subscribed
to his reasoning and held that the failure to resort to the said defense
constituted a waiver on the part of individual defendants.[295] The Court is not
persuaded.
As the complainant on the trial court level, Pea carried the burden of proving
that the eight individual defendants performed specific acts that would make
them personally liable for the obligations of the corporation. This he failed to
do. He cannot capitalize on their alleged failure to offer a defense, when he
had not discharged his responsibility of establishing their personal liabilities
in the first place. This Court cannot sustain the individual liabilities of the bank
officers when Pea, at the onset, has not persuasively demonstrated their
assent to patently unlawful acts of the bank, or that they were guilty of gross
negligence or bad faith, regardless of the weaknesses of the defenses raised.
This is too basic a requirement that this Court must demand sufficient proof
before we can disregard the separate legal personality of the corporation
from its offices.
Hence, only Urban Bank, not individual defendants, is liable to pay Peas
compensation for services he rendered in securing possession of the Pasay
property. Its liability in this case is, however, without prejudice to its possible
claim against ISCI for reimbursement under their separate agreements.
III
Considering the absolute nullification of the trial courts Decision, the
proceedings arising from the execution pending appeal based on the
said Decision is likewise completely vacated.
Since the trial courts main Decision awarding PhP28,500,000 in favor of Pea
has been nullified above, the execution pending appeal attendant thereto, as
a result, no longer has any leg to stand on and is thus completely vacated.
PINEDAPCGRNMAN
To recall, prior to the filing of Urban Bank of its notice of appeal in the main
case,[296] Pea moved on 07 June 1999 for execution pending appeal[297] of the
Decision,[298] which had awarded him a total of PhP28,500,000 in
compensation and damages.[299] In supporting his prayer for discretionary
execution, Pea cited no other reason than the pending separate civil
action for collection filed against him by a creditor, who was demanding
payment of a PhP3,000,000 loan.[300]According to him, he had used the
proceeds of the loan for securing the banks Pasay property.[301] In opposition
to the motion, Urban Bank countered that the collection case was not a
sufficient reason for allowing execution pending appeal.[302]
Favorably acting on Peas motion, the RTC-Bago City, through Judge Henry
J. Trocino,[303] issued a Special Order authorizing execution pending appeal
on the basis of Peas indebtedness to his creditor-friend.[304] In accordance
with this Special Order, Atty. Josephine Mutia-Hagad, the clerk of court and
ex officio sheriff, expeditiously issued a Writ of Execution on the same
day.[305] The trial courts Special Order and Writ of Execution were the subjects
of a Rule 65 Petition filed by Urban Bank with the CA.[306]
Both the Special Order and Writ of Execution are nullified for two reasons:
(1) Since the Decision of the RTC-Bago City is completely vacated,
all its issuances pursuant to the Decision, including the Special Order and
the Writ of Execution are likewise vacated; and
(2) The Special Order authorizing execution pending appeal based
on the collection suit filed against Atty. Pea had no basis under the Rules of
Court, and the same infirmity thus afflicts the Writ of Execution issued
pursuant thereto.
Since the Decision of the RTC-Bago City is vacated, all orders and writs
pursuant thereto are likewise vacated.
Considering that the Special Order and Writ of Execution was a result of the
trial courts earlier award of PhP28,500,000, the nullification or complete
reversal of the said award necessarily translates to the vacation as well of
the processes arising therefrom, including all the proceedings for the
execution pending appeal.
Considering the unconscionable award given by the trial court and the
unjustified imposition of solidary liability against the eight bank officers, the
Court is vacating the Decision of the RTC-Bago City Decision. The trial court
erroneously made solidarily liable Urban Banks directors and officers without
even any allegations, much less proof, of any acts of bad faith, negligence or
malice in the performance of their duties. In addition, the trial court mistakenly
anchored its astounding award of damages amounting PhP28,500,000 on
the basis of the mere account of Atty. Pea of a telephone conversation,
without even considering the surrounding circumstances and the sheer
disproportion to the legal services rendered to the bank.
A void judgment never acquires finality.[307] In contemplation of law, that void
decision is deemed non-existent.[308] Quod nullum est, nullum producit
effectum.[309]Hence, the validity of the execution pending appeal will
ultimately hinge on the courts findings with respect to the decision in which
the execution is based.
Although discretionary execution can proceed independently while the
appeal on the merits is pending, the outcome of the main case will greatly
impact the execution pending appeal, especially in instances where as in this
case, there is a complete reversal of the trial courts decision. Thus, if the
decision on the merits is completely nullified, then the concomitant execution
pending appeal is likewise without any effect. In fact, the Rules of Court
expressly provide for the possibility of reversal, complete or partial, of a final
judgment which has been executed on appeal.[310] Precisely, the execution
pending appeal does not bar the continuance of the appeal on the merits, for
the Rules of Court explicitly provide for restitution according to equity and
justice in case the executed judgment is reversed on appeal.[311]
Page 296
Considering that the Decision of the RTC-Bago City has been completely
vacated and declared null and void, it produces no effect whatsoever. Thus,
LEGAL ETHICS
the Special Order and its concomitant Writ of Execution pending appeal is
likewise annulled and is also without effect. Consequently, all levies,
garnishment and sales executed pending appeal are declared null and void,
with the concomitant duty of restitution under the Rules of Court, as will be
discussed later on.
In any case, the trial courts grant of execution pending appeal lacks sufficient
basis under the law and jurisprudence.
We rule that the pendency of a collection suit by a third party creditor which
credit was obtained by the winning judgment creditor in another case, is not
a sufficiently good reason to allow execution pending appeal as the Rules of
Court provide. Execution pending appeal is an extraordinary remedy allowed
only when there are reasons to believe that the judgment debtor will not be
able to satisfy the judgment debt if the appeals process will still have to be
awaited. It requires proof of circumstances such as insolvency or attempts to
escape, abscond or evade a just debt.
In Florendo v. Paramount Insurance, Corp.,[312] the Court explained that the
execution pending appeal is an exception to the general rule that execution
issues as a matter of right, when a judgment has become final and executory:
As such exception, the courts discretion in allowing it must be strictly
construed and firmly grounded on the existence of good reasons. Good
reasons, it has been held, consist of compelling circumstances that
justify immediate execution lest the judgment becomes illusory. The
circumstances must be superior, outweighing the injury or damages that
might result should the losing party secure a reversal of the judgment. Lesser
reasons would make of execution pending appeal, instead of an instrument
of solicitude and justice, a tool of oppression and inequity. (Emphasis
supplied)
Indeed, the presence or the absence of good reasons remains the yardstick
in allowing the remedy of execution pending appeal, which should consist of
exceptional circumstances of such urgency as to outweigh the injury or
damage that the losing party may suffer, should the appealed judgment be
reversed later.[313] Thus, the Court held that even the financial distress of the
prevailing company is not sufficient reason to call for execution pending
appeal:
In addressing this issue, the Court must stress that the execution of a
judgment before its finality must be founded upon good reasons. The
yardstick remains the presence or the absence of good reasons consisting
of exceptional circumstances of such urgency as to outweigh the injury or
damage that the losing party may suffer, should the appealed judgment be
reversed later. Good reason imports a superior circumstance that will
outweigh injury or damage to the adverse party. In the case at bar, petitioner
failed to show paramount and compelling reasons of urgency and justice.
Petitioner cites as good reason merely the fact that it is a small-time building
contractor that could ill-afford the protracted delay in the reimbursement of
the advances it made for the aforesaid increased costs of . . . construction of
the [respondent's] buildings.
Petitioner's allegedly precarious financial condition, however, is not by
itself a jurisprudentially compelling circumstance warranting
immediate execution. The financial distress of a juridical entity is not
comparable to a case involving a natural person such as a very old and sickly
one without any means of livelihood, an heir seeking an order for support and
monthly allowance for subsistence, or one who dies.
Indeed, the alleged financial distress of a corporation does not outweigh the
long standing general policy of enforcing only final and executory judgments.
Certainly, a juridical entity like petitioner corporation has, other than
extraordinary execution, alternative remedies like loans, advances, internal
cash generation and the like to address its precarious financial condition.
(Emphasis supplied)
In Philippine Bank of Communications v. Court of Appeals,[314] the Court
denied execution pending appeal to a juridical entity which allegedly was in
financial distress and was facing civil and criminal suits with respect to the
collection of a sum of money. It ruled that the financial distress of the
prevailing party in a final judgment which was still pending appeal may not
PINEDAPCGRNMAN
be likened to the situation of a natural person who is ill, of advanced age or
dying as to justify execution pending appeal:
It is significant to stress that private respondent Falcon is a juridical entity and
not a natural person. Even assuming that it was indeed in financial
distress and on the verge of facing civil or even criminal suits, the
immediate execution of a judgment in its favor pending appeal cannot
be justified as Falcons situation may not be likened to a case of a
natural person who may be ill or may be of advanced age. Even the
danger of extinction of the corporation will not per se justify a
discretionary execution unless there are showings of other good reasons,
such as for instance, impending insolvency of the adverse party or the appeal
being patently dilatory. But even as to the latter reason, it was noted in
Aquino vs. Santiago (161 SCRA 570 [1988]), that it is not for the trial judge to
determine the merit of a decision he rendered as this is the role of the
appellate court. Hence, it is not within competence of the trial court, in
resolving a motion for execution pending appeal, to rule that the appeal is
patently dilatory and rely on the same as its basis for finding good reason to
grant the motion. Only an appellate court can appreciate the dilatory intent of
an appeal as an additional good reason in upholding an order for execution
pending appeal which may have been issued by the trial court for other good
reasons, or in cases where the motion for execution pending appeal is filed
with the appellate court in accordance with Section 2, paragraph (a), Rule 39
of the 1997 Rules of Court.
What is worse, only one case was actually filed against Falcon and this is the
complaint for collection filed by Solidbank. The other cases are impending,
so it is said. Other than said Solidbank case, Falcons survival as a body
corporate cannot be threatened by anticipated litigation. This
notwithstanding, and even assuming that there was a serious threat to
Falcons continued corporate existence, we hold that it is not tantamount nor
even similar to an impending death of a natural person. The material
existence of a juridical person is not on the same plane as that of human life.
The survival of a juridical personality is clearly outweighed by the long
standing general policy of enforcing only final and executory judgments.
(Emphasis supplied)
In this case, the trial court supported its discretionary grant of execution
based on the alleged collection suit filed against Pea by his creditor friend for
PhP3,000,000:
It has been established that the plaintiff secured the loan for the purpose of
using the money to comply with the mandate of defendant bank to hold and
maintain possession of the parcel of land in Pasay City and to prevent
intruders and former tenants from occupying the said property. The purpose
of the loan was very specific and the same was made known to defendant
bank through defendant Teodoro Borlongan. The loan was not secured for
some other purpose. Truth to tell, the plaintiff accomplished his mission in
clearing the property of tenants, intruders and squatters, long before the
deadline given him by the defendant bank. The plaintiff was assured by no
less than the President of defendant bank of the availability of funds for his
compensation and reimbursement of his expenses. Had he been paid by
defendant bank soon after he had fulfilled his obligation, he could have
settled his loan obligation with his creditor.
Defendants were benefitted by the services rendered by the plaintiff. While
plaintiff has complied with the undertaking, the defendants, however, failed
to perform their obligation to the plaintiff.
The plaintiff stands to suffer greatly if the collection case against him
is not addressed. Firstly, as shown in Exhibit C, plaintiffs total
obligation with Roberto Ignacio as of May 1999 is PhP24,192,000.00.
This amount, if left unpaid, will continue to increase due to interest
charges being imposed by the creditor to the prejudice of plaintiff.
Secondly, a preliminary attachment has already been issued and this would
restrict the plaintiff from freely exercising his rights over his property during
the pendency of the case.
In their opposition, defendants claim that plaintiffs indebtedness is a ruse,
however, defendants failed to adduce evidence to support its claim.
The court finds that the pendency of the case for collection of money against
Page 297
plaintiff is a good reason for immediate execution. [315]
LEGAL ETHICS
The mere fact that Atty. Pea was already subjected to a collection suit for
payment of the loan proceeds he used to perform his services for Urban Bank
is not an acceptable reason to order the execution pending appeal against
the bank. Financial distress arising from a lone collection suit and not due to
the advanced age of the party is not an urgent or compelling reason that
would justify the immediate levy on the properties of Urban Bank pending
appeal. That Pea would made liable in the collection suit filed by his creditor-
friend would not reasonably result in rendering illusory the final judgment in
the instant action for agents compensation.
Peas purported difficulty in paying the loan proceeds used to perform his
services does not outweigh the injury or damages that might result should
Urban Bank obtain a reversal of the judgment, as it did in this case. Urban
Bank even asserts that the collection suit filed against Pea was a mere ruse
to provide justification for the execution pending appeal, no matter how
flimsy.[316] As quoted above, the trial court noted Atty. Peas total obligation to
his creditor-friend as of May 1999 was already the incredible amount of
PhP24,192,000.00, even when the Complaint dated 03 April 1999 itself,
which spawned the collection suit included only a prayer for payment of
PhP3,500,000 with attorneys fees of PhP100,000.[317] It seems absurd that
Atty. Pea would agree to obtaining a loan from his own friend, when the
Promissory Notes provided for a penalty of 5% interest per month or 60% per
annum for delay in the payment.[318] It sounds more like a creative justification
of the immediate execution of the PhP28.5 Million judgment notwithstanding
the appeal.
In fact, the Court of Appeals noted Atty. Peas admission of sufficient
properties to answer for any liability arising from the collection suit arising
from his creditor-friend. In initially denying the execution pending appeal, the
appellate court held that:
On the other hand, private respondents claim that the only way he could pay
his indebtedness to Roberto Ignacio is through the money that he expects to
receive from petitioners in payment of his services is belied by his testimony
at the hearing conducted by the trial court on the motion for execution
pending appeal wherein petitioners were able to secure an admission from
him that he has some assets which could be attached by Roberto Ignacio
and that he would probably have other assets left even after the
attachment.[319]
Hence, to rule that a pending collection suit against Atty. Pea, which has not
been shown to result in his insolvency, would be to encourage judgment
creditors to indirectly and indiscriminately instigate collection suits or cite
pending actions, related or not, as a good reason to routinely avail of the
remedy of discretionary execution.[320] As an exception to the general rule on
execution after final and executory judgment, the reasons offered by Atty.
Pea to justify execution pending appeal must be strictly construed.
Neither will the Court accept the trial courts unfounded assumption that
Urban Banks appeal was merely dilatory, as in fact, the PhP28,500,000
award given by the trial court was overturned by the appellate court and
eventually by this Court.
Moreover, at the time the Special Order of Judge Henry Trocio of the RTC-
Bago City came out in 1999, Urban Bank had assets worth more than PhP11
Billion and had a net worth of more than PhP2 Billion. There was no reason
then to believe that Urban Bank could not satisfy a judgment of
PhP28,500,000, a sum that was only 1% of its net worth, and 1/5 of 1% of its
total assets of PhP11,933,383,630.[321] Urban Bank was even given a
Solvency, Liquidity and Management Rating of 82.89 over 100 by no less
than the BSP[322] and reportedly had liquid assets amounting to
PhP2,036,878.[323] In fact, no allegation of impending insolvency or attempt
to abscond was ever raised by Atty. Pea and yet, the trial court granted
execution pending appeal.
Since the original order granting execution pending appeal was completely
void for containing no justifiable reason, it follows that any affirmance of the
same by the Court of Appeals is likewise void.
The Decision of the Court of Appeals in the case docketed as CA-G.R. SP
No. 55667, finding a new reason for granting execution pending appeal, i.e.,
the receivership of Urban Bank, is likewise erroneous, notwithstanding this
Courts ruling in Lee v. Trocino.[324] In accordance with the subsequent
PINEDAPCGRNMAN
Resolution of the Court in abovementioned case of Lee v. Trocino,[325] we
directly resolve the issue of the insufficiency of the reasons that led to the
grant of execution pending appeal.
In cases where the two or more defendants are made subsidiarily or solidarily
liable by the final judgment of the trial court, discretionary execution can be
allowed if all the defendants have been found to be insolvent. Considering
that only Urban Bank, and not the other eight individual defendants, was later
on considered by the Court of Appeals to have been in danger of insolvency,
is not sufficient reason to allow execution pending appeal, since the liability
for the award to Pea was made (albeit, mistakenly) solidarily liable together
with the bank officers.
In Flexo Manufacturing Corp. v. Columbus Food, Inc., and Pacific Meat
Company, Inc.,[326] both Columbus Food, Inc., (Columbus Food) and Pacific
Meat Company, Inc., (Pacific Meat) were found by the trial court therein to
be solidarily liable to Flexo Manufacturing, Inc., (Flexo Manufacturing) for the
principal obligation of PhP2,957,270.00. The lower court also granted
execution pending appeal on the basis of the insolvency of Columbus Food,
even if Pacific Meat was not found to be insolvent. Affirming the reversal
ordered by the Court of Appeals, this Court ruled that since there was another
party who was solidarily liable to pay for the judgment debt, aside from the
insolvent Columbus Food, there was no good reason to allow the execution
pending appeal:
Regarding the state of insolvency of Columbus, the case of Philippine
National Bank v. Puno, held:
While this Court in several cases has held that insolvency of the judgment
debtor or imminent danger thereof is a good reason for discretionary
execution, otherwise to await a final and executory judgment may not only
diminish but may nullify all chances for recovery on execution from said
judgment debtor, We are constrained to rule otherwise in this particular case.
In the aforecited cases, there was either only one defeated party or
judgment debtor who was, however, insolvent or there were several
such parties but all were insolvent, hence the aforesaid rationale for
discretionary execution was present. In the case at bar, it is undisputed
that, assuming MMIC is insolvent, its co-defendant PNB is not. It cannot,
therefore, be plausibly assumed that the judgment might become
illusory; if MMIC cannot satisfy the judgment, PNB will answer for it. It
will be observed that, under the dispositive portion of the judgment
hereinbefore quoted, the liability of PNB is either subsidiary or solidary.
Thus, when there are two or more defendants and one is not insolvent,
the insolvency of a co-defendant is not a good reason to justify
execution pending appeal if their liability under the judgment is either
subsidiary or solidary. In this case, Pacific was adjudged to be solidarily
liable with Columbus. Therefore, the latter is not the only party that may be
answerable to Flexo. Its insolvency does not amount to a good reason
to grant execution pending appeal. (Emphasis supplied)
Similarly, the trial court in this case found Urban Bank and all eight individual
bank officers solidarily liable to Atty. Pea for the payment of the
PhP28,500,000 award. Hence, had the judgment been upheld on appeal,
Atty. Pea could have demanded payment from any of the nine defendants.
Thus, it was a mistake for the Court of Appeals to have affirmed execution
pending appeal based solely on the receivership of Urban Bank, when there
were eight other individual defendants, who were solidarily liable but were
not shown to have been insolvent. Since Urban Banks co-defendants were
not found to have been insolvent, there was no good reason for the Court of
Appeals to immediately order execution pending appeal, since Atty. Peas
award could have been satisfied by the eight other defendants, especially
when the de Leon Group filed its supersedeas bond.
It seems incongruous for Atty. Pea to be accorded the benefit of erroneously
impleading several bank directors, who had no direct hand in the transaction,
but at the same time, concentrating solely on Urban Banks inability to pay to
justify execution pending appeal, regardless of the financial capacity of its
other co-defendants. Worse, he capitalized on the insolvency and/or
receivership of Urban Bank to levy or garnish properties of the eight other
individual defendants, who were never shown to have been incapable of
Page 298
paying the judgment debt in the first place. The disposition on the execution
pending appeal may have been different had Atty. Pea filed suit against
LEGAL ETHICS
Urban Bank alone minus the bank officers and the same bank was found
solely liable for the award and later on declared under receivership.
In addition, a judgment creditor of a bank, which has been ordered by the
BSP to be subject of receivership, has to fall in line like every other creditor
of the bank and file its claim under the proper procedures for banks that have
been taken over by the PDIC. Under Section 30 of Republic Act No. 7653,
otherwise known as the New Central Bank Act, which prevailed at that time,
once a bank is under receivership, the receiver shall immediately gather and
take charge of all the assets and liabilities of the bank and administer the
same for the benefit of its creditors and all of the banks assets shall be
considered as under custodial legis and exempt from any order of
garnishment, levy, attachment or execution.[327] In the Minute Resolution of
the Monetary Board of the BSP, Urban Bank was not only prevented from
doing business in the Philippines but its asset and affairs were placed under
receivership as provided for under the same law.[328] In fact, even Pea himself
assured the PDIC, as receiver of Urban Bank, that he would not schedule or
undertake execution sales of the banks assets for as long as the bank
remains in receivership.[329] Until the approval of the rehabilitation or the
initiation of the liquidation proceedings, all creditors of the bank under
receivership shall stand on equal footing with respect to demanding
satisfaction of their debts, and cannot be extended preferred status by an
execution pending appeal with respect to the banks assets:
[t]o execute the judgment would unduly deplete the assets of respondent
bank to the obvious prejudice of other creditors. After the Monetary Board
has declared that a bank is insolvent and has ordered it to cease operations,
the Board becomes the trustee of its assets for the equal benefit of all the
depositors and creditors. After its insolvency, one creditor cannot obtain an
advantage or preference over another by an attachment, execution or
otherwise. Until there is an approved rehabilitation or the initiation of the
liquidation proceedings, creditors of the bank stand on equal footing
with respect to demanding satisfaction of their debts, and cannot be
afforded special treatment by an execution pending appeal with respect
to the banks assets.[330] (Emphasis supplied)
Moreover, assuming that the CA was correct in finding a reason to justify the
execution pending appeal because of the supervening event of Urban Banks
closure, the assumption by the EIB of the liabilities of Urban Bank meant that
any execution pending appeal can be granted only if EIB itself is shown to be
unable to satisfy Peas judgment award of PhP28,500,000. That is not at all
the case. In just one particular sale on execution herein, EIB offered to
answer in cash for a substantial part of Peas claims, as evidenced by EIBs
capacity and willingness to redeem the executed properties (condominium
units sold to intervenor Unimega) by tendering managers checks for more
than PhP22 Million[331] which is already 77.57% of Peas total award from the
trial court.[332] The fact that EIBs offer to take over Urban Bank means it was
able to satisfy the BSPs concern that all legitimate liabilities of Urban Bank
be duly discharged.
As an exception to the general rule that only final judgments may be
executed,[333] the grant of execution pending appeal must perforce be based
on good reasons. These reasons must consist of compelling or superior
circumstances demanding urgency which will outweigh the injury or damages
suffered, should the losing party secure a reversal of the judgment or final
order.[334] The circumstances that would reasonably justify superior urgency,
demanding interim execution of Peas claims for compensation and/or
damages, have already been settled by the financial capacity of the eight
other co-defendants, the approval of the supersedeas bonds, the subsequent
takeover by EIB, and the successor banks stable financial condition,[335]
which can answer for the judgment debt. Thus, Peas interest as a judgment
creditor is already well-protected.
While there is a general rule that a final and executory judgment in the main
case will render moot and academic a petition questioning the exercise of the
trial courts discretion in allowing execution pending appeal, we find it
necessary to rule categorically on this question because of the magnitude of
the aberrations that attended the execution pending appeal in the Decision
of the RTC-Bago City.
Irregularities in the Levy and Sale on Execution Pending Appeal
PINEDAPCGRNMAN
Assuming that the Special Order granting execution pending appeal were
valid, issues have been raised on alleged irregularities that mar the levy and
sale on execution of the properties of Urban Bank and its officers and
directors. Many of the facts have not been sufficiently litigated before the trial
and appellate courts for us to fully rule on the issue, nevertheless, from what
is on record, the following are the observations of this Court:
First, contrary to the general rules on execution, no opportunity was given to
Urban Bank or the other co-defendants to pay the judgment debt in cash or
certified check.[336] Before proceeding on the levying and garnishing personal
and real properties, demand must be made by the sheriff against the
judgment debtors, Urban Bank and the eight other individual bank officers,
for the immediate payment of the award subject of the execution pending
appeal. It has not been shown whether Urban Bank and its officers and
directors were afforded such an opportunity. Instead of garnishing personal
properties of the bank, the sheriff inexplicably proceeded to levy substantial
real properties of the bank and its officers at the onset.
Second, assuming that Urban Bank and its officers did not possess sufficient
cash or funds to pay for the judgment debt pending appeal, they should have
been given the option to choose which of their properties to be garnished
and/or levied. In this case, Urban Bank exercised its option by presenting to
the sheriff various parcels of land, whose values amount to more than
PhP76,882,925 and were sufficient to satisfy the judgment debt.[337] Among
those presented by the bank, only the property located in Tagaytay was
levied upon by the sheriff.[338] No sufficient reason was raised why the banks
chosen properties were rejected or inadequate for purposes of securing the
judgment debt pending appeal. Worse, the Sheriff proceeded with garnishing
and levying on as many properties of Urban Bank and its officers, in disregard
of their right to choose under the rules.
Third, the public auction sales conducted in the execution pending appeal
sold more properties of Urban Bank and the directors than what was sufficient
to satisfy the debt. Indeed, the conservative value of the properties levied
herein by the sheriff amounting to more than PhP181,919,190, consisting of
prime condominium units in the heart of the Makati Business district, a lot in
Tagaytay City, shares in exclusive clubs, and shares of stock, among others,
was more than sufficient to answer for the PhP28,500,000
judgment debt six times over. Rather than stop when the properties sold had
approximated the monetary award, the execution sale pending appeal
continued and unduly benefitted Atty. Pea, who, as judgment creditor and, at
times, the winning bidder, purchased most of the properties sold.
Fourth, it was supremely disconcerting how Urban Bank, through its
successor EIB, was unduly deprived of the opportunity to redeem the
properties, even after presenting managers checks[339] equal to the purchase
price of the condominium units sold at the execution sale. No reason was
offered by the trial court[340] or the sheriff[341] for rejecting the redemption price
tendered by EIB in order to recover the properties executed and sold in public
auction pending appeal.
Finally, the Court cannot turn a blind eye to the fact that there was already a
sufficient supersedeas bond given to answer for whatever monetary award
will be given in the end. To recall, the De Leon Group had already tendered
a supersedeas bond of PhP40,000,000 in the Court of Appeals to prevent
execution pending appeal over their properties. In fact, even Urban Bank
tendered a separate supersedeas bond of equal amount with this Court, for
a total of PhP80,000,000 to secure any judgment to be awarded to Atty. Pea.
That execution sales over the properties of judgment debtors proceeded
despite the three-fold value of securities compared to the amount of the
award indicates bad faith, if not malice, with respect to the conduct of the
execution pending appeal.
Inasmuch as the RTC Decision has already been vacated and an
Page 299
independent finding has been made by this Court of the complete nullity of
the order granting execution pending appeal, it follows that all acts pursuant
to such order and its writ are also void. It does not follow however, that the
LEGAL ETHICS
Courts Decision in Co v. Sillador,[342] is nullified, inasmuch as an equally-
important legal doctrine the immutability of Supreme Court final decisions is
also to be considered. In any case, the factual circumstances and the ruling
on that case were limited to the actions of Sheriff Allan Sillador with respect
to properties levied under the same Special Order and Writ of Execution,
which were subject of third party claims made by the spouses of Teodoro
Borlongan, Corazon Bejasa and Arturo Manuel, Jr.[343] It does not encompass
other specific events and acts committed in the course of the execution
pending appeal that may warrant administrative or disciplinary actions.
Having said that, this Court leaves it to the parties to explore avenues for
redress in such a situation.
The observation on the irregularities above-enumerated are made for the
purpose of correcting the injustice that has been committed herein, by
allowing the Court to pursue the question of who was responsible for such
gross violation of the rules on execution, and for the Court to find measures
to improve the safeguards against abuse of court processes. It is for this
reason that the Office of the Court Administrator will be given a special task
by the Court on this matter. Judge Henry Trocino of RTC-Bago City, who
issued the Special Order and had supervisory authority over the proceedings
of the execution pending appeal, would have been included under such
administrative investigation by the Office of the Court Administrator, were it
not for his retirement from the judicial service.
The Courts Suspension Order of Execution Pending Appeal
Acting on Atty. Peas Omnibus Motion dated 09 December 2002[344] and
Unimegas Motion for Reconsideration dated 10 December 2002[345] with
respect to the Courts Order dated 13 November 2002[346] that clarified the
earlier stay order against the execution pending appeal,[347] the Court hereby
denies both motions. The Court is fully correct in suspending the period for
the running of the redemption period of the properties of Urban Bank and its
officers and directors that were levied and subject of execution sale to satisfy
the judgment debt in favor of Atty. Pea, the Court having conclusively
determined that the supersedeas bond filed was sufficient and considering
the subsequent finding that the said execution pending appeal lacks any
sufficient ground for the grant thereof.
As to the theory of Atty. Pea that the actuations of Justice Carpio, the then
ponente of this case, in drafting the questioned Order should positively
impact his motion for reconsideration of the same, the Court finds this
argument utterly devoid of merit.
In the first place, that questioned Order was not the decision of only a single
member of the Court, Justice Carpio, but of the entire division to which he
belonged, then composed of retired Chief Justice Hilario Davide, Justices
Jose Vitug, Consuelo Ynares-Santiago and Adolfo Azcuna. This Order was
affirmed by the same Division as its duly-promulgated order. In relation to
this, the affirmation by the Division of this Order demonstrates that there is
no truth to Atty. Peas claim that Justice Carpio fabricated the Order.
In the second place, Atty. Peas claim of undue interest against Justice Carpio
specifically with respect to the latter having the instant case transferred to his
new Division, is based on ignorance of the system of assignment of cases in
the Supreme Court. When a reorganization of the Court takes place in the
form of a change in the composition of Divisions, due to the retirement or loss
of a member, the Justices do not thereby lose their case assignments but
bring the latter with them to their new Divisions.[348] The cases are then
transferred to the Justices new Divisions, by way of the corresponding
request from each justice. Each justice is in fact, required to make this
request, otherwise the rollo of the cases of which he is Member-in-Charge
will be retained by a Division in which he is no longer a member. Indeed, Atty.
Peas imagination has gotten the better of him.
Thirdly, his insinuation (which he denies) that Justice Carpio may have been
bribed because the latter has a new Mercedes Benz[349] is highly offensive
and has no place where his points should have been confined to legal
reasons and arguments.
PINEDAPCGRNMAN
Incidentally, Atty. Pea has voiced the fear in the Letter of Complaint filed in
the Courts Committee on Ethics and Ethical Standards,[350] which he brought
against the ponente of this Decision, that she will suppress material
information regarding the issuance of the Order suspending the redemption
period because of her close relationship to Justice Carpio. Contrary to this
fear, this Decision is frontally disposing of this claim by stating that there is
no basis to believe that the questioned Order was anything than the joint
decision of the five members of the then First Division, and that his arguments
in his motion to reconsider does not persuade this Court to vary in any form
the questioned order. Moreover, our disposition of this case renders moot his
motion to reconsider the order.
It must be emphasized that the prolonged resolution of the procedural issue
in the Petitions in G. R. Nos. 145817 and 145822 on the execution pending
appeal is due in no small part to the delays arising from Peas peculiar
penchant for filing successive motions for inhibition and re-raffle.[351] The
Court cannot sanction Peas repeated requests for voluntary inhibition of
members of the Court based on the sole ground of his own self-serving
allegations of lack of faith and trust, and would like to reiterate, at this point,
the policy of the Court not to tolerate acts of litigants who, for just about any
conceivable reason, seek to disqualify a judge (or justice) for their own
purpose, under a plea of bias, hostility, prejudice or prejudgment.[352] The
Court cannot allow the unnecessary and successive requests for inhibition,
lest it opens the floodgates to forum-shopping where litigants look for a judge
more friendly and sympathetic to their cause than previous ones.[353]
Restitution of the Banks Executed Properties
The Court is still confronted with the supervening acts related to the execution
pending appeal and the reversal of the award of damages, which affect the
rights of the parties as well as of the intervenors to the case, specifically,
intervenor Unimega. In completely resolving the differing claims and
performing its educational function, the Court shall briefly encapsulate and
restate the operational rules governing execution pending appeal when there
has been a reversal of the trial courts Decision on the award of damages in
order to guide the parties as well as the bench and bar in general. The
necessity of making these detailed instructions is prompted by the most
natural question an ordinary person with a sense of justice will ask after
reading the facts: How can an obligation to pay for the services of a lawyer
so that 23 unwanted tenants leave a corporation's property lead to the loss or
the impairment of use of more than PhP181 Million worth of properties of
that corporation and of its officers and directors? Obviously, this Court must
undertake corrective actions swiftly.
The rule is that, where the executed judgment is reversed totally or partially,
or annulled on appeal or otherwise the trial court may, on motion, issue such
orders of restitution or reparation of damages as equity and justice may
warrant under the circumstances.[354] The Rules of Court precisely provides
for restitution according to equity, in case the executed judgment is reversed
on appeal.[355] In an execution pending appeal, funds are advanced by the
losing party to the prevailing party with the implied obligation of the latter
to repay the former, in case the appellate court cancels or reduces the
monetary award.[356]
In disposing of the main case subject of these Petitions, the Court totally
reversed the staggering amount of damages given by the trial court, and
limited on a quantum meruit basis the agents compensation to PhP4,500,000
only. However, properties of Urban Bank and individual petitioners have been
garnished and levied upon in the amount of supposedly more than
PhP85,399,350.[357]
Applying the foregoing rules, petitioner-respondent bank is entitled to
complete and full restitution of its levied properties, subject to the payment of
the PhP4,500,000. Meanwhile, petitioners bank officers, all of whom have
not been found individually or solidarily liable, are entitled to full restitution of
all their properties levied upon and garnished, since they have been
exonerated from corporate liability with respect to the banks agency
relationship with Pea.
Page 300
Considering the monetary award to Pea and the levy on and execution of
some of its properties pending appeal, Urban Bank, now EIB, may satisfy the
LEGAL ETHICS
judgment in the main case and at the same time fully recover all the
properties executed owing to the complete reversal of the trial courts
awarded damages. It must immediately and fully pay the judgment debt
before the entire lot of levied properties, subject of the execution pending
appeal, is restored to it.[358]
Due to the complete reversal of the trial courts award for damages, which
was the basis of the Special Order and Writ of Execution allowing execution
pending appeal, intervenor Unimega and other bidders who participated in
the public auction sales are liable to completely restore to petitioner-
respondent bank all of the properties sold and purchased therein. Although
execution pending appeal is sanctioned under the rules and jurisprudence,
when the executed decision is reversed, the premature execution is
considered to have lost its legal bases. The situation necessarily requires
equitable restitution to the party prejudiced thereby.[359] As a matter of
principle, courts are authorized at any time to order the return of property
erroneously ordered to be delivered to one party, if the order is found to have
been issued without jurisdiction.[360]
As a purchaser of properties under an execution sale, with an appeal on the
main case still pending, intervenor Unimega knew or was bound to know that
its title to the properties, purchased in the premature public auction sale, was
contingent on the outcome of the appeal and could possibly be reversed.
Until the judgment on the main case on which the execution pending appeal
hinges is rendered final and executory in favor of the prevailing judgment
creditor, it is incumbent on the purchasers in the execution sale to preserve
the levied properties. They shall be personally liable for their failure to do so,
especially if the judgment is reversed, as in this case.[361] In fact, if specific
restitution becomes impracticable such as when the properties pass on to
innocent third parties the losing party in the execution even becomes liable
for the full value of the property at the time of its seizure, with interest. The
Court has ruled:
When a judgment is executed pending appeal and subsequently overturned
in the appellate court, the party who moved for immediate execution should,
upon return of the case to the lower court, be required to make specific
restitution of such property of the prevailing party as he or any person acting
in his behalf may have acquired at the execution sale. If specific restitution
becomes impracticable, the losing party in the execution becomes
liable for the full value of the property at the time of its seizure, with
interest.
While the trial court may have acted judiciously under the premises, its action
resulted in grave injustice to the private respondents. It cannot be gainsaid
that it is incumbent upon the plaintiffs in execution (Arandas) to return
whatever they got by means of the judgment prior to its reversal. And if
perchance some of the properties might have passed on to innocent
third parties as happened in the case at bar, the Arandas are duty bound
nonetheless to return the corresponding value of said properties as
mandated by the Rules. (Emphasis supplied)[362]
In this case, the rights of intervenor Unimega to the 10 condominium units
bought during the public auction sale under the Special Order are rendered
nugatory by the reversal of the award of unconscionable damages by the trial
court. It cannot claim to be an innocent third-party purchaser of the levied
condominium units, since the execution sale was precisely made pending
appeal. It cannot simply assume that whatever inaction or delay was incurred
in the process of the appeal of the main Decision would automatically render
the remedy dilatory in character.[363] Whatever rights were acquired by
intervenor Unimega from the execution sale under the trial courts Special
Orders are conditional on the final outcome of the appeal in the main case.
Unlike in auction sales arising from final and executory judgments, both the
judgment creditor and the third parties who participate in auction sales
pending appeal are deemed to knowingly assume and voluntarily accept the
risks of a possible reversal of the decision in the main case by the appellate
court.
Therefore, intervenor Unimega is required to restore the condominium units
to Urban Bank. Although the intervenor has caused the annotation of the sale
and levied on the titles to those units, the titles have remained under the
name of the bank, owing to the supersedeas bond it had filed and the Courts
PINEDAPCGRNMAN
own orders that timely suspended the transfer of the titles and further
execution pending appeal.
The obligation to restore the properties to petitioner-respondent bank is,
however, without prejudice to the concurrent right of intervenor Unimega to
the return of the PhP10,000,000 the latter paid for the condominium units,
which Pea received as judgment creditor in satisfaction of the trial courts
earlier Decision.[364] Consequently, intervenors earlier request for the
issuance of a writ of possession[365] over those units no longer has any leg to
stand on. Not being entitled to a writ of possession under the present
circumstances, Unimegas ex parte petition is consequently denied.
Upon the reversal of the main Decision, the levied properties itself, subject of
execution pending appeal must be returned to the judgment debtor, if those
properties are still in the possession of the judgment creditor, plus
compensation to the former for the deprivation and the use thereof.[366] The
obligation to return the property itself is likewise imposed on a third-party
purchaser, like intervenor Unimega, in cases wherein it directly participated
in the public auction sale, and the title to the executed property has not
yet been transferred. The third-party purchaser shall, however, be entitled
to reimbursement from the judgment creditor, with interest.
Considering the foregoing points, the Court adopts with modification the rules
of restitution expounded by retired Justice Florenz D. Regalado in his seminal
work on civil procedure,[367] which the appellate court itself cited earlier.[368] In
cases in which restitution of the prematurely executed property is no longer
possible, compensation shall be made in favor of the judgment debtor in the
following manner:
a. If the purchaser at the public auction is the judgment creditor,
he must pay the full value of the property at the time of its seizure, with
interest.
b. If the purchaser at the public auction is a third party, and title to
the property has already been validly and timely transferred to the name
of that party, the judgment creditor must pay the amount realized from the
sheriffs sale of that property, with interest.
c. If the judgment award is reduced on appeal, the judgment
creditor must return to the judgment debtor only the excess received over
and above that to which the former is entitled under the final judgment, with
interest.
In summary, Urban Bank is entitled to complete restoration and return of the
properties levied on execution considering the absolute reversal of the award
of damages, upon the payment of the judgment debt herein amounting to
PhP4,500,000, with interest as indicated in the dispositive portion. With
respect to individual petitioners, they are entitled to the absolute restitution of
their executed properties, except when restitution has become impossible, in
which case Pea shall be liable for the full value of the property at the time of
its seizure, with interest. Whether Urban Bank and the bank officers and
directors are entitled to any claim for damages against Pea and his indemnity
bond is best ventilated before the trial court, as prescribed under the
procedural rules on execution pending appeal.
WHEREFORE, the Court DENIES Atty. Magdaleno Peas Petition for Review
dated 23 April 2004 (G. R. No. 162562) and AFFIRMS WITH
MODIFICATION the Court of Appeals Decision dated 06 November 2003
having correctly found that the Regional Trial Court of Bago City gravely
abused its discretion in awarding unconscionable damages against Urban
Bank, Inc., and its officers. The Decision of the Regional Trial Court of Bago
City dated 28 May 1999 is hence VACATED.
Nevertheless, Urban Bank, Inc., is ORDERED to pay Atty. Pea the amount
of PhP3,000,000 as reimbursement for his expenses and an additional
PhP1,500,000 as compensation for his services, with interest at 6% per
annum from 28 May 1999, without prejudice to the right of Urban Bank to
invoke payment of this sum under a right of set-off against the amount of
PhP25,000,000 that has been placed in escrow for the benefit of Isabela
Sugar Company, Inc. The Complaint against the eight other individual
Page 301
petitioners, namely Teodoro Borlongan (+), Delfin C. Gonzales, Jr., Benjamin
L. de Leon, P. Siervo G. Dizon, Eric L. Lee, Ben Y. Lim, Jr., Corazon Bejasa,
and Arturo Manuel, Jr., is hereby DISMISSED.
LEGAL ETHICS
The Petitions for Review on Certiorari filed by petitioners Urban Bank (G.
R. No. 145817) and Benjamin L. de Leon, Delfin Gonzalez, Jr., and Eric L.
Lee (G. R. No. 145822) are hereby GRANTED under the following
conditions:
a. Urban Bank, Teodoro Borlongan, Delfin C. Gonzalez, Jr.,
Benjamin L. de Leon, P. Siervo H. Dizon, Eric L. Lee, Ben Y. Lim, Jr.,
Corazon Bejasa, and Arturo Manuel, Jr., (respondent bank officers) shall be
restored to full ownership and possession of all properties executed pending
appeal;
b. If the property levied or garnished has been sold on execution
pending appeal and Atty. Magdaleno Pea is the winning bidder or purchaser,
he must fully restore the property to Urban Bank or respondent bank officers,
and if actual restitution of the property is impossible, then he shall pay the full
value of the property at the time of its seizure, with interest;
c. If the property levied or garnished has been sold to a third party
purchaser at the public auction, and title to the property has not been
validly and timely transferred to the name of the third party, the
ownership and possession of the property shall be returned to Urban Bank
or respondent bank officers, subject to the third partys right to claim restitution
for the purchase price paid at the execution sale against the judgment
creditor;
d. If the purchaser at the public auction is a third party, and title to
the property has already been validly and timely transferred to the name
of that party, Atty. Pea must pay Urban Bank or respondent bank officers
the amount realized from the sheriffs sale of that property, with interest from
the time the property was seized.
The Omnibus Motion dated 09 December 2002 filed by Atty. Pea and Motion
for Reconsideration dated 10 December 2002 filed by Unimega with respect
to the Courts Order dated 13 November 2002 is hereby DENIED.
The Office of the Court Administrator is ordered to conduct an investigation
into the possible administrative liabilities of Atty. Josephine Mutia-Hagad, the
then RTC-Bago Citys Clerk of Court, and Allan D. Sillador, the then Deputy
Sheriff of Bago City, for the irregularities attending the execution pending
appeal in this case, including all judicial officers or sheriffs in the various
places in which execution was implemented, and to submit a report thereon
within 120 days from receipt of this Decision.
The Office of the Court Administrator is also directed to make
recommendations for the prevention of abuses of judicial processes in
relation to executions, especially those pending appeal, whether thru
administrative circulars from this Court or thru a revision of the Rules of Court,
within 30 days from submission of the report on administrative liabilities
adverted to above. Let a copy of the Courts Decision in this case be sent to
the Office of the Court Administrator.
The Presiding Judge of RTC Bago City shall make a full report on all incidents
related to the execution in this case, including all returns on the writ of
execution herein.
Because so much suspicious circumstances have attended the execution in
this case by the Regional Trial Court of Bago City, the proceedings with
respect to any restitution due and owing under the circumstances shall be
transferred to the Regional Trial Court in the National Capital Region, Makati
City, a court with venue to hear cases involving Urban Bank/Export and
Industry Bank whose headquarters is located in Makati City. The Executive
Judge of the Regional Trial Court of Makati City is ordered to include the
execution of the Decision and the proceedings for the restitution of the case
in the next available raffle.
The Regional Trial Court of Makati City, to which the case shall be raffled, is
hereby designated as the court that will fully implement the restorative
directives of this Decision with respect to the execution of the final judgment,
return of properties wrongfully executed, or the payment of the value of
properties that can no longer be restored, in accordance with Section 5, Rule
39 of the Rules of Court. The parties are directed to address the
PINEDAPCGRNMAN
implementation of this part of the Decision to the sala to which the case will
be raffled.
No pronouncement as to costs.
SO ORDERED.
REPUBLIC ACT No. 5185: AN ACT GRANTING FURTHER
AUTONOMOUS POWERS TO LOCAL GOVERNMENTS
Section 6. Prohibition Against Practice. A member of the Provincial Board or
City or Municipal Council shall not appear as counsel before any court in any
civil case wherein the province, city or municipality, as the case may be, is
the adverse party: Provided, however, That no member of the Provincial
Board shall so appear except in behalf of his province in any civil case
wherein any city in the province is the adverse party whose voters are en-
franchised to vote for provincial officials, nor shall such member of the
Provincial Board or City or Municipal Council appear as counsel for the
accused in any criminal case wherein an officer or employee of said province,
city or municipality is accused of an offense committed in relation to the
latter's office, nor shall he collect any fee for his appearance in any
administrative proceedings before provincial, city or municipal agencies of
the province, city or municipality, as the case may be, of which he is an
elected official.
The provisions of this Section shall likewise apply to provincial governors and
city and municipal mayors.
ROC RULE 138
Section 24. Compensation of attorneys; agreement as to fees. — An
attorney shall be entitled to have and recover from his client no more
than a reasonable compensation for his services, with a view to the
importance of the subject matter of the controversy, the extent of the
services rendered, and the professional standing of the attorney. No
court shall be bound by the opinion of attorneys as expert witnesses as
to the proper compensation, but may disregard such testimony and
base its conclusion on its own professional knowledge. A written
contract for services shall control the amount to be paid therefor unless
found by the court to be unconscionable or unreasonable.
Section 32. Compensation for attorneys de oficio. — Subject to
availability of funds as may be provided by the law the court may, in its
discretion, order an attorney employed as counsel de oficio to be
compensates in such sum as the court may fix in accordance with
section 24 of this rule. Whenever such compensation is allowed, it shall
be not less than thirty pesos (P30) in any case, nor more than the
following amounts: (1) Fifty pesos (P50) in light felonies; (2) One
hundred pesos (P100) in less grave felonies; (3) Two hundred pesos
(P200) in grave felonies other than capital offenses; (4) Five Hundred
pesos (P500) in capital offenses.
EVANGELINA MASMUD (as substitute G.R. No. 183385
complainant for ALEXANDER J. MASMUD),
Petitioner, Present:
YNARES-
- versus - SANTIAGO, J.,
Chairperson,
AUSTRIA-
MARTINEZ,
NATIONAL LABOR RELATIONS COMMISSION CHICO-NAZARIO,
(First Division) and ATTY. ROLANDO B. GO, NACHURA, and
JR., PERALTA, JJ.
Respondents.
Promulgated:
February 13, 2009
x ------------------------------------------------------------------------------------- x
Page 302
RESOLUTION
LEGAL ETHICS
NACHURA, J.:
Before the Court is a petition for review on certiorari[1] assailing the Decision[2]
dated October 31, 2007 and the Resolution dated June 6, 2008 of the Court
of Appeals (CA) in CA-G.R. SP No. 96279.
The facts of the case are as follows:
On July 9, 2003, Evangelina Masmuds (Evangelina) husband, the late
Alexander J. Masmud (Alexander), filed a complaint[3] against First Victory
Shipping Services and Angelakos (Hellas) S.A. for non-payment of
permanent disability benefits, medical expenses, sickness allowance, moral
and exemplary damages, and attorneys fees. Alexander engaged the
services of Atty. Rolando B. Go, Jr. (Atty. Go) as his counsel.
In consideration of Atty. Gos legal services, Alexander agreed to pay
attorneys fees on a contingent basis, as follows: twenty percent (20%) of total
monetary claims as settled or paid and an additional ten percent (10%) in
case of appeal. It was likewise agreed that any award of attorneys fees shall
pertain to respondents law firm as compensation.
On November 21, 2003, the Labor Arbiter (LA) rendered a Decision granting
the monetary claims of Alexander. The dispositive portion of the decision, as
quoted in the CA Decision, reads:
WHEREFORE, foregoing considered, judgment is rendered finding the [First
Victory Shipping Services and Angelakos (Hellas) S.A.] jointly and severally
liable to pay [Alexanders] total permanent disability benefits in the amount of
US$60,000.00 and his sickness allowance of US$2,348.00, both in Philippine
currency at the prevailing rate of exchange at the time of payment; and to
pay further the amount of P200,000.00 as moral damages, P100,000.00 as
exemplary damages and attorneys fees equivalent to ten percent (10%) of
the total monetary award.
[Alexanders] claim for payment of medical expenses is dismissed for lack of
basis.
SO ORDERED.[4]
Alexanders employer filed an appeal before the National Labor Relations
Commission (NLRC). During the pendency of the proceedings before the
NLRC, Alexander died. After explaining the terms of the lawyers fees to
Evangelina, Atty. Go caused her substitution as complainant. On April 30,
2004, the NLRC rendered a Decision dismissing the appeal of Alexanders
employer. The employer subsequently filed a motion for reconsideration. The
NLRC denied the same in an Order dated October 26, 2004.
On appeal before the CA, the decision of the LA was affirmed with
modification. The award of moral and exemplary damages was deleted.[5]
Alexanders employers filed a petition for certiorari[6] before this Court. On
February 6, 2006, the Court issued a Resolution dismissing the case for lack
of merit.
Eventually, the decision of the NLRC became final and executory. Atty. Go
moved for the execution of the NLRC decision, which was later granted by
the LA. The surety bond of the employer was garnished. Upon motion of Atty.
Go, the surety company delivered to the NLRC Cashier, through the NLRC
Sheriff, the check amounting to P3,454,079.20. Thereafter, Atty. Go moved
for the release of the said amount to Evangelina.
On January 10, 2005, the LA directed the NLRC Cashier to release the
amount of P3,454,079.20 to Evangelina. Out of the said amount, Evangelina
paid Atty. Go the sum ofP680,000.00.
Dissatisfied, Atty. Go filed a motion to record and enforce the attorneys lien
alleging that Evangelina reneged on their contingent fee agreement.
Evangelina paid only the amount of P680,000.00, equivalent to 20% of the
award as attorneys fees, thus, leaving a balance of 10%, plus the award
pertaining to the counsel as attorneys fees.
PINEDAPCGRNMAN
In response to the motion filed by Atty. Go, Evangelina filed a comment with
motion to release the amount deposited with the NLRC Cashier. In her
comment, Evangelina manifested that Atty. Gos claim for attorneys fees of
40% of the total monetary award was null and void based on Article 111 of
the Labor Code.
On February 14, 2005, the LA issued an Order[7] granting Atty. Gos motion,
the fallo of which reads:
WHEREFORE, premises considered, and further considering the substitute
complainants initial payment of 20% to movant-counsel of the monetary
claims as paid, let the balance or unpaid twenty (20%) per cent of attorneys
fees due movant-counsel (or the amount of P839,587.39) be recorded as lien
upon all the monies that may still be paid to substitute complainant
Evangelina Masmud.
Accordingly, the NLRC Cashier is directed to pay movant-counsel the amount
of P677,589.96 which is currently deposited therein to partially satisfy the
lien.
SO ORDERED.[8]
Evangelina questioned the February 14, 2005 Order of the LA before the
NLRC. On January 31, 2006, the NLRC issued a Resolution[9] dismissing the
appeal for lack of merit.
Evangelina then elevated the case to the CA via a petition for
certiorari.[10] On October 31, 2007, the CA rendered a Decision[11] partially
granting the petition. The dispositive portion of the decision reads:
WHEREFORE, the petition is PARTIALLY GRANTED. The Resolutions
dated January 31, 2006 and July 18, 2006 are hereby AFFIRMED with
MODIFICATION in that the Attorneys fees of respondent Atty. Rolando B.
Go, Jr. is declared fully compensated by the amount of P1,347,950.11 that
he has already received.
SO ORDERED.[12]
Evangelina filed a motion for reconsideration. However, on June 6, 2008, the
CA issued a Resolution[13] denying the motion for reconsideration for lack of
merit.
Hence, the instant petition.
Evangelina presented this issue, viz.:
THE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE
ERROR OF LAW IN ITS DECISION DATED 31 OCTOBER 2007 AND
RESOLUTION DATED 6 JUNE 2008 INSOFAR AS IT UPHOLDS
RESPONDENT LAWYERS CLAIM OF FORTY PERCENT (40%) OF THE
MONETARY AWARD IN A LABOR CASE AS ATTORNEYS FEES.[14]
In effect, petitioner seeks affirmance of her conviction that the legal
compensation of a lawyer in a labor proceeding should be based on Article
111 of the Labor Code.
There are two concepts of attorney's fees. In the ordinary sense, attorney's
fees represent the reasonable compensation paid to a lawyer by his client for
the legal services rendered to the latter. On the other hand, in its
extraordinary concept, attorney's fees may be awarded by the court as
indemnity for damages to be paid by the losing party to the prevailing party,[15]
such that, in any of the cases provided by law where such award can be
made, e.g., those authorized in Article 2208 of the Civil Code, the amount is
payable not to the lawyer but to the client, unless they have agreed that the
award shall pertain to the lawyer as additional compensation or as part
thereof.[16]
Page 303
LEGAL ETHICS
Here, we apply the ordinary concept of attorneys fees, or the compensation
that Atty. Go is entitled to receive for representing Evangelina, in substitution
of her husband, before the labor tribunals and before the court.
Evangelina maintains that Article 111 of the Labor Code is the law that should
govern Atty. Gos compensation as her counsel and assiduously opposes
their agreed retainer contract.
Article 111 of the said Code provides:
ART. 111. Attorney's fees. (a) In cases of unlawful withholding of wages the
culpable party may be assessed attorney's fees equivalent to ten percent of
the amount of the wages recovered.
Contrary to Evangelinas proposition, Article 111 of the Labor Code deals with
the extraordinary concept of attorneys fees. It regulates the amount
recoverable as attorney's fees in the nature of damages sustained by and
awarded to the prevailing party. It may not be used as the standard in fixing
the amount payable to the lawyer by his client for the legal services he
rendered.[17]
In this regard, Section 24, Rule 138 of the Rules of Court should be observed
in determining Atty. Gos compensation. The said Rule provides:
SEC. 24. Compensation of attorney's; agreement as to fees. An attorney
shall be entitled to have and recover from his client no more than a
reasonable compensation for his services, with a view to the importance of
the subject matter of the controversy, the extent of the services rendered,
and the professional standing of the attorney. No court shall be bound by the
opinion of attorneys as expert witnesses as to the proper compensation, but
may disregard such testimony and base its conclusion on its own
professional knowledge. A written contract for services shall control the
amount to be paid therefor unless found by the court to be unconscionable
or unreasonable.[18]
The retainer contract between Atty. Go and Evangelina provides for a
contingent fee. The contract shall control in the determination of the amount
to be paid, unless found by the court to be unconscionable or
unreasonable.[19] Attorney's fees are unconscionable if they affront one's
sense of justice, decency or reasonableness.[20] The decree of
unconscionability or unreasonableness of a stipulated amount in a contingent
fee contract will not preclude recovery. It merely justifies the fixing by the
court of a reasonable compensation for the lawyer's services.[21]
The criteria found in the Code of Professional Responsibility are also to be
considered in assessing the proper amount of compensation that a lawyer
should receive. Canon 20, Rule 20.01 of the said Code provides:
CANON 20 A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE
FEES.
Rule 20.01. A lawyer shall be guided by the following factors in determining
his fees:
(a) The time spent and the extent of the services rendered or required;
(b) The novelty and difficulty of the question involved;
(c) The importance of the subject matter;
(d) The skill demanded;
(e) The probability of losing other employment as a result of acceptance of
the proffered case;
(f) The customary charges for similar services and the schedule of fees of
the IBP Chapter to which he belongs;
PINEDAPCGRNMAN
(g) The amount involved in the controversy and the benefits resulting to the
client from the service;
(h) The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or established; and
(j) The professional standing of the lawyer.
Contingent fee contracts are subject to the supervision and close scrutiny of
the court in order that clients may be protected from unjust charges.[22] The
amount of contingent fees agreed upon by the parties is subject to the
stipulation that counsel will be paid for his legal services only if the suit or
litigation prospers. A much higher compensation is allowed as contingent
fees because of the risk that the lawyer may get nothing if the suit fails.[23] The
Court finds nothing illegal in the contingent fee contract between Atty. Go and
Evangelinas husband. The CA committed no error of law when it awarded
the attorneys fees of Atty. Go and allowed him to receive an equivalent of
39% of the monetary award.
The issue of the reasonableness of attorney's fees is a question of fact. Well-
settled is the rule that conclusions and findings of fact of the CA are entitled
to great weight on appeal and will not be disturbed except for strong and
cogent reasons which are absent in the case at bench. The findings of the
CA, which are supported by substantial evidence, are almost beyond the
power of review by the Supreme Court.[24]
Considering that Atty. Go successfully represented his client, it is only proper
that he should receive adequate compensation for his efforts. Even as we
agree with the reduction of the award of attorney's fees by the CA, the fact
that a lawyer plays a vital role in the administration of justice emphasizes the
need to secure to him his honorarium lawfully earned as a means to preserve
the decorum and respectability of the legal profession. A lawyer is as much
entitled to judicial protection against injustice or imposition of fraud on the
part of his client as the client is against abuse on the part of his counsel. The
duty of the court is not alone to ensure that a lawyer acts in a proper and
lawful manner, but also to see that a lawyer is paid his just fees. With his
capital consisting of his brains and with his skill acquired at tremendous cost
not only in money but in expenditure of time and energy, he is entitled to the
protection of any judicial tribunal against any attempt on the part of his client
to escape payment of his just compensation. It would be ironic if after putting
forth the best in him to secure justice for his client, he himself would not get
his due.[25]
WHEREFORE, in view of the foregoing, the Decision dated October 31, 2007
and the Resolution dated June 6, 2008 of the Court of Appeals in CA-G.R.
SP No. 96279 are hereby AFFIRMED.
SO ORDERED.
ATTY. VICTORIANO V. OROCIO, G.R. No. 179892-93
Petitioner,
Present:
AUSTRIA-
MARTINEZ, J.,
- versus - Acting Chairperson,
TINGA,*
CHICO-NAZARIO,
LEONARDO-DE
EDMUND P. ANGULUAN, LORNA T. DY CASTRO,** and
and NATIONAL POWER PERALTA, JJ.
CORPORATION,
Respondents. Promulgated:
January 30, 2009
x ---------------------------------------------------------------------------------------------- x
Page 304
DECISION
LEGAL ETHICS
CHICO-NAZARIO, J.:
Before Us is a Petition[1] for Review on Certiorari under Rule 45 of the Rules
of Court seeking to set aside the Resolution[2] dated 31 October 2006,
Decision[3] dated 29 January 2007, and Resolution[4] dated 27 September
2007, of the Court of Appeals in CA-G.R. SP Nos. 95786 and 95946.
The facts culled from the records are as follows:
On 26 September 1978, the National Power Corporation Board of Directors
(NAPOCOR Board), pursuant to its specific power and duty to fix the
compensation, allowance and benefits of the NAPOCOR employees under
Section 6(c) of Republic Act No. 6395, as amended, passed Resolution No.
78-119 approving the grant of a monthly welfare allowance equivalent to 10%
of an employees basic pay to all NAPOCOR employees effective 1 October
1978.[5] Pursuant thereto, the NAPOCOR Welfare Plan Committee, renamed
and reconstituted later on as the NAPOCOR Welfare Fund Board of Trustees
(NAPOCOR-WFBT), issued and promulgated a charter for the NAPOCOR
Welfare Fund which includes the following provisions:
ARTICLE VII
TERMINATION/AMENDMENT OF THE PLAN
Section 1. Termination/Amendment of the Plan The Board of Directors may
amend, revise, repeal any or all of the provisions herein contained and/or
terminate the Plan, subject to the pertinent provisions of the Trust
Agreement.
Section 2. Payment of Members share In the event of termination of the Plan,
the balance to the credit of each member and the General Reserve for
Employee Benefits shall be paid to the members in full. The accumulated
amount in the General Reserve for Employee Benefits shall be distributed
among the members in the proportion to the amount outstanding to their
credit as of the time of termination.[6]
The NAPOCOR Board subsequently passed Resolution No. 82-172 fixing a
NAPOCOR employees contribution to the NAPOCOR Welfare Fund in a sum
equivalent to 5% of his basic pay.[7]
Almost two decades thereafter, on 8 June 2001, Congress passed Republic
Act No. 9136, otherwise known as the Electric Power Industry Reform Act
(EPIRA). EPIRA directed the restructuring of the power industry which
includes the reorganization of NAPOCOR. Following the directive of EPIRA,
the NAPOCOR Board passed Resolution No. 2003-43 on 26 March 2003
abolishing the NAPOCOR Welfare Fund Department and other departments,
and dissolving the NAPOCOR Welfare Fund upon the effectivity of EPIRA on
26 June 2001.[8] Consequently, some of the employees in the NAPOCOR
Welfare Fund Department and in other departments (who were also
members of the NAPOCOR Welfare Fund) resigned, retired or separated
from service. Thereafter, the liquidation and dissolution process for the
NAPOCOR Welfare Fund commenced.
On 11 May 2004, the NAPOCOR-WFBT, with authority from the Commission
on Audit, approved Resolution No. 2004-001 authorizing the release of P184
million (which represented 40% of the liquid assets of NAPOCOR Welfare
Fund in the total amount of P462 million as of 16 April 2004) for distribution
to the NAPOCOR Welfare Fund members who resigned, retired, or
separated upon the effectivity of EPIRA on 26 June 2001 (EPIRA separated
members).[9]
Pursuant to Resolution No. 2004-001, herein respondent Edmund P.
Anguluan (Anguluan), as Ex-Officio Chairman of NAPOCOR-WFBT, issued
a memorandum on 17 May 2004 to implement the release of P184 million
only to the EPIRA separated members to the exclusion of the NAPOCOR
employees (who were also members of the NAPOCOR Welfare Fund) who
PINEDAPCGRNMAN
have resigned, retired, or separated prior to the effectivity of EPIRA (non-
EPIRA separated members).[10]
This prompted Mrs. Perla A. Segovia (Segovia), former Vice-President of
Human Resources and Administration and former Ex-Officio Chairman of the
NAPOCOR-WFBT, in behalf of the 559 non-EPIRA separated members and
in her own personal capacity, to write a letter to Mr. Rogelio M. Murga, then
NAPOCOR President, demanding their equal shares in the remaining assets
of the NAPOCOR Welfare Fund and access to information and records
thereof.[11]
On 13 July 2004, there being no action or response on her letter, Segovia,
together with Mrs. Emma C. Baysic (Baysic), former President of the
NAPOCOR Employees Association and former member of the NAPOCOR-
WFBT, in their personal capacities and on behalf of the 559 non-EPIRA
separated members, filed with the Quezon City Regional Trial Court (RTC),
Branch 217, a Petition for Mandamus, Accounting and Liquidation with a
Prayer for the Issuance of Temporary Restraining Order and Injunction
against respondents NAPOCOR, the NAPOCOR Board, Anguluan (as
NAPOCOR Vice-President, Human Resources, Administration and Finance
Department) and Lorna T. Dy (as NAPOCOR Senior Department Manager
on Finance).[12] The Petition was docketed as Civil Case No. Q04-53121.
Segovia, Baysic and the 559 non-EPIRA separated members were
represented in Civil Case No. Q04-53121 by petitioner Atty. Victoriano V.
Orocio under a Legal Retainer Agreement[13] dated 1 September 2004,
pertinent portions of which are reproduced below:
SUBJECT: Petition for Mandamus with Damages Temporary Restraining
Order/Injunction, etc. with the Court NPC RETIREES versus NPC, NP Board
of Directors, et. al. before the RTC Quezon City for the payment/settlement
of their claims for NPC Welfare Fund (P462 Million assets and other assets
liquid or non-liquid).
Dear Ms. Segovia and Ms. Baysic:
In connection with the above-stated subject, hereunder are our terms and
conditions, to wit:
1. No acceptance fee;
2. All costs of litigation ([filing] and docket fees, etc.),
miscellaneous and out-of-pocket expenses the prosecution of said action
shall be for the account of the clients;
3. No appearance/meeting fee;
4. Contingency or success fees of fifteen percent (15%) of
whatever amounts/value of assets (liquid and/or non-liquid) are recovered;
5. This Retainer Agreement serves as Legal Authority for the Law
Firm to receive and/or collect its contingency/success fee without further
demand.
On 22 February 2006, the parties in the above-mentioned case, duly assisted
by their respective counsels, executed a Compromise Agreement[14] whereby
they agreed to amicably settle their dispute under the following terms and
conditions:
COMPROMISE AGREEMENT
xxxx
WHEREAS, the parties have agreed to settle the instant case amicably.
PREMISES CONSIDERED, the parties herein have agreed as follows:
Page 305
1. Both the NPC EPIRA separated members (those members of the
Welfare Fund affected by the EPIRA law and ceased to be members of
the Welfare Fund anytime from June 26, 2001 [effectivity of the EPIRA
LEGAL ETHICS
LAW] to March 1, 2003 [implementation of the EPIRA law and date of
abolition of the Welfare Fund]) and NPC non-EPIRA separated members
(those who ceased to be members of the Fund prior to June 26, 2001)
are entitled to Earnings Differential of the NPC Welfare Fund;
2. Corrected Earnings Differential refers to a benefit which is a result of
re-computation of Members Equity Contributions and Earnings using
the correct rates of return vis--vis what was used when they were
separated. Period covered by the discrepancy is from 1989 to 2003.
Hence, affected are WF members separated anytime within the period
1989 to 2003;
xxxx
4. The Corrected Earnings Differential of all affected WF separated members
shall earn 6% legal interest per annum computed from the separation of the
members from service up to March 31, 2006 for all the non-EPIRA separated
members and May 31, 2006 for the EPIRA separated members;
5. As of March 2006, the estimated Corrected Earnings Differential for
the non-EPIRA separated members is P119.196 Million while for the
EPIRA separated members isP173.589 Million or a total of P292.785
Million, inclusive of the 6% legal interest;
6. In conformity with the Retainer Agreement dated September 1, 2004
between Mrs. Perla A. Segovia, Mrs. Emma Y. Baysic and Atty.
Victoriano V. Orocio; and Irrevocable Special Power of Attorney dated
July 20, 2005 executed by Mrs. Perla A. Segovia and Mrs. Emma Y.
Baysic in favor of Atty. Victoriano V. Orocio, counsel for petitioners,
(copies attached as Annexes A and B respectively), 15% attorneys fees
shall be deducted from the corresponding Corrected Earnings
Differential of those non-EPIRA separated members who have already
executed the corresponding Special Power of Attorney/Written
Authority for the deduction/payment of said attorneys fees, and shall
be paid to V.V. Orocio and Associates Law Office, represented by Atty.
Victoriano V. Orocio, as compensation for his legal services as counsel
for the non-EPIRA separated members subject to deduction of
applicable taxes;
xxxx
15. The parties herein shall exert their best effort in order that the terms and
conditions of this agreement are implemented and complied with in the spirit
of fairness, transparency and equity;
16. This Agreement is not contrary to law, good customs, public order or
public policy and is voluntarily entered into by the parties of their own free
will.[15]
The parties filed with the RTC the very next day, 23 February 2006, a Joint
Motion before the RTC for the approval of their Compromise Agreement.[16]
The RTC rendered a Decision on 3 April 2006 granting the parties Joint
Motion and approving the said Compromise Agreement.[17]
On 10 April 2006, petitioner filed with the RTC a Motion for Approval of
Charging (Attorneys) Lien. Petitioner asked the RTC to issue an order
declaring him entitled to collect an amount equivalent to 15% of the monies
due the non-EPIRA separated members as his attorneys fees in conformity
with the Compromise Agreement.[18] In an Order dated 15 May 2006, the RTC
granted petitioners motion and decreed that he is entitled to collect the
amount so demanded.[19]
On 20 June 2006, petitioner filed with the RTC a Motion for the Issuance of
a Writ of Execution of the RTC Order dated 15 May 2006.[20] Respondents
opposed the motion on the ground that there was no stipulation in the
Compromise Agreement to the effect that petitioner is entitled to collect an
amount equivalent to 15% of the monies due the non-EPIRA separated
members. Respondents contended that the amount of P119,196,000.00 due
the non-EPIRA separated members under the compromise agreement was
PINEDAPCGRNMAN
a mere estimate and, as such, cannot be validly used by petitioner as basis
for his claim of 15% attorneys fees.[21]
The RTC issued an Order on 25 July 2006 granting petitioners Motion[22] and,
accordingly, a Writ of Execution of the RTC Order dated 15 May 2006 was
issued on 26 July 2006. Pursuant to the said Writ of Execution, RTC Branch
Sheriff Reynaldo B. Madoloria (Sheriff Madoloria) issued a Notice of
Garnishment to Ms. Aurora Arenas (Arenas), Assistant Vice-President and
Business Manager of the Philippine National Bank (PNB)-NAPOCOR
Extension Office, Diliman, Quezon City, and to Mr. Emmanuel C. Mendoza
(Mendoza), Unit Head of the Landbank of the Philippines-NAPOCOR
Extension Office, Diliman, Quezon City.[23]
Respondents filed a Motion for Reconsideration of the RTC Order dated 25
July 2006.[24]
On 12 August 2006, Sheriff Madoloria served to Arenas an Order for Delivery
of Money.[25]
Respondents Anguluan and Dy filed before the Court of Appeals on 22
August 2006 a Petition for Certiorari under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 95786, assailing the RTC Order dated 25 July
2006 and praying that a temporary restraining order and/or a writ of
preliminary injunction be issued enjoining the implementation of the said RTC
order.[26] Respondent NAPOCOR filed with the Court of Appeals on the same
date another Petition for Certiorari under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 95946, also challenging the RTC Order dated
25 July 2006 and praying that it be set aside and a temporary restraining
order and/or a writ of preliminary injunction be issued prohibiting the RTC
from enforcing the said order and the corresponding writ of execution and
notice of garnishment.[27] Subsequently, respondent NAPOCOR filed a
Motion to Consolidate CA-G.R. SP No. 95946 with CA-G.R. SP No. 95786
which was granted by the appellate court.[28]
On 31 October 2006, the Court of Appeals issued a Resolution granting
respondents application for a TRO and writ of preliminary injunction. It
enjoined the RTC from implementing its Order dated 25 July 2006 and the
corresponding writ of execution and notice of garnishment during the
pendency of CA-G.R. SP No. 95946 and No. 95786.Petitioner filed a motion
for reconsideration of the said resolution.[29]
On 29 January 2007, the Court of Appeals promulgated its Decision annulling
and setting aside: (1) the RTC Order dated 25 July 2006; (2) the
corresponding Writ of Execution dated 26 July 2006; (3) the Notice of
Garnishment dated 28 July 2006; and (4) Order for Delivery of Money dated
10 August 2006. It also held that petitioner was entitled only to an amount of
P1,000,000.00 as attorneys fees on the basis of quantum meruit.
The Court of Appeals held that the amount of P17,794,572.70 sought to be
collected by petitioner as attorneys fees, equivalent to 15% of the
P119,196,000.00 estimated corrected earnings differential for non- EPIRA
separated members, was excessive based on the following reasons: (1) the
corrected earnings differential in the amount ofP119,196,000.00 due the non-
EPIRA separated members was a mere estimate and was hypothetical.
Thus, petitioner was unjustified in using said amount as basis for his 15%
attorneys fees; (2) there was hardly any work by petitioner since (a) the
compromise agreement was reached without trial or hearing on the merits;
(b) there was no issue regarding the release and distribution of the
NAPOCOR Welfare Fund to the non-EPIRA separated members as the
enactment of EPIRA, not the efforts of petitioner, made such distribution
possible; (c) there was no issue on how much each non-EPIRA separated
members would receive because the amount of their respective contribution
was duly recorded by the respondents; (d) respondents have already
distributed the corrected earnings differential to some non-EPIRA separated
members, and have given petitioner his corresponding partial attorneys fees
amounting to P3,512,007.32; (e) most of the non-EPIRA separated members
have not yet received their share under the compromise agreement but
Page 306
petitioner, who was merely their agent, was already given partial payment as
attorneys fees; (f) the amount of P17,794,572.70 represents only less than
one fourth partial release of the NAPOCOR
LEGAL ETHICS
Welfare Fund which means that the equivalent of three-fourths more would
be demanded [by petitioner] in the future; and (3) the money claim of the non-
EPIRA separated members was settled through a compromise agreement
and not won by petitioner in a trial on the merits.
The Court of Appeals determined that petitioner was entitled only to an
amount of P1,000,000.00 as attorneys fees on the basis of quantum meruit.
However, since petitioner already received P3,512,007.32 from respondents
as partial payment of his supposed 15% attorneys fees, it ruled that such
amount was more than sufficient and petitioner was not entitled to claim
anymore the additional amount of P14,282,565.38. The fallo of the Decision
of the Court of Appeals reads:
WHEREFORE, premises considered, the assailed July 25, 2006 Order, the
July 26, 2006 Writ of Execution, the July 28, 2006 Notice of Garnishment,
and the August 10, 2006 Order of Delivery of Money are hereby ANNULLED
and SET ASIDE, and a new one is ordered, CAPPING at P3,512,007.32, the
amount manifested to have already been received from the welfare fund as
attorneys fees, as the maximum amount that may be billed or collected as
attorneys fees from the whole welfare fund which amount is NOTED to have
already exceeded what this court had fixed at P1,000,000.00 as the
reasonable amount, on quantum meruit, that may be collected as attorneys
fees, pursuant to the guidelines codified in Rule 20.01, Canon 20 of the Code
of Professional Responsibility.[30]
Petitioner filed a motion for reconsideration of the aforementioned Decision
but this was denied by the Court of Appeals in its Resolution dated 27
September 2007.[31]
Hence, petitioner brought the instant petition before us assigning the
following errors:
I.
THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENTS
EDMUND P. ANGULUAN, LORNA T. DY AND NATIONAL POWER
CORPORATION (NPC) ARE ENTITLED TO [PRELIMINARY] INJUNCTION
AS THEY HAVE MATERIAL AND SUBSTANTIAL RIGHTS, WHICH ARE
CLEAR AND UNMISTAKABLE, i.e. RIGHTS OF BEING CLIENTS TO
QUESTION THE REASONABLENESS OF THE ATTORNEYS FEES OF A
LAWYER. THIS ALLEGED RIGHT IS NON-EXISTENT AND IN FACT
FABRICATED CONSIDERING THAT THE RESPONDENTS ARE NOT THE
CLIENTS AT ALL OF PETITIONER, ATTY. VICTORIANO V. OROCIO;
II.
THE COURT OF APPEALS ERRED IN RULING THAT THE FIFTEEN
PERCENT (15%) CONTINGENCY/SUCCESS FEE OF PETITIONER
VICTORIANO V. OROCIO IS UNCONSCIONABLE AND UNREASONABLE
DESPITE THE UNDISPUTED FACT THAT THE SAID ATTORNEYS FEES
IS AMONG THE TERMS AND CONDITIONS OF A JUDICIALLY
APPROVED COMPROMISE AGREEMENT AND COURT ORDER
APPROVING HIS CHARGING LIEN, WHICH AGREEMENT AND ORDER
HAVE ALREADY BECOME FINAL AND EXECUTORY.[32]
In his first assigned error, petitioner assails the Resolution dated 31 October
2006 of the Court of Appeals granting respondents application for a writ of
preliminary injunction. He claims that the Court of Appeals issued a writ of
preliminary injunction in favor of respondents because petitioner allegedly
violated respondents material and substantial right as petitioners clients to
pay only reasonable attorneys fees. Petitioner asserts that none of the
respondents is his client in the present case; that even respondents
themselves have not alleged or claimed that they are his clients; that the
amount of attorneys fees he claimed was chargeable on a portion of the
NAPOCOR Welfare Fund due his clients, the non-EPIRA separated
employees; that if anyone would be injured by his claim of attorneys fees, it
would be his clients, the non-EPIRA separated employees, and not
respondents; that none of his clients has questioned or complained about the
amount of attorneys fees he is claiming; that respondents are not the real
PINEDAPCGRNMAN
parties-in-interest and at most are merely nominal parties-in-interest; that as
mere nominal parties-in-interest, respondents are not entitled to a writ of
preliminary injunction under the Rules of Court; and that the requisites for the
proper issuance of a writ of preliminary injunction are lacking in the instant
case.[33]
In its Resolution dated 31 October 2006, the Court of Appeals granted
respondents application for a writ of preliminary injunction based on the
following reasons:
This Court finds that [herein respondents] have prima facie established [their]
compliance with strict requirements for issuance of a writ of preliminary
injunction in this case. Under the leading case of Valencia vs. Court of
Appeals, 352 SCRA 72 (2001), the requisites of preliminary injunction are as
follows: (a) the invasion of the right of [herein respondents] is material and
substantial; (b) the right of [herein respondents] is clear and unmistakable;
and (c) there is an urgent and paramount necessity for the writ to prevent
serious irreparable damage to [herein respondents].
The right of [herein respondents] alleged to have been invaded is that
a client has the right to pay only a reasonable amount of attorneys fees
and only for services actually rendered which is clearly and unmistakably
available to all clients. What [herein respondents] are claiming is a material
and substantial right. This Court finds that [herein respondents] haveprima
facie established an urgent and paramount necessity for the issuance of the
writ of preliminary injunction prayed for, to avoid irreparable injury to [herein
respondents]. x x x.
As can be gleaned from the foregoing, the basis of the Court of Appeals in
granting the writ was petitioners alleged violation or invasion of respondents
right, as petitioners clients, to pay only a reasonable amount of attorneys fees
to, and only for services actually rendered by, petitioner.
The Court of Appeals is clearly mistaken.
It should be made clear that petitioner is the counsel for the non-EPIRA
separated members in the latters quest to claim their shares in the
NAPOCOR Welfare Fund.Petitioner was never hired or employed by
respondents as their counsel in the cases at bar. Respondents themselves
do not claim or allege that they are clients of petitioner. In fact, petitioner is
representing the non-EPIRA separated members, the opposing party to the
respondents in the present cases.
Further, the amount of attorneys fees being claimed by petitioner is
chargeable to the P119,196,000.00 corrected earnings differential of his
clients, the non-EPIRA separated members. Respondents have actually
partially distributed such amount to some non-EPIRA separated members
pursuant to the Compromise Agreement. In other words, the non-EPIRA
separated members are the lawful owners/beneficiaries of the amount from
which petitioners attorneys fees had been and shall be taken.
Hence, if anyone would be injured by petitioners claim for attorneys fees, it
would be his clients, the non-EPIRA separated members, and not
respondents. It appears, however, that none of the non-EPIRA separated
members has questioned or complained about petitioners claim for attorneys
fees.
A preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a court,
agency or a person to refrain from a particular act or acts.[34] A writ of
preliminary injunction is a provisional remedy, an adjunct to a main suit, as
well as a preservative remedy issued to preserve thestatus quo of the things
subject of the action or the relations between the parties during the pendency
of the suit.[35] For a writ of preliminary injunction to issue, the applicant is
tasked to establish and convincingly show the following: (1) a right in esse or
a clear and unmistakable right to be protected; (2) a violation of that right;
Page 307
and (3) there is an urgent and permanent act and urgent necessity for the
writ to prevent serious damage.[36]
LEGAL ETHICS
A clear legal right means one clearly founded on or granted by law or is
enforceable as a matter of law.[37] The existence of a right violated is a
prerequisite to the granting of a writ of preliminary injunction.[38] A writ of
preliminary injunction will not issue to protect a right not in esse and which
may never arise.[39] It may be issued only if the applicant has clearly shown
an actual existing right that should be protected during the pendency of the
principal action.[40] In the absence of a clear legal right, or when the applicants
right or title is doubtful or disputed, preliminary injunction is not proper.[41]
It is evident from the foregoing that respondents do not have a clear right or
right in esse to pay only a reasonable amount of attorneys fees to the
petitioner because such right belongs solely to petitioners clients, the non-
EPIRA separated members. There can be no violation of a right which does
not exist in the first place. Also, there was no necessity for the writ of
preliminary injunction since the non-EPIRA separated members do not claim
any damage or injury caused by the execution of the RTC Order dated 15
May 2006. Even assuming that respondents would probably suffer damages
as administrators or custodians of the NAPOCOR Welfare Fund if the writ of
preliminary injunction was not granted, our ruling would still be the same. We
have held that the possibility of irreparable damage without proof of an actual
existing right is not a ground for the issuance of a writ of preliminary
injunction.[42] Given these considerations, we hold that the issuance by the
Court of Appeals of a writ of preliminary injunction in favor of respondents in
its Resolution, dated 31 October 2006, was improper.
With regard to his second assigned error, petitioner maintained that his claim
for attorneys fees equivalent to 15% of the P119,196,000.00 estimated
corrected earnings differential due the non-EPIRA separated members was
not unreasonable or unconscionable because such amount was expressly
agreed upon in the Compromise Agreement between the non-EPIRA
separated members and respondents. The Compromise Agreement was
submitted to the RTC for approval through the joint motion of the non-EPIRA
separated members and respondents, and the RTC had rendered a final and
executory decision approving the same. By virtue of res judicata, the Court
of Appeals cannot alter or change the terms of the Compromise Agreement
by prohibiting petitioner from collecting his stipulated amount of attorneys
fees.[43]
Petitioner also avers that the amount of P17,794,572.70, which is equivalent
to 15% of the P119,196,000.00 estimated corrected earnings differential due
the non-EPIRA separated members from the NAPOCOR Welfare Fund is
already the total, not partial, amount he is claiming as attorneys fees; that the
P119,196,000.00 estimated corrected earnings differential due the non-
EPIRA separated members from the NAPOCOR Welfare Fund is not
hypothetical, such amount having been actually computed and fixed by
respondents themselves without the participation of petitioner and his clients,
the non-EPIRA separated members; that he did a lot of legal work and utilized
his legal skills on discovery procedures to force respondents to enter into the
Compromise Agreement with the non-EPIRA separated members; that the
passage of EPIRA merely paved the way for the distribution of the remaining
assets of the NAPOCOR Welfare Fund; that if not for his legal work and skills,
the non-EPIRA separated members would not have received their lawful
shares in the remaining assets of the NAPOCOR Welfare Fund; and that his
claim for 15% attorneys fees is supported by jurisprudence.[44]
An attorneys fee, in its ordinary concept, refers to the reasonable
compensation paid to a lawyer for the legal services he has rendered to a
client.[45] The client and his lawyer may enter into a written contract whereby
the latter would be paid attorneys fees only if the suit or litigation ends
favorably to the client. This is called a contingency fee contract. The amount
of attorneys fees in this contract may be on a percentage basis, and a much
higher compensation is allowed in consideration of the risk that the lawyer
may get nothing if the suit fails.[46] In the case at bar, the non-EPIRA
separated members and petitioner voluntarily entered into a contingency fee
contract whereby petitioner did not receive any acceptance fee or
appearance/meeting fee. The non-EPIRA separated members expressly
agreed to pay petitioner contingency or success fees of fifteen percent (15%)
of whatever amount/value of assets (liquid and/or non-liquid) recovered; and
PINEDAPCGRNMAN
authorized petitioners law firm to receive and/or collect its
contingency/success fee without further demand.
Contingent fee contracts are permitted in this jurisdiction because they
redound to the benefit of the poor client and the lawyer especially in cases
where the client has meritorious cause of action, but no means with which to
pay for legal services unless he can, with the sanction of law, make a contract
for a contingent fee to be paid out of the proceeds of litigation. Oftentimes,
the contingent fee arrangement is the only means by which the poor clients
can have their rights vindicated and upheld. Further, such contracts are
sanctioned by Canon 13 of the Canons of Professional Ethics.[47]
However, in cases where contingent fees are sanctioned by law, the same
should be reasonable under all the circumstances of the case, and should
always be subject to the supervision of a court, as to its reasonableness,
such that under Canon 20 of the Code of Professional Responsibility, a
lawyer is tasked to charge only fair and reasonable fees.[48]
A stipulation on a lawyers compensation in a written contract for professional
services ordinarily controls the amount of fees that the contracting lawyer
may be allowed, unless the court finds such stipulated amount to be
unreasonable or unconscionable. If the stipulated amount for attorneys fees
is excessive, the contract may be disregarded even if the client expressed
their conformity thereto.[49] Attorneys fees are unconscionable if they affront
ones sense of justice, decency or reasonableness, or if they are so
disproportionate to the value of the services rendered. In such a case, courts
are empowered to reduce the attorneys fee or fix a reasonable amount
thereof taking into consideration the surrounding circumstances and the
established parameters.[50]
The principle of quantum meruit (as much as he deserves) may be a basis
for determining the reasonable amount of attorneys fees. Quantum meruit is
a device to prevent undue enrichment based on the equitable postulate that
it is unjust for a person to retain benefit without paying for it. It is applicable
even if there was a formal written contract for attorneys fees as long as the
agreed fee was found by the court to be unconscionable. In fixing a
reasonable compensation for the services rendered by a lawyer on the basis
ofquantum meruit, factors such as the time spent, and extent of services
rendered; novelty and difficulty of the questions involved; importance of the
subject matter; skill demanded; probability of losing other employment as a
result of acceptance of the proferred case; customary charges for similar
services; amount involved in the controversy and the benefits resulting to the
client; certainty of compensation; character of employment; and professional
standing of the lawyer, may be considered.[51]
It appears that the non-EPIRA separated members chose petitioner as their
counsel because the latter, as former member of the NAPOCOR-WFBT for
two terms or four years, is familiar and knowledgeable on the operation of the
NAPOCOR Welfare Fund.[52] Yet, according to the contingency fee contract
agreement between petitioner and the non-EPIRA separated members,
petitioner received no acceptance fee and appearance/meeting fee when he
took on the non-EPIRA separated members case. Petitioners attorneys fees
were absolutely dependent on the success of non-EPIRA separated
members claim on the NAPOCOR Welfare Fund. Despite these
circumstances, petitioner worked diligently in advocating the claims of the
non-EPIRA separated members against respondents as shown by the
following: (1) petitioner took pains in verifying the identity and claim of each
of the 559 non-EPIRA separated members on the NAPOCOR Welfare Fund;
(2) petitioner prepared and filed a well-researched and well-argued petition
with the RTC for the claims of the non-EPIRA separated members;[53] (3) he
prepared and presented several witnesses and numerous pertinent
documents before the RTC in support of their application for the issuance of
a temporary restraining order and/or writ of preliminary injunction against
respondents plan to exclude the non-EPIRA separated members from
receiving their shares in the NAPOCOR Welfare Fund; (4) he participated,
as non-EPIRA separated members counsel, in the conduct of several
hearings regarding the said application for the issuance of temporary
Page 308
restraining order and/or writ of preliminary injunction;[54] (5) he obtained a
temporary restraining order and a writ of preliminary injunction from the RTC
which enjoined/prohibited respondents from excluding the non-EPIRA
LEGAL ETHICS
separated members from their shares in the NAPOCOR Welfare Fund;[55] (6)
he held numerous conferences with the non-EPIRA separated members
wherein he apprised the latter of the status of their claims and his legal
strategies pertinent thereto;[56] and (7) he exerted utmost efforts which
eventually led to the execution of the Compromise Agreement between the
non-EPIRA separated members and respondents.
By reason of petitioners dedication and persistence as can be gleaned
above, respondents finally agreed to settle amicably with the non-EPIRA
separated members as regards the latters claim for shares in the NAPOCOR
Welfare Fund by virtue of the Compromise Agreement.
Undoubtedly, were it not for petitioners vigilance and zeal, respondents
would not have executed the Compromise Agreement with the non-EPIRA
separated members.Hence, it is fair to conclude that petitioner was entitled
to a reasonably high compensation.
However, petitioners attorneys fees in the amount of P17,794,572.70 or
equivalent to 15% of the P 119,196,000.00 corrected earnings differential of
the non-EPIRA separated members should be equitably reduced.
In NPC Drivers and Mechanics Association (NPC DAMA) v. The National
Power Corporation (NPC),[57] we awarded separation pay in lieu of
reinstatement plus backwages to several NPC employees because they
were illegally dismissed by the NPC. The NPC employees were represented
by a certain Atty. Cornelio P. Aldon (Atty. Aldon) and Atty. Victoriano V.
Orocio, (the petitioner in the instant cases) under a legal retainer agreement
which provides: (1) no acceptance fee; (2) miscellaneous/out of pocket
expenses in the amount of P25,000.00; and (3) twenty-five percent (25%) of
whatever amounts/monies are recovered in favor of said NPC personnel
contingent on the success of the case. Atty. Aldon and Atty. Orocio filed a
Motion for Approval of Charging (Attorneys) Lien pursuant to the legal
retainer agreement. Although we granted the said motion, we reduced the
amount of attorneys fees which was chargeable on the monies recoverable
by the NPC employees from 25% to 10% because:
While we duly recognize the right of Atty. Aldon and Atty. Orocio to a charging
lien on the amounts recoverable by petitioners pursuant to our 26 September
2006 Decision, nevertheless, we deem it proper to reduce the same. Under
Section 24, Rule 138 of the Rules of Court, a written contract for services
shall control the amount to be paid therefor unless found by the court to be
unconscionable or unreasonable. The amounts which petitioners may
recover as the logical and necessary consequence of our Decision of 26
September 2006, i.e., backwages and separation pay (in lieu of
reinstatement), are essentially the same awards which we grant to illegally
dismissed employees in the private sector. In such cases, our Labor Code
explicitly limits attorneys fees to a maximum of 10% of the recovered amount.
Considering by analogy the said limit on attorneys fees in this case of illegal
dismissal of petitioners by respondent NPC, a government-owned and
controlled corporation; plus the facts that petitioners have suffered
deprivation of their means of livelihood for the last five years; and the fact
that this case was originally filed before us, without any judicial or
administrative proceedings below; as well as the fundamental ethical
principle that the practice of law is a profession and not a commercial
enterprise, we approve in favor of Atty. Aldon and Atty. Orocio a charging lien
of 10% (instead of 25%) on the amounts recoverable by petitioners from NPC
pursuant to our Decision dated 26 September 2006.
The abovementioned case may be reasonably applied by analogy in the
instant case since they have substantially similar circumstances. In the case
before us, although the non-EPIRA separated members were not illegally
dismissed, they were, nevertheless, separated from work by reason of
EPIRA. In addition, the non-EPIRA separated members had a legal retainer
agreement/contingency fee contract with petitioner as their counsel.
It should also be emphasized that the practice of law is a profession not a
moneymaking venture. A lawyer is not merely the defender of his clients
cause and a trustee of his clients cause of action and assets; he is also, and
first and foremost, an officer of the court and participates in the fundamental
PINEDAPCGRNMAN
function of administering justice in society. It follows that a lawyers
compensation for professional services rendered is subject to the supervision
of the court, not just to guarantee that the fees he charges and receives
remain reasonable and commensurate with the services rendered, but also
to maintain the dignity and integrity of the legal profession to which he
belongs. Upon taking his attorneys oath as an officer of the court, a lawyer
submits himself to the authority of the courts to regulate his right to charge
professional fees.[58]
Thus, taking into account the foregoing circumstances and recognized
principles, the 15% attorneys fees of petitioner should be
reduced to 10%. As such, petitioner is entitled to collect only, as attorneys
fees, an amount equivalent to 10% of the P119,196,000.00
or P11,919,600.00.
We note, however, that the compromise agreement was partially
implemented in the first week of April 2006 with the payment of
P23,416,000.00 to some non-EPIRA separated members.[59] Petitioner
admitted having already received an amount of P3,512,007.32 as his
attorneys fees on the said partial payment of P23,416,000.00.[60]Accordingly,
the amount of P3,512,007.32 received by petitioner as attorneys fees should
be deducted from the fixed 10% attorneys fees or the amount of
P11,919,600.00. Per computation, petitioner is entitled to recover the amount
of P8,407,592.68 as attorneys fees.
WHEREFORE, premises considered, the Resolution of the Court of Appeals
dated 31 October 2006 in CA-G.R. SP Nos. 95786 and 95946 granting the
issuance of a writ of preliminary injunction is hereby ANNULLED and SET
ASIDE. The Decision and Resolution, dated 29 January 2007 and 27
September 2007, respectively, of the Court of Appeals in CA-G.R. SP Nos.
95786 and 95946 are hereby AFFIRMED with the MODIFICATION that
petitioner is entitled to recover attorneys fees in the amount ofP8,407,592.68
on the corrected earnings differential of the non-EPIRA separated members.
No costs.
SO ORDERED.
G.R. No. 73886 January 31, 1989
JOHN C. QUIRANTE and DANTE CRUZ, petitioners, vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT, MANUEL C.
CASASOLA, and ESTRELLITA C. CASASOLA, respondents.
Quirante & Associates Law Office for petitioners.
R.S. Bernaldo & Associates for private respondents.
REGALADO, J.:
This appeal by certiorari seeks to set aside the judgment' 1 of the former
Intermediate Appellate Court promulgated on November 6, 1985 in AC-G.R.
No. SP-03640, 2 which found the petition for certiorari therein meritorious,
thus:
Firstly, there is still pending in the Supreme Court a petition which may or
may not ultimately result in the granting to the Isasola (sic) family of the total
amount of damages given by the respondent Judge. Hence the award of
damages confirmed in the two assailed Orders may be premature. Secondly,
assuming that the grant of damages to the family is eventually ratified, the
alleged confirmation of attorney's fees will not and should not adversely affect
the non-signatories thereto.
WHEREFORE, in view of the grave abuse of discretion (amounting to lack of
jurisdiction) committed by the respondent Judge, We hereby SET ASIDE his
questioned orders of March 20, 1984 and May 25, 1984. The restraining
order previously issued is made permanent. 3
The challenged decision of respondent court succinctly sets out the factual
origin of this case as follows:
... Dr. Indalecio Casasola (father of respondents) had a contract with a
building contractor named Norman GUERRERO. The Philippine American
General Insurance Co. Inc. (PHILAMGEN, for short) acted as bondsman for
Page 309
GUERRERO. In view of GUERRERO'S failure to perform his part of the
contract within the period specified, Dr. Indalecio Casasola, thru his counsel,
Atty. John Quirante, sued both GUERRERO and PHILAMGEN before the
LEGAL ETHICS
Court of first Instance of Manila, now the Regional Trial Court (RTC) of Manila
for damages, with PHILAMGEN filing a cross-claim against GUERRERO for
indemnification. The RTC rendered a decision dated October 16, 1981 4
In said decision, the trial court ruled in favor of the plaintiff by rescinding the
contract; ordering GUERRERO and PHILAMGEN to pay the plaintiff actual
damages in the amount of P129,430.00, moral damages in the amount of
P50,000.00, exemplary damages in the amount of P40,000.00 and attorney's
fees in the amount of P30,000.00; ordering Guerrero alone to pay liquidated
damages of P300.00 a day from December 15, 1978 to July 16, 1979; and
ordering PHILAMGEN to pay the plaintiff the amount of the surety bond
equivalent to P120,000.00. 5 A motion for reconsideration filed by
PHILAMGEN was denied by the trial court on November 4, 1982. 6
Not satisfied with the decision of the trial court, PHILAMGEN filed a notice of
appeal but the same was not given due course because it was allegedly filed
out of time. The trial court thereafter issued a writ of execution. 7
A petition was filed in AC-G.R. No. 00202 with the Intermediate Appellate
Court for the quashal of the writ of execution and to compel the trial court to
give due course to the appeal. The petition was dismissed on May 4, 1983
8 so the case was elevated to this Court in G.R. No. 64334. 9 In the meantime,
on November 16, 1981, Dr. Casasola died leaving his widow and several
children as survivors. 10
On June 18, 1983, herein petitioner Quirante filed a motion in the trial court
for the confirmation of his attorney's fees. According to him, there was an oral
agreement between him and the late Dr. Casasola with regard to his
attorney's fees, which agreement was allegedly confirmed in writing by the
widow, Asuncion Vda. de Casasola, and the two daughters of the deceased,
namely Mely C. Garcia and Virginia C. Nazareno. Petitioner avers that
pursuant to said agreement, the attorney's fees would be computed as
follows:
A. In case of recovery of the P120,000.00 surety bond, the attorney's fees of
the undersigned counsel (Atty. Quirante) shall be P30,000.00.
B. In case the Honorable Court awards damages in excess of the
P120,000.00 bond, it shall be divided equally between the Heirs of I.
Casasola, Atty. John C. Quirante and Atty. Dante Cruz.
The trial court granted the motion for confirmation in an order dated March
20, 1984, despite an opposition thereto. It also denied the motion for
reconsideration of the order of confirmation in its second order dated May 25,
1984. 11
These are the two orders which are assailed in this case.
Well settled is the rule that counsel's claim for attorney's fees may be
asserted either in the very action in which the services in question have been
rendered, or in a separate action. If the first alternative is chosen, the Court
may pass upon said claim, even if its amount were less than the minimum
prescribed by law for the jurisdiction of said court, upon the theory that the
right to recover attorney's fees is but an incident of the case in which the
services of counsel have been rendered ." 12 It also rests on the assumption
that the court trying the case is to a certain degree already familiar with the
nature and extent of the lawyer's services. The rule against multiplicity of
suits will in effect be subserved. 13
What is being claimed here as attorney's fees by petitioners is, however,
different from attorney's fees as an item of damages provided for under
Article 2208 of the Civil Code, wherein the award is made in favor of the
litigant, not of his counsel, and the litigant, not his counsel, is the judgment
creditor who may enforce the judgment for attorney's fees by execution.
14 Here, the petitioner's claims are based on an alleged contract for
professional services, with them as the creditors and the private respondents
as the debtors.
In filing the motion for confirmation of attorney's fees, petitioners chose to
assert their claims in the same action. This is also a proper remedy under
our jurisprudence. Nevertheless, we agree with the respondent court that the
confirmation of attorney's fees is premature. As it correctly pointed out, the
petition for review on certiorari filed by PHILAMGEN in this Court (G.R. No.
64834) "may or may not ultimately result in the granting to the Isasola (sic)
family of the total amount of damages" awarded by the trial court. This
especially true in the light of subsequent developments in G.R. No. 64334. In
a decision promulgated on May 21, 1987, the Court rendered judgment
setting aside the decision of May 4, 1983 of the Intermediate Appellate Court
in AC-G.R. No. 00202 and ordering the respondent Regional Trial Court of
Manila to certify the appeal of PHILAMGEN from said trial court's decision in
PINEDAPCGRNMAN
Civil Case No. 122920 to the Court of Appeal. Said decision of the Court
became final and executory on June 25, 1987.
Since the main case from which the petitioner's claims for their fees may arise
has not yet become final, the determination of the propriety of said fees and
the amount thereof should be held in abeyance. This procedure gains added
validity in the light of the rule that the remedy for recovering attorney's fees as
an incident of the main action may be availed of only when something is due to
the client. Thus, it was ruled that:
... an attorney's fee cannot be determined until after the main litigation has
been decided and the subject of recovery is at the disposition of the court.
The issue over attorney's fee only arises when something has been
recovered from which the fee is to be paid. 15
It is further observed that the supposed contract alleged by petitioners as the
basis for their fees provides that the recovery of the amounts claimed is
subject to certain contingencies. It is subject to the condition that the fee shall
be P30,000.00 in case of recovery of the P120,000.00 surety bond, plus an
additional amount in case the award is in excess of said P120,000.00 bond,
on the sharing basis hereinbefore stated.
With regard to the effect of the alleged confirmation of the attorney's fees by
some of the heirs of the deceased. We are of the considered view that the
orderly administration of justice dictates that such issue be likewise
determined by the court a quo inasmuch as it also necessarily involves the
same contingencies in determining the propriety and assessing the extent of
recovery of attorney's fees by both petitioners herein. The court below will be
in a better position, after the entire case shall have been adjudicated,
inclusive of any liability of PHILAMGEN and the respective participations of
the heirs of Dr. Casasola in the award, to determine with evidentiary support
such matters like the basis for the entitlement in the fees of petitioner Dante
Cruz and as to whether the agreement allegedly entered into with the late Dr.
Casasola would be binding on all his heirs, as contended by petitioner
Quirante.
We, therefore, take exception to and reject that portion of the decision of the
respondent court which holds that the alleged confirmation to attorney's fees
should not adversely affect the non-signatories thereto, since it is also
premised on the eventual grant of damages to the Casasola family, hence
the same objection of prematurity obtains and such a holding may be pre-
emptive of factual and evidentiary matters that may be presented for
consideration by the trial court.
WHEREFORE, with the foregoing observation, the decision of the
respondent court subject of the present recourse is hereby AFFIRMED.
SO ORDERED.
G.R. No. 86100-03 January 23, 1990
METROPOLITAN BANK AND TRUST COMPANY, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ARTURO ALAFRIZ and
ASSOCIATES, respondents.
Bautista, Picazo, Buyco, Tan & Fider for petitioner.
Arturo A. Alafriz & Associates for and in their own behalf.
REGALADO, J.:
This petition for review on certiorari impugns the decision of the Court of
Appeals in CA-G.R. Nos. 08265-08268 1affirming the order of Branch 168,
Regional Trial Court, National Capital Judicial Region, in Civil Cases Nos.
19123-28, 19136 and 19144, fixing attorney's fees and directing herein
petitioner Metropolitan Bank and Trust Company (Metrobank, for brevity), as
defendant in said civil cases, to pay its attorneys, herein private respondent
Arturo Alafriz and Associates, movant therein, the amount of P936,000.00 as
attorney's fees on a quantum meruit basis.
The records show that from March, 1974 to September, 1983, private
respondent handled the above-mentioned civil cases before the then Court
of First Instance of Pasig (Branches I, II, VI, X, XIII, XIX, XX AND XXIV) in
behalf of petitioner. 2 The civil cases were all for the declaration of nullity of
certain deeds of sale, with damages.
The antecedental facts 3 which spawned the filing of said actions are
undisputed and are hereinunder set forth as found by the trial court and
Page 310
adopted substantially in the decision of respondent court. A certain Celedonio
Javier bought seven (7) parcels of land owned by Eustaquio Alejandro, et al.,
with a total area of about ten (10) hectares. These properties were thereafter
LEGAL ETHICS
mortgaged by Javier with the petitioner to secure a loan obligation of one
Felix Angelo Bautista and/or International Hotel Corporation. The obligors
having defaulted, petitioner foreclosed the mortgages after which certificates
of sale were issued by the provincial sheriff in its favor as purchaser thereof
Subsequently, Alejandro, alleging deceit, fraud and misrepresentation
committed against him by Javier in the sale of the parcels of land, brought
suits against Javier et al., and included petitioner as defendant therein.
It was during the pendency of these suits that these parcels of land were sold
by petitioner to its sister corporation, Service Leasing Corporation on March
23, 1983 for the purported price of P600,000.00. On the same day, the
properties were resold by the latter to Herby Commercial and Construction
Corporation for the purported price of P2,500,000.00. Three months later, or
on June 7, 1983, Herby mortgaged the same properties with Banco de Oro
for P9,200,000.00. The lower court found that private respondent, did not
have knowledge of these transfers and transactions.
As a consequence of the transfer of said parcels of land to Service Leasing
Corporation, petitioner filed an urgent motion for substitution of party on July
28, 1983. Private respondent, on its part, filed on August 16, 1983 a verified
motion to enter in the records of the aforesaid civil cases its charging lien,
pursuant to Section 37, Rule 138 of the Rules of Court, equivalent to twenty-
five percent (25%) of the actual and current market values of the litigated
properties as its attorney's fees. Despite due notice, petitioner failed to
appear and oppose said motion, as a result of which the lower court granted
the same and ordered the, Register of Deeds of Rizal to annotate the
attorney's liens on the certificates of title of the parcels of land.
Meanwhile, the plaintiffs Alejandro, et al. in the aforesaid civil cases, which
had been consolidated and were pending before the Regional Trial Court of
Pasig, filed a motion to dismiss their complaints therein, which motion the
lower court granted with prejudice in its order dated September 5, 1983. On
December 29, 1983, the same court ordered the Register of Deeds to
annotate the attorney's liens of private respondent on the derivative titles
which cancelled Transfer Certificates of Title Nos. 453093 to 453099 of the
original seven (7) parcels of land hereinbefore adverted to.
On May 28,1984, private respondent filed a motion to fix its attorney's fees,
based on quantum meruit, which motion precipitated an exchange of
arguments between the parties. On May 30, 1984, petitioner manifested that
it had fully paid private respondent; the latter, in turn, countered that the
amount of P50,000.00 given by petitioner could not be considered as full
payment but merely a cash advance, including the amount of P14,000.00
paid to it on December 15, 1980. It further appears that private respondent
attempted to arrange a compromise with petitioner in order to avoid suit,
offering a compromise amount of P600,000.00 but the negotiations were
unsuccessful.
Finally, on October 15,1984, the court a quo issued the order assailed on
appeal before respondent court, granting payment of attorney's fees to
private respondent, under the following dispositive portion:
PREMISES CONSIDERED, the motion is hereby granted and the
Metropolitan Bank and Trust Company (METROBANK) and Herby
Commercial and Construction Corporation 4 are hereby ordered to pay the
movant Arturo Alafriz and Associates the amount of P936,000.00 as its
proper, just and reasonable attorney's fees in these cases. 5
On appeal, respondent court affirmed the order of the trial court in its decision
promulgated on February 11, 1988. A motion for reconsideration, dated
March 3, 1988, was filed by petitioner but the same was denied in a resolution
promulgated on November 19, 1988, hence the present recourse.
The issues raised and submitted for determination in the present petition may
be formulated thus: (1) whether or not private respondent is entitled to the
enforcement of its charging lien for payment of its attorney's fees; (2) whether
or not a separate civil suit is necessary for the enforcement of such lien and
(3) whether or not private respondent is entitled to twenty-five (25%) of the
actual and current market values of the litigated properties on aquantum
meruit basis.
On the first issue, petitioner avers that private respondent has no enforceable
attorney's charging lien in the civil cases before the court below because the
dismissal of the complaints therein were not, in the words of Section 37, Rule
138, judgments for the payment of money or executions issued in pursuance
of such judgments. 6
We agree with petitioner.
On the matter of attorney's liens Section 37, Rule 138 provides:
PINEDAPCGRNMAN
. . . He shall also have a lien to the same extent upon all judgments for the
payment of money, and executions issued in pursuance of such judgments,
which he has secured in a litigation of his client, from and after the time when
he shall have caused a statement of his claim of such lien to be entered upon
the records of the court rendering such judgment, or issuing such execution,
and shall have caused written notice thereof to be delivered to his client and
to the adverse party; and he shall have the same right and power over such
judgments and executions as his client would have to enforce his lien and
secure the payment of his just fees and disbursements.
Consequent to such provision, a charging lien, to be enforceable as security
for the payment of attorney's fees, requires as a condition sine qua non a
judgment for money and execution in pursuance of such judgment secured
in the main action by the attorney in favor of his client. A lawyer may enforce
his right to fees by filing the necessary petition as an incident in the main
action in which his services were rendered when something is due his client
in the action from which the fee is to be paid. 7
In the case at bar, the civil cases below were dismissed upon the initiative of
the plaintiffs "in view of the frill satisfaction of their claims." 8 The dismissal
order neither provided for any money judgment nor made any monetary
award to any litigant, much less in favor of petitioner who was a defendant
therein. This being so, private respondent's supposed charging lien is, under
our rule, without any legal basis. It is flawed by the fact that there is nothing
to generate it and to which it can attach in the same manner as an ordinary
lien arises and attaches to real or personal property.
In point is Morente vs. Firmalino, 9 cited by petitioner in support of its position.
In that case, movant-appellant attorney sought the payment of his fees from
his client who was the defendant in a complaint for injunction which was
dismissed by the trial court after the approval of an agreement entered into
by the litigants. This Court held:
. . . The defendant having suffered no actual damage by virtue of the issuance
of a preliminary injunction, it follows that no sum can be awarded the
defendant for damages. It becomes apparent, too, that no amount having
been awarded the defendant, herein appellant's lien could not be enforced.
The appellant, could, by appropriate action, collect his fees as attorney.
Private respondent would nevertheless insist that the lien attaches to the
"proceeds of a judgment of whatever nature," 10 relying on the case of
Bacolod-Murcia Milling Co. Inc. vs. Henares 11 and some American cases
holding that the lien attaches to the judgment recovered by an attorney and
the proceeds in whatever form they may be. 12
The contention is without merit just as its reliance is misplaced. It is true that
there are some American cases holding that the lien attaches even to
properties in litigation. However, the statutory rules on which they are based
and the factual situations involved therein are neither explained nor may it be
said that they are of continuing validity as to be applicable in this jurisdiction.
It cannot be gainsaid that legal concepts of foreign origin undergo a number
of variegations or nuances upon adoption by other jurisdictions, especially
those with variant legal systems.
In fact, the same source from which private respondent culled the American
cases it cited expressly declares that "in the absence of a statute or of a
special agreement providing otherwise, the general rule is that an attorney
has no lien on the land of his client, notwithstanding such attorney has, with
respect to the land in question, successfully prosecuted a suit to establish
the title of his client thereto, recovered title or possession in a suit prosecuted
by such client, or defended successfully such client's right and title against
an unjust claim or an unwarranted attack," 13 as is the situation in the case at
bar. This is an inescapable recognition that a contrary rule obtains in other
jurisdictions thereby resulting in doctrinal rulings of converse or modulated
import.
To repeat, since in our jurisdiction the applicable rule provides that a charging
lien attaches only to judgments for money and executions in pursuance of
such judgment, then it must be taken in haec verba. The language of the law
is clear and unequivocal and, therefore, it must be taken to mean exactly
what it says, barring any necessity for elaborate interpretation. 14
Notably, the interpretation, literal as it may appear to be, is not without
support in Philippine case law despite the dearth of cases on all fours with
the present case. In Caina et al. vs. Victoriano, et al., 15 the Court had the
occasion to rule that "the lien of respondent is not of a nature which attaches
Page 311
to the property in litigation but is at most a personal claim enforceable by a
writ of execution." In Ampil vs. Juliano-Agrava, et al., 16 the Court once again
declared that a charging lien "presupposes that the attorney has secured a
LEGAL ETHICS
favorable money judgment for his client . . ." Further, in Director of Lands vs.
Ababa, et al., 17 we held that "(a) charging lien under Section 37, Rule 138 of
the Revised Rules of Court is limited only to money judgments and not to
judgments for the annulment of a contract or for delivery of real property as
in the instant case."
Even in the Bacolod-Murcia Milling case, which we previously noted as cited
by private respondent, there was an express declaration that "in this
jurisdiction, the lien does not attach to the property in litigation."
Indeed, an attorney may acquire a lien for his compensation upon money due
his client from the adverse party in any action or proceeding in which the
attorney is employed, but such lien does not extend to land which is the
subject matter of the litigation. 18 More specifically, an attorney merely
defeating recovery against his client as a defendant is not entitled to a lien
on the property involved in litigation for fees and the court has no power to
fix the fee of an attorney defending the client's title to property already in the
client's
possession. 19
While a client cannot defeat an attorney's right to his charging lien by
dismissing the case, terminating the services of his counsel, waiving his
cause or interest in favor of the adverse party or compromising his action,
20this rule cannot find application here as the termination of the cases below
was not at the instance of private respondent's client but of the opposing
party.
The resolution of the second issue is accordingly subsumed in the preceding
discussion which amply demonstrates that private respondent is not entitled
to the enforcement of its charging lien.
Nonetheless, it bears mention at this juncture that an enforceable charging
lien, duly recorded, is within the jurisdiction of the court trying the main case
and this jurisdiction subsists until the lien is settled. 21 There is certainly no
valid reason why the trial court cannot pass upon a petition to determine
attorney's fees if the rule against multiplicity of suits is to be activated.
22 These decisional rules, however, apply only where the charging lien is valid
and enforceable under the rules.
On the last issue, the Court refrains from resolving the same so as not to
preempt or interfere with the authority and adjudicative facility of the proper
court to hear and decide the controversy in a proper proceeding which may
be brought by private respondent.
A petition for recovery of attorney's fees, either as a separate civil suit or as
an incident in the main action, has to be prosecuted and the allegations
therein established as any other money claim. The persons who are entitled
to or who must pay attorney's fees have the right to be heard upon the
question of their propriety or amount. 23Hence, the obvious necessity of a
hearing is beyond cavil.
Besides, in fixing a reasonable compensation for the services rendered by a
lawyer on the basis of quantum meruit, the elements to be considered are
generally (1) the importance of the subject matter in controversy, (2) the
extent of the services rendered, and (3) the professional standing of the
lawyer. 24 These are aside from the several other considerations laid down
by this Court in a number of decisions as pointed out by respondent court.
25 A determination of all these factors would indispensably require nothing
less than a full-blown trial where private respondent can adduce evidence to
establish its right to lawful attorney's fees and for petitioner to oppose or
refute the same.
Nothing in this decision should, however, be misconstrued as imposing an
unnecessary burden on private respondent in collecting the fees to which it
may rightfully be entitled. But, as in the exercise of any other right conferred
by law, the proper legal remedy should be availed of and the procedural rules
duly observed to forestall and obviate the possibility of abuse or prejudice, or
what may be misunderstood to be such, often to the undeserved discredit of
the legal profession.
Law advocacy, it has been stressed, is not capital that yields profits. The
returns it births are simple rewards for a job done or service rendered. It is a
calling that, unlike mercantile pursuits which enjoy a greater deal of freedom
from government interference, is impressed with public interest, for which it
is subject to State regulation. 26
ACCORDINGLY, the instant petition for review is hereby GRANTED and the
decision of respondent Court of Appeals of February 11, 1988 affirming the
order of the trial court is hereby REVERSED and SET ASIDE, without
prejudice to such appropriate proceedings as may be brought by private
respondent to establish its right to attorney's fees and the amount thereof.
PINEDAPCGRNMAN
SO ORDERED.
[G.R. No. 124074. January 27, 1997]
RESEARCH and SERVICES REALTY, INC., petitioner, vs. COURT OF
APPEALS and MANUEL S. FONACIER, JR., respondents.
DECISION
DAVIDE, JR., J.:
This petition for review on certiorari under Rule 45 of the Rules of Court
questions the propriety of the award for, and the reasonableness of the
amount of, attorney's fees granted in favor of the private respondent by the
Regional Trial Court (RTC) of Makati City, Branch 64,[1] in Civil Case No.
612,[2] which the Court of Appeals affirmed in its decision[3] of 31 March 1995
in CA-G.R. CV No. 44839.
The undisputed facts are as follows:
On 3 November 1969, the petitioner entered into a Joint Venture Agreement
with Jose, Fidel, and Antonia Carreon. Under the said agreement, the
petitioner undertook to develop, subdivide, administer, and promote the sale
of the parcels of land owned by the Carreons. The proceeds of the sale of
the lots were to be paid to the Philippine National Bank (PNB) for the
landowner's mortgage obligation, and the net profits to be shared by the
contracting parties on a 50-50 basis.
On 4 April 1983, the Carreons and a certain Patricio C. Sarile instituted before
the RTC of Makati City an action against the petitioner for rescission of the
Joint Venture Agreement.They prayed therein that pending the hearing of the
case, a writ of preliminary injunction be issued to enjoin the petitioner from
selling the lots subject of the agreement and that after hearing, the writ be
made permanent; the agreement be rescinded; and the petitioner be ordered
to pay the PNB the stipulated 15% per annum of the outstanding obligation
and to pay the plaintiffs attorney's fees, exemplary damages, expenses of
litigation, and costs of suit. This case was docketed as Civil Case No. 612 at
Branch 64 of the said court.
In its answer, which was prepared and signed by Atty. Apolonio G. Reyes,
the petitioner sought the denial of the writ of preliminary injunction, the
dismissal of the complaint, and payment in its favor of (a) P10 million by way
of actual damages; (b) P5 million by way of return to the petitioner of the
amount advanced to the Carreons, payments to the PNB, and cost of the
work on the subdivision; (c) P100,000.00 by way of exemplary damages; (d)
any and all damages up to the amount of P4,638,420.00 which the petitioner
may suffer under the terms of its Performance Bond in favor of the National
Housing Authority; (e) P50,000.00 as attorney's fees; and (f) costs of suit.
On 9 April 1985, the petitioner engaged the services of private respondent
Atty. Manuel S. Fonacier, Jr., [4] who then entered his appearance in Civil
Case No. 612.
While the said case was pending, or on 24 July 1992, the petitioner, without
the knowledge of the private respondent, entered into a Memorandum of
Agreement (MOA)[5] with another land developer, Filstream International, Inc.
(hereinafter Filstream). Under this MOA, the former assigned its rights and
obligations under the Joint Venture Agreement in favor of the latter for a
consideration of P28 million, payable within twenty-four months.
On 31 March 1993, the petitioner terminated the legal services of the private
respondent. At the time the petitioner had already received P7 million from
Filstream.
Upon knowing the existence of the MOA, the private respondent filed in Civil
Case No. 612 an Urgent Motion to Direct Payment of Attorney's Fees and/or
Register Attorney's Charging Lien praying, among other things, that the
petitioner be ordered to pay him the sum of P700,000.00 as his contingent
fee in the case.[6]
After hearing the motion, the trial court issued an order dated 11 October
1993 directing the petitioner to pay the private respondent the sum of
P600,000.00 as attorney's fees on the basis of quantum meruit.
The trial court justified the award in this manner:
Insofar as material to the resolution of this Motion the records of this case
show that movant Atty. Fonacier became the counsel of defendant Research
in May 1985 while this case has been in progress. (Records, p.770). By this
Page 312
time also, the defendant Research has been enjoined by the Court from
executing Contracts To Sell involving Saranay Homes Subdivision . . . .
(Order dated December 3, 1984, Records pp. 625-626). However, the said
LEGAL ETHICS
counsel for defendant Research prepared for the latter various pleadings and
represented it in Court (See Records after May 1985). Until his services were
terminated the lawyer client relationship between Atty. Fonacier and
Research was governed by a "contract" embodied in a letter addressed to
Atty. Fonacier on April 19, 1985 [sic], the pertinent portion of which is
reproduced below, as follows . . .
xxx
Soon after said letter, cases were referred to him including this case. In
accordance with their agreement, there were instances that Research gave
Atty. Fonacier ten (10%) percent of the amount received as the latter's
attorney's fees pursuant to their agreement.
The instant case in which defendant is praying to be awarded attorney's fees,
is an action for rescission of the Joint Venture Agreement between plaintiffs,
Patricio Sarile, et al., as owners of a parcel of land and defendant Research
& Service Realty, Inc., as developer of the land. At the time Atty. Fonacier
entered his appearance as counsel for defendant Research, the Court has
issued a preliminary injunction against Research. Thus all developmental
and commercial activities of defendant had to stop. In this regard, Atty.
Fonacier did spade work towards persuading the plaintiffs to agree to the
relaxation of the effects of the injunction to pave the way to a negotiation with
a third-party, the Filstream. Atty. Fonancier's efforts were complemented by
the efforts of his counterpart in the plaintiff's side. The third-party Filstream
Inc., became the assignee of defendant Research. In this connection, a
memorandum of agreement was entered into between them. By the terms of
agreement, defendant Research will be receiving from the third party
Filstream International, Inc. (Filstream) the following amount. . . .
xxx
The termination of the legal services of Atty. Fonacier was made definite on
March 31, 1993 at which time the Memorandum of Agreement which
Research entered into with Filstream, Inc., has already been effective. By this
time also, defendant Research has already received the first two stipulated
consideration of the agreement in the total sum of Six Million
(P6,000,000.00). The necessary and legal consequence of said
"Memorandum of Agreement" is the termination of the case insofar as plaintiff
Patricio Sarile, et al. and defendant Research is concerned. The conclusion
of the Memorandum of Agreement insofar as the cause of Research is
concerned, is a legal victory for defendant Research. What could have been
a loss in investment has been turned to a legal victory. Atty. Fonancier's effort
contributed to defendant's victory, albeit outside the Court which would not
have been possible without the legal maneuvering of a lawyer.
The dismissal of the case before this Court will come in a matter of time
considering that plaintiffs, with the assumption by the third party, Filstream
Inc., of what were supposed to be the obligations to them of defendant
Research pursuant to their Joint Venture Agreement, is no longer interested
in pursuing the rescission.
It is a matter of record that Atty. Fonacier is the last of the three lawyers who
handled this case. Moreover it is Atty. Fonacier who contributed to the forging
of the memorandum of agreement as testified to by Atty. Rogel Atienza one
of the two retained counsels of plaintiffs.
Considering the importance which is attached to this case, certainly it would
not be fair for Atty. Fonacier if his attorney's fees in this case would be
equated only to the measly monthly allowance of (P800.00) Pesos and office
space and other office facilities provided by defendant Research. Ten (10%)
per cent of the amount which Research had received from Filstream at the
time of the termination of a lawyer-client relationship between Atty. Fonacier
and Research or P600,000.00 will be a just and equitable compensation for
Atty. Fonancier's legal services, by way of quantum meruit (See Cabildo v.
Provincial Treasurer, Ilocos Norte, et al., 54 SCRA 26).[7]
In its Order[8] of 12 January 1994, the trial court denied the petitioner's motion
for reconsideration of the above order.
The petitioner appealed to the Court of Appeals. In its Appellant's Brief,[9] the
petitioner alleged that the private respondent was not entitled to attorney's
fees under the retainer contract.Moreover, the private respondent did not
exert any effort to amicably settle the case, nor was he even present during
the negotiations for the settlement of the same. There was, therefore, no legal
and factual justification for the private respondent's "fantastic and
unreasonable claim for attorney's fees of P600,000.00."
On the other hand, the private respondent asserted that he was assured by
the petitioner that non-collection cases were included in the contingent fee
arrangement specified in the retainer contract wherein there was to be
PINEDAPCGRNMAN
contingent compensation for any award arising from any lawsuit handled by
him. According to him, Civil Case No. 612 was not the only "non-collection"
case he handled for the petitioner. There was a "right of way" dispute where
the petitioner was awarded P50,000.00, and the latter paid him P5,000.00,
or 10% of the award as attorney's fees. He thus stressed that since under the
memorandum of agreement the petitioner was to receive P28 million, he
should be entitled to 10% thereof or P2.8 million as attorney's fees.
In its decision [10] of 31 March 1995, the Court of Appeals affirmed the
challenged order of the trial court. It ratiocinated as follows:
Movant-appellee, on the other hand, correctly argues that it was the clear
intention of appellant and counsel to compensate the latter for any legal
services rendered by him to the former. Stated otherwise, it was never the
intention of the parties in the instant appeal that counsel's services shall be
free or to be rendered ex gratia.
xxx
It must in addition be underscored that the retainer contract of April 9, 1985
is the law that governs the relationship between appellant and appellee. In
fact, the following provisions squarely and categorically supports the award
of P600,000.00 to counsel, to wit:
Minimal allowance of P800 per month plus contingent fees and collection
cases (case to case basis) aside from the attorney's fee recovered from any
law suit.
(Paragraph 3, Retainer Contract)
In an American jurisprudence on this point cited in local annotation on the
Canon of Professional Ethics, it was held that "if a lawyer renders valuable
services to one who receives the benefits thereof, a promise to pay a
reasonable value is presumed, unless such services were intended to be
gratuitous" (Young vs. Buere, 78 Cal. Am. 127) In effect, to compensate a
lawyer, we are faced with the pivotal question: "was the legal services
intended to be free or not?" If it is not free, then, appellant must simply pay.
The 10% contingent fee of the amount collected and/or to be collected in
Civil Case No. 612 of the lower court, is, to Our mind fair
and reasonable. As ruled by the Supreme Court in the case of Cosmopolitan
Insurance Co. vs. Angel Reyes (G.R. L-20199, Nov. 23, 1965) 15% was even
deemed reasonable. [11]
The petitioner filed a motion for reconsideration [12] on the ground among
other things, that the decision is contrary to the evidence, as the trial court
granted the claim for attorney's fees based on quantum meruit, yet, the Court
of Appeals granted the same on a contingent basis which it based on an
erroneous quotation and comprehension of the following provision of the
retainer contract:
Minimal allowance of P800.00 per month plus contingent fees on collection
cases (case to case basis) aside from the attorney's fees recovered from any
law suit. (underscoring ours) [13]
In its decision, the Court of Appeals substituted the word "on" after
"contingent fees" with the word "and." Under the aforequoted paragraph, the
private respondent was entitled to attorney's fees on contingent basis in
collection cases only. In non collection cases, he was entitled only to the
attorney's fees that might be recovered in the lawsuit. [14] Since Civil Case
No. 612 is not a collection case but an action for rescission of a contract, then
the aforequoted paragraph is not applicable as a basis for awarding
attorney's fees to the private respondent. [15]
Finding nothing new in the motion for reconsideration, the Court of Appeals
denied it in the re-solution [16] of 15 February 1996.
The petitioner then came to us via this petition for review wherein it contends
that
I
RESPONDENT COURT OF APPEALS HAD DECIDED THE CASE NOT IN
ACCORD WITH LAW AND THE UNDISPUTED FACTS OF THE CASE.
II
RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION IN AWARDING ON CONTINGENT BASIS RESPONDENT-
APPELLEE'S ATTORNEY'S FEES ON THE BASIS OF A MEMORANDUM
OF AGREEMENT IN WHICH HE HAD NO PARTICIPATION IN THE
NEGOTIATION AND PREPARATION THEREOF.
III
RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS
Page 313
DISCRETION IN AWARDING EXCESSIVE AND UNREASONABLE
ATTORNEY'S FEES.
IV
LEGAL ETHICS
THE TRIAL COURT AND THE RESPONDENT COURT OF APPEALS HAVE
NO JURISDICTION TO SATISFY ATTORNEY'S CHARGING LIEN ON A
SUM OF MONEY THAT THE COURT HAD NO AUTHORITY TO DISPOSE
OF AND OVER WHICH THE TRIAL COURT HAD MADE NO FINAL
ADJUDICATION.
The petitioner's more important argument in support of the first error is the
Court of Appeals' misquotation of the provision in the retainer contract
regarding attorney's fees on contingent basis, which the petitioner had
stressed in its motion for reconsideration. The petitioner maintains that under
the contract, attorney's fees on contingent basis could only be awarded
incollection cases, and Civil Case No. 612 is not a collection case. Hence,
the Court of Appeals erred in affirming the award on that basis, while the trial
court was correct in applying the principle of quantum meruit.
In its second assigned error, the petitioner asserts that the private respondent
admitted in his Urgent Motion to Direct Payment of Attorney's Fees and/or
Register Attorney's Charging Lien that he had not participated in the
negotiations and preparation of the memorandum of agreement, thus:
Despite the dishonest concealment, by the light of Providence coupled with
a streak of good luck, counsel discovered in the first week of March 1993 that
the parties had respectively entered into a meaningful agreement with a third-
party as early as July 27, 1992, which in the case of client, case in the form
of a "Memorandum of Agreement" (MOA) . . . . [17]
The third assigned error is but a logical consequence of the second, and the
petitioner maintains that since the private respondent "did not do anything
spectacular or out of the ordinary" in Civil Case No. 612, "except to ask for
the suspension or postponement of the proceedings thereof from 1985 to
1993," the P600,000.00 attorney's fees, whether on contingent basis or
quantum meruit, is excessive and unreasonable.
In the fourth imputed error, the petitioner argues that the memorandum of
agreement was never submitted to the trial court, and the trial court never
made any disposition or adjudication over the proceeds of the said
agreement. What would eventually happen then is the dismissal of Civil Case
No. 612, as the trial court itself had intimated in its challenged order.
Necessarily then, there would be no money adjudication in favor of the
petitioner as the defendant therein. Since such lien is collectible only from an
award of money that a court would adjudicate in a judgment rendered in favor
of the attorney's client pursuant to Section 37, Rule 138 of the Rules of Court,
it would follow that no attorney's charging lien could be validly entered.
We uphold the petitioner, but not necessarily on the strength of it arguments.
The parties are in agreement that the lawyer-client relationship between the
petitioner and the private respondent, Atty. Manuel S. Fonacier, Jr., was
governed by a retainer contract dated 9 April 1985. The petitioner's
undertakings thereunder are outlined as follows:
I. CORPORAT[ION]:
1. Corporation will provide the following:
a. Office space airconditioned
b. Furnishings, tables, executive chairs, visitor's chair & steel filing cabinet
c. Telephone facilities and partial secretarial services.
2. Legal service referrals by the corporation to its clients for additional income
of the lawyer.
3. Minimal allowance of P800 per month plus contingent fees on contingent
fees on collection cases (case to case basis) aside from the attorney's fees
recovered from any lawsuit.
4. That in case of legal problems to be attended to outside Metro Manila and
Suburbs, the corporation shall defray expenses for transportation, lodging
and other legal expenses incidental in the case.[18]
An analysis of the contract clearly shows that it was a general retainer, since
its primary purpose was to secure beforehand the services of the private
respondent for any legal problem which might afterward arise. [19] The fixed
retaining fee was P800.00 a month. A retaining fee is a preliminary fee paid
to ensure and secure a lawyer's future services, to remunerate him for being
deprived, by being retained by one party, of the opportunity of rendering
services to the other party and of receiving pay from him. In the absence of
an agreement to the contrary, the retaining fee is neither made nor received
in consideration of the services contemplated; it is apart from what the client
has agreed to pay for the services which he has retained him to perform. [20]
In the retainer contract in question, there was no intention to make the
retaining fee as the attorney's fees for the services contemplated. This is
evident from the provision allowing additional attorney's fees
PINEDAPCGRNMAN
in collection cases consisting of (1) a "contingent fee" and (2) whatever the
petitioner might recover as attorney's fees in each case. The latter could only
refer to the attorney's fees which the court might award to the petitioner in
appropriate cases.
While the contract did not mention non-collection cases, it is, nevertheless,
clear therefrom that such cases were not excluded from the retainership, as
borne out by the provision requiring the private respondent to "make
appearances in Court for cases involving the corporation or any allied cases
pertaining to the latter." As to such cases, there was no specific stipulation of
additional attorney's fees. Nevertheless, nothing therein shows that the
private respondent agreed to render professional service in such cases
gratuitously. The absence then of the stipulation of additional attorney's fees
cannot be construed as a bar to the collection of additional attorney's fees in
non-collection cases.
Two basic principles come into play. The first is as stated earlier, viz., that
the retaining fee is neither made nor received in consideration of the services
contemplated unless the contract itself so provides. The second is that,
unless expressly stipulated, rendition of professional services by a lawyer is
for a fee or compensation and is not gratuitous. This is implicit from the
opening clause of Section 24, Rule 138 of the Rules of Court, which states
that "[a]n attorney shall be entitled to have and recover from his client no
more than a reasonable compensation for his services . . .," and by virtue of
the innominate contract of facio ut des (I do and you give), as enunciated by
this Court in Corpus v. Court of Appeals, [21] thus:
Moreover, the payment of attorney's fees . . . may also be justified by virtue
of the innominate contract of facio ut des (I do and you give) which is based
on the principle that "no one shall unjustly enrich himself at the expense of
another." Innominate contracts have been elevated to a codal provision in
the New Civil Code by providing under Article 1307 that such contracts shall
be regulated by the stipulations of the parties, by the general provisions or
principles of obligations and contracts, by the rules governing the most
analogous nominate contracts, and by the customs of the people. The
rationale of this article was stated in the 1903 case of Perez vs. Pomar (2
Phil. 682).
In Perez v. Pomar, [22] this Court stated:
[B]ut whether the plaintiff's services were solicited or whether they were
offered to the defendant for his assistance, inasmuch as these services were
accepted and made use of by the latter, we must consider that there was a
tacit and mutual consent as to the rendition of the services. This gives rise to
the obligation upon the person benefited by the services to make
compensation therefor, since the bilateral obligation to render service as
interpreter, on the one hand, and on the other to pay for the services
rendered, is thereby incurred. (Arts. 1088, 1089, and 1262 of the Civil Code).
Accordingly, as to non-collection cases where the petitioner was either a
plaintiff or a defendant, the private respondent could still collect attorney's
fees, apart from his regular retaining fee, on the basis of any-supplemental
agreement or, in its absence, under the principle of quantum meruit. There
was no such supplemental agreement in this case.
We cannot sustain the private respondent's theory that he could collect
attorney's fees on contingent basis because in the other "non-collection"
cases he handled for the petitioner' he was paid on contingent basis at the
rate of 10% of what was awarded to the petitioner. In the first place, Civil
Case No. 612 is still unresolved, and no judgment has yet been rendered in
favor of the petitioner. The amount in the memorandum of agreement could
not be made the basis of a "contingent fee" in the said case for at least three
reasons. First, in his own Urgent Motion to Direct Payment of Attorney's Fees
and/or Register Attorney's Charging Lien, the private respondent based the
contingent fee not only in Civil Case No. 612 but in a "multitude of peripheral
cases," and the contingent fee would become due and collectible only if and
when the petitioner obtains a judgment in his favor in Civil Case No. 612. The
second paragraph of page 3 of the said motion reads as follows:
Hence, from May 1985 and continuously thru the years without interruption
and surviving a series of no less than five (5) changes of Presiding Judges,
the undersigned counsel labored tirelessly in handling the defense of client.
In addition to the instant lawsuit, a multitude of peripheral cases, civil, criminal
and administrative, arising from the non-delivery of titles by client on fully paid
lots in the subdivision project were also filed as a consequence, not only
Page 314
against defendant but also against its President and Chief Executive Officer
(CEO). Needless to state, the undersigned was designated to handle majority
of these cases for both, where he appeared and conducted trial
LEGAL ETHICS
without any "appearance fees" for more than eight (8) long years solely
relying on the contingent fee in case of recovery in the instant main case.[23]
(underscoring supplied for emphasis)
Second, the amount of P28 million, which Filstream agreed to pay the
petitioner, was not a judgment or award in favor of the petitioner in Civil Case
No. 612. It was the consideration of the assignment, transfer, and
conveyance to Filstream of all the petitioner's "rights, interest and
participation embodied and specified in the Joint Venture Agreement (Annex
"A") and in all the eight hundred seventy-five (875) parcels of land comprising
the SARANAY HOMES subdivision. . . ." The plaintiffs in Civil Case No. 612
were not parties to the memorandum of agreement, and there is no showing
that they agreed to the assignment of the petitioner's rights, interest, and
participation in the Joint Venture Agreement. While paragraph 10 of the
memorandum of agreement provides that the petitioner
shall cause to sign a JOINT MOTION TO DISMISS, together with the
CARREONS regarding Civil Case No. 612 of the Regional Trial Court of
Makati and to further DISMISS, the case filed against PNB docketed as Civil
Case No. 6918 of the Regional Trial Court of Makati . . . [and] shall obtain the
dismissal of all cases filed by lot buyers against it now pending with the
HLURB
the fact remains that no such motion to dismiss has been filed yet in Civil
Case No. 612, and there is no assurance whatsoever that the plaintiffs
therein will sign a joint motion to dismiss. Third, as correctly posited by the
petitioner, the private respondent had no participation in the negotiations
leading to, and in the preparation of, the memorandum of agreement.
Indisputably then, the private respondent's attorney's fee on "contingent
basis" in Civil Case No. 612 is unwarranted. If at all, he could only be entitled
to attorney's fees on quantum meruit basis as of the expiration of his retainer
contract on 31 March 1993.
Quantum meruit simply means "as much as he deserves." [24] In no case,
however, must a lawyer be allowed to recover more than what is reasonable
pursuant to Section 24, Rule 138 of the Rules of Court, which provides:
SEC. 24. Compensation of attorneys, agreement as to fees. An attorney shall
be entitled to have and recover from his client no more than a reasonable
compensation for his services, with a view to the importance of the subject-
matter of the controversy, the extent of the services rendered, and the
professional standing of the attorney. No court shall be bound by the opinion
of attorneys as expert witnesses as to the proper compensation, but may
disregard such testimony and base its conclusion on its own professional
knowledge. A written contract for services shall control the amount to be paid
therefor unless found by the court to be unconscionable or unreasonable.
This Court had earlier declared the following as circumstances to be
considered in determining the reasonableness of a claim for attorney's
fees: (1) the amount and character of the service rendered; (2) labor, time,
and trouble involved; (3) the nature and importance of the litigation or
business in which the services were rendered; (4) the responsibility
imposed; (5) the amount of money or the value of the property affected by
the controversy or involved in the employment; (6) the skill and experience
called for in the performance of the services; (7) the professional character
and social standing of the attorney; (8) the results secured; and (9) whether
the fee is absolute or contingent, it being recognized that an attorney may
properly charge a much larger fee when it is contingent than when it is not. [25]
Rule 20.1, Canon 20 of the Code of Professional Responsibility enumerates
the following factors which should guide a lawyer in determining his fees:
(a) The time spent and the extent of the services rendered or required;
(b) The novelty and difficulty of the questions involved;
(c) The importance of the subject matter;
(d) The skill demanded;
(e) The probability of losing other employment as a result of acceptance of
the proffered case;
(f) The customary charges for similar services and the schedule of fees of
the IBP Chapter to which he belongs;
(g) The amount involved in the controversy and the benefits resulting to the
client from the service;
(h) The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or established; and
(j) The professional standing of the lawyer.
It was incumbent upon the private respondent to prove the reasonable
amount of attorney's fees, taking into account the foregoing factors or
circumstances. The records before us and the trial court's 11 October 1993
PINEDAPCGRNMAN
order do not confirm that the private respondent proved by either testimonial
or documentary evidence that the award of P600,000.00 was reasonable.
The private respondent's testimony thereon was crucial. Yet, it does not
appear from the 11 October 1993 order that he took the witness stand. From
the Minutes of the trial court attached to theRollo of CA-G.R. CV No. 44839,
[26] it appears that only Atty. Atienza and Mr. Suazo gave oral testimony on
the motion.
It necessarily follows then that the 11 October 1993 order has insufficient
factual basis, and the trial court committed grave abuse of discretion in
arbitrarily fixing the private respondent's attorney's fees at P600,000.00. The
affirmance of the said order by the Court of Appeals premised on the
provision in the retainer contract regarding contingent fee is thus fatally
flawed.
The interest for both the petitioner and the private respondent demands that
the trial court should conduct further proceedings in Civil Case No. 612
relative to the private respondent's motion for the payment of attorney's fees
and, thereafter, fix it in light of Section 24, Rule 138 of the Rules of Court;
Rule 20.1, Canon 20 of the Code of Professional Responsibility; and the
jurisprudentially established guiding principles in determining attorney's fees
on quantum meruit basis.
WHEREFORE, the instant petition is GRANTED. The challenged Decision of
31 March 1995 of the Court of Appeals in CA-G.R. CV No. 44839 and the
Order of 11 October 1993 of the Regional Trial Court of Makati, Branch 64,
in Civil Case No. 612 are hereby SET ASIDE. The trial court is further
DIRECTED to set for further hearing the private respondent's Urgent Motion
to Direct Payment of Attorney's Fees and/or Register Attorney's Charging
Lien and thereafter to fix the private respondent's attorney's fees in Civil Case
No. 612 as of 31 March 1993 when his contract with the petitioner was
effectively terminated, taking into account Section 24, Rule 138 of the Rules
of Court; Rule 20.1, Canon 20 of the Code of Professional Responsibility;
and the jurisprudentially established guiding principles in determining
attorney's fees on quantum meruit basis.
No pronouncement as to costs.
SO ORDERED.
Rule 20.01 – A lawyer shall be guided by the following factors in
determining his fees:
a. The time spent and the extent of the services rendered or
required.
b. The novelty and difficulty of the questions involved;
c. The importance of the subject matter;
d. The skill demanded;
e. The probability of losing other employment as a result of
acceptance of the proffered case;
f. The customary charges for similar services and the schedule of
fees of the IBP chapter to which he belongs;
g. The amount involved in the controversy and the benefits resulting
to the client from the services;
h. The contingency or certainty of compensation;
i. The character of the employment, whether occasional or
established; and
j. The professional standing of the lawyer.
 Kinds of Payment which may be stipulated upon:
1. a fixed or absolute fee which is payable regardless of the
result of the case
2. a contingent fee that is conditioned to the securing of a
favorable judgment and recovery of money or property and
the amount of which may be on a percentage basis
3. a fixed fee payable per appearance
4. a fixed fee computed by the number of hours spent
5. a fixed fee based on a piece of work
 Attorney’s Fees
1. Ordinary attorney’s fee -the reasonable compensation paid
to a lawyer by his client for the legal services he has
rendered to the latter. The basis for this compensation is
the fact of his employment by and his agreement with the
client.
Page 315
2. Extraordinary attorney’s fee – an indemnity for damages
ordered by the court to be paid by the losing party in
litigation. The basis for this is any of the cases provided for
LEGAL ETHICS
by law where such award can be made, such as those
authorized in Article 2208 of the Civil Code, and is payable
NOT to the lawyer but to the client, unless they have agreed
that the award shall pertain to the lawyer as additional
compensation or as part thereof.
 How attorney’s fees may be claimed by the lawyer:
1. It may be asserted either in the very action in which the
services of a lawyer had been rendered or in a separate
action.
2. A petition for attorney’s fees may be filed before the
judgment in favor of the client is satisfied or the proceeds
thereof delivered to the client.
3. The determination as to the propriety of the fees or as to
the amount thereof will have to be held in abeyance until
the main case from which the lawyer’s claim for attorney’s
fees may arise has become final. Otherwise, the
determination of the courts will be premature.
 Kinds of Retainer Agreements on Attorney’s fees:
1. General Retainer or Retaining Fee – it is the fee paid to a
lawyer to secure his future services as general counsel for
any ordinary legal problem that may arise in the ordinary
business of the client and referred to him for legal action;
2. Special Retainer – that is a fee for a specific case or service
rendered by the lawyer for a client
 Quantum Meruit –it means “as much as he deserves”, and is
used as the basis for determining the lawyer’s professional
fees in the absence of a contract, but recoverable by him
from his client.
 Quantum Meruit is resorted to where:
1. there is no express contract for payment of attorney’s fees
agreed upon between the lawyer and the client;
2. when although there is a formal contract for attorney’s fees,
the stipulated fees are found unconscionable or
unreasonable by the court.
3. When the contract for attorney’s fees is void due to purely
formal matters or defects of execution
4. When the counsel, for justifiable cause, was not able to
finish the case to its conclusion
5. When lawyer and client disregard the contract for attorney’s
fees.
 Skill: length of practice is not a safe criterion of professional
ability.
Rule 20.02 – A lawyer shall, in cases of referral, with the consent of the
client, be entitled to a division of fees in proportion to the work
performed and responsibility assumed.
[A.C. No. 4863. September 7, 2001]
URBAN BANK, INC., complainant, vs. ATTY. MAGDALENO M.
PEA, respondent.
RESOLUTION
PUNO, J.:
Before us is an administrative case for disbarment filed by complainant Urban
Bank, Inc., a commercial bank, against respondent Atty. Magdaleno M. Pea.
Complainant charges that respondent is guilty of deceit, malpractice and
gross misconduct in violation of Section 27, Rule 138, of the Revised Rules
of Court. The allegations of the Complaint in support of the accusation are as
follows:
3. Last 1 December 1994, Complainant bought a parcel of land located along
Roxas Boulevard from the Isabela Sugar Company (ISC for brevity). One of
the conditions of the sale was for ISC to cause the eviction of all the
occupants found in said property. This condition was incorporated in the
Contract to Sell and adopted in the subsequent Deed of Absolute Sale
executed by and between ISC and Complainant dated 15 November 1994
and 29 Novemebr 1994, respectively.
4. To fully implement the abovementioned condition, ISC engaged the
services of herein Respondent Atty. Magdaleno M. Pea. This was
communicated by ISC to Respondent in a Memorandum dated 20 November
1994 and relayed to Complainant in a Letter dated 19 December 1994.
PINEDAPCGRNMAN
5. Respondent accepted the engagement of his services by ISC and he
proceeded to take the necessary steps to evict the occupants of the property
subject of the sale.
6. During the eviction process, Complainant was informed by ISC and
Respondent about the necessity of a letter of authority in favor of the latter,
granting him the authority to represent Complainant in maintaining
possession of the aforesaid property and to represent Complainant in any
court action that may be instituted in connection with the exercise of said
duty.
7. Complainant acceded to the request and issued a letter-authority dated 15
December 1994, but only after making it very clear to the Respondent that it
was ISC which contracted his services and not Complainant. This clarification
was communicated to Respondent by Atty. Corazon M. Bejasa and Mr.
Arturo E. Manuel, Jr., Senior Vice-President and Vice-President, respectively
of Complainant bank in a letter addressed to respondent dated 15 December
1994. A copy of said letter is attached hereto and made an integral part of
this Complaint as Annex E.
8. Subsequently however, Respondent requested for a modification of said
letter of authority by furnishing Complainant with a draft containing the
desired wordings (including the date, i.e., 19 December 1994) and asking
Complainant to modify the previous letter by issuing a new one similarly
worded as his draft. A copy of said request is attached hereto and made an
integral part of this Complaint asAnnex F.
9. If only to expedite and facilitate matters, Complainant willingly obliged and
re-issued a new letter of authority to Respondent, this time incorporating
some of Respondents suggestions. Thus it came to pass that the actual letter
of authority was dated 19 December 1994, while Complainants clarificatory
letter was dated 15 December 1994.
10. Eventually, the eviction of the occupants of the property in question was
successfully carried out. After the lapse of more than thirteen (13) months,
Respondent filed a collection suit against herein Complainant and its senior
officers for recovery of agents compensation and expenses, damages and
attorneys fees, on the strength of the letter of authority issued by Atty. Bejasa
and Mr. Manuel, Jr. A copy of the complaint filed by herein Respondent with
the Bago City Regional Trial Court is attached hereto and made an integral
part hereof as Annex G.
11. The act of Respondent in securing the letter of authority from
Complainant, ostensibly for the purpose of convincing the occupants sought
to be evicted that he was duly authorized to take possession of the property
and then using the same letter as basis for claiming agents compensation,
expenses and attorneys fees from Complainant, knowing fully well the
circumstances surrounding the issuance of said letter of authority, constitutes
deceit, malpractice and gross misconduct under Section 27, Rule 138 of the
Revised Rules of Court. Said provision enumerates the grounds for the
suspension and disbarment of lawyers, namely:
Sec. 27. Attorneys removed 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 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 of which he is required to take before admission to practice, or
for willful 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 any authority
to do so.The practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes malpractice.
(Emphasis supplied)[1]
In answer to these allegations, respondent submitted with this Court his
Comment, wherein he refuted all the charges against him. Preliminarily, he
claimed that the present complaint should be dismissed outright since its
filing constitutes forum shopping and it involves a matter which is sub- judice,
in view of the pending civil action involving the same parties.
Respondent then disputed that he was guilty of deceit, malpractice or gross
misconduct. He declared that complainant, through its duly authorized
officers, engaged his services to rid the property of tenants and intruders in
the course of a telephone conversation. He added that there was no reason
for him to deceive complainant into writing a letter of authority because he
knew very well that the verbal agreement was sufficient to constitute an
Page 316
attorney-client relationship. The request for a letter of authority, according to
him, was merely to formalize the engagement.[2] Lastly, he argued that the
complainant accepted the benefits of his service, just as it
LEGAL ETHICS
never disclaimed that he was acting in its behalf during the period of
engagement.
We referred the matter to the Integrated Bar of the Philippines (IBP) for
investigation. Both parties presented their respective evidence before the
Commission on Bar Discipline of the IBP. After only one hearing, and upon
agreement of the parties, the case was submitted for resolution on the basis
of their respective pleadings and annexes thereto. The investigating officer,
Commissioner Navarro, required both parties to file their own memoranda.
The commissioner made the following findings:
After going over the evidence submitted by the parties, the Undersigned
noted that the complainant (plaintiff) in RTC Bago City Civil Case is the
respondent in the present case which only showed that to get even with the
respondent, complainant instituted the present case as leverage for
respondents complaint in the civil case. The complainant in the RTC Bago
City Civil case is the respondent in the present case and vice-versa; therefore
there was no institution by the same party for remedies in different fora which
negates forum shopping.
The fact remains however that complainant never contested the actuations
done by the respondent to rid its property from tenants and intruders; and
even executed a letter of authority in favor of respondent dated December
19, 1994; otherwise complainant should have engaged the services of other
lawyers.
Nevertheless, it is not for this Office to determine who should pay the
respondent for this is a matter not within its jurisdiction but for the proper
court to do so.
The only issue for resolution of this Office is whether or not respondent
committed malpractice, deceit and gross misconduct in the practice of his
profession as member of the bar.
The evidence on record showed that respondent successfully performed his
task of evicting the tenants and intruders in the property in question. More
so, no less than Senior Vice-President Corazon Bejasa was very thankful for
his job well done.
Complainant benefited from respondents task and for a period of fifty (50)
days no behest or complaint was received by the respondent from the
complainant. It was only when payment for his legal services was demanded
that complainant re-acted when it is incumbent upon the benefactor of
services that just compensation should be awarded.
It is but just and proper that if refusal to pay just compensation ensues in any
transaction, the proper remedy is to institute an action before the proper court
and such actuation of the respondent herein did not constitute deceit,
malpractice or gross misconduct.
In view of the foregoing, the Undersigned hereby recommends that the
complaint against Atty. Magdaleno Pea be dismissed for lack of merit.[3]
Thereafter, IBP Board of Governors passed a Resolution DISMISSING the
Complaint based on the Report and Recommendation of Commissioner
Navarro. It appears that on April 26, 2000, the complainant was closed by
the Monetary Board of the Bangko Sentral Ng Pilipinas and was placed under
receivership of the Philippine Deposit Insurance Corporation (PDIC). On May
8, 2000, it received a notice of the resolution. With the PDIC now acting as
its counsel, it sought reconsideration of the resolution with the IBP, which
was denied there being no substantive reason to reverse the findings therein
and because the pleading is improper as the remedy of the complainant is to
file the appropriate Motion with the Supreme Court within fifteen days from
receipt of notice of said Decision pursuant to Section 12 of Rule 139-B.[4]
On October 5, 2000, we received a Manifestation from the complainant,
represented this time by Corazon M. Bejasa, praying that the IBP
Commission on Bar Discipline and Board of Governors be ordered to make
a more thorough determination of whether or not respondent committed the
acts of deceit, malpractice and gross misconduct complained of as grounds
for the latters disbarment. We then resolved to treat this manifestation as an
appeal. Disbarment proceedings are matters of public interest,[5] undertaken
for public welfare and for the purpose of preserving courts of justice from the
official ministration of the persons unfit to practice them.[6]
The sole issue raised in this appeal is whether or not respondent should be
disbarred on the ground of deceit, malpractice and gross misconduct. We
rule in the negative.
From the record and evidence before us, we agree with the commissioners
conclusion that respondent cannot be found guilty of the charges against him.
Apart from the allegations it made in various pleadings, complainant has not
proferred any proof tending to show that respondent really induced it,
PINEDAPCGRNMAN
through machination or other deceitful means, to issue the December 19
letter of authority ostensibly for the purpose of evicting illegal occupants, then
using the very same letter for demanding agents compensation. During the
scheduled hearing, it did not introduce a single witness to testify apropos the
circumstance under which the letter was dispatched. Those who signed and
issued the letter, Corazon M. Bejasa and Arturo E. Manuel Jr., were never
presented before the investigating commissioner to substantiate its assertion
that the letter it gave to the respondent was only for show, and for a purpose
which is limited in scope. Similarly, not even the sworn statements from these
or other vital witnesses were attached to the memorandum or the other
pleadings it submitted. It is one thing to allege deceit, malpractice and gross
misconduct, and another to demonstrate by evidence the specific acts
constituting the same.
To be sure, no evidence in respect of the supposed deceit, malpractice or
gross misconduct was adduced by the complainant. It is axiomatic that he
who alleges the same has the onus of validating it. In disbarment
proceedings, the burden of proof is upon the complainant and this Court will
exercise its disciplinary power only if the former establishes its case by clear,
convincing, and satisfactory evidence.[7]In this regard, we find that
complainant failed to meet the required standard.
In an effort to lend credence to its claim that there was no contractual relation
between them, complainant attempted to establish that the legal services of
the respondent was engaged, not by it, but by the seller of the lot, Isabela
Sugar Company. This should presumably settle any doubt that the December
19 letter was only to be used by respondent for the purpose of supervising
the eviction of the occupants of the property and protecting it from intruders,
and nothing more. To support this, it submitted correspondence coming from
people who appear to be responsible officers of ISC (one from Enrique
Montilla III, and another from Julie Abad and Herman Ponce) informing
respondent of the engagement of his services by the ISC. These letters,
though, cannot by themselves be accorded strong probative weight in the
face of respondents emphatic assertion that he has never seen any of these
documents.[8] Likewise, they do not indicate that copies thereof were received
by him or by any authorized person in his behalf. It bears stressing that they
do not carry his signature, nor the time or date he took possession of them.
It follows that they cannot be used to bind and prejudice the respondent
absent any showing that he had actual and ample knowledge of their
contents.
Lastly, complainant seems to belabor under the mistaken assumption that
the basis of the respondent in instituting the civil case against it was the
December 19 letter of authority. Well to point out, the suit was grounded on
an oral contract of agency purportedly entered into between him and the
complainant, represented by its duly authorized officers. This is evident from
the averments embodied in the Complaint filed with the Bago City Trial Court,
the pertinent portions of which state:
7. The defendant URBAN BANK through its president, defendant TEODORO
BORLONGAN, and the defendants Board of Directors as well as its Senior
Vice President CORAZON BEJASA and Vice President, ANTONIO
MANUEL, JR., entered into an agency agreement with the plaintiff,
whereby the latter in behalf of the defendant URBAN BANK, shall hold and
maintain possession of the aforedescribed property, prevent entry of
intruders, interlopers and squatters therein and finally turn over peaceful
possession thereof to defendant URBAN BANK; it was further agreed that for
the services rendered as its agent, defendant URBAN BANK shall pay
plaintiff a fee in an amount equivalent to 10 % of the the market value of the
property prevailing at the time of payment;
8. The plaintiff accepted the engagement and in a letter dated December 19,
1994, defendant URBAN BANK through its authorized officials, namely,
defendant CORAZON BEJASA and ARTURO E. MANUEL, JR., Senior Vice
President and Vice President respectively, of defendant URBAN BANK,
officially confirmed the engagement of the services of the plaintiff as its
Agent-representative for the following specific purposes; x x x to hold and
maintain possession of our abovecaptioned property and to protect the same
from tenants, occupants or any other person who are threatening to return to
the said property and/or to interfere with your possession of the said property
for and in our behalf. You are likewise authorized to represent Urban Bank in
any court action that you may institute to carry out your aforementioned
Page 317
duties, and to prevent any intruder, squatter or any other person not
otherwise authorized in writing by Urban bank from entering or staying in the
premises.
LEGAL ETHICS
A photocopy of the letter dated December 19, 1994 is hereto attached as
Annex C and made integral part hereof.[9] (Emphasis supplied.)
It is clear from the above that what respondent was trying to enforce were
the terms and conditions of the contract. The letter, from the his own
admission, just served to officially confirm a done deal. It was, hence,
utilized solely as documentary evidence to buttress respondents assertion
regarding the existence of the agency agreement. In fact, the amount of
compensation (to the tune of 10% of the market value of the property) he was
recovering in the action was never mentioned in the letter, but apparently
settled in the course of an oral conversation. Indeed, respondent, with or
without the letter, could have instituted a suit against the complainant. There
is no gainsaying that a verbal engagement is sufficient to create an attorney-
client relationship.[10]
In sum, we find that, under the premises, respondent can hardly be faulted
and accused of deceit, malpractice and gross misconduct for invoking the aid
of the court in recovering recompense for legal services which he claims he
undertook for the complainant, and which the latter does not deny to have
benefited from. Indeed, what he did was a lawful exercise of a right.
IN VIEW WHEREOF, the disbarment complaint against respondent Atty.
Magdaleno M. Pea is hereby DISMISSED for lack of merit.
SO ORDERED.
Rule 20.03 – A lawyer shall not, without the full knowledge and consent
of the client, accept any fee, reward, costs, commission, interest, rebate
or forwarding allowance or other compensation whatsoever related to
his professional employment from anyone other than the client.
ROC RULE 138 Sec 20 (e) To maintain inviolate the confidence, and at
every peril to himself, to preserve the secrets of his client, and to accept
no compensation in connection with his client's business except from
him or with his knowledge and approval;
Rule 20.04 – A lawyer shall avoid controversies with clients concerning
his compensation and shall resort to judicial action only to prevent
imposition, injustice or fraud.
 Unauthorized counsel: Not entitled to attorney’s fees.
 Stipulation regarding payments of attorney’s fees is not
illegal/immoral and is enforceable as the law between the parties
provided such stipulation does not contravene law, good morals,
etc.
 When counsel cannot recover full amount despite written
contract for attorneys’ fees:
1. When he withdraws before the case is finished
2. justified dismissal of attorney (payment: in quantum
meruit only)
 The reason for the award of attorney’s fees must be stated in the
text of the decision; otherwise, if it is stated only in the dispositive
portion of the decision, the same must be disallowed on appeal.
 Even though the interest or property involved is of considerable
value, if the legal services rendered do not call for much efforts
there is no justification for the award of high fees.
 Champertous Contracts (void) – Lawyer stipulates with his client
that in the prosecution of the case, he will bear all the expenses
for the recovery of things or property being claimed by the client
and the latter agrees to pay the former a portion of the
thing/property recovered as compensation.
 Compensation to an attorney for merely recommending another
lawyer is improper (agents)
 Attorney’s fees for legal services shared or divided to non-lawyer
is prohibited. Division of fees is only for division of service or
responsibility.
 A lawyer should try to settle amicably any differences on the
subject. A lawyer has 2 options. Judicial action to recover
attorney’s fees:
1. In same case: Enforce attorney’s fees by filing an
appropriate motion or petition as an incident to the main
action where he rendered legal services.
2. In a separate civil action.
PINEDAPCGRNMAN
ROC RULE 138 Section 24. Compensation of attorneys; agreement as
to fees. — An attorney shall be entitled to have and recover from his
client no more than a reasonable compensation for his services, with a
view to the importance of the subject matter of the controversy, the
extent of the services rendered, and the professional standing of the
attorney. No court shall be bound by the opinion of attorneys as expert
witnesses as to the proper compensation, but may disregard such
testimony and base its conclusion on its own professional knowledge.
A written contract for services shall control the amount to be paid
therefor unless found by the court to be unconscionable or
unreasonable.
Section 32. Compensation for attorneys de oficio. — Subject to
availability of funds as may be provided by the law the court may, in its
discretion, order an attorney employed as counsel de oficio to be
compensates in such sum as the court may fix in accordance with
section 24 of this rule. Whenever such compensation is allowed, it shall
be not less than thirty pesos (P30) in any case, nor more than the
following amounts: (1) Fifty pesos (P50) in light felonies; (2) One
hundred pesos (P100) in less grave felonies; (3) Two hundred pesos
(P200) in grave felonies other than capital offenses; (4) Five Hundred
pesos (P500) in capital offenses.
[A.C. No. 6210. December 9, 2004]
FEDERICO N. RAMOS, complainant, vs. ATTY. PATRICIO A.
NGASEO, respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a complaint for suspension of respondent Atty. Patricio A. Ngaseo for
violation of the Code of Professional Responsibility and Article 1491 of the
Civil Code by demanding from his client, complainant Federico N. Ramos,
the delivery of 1,000 square meters of land, a litigated property, as payment
for his appearance fees.
The facts as narrated by the complainant are as follows:
Sometime in 1998, complainant Federico Ramos went to respondent Atty.
Patricio Ngaseos Makati office to engage his services as counsel in a case[1]
involving a piece of land in San Carlos, Pangasinan. Respondent agreed to
handle the case for an acceptance fee of P20,000.00, appearance fee of
P1,000.00 per hearing and the cost of meals, transportation and other
incidental expenses. Complainant alleges that he did not promise to pay the
respondent 1,000 sq. m. of land as appearance fees.[2]
On September 16, 1999, complainant went to the respondents office to
inquire about the status of the case. Respondent informed him that the
decision was adverse to them because a congressman exerted pressure
upon the trial judge. Respondent however assured him that they could still
appeal the adverse judgment and asked for the additional amount of
P3,850.00 and another P2,000.00 on September 26, 2000 as allowance for
research made.[3]
Although an appeal was filed, complainant however charges the respondent
of purposely failing to submit a copy of the summons and copy of the assailed
decision. Subsequently, complainant learned that the respondent filed the
notice of appeal 3 days after the lapse of the reglementary period.
On January 29, 2003, complainant received a demand-letter from the
respondent asking for the delivery of the 1,000 sq. m. piece of land which he
allegedly promised as payment for respondents appearance fee. In the same
letter, respondent also threatened to file a case in court if the complainant
would not confer with him and settle the matter within 30 days.
Respondent alleged that sometime in the late 1997, a former client, Federico
Ramos and his brother, Dionisio, went to his Makati office to engage his
professional services in connection with a 2-hectare parcel of land situated
in San Carlos, Pangasinan which the complainants family lost 7 years earlier
through an execution sale in favor of one Alfredo T. Castro. Complainant,
who was deaf and could only speak conversational Tagalog haltingly, was
assisted by his brother Dionisio. They came all the way from Pangasinan
because no lawyer in San Carlos City was willing to handle the case.
Complainant, through Dionisio, avers that he has consulted 2 local lawyers
Page 318
but did not engage their services because they were demanding exorbitant
fees. One local lawyer was willing to handle the case for at least one-half of
the land involved as his attorneys fee, plus cash expenses, while the other
LEGAL ETHICS
asked for of the land in addition to a large sum of money. Respondent agreed
to handle the case for an acceptance fee of P60,000.00 plus an appearance
fee of P3,000.00 per hearing. Complainant told him that he would consult his
siblings on the matter.
Six months later, i.e., in April 1998, complainant, assisted by one Jose
Castillo, went to respondents office to discuss the legal fees. Complainant,
through Castillo, told respondent that he was willing to pay an acceptance
fee of P40,000.00, P20,000.00 of which shall be paid upon engagement and
the remaining P20,000.00 to be paid after their treasure hunt operations in
Nueva Viscaya were terminated. Further, complainant offered, in lieu of
P3,000.00 per appearance, 1,000 sq. m. of land from the land subject matter
of the case, if they win, or from another piece of property, if they lose. In
addition, complainant also offered to defray the expenses for transportation,
meals and other incidental expenses. Respondent accepted the
complainants offer.
Respondent claims that after the trial court dismissed Civil Case No. SCC
2128, he filed a timely notice of appeal and thereafter moved to be
discharged as counsel because he had colon cancer. Complainant, now
assisted by one Johnny Ramos, implored respondent to continue handling
the case, with an offer to double the 1,000 sq. m. piece of land earlier
promised and the remaining balance of P20,000.00 acceptance fee. Johnny
Ramos made a written commitment and gave respondents secretary
P2,000.00 of the P3,850.00 expenses for the preparation of the appellants
brief.
On July 18, 2001, the Court of Appeals rendered a favorable decision
ordering the return of the disputed 2-hectare land to the complainant and his
siblings. The said decision became final and executory on January 18, 2002.
Since then complainant allegedly failed to contact respondent, which
compelled him to send a demand letter on January 29, 2003.
On February 14, 2003, complainant filed a complaint before the IBP charging
his former counsel, respondent Atty. Ngaseo, of violation of the Code of
Professional Responsibility for demanding the delivery of 1,000 sq. m. parcel
of land which was the subject of litigation.
In a report dated July 18, 2003, IBP Commissioner Rebecca Villanueva-
Maala found the respondent guilty of grave misconduct and conduct
unbecoming of a lawyer in violation of the Code of Professional
Responsibility and recommended that he be suspended from the practice of
law for 1 year.[4]
On August 30, 2003, the IBP Board of Governors passed Resolution No. XVI-
2003-47 the full text of which reads:[5]
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, with
modification, and considering that respondent have violated the Code of
Professional Responsibility for grave misconduct and conduct unbecoming
of a lawyer Atty. Patricio A. Ngaseo is hereby SUSPENDED from the practice
of law for six (6) months.
On December 11, 2003, respondent filed a petition for review assailing IBP
Resolution No. XVI-2003-47 for having been issued without or in excess of
jurisdiction.[6]
Respondent argues that he did not violate Article 1491 of the Civil Code
because when he demanded the delivery of the 1,000 sq. m. of land which
was offered and promised to him in lieu of the appearance fees, the case has
been terminated, when the appellate court ordered the return of the 2-hectare
parcel of land to the family of the complainant.
Respondent further contends that he can collect the unpaid appearance fee
even without a written contract on the basis of the principle of quantum
meruit. He claims that his acceptance and appearance fees are reasonable
because a Makati based legal practitioner, would not handle a case for an
acceptance fee of only P20,000.00 and P1,000.00 per court appearance.
Under Article 1491(5) of the Civil Code, lawyers are prohibited from acquiring
either by purchase or assignment the property or rights involved which are
the object of the litigation in which they intervene by virtue of their
profession.[7] The prohibition on purchase is all embracing to include not only
sales to private individuals but also public or judicial sales. The rationale
advanced for the prohibition is that public policy disallows the transactions in
view of the fiduciary relationship involved, i.e., the relation of trust and
confidence and the peculiar control exercised by these persons.[8] It is
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founded on public policy because, by virtue of his office, an attorney may
easily take advantage of the credulity and ignorance of his client and unduly
enrich himself at the expense of his client.[9] However, the said prohibition
applies only if the sale or assignment of the property takes place during the
pendency of the litigation involving the clients property. Consequently, where
the property is acquired after the termination of the case, no violation of
paragraph 5, Article 1491 of the Civil Code attaches.
Invariably, in all cases where Article 1491 was violated, the illegal transaction
was consummated with the actual transfer of the litigated property either by
purchase or assignment in favor of the prohibited individual. In Biascan v.
Lopez, respondent was found guilty of serious misconduct and suspended
for 6 months from the practice of law when he registered a deed of
assignment in his favor and caused the transfer of title over the part of the
estate despite pendency of Special Proceedings No. 98037 involving the
subject property.[10] In the consolidated administrative cases of Valencia v.
Cabanting,[11] the Court suspended respondent Atty. Arsenio Fer Cabanting
for six (6) months from the practice of law when he purchased his client's
property which was still the subject of a pending certiorari proceeding.
In the instant case, there was no actual acquisition of the property in litigation
since the respondent only made a written demand for its delivery which the
complainant refused to comply. Mere demand for delivery of the litigated
property does not cause the transfer of ownership, hence, not a prohibited
transaction within the contemplation of Article 1491. Even assuming
arguendo that such demand for delivery is unethical, respondents act does
not fall within the purview of Article 1491. The letter of demand dated January
29, 2003 was made long after the judgment in Civil Case No. SCC-2128
became final and executory on January 18, 2002.
We note that the report of the IBP Commissioner, as adopted by the IBP
Board of Governors in its Resolution No. XVI-2003-47, does not clearly
specify which acts of the respondent constitute gross misconduct or what
provisions of the Code of Professional Responsibility have been violated. We
find the recommended penalty of suspension for 6 months too harsh and not
proportionate to the offense committed by the respondent. The power to
disbar or suspend must be exercised with great caution. Only in a clear case
of misconduct that seriously affects the standing and character of the lawyer
as an officer of the Court and member of the bar will disbarment or
suspension be imposed as a penalty.[12] All considered, a reprimand is
deemed sufficient and reasonable.
WHEREFORE, in view of the foregoing, respondent Atty. Patricio A. Ngaseo
is found guilty of conduct unbecoming a member of the legal profession in
violation of Rule 20.04 of Canon 20 of the Code of Professional
Responsibility. He is REPRIMANDED with a warning that repetition of the
same act will be dealt with more severely.
SO ORDERED.
CANON 21 – A lawyer shall preserve the confidences and secrets of his
client even after the attorney-client relation is terminated.
 Confidence – refers to information protected by the attorney-
client privilege (RRC)
 Secret – refers to other information gained in the professional
relationship that the client has regulated to be held inviolate or
the disclosure of which would be embarrassing or would likely be
detrimental to the client.
 An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him, or
his advice given thereon in the course of professional
employment; nor can an attorney’s secretary, stenographer, or
clerk be examined, without the consent of the client and his
employees, concerning any fact the knowledge of which has
been acquired in such capacity (Rule 130, Sec. 21 (b), RRC)
 The mere establishment of a client-lawyer relationship does not
raise a presumption of confidentiality. There must be an intent or
that the communication relayed by the client to the lawyer be
treated as confidential.
ROC RULE 138 SEC 20 (e) To maintain inviolate the confidence, and at
Page 319
every peril to himself, to preserve the secrets of his client, and to accept
no compensation in connection with his client's business except from
him or with his knowledge and approval;
LEGAL ETHICS
ROC RULE 130 Section 21. Disqualification by reason of mental
incapacity or immaturity. — The following persons cannot be
witnesses:
(b) Children whose mental maturity is such as to render them incapable
of perceiving the facts respecting which they are examined and of
relating them truthfully.
RPC Art. 208. Prosecution of offenses; negligence and tolerance. — The
penalty of prision correccional in its minimum period and suspension
shall be imposed upon any public officer, or officer of the law, who, in
dereliction of the duties of his office, shall maliciously refrain from
instituting prosecution for the punishment of violators of the law, or
shall tolerate the commission of offenses.
G.R. No. L-961 September 21, 1949
BLANDINA GAMBOA HILADO, petitioner,
vs.
JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD
and SELIM JACOB ASSAD,respondents.
Delgado, Dizon and Flores for petitioner.
Vicente J. Francisco for respondents.
TUASON, J.:
It appears that on April 23, 1945, Blandina Gamboa Hilado brought an action
against Selim Jacob Assad to annul the sale of several houses and lot
executed during the Japanese occupation by Mrs. Hilado's now deceased
husband.
On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on behalf
of the defendant; and on June 15, Attorneys Delgado, Dizon, Flores and
Rodrigo registered their appearance as counsel for the plaintiff. On October
5, these attorneys filed an amended complaint by including Jacob Assad as
party defendant.
On January 28, 1946, Attorney Francisco entered his appearance as attorney
of record for the defendant in substitution for Attorney Ohnick, Velilla and
Balonkita who had withdrawn from the case.
On May 29, Attorney Dizon, in the name of his firm, wrote Attorney Francisco
urging him to discontinue representing the defendants on the ground that
their client had consulted with him about her case, on which occasion, it was
alleged, "she turned over the papers" to Attorney Francisco, and the latter
sent her a written opinion. Not receiving any answer to this suggestion,
Attorney Delgado, Dizon, Flores and Rodrigo on June 3, 1946, filed a formal
motion with the court, wherein the case was and is pending, to disqualify
Attorney Francisco.
Attorney Francisco's letter to plaintiff, mentioned above and identified as
Exhibit A, is in full as follows:
VICENTE J. FRANCISCO
Attorney-at-Law
1462 Estrada, Manila
July 13, 1945.
Mrs. Blandina Gamboa Hilado
Manila, Philippines
My dear Mrs. Hilado:
From the papers you submitted to me in connection with civil case No. 70075
of the Court of First Instance of Manila, entitled "Blandina Gamboa Hilado vs.
S. J. Assad," I find that the basic facts which brought about the controversy
between you and the defendant therein are as follows:
(a) That you were the equitable owner of the property described in the
complaint, as the same was purchased and/or built with funds exclusively
belonging to you, that is to say, the houses and lot pertained to your
paraphernal estate;
(b) That on May 3, 1943, the legal title to the property was with your husband,
Mr. Serafin P. Hilado; and
(c) That the property was sold by Mr. Hilado without your knowledge on the
aforesaid date of May 3, 1943.
Upon the foregoing facts, I am of the opinion that your action against Mr.
Assad will not ordinarily prosper. Mr. Assad had the right to presume that
your husband had the legal right to dispose of the property as the transfer
certificate of title was in his name. Moreover, the price of P110,000 in
PINEDAPCGRNMAN
Japanese military notes, as of May 3, 1943, does not quite strike me as so
grossly inadequate as to warrant the annulment of the sale. I believe, lastly,
that the transaction cannot be avoided merely because it was made during
the Japanese occupation, nor on the simple allegation that the real purchaser
was not a citizen of the Philippines. On his last point, furthermore, I expect
that you will have great difficulty in proving that the real purchaser was other
than Mr. Assad, considering that death has already sealed your husband's
lips and he cannot now testify as to the circumstances of the sale.
For the foregoing reasons, I regret to advise you that I cannot appear in the
proceedings in your behalf. The records of the case you loaned to me are
herewith returned.
Yours very truly,
(Sgd.) VICENTE J. FRANCISCO
VJF/Rag.
In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged
that about May, 1945, a real estate broker came to his office in connection
with the legal separation of a woman who had been deserted by her husband,
and also told him (Francisco) that there was a pending suit brought by Mrs.
Hilado against a certain Syrian to annul the sale of a real estate which the
deceased Serafin Hilado had made to the Syrian during the Japanese
occupation; that this woman asked him if he was willing to accept the case if
the Syrian should give it to him; that he told the woman that the sales of real
property during the Japanese regime were valid even though it was paid for
in Japanese military notes; that this being his opinion, he told his visitor he
would have no objection to defending the Syrian;
That one month afterwards, Mrs. Hilado came to see him about a suit she
had instituted against a certain Syrian to annul the conveyance of a real
estate which her husband had made; that according to her the case was in
the hands of Attorneys Delgado and Dizon, but she wanted to take it away
from them; that as he had known the plaintiff's deceased husband he did not
hesitate to tell her frankly that hers was a lost case for the same reason he
had told the broker; that Mrs. Hilado retorted that the basis of her action was
not that the money paid her husband was Japanese military notes, but that
the premises were her private and exclusive property; that she requested him
to read the complaint to be convinced that this was the theory of her suit; that
he then asked Mrs. Hilado if there was a Torrens title to the property and she
answered yes, in the name of her husband; that he told Mrs. Hilado that if the
property was registered in her husband's favor, her case would not prosper
either;
That some days afterward, upon arrival at his law office on Estrada street, he
was informed by Attorney Federico Agrava, his assistant, that Mrs. Hilado
had dropped in looking for him and that when he, Agrava, learned that Mrs.
Hilado's visit concerned legal matters he attended to her and requested her
to leave the "expediente" which she was carrying, and she did; that he told
Attorney Agrava that the firm should not handle Mrs. Hilado's case and he
should return the papers, calling Agrava's attention to what he (Francisco)
already had said to Mrs. Hilado;
That several days later, the stenographer in his law office, Teofilo Ragodon,
showed him a letter which had been dictated in English by Mr. Agrava,
returning the "expedients" to Mrs. Hilado; that Ragodon told him (Attorney
Francisco) upon Attorney Agrava's request that Agrava thought it more
proper to explain to Mrs. Hilado the reasons why her case was rejected; that
he forthwith signed the letter without reading it and without keeping it for a
minute in his possession; that he never saw Mrs. Hilado since their last
meeting until she talked to him at the Manila Hotel about a proposed
extrajudicial settlement of the case;
That in January, 1946, Assad was in his office to request him to handle his
case stating that his American lawyer had gone to the States and left the
case in the hands of other attorneys; that he accepted the retainer and on
January 28, 1946, entered his appearance.
Attorney Francisco filed an affidavit of stenographer Ragodon in
corroboration of his answer.
The judge trying the case, Honorable Jose Gutierrez David, later promoted
to the Court of Appeals, dismissed the complaint. His Honor believed that no
information other than that already alleged in plaintiff's complaint in the main
cause was conveyed to Attorney Francisco, and concluded that the
Page 320
intercourse between the plaintiff and the respondent did not attain the point
of creating the relation of attorney and client.
LEGAL ETHICS
Stripped of disputed details and collateral matters, this much is undoubted:
That Attorney Francisco's law firm mailed to the plaintiff a written opinion over
his signature on the merits of her case; that this opinion was reached on the
basis of papers she had submitted at his office; that Mrs. Hilado's purpose in
submitting those papers was to secure Attorney Francisco's professional
services. Granting the facts to be no more than these, we agree with
petitioner's counsel that the relation of attorney and client between Attorney
Francisco and Mrs. Hilado ensued. The following rules accord with the ethics
of the legal profession and meet with our approval:
In order to constitute the relation (of attorney and client) a professional one
and not merely one of principal and agent, the attorneys must be employed
either to give advice upon a legal point, to prosecute or defend an action in
court of justice, or to prepare and draft, in legal form such papers as deeds,
bills, contracts and the like. (Atkinson vs. Howlett, 11 Ky. Law Rep. (abstract),
364; cited in Vol. 88, A. L. R., p. 6.)
To constitute professional employment it is not essential that the client should
have employed the attorney professionally on any previous occasion. . . . It
is not necessary that any retainer should have been paid, promised, or
charged for; neither is it material that the attorney consulted did not afterward
undertake the case about which the consultation was had. If a person, in
respect to his business affairs or troubles of any kind, consults with his
attorney in his professional capacity with the view to obtaining professional
advice or assistance, and the attorney voluntarily permits or acquiesces in
such consultation, then the professional employment must be regarded as
established. . . . (5 Jones Commentaries on Evidence, pp. 4118-4119.)
An attorney is employed-that is, he is engaged in his professional capacity
as a lawyer or counselor-when he is listening to his client's preliminary
statement of his case, or when he is giving advice thereon, just as truly as
when he is drawing his client's pleadings, or advocating his client's cause in
open court. (Denver Tramway Co. vs. Owens, 20 Colo., 107; 36 P., 848.)
Formality is not an essential element of the employment of an attorney. The
contract may be express or implied and it is sufficient that the advice and
assistance of the attorney is sought and received, in matters pertinent to his
profession. An acceptance of the relation is implied on the part of the attorney
from his acting in behalf of his client in pursuance of a request by the latter.
(7 C. J. S., 848-849; see Hirach Bros. and Co. vs. R. E. Kennington Co., 88
A. L. R., 1.)
Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney
cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in the
course of professional employment;" and section 19 (e) of Rule 127 imposes
upon an attorney the duty "to maintain inviolate the confidence, and at every
peril to himself, to preserve the secrets of his client." There is no law or
provision in the Rules of Court prohibiting attorneys in express terms from
acting on behalf of both parties to a controversy whose interests are opposed
to each other, but such prohibition is necessarily implied in the injunctions
above quoted. (In re De la Rosa, 27 Phil., 258.) In fact the prohibition derives
validity from sources higher than written laws and rules. As has been aptly
said in In re Merron, 22 N. M., 252, L.R.A., 1917B, 378, "information so
received is sacred to the employment to which it pertains," and "to permit it
to be used in the interest of another, or, worse still, in the interest of the
adverse party, is to strike at the element of confidence which lies at the basis
of, and affords the essential security in, the relation of attorney and client."
That only copies of pleadings already filed in court were furnished to Attorney
Agrava and that, this being so, no secret communication was transmitted to
him by the plaintiff, would not vary the situation even if we should discard
Mrs. Hilado's statement that other papers, personal and private in character,
were turned in by her. Precedents are at hand to support the doctrine that
the mere relation of attorney and client ought to preclude the attorney from
accepting the opposite party's retainer in the same litigation regardless of
what information was received by him from his first client.
The principle which forbids an attorney who has been engaged to represent
a client from thereafter appearing on behalf of the client's opponent applies
equally even though during the continuance of the employment nothing of a
confidential nature was revealed to the attorney by the client. (Christian vs.
Waialua Agricultural Co., 30 Hawaii, 553, Footnote 7, C. J. S., 828.)
Where it appeared that an attorney, representing one party in litigation, had
formerly represented the adverse party with respect to the same matter
involved in the litigation, the court need not inquire as to how much
knowledge the attorney acquired from his former during that relationship,
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before refusing to permit the attorney to represent the adverse party. (Brown
vs. Miller, 52 App. D. C. 330; 286, F. 994.)
In order that a court may prevent an attorney from appearing against a former
client, it is unnecessary that the ascertain in detail the extent to which the
former client's affairs might have a bearing on the matters involved in the
subsequent litigation on the attorney's knowledge thereof. (Boyd vs. Second
Judicial Dist. Court, 274 P., 7; 51 Nev., 264.)
This rule has been so strictly that it has been held an attorney, on terminating
his employment, cannot thereafter act as counsel against his client in the
same general matter, even though, while acting for his former client, he
acquired no knowledge which could operate to his client's disadvantage in
the subsequent adverse employment. (Pierce vs. Palmer [1910], 31 R. I.,
432; 77 Atl., 201, Ann. Cas., 1912S, 181.)
Communications between attorney and client are, in a great number of
litigations, a complicated affair, consisting of entangled relevant and
irrelevant, secret and well known facts. In the complexity of what is said in
the course of the dealings between an attorney and a client, inquiry of the
nature suggested would lead to the revelation, in advance of the trial, of other
matters that might only further prejudice the complainant's cause. And the
theory would be productive of other un salutary results. To make the passing
of confidential communication a condition precedent; i.e., to make the
employment conditioned on the scope and character of the knowledge
acquired by an attorney in determining his right to change sides, would not
enhance the freedom of litigants, which is to be sedulously fostered, to
consult with lawyers upon what they believe are their rights in litigation. The
condition would of necessity call for an investigation of what information the
attorney has received and in what way it is or it is not in conflict with his new
position. Litigants would in consequence be wary in going to an attorney, lest
by an unfortunate turn of the proceedings, if an investigation be held, the
court should accept the attorney's inaccurate version of the facts that came
to him. "Now the abstinence from seeking legal advice in a good cause is by
hypothesis an evil which is fatal to the administration of justice." (John H.
Wigmore's Evidence, 1923, Section 2285, 2290, 2291.)
Hence the necessity of setting down the existence of the bare relationship of
attorney and client as the yardstick for testing incompatibility of interests. This
stern rule is designed not alone to prevent the dishonest practitioner from
fraudulent conduct, but as well to protect the honest lawyer from unfounded
suspicion of unprofessional practice. (Strong vs. Int. Bldg., etc.; Ass'n, 183
Ill., 97; 47 L.R.A., 792.) It is founded on principles of public policy, on good
taste. As has been said in another case, the question is not necessarily one
of the rights of the parties, but as to whether the attorney has adhered to
proper professional standard. With these thoughts in mind, it behooves
attorneys, like Caesar's wife, not only to keep inviolate the client's
confidence, but also to avoid the appearance of treachery and double-
dealing. Only thus can litigants be encouraged to entrust their secrets to their
attorneys which is of paramount importance in the administration of justice.
So without impugning respondent's good faith, we nevertheless can not
sanction his taking up the cause of the adversary of the party who had sought
and obtained legal advice from his firm; this, not necessarily to prevent any
injustice to the plaintiff but to keep above reproach the honor and integrity of
the courts and of the bar. Without condemning the respondents conduct as
dishonest, corrupt, or fraudulent, we do believe that upon the admitted facts
it is highly in expedient. It had the tendency to bring the profession, of which
he is a distinguished member, "into public disrepute and suspicion and
undermine the integrity of justice."
There is in legal practice what called "retaining fee," the purpose of which
stems from the realization that the attorney is disabled from acting as counsel
for the other side after he has given professional advice to the opposite party,
even if he should decline to perform the contemplated services on behalf of
the latter. It is to prevent undue hardship on the attorney resulting from the
rigid observance of the rule that a separate and independent fee for
consultation and advice was conceived and authorized. "A retaining fee is a
preliminary fee given to an attorney or counsel to insure and secure his future
services, and induce him to act for the client. It is intended to remunerate
counsel for being deprived, by being retained by one party, of the opportunity
of rendering services to the other and of receiving pay from him, and the
payment of such fee, in the absence of an express understanding to the
Page 321
contrary, is neither made nor received in payment of the services
contemplated; its payment has no relation to the obligation of the client to
LEGAL ETHICS
pay his attorney for the services which he has retained him to perform." (7
C.J.S., 1019.)
The defense that Attorney Agrava wrote the letter Exhibit A and that Attorney
Francisco did not take the trouble of reading it, would not take the case out
of the interdiction. If this letter was written under the circumstances explained
by Attorney Francisco and he was unaware of its contents, the fact remains
that his firm did give Mrs. Hilado a formal professional advice from which, as
heretofore demonstrated, emerged the relation of attorney and client. This
letter binds and estop him in the same manner and to the same degree as if
he personally had written it. An information obtained from a client by a
member or assistant of a law firm is information imparted to the firm. (6 C. J.,
628; 7 C. J. S., 986.) This is not a mere fiction or an arbitrary rule; for such
member or assistant, as in our case, not only acts in the name and interest
of the firm, but his information, by the nature of his connection with the firm
is available to his associates or employers. The rule is all the more to be
adhered to where, as in the present instance, the opinion was actually signed
by the head of the firm and carries his initials intended to convey the
impression that it was dictated by him personally. No progress could be
hoped for in "the public policy that the client in consulting his legal adviser
ought to be free from apprehension of disclosure of his confidence," if the
prohibition were not extended to the attorney's partners, employers or
assistants.
The fact that petitioner did not object until after four months had passed from
the date Attorney Francisco first appeared for the defendants does not
operate as a waiver of her right to ask for his disqualification. In one case,
objection to the appearance of an attorney was allowed even on appeal as a
ground for reversal of the judgment. In that case, in which throughout the
conduct of the cause in the court below the attorney had been suffered so to
act without objection, the court said: "We are all of the one mind, that the right
of the appellee to make his objection has not lapsed by reason of failure to
make it sooner; that professional confidence once reposed can never be
divested by expiration of professional employment." (Nickels vs. Griffin, 1
Wash. Terr., 374, 321 A. L. R. 1316.)
The complaint that petitioner's remedy is by appeal and not by certiorari
deserves scant attention. The courts have summary jurisdiction to protect the
rights of the parties and the public from any conduct of attorneys prejudicial
to the administration of the justice. The summary jurisdiction of the courts
over attorneys is not confined to requiring them to pay over money collected
by them but embraces authority to compel them to do whatever specific acts
may be incumbent upon them in their capacity of attorneys to perform. The
courts from the general principles of equity and policy, will always look into
the dealings between attorneys and clients and guard the latter from any
undue consequences resulting from a situation in which they may stand
unequal. The courts acts on the same principles whether the undertaking is
to appear, or, for that matter, not to appear, to answer declaration, etc. (6
C.J., 718 C.J.S., 1005.) This summary remedy against attorneys flows from
the facts that they are officers of the court where they practice, forming a part
of the machinery of the law for the administration of justice and as such
subject to the disciplinary authority of the courts and to its orders and
directions with respect to their relations to the court as well as to their clients.
(Charest vs. Bishop, 137 Minn., 102; 162, N.W., 1062, Note 26, 7 C. J. S.,
1007.) Attorney stand on the same footing as sheriffs and other court officers
in respect of matters just mentioned.
We conclude therefore that the motion for disqualification should be allowed.
It is so ordered, without costs.
BUN SIONG YAO, A.C. No. 7023
Complainant,
Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
ATTY. LEONARDO A. AURELIO,
Respondent. Promulgated:
March 30, 2006
x ------------------------------------------------------------------------------------------ x
PINEDAPCGRNMAN
DECISION
YNARES-SANTIAGO, J.:
On November 11, 2004, a complaint-affidavit[1] was filed against Atty.
Leonardo A. Aurelio by Bun Siong Yao before the Integrated Bar of the
Philippines (IBP) seeking for his disbarment for alleged violations of the Code
of Professional Responsibility.
The complainant alleged that since 1987 he retained the services of
respondent as his personal lawyer; that respondent is a stockholder and the
retained counsel of Solar Farms & Livelihood Corporation and Solar Textile
Finishing Corporation of which complainant is a majority stockholder; that
complainant purchased several parcels of land using his personal funds but
were registered in the name of the corporations upon the advice of
respondent; that respondent, who was also the brother in-law of
complainants wife, had in 1999 a disagreement with the latter and thereafter
respondent demanded the return of his investment in the corporations but
when complainant refused to pay, he filed eight charges for estafa and
falsification of commercial documents against the complainant and his wife
and the other officers of the corporation; that respondent also filed a
complaint against complainant for alleged non-compliance with the
reportorial requirements of the Securities and Exchange Commission (SEC)
with the Office of the City Prosecutor of Mandaluyong City and another
complaint with the Office of the City Prosecutor of Malabon City for alleged
violation of Section 75 of the Corporation Code; that respondent also filed a
similar complaint before the Office of the City Prosecutor of San Jose Del
Monte, Bulacan.
Complainant alleged that the series of suits filed against him and his wife is
a form of harassment and constitutes an abuse of the confidential information
which respondent obtained by virtue of his employment as counsel.
Complainant argued that respondent is guilty of representing conflicting
interests when he filed several suits not only against the complainant and the
other officers of the corporation, but also against the two corporations of which
he is both a stockholder and retained counsel.
Respondent claimed that he handled several labor cases in behalf of Solar
Textile Finishing Corporation; that the funds used to purchase several
parcels of land were not the personal funds of complainant but pertain to
Solar Farms & Livelihood Corporation; that since 1999 he was no longer the
counsel for complainant or Solar Textile Finishing Corporation; that he never
used any confidential information in pursuing the criminal cases he filed but
only used those information which he obtained by virtue of his being a
stockholder.
He further alleged that his requests for copies of the financial statements
were ignored by the complainant and his wife hence he was constrained to
file criminal complaints for estafa thru concealment of documents; that when
he was furnished copies of the financial statements, he discovered that
several parcels of land were not included in the balance sheet of the
corporations; that the financial statements indicated that the corporations
suffered losses when in fact it paid cash dividends to its stockholders, hence,
he filed additional complaints for falsification of commercial documents and
violation of reportorial requirements of the SEC.
On July 19, 2005, the Investigating Commissioner[2] submitted a Report and
Recommendation[3] finding that from 1987 up to 1999, respondent had been
the personal lawyer of the complainant and incorporator and counsel of Solar
Farms & Livelihood Corporation. However, in 1999 complainant discontinued
availing of the services of respondent in view of the admission of his
(complainants) son to the bar; he also discontinued paying dividends to
respondent and even concealed from him the corporations financial
statements which compelled the respondent to file the multiple criminal and
Page 322
civil cases in the exercise of his rights as a stockholder.
LEGAL ETHICS
The investigating commissioner further noted that respondent is guilty of
forum shopping when he filed identical charges against the complainant
before the Office of the City Prosecutor of Malabon City and in the Office of
the City Prosecutor of San Jose del Monte, Bulacan. It was also observed
that respondent was remiss in his duty as counsel and incorporator of both
corporations for failing to advise the officers of the corporation, which he was
incidentally a member of the Board of Directors, to comply with the reportorial
requirements of the SEC and the Bureau of Internal Revenue. Instead, he
filed cases against his clients, thereby representing conflicting interests.
The investigating commissioner recommended that respondent be
suspended from the practice of law for a period of six months[4] which was
adopted and approved by the IBP Board of Governors.
We agree with the findings and recommendation of the IBP.
We find that the professional relationship between the complainant and the
respondent is more extensive than his protestations that he only handled
isolated labor cases for the complainants corporations. Aside from being the
brother-in-law of complainants wife, it appears that even before the inception
of the companies, respondent was already providing legal services to the
complainant, thus:
COMM. NAVARRO:
Was there a formal designation or you where only called upon to do so?
ATTY. AURELIO:
Well, I understand in order to show to the employees that they have labor
lawyer and at that time I went to the office at least half day every week but
that was cut short. And so when there are cases that crop-up involving labor
then they called me up.
xxxx
ATTY. OLEDAN:
Will counsel deny that he was the personal lawyer of the complainant long
before he joined the company?
ATTY. AURELIO:
Yes, with respect to the boundary dispute between his land and his neighbor
but the subject matter of all the cases I filed they all revolved around the
Financial Statement of the 2 corporations. I never devolves any information
with respect to labor cases and the MERALCO case with respect to boundary
dispute, nothing I used.
ATTY. OLEDAN:
Was he not also the lawyer at that time of complainant when he incorporated
the second corporation in 1992?
ATTY. AURELIO:
Well, I was the one submitted the corporate papers and I think after that I
have nothing to do with the SEC requirements regarding this corporation.
Just to submit the incorporation papers to the SEC and anyway they have
already done that before. They have already created or established the first
corporation way back before the second corporation started and there was
no instance where I dealt with the Financial Statement of the corporation with
respect to its filing with the SEC.
ATTY. OLEDAN:
My only question is whether he incorporated and therefore was aware of the
corporate matters involving Solar Farms?
ATTY. AURELIO:
As a stockholder Im aware.
ATTY. OLEDAN:
As a lawyer?
ATTY. AURELIO:
Well, as a stockholder Im aware.
PINEDAPCGRNMAN
xxxx
ATTY. OLEDAN:
You are not the one who filed.
ATTY. AURELIO:
I was the one who filed the corporate paper but thats all the participation I
had with respect to the requirement of the SEC with respect to the
corporation.
COMM. NAVARRO:
So, you acted as legal counsel of the corporation even before the initial stage
of the incorporation?
ATTY. AURELIO:
There are two (2) corporations involving in this case, Your Honor, and the
first was I think Solar Textile and this was.
COMM. NAVARRO:
You were already the legal counsel?
ATTY. AURELIO:
No, this was created before I became a stockholder.
COMM. NAVARRO:
Who was then the legal counsel before of Solar?
MR. YAO:
Siya pa rin pero hindi pa siya stockholder.
ATTY. OLEDAN:
Because, Your Honor, he happens to be the brother-in-law of the wife of the
complainant and he is the husband of the wife of her sister so thats why he
was (inaudible) other legal matters even before the corporation that was
formed and he became also a stockholder and in fact he charge the
corporation certain amounts for professional service rendered it is part of the
Resolution of the Office of the City Prosecutor of Malabon as annex to the
complaint so he cannot say that he only presented, that he only filed the
papers at SEC and aside from that when the corporation, the Solar Farms
was already formed and the property which he is now questioning was
purchased by complainant. He was the one who negotiated with the buyer,
he was always with the complainant and precisely acted as complainants
personal lawyer. The truth of the matter he is questioning the boundary and
in fact complainant had survey conducted in said parcel of land which he
bought with the assistance and legal advice of respondent and in fact
complainant gave him only a copy of that survey. Him alone. And he used
this particular copy to insists that this property allegedly belong to the
corporation when in truth and in fact he was fully aware that it was the
complainants personal funds that were used to pay for the whole area and
this was supported by the stockholders who admitted that they were aware
that the parcel of land which he claims does not appear in the Financial
Statement of the corporation was purchased by the complainant subject to
reimbursement by the Board and should the corporation finally have sufficient
fund to cover the payment advance by complainant then the property will be
transferred to the corporation. All of these facts he was privy to it, Your Honor,
so he cannot say that and he is also a stockholder but the fact is, prior to the
incorporation and during the negotiation he was the personal counsel of the
complainant.[5]
It appears that the parties relationship was not just professional, but they are
also related by affinity. The disagreement between complainants wife and
the respondent affected their professional relationship. Complainants refusal
to disclose certain financial records prompted respondent to retaliate by filing
several suits.
It is essential to note that the relationship between an attorney and his client
Page 323
is a fiduciary one.[6] Canon 17 of the Code of Professional Responsibility
provides that a lawyer owes fidelity to the cause of his client and shall be
mindful of the trust and confidence reposed on him. The long-established rule
LEGAL ETHICS
is that an attorney is not permitted to disclose communications made to him
in his professional character by a client, unless the latter consents. This
obligation to preserve the confidences and secrets of a client arises at the
inception of their relationship. The protection given to the client is perpetual
and does not cease with the termination of the litigation, nor is it affected by
the party's ceasing to employ the attorney and retaining another, or by any
other change of relation between them. It even survives the death of the
client.[7]
Notwithstanding the veracity of his allegations, respondents act of filing
multiple suits on similar causes of action in different venues constitutes
forum-shopping, as correctly found by the investigating commissioner. This
highlights his motives rather than his cause of action. Respondent took
advantage of his being a lawyer in order to get back at the complainant. In
doing so, he has inevitably utilized information he has obtained from his
dealings with complainant and complainants companies for his own end.
Lawyers must conduct themselves, especially in their dealings with their
clients and the public at large, with honesty and integrity in a manner beyond
reproach.[8]Lawyers cannot be allowed to exploit their profession for the
purpose of exacting vengeance or as a tool for instigating hostility against
any personmost especially against a client or former client. As we stated in
Marcelo v. Javier, Sr.:[9]
A lawyer shall at all times uphold the integrity and dignity of the legal
profession. The trust and confidence necessarily reposed by clients require
in the attorney a high standard and appreciation of his duty to his clients, his
profession, the courts and the public. The bar should maintain a high
standard of legal proficiency as well as of honesty and fair dealing. Generally
speaking, a lawyer can do honor to the legal profession by faithfully
performing his duties to society, to the bar, to the courts and to his clients. To
this end, nothing should be done by any member of the legal fraternity which
might tend to lessen in any degree the confidence of the public in the fidelity,
honesty and integrity of the profession.[10] (Emphasis supplied)
In sum, we find that respondent's actuations amount to a breach of his duty
to uphold good faith and fairness, sufficient to warrant the imposition of
disciplinary sanction against him.
WHEREFORE, respondent Atty. Leonardo A. Aurelio is ordered
SUSPENDED from the practice of law for a period of SIX (6) MONTHS
effective upon receipt of this Decision. Let a copy of this Decision be
furnished the Office of the Bar Confidant and the Integrated Bar of the
Philippines. The Court Administrator is directed to circulate this order of
suspension to all courts in the country.
SO ORDERED.
[A.C. No. 4078. July 14, 2003]
WILLIAM ONG GENATO, complainant, vs. ATTY. ESSEX L.
SILAPAN, respondent.
DECISION
PUNO, J.:
In this complaint for disbarment filed by William Ong Genato against
respondent Atty. Essex L. Silapan, complainant alleged that in July 1992,
respondent asked if he could rent a small office space in complainants
building in Quezon City for his law practice. Complainant acceded and
introduced respondent to Atty. Benjamin Dacanay, complainants retained
lawyer, who accommodated respondent in the building and made him handle
some of complainants cases. Hence, the start of the legal relationship
between complainant and respondent.
The conflict between the parties started when respondent borrowed two
hundred thousand pesos (P200,000.00) from complainant which he intended
to use as downpayment for the purchase of a new car. In return, respondent
issued to complainant a postdated check in the amount of P176,528.00 to
answer for the six (6) months interest on the loan. He likewise mortgaged to
complainant his house and lot in Quezon City but did not surrender its title
claiming that it was the subject of reconstitution proceedings before the
Quezon City Register of Deeds.
PINEDAPCGRNMAN
With the money borrowed from complainant, respondent purchased a new
car. However, the document of sale of the car was issued in complainants
name and financed through City Trust Company.
In January 1993, respondent introduced to complainant a certain Emmanuel
Romero. Romero likewise wanted to borrow money from complainant.
Complainant lent Romero the money and, from this transaction, respondent
earned commission in the amount of P52,289.90. Complainant used the
commission to pay respondents arrears with the car financing firm.
Subsequently, respondent failed to pay the amortization on the car and the
financing firm sent demand letters to complainant. Complainant tried to
encash respondents postdated check with the drawee bank but it was
dishonored as respondents account therein was already closed.
Respondent failed to heed complainants repeated demands for payment.
Complainant then filed a criminal case against respondent for violation
of Batas Pambansa Blg. 22 and a civil case for judicial foreclosure of
real estate mortgage.
In the foreclosure case, respondent made the following allegation in his
Answer:
xxxxxxxxx
4. That complainant is a businessman who is engaged in the real estate
business, trading and buy and sell of deficiency taxed imported cars,
shark loans and other shady deals and has many cases pending in
court;
xxxxxxxxx
Complainant denied respondents charges and claimed that respondents
allegation is libelous and not privilege as it was irrelevant to the foreclosure
case. Complainant further pointed to paragraph 12 of respondents Answer,
thus:
12. That on January 29, 1993, before paying for the next installment on his
car on January 30, 1993, defendant Essex L. Silapan asked the complainant
to execute a Deed of Sale transferring ownership of the car to him but the
latter said that he will only do so after the termination of his criminal case at
Branch 138 of the Regional Trial Court of Makati, Metro Manila, x x x where
he (complainant) wanted Essex L. Silapan, his former counsel in that
case, to offer bribe money to the members of the review committee of
the Department of Justice where a petition for review of the resolution
of the Investigating Prosecutor was pending at the time, x x x or, in the
event that the said petition for review is denied, he wanted Essex L.
Silapan to offer bribe money to the prosecutor assigned at the above-
mentioned Court, and even to the presiding Judge, for his eventual
acquittal, which defendant Essex L. Silapan all refused to do not only
because such acts are immoral and illegal, but also because the
complainant confided to him that he was really involved in the
commission of the crime that was charged of in the above-mentioned
case. (emphasis supplied)
Complainant gripes that the foregoing allegations are false, immaterial to the
foreclosure case and maliciously designed to defame him. He charged that
in making such allegations, respondent is guilty of breaking their confidential
lawyer-client relationship and should be held administratively liable therefor.
Consequently, he filed this complaint for disbarment, praying also that an
administrative sanction be meted against respondent for his issuance of a
bouncing check.
When required by the Court to comment, respondent explained[1] that it was
complainant who offered him an office space in his building and retained him
as counsel as the latter was impressed with the way he handled a B.P. 22
case[2] filed against complainant. Respondent insisted that there was nothing
libelous in his imputations of dishonest business practices to complainant and
his revelation of complainants desire to bribe government officials in relation
to his pending criminal case. He claimed to have made these statements in
the course of judicial proceedings to defend his case and discredit
complainants credibility by establishing his criminal propensity to commit
fraud, tell lies and violate laws. He argued that he is not guilty of breaking his
confidential lawyer-client relationship with complainant as he made the
disclosure in defense of his honor and reputation.
Secondly, respondent asserted that he executed the real estate mortgage in
favor of complainant without consideration and only as a formal requirement
so he could obtain theP200,000.00 loan and for this reason, he did not
Page 324
surrender his title over the mortgaged property to complainant.
Thirdly, respondent claimed that he issued the postdated check, not for
account or for value, but only: (a) to serve as some kind of acknowledgment
LEGAL ETHICS
that he already received in advance a portion of his attorneys fees from the
complainant for the legal services he rendered, and (b) as a form of
assurance that he will not abandon the cases he was handling for
complainant.
Lastly, respondent denied that he received a P52,289.90 commission from
Romeros loan which he allegedly helped facilitate. He alleged that the
amount was paid to him by Romero as attorneys fees, the latter being his
client. He used this amount to pay his arrears with the car financing firm. On
January 29, 1993, before paying the next amortization on the car, he asked
complainant to execute a deed of sale transferring ownership of the car to
him. Complainant refused and insisted that he would transfer ownership of
the car only after the termination of his criminal case which respondent was
handling as his defense lawyer. Consequently, respondent stopped paying
the amortization on the car. Respondent also alleged that he filed a perjury
case against complainant who, in turn, filed a complaint for libel against
him.
In a Resolution, dated October 27, 1993, the Court referred the administrative
case to the Integrated Bar of the Philippines (IBP) for investigation, report
and recommendation.
On August 3, 2002, the Board of Governors of the IBP approved the report
of the investigating commissioner finding the respondent guilty as charged
and recommending his suspension from the practice of law for one (1) year.
We affirm the findings and recommendation of the IBP.
Prefatorily, we stress that we shall not delve into the merits of the various
criminal and civil cases pending between the parties. It is for the trial courts
handling these cases to ascertain the truth or falsity of the allegations made
therein. For this reason, it is not for us to sanction respondent for his issuance
of a bouncing check. His liability has yet to be determined by the trial court
where his case is pending.
The only issue in this administrative case is whether respondent committed
a breach of trust and confidence by imputing to complainant illegal practices
and disclosing complainants alleged intention to bribe government officials in
connection with a pending case.
Canon 17 of the Code of Professional Responsibility provides that a lawyer
owes fidelity to the cause of his client and shall be mindful of the trust and
confidence reposed on him. The long-established rule is that an attorney is
not permitted to disclose communications made to him in his professional
character by a client, unless the latter consents. This obligation to preserve
the confidences and secrets of a client arises at the inception of their
relationship.[3] The protection given to the client is perpetual and does not
cease with the termination of the litigation, nor is it affected by the partys
ceasing to employ the attorney and retaining another, or by any other change
of relation between them. It even survives the death of the client.[4]
It must be stressed, however, that the privilege against disclosure of
confidential communications or information is limited only to communications
which are legitimately and properly within the scope of a lawful employment
of a lawyer. It does not extend to those made in contemplation of a crime or
perpetration of a fraud.[5] If the unlawful purpose is avowed, as in this case,
the complainants alleged intention to bribe government officials in relation to
his case, the communication is not covered by the privilege as the client does
not consult the lawyer professionally. It is not within the profession of a lawyer
to advise a client as to how he may commit a crime as a lawyer is not a gun
for hire. Thus, the attorney-client privilege does not attach, there being no
professional employment in the strict sense.
Be that as it may, respondents explanation that it was necessary for him to
make the disclosures in his pleadings fails to satisfy us. The disclosures were
not indispensable to protect his rights as they were not pertinent to the
foreclosure case. It was improper for the respondent to use it against the
complainant in the foreclosure case as it was not the subject matter of
litigation therein and respondents professional competence and legal advice
were not being attacked in said case. A lawyer must conduct himself,
especially in his dealings with his clients, with integrity in a manner that is
beyond reproach. His relationship with his clients should be characterized by
the highest degree of good faith and fairness.
Thus, the Court agrees with the evaluation of the IBP and finds that
respondents allegations and disclosures in the foreclosure case amount to a
breach of fidelity sufficient to warrant the imposition of disciplinary sanction
against him. However, the recommended penalty of one (1) year suspension
of respondent from the practice of law seems to be disproportionate to his
PINEDAPCGRNMAN
breach of duty considering that a review of the records of this Court reveals
that this is the first administrative complaint against him.
IN VIEW WHEREOF, respondent Atty. Essex L. Silapan is ordered
suspended from the practice of law for a period of six (6) months effective
upon receipt of this Decision. Let a copy of this Decision be furnished the
Office of the Bar Confidant and the Integrated Bar of the Philippines. The
Court Administrator is directed to circulate this order of suspension to all
courts in the country.
SO ORDERED.
[A.C. No. 5020. December 18, 2001]
ROSARIO JUNIO, complainant, vs. ATTY. SALVADOR M. GRUPO,
respondent.
DECISION
MENDOZA, J.:
This is a complaint for disbarment filed against Atty. Salvador M. Grupo for
malpractice and gross misconduct.
Complainant Rosario N. Junio alleged that
3. Sometime in 1995, [she] engaged the services of [respondent], then a
private practitioner, for the redemption of a parcel of land covered by Transfer
Certificate of Title No. 20394 registered in the name of her parents, spouses
Rogelio and Rufina Nietes, and located at Concepcion, Loay, Bohol.
4. On 21 August 1995, [complainant] entrusted to [respondent] the amount
of P25,000.00 in cash to be used in the redemption of the aforesaid property.
Respondent received the said amount as evidenced by an acknowledgment
receipt, a copy of which is being hereto attached as Annex A.
5. Notwithstanding the foregoing and for no valid reason, respondent did not
redeem the property; as a result of which the right of redemption was lost and
the property was eventually forfeited.
6. Because of respondents failure to redeem the property, complainant had
demanded [the] return of the money which she entrusted to the former for the
above-stated purpose.
7. Despite repeated demands made by the complainant and without
justifiable cause, respondent has continuously refused to refund the money
entrusted to him.[1]
In his Answer, petitioner admitted receiving the amount in question for the
purpose for which it was given. However, he alleged that
6. The subject land for which the money of complainant was initially intended
to be applied could really not be redeemed anymore . . ;
7. Complainant knew the mortgage agreement between her parents and the
mortgage-owner had already expired, and what respondent was trying to do
was a sort of [a] desperate, last-ditch attempt to persuade the said mortgagee
to relent and give back the land to the mortgagors with the tender of
redemption; but at this point, the mortgagee simply would not budge
anymore. For one reason or another, he would no longer accept the sum
offered;
8. By the time that complainant was to return to Manila, it was already a
foregone matter that respondents efforts did not succeed. And so, when
transaction failed, respondent requested the complainant that he be allowed,
in the meantime, to avail of the money because he had an urgent need for
some money himself to help defray his childrens educational expenses. It
was really a personal request, a private matter between respondent and
Page 325
complainant, thus, respondent executed a promissory note for the amount, a
copy of which is probably still in the possession of the complainant.
LEGAL ETHICS
9. . . . [T]he family of the complainant and that of the respondent were very
close and intimate with each other. Complainant, as well as two of her sisters,
had served respondents family as household helpers for many years when
they were still in Manila, and during all those times they were treated with
respect, affection, and equality. They were considered practically part of
respondents own family.
That is why, when complainant requested . . . assistance regarding the
problem of the mortgaged property which complainant wanted to redeem,
respondent had no second-thoughts in extending a lending hand . . . .
Respondent did not ask for any fee. His services were purely gratuitous; his
acts [were] on his own and by his own. It was more than pro bono; it was not
even for charity; it was simply an act of a friend for a friend. It was just
lamentably unfortunate that his efforts failed.
....
Of course, respondent accepts his fault, because, indeed, there were
occasions when complainants sisters came to respondent to ask for the
payment in behalf of complainant, and he could not produce the money
because the circumstances somehow, did not allow it. [I]t does not mean that
respondent will not pay, or that he is that morally depraved as to wilfully and
deliberately re[nege] in his obligation towards the complainant.[2]
Complainant filed a reply denying that respondent informed her of his failure
to redeem the property and that respondent requested her to instead lend
the money to him.[3]
The case was thereafter referred to the Integrated Bar of the Philippines (IBP)
for investigation, report, and recommendation. However, while two hearings
were set for this purpose, both were postponed at the instance of respondent.
For this reason, on August 28, 2000, complainant asked the Investigating
Commissioner[4] to consider the case submitted for decision on the basis of
the pleadings theretofore filed. Respondent was required to comment on
complainants motion, but he failed to do so. Consequently, the case was
considered submitted for resolution.
In his report, dated January 5, 2001, the Investigating Commissioner found
respondent liable for violation of Rule 16.04 of the Code of Professional
Responsibility which forbids lawyers from borrowing money from their clients
unless the latters interests are protected by the nature of the case or by
independent advice. The Investigating Commissioner found that respondent
failed to pay his clients money. However, in view of respondents admission
of liability and plea for magnanimity, the Investigating Commissioner
recommended that respondent be simply reprimanded and ordered to pay
the amount of P25,000.00 loan plus interest at the legal rate.
In its Resolution No. XIV-2001-183, dated April 29, 2001, the IBP Board of
Governors adopted and approved the Investigating Commissioners findings.
However, it ordered
[R]espondent . . . suspended indefinitely from the practice of law for the
commission of an act which falls short of the standard of the norm of conduct
required of every attorney and . . . ordered [him] to return to the complainant
the amount of P25,000.00 plus interest at the legal rate from the time the said
amount was misappropriated, until full payment; provided that the total
suspension shall be at least one (1) year from the date of said full payment.
On July 4, 2001, respondent filed a motion for reconsideration alleging that
(a) there was no actual hearing of the case wherein respondent could have
fully ventilated and defended his position;
(b) the subject Resolution gravely modified the Report and Recommendation
of the Trial Commissioner, Hon. Pedro Magpayo, Jr., . . . such that the
resultant sanctions that are ordered imposed are too leonine, unjust and
cruel;
PINEDAPCGRNMAN
(c) that the factual circumstances attending the matter which gave rise to the
complaint were not rightly or fairly appreciated.[5]
He argues that the Court should adopt the report and recommendation of the
IBP Investigating Commissioner.
In its resolution of August 15, 2001, the Court resolved to treat respondents
motion for reconsideration as a petition for review of IBP Resolution No. XIV
2001-183 and required complainant to comment on the petition.
In her comment, complainant states that her primary interest is to recover the
amount of P25,000.00 with interest and that she is leaving it to the Court to
decide whether respondent deserves the penalty recommended by the
IBP.[6]
The Court resolves to partially grant the petition. In his report and
recommendation, Investigating Commissioner Magpayo, Jr. made the
following findings:
In his Answer, the respondent ADMITS all the allegations in paragraph 4 of
the complaint which avers:
4. On 21 August 1995, complainant entrusted to respondent the amount of
P25,000.00 in cash to be used in the redemption of the aforesaid property
(parcel of land covered by TCT No. 20394 registered in the name of
complainants parents located at Concepcion, Loay, Bohol). Respondent
received the said amount as evidenced by an acknowledgment receipt
(Annex A).
By way of confession and avoidance, the respondent, . . . however,
contended that when the mortgagee refused to accept the sum tendered as
the period of redemption had already expired, he requested the complainant
to allow him in the meantime to use the money for his childrens educational
expenses[,] to which request the complainant allegedly acceded and
respondent even executed a promissory note (please see 4th par. of Annex
B of complaint).
Respondent takes further refuge in the intimate and close relationship
existing between himself and the complainants family on the basis of which
his legal services were purely gratuitous or simply an act of a friend for a
friend with no consideration involved. Unfortunately, his efforts to redeem the
foreclosed property, as already stated, did not produce the desired result
because the mortgagee would not budge anymore and would not accept the
sum offered.
Thus, the respondent concluded that there was, strictly speaking, no
attorney-client [relationship] existing between them. Rather, right from the
start[,] everything was sort of personal, he added.
Granting to the respondent the benefit of the doubt, we shall assume that
there was in reality a loan in the amount of P25,000.00. This is likewise
confirmed by the execution of a promissory note on 12 December 1996 by
the respondent who undertook to pay Mrs. Junio on or before January 1997
(Annex B of complaint). Moreover, the demand letter of 12 March 1998
(Annex B) mentions of reimbursement of the sum received and interest of
24% per annum until fully paid giving the impression that the funds previously
intended to be used for the repurchase of a certain property (Annex A of
complaint) was converted into a loan with the consent of the complainant who
gave way to the request of the respondent to help defray his childrens
educational expenses (par. 8 of Answer).
Be that as it may, the duty and obligation to repay the loan remains unshaken.
Having utilized the sum to fulfill his urgent need for some money, it is but just
and proper that he return the amount borrowed together with interest.
Five (5) years had already passed since respondent retained the cash for his
own personal use. But notwithstanding the same and his firm promise to pay
Page 326
Mrs. Junio on or before January 1997 he has not demonstrated any volition
to settle his obligation to his creditor[,] although admittedly there w[ere]
occasions when complainants sister came to respondent to ask for the
LEGAL ETHICS
payment in behalf of complainant, worse, the passage of time made
respondent somehow forgot about the obligation.
A lawyer shall not borrow money from his client unless the clients interests
are fully protected by the nature of the case or by independent advice (Rule
16.04, Code of Professional Responsibility). This rule is intended to prevent
the lawyer from taking advantage of his influence over the client.
This rule is especially significant in the instant case where the respondent
enjoys an immense ascendancy over the complainant who, as well as two of
his sisters, had served respondents family as household helpers for many
years.
Having gained dominance over the complainant by virtue of such long
relation of master and servant, the respondent took advantage of his
influence by not returning the money entrusted to him. Instead, he imposed
his will on the complainant and borrowed her funds without giving adequate
security therefor and mindless of the interest of the complainant.
In the light of the foregoing, . . . respondent has committed an act which falls
short of the standard of the norm of conduct required of every attorney. If an
ordinary borrower of money is required by the law to repay the loan failing
which he may be subjected to court action, it is more so in the case of a
lawyer whose conduct serves as an example.[7]
It would indeed appear from the records of the case that respondent was
allowed to borrow the money previously entrusted to him by complainant for
the purpose of securing the redemption of the property belonging to
complainants parents. Respondent, however, did not give adequate security
for the loan and subsequently failed to settle his obligation. Although
complainant denied having loaned the money to respondent, the fact is that
complainant accepted the promissory note given her by respondent on
December 12, 1996. In effect, complainant consented to and ratified
respondents use of the money. It is noteworthy that complainant did not
attach this promissory note to her complaint nor explain the circumstances
surrounding its execution. She only mentioned it in her demand letter of
March 12, 1998 (Annex B), in which she referred to respondents undertaking
to pay her the P25,000.00 on or before January 1997. Under the
circumstances and in view of complainants failure to deny the promissory
note, the Court is constrained to give credence to respondents claims that
the money previously entrusted to him by complainant was later converted
into a loan.
Respondents liability is thus not for misappropriation or embezzlement but
for violation of Rule 16.04 of the Code of Professional Responsibility which
forbids lawyers from borrowing money from their clients unless the latters
interests are protected by the nature of the case or by independent advice.
In this case, respondents liability is compounded by the fact that not only did
he not give any security for the payment of the amount loaned to him but that
he has also refused to pay the said amount. His claim that he could not pay
the loan because circumstances . . . did not allow it and that, because of the
passage of time, he somehow forgot about his obligation only underscores
his blatant disregard of his obligation which reflects on his honesty and
candor. A lawyer is bound to observe candor, fairness, and loyalty in all his
dealings and transactions with his client.[8]
Respondent claims that complainant is a close personal friend and that in
helping redeem the property of complainants parents, he did not act as a
lawyer but as a friend, hence there is no client-attorney relationship between
them. This contention has no merit. As explained in Hilado v. David,[9]
To constitute professional employment it is not essential that the client should
have employed the attorney professionally on any previous occasion . . . It is
not necessary that any retainer should have been paid, promised, or charged
for; neither is it material that the attorney consulted did not afterward
undertake the case about which the consultation was had. If a person, in
respect to his business affairs or troubles of any kind, consults with his
attorney in his professional capacity with the view to obtaining professional
advice or assistance, and the attorney voluntarily permits or acquiesces in
PINEDAPCGRNMAN
such consultation, then the professional employment must be regarded as
established . . . .
Considering the foregoing, the Investigating Commissioners
recommendation to impose on respondent the penalty of reprimand and
restitution of the amount loaned by him is clearly inadequate. On the other
hand, the penalty of indefinite suspension with restitution imposed by the IBP
Board of Governors is too harsh in view of respondents apparent lack of
intent to defraud complainant and of the fact that this appears to be his first
administrative transgression. It is the penalty imposed in Igual v. Javier[10]
which applies to this case. In that case, this Court ordered the respondent
suspended for one month from the practice of law and directed him to pay
the amount given him by his clients within 30 days from notice for his failure
to return the money in question notwithstanding his admission that he did not
use the money for the filing of the appellees brief, as agreed by them,
because of an alleged quarrel with his clients.
Anent petitioners allegation regarding the lack of hearing during the IBP
investigation, suffice it to say that he waived such right when he failed to
comment on petitioners motion to submit the case for resolution on the basis
of the pleadings theretofore filed despite due notice to him, not to mention
the fact that it was he who had requested the postponement of the two
hearings scheduled by the Investigating Commissioner.
WHEREFORE, the Court finds petitioner guilty of violation of Rule 16.04 of
the Code of Professional Responsibility and orders him suspended from the
practice of law for a period of one (1) month and to pay to respondent, within
30 days from notice, the amount of P25,000.00 with interest at the legal rate,
computed from December 12, 1996.
SO ORDERED.
Rule 21.01 – A lawyer shall not reveal the confidences or secrets of his
client except:
a. When authorized by the client after acquainting him of the
consequences of the disclosure:
b. When required by law;
c. When necessary to collect his fees or to defend himself, his
employees or associates or by judicial action.
 When properly authorized after having been fully informed of the
consequences to reveal his confidences/secrets, then there is a
valid waiver.
 Art. 209. Betrayal of Trust by an Attorney or Solicitor. Revelation
of secrets. In addition to the proper administrative action, the
penalty of prision correccional in its minimum period, or a fine
ranging from P200 to P1000, or both, shall be imposed upon any
attorney at law or solicitor who, by any malicious break of
professional duty as inexcusable negligence or ignorance, shall
prejudice his client, or reveal any of the secrets of the latter
learned by him in his professional capacity.
The same penalty shall be imposed upon an attorney at law or solicitor who,
having undertaken the defense of a client, or having received confidential
information from said client in a case, shall undertake the defense of the
opposing party in the same case, without the consent of his first client (Rule
209, RPC)
 General Rule: Obligation to keep secrets covers only lawful
purposes
 Exceptions:
1. announcements of intention of a client to commit a crime
2. client jumped bail and lawyer knows his whereabouts; or
client is living somewhere under an assumed name
3. communication involves the commission of future fraud or
crime but crimes/frauds “already committed” falls within the
privilege.
Rule 21.02 – A lawyer shall not, to the disadvantage of his client, use
Page 327
information acquired in the course of employment, nor shall he use the
same to his own advantage or that of a third person, unless the client
with full knowledge of the circumstances consents thereto.
LEGAL ETHICS
A.C. No. 5280 March 30, 2004
WILLIAM S. UY, complainant,
vs.
ATTY. FERMIN L. GONZALES, respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
William S. Uy filed before this Court an administrative case against Atty.
Fermin L. Gonzales for violation of the confidentiality of their lawyer-client
relationship. The complainant alleges:
Sometime in April 1999, he engaged the services of respondent lawyer to
prepare and file a petition for the issuance of a new certificate of title. After
confiding with respondent the circumstances surrounding the lost title and
discussing the fees and costs, respondent prepared, finalized and submitted
to him a petition to be filed before the Regional Trial Court of Tayug,
Pangasinan. When the petition was about to be filed, respondent went to his
(complainant’s) office at Virra Mall, Greenhills and demanded a certain
amount from him other than what they had previously agreed upon.
Respondent left his office after reasoning with him. Expecting that said
petition would be filed, he was shocked to find out later that instead of filing
the petition for the issuance of a new certificate of title, respondent filed a
letter-complaint dated July 26, 1999 against him with the Office of the
Provincial Prosecutor of Tayug, Pangasinan for "Falsification of Public
Documents."1 The letter-complaint contained facts and circumstances
pertaining to the transfer certificate of title that was the subject matter of the
petition which respondent was supposed to have filed. Portions of said letter-
complaint read:
The undersigned complainant accuses WILLIAM S. UY, of legal age, Filipino,
married and a resident of 132-A Gilmore Street corner 9th Street, New
Manila, Quezon City, Michael Angelo T. UY, CRISTINA EARL T. UY, minors
and residents of the aforesaid address, Luviminda G. Tomagos, of legal age,
married, Filipino and a resident of Carmay East, Rosales, Pangasinan, and
F. Madayag, with office address at A12, 2/F Vira Mall Shopping Complex,
Greenhills, San Juan, Metro Manila, for ESTAFA THRU FALSIFICATION OF
PUBLIC DOCUMENTS, committed as follows:
That on March 15, 1996, William S. Uy acquired by purchase a parcel of land
consisting of 4.001 ha. for the amount of P100,000.00, Philippine Currency,
situated at Brgy. Gonzales, Umingan, Pangasinan, from FERMIN C.
GONZALES, as evidenced by a Deed of Sale executed by the latter in favor
of the former…; that in the said date, William S. Uy received the Transfer
Certificate of Title No. T-33122, covering the said land;
That instead of registering said Deed of Sale and Transfer Certificate of Title
(TCT) No. T-33122, in the Register of Deeds for the purpose of transferring
the same in his name, William S. Uy executed a Deed of Voluntary Land
Transfer of the aforesaid land in favor of his children, namely, Michael Angelo
T. Uy and Cristina Earl T. Uy, wherein William S. Uy made it appear that his
said children are of legal age, and residents of Brgy. Gonzales, Umingan,
Pangasinan, when in fact and in truth, they are minors and residents of Metro
Manila, to qualify them as farmers/beneficiaries, thus placing the said
property within the coverage of the Land Reform Program;
That the above-named accused, conspiring together and helping one another
procured the falsified documents which they used as supporting papers so
that they can secure from the Office of the Register of Deeds of Tayug,
Pangasinan, TCT No. T-5165 (Certificate of Land Ownership Award No. 004
32930) in favor of his above-named children. Some of these Falsified
documents are purported Affidavit of Seller/Transferor and Affidavit of Non-
Tenancy, both dated August 20, 1996, without the signature of affiant, Fermin
C. Gonzales, and that on that said date, Fermin C. Gonzales was already
dead… ;
That on December 17, 1998, William S. Uy with deceit and evident intent to
defraud undersigned, still accepted the amount of P340,000.00, from Atty.
Fermin L. Gonzales, P300,000.00, in PNB Check No. 0000606, and
P40,000.00, in cash, as full payment of the redemption of TCT No.
33122…knowing fully well that at that time the said TCT cannot be redeemed
anymore because the same was already transferred in the name of his
children;
PINEDAPCGRNMAN
That William S. Uy has appropriated the amount covered by the aforesaid
check, as evidenced by the said check which was encashed by him…;
That inspite of repeated demands, both oral and in writing, William S. Uy
refused and continue to refuse to deliver to him a TCT in the name of the
undersigned or to return and repay the said P340,000.00, to the damage and
prejudice of the undersigned.2
With the execution of the letter-complaint, respondent violated his oath as a
lawyer and grossly disregarded his duty to preserve the secrets of his client.
Respondent unceremoniously turned against him just because he refused to
grant respondent’s request for additional compensation. Respondent’s act
tarnished his reputation and social standing.3
In compliance with this Court’s Resolution dated July 31, 2000,4 respondent
filed his Comment narrating his version, as follows:
On December 17, 1998, he offered to redeem from complainant a 4.9
hectare-property situated in Brgy. Gonzales, Umingan, Pangasinan covered
by TCT No. T-33122 which the latter acquired by purchase from his
(respondent’s) son, the late Fermin C. Gonzales, Jr.. On the same date, he
paid complainant P340,000.00 and demanded the delivery of TCT No. T-
33122 as well as the execution of the Deed of Redemption. Upon request,
he gave complainant additional time to locate said title or until after Christmas
to deliver the same and execute the Deed of Redemption. After the said
period, he went to complainant’s office and demanded the delivery of the title
and the execution of the Deed of Redemption. Instead, complainant gave him
photocopies of TCT No. T-33122 and TCT No. T-5165. Complainant
explained that he had already transferred the title of the property, covered by
TCT No.T-5165 to his children Michael and Cristina Uy and that TCT No. T-
5165 was misplaced and cannot be located despite efforts to locate it.
Wanting to protect his interest over the property coupled with his desire to
get hold of TCT No. T-5165 the earliest possible time, he offered his
assistance pro bono to prepare a petition for lost title provided that all
necessary expenses incident thereto including expenses for transportation
and others, estimated at P20,000.00, will be shouldered by complainant. To
these, complainant agreed.
On April 9, 1999, he submitted to complainant a draft of the petition for the
lost title ready for signing and notarization. On April 14, 1999, he went to
complainant’s office informing him that the petition is ready for filing and
needs funds for expenses. Complainant who was with a client asked him to
wait at the anteroom where he waited for almost two hours until he found out
that complainant had already left without leaving any instructions nor funds
for the filing of the petition. Complainant’s conduct infuriated him which
prompted him to give a handwritten letter telling complainant that he is
withdrawing the petition he prepared and that complainant should get another
lawyer to file the petition.
Respondent maintains that the lawyer-client relationship between him and
complainant was terminated when he gave the handwritten letter to
complainant; that there was no longer any professional relationship between
the two of them when he filed the letter-complaint for falsification of public
document; that the facts and allegations contained in the letter-complaint for
falsification were culled from public documents procured from the Office of
the Register of Deeds in Tayug, Pangasinan.5
In a Resolution dated October 18, 2000, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.6
Commissioner Rebecca Villanueva-Maala ordered both parties to appear on
April 2, 2003 before the IBP.7 On said date, complainant did not appear
despite due notice. There was no showing that respondent received the
notice for that day’s hearing and so the hearing was reset to May 28, 2003.8
On April 29, 2003, Commissioner Villanueva-Maala received a letter from
one Atty. Augusto M. Macam dated April 24, 2003, stating that his client,
William S. Uy, had lost interest in pursuing the complaint he filed against Atty.
Gonzales and requesting that the case against Atty. Gonzales be dismissed.9
On June 2, 2003, Commissioner Villanueva-Maala submitted her report and
recommendation, portions of which read as follows:
The facts and evidence presented show that when respondent agreed to
handle the filing of the Verified Petition for the loss of TCT No. T-5165,
complainant had confided to respondent the fact of the loss and the
circumstances attendant thereto. When respondent filed the Letter-
Page 328
Complaint to the Office of the Special Prosecutor in Tayug, Pangasinan, he
violated Canon 21 of the Code of Professional Responsibility which expressly
provides that "A lawyer shall preserve the confidences and secrets of his
LEGAL ETHICS
client even after the attorney-client relation is terminated." Respondent
cannot argue that there was no lawyer-client relationship between them when
he filed the Letter-Complaint on 26 July 1999 considering that as early as 14
April 1999, or three (3) months after, respondent had already terminated
complainant’s perceived lawyer-client relationship between them. The duty
to maintain inviolate the client’s confidences and secrets is not temporary but
permanent. It is in effect perpetual for "it outlasts the lawyer’s employment"
(Canon 37, Code of Professional Responsibility) which means even after the
relationship has been terminated, the duty to preserve the client’s
confidences and secrets remains effective. Likewise Rule 21.02, Canon 21
of the Rules of Professional Responsibility provides that "A lawyer shall not,
to the disadvantage of his client, use information acquired in the course of
employment, nor shall he use the same to his own advantage or that of a
third person, unless the client with the full knowledge of the circumstances
consents thereto."
On 29 April 2003, the Commission received a letter dated 24 April 2003 from
Atty. Augusto M. Macam, who claims to represent complainant, William S.
Uy, alleging that complainant is no longer interested in pursuing this case
and requested that the same be dismissed. The aforesaid letter hardly
deserves consideration as proceedings of this nature cannot be "interrupted
by reason of desistance, settlement, compromise, restitution, withdrawal of
the charges, or failure of the complainant to prosecute the same. (Section 5,
Rule 139-B, Rules of Court). Moreover, in Boliver vs. Simbol, 16 SCRA 623,
the Court ruled that "any person may bring to this Court’s attention the
misconduct of any lawyer, and action will usually be taken regardless of the
interest or lack of interest of the complainant, if the facts proven so warrant."
IN VIEW OF THE FOREGOING, we find respondent Atty. Fermin L.
Gonzales to have violated the Code of Professional Responsibility and it is
hereby recommended that he be SUSPENDED for a period of SIX (6)
MONTHS from receipt hereof, from the practice of his profession as a lawyer
and member of the Bar.10
On June 21, 2003, the Board of Governors of the Integrated Bar of the
Philippines issued Resolution No. XV-2003-365, thus:
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 applicable laws and rules, and
considering that respondent violated Rule 21.02, Canon 21 of the Canons of
Professional Responsibility, Atty. Fermin L. Gonzales is
hereby SUSPENDED from the practice of law for six (6) months.11
Preliminarily, we agree with Commissioner Villanueva-Maala that the
manifestation of complainant Uy expressing his desire to dismiss the
administrative complaint he filed against respondent, has no persuasive
bearing in the present case.
Sec. 5, Rule 139-B of the Rules of Court states that:
….
No investigation shall be interrupted or terminated by reason of the
desistance, settlement, compromise, restitution, withdrawal of the charges,
or failure of the complainant to prosecute the same.
This is because:
A proceeding for suspension or disbarment is not in any sense a civil action
where the complainant is a plaintiff and the respondent lawyer is a defendant.
Disciplinary proceedings involve no private interest and afford no redress for
private grievance. They are undertaken and prosecuted solely for the public
welfare. They are undertaken for the purpose of preserving courts of justice
from the official ministration of persons unfit to practice in them. The attorney
is called to answer to the court for his conduct as an officer of the court. The
complainant or the person who called the attention of the court to the
attorney's alleged misconduct is in no sense a party, and has generally no
interest in the outcome except as all good citizens may have in the proper
administration of justice. Hence, if the evidence on record warrants, the
respondent may be suspended or disbarred despite the desistance of
complainant or his withdrawal of the charges.12
Now to the merits of the complaint against the respondent.
Practice of law embraces any activity, in or out of court, which requires the
application of law, as well as legal principles, practice or procedure and calls
for legal knowledge, training and experience.13 While it is true that a lawyer
may be disbarred or suspended for any misconduct, whether in his
professional or private capacity, which shows him to be wanting in moral
PINEDAPCGRNMAN
character, in honesty, probity and good demeanor or unworthy to continue
as an officer of the court,14 complainant failed to prove any of the
circumstances enumerated above that would warrant the disbarment or
suspension of herein respondent.
Notwithstanding respondent’s own perception on the matter, a scrutiny of the
records reveals that the relationship between complainant and respondent
stemmed from a personal transaction or dealings between them rather than
the practice of law by respondent. Respondent dealt with complainant only
because he redeemed a property which complainant had earlier purchased
from his (complainant’s) son. It is not refuted that respondent paid
complainant P340,000.00 and gave him ample time to produce its title and
execute the Deed of Redemption. However, despite the period given to him,
complainant failed to fulfill his end of the bargain because of the alleged loss
of the title which he had admitted to respondent as having prematurely
transferred to his children, thus prompting respondent to offer his assistance
so as to secure the issuance of a new title to the property, in lieu of the lost
one, with complainant assuming the expenses therefor.
As a rule, an attorney-client relationship is said to exist when a lawyer
voluntarily permits or acquiesces with the consultation of a person, who in
respect to a business or trouble of any kind, consults a lawyer with a view of
obtaining professional advice or assistance. It is not essential that the client
should have employed the attorney on any previous occasion or that any
retainer should have been paid, promised or charged for, neither is it material
that the attorney consulted did not afterward undertake the case about which
the consultation was had, for as long as the advice and assistance of the
attorney is sought and received, in matters pertinent to his profession.15
Considering the attendant peculiar circumstances, said rule cannot apply to
the present case. Evidently, the facts alleged in the complaint for "Estafa
Through Falsification of Public Documents" filed by respondent against
complainant were obtained by respondent due to his personal dealings with
complainant. Respondent volunteered his service to hasten the issuance of
the certificate of title of the land he has redeemed from complainant.
Respondent’s immediate objective was to secure the title of the property that
complainant had earlier bought from his son. Clearly, there was no attorney-
client relationship between respondent and complainant. The preparation
and the proposed filing of the petition was only incidental to their personal
transaction.
Canon 21 of the Code of Professional Responsibility reads:
Canon 21 – A LAWYER SHALL PRESERVE THE CONFIDENCE AND
SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT
RELATION IS TERMINATED.
Rule 21.01 – A lawyer shall not reveal the confidences or secrets of his client
except:
a) When authorized by the client after acquainting him of the consequences
of the disclosure;
b) When required by law;
c) When necessary to collect his fees or to defend himself, his employees or
associates or by judicial action.
The alleged "secrets" of complainant were not specified by him in his
affidavit-complaint. Whatever facts alleged by respondent against
complainant were not obtained by respondent in his professional capacity but
as a redemptioner of a property originally owned by his deceased son and
therefore, when respondent filed the complaint for estafa against herein
complainant, which necessarily involved alleging facts that would constitute
estafa, respondent was not, in any way, violating Canon 21. There is no way
we can equate the filing of the affidavit-complaint against herein complainant
to a misconduct that is wanting in moral character, in honesty, probity and
good demeanor or that renders him unworthy to continue as an officer of the
court. To hold otherwise would be precluding any lawyer from instituting a
case against anyone to protect his personal or proprietary interests.
WHEREFORE, Resolution No. XV-2003-365 dated June 21, 2003 of the
Integrated Bar of the Philippines is REVERSED and SET ASIDE and the
administrative case filed against Atty. Fermin L. Gonzales, docketed as A.C.
No. 5280, is DISMISSED for lack of merit.
SO ORDERED.
Rule 21.03 – A lawyer shall not, without the written consent of his client,
Page 329
give information from his files to an outside agency seeking such
information for auditing, statistical, bookkeeping, accounting, data
processing, or any other similar purposes.
LEGAL ETHICS
Rule 21.04 – A lawyer may disclose the affairs of a client of the firm to
partners or associates thereof unless prohibited by the client.
Rule 21.05 – A lawyer shall adopt such measures as may be required to
prevent those whose services are utilized by him, from disclosing or
using confidences or secrets of the client.
Rule 21.06 – A lawyer shall avoid indiscreet conversation about a
client’s affairs even with members of his family.
Rule 21.07 – A lawyer shall not reveal that he has been consulted about
a particular case except to avoid possible conflict of interest.
 Avoid committing calculated indiscretion – accidental revelation
of secrets obtained in his professional employment.
 Prohibition applies, even if the prospective client did not
thereafter actually engage the lawyer.
Cf: Rule 15.01 – A lawyer in conferring with a prospective client, shall
ascertain as soon as practicable whether the matter would involve a
conflict with another client or his own interest, and if so, shall forthwith
inform the prospective client.
Rule 14.03 – A lawyer may refuse to accept representation of a client if:
a. He is not in position to carry out the work effectively and
competently.
b. He labors under conflict of interest between him and the
prospective client or between a present client and the prospective
client.
CANON 22 – A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR
GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
Rule 22.01 – A lawyer may withdraw his services in any of the following
cases:
a. When the client pursues an illegal or immoral course of conduct
in connection with the matter he is handling;
b. When the client insists that the lawyer pursue conduct violative of
these canons and rules;
c. When his inability to work with co-counsel will not promote the
best interest of the client;
d. When the mental or physical condition of the lawyer renders it
difficult for him to carry out the employment effectively;
e. When the client deliberately fails to pay the fees for the services
or fails to comply with the retainer agreement;
f. When the lawyer is elected or appointed to a public office, and
g. Other similar cases
[A.C. No. 4215. May 21, 2001]
FELICISIMO M. MONTANO, complainant, vs. INTEGRATED BAR of the
PHILIPPINES AND Atty. JUAN S. DEALCA, respondents.
RESOLUTION
KAPUNAN, J.:
In a verified complaint filed before this Court on March 9, 1994, complainant
Felicisimo M. Montano charged Atty. Juan Dealca with misconduct and prays
that he be sternly dealt wit administratively. The complaint[1] is summarized
as follows:
1. On November 14, 1992, the complainant hired the services of Atty. Juan
S. Dealca as his counsel in collaboration with Atty. Ronando L. Gerona in a
case pending before the Court of Appeals docketed as CA-G.R. CV No.
37467 wherein the complainant was the plaintiff-appellant.
2. The parties agreed upon attorneys fees in the amount of P15,000.00, fifty
percent (50%) of which was payable upon acceptance of the case and the
remaining balance upon the termination of the case.Accordingly, complainant
paid respondent the amount of P7,500.00 representing 50% of the attorneys
fee.
PINEDAPCGRNMAN
3. Thereafter, even before the respondent counsel had prepared the
appellants brief and contrary to their agreement that the remaining balance
be payable after the termination of the case, Atty. Dealca demanded an
additional payment from complainant. Complainant obliged by paying the
amount of P4,000.00.
4. Prior to the filing of the appellants brief, respondent counsel again demand
payment of the remaining balance of 3,500.00. When complainant was
unable to do so, respondent lawyer withdrew his appearance as
complainants counsel without his prior knowledge and/or conformity.
Returning the case folder to the complainant, respondent counsel attached a
Note dated February 28, 1993,[2] stating:
28 February 1994
Pepe and Del Montano,
For breaking your promise, since you do not want to fulfill your end of the
bargain, heres your reward:
Henceforth, you lawyer for yourselves. Here are your papers.
Johnny
Complainant claimed that such conduct by respondent counsel exceeded the
ethical standards of the law profession and prays that the latter be sternly
dealt with administratively. Complainant later on filed motions praying for the
imposition of the maximum penalty of disbarment.
After respondent counsel filed his comment on the complaint, the Court in
the Resolution of August 1, 1994, referred the case to the Integrated Bar of
the Philippines (IBP) for investigation, report and recommendation.
The Investigating Commissioner found respondent counsel guilty of
unprofessional conduct and recommended that he be severely reprimanded.
However, in a Resolution[3] by the IBP Board of Governors on July 26, 1997,
it was resolved that the penalty recommended by the Investigating
Commissioner meted to respondent by amended to three (3) months
suspension from the practice of law for having been found guilty of
misconduct, which eroded the public confidence regarding his duty as a
lawyer.
Respondent counsel sought reconsideration of the aforementioned
resolution of the IBP, alleging that the latter misapprehended the facts and
that, in any case, he did not deserve the penalty imposed. The true facts,
according to him, are the following:
1. Complainant is being represented by Atty. Ronando L. Gerona in his case
on appeal;
2. Due to the ailment of Atty. Geronas daughter, he could not prepare and
submit complainants appellants brief on time;
3. Complainant went to the respondent to do just that, i.e., prepare and
submit his appellants brief on time at the agreed fee of P15,000.00, 50%
down and 50% upon its completion;
4. Working overtime, respondent was able to finish the appellants brief ahead
of its deadline, so he advised the complainant about its completion with the
request that the remaining balance of P7,500.00 be paid.Complainant paid
P4,000.00 only, promising to pay the P3,500.00 tomorrow or on later
particular date. Please take note that, at this juncture, there was already a
breach of the agreement on complainants part.
5. When that tomorrow or on a later particular date came, respondent, thru a
messenger, requested the complainant to pay the P3,500.00 as promised
but word was sent that he will again pay tomorrow or on later date. This
promise-non-payment cycle went on repeatedly until the last day of the filing
of the brief. Please take note again that it was not the respondent but the
complainant who sets the date when he will pay, yet fails to pay as promised;
6. Even without being paid completely, respondent, of his own free will and
accord, filed complainants brief on time;
7. After the brief was filed, respondent tried to collect from the complainant
the remaining balance of P3,500.00, but the latter made himself scarce. As
the records would show, such P3,500.00 remains unpaid until now;
8. Sensing that something was amiss, respondent sent the February 28,
1993 note and case folder to the complainant, hoping that the latter would
see personally the former about it to settle the matter between them;
9. However, instead of seeing the respondent, complainant filed this case;
10. Respondent was constrained to file his withdrawal with the Court of
Appeals because of this case to avoid further misunderstanding since he was
the one who signed the appellants brief although Atty. Gerona was his
Page 330
counsel of record. Such withdrawal was accordingly granted by the appellate
court;
xxx xxx xxx.[4]
LEGAL ETHICS
Respondent counsel further averred that complainants refusal to pay the
agreed lawyers fees, measly as it was, was deliberate and in bad faith;
hence, his withdrawal as counsel was just, ethical and proper. Respondent
counsel concluded that not only was the penalty of suspension harsh for his
act of merely trying to collect payment for his services rendered, but it
indirectly would punish his family since he was the sole breadwinner with
children in school and his wife terminally ill with cancer.
In its Resolution No. XIII-97-129 dated October 25, 1997, the IBP denied Atty.
Dealcas motion for reconsideration, to wit:
xxx
RESOLVED TO DENY Atty. Dealcas Motion For Reconsideration of the
Boards Decision in the above-entitled case there being no substantive
reason to reverse the finding therein. Moreover, the motion is improperly laid
the remedy of the respondent is to file the appropriate pleading with the
Supreme Court within fifteen (15) days from receipt of notice of said Decision
pursuant to Sec. 12 [c] of Rule 139-B.[5]
On December 10, 1997, this Court noted the following pleadings filed in the
present complaint,
(a) notice and a copy of Resolution No. XII-97-154 dated July 26, 1997 of the
Integrated Bar of the Philippines amending the recommendation of the
Investigating Commissioner of reprimand to three (3) months suspension of
respondent from the practice of law for having been found guilty of
misconduct which eroded the public confidence regarding his duty as a
lawyer;
(b) complainants motion for praying for the imposition of the maximum
penalty of disbarment;
(c) motion dated September 15, 1997 of respondent for reconsideration of
the aforesaid resolution of July 26, 1997;
(d) comment/opposition of respondent praying that the motion for the
imposition of the maximum penalty be denied;
(e) comment of complainant praying that the penalty of three (3) months
suspension for the practice of law as recommended by the Integrated Bar of
the Philippines pursuant to Resolution No. XII-97-154 be raised to a heavier
penalty;
(f) comment/manifestation/opposition of complainant praying that the
respondent be disbarred; and
(g) rejoinder of respondent praying that this case be dismissed for being
baseless.[6]
and referred the same to the IBP for evaluation and report.
In compliance therewith, on March 28, 1998, the IBP issued Resolution No.
XIII-98-42 referring the above-entitled case to Commissioner Vibar for
evaluation, report and recommendation in view of the Motion for
Reconsideration granted by the Supreme Court.
The Investigating Commissioner, after referring the case, recommended that
his original recommendation of the imposition of the penalty of reprimand be
maintained, noting that respondent counsel had served the IBP well as
President of the Sorsogon Chapter.[7] Accordingly, on February 23, 1999, the
IBP Board of Governors, issued the following resolution:
RESOLUTION NO. XIII-99-48
xxx
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner in 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, the
Motion for Reconsideration be granted and that the penalty of
REPRIMAND earlier recommended by the Investigating Commissioner be
imposed on Atty. Juan S. Dealca.[8]
Complainant asked the IBP to reconsider the foregoing resolution but the
motion was denied.[9]
On April 10, 2000, complainant filed with this Court a petition for review on
certiorari in connection with Administrative Case No. 4215 against the IBP
and respondent counsel averring that the IBP Board of Governors committed
grave abuse of discretion when it overturned its earlier resolution and granted
respondent counsels motion for reconsideration on February 23, 1999. He
claimed that the earlier resolution denying the motion for reconsideration
issued on October 25, 1997 had already become final and executory; hence,
any further action or motion subsequent to such final and executory judgment
shall be null and void.
PINEDAPCGRNMAN
When the Court issued the resolution of December 10, 1997 treating the
several pleadings filed in the present complaint, it should be noted that the
IBP resolution denying respondents motion for reconsideration (Resolution
No. XIII-97-129) dated October 25, 1997, for some reason, had not yet
reached this Court. As of that date, the only IBP resolution attached to the
records of the case was Resolution No. XII-97-54 amending the
administrative sanction from reprimand to three months suspension. Hence,
at the time the pleadings were referred back to the IBP in the same resolution,
the Court was not aware that the IBP had already disposed of the motion for
reconsideration filed by respondent counsel.
Thus, when the IBP was informed of the said Court resolution, it construed
the same as granting Atty. Dealcas motion for reconsideration and as an
order for IBP to conduct a re-evaluation of the case.The IBP assumed that
its resolution of October 25, 1997 was already considered by this Court when
it referred the case back to the IBP. It failed to notice that its resolution
denying the motion for reconsideration was not among those pleadings and
resolution referred back to it.
Hence, on the strength of this Courts resolution which it had inadvertently
misconstrued, the IBP conducted a re-evaluation of the case and came up
with the assailed resolution now sought to be reversed.The Court holds that
the error is not attributable to the IBP. It is regrettable that the procedural
infirmity alleged by complainant actually arose from a mere oversight which
was attributable to neither party.
Going into the merits, we affirm the findings made by the IBP that
complainant engaged the services of respondent lawyer only for the
preparation and submission of the appellants brief and the attorneys fees
was payable upon the completion and submission of the appellants brief and
not upon the termination of the case.
There is sufficient evidence which indicates complainants willingness to pay
the attorneys fees. As agreed upon, complainant paid half of the fees in the
amount of P7,500.00 upon acceptance of the case.And while the remaining
balance was not yet due as it was agreed to be paid only upon the completion
and submission of the brief, complainant nonetheless delivered to
respondent lawyer P4,000.00 as the latter demanded. This, notwithstanding,
Atty. Dealca withdrew his appearance simply because of complainants failure
to pay the remaining balance of P3,500.00, which does not appear to be
deliberate. The situation was aggravated by respondent counsels note to
complainant withdrawing as counsel which was couched in impolite and
insulting language.[10]
Given the above circumstances, was Atty. Dealcas conduct just and proper?
We find Atty. Dealcas conduct unbecoming of a member of the legal
profession. Under Canon 22 of the Code of Professional Responsibility,
lawyer shall withdraw his services only for good cause and upon notice
appropriate in the circumstances. Although he may withdraw his services
when the client deliberately fails to pay the fees for the services,[11] under the
circumstances of the present case, Atty. Dealcas withdrawal was unjustified
as complainant did not deliberately fail to pay him the attorneys fees. In fact,
complainant exerted honest efforts to fulfill his obligation. Respondents
contemptuous conduct does not speak well of a member of the bar
considering that the amount owing to him was only P3,500.00. Rule 20.4 of
Canon 20, mandates that a lawyer shall avoid controversies with clients
concerning his compensation and shall resort to judicial action only to prevent
imposition, injustice or fraud. Sadly, for not so large a sum owed to him by
complainant, respondent lawyer failed to act in accordance with the demands
of the Code.
The Court, however, does not agree with complainants contention that the
maximum penalty of disbarment should be imposed on respondent lawyer.
The power to disbar must be exercised with great caution. Only in a clear
case of misconduct that seriously affects the standing and character of the
lawyer as an officer of the Court and member of the bar will disbarment be
imposed as a penalty. It should never be decreed where a lesser penalty, such
as temporary suspension, would accomplish the end desired.[12] In the
present case, reprimand is deemed sufficient.
WHEREFORE, in view of the foregoing, respondent Atty. Juan S. Dealca is
REPRIMANDED with a warning that repetition of the same act will be dealt
with more severely.
SO ORDERED.
Page 331
LEGAL ETHICS
ELISA V. VENTEREZ, A. C. No. 7421
GENARO DE VERA, Present:
INOCENCIA V. RAMIREZ,
PACITA V. MILLS, YNARES-SANTIAGO, J.,
ANTONINA V. PALMA and Chairperson,
RAMON DE VERA, AUSTRIA-MARTINEZ,
Complainants, CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
- versus -
Promulgated:
ATTY. RODRIGO R.
COSME, October 10, 2007
Respondent.
x --------------------------------------------------------------------------------------------- x
RESOLUTION
CHICO-NAZARIO, J.:
Before Us is a Complaint filed by complainants Eliza V. Venterez, Genaro de
Vera, Inocencia V. Ramirez, Pacita V. Mills, Antonina V. Palma and Ramon
de Vera against respondent Atty. Rodrigo R. Cosme, charging the latter with
Abandonment, Gross Negligence and Dereliction of Duty.
Complainants contracted the legal services of respondent in Civil Case No.
981 entitled, Sps. Daniel and Lolita Oviedo, et al. v. Eliza de Vera, et al., for
Declaration of Ownership with Damages filed before the Municipal Trial Court
(MTC) of Calasiao, Pangasinan. Respondent represented the complainants,
who were defendants in said case, until a Decision thereon was rendered by
the MTC on 25 February 2004. The MTC ruled against the complainants.
Respondent received a copy of the said Decision on 3 March 2004.
Complainants alleged that they directed the respondent to either file a Motion
for Reconsideration or a Notice of Appeal, but respondent failed or refused
to do so. The 15-day period within which to file an appeal or a motion for
reconsideration of the MTC Decision expired on 18 March 2004.
Complainant Elisa V. Venterez was constrained to contract another lawyer to
prepare the Motion for Reconsideration which was filed on 19 March 2004. It
must be stressed that the said motion was signed by complainant Elisa V.
Venterez herself as the said lawyer did not enter his appearance.
On 23 March 2004, the said Motion for Reconsideration was denied[1] by the
MTC. Respondent was not furnished a copy of the denial of the motion per a
Certification[2] issued by Clerk of Court II Zenaida C. de Vera. On 31 March
2004, a Motion for Issuance of Writ of Execution[3] was filed by the plaintiffs
in Civil Case No. 981 but respondent never bothered to file an opposition to
or any comment on the said motion despite receipt thereof. The motion was
eventually granted[4] by the MTC on 23 April 2004. On 28 April 2004, a Writ
of Execution[5] was issued and on 26 April 2004, an Entry of Judgment[6] was
made in the said case.
Two months after respondent received a copy of the Decision, the
respondent filed his Notice of Retirement of Counsel with the MTC on 3 May
2004.
Feeling aggrieved by respondents actuations, complainants filed the instant
administrative complaint against him.[7]
In his Answer,[8] respondent denied the claim of complainants that soon after
the Decision was rendered by the MTC, they (complainants) directed him to
file an appeal or a motion for reconsideration thereof. For his defense,
respondent averred that Salvador Ramirez (the son of one of the
complainants, Inocencia V. Ramirez), informed him that he [was] withdrawing
the case from the respondent because he already engaged another lawyer
to take over the case, so respondent gave the records of the case to
PINEDAPCGRNMAN
him. Respondent explained that after Salvador Ramirez withdrew the case
from the respondent, and engaged another lawyer, the respondent turned
over the records of the case to him and the respondent ceased as the counsel
of the complainants. Respondent further alleged that the said Motion for
Reconsideration was already prepared by another lawyer. He denied being
furnished a copy of the Motion for Reconsideration allegedly prepared and
filed by another lawyer engaged by complainant Elisa V. Venterez and that
he was served with a copy of the denial of the said Motion by the MTC.
Respondent also clarified that the last day of the 15-day period for the
perfection of the appeal is 19 March 2004 since a copy of the decision was
served on the respondent on 4 March 2004. Finally, respondent argued that
when the respondent was served a copy of the Motion for Writ of Execution,
he immediately notified Salvador Ramirez about said Motion but Salvador
Ramirez came to see the respondent only on 3 May 2005, when the
respondent asked him to sign a Notice of Retirement of Counsel signed by
Salvador Ramirez which respondent immediately filed in court.
Pursuant to the complaint, a hearing was conducted by the Commission on
Bar Discipline of the Integrated Bar of the Philippines (IBP) at the
IBP Building, OrtigasCenter, Pasig City, on 15 February 2006.
On 11 April 2006, Investigating Commissioner Dennis A. B. Funa submitted
his Report and Recommendation,[9] finding respondent liable for gross
negligence and recommending the imposition upon him of the penalty of
three months suspension, to wit:
PREMISES CONSIDERED, it is submitted that Respondent is GUILTY of
Gross Negligence and should be given the penalty of THREE (3) MONTHS
SUSPENSION.
Thereafter, the IBP Board of Governors passed Resolution[10] No. XVII-2006-
457 dated 8 September 2006, approving and adopting the recommendation
of the Investigating Commissioner, thus:
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
as Annex A; and, finding the recommendation fully supported by the evidence
on record and the applicable laws and rules, and considering that
Respondent is guilty of gross negligence, Atty. Rodrigo Cosme is hereby
SUSPENDED from the practice of law for three (3) months.[11]
We sustain the findings and recommendation of the IBP Board of Governors.
The core issue is whether the respondent committed culpable negligence in
handling complainants case, as would warrant disciplinary action.
No lawyer is obliged to advocate for every person who may wish to become
his client, but once he agrees to take up the cause of a client, the lawyer
owes fidelity to such cause and must be mindful of the trust and confidence
reposed in him.[12] Among the fundamental rules of ethics is the principle that
an attorney who undertakes an action impliedly stipulates to carry it to its
termination, that is, until the case becomes final and executory. A lawyer is
not at liberty to abandon his client and withdraw his services without
reasonable cause and only upon notice appropriate in the circumstances.[13]
Any dereliction of duty by a counsel affects the client.[14] This means that
his client is entitled to the benefit of any and every remedy and defense that
is authorized by the law and he may expect his lawyer to assert every such
remedy or defense.[15]
The Decision in Civil Case No. 981 was rendered by the MTC of Calasaio,
Pangasinan, on 25 February 2004. Respondent admitted[16] that he was
served a copy of the said Decision on 4 March 2004. After having received a
copy of the MTC Decision, respondent did not bother to file a Motion for
Reconsideration or a notice of appeal with the proper courts. Thus,
Page 332
complainants were compelled to engage the services of a new counsel to file
a Motion for Reconsideration with the MTC who did not, however, enter his
appearance as new counsel. It bears stressing that during this time,
LEGAL ETHICS
respondent had not yet filed any notice of withdrawal as counsel for the
complainants in Civil Case No. 981.Respondent only formally withdrew as
counsel for complainant in Civil Case No. 981 when he filed with the MTC his
Notice[17] of Retirement as Counsel on 5 May 2004, on the ground that "he
was also retired as Counsel for the [complainants] two days after he received
copy of the decision rendered in this case when SALVADOR RAMIREZ, a
representative of the [complainants], withdrew all the records of the case from
[respondent] to be given to his new counsel.
We cannot accept respondents defense that he had already withdrawn from
the case two days after his receipt of the MTC Decision and that he had
allegedly communicated this withdrawal to Salvador Ramirez, son of one of
the herein complainants, Inocencia Ramirez. It is an apparent attempt on the
part of respondent to wash his hands of any liability for failing to pursue any
of the available remedies to complainants from the adverse MTC Decision.
The rule in this jurisdiction is that a client has the absolute right to terminate
the attorney-client relation at any time with or without cause.[18] The right of
an attorney towithdraw or terminate the relation other than for sufficient cause
is, however, considerably restricted.[19] Among the fundamental rules of
ethics is the principle that an attorney who undertakes to conduct an action
impliedly stipulates to carry it to its conclusion.[20] He is not at liberty to
abandon it without reasonable cause.[21] A lawyer's right towithdraw from a
case before its final adjudication arises only from the client's written consent
or from a good cause.[22]
Section 26, Rule 138 of the Revised Rules of Court provides:
Sec. 26. Change of attorneys -- An attorney may retire at any time from any
action or special proceeding, by the written consent of his client filed in court.
He may also retire at any time from an action or special proceeding, without
the consent of his client, should the court, on notice to the client and attorney,
and on hearing, determine that he ought to be allowed to retire. In case of
substitution, the name of the attorney newly employed shall be entered on
the docket of the court in place of the former one, and written notice of the
change shall be given to the adverse party.
A lawyer may retire at any time from any action or special proceeding with
the written consent of his client filed in court and with a copy thereof served
upon the adverse party. Should the client refuse to give his consent, the
lawyer must file an application with the court. The court, on notice to the client
and adverse party, shall determine whether the lawyer ought to be allowed
to retire. The application for withdrawal must be based on a good cause.[23]
What constitute good cause for the withdrawal of services by the counsel are
identified under Rule 22.01, Canon 22 of the Code of Professional
Responsibility, which provides:
CANON 22 -- A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR
GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
Rule 22.01-- A lawyer may WITHDRAW his services in any of the following
cases:
a) When the client pursues an illegal or immoral course of conduct in
connection with the matter he is handling;
b) When the client insists that the lawyer pursue conduct violative of these
canons and rules;
c) When his inability to work with co-counsel will not promote the best interest
of the client;
d) When the mental or physical condition of the lawyer renders it difficult for
him to carry out the employment effectively;
e) When the client deliberately fails to pay the fees for the services or fails to
comply with the retainer agreement;
PINEDAPCGRNMAN
f) When the lawyer is elected or appointed to public office; and
g) Other similar cases.
The instant case does not fall under any of the grounds aforementioned.
Neither can the circumstances of this case be considered analogous to the
grounds thus explicitly enumerated. Contrary to respondents contention, his
professional relations as a lawyer with his clients are not terminated by the
simple turnover of the records of the case to his clients. Respondents
defense completely crumbles in face of the fact that Salvador Ramirez is not
even a party in Civil Case No. 981 and, hence, had no authority to withdraw
the records of the said case from respondent or to terminate the latters
services.
Assuming, nevertheless, that respondent was justified in withdrawing his
services, he, however, cannot just do so and leave complainants in the cold,
unprotected. The lawyer has no right to presume that his petition for
withdrawal will be granted by the court.[24] Until his withdrawal shall have been
approved, the lawyer remains counsel of record who is expected by his clients,
as well as by the court, to do what the interests of his clients require.[25] He
must still appear before the court to protect the interest of his clients by
availing himself of the proper remedy, for the attorney-client relations are not
terminated formally until there is a withdrawal of record.
Without a proper revocation of his authority and withdrawal as counsel,
respondent remains counsel of record for the complainants in Civil Case No.
981; and whether he has a valid cause to withdraw from the case, he cannot
immediately do so and leave his clients without representation. An attorney
may only retire from the case either by a written consent of his client or by
permission of the court after due notice and hearing, in which event, the
attorney should see to it that the name of the new attorney is recorded in the
case.[26] Respondent did not comply with these obligations. Therefore, he
remains the counsel of record for the complainants in Civil Case No. 981 with
the duty to protect complainants interest. Had he made the necessary
inquiries as to the status of the case, he would have known that he was still
the counsel of record as no entry of appearance was ever made by another
counsel. It would have been easily discernible on his part that there was no
change in his status as complainants lawyer. As of that time, their client-
lawyer relationship was still subsisting. Therefore, he would have known that
the Motion for Reconsideration was denied; and a writ of execution had been
issued under the circumstances.
All told, we rule and so hold that on account of respondents failure to protect
the interest of complainants, respondent indeed violated Rule 18.03, Canon
18 of the Code of Professional Responsibility, which states that a lawyer shall
not neglect a legal matter entrusted to him, and his negligence in connection
therewith shall render him liable.Respondent is reminded that the practice of
law is a special privilege bestowed only upon those who are competent
intellectually, academically and morally. This Court has been exacting in its
expectations for the members of the Bar to always uphold the integrity and
dignity of the legal profession and refrain from any act or omission which
might lessen the trust and confidence of the public.
The determination of the appropriate penalty to be imposed on an errant
lawyer involves the exercise of sound judicial discretion based on the facts
of the case.[27] In cases of similar nature, the penalty imposed by the Court
consisted of reprimand,[28] fine of five hundred pesos with warning,[29]
suspension of three months,[30] six months[31] and even disbarment[32] in an
aggravated case.
The facts of the case show that respondent failed to live up to his duties as a
lawyer pursuant to the Code of Professional Responsibility. We conclude that
a 3-month suspension from the practice of law is a just penalty under the
circumstances.
Page 333
WHEREFORE, the resolution of the IBP Board of Governors approving and
adopting the report and recommendation of the Investigating Commissioner
is herebyAFFIRMED. Accordingly, ATTY. RODRIGO R. COSME is
LEGAL ETHICS
hereby SUSPENDED from the practice of law for a period of THREE (3)
MONTHS, with a stern warning that a repetition of the same or similar
wrongdoing will be dealt with more severely.
Let a copy of this decision be attached to respondents personal record with
the Office of the Bar Confidant and copies be furnished to all chapters of the
Integrated Bar of the Philippines and to all courts of the land.
SO ORDERED.
[A.C. No. 5486. August 15, 2001]
In Re: Atty. David Briones
DECISION
PUNO, J.:
This matter arose from the continued failure of Atty. David P. Briones,
counsel for accused-appellant in G.R. No. 130965 (People of the Philippines
vs. Restituto Cabacan) pending before the Second Division of this Court, to
file the required appellant's brief.
The notice to file appellant's brief was mailed to Atty. Briones on July 30,
1998. The registry return card shows that it was received by the addressee
on August 6, 1998. Counsel was given thirty (30) days from receipt of the
notice within which to file the brief. Atty. Briones failed to file the required brief
within the period which expired on September 5, 1998.
On April 28, 1999, the Court ordered Atty. Briones to show cause why he
should not be disciplinarily dealt with or held in contempt for such failure and
to submit the required brief within ten (10) days from notice. Atty. Briones
failed to comply with the Court's directive within the specified period. Copy of
said resolution was returned to the Court unserved without specific reason.
On August 9, 1999, the Court issued a resolution stating among others that
the resolution of April 28, 1999 is considered served on Atty. Briones by
substituted service pursuant to Section 8, Rule 13 of the 1997 Rules of Civil
Procedure. The Court also referred the matter of the repeated failure of Atty.
Briones to file appellant's brief to the Integrated Bar of the Philippines (IBP)
for evaluation, report and recommendation. The administrative case was
docketed as CBD Case No. 00-690.
In a letter dated September 27, 1999, IBP Commissioner Victoria Gonzales-
De Los Reyes informed Atty. Briones of the Court's referral of the matter to
the IBP and required him to file his Comment within five (5) days from receipt
of the letter. The registry return card shows that the letter was received by
the agent of Atty. Briones on October 7, 1999. Atty. Briones, however, did
not file any Comment.
Commissioner De Los Reyes submitted her Report dated January 25, 2000
with the following observation and recommendation:
Unfortunately, despite the lapse of the required period of time within which to
submit his Comment, respondent failed to do so despite due notice as
evidenced by the registry return card.
As can be gleaned from the files, G.R. No. 130965 has remained pending in
view of the negligence of Atty. Briones to file the required appellant's brief. It
is therefore evident that respondent violated Rule 18.03 of Canon 18 of the
Code of Professional Responsibility to wit:
A lawyer shall not neglect a legal matter entrusted to him, and his negligence
in connection therewith shall render him liable.
Likewise, respondent's repeated failure to file the appellant's brief and his
Comment to the Commission in connection with the Supreme Court
Resolution dated August 9, 1999 are apparently tantamount to wilfull
disobedience to the lawful orders of the Honorable Supreme Court which
could not be tolerated, and respondent should not be allowed to go scot-free.
IN VIEW OF THE FOREGOING, the undersigned Commissioner finds that
Atty. David P. Briones had the propensity of defying lawful orders, and
recommends that for his violation of Rule 18.03 of the Canon 18 of the Code
of Professional Responsibility, he be SUSPENDED from the practice of law
profession for a period of six (6) months.
On March 18, 2000, the Board of Governors of the IBP passed Resolution
No. XIV-2000-56 stating:
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,
Respondent is SUSPENDED/or BARRED from the practice of law for six (6)
PINEDAPCGRNMAN
months for violation of Rule 18.03 of the Canon 18 of the Code of
Professional Responsibility.
On May 26, 2000, Atty. Briones filed with the IBP a Motion for
Reconsideration/Reinvestigation. The motion was grounded on the alleged
denial of due process in the course of the investigation. Atty. Briones claimed
that he filed a Comment on the administrative case but the same was not
considered by the investigating commissioner. Neither did the IBP conduct a
formal investigation.
On July 29, 2000, the Board of Governors of the IBP issued Resolution No.
XIV-2000-439 denying the motion for reconsideration, thus:
RESOLVED to DENY Respondents Motion for Reconsideration of the
Boards Decision in the above-entitled case there being no substantive
reason to reverse the finding therein, moreover, the pleading is improper as
the remedy of the respondent is to file the appropriate Motion with the
Supreme Court within fifteen (15) days from receipt of notice of said Decision
pursuant to Section 12 (c) of Rule 139-B.
On October 5, 2000, Atty. Briones filed with the Court a Manifestation praying
that his Comment submitted to the IBP on October 13, 2000 be considered
by the Court. He attached a copy of the Comment to the Manifestation.
Atty. Briones explained both in his Manifestation and his Comment that he
failed to file an appellants brief in G.R. No. 130965 because he never
received a copy of the resolution requiring him to file said brief. If ever a copy
was received by his secretary, the latter was not able to give it to him because
he had already ceased practicing law. He further explained that the case was
assigned to him as member of the IBP Tarlac Legal Aid Office. After filing the
Notice of Appeal, he resigned from the Legal Aid Office because of his failing
health. Hence, he presumed that the relatives of the accused would engage
the services of a new counsel, or would go directly to the IBP Legal Aid Office.
He admitted that he forgot to notify the Legal Aid Office about the case.
We adopt the recommendation of the IBP.
The failure of the counsel to submit the required brief within the reglementary
period is an offense that entails disciplinary action.[1] The pernicious effect of
Atty. Briones omission cannot be gainsaid.His failure to file an appellants
brief in G.R. No. 130965 has caused the appeal to remain inactive for more
than a year, to the prejudice of his client, the accused himself, who continues
to languish in jail pending the resolution of his case. The accused in a criminal
case has the right to a swift and just disposition of his case. Lawyers are
obliged to protect, not defeat, such right.
We have considered the explanation of Atty. Briones for his failure to comply
with the Courts directive and we find the same unsatisfactory. Such omission
can be attributed to pure negligence on the part of Atty. Briones which we
deem inexcusable. He cannot deny that his office received a copy of the
Courts resolution ordering him to submit an appellants brief. The registry
return card shows that the notice to file appellants brief was received by the
addressee on August 6, 1998. To exonerate himself from liability, Atty.
Briones claims that his secretary did not forward to him the mail matters
received in his office. He, however, cannot pass the blame to his secretary
as he is personally responsible for his own communications. As a member of
the Bar, he is expected to exercise due diligence in the practice of his
profession. He should not have passively waited for his secretary to inform
him about the letters and communications received in his law office,
especially those coming from the courts. He should have taken the initiative
to check with her if there are important matters requiring his action or
attention. Neither is the cessation of his law practice an excuse for his failure
to file the required brief. Even if it were true that Atty. Briones has stopped
practicing law, he still could not ignore the directives coming from the Court. It
does not appear from the records of G.R. No. 130965 that Atty. Briones has
withdrawn his appearance. Unless he has withdrawn his appearance in the
case, the Court would still consider him as counsel for the accused-appellant
and he is expected to comply with all its orders and directives.
It should be stressed that every case a lawyer accepts deserves his full
attention, diligence, skill and competence, regardless of its importance and
whether he accepts it for a fee or for free.[2] A lawyers fidelity to the cause of
his client requires him to be ever mindful of the responsibilities that should
be expected of him. He is mandated to exert his best efforts to protect within
the bounds of the law the interest of his client. The Code of Professional
Page 334
Responsibility dictates that a lawyer shall serve his client with competence
and diligence and he should never neglect a legal matter entrusted to him.[3]
LEGAL ETHICS PINEDAPCGRNMAN
IN VIEW WHEREOF, Atty. David P. Briones is SUSPENDED from the 1. client conducts himself in a manner which tends to
practice of law for six (6) months effective immediately. Let a copy of this degrade his attorney;
Decision be furnished to the Office of the Bar Confidant, the Integrated Bar 2. client refuses to extend cooperation;
of the Philippines, and to all the courts. 3. client stops having contact with him.
SO ORDERED.  The right of a client to terminate a lawyer is absolute. Such
termination may be with or without cause.
LIM JR VS ATTY VILLAROSA (SUPRA)
[G.R. No. 134854. January 18, 2000]
Rule 22.02 – A lawyer who withdraws or is discharged shall subject to FELIZARDO S. OBANDO and the ESTATES of JOSE FIGUERAS and
a retaining lien, immediately turn over all papers and property to which DOA ALEGRIA STREBEL VDA. DE FIGUERAS, petitioners, vs.
the client is entitled, and shall cooperate with his successor in the EDUARDO F. FIGUERAS andAMIGO REALTY CORPORATION as
orderly transfer of the matter, including all information necessary for represented by ANTONIO A. KAW, respondents.
the proper handling of the matter. DECISION
PANGANIBAN, J.:
Retaining Lien Charging Lien In resolving this appeal, the Court invokes the following principles: (1) a
1. Nature Passive Lien: It Active Lien: It can lawyers standing in a case remains, until a substitute takes over pursuant to
cannot be actively be enforced by Section 26, Rule 138 of the Rules of Court; (2) a trial court may act upon a
enforced. It is a execution. It is a motion to dismiss at any time a ground therefor becomes available, even
general lien special lien. after a responsive pleading to the complaint has already been filed; (3) a civil
2. Basis Lawful possession Securing of a case initiated by an estate administrator may be dismissed upon a showing
of papers, favorable money that the said administrators appointment as such has been revoked by the
documents, property judgment for the probate court; and (4) the dismissal of an action may be made after the
belonging to client. client. ground therefor becomes known, even if the trial court has refused to do so
3. Coverage Covers only papers, Covers all earlier when that ground was not yet available.
documents and judgments for the The Case
property in the lawful payment of money Before us is a Petition for Review under Rule 45 of the Rules of Court,
possession of the and executions seeking to annul the July 30, 1998 Decision of the Court of Appeals[1] in CA-
attorney by reason of issued in pursuance GR SP No. 47594, which affirmed the dismissal, without prejudice, of
his professional of such judgments. Petitioner Felizardo Obandos action for annulment of contract and
employment reconveyance earlier ordered by the Regional Trial Court (RTC) of Quezon
4. When Lien takes As soon as the As soon as the claim City,[2] Branch 218. Mis spped
effect attorney gets for attorney’s fees The Facts
possession of the had been entered In 1964, Alegria Strebel Figueras, together with her stepsons, Eduardo and
papers documents into the records of Francisco, filed a Petition for settlement of the intestate estate of her
or property the case deceased husband Jose Figueras.[3] While settlement of the estate was
5. Notice Client need not be Client and adverse pending, she died and Eduardo assumed administration of the joint estates
notified to make it party must be of Don Jose and Doa Alegria. Hardly had the proceedings in both intestacies
effective notified to make it begun when Eduardo was served a Petition for Probate of what purported to
effective be Doa Alegrias Last Will and Testament, filed by Felizardo S. Obando
6. Applicability May be exercised Generally, it is (herein petitioner), a nephew of Doa Alegria.[4]
before judgment or exercisable only The alleged Will bequeathed to Petitioner Obando and several other
execution or when the attorney members of the Obando clan properties left by the Figueras couple, including
regardless thereof. had already secured two parcels of land in Gilmore Avenue, New Manila, Quezon City, covered
a favorable by TCT Nos. 13741 and 17679.[5] When the probate case was consolidated
judgment for his with the intestate proceedings, Petitioner Obando was appointed as
client Eduardos co-administrator of the joint estates.[6]
As Eduardo insisted that the alleged Will was a forgery, the document was
 In withdrawal as counsel for a client, an attorney may only
submitted to the National Bureau of Investigation (NBI) for examination and
retire from a case either by written consent of his client or
comparison of Doa Alegrias alleged signature therein with samples which
by permission of the court after due notice and hearing, in
both parties accepted as authentic. The NBI found that the questioned and
which event the attorney should see to it that the name of
the standard signatures were not made by the same person.[7] This led to the
the new attorney is recorded in the case.
indictment and the conviction of Petitioner Obando in Criminal Case 90-
 An attorney who could not get the written consent of his 85819[8] for estafa through falsification of a public document.
client must make an application to the court, for the relation On February 20, 1990, the probate court denied Eduardos Motion for
does not terminate formally until there is a withdrawal of authority to sell the aforementioned two parcels of land in New Manila.[9]
record. Counsel has no right to presume that the court Despite such denial, Eduardo sold the lots to Amigo Realty Corporation on
would grand his withdrawal and therefore must still appear the strength of an Order issued by the probate court on May 15, 1991. New
on the date of hearing. titles were issued for these lots in the name of Amigo Realty.[10]
 Requirements for the Substitution of Counsel in a Case: On June 4, 1992, Petitioner Obando, in his capacity as co-administrator and
1. written application universal heir of Doa Alegria, filed a Complaint against Eduardo and Amigo
2. written consent of client Realty (collectively referred to as the respondents) for the nullification of the
3. written consent of attorney to be substituted sale. The proceedings were docketed as Civil Case No. Q-92-12384 and
4. if the consent of the attorney to be substituted cannot raffled to the Regional Trial Court of Quezon City, Branch 79.
be obtained, there must be at least a proof of notice However, in Special Proceeding Nos. 61567 and 123948, the probate court,
that the motion for substitution has been served upon in its Order dated December 17, 1997, removed Petitioner Obando from his
him, in the manner prescribed by the rules. office as co-administrator of the joint estate of the Figueras spouses.[11]
Page 335

 A lawyer cannot recover compensation from one who did Consequently, in the civil case, respondents filed a Joint Motion to Dismiss
not employ or authorize his employment, however valuable dated January 27, 1998, after Obando had rested his case. The respondents
the results of his services may have been to such person. In built their evidence around the loss of his legal standing to
similar cases, no compensation when:
LEGAL ETHICS
pursue the case.[12] In its Order dated February 11, 1993, the trial court
granted the Motion and dismissed the civil case without prejudice.[13]
Jo spped
Petitioner Obando filed a Motion for Reconsideration to no avail. As earlier
stated, the Court of Appeals likewise dismissed his Petition for Certiorari and
Mandamus and affirmed the dismissal Order of the RTC.[14]
Ruling of the Court of Appeals
The Court of Appeals rejected the contention of Obando that he did not lose
his legal personality to prosecute the civil case since there was no categorical
statement that the purported will was a forgery and its probate was still
pending.
The CA affirmed the dismissal of the action for reconveyance because the
probate courts Order dated February 5, 1998 "alluded" to the fact that the
alleged Will was a forgery. That the probate of the alleged Will had not yet
been decided on the merits did not change the fact that the probate court had
removed Petitioner Obando as co-administrator. The dismissal of the civil
case was without prejudice, because the trial judge anticipated that Obando
could regain co-administration of the estates on appeal.
Hence, this Petition.[15]
Assignment of Errors
In their Memorandum, petitioners raise the following issues:[16]
"A........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
IN SANCTIONING THE TRIAL COURTS ALLOWANCE OF
RESPONDENTS JOINT MOTION TO DISMISS, DESPITE THE FACT THAT
ONE OF THE LAWYER-MOVANTS THEREIN WAS NO LONGER THE
COUNSEL OF RECORD FOR RESPONDENT FIGUERAS AT THE TIME
THE MOTION WAS FILED.
"B........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
IN SANCTIONING THE TRIAL COURTS RADICAL DEPARTURE FROM
THE LAW WHEN IT GRANTED A MOTION TO DISMISS ON LACK OF
CAPACITY TO SUE/LEGAL STANDING AT THE TIME WHEN THE
[PETITIONERS] HAVE ALREADY RESTED THEIR CASE AND THE
[RESPONDENTS] HAVE BEGUN PRESENTATION OF THEIR EVIDENCE.
"C........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
WHEN IT SANCTIONED THE TRIAL COURTS DISMISSAL OF THE CASE
BASED ON ORDERS OF OTHER COURTS THAT HAVE NOT YET
ATTAINED FINALITY. Spped jo
"D........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
WHEN IT UPHELD THE TRIAL COURTS WHIMSICAL AND CAPRICIOUS
DEPARTURE FROM ITS PREVIOUS RULINGS DENYING
RESPONDENTS MOTION TO DISMISS AND MOTION TO SUSPEND
PROCEEDINGS.
"E........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
WHEN IT RENDERED ITS 30 JULY 1998 DECISION IN CA-G.R. 47594
UPHOLDING THE TRIAL COURTS ORDERS DATED 11 FEBRUARY 1998
AND 12 MARCH 1998."
Simply stated, the following issues are raised by the petitioners: (1) whether
the trial court could act on a motion filed by a lawyer who was allegedly no
longer Eduardos counsel of record; (2) whether a motion to dismiss filed after
the responsive pleadings were already made can still be granted; (3) whether
the conviction of Petitioner Obando for estafa through falsification and the
revocation of his appointment as administrator, both of which are on appeal,
constitute sufficient grounds to dismiss the civil case; and (4) whether there
was a conflict between the Order dismissing the civil case and the previous
actions of the trial court.
The Courts Ruling
The Petition is devoid of merit.
First Issue:
Counsel of Record
Petitioners claim that when Atty. Joaquin Yuseco filed the Motion to Dismiss,
he no longer represented the respondents, as shown by Eduardos
Manifestation and Motion dated January 8, 1998, dispensing with said
counsels services in the proceedings in view of a Compromise Agreement
with Petitioner Obando.[17]
We disagree. Representation continues until the court dispenses with the
services of counsel in accordance with Section 26, Rule 138 of the Rules of
Court.[18] Counsel may be validly substituted only if the following requisites
are complied with: (1) new counsel files a written application for substitution;
(2) the clients written consent is obtained; and (3) the written consent of the
lawyer to be substituted is secured, if it can still be; if the written consent can
PINEDAPCGRNMAN
no longer be obtained, then the application for substitution must carry proof
that notice of the motion has been served on the attorney to be substituted
in the manner required by the Rules.[19] Miso
In this case, we are convinced that Eduardo did not dismiss Attorney Yuseco.
In fact, the former manifested that he had been tricked by Petitioner Obando
into signing the aforesaid Manifestation and Motion and Compromise
Agreement. Besides, the filing of the Motion to Dismiss was not prejudicial
but beneficial to the said respondent; hence, he had no reason to complain.
At the discretion of the court, an attorney who has already been dismissed
by the client is allowed to intervene in a case in order to protect the clients
rights. In the present case, had there been any irregularity, it should have
been raised by the respondents, not the petitioners.
Second Issue:
Timeliness of the Motion to Dismiss
The Rules provide that a motion to dismiss may be submitted only before the
filing of a responsive pleading.[20] Thus, petitioners complain that it was
already too late for Respondent Eduardo Figueras to file a Motion to Dismiss
after Obando had finished presenting his evidence.
This is not so. The period to file a motion to dismiss depends upon the
circumstances of the case. Section 1 of Rule 16 of the Rules of Court requires
that, in general, a motion to dismiss should be filed within the reglementary
period for filing a responsive pleading. Thus, a motion to dismiss alleging
improper venue cannot be entertained unless made within that period.[21]
Nex old
However, even after an answer has been filed, the Court has allowed a
defendant to file a motion to dismiss on the following grounds: (1) lack of
jurisdiction,[22] (2) litis pendentia,[23] (3) lack of cause of action,[24] and (4)
discovery during trial of evidence that would constitute a ground for
dismissal.[25] Except for lack of cause of action or lack of jurisdiction, the
grounds under Section 1 of Rule 16 may be waived. If a particular ground for
dismissal is not raised or if no motion to dismiss is filed at all within the
reglementary period, it is generally considered waived under Section 1, Rule
9 of the Rules.[26] Manikx
Applying this principle to the case at bar, the respondents did not waive their
right to move for the dismissal of the civil case based on Petitioner Obandos
lack of legal capacity. It must be pointed out that it was only after he had been
convicted of estafa through falsification that the probate court divested him
of his representation of the Figueras estates. It was only then that this ground
became available to the respondents. Hence, it could not be said that they
waived it by raising it in a Motion to Dismiss filed after their Answer was
submitted. Verily, if the plaintiff loses his capacity to sue during the pendency
of the case, as in the present controversy, the defendant should be allowed
to file a motion to dismiss, even after the lapse of the reglementary period for
filing a responsive pleading.
Third Issue:
Removal from Administration
Petitioners aver that it was premature for the trial court to dismiss the civil
case because Obandos conviction for estafa through falsification was still on
appeal.
We disagree. This argument has no bearing at all on the dismissal of the civil
case. Petitioner Obando derived his power to represent the estate of the
deceased couple from his appointment as co-administrator.[27] When the
probate court removed him from office, he lost that authority. Since he lacked
the legal capacity to sue on behalf of the Figueras estates, he could not
continue prosecuting the civil case.[28] Thus the trial court properly granted
the Motion to Dismiss on this ground.[29] Whether a final conviction for a crime
involving moral turpitude is necessary to remove him from his administration
is not a proper issue in this Petition. He should raise the matter in his appeal
of the Decision removing him from administration of the Figueras estates.
Maniks
The fact that the conviction of Obando and his removal from administration
are on appeal only means that his legal standing could be restored; thus, the
civil case was correctly dismissed without prejudice. If his conviction is
reversed and his appointment restored by the probate court, the case may
continue without being barred by res judicata. The lower courts Decision
showed that it was careful in its action. On the other hand, Obando has yet
to show that he has regained administration of the Figueras estates.
Page 336
Noteworthy also is the fact that his removal from office was predicated not
only on his conviction for a crime, but also on his failure to render an
accounting of the rentals of a property leased to the Community of Learners.
LEGAL ETHICS PINEDAPCGRNMAN
Fourth Issue:
No Conflicting Rulings
Respondent Eduardo Figueras earlier Motion to Dismiss was denied in the
trial courts March 4, 1993 Order which reads:
"x x x [I]t is pertinent to note that the criminal case of Estafa through
Falsification of Public Document filed against [petitioner] and the Petition to
Remove him as co-administrator are still pending determination. Thus,
suffice it to state that while herein [petitioner] remains as the co-administrator
of the estates of the deceased Figueras the Court will continue to recognize
his right to institute the instant case in his capacity as judicial administrator,
unless he be removed as such by the probate Court pursuant to Rule 82 of
the Revised Rules of Court."[30]
Thus, petitioners allege that the trial court whimsically and capriciously
departed from its previous rulings when, in its Resolution dated February 11,
1993, it granted Eduardos later Motion to Dismiss.[31]
We cannot see any conflict between these trial court rulings. Obviously, they
were based on different grounds. The first Motion to Dismiss was denied
because, at the time, Petitioner Obando still had legal capacity to sue as co-
administrator of the Figueras estates. On the other hand, the second Motion
was granted because the probate court had already removed him from his
office as co-administrator. The change in his legal capacity accounts for the
difference in the adjudication of the trial court. We see no reversible error in
the appellate courts affirmance of the trial court.
WHEREFORE, the Petition is hereby DENIED and the assailed Resolution
AFFIRMED. Costs against petitioners.
SO ORDERED.

Page 337
LEGAL ETHICS
NEW CODE OF JUDICIAL CONDUCT
Code of Judicial Conduct
Preamble
An honorable, competent and independent judiciary exists to administer
justice and thus promote the unity of the country, the stability of government,
and the well being of the people.
CANON 1- (INDEPENDENCE) Judicial independence is a pre-requisite
to the rule of law and a fundamental guarantee of a fair trial. A judge
shall therefore uphold and exemplify judicial independence in both its
individual and institutional aspects.
A.M. No. SB-14-21-J September 23, 2014
[Formerly A.M. No. 13-10-06-SB]
RE: ALLEGATIONS MADE UNDER OATH AT THE SENATE BLUE
RIBBON COMMITTEE HEARING HELD ON SEPTEMBER 26, 2013
AGAINST ASSOCIATE JUSTICE GREGORY S. ONG, SANDIGANBAYAN
DECISION
PER CURIAM:
The character of every act depends upon the circumstances in which it is
done.
- Justice Oliver Wendell Holmes
This administrative complaint was filed by the Court En Banc after
investigation into certain allegations that surfaced during the Senate Blue
Ribbon Committee Hearing indicated prima facie violations of the Code of
Judicial Conduct by an Associate Justice of the Sandiganbayan. The
investigation was conducted motu proprio pursuant to the Court's power of
administrative supervision over members of the Judiciary.1
Factual Antecedents
In the middle of 2013, the local media ran an expose involving billions of
government funds channeled through bogus foundations. Dubbed as the
"pork barrel scam," as the money was sourced from the Priority Development
Assistance Fund allotted to members of the House of Representatives and
Senate, the controversy spawned massive protest actions all over the
country. In the course of the investigation conducted by the Senate
Committee on Accountability of Public Officers and Investigations (Blue
Ribbon Committee), the names of certain government officials and other
individuals were mentioned by "whistle-blowers" who are former employees
of the alleged mastermind, Janet Lim-Napoles (Mrs. Napoles), wife of an ex-
military officer. These personalities identified by the whistle-blowers allegedly
transacted with or attended Mrs. Napoles' parties and events, among whom
is incumbent Sandiganbayan Associate Justice Gregory S. Ong, herein
respondent.
Benhur Luy (Luy), a cousin of Mrs. Napoles who had worked for several years
with the Napoleses, filed illegal detention charges against Mrs. Napoles who
accused him of double-dealing. When Luy went public with his story about
Mrs. Napoles' anomalous transactions and before the warrant of arrest was
issued by the court, she reportedly tried to reach out to the other whistle-
blowers for them not to testify against her but instead point to Luy as the one
receiving and distributing the money.
Marina Sula (Sula) executed a Sworn Statement2 before the National Bureau
of Investigation (NBI) on August 29, 2013, part of which reads:
32. In the sixteen (16) years that I worked with Ms. Napoles, I witnessed
several personalities visit our offices and join us as our special guests during
our parties and other special occasions. 33. These personalities who would
either visit our office or join our events and affairs are: Senator Franklin
Drilon, Senator Jinggoy Estrada and family, Senator Bong Revilla, Lani
Mercado-Revilla, Bryan Revilla, Secretary Rene Villa, Congressman Pichay
and Wife, Congressman Plaza, Congressman Ducut, DAR Director Theresita
Panlilio, Catherine Mae Canlas Santos, Pauline Labayen, Jen Corpuz (Staff
of Senator Sotto), Mayor Rene Maglanque, Atty. Dequina, Justice Gregory
Ong, x x x.
34. Before the warrant of arrest was issued against Ms. Napoles, she told us
that that case could take four to five years to clear. She said, "Antayin niyo
munang ma-clear pangalan ko para makakilos ako at matulungan ko kayo".
PINEDAPCGRNMAN
Sinabi niya na meron na siyang kausap sa Ombudsman at sa
Sandiganbayan.
35. On 28 August 2013 while me and my companions were at the NBI, Janet
Lim Napoles called me. She was crying and ask[i]ng me not to turn my back
on her, that we should stay together. She said "kahit maubos lahat ng pera
ko, susuportahan ko kayo. Hintay[i]n nyo kasi lalabas na ang TRO ko."
xxxx
38. Attorney Tan instructed us to implicate Benhur in case we were asked by
the NBI. He said "wala naman ipinakita sa inyong masama si Madam (Janet
Lim Napoles). Siguro wala naman kayong sama ng loob kay madam, kaya
nga idiin ninyo si Benhur na siya ang nag-utos at saka sa kanya ninyo
ibinibigay ang pera."3(Emphasis supplied.)
The following day, the social news network Rappler published an article by
Aries Rufo entitled "Exclusive: Napoles Parties with Anti-Graft Court Justice"
showing a photograph of Senator Jinggoy Estrada (Senator Estrada), one of
the main public figures involved in the pork barrel scam, together with Mrs.
Napoles and respondent. The reporter had interviewed respondent who
quickly denied knowing Mrs. Napoles and recalled that the photograph was
probably taken in one of the parties frequently hosted by Senator Estrada
who is his longtime friend. Respondent also supposedly admitted that given
the ongoing pork barrel controversy, the picture gains a different context;
nevertheless, he insisted that he has untainted service in the judiciary, and
further denied he was the one advising Mrs. Napoles on legal strategies in
connection with the Kevlar helmet cases where she was acquitted by a
Division of the Sandiganbayan of which respondent is the Chairman and the
then Acting Presiding Justice.4
On September 12, 2013, Sula executed a "Karagdagang Sinumpaang
Salaysay "5 wherein she gave details regarding those persons named in her
sworn statement, alleged to have visited their office or attended their events,
thus:
63) T: Ayon sa paragraph Nos. 32 at 33 ng iyong sinumpaang salaysay na
may petsang 29 Agosto 2013, nabanggit mo ang mga personalidad na
nakikita mong bumibisita sa inyong opisina o di kaya naman sa tuwing may
party o special occacions si JANET NAPOLES ay may mga special guests
kayo na kinabibilangan ng mga malalaking pulitiko at ang iba naman ay may
mga katungkulan sa gobyerno. Maari mo bang ilahad ang mga pangyayari
sa mga bawat pagkakataon na nakita mo sila sa iyong pagkaka-alala?
S : Opo, iisa-isahin ko po ang mga pangyayari sa mga pagkakataon na nakita
ko po ang mga taong nabanggit ko:
xxxx
w) Justice GREGORY ONG - Isang beses ko po siyang nakitang nagpunta
sa office sa 2501 Discovery Centre, Ortigas at nakita ko po silang magkausap
ni Madam JANET NAPOLES sa conference room.
x x x x6
In her testimony before the Senate Blue Ribbon Committee on September
26, 2013, Sula was asked to confirm her statement regarding Justice Ong,
thus:
THE CHAIRMAN. Thank you, Senator Grace.
Isang tanong lang kay Ms. Sula.
Sinabi niyo kanina may tinawagan si Ms. Napoles at sinabi niya, "Malapit na
lumabas yung TRO galing sa korte." May kilala pa ba si Janet Lim Napoles
sa ltuwes sa korte sa Sandiganbayan? MS. SULA. Hindi ko po alam.
THE CHAIRMAN. Your attention is called sa page –
MS. SULA. Sandiganbayan po, sorry. Mayroon po siyang binanggit na ano
po –
THE CHAIRMAN. Nandito sa page 20.
MS. SULA. Si Mr. Ong, po, Justice Ong po.
THE CHAIRMAN. Gregory Ong.
MS. SULA Opo.
THE CHAIRMAN. Sa Sandiganbayan?
MS. SULA. Opo.
x x x7 (Emphasis supplied.)
In a letter dated September 26, 2013 addressed to Chief Justice Maria
Lourdes P. A. Sereno, respondent meticulously explained the controversial
photograph which raised questions on his integrity as a magistrate,
particularly in connection with the decision rendered by the Sandiganbayan'
s Fourth Division in the Kevlar helmet cases, which convicted some of the
Page 338
accused but acquitted Mrs. Napoles.
Respondent surmised that the photograph was taken during the birthday of
Senator Estrada in February, either in the year 2012 or 2013, but definitely
LEGAL ETHICS
not in 2010 or earlier. He explained that he could vaguely remember the
circumstances but it would have been rude for him to prevent any guest from
posing with him and Senator Estrada during the party. On the nature of his
association with Mrs. Napoles, respondent asserted:
(4) I can categorically state, on the other hand, that I have never attended
any party or social event hosted by Mrs. Napoles or her family, either before
she had a case with our court, or while she already had a pending case with
our court, or at any time afterwards. I have never, to use the term of Mr. Rufo
in his article, "partied" with the Napoleses. (Emphasis supplied.)
As to the Kevlar helmet cases, respondent said it was impossible for him to
have been advising Mrs. Napoles, as claimed by Mr. Rufo, as even the article
itself noted that Mrs. Napoles' own brother, Reynald L. Lim, ( a.k.a. Reynaldo
L. Francisco), a co-accused in the case, was convicted by the
Sandiganbayan. He stressed that these cases were decided on the merits by
the Sandiganbayan, acting as a collegial body and he was not even the
ponente of the decision. Respondent thus submitted himself to the discretion
of the Chief Justice such that even without being required to submit an
explanation, he voluntarily did so "to defend [his] reputation as a judge and
protect the Sandiganbayan as an institution from unfair and malicious
innuendos."
On October 7, 2013, Chief Justice Sereno wrote the Members of this Court,
citing the testimonies of Luy and Sula before the Senate Blue Ribbon
Committee "[t]hat the malversation case involving Mrs. Janet Lim-Napoles,
Major Jaime G. Napoles, Jenny Lim Napoles, Reynaldo L. Francisco and
other perpetrators was 'fixed' (inayos) through the intervention of Justice
Gregory S. Ong of the Sandiganbayan", to wit:
SEN. ANGARA. Sa inyo, hindi niyo a/am kung inayos iyong kaso na iyon?
Kasi napakaraming koneksiyon, 'di ba?
xxxx Sige, huwag kang matakot, Benhur.
MR. LUY. Alam ko, inayos ni Ms. Napoles iyon dahil may connect nga siya
sa Sandiganbayan
SEN. ANGARA. Okay.
xxxx
THE CHAIRMAN. xxx Sinabi niyo kanina na may tinawagan si Ms. Napoles
at sinabi niya "Malapit na lumabas yung TRO galing sa korte." May kilala pa
ba si Janet Lim Napoles sa huwes sa korte sa Sandiganbayan?
xxxx
MS. SULA. Si Mr. Ong po, Justice Ong po.
THE CHAIRMAN. Gregory Ong.
MS. SULA. Opo.
THE CHAIRMAN. Sa Sandiganbayan?
MS. SULA. Opo.
Xxxx8
Chief Justice Sereno then requested the Court En Banc to conduct an
investigation motu proprio under this Court's power of administrative
supervision over members of the judiciary and members of the legal
profession (referring to notaries public who were alleged to have purposely
left their specimen signatures, dry seals and notarial books with Mrs. Napoles
to facilitate the incorporation of non-governmental organizations [NGOs]
involved in the scam).9
Under our Resolution dated October 17, 2013, the Court En Banc required
respondent to submit his comment and directed the NBI to furnish the Court
with certified copies of the affidavit of Luy. On November 21, 2013, the Court
received respondent's Comment.10 Respondent categorically denied any
irregularity in the Kevlar helmet cases and explained the visit he had made
to Mrs. Napoles as testified by Sula.
On Sula's statement, respondent points out that Sula never really had
personal knowledge whether respondent is indeed the alleged "contact" of
Mrs. Napoles at the Sandiganbayan; what she supposedly "knows" was what
Mrs. Napoles merely told her. Hence, Sula's testimony on the matter is based
purely on hearsay. Assuming that Mrs. Napoles actually made the statement,
respondent believes it was given in the context of massive media coverage
of the pork barrel scam exploding at the time. With the consciousness of a
looming criminal prosecution before the Office of the Ombudsman and later
before the Sandiganbayan, it was only natural for Mrs. Napoles to assure
Sula and others involved in their business operation that she would not leave
or abandon them and that she would do all that she can to help them just so
they would not turn their backs on her and become whistle-blowers. Thus,
even if Mrs. Napoles made misrepresentations to Sula regarding respondent
PINEDAPCGRNMAN
as her "connection", she only had to do so in order to convince Sula and her
co-employees that the cases to be filed against them would be "fixed."
As to Sula's statement that she personally witnessed respondent at one time
visiting Mrs. Napoles at her office and having a meeting with her at the
conference room, respondent said that at the birthday party of Senator
Estrada where the controversial photograph was taken, Mrs. Napoles
engaged him in a casual conversation during which the miraculous healing
power of the robe or clothing of the Black Nazarene of Quiapo was
mentioned. When Mrs. Napoles told respondent that she is a close friend of
the Quiapo Church's parish priest, he requested her help to gain access to
the Black Nazarene icon. Eventually, respondent, who is himself a Black
Nazarene devotee and was undergoing treatment for his prostate cancer,
was given special permission and was able to drape the Black Nazarene's
robe or clothing for a brief moment over his body and also receive a fragrant
ball of cotton taken or exposed to the holy image, which article he keeps to
this day and uses to wipe any ailing part of his body in order to receive
healing. Because of such favor, respondent out of courtesy went to see Mrs.
Napoles and personally thank her. Respondent stressed that that was the
single occasion Sula was talking about in her supplemental affidavit when
she said she saw respondent talking with Mrs. Napoles at the conference
room of their office in Discovery Suites.
Respondent maintains that there was nothing improper or irregular for him to
have personally seen Mrs. Napoles at the time in order to thank her,
considering that she no longer had any pending case with his court, and to
his knowledge, with any other division of the Sandiganbayan at the time and
even until the date of the preparation of his Comment. He thus prays that this
Court duly note his Comment and accept the same as sufficient compliance
with the Court's Resolution dated October 17, 2013.
This Court upon evaluation of the factual circumstances found possible
transgressions of the New Code of Judicial Conduct committed by
respondent. Accordingly, a Resolution was issued on January 21, 2014
stating that:
WHEREFORE, the Court hereby resolves to have the instant administrative
matter RE-DOCKETED as A.M. No. SB-14-21-J (Re: Allegations Made
Under Oath at tlze Senate Blue Ribbon Committee Hearing held on
September 26, 2013 against Associate Justice Gregory S. Ong,
Sandiganbayan), and ASSIGNS the same to retired Supreme Court Justice
Angelina Sandoval-Gutierrez for investigation, report and recommendation
within a period of sixty (60) days from notice hereof.
The Court further resolves to NOTE the letter dated January 7, 2014 of Atty.
Joffre Gil C. Zapata, Executive Clerk of Court III, Sandiganbayan, Fourth
Division, in compliance with the resolution of the Court En Banc dated
December 3, 2013, transmitting the original records of Criminal Case Nos.
26768 and 26769. Atty. Zapata is INFORMED that there is no more need to
transmit to this Court the post-sentence investigation reports and other
reports on the supervisory history of the accused-probationers in Criminal
Case Nos. 26768 and 26769.
Report and Recommendation of the Investigating Justice
Justice Angelina Sandoval-Gutierrez, a retired Member of this Court,
submitted her report with the following findings and conclusions:
FACTUAL ANTECEDENTS
1. THE KEVLAR CASE
Two criminal cases were filed with the Sandiganbayan sometime in 2001 -
Criminal Case No. 26768 for Falsification of Public Documents and Criminal
Case No. 26769 for Violation of Section 3(e) of the AntiGraft Law. Charged
were several members of Philippine Marine Corps and civilian employees
including Ms. Janet L. Napoles (Napoles), her mother Magdalena Francisco
(now deceased), her brother Reynaldo Francisco and wife Anna Marie
Dulguime, and her (Napoles') three employees.
These cases are referred to as the Kevlar case because the issue involved
is the same - the questionable purchase of 500 Kevlar helmets by the
Philippine Marine Corps in the amount of P3,865,310.00 from five suppliers
or companies owned by Napoles.
The prosecution alleged inter alia that the accused, acting in conspiracy,
released the payment although there was yet no delivery of the Kevlar
helmets; that the suppliers are mere dummies of Napoles; and that the
helmets were made in Taiwan, not in the U.S.A.
Page 339
Napoles' husband, Major Jaime Napoles, was dropped from the two
Informations in an Order issued by the Ombudsman on March 18, 2002.
LEGAL ETHICS
Napoles' mother, brother, and sister-in-law were among those convicted for
the lesser crime of Falsification of Public Documents and sentenced to suffer
the penalty of 4 years and 2 months of prision correccional to 8 years and 1
day of prision mayor and each to pay PS,000.00. They all underwent
probation.
Napoles and six members of the Philippine Marine Corps were acquitted in
both cases.
The court ruled that Napoles "was not one of the dealer-payees in the
transaction in question. Even if she owns the bank account where the 14
checks were later deposited, this does not in itself translate to her conspiracy
in the crimes charged x x x."
xxxx
THE INVESTIGATION
xxxx
I. During the investigation, Benhur testified that he and Napoles are second
cousins. After passing the Medical Technology Licensure Examination in
2002, he was employed in the JLN (Janet Lim Napoles) Corporation as
Napoles' personal assistant. As such, he was in charge of disbursements of
her personal funds and those of her office. He was also in charge of
government transactions of the corporation and kept records of its daily
business activities.
In the course of Benhur's employment at the JLN Corporation, Napoles
mentioned to him the Kevlar case, then pending in the Sandiganbayan,
saying she has a "connect" in that court who would help her.
When asked about his testimony before the Senate Blue Ribbon Committee
concerning the Kevlar case, Benhur declared that Napoles' "connect" with
the Sandiganbayan is respondent, thus:
Q The question was, Mr. Witness, this is coming from Senator Angara, and I
quote, "Kailan ho lumabas yung decision ng Court sa Kevlar?" And just to
refresh your memory, Mr. Witness, then Ms. Sula answered, "I think 2010.
Yun po yung lumabas po." And then going forward, Senator Angara referred
to both of you this question: "Sa inyo, hindi ninyo alam kung inayos yung
kaso na iyon kasi napakaraming koneksyon, di ba? Baka alam ng ibang
whistleblowers kung nagka-ayusan sa kaso na iyon. Sige, huwag kang
matakot, Benhur." Do you remember that question being asked from you?
xxxx
A Yes po.
Q And now Mr. Witness, about this statement of yours at the Blue Ribbon
Committee that Ms. Napoles has a certain connect sa Sandiganbayan, who
was this connect you were talking about, if you remember?
Witness Luy
A Si Justice Gregory Ong po.
Q How do you know that Justice Gregory Ong was the connect of Ms.
Napoles at the Sandiganbayan?
A Ang sinabi po ... Si Ms. Napoles, pinsan ko po kasi we are second cousins.
So kinuwento talaga sa akin ni Madam kung ano ang mga developments sa
mga cases, kung ano ang mga nangyayari. Tapos po, sinabi niya sa akin
mismo na nakakausap niya si Justice Gregory Ong at ang nagpakilala raw
sa kanya po ay si Senator Jinggoy Estrada.
Benhur further testified that even before the decision in the Kevlar case was
promulgated, Napoles and respondent were already communicating with
each other (nag-uusap na po si!a). Therefore, she was sure the decision
would be in her favor:
Q Do you remember the date when the decision (in Kevlar case) was
promulgated?
A Ano po, the year 2010 po ma' am.
Q And you met him (Justice Ong) in 2012?
A 2012 po, pero prior to that decision, madam, naririnig ko na po kay madam
(Ms. Napoles) kasi kinukwento na po ni madam sa akin na nag-uusap na po
sila ni Justice Gregory Ong.
Q That was after the decision was promulgated?
A Bago po nailabas yung decision, ikinwento po m Ms. Napoles sa akin na
nag-uusap na po sila ni Justice Gregory Ong. Kaya kampante po si Ms.
Napoles. Noong lumabas po yung decision, alam niya na po. Yung ang sabi
sa akin ni Ms. Napoles.
Going back to the hearing before the Blue Ribbon Committee, Benhur told
Senator Angara that Napoles fixed the Kevlar case because she has a
"connect" in the Sandiganbayan:
"Baka alam ng ibang whistle blowers kung nagkaka-ayusan sa kaso na iyon
(Kevlar case). Sige huwag kang matakot Benhur."
PINEDAPCGRNMAN
Benhur Luy: "Alam ko inayos ni Ms. Napoles iyon dahil may connect nga siya
sa Sandiganbayan."
On how Napoles "inayos" or fixed the Kevlar case, Benhur said that he kept
a ledger of the Sandiganbayan case wherein he listed all her expenses in the
sum of P 100 million pesos. He was surprised why she would spend such
amount considering that what was involved in the Kevlar case was only P3.8
million. She explained that she gave various amounts to different people
during the pendency of the case which lasted up to ten years. And before the
decision in the Kevlar case was released, she also gave money to
respondent but she did not mention the amount. Thus, she knew she would
be acquitted.
Q You answered Senator Angara this way which we already quoted a while
ago, "Alam ko inayos ni Ms. Napoles iyon dahil may connect nga siya sa
Sandiganbayan." You stated that the connect is Justice Ong. Can you explain
before us what you mean, "Alam ko inayos ni Ms. Napoles iyon." What do
you mean by that "inayos"?
A Kasi po ma' am meron kaming ledger ng Sandiganbayan case sa lahat ng
nagastos ni Ms. Janet Napoles, nilista ko po yon lahat. Kasi naririnig ko po
kay Janet Napoles, parang pinsan ko po si Janet Napoles, "Paano nagkaroon
ng kaso ang ate ko? So nadiscover ko na Jang po na yun pala yung Kevlar.
So, mahigit one hundred million na nagastos po ni Ms. Napoles kasi di Jang
naman po si sir Justice Gregory Ong ...
xxx
Q Did you come to know to whom she gave all the money?
A Wala po siyang ... basta ang sabi niya inayos na niya si ... binaggit niya po
si ... kasi si madam hindi kasi nagki-keep kasi ako pinsan niya po kasi ako,
nabanggit niya po si Justice Gregory Ong. Sinabi niya nagbigay daw po siya
ng pera kay Justice Ong pero she never mentioned kung magkano yung
amount.
xxx
Q Nagbigay ng pera kay Justice Gregory Ong?
A Opo, yung ang sabi niya (referring to Ms. Napoles).
Q To you?
A Yes, madam.
Q Do you remember when she made that kind of statement?
A Bago po ano madam, bago po lumabas yung decision kaya kampante na
po si Ms. Napoles bago lumabas yung decision na acquitted siya. Alam na
niya. Sa Kevlar case.
xxx
Justice Gutierrez
Continue counsel.
Witness Luy
Kasi naikwento po madam ni Ms. Napoles na almost PlOO million na ang
nagastos niya. Tapos ang sabi ko nga po sa kanya: "Madam, P 100 million
na sa halagang P3.8 lang na PO (purchase order) sa Kevlar helmet, tapos P
100 million na ang nagastos mo?"
Q Did she tell you or explain to you to whom this P 100 million was paid?
How was it spent?
A Basta ang natatandaan ko ... di ko na po matandaan ang mga dates kasi
parang staggered. May P5 million sa ibang tao ang kausap niya. Tapos ito
naman tutulong ng ganito. lba-iba kasi madam, eh.
Q But there was no showing the money was given to Justice Ong?
A Wala po pero nabanggit lang po niya (Ms. Napoles) sa akin na nagbigay
po siya kay Justice Ong, but she never mentioned the amount.
Continuing with his testimony, Benhur declared that in 2012, respondent
went twice to Napoles' office at the Discovery Suites Center, 25 ADB Avenue,
Ortigas, Pasig City. On the first visit, Napoles introduced Justice Ong to
Benhur and her other employees.
Benhur narrated what transpired during that visit. According to him, Napoles
has so much money being placed at the Armed Forces of the Philippines and
Police Savings and Loan Association, Inc. (AFPSLAI) which offered 13%
interest annually. Napoles called Benhur telling him that respondent would
like to avail of such interest for his BDO check of P25.5 million. To arrange
this, Napoles informed Benhur that she would just deposit respondent's
P25.5 million in her personal account with Metro bank. Then she would issue
to respondent in advance eleven (11) checks, each amounting to
P282,000.00 as monthly interest, or a total of P3,102,000.00 equivalent to
Page 340
13% interest. Upon Justice Ong's suggestion, the checks should be paid to
cash. So, Benhur prepared the corresponding eleven (11) checks, thus:
LEGAL ETHICS
Q With respect to the Kevlar case, what participation did you have, if there
was any?
Witness Luy
A Noon 2012 po kasi si Justice Gregory Ong po nasa unit 2501, yung office
(of Ms. Napoles), so kami ni Janet Napoles, nandito sa 2502 kasi yun po
talaga ang office namin. Si Ms. Napoles po sinabi niya sa akin, Ben, kasi si
Ms. Napoles, may pera siyang madarni na pine-place niya po sa AFPSLAI at
yung AFPSLAI po ay nagbibigay po sa kanya o nagooffer ng 13% interest
annually po. So, ang nangyari po <loon, sabi ni Janet Napoles, si Justice Ong
ho raw, gustong magkaroon din ng interest parang ganoon. So tutulungan
niya. So ang ginawa po namin x x x. Q Meaning to say, Justice Ong would
like to deposit money?
A Opo.
Q So he could get 13% interest?
A Opo, kasi tapos madam ang nangyari po pumunta na po si Ms. Napoles
sa kanyang opisina. Tinawag po niya ako kasi pinasulat na niya sa akin ang
checke. So, ang ginawa po ni Ms. Napoles, yung checke ni .. BDO check po
kasi yun. Ang sabi sa akin ni Ms. Napoles, checke daw po yun ni Justice
Gregory Ong. Sa, BDO. So, di ko naman din po nakita Madam yung
nakalagay sa ...
Q So it is the check of Justice Ong, not the check of Ms. Napoles?
A Opo, ang amount po ng check madam ay P25.5 million ang amount noong
BDO check na inissue ...
Q That belongs to Justice Ong?
A Opo. Tapos madam, so ang ginawa po namin ni Ms. Napoles, dahil po
13% interest ang ino-offer ng AFPSLAI, sabi ni Madam ganito na lang, Ben,
ipasok na lang muna natin yung check niya sa personal account ko. Ako na
lang muna for the meantime, mag-iissue ng check sa kanya para maavail ni
Justice Ong yung interest. So, ang ginawa nan1in madam, P25.5 million
times 13% interest, tapos divided by 12, lumalabas P282,000.00
orP283,000.00 or P281,000.00 po madam kasi naground off kami sa
P282,000.00. So, ang ginawa ni Madam, baga monthly. So eleven (11)
checks ang prinepare namin. Kung hindi po ako nagkakamali po, JLN
Corporation check ang ... Ako pa nga po ang nagsulat at saka bago po namin
isinulat yung payee, inalam pa po namin. x x x So, pumunta na naman si
madam sa 2501 kasi nandoon si Justice Gregory Ong. Noong bumalik siya,
pay to cash na lang daw. So, makikita po sa records namin ni Ms. Napoles
na pumasok ang P25.5 million na amount sa kanyang account at the same
time nag-issue siya ng checke na P282,000.00 na eleven checks. Nagstart
kami madam 2012, siguro sometime July or August or mga ganoong buwan
po. Basta 11 checks, hindi nalalayo doon. So, siguro tapos na.
Q But what actually turned out was that the money of Justice Ong was
deposited at the bank but the interest was paid in advance by Ms. Napoles,
and actually the bank will pay Ms. Napoles the advanced interest she paid to
Justice Ong, is that clear? Is that the arrangement? Do you understand me?
A Kasi ang nangyari po ma'am ganito e: yung P25.5 million ipinasok sa
personal account ni Ms. Napoles dito sa Metrobank. Metrobank kasi po yun
e.
On the second visit of respondent to Napoles' office, they just engaged in
conversation. She ordered Chinese food for him which, according to Benhur,
is his (respondent's) favorite.
On cross-examination, Benhur claimed that in his affidavits executed in the
NBI, he did not mention respondent's name. However, in his reply-affidavit
filed with the Sandiganbayan, he alleged that Napoles issued P282,000.00
(the amount stated in each of the 11 checks) but he did not mention the name
of the payee upon instruction of his lawyer, Atty. Baligod. Nonetheless, he
knew that the checks were issued to respondent.
II. Sula, also a whistle blower, testified that she was an employee of JLN
Corporation. Her duties included the formation of corporations by making use
of the forms, applying for business licenses, transfer of properties, purchase
of cars, and others.
Sula corroborated Benhur's testimony that respondent visited the office of
Napoles twice sometime in 2012.
Sula was asked to explain her testimony before the Blue Ribbon Committee
during the hearing on September 26, 2013, quoted as follows:
The Chairman (Senator Teofisto Guingona III)
Sinabi ninyo na may tinawagan si Mrs. Napoles at sinabi niya, Malapit nang
lumabas yung TRO galing sa korte. May kilala pa ba si Janet Lim Napoles
sa huwes sa korte sa Sandiganbayan?
xxx
PINEDAPCGRNMAN
Ms. Sula
Si Mr. Ong po. Justice Ong po.
The Chairman
Gregory Ong?
Ms. Sula
Opo.
The Chairman
Sa Sandiganbayan?
Ms. Sula
Opo.
The Chairman
Okay. With that, I will just have a closing statement before we leave the
hearing.
Sula explained that the TRO mentioned by Napoles refers to the TRO to be
issued by the Sandiganbayan in the event the case involving the PIO billion
PDAF scam against her is filed with that court; and that Napoles told Sula
and the other employees not to worry because she has contact with the
Sandiganbayan - respondent Justice Ong, thus:
Q Not the illegal detention case?
Witness Sula
A Hindi po, pag nakasuhan na po kami sa Sandiganbayan.
Q Okay, again?
A Sa pagkakaintindi po namin, ang sabi po ni Madam na it takes 4 to 5 years,
so hihintayin niya na maacquit, sabi niyang ganoon, ang pangalan niya para
maluwag na tulungan kami. Ito po ang pagkakaintindi namin na sa
Sandiganbayan.
Q Yung PDAF?
A Opo, yung PDAF sa Sandiganbayan.
Q Pagdating ng kaso sa Sandiganbayan?
A Opo, kasi po ina-ano po niya, siya po tinitira na ni Benhur - si Madam
tungkol sa PlO billion scam. So, pinag-uusapan namin sa bahay niya sa
South Garden Unit na, Madam, paano po yan, pag lahat ng kaso na iyan
dadaan sa lawmakers, dadaan yon sa Ombudsman at saka sa
Sandiganbayan? Sabi niya, "Huwag kayong mag-alala. Meron naman akong
mga contact doon." Sabi niyang ganoon sa Ombudsman at sa
Sandiganbayan.
Q Is that in your affidavit?
A Wala po. Pero sinabi ko po doon sa part na yon (her testimony before the
Senate Blue Ribbon Committee) na meron na siyang kilala sa Ombudsman,
pero hindi niya nabanggit ang pangalan. Pero sa Sandiganbayan, ang alam
namin kilala niya si Justice Ong.
Q Yun ang sagot niya kay Chairman Guingona. Di ba I read it a while ago?
A Opo, doon sa Sandiganbayan.
Sula also testified that every time Napoles talked to her and the other
employees, she would say that Justice Ong will help her in the Kevlar case.
Sula's testimony is as follows:
Q x x x you told me that somebody will help in the Kevlar case?
A Opo. Sinabi po niya sa amin every time po pag nagkukwento siya, sinasabi
niya na si Justice Ong ang tumulong sa kanya para ma-clear po yung Kevlar
case niya.
Sula likewise testified that Napoles told her and the other employees that she
will fix (aayusin) the "PDAF case" in the Sandiganbayan. Then they replied
in jest that her acquaintance in that court is respondent. Napoles retorted,
"Ay huag na iyon kasi masyadong mataas ang talent fee."
xxxx
III. Aries Rufo, a Reporter of Rappler, testified that he cannot reveal who gave
him the photograph [of respondent beside Napoles and Senator Jinggoy
Estrada] because he is shielded by law and he has to protect his source.
When asked about his comment upon seeing the picture, Rufo said:
Initially, when I saw the picture, since I knew that Justice Ong was one of the
members of the division that handled the Kevlar case, it aroused my curiosity
why he was in that picture. Second, because in journalism, we also get to
practice ethical standards, I immediately sensed though that a Justice or a
lawyer, that he should not be seen or be going to a party or be in an event
where respondent (Ms. Napoles) was in a case under his Division. He should
not be in a situation that would compromise the integrity of his office.
Rufo further testified that on August 27, 2013, he faxed a letter to respondent
Page 341
to "get his side about the photo." The next day, he went to respondent's office
and showed it to him. Respondent was shocked. He explained that it must
have been taken during one of the parties hosted by his friend Senator
LEGAL ETHICS
Jinggoy Estrada; that he did not know that the woman in the picture is
Napoles because she did not appear during the hearing of the Kevlar case;
and that such picture must have been taken in one of those instances when
a guest would like to pose with celebrities or public figures.
xxxx
Respondent, in his defense, vehemently denied the imputations hurled
against him.
1. He asserted that he could not be the contact or "connect" of Napoles at
the Sandiganbayan for he never met or came to know her during the
pendency of the Kevlar case;
2. Challenging Benhur's testimony that he fixed or "inayos" the Kevlar case,
respondent claimed that it was decided based on the merits by the
Sandiganbayan Fourth Division as a collegial body. The two other members
of the court, Justice Jose R. Hernandez (ponente) and Justice Maria Cristina
J. Cornejo, are independent-minded jurists who could not be pressured or
influenced by anybody, not even by their peers;
3. On Benhur's allegation that respondent received an amount of money from
Napoles prior to the promulgation of the decision in the Kevlar case,
respondent deplored the fact that Benhur was attempting to tarnish his
reputation without any proof. And that it is unthinkable for him to have
received money from Napoles considering that her mother, brother, and
sister-in-law were convicted;
4. Respondent admitted he went to Napoles' office twice, sometime in March
2012, after the decision in the Kevlar case was promulgated in 2010 and
narrated what prompted him to do so, thus:
At the birthday party of Senator Jinggoy Estrada on February 17, 2012,
Napoles approached him and introduced herself. She engaged him in a
casual conversation and thanked him for her acquittal in the Kevlar case.
Respondent replied she should thank her "evidence" instead, adding that had
the court found enough evidence against her, she would have been
convicted. She talked about her charity works like supporting Chinese
priests, building churches and chapels in China, and sponsoring Chinese
Catholic priests. He was not interested though in what she was saying until
she mentioned the name of Msgr. Ramirez, former Parish Priest of Quiapo
Church.
Respondent became interested because he has been a devotee of the Holy
Black Nazarene since he was a little boy. Napoles told him that Msgr.
Ramirez has with him the robe of the Holy Black Nazarene which has a
healing power if one wears it. Then respondent asked if he can have access
to the robe so he can be cured of his ailment (prostate cancer) which he
keeps only to himself and to the immediate members of his family. Napoles
made arrangement with Msgr. Ramirez until respondent was able to drape
the robe over his body for about one or two minutes in Quiapo Church. He
also received a fragrant ball of cotton which he keeps until now to heal any
ailing part of his body. That was a great deal for him. So out of courtesy, he
visited Napoles in her office and thanked her. That was his first visit.
Thereafter, Napoles kept on calling respondent, inviting him to her office, but
he kept on declining. Then finally after two weeks, he acceded for she might
think he is "walang kwentang tao." They just engaged in a small talk for about
30 minutes and had coffee.
5. Concerning Benhur's testimony that Napoles paid respondent an
advanced interest consisting of eleven (11) checks in the amount of
P282,000.00 each and that he issued to her his BDO check of P25.5 million
which she deposited in her account, he claimed that "he never issued that
check as he did not intend to invest in AFPSLAI. In fact, he does not have
any money deposited there. Inasmuch as he did not issue any BDO check, it
follows that Napoles could not have given him those eleven (11) checks
representing advanced interest. He further explained that he found from the
internet that in AFPSLAI, an investor can only make an initial deposit of
P30,000.00 every quarter or Pl20,000.00 per year. The limit or ceiling is P3
million with an interest of 15% or 16% per annum.
6. The whistle blower's testimony are conflicting and therefore lack credibility.
While Sula testified that Napoles told her that she did not want to approach
respondent (should a case involving the pork barrel scam be filed with the
Sandiganbayan) because his talent fee is too high, however, both whistle
blowers claimed that he is Napoles' contact in the Sandiganbayan.
With respect to the Rappler Report, according to respondent, Rufo was
insinuating four things: 1. That there was irregularity in the manner the Kevlar
case was decided;
PINEDAPCGRNMAN
2. That respondent was close to Napoles even during the pendency of the
Kevlar case;
3. That respondent was attending parties of the Napoleses; and
4. That respondent was advising Napoles about legal strategies relative to
the Kevlar case. Respondent "dismissed all the above insinuations as false
and without factual basis." As to the last insinuation that he advised Napoles
about legal strategies to be pursued in the Kevlar case, respondent stressed
that the case was decided by a collegial body and that he never interceded
on her behalf.
EVALUATION
xxxx
It bears stressing that before the Senate Blue Ribbon Committee, Benhur
initially testified that Napoles fixed or "inayos" the Kevlar case because she
has a contact at the Sandiganbayan, referring to respondent. Sula
corroborated Benhur's testimony.
Testifying before the Senate Blue Ribbon Committee is certainly an ordeal.
The witnesses and everything they say are open to the public. They are
subjected to difficult questions propounded by the Senators, supposedly
intelligent and knowledgeable of the subject and issues under inquiry. And
they can easily detect whether a person under investigation is telling the truth
or not. Considering this challenging and difficult setting, it is indubitably
improbable that the two whistle blowers would testify false! y against
respondent.
Moreover, during the investigation of this case, Benhur and Sula testified in
a candid, straightforward, and categorical manner. Their testimonies were
instantaneous, clear, unequivocal, and carried with it the ring of truth.
In fact, their answers to the undersigned's probing questions were consistent
with their testimonies before the Senate Blue Ribbon Committee. During
cross-examination, they did not waver or falter. The undersigned found the
two whistle blowers as credible witnesses and their story untainted with bias
and contradiction, reflective of honest and trustworthy witnesses.
The undersigned therefore finds unmeritorious respondent's claim that
Benhur and Sula were lying.
. . . respondent insisted he could not have intervened in the disposition of the
Kevlar case considering that Napoles' mother, brother and sister-in-law were
convicted.
Respondent must have forgotten that Napoles' natural instinct was self-
preservation. Hence, she would avail of every possible means to be
exonerated. Besides, respondent's belief that the two members of his
Division are independent-minded Jurists remains to be a mere allegation.
xxxx
With the undersigned's finding that there is credence in the testimonies of
Benhur and Sula, there is no need to stretch one's imagination to arrive at
the inevitable conclusion that in "fixing" Kevlar case, money could be the
consideration ... Benhur testified he kept a ledger (already shredded) of
expenses amounting to P 100 million incurred by Napoles for the
Sandiganbayan during the pendency of the Kevlar case which extended up
to ten years; and that Napoles told him she gave respondent an
undetermined sum of money.
Respondent maintains that the testimonies of Benhur and Sula are pure
hearsay, inadmissible in evidence:
Justice Ong
Your honor, since these are all accusations against me by Luy and Sula, and
according to Luy and Sula, these were only told to them by Napoles, always
their statements were ... they do not have personal knowledge, it was only
told to them by Napoles, is it possible that we subpoena Napoles so that the
truth will come out? If. ..
xxxx
Justice Gutierrez
That is your prerogative.
Justice Ong
I am willing to take the risk although I know I am not an acquaintance of
Napoles. Just to clear my name whether I should be hung or I should not be
hung.
xxxx
Atty. Geronilla
I don't think it would be necessary, your honor.
Page 342
Justice Gutierrez (to Atty. Geronilla)
Discuss this matter with your client, file a motion, then we will see.
LEGAL ETHICS
However, respondent and his counsel did not take any action on the
undersigned's suggestion. They did not present Napoles to rebut the
testimonies of Benhur and Sula. Significantly, respondent failed to consider
that his testimony is likewise hearsay. He should have presented Msgr.
Ramirez and Napoles as witnesses to support his claim regarding their role
which enabled him to wear the robe of the Holy Black Nazarene.
x x xx
Respondent's acts of allowing himself to be Napoles' contact in the
Sandiganbayan, resulting in the fixing of the Kevlar case, and of accepting
money from her, constitute gross misconduct, a violation of the New Code of
Judicial Conduct for the Philippine Judiciary.
xxxx
That Benhur personally prepared the eleven (11) checks which Napoles
handed to respondent led the undersigned to conclude without hesitation that
this charge is true. It is highly inconceivable that Benhur could devise or
concoct his story. He gave a detailed and lucid narration of the events,
concluding that actually Napoles gave respondent P3, 102,000.00 as
advanced interest.
According to respondent, the purpose of his first visit was to thank Napoles
for making it possible for him to wear the Holy Black Nazarene's robe. Even
assuming it is true, nonetheless it is equally true that during that visit,
respondent could have transacted business with Napoles. Why should
Napoles pay respondent an advanced interest of P3,102,000.0 with her own
money if it were not a consideration for a favor?
Respondent's transgression pertains to his personal life and no direct relation
to his judicial function. It is not misconduct but plain dishonesty. His act is
unquestionably disgraceful and renders him morally unfit as a member of the
Judiciary and unworthy of the privileges the law confers on him. Furthermore,
respondent's conduct supports Benhur's assertion that he received money
from Napoles.
Dishonesty likewise violates Canon 2 (1 and 2) on Integrity of the same Code
providing in part that judges must ensure that their conduct is above reproach
and must reaffirm the people's faith in the integrity of the Judiciary.
Indeed, respondent should not stay in his position even for a moment.
xxxx
...From respondent's end, there was nothing wrong when he visited Napoles
twice in her office considering that the visits took place long after the
promulgation of the decision in the Kevlar case.
Contrary to respondent's submission, such acts also constitute gross
misconduct in violation of Canon 4 on Propriety of the same Code. Section 1
provides that judges shall avoid impropriety and the appearance of
impropriety in all of their activities .
. . . respondent's reason for his first visit was to thank Napoles for her help in
making it possible for him to wear the robe of the Holy Black Nazarene.
Instead of visiting her, respondent could have extended his gratitude by
simply calling her by phone. Worse, he visited her again because she may
think he is an unworthy person. This is an extremely frail reason. He was
seen by the whistle blowers and their co-workers who, without doubt, readily
confirmed that he was Napoles' contact at the Sandiganbayan and that he
"fixed" the decision in the Kevlar case.
Respondent cannot be excused for his unconcern for the position he holds.
Being aptly perceived as the visible personification of law and justice, his
personal behavior, not only while in the performance of official duties but also
outside the court, must be beyond reproach. A judicial office circumscribes a
personal conduct and imposes a number of inhibitions, whose faithful
observance is the price one has to pay for holding an exalted position.
xxxx
On the photograph showing respondent
with Senator Jinggoy Estrada and Napoles.
xxxx
This incident manifests respondent's disregard of the dictum that propriety
and the appearance of propriety are essential to the performance of all the
activities of a judge. This exacting standard of decorum is demanded from
judges to promote public confidence in the integrity of the Judiciary.
In joining Senator Estrada and Napoles in a picture taking, respondent gave
a ground for reproach by reason of impropriety. It bears reiterating Canon 4
(1) on Propriety of the same Code which provides that judges shall avoid
impropriety and the appearance of impropriety in all of their activities.
Respondent maintained that he did not know Napoles at that time because
she was not present before the Sandiganbayan during the hearing of the
PINEDAPCGRNMAN
Kevlar case for she must have waived her appearance. Respondent's
explanation lacks merit. That court could not have acquired jurisdiction over
her if she did not appear personally for arraignment.
Of utmost significance is the fact that this is not the first time that respondent
has been charged administratively. In "Assistant Special Prosecutor Ill
Rohermina J Jamsani-Rodriguez v. Justices Gregory S. Ong, Jose R.
Hernandez and Rodolfo A. Ponferrada, Sandiganbayan,'' the Supreme Court
found respondent Justice Ong guilty of violation of PD 1606 and The Revised
Internal Rules of the Sandiganbayan for nonobservance of collegiality in
hearing criminal cases in the Hall of Justice, Davao City. Instead of siting as
a collegial body, the members of the Sandiganbayan Fourth Division adopted
a different procedure. The Division was divided into two. As then Chairperson
of the Division, respondent was ordered to pay a fine of P15,000.00 with a
stern warning that a repetition of the same or similar offense shall be dealt
with more severely.
xxxx
...the undersigned cannot hold back her skepticism regarding the acquittal of
Napoles. The Sandiganbayan Fourth Division, of which respondent was the
Chairman, held that Napoles did not conspire with the suppliers in the
questionable purchase of the Kevlar helmets as she was not one of the
"dealer-payees" in the transaction in question and that there was no proof of
an overt act on her part. How could the Fourth Division arrive at such
conclusion? The Decision itself indicates clearly that ( 1) Napoles was
following up the processing of the documents; (2) that she was in charge of
the delivery of the helmets; and (3) the checks amounting toP3,864,310.00
as payment for the helmets were deposited and cleared in only one bank
account, Security Bank Account No. 512-000-2200, in the name of Napoles.
Considering this glaring irregularity, it is safe to conclude that indeed
respondent has a hand in the acquittal of Napoles. All along, the whistle
blowers were telling the truth.
xxxx
RECOMMENDATION
IN VIEW OF THE FOREGOING, It is respectfully recommended, for
consideration of the Honorable Court, that respondent Justice Gregory S.
Ong be found GUILTY of gross misconduct, dishonesty, and impropriety, all
in violations of the New Code of Judicial Conduct for the Philippine Judiciary
and be meted the penalty of DISMISSAL from the service WITH
FORFEITURE of all retirement benefits, excluding accrued leave credits, and
WITH PREJUDICE to reemployment to any government, including
government-owned or controlled corporations.
xxxx
The Court's Ruling
This Court adopts the findings, conclusions and recommendations of the
Investigating Justice which are well-supported by the evidence on record.
Based on the testimonies of Luy, Sula and Rufo, the Investigating Justice
formulated the charges against the respondent, as follows:
1. Respondent acted as contact of Napoles in connection with the Kevlar
case while it was pending in the Sandiganbayan Fourth Division wherein he
is the Chairman;
2. Respondent, being Napoles' contact in the Sandiganbayan, fixed the
Kevlar case resulting in her acquittal;
3. Respondent received an undetermined amount of money from Napoles
prior to the promulgation of the decision in the Kevlar case thus, she was
sure ("kampante")of her acquittal; 4. Respondent visited Napoles in her office
where she handed to him eleven (ll) checks, each amounting to P282,000.00
or a total ofP3,102,000.00, as advanced interest for his P25.5 million BDO
check she deposited in her personal account; and
5. Respondent attended Napoles' parties and was photographed with
Senator Estrada and Napoles.11
Respondent thus stands accused of gross misconduct, partiality and
corruption or bribery during the pendency of the Kevlar case, and impropriety
on account of his dealing and socializing with Napoles after her acquittal in
the said case. Additionally, respondent failed to disclose in his September
26, 2013 letter to Chief Justice Sereno that he had actually visited Napoles
at her office in 2012, as he vehemently denied having partied with or attended
any social event hosted by her.
Misconduct is a transgression of some established and definite rule of action,
Page 343
a forbidden act, a dereliction of duty, unlawful behavior, willful in character,
improper or wrong behavior; while ·"gross" has been defined as "out of all
measure beyond allowance; flagrant; shameful; such conduct as is not to be
LEGAL ETHICS
excused."12 We agree with Justice Sandoval-Gutierrez that respondent's
association with Napoles during the pendency and after the promulgation of
the decision in the Kevlar case resulting in her acquittal, constitutes gross
misconduct notwithstanding the absence of direct evidence of corruption or
bribery in the rendition of the said judgment.
We cannot overemphasize that in administrative proceedings, only
substantial evidence, i.e., that amount of relevant evidence that a reasonable
mind might accept as adequate to support a conclusion, is required. The
standard of substantial evidence is satisfied when there is reasonable ground
to believe that respondent is responsible for the misconduct complained of,
even if such evidence might not be overwhelming or even preponderant.13
The testimonies of Luy and Sula established that Napoles had been in
contact with respondent ("nag-uusap sila") during the pendency of the Kevlar
case. As Napoles' trusted staff, they (especially Luy who is a cousin) were
privy to her daily business and personal activities. Napoles constantly
updated them of developments regarding the case. She revealed to them
that she has a "connect" or "contact" in the Sandiganbayan who will help "fix"
the case involving her, her mother, brother and some employees. Having
closely observed and heard Napoles being confident that she will be
acquitted even prior to the promulgation of the decision in the Kevlar case,
they were convinced she was indeed in contact with respondent, whose
identity was earlier divulged by Napoles to Luy. Luy categorically testified that
Napoles told him she gave money to respondent but did not disclose the
amount. There was no reason for them to doubt Napoles' statement as they
even keep a ledger detailing her expenses for the "Sandiganbayan," which
reached Pl 00 million. Napoles' information about her association with
respondent was confirmed when she was eventually acquitted in 2010 and
when they saw respondent visit her office and given the eleven checks issued
by Napoles in 2012.
Respondent maintains that the testimonies of Luy and Sula were hearsay as
they have no personal knowledge of the matters they were testifying, which
were merely told to them by Napoles. Specifically, he points to portions of
Sula's testimony indicating that Napoles had not just one but "contact
persons" in Ombudsman and Sandiganbayan; hence, it could have been
other individuals, not him, who could help Napoles "fix" the Kevlar case,
especially since Napoles never really disclosed to Sula who was her
(Napoles) contact at the Sandiganbayan and at one of their conversations
Napoles even supposedly said that respondent's "talent fee" was too high.
Bribery is committed when a public officer agrees to perform an act in
connection with the performance of official duties in consideration of any
offer, promise, gift or present received.14 Ajudge who extorts money from a
party-litigant who has a case before the court commits a serious misconduct
and this Court has condemned such act in the strongest possible terms.
Particularly because it has been committed by one charged with the
responsibility of administering the law and rendering justice, it quickly and
surely corrodes respect for law and the courts.15
An accusation of bribery is easy to concoct and difficult to disprove. The
complainant must present a panoply of evidence in support of such an
accusation. Inasmuch as what is imputed against the respondent judge
connotes a grave misconduct, the quantum of proof required should be more
than substantial.16 Concededly, the evidence in this case is insufficient to
sustain the bribery and corruption charges against the respondent. Both Luy
and Sula have not witnessed respondent actually receiving money from
Napoles in exchange for her acquittal in the Kevlar case. Napoles had
confided to Luy her alleged bribe to respondent.
Notwithstanding the absence of direct evidence of any corrupt act by the
respondent, we find credible evidence of his association with Napoles after
the promulgation of the decision in the Kevlar case. The totality of the
circumstances of such association strongly indicates respondent's corrupt
inclinations that only heightened the public's perception of anomaly in the
decision-making process. By his act of going to respondent at her office on
two occasions, respondent exposed himself to the suspicion that he was
partial to Napoles. That respondent was not the ponente of the decision
which was rendered by a collegial body did not forestall such suspicion of
partiality, as evident from the public disgust generated by the publication of
a photograph of respondent together with Napoles and Senator Jinggoy
Estrada. Indeed, the context of the declarations under oath by Luy and Sula
before the Senate Blue Ribbon Committee, taking place at the height of the
"Pork Barrel" controversy, made all the difference as respondent himself
acknowledged. Thus, even in the present administrative proceeding, their
PINEDAPCGRNMAN
declarations are taken in the light of the public revelations of what they know
of that government corruption controversy, and how it has tainted the image
of the Judiciary.
The hearsay testimonies of Luy and Sula generated intense public interest
because of their close relationship to Napoles and their crucial participation
in her transactions with government officials, dubbed by media as the "Pork
Barrel Queen." But as aptly observed by Justice SandovalGutierrez, the
"challenging and difficult setting" of the Senate hearings where they first
testified, made it highly improbable that these whistle blowers would testify
against the respondent. During the investigation of this case, Justice
Sandoval-Gutierrez described their manner of testifying as "candid,
straightforward and categorical." She likewise found their testimonies as
"instantaneous, clear, unequivocal, and carried with it the ring of truth," and
more important, these are consistent with their previous testimonies before
the Senate; they never wavered or faltered even during cross-examination.
It is a settled rule that the findings of investigating magistrates are generally
given great weight by the Court by reason of their unmatched opportunity to
see the deportment of the witnesses as they testified.17 The rule which
concedes due respect, and even finality, to the assessment of credibility of
witnesses by trial judges in civil and criminal cases applies a fortiori to
administrative cases.18 In particular, we concur with Justice Sandoval-
Gutierrez's assessment on the credibility of Luy and Sula, and disagree with
respondent's claim that these witnesses are simply telling lies about his
association with Napoles.
Contrary to respondent's submission, Sula in her testimony said that
whenever Napoles talked about her contacts in the Ombudsman and
Sandiganbayan, they knew that insofar as the Sandiganbayan was
concerned, it was understood that she was referring to respondent even as
she may have initially contacted some persons to get to respondent, and also
because they have seen him meeting with Napoles at her office. It appears
that Napoles made statements regarding the Kevlar case not just to Luy but
also to the other employees of JLN Corporation. The following are excerpts
from Sula's testimony on direct examination, where she even hinted at their
expected outcome of the Kevlar case:
Atty. Benipayo
Q So, Ms. Sula, what were the statements being made by Ms. Janet Lim
Napoles regarding her involvement in the Kevlar case, or how she was trying
to address the problem with the Kevlar case pending before the
Sandiganbayan?
Witness Sula
A Ang alam ko po kasi marami po siyang kinaka-usap na mga lawyers na
binabayaran niya para tulungan siya kay Gregory Ong sa Kevlar case.
Tapos, sa kalaunan po, nasabi na niya sa amin na mcron na po siyang
nakilala sa Sandiganbayan na nagngangalang Justice Gregory Ong. Tapos,
sabi niya, siya po ang tutulong sa amin para ma-clear kami. Pero hindi niya
sinabi na meron din pong ma ... sasagot sa kaso. Hindi po lahat, kasi po
dalawa sa mga empleyado niya, bale apat, dalawang empleyado niya, isang
kapatid niya at sister-in-law ang mag-aano sa kaso pati yung mother niya na
namatay na ay sasagot din sa kaso. Siya Jang at saka yung asawa niya ang
bale makli-clear sa kaso.
Q So, she told you that two (2) employees, one (1) sister-in-law and one
brother will answer for the case and Janet Lim Napoles and her husband will
be acquitted, is that right?
A Yun po ang aking pagkaka-alam kasi po, nag-petition po kasi sila eh, yung
mga officemates ko. Nagkaroon ng probation. Noong lumabas ang hatol,
meron silang probation period.
xxxx
Q Which you told me that somebody will help in the Kevlar case?
A Opo. Sinabi po niya sa amin everytime po pag nagkukwento siya, sinasabi
niya na si Justice Ong ang tutulong sa kanya para ma-clear po yung Kevlar
case niya.
x x x x19 (Emphasis supplied.)
As it turned out, Napoles' husband was dropped from the two informations
while her mother, brother and sister-in-law were convicted in the lesser
charge of falsification of public documents. Apparently, after her acquittal,
Napoles helped those convicted secure a probation. But as stated in our
earlier resolution, the Court will no longer delve into the merits of the Kevlar
Page 344
case as the investigation will focus on respondent's administrative liability.
LEGAL ETHICS
Respondent's act of voluntarily meeting with Napoles at her office on two
occasions was grossly improper and violated Section 1, Canon 4 (Propriety)
of the New Code of Judicial Conduct, which took effect on June 1, 2004.
SECTION 1. Judges shall avoid impropriety and the appearance of
impropriety in all of their activities.
A judge must not only be impartial but must also appear to be impartial and
that fraternizing with litigants tarnishes this appearance.20 Public confidence
in the Judiciary is eroded by irresponsible or improper conduct of judges. A
judge must avoid all impropriety and the appearance thereof. Being the
subject of constant public scrutiny, a judge should freely and willingly accept
restrictions on conduct that might be viewed as burdensome by the ordinary
citizen.21
In Caneda v. Alaan,22 we held that:
Judges are required not only to be impartial but also to appear to be so, for
appearance is an essential manifestation of reality. Canon 2 of the Code of
Judicial Conduct enjoins judges to avoid not just impropriety in their conduct
but even the mere appearance of impropriety.
They must conduct themselves in such a manner that they give no ground
for reproach. [Respondent's] acts have been less than circumspect. He
should have kept himself free from any appearance of impropriety and
endeavored to distance himself from any act liable to create an impression
of indecorum.
xxxx
Indeed, respondent must always bear in mind that:
"A judicial office traces a line around his official as well as personal conduct,
a price one has to pay for o ccupying an exalted position in the judiciary,
beyond which he may not freely venture. Canon 2 of the Code of Judicial
Conduct enjoins a judge to avoid not just impropriety in the performance of
judicial duties but in all his activities whether in his public or private life. He
must conduct himself in a manner that gives no ground for reproach."
(Emphasis supplied.)
On this score, our previous pronouncements have enjoined judges to avoid
association or socializing with persons who have pending cases before their
court. Respondent cites the case of Abundo v. Mania, Jr.23 where this Court
did not find fault with a judge who was charged with fraternizing with his
lawyer-friend. In that case, we said:
Respondent admits that he and Atty. Pajarillo became close friends in 1989
when they were both RTC judges stationed in Naga City. Since they both
resided in Camarines Norte, Atty. Pajarillo hitched rides with respondent to
Daet, Camarines Norte in the latter's car.
In his Comment, respondent claims that he leaves the door to his chambers
open to lawyers or parties with official court business, whose requests and
complaints regarding their cases he listens to in full view of his staff, who are
witnesses to his transparency and honesty in conducting such dialogues. He
also admits that Atty. Pajarillo has been to his house on several occasions,
but only to make emergency long-distance calls to his children in Metro
Manila. He, however, denies that he and Atty. Pajarillo were frequently seen
eating and drinking together in public places.
We agree with Justice Buzon's finding that the evidence against respondent
on this point was insufficient, viz.:
"On the other hand, the admission of respondent that he attended two public
functions where Atty. Pajarillo was also present; that Atty. Pajarillo had been
in his house twice or thrice and used his telephone; and that he receives
lawyers, including Atty. Pajarillo, and litigants inside his chambers, the door
to which is always open so that [the] staff could see that no under the table
transactions are taking place, is not proof that he is fraternizing with Atty.
Pajarillo. A judge need not ignore a former colleague and friend whenever
they meet each other or when the latter makes requests which are not in any
manner connected with cases pending in his court. Thus, Canon 30 of the
Canons of Judicial Ethics provides:
'30. Social relations
It is not necessary to the proper performance of judicial duty that judges
should live in retirement or seclusion; it is desirable that, so far as the
reasonable attention to the completion of their work will permit, they continue
to mingle in social intercourse, and that they should not discontinue their
interests in or appearance at meetings of members at the bar. A judge
should, however, in pending or prospective litigation before him be
scrupulously careful to avoid such action as may reasonably tend to waken
the suspicion that his social or business relations or friendships constitute an
element in determining his judicial course.'"
PINEDAPCGRNMAN
The factual setting in Abundo v. Mania, Jr. is not similar to the present case
because Napoles was not a colleague or lawyer-friend but an accused in a
former case before the Sandiganbayan's Fourth Division chaired by
respondent and which acquitted her from malversation charge. What
respondent perhaps want to underscore is the caveat for judges, in pending
or prospective litigation before them, to avoid such action as may raise
suspicion on their partiality in resolving or deciding the case. Thus, he
emphasized in his Memorandum that he "never knew Napoles on a personal
level while she was still on trial as an accused in Kevlar helmet case."
Respondent even quoted Sula's testimony expressing her opinion that she
finds nothing wrong with respondent going to Napoles' office because at that
time, the Kevlar case had already been terminated.
We do not share the view that the rule on propriety was intended to cover
only pending and prospective litigations.
Judges must, at all times, be beyond reproach and should avoid even the
mere suggestion of partiality and impropriety.24 Canon 4 of the New Code of
Judicial Conduct states that "[p ]ropriety and the appearance of propriety are
essential to the performance of all the activities of a judge." Section 2 further
provides:
SEC. 2. As a subject of constant public scrutiny, judges must accept personal
restrictions that might be viewed as burdensome by the ordinary citizen and
should do so freely and willingly. In particular, judges shall conduct
themselves in a way that is consistent with the dignity of the judicial office.
As we held in Sibayan-Joaquin v. Javellana25
... Judges, indeed, should be extra prudent in associating with litigants and
counsel appearing before them so as to avoid even a mere perception of
possible bias or partiality. It is not expected, of course, that judges should live
in retirement or seclusion from any social intercourse. Indeed, it may be
desirable, for instance, that they continue, time and work commitments
permitting, to relate to members of the bar in worthwhile endeavors and in
such fields of interest, in general, as are in keeping with the noble aims and
objectives of the legal profession. In pending or prospective litigations before
them, however, judges should be scrupulously careful to avoid anything that
may tend to awaken the suspicion that their personal, social or sundry
relations could influence their objectivity, for not only must judges possess
proficiency in law but that also they must act and behave in such manner that
would assure, with great comfort, litigants and their counsel of the judges'
competence, integrity and independence.
In this light, it does not matter that the case is no longer pending when
improper acts were committed by the judge. Because magistrates are under
constant public scrutiny, the termination of a case will not deter public
criticisms for acts which may cast suspicion on its disposition or resolution.
As what transpired in this case, respondent's association with Napoles has
unfortunately dragged the Judiciary into the "Pork Barrel" controversy which
initially involved only legislative and executive officials. Worse, Napoles'
much-flaunted "contact" in the judiciary is no less than a Justice of the
Sandiganbayan, our special court tasked with hearing graft cases. We
cannot, by any stretch of indulgence and compassion, consider respondent's
transgression as a simple misconduct.
During his testimony, respondent acknowledged his violation of judicial ethics
and its serious repercussions, as shown by his answers to the questions from
the Investigation Justice, viz: Justice Gutierrez
What I am thinking Justice, as a Justice holding a very high position, could it
not be possible for you to just go to the Church of Quiapo and ask the priest
there to help you or assist you, no longer through Ms. Napoles?
Justice Ong
You cannot do that, your honor. Ever since when I was a small boy, I never
got near the image of the Mahal na Poon. Nobody can do that, your honor.
Justice Gutierrez
No, no. What I mean is that you can just go to the priest in Quiapo and make
the proper request. Why did you not do that?
Justice Ong
I don't know, your honor.
Justice Gutierrez
Because you have been suffering from that ailment, mass or whatever, and
that you are a devotee of the Black Nazarene. You could have gone to the
Office of the priest there and had that request for you to wear that robe of the
Page 345
Black Nazarene?
Justice Ong
LEGAL ETHICS
Hindi ko po alam na may ganyan, your honor. I was only told by Napoles
during that conversation. Had I known that, siguro po pwede ko pong gawin.
Had I known that there is such a robe, maybe I will do that.
Justice Gutierrez
Okay. It happened already. But just to thank Ms. Napoles, I think Justice you
should have been very, very careful about your actuations. You should not
have been seen in public, you know, with a woman like her who was an
accused before. You could have thanked her simply by calling her. You could
have relayed to her your true feelings that you are so grateful because of her
assistance. Were it not for her, you could not have worn that Holy Robe of
the Black Nazarene. You could have simply called her instead of going to her
office; instead of, you know, going to the Church of Santuario de San Antonio
in Forbes Park. And you should have been more careful not to be seen by
the public with her considering that she was a former accused in that case.
Justice Ong
I will heed to that advice, your honor.
Justice Gutierrez
Q And you admitted a while ago, during the interview conducted by Mr. Aries
Rufo that. "That is a lesson for me; that I should not have associated, you
know, with a former respondent or accused in a case before me." You
admitted that? You said you learned you lesson. Was that the first time you
learned that kind of lesson, Mr. Justice? Or even before you took your oath
as a member of the Judiciary, you already knew that lesson, isn't it or was
that the first time? That is why you associated yourself with Senator Jinggoy
Estrada who was accused before of plunder?
Justice Ong
Your honor, talking about ....
Justice Gutierrez
Q Do you admit you committed a lapse along that line?
Justice Ong
A Yes, your honor. You have to forgive me for that.26 (Emphasis supplied.)
In her report, Justice Sandoval-Gutierrez noted that respondent's purported
reason for visiting Napoles in her office remains uncorroborated, as Napoles
and the Quiapo parish priest were not presented as witnesses despite her
suggestion to respondent and his counsel. On the other hand, Luy's
testimony on what transpired in one of respondent's meeting with Napoles at
her office appears to be the more plausible and truthful version. Expectedly,
respondent denied having issued a BDO check for P25 .5 million as claimed
by Luy, and asserted he (respondent) did not deposit any money to AFPSLAI.
Unfortunately, Luy is unable to present documentary evidence saying that,
as previously testified by him before the Senate, most of the documents in
their office were shredded upon orders of Napoles when the "Pork Barrel
Scam" controversy came out.
Justice Sandoval-Gutierrez stated that the eleven checks of P282,000.00
supposed advance interest for respondent's check deposit to AFPSLAI were
given to respondent as consideration for the favorable ruling in the Kevlar
case.1âwphi1 Such finding is consistent with Luy's testimony that Napoles
spent a staggering PlOO million just to "fix" the said case. Under the
circumstances, it is difficult to believe that respondent went to Napoles office
the second time just to have coffee. Respondent's act of again visiting
Napoles at her office, after he had supposedly merely thanked her during the
first visit, tends to support Luy's claim that respondent had a financial deal
with Napoles regarding advance interest for AFPSLAI deposit. The question
inevitably arises as to why would Napoles extend such an accommodation
to respondent if not as consideration for her acquittal in the Kevlar case?
Respondent's controversial photograph alone had raised adverse public
opinion, with the media speculating on pay-offs taking place in the courts.
Regrettably, the conduct of respondent gave cause for the public in general
to doubt the honesty and fairness of his participation in the Kevlar case and
the integrity of our courts of justice. Before this Court, even prior to the
commencement of administrative investigation, respondent was less than
candid. In his letter to the Chief Justice where he vehemently denied having
attended parties or social events hosted by Napoles, he failed to mention that
he had in fact visited Napoles at her office. Far from being a plain omission,
we find that respondent deliberately did not disclose his social calls to
Napoles. It was only when Luy and Sula testified before the Senate and
named him as the "contact" of Napoles in the Sandiganbayan, that
respondent mentioned of only one instance he visited Napoles ("This is the
single occasion that Sula was talking about in her supplemental affidavit x x
x."27).
PINEDAPCGRNMAN
The Court finds that respondent, in not being truthful on crucial matters even
before the administrative complaint was filed against him motu proprio, is
guilty of Dishonesty, a violation of Canon 3 (Integrity) of the New Code of
Judicial Conduct.
Dishonesty is 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."28 Dishonesty, being a grave offense, carries the extreme
penalty of dismissal from the service with forfeiture of retirement benefits
except accrued leave credits, and with perpetual disqualification from
reemployment in government service. Indeed, dishonesty is a malevolent act
that has no place in the Judiciary.29
Under Section 11(A), Rule 140 of the Rules of Court, a respondent found
guilty of a serious charge may be penalized as follows:
SEC. 11. Sanctions. - A. If the respondent is guilty of a serious charge, any
of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the
Court may determine, and disqualification from reinstatement or appointment
to any public office, including governmentowned or -controlled corporations.
Provided, however, that the forfeiture of benefits shall in no case include
accrued leave credits;
2. Suspension from office without salary and other benefits for more than
three (3) but not exceeding six (6) months; or
3. A fine of more than P20,000.00 but not exceeding P40,000.00.
Considering that respondent is not a first time offender and the charges of
gross misconduct and dishonesty are both grave offenses showing his
unfitness to remain as a magistrate of the special graft court, we deem it
proper to impose the supreme penalty of dismissal.
WHEREFORE, the Court finds respondent Sandiganbayan Associate
Justice Gregory S. Ong GUILTY of GROSS MISCONDUCT, DISHONESTY
and IMPROPRIETY, all in violations of the New Code of Judicial Conduct for
the Philippine Judiciary, for which he is hereby DISMISSED from the service,
with forfeiture of all retirement benefits, except accrued leave credits, if any,
and with prejudice to reemployment in any branch, agency or instrumentality
of the government including government-owned or -controlled corporations.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Rule 1.01 – SEC. 1. Judges shall exercise the judicial function
independently on the basis of their assessment of the facts and in
accordance with a conscientious understanding of the law, free of any
extraneous influence, inducement, pressure, threat or interference,
direct or indirect, from any quarter or for any reason.
A.M. No. R-351-RTJ September 26, 1986
ABRAHAM L. RAMIREZ, petitioner,
vs.
HON. ANTONIA CORPUZ-MACANDOG, respondent.
A.M. No. R-359-RTJ September 26, 1986
LIWAYWAY B. SAMSON, complainant,
vs.
HON. ANTONIA CORPUZ-MACANDOG, respondent.
A.M. No. R-621-RTJ September 26, 1986
VICTORIA TORRES, complainant,
vs.
HON. ANTONIA CORPUZ-MACANDOG, respondent.
A.M. No. R-684-RTJ September 26, 1986
ESPERANZA LAZARO, complainant,
vs.
HON. ANTONIA CORPUZ-MACANDOG, respondent.
A.M. No. R-687-RTJ September 26, 1986
JESUS ALBA, complainant,
vs.
HON. ANTONIA CORPUZ-MACANDOG, respondent.
A.M. No. 86-4-9987-RTC September 26, 1986
DESIGNATION OF AN ACTING JUDGE IN BRANCH CXXI, RTC,
CALOOCAN CITY.
Page 346
Bognot, Toledano & Associates counsel for the complainant in A.M. No.
359-RTJ.
Romulo T. Santos counsel for the complainant in A.M. No. R-684-RTJ.
LEGAL ETHICS
Conrado A. Leaño counsel for the complainant in A.M. No. 687-RTC.
PER CURIAM:
Judge Antonia Corpuz-Macandog of the Regional Trial Court of Caloocan
City, Branch CXX, stands charged in six separate complaints of various
forms of misconduct in the performance of her official duties. The details are
as follows:
I. Administrative Matter No. R-351-RTJ. —
This originated as G.R. No. 71179, a petition for a writ of habeas corpus filed
on June 29, 1985 by Deputy Sheriff Abraham L. Ramirez of the Regional Trial
Court of Caloocan City to secure his release from the Caloocan City jail.
Ramirez was ordered arrested on June 27, 1985 by respondent judge for
direct contempt of court consisting in his alleged disobedience to the writ of
preliminary injunction dated January 21, 1985 issued in Civil Case No. 8682
enjoining him from demolishing the improvements of the intervenors in said
case.
Deputy Sheriff Ramirez had previously been directed by Judge Socorro
Tirona-Liwag of Branch CXXIII of the same court in an order dated January
11, 1985, to demolish the improvements of the defendants in Civil Cases
Nos. C-7380, C-7361, C-7362, C-7363, C-7364, C-7839, C-7841 and C-
7842. Said defendants are the intervenors in Civil Case No. 8682 on whose
motion respondent judge issued the preliminary injunction.
The immediate execution of the order of arrest was effected thru a
handwritten note of respondent judge addressed to then superintendent of
the Northern Police District, Brig. Gen. Alfredo Lim. Upon orders of this Court,
however, Deputy Sheriff Ramirez was released from jail on July 2, 1985.
Thereafter, the court resolved to treat the petition as an administrative case
1 and to require respondent judge to comment thereon. 2
Respondent judge denied having acted arbitrarily or capriciously in causing
the arrest of Ramirez. She justified the arrest as a means of preserving
substantial justice so that any decision rendered in Civil Case No. 8682 may
not be rendered moot and academic and as a curative measure to preserve
the greater interest of social justice. The handwritten note, on the other hand,
was explained as a means to preserve the integrity of courts of justice in the
enforcement of valid and lawful orders. She added that the writ of preliminary
injunction was issued by her in the exercise of her original jurisdiction, while
the Order of January 11, 1985 was issued by Judge Liwag in the exercise of
appellate jurisdiction, which the latter should not have done as she should
have remanded the case to the court of origin for execution.
II. Administrative Matter No. R-359-RTJ. —
On September 28, 1984, complainant Liwayway B. Samson filed before the
RTC of Caloocan City a complaint for damages against Benecio Urgel,
Roberto Exequiel, Shigiro Iwata and Remigio Pasion docketed as Civil Case
No. 11559 and assigned to respondent judge. The summonses were served
on the defendants on October 3, 1984. On October 18, 1984, defendants
Urgel and Exequiel filed their answer with cross-claim against their co-
defendants Pasion and Iwata They likewise filed a motion for leave to file a
third party complaint against Imperial Insurance Co. This was granted on
October 22, 1984. On November 12, 1984, within the extension given by the
court, defendant Iwata filed his answer with compulsory counter-claim and
cross-claim and answer to cross-claim against defendants Urgel, Exequiel
and Pasion. The latter did not file any answer. Thus, on November 29, 1984,
complainant thru counsel moved to declare Pasion in default and to set the
case for pre-trial On January 29, 1985, counsel for complainant filed an ex-
parte motion praying for the resolution of the motion of November 29, 1984.
When no action was forthcoming, counsel filed another motion on March 26,
1985, reiterating his prayer in the motion of November 29, 1984. For alleged
failure of respondent judge to act on the motions, the instant complaint was
filed on June 6, 1985.
Required to comment, respondent judge stated that the motion of November
29, 1984 was noted for study on December 18, 1984 and was actually
resolved on March 1, 1985, "well within the period even for the court to
resolved [sic] the same and prior to the receipt ... of the letter-complaint on
July 2, 1985; " and that the case could not yet be set for pre-trial on account
of the existence of the third-party complaint. In conclusion, respondent judge
said that letter-complaint "is not only malicious but was intended to malign
the undersigned Presiding Judge 3 and should therefore be dismissed.
Complainant replied to the comment for the purpose of placing in issue
respondent judge's allegation that the motion dated November 29, 1984 was
PINEDAPCGRNMAN
resolved on March 1, 1985. She averred that if this were true, why is it that
notice thereof was received by her counsel only on June 22, 1985 after the
instant complaint had been filed; and why is it that respondent judge failed to
resolve the other motions? She concluded that the only reasonable
implication is that the order was antedated to show some color of
performance of duties. She likewise cites respondent judge for failure to order
the service of summons and copy of the third-party complaint on the third-
party defendant.
It appears that due to the statement found in respondent's comment that "the
letter-complaint is not only malicious but was intended to malign the
undersigned Presiding Judge complainant moved for respondent's inhibition
from Civil Case No. 11559 and its re-raffling to another sala. This motion was
denied.
Eventually, as manifested by respondent in her Rejoinder, she inhibited
herself from hearing Civil Case No. 11559, which has since been assigned
to another judge and has been set for pre-trial In said rejoinder, respondent
judge characterized complainant's so-called implication respecting the order
of March 1, 1985 as being founded on conjectures, assumptions and
suppositions. Furthermore, she said that after the third party complaint had
been admitted, it was not her duty to order service of the summons on the
third-party defendant, but that of the counsel who espouses the cause of the
client.
III. Administrative Matter No. R-621-RTJ. —
In the sworn letter-complaint dated April 28, 1986, Victoria L. Torres charged
respondent judge with ignorance of the law, graft or deliberate distortion of
the law for pecuniary motives. She alleged that respondent judge had
indiscriminately issued restraining orders without conducting hearings on the
applications for the issuance of preliminary injunctions and had reiterated
restraining orders after the lapse of the mandatory twenty [20] days; that she
issued restraining orders against the enforcement of the writs of execution in
ejectment cases decided by other RTC branches of Caloocan City which are
of co-equal jurisdiction; that she has cited for contempt lawyers and sheriffs
of other branches whom she fancies to have offended her, as in the case of
Deputy Sheriff Ramirez [cf. Adm. Matter No. R-351-RTJ] who was merely
complying with the order of Judge Liwag and that she has been issuing
restraining orders in ejectment cases involving the so- called "Maysilo Estate"
for undoubtedly suspicious considerations.
By way of compliance to the court's resolution dated June 19, 1986,
respondent submitted her comment on the letter-complaint on July 16, 1986,
branding the allegations found therein as false accusations as it failed to state
specific facts on the matters complained of. She stated that she issued a
temporary restraining order in Civil Case No. 10526 entitled, "Arturo
Salientes, et. al. v. Alexander Development Corp., et al." but denied having
issued an extension thereof. She claimed having issued a preliminary
prohibitory injunction after due hearing.
With respect to the second allegation, respondent explained the issuance of
the restraining orders as a method of maintaining the status quo so that the
cases pending before her involving the issue of ownership may not be
rendered moot and academic by the execution of the decisions in the
ejectment cases relating to the same properties.
Respondent reiterated her explanation in Adm. Matter No. R-351-RTJ in
connection with the Ramirez arrest-incident and asserted that she has been
acting on the Maysilo estate cases objectively on the basis of the law involved
and the evidence on hand.
It appears that while the instant complaint was pending evaluation by the
Court, complainant Victoria Torres, in her capacity as attorney-in-fact of
Alexander Development Co. caused the implementation of the writ of
execution issued by the RTC of Caloocan, Branch CXXX in Civil Case No.
10645, entitled"Alexander Development Co. v. Jose Chan." The writ of
execution was enforced thru the demolition of a shanty being claimed by
Francisco Cruz, one of the plaintiffs in Civil Case No. 10526. Because of this,
Torres was ordered arrested for contempt of court by respondent judge in an
order dated May 15, 1986. To challenge said arrest order Torres instituted
before the IAC a special civil action for certiorari and prohibition docketed as
AC-G.R. S.P. No. 09162-SP, wherein respondent judge was likewise
required to comment. On June 5, 1986, respondent judge issued an order
recalling the arrest order for being moot and academic. This was manifested
Page 347
in the comment submitted in AC-G.R. No. 09162-S.P.
IV. Administrative Matter No. R-684-RTJ. —
LEGAL ETHICS
The gravamen of the complaint filed before this Court on July 7, 1986 is the
alleged failure of respondent judge to decide Civil Case No. C-9831 entitled,
"Federico S. Cruz v. Esperanza Lazaro," despite the case having been
submitted for decision for more than 18 months. Complainant who is the
defendant in Civil Case No. C-9831, claims that the case was submitted for
decision on October 2, 1984 with the filing of defendant's memorandum. She
further alleges that as respondent judge had been drawing her salary during
the entire time that the case was pending decision, respondent judge is
likewise guilty of falsification in view of the certification required of judges
before they could draw their salaries to the effect that they have decided all
cases assigned to them on or before the end of three months counted from
the time a case is submitted for decision.
On July 16, 1986, counsel for complainant Romulo T. Santos, filed a
manifestation and motion to withdraw the complaint on the ground that
"certain facts and conditions which heretofore were unknown to the
complainant and undersigned counsel have come to [their] knowledge ...
which affect their resolution to prosecute the complaint. 4
Said manifestation, notwithstanding, the court by resolution dated July 24,
1986 required respondent judge to answer the complaint.
In her answer filed on August 11, 1986, respondent judge states that nothing
on the record shows that the case has been submitted for decision; that
defendant in said case [herein complainant] never appeared in court during
the hearing of the case nor during the series of conferences called by her for
the purpose of effecting an amicable settlement between the parties, as per
manifestation of her counsel, complainant and her husband were always
abroad; that defendant in fact told the court interpreter that she did not want
to appear in court for the amicable settlement; that it was only after she
received a telephone call from an alleged close relative of an associate of a
national official saying " If you don't decide the case in favor of Mrs. Lazaro
you will be removed, but if you decide in her favor then you will stay," that
she looked into the records of the case where she found the motion of Mrs.
Lazaro, received by the court on March 12, 1986, praying for the early
resolution of the case; that because of the telephone calls and with the point
in mind that "this is a revolutionary government," she had no recourse but to
decide the case in favor of Mrs. Lazaro, which she did in a decision dated
July 18, 1986; that in view of complainant's manifestation dated July 7, 1986,
the instant complaint is already moot and academic.
V. Administrative Matter No. R-687-RTJ. —
Jesus Alba charges respondent judge with gross incompetence, partiality
and knowingly rendering an unjust decision. Complainant is the offended
party in Criminal Case No. C-23527 [84] entitled "People v. Cabel" for
frustrated murder assigned to respondent's court. The decision acquitting the
accused was promulgated on June 10, 1986, allegedly in the absence of
complainant and his counsel, so that complainant learned about the decision
only thru a neighbor. Complainant challenged the decision as erroneous for
the reasons that the testimony of the accused on the alleged self-defense
was not convincing, respondent judge erred in her appreciation of the
credibility of the witnesses for the prosecution as well as in her
pronouncement that Cabel had no motive for stabbing complainant when lack
of motive does not preclude conviction.
Upon being required to comment, respondent explained in detail the reasons
why she did not give credence to the version of the prosecution. She ended
with the conclusion that the decision in said criminal case is just and in
consonance with the evidence presented by the parties. She views the
complaint as a means to harass her in the wake of the judiciary
reorganization.
VI. Administrative Matter No. 86-4-9987-RTC. —
Civil Case No. C-12172 entitled, "Manchie Sabile Brozo v. Spouses
Esmeraldo Quijano and Adelina Quijano," an appealed case for an unlawful
detainer was pending before Branch CXXI of the RTC of Caloocan City when
presiding judge thereof, Judge Salvador J. Baylen, was transferred to the
RTC of Quezon City on November 15,1985. Said judge had previously
required the parties to file their memorandum with. in 30 days from notice of
the order dated November 4, 1985, but only the plaintiff had done so at the
time of his transfer.
On January 7, 1986, therein defendants-appellees moved for either the
consolidation of Civil Case No. 12172 with Civil Case No. 11724, entitled
"Esmeraldo Quijano, plaintiff versus Manchie Sabile Brozo, Defendant"
pending before Branch CXXX of the same court, or the re-raffle of Civil Case
No. C-12172 to another judge to avoid delay in its disposition; or if re-raffle is
PINEDAPCGRNMAN
not proper, to effect the transfer of said case to the pairing judge of Branch
CXXI for further proceedings. Plaintiff-appellant opposed the motion.
On January 9, 1986, Executive Judge Oscar M. Herrera referred the motion
to Judge Antonia Corpuz-Macandog of Branch CXX, the pairing judge of
Branch CXXI.
On February 19, 1986, Judge Macandog denied the motion of defendants-
appellees. However, on March 13, 1986, she issued another order recalling,
rescinding and setting aside the order of February 19, 1986 and considering
the case submitted for decision to her as pairing judge. Counsel for plaintiff-
appellant, Atty. Jose V. Marcella moved for a reconsideration of the order
dated March 13, 1986 with a request that the matter be referred to the Court
Administrator for determination or ruling as to which judge-Judge Baylen or
Judge Macandog-should decide the case.
Meanwhile, on April 24, 1986, the Court En Banc designated Judge Domingo
M. Angeles, RTC, Branch CXXIX, Caloocan City as Acting Judge of Branch
CXXI of the same court "in addition to his regular duties without additional
compensation, effective immediately and to continue until a regular
incumbent is appointed or until further orders from this Court." 5
On May 15, 1986, Judge Macandog rendered judgment in Civil Case No. C-
12172 dismissing plaintiff's appeal Copies of the decision and the order
denying his motion for referral were received by counsel for plaintiff on May
22, 1986. He forthwith filed a motion for reconsideration of both the decision
and the order. Pending resolution thereof, he wrote the Court Administrator
a letter on June 9, 1985, requesting for a ruling on who, among the three
judges; Baylen, Macandog or Angeles, has authority to decide the case and
who, between Judges Macandog and Angeles, should resolve the pending
motion for reconsideration.
Acting on said letter, the Court En Banc resolved on July 8, 1986 to: "[a]
DIRECT Judge Salvador J. Baylen Regional Trial Court, Branch 103, Quezon
City, to decide Civil Case No. C-12172, considering that before his transfer
to another court of equal jurisdiction said case was already submitted before
him for decision and as such all proceedings were totally heard and tried by
him and the greater interest of justice will be better served if he will decide
the same; [b] require Judge Antonia C. Macandog to EXPLAIN within
seventy-two (72) hours from receipt of notice hereof why she should not be
disciplinarily dealt with for taking cognizance of Civil Case No. C-12172 and
deciding the same against the vigorous objection of the plaintiff and [c] SET
ASIDE and declare null and void the decision rendered by Judge Macandog
for lack of authority and the pending motion for reconsideration and to set
aside the decision and the order denying plaintiff's motion to refer the case
to the Supreme Court be recalled and withdrawn." 6
In the explanation submitted on July 18, 1986, Judge Macandog stated that
she took cognizance of Civil Case No. 12172 by virtue of the note/order of
Executive Judge Oscar Herrera appearing on the face of the "Motion to
Consolidate and/or to transfer case to the Pairing Judge dated January 7,
1986; which note reads: "Refer to Pairing Judge, Br. 120" and signed, "Oscar
M. Herrera 1/9/86;" that as the thirty-day period granted to the parties within
which to file their memorandum under the order dated November 4, 1985
expired at the earliest only on December 5, 1985, at which date the case
would be deemed submitted for decision, Judge Baylen could not decide the
case, the same not having been submitted to him for decision at the time of
his transfer on November 15, 1985; that she has been authorized by this
Court on September 16, 1982 to take cognizance of all kinds of cases in
Branch XIV [now Branch CXXI, RTC, Caloocan City] and that the resolution
dated April 24, 1986 in A.M. No. 86-499-87, which impliedly revoked this
authority came to her knowledge only during the first week of June, 1986
when Judge Angeles started taking cognizance of and began hearing cases
in Branch CXXI.
Except for the charges of gross incompetence, partiality and knowingly
rendering an unjust decision in Administrative Matter No. R-687-RTJ, which
must be dismissed outright for lack of merit, the other charges brought
against respondent are indeed serious. Taken collectively, they cast a heavy
shadow on respondent's moral, intellectual and attitudinal competence to
remain a member of the Bench.
The complaint in Administrative Matter No. R-687-RTJ is anchored primarily
on respondent having given credence to the exempting circumstance of self-
defense offered by the accused in Criminal Case No. C-23527. In Villa v.
Page 348
Llamas, 84 SCRA 277, where the complainant placed in issue the wisdom of
the respondent judge's decision in a civil case for having believed the
testimony of the plaintiff, an alleged operator and maintainer of houses of ill-
LEGAL ETHICS
repute, this Court ruled that said circumstance was not an indubitable ground
for penalizing a judge administratively. The reason, as previously stated in
the case of Dizon vs. de Borja, 37 SCRA 46, is that "to hold a judge
administratively accountable for every erroneous ruling or decision he
renders, assuming that he has erred, would be nothing short of harassment
and would make his position unbearable.
Similarly, in the case of Vda. de Zabal vs. Pamaram, 39 SCRA 430, this Court
had the occasion to pronounce that 11 mere errors in the appreciation of
evidence, unless so gross and patent as to produce an influence of ignorance
or bad faith or that the judge knowingly rendered an unjust decision [which
circumstances do not obtain in the case at bar], are irrelevant and immaterial
in an administrative proceeding against him. We further stated: "If in the mind
of the respondent the evidence for the defense was entitled to more weight
and credence, he cannot be held to account administratively for the result of
ratiocination." 7
Neither could respondent be held administratively liable for failing to notify
complainant of the promulgation of the decision in said criminal case. While
it may be the better practice to notify the offended party of such promulgation,
the Rules of Court do not require a judge to do so.
The actuations of respondent judge in Administrative Matters Nos. R-351-
RTJ and R-621-RTJ are, however, administratively censurable. In both
cases, she issued preliminary injunctions to stay the implementation of writs
of execution issued by courts of coordinate and co-equal jurisdiction, and
issued arrest orders against a deputy sheriff and an attorney-in-fact of a party
who proceeded to enforce the writs of execution despite said unjunctions. To
effect the immediate execution of the order of arrest against deputy sheriff
Ramirez, respondent wrote a handwritten note to Brig. Gen. Alfredo Lim
requesting his assistance on the matter.
To our mind, both orders of arrest were improvidently issued. Respondent
judge should have been aware that forcible entry and detainer cases do not
interfere with a proceeding where ownership is at issue. Thus, in Petargue v.
Sorilla, 92 Phil. 5, it was held that "the determination of the respective right
of rival claimants to public land is different from the determination of who has
the actual physical possession or occupation with a view to protecting the
same and preventing disorder and breaches of the peace. A judgment of the
court ordering restitution of the possession of a parcel of land to the actual
occupant, who has been deprived thereof by another through the use of force
or in any illegal manner, can never be 'prejudicial interference' with the
disposition or alienation of public land." Besides, in the case of deputy sheriff
Ramirez respondent judge should have taken into consideration that his duty
to enforce court orders and processes is ministerial in character and that he
has no authority to determine the validity of the order placed in his hands to
implement. Thus, whether Judge Liwag can, in the exercise of appellate
jurisdiction, legally issue the writ of execution is of no moment insofar as
deputy sheriff Ramirez is concerned, and he should not have been punished
by incarceration for performing his official duty.
Moreover, the handwritten note of respondent judge to Brig. Gen. Lim is, to
say the least, highly irregular and improper. Her over-zealousness in
implementing the order of arrest creates the impression that she has taken
an interest far and beyond that ordinarily expected of judicial officers with
respect to cases pending before them; which, in turn, puts her impartiality in
question.
Respondent judge is of the impression that the release of Ramirez from jail
and the recall of the order of arrest against Victoria Torres had rendered the
administrative cases against her moot and academic. Rather than exonerate
her, these facts instead serve to strengthen the charges against her. For one,
the release order issued by this Court only proves the impropriety of her act,
while on the other, the recall order demonstrates the impetuosity by which
the arrest order was issued in the first place.
The same attitude is observed in respondent judge in connection with
Administrative Matter No. R-684-RTC which she wants this court to consider
moot and academic for the reasons that she has rendered a decision in Civil
Case No. C-9831 and that the complainant had moved for the withdrawal of
said complaint.
We said in the case of Vasquez v. Malvar, 85 SCRA 10, that a motion to
withdraw and/or dismiss the complaint by complainant, does not, by itself,
warrant the dismissal of the administrative case against respondent judge,
because "to condition administrative actions upon the will of every
complainant, who may, for one reason or another, condone a detestable act,
PINEDAPCGRNMAN
is to strip this Court of its supervisory power to discipline erring members of
the Judiciary."
And seriously blunder, respondent did.
While it appears that the complaint was filed under a misapprehension of
facts, in that it was not indubitably established that the case had been
submitted for decision as alleged in the complaint, and dismissal of the
charge should have followed as a matter of course, the case had taken an
unexpected twist. In her answer, respondent judge admitted to have
succumbed to pressure in deciding the case in favor of herein complainant,
Mrs. Esperanza G. Lazaro. Thus, "In order to promote peace so nobody
would call me again by telephone telling the same purpose, the respondent,
then decided the case with the point in mind that this [sic] a revolutionary
government and she had nor [sic] recourse but to decide the case in favor of
Mrs. Esperanza G. Lazaro, [Decision dated July 18, 1986, see attached.]" 8
Even accepting for the nonce that there was this supposed pressure from a
source twice removed from the national official mentioned earlier, her
confessed act of succumbing to this pressure on the telephone is a patent
betrayal of the public trust reposed on respondent as an arbiter of the law
and a revelation of her weak moral character. By her appointment to the
office, the public has laid on respondent their confidence that she is mentally
and morally fit to pass upon the merits of their varied contentions. For this
reason, they expect her to be fearless in her pursuit to render justice, to be
unafraid to displease any person, interest or power and to be equipped with
a moral fiber strong enough to resist the temptations lurking in her office.
Regrettably, respondent has dismally failed to exhibit these qualities required
of those holding such office.
In Administrative Matter No. R-359-RTJ, respondent judge failed to act with
reasonable dispatch required of judicial officers. There is reason to doubt the
authenticity of the date shown on the order resolving the motion of
complainant to declare therein defendant Pasion in default. If it were true that
the motion was resolved as early as March 1, 1985, We do not think that
service of the order upon counsel for complainant at this office in Espana,
Manila would take more than three [3] months, and most conveniently after
the present complaint has been filed.
Delay in the administration of justice is the most common cause of complaint
and a judge should endeavor to avoid it. It is thus incumbent upon a judge to
manage his court with a view to the prompt and convenient disposition of its
business and he should not tolerate abuses, indifference or neglect by clerks,
sheriffs and other officers of the court. Hence, upon failure of her clerk to
serve summons on the third party defendant, it became incumbent upon her
to remind said clerk of such failure.
The explanation given by respondent judge in Administrative Matter No. 86-
4-9987-RTC is unsatisfactory. Par. VIII, Circular No. 7, dated September 23,
1974 of this Court provides:
VIII. PAIRING SYSTEM:
A pairing system shall be established whereby every branch shall be
considered as paired with another branch. In the event of vacancy in any
branch, or of the absence or disability of the judge thereof, all incidental or
interlocutory matters pertaining to it may be acted upon by that judge of the
other branch paired with it. The latter may likewise conduct trials or hearings
on the merits in criminal cases with detention prisoners assigned to the other
branch, as well as in other kinds of cases, subject to the conformity of the
parties. [Emphasis supplied.]
Pursuant to the above-quoted internal procedure, the referral of Civil Case
No. C-12172 to judge Macandog was solely for the purpose of acting upon
the motion to consolidate and/or transfer case to the pairing judge. Such
referral did not in any manner empower or authorize her to decide the case
on the merits, particularly in the light of the vigorous objection interposed by
therein plaintiff. The power and authority of one acting as a pairing judge are
clearly defined and delineated by said paragraph and one acting beyond its
tenor certainly oversteps his authority.
Judges are required to observe due care in the performance of their official
duties. 9 They are likewise charged with the knowledge of internal rules and
procedures, especially those which relate to the scope of their authority. They
are dutybound to observe and abide by these rules and procedures,
designed, as they are, primarily to ensure the orderly administration of justice.
Thus, confronted with a serious challenge to one's authority, an ordinary
Page 349
prudent man would perceive the reasonableness, if not the wisdom, of the
suggestion/request that the question at hand be referred to this Court. The
hasty and reckless attitude of respondent judge in taking cognizance of
LEGAL ETHICS
and deciding Civil Case No. 12172 despite the strong objection against her
authority and the reasonable request for referral of the question to this Court,
constitutes misconduct in office warranting disciplinary sanction.
Anent respondent's averment that she was granted authority by this Court on
September 16, 1982 to take cognizance of all kinds of cases in Branch CXXI,
suffice it to say that the same was revoked, not by our resolution of April 26,
1986, but much earlier, by the implementation of the Judiciary
Reorganization Act on January 17, 1983.
Respondent Judge Macandog has shown herself to be mentally and morally
unfit to remain in her office. Her removal must perforce be effected.
In view of the disclosure by respondent that the decision in Civil Case No. C-
9831 was rendered under undue pressure and influence, the party aggrieved
thereby may take such remedial steps as may be warranted.
WHEREFORE, respondent Judge Antonia Corpuz-Macandog is hereby
ordered dismissed from the service, with forfeiture of all retirement benefits
and pay, and with prejudice to reinstatement in any branch of the government
or any of its agencies or instrumentalities.
This Decision is immediately executory.
SO ORDERED.
Rule 1.02 – SEC. 2. In performing judicial duties, judges shall be
independent from judicial colleagues in respect of decisions which the
judge is obliged to make independently.
A.M. No. 276-MJ June 27, 1975
HADJIRUL TAHIL, complainant,
vs.
ATTY. CARLITO A. EISMA, Municipal Judge of Parang, Sulu,
respondent.
RESOLUTION
ANTONIO, J.:
Respondent Municipal Judge Carlito A. Eisma, of Parang, Sulu, is charged
by complainant Hadjirul Tahil with dishonesty in not reporting regularly to his
office, contrary to the recitals of his daily time record. In his "Investigation,
Report and Recommendation" dated February 29, 1973, Judge Felix V.
Barbers of the Court of First Instance of Sulu, Branch III, 16th Judicial District,
who investigated the case, recommended the dismissal of the charge.
According to the findings of the Investigating Judge:
... respondent has been regularly reporting to his office except on certain
days when he marked himself absent during which he explained, his salary
was correspondingly deducted therefrom.
The filing of this complaint, the respondent declared, is motivated by hatred,
anger and revenge on the part of the complainant. This is occasioned by the
fact, when complainant brought the bail bond of his nephew Bakkal Ilahal
charged in Criminal Case No. 241-N before the Court of respondent, for
approval of the latter. Because of the failure of the bondsmen to appear
before him, respondent did not approve of the bail bond. Again on another
occasion, complainant filed in the Court of respondent a motion to dismiss
Criminal Case No. 372-N, wherein the same nephew of the complainant,
Bakkal Ilahal, is also charged with the crime of illegal possession of firearms.
A scrutiny of the motion to dismiss and its annexes, offered in evidence by
respondent, will show that the same is based on documents merely certified
to by the clerk of the counsel of Bakkal Ilahal. Respondent in his order
denying this motion to dismiss ruled:
"After a thorough perusal and study of the issues involved in the motion to
dismiss and the opposition, thereto, the Court finds that the reasons of Lt.
Rodialo Gumtang in his oral opposition are more logical and justifiable
because the evidence upon which accused thru counsel relies in their motion
to dismiss are documentary in nature and the Court is not in a position to
accept this kind of evidence without confronting persons who executed and
prepared the documents in question. Furthermore, some of the documents
presented by accused thru counsel are merely certified true copies, the
validity and originality of which are subject to question.
"Accused thru counsel can have all the opportunity to present all their
evidence during the trial of the case, hence, to pass and decide upon the
validity of the documents attached to the motion to dismiss is premature and
the proper subject of a trial on the merits.
"WHEREFORE, in view of the foregoing consideration, this Court denies the
motion to dismiss of accused and orders that this case be set for trial on April
PINEDAPCGRNMAN
15, 1971. Let copy of this order be issued to the parties with the warning that
no postponements shall be entertained.
"SO ORDERED."
Without going to the merits of the abovementioned two cases, this Court finds
that respondent acted judiciously on the matter. His disapproval of the bail
bond without the bondsmen appearing before him in the first case (murder)
is correct, because as the approving officer he must satisfy himself that those
who made, the undertaking to bail the accused are the same persons whose
names appear on the bail bond and whose signatures are affixed thereto,
otherwise, if only for the sake of friendship to accomodate the complainant,
would make the bond a useless scrap of paper, and which respondent can
be held responsible.
A scrutiny of the bail bond (Exhibit 1) which we believe is the original thereof,
the same is not even signed by the principal, who is the accused to be bailed.
Neither has it been shown that the current taxes of the real properties offered
as bond had been paid. The receipts of payment or a certificate of the
municipal treasurer to this effect is not even attached, which are
requirements to be accomplished pursuant to existing circulars of the
Department of Justice.
As to the order denying the motion to dismiss in the other case (illegal
possession of firearm), this Court finds and is convinced that respondent
acted legally. A scrutiny of the motion to dismiss and the grounds thereof,
are grounds that could be taken and proven during the trial on the merits of
the case. Respondent not having been satisfied with the documents annexed
to the motion which are purely certified copies made by the clerk of the
accused's counsel, respondent acted correctly and legally.
On this score, complainant has all the reasons to be angry at respondent
taking into consideration their previous friendship, and now respondent has
failed to accomodate him as hereinabove described. A lot of persons,
because of friendly relations they have with judicial authorities, consider that
when their wishes are not complied with or accomodated in cases pending
before the courts of which they have an interest, it is the end of such
friendship and to their eyes the judge is not a friend but a foe. Their
nearsightedness on these matters could be like a poison to their mental
faculties so that they would like the judge who failed to accomodate them,
face their wrath and displeasure. Complainant became wrathful, but wrath
must be properly channeled or it may work out a grave injustice. But,
certainly, a judge in the exercise of his judicial function, does not see whether
one is a friend or foe, whether one is influential or not, but rather, whether he
acts within the law he is to apply, whether his actuations are prescribed by
the rules of court and whether he has acted judiciously.
As to the alleged falsification of the respondent of his daily time record and
the allegation that he only reports to his office during Mondays and
Thursdays, do not find credibility, and naturally should not be given weight.
It appears, however, that in the aforementioned Criminal Case No. 241-N for
murder, respondent admitted having granted bail to the accused upon the
request of a congressman, despite his belief that the evidence of guilt against
the accused was strong. On the basis of this admission, the Judicial
Consultant recommends that the respondent Judge "be fined in an amount
equivalent to his salary for one (1) month and warned that a repetition of such
a breach of integrity will be dealt with more sternly."
Under the Constitution, all persons shall, before conviction, be bailable by
sufficient sureties, except those charged with capital offenses when evidence
of guilt is strong. The discretion of the court to grant bail in a capital offense,
before conviction, must be based upon the Court's determination as to
whether or not the evidence of guilt is strong. This discretion may only be
exercised after the evidence is submitted at the summary hearing conducted
pursuant to Section 7 of Rule 114 of the Rules.1äwphï1.ñët
Respondent's admission that he granted bail because of the request of a
congressman, despite his belief that the evidence of guilt against the accused
is strong, is indeed reprehensible. But it is not clear from the record whether
or not a summary hearing was conducted by respondent Judge in Criminal
Case No. 241-N for the purpose of bail and, on the basis of his appreciation
of the evidence submitted, granted bail to the accused. Moreover,
respondent was not specifically charged and investigated in this regard, and
in the absence of any specific finding that respondent gravely abused his
discretion in granting bail to the accused in said case, this Court has no basis
Page 350
to impose a fine upon respondent.
WHEREFORE, in view of all the foregoing, the charge against respondent is
DISMISSED. Considering his admission, however, he is hereby admonished
LEGAL ETHICS
to demonstrate a greater degree of competence, intellectual courage and
independence in the discharge of his judicial duties, for only in that manner
can he merit the judicial position that he occupies and the support and
confidence of the people.
Rule 1.03 – SEC. 3. Judges shall refrain from influencing in any manner
the outcome of litigation or dispute pending before another court or
administrative agency.
[A.M. RTJ-94-1266. August 21, 1996]
ARMANDO CONTRERAS, complainant, vs. JUDGE CESAR M.
SOLIS, respondent.
DECISION
MELO, J.:
The instant administrative case against respondent Judge Cesar M. Solis
stemmed from his orders releasing the accused on bail in a habeas corpus
proceeding and his subsequent order directing the re-arrest of the said
accused.
The antecedent facts of the case are as follows:
On November 8, 1992, prior to the filing of a petition for habeas corpus before
the sala of herein respondent Judge Solis, and information was filed against
Rufino Mamangon, a PNP member, for the murder of Gener Contreras. The
case was raffled to Branch 18 of the Regional Trial Court of the Third Judicial
Region stationed in Malolos, Bulacan, presided over by Judge Demetrio
Macapagal Sr. On May 31, 1994, Judge Macapagal dismissed the criminal
case for lack of jurisdiction and accordingly directed the branch clerk of court
to forward the complete record of the case to the Sandiganbayan.
Mamangon was not, however, released from detention despite the dismissal
of the criminal case, prompting him on July 20, 1994, to file a petition for
habeas corpus. The petition was raffled to the branch (No.
21) presided over by herein respondent Judge Cesar M. Solis. Respondent,
in an order dated July 27, 1994, dismissed the petition for lack of merit. On
August 4, 1994, acting on a motion for reconsideration filed by Mamangon,
respondent issued an order authorizing the release of Mamangon from the
provincial jail upon the posting of a cash bond in the amount of P25,000.00. A
motion for reconsideration was filed by the provincial prosecutor which
prompted respondent judge to cancel the cash bond posted by Mamangon
and to order his re-arrest. Thereupon, Armando Contreras, brother of the
victim Gener Contreras, filed the instant complaint.
Complainant alleged that on the morning of August 1, 1994, when he went to
the office of respondent he was told by the latter that Mamangon is willing to
give P25,000.00 for his release. It appears, according to complainant, that if
he would give the same amount of money, respondent would no longer
release Mamangon.
According to complainant, respondent also gravely abused his discretion and
authority when he ordered the release of the accused upon the posting of the
cash bond; that it is not within the authority of respondent to release the
accused considering that his authority in a habeas corpus proceeding is to
determine whether or not the detention of the accused is legal or illegal.
Moreover, it was contended, respondent has no authority to order the re-
arrest of the accused in the same proceeding.
On July 3, 1996, Deputy Court Administrator Zenaida N. Elepao submitted
her report with the following evaluation:
A. On the Charge of Dishonesty/Extortion
Respondent insists he never asked money from complainant. He merely
instructed one of his staff to advise Armando Contreras about the
habeas corpus proceeding so that he can participate in it. It was quite late in
the afternoon of that day and the clerks were no longer available to type the
notice or order. He also explains that complainant misconstrued his
mentioning an amount, i.e., P20,000.00 to be extortion when all he meant
was that this would be how much he will spend to hire a lawyer to represent
his cause in the proceedings.
The protestations of respondent Judge are not exactly persuasive. At once
certain questions beg to be asked. For instance, if his sole interest in asking
Contreras to see him in his office was to afford the former the opportunity to
participate in the habeas corpus case, why express such interest at a very
late stage, i.e., after he had issued a decision thereon and after petitioner
filed a Motion for Reconsideration of the decision? Noteworthy is that the
petition was filed on 20 July 1994, set for hearing six (6) days later or on 26
PINEDAPCGRNMAN
July, and the decision rendered the following day. Judge Solis could have
very well notified complainant about the proceeding as soon as the petition
was filed by simply furnishing him copy of his Order setting the case for
hearing on 26th July. But he did not. Strangely enough, he waited until after
the last working hour of Friday, 29th July, to notify Contreras of his desire to
meet him at the very early hour of 7 oclock in the morning of 1 August. Why
then did the judge schedule the meeting at an early hour that morning even
before court employees arrived for work? Was it only for the purpose of telling
complainant that he can participate in the proceeding, or more specifically, in
the hearing of the Motion for Reconsideration, and that he should engage the
services of a good lawyer for P20,000.00? If it was, then in my view, the
meeting was absolutely unnecessary. The judge denies that he propositioned
complainant, and complainant informs the Court that he did not pay the
amount proposed. At any rate on 8 August 1994 Judge Solis motu proprio
issued two Orders for the posting of a cash bond for P25,000.00 by accused
Mamangon and his release from jail, and transmittal of the records of the
case to Sandiganbayan.
While no proof has been submitted to the Court by complainant as to
attempted extortion by respondent judge other than his verified letter-
complaint, still, the actuations of respondent leave much to be desired since
these easily lend[s] to suspicions of dishonesty. On this score alone,
respondent should be properly advised to avoid occasions where his acts
may arouse suspicions of irregularity.
B. On the Grant and Subsequent Cancellation of Bail Constituting
Grave Abuse of Authority, Grave Misconduct and Incompetence
Section 3, Rule 114 of the Rules of Court provides that all persons in custody
shall, before final conviction, be entitled to bail as a matter of right, except
when charged with a capital offense or an offense which, under the law at
the time of its commission and at the time of the application for bail, is
punishable by reclusion perpetua when evidence of guilt is strong.
Criminal Case No. 2406-M-92 for MURDER was filed on 5 November 1992
when the penalty imposable at the time for the crime of murder was reclusion
temporal in its maximum period to reclusion perpetua. Significantly, the
records do not show that an application for bail was filed with the court trying
the criminal case. Neither do they show that such an application was filed
with respondent Judge in the habeas corpus proceedings. Complainant has
pointed this out in his complaint because it appears that the grant of bail to
the accused by respondent Judge Cesar M. Solis and the corresponding
approval of his cash bond in the amount of P25,000.00 as shown in the
Orders dated 4 August 1994 (p. 27) and 8 August 1994 (p. 28), respectively,
was in the thinking of the judge, a matter of right for the accused.
An analysis of the submissions of respondent Judge on this point shows that
in issuing the aforesaid Orders, he relied on the provisions of Sec. 14 of Rule
102 which state:
Sec. 14. When person lawfully imprisoned, recommitted, and when let to bail.
If it appears that the prisoner was lawfully committed, and is plainly and
specifically charged in the warrant of commitment with an offense punishable
by death, he shall not be released, discharged, or bailed. If he is lawfully
imprisoned or restrained on a charge of having committed an offense not so
punishable, he may be recommitted to imprisonment or admitted to bail in
the discretion of the court or judge. If he be admitted to bail, he shall forthwith
file a bond in such sum as the court or judge deems reasonable, considering
the circumstances of the prisoner and the nature of the offense charged,
conditioned for his appearance before the court where the offense is properly
cognizable to abide its order or judgment; and the court or judge shall certify
the proceedings, together with the bond, forthwith to the proper court. If such
bond is not so filed, the prisoner shall be recommitted to confinement.
In the Order dated 24 August 1994 (p. 16, Rollo) respondent Judge justified
his reliance on the aforequoted provision pointing to Section 2, Rule 72 of the
Rules of Court which provides that in the absence of special provisions, the
rules provided for in ordinary actions shall, as far as practicable, be applicable
in special proceedings. A habeas corpus belongs to the category of special
proceedings.
In the same Order, Judge Solis further argued that because of Sec. 14 of
Rule 102, he took into consideration the fact that since the penalty for the
crime at the time was only reclusion perpetua and not death, he did not find
it necessary to apply the provisions of criminal procedure on bail.
Page 351
I am not convinced of the reasons proffered by respondent Judge.
The accused never applied for bail. Consequently, it was improper for and
erroneous of respondent judge to advocate for the accused and motu
LEGAL ETHICS
proprio grant him bail sans application.Compounding this was that despite
the fact that the penalty for the crime for which the accused was detained
was reclusion perpetua, no hearing was ordered by the judge to give
prosecution a chance to show that the evidence against the accused was
strong as to preclude bail. It is my position that the grant of bail under Sec.
14 of Rule 102 of the Rules does not do away with the basic requirements
set forth in Rule 114 of the Rules on Criminal Procedure on Bail since the
former merely prescribes supplemental rules on bail for habeas corpus
proceedings. The argument of respondent that he merely interpreted Sec. 14
of Rule 102 to the best interest of justice and fair play considering that the
murder case had been dismissed by Branch 18, the accused had been
detained for a long period and that he had a family to support are specious,
being irrelevant, in the face of the express requirements of the Rules. More
importantly, the application of Sec. 14 of Rule 102 of the Rules is erroneous
because while Sec. 14 speaks of a prisoner lawfully restrained, Mamangon
in this case was being unlawfully restrained despite the dismissal of the case
against him on the ground of lack jurisdiction (sic). Respondent therefore
should have forthwith ordered Mamangons release from jail. Instead, he
granted bail which was not even necessary. This however cannot be
construed as malicious, it appearing merely to be an error of judgment.
Respondents misapplication of the law was further aggravated when upon
motion by prosecution and complainant herein, he cancelled the cash bond
posted by Mamangon and ordered his re-arrest for the reason that such is
allowed by the self-same provision upon which he based his Order granting
bail to Mamangon, and considering further that [the] Mamangons release
would endanger the life of complainant and that of his family and relatives.
A close reading of the rule alluded to shows that while discretion is afforded
the judge to grant bail, no discretion is authorized in the cancellation thereof,
for the rules limit the instances under which bail may be cancelled. Thus,
Sec. 22 of Rule 114 applies, quoted hereunder:
Cancellation of bail bond. Upon application filed with the court and after due
notice to the prosecutor, the bail bond may be cancelled upon surrender of
the accused or proof of his death.
The bail bond shall be deemed automatically cancelled upon acquittal of the
accused or dismissal of the case or execution of the final judgment of
conviction.
In all instances, the cancellation shall be without prejudice to any liability of
the bond.
The grounds cited by respondent in cancelling Mamangons bail find no
support in the abovequoted provision. Thus grave misconduct was
committed by respondent when he arbitrarily cancelled Mamangons bail and
ordered the latters re-arrest. For this reason, respondent must be sanctioned.
On the basis of the above, the imposition of an unspecified fine was
recommended.
We partly agree with the findings and recommendation of the Office of the
Court Administrator.
On the Charge of Extortion and Dishonesty
Our minds can not sit easy with regard to the charge of extortion. Respondent
admitted having met complainant in the early morning of August 1, 1994, for
the purpose of informing complainant that he could participate in the habeas
corpus proceeding. During said meeting, respondent also admitted having
told complainant of the potency of Mamangons motion for reconsideration
and the amount of money which complainant would spend to hire a good
lawyer to represent him in the proceeding. Respondents seemingly benign
conduct of advising complainant on matters pending before respondent
puzzle our minds since we are not told of any special circumstance which
would justify respondents special interest over complainants concern.
Respondent, however, gives no other reason for meeting and advising
complainant that could dispel ill thoughts in reference to respondents
motives. Any person with a reasonable mind would deduce that respondents
actuation meant something much more than what he explicitly suggested, for
what could be respondents reason, in mentioning the potency of Mamangons
motion for reconsideration and the amount of money which complainant
might spend in resisting the same, than to insinuate that complainant could
save on expenses and be certain of the result by spending the same amount
for the judge. Certainly, it is simply naive to say that a proposal to that effect
could be done only through the use of direct words expressing respondents
intention to be willing and able to decide the case in complainants favor for a
consideration. Respondents pretended innocence over the perceived
meaning of his insinuation is unpersuasive considering
PINEDAPCGRNMAN
his long years in the practice of law. Thus, the intention of respondent in
meeting with complainant and in giving him advise is, to say the least, far
from the behavior of a member of judiciary, who should, at all times, avoid
the slightest of hint of anomaly and corruption.
Verily, the duty of a judge is not only to administer justice but also to conduct
himself in a manner that would avoid any suspicion of irregularity. He has the
avowed duty of promoting confidence in the judicial system. Thus, the Code
of Judicial Conduct provides:
Canon I
Rule 1.01 : A judge should be the embodiment of competence, integrity and
independence.
Canon II
Rule 2.00 : A judge should avoid impropriety and the appearance of
impropriety in all activities.
Rule 2.01 : A judge should so behave at all times as to promote public
confidence in the integrity and impartiality of the judiciary.
A judges official conduct and his behavior in the performance of his duties
should be free from appearance of impropriety and must be beyond reproach
(Alazar vs. Reyes, 131 SCRA445, 453). Any act which would give the
appearance of impropriety is in itself reprehensible, calling for disciplinary
action. This is the price which must be paid by one who joins the Judiciary.
Whatever may have been respondent judges motive in meeting complainant,
such action certainly could but be said as giving rise to questions on his
honesty. Respondent judge is thus guilty of committing acts of impropriety
prejudicial to the integrity of the judiciary.
On Grave Abuse of Authority and Grave Misconduct and Incompetence
At the outset, let it be said that respondent judge correctly ruled that the
granting of the petition for habeas corpus would unduly intervene with the
functions of a co-equal branch of the court, considering that the period within
which to file a notice of appeal or a motion for reconsideration against the
order of Judge Macapagal declaring his court to be without jurisdiction had
then not yet lapsed. However, respondent, upon Mamangon filing a motion
for reconsideration, released Mamangon on bail. Maliciously made it is
suggested, for it was made several days after an alleged extortion attempt
by respondent judge upon herein complainant Armando Contreras. The
order, nonetheless, according to respondent is not devoid of any legal
basis.Respondent judge cites, in this regard, Section 14 of Rule 102 of the
Revised Rules of Court as his legal ground for such an order, to wit:
When person lawfully imprisoned recommitted, and when let to bail. If it
appears that the prisoner was lawfully committed, and is plainly and
specifically charged in the warrant of commitment with an offense punishable
by death, he shall not be released, discharged, or bailed. If he is lawfully
imprisoned or restrained on a charge of having committed an offense not so
punishable, he may be recommitted to imprisonment or admitted to bail in
the discretion of the court or judge. If he be admitted to bail, he shall forthwith
file a bond in such sum as the court or judge deems reasonable, considering
the circumstances of the prisoner and the nature of the offense charged,
conditioned for his appearance before the court where the offense is properly
cognizable to abide its order or judgment; and the court or judge shall certify
the proceedings, together with the bond, forthwith to the proper court. If such
bond is not so filed, the prisoner shall be recommitted to confinement.
Clear as the basis may be, its application is, however, erroneous. Even
assuming that Mamangon was lawfully imprisoned at the outset, at the time
he filed his motion for reconsideration, the decision of Judge Macapagal
declaring his court to be without jurisdiction had already become final and
considering that no information had been re-filed, the detention of Mamangon
was untenable and illegal. An accused against whom the information has
been dismissed for lack of jurisdiction may no longer be detained; the
information under which the accused is being held for trial loses its force and
effect. There is simply nothing to hold the accused answerable for. Section
14 of Rule 102 of the Revised Rules of Court speaks of a person lawfully
imprisoned. The accused Mamangon was no longer lawfully imprisoned at
the time the motion for reconsideration was filed. Thus, respondent should
not have applied Section 12 of Rule 114 but instead reversed his former
decision by granting the petition and ordering the release of the accused
without requiring him to post bail. When the court where the criminal case
was filed is without jurisdiction, the authority of the court to hold the accused
Page 352
in confinement pending trial is a valid subject of a petition for habeas corpus.
Where the petitioner is held upon a judicial order, the writ will lie where the
order is void because the court issuing it had no jurisdiction over
LEGAL ETHICS
the crime charged or over the person accused where the latter had
challenged on time, the jurisdiction of the court over his person (Francisco,
p. 665, Rules of Court in the Philippines Vol. V-B; citing the case
of Banayo vs. President of San Pablo, 2 Phil. 413; Collins vs. Wolfe, 4 Phil.
534; Malinao et al. vs. Peterson, No. L-16464 July 26, 1960). But this remedy
should not be secured before a court of equal rank in order to avoid undue
interference upon the functions of another branch unless the former court
has declared itself to be without jurisdiction, as in the instant case.
Considering that the petition for habeas corpus should have been granted,
and the accused released from jail without bail, respondent judge acted
erroneously when he ordered the re-arrest of the accused. Apparently, the
order of respondent to re-arrest the accused was prompted by the filing of
the motion for reconsideration by the prosecution alleging that respondent
committed error when he ordered the release of the accused charged with a
capital offense. Believing that an error has been committed, respondent
ordered the cancellation of the cash bond and the re-arrest of the accused
by invoking the inherent power of the court to protect and preserve the rights
of the parties and for the safety of the victims family. Unfortunately, in trying
to correct his error, respondent fell into another error by ordering the re-arrest
of the accused.
The erroneous application of the rule by respondent nevertheless cannot be
the sole basis for disciplining him. As we have ruled in the past, in order to
discipline a judge, it must clearly be shown that the judgment or order is
unjust as being contrary to law and that the judge rendered it with conscious
and deliberate intent to do injustice (Re Climaco, 55 SCRA 107). Judges
cannot be subjected to liability civil, criminal or administrative for any of their
official acts, no matter how erroneous, so long as they act in good faith. It is
only when they act fraudulently or corruptly, or with gross ignorance may they
be held criminally or administratively responsible (Valdez vs. Valera, 81
SCRA 246). Considering the circumstances of the case at bar, we cannot hold
respondent liable for his erroneous action. An erroneous decision or order is
presumed to have been issued in good faith in the absence of proof to the
contrary. Complainant herein alleged that the order of respondent judge
releasing the accused on bail was maliciously motivated for having been
issued several days after the attempted extortion. We find the decision of
respondent erroneous but its malicious intent, however, may not be
presumed in the absence of any evidence to prove the same. It might be
suggested that, respondents ill motives may be presumed considering his
actuation prior to the issuance of the questioned erroneous order. We are,
however, unable to find a clear and definite connection between an attempt
at extortion and the subsequent erroneous orders. It would be unjust to
presume wrong intentions considering that respondents questioned orders
are not totally unjustifiable.
Withal, respondent judge cannot be held liable for releasing Mamangon on
bail and for ordering the cancellation of his cash bond and his re-arrest.
WHEREFORE, we find respondent judge guilty of committing acts of
impropriety prejudicial to the integrity of the Judiciary, for which infraction he
is hereby ordered to pay a fine of Two Thousand (P2,000.00), with the
warning that a repetition of a similar conduct shall be dealt with more
severely.
SO ORDERED.
. The fact that there was already an Exh. F for the plaintiff was confirmed by
RULE 1.04 SEC. 4. Judges shall not allow family, social, or other
relationships to influence judicial conduct or judgment. The prestige of
judicial office shall not be used or lent to advance the private interests
of others, nor convey or permit others to convey the impression that
they are in a special position to influence the judge.
A.M. No. R-192-RTJ January 9, 1987
ATTY. ARTURO A. ROMERO, complainant,
vs.
HON. JUDGE GABRIEL O. VALLE, JR., respondent.
RESOLUTION
PER CURIAM:
In a verified complaint dated November 28, 1984, Atty. Arturo A. Romero
charged Judge Gabriel O. Valle, Jr;. of the Regional Trial Court of Laoag City,
Branch XII with grave misconduct and oppression. In the words of
complainant himself, the acts complained of consisted in:
PINEDAPCGRNMAN
5. That instead of directing complainant to proceed with the marking of
exhibits and to continue the direct examination, respondent continued to utter
embarrassing remarks which hurt complainant and, therefore, the latter tried
to make further explanations on said exhibits and to defend his integrity in a
controlled and respectful manner, but his honor, the respondent judge
suddenly banged his gavel producing such a deafening noise that several
persons from the adjoining branches of the Court came: that without
declaring a recess, said respondent judge unceremoniously REMOVED his
coat and told, angrily, herein complainant: "You step out and we will finish
the matter"; immediately thereafter, respondent judge stepped down from the
rostrum and left;
6. That, shaken and stunned by such sudden aggressive behaviour of
respondent, complainant then stood by his seat, and as some people in the
Courtroom rushed out of the Courtroom, complainant looked around and then
saw respondent judge outside the courtroom holding a gun with his right
hand, in front of him, facing towards complainant, in an angry and menacing
manner, and waited for complainant to go outside; confronted by such
alarming and threatening stance of respondent, complainant could not move
for a moment, as complainant was totally unarmed, surprised and shocked;
and when complainant saw respondent Judge briskly walked to and fro still
holding a gun, complainant then asked the Court stenographer: "Please put
in the record that the Judge is holding a gun"; that luckily thereafter, Atty.
Isidro Madamba, member of the Sangunian Panlalawigan, succeeded in
pacifying respondent judge and shortly, said respondent returned to the
Court; that after some remarks by respondent judge, complainant moved that
the Honorable respondent voluntarily inhibit himself from further trying the
case in the light of the antecedents, but denied it and ordered the resetting
of the case; 1
Required to comment on the complaint, respondent judge denied the charges
and branded the same as "exaggerated, sensationalized, fabricated and
inherently improbable and contrary to human experience and one- sided.
2 Respondent judge likewise explained that he has been issued by the
provincial commander the necessary permit to carry his licensed pistol
outside his residence on account of a threat on his life from the New People's
Army. By way of prayer, he asked that complainant be suspended from the
practice of law for a certain period of time. 3
On January 31, 1985, the Court en banc resolved to refer the case to
Associate Justice of the then Intermediate Appeallate Court, Abdulwahid
Bidin, for investigation, report and recommendation. From the evidence
adduced at the hearings, Associate Justice Bidin made the following findings
of facts and conclusions:
Complainant is one of the two counsels for plaintiff in Civil Case No. 6821
entitled "Iglesia Filipina Independiente versus Rafael Albano, et. al.," for
"Quieting of Title with Preliminary Injunction," pending before the Regional
Trial Court of Ilocos Norte-Laoag City, branch XII, presided by Respondent
Judge.
During the trial of said case on November 19, 1984, complainant requested
that an inventory book of plaintiff be marked as Exhibit F. Respondent Judge
interrupted the complainant with a remark that the said inventory book should
be marked Exh. G since there is already an Exh. F of the plaintiff which was
marked during the last hearing of the case when complainant was absent.
the manifestation of Atty. Rafael Ruiz, counsel for the defendant after
verifying his notes as requested by respondent judge. Nevertheless, the
complainant in a loud voice insisted that his proposed marking of the Exhibit
is the correct one as the Exhibit F referred to by respondent judge and Atty.
Ruiz was not initialed by the Clerk of Court. This remark of complainant
irritated the respondent judge who retorted that complainant is not prepared
for trial and admonished the latter to be prepared with his trial brief before
coming to court so that he will not bangle (sic) the marking of his exhibit. As
the complainant continued insisting in a loud voice that his proposed marking
of the inventory book as Exhibit F is correct, despite the fact that respondent
judge had admonished him [complainant] not to bring his "passion" to the
court and if complainant does not respect the Judge, he should respect the
court, the respondent banged his gavel left the rostrum and went to his
chamber. According to the complainant and his witness, [Atty. Andres Tunac,
co-counsel of complainant in the case], the respondent, before leaving the
Page 353
rostrum made this remark to complainant "You step out. We finish the
matter." Respondent denied having made the challenge to complainant and
alleged that what he said or declared before leaving the rostrum was "five
LEGAL ETHICS
minutes recess." This call for a recess by respondent is confirmed and/or
corroborated by Atty. Rafael Ruiz, defendant's counsel in the case on trial
and respondent's witness in this investigation. From his chamber, respondent
judge went to the stairs passing the corridor holding his coat with his left hand
while on his right hand he was holding a hand gun [revolver] which was inside
its holster. As respondent walked on the corridor towards the stairs, he looked
at the courtroom where the lawyers were. Upon reaching the stairs,
respondent was informed by his clerk that there are still cases in the calendar
ready for trial. Respondent returned to his chamber and placed his gun inside
his table. Later, respondent came out to resume his court session.
At the resumption of the trial, the complainant stood up and asked the
respondent to inhibit himself from hearing the case. The respondent required
the complainant to put his request in writing and dictated an order resetting
the case to another date. The case [Civil Case No. 6821], is now transferred
to another judge who presides over Branch XIII.
Respondent claims that he is authorized to carry his licensed pistol outside
of his residence as evidenced by the Certification issued by the Provincial
Commander of Ilocos Norte [Exh. 7] and that he had been carrying the said
gun from his house to office and back ever since he received a letter threat
dated March 22, 1984 [Exh. 1 ] from the NPA.
According to Atty. Leandro Rafales [complainant's own witness] and who
appears with [sic] the most impartial among the witnesses, the respondent
stood up, bang [sic] his gavel and left the rostrum because the complainant
did not stop making remarks and insisted in a loud voice in marking the
inventory book as Exhibit F despite the fact that it has been established that
there was already an Exhibit F of the plaintiff and that before banging the
gavel respondent judge told the complainant not to bring his passion to court
and if complainant does not respect the Judge, he should respect the court.
Atty. Rafales also testified that respondent judge did not remove his coat
when he left the rostrum and while respondent was holding his gun which
was inside its holster with his right hand when he came out of his chamber
on his way towards the stairs, the gun was not pointed at anyone, although
the respondent turned his face towards the people inside the courtroom as
he walked towards the stairs.
As regards the charge that respondent challenged the complainant to step
out and we settle the matter the evidence is inconclusive. While the
complainant and his co-counsel, Atty. Tunac testified that the respondent
Judge uttered those statements, the latter and Atty. Rafael Ruiz [defendant's
counsel and witness for respondent] denied that such statement was made
by respondent. Both respondent and Atty. Ruiz allege that what respondent
said or declared before leaving the rostrum was "five minute recess." On the
other hand, Atty. Rafales testified that what he heard from respondent-judge
was "step out" only. The transcript of the proceedings that took place before
respondent judge on that fateful day had not been presented as evidenced
[sic] by the parties at this investigation. In view of this conflicting testimony of
the witnesses, the undersigned cannot conclude that respondent judge
challenged the complainant as alleged in the complaint. 4
It is evident from the foregoing that complainant and respondent judge are
equally to blame for the incident under consideration. We have enunciated in
the case of Lugue vs. Kayanan, 29 SCRA 165, that:
It is the duty of both counsel and judge to maintain, not to destroy, the high
esteem and regard for courts. Any act on the part of one or the other that
tends to undermine the people's respect for, and confidence in, the
administration of justice is to be avoided. And this, even if both may have to
restrain pride from taking the better part of their system. To be expected then
of petitioner and respondent is a sense of shared responsibility, a crucial
factor in the administration of justice. ...
The relations between counsel and judge should be based on-mutual respect
and on a deep appreciation by one of the duties of the other. 5 Thus, counsel
is expected to observe and maintain the respect due to the courts of justice
and judicial of officers. 6 Although allowed some latitude of remarks or
comment in the furtherance of causes he upholds, 7his arguments, written or
oral, should be gracious to both court and opposing counsel and be of such
words as may be properly addressed by one gentleman to
another. 8 Certainly, and most especially in our culture, raising one's voice is
a sign of disrespect, improper to one whose "investiture into the legal
profession places upon his shoulders no burden more basic, more exacting
and more imperative than that of respectful behavior towards the courts." 9
Complainant is an active law practitioner in the province of Ilocos Norte. He
was director of the Integrated Bar of the Philippines, Ilocos Norte-Laoag City
PINEDAPCGRNMAN
Chapter in 1982, Chairman of the Legal Aid Committee of said chapter,
president of PHILCONSA, Ilocos Norte-Laoag City Chapter from 1981-83
and president of the Ilocos Norte Lions Club in 1983. 10 As a recognized
community leader, complainant should provide an example in proper court
decorum to his brothers in the profession, and not to foment discord in the
courtroom. Considering complainant's obvious high standing in the legal
profession and the community, he should have observed humility to accept
mistakes graciously and to treat the same as the proverbial learning
experience.
On the other hand, respondent judge exhibited shortness of temper and
impatience, contrary to the duties and restrictions imposed upon him by
reason of his office. 11 In Calalang vs. Fernandez, Adm. Case No. 175-J,
June 10, 1971, We stated that a judge should show no shortness of temper
for it merely detracts from the equanimity and judiciousness that should be
the constant marks of a dispenser of justice. In the case at bar, respondent
judge, in losing his temper and engaging complainant in a heated discussion,
not only failed to observe the proper decorum expected of judicial officers,
but as a consequence thereof likewise failed to preserve and enforce order
in his court. Precisely, judicial officers are given contempt powers in order
that without being arbitrary, unreasonable or unjust, they may endeavor to
hold counsel to a proper appreciation of their duties to the court. Respondent
judge could very well have cited complainant in contempt of court instead of
indulging in tantrums by banging his gavel in a very forceful manner and
unceremoniously walking out of the courtroom.
Respondent judge appears to have a valid explanation for gun, but such
explanation cannot be taken as carrying a satisfactory. for his having chosen
to carry the same in plain view of the complainant and other lawyers inside
the courtroom when he came out of his chambers on his way to the stairs.
Taken in the light of what had just transpired, the actuation of respondent
judge was not an innocent gesture, but one calculated to instill fear in or
intimidate complainant. We cannot let this pass unnoticed. Respondent
judge's behavior constitutes grave misconduct. It is a serious violation of the
Canons of Judicial Ethics which require that a "judge's official conduct should
be free from the appearance of impropriety, and his personal behavior, not
only upon the bench and in the performance of judicial duties, but also in his
every day life, should be beyond reproach." 12 Moreover, it reveals an
attitude diametrically opposed to our pronouncement in De la Paz v. Inutan,
64 SCRA 540. that "the judge is the visible representation of law, and more
importantly, of justice." Certainly, one who lives by the uncivilized precept of
"might is right," is unworthy of an office entrusted with the duty to uphold the
rule of law.
WHEREFORE, Judge Gabriel O. Valle, Jr. is found guilty of grave
misconduct and is hereby ordered DISMISSED from the service, without
forfeiture of retirement benefits but with prejudice to reinstatement in any
branch of the government or any of its agencies or instrumentalities.
Complainant Atty. Arturo A. Romero is required to show cause why no
disciplinary action should be taken against him for conduct unbecoming of
an officer of the court, within fifteen (15) days from notice.
The decision is immediately executory.
SO ORDERED.
1.05 SEC. 5. Judges shall not only be free from inappropriate
connections with, and influence by, the executive and legislative
branches of government, but must also appear to be free therefrom to
a reasonable observer.
G.R. No. 72670 September 12, 1986
SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON,
MARY CONCEPCION BAUTISTA, JOAQUIN G. BERNAS; S.J., M.
BELLARMINE BERNAS, O.S.B., FRANCISCO I. CHAVEZ, SOLITA
COLLAS-MONSOD, SANTIAGO DUMLAO, JR., MARIA FERIA,
MARCELO B. FERNAN, FRANCISCO GARCHITORENA, * ANDREW
GONZALEZ, JOSE C. LAURETA, SALVADOR P. LOPEZ, FELIX K.
MARAMBA, JR., CECILIA MUÑOZ PALMA. JAIME V. ONGPIN, FELIX
PEREZ, JOSE B.L. REYES, JOSE E. ROMERO, JR., RAMON DEL
ROSARIO, JR., RICARDO J. ROMULO, AUGUSTO SANCHEZ,
EMMANUEL V. SORIANO, DAVID SYCIP, ENRIQUE SYQUIA, CRISTINA
Page 354
TAN, JESUS VARGAS, BERNARDO M. VILLEGAS, VICENTE JAYME,
**,petitioners,
vs.
LEGAL ETHICS
SANDIGANBAYAN, FIRST DIVISION (represented by Justice Manuel
Pamaran, Chairman, and Justices Augusto Amores and Bienvenido
Vera Cruz, Members), JUSTICE BERNARDO FERNANDEZ
(Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A.
OLIVAS, BRIG. GEN. LUFHER A. CUSTODIO, COL. ARTURO G.
CUSTODIO, COL. VICENTE B. TIGAS, JR., CAPT. FELIPE VALERIO,
CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd LT.
JESUS CASTRO, SGT. PABLO MARTINEZ, SGT. ARNULFO DE MESA,
SGT. TOMAS FERNANDEZ, SGT. CLARO LAT, SGT. FILOMENO
MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO M. MATEO,
SGT. RODOLFO M. DESOLONG, SGT. LEONARDO MOJICA, SGT.
PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A.
BONA, CIC ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA
G. ESTELO, AIC ANICETO ACUPIDO and HERMILO GOSUICO, ***
, respondents.
Lupino Lazaro and Arturo M. de Castro for petitioners.
Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr.
Rodolfo U. Jimenez for respondent Brig. Gen. Custodio.
Ramon M. Bernaldo for respondent H. Gosuico.
Romulo Quimbo for respondent B. Vera Cruz.
Norberto J. Quisumbing for respondent P. Olivas.
Felix Solomon for respondent Col. A. Custodio.
Alfonso S. Cruz for B. Fernandez.
Edgardo B. Gayos for M. Pamaran.
RESOLUTION
TEEHANKEE, C.J.:
Last August 21st, our nation marked with solemnity and for the first time in
freedom the third anniversary of the treacherous assassination of foremost
opposition leader former Senator Benigno "Ninoy" Aquino, Jr. imprisoned for
almost eight years since the imposition of martial law in September, 1972 by
then President Ferdinand E. Marcos, he was sentenced to death by firing
squad by a military tribunal for common offenses alleged to have been
committed long before the declaration of martial law and whose jurisdiction
over him as a civilian entitled to trial by judicial process by civil courts he
repudiated. Ninoy pleaded in vain that the military tribunals are admittedly not
courts but mere instruments and subject to the control of the President as
created by him under the General Orders issued by him as Commander- in-
Chief of the Armed Forces of the Philippines, and that he had already been
publicly indicted and adjudged guilty by the President of the charges in a
nationwide press conference held on August 24, 1971 when he declared the
evidence against Ninoy "not only strong but overwhelming ." 1 This followed
the Plaza Miranda bombing of August 21, 1971 of the proclamation rally of
the opposition Liberal Party candidates for the November, 1971 elections
(when eight persons were killed and practically all of the opposition
candidates headed by Senator Jovito Salonga and many more were
seriously injured), and the suspension of the privilege of the writ of habeas
corpus under Proclamation No. 889 on August 23, 1971. The massacre was
instantly attributed to the communists but the truth has never been known.
But the then President never filed the said charges against Ninoy in the civil
courts.
Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the
country to undergo successful heart surgery. After three years of exile and
despite the regime's refusal to give him a passport, he sought to return home
"to strive for a genuine national reconciliation founded on justice." He was to
be cold-bloodedly killed while under escort away by soldiers from his plane
that had just landed at the Manila International Airport on that fateful day at
past 1 p.m. His brain was smashed by a bullet fired point blank into the back
of his head by a murderous assassin, notwithstanding that the airport was
ringed by airtight security of close to 2,000 soldiers and "from a military
viewpoint, it (was) technically impossible to get inside (such) a cordon." 2 The
military investigators reported within a span of three hours that the man who
shot Aquino (whose identity was then supposed to be unknown and was
revealed only days later as Rolando Galman, although he was the personal
friend of accused Col. Arturo Custodio who picked him up from his house on
August 17, 1983) was a communist-hired gunman, and that the military
escorts gunned him down in turn. The military later filmed a re-enactment of
the killing scripted according to this version and continuously replayed it on
all TV channels as if it were taken live on the spot. The then President
instantly accepted the military version and repeated it in a nationally televised
PINEDAPCGRNMAN
press conference that he gave late in the evening of August 22, 1983,
wherein he said, in order to induce disbelief that the military had a hand in
the killing, that "if the purpose was to eliminate Aquino, this was not the way
to do it."
The national tragedy shocked the conscience of the entire nation and
outraged the free world. The large masses of people who joined in the ten-
day period of national mourning and came out in millions in the largest and
most orderly public turnout for Ninoy's funeral reflected their grief for his
martyrdom and their yearning for the truth, justice and freedom.
The then President was constrained to create a Fact Finding Board 3 to
investigate "the treacherous and vicious assassination of former Senator
Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become
a national tragedy and national shame specially because of the early
distortions and exaggerations in both foreign and local media 4 so that all right
thinking and honest men desire to ventilate the truth through fare,
independent and dispassionate investigation by prestigious and free
investigators." After two false starts, 5 he finally constituted the Board 6 on
October 22, 1983 which held 125 hearing days commencing November 3,
1983 (including 3 hearings in Tokyo and 8 hearings in Los Angeles,
California) and heard the testimonies of 194 witnesses recorded in 20,377
pages of transcripts, until the submission of their minority and majority reports
to the President on October 23 and 24, 1984. This was to mark another first
anywhere in the world wherein the minority report was submitted one day
ahead by the ponentethereof, the chairman, who was received congenially
and cordially by the then President who treated the report as if it were the
majority report instead of a minority report of one and forthwith referred it to
respondent Tanodbayan "for final resolution through the legal system" and
for trial in the Sandiganbayan which was better known as a graft court; and
the majority report of the four other members was submitted on the following
day to the then President who coldly received them and could scarcely
conceal his instant rejection of their report with the grim statement that "I
hope you can live with your conscience with what you have done."
The fact is that both majority and minority reports were one in rejecting the
military version as propounded by the chief investigator, respondent Gen.
Olivas, that Rolando Galman was the NPA-hired assassin, stating that "the
evidence shows [to the contrary] that Rolando Galman had no subversive
affiliations." They were in agreement that "only the soldiers in the staircase
with Sen. Aquino could have shot him;" that Galman, the military's "fall guy"
was "not the assassin of Sen. Aquino and that "the SWAT troopers who
gunned down Galman and the soldiers who escorted Sen. Aquino down the
service stairs, deliberately and in conspiracy with one another, gave a
perjured story to us regarding the alleged shooting by Galman of Sen. Aquino
and the mowing down, in turn, of Galman himself;" in short, that Ninoy's
assassination was the product of a military conspiracy, not a communist plot
The only difference between the two reports is that the majority report found
all the twenty-six private respondents abovenamed in the title of the case
headed by then AFP Chief General Fabian C. Ver involved in the military
conspiracy and therefore "indictable for the premeditated killing of Senator
Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983;"
while the chairman's minority report would exclude nineteen of them and limit
as plotters "the six persons who were on the service stairs while Senator
Aquino was descending" and "General Luther Custodio . . . because the
criminal plot could not have been planned and implemented without his
intervention."
The chairman wrote in her minority report (somewhat prophetically) that "The
epilogue to our work lies in what will transpire in accordance with the action
that the Office of the President may thereafter direct to be taken. "The four-
member majority report (also prophetically) wrote in the epilogue (after
warning the forces who adhere to an alien and intolerable political ideology
against unscrupulously using the report "to discredit our traditionally revered
institutions"), that "the tragedy opened our eyes and for the first time
confirmed our worst fears of what unchecked evil would be capable of doing."
They wrote:
The task of the Board was clear and unequivocal. This task was not only to
determine the facts and circumstances surrounding the death of the late
former Senator. Of greater significance is the awesome responsibility of the
Board to uphold righteousness over evil, justice over injustice, rationality over
Page 355
irrationality, humaneness over inhumanity. The task was indeed a painful
test, the inevitable result of which will restore our country's honored place
LEGAL ETHICS
among the sovereign nations of the free world where peace, law and order,
freedom, and justice are a way of life.
More than any other event in contemporary Philippine history, the killing of
the late former Senator Aquino has brought into sharper focus, the ills
pervading Philippine society. It was the concretization of the horror that has
been haunting this country for decades, routinely manifested by the
breakdown of peace and order, economic instability, subversion, graft and
corruption, and an increasing number of abusive elements in what are
otherwise noble institutions in our country-the military and law enforcement
agencies. We are, however, convinced that, by and large, the great majority
of the officers and men of these institutions have remained decent and
honorable, dedicated to their noble mission in the service of our country and
people.
The tragedy opened our eyes and for the first time confirmed our worst fears
of what unchecked evil would be capable of doing. As former Israeli Foreign
Minister Abba Eban observes. "Nobody who has great authority can be
trusted not to go beyond its proper limits." Social apathy, passivity and
indifference and neglect have spawned in secret a dark force that is bent on
destroying the values held sacred by freedom-loving people.
To assert our proper place in the civilized world, it is imperative that public
officials should regard public service as a reflection of human Ideals in which
the highest sense of moral values and integrity are strictly required.
A tragedy like that which happened on August 21, 1983, and the crisis that
followed, would have normally caused the resignation of the Chief of the
Armed Forces in a country where public office is viewed with highest esteem
and respect and where the moral responsibilities of public officials transcend
all other considerations.
It is equally the fact that the then President through all his recorded public
acts and statements from the beginning disdained and rejected his own
Board's above findings and insisted on the military version of Galman being
Ninoy's assassin. In upholding this view that "there is no involvement of
anyone in his government in the assassination," he told David Briscoe (then
AP Manila Bureau Chief in a Radio-TV interview on September 9, 1983 that
"I am convinced that if any member of my government were involved, I would
have known somehow ... Even at a fairly low level, I would have known. I
know how they think. I know what they are thinking of." 7 He told CBS in
another interview in May, 1984 (as his Fact Finding Board was holding its
hearings) the following:
CBS: But indeed there has been recent evidence that seems to contradict
earlier reports, namely, the recent evidence seems to indicate that some of
the guards may have been responsible (for shooting Ninoy).
MARCOS: Well, you are of course wrong. What you have been reading are
the newspapers and the newspaper reports have been biased. The evidence
still proves that Galman was the killer. The evidence also shows that there
were intelligence reports connecting the communist party to the killing. 8
In his reply of October 25, 1984 to General Ver's letter of the same date going
on leave of absence upon release of the Board's majority report implicating
him, he wrote that "(W)e are even more aware, general, that the
circumstances under which the board has chosen to implicate you in its
findings are fraught with doubt and great contradictions of opinion and
testimony. And we are deeply disturbed that on the basis of so-called
evidence, you have been so accused by some members of the Board," and
extended "My very best wishes to you and your family for a speedy resolution
of your case," 9 even as he announced that he would return the general to his
position as AFP Chief "if he is acquitted by the Sandiganbayan." In an
interview on June 4, 1985 with the Gamma Photo Agency, as respondent
court was hearing the cases, he was quoted as saying that "as will probably
be shown, those witnesses (against the accused) are perjured witnesses." 10
It was against this setting that on November 11, 1985 petitioners Saturnina
Galman and Reynaldo Galman, mother and son, respectively, of the late
Rolando Galman, and twenty-nine (29) other petitioners, composed of three
former Justices of this Court, five incumbent and former university presidents,
a former AFP Chief of Staff, outstanding members of the Philippine Bar and
solid citizens of the community, filed the present action alleging that
respondents Tanodbayan and Sandiganbayan committed serious
irregularities constituting mistrial and resulting in miscarriage of justice and
gross violation of the constitutional rights of the petitioners and the sovereign
people of the Philippines to due process of law. They asserted that the
Tanodbayan did not represent the interest of the people when he failed to
exert genuine and earnest efforts to present vital and important testimonial
PINEDAPCGRNMAN
and documentary evidence for the prosecution and that the Sandiganbayan
Justices were biased, prejudiced and partial in favor of the accused, and that
their acts "clouded with the gravest doubts the sincerity of government to find
out the truth about the Aquino assassination." Petitioners prayed for the
immediate issuance of a temporary restraining order restraining the
respondent Sandiganbayan from rendering a decision on the merits in the
pending criminal cases which it had scheduled on November 20, 1985 and
that judgment be rendered declaring a mistrial and nullifying the proceedings
before the Sandiganbayan and ordering a re-trial before an impartial tribunal
by an unbiased prosecutor. 10-a
At the hearing on November 18, 1985 of petitioners' prayer for issuance of a
temporary restraining order enjoining respondent court from rendering a
decision in the two criminal cases before it, the Court resolved by nine-to-two
votes 11 to issue the restraining order prayed for. The Court also granted
petitioners a five-day period to file a reply to respondents' separate
comments and respondent Tanodbayan a three-day period to submit a copy
of his 84-page memorandum for the prosecution as filed in the
Sandiganbayan, the signature page of which alone had been submitted to
the Court as Annex 5 of his comment.
But ten days later on November 28, 1985, the Court by the same nine-to-
two-vote ratio in reverse, 12 resolved to dismiss the petition and to lift the
temporary restraining order issued ten days earlier enjoining the
Sandiganbayan from rendering its decision. 13 The same Court majority
denied petitioners' motion for a new 5-day period counted from receipt of
respondent Tanodbayan's memorandum for the prosecution (which
apparently was not served on them and which they alleged was "very
material to the question of his partiality, bias and prejudice" within which to
file a consolidated reply thereto and to respondents' separate comments, by
an eight-to-three vote, with Justice Gutierrez joining the dissenters. 14
On November 29, 1985, petitioners filed a motion for reconsideration,
alleging that the dismissal did not indicate the legal ground for such action
and urging that the case be set for a full hearing on the merits because if the
charge of partiality and bias against the respondents and suppression of vital
evidence by the prosecution are proven, the petitioners would be entitled to
the reliefs demanded: The People are entitled to due process which requires
an impartial tribunal and an unbiased prosecutor. If the State is deprived of a
fair opportunity to prosecute and convict because certain material evidence
is suppressed by the prosecution and the tribunal is not impartial, then the
entire proceedings would be null and void. Petitioners prayed that the
Sandiganbayan be restrained from promulgating their decision as scheduled
anew on December 2, 1985.
On December 5, 1985, the Court required the respondents to comment on
the motion for reconsideration but issued no restraining order. Thus, on
December 2, 1985, as scheduled, respondent Sandiganbayan issued its
decision acquitting all the accused of the crime charged, declaring them
innocent and totally absolving them of any civil liability. This marked another
unusual first in that respondent Sandiganbayan in effect convicted the very
victim Rolando Galman (who was not on trial) as the assassin of Ninoy
contrary to the very information and evidence submitted by the prosecution.
In opposition, respondents submitted that with the Sandiganbayan's verdict
of acquittal, the instant case had become moot and academic. On February
4, 1986, the same Court majority denied petitioners' motion for
reconsideration for lack of merit, with the writer and Justice Abad Santos
maintaining our dissent.
On March 20, 1986, petitioners filed their motion to admit their second motion
for reconsideration attached therewith. The thrust of the second motion for
reconsideration was the startling and theretofore unknown revelations of
Deputy Tanodbayan Manuel Herrera as reported in the March 6, 1986 issue
of the Manila Times entitled "Aquino Trial a Sham," that the then President
had ordered the respondents Sandiganbayan and Tanodbayan Bernardo
Fernandez and the prosecution panel headed by Herrera to whitewash the
criminal cases against the 26 respondents accused and produce a verdict of
acquittal.
On April 3, 1986, the Court granted the motion to admit the second motion
for reconsideration and ordered the respondents to comment thereon. 15
Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation
filed on April 11, 1986 that he had ceased to hold office as Tanodbayan as
Page 356
of April 8, 1986 when he was replaced by the new Tanodbayan, Raul M.
Gonzales, but reiterating his position in his comment on the petition, he
added "relative to the reported alleged revelations of Deputy Tanodbayan
LEGAL ETHICS
Manuel Herrera, herein respondent never succumbed to any alleged
attempts to influence his actuations in the premises, having instead
successfully resisted perceived attempts to exert pressure to drop the case
after preliminary investigation, and actually ordered the filing and prosecution
of the two (2) murder cases below against herein private party respondents."
He candidly admitted also in his memorandum: "There is not much that need
be said about the existence of pressure. That there were pressures can
hardly be denied; in fact, it has never been denied." 15-a He submitted that
"even as he vehemently denies insinuations of any direct or indirect
complicity or participation in any alleged attempt to supposedly whitewash
the cases below, . . . should this Honorable Court find sufficient cause to
justify the reopening and retrial of the cases below, he would welcome such
development so that any wrong that had been caused may be righted and so
that, at the very least the actuations of herein respondent in the premises
may be reviewed and reexamined, confident as he is that the end will show
that he had done nothing in the premises that violated his trust as
Tanodbayan (Ombudsman)." New Tanodbayan Raul M. Gonzales in his
comment of April 14, 1986 "interposed no objection to the reopening of the
trial of the cases . . . as, in fact, he urged that the said cases be reopened in
order that justice could take its course."
Respondents Justices of the Sandiganbayan First Division in their collective
comment of April 9, 1986 stated that the trial of the criminal cases by them
was valid and regular and decided on the basis of evidence presented and
the law applicable, but manifested that "if it is true that the former
Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel,
were pressured into suppressing vital evidence which would probably alter
the result of the trial, Answering Respondents would not interpose any
objection to the reopening of those cases, if only to allow justice to take its
course." Respondent Sandiganbayan Justice Bienvenido C. Vera Cruz, in a
separate comment, asserted that he passed no note to anyone; the note
being bandied about is not in his handwriting; he had nothing to do with the
writing of the note or of any note of any kind intended for any lawyer of the
defense or even of the prosecution; and requested for an investigation by this
Court to settle the note passing issue once and for all.
Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986
affirmed the allegations in the second motion for reconsideration that he
revealed that the Sandiganbayan Justices and Tanodbayan prosecutors
were ordered by Marcos to whitewash the Aquino-Galman murder case. He
amplified his revelations, as follows:
1. AB INITIO, A. VERDICT OF ACQUITTAL!
Incidents during the preliminary investigation showed ominous signs that the
fate of the criminal case on the death of Ex-Senator Benigno Aquino and
Rolando Galman on August 21, 1983 was doomed to an ignominous end.
Malacanang wanted dismissal-to the extent that a prepared resolution was
sent to the Investigating Panel (composed of the undersigned, Fiscals
Ernesto Bernabe and Leonardo Tamayo) for signature. This, of course, was
resisted by the panel, and a resolution charging all the respondents as
principals was forwarded to the Tanodbayan on January 10, 1985.
2. MALACAÑANG CONFERENCE PLANNED SCENARIO OF TRIAL
At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former
President) summoned to Malacañang Justice Bernardo Fernandez (the
Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the Presiding
Justice) and an the members of the Panel
Also present at the meeting were Justice Manuel Lazaro (the Coordinator)
and Mrs. Imelda R. Marcos, who left earlier, came back and left again. The
former President had a copy of the panel's signed resolution (charging all
accused as principals), evidently furnished him in advance, and with
prepared notes on the contents thereof.
The former President started by vehemently maintaining that Galman shot
Aquino at the tarmac. Albeit initially the undersigned argued against the
theory, to remain silent was the more discreet posture when the former
President became emotional (he was quite sick then).
During a good part of the conference, the former President talked about
Aquino and the communists, lambasting the Agrava Board, specially the
Legal Panel. Shifting to the military he rumbled on such statements as: "It will
be bloody . . . Gen. Ramos, though close to me, is getting ambitious and poor
Johnny does not know what to do". . . 'our understanding with Gen. Ramos
is that his stint is only temporary, but he is becoming ambitious "the boys
were frantic when they heard that they will be charged in court, and wig be
detained at city jail."
PINEDAPCGRNMAN
From outright dismissal, the sentiment veered towards a more pragmatic
approach. The former President more or less conceded that for political and
legal reasons all the respondents should be charged in court, Politically, as
it will become evident that the government was serious in pursuing the case
towards its logical conclusion, and thereby ease public demonstrations; on
the other hand, legally, it was perceived that after (not IF) they are acquitted,
double jeopardy would inure. The former President ordered then that the
resolution be revised by categorizing the participation of each respondent.
In the matter of custody of the accused pendente lite the Coordinator was
ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo
and Director Jolly Bugarin to put on record that they had no place in their
respective institutions. The existence of PD No. 1950 (giving custody to
commanding officers of members of AFP charged in court) was never
mentioned.
It was decided that the presiding justice (First Division) would personally
handle the trial, and assurance was made by him that it would be finished in
four to six months, pointing out that, with the recent effectivity of the New
Rules on Criminal Procedure, the trial could be expedited.
Towards the end of the two-hour meeting and after the script had been tacitly
mapped out, the former President uttered: "Mag moro-moro na lang kayo."
The parting words of the former President were: "Thank you for your
cooperation. I know how to reciprocate."
While still in the palace grounds on the way out, the undersigned manifested
his desire to the Tanodbayan to resign from the panel, or even the office.
This, as well as other moves to this effect, had always been refused. Hoping
that with sufficient evidence sincerely and efficiently presented by the
prosecution, all involves in the trial would be conscience-pricked and realize
the futility and injustice of proceeding in accordance with the script, the
undersigned opted to say on.
Herrera further added details on the "implementation of the script," such as
the holding of a "make-believe raffle" within 18 minutes of the filing of the
Informations with the Sandiganbayan at noon of January 23, 1985, while
there were no members of the media; the installation of TV monitors directly
beamed to Malacanang; the installation of a "war room" occupied by the
military; attempts to direct and stifle witnesses for the prosecution; the
suppression of the evidence that could be given by U.S. Airforce men about
the "scrambling" of Ninoy's plane; the suppression of rebuttal witnesses and
the bias and partiality of the Sandiganbayan; its cavalier disregard of his plea
that it "should not decide these cases on the merits without first making a
final ruling on the Motion for Inhibition;" and the Presiding Justice's over-kill
with the declaration that "the Court finds all accused innocent of the crimes
charged in the two informations, and accordingly, they incur neither criminal
nor civil liability," adding that "in the almost twenty years that the undersigned
has been the prosecutor in the sala of the Presiding Justice this is the only
occasion where civil liability is pronounced in a decision of acquittal. " He
"associated himself with the motion for reconsideration and likewise prayed
that the proceedings in the Sandiganbayan and its decision be declared null
and void."
New Solicitor General Sedfrey Ordoñez' comment of April 25, 1986 submitted
that a declaration of mistrial will depend on the veracity of the evidence
supportive of petitioners' claim of suppression of evidence and collusion. He
submitted that this would require reception of evidence by a Court-appointed
or designated commissioner or body of commissioners (as was done in
G.R. No. 71316, Fr. Romano case; and G.R. No. 61016, Morales case;
and G.R. No. 70054, Banco Filipino case); and that if petitioners' claim were
substantiated, a reopening of the double murder case is proper to avoid a
miscarriage of justice since the verdict of acquittal would no longer be a valid
basis for a double jeopardy claim.
Respondents-accused opposed the second motion for reconsideration and
prayed for its denial. Respondent Olivas contended that the proper step for
the government was to file a direct action to annul the judgment of acquittal
and at a regular trial present its evidence of collusion and pressures.
As a whole, all the other respondents raised the issue of double jeopardy,
and invoked that the issues had become moot and academic because of the
rendition of the Sandiganbayan's judgment of acquittal of all respondents-
accused on December 2, 1985, with counsels for respondents Ver and Tigas,
as well as Olivas, further arguing that assuming that the judgment of acquittal
Page 357
is void for any reason, the remedy is a direct action to annul the judgment
where the burden of proof falls upon the plaintiff to establish by clear,
competent and convincing evidence the cause of the nullity.
LEGAL ETHICS
After Petitioners had filed their consolidated reply, the Court resolved per its
resolution of June 5, 1986 to appoint a three-member commission composed
of retired Supreme Court Justice Conrado Vasquez, chairman, and retired
Intermediate Appellate Court Justices Milagros German and Eduardo
Caguioa as members, to hear and receive evidence, testimonial and
documentary, of the charges of collusion and pressures and relevant matters,
upon prior notice to all parties, and to submit their findings to this Court for
proper disposition. The Commission conducted hearings on 19 days, starting
on June 16, 1986 and ending on July 16, 1986, On the said last day,
respondents announced in open hearing that they decided to forego the
taking of the projected deposition of former President Marcos, as his
testimony would be merely corroborative of the testimonies of respondents
Justice Pamaran and Tanodbayan Fernandez. On July 31, 1986, it submitted
its extensive 64-page Report 16wherein it discussed fully the evidence
received by it and made a recapitulation of its findings in capsulized form, as
follows:
1. The Office of the Tanodbayan, particularly Justice Fernandez and the
Special Investigating Panel composed of Justice Herrera, Fiscal Bernabe
and Special Prosecutor Tamayo, was originally of the view that all of the
twenty-six (26) respondents named in the Agrava Board majority report
should all be charged as principals of the crime of double murder for the
death of Senator Benigno Aquino and Rolando Galman.
2. When Malacanang learned of the impending filing of the said charge
before the Sandiganbayan, the Special Investigating Panel having already
prepared a draft Resolution recommending such course of action, President
Marcos summoned Justice Fernandez, the tree members of the Special
Investigating Panel, and justice Pamaran to a conference in Malacanang in
the early evening of January 10, 1985.
3. In said conference, President Marcos initially expressed his disagreement
with the recommendation of the Special Investigating Panel and disputed the
findings of the Agrava Board that it was not Galman who shot Benigno
Aquino.
4. Later in the conference, however, President Marcos was convinced of the
advisability of filing the murder charge in court so that, after being acquitted
as planned, the accused may no longer be prosecuted in view of the doctrine
of double jeopardy.
5. Presumably in order to be assured that not all of the accused would be
denied bail during the trial, considering that they would be charged with
capital offenses, President Marcos directed that the several accused be
"categorized" so that some of them would merely be charged as accomplices
and accessories.
6. In addition to said directive, President Marcos ordered that the case be
handled personally by Justice Pamaran who should dispose of it in the
earliest possible time.
7. The instructions given in the Malacanang conference were followed to the
letter; and compliance therewith manifested itself in several specific
instances in the course of the proceedings, such as, the changing of the
resolution of the special investigating panel, the filing of the case with the
Sandiganbayan and its assignment to Justice Pamaran, suppression of some
vital evidence, harassment of witnesses, recantation of witneses who gave
adverse testimony before the Agrava Board, coaching of defense counsels,
the hasty trial, monitoring of proceedings, and even in the very decision
rendered in the case.
8. That that expression of President Marcos' desire as to how he wanted the
Aquino-Galman case to be handled and disposed of constituted sufficient
pressure on those involved in said task to comply with the same in the
subsequent course of the proceedings.
9. That while Justice Pamaran and Justice Fernandez manifested no
revulsion against complying with the Malacañang directive, justice Herrera
played his role with manifestly ambivalent feelings.
10. Sufficient evidence has been ventilated to show a scripted and pre-
determined manner of handling and disposing of the Aquino-Galman murder
case, as stage-managed from Malacañang and performed by willing
dramatis personnae as well as by recalcitrant ones whipped into line by the
omnipresent influence of an authoritarian ruler.
The Commission submitted the following recommendation.
Considering the existence of adequate credible evidence showing that the
prosecution in the Aquino-Galman case and the Justices who tried and
decided the same acted under the compulsion of some pressure which
proved to be beyond their capacity to resist, and which not only prevented
PINEDAPCGRNMAN
the prosecution to fully ventilate its position and to offer all the evidences
which it could have otherwise presented, but also predetermined the final
outcome of the case, the Commission is of the considered thinking and belief,
subject to the better opinion and judgment of this Honorable Court that the
proceedings in the said case have been vitiated by lack of due process, and
hereby respectfully recommends that the prayer in the petition for a
declaration of a mistrial in Sandiganbayan Cases Nos. 10010 and 10011
entitled "People vs. Luther Custodia et al.," be granted.
The Court per its Resolution of July 31, 1986 furnished all the parties with
copies of the Report and required them to submit their objections thereto. It
thereafter heard the parties and their objections at the hearing of August 26,
1986 and the matter was submitted for the Court's resolution.
The Court adopts and approves the Report and its findings and holds on the
basis thereof and of the evidence received and appreciated by the
Commission and duly supported by the facts of public record and knowledge
set forth above and hereinafter, that the then President (code named
Olympus) had stage-managed in and from Malacanang Palace "a scripted
and pre-determined manner of handling and disposing of the Aquino-Galman
murder case;" and that "the prosecution in the Aquino Galman case and the
Justices who tried and decided the same acted under the compulsion of
some pressure which proved to be beyond their capacity to resist', and which
not only prevented the prosecution to fully ventilate its position and to offer
all the evidences which it could have otherwise presented, but also pre-
determined the final outcome of the case" of total absolution of the twenty-
six respondents accused of all criminal and civil liability.
The Court finds that the Commission's Report (incorporated herein by
reference) and findings and conclusions are duly substantiated by the
evidence and facts of public record. Composed of distinguished members of
proven integrity with a combined total of 141 years of experience in the
practice of law (55 years) and in the prosecutoral and judicial services (86
years in the trial and appellate courts), experts at sifting the chaff from the
grain, 17 the Commission properly appraised the evidences presented and
denials made by public respondents, thus:
The desire of President Marcos to have the Aquino-Galman case disposed
of in a manner suitable to his purposes was quite understandable and was
but to be expected. The case had stirred unprecedented public outcry and
wide international attention. Not invariably, the finger of suspicion pointed to
those then in power who supposedly had the means and the most compelling
motive to eliminate Senator Aquino. A day or so after the assassination,
President Marcos came up with a public statement aired over television that
Senator Aquino was killed not by his military escorts, but by a communist
hired gun. It was, therefore, not a source of wonder that President Marcos
would want the case disposed of in a manner consistent with his announced
theory thereof which, at the same time, would clear his name and his
administration of any suspected guilty participation in the assassination.
The calling of the conference was undoubtedly to accomplish this purpose. .
..
President Marcos made no bones to conceal his purpose for calling them.
From the start, he expressed irritation and displeasure at the
recommendation of the investigating panel to charge all of the twenty-six (26)
respondents as principals of the crime of double murder. He insisted that it
was Galman who shot Senator Aquino, and that the findings of the Agrava
Board were not supported by evidence that could stand in court. He
discussed and argued with Justice Herrera on this point. Midway in the
course of the discussion, mention was made that the filing of the charge in
court would at least mollify public demands and possibly prevent further
street demonstrations. It was further pointed out that such a procedure would
be a better arrangement because, if the accused are charged in court and
subsequently acquitted, they may claim the benefit of the doctrine of double
jeopardy and thereby avoid another prosecution if some other witnesses shall
appear when President Marcos is no longer in office.
xxx xxx xxx
After an agreement was reached as to filing the case, instead of dismissing
it, but with some of the accused to be charged merely as accomplices or
accessories, and the question of preventive custody of the accused having
thereby received satisfactory solution, President Marcos took up the matter
of who would try the case and how long it would take to be finished.
Page 358
According to Justice Herrera, President Marcos told Justice Pamaran 'point
blank' to personally handle the case. This was denied by Justice Pamaran.
No similar denial was voiced by Justice Fernandez in the entire
LEGAL ETHICS
course of his two-day testimony. Justice Pamaran explained that such order
could not have been given inasmuch as it was not yet certain then that the
Sandiganbayan would try the case and, besides, cases therein are assigned
by raffle to a division and not to a particular Justice thereof.
It was preposterous to expect Justice Pamaran to admit having received such
presidential directive. His denial, however, falls to pieces in the light of the
fact that the case was indeed handled by him after being assigned to the
division headed by him. A supposition of mere coincidence is at once
dispelled by the circumstance that he was the only one from the
Sandiganbayan called to the Malacanang conference wherein the said
directive was given. . . .
The giving of such directive to Justice Pamaran may also be inferred from
his admission that he gave President Marcos the possible time frame when
asked as to how long it would take him to finish the case.
The testimony of Justice Herrera that, during the conference, and after an
agreement was reached on filing the case and subsequently acquitting the
accused, President Marcos told them "Okay, mag moro-moro na lamang
kayo;" and that on their way out of the room President Marcos expressed his
thanks to the group and uttered "I know how to reciprocate," did not receive
any denial or contradiction either on the part of justice Fernandez or justice
Pamaran. (No other person present in the conference was presented by the
respondents. Despite an earlier manifestation by the respondents of their
intention to present Fiscal Bernabe and Prosecutor Tamayo, such move was
abandoned without any reason having been given therefor.)
The facts set forth above are all supported by the evidence on record. In the
mind of the Commission, the only conclusion that may be drawn therefrom is
that pressure from Malacanang had indeed been made to bear on both the
court and the prosecution in the handling and disposition of the Aquino-
Galman case. The intensity of this pressure is readily deductible from the
personality of the one who exerted it, his moral and official ascendancy over
those to whom his instructions were directed, the motivation behind such
instructions, and the nature of the government prevailing at that time which
enabled, the then head of state to exercise authoritarian powers. That the
conference called to script or stage-manage the prosecution and trial of the
Aquino-Galman case was considered as something anomalous that should
be kept away from the public eye is shown by the effort to assure its secrecy.
None but those directly involved were caned to attend. The meeting was held
in an inner room of the Palace. Only the First Lady and Presidential Legal
Assistant Justice Lazaro were with the President. The conferees were told to
take the back door in going to the room where the meeting was held,
presumably to escape notice by the visitors in the reception hall waiting to
see the President. Actually, no public mention alas ever made of this
conference until Justice Herrera made his expose some fifteen (15) months
later when the former president was no longer around.
President Marcos undoubtedly realized the importance of the matter he
wanted to take up with the officials he asked to be summoned. He had to do
it personally, and not merely through trusted assistants. The lack of will or
determination on the part of Justice Fernandez and Justice Pamaran to resist
the presidential summons despite their realization of its unwholesome
implications on their handling of the celebrated murder case may be easily
inferred from their unquestioned obedience thereto. No effort to resist was
made, despite the existence of a most valid reason to beg off, on the lame
excuses that they went there out of "curiosity," or "out of respect to the Office
of the President," or that it would be 'unbecoming to refuse a summons from
the President.' Such frame of mind only reveals their susceptibility to
presidential pressure and lack of capacity to resist the same. The very acts
of being summoned to Malacanang and their ready acquiescence thereto
under the circumstances then obtaining, are in themselves pressure
dramatized and exemplified Their abject deference to President Marcos may
likewise be inferred from the admitted fact that, not having been given seats
during the two-hour conference (Justice Fernandez said it was not that long,
but did not say how long) in which President Marcos did the talking most of the
time, they listened to him on their feet. Verily, it can be said that any avowal
of independent action or resistance to presidential pressure became illusory
from the very moment they stepped inside Malacanang Palace on January
10, 1985. 18
The Commission pinpointed the crucial factual issue thus: "the more
significant inquiry is on whether the Sandiganbayan and the Office of the
Tanodbayan actually succumbed to such pressure, as may be gauged by
their subsequent actuations in their respective handling of the case." It duly
PINEDAPCGRNMAN
concluded that "the pressure exerted by President Marcos in the conference
held on January 10, 1985 pervaded the entire proceedings of the Aquino
Galman [murder] cases" as manifested in several specific incidents and
instances it enumerated in the Report under the heading of "Manifestations
of Pressure and Manipulation."
Suffice it to give hereinbelow brief excerpts:—
1. The changing of the original Herrera panel draft Resolution charging all
the twenty-six accused as principals by conspiracy by categorizing and
charging 17 as principals, Generals Ver and Olivas and 6 others as
accessories and the civilian as accomplice, and recommending bail for the
latter two categories: "The categorization may not be completely justified by
saying that, in the mind of Justice Fernandez, there was no sufficient
evidence to justify that all of the accused be charged as principals. The
majority of the Agrava Board found the existence of conspiracy and
recommended that all of the accused be charged accordingly. Without going
into the merit of such finding, it may hardly be disputed that, in case of doubt,
and in accordance with the standard practice of the prosecution to charge
accused with the most serious possible offense or in the highest category so
as to prevent an incurable injustice in the event that the evidence presented
in the trial will show his guilt of the graver charge, the most logical and
practical course of action should have been, as originally recommended by
the Herrera panel, to charge all the accused as principals. As it turned out,
Justice Fernandez readily opted for categorization which, not surprisingly,
was in consonance with the Malacañang instruction." It is too much to
attribute to coincidence that such unusual categorization came only after the
then President's instruction at Malacanang when Gen. Ver's counsel, Atty.
Coronel, had been asking the same of Tanodbayan Fernandez since
November, 1984; and "Justice Fernandez himself, admit(ted) that, as of that
time, [the Malacanang conference on January 10, 1985], his own view was
in conformity with that of the Special Investigating Panel to charge all of the
twenty-six (26) respondents as principals of the crime of double murder."
19 As the Commission further noted, "Justice Fernandez never denied the
claim of Justice Herrera that the draft resolution of January 10, 1985 (Exhibit
'B-1') [charging all 26 accused as principals] was to have been the subject of
a press conference on the afternoon of said date which did not go through due
to the summons for them to go to Malacanang in the early evening of said
date." 20
2. Suppression of vital evidence and harassment of witnesses:" Realizing, no
doubt, that a party's case is as strong as the evidence it can present,
unmistakable and persistent efforts were exerted in behalf of the accused to
weaken the case of the prosecution and thereby assure and justify [the
accused's] eventual scripted acquittal. Unfavorable evidences were sought
to be suppressed, and some were indeed prevented from being ventilated.
Adverse witnesses were harassed, cajoled, perjured or threatened either to
refrain from testifying or to testify in a manner favorable to the defense."
The Report specified the ordeals of the prosecution witnesses: 21 Cesar
Loterina, PAL employee, Roberta Masibay, Galman's step-daughter who
recanted their testimonies before the Fact Finding Board and had to be
discarded as prosecution witnesses before at the trial.
WitnessesViesca and Rañas who also testified before the Board
"disappeared all of a sudden and could not be located by the police. The
Commission narrated the efforts to stifle Kiyoshi Wakamiya eyewitness who
accompanied Ninoy on his fateful flight on August 21, 1983 and described
them as "palpable, if crude and display(ing) sheer abuse of power."
Wakamiya was not even allowed to return to Manila on August 20, 1984 to
participate in the first death anniversary of Ninoy but was deported as an
undesirable alien and had to leave on the next plane for Tokyo. The Board
had to go to Tokyo to hear Wakamiya give his testimony before the Japanese
police in accordance with their law and Wakamiya claimed before the
Commission that the English transcription of his testimony, as prepared by
an official of the Philippine Embassy in Tokyo, was inaccurate and did not
correctly reflect the testimony he gave "although there was no clear showing
of the discrepancy from the original transcription which was in Nippongo.
Upon his arrival at the MIA on August 21, 1985 on invitation of Justice Herrera
to testify at the ongoing trial, "a shot was fired and a soldier was seen running
away by media men who sought to protect Wakamiya from harm by
surrounding him." Wakamiya was forced by immigration officials to leave the
Page 359
country by Saturday (August 24th) notwithstanding Herrera's request to let
him stay until he could testify the following Monday (August 26th). In the case
of principal eyewitness Rebecca Quijano, the Commission reported that
LEGAL ETHICS
... Undoubtedly in view of the considerable significance of her proposed
testimony and its unfavorable effect on the cause of the defense, the efforts
exerted to suppress the same was as much as, if not more than those in the
case of Wakamiya. ... She recounted that she was in constant fear of her life,
having been hunted by armed men; that their house in Tabaco, Albay was
ransacked, her family harassed by the foreclosure of the mortgage on their
house by the local Rural Bank, and ejected therefrom when she ignored the
request of its manager to talk with her about her proposed testimony; that a
certain William Fariñas offered her plane tickets for a trip abroad; that Mayor
Rudy Fariñas of Laoag City kept on calling her sister in the United States to
warn her not to testify; that, later, Rudy and William Fariñas offered her two
million pesos supposedly coming from Bongbong Marcos, a house and lot in
Baguio, the dropping of her estafa case in Hongkong, and the punishment of
the persons responsible for the death of her father, if she would refrain from
testifying.
It is a matter of record, however, that despite such cajolery and harassments,
or perhaps because of them, Ms. Quijano eventually testified before the
Sandiganbayan. Justice Herrera was told by justice Fernandez of the
displeasure expressed by Olympus at justice Herrera's going out of his way
to make Ms. Quijano to testify, and for his refusal to honor the invitation to
attend the birthday party of the First Lady on May 1, 1985, as on the eve of
Ms. Quijano's testimony on May 2, 1985. The insiduous attempts to tamper
with her testimony, however, did not end with her taking the witness stand.
In the course of her testimony several notes were passed to Atty. Rodolfo
Jimenez, the defense counsel who cross-examined her, one of which
suggested that she be asked more questions about Dean Narvasa who was
suspected of having coached her as to what to declare (Exhibit "D"); and on
another occasion, at a crucial point in her testimony, a power brownout
occurred; which lasted for about twenty minutes, throwing the courtroom into
darkness, and making most of those present to scamper for safety, and Ms.
Quijano to pass over the railing of the rostrum so as to be able to leave the
courtroom. It was verified that the brownout was limited to the building
housing the Sandiganbayan, it not having affected the nearby Manila City
Hall and the Finance Building. Justice Herrera declared that the main
switchboard of the Sandiganbayan electrical system was located beside the
room occupied by Malacañang people who were keeping track of the
proceedings.
Atty. Lupino Lazaro for petitioners further made of record at that August 26th
hearing that the two Olivas sisters, Ana and Catherine (hospitality girls)
disappeared on September 4, 1984, two weeks after Ninoy's assassination.
And the informant, by the name of Evelyn (also a hospitality girl) who jotted
down the number of the car that took them away, also disappeared. On
January 29, 1984, during the proceedings of the Board, Lina Galman, the
common-law wife of Rolando Galman, was kidnapped together with a
neighbor named Rogelio Taruc, They have been missing since then, despite
his attempts to find any of them. According to him, "nobody was looking for
these five persons because they said Marcos was in Power [despite his
appeal to the Minister of National Defense to locate them]. Today, still no one
is looking for these people." And he appealed to the new leadership for its
assistance in learning their fate.
3. The discarding of the affidavits executed by U.S. airmen "While it is true
that the U.S. airmen's proposed testimonies would show an attempt of the
Philippine Air Force to divert the plane to Basa Airfield or some other place,
such showing would not necessarily contravene the theory of the
prosecution, nor the actual fact that Senator Aquino was killed at the Manila
International Airport. Justice Herrera had accurately pointed out that such
attempt of scrambling Aquino's plane merely showed a 'wider range of
conspiracy,' it being possibly just one of two or three other plans designed to
accomplish the same purpose of liquidating Senator Aquino. In any event,
even assuming that the said piece of evidence could go either way, it may
not be successfully contended that it was prudent or wise on the part of the
prosecution to totally discard the said piece of evidence. Despite minor
inconsistencies contained therein, its introduction could have helped the
cause of the prosecution. If it were not so, or that it would even favor the
defense, as averred by Justice Fernandez, the determined effort to suppress
the same would have been totally uncalled for."
4. Nine proposed rebuttal witnesses not presented.
5. The failure to exhaust available remedies against adverse developments:
"When the Supreme Court denied the petition of Justice Fernandez [against
the exclusion of the testimonies given by the military respondents headed by
PINEDAPCGRNMAN
Gen. Ver before the Fact Finding Board], the latter almost immediately
announced to media that he was not filing a motion for the reconsideration of
said denial for the reason that it would be futile to do so and foolhardy to
expect a favorable action on the same. ... His posture ... is, in the least,
indicative that he was living up to the instruction of finishing the trial of the
case as soon as possible, if not of something else."
6. The assignment of the case to Presiding Justice Pamaran: "Justice
Herrera testified that President Marcos ordered Justice Pamaran point-blank
to handle the case. The pro-forma denial by Justice Pamaran of such
instruction crumbles under the actuality of such directive having been
complied with to the letter. ...
"Justice Pamaran sought to discredit the claim that he was ordered by
President Marcos to handle the case personally by explaining that cases in
the Sandiganbayan are assigned by raffle and not to a particular Justice, but
to a division thereof. The evidence before the Comission on how the case
happened to be assigned to Justice Pamaran evinces a strong indication that
such assignment was not done fairly or regularly.
"There was no evidence at all that the assignment was indeed by virtue of a
regular raffle, except the uncorroborated testimony of Justice Pamaran.
... Despite an announcement that Justice Escareal would be presented by
the respondents to testify on the contents of his aforesaid Memorandum,
such was not done. No reason was given why Justice Escarel could not, or
would not like to testify. Neither was any one of the officials or employees of
the Sandiganbayan who, according to Justice Pamaran, were present during
the supposed raffle, presented to corroborate the claim of Justice
xxx xxx xxx
"It is also an admitted fact that the two Informations in the double murder
case were filed by Justice Herrera on January 23, 1985, at 12:02 p.m., and
the members of the Raffle Committee were summoned at 12:20 p.m. oronly
18 minutes after the filing of the two Informations. Such speed in the actual
assignment of the case can truly be categorized as unusual, if not
extraordinary, considering that before a case filed may be included in the
raffle, there is need for a certain amount of paper work to be undertaken. If
such preliminary requirements were done in this case within the limited time
available therefor, the charge that the raffle was rushed to avoid the presence
of media people would ring with truth.
What is more intriguing is the fact that although a raffle might have been
actually conducted which resulted in the assignment of the case to the First
Division of the Sandiganbayan, the Commission did not receive any evidence
on how or why it was handled personally by Justice Pamaran who wrote the
decision thereof, and not by any one of the two other members of his division.
...
7. The custody of the accused their confinement in a military camp, instead
of in a civilian jail: "When the question of custody came up after the case was
filed in the Sandiganbayan, the latter issued an order directing the
confinement of the accused in the City Jail of Manila. This order was not
carried out in view of the information given by the Warden of the City Jail that
there was no space for the twenty-six accused in said jail. The same
information was given when the custody was proposed to be given to the
National Penitentiary in Muntinglupa and to the National Bureau of
Investigation. At that point, the defense came up with Presidential Decree
No. 1950A which authorizes the custody of the accused military personnel
with their respective Commanding Officers. Justice Herrera claimed that the
said Presidential Decree was not known even to the Tanodbayan Justice
Fernandez who had to call up the then Minister of Justice Estelito Mendoza
to request a copy of the same, and was given such copy only after sometime.
..."
8. The monitoring of proceedings and developments from Malacañang and
by Malacañang personnel: "There is an uncontradicted evidence that the
progress of the proceedings in the Sandiganbayan as well as the
developments of the case outside the Court had been monitored by
Malacañang presumably for it to know what was happening and to take
remedial measures as may be necessary. Justice Pamaran had candidly
admitted that television cameras "boldly carrying the label of 'Office of the
President of the Philippines' " were installed in the courtroom for that purpose.
There was a room in the Sandiganbayan, mischievously caned 'war room',
Page 360
wherein military and Malacañang personnel stayed to keep track of the
proceedings." the close monitoring by Malacañang showed its results on
several occasions specified in the Report. Malacañang was immediately
LEGAL ETHICS
aware of the Japanese witness Wakamiya's presence injustice Herrera's
office on August 21, 1985 and forestalled the giving of his testimony by
having the Japanese Embassy advise Wakamiya to leave the country at
once. Likewise,Col. Balbino Diego, Malacañang intelligence chief, suddenly
appeared at the National Bureau of Investigation office when the "crying lady"
Rebecca Quijano was brought there by NBI agents for interrogation and
therein sought to obtain custody of her. "It is likewise an undisputed fact," the
Commission noted "that several military personnel pretended to be deputy
sheriffs of the Sandiganbayan and attended the trials thereof in the
prescribed deputy sheriffs' uniforms." The Commission's inescapable finding.
" It is abundantly clear that President Marcos did not only give instructions as
to how the case should be handled He saw to it that he would know if his
instructions will be complied with."
9. Partiality of Sandiganbayan betrayed by its decision: "That President
Marcos had wanted all of the twenty-six accused to be acquitted may not be
denied. The disposal of the case in said manner is an integral part of the
scenario which was cleverly designed to accomplish two principal objectives,
seemingly conflicting in themselves, but favorable both to then administration
and to the accused; to wit, [1] the satisfaction of the public clamor for the
suspected killers of Senator Aquino to be charged in court, and [2] the
foreclosure of any possibility that they may again be prosecuted for the same
offense in the event that President Marcos shall no longer be in power.
"In rendering its decision the Sandiganbayan overdid itself in favoring the
presidential directive. Its bias and partiality in favor of the accused was
glaringly obvious. The evidence presented by the prosecution was totally
ignored and disregarded. ... It was deemed not sufficient to simply acquit all
of the twenty-six accused on thestandard ground that their guilt had not been
proven beyond reasonable doubt, as was the most logical and appropriate
way of justifying the acquittal in the case, there not being a total absence of
evidence that could show guilt on the part of the accused. The decision had
to pronounce them 'innocent of the crime charged on the two informations,
and accordingly, they incur neither criminal nor civil liability.' It is a rare
phenomenon to see a person accused of a crime to be favored with such
total absolution. ...
Doubt on the soundness of the decision entertained by one of the two justices
who concurred with the majority decision penned by Justice Pamaran was
revealed by Justice Herrera who testified that in October, 1985, when the
decision was being prepared, Justice Agusto Amores told him that he was of
the view that some of the accused should be convicted he having found
difficulty in acquitting all of them; however, he confided to Justice Herrera that
Justice Pamaran made it clear to him and Justice Vera Cruz that Malacañang
had instructions to acquit all of the twenty-six accused (TSN, July 17, 1986,
p. 49). Justice Amores also told Justice Herrera that he would confirm this
statement (which was mentioned in Justice Herrera's comment to the Second
Motion for Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-
93). This testimony Justice Herrera remained unrebutted " (Emphasis
supplied)
The record shows suffocatingly that from beginning to end, the then
President used, or more precisely, misused the overwhelming resources of
the government and his authoritarian powers to corrupt and make a mockery
of the judicial process in the Aquino-Galman murder cases. As graphically
depicted in the Report, supra, and borne out by the happenings (res ipsa
loquitur 22) since the resolution prepared by his "Coordinator," Manuel
Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's
dismissal of the cases against all accused was unpalatable (it would summon
the demonstrators back to the streets 23) and at any rate was not acceptable
to the Herrera prosecution panel, the unholy scenario for acquittal of all 26
accused after the rigged trial as ordered at the Malacanang conference,
would accomplish the two principal objectives of satisfaction of the public
clamor for the suspected killers to be charged in court and of giving them
through their acquittal the legal shield of double jeopardy. 24
Indeed, the secret Malacanang conference at which the authoritarian
President called together the Presiding Justice of the Sandiganbayan and
Tanodbayan Fernandez and the entire prosecution panel headed by Deputy
Tanodbayan Herrera and told them how to handle and rig (moro-moro) the
trial and the close monitoring of the entire proceedings to assure the pre-
determined ignominious final outcome are without parallel and precedent in
our annals and jurisprudence. To borrow a phrase from Ninoy's April 14, 1975
letter withdrawing his petition for habeas corpus, 25 "This is the evil of one-
man rule at its very worst." Our Penal Code penalizes "any executive
PINEDAPCGRNMAN
officer who shall address any order or suggestion to any judicial authority with
respect to any case or business coming within the exclusive jurisdiction of
the courts of justice." 26 His obsession for "the boys' " acquittal led to several
first which would otherwise be inexplicable:—
1. He turned his back on and repudiated the findings of the very Fact Finding
Board that he himself appointed to investigate the "national tragedy and
national shame" of the "treacherous and vicious assassination of Ninoy
Aquino and "to ventilate the truth through free, independent and
dispassionate investigation by prestigious and free investigators."
2. He cordially received the chairman with her minority report one day ahead
of the four majority members and instantly referred it to respondents "for final
resolution through the legal system" as if it were the majority and controlling
report; and rebuked the four majority members when they presented to him
the next day their report calling for the indictment of all 26 respondents
headed by Gens. Ver and Olivas (instead of the lesser seven under the
chairman's minority report).
3. From the day after the Aquino assassination to the dictated verdict of
acquittal, he totally disregarded the Board's majority and minority findings of
fact and publicly insisted that the military's "fall guy" Rolando Galman was
the killer of Ninoy Aquino and sought futilely to justify the soldiers'
incompetence and gross negligence to provide any security for Ninoy in
contrast to their alacrity in gunning down the alleged assassin Galman and
searing his lips.
4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted
Rolando Galman as Ninoy's assassin notwithstanding that he was not on trial
but the victim according to the very information filed, and evidence to the
contrary submitted, by the Herrera prosecution panel; and
5. Justice Pamaran's ponencia (despite reservations expressed by Justice
Amores who wanted to convict some of the accused) granted all 26 accused
total absolution and pronounced them "innocent of the crimes charged in the
two informations, and accordingly, they incur neither criminal nor civil
liability," notwithstanding the evidence on the basis of which the Fact Finding
Board had unanimously declared the soldiers' version of Galman being
Aquino's killer a "perjured story, given deliberately and in conspiracy with one
another."
The fact of the secret Malacañang conference of January 10, 1985 at which
the authoritarian President discussed with the Presiding Justice of the
Sandiganbayan and the entire prosecution panel the matter of the imminent
filing of the criminal charges against all the twenty-six accused (as admitted
by respondent Justice Fernandez to have been confirmed by him to the then
President's "Coordinator" Manuel Lazaro on the preceding day) is not denied.
It is without precedent. This was illegal under our penal laws, supra. This
illegality vitiated from the very beginning all proceedings in the
Sandiganbayan court headed by the very Presiding Justice who attended. As
the Commission noted: "The very acts of being summoned to Malacañang
and their ready acquiescence thereto under the circumstances then
obtaining, are in themselves pressure dramatized and exemplified. ... Verily,
it can be said that any avowal of independent action or resistance to
presidential pressure became illusory from the very moment they stepped
inside Malacanang Palace on January 10, 1985."
No court whose Presiding Justice has received "orders or suggestions" from
the very President who by an amendatory decree (disclosed only at the
hearing of oral arguments on November 8, 1984 on a petition challenging the
referral of the Aquino-Galman murder cases to the Tanodbayan and
Sandiganbayan instead of to a court martial, as mandatory required by the
known P.D. 1850 at the time providing for exclusive jurisdiction of courts
martial over criminal offenses committed by military men 26-a) made it
possible to refer the cases to the Sandiganbayan, can be an impartial court,
which is the very essence of due process of law. As the writer then wrote,
"jurisdiction over cases should be determined by law, and not by
preselection of the Executive, which could be much too easily transformed into
a means of predetermining the outcome of individual cases. 26-b "This
criminal collusion as to the handling and treatment of the cases by public
respondents at the secret Malacanang conference (and revealed only after
fifteen months by Justice Manuel Herrera) completely disqualified
respondent Sandiganbayan and voided ab initio its verdict. This renders moot
and irrelevant for now the extensive arguments of respondents accused,
Page 361
particularly Generals Ver and Olivas and those categorized as accessories,
that there has been no evidence or witness suppressed against them, that the
erroneous conclusions of Olivas as police investigator do not
LEGAL ETHICS
make him an accessory of the crimes he investigated and the appraisal and
evaluation of the testimonies of the witnesses presented and suppressed.
There will be time and opportunity to present all these arguments and
considerations at the remand and retrial of the cases herein ordered before
a neutral and impartial court.
The Supreme Court cannot permit such a sham trial and verdict and travesty
of justice to stand unrectified. The courts of the land under its aegis are courts
of law and justice and equity. They would have no reason to exist if they were
allowed to be used as mere tools of injustice, deception and duplicity to
subvert and suppress the truth, instead of repositories of judicial power
whose judges are sworn and committed to render impartial justice to all alike
who seek the enforcement or protection of a right or the prevention or redress
of a wrong, without fear or favor and removed from the pressures of politics
and prejudice. More so, in the case at bar where the people and the world
are entitled to know the truth, and the integrity of our judicial system is at
stake. In life, as an accused before the military tribunal, Ninoy had pleaded
in vain that as a civilian he was entitled to due process of law and trial in the
regular civil courts before an impartial court with an unbiased prosecutor. In
death, Ninoy, as the victim of the "treacherous and vicious assassination"
and the relatives and sovereign people as the aggrieved parties plead once
more for due process of law and a retrial before an impartial court with an
unbiased prosecutor. The Court is constrained to declare the sham trial a
mock trial the non-trial of the century-and that the pre-determined judgment
of acquittal was unlawful and void ab initio.
1. No double jeopardy.-It is settled doctrine that double jeopardy cannot be
invoked against this Court's setting aside of the trial courts' judgment of
dismissal or acquittal where the prosecution which represents the sovereign
people in criminal cases is denied due process. As the Court stressed in the
1985 case of People vs. Bocar, 27
Where the prosecution is deprived of a fair opportunity to prosecute and
prove its case its right to due process is thereby violated. 27-a
The cardinal precept is that where there is a violation of basic constitutional
rights, courts are ousted of their jurisdiction. Thus, the violation of the State's
right to due process raises a serious jurisdictional issue (Gumabon vs.
Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30,
1971]which cannot be glossed over or disregarded at will. Where the denial
of the fundamental right of due process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-
30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49
SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered
notwithstanding such violation may be regarded as a "lawless thing, which
can be treated as an outlaw and slain at sight, or ignored wherever it exhibits
its head" (Aducayen vs. Flores, supra).
Respondent Judge's dismissal order dated July 7, 1967 being null and void
for lack of jurisdiction, the same does not constitute a proper basis for a claim
of double jeopardy (Serino vs. Zosa, supra).
xxx xxx xxx
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a
competent court, (c) after arraignment, (d) a valid plea having been entered;
and (e) the case was dismissed or otherwise terminated without the express
consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court
was not competent as it was ousted of its jurisdiction when it violated the right
of the prosecution to due process.
In effect the first jeopardy was never terminated, and the remand of the
criminal case for further hearing and/or trial before the lower courts amounts
merely to a continuation of the first jeopardy, and does not expose the
accused to a second jeopardy.
More so does the rule against the invoking of double jeopardy hold in the
cases at bar where as we have held, the sham trial was but a mock trial
where the authoritarian president ordered respondents Sandiganbayan and
Tanodbayan to rig the trial and closely monitored the entire proceedings to
assure the pre-determined final outcome of acquittal and total absolution as
innocent of an the respondents-accused. Notwithstanding the laudable
efforts of Justice Herrera which saw him near the end "deactivating" himself
from the case, as it was his belief that its eventual resolution was already a
foregone conclusion, they could not cope with the misuse and abuse of the
overwhelming powers of the authoritarian President to weaken the case of
the prosecution, to suppress its evidence, harass, intimidate and threaten its
witnesses, secure their recantation or prevent them from testifying. Fully
aware of the prosecution's difficulties in locating witnesses and overcoming
PINEDAPCGRNMAN
their natural fear and reluctance to appear and testify, respondent
Sandiganbayan maintained a "dizzying tempo" of the proceedings and
announced its intention to terminate the proceedings in about 6 months time
or less than a year, pursuant to the scripted scenario. The prosecution
complained of "the Presiding Justice's seemingly hostile attitude towards (it)"
and their being the subject of warnings, reprimand and contempt proceedings
as compared to the nil situation for the defense. Herrera likewise complained
of being "cajoled into producing witnesses and pressed on making
assurances that if given a certain period, they will be able to produce their
witnesses Herrera pleaded for "a reasonable period of preparation of its
evidence" and cited other pending cases before respondent court that were
pending trial for a much longer time where the "dizzying tempo" and "fast
pace" were not maintained by the court. 28 Manifestly, the prosecution and
the sovereign people were denied due process of law with a partial court and
biased Tanodbayan under the constant and pervasive monitoring and
pressure exerted by the authoritarian President to assure the carrying out of
his instructions. A dictated, coerced and scripted verdict of acquittal such as
that in the case at bar is a void judgment. In legal contemplation, it is no
judgment at all. It neither binds nor bars anyone. Such a judgment is "a
lawless thing which can be treated as an outlaw". It is a terrible and
unspeakable affront to the society and the people. To paraphrase Brandeis:
29 If the authoritarian head of the government becomes the law- breaker, he
breeds contempt for the law, he invites every man to become a law unto
himself, he invites anarchy.
Respondents-accused's contention that the Sandiganbayan judgment of
acquittal ends the case which cannot be appealed or re-opened, without
being put in double jeopardy was forcefully disposed of by the Court in
People vs. Court of Appeals, which is fully applicable here, as follows: "That
is the general rule and presupposes a valid judgment. As earlier pointed out,
however, respondent Courts' Resolution of acquittal was a void judgment for
having been issued without jurisdiction. No double jeopardy attaches,
therefore. A void judgment is, in legal effect, no judgment at all By it no rights
are divested. Through it, no rights can be attained. Being worthless, all
proceedings founded upon it are equally worthless. It neither binds nor bars
anyone. All acts performed under it and all claims flowing out of it are void.
|lang1033 xxx xxx xxx
"Private respondent invoke 'justice for the innocent'. For justice to prevail the
scales must balance. It is not to be dispensed for the accused alone. The
interests of the society, which they have wronged must also be equally
considered. A judgment of conviction is not necessarily a denial of justice. A
verdict of acquittal neither necessarily spells a triumph of justice. To the party
wronged, to the society offended, it could also mean injustice. This is where
the Courts play a vital role. They render justice where justice is due. 30
2. Motion to Disqualify/Inhibit should have been resolved Ahead.-The private
prosecutors had filed a motion to disqualify and for inhibition of respondents
Justices of the Sandiganbayan on grounds of manifest bias and partiality to
the defense and arising from then Atty. (now Tanodbayan) Raul M. Gonzales'
charge that Justice Vera-Cruz had been passing coaching notes to defense
counsel. Justice Herrera had joined the motion and pleaded at the hearing of
June 25, 1985 and in the prosecution memorandum that respondent
Sandiganbayan "should not decide the case on the merits without first
making a final ruling on the Motion for Inhibition." Herrera quoted the
exchange between him and the Presiding Justice to show the latter's
"following the script of Malacanang.
PJ PAMARAN
Well the court believes that we should proceed with the trial and then deal
later on with that. After all, the most important thing here is, shall we say, the
decision of the case.
J. HERRERA
I think more important than the decision of the case, Your Honor, is the
capacity of the justices to sit in judgment. That is more important than
anything else.(p. 13 TSN, June 25, 1985) (Emphasis supplied by Herrera). 31
But the Sandiganbayan brushed aside Herrera's pleas and then wrongly
blamed him, in the decision, for supposedly not having joined the petition for
inhibition, contrary to the facts above-stated, as follows:
... the motion for inhibition above referred to related exclusively for the
Page 362
contempt proceeding. Too, it must be remembered that the prosecution
neither joined that petition, nor did it at any time manifest a desire to file a
similar motion prior to the submission of these cases for decision. To do it
LEGAL ETHICS
now is not alone out of season but is also a confession of official insouciance
(Page 22, Decision). 32
The action for prohibition was filed in the Court to seek the disqualification of
respondents Justices pursuant to the procedure recognized by the Court in
the 1969 case of Paredes vs. Gopengco 33 since an adverse ruling by
respondent court might result in a verdict of acquittal, leaving the offended
party without any remedy nor appeal in view of the double jeopardy rule, not
to mention the overiding and transcendental public interest that would make
out a case of denial of due process to the People if the alleged failure on the
part of the Tanodbayan to present the complete evidence for the prosecution
is substantiated. 34
In this case, petitioners' motion for reconsideration of the abrupt dismissal of
their petition and lifting of the temporary restraining order enjoining the
Sandiganbayan from rendering its decision had been taken cognizance of by
the Court which had required the respondents', including the
Sandiganbayan's, comments. Although no restraining order was issued
anew, respondent Sandiganbayan should not have precipitately issued its
decision of total absolution of all the accused pending the final action of this
Court. This is the teaching of Valdez vs. Aquilizan35, Wherein the court in
setting aside the hasty convictions, ruled that "prudence dictated that
(respondent judge) refrain from deciding the cases or at the very least to hold
in abeyance the promulgation of his decision pending action by this Court.
But prudence gave way to imprudence; the respondent judge acted
precipitately by deciding the cases [hastily without awaiting this Court's
action]. All of the acts of the respondent judge manifest grave abuse of
discretion on his part amounting to lack of jurisdiction which substantively
prejudiced the petitioner."
3. Re: Objections of respondents.-The other related objections of
respondents' counsels must be rejected in the face of the Court's declaration
that the trial was a mock trial and that the pre-determined judgment of
acquittal was unlawful and void ab initio.
(a) It follows that there is no need to resort to a direct action to annul the
judgment, instead of the present action which was timely filed initially to
declare a mistrial and to enjoin the rendition of the void judgment. And after
the hasty rendition of such judgment for the declaration of its nullity, following
the presentation of competent proof heard by the Commission and the
Court's findings therefrom that the proceedings were from the beginning
vitiated not only by lack of due process but also by the collusion between the
public respondents (court and Tanodbayan) for the rendition of a pre-
determined verdict of acquitting all the twenty-six respondents-accused.
(b) It is manifest that this does not involve a case of mere irregularities in the
conduct of the proceedings or errors of judgment which do not affect the
integrity or validity of the judgment or verdict.
(c) The contention of one of defense counsel that the State and the sovereign
people are not entitled to due process is clearly erroneous and contrary to
the basic principles and jurisprudence cited hereinabove.
(d) The submittal of respondents-accused that they had not exerted the
pressure applied by the authoritarian president on public respondents and
that no evidence was suppressed against them must be held to be untenable
in the wake of the evil plot now exposed for their preordained wholesale
exoneration.
(e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co.,
Inc. vs. Maritime Bldg. Co., Inc. 36 is inappropriate. The writer therein held
that a party should be entitled to only one Supreme Court and may not
speculate on vital changes in the Court's membership for review of his lost
case once more, since public policy and sound practice demand that litigation
be put to an end and no second pro formamotion for reconsideration
reiterating the same arguments should be kept pending so long (for over six
(6) years and one (1) month since the denial of the first motion for
reconsideration), This opinion cannot be properly invoked, because here,
petitioners' second motion for reconsideration was filed promptly on March
20, 1986 following the denial under date of February 4th of the first motion
for reconsideration and the same was admitted per the Court's Resolution of
April 3, 1986 and is now being resolved within five months of its filing after
the Commission had received the evidence of the parties who were heard by
the Court only last August 26th. The second motion for reconsideration is
based on an entirely new material ground which was not known at the time
of the denial of the petition and filing of the first motion for reconsideration,
i.e, the secret Malacañang conference on January 10, 1985 which came to
light only fifteen months later in March, 1986 and showed beyond per
PINEDAPCGRNMAN
adventure (as proved in the Commission hearings) the merits of the petition
and that the authoritarian president had dictated and pre-determined the final
outcome of acquittal. Hence, the ten members of the Court (without any new
appointees) unanimously voted to admit the second motion for
reconsideration. 37
4. With the declaration of nullity of the proceedings, the cases must now be
tried before an impartial court with an unbiased prosecutor.-There has been
the long dark night of authoritarian regime, since the fake ambush in
September, 1972 of then Defense Secretary Juan Ponce Enrile (as now
admitted by Enrile himself was staged to trigger the imposition of martial law
and authoritarian one-man rule, with the padlocking of Congress and the
abolition of the office of the Vice-President.
As recently retired Senior Justice Vicente Abad Santos recalled in his
valedictory to the new members of the Bar last May, "In the past few years,
the judiciary was under heavy attack by an extremely powerful executive.
During this state of judicial siege, lawyers both in and outside the judiciary
perceptively surrendered to the animus of technicality. In the end, morality
was overwhelmed by technicality, so that the latter emerged ugly and naked
in its true manifestation."
Now that the light is emerging, the Supreme Court faces the task of restoring
public faith and confidence in the courts. The Supreme Court enjoys neither
the power of the sword nor of the purse. Its strength lies mainly in public
confidence, based on the truth and moral force of its judgments. This has
been built on its cherished traditions of objectivity and impartiallity integrity
and fairness and unswerving loyalty to the Constitution and the rule of law
which compels acceptance as well by the leadership as by the people. The
lower courts draw their bearings from the Supreme Court. With this Court's
judgment today declaring the nullity of the questioned judgment or acquittal
and directing a new trial, there must be a rejection of the temptation of
becoming instruments of injustice as vigorously as we rejected becoming its
victims. The end of one form of injustice should not become simply the
beginning of another. This simply means that the respondents accused must
now face trial for the crimes charged against them before an impartial court
with an unbiased prosecutor with all due process. What the past regime had
denied the people and the aggrieved parties in the sham trial must now be
assured as much to the accused as to the aggrieved parties. The people will
assuredly have a way of knowing when justice has prevailed as well as when
it has failed.
The notion nurtured under the past regime that those appointed to public
office owe their primary allegiance to the appointing authority and are
accountable to him alone and not to the people or the Constitution must be
discarded. The function of the appointing authority with the mandate of the
people, under our system of government, is to fill the public posts. While the
appointee may acknowledge with gratitude the opportunity thus given of
rendering public service, the appointing authority becomes functus officio
and the primary loyalty of the appointed must be rendered to the Constitution
and the sovereign people in accordance with his sacred oath of office. To
paraphrase the late Chief Justice Earl Warren of the United States Supreme
Court, the Justices and judges must ever realize that they have no
constituency, serve no majority nor minority but serve only the public interest
as they see it in accordance with their oath of office, guided only, the
Constitution and their own conscience and honor.
5. Note of Commendation.- The Court expresses its appreciation with thanks
for the invaluable services rendered by the Commission composed of retired
Supreme Court Justice Conrado M. Vasquez, chairman, and retired Court of
Appeals Justices Milagros German and Eduardo Caguioa as members. In
the pure spirit of public service, they rendered selflessly and without
remuneration thorough competent and dedicated service in discharging their
tasks of hearing and receiving the evidence, evaluating the same and
submitting their Report and findings to the Court within the scheduled period
and greatly easing the Court's burden.
ACCORDINGLY, petitioners' second motion for reconsideration is granted.
The resolutions of November 28, 1985 dismissing the petition and of
February 4, 1986 denying petitioners' motion for reconsideration are hereby
set aside and in lieu thereof, judgment is hereby rendered nullifying the
proceedings in respondent Sandiganbayan and its judgment of acquittal in
Criminal Cases Nos. 10010 and 10011 entitled "People of the Philippines vs.
Page 363
Gen. Luther Custodia et al." and ordering a re-trial of the said cases which
should be conducted with deliberate dispatch and with careful regard for the
LEGAL ETHICS
requirements of due process, so that the truth may be finally known and
justice done to an
1.06 SEC. 6. Judges shall be independent in relation to society in
general and in relation to the particular parties to a dispute which he or
she has to adjudicate.
Adm. Matter No. MTJ-87-123 June 27, 1988
MERCEDITA G. LORENZO, complainant,
vs.
JUDGE PRIMO L. MARQUEZ, respondent.
Adm. Matter No. MTJ-88-141 June 27, 1988
NATIONAL BUREAU OF INVESTIGATION, complainant,
vs.
JUDGE PRIMO L. MARQUEZ, respondent.
RESOLUTION
PER CURIAM:
In a sworn statement dated October 11, 1987 executed by Mercedita G.
Lorenzo and in an indorsement of December 2, 1987 of the Chief State
Prosecutor transmitting the report of the National Bureau of Investigation
dated November 5, 1987, the herein respondent Judge Primo L. Marquez of
the Municipal Trial Court (MTC) of Sariaya, Quezon is charged on three
counts, namely: (1) harassment in failing to indorse the reappointment of
complainant Mercedita G. Lorenzo as Municipal Trial Court Aide; (2) for
violation of Section 1, Rule 137 of the Rules of Court in deciding Civil Case
No. 1202 entitled Kilusang Bayan Pampananalapi ng Sariaya vs. Gilda Balid,
et al., when he was the former counsel of the plaintiff; and (3) for issuing a
subpoena for the appearance of Jose D. Obosa, a prison inmate of the
National Bilibid Prisons (NBP) to appear before him when said person has
no case pending before him nor is he a witness in any pending case therein.
The respondent was required to file an answer to said complaint and after
his answer was filed a formal investigation was conducted by the Deputy
Court Administrator, Meynardo A. Tiro, by authority of the Court, wherein
evidence was adduced by the complainant and respondent. On May 27,
1988, said official submitted his report and recommendation to the Court.
On the first charge of harassment, the respondent explained that he did not
recommend the reappointment of complainant Mercedita G. Lorenzo
because she was inefficient. Such reluctance of the respondent must be
because she was a protegee of the respondent's predecessor, former Judge
Jose Parentela, Jr., who reportedly exposed the illegal issuance of
the subpoena to Obosa by the respondent. Nevertheless, it is the privilege of
the respondent as presiding judge of his court to recommend the employee
with whom he will work. If he did not choose to have said complainant
reappointed, he cannot thereby be held administratively liable.
Under the second charge, there is no question that the respondent was the
counsel for the plaintiff in Civil Case No. 1202 entitled "Kilusang Bayan
Pampananalapi ng Sariaya (KBPS) vs. Gilda Balid, et al." filed in the
Municipal Trial Court of Sariaya, Quezon. The complaint was filed by
Crisostomo L. Luna, president and board chairman of the plaintiff, who is his
uncle. 1 The respondent was then a member of the board of directors of the
plaintiff. 2 In an order of November 28, 1986, Judge Parentela declared
defendants in default for failure to file their answer. When the respondent
assumed office he issued an order on February 10, 1987 requiring plaintiff to
secure the services of another counsel in his place and he set the case for
hearing. On March 9, 1987, he issued an order considering the case
submitted for decision. on April 2, 1987, he rendered a decision favorable to
the plaintiff, the dispositive part of which reads as follows:
Judgement is hereby rendered in favor of the above-named plaintiff and
against the above-named defendants, whereby defendants are hereby
directed to pay jointly and severally plaintiff the following, to wit:
1. Principal amount of P4,676.00 plus one (1%) percent interest on the
unpaid balance and the two (2%) percent penalty interest per month until the
entire obligation is fully paid
2. Attorney's fees equivalent to ten (10%) percent the total amount due and
collectible, plus litigation expenses in the amount of P460.00 and cost of suit,
An appeal therefrom was interposed by the defendants to the Regional Trial
Court of Lucena City.
Section 1, Rule 137 of the Rules of Court provides as follows:
Section 1. Disqualification of judges. — No judge or judicial officer shall sit in
any case in which he, or his wife or child, is pecuniarily. interested as heir,
PINEDAPCGRNMAN
legatee, creditor or otherwise, or in which he is related to either party within
the sixth degree of consanguinity or affinity, or to counsel within the fourth
degree computed according to the rules of the civil law, or in which he has
been executor, administrator, guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or decision is the subject of
review, without the written consent of all parties in interest, signed by them
and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those mentioned above.
From the foregoing provision of the rules, a judge cannot sit in any case in
which he was a counsel without the written consent of all the parties in
interest, signed by them and entered upon the record. The respondent
alleged that since there was no objection from any of the parties, he
proceeded to preside over the case and to decide it. This is a clear violation
of the law. The rule is explicit that he must secure the written consent of all
the parties, not a mere verbal consent much. less a tacit acquiescence. More
than this, said written consent must be signed by them and entered upon the
record.
The failure of the respondent to observe these elementary rules of conduct
betrays his unusual personal interest in the case which prevailed over and
above his sworn duty to administer the law impartially and without any fear
or favor.
The third charge is even more serious. The record of Criminal Case No. 8924,
entitled "People of the Philippines vs. Cesar Salamat" for violation of B.P.
Blg. 22, shows that on July 24, 1987, the respondent issued a subpoena,
addressed to prison inmate Jose Obosa, who was then a convict in the NBP
at Muntinlupa, Rizal, requiring him to appear before his court on July 27, 28
and 29, 1987 at 8:30 A.M. and then and there to testify in the above entitled
case. There is a notation at the top thereof "For Conference. 3
On August 18, 1987, the respondent issued an order and on the basis thereof
issued another subpoena for Obosa to appear for a conference on August
28, 1987 at 8:30 A.M. 4 There was no reason for respondent to subpoena
Obosa to testify in said case as the accused had not yet been arrested and
thus the case could not be set for hearing.
Respondent, however, explained that the reason he subpoenaed Obosa was
due to his interest in having the accused Salamat arrested as he was still at
large. He stated that during one of his speaking engagements in San Narciso,
Quezon, he met a certain Rivera who told him that Obosa was a friend of
Salamat who may be able to tell the respondent about the whereabouts of
Salamat. Respondent added that it was the complainant Maximino Torres
who requested the issuance of said subpoena for Obosa.
Torres, however, testified that he did not know Obosa and that it was the
respondent who drafted a letter dated August 14, 1987 and caused him to
sign the same by going to his house, nine kilometers away from the
courtroom. The said letter-request was made long after the first subpoena
was issued by respondent on July 24, 1987. This discrepancy reveals the
questionable motive of the respondent.
Because of the subpoena issued by the respondent, Obosa appeared at past
12:00 noon on July 28, 1987 in the house of the respondent at Sariaya,
Quezon, not in the courtroom, with two prison escorts and yet the respondent
did not ask him about the whereabouts of Salamat. Respondent stated
Obosa was to appear before him in court but there was no court hearing as
yet as the accused had not been apprehended.
Again, on July 29, 1987, Obosa appeared in his house at past noon but
likewise respondent did not inquire about the whereabouts of Salamat. The
excuse of the respondent is that was the time he had to bring his sick
daughter to the hospital.
Atty. Salvador Ranin, the agent of the National Bureau of Investigation (NBI)
who investigated the case, testified that from July 28, 1987, up to August 2,
1987, Obosa did not return to his quarters at the NBP although there was an
entry in the logbook of the NBP that Obosa returned to his quarters allegedly
on August 2, 1987 at 2:10 in the afternoon. The well publicized murder of
Local Government Secretary Jaime Ferrer occurred at 6:45 P.M. of the same
day. Ranin stated that during the incident, three (3) school children saw a
man with a gun running towards La Huerta, Paranaque. Incidentally, the
residence of Obosa is in Paranaque.
Ranin went to Muntinlupa and he photographed Obosa while taking a bath.
Page 364
He blew up the picture and showed it to the witnesses and the children and
they positively Identified Obosa as the man running away from the scene of
the crime. Later fifteen (15) persons were lined up at the NBI headquarters
LEGAL ETHICS
in Manila together with Obosa and the witnesses pointed to Obosa as the
one fleeing after the commission of the offense. Ranin emphasized that in
their opinion the marginal entry in the logbook of the NBP as to the alleged
return of Obosa to his quarters on August 2, 1987 at 2:1 0 P.M. is a false
entry.
There are now two criminal cases pending before the RTC, Makati, Metro
Manila, namely: Criminal Case No. 011, entitled People of the Philippines vs.
Nieves Constancio, Ruel Villahermosa y Fernandez, Jose Obosa y Tutaan
and Victoriano Tutaan, prison superintendent, for the murder of Secretary
Ferrer; and Criminal Case No. 012 against the same accused for the murder
of Jesus T. Calderon, driver of Secretary Ferrer. The respondent is not
accused in the said criminal cases.
No doubt the respondent is guilty of the charge against him. There was no
reason for him to require the appearance of Obosa in his court, even for a
conference. The criminal case pending before him was not yet ready for trial
as the accused was at large. If truly respondent was impelled with the desire
to locate the whereabouts of accused Salamat so that he could be arrested,
all that he could have done was to have a policeman or court employee go
to Muntinlupa for the purpose, or he himself could have done so.
Under Section 3, Rule 23 of the Rules of Court, a subpoena shall be signed
by the clerk of court or by the judge, if the court has no clerk, under the seal
of the court. The respondent had a clerk of court, Miss Gloria Lorenzo, and
yet he himself issued and signed the subpoena. His undue interest to bring
out Obosa from his confinement allegedly to appear before him is obvious.
Respondent did not even consider that Circular No. 6 dated December 5,
1987 of this Court specifically directs that no maximum security prisoner
could be taken out of the NBP to serve as witness in a case and testify therein
without the permission of this Court and unless the same is absolutely
necessary. The respondent failed to secure such authority from this Court
before issuing a subpoena for Obosa. His lame excuse is that he has not
read said circular.
In causing Jose Obosa to get out of the NBP allegedly to appear before him,
the respondent wittingly or unwittingly, furnished Obosa the opportunity to
participate in the commission of a crime or crimes. In fact, Obosa is now
being held to account as a principal in the murder of Secretary Ferrer and his
driver.
The respondent committed grave and serious misconduct in the performance
of his duty. He demonstrated his unfitness to be a judge as in fact by his
behavior he has placed the judiciary in disrepute. 5 He abused the great
powers of his office so that he should not stay a moment longer as a member
of the judiciary.
WHEREFORE, while respondent is cleared of the charge of harassment filed
by Mercedita G. Lorenzo, he is hereby found guilty of grave and serious
misconduct for deciding Civil Case No. 1202, entitled Kilusang Bayan
Pampananalapi ng Sariaya (KBPS) vs. Gilda Balid, et al., wherein he was a
former counsel for plaintiff in violation of Section 1, Rule 137 of the Rules of
Court, and for having illegally issued a subpoena for the appearance of prison
inmate Jose T. Obosa of the NBP before him in Criminal Case No. 8924,
entitled "People of the Philippines vs. Cesar Salamat;" and as penalty
thereof, the respondent it is hereby DISMISSED from the service with
prejudice to reinstatement in the government and forfeiture of his retirement
benefits, if any, but without prejudice to the payment of his accrued leave or
salaries already earned.
SO ORDERED.
1.07 SEC. 7. Judges shall encourage and uphold safeguards for the
discharge of judicial duties in order to maintain and enhance the
institutional and operational independence of the judiciary.
[A.M. No. RTJ-00-1594. June 20, 2003]
PASTOR SALUD, complainant, vs. JUDGE FLORENTINO M.
ALUMBRES, Presiding Judge, Regional Trial Court, Branch 255, Las
Pias City, respondent.
RESOLUTION
QUISUMBING, J.:
This is an administrative case filed by Pastor Salud[1] against the Hon.
Florentino M. Alumbres, then presiding judge of the Regional Trial Court
(RTC) of Las Pias City, Metro Manila, Branch 255, for undue delay in the
PINEDAPCGRNMAN
resolution of Civil Case No. LP-96-300, entitled Sps. Eduardo and Josefina
Laurito v. Sps. Pastor and Marcosa Salud.
As found by the Office of the Court Administrator (OCA),[2] the instant matter
originated from the double sale of a parcel of land. It appears that a certain
Ricardo Forneza, Jr., and Cynthia S. Forneza were the original owners of a
house and lot covered by Transfer Certificate of Title (TCT) No. (106597) T-
5251-A. In a brief span of four (4) days, the Fornezas managed to sell the
same property twice. The first sale took place on February 8, 1990 to one
Ferdinand Jimenez as evidenced by a Deed of Sale. Then on February 12,
1990, the Fornezas executed in favor of Maria Belen Salud and Laurina
Salud, a Contract to Sell[3] over the same house and lot.
The first buyer (Jimenez) successfully caused the transfer of the title of the
subject property in his name, as a result of which TCT No. (106597) T-5251-
A was cancelled and TCT No. T-14065 issued in his name. On June 27,
1991, Jimenez sold the property to the spouses Eduardo and Josefina
Laurito. The Laurito spouses then secured a new title, TCT No. T-24778, in
their names.[4]
When the Laurito spouses visited the subject property, they discovered that
the spouses Pastor and Marcosa Salud were occupying the house and lot.
Notwithstanding the demand made by the Lauritos, the Salud couple refused
to vacate the property. Hence, the Lauritos filed a suit for unlawful detainer
against them before the Metropolitan Trial Court (MeTC) of Las Pias City.[5]
Despite the defense of the Salud spouses that they were buyers in good faith,
the MeTC rendered a Decision,[6] dated December 9, 1996, against
them. The MeTC held that the Saluds failed to present any document to show
that they were the owners of the property.
On April 17, 1997, the Salud spouses appealed and filed a memorandum
pursuant to Section 7, Rule 40[7] of the Revised Rules of Civil Procedure. The
case, docketed as Civil Case No. LP-96-300, was raffled to Branch 255 of
the RTC of Las Pias City, presided over by herein respondent.
Notwithstanding the pendency of said appeal, on April 1, 1997,[8] Judge
Alumbres issued an Alias Writ of Execution, stating that judgment [is] now
final and executory. [9] Thus, the Salud spouses filed a petition for certiorari
before the Court of Appeals on April 23, 1997, with a prayer to temporarily
restrain the RTC from implementing, enforcing or otherwise executing its
orders dated February 17, 1997 and April 1, 1997, or otherwise disturbing the
status quo.[10]
The Laurito spouses then filed with the Court of Appeals a Motion to Declare
Temporary Restraining Order Vacated and for the early resolution of the
case. On October 8, 1998, they also filed a Motion for Issuance of an Alias
Writ of Execution Pending Appeal.[11]
On October 19, 1998,[12] Pastor Salud filed a Letter Complaint[13] with the OCA
praying that the respondent judge be found administratively liable for delay
in rendering judgment in Civil Case No. LP-96-300. The Salud spouses
claimed that the RTC had the period from May 1997 to August 1997 to decide
Civil Case No. LP-96-300, but had not resolved the matter. They likewise
pointed to another case pending before the respondent, where the litigants
had been waiting at least six (6) months for the courts judgment. The
complainants herein asked the OCA to look closely at the docket of
respondent judges sala, as they were of the belief that several cases ripe for
decision remained unacted upon.[14]
On October 19, 1998, despite Saluds opposition, the respondent judge
issued an Alias Writ of Execution. Salud questioned the issuance of the alias
writ on the ground that said order was contrary to the respondent judges
earlier statement that he would not act upon or issue any writ out of respect
for the order of the Court of Appeals to maintain the status quo. The
respondent judge made the statement, according to Salud despite the prayer
of the Saluds that a decision be rendered on their unlawful detainer case.[15]
On November 20, 1998, or after more than fifteen (15) months from
submission, the RTC handed down its judgment in Civil Case No. LP-96-300.
It affirmed in toto the decision of the MeTC, which found the Saluds have
failed to present a better title to the subject property.[16]
In his Comment[17] on the instant Complaint, respondent judge does not deny
that there was a delay in the rendition of judgment. However, he sought to
put the blame for the delay squarely on the complainant herein. According to
respondent, after he decreed the issuance of a Writ of Execution Pending
Appeal, complainant herein filed numerous pleadings not only before the
Page 365
RTC but also with the Court of Appeals, which sought to thwart the
implementation of the writ issued and, obviously, to harass him. Complainant
likewise sought to inhibit him from proceeding with the hearing of Civil Case
LEGAL ETHICS
No. LP-96-300. Respondent avers that complainant even went to the extent
of charging him with contempt of court before the Court of Appeals. As a
result, respondent said his time was virtually used up by answering baseless
and unwarranted pleadings filed by the complainant.[18]
Respondent points out that despite the pendency of the administrative case
against him, he was nevertheless able to render a decision, albeit delayed
by 16 months. He now submits that given this development, he should be
exempted from and relieved of any liability. In addition, Judge Alumbres
submits that more than one (1) year has lapsed since the case was decided
and he no longer has any jurisdiction over Civil Case No. LP-96-300. Hence,
he should not be ordered to explain matters no longer within his jurisdiction
and competence.[19] Lastly, Judge Alumbres attributes the filing of the
administrative case against him to the unfavorable decision he rendered
against complainant in the unlawful detainer case. He cites complainant as a
classic example of a disgruntled litigant.[20]
On August 29, 2000, the Court Administrator recommended that the
respondent judge be suspended without pay and benefits for a period of two
(2) months[21] for delay in the disposition of a case.[22] Said recommendation
took into consideration the fact that respondent had previously been
admonished for having decided a case beyond the reglementary period.
It is not disputed that it took respondent judge over 16 months to render his
decision in Civil Case No. LP-96-300 after it was submitted for decision. The
Constitution[23] mandates lower court judges to decide a case within ninety
(90) days from its submission. Likewise, the Code of Judicial Conduct[24]
mandates judges to administer justice without delay and directs every judge
to dispose of the courts business promptly within the period prescribed by
the law and the rules. We have emphasized strict observance of this duty in
order to minimize, if not totally eradicate, the twin problems of congestion and
delay that have long plagued our courts. It is an oft-repeated maxim that
justice delayed is often justice denied. Thus, any delay in the administration
of justice, no matter how brief, may result in depriving the litigant of his right
to a speedy disposition of his case. Delay ultimately affects the image of the
judiciary.[25] Failure to comply with the mandate of the Constitution and of the
Code of Judicial Conduct constitutes serious misconduct, which is
detrimental to the honor and integrity of a judicial office. Inability to decide a
case despite the ample time prescribed is inexcusable, constitutes gross
inefficiency,[26] and warrants administrative sanction of the defaulting
judge.[27]
Delay in the rendition of judgments diminishes the peoples faith in our judicial
system,[28] and lowers its standards and brings it into disrepute.[29] In the event
that judges cannot comply with the deadlines prescribed by law, they should
apply for extensions of time to avoid administrative sanctions.[30] The Court
allows a certain degree of latitude to judges and grants them reasonable
extensions of time to resolve cases upon proper application by the judges
concerned and on meritorious grounds.[31] At the very least, respondent judge
should have requested for an extension of time to render judgment once he
knew that he could not comply with the prescribed 90-day period to render a
judgment. In so doing, he would have been able to apprise litigants as to the
status of the case and the reason for the delay, if any. It would have shown
his mindfulness of the deadlines.
Undue delay in rendering a decision constitutes a less serious charge under
Section 4, Rule 140[32] of the Rules of Court, as amended. If found guilty
thereof, the judge shall be suspended from office without salary and other
benefits for not less than one (1) month or more than three (3) months; or
imposed a fine of more than P10,000, but not exceeding P20,000, pursuant
to Section 10,[33] Rule 140.
In this instance, however, we also have to recognize certain contributing
factors for the delay. Among them are the observed tendencies of the litigants
to resort to harassment tactics against the judge, as well as to overburden
the court with multiple but unnecessary motions and related paperwork.
These negative tactics are to be deplored. Although they do not excuse
undue delay, they certainly should mitigate the imposable penalty on the
erring judge.
Except for the mitigating circumstance, we are in agreement with the OCA
recommendations in this case. The record shows that this is not the first time
that respondent has been called to account by this Court. In 1992, he was
fined for gross partiality to a party. In 1996, he was admonished for delay in
the disposition of a case. In 1999, he was reprimanded. Although respondent
has retired on June 3, 2001, the recommendation of the OCA that a fine be
imposed on him is still in order.
PINEDAPCGRNMAN
Worth stressing, even after a judge has retired from the service, he may still
be held administratively accountable for lapses and offenses committed
during his incumbency. Although he may no longer be dismissed or
suspended, fines may still be meted out to be deducted from his retirement
benefits.[34]
ACCORDINGLY, considering all the circumstances in this case, Hon.
Florentino M. Alumbres, former presiding judge of the Regional Trial Court of
Las Pias, Branch 255, is FINEDFIVE THOUSAND PESOS (P5,000.00) for
undue delay in rendering a decision in Civil Case No. LP-96-300. Said
amount is hereby ORDERED deducted from retirement benefits of
respondent.
SO ORDERED.
1.08 SEC. 8. Judges shall exhibit and promote high standards of judicial
conduct in order to reinforce public confidence in the judiciary, which
is fundamental to the maintenance of judicial independence.
CANON 2 INTEGRITY
Integrity is essential not only to the proper discharge of the judicial
office but also to the personal demeanor of judges.
2.01 SEC. 1. Judges shall ensure that not only is their conduct above
reproach, but that it is perceived to be so in the view of a reasonable
observer.
A.M. No. RTJ-92-904 December 7, 1993
DR. NORBERT L. ALFONSO, complainant,
vs.
JUDGE MODESTO C. JUANSON, Branch 30, Regional Trial Court of
Manila, respondent.
Nicanor B. Padilla and Roberto A. Demigillo for complainant.
S.N. Barlongay and W.B. Lachica for respondent.
DAVIDE, JR., J.:
On 15 September 1992, the complainant, a doctor of medicine by profession,
filed with this Court a sworn complaint charging the respondent with
immorality and violation of the Code of Judicial Ethics. He accuses the
respondent of maintaining illicit sexual relations with his wife, Sol Dinglasan
Alfonso. The complainant and his wife were married on 10 December 1988
and their union bore them three children, all boys, ages 3 years old, 2 years
old, and 4 months old, respectively. He alleges that their married life was
peaceful and happy until the discovery of the sordid affair, which came about
in this manner:
Sometime in February 1991, the complainant received a phone call from the
wife of the respondent who informed him that Sol and her husband
(respondent) have been carrying on an affair and that she has in her
possession the love letters of Sol which she wants to show to the
complainant. Although he did not believe the information and even berated
Mrs. Juanson for trying to ruin his family, he, nevertheless, told Sol about it.
Sol assured him of her love and concern for the family and claimed that the
respondent was just a client of
her former office, the Banco Filipino (EDSA Cubao Branch). Two weeks later,
Mrs. Juanson called him again to inquire if he had received the photocopies
of Sol's love letters to the respondent. He again scolded Mrs. Juanson and
told her not to call him up anymore. On 12 June 1992, he and Sol left for the
United States of America (USA) for a vacation. He stayed there up to 19 July
1992; however, Sol returned ahead of him on 10 July 1992. During his
absence, specifically on 17 June 1992, Mrs. Juanson called up his father,
Atty. Norberto Alfonso, and divulged to the latter the illicit affair between the
respondent and Sol. On 20 June 1992, Mrs. Juanson sent to Atty. Alfonso
photocopies of Sol's love letters to the respondent. During their pre-arranged
meeting on 25 June 1992, Mrs. Juanson delivered the original copies of Sol's
alleged letters to
Atty. Alfonso who was accompanied by the complainant's sister, Celestine A.
Barreto.
When Sol arrived in the Philippines on 10 July 1992, Atty. Alfonso decided to
hire a private investigating agency to undertake an inquiry on the alleged illicit
Page 366
affair between Sol and the respondent. Through surveillance conducted by
its private investigators, the agency found that Sol had met with the
respondent on 11 and 17 July 1992 at Unit 412-A of Citihomes at 130 San
LEGAL ETHICS
Francisco St., Mandaluyong, Metro Manila, and that they stayed inside the
unit for two to three hours.
Complainant further alleges that on 25 July 1992, five days after his arrival
from the USA, his sister Celestine told him about the illicit relationship
between Sol and the respondent. Celestine showed him the pictures taken
by the private investigators and the alleged love letters of Sol. In the evening
of the said date, in the presence of their respective parents, the complainant
confronted Sol and showed her the proofs; Sol still denied the affair and
insisted that she was just discussing some business with the respondent.
Later, however, at about 1:30 a.m. in their house, Sol finally admitted to
having an illicit affair with the respondent since late 1983 when she was an
employee of Banco Filipino (EDSA Cubao Branch) and that before they left
for the USA, she met with the respondent at Unit 412-A Citihomes.
As a result of this revelation, the complainant sent his wife out of the house.
He and Sol have been living separately since 26 July 1992. He also
subsequently discovered from the statement of the billing from Pacific Bell
for overseas calls which he and Sol made while they were in the USA that on
17 and 25 June 1992 Sol had made calls to the respondent's office at the
Manila Regional Trial Court.
Complainant submits that the respondent is undeserving of the noble office
of the judiciary and prays that he be meted the appropriate administrative
sanction for immorality and violation of the Code of Judicial Ethics.
In compliance with this Court's Resolution of 22 October 1992, the
respondent filed his Comment on 21 December 1992. He admits that he
knows Sol and that "they have been communicating with each other casually
and innocently," but denies that they are lovers and were having an illicit
affair, that Sol has been sending love letters to him, and that, except for the
11 and 17 July 1992 meetings, he and Sol had been going to the apartment
situated at 130 San Francisco St., Mandaluyong, Metro Manila, and staying
there for hours. He asserts that he came to know Sol sometime in 1987 when
she engaged his professional services in connection with five criminal cases
filed by her in the Office of the Provincial Prosecutor of Rizal and the in the
Regional Trial Court of Pasig. In the course of their attorney-client
relationship, Sol sought legal advice from him and during those occasions
they usually talked over the phone and not in the office. In June 1992, he
received an overseas call from Sol who was then in the USA. Sol asked for
advice concerning her problem with her employer, the Security Bank and
Trust Co. (Dau Central Branch). They agreed that Sol would see him upon
her return to the Philippines. On 11 July 1992, shortly after her arrival from
the USA, he ad Sol met at the aforementioned apartment, which was leased
not by the respondent but by Celestino Esteban. After discussing her
problem, with Celestino and two other persons present, he and Sol left the
apartment and took a late lunch at Fastfood, Robinson. He reassures the
complainant "that his wife has always been faithful to him and that he would
do nothing as would tarnish their warm relationship, much less destroy the
complainant's family."
On 4 May 1993, the Court referred the case to Associate Justice Lourdes
T. Jaguros of the Court of Appeals for investigation, report and
recommendation.
Justice Jaguros conducted a full-blown investigation. At the hearings on 17,
18, 21 and 29 of June 1993 and 6, 8, 9 and 12 of July 1993, the parties
submitted testimonial and documentary evidence. On 4 October 1993, she
submitted her Report and Recommendation dated 30 September 1993.
Pertinent portions of her findings of facts read as follows:
As culled from the evidence of this case, Complainant Dr. Norbert L. Alfonso
and Sol Dinglasan were married at Sta. Ana Catholic Church on December
10, 1988 as evidenced by a marriage contract (Exh. "N"). Three children were
born of this marriage, John Jason, three (3) years old, Jan Norbert, two (2)
years old, and the youngest Jan Joseph, four (4) months old. Complainant
and his family lived a happy and normal life with their Sundays spent on
outings after the Sunday mass. (p. 9, tsn, June 29, 1993).
In February, 1991, Complainant received phone calls from a woman
introducing herself as a concerned friend telling that complainant's wife is
having an illicit affair with her said woman caller's husband. Said caller did
not identify herself but only said she was in possession of love letters of
complainant's wife Sol to said caller's husband. After two weeks, said
"concerned friend" called up the Complainant again to ask him if he had
received said caller's registered mail. Complainant after both calls asked his
wife Sol about her having an affair with another man, and in both instances,
Sol assured him of her love. Then the calls stopped for the rest of the year
PINEDAPCGRNMAN
1991 and early part of 1992 although Complainant noticed that his wife Sol
used to go out alone every Saturday.
On June 12, 1992, Complainant and his wife Sol went to the U.S.A. for a
vacation but the latter decided to return to Manila ahead of the former on July
10, 1992 (Exh. "O"). Complainant followed in returning home only on July 19,
1992 (Exh. "O-1").
On July 25, 1992, Complainant was invited by his father, Atty. Norberto
Alfonso to his sister Celestine Barreto's house, and there his father showed
him five (5) love letters written by Complainant's wife Sol with envelopes
addressed to Atty. Modesto C. Juanson (Exhs. "A" to "E" and submarking),
and pictures taken by private investigators of Complainant's wife and
respondent Judge in company of each other (Exhs.
"F-5" to "F-22", "G-2" to "G-14"). Complainant recognized the handwriting of
his wife Sol in said love letters, specifically the GAIN memo pad paper used
by Sol in her love letter (Exh. "D") which is a prescription pad of Complainant
to his patients. Likewise, in the pictures, Complainant recognized his wife Sol
holding a "Payless" bag (Exh. "F-6") with the Respondent Judge holding the
same bag later on (Exh. "F-14"). In practically all the pictures, Complainant
identified his wife Sol and the respondent Judge. The Respondent Judge was
no stranger to Complainant as the latter knows said Judge personally. Said
Judge is one of the best friends of Complainant's parents-in-law and was
even a sponsor in the wedding of Complainant's sister-in-law. Both
Complainant and Respondent Judge had met thrice and talked with each
other.
The five love letters, including a picture of the Respondent Judge (Exh. "K")
were handed to Complainant's father, Atty. Norberto Alfonso by a lady who
introduced herself, as Mrs. Ceferina Juanson in the presence of
Complainant's sister, Celestine Barreto. The three met at the front entrance
of the Sto. Domingo Church, Quezon Boulevard, Quezon City and proceeded
to the City Diners Restaurant in the same city where the three had a talk and
where Mrs. Juanson handed to Atty. Alfonso the five love letters with a
picture, at about 10:30 to 11:30 a.m. in late June 1992. Prior to said meeting
on June 17, 1992, at about 11:00 a.m. a "concerned woman" had called up
Atty. Alfonso at his home and in the vernacular had said "Tinataihan ang ulo
ng anak mo ng babaeng iyan" referring to Complainant's wife. To clear Atty.
Alfonso's doubt, the woman promised to send proofs which Atty. Alfonso
received by LBC in a parcel containing the xerox copies of Complainant's
wife's love letters to Atty. Modesto C. Juanson.
After the meeting with the lady who identified herself as Mrs.
Ceferina Juanson, Atty. Alfonso got an overseas call from Complainant that
his wife Sol was coming home to Manila earlier so that Atty. Alfonso engaged
the services of a private investigating agency, Truth Verifier System, Inc., to
conduct surveillance of the activities of Complainant's wife, Sol upon her
arrival from the U.S.A. Sol Alfonso did arrive on July 10, 1992, and on July
11 and 17, 1992, the Truth Verifier System, Inc. through Marjorie Juinio and
Edgardo Tamayo, licensed private detectives conducted surveillance
operation on Mrs. Sol Dinglasan and respondent Judge Modesto Juanson. On
said date of July 17, 1992, said private detectives together with Raymond
Tabangcura and Edgar Naquilla, saw, Sol Dinglasan Alfonso go out of her
house carrying a bag, take a tricycle and alight at Lamayan St., walk towards
Sta. Ana Church then board a taxicab. Following said taxicab, the taxi
stopped at City Homes, San Francisco Street, Mandaluyong, Metro Manila.
Sol went inside Unit 412-A Citihomes, and stayed inside for about three
hours. Respondent Judge Modesto Juanson came out first of said unit,
wearing blue walking shorts and light colored polo and carrying the plastic
bag which Sol was seen carrying earlier, and then followed by Sol. At around
1:00 p.m., the Respondent Judge and Sol were inside said Respondent's
Wrangler jeep on their way to Robinson Galeria at EDSA. The two ate at
Mongolian Restaurant and at Gusto Unico, then they proceeded to
Robinson's Supermarket. Inside the supermarket, Marjorie Juinio saw the
Respondent Judge put his arm on the shoulder of Sol, and they were also
seen holding hands (pp. 23-26, tsn, June 21, 1993). Then the two,
Respondent Judge and Sol boarded the Wrangler jeep. At about 3:45 p.m.,
Sol alighted at the corner of Suter and Roxas Streets and then boarded a
tricycle while the jeep left. The formal report of the Truth and Verifier System,
Inc. has
been offered by Complainant as Exhibit "F-1" to "F-4" while the many pictures
Page 367
taken of Respondent Judge and Sol were marked and offered as Exhibits "F-
5" to "F-22".
LEGAL ETHICS
The other team of the Truth Verifier System, Inc. led by Edgardo Tamayo
practically corroborated the findings of the Marjorie Juinio team. A formal
report marked and offered as Exhibit "G" to "G-1", and pictures taken of
Respondent Judge and Complainant's wife Sol marked and offered as
Exhibits "G-2" to "G-14" were presented before the Investigator.
Five days after the arrival of Complainant Dr. Norbert L. Alfonso, he was
invited by his father, Atty. Norberto Alfonso to Norbert's sister's house in San
Juan, Metro Manila. In the house of Celestine Alfonso Barreto, Atty. Alfonso
showed his son, Norbert the love letters written by his wife Sol to Respondent
Judge (Exhs. "A" to "E"). Complainants recognized the handwritings of his
wife Sol and even the GAIN memo stationery which complainant was using
as his prescription pad for his patients (Exh. "D"). He recognized his wife Sol
and Respondent Judge in the pictures taken by the private detectives. On
said day, Complainant Norbert Alfonso experienced the greatest shock of his
life and wondered what happened to his life. His father, Atty. Alfonso,
however, advised him not to hurt his wife Sol. In that same party,
Complainant showed Sol the pictures and the love letters which made Sol
turn pale and stammer when talking. Sol's own parents were embarrassed
and walked out of the party.
On the same night at about 10 in the evening, Complainant Dr.
Norbert Alfonso confronted his wife Sol as to the truth of her relationship with
Respondent Judge. Before the Investigator said Complainant made the
following testimony on direct examination:
xxx xxx xxx
ATTY. DEMIGILLO:
Q What else did your wife tell you during that confrontation, her exact words
? 10 June 1992. He told her that he could not give any written or oral advice
xxx xxx xxx
A She took a deep breath again and told me, "Sweetheart, I am very, very,
very sorry, I made a mistake." I asked, "What mistake is that ?" She replied,
"I had sexual intercourse with the Judge."
xxx xxx xxx
Q What else, if any, happened during that confrontation?
A I asked my wife "How many times did you have sexual intercourse with the
Judge"?
Q Was there any response?
A She answered five times and then right away I said, "Putangina mo, five
times lang.Alam mo ba kung ilan beses kitang naganyan? Tarantado ka."
With my voice not so loud because the door and the windows were opened.
If I shout the neighbors will hear and then the yayas will go down right away.
Q What was your wife doing at that time?
A My wife was crying and saying, "Sweetheart, I am very, very sorry. Forgive
me." She was kneeling before me and begging forgiveness. "Forgive me,
sweetheart, I love you."
I told my wife, "you do not love me, you love your stupid Judge."
Q Is there anything else that you discussed during that confrontation aside
from the admission?
A After that admittance of my wife having sexual relationship with the Judge,
reminiscing the past events when we were together I told my wife, "That's
why pala every Saturday umaalis ka dito. Sinong pinupuntahan mo?" And
definitely, she admitted to me, "To the Judge." (pp. 35-41, tsn, June 29, 1993)
The confrontation between Complainant and his wife Sol ended at about 5:00
a.m. of the following day, July 16, 1992 with Complainant asking Sol to leave
the house.
Sol also admitted to the Complainant that when she went to Hongkong on
December 26, 1989 up to December 29, 1989 she was with Respondent
Judge, and records of the Commission on Immigration for said dates show
that both Sol Alfonso and Respondent Judge Modesto Juanson departed for
Hongkong via Cathay Pacific plane on December 26, 1989 and returned to
Manila on December 29, 1989 (Exhs. "P" and "P-1").
Also, Complainant received from his sister in California, U.S.A., a Pacific Bell
Statement of Telephone Calls reflecting two calls made by his wife Sol to
Manila, at numbers 632 476120. Number 632 is the country code while
number 476120 is the phone number of the Regional Trial Court, Branch 30,
where Respondent Judge is the Presiding Judge.
As of now, Complainant Dr. Norbert Alfonso and his wife Sol live separately,
and their three children are alternately in the custody of Complainant or Sol
for certain number of days.
Upon the other hand, Respondent Judge main defense is denial as he
advances the position that Sol Dinglasan Alfonso was a former client when
PINEDAPCGRNMAN
Respondent Judge was still a practicing lawyer, and that from time to time
Sol would consult him regarding her cases. As to the Hongkong trip,
Respondent Judge simply accompanied a former client who was looking for
a house to buy in Hongkong and as to the visit in the Citihomes unit,
Respondent Judge claimed that he was only visiting his godson George Zari
who spent a vacation in the Philippines for a month.
Some elaboration of the respondent's version is necessary. He is now 56
years old. (TSN, 8 July 1993, 31). He and his wife, Ceferina, were married in
1961 and have two sons. Ceferina is eight years his senior. (TSN, 12 July
1993, 4-5). From 1967 to 1969, he was the Chief Legal Officer in the Office
of the City Mayor of Quezon City and from 1969 to 1982 he was the Second
Assistant City Fiscal of Quezon City. After that and until November 1990,
when he was appointed Judge of the Regional Trial Court at Urdaneta
Pangasinan, he was in private practice of law. In April 1992, he was assigned
to Branch 30 of the Regional Trial Court of Manila. (TSN, 8 July 1993, 32).
He first came to know Sol when she hired his services as her counsel in six
criminal cases involving dishonored checks she filed against Santiago
Maramag and Evangeline Maramag. (Id., 33-39). In 1989, he saw Sol at the
wedding of her sister Jennifer to Romeo Dizon; he stood as sponsor for the
groom then. In June 1992, Romeo saw him at his office at the City Hall in
Manila and sought advice regarding the letter Sol had received from the
Security Bank requiring her to explain why she should not be declared absent
without leave (AWOL) for leaving her work without an approved leave of
absence. He told Romeo that he would not be able to give any advice unless
he saw the letter and talked with Sol. A few days later, he received an
overseas call from Sol who said that she left the Philippines sometime after
until he read the letter and talked with her. This overseas call might have
been the 17 June 1992 call referred to in the Pacific Bell Statement. (Exhibit
"Q"). He was not able to talk to her in the second overseas call referred to in
Exhibit "Q." Two or three weeks alter, he received local call from Sol who told
him that she was back and that she has the letter. Sol begged to see him at
his office. He, however, told her that he was busy; besides, it was already
late in the afternoon. She got frantic and so he told her that they could meet
the following day at Unit 412-A, Citihomes, at 130 San Francisco St.,
Mandaluyong, since he was to meet his godson, George Zari, in the said
place. They did meet there at 11:00 o'clock in the morning the following day
—
11 July 1992, a Saturday. Sol gave him the letter from the Security Bank and
after interviewing her he promised to prepare a draft of a "reply." Present at
that time were Celestino Esteban, lessee of the unit who is his friend, George
Zari, and his live-in partner, Marissa. Forty-five minutes later, he decided to
go home. Sol requested for a ride in his vehicle in order to alight at the place
of her employer along EDSA and Shaw Boulevard to which he obliged. While
on their way, Sol invited him for lunch and they went to the Mongolian
Restaurant at Robinson's where they had lunch. They had coffee nearby and
then parted ways. Thereafter, on separate days, Sol called him by phone to
ask about the draft of the reply. On the second call, he told her that since he
would meet George Zari on the 17th of July at Unit 412-A Citihomes, she
might just as well meet him there. She acceded and on that date he left his
office at about 11:00 o'clock in the morning and arrived at Unit 412-A thirty
minutes later. (TSN, 12 July 1993, 25). Sometime after Sol arrived, he gave
to her the draft of the reply and instructed her to type the letter, date and sign
it, and then send it to her employer. He also referred her to Atty. Lachica to
whom she should henceforth communicate because he, respondent, is busy
at his office. When he was
about to leave, Sol asked if she might ride in his vehicle in order to alight at
EDSA-Shaw Boulevard to which he agreed. After that he did not meet Sol
again. (TSN, 9 July 1993, 3-15).
Respondent denies having gone to Hongkong with Sol on 26 December 1989
and having seen her in Hongkong. According to him, his traveling companion
was Cua Sen. (Id., 16-23). Cua Sen corroborated him on this point. (TSN, 6
July 1993, 5-10). When confronted about the charge of immorality and
unethical conduct for having illicit relations with Sol, he answered: "I deny it
very strongly, your Honor." (Id., 32).
Respondent further suggests that it was impossible for him to have sexual
intercourse with Sol because he was suffering from two debilitating diseases
Page 368
— diabetes mellitus, for which he has been "taking insulin" since 1987, and
prostatitis — which have seriously affected his sexual potency. In his own
LEGAL ETHICS
words, he "could hardly make it," and that he has "no erection whatsoever."
(Id., 29-32; Exhibits "11" and "12").
Justice Jaguros gives full faith and credit to the complainant's version for she
finds no reason not to believe the complainant. According to her, "[n]o man
in his correct mind would come forward and claim that his honor and good
name have been stained by an adulterous wife, doubt the paternity of his
children, and in the process destroy his family and home." She ruled that the
testimonies of the witnesses for the respondent — Cua Sen, Celestino
Esteban and former Judge Zari — do not inspire belief.
Justice Jaguros then concludes that the immoral conduct of the respondent
has ruined two families — his own and that of the complainant. Respondent
"cannot escape from the blame and sin of what he has caused Complainant's
once happy family." More pertinently she adds:
But beyond the domestic confines of these two families, Respondent Judge
is no ordinary mortal who can live the life he pleases having two women at
the same time — his wife and worst [sic], another man's wife. He is a Judge
who symbolizes the law and the highest degree of morality in the community.
The citizens look up to him as the embodiment of justice and decency, as he
decides cases brought to his court. He can be no less.
And invoking our decision in Leynes vs. Veloso (82 SCRA 325 [1978] ) and
Castillo vs. Calanog (199 SCRA 75 [1991] ) as precedent and moral
compass, she asserts that she has no other alternative but to find respondent
"GUILTY as charged of Immorality and Violation of Judicial Conduct" and to
recommend his "DISMISSAL . . . from office."
In the light of the conclusions of the Investigating Justice and her
recommendation for the imposition upon the respondent of the severest
administrative penalty — dismissal from the service — it is all the more
imperative to conduct as assiduous examination and evaluation of the
records and the evidence.
There is no doubt in our minds that a very special relationship existed
between the respondent and the complainant's wife. For one, there are the
cards or notes, which the complainant and the Investigating Justice
described as love letters. These five "love letters" are marked as Exhibits "A."
"B," "C," "D," and "E," and dated 3 July 1987, 23 May 1988, 15 February
1988, 11 January 1989, and 7 March 1989, respectively. For another, if we
were to give full credit to the complainant's testimony that during their
confrontation Sol had admitted having sexual intercourse with the respondent
on five occasions (TSN, 29 June 1993, 39-40), it would appear that the
relationship had developed into an extra-marital liaison. It was furthermore
established that both Sol and the respondent took the same flights of Cathay
Pacific aircraft to Hongkong on 26 December 1989 and back to the
Philippines on 29 December 1989. There is, however, no evidence that they
stayed together in the same hotel in Hongkong. On the other hand, there is
the unrebutted testimony of Mr. Cua Sen that he, a client of the respondent,
was the latter's travelling companion.
From the foregoing, it is clear that their affair began before Sol and the
complainant were married on 10 December 1988 and might have blossomed
from the attorney-client relationship between respondent and Sol. Her
marriage to the complainant did not diminish Sol's love for the respondent,
for even after she committed herself to the complainant alone and made a
vow of fidelity to him till death at the solemn ceremony of marriage, she still
sneaked out her love notes to the respondent.
It must, however, be stressed that the respondent is not charged with
immorality or misconduct committed before he was appointed to the judiciary.
As to the post-appointment period, we find the evidence for the complainant
insufficient to prove that the respondent and Sol continued their extramarital
affair. No love notes written by her after November 1990 were presented in
evidence. If she did, they could have been kept with Exhibits "A" to "E" in
some secret place which was not, however, unknown anymore to the
respondent's wife. Sol's admission or confession to the complainant that she
had carnal knowledge of the respondent on five occasions made no
reference to specific dates and is hearsay. In his direct examination, the
complainant's counsel exerted no further effort to obtain clarifications as to
the dates thereof. He perhaps realized its futility because the narration by the
complainant of the information clearly indicated that the complainant did not
ask Sol to elaborate on the five illicit sexual acts. On cross-examination,
counsel for the respondent carefully avoided any entanglement with the
details of the admission not only because it might have provided an occasion
for the complainant to elaborate thereon, but because it would have operated
as a waiver of his objection to the testimony as hearsay. The transcripts of
PINEDAPCGRNMAN
the stenographic notes discloses that the counsel for the respondent
objected and entered a continuing objection to questions directed to elicit or
which tended to elicit statements or admissions supposedly made or given
by Sol on the grounds that any such statements or admissions would be
hearsay or otherwise barred by the res inter alios acta rule. Justice Jaguros
recognized the merit of the objection; hence, she allowed the answers to be
taken merely as part of the narration nut not as evidence of the truth thereof.
Thus:
ATTY. DEMIGILLO:
Q. What was her response to your exhortation?
A. After a few minutes she took a deep breath and said,
"Sweetheart, patawarin mo ako,nagkaroon ako ng kasalanan sa iyo."
ATTY. BARLONGAY:
At this juncture, Your Honor, we would like to register our objection as to the
issue of the truth of the statement as purported to be answered by her wife
for two reasons: One, it is hearsay. We have no opportunity to cross-examine
the . . .
COURT:
As part of the narration.
ATTY. BARLONGAY:
Yes, as part of the narration, but just for the purposes of record we would like
to register our objection as to the truth of the statement itself. First, it is
hearsay; second . . .
COURT:
Precisely, admitted only as part of his narration.
ATTY. BARLONGAY:
That is alright. Second, it is . . . on the basis of the inter-alia [sic] rule, the
admission of a party should not prejudice the rights of another.
xxx xxx xxx
ATTY. DEMIGILLO:
Q. What was the exact statement of your wife?
xxx xxx xxx
ATTY. BARLONGAY:
Again, subject to the observation of this Honorable Court, we would
register our objections on these two grounds: Hearsay and res inter- alia [sic]
rule.
xxx xxx xxx
ATTY. BARLONGAY:
Excuse me, I have some manifestations . . .
COURT:
You have a continuing objection?
ATTY. BARLONGAY:
Yes, I am not going to do this at every turn. I just want to say that our objection
is a continuing one. (TSN, 29 June 1993, 36-39).
If they were then allowed by the Investigating Justice as merely "part of the
narration," they should only be considered as independently relevant
statements, i.e., proof that Sol made statements or admissions, but not as
proof of the truth of facts revealed in the said statements or admissions.
Elsewise stated, the admission in evidence of the words spoken by Sol is not
to be used in determining the issue of their truth. (FRANCISCO, V.J.,The
Revised Rules of Court in the Philippines, vol. VII, Part I, 1973 ed., 438). This
being so, the acts of sexual intercourse admitted by Sol cannot, insofar as
the respondent is concerned, be deemed proven by the said admission or
confession. While it is true that technical rules of evidence should not be
applied in administrative cases, however, since the Investigating Justice
herself had specifically allowed the hearsay answers merely as part of the
narration, or more specifically as independently relevant statements, it would
be unfair and arbitrary to thereafter disregard the ruling. All told, there is in
this case no direct and competent evidence against the respondent that he
had illicit sex with Sol.
But even if the admission of Sol were to be taken as proof of the truth of the
facts so admitted, considering, however, that Sol's admission that she
engaged in sexual intercourse on five occasions made no reference to
specific dates, that their affair antedated Sol's marriage, that their last proven
tryst was in Hongkong in 1989, and that there is an absence of positive and
competent evidence to show that any of the five acts of sexual intercourse
took place after the respondent's appointment to the judiciary , it cannot be
Page 369
safely presumed that the respondent committed any of the sexual
indiscretions after he became a judge. Respondent is not charged for
immorality committed before his appointment. Accordingly, proof of prior
LEGAL ETHICS
immoral conduct cannot be a basis for his administrative discipline in this
case. The respondent may have undergone moral reformation after his
appointment, or his appointment could have completely transformed him
upon the solemn realization that a public office is a public trust and public
officers and employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives. (Section 1, Article XI, 1987
Constitution). It would be unreasonable and unfair to presume that since he
had wandered from the path of moral righteousness, he could never retrace
his steps and walk proud and tall again in that path. No man is beyond
reformation and redemption. A lawyer who aspires for the exalted position of
a magistrate knows, or ought to know, that he must pay a high price for that
honor — his private and official conduct must at all times be free from the
appearance of impropriety. (Jugueta vs. Boncaros, 60 SCRA 27 [1974]). And
the lawyer who is thereafter appointed thereto must perforce be presumed to
have solemnly bound himself to a way of conduct free from any hint or
suspicion of impropriety. The imputation of illicit sexual acts upon the
incumbent judge must be proven by substantial evidence, which is the
quantum of proof required in administrative cases. This the complainant
failed to do. The meetings of the respondent and Sol at Unit 412-A of
Citihomes on 11 July and 17 July 1992 do not by themselves prove that these
were trysts for libidinal gratification. Evidence was offered by the respondent
to prove otherwise. However, considering their prior special relationship, the
respondent and Sol's meetings could reasonably incite suspicion of either its
continuance or revival and the concomitant intimacies expressive of such
relationship. In short, the respondent suddenly became indiscreet; he
succumbed to the sweet memories of the past and he was unable to
disappoint Sol who asked for his legal advice on a matter which involved her
employment. Such indiscretions indubitably cast upon his conduct an
appearance of impropriety. He thus violated Canon 3 of the Canons of
Judicial Ethics which mandates that "[a] judge's official conduct should be
free from the appearance of impropriety, and his personal behavior, not only
upon the bench and in the performance of judicial duties, but also in his
everyday life, should be beyond reproach," and Canon 2 of the Code of
Judicial Conduct which provides that "[a] judge should avoid impropriety and
the appearance of impropriety in all activities." It has been said that a
magistrate of the law must comport himself at all times in such manner that
his conduct, official or otherwise, can bear the most searching scrutiny of the
public that looks up to him as the epitome of integrity and justice. (Dia-
Añonuevo v. Bercacio, 68 SCRA 81 [1975] ). The ethical principles and sense
of propriety of a judge are essential to the preservation of the faith of the
people in the judiciary. (Candia vs. Tagabucba, 79 SCRA 51 [1977] ).
It is to be noted that 17 July 1992 fell on a Friday. On that date, the
respondent left his office at the City Hall of Manila at about 11:00 o'clock in
the morning and arrived at Unit 412-A Citihomes thirty minutes later. (TSN,
12 July 1993, 25). Per report of the private detectives (Exhibit "G"), the
respondent and Sol left the unit as 1:30 o'clock in the afternoon on board a
vehicle and that twenty-five minutes later, Sol alighted near the crossing
overpass at United Street. It is, therefore, clear that on 17 July 1992 the
respondent had left his office during office hours and, considering the
distance between Mandaluyong and his office at the City Hall of Manila and
the usual traffic condition, it was impossible for him to have reached his office
— if at all he did proceed to it — in time for the commencement of the official
session hours in the afternoon,
i.e., 2:00 p.m. (Paragraph 5, Interim and Transitional Rules and Guidelines
Relative to the Implementation of the Judiciary Reorganization of 1981).
Thus, for purely personal sessions, he violated the rule regarding the official
sentence. Such violation amounted to neglect of duty.
Finally, a word on the respondent's defense that he not have sexual congress
with Sol because he was suffering from diabetes mellitus and prostatitis. The
claim is both self-serving and irrelevant. No expert testimony was presented
to prove the stage, extent or degree of seriousness of the diseases and their
effects on his capacity to copulate. The physicians who purportedly issued
the medical certificates did not testify thereon. Besides, immorality — for
which the respondent is charged — is not based alone on illicit sexual
intercourse. It is settled that:
immorality has not been confined to sexual matters, but includes conduct
inconsistent with rectitude, or indicative of corruption, indecency, depravity,
and dissoluteness; or is willful, flagrant, or shameless conduct showing moral
indifference to opinions of respectable members of the community, and as
PINEDAPCGRNMAN
an inconsiderate attitude toward good order and public welfare. (Black's Law
Dictionary, Sixth ed., 1990, 751).
WHEREFORE, for violations of the Code of Judicial Conduct, the Canons of
Judicial Ethics, and the rule on official time, respondent JUDGE MODESTO
C. JUANSON is hereby sentenced to pay a FINE of TWO THOUSAND
PESOS (P2,000.00) and, further, sternly warned that a repetition of the same
or similar acts shall be dealt with more severely.
SO ORDERED.
2.02 SEC. 2. The behavior and conduct of judges must reaffirm the
people’s faith in the integrity of the judiciary. Justice must not merely
be done but must also be seen to be done.
A.M. No. RTJ-90-447 December 16, 1994
EMMA J. CASTILLO, complainant,
vs.
JUDGE MANUEL M. CALANOG, JR., respondent.
RESOLUTION
MENDOZA, J.:
This refers to the "plea for judicial clemency and compassion" of Atty. Manuel
M. Calanog, Jr. Atty. Calanog was formerly judge of the Regional Trial Court
of Quezon City (Branch 7). In the decision of this Court of July 12, 1991 in
this case, he was found guilty of immorality and ordered dismissed from the
service "with prejudice to his reinstatement or appointment to any public
office including a government-owned or controlled corporation, and forfeiture
of retirement benefits, if any." He seeks, by his present petition, (1) a review
of his dismissal for the purpose of being considered as having merely
resigned from his position as an RTC judge; (2) the lifting of the penalty of
perpetual disqualification from appointment to any public office or to any
government-owned or controlled corporation; and (3) the nullification of
forfeiture of his retirement benefits.
Atty. Calanog does not seek a reconsideration of the decision in this case
considering that his motion to this effect was denied on October 1, 1991 and
the decision against him is now final. Rather he pleads for mercy, to be
exempted from further service of the penalty imposed on him. In support of
his petition he alleges that sufficient time has elapsed since his dismissal and
that since then he has been "sufficiently punished and disciplined;" that he
has undergone moral reformation and he promises never again to be
involved "wittingly or unwittingly with any person or activity which may
adversely affect his character and integrity;" and that except for this case he
had an otherwise exemplary record as an RTC judge.
Concerned with safeguarding the integrity of the judiciary, this Court has
come down hard on erring judges, and justifiably so. Atty. Calanog accepts
this as merited punishment for such judges. He asks, however, that in his
case justice be tempered with mercy. Indeed the Court does not rule out the
possibility of reformation which, when proven and considered together with
the subject's potentiality and promise, may earn for him the Court's
compassion. This is such a case.
As proof of his moral regeneration, Atty. Calanog alleges that he has become
active in religious and civic activities. He cites his membership in the Pag-
Ibig sa Dios Catholic Community and Bibliarasal; participation in the Life in
the Spirit Seminar and Marriage Encounter Class 148; his membership in the
Board of Directors of the Rotary Club of Mandaluyong and of the Guaranteed
Education, Inc., his being corporate secretary of Classic Plans, Inc., which
offers educational plans to students at all levels of education, and his being
legal counsel of United Mutual Benefit Association, Inc., Trustee of the
Foundation for Sharing La Sallian Education of the De La Salle University,
and auditor of the Philippine Federation of Pre-Need Plan Companies, Inc.
In support of his allegations, he has submitted testimonials by Atty. Amado
M. Santiago, Advising Elder of the Pag-Ibig sa Diyos Catholic Community;
Brother Rafael S. Donato of the De La Salle University; Jose B. Uy, president
of the Rotary Club of Mandaluyong; Mr. and Mrs. Roberto C. Albar of the
Lord's Vineyard; Ernesto C. Hernandez, president of Classic Plans, Inc., and
the Philippine Judges Association.
Atty. Calanog appears to be sincerely repentant. He describes the effect of
Page 370
the decision in this case as a "healing surgery" for him.
Atty. Calanog is a relatively young man of 54. If his contributions 1 during the
four years that he was an RTC judge were any measure of his potentiality for
LEGAL ETHICS
public service, he has productive years still ahead of him which should not
be foreclosed. The penalty of disqualification from appointment to any public
office should be lifted so that the opportunity for public service in other fields
may be opened to him. His return to the judiciary may not be feasible at this
time considering the recency of our decision, 2 but certainly in the vast field
of public service there should be room for the gainful employment of his
talents. Indeed in the past this Court showed compassion in imposing
penalties, taking into account the peculiar circumstances of the case. In one
instance 3 it modified a judgment of dismissal and ordered the reinstatement
of a judge.
As for the forfeiture of retirement benefits as ordered in our decision, Atty.
Calanog is not really entitled to any, having only rendered four years, seven
months, and twenty four days of service in the government as RTC judge
from November 18, 1986 to July 12, 1991. There is, therefore, no basis for
his request for payment of retirement benefits to him.
WHEREFORE, the petition for clemency and compassion of Atty. Manuel M.
Calanog, Jr. is GRANTED and the penalty of disqualification from public
office imposed on him is LIFTED.
SO ORDERED.
2.03 SEC. 3. Judges should take or initiate appropriate disciplinary
measures against lawyers or court personnel for unprofessional
conduct of which the judge may have become aware.
VICENTE SOTTO January 21, 1949
In re VICENTE SOTTO, for contempt of court.
Vicente Sotto in his own behalf.
FERIA, J.:
This is a proceeding for contempt of our court against the respondent Atty.
Vicente Sotto, who was required by their Court on December 7, 1948, to
show cause why he should not be punished for contempt to court for having
issued a written statement in connection with the decision of this Court in In
re Angel Parazo for contempt of court, which statement, as published in the
Manila Times and other daily newspapers of the locality, reads as follows:
As author of the Press Freedom Law (Republic Act No. 53.) interpreted by
the Supreme Court in the case of Angel Parazo, reporter of a local daily, who
now has to suffer 30 days imprisonment, for his refusal to divulge the source
of a news published in his paper, I regret to say that our High Tribunal has
not only erroneously interpreted said law, but that it is once more putting in
evidence the incompetency of narrow mindedness o the majority of its
members, In the wake of so many mindedness of the majority deliberately
committed during these last years, I believe that the only remedy to put an
end to so much evil, is to change the members of the Supreme Court. To his
effect, I announce that one of the first measures, which as its objects the
complete reorganization of the Supreme Court. As it is now constituted, a
constant peril to liberty and democracy. It need be said loudly, very loudly,
so that even the deaf may hear: the Supreme Court very of today is a far cry
from the impregnable bulwark of Justice of those memorable times of
Cayetano Arellano, Victorino Mapa, Manuel Araullo and other learned jurists
who were the honor and glory of the Philippine Judiciary.
Upon his request, the respondent was granted ten days more besides the
five originally given him to file his answer, and although his answer was filed
after the expiration of the period of time given him the said answer was
admitted. This Court could have rendered a judgment for contempt after
considering his answer, because he does not deny the authenticity of the
statement as it has been published. But, in order to give the respondent
ample opportunity to defend himself or justify the publication of such libelous
statement, the case was set for hearing or oral argument on January 4, the
hearing being later postponed to January 10, 1949. As the respondent did
not appear at the date set for hearing, the case was submitted for decision.
In his answer, the respondent does not deny having published the above
quoted threat, and intimidation as well as false and calumnious charges
against this Supreme Court. But he therein contends that under section 13,
Article VIII of the Constitution, which confers upon this Supreme Court the
power to promulgate rules concerning pleading, practice, and procedure,
"this Court has no power to impose correctional penalties upon the citizens,
and that the Supreme Court can only impose fines and imprisonment by
virtue of a law, and has to be promulgated by Congress with the approval of
the Chief Executive." And he also alleges in his answer that "in the exercise
of the freedom of speech guaranteed by the Constitution, the respondent
PINEDAPCGRNMAN
made his statement in the press with the utmost good faith and with no
intention of offending any of the majority of the honorable members of this
high Tribunal, who, in his opinion, erroneously decided the Parazo case; but
he has not attacked, or intended to attack the honesty or integrity of any one.'
The other arguments set forth by the respondent in his defenses observe no
consideration.
Rules 64 of the rules promulgated by this court does not punish as for
contempt of court an act which was not punishable as such under the law
and the inherent powers of the court to punish for contempt. The provisions
of section 1 and 3 of said Rule 64 are a mere reproduction of section 231 and
232 of the old Code of Civil Procedure, Act No. 190, amended, in connection
with the doctrine laid down by this Court on the inherent power if the superior
courts to punish for contempt is several cases, among them In re Kelly, 35
Phil., 944. That the power to punish for contempt is inherent in all courts of
superior statue, is a doctrine or principle uniformly accepted and applied by
the courts of last resort in the United States, which is applicable in this
jurisdiction since our Constitution and courts of justice are patterned as
expounded in American Jurisprudence is as follows:
The power of inflicting punishment upon persons guilty of contempt of court
may be regarded as an essential element of judicial authority, IT is possessed
as a part of the judicial authority granted to courts created by the Constitution
of the United States or by the Constitutions of the several states. It is a power
said to be inherent in all courts general jurisdiction, whether they are State or
Federal; such power exists in courts of general jurisdiction independently of
any special express grant of statute. In many instances the right of certain
courts of tribunals to punish for contempt is expressly bestowed by statue,
but such statutory authorization is unnecessary, so far as the courts of
general jurisdiction are concerned, and in general adds nothing statutory
authority may be necessary as concerns the inferior courts statutory authority
may be necessary to empower them to act. (Contempt, 12 Jur., pp. 418, 419.)
In conformity with the principle enunciated in the above quotation from
American Jurisprudence, this Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause,
respecting the same, has always been considered as misbehavior, tending
to obstruct the administration of justice, and subjects such persons to
contempt proceedings. Parties have a constitutional right to have their fairly
in court, by an impartial tribunal, uninfluenced by publications or public
clamor. Every citizen has a profound personal interest in the enforcement of
the fundamental right to have justice administered by the courts, under the
protection and forms of law, free from outside coercion or interference. Any
publication, pending a suit, reflecting upon the upon court, the parties, the
officers of the court, the counsel, etc., with reference to the suit, or tending to
influence the decision of the controversy, is contempt of court and is
punishable. The power to punish for contempt is inherent in all court. The
summary power to commit and punish for contempt tending to obstructed or
degrade the administration of justice, as inherent in courts as essential to the
execution of their powers and to the maintenance of their authority is a part
of the law of the land. (In reKelly, 35 Phil., 944, 945.)
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good
faith may be tolerated; because if well founded it may enlighten the court and
contribute to the correction of an error if committed; but if it is not well taken
and obviously erroneous, it should, in no way, influence the court in reversing
or modifying its decision. Had the respondent in the present case limited
himself to as statement that our decision is wrong or that our construction of
the intention of the law is not correct, because it is different from what he, as
proponent of the original bill which became a law had intended, his criticism
might in that case be tolerated, for it could not in any way influence the final
disposition of the Parazo case by the court; inasmuch as it is of judicial notice
that the bill presented by the respondent was amended by both Houses of
Congress, and the clause "unless the court finds that such revelation is
demanded by the interest of the State" was added or inserted; and that, as
the Act was passed by Congress and not by any particular member thereof,
the intention of Congress and not that of the respondent must be the one to
be determined by this Court in applying said act.
But in the above-quoted written statement which he caused to be published
Page 371
in the press, the respondent does not merely criticize or comment on the
decision of the Parazo case, which was then and still is pending
reconsideration by this Court upon petition of Angel Parazo. He not only
LEGAL ETHICS
intends to intimidate the members of this Court with the presentation of a bill
in the next Congress, of which he is one of the members, reorganizing the
Supreme Court and reducing the members, reorganizing the Supreme Court
and reducing the members of Justices from eleven to seven, so as to change
the members of this Court which decided the Parazo case, who according to
his statement, are incompetent and narrow minded, in order to influence the
final decision of said case by this Court, and thus embarrass or obstruct the
administration of justice. But the respondent also attacks the honesty and
integrity of this Court for the apparent purpose of bringing the Justices of this
Court into disrepute and degrading the administration of justice, for in his
above-quoted statement he says:
In the wake of so many blunders and injustices deliberately committed during
these last years, I believe that the only remedy to put an end to so much evil,
is to change the members of the Supreme Court. To this effect, I announce
that one of the first measures, which I will introduce in the coming
congressional sessions, will have as its object the complete reorganization
of the Supreme Court. As it is now the Supreme Court of today constitutes a
constant peril to liberty and democracy.
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been
deciding in favor of one party knowing that the law and justice is on the part
of the adverse party and not on the one in whose favor the decision was
rendered, in many cases decided during the last years, would tend
necessarily to undermine the confidence of the people in the honesty and
integrity of the members of this Court, and consequently to lower or degrade
the administration of justice by this Court. The Supreme Court of the
Philippines is, under the Constitution, the last bulwark to which the Filipino
people may repair to obtain relief for their grievances or protection of their
rights when these are trampled upon, and if the people lose their confidence
in the honesty and integrity of the members of this Court and believe that
they cannot expect justice therefrom, they might be driven to take the law into
their own hands, and disorder and perhaps chaos might be the result. As a
member of the bar and an officer of the courts Atty. Vicente Sotto, like any
other, is in duty bound to uphold the dignity and authority of this Court, to
which he owes fidelity according to the oath he has taken as such attorney, and
not to promote distrust in the administration of justice. Respect to the courts
guarantees the stability of other institutions, which without such guaranty
would be resting on a very shaky foundation.
Respondent's assertion in his answer that "he made his statement in the
press with the utmost good faith and without intention of offending any of the
majority of the honorable members of this high Tribunal," if true may mitigate
but not exempt him from liability for contempt of court; but it is belied by his
acts and statements during the pendency of this proceeding. The respondent
in his petition of December 11, alleges that Justice Gregorio Perfecto is the
principal promoter of this proceeding for contempt, conveying thereby the
idea that this Court acted in the case through the instigation of Mr. Justice
Perfecto.
It is true that the constitutional guaranty of freedom of speech and the press
must be protected to its fullest extent, but license or abuse of liberty of the
press and of the citizen should not be confused with liberty in its true sense.
As important as the maintenance of an unmuzzled press and the free
exercise of the right of the citizen, is the maintenance of the independence
of the judiciary. As Judge Holmes very appropriately said U. S vs Sullens
(1929), 36 Fed. (2nd), 230, 238, 239: "The administration of justice and the
freedom of the press, though separate and distinct, are equally sacred, and
neither should be violated by the other. The press and the courts have
correlative rights and duties and should cooperate to uphold the principles of
the Constitution and laws, from which the former receives its prerogatives
and the latter its jurisdiction. The right of legitimate publicity must be
scrupulously recognized and care taken at all times to avoid impinging upon
it. In a clear case where it is necessary, in order to dispose of judicial
business unhampered by publications which reasonably tend to impair the
impartiality of verdicts, or otherwise obstruct the administration of justice, this
court will not hesitate to exercise its undoubted power to punish for contempt.
This Court must be permitted to proceed with the disposition if its business
in an orderly manner free from outside interference obstructive of its
constitutional functions. This right will be insisted upon as vital to an impartial
court, and, as a last resort, as a individual exercises the right of self-defense,
it will act to preserve its existence as an unprejudiced tribunal. . . ."
PINEDAPCGRNMAN
It is also well settled that an attorney as an officer of the court is under special
obligation to be respectful in his conduct and communication to the courts,
he may be removed from office or stricken from the roll of attorneys as being
guilty of flagrant misconduct (17 L. R. A. [N.S.], 586, 594).
In view of all the foregoing, we find the respondent Atty. Vicente Sotto guilty
of contempt of this Court by virtue of the above-quoted publication, and he is
hereby sentenced to pay, within the period of fifteen days from the
promulgation of this judgment, a fine of P1,000, with subsidiary imprisonment
in case of insolvency.
The respondent is also hereby required to appear, within the same period,
and show cause to this Court why he should not be disbarred form practicing
as an attorney-at-law in any of the courts of this Republic, for said publication
and the following statements made by him during the pendency of the case
against Angel Parazo for contempt of Court.
In his statement to the press as published in the Manila Times in its issue of
December 9, 1948, the respondent said "The Supreme Court can send me
to jail, but it cannot close my mouth; " and in his other statement published
on December 10, 1948, in the same paper, he stated among others: "It is not
the imprisonment that is degrading, but the cause of the imprisonment." In
his Rizal day speech at the Abellana High School in Cebu, published on
January 3, 1949, in the Manila Daily Bulletin, the respondent said that "there
was more freedom of speech when American Justices sat in the Tribunal
than now when it is composed of our countrymen;" reiterated that "even if it
succeeds in placing him behind bars, the court can not close his mouth," and
added: "I would consider imprisonment a precious heritage to leave for those
who would follow me because the cause is noble and lofty." And the Manila
Chronicle of January 5 published the statement of the respondent in Cebu to
the effect that this Court "acted with malice" in citing him to appear before
this Court on January 4 when "the members of this Court know that I came
here on vacation." In all said statements the respondent misrepresents to the
public the cause of the charge against him for contempt of court. He says
that the cause is for criticizing the decision of this Court in said Parazo case
in defense of the freedom of the press, when in truth and in fact he is charged
with intending to interfere and influence the final disposition of said case
through intimidation and false accusations against this Supreme Court. So
ordered.
CANON 3 IMPARTIALITY
Impartiality is essential to the proper discharge of the judicial office. It
applies not only to the decision itself but also to the process by which
the decision is made.
ASSISTANT SPECIAL A.M. No. 08-19-SB-J
PROSECUTOR III ROHERMIA
J. JAMSANI-RODRIGUEZ, Present:
Complainant,
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
-versus - BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
JUSTICES GREGORY S. ONG, JOSE
R. HERNANDEZ, and RODOLFO A. Promulgated:
PONFERRADA, SANDIGANBAYAN. August 24, 2010
Respondents.
Page 372
x ------------------------------------------------------------------------------------------ x
LEGAL ETHICS
DECISION
BERSAMIN, J.:
Rohermia J. Jamsani-Rodriguez, an Assistant Special Prosecutor III in the
Office of the Special Prosecutor, Office of the Ombudsman initiated this
administrative matter by filing an affidavit-complaint dated October 23, 2008
to charge Sandiganbayan Justices Gregory S. Ong (Justice Ong); Jose R.
Hernandez (Justice Hernandez); and Rodolfo A. Ponferrada (Justice
Ponferrada), who composed the Fourth Division of the Sandiganbayan
(Fourth Division), with Justice Ong as Chairman, at the time material to the
complaint, with (1) grave misconduct, conduct unbecoming a Justice, and
conduct grossly prejudicial to the interest of the service; (2) falsification of
public documents; (3) improprieties in the hearing of cases; and (4) manifest
partiality and gross ignorance of the law.[1]
Before anything more, the Court clarifies that this decision is limited to the
determination of the administrative culpability of the respondent Justices, and
does not extend to the ascertainment of whatever might be the effects of any
irregularity they committed as members of the Fourth Division on the trial
proceedings. This clarification stresses that the proceedings, if procedurally
infirm, resulted from the acts of the Sandiganbayan as a collegial body, not
from their acts as individual Justices. The remedy against any procedural
infirmity is not administrative but judicial.
Details of the Charges
A.
Grave Misconduct, Conduct Grossly Prejudicial to the Interest
of the Service, and Falsification of Public Documents
Under Section 1, Rule IV of the Revised Internal Rules of the
Sandiganbayan, cases originating from Luzon, Visayas and Mindanao shall
be heard in the region of origin, except only when the greater convenience
of the parties and of the witnesses or other compelling considerations require
the contrary.[2] Thus, for the period from April 24 to April 28, 2006, the
Fourth Division scheduled sessions for the trial of several cases in the Hall
of Justice in Davao City.
Prior to the scheduled sessions, or on April 17, 2006, the complainant sent a
memorandum to Special Prosecutor Dennis M. Villa-Ignacio (Special
Prosecutor Villa-Ignacio) to invite his attention to the irregular arrangement
being adopted by the Fourth Division in conducting its provincial hearings.[3]
The memorandum reads as follows:
The Prosecution Bureau IV is due to leave for Davao City on April 23, 2006
for their scheduled hearing which will be held on April 24 to 28, 2006. In
conducting provincial hearing, the Fourth Division has adopted a different
procedure. They do not sit as collegial body, instead they divide the division
into two. In such a manner, the Chairman will hear some of the cases alone
and the other members will hear other cases, conducting hearing separately
and simultaneously.
We find this procedure to be advantageous to the Prosecution and also
commendable on the part of the Justices. While there are no objections
manifested by the defense lawyers, we are apprehensive of the
consequences, considering that this constitutes procedural lapses. In a case
decided by the Supreme Court, the conviction of the accused by the
Sandiganbayan (Second Division) was invalidated by the court when it was
shown that the members of the court who heard his case were constantly
changing. The Petitioner assailed the decision of the Sandiganbayan in its
capacity as a trial court.
In one of her hearings, the undersigned has already called the attention of
the Hon. Chairman and expresses (sic) her concern on the matter, and even
opined that they might be charged of falsification, by issuing orders that they
heard the cases as a collegial body, when in fact only the Chairman was
present during the trial and the other members are hearing cases in the other
chamber.
PINEDAPCGRNMAN
The Chairman, however, welcomes any question on the procedure they are
presently adopting.
We do not want to take chances. In cases where conviction are issued, the
accused would surely assail this procedure.
For your information and appropriate action.[4]
The complainant stated in her affidavit-complaint that Special Prosecutor
Villa-Ignacio responded to her memorandum by instructing her and the other
Prosecutors to object to the arrangement and to place their objections on
record.
During the hearing in Davao City, the Fourth Division did not sit as a collegial
body. Instead, Justice Ong heard cases by himself, while Justice Hernandez
and Justice Ponferrada heard the other cases together. Complying with
Special Prosecutor Villa-Ignacios instructions, the complainant objected to
the arrangement, but her objections were brushed aside.[5]
The complainant averred that her recording of her continuing objections
incurred for her the ire of the Justices; and that faced with such predicament
and out of her desire to avoid any procedural defects, she decided to forego
the presentation of NBI Investigator Atty. Roel Plando as her witness in
Criminal Cases Nos. 28103 to 28104 entitled People of the Philippines v.
Payakan Tilendo in the last hearing date of April 27, 2006. Instead, she
requested another Prosecutor to inform the Fourth Division that she was then
suffering from migraine, and to request the cancellation of the hearing.
The complainant was surprised to learn later on that the Fourth Division had
issued a warrant for the arrest of Atty. Plando for his non-appearance at the
hearing.
On May 8, 2006, Atty. Plando filed a motion to lift bench warrant,[6] in which
he explained that he had arrived in Davao City in the morning of April 27,
2006 in order to appear in court, and had called up the complainant, who had
told him that she would not be presenting him as a witness due to lack of time
for the necessary conference; and that she had also told him about her
having migraine on that morning.
On May 15, 2006, the Fourth Division directed the complainant to comment
on Atty. Plandos motion. In her comment dated May 24, 2006,[7] the
complainant averred that she had decided not to proceed with the
presentation of Mr. Plando on April 27, 2006 due to her apprehension that
the Honorable Court might again conduct the hearing in division;and that
incurring the ire of the Justices by her continuing objections to the hearing
procedure had been a stressful situation that had induced her migraine.
Although lifting the warrant of arrest issued against Atty. Plando through the
order dated May 26, 2006,[8] the Fourth Division directed the complainant in
the same order to answer questions from the court itself on June 6, 2006
relative to statements made in [her] Comment dated May 24, 2006.
For the June 6, 2006 hearing, the complainant was accompanied by Acting
Director Elvira Chua of Bureau IX, Director Somido, and Stenographer
Yolanda Pineda. According to the complainant, Justice Hernandez berated
her for bringing her own stenographer. The Fourth Division then directed
Stenographer Pineda to show cause why she should not be cited in contempt
for taking notes without prior leave of court.[9]
Complying with the directive to show cause, Pineda submitted an
explanation/compliance,[10] explaining that Director Chua had asked her to
attend the hearing on June 6, 2006, and to take stenographic notes of the
proceedings.
Director Chua confirmed Pinedas explanation in her own manifestation and
explanation,[11] stating that the complainant had requested that a
Page 373
stenographer from the Office of the Special Prosecutor be tasked to take
notes at the hearing; and that on 27 April 2006 when Prosecutor Rohermia
Rodriguez was supposed to present her NBI Agent witness in Davao City,
LEGAL ETHICS
she left Davao at 4:30 in the morning of the said date so that it would be
physically impossible for her to be in court at 8:30 in the morning.
The Fourth Division issued an order on June 20, 2006,[12] directing the
complainant to comment on Director Chuas manifestation and explanation,
and to explain why she should not be cited in contempt of court for failing to
present the NBI agent as a witness on April 26 and 27, 2006. She complied by
submitting her compliance on July 10, 2006.[13] The incident has remained
unresolved by the Fourth Division.
The complainant contended that by not acting as a collegial body, respondent
Justices not only contravened Presidential Decree (PD) No. 1606, but also
committed acts of falsification by signing their orders, thereby making it
appear that they had all been present during the hearing when in truth and in
fact they were not.
B.
Improprieties During Hearings Amounting to Gross Abuse of Judicial
Authority and Grave Misconduct
Allegedly, Justice Ong and Justice Hernandez made the following
intemperate and discriminatory utterances during hearings.
Firstly, the complainant alleged that Justice Ong uttered towards the
complainant during the hearing held in Cebu City in September 2006 the
following:
We are playing Gods here, we will do what we want to do, your contempt is
already out, we fined you eighteen thousand pesos, even if you will appeal,
by that time I will be there, Justice of the Supreme Court.
Secondly, Justice Ong often asked lawyers from which law schools they had
graduated, and frequently inquired whether the law school in which Justice
Hernandez had studied and from which he had graduated was better than
his (Justice Ongs) own alma mater. The complainant opined that the query
was manifestly intended to emphasize that the San Beda College of Law, the
alma mater of Justice Ong, and the UP College of Law, that of Justice
Hernandez, were the best law schools.
Thirdly, on another occasion in that hearing in Cebu City in September 2006,
Justice Hernandez discourteously shouted at Prosecutor Hazelina Tujan-
Militante, who was then observing trial from the gallery: You are better than
Director Somido? Are you better than Director Chua? Are you here to
supervise Somido? Your office is wasting funds for one prosecutor who is
doing nothing.
Finally, Justice Hernandez berated Atty. Pangalangan, the father of former
UP Law Dean Raul Pangalangan, thus:
Just because your son is always nominated by the JBC to Malacaang, you
are acting like that! Do not forget that the brain of the child follows that of their
(sic) mother.
C.
Justices Ong, Hernandez, and Ponferradas Gross Ignorance of the Law
Amounting to Manifest Partiality for Dismissing Criminal Case No. 25801,
Entitled People v. Puno, upon a Demurrer to Evidence
In imputing manifest partiality to respondent Justices, the complainant cited
the Fourth Divisions resolution granting accused Ronaldo V. Punos demurrer
to evidence in Criminal Case No. 25801, and dismissing the case upon a
finding that the assailed contracts had never been perfected,[14] which finding
was contrary to the evidence of the Prosecution.
The complainant insisted that the conclusion that the assailed contracts had
never been perfected was based on a National Police Commission
(NAPOLCOM) resolution, which the Fourth Division appreciated in the guise
of taking judicial notice. She contended that taking judicial notice of the
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NAPOLCOM resolution upon a demurrer to evidence was highly erroneous,
and constituted gross ignorance of the law.
Comments of Respondents
Maintaining their innocence of the charges, Justice Ong and Justice
Hernandez filed their joint comment.[15] Although admitting having tried cases
in the provinces by apportioning or assigning the cases scheduled for hearing
among themselves, they emphasized that they had nonetheless ensured at
the outset that: first, there was a quorum, i.e., all the three members of the
Division were present in the same courtroom or venue, thereby preserving
the collegial nature of the Division as required by law, specifically Section 3
of PD 1606; second, the members of the Division were within hearing or
communicating distance of one another, such that they could readily confer
with each other in order to address or resolve any issue that arose in the
cases separately being heard by them; and, third, the parties did not object
to the arrangement, and thus could not later on assail the proceedings to
which they had given their full assent, based on the equitable principle of
estoppel.
Justice Ong and Justice Hernandez averred that their arrangement had been
adopted in the best interest of the service, because they had thereby
expedited the disposition of their cases, resulting in considerable savings in
time, effort, and financial resources of the litigants, lawyers, witnesses, and
the court itself; but that they had meanwhile discontinued the arrangement
after it had piled up so much work at a much faster pace than the Fourth
Division could cope with. They argued that even assuming, arguendo, that
the arrangement had been irregular, it could only be the subject of a petition
for certiorari on the ground of grave abuse of discretion amounting to lack or
excess of jurisdiction, not an administrative complaint, due to its amounting
only to a mere procedural lapse.
Justice Ong and Justice Hernandez refuted the complainants allegation on
their use of intemperate and discriminatory language by attaching the
transcript of stenographic notes to prove that there was no record of the
intemperate and discriminatory utterances on the date specified by the
complainant.[16] Justice Ong dared the complainant to produce a copy of the
order that contained his following alleged utterance:
We are playing Gods here, we will do what we want to do, your contempt is
already out, we fined you eighteen thousand pesos, even if you will appeal,
by that time I will be there, Justice of the Supreme Court.
Justice Ong and Justice Hernandez admitted having asked the lawyers
appearing before them about the law schools they had graduated from, but
explained that they had done so casually and conversationally, with the
scenario playing out between two Justices teasing each other from time to
time. They claimed that their queries were usually made in jest, and were
intended to break the monotony and seriousness of the courtroom setting.
Justice Hernandez denied having shouted at Prosecutor Tujan-Militante, but
conceded the possibility of having observed that her presence in
Cebu City was a waste of government funds, because she was not one of the
Prosecutors assigned to prosecute any of the scheduled cases.
On the charge of gross ignorance of the law amounting to manifest partiality
(relating to the grant of the demurrer to evidence in Criminal Case No.
25801), Justice Ong and Justice Hernandez pointed out that the Supreme
Court had already sustained their action by dismissing the petition for review
of the Special Prosecutor through the resolutionissued in G.R. No. 171116
on June 5, 2006.[17]
Justice Ponferradas separate comment[18] echoed his co-respondents
assertions in their joint comment.
Report of the Court Administrator
Page 374
In our resolution dated January 20, 2009,[19] we noted the comments of
respondent Justices, and referred the matter to the Court Administrator for
evaluation, report and recommendation.
LEGAL ETHICS
In his report dated October 6, 2009,[20] then Court Administrator Jose P.
Perez, now a Member of the Court, recommended the dismissal of the
charges for lack of merit, because:
Viewed in the foregoing light, the charge of grave misconduct cannot stand.
It is understood that grave misconduct is such which affects a public officers
performance of his duties as such officer and not only that which affects his
character as a private individual and requires reliable evidence showing that
the judicial act complained of were corrupt or inspired by an intention to
violate the law. Our perusal of the record shows that respondents adoption
of the assailed practice was not motivated by corruption and/or an illegal
purpose. Indeed, the best interest of the service was clearly aimed at. To
justify the taking of drastic disciplinary action, the law requires that the error
or mistake if there be such must be gross or patent, malicious, deliberate or
in bad faith.
For the very same reasons, respondents cannot likewise be held liable for
falsification of public documents arising out of the alleged falsity of the
collegiality reflected in the minutes and/or stenographic notes taken during
the proceedings in which the assailed practice was adopted. For liability to
be assessed for the offense of falsification of official documents thru
untruthful narration of the facts, the rule is settled that the following elements
should concur, viz: (a) the offender makes in a document an untruthful
statement in a narration of facts; (b) the offender has a legal obligation to
disclose the truth of the facts narrated; (c) the facts narrated by the offender
are absolutely false; and (d) the perversion of truth in the narration of facts
was made with wrongful intent to injure a third person. The absence of the
enumerated elements clearly discounts respondents liability for said offense.
Inasmuch as mere allegation is not evidence, it is a fundamental evidentiary
rule that the party who alleges a fact must prove the same. For all of
complainants imputations against respondents, the record is bereft of any
showing that the latter are guilty of oppressive conduct and/or grave
misconduct, particularly with reference to the comment the former was
required to file regarding the motion to lift bench warrant filed by the witness
Roel Plando in Criminal Case Nos. 28103-104. Given the variance between
the allegations in said motion and the reasons complainant initially advanced
for the non-presentation of said witness at the April 27, 2006 hearing in said
cases, respondents were clearly acting within their prerogative when they
decided to clarify the matter from the former and her colleague, Prosecutor
Almira Abella-Orfanel. Although subsequently required to explain why she
should not be cited for contempt in the June 20, 2006 order issued in the
case, the record is, more importantly, bereft of any showing that complainant
was, in fact, declared in contempt of court or actually fined in the sum of
P18,000.00 as purportedly threatened by respondents.
Squarely refuted in the affidavits executed by her colleagues, namely,
Prosecutors Cornelio Somido, Almira Abella-Orfanel, Elvira Chua and
Rabenranath Uy, complainants bare allegations clearly deserve scant
consideration insofar as they impute such further irregularities against
respondents as threatening or humiliating her during the hearing/s conducted
in the aforesaid cases and/or causing disrespect to Special Prosecutor
Dennis Villa-Ignacio or otherwise allowing interference in the latters handling
of a case. Because administrative proceedings like the one at bench are
governed by the substantial evidence rule, the same may be said of the
disparaging comments respondents are supposed to have made regarding
the barong and/or intelligence of practitioners appearing before them which
are, on the whole, devoid of any bases in the record outside of complainants
averments and the affidavit belatedly executed by Assistant Special
Prosecutor Ma. Hazelina Tujan-Militante. By substantial evidence is meant
such relevant evidence as a reasonable mind will accept as adequate to
support a conclusion and does not mean just any evidence in the record of
the case for, otherwise, no finding of fact would be wanting in basis. The test
is whether a reasonable mind, after considering all the relevant evidence in
the record of a case, would accept the findings of fact as adequate.
As regards the charge of improprieties, it appears that the complainant has
not discharged the onus of proof by substantial evidence. The intemperate
and immoderate statements attributed to respondents are, to repeat, without
sufficient substantiation. What comes near to but is not equivalent to
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impropriety is the jocular banter admitted by respondents about their
respective alma maters, the intention being to break the usual monotony and
seriousness of the courtroom setting or to put practitioners appearing before
them at ease. It cannot be said that public confidence in the Judiciary was
eroded by the conduct. No discourtesy was shown towards either the parties
or to each other.
As for the charge of manifest partiality insofar as the grant of the demurrer in
Criminal Case No. 25801 is concerned, suffice it to say that members of the
bench like respondents are presumed to have acted regularly and in the
manner that preserves the ideal of the cold neutrality of an impartial judge.
Because notatu dignum is the presumption of regularity in the performance
of a judges function, the rule is settled that bias, prejudice and undue interest
cannot be presumed lightly. Mere suspicion that the judge is partial to a party
is, consequently, not enough; there should be adequate evidence to prove
the charge. As a matter of policy, the acts of a judge in his judicial capacity
are not subject to disciplinary action- he cannot be subject to civil, criminal or
administrative liability for any of his official acts, no matter how erroneous, as
long as he acts in good faith. These principles find resonance in the case at
bench where, in addition to the total dearth of evidence to prove the charge
of manifest partiality, it appears that respondents grant of the demurrer in
Criminal Case No. 25801 was affirmed in the following wise in the June 5,
2006 resolution issued by the Second Division of the Supreme Court in G.R.
No. 171116, to wit:
G.R. No. 171116 (PEOPLE OF THE PHILIPPINES VS. REYNALDO PUNO).
xx xx On the basis thereof, the Court resolves to DENY the petition for review
on certiorari dated 2 March 2006 assailing the resolutions of the
Sandiganbayan for petitioners failure to submit a valid affidavit of service of
copies of the petition on respondent and the Sandiganbayan in accordance
with Sections 3 and 5, Rule 45 and Section 5(d), Rule 56 in relation to Section
13, Rule 13 of the Rules, there being no jurat and signature of the affiant in
the attached affidavit of service of the petition.
In any event, the petition is an improper remedy and failed to sufficiently show
that the Sandiganbayan had committed any reversible error in the questioned
judgment to warrant the exercise by this Court of its discretionary appellate
jurisdiction in this case x x x. (emphasis supplied)
Ruling of the Court
The Court partly adopts the findings and recommendations of the Court
Administrator.
A.
Respondents Violation of the provisions of PD 1606
and Revised Internal Rules of the Sandiganbayan
Respondent Justices contend that they preserved the collegiality of the
Fourth Division despite their having separately conducted hearings,
considering that the three of them were in the same venue and were acting
within hearing and communicating distance of one another.
The contention is not well-taken.
Section 3 of PD 1606,[21] the law establishing the Sandiganbayan, provides:
Section 3. Division of the Courts; Quorum. - The Sandiganbayan shall sit in
three divisions of three Justices each. The three divisions may sit at the same
time.
Three Justices shall constitute a quorum for sessions in division; Provided,
that when the required quorum for the particular division cannot be had due
to the legal disqualification or temporary disability of a Justice or of a vacancy
occurring therein, the Presiding Justice may designate an Associate Justice
of the Court, to be determined by strict rotation on the basis of the reverse
order of precedence, to sit as a special member of said division with all the
rights and prerogatives of a regular member of said division in the trial and
determination of a case or cases assigned thereto, unless the operation of
Page 375
the court will be prejudiced thereby, in which case the President shall, upon
the recommendation of the Presiding Justice, designate any Justice or
Justices of the Court of Appeals to sit temporarily therein.
LEGAL ETHICS
An implementing rule is Section 3, Rule II of the Revised Internal Rules of
the Sandiganbayan, viz:
Section 3. Constitution of the Divisions. - The Sandiganbayan shall sit in five
(5) Divisions of three (3) Justices each, including the Presiding Justice. The
five (5) Divisions may sit separately at the same time. Each of the five (5)
most senior Associate Justices including the Presiding Justice, shall be the
Chairman of a Division; each of the five (5) Associate Justices next in rank
shall be the Senior Member of a Division; and each of the last five (5)
Associate Justices shall be the Junior Member of a Division.
Under the foregoing provisions, the Sandiganbayan is a collegial court.
Collegial is defined as relating to a collegium or group of colleagues. In turn,
a collegium is an executive body with each member having approximately
equal power and authority.[22] In a collegial court, therefore, the members act
on the basis of consensus or majority rule. Thus, PD 1606, as amended, and
the Revised Internal Rules of the Sandiganbayan, supra, call for the actual
presence of the three Justices composing the Division to constitute a quorum
to conduct business and to hold trial proceedings. Necessarily, the exclusion
or absence of any member of a Division from the conduct of its business and
from the trial proceedings negates the existence of a quorum and precludes
collegiality.
As if underscoring the need for all three members to be actually present and
in attendance during sessions, Section 3 of PD 1606, as amended, further
requires that:-
xxx when the required quorum for the particular division cannot be had due
to the legal disqualification or temporary disability of a Justice or of a vacancy
occurring therein, the Presiding Justice may designate an Associate Justice
of the Court, to be determined by strict rotation on the basis of the reverse
order of precedence, to sit as a special member of said division with all the
rights and prerogatives of a regular member of said division in the trial and
determination of a case or cases assigned thereto, unless the operation of
the court will be prejudiced thereby, in which case the President shall, upon
the recommendation of the Presiding Justice, designate any Justice or
Justices of the Court of Appeals to sit temporarily therein.
Respondent Justices cannot lightly regard the legal requirement for all of
them to sit together as members of the Fourth Division in the
trial and determination of a case or cases assigned thereto. The information
and evidence upon which the Fourth Division would base any decisions or
other judicial actions in the cases tried before it must be madedirectly
available to each and every one of its members during the proceedings.
This necessitates the equal and full participation of each member in
the trial and adjudication of their cases. It is simply not enough, therefore,
that the three members of the Fourth Division were within hearing and
communicating distance of one another at the hearings in question, as they
explained in hindsight, because even in those circumstances not all of them
sat together in session.
Indeed, the ability of the Fourth Division to function as a collegial body
became impossible when not all of the members sat together during the trial
proceedings. The internal rules of the Sandiganbayan spotlight an instance
of such impossibility. Section 2, Rule VII of the Revised Internal Rules of the
Sandiganbayan expressly requires thatrulings on oral motions made or
objections raised in the course of the trial proceedings or hearings are be
made by the Chairman of the Division. Obviously, the rule cannot be
complied with because Justice Ong, the Chairman, did not sit in the hearing
of the cases heard by the other respondents. Neither could the other
respondents properly and promptly contribute to the rulings of Justice Ong in
the hearings before him.
Moreover, the respondents non-observance of collegiality contravened the
very purpose of trying criminal cases cognizable by Sandiganbayan before a
Division of all three Justices. Although there are criminal cases involving
public officials and employees triable before single-judge courts, PD 1606,
as amended, has always required a Division of three Justices (not one or
two) to try the criminal cases cognizable by the Sandiganbayan, in view of
PINEDAPCGRNMAN
the accused in such cases holding higher rank or office than those charged
in the former cases. The three Justices of a Division, rather than a single
judge, are naturally expected to exert keener judiciousness and to apply
broader circumspection in trying and deciding such cases. The tighter
standard is due in part to the fact that the review of convictions is elevated to
the Supreme Court generally via the discretionary mode of petition for review
on certiorari under Rule 45, Rules of Court, which eliminates issues of fact,
instead of via ordinary appeal set for the former kind of cases (whereby the
convictions still undergo intermediate review before ultimately reaching the
Supreme Court, if at all).
In GMCR, Inc. v. Bell Telecommunication Philippines, Inc.,[23] the Court
delved on the nature of a collegial body, and how the act of a single member,
though he may be its head, done without the participation of the others,
cannot be considered the act of the collegial body itself. There, the question
presented was whether Commissioner Simeon Kintanar, as chairman of the
National Telecommunications Commission (NTC), could alone act in behalf
of and bind the NTC, given that the NTC had two other commissioners as
members. The Court ruled:
First. We hereby declare that the NTC is a collegial body requiring a majority
vote out of the three members of the commission in order to validly decide a
case or any incident therein. Corollarily, the vote alone of the chairman of the
commission, as in this case, the vote of Commissioner Kintanar, absent the
required concurring vote coming from the rest of the membership of the
commission to at least arrive at a majority decision, is not sufficient to legally
render an NTC order, resolution or decision.
Simply put, Commissioner Kintanar is not the National Telecommunications
Commission. He alone does not speak for and in behalf of the NTC. The NTC
acts through a three-man body,and the three members of the commission
each has one vote to cast in every deliberation concerning a case or any
incident therein that is subject to the jurisdiction of the NTC. When we
consider the historical milieu in which the NTC evolved into the quasi-judicial
agency it is now under Executive Order No. 146 which organized the NTC as
a three-man commission and expose the illegality of all memorandum
circulars negating the collegial nature of the NTC under Executive Order No.
146, we are left with only one logical conclusion: the NTC is a collegial body
and was a collegial body even during the time when it was acting as a one-
man regime.
The foregoing observations made in GMCR, Inc. apply to the situation of
respondent Justices as members of the Fourth Division. It is of no
consequence, then, that no malice or corrupt motive impelled respondent
Justices into adopting the flawed procedure. As responsible judicial officers,
they ought to have been well aware of the indispensability of collegiality to
the valid conduct of their trial proceedings.
We find that the procedure adopted by respondent Justices for their
provincial hearings was in blatant disregard of PD 1606, as amended, the
Rules of Court, and theRevised Internal Rules of the Sandiganbayan. Even
worse, their adoption of the procedure arbitrarily denied the benefit of a
hearing before a duly constituted Division of the Sandiganbayan to all the
affected litigants, including the State, thereby rendering the integrity and
efficacy of their proceedings open to serious challenge on the ground that a
hearing before a duly constituted Division of the Sandiganbayan was of the
very essence of the constitutionally guaranteed right to due process of law.
Judges are not common individuals whose gross errors men forgive and time
forgets.[24] They are expected to have more than just a modicum
acquaintance with the statutes and procedural rules.[25] For this reason alone,
respondent Justices adoption of the irregular procedure cannot be dismissed
as a mere deficiency in prudence or as a lapse in judgment on their part, but
should be treated as simple misconduct, which is to be distinguished from
either gross misconduct or gross ignorance of the law. The respondent
Justices were not liable for gross misconduct defined as the transgression of
some established or definite rule of action, more particularly,
unlawful behavior or gross negligence,[26] or the corrupt or persistent violation
Page 376
of the law or disregard of well-known legal rules[27] considering that the
explanations they have offered herein, which the complainant did not refute,
revealed that they strove to maintain their
LEGAL ETHICS
collegiality by holding their separate hearings within sight and hearing
distance of one another. Neither were they liable for gross ignorance of the
law, which must be based on reliable evidence to show that the act
complained of was ill-motivated, corrupt, or inspired by an intention to violate
the law, or in persistent disregard of well-known legal rules;[28] on the contrary,
none of these circumstances was attendant herein, for the respondent
Justices have convincingly shown that they had not been ill- motivated or
inspired by an intention to violate any law or legal rule in adopting the
erroneous procedure, but had been seeking, instead, to thereby expedite their
disposition of cases in the provinces.
Nonetheless, it remains that the respondent Justices did not ensure that their
proceedings accorded with the provisions of the law and procedure. Their
insistence that they adopted the procedure in order to expedite the hearing
of provincial cases is not a sufficient reason to entirely exonerate them, even
if no malice or corruption motivated their adoption of the procedure. They
could have seen that their procedure was flawed, and that the flaw would
prevent, not promote, the expeditious disposition of the cases by precluding
their valid adjudication due to the nullifying taint of the irregularity. They knew
as well that the need to expedite their cases, albeit recommended, was not
the chief objective of judicial trials. As the Court has reminded judges in State
Prosecutors v. Muro,[29] viz:
Although a speedy determination of an action or proceeding implies a speedy
trial, it should be borne in mind that speed is not the chief objective of a trial.
Careful and deliberate consideration for the administration of justice is more
important than a race to end the trial. A genuine respect for the rights of all
parties, thoughtful consideration before ruling on important questions, and a
zealous regard for the just administration of law are some of the qualities of
a good trial judge, which are more important than a reputation for hasty
disposal of cases.
xxx xxx xxx
What is required on the part of judges is objectivity. An independent judiciary
does not mean that judges can resolve specific disputes entirely as they
please. There are both implicit and explicit limits on the way judges perform
their role. Implicit limits include accepted legal values and the explicit limits
are substantive and procedural rules of law.
The judge, even when he is free, is still not wholly free. He is not to innovate
at pleasure. He is not a knight-errant, roaming at will in pursuit of his own
ideal of beauty or goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and
unregulated benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinate to the
primordial necessity of order in the social life.
Relevantly, we do not consider the respondent Justices signing of the orders
issued during the flawed proceedings as a form of falsification or dishonesty,
in that they thereby made it appear that they had all been physically present
when the truth was different. Such act merely ensued from the flawed
proceedings and cannot be treated as a separate offense.
B.
Unbecoming Conduct of Justice Ong and Justice Hernandez
The Court approves the Court Administrators finding and recommendation
that no evidence supported the complainants charge that Justice Ong and
Justice Hernandez had uttered the improper and intemperate statements
attributed to them.
A review of the transcripts of the stenographic notes for the hearings in which
the offensive statements were supposedly uttered by them has failed to
substantiate the complainants charge. In the absence of a clear showing to
the contrary, the Court must accept such transcripts as the faithful and true
record of the proceedings, because they bear the certification of correctness
executed by the stenographers who had prepared them.
Even so, Justice Ong and Justice Hernandez admitted randomly asking the
counsels appearing before them from which law schools they had graduated,
and their engaging during the hearings in casual conversation about their
respective law schools. They thereby publicized their professional
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qualifications and manifested a lack of the requisite humility demanded of
public magistrates. Their doing so reflected a vice of self-conceit. We view
their acts as bespeaking their lack of judicial temperament and decorum,
which no judge worthy of the judicial robes should avoid especially during
their performance of judicial functions. They should not exchange banter or
engage in playful teasing of each other during trial proceedings (no matter
how good-natured or even if meant to ease tension, as they want us to
believe). Judicial decorum demands that they behave with dignity and act
with courtesy towards all who appear before their court.
Indeed, Section 6, Canon 6 of the New Code of Judicial Conduct for the
Philippine Judiciary clearly enjoins that:
Section 6. Judges shall maintain order and decorum in all proceedings before
the court and be patient, dignified and courteous in relation to litigants,
witnesses, lawyers and others with whom the judge deals in an official
capacity. Judges shall require similar conduct of legal representatives, court
staff and others subject to their influence, direction or control.
We point out that publicizing professional qualifications or boasting of having
studied in and graduated from certain law schools, no matter how prestigious,
might have even revealed, on the part of Justice Ong and Justice Hernandez,
their bias for or against some lawyers. Their conduct was impermissible,
consequently, for Section 3, Canon 4 of the New Code of Judicial Conduct
for the Philippine Judiciary, demands that judges avoid situations that may
reasonably give rise to the suspicion or appearance of favoritism or partiality
in their personal relations with individual members of the legal profession who
practice regularly in their courts.
Judges should be dignified in demeanor, and refined in speech. In performing
their judicial duties, they should not manifest bias or prejudice by word or
conduct towards any person or group on irrelevant grounds.[30] It is very
essential that they should live up to the high standards their noble position
on the Bench demands. Their language must be guarded and measured, lest
the best of intentions be misconstrued. In this regard, Section 3, Canon 5 of
the New Code of Judicial Conduct for the Philippine Judiciary, mandates
judges to carry out judicial duties with appropriate consideration for
all persons, such as the parties, witnesses, lawyers, court staff, and judicial
colleagues, without differentiation on any irrelevant ground, immaterial to the
proper performance of such duties.
In view of the foregoing, Justice Ong and Justice Hernandez were guilty of
unbecoming conduct, which is defined as improper performance.
Unbecoming conduct applies to a broader range of transgressions of rules
not only of social behavior but of ethical practice or logical procedure or
prescribed method.[31]
C.
Respondent Justices Not Guilty of Manifest Partiality
The charge of manifest partiality for issuing the resolution granting the
demurrer to evidence of the accused in Criminal Case No. 25801 is
dismissed. As already mentioned, this Court upheld the assailed
resolution on June 5, 2006 in G. R. No. 171116 by declaring the petition of
the Office of the Special Prosecutor assailing such dismissal to have failed
to sufficiently show that the Sandiganbayan had committed any reversible
error in the questioned judgment to warrant the exercise by this Court of its
discretionary appellate jurisdiction.
At any rate, it is worth stressing that a judge will be held administratively liable
for rendering an unjust judgment only if he acts with bad faith, malice,
revenge, or some other similar motive.[32]
D.
Penalties
Section 9, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8- 10
SC, classifies the offense of simple misconduct as a less serious charge,
viz:
Page 377
Section 9. Less Serious Charges. Less serious charges include:
LEGAL ETHICS
xxx xxx xxx
7. Simple Misconduct.
Section 11, Rule 140 of the Rules of Court alternatively prescribes the
sanctions on judges and justices guilty of a less serious charge, as follows:
Section 11. Sanctions. xxx
xxx xxx xxx
B. If the respondent is guilty of a less serious charge, any of the following
sanctions shall be imposed:
1. Suspension from office without salary and other benefits for not less than
one (1) nor more than three (3) months; or
2. A fine of more than P10,000.00 but not exceeding P 20,000.00.
xxx xxx xxx
On the other hand, unbecoming conduct is a light charge under Section 10,
Rule 140 of the Rules of Court, thus:
Section 10. Light Charges. Light charges include:
1. Vulgar and unbecoming conduct;
xxx xxx xxx
and is punishable under Section 11(C), Rule 140 of the Rules of Court by a
fine of not less than P1,000.00, but not exceeding P10,000.00; and/or
censure, reprimand, or admonition with warning.
Analogizing from Section 55 of the Uniform Rules on Administrative Cases
in the Civil Service, in an instance where the respondent is guilty of two or
more charges, the penalty is that corresponding to the most serious charge,
and the rest of the charges are considered as aggravating circumstances.
That respondent Justices responsibilities as members of a Division were
different compels us to differentiate their individual liabilities.
1.
Justice Ong
Without doubt, the Chairman, as head of the Division under the internal rules
of the Sandiganbayan, is primus inter pares.[33] He possesses and wields
powers of supervision, direction, and control over the conduct of the
proceedings coming before the Division.
In exercising his powers as Chairman of the Fourth Division, Justice Ong
exuded an unexpectedly dismissive attitude towards the valid objections of
the complainant, and steered his Division into the path of procedural
irregularity. He thereby wittingly failed to guarantee that his Divisions
proceedings came within the bounds of substantive and procedural rules. We
cannot, of course, presume that he was unaware of or unfamiliar with the
pertinent law and correct procedure, considering his already long tenure and
experience as of then as a Justice of the Sandiganbayan, having risen from
Associate Justice to Chairman of his Division.
We hold that the condign and commensurate penalty to impose on Justice
Ong is a fine of P15,000.00, after taking into consideration the mitigating
circumstance that this administrative offense was his first and the
aggravating circumstance of the light charge of unbecoming conduct. The
penalty goes with a stern warning that a repetition of the same or similar of
such offenses shall be dealt with more severely.
2.
Justice Hernandez and Justice Ponferrada
As mere members of the Fourth Division, Justice Hernandez and Justice
Ponferrada had no direction and control of how the proceedings of the
Division were conducted. Direction and control was vested in Justice Ong,
as the Chairman. Justice Hernandez and Justice Ponferrada simply relied
without malice on the soundness and wisdom of Justice Ongs discretion as
their Chairman, which reliance without malice lulled them into traveling the
PINEDAPCGRNMAN
path of reluctance to halt Justice Ong from his irregular leadership. We hold
that their liabilities ought to be much diminished by their lack of malice.
In addition, the fact that this is the first case for Justice Hernandez and Justice
Ponferrada is a mitigating circumstance in their favor.
Although Justice Hernandez is liable for the less serious charge of simple
misconduct, aggravated by a light charge but appreciating his reliance
without malice and the mitigating circumstance of this offense being his first,
the Court admonishes him with a warning that a repetition of the same or
similar offenses shall be dealt with more severely.
The liability of Justice Ponferrada for the less serious charge of simple
misconduct, without any aggravating circumstance, is obliterated by his
reliance without malice and the mitigating circumstance of its being a first
offense. However, he is warned to be more cautious about the proper
procedure to be taken in proceedings before his court.
Final Note
It becomes timely to reiterate that an honorable, competent and independent
Judiciary exists to administer justice in order to promote the stability of
government and the well-being of the people.[34] We warn, therefore, that no
conduct, act, or omission on the part of anyone involved in the administration
of justice that violates the norm of public accountability and diminishes the
faith of the people in the Judiciary shall be countenanced.[35] Public
confidence in the judicial system and in the moral authority and integrity of
the Judiciary is of utmost importance in a modern democratic society; hence,
it is essential for all judges, individually and collectively, to respect and honor
the judicial office as a public trust and to strive to enhance and maintain
confidence in the judicial system.[36]
WHEREFORE, the Court RESOLVES as follows:
1. ASSOCIATE JUSTICE GREGORY S. ONG is ordered to pay a fine of
P15,000.00, with a stern warning that a repetition of the same or similar
offenses shall be dealt with more severely;
2. ASSOCIATE JUSTICE JOSE R. HERNANDEZ is admonished with a
warning that a repetition of the same or similar offenses shall be dealt with
more severely; and
3. ASSOCIATE JUSTICE RODOLFO A. PONFERRADA is warned to be
more cautious about the proper procedure to be taken in proceedings before
his court.
SO ORDERED.
3.01 SEC. 1. Judges shall perform their judicial duties without favor,
bias or prejudice.
G.R. No. 12 August 8, 1901
In the matter of the proceedings against MARCELINO AGUAS for
contempt of the COURT OF FIRST INSTANCE OF PAMPANGA.
Claudio Gabriel, for appellant.
Office of the Solicitor-General Araneta, representing the respondents.
SMITH, J.:
It appears from the record in this matter that on the 29th of August, 1900,
during the progress of a trial then being held before the Court of First Instance
at Bacolor, in the Province of Pampanga, the court had occasion to caution
Angel Alberto, a witness in the case, not to look at the attorney for the
Page 378
defendant but to fix his attention on the judge who was at the time examining
him. It seems that the witness did not give heed to this warning, and the judge
thereupon arose from his seat and approaching the witness, seized him by
LEGAL ETHICS
the shoulders, and using the expression, "Lingon ang mucha" ("Look at me"),
either shook him, as insisted by the attorney for the defendant, or only turned
him about, as claimed by the judge and others. Whether the witness was
shaken or only turned about, at all events "seizing him," brought the
defendant's attorney to his feet, who, protesting against the action of the
judge as coercive of the witness, demanded that a record be made of the
occurrence and that the further hearing of the case be postponed. Two days
afterward the clerk entered in his record as recital of the incident substantially
as above, and also a statement that on other and prior occasions the
attorney, Marcelino Aguas, had been wanting in respect to the court by
making use of "improper phrases," and by interrupting opposing counsel in
their examination of witnesses. The court on this record adjudged the
attorney to be in contempt of court and suspended him from the practice of
his profession for a period of twenty days. The attorney appealed, but his
appeal having been disallowed by the lower court, he asked to be heard in
justification, which was granted.
On the hearing in justification evidence was taken touching the contempt
alleged to have been committed by Señor Aguas, from which the court found
that during the trial of the case of Roberto Toledo vs. Valeriano Balatbat, the
judge, having had occasion to seize the witness, Alberto Angel, by the
shoulders to turn him around, Señor Aguas, attorney for defendant, had risen
from his seat in a "menacing attitude," and "with a voice and body
trembling"protested that the action of the judge was coercive of the witness;
and further that his attention being called to the fact that he was wanting in
respect to the court and that he should sit down, he waived his right to go on
with the trial and moved a postponement of the hearing. On this finding the
court again adjudged the attorney guilty of contempt of court, and suspended
him from the practice of his profession for a period of twenty days. From this
judgment Señor Aguas appealed to this court.
In our opinion the action of the judge in seizing the witness, Alberto Angel,
by the shoulder and turning him about was unwarranted and an interference
with that freedom from unlawful personal violence to which every witness is
entitled while giving testimony in a court of justice. Against such conduct the
appellant had the right to protest and to demand were respectfully made and
with due regard for the dignity of the court. The only question, therefore in
this case is, Was the appellant respectful and regardful of the court's dignity
in presenting his objection and asking that it be recorded in the proceedings?
The witnesses say and the judge finds that "his attitude was menacing"
(bastante amenazadora) in the moment of making his protest, but beyond
that there is nothing in the record which even tends to show that he was
disrespectful to the court or unmindful of its dignity. In our opinion both
testimony and finding state a mere conclusion which, in the absence of the
facts from which it was deduced, is wholly valueless to support a judgment
of contempt. The statement that the attorney's attitude was "menacing"
tended no more to competently establish the alleged offense of contempt
than if the witnesses had testified and the court had found that his conduct
was "contemptuous or lacking in respect." The specific act from which it was
inferred that his attitude was menacing should have been testified to by the
witnesses and found by the court, and failing that, the record does not show
concrete facts sufficient to justify the conclusion that he was disrespectful to
the court or offensive to its dignity.
The judgment appealed from must therefore be reversed, and it is so ordered,
with costs de oficio.
3.02 SEC. 2. Judges shall ensure that his or her conduct, both in and
out of court, maintains and enhances the confidence of the public, the
legal profession and litigants in the impartiality of the judge and of the
judiciary.
[A.M. No. RTJ-96-1363. October 12, 1998]
TOMAS CABULISAN, complainant, vs. JUDGE ADRIAN N.
PAGALILAUAN, respondent.
PINEDAPCGRNMAN
DECISION
BELLOSILLO, J.:
A certain Tomas Cabulisan filed an administrative complaint dated 4 April
1995 against respondent Judge Adrian N. Pagalilauan, RTC-Br. 12, Sanchez
Mira, Cagayan, for grave misconduct committed as follows: (1) peeping into
the bathroom where Marilyn C. Dumayas, a public health nurse of the
Sanchez Mira School of Arts and Trade, and daughter of the owner of the
house where he was boarding, was then taking a bath; (2) having a mistress
in the neighboring town of Pamplona where he would pass the night now and
then; and (3) allowing local practitioners to write decisions for him.
In the First Indorsement of then Deputy Court Administrator Juanito A,
Bernad, the complaint was referred to the National Bureau of Investigation
(NBI) which procured statements from Marilyn C. Dumayas, alleged victim of
the peeping incident, and Gemma C. Cabading, Court Interpreter, RTC-Br.
12, Sanchez Mira, Cagayan.
In her sworn statement executed on 1 August 1995 before NBI Agent Norman
A. Toloza at the Administration Building of the SMSAT, Barangay Santor,
Sanchez Mira, Marilyn C. Dumayas, married to Orlando T. Dumayas a
process server in the sala of respondent, narrated that one morning in
February 1995 (specific day was not mentioned) while she was taking a bath
in the bathroom she noticed someone enter the adjacent comfort room. After
she finished and was about to take her towel, she saw the face of respondent
Judge Adrian N. Pagalilauan over the concrete dividing wall with his eyes
looking at her naked body so she hurriedly wrapped herself with her towel
and went out of the bathroom immediately.[1]
One morning a week after, a similar incident happened again. While she was
taking a bath in a squatting position in the same bathroom, and sensing that
respondent would peep again, she instinctively glanced at the mirror in the
bathroom and saw respondent from his chest up staring at her. Again, she
immediately wrapped herself up with her robe and screamed as she fled from
the bathroom.[2] A few days after the second incident, respondent voluntarily
left her place and transferred to a neighbors house.[3]
Gemma C. Cabading, in her sworn statement dated 11 August 1995, stated
that she had no knowledge that respondent was maintaining a querida.[4] But
she recalled that a certain Divina Calaycay frequented the sala of respondent
but explained that Divina was the widow of Judge Infante S. Calaycay, a
friend of respondent and his predecessor in office.[5] Cabading denied having
any knowledge of practicing lawyers preparing decisions for respondent.[6]
In his undated letter-comment, respondent denied the charges but admitted
that while presiding judge of the Regional Trial Court of Sanchez Mira,
Cagayan, he boarded in the house of Isabelo P. Castillo, father of Marilyn C.
Dumayas and his former sheriff. Respondent explained that since he was not
accustomed to sitting on the toilet bowl in the comfort room, he would squat
on the bowl with his feet and not his buttocks resting on it. Respondent
claimed that under that circumstance, he had to balance himself by placing
one hand on the divider while mounting the bowl and dismounting from it.
One morning in February 1995, while using the toilet bowl, he had to hold the
top of the divider with his left hand to balance himself. His left hand almost
dislodged the clothes of Marilyn which were draped on the divider. He held
on to them to prevent them from falling on the floor. He concluded that Marilyn
who was at the adjacent bathroom must have interpreted the movement of
her hanging clothes as a deliberate and malicious act on his part thus giving
rise to her suspicion that he was actually peeping at her.
With regard to the charge that he had a mistress, respondent surmised that
the woman alluded to was Divina Calaycay, widow of Infante S. Calaycay,
his predecessor in the Regional Trial Court. He insisted that he and Divina
Page 379
Calaycay were merely friends, as he and her late husband were former
classmates. There were even instances after the death of Judge Calaycay
when she would visit him to ask help in connection with her husbands death
LEGAL ETHICS
benefits from the Employees Compensation Commission considering that he
was formerly Executive Labor Arbiter of the National Labor Relations
Commission before becoming a judge.
On the accusation that respondent allowed local practitioners to write
decisions for him, respondent maintained that it was baseless and merely
fabricated.
In the resolution of 2 October 1996 the Court noted the complaint as well as
respondents comment and referred the case to Associate Justice Hilarion L.
Aquino of the Court of Appeals for investigation, report and recommendation.
Justice Aquino however filed a motion to be relieved as investigator on the
ground that respondent was a friend and townmate and in fact consulted him
once regarding this case.
On 15 January 1997 the Court granted the motion of Justice Aquino and
designated Justice Portia Alio-Hormachuelos of the Court of Appeals to
replace him. In her Report and Recommendation dated 18 March 1997
Justice Alio-Hormachuelos recommended the dismissal of the complaint on
the ground that the identity of the complainant could not be verified.Summons
issued to complainant Tomas Cabulisan was returned with the notation RTS-
unknown. According to the Officers Return of Service, there was no Tomas
Cabulisan known to be residing in the address on record. Furthermore, in the
report of NBI Agent Norman Taloza it was mentioned that complainant
Tomas Cabulisan was a non-existing person.
In the resolution of 17 September 1997 the case was referred back to Justice
Portia Alio-Hormachuelos for a more thorough investigation on the ground
that the alleged non-existence of the complainant was insufficient basis for
dismissal since witnesses mentioned in the complaint could still be
subpoenaed and required to testify. As a result, Marilyn C. Dumayas
appeared in the formal investigation. She testified that respondent was a
boarder in her familys house where she was also staying in 1995.[7] Their
house had only one bathroom which adjoined the comfort room.[8] The two
rooms were separated by a concrete divider about 2-1/2 meters in height
which did not go all the way to the ceiling, such that there was an open space
between the ceiling and the top of the divider.[9] This time however she
claimed that she did not exactly see respondent looking at her; that she only
saw his forehead and that she simply suspected that he peeped at her. She
also declared that she did not remember if the peeping incident really
happened twice.[10]
There appears to be a conflict between Dumayas sworn statement executed
1 August 1995 and her testimony before the investigating justice on 7
November 1997. As a rule, affidavits are generally considered to be inferior
to the testimony given in open court.[11] However, in the instant administrative
case, the sworn statement of Marilyn C. Dumayas contains a detailed
account of the two peeping incidents which is so persuasive as to convince
us that it was what actually transpired, and not the version of respondent
which is practically a mere denial.Marilyn previously stated-
Q Will you please state what Judge Pagalilauan did something wrong to you?
A Sometime in the month of February this year while I was taking a bath in
the morning inside our bathroom I noticed someone entered the adjacent
comfort room and after I finished taking a bath and I was about to take my
towel I saw the face of Judge Pagalilauan over the dividing wall with his eyes
looking towards my naked body and I hurriedly wrapped myself with my towel
and went out immediately and banged the door.
xxxxxxxxx
Q Did Judge Pagalilauan do the same wrong again to you?
A Yes, sir.
PINEDAPCGRNMAN
Q When was that second incident happened?
A A week after, sir.
Q How did it happen?
A One morning a week after when I took a bath in the bathroom in a squatting
position and being aware that the Judge might do it again I happened to
glance at the mirror inside the bathroom and I saw at the mirror a part of his
body from chest to head looking at me so I again immediately wrapped myself
with my bathrobe and hurriedly left the place screaming: Bastos ka nga
laklakayan, maysa ka nga Judge ngem awan ti sursurom, pumanaw ka ditoy
balay, diak kayat nga agian ka ditoy, addada judge nga kas kenka nga
naggigian ditoy balay ngem saan da nga bastos nga kas kenka (You foolish
old man, you are a Judge but you have no manners, leave the house and I
dont want you to stay longer here, there were other Judges who stayed here
but they were not as foolish as you) as I went upstairs.[12]
Marilyn apparently has forgotten what she had once narrated specially in this
case where the testimony before the investigating justice was given more
than two (2) years after the incident. The fact that she has recounted the facts
differently now may show a failure of memory, or could it be that she was
swayed by the fact that her husband was a process server of respondents
while her father was respondents former sheriff? Her sworn statement was
replete with details which makes it more convincing and should be given
more weight than her testimony simply denying that she saw respondent
staring at her. Merely because she testified that what she had declared was
false and that what she now says is true is not sufficient ground for concluding
that her previous statements were false.
Respondent, in his comment, clearly admits his presence in the adjoining
toilet; his defense which consists mainly of the denial that he stared at Marilyn
cannot prevail over the latter's positive assertion that she saw respondent
looking at her naked body, specially in this case where she identified
respondent in two separate peeping incidents as the culprit. We cannot
accept his explanation that he had to hold the top of the divider with his hand
to balance himself because he was not accustomed to sitting on the toilet
bowl. It is a feeble excuse considering his stature and educational
background. It was improbable for him to move the clothes of Marilyn and
cause them to almost fall off the partition unless he was nervously committing
something mischievous. His act of peeping at the married daughter of his
landlord while she was taking a bath reflect respondent's obvious
ungratefulness and moral depravity.Moreover, he callously abused the
confidence of his landlord who had welcomed him into his home. In this
administrative case, we are principally concerned with the moral fiber of
respondent. We have repeatedly held that while every office in the
government service is a public trust, no position exacts a greater demand on
moral righteousness and uprightness of an individual than a seat in the
judiciary.[13]
People who run the judiciary, particularly justices and judges, must not only
be proficient in both the substantive and procedural aspects of the law, but
more importantly, they must possess the highest degree of integrity and
probity and an unquestionable moral uprightness both in their public and
private lives.[14]
By committing the prurient acts in question, respondent violated the trust
reposed in him and utterly failed to live up to the noble ideals and rigid
standards of morality required in the judicial profession.[15]
We absolve respondent however of the charge that he was keeping a
mistress. From the evidence, the woman alluded to was Divina Calaycay who
happened to be the widow of Judge Infante S. Calaycay, respondent's
predecessor in office. Gemma Cabading, a court interpreter, testified that
Page 380
Judge Calaycay was a close friend of respondent who frequented his office
seeking his help in obtaining the death benefits of her husband from the
Employees Compensation Commission.[16] No evidence was produced to
LEGAL ETHICS
prove that there was more than friendship between the two and that Divina
was his mistress.
As to the charge that respondent allowed practicing lawyers to write
decisions for him, court interpreter Gemma Cabading disclaimed any
knowledge thereof. She said that the lawyers came to the court office only
when their cases were scheduled in court.[17] There was no proof that
respondent allowed practitioners to prepare decisions for him.
WHEREFORE, for his disgraceful acts of voyeurism committed against
Marilyn C. Dumayas, respondent Judge Adrian N. Pagalilauan, RTC-Br. 12,
Sanchez Mira, Cagayan, is finedP10,000.00 with warning that a repetition of
the same or similar acts will be dealt with more severely.
3.03 SEC. 3. Judges shall, so far as is reasonable, so conduct
themselves as to minimize the occasions on which it will be necessary
for them to be disqualified from hearing or deciding cases.
G.R. Nos. L-36927-28 April 15, 1974
CRESENCIO PAREDES, and VENANCIO UYAN, petitioners,
vs.
JUDGE FRANCISCO MEN ABAD of the Court of First Instance of Ifugao,
GUALBERTO LUMAUIG, and JOHN LANGBAYAN, respondents.
G.R. No. L-37715 April 15, 1974
BELINO C. SUNGA, petitioner,
vs.
The HONORABLE LORENZO R. MOSQUEDA, and FELINO
CUNANAN, respondents.
G.R. No. L-38331 April 15, 1974
VICENTE O. VALLEY, petitioner,
vs.
The HONORABLE FELIX T. CARO, District Judge, Court of First
Instance of Eastern Samar, Branch VIII (Oras, Eastern Samar), and
VICTOR A. AMASA, respondents.
Alejandro C. Silapan for petitioners Paredes and Uyan.
Baizas, Alberto and Associates and Amelito R. Mutuc for petitioner
Sunga.
Edwin L. Segovia for respondents Lumauig and Langbayan.
Felix M. Hernandez for respondent Cunanan.
Judge Francisco Men Abad for and in his own behalf.
Vicente O. Valley in his own behalf.
FERNANDEZ, J.:p
The respondent-Judges committed a clear error when they dismissed the
election protests filed by the herein petitioners against the private
respondents who had been proclaimed elected and had assumed their
respective positions 1 for a four year term 2 as a result of the November 8,
1971 elections.
PINEDAPCGRNMAN
The principal ground of the dismissal orders 3 now challenged before Us on
certiorari, is that under Section 9, Art. XVII4 of the Transitory Provisions of the
New Constitution, the election protests filed by the petitioners have become
moot and academic, for the reason that the private respondents are now
holding their respective positions under a new term, indefinite as it is, the
original four-year term to which they have been elected having expired upon
the ratification of the New Constitution on January 17, 1973. This ruling of the
respondent-Judges is clearly untenable. When Section 9, Art. XVII of the
Transitory Provisions of the New Constitution, upon the ratification of said
Constitution on January 17, 1973, made indefinite the four-year term of the
elective provincial, city and municipal officials, said four-year term had not
yet expired — it was to expire on December 31, 1975. More than this, the law
under which they were elected to a four-year term provides for a hold- over.
5 We hold that, as far as these elective officials are concerned, said
constitutional provision refers only to those who had been duly elected; they
are the ones who should continue in office until otherwise provided by law or
decreed by the incumbent President.
There is a difference between the "term" of office and the "right" to hold an
office. A "term" of office is the period during which an elected officer or
appointee is entitled to hold office, perform its functions and enjoy its
privileges and emoluments. A "right" to hold a public office is the just and
legal claim to hold and enjoy the powers and responsibilities of the office. 6 In
other words, the "term" refers to the period, duration of length of time during
which the occupant of an office is entitled to stay therein, whether such period
be definite or indefinite. Hence, although Section 9, Art. XVII of the New
Constitution made the term of the petitioners indefinite, 7 it did not foreclose
any challenge by the herein petitioners, in an election protest, of the "right"
of the private respondents to continue holding their respective offices. What
has been directly affected by said constitutional provision is the "term", not
the "right" to the office, although the "right" of an incumbent to an office which
he is legally holding is co-extensive with the "term" thereof.
It must be emphasized that the "right" of the private respondents to continue
in office indefinitely arose not only by virtue of Section 9 of Art. XVII of the
New Constitution but principally from their having been proclaimed elected to
their respective positions as a result of the November 8, 1971 elections.
Therefore, if in fact and in law, they were not duly elected to their respective
positions and consequently, have no right to hold the same, perform their
functions, enjoy their privileges and emoluments, then certainly, they should
not be allowed to enjoy the indefinite term of office given to them by said
constitutional provision.
It is erroneous to conclude that under Section 9, Art. XVII of the New
Constitution, the term of office of the private respondents expired, and that
they are now holding their respective offices under a new term. We are of the
opinion that they hold their respective offices still under the term to which
they have been elected, although the same is now indefinite. In the case of
Ingles vs. Mutuc 8, We held that although the term of office of an official or
employee holding a position that is primarily confidential is indefinite, the term
is deemed to have expired only when the appointing power expresses its
decision to put an end to the services of the incumbent; when this event takes
place, his term is then considered to have expired. Consequently, it is only
when by law or by decree of the incumbent President the services of an
incumbent elective official are put to an end that his present indefinite term
of office will be considered to have expired.
The Constitutional Convention could not have intended, as in fact it did not
intend, to shield or protect those who had been unduly elected. To hold that
the right of the herein private respondents to the respective offices which they
are now holding, may no longer be subject to question, would be tantamount
to giving a stamp of approval to what could have been an election victory
characterized by fraud, threats, intimidation, vote buying, or other forms of
irregularities prohibited by the Election Code to preserve inviolate the sanctity
of the ballot. Such a situation would certainly be against the goals of the New
Society, which are "to reform the social, economic and political institutions in
Page 381
our country;" "to clean the government of its corrupt and sterile elements;"
and to implement a general program for a new and better Philippines." 9
LEGAL ETHICS
Section 7 of Art. XVII of the New Constitution provides that "all existing laws
not inconsistent with this Constitution shall remain operative until amended,
modified or repealed by the National Assembly." And there has been no
amendment, modification or repeal of Section 220 of the Election Code of
1971 which gave the herein petitioners the right to file an election contest
against those proclaimed elected.
According to Section 8, Art. XVII of the NEW Constitution, all courts existing
at the time of the ratification of this Constitution shall continue and exercise
their jurisdiction until otherwise provided by law in accordance with this
Constitution, and all cases pending in said courts shall be heard, tried and
determined under the laws then in force." Consequently, the Courts of First
Instance presided over by the respondent-Judges should continue and
exercise their jurisdiction to hear, try and decide the election protests filed by
the herein petitioners.
But it has been argued, with respect to the protests for Governor in G.R. No.
L-36927 and G.R. No. L-38331, and for Vice-Governor in G.R. No. L-36928,
that the Courts of First Instance where they are pending lost jurisdiction over
the same in view of the fact that under the New Constitution, the Commission
on Elections is made the sole judge of election contests of "members of the
National Assembly and elective provincial and city officials." 10
We do not share this view. We hold, as already stated earlier, that with
respect to the protests filed by the herein petitioners, the Court of First
Instance presided over by the respondent Judges shall continue to hear, try
and decide the same by virtue of Section 8, Art. XVII of the New Constitution.
It must be noted that the New Constitution was ratified on January 17, 1973,
Section 2, par. 2 of Art. XII-C thereof (which made the Commission on
Elections the sole judge of all election contests of elective provincial officials)
could not have referred and do not refer to election protests filed as a result
of the November 8, 1971 elections. Under the 1971 Election Code, election
protests should be filed within fifteen days after the proclamation of the
winning candidates. 11 Under ordinary circumstances election protests arising
from said elections should have been filed in or before January of 1972.
12When the Constitutional Convention finally approved the New Constitution
in its plenary session on November 29, 1972, the present election protests
and similar others were already pending in the different Courts of First
Instance of the Philippines. And it may be assumed that trial had been under
way in many if not all of them. The Constitutional Convention must be referring,
among others, to these election protests when it decreed that all courts
existing at the time of the ratification of the Constitution shall continue and
exercise jurisdiction, and that all cases pending in said courts shall be heard,
tried, and determined under the laws then in force.
An additional issue is involved in G.R. No. L-36927-28 pending before the
respondent Judge Francisco Men Abad of the Court of First Instance of
Ifugao, and that is the matter of his disqualification to continue hearing the
election protests for the position of Governor and Vice-Governor filed by the
petitioners Cresencio Paredes and Venancio Uyan against the private
respondents Gualberto Lumauig and John Langbayan. The reasons
adduced by the petitioners are "said petitioners opposed the confirmation of
the nomination of said respondent to his present position before the
Commission on Appointments; that petitioners filed criminal charges against
said respondent before the COMELEC for violation of the Election Code of
1971 which are still pending until this date; and that this respondent was
recommended to his present position by his co-respondent Gualberto
Lumauig, the protestee in Election Case No. 5, and the latter's brother,
Congressman Romulo Lumauig." 13
In the memorandum filed by said respondent Judge before this Honorable
Court, he stated the following:
Briefly, the charges against your respondent boil down to one thing — alleged
electioneering during the local elections. This — we can only say — that,
during the time the respondent was allegedly engaged in partisan political
activities, the Department of Justice reminded him and similar officials
PINEDAPCGRNMAN
through directives to remain in their places of assignment to attend to all
questions that may likely arise relating to election matters coming up within
this respective jurisdictions.
The evidence of petitioners consisted mainly of affidavits of alleged
witnesses. These evidences were submitted to the COMELEC as well as to
the Commission on Appointments. During the hearings in both forums, these
evidences passed the close scrutiny of the investigators. If it is necessary to
mention it here, it is observed that Hungduan Ifugao, to which municipality
your respondent was then accredited as Municipal Judge was never included
as one of the protested municipalities. It becomes evident that the motive of
the protestants is personal, devoid of merits. Hence, the Commission on
Appointments decided our case favorably and exonerated the undersigned
of the charges.
It is amusing to observe that petitioners insist to anchor their rationale on bias
and prejudice, still itchy to resuscitate a long cremated issue. Assuming that
petitioners stiffly opposed the confirmation of your respondent in the
Commission on Appointments, the Honorable Body search rigidly into the
truth of the allegations contained in petitioners' opposition and found instead
falsity in them as a consequence, the Commission proceeded to confirm the
appointment of the herein respondent, which was "clean bill of health" to him.
Whatever be the merit of the charge of the petitioners that the respondent
Judge Abad campaigned in support of the candidacy of the private
respondents and their line-up of candidates; that they filed criminal charges
against and opposed the confirmation of the appointment of the said
respondent Judge; that said respondent Judge was recommended to his
present position by private respondent Gualberto Lumauig and the latter's
brother, Congressman Romulo Lumauig, the fact is that a strained personal
relationship must have arisen between the petitioners, on the one hand, and
the respondent Judge Abad, on the other. And not only the petitioners but
even their political supporters as well may not be in a position to have full
faith, trust and confidence on the impartiality of said respondent Judge.
In the case of Pimentel vs. Salanga, 14 where the petitioner sought the
disqualification of the respondent Judge from sitting in four cases wherein
he, petitioner, was counsel, on the ground that he was the complainant in an
administrative case which he himself filed against the respondent Judge with
the Supreme Court, We denied the petition for disqualification but suggested
that he might voluntarily inhibit himself, holding that:
Efforts to attain fair, just and impartial trial and decision, have a natural and
alluring appeal. But, we are not licensed to indulge in unjustified assumption,
or make a speculative approach to this ideal. It ill behooves this Court to tar
and feather a judge as biased or prejudiced, simply because counsel for a
party litigant happens to complain against him. As applied here, respondent
judge has not as yet crossed the line that divides partiality and impartiality.
He has not thus far stepped to one side of the fulcrum. No act or conduct or
his would show arbitrariness or prejudice, Therefore, we are not to assume
what respondent judge, not otherwise legally disqualified, will do in a case
before him. We have had occasion to rule in a criminal case that a charge
made before trial that a party "will not be given fair, impartial and just hearing"
is "premature". Prejudice is not to be presumed. Especially if weighed against
a judge's legal obligation under his oath to administer justice "without respect
to person and do equal right to the poor and the rich." To disqualify or not to
disqualify himself then, as far as respondent judge is concerned, is a matter
of conscience.
All the foregoing notwithstanding, this should be a good occasion as any to
draw attention of all judges to appropriate guidelines in a situation where their
capacity to try and decide a case fairly and judiciously comes to the fore by
way of challenge from any one of the parties. A judge may not be legally
prohibited from sitting in a litigation. But when suggestion is made of record
that he might be induced to act in favor of one party or with bias or prejudice
Page 382
against a litigant arising out of circumstance reasonably capable of inciting
such a state of mind, he should conduct a careful self-examination. He should
LEGAL ETHICS
exercise his discretion in a way that the people's faith in the courts of Justice
is not impaired. A salutary norm is that he reflect on the probability that a
losing party might nurture at the back of his mind the thought that the judge
had unmeritoriously tilted the scales of justice against him. That passion on
the part of the judge may be generated because of serious charges of
misconduct against him by a suitor or his counsel, is not altogether remote.
He is a man, subject to the frailties of other men. He should, therefore,
exercise great care and caution before making up his mind to act or "withdraw
from a suit where that party or counsel is involved. He could in good grace
inhibit himself where that case could be heard by another judge and where
no appreciable prejudice would be occasioned to others involved therein. On
the result of his decisions to sit or not to sit may depend to a great extent the
all-important confidence in the impartiality of the judiciary. If after reflection
he should resolve to voluntarily, desist from sitting in a case where his
motives or fairness might be seriously impugned, his action is to be
interpreted as giving meaning and substance to the second paragraph of
Section 1. Rule 137. He serves the cause of the law who forestalls
miscarriage of justice.
But in the case at bar, we would like to go one step further and hold that for
the strict observance of the rule of due process, the respondent Judge Abad
is hereby declared disqualified to continue hearing the election protests filed
by Cresencio Paredes and Venancio Uyan against the private respondents
Gualberto Lumauig and John Langbayan. For, as we have already observed
above, there must already be a strained personal relationship between the
petitioners, on the one hand, and the respondent Judge Abad on the other;
and not only the petitioners but even their political supporters as well may not
be in a position to have full faith, trust and confidence on the impartiality of
said respondent Judge. And "next in importance to the duty of rendering a
righteous judgment is that of doing it in such a manner as will beget no
suspicion of the fairness and integrity of a judge." 15 We should be very
zealous in safeguarding this constitutional guarantee of due process. We
have done so with greater zeal lately in the matter of the disqualification of
Judges in the case of Luque vs. Kayanan, 16 and Mateo, et al. vs. Villaluz 17.
In the case of Luque vs. Kayanan, the petitioner was one of the defendants
and cross-defendants in a civil case pending before the respondent Judge.
We held:
1. This case presents an unedifying picture of animosity, hostility and bad
blood between petitioner a lawyer and party defendant and cross-defendant,
and respondent, a judge. From the events that occurred in the court below,
we gather the impression that the courtroom had been converted into an
arena of recriminations between the two. Opprobrious language has been
employed by both.
It is the duty of both counsel and judge to maintain, not to destroy the high
esteem and regard for courts. Any act on the part of one or the other that
tends to undermine the people's respect for, and confidence in, the
administration of justice is to be avoided. And this, even if both may have to
restrain pride from taking the better part of their system. To be expected then
of petitioner and respondent is a sense of shared responsibility, a crucial
factor in the administration of justice. And yet lack thereof is painfully
apparent in the record of this case. It would appear that both petitioner and
respondent were seized by a kind of ennui which immobilizes the sense of
proportion of men trapped in situations where emotion runs loose.
xxx xxx xxx
All suitors, we must say, are entitled to nothing short of the cold neutrality of
an independent, wholly-free, disinterested and impartial tribunal. It has been
said that "next importance to the duty of rendering a righteous judgment is
that of doing it in such a manner as will beget no suspicion of the fairness
and integrity of the judge." Let it not be said that the administration of justice
in this country suffers from too many human imperfections. To our mind,
respondent Judge should inhibit himself since it has become apparent that
PINEDAPCGRNMAN
his further continuance in Case 4871 would not be in the best interest of
justice, which he is bound to serve. 18
And in the case of Mateo, et al. vs. Villaluz, petitioners were among those
being tried by the respondent Judge for robbery in band with homicide. An
extrajudicial statement by Reyes, one of the accused, who implicated the
petitioners was subscribed before the respondent Judge. Reyes, when called
upon to testify as a witness for the prosecution, impugned his written
declaration stating that it was executed as a result of a threat by a
government agent. We ruled:
... Petitioners are thus entitled to the relief sought. Respondent Judge could
not be totally immune to what apparently was asserted before him in such
extrajudicial statement. Moreover, it is unlikely that he was not in the slightest
bit offended by the affiant's turnabout with his later declaration that there was
intimidation by a government agent exerted on him. That was hardly flattering
to respondent Judge. It is not only that. His sense of fairness under the
circumstances could easily be blunted. The absence of the requisite due
process element is thus noticeable. There is this circumstance even more
telling. It was he who attested to its due execution on October 1, 1971
wherein Rolando Reyes admitted his participation in the crime and in addition
implicated petitioners. At that time, their motion for dismissal of the charges
against them was pending its resolution was deferred by respondent Judge
until after the prosecution had presented and rested its evidence against
affiant, who was himself indicted and tried for the same offense, but in a
separate proceeding. It cannot be doubted then that respondent Judge in
effect ruled that such extra-judicial statement was executed freely. With its
repudiation on the ground that it was not so at all, coercion having come into
the picture there is apparent the situation of a judge having to pass on a
question that by implication had already been answered by him. Such a fact
became rather obvious. For respondent Judge was called upon to review a
matter on which he had previously given his opinion. It is this inroad in ones
objectivity that is sought to be avoided by the law on disqualification. The
misgivings then as to the requirement of due process for "the cold neutrality
of an impartial judge" not being met are more than justified. Hence the
conclusion reached by us. 19
WHEREFORE, the orders of the respondent Judges dismissing the election
protests respectively filed by the herein petitioners against the private
respondents are hereby set aside, and the different Courts of First Instance
where said protests are pending are hereby ordered to immediately continue
with the trial thereof. The respondent Judge Francisco Men Abad, having
been declared disqualified, is ordered to desist from continuing with the
hearing of the election protests filed by petitioners Cresencio Paredes and
Venancio Uyan against the private respondents Gualberto Lumauig and John
Langbayan. Costs against the private respondents.
SO ORDERED.
3.04 SEC. 4. Judges shall not knowingly, while a proceeding is before
or could come before them, make any comment that might reasonably
be expected to affect the outcome of such proceeding or impair the
manifest fairness of the process. Nor shall judges make any comment
in public or otherwise that might affect the fair trial of any person or
issue.
[G.R. No. 88105. December 18, 1989.]
NICOLAS FECUNDO, Petitioner, v. HON. RAMON BERJAMEN,
Presiding Judge RTC, Branch 20 and JULIUS SALCEDO, Respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; MOTIONS; SERVICE OF COPY
Page 383
CONTAINING NOTICE OF TIME AND PLACE OF HEARING;
MANDATORY. — Section 4, Rule 15 of the Rules of Court requires that
notice of a motion be served by the movant on all parties concerned at least
LEGAL ETHICS
three (3) days before the hearing thereof. Section 5 of the same Rule
provides that the notice shall be directed to the parties concerned, and shall
state the time and place for the hearing of the motion. A motion which does
not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of
Court is considered a worthless piece of paper which the clerk has no right
to receive and the court has no authority to act upon. Service of copy of a
motion containing notice of the time and place of hearing of said motion is a
mandatory requirement.
2. ID.; DISQUALIFICATION OF JUDICIAL OFFICERS; JUDGES;
TARDINESS OR DELAY IN THE DISPOSITION OF ELECTION CASES
DOES NOT CONNOTE PARTIALITY. — Tardiness or delay in the
disposition of election cases in other courts does not connote partiality of the
presiding judge in election cases speedily disposed of. Sec. 258 of the
Omnibus Election Code (BP Blg. 881) provides for the preferential disposition
of election contests within six (6) months after filing. If judges in the four (4)
provinces of Panay island hearing election cases are indeed taking their time
in deciding such election cases, as alluded to by counsel, then they are not
certainly complying with the election law.
3. ID.; ID.; ID.; MUST BE ALL TIMES MAINTAIN THE APPEARANCE OF
FAIRNESS AND IMPARTIALITY. — The language employed by the
respondent judge in his 10 February 1988 order and even in his comment on
the petition at bar, manifests at the very least an exasperation bordering on
indignation at petitioner and his tactics, which may unnecessarily cloud his
impartiality in deciding the election case at hand. A spotless dispensation of
justice requires not only that the decision rendered be intrinsically fair but that
the judge rendering it must, at all times, maintain the appearance of fairness
and impartiality. His language, both written and spoken, must be guarded
and measured, lest the best of intentions be misconstrued.
DECISION
PADILLA, J.:
Before the Court is a petition for certiorari with prayer for a restraining order
seeking to inhibit respondent judge, Hon. Ramon Berjamen, of the Regional
Trial Court, Branch 20, Mambusao, Capiz from continuing with the trial of an
election protest (Election Case No. M-944) filed by herein private respondent
Julius Salcedo against herein petitioner. The grounds invoked for the
inhibition of respondent judge are his alleged partiality and bias against
petitioner. Said acts of alleged partiality and bias may be summarized as
follows:1
a) Use of unbecoming language in the order dated 10 February 1988 stating
therein . . . "that the implementation of the order of this Court is being
vehemently opposed by the municipal mayor (herein petitioner) and his
cohorts. Ours is a government of laws and not a government of rascals. To
give in to this kind of behavior of the respondent and his cohorts, we are just
like savages in the jungle might is might [sic right]." (Emphasis supplied)
b) Severely reprimanding and scolding in open court petitioner’s secretary
when the latter filed on behalf of the petitioner a motion to dismiss the election
protest, then angrily adding that non-lawyers/couriers are not entertained by
the court, thereby subjecting the petitioner’s representative to the mockery
and ridicule of private respondent’s supporters who jampacked the
courtroom.
c) Personal interest of respondent judge shown by inquiring from Arcadio
Hernandez (one of the commissioners in the revision of ballots) about the
procedural maneuvers of petitioner’s counsel.
d) Respondent judge, beholden to Congressman Villareal whose life size
(half body) picture is displayed in the former’s office. Villareal is a known
supporter of private respondent who engaged the services of the Villareal law
office in the election protest before the respondent judge. Congressman
Villareal allegedly had worked for Judge Berjamen’s appointment to the
Bench.
PINEDAPCGRNMAN
e) Statement of respondent judge in open court that a motion for
reconsideration (of the denial of the motion to exhibit him) to be filed by
petitioner will be denied.
Petitioner’s recourse to this Court is basically founded on the contention that
public respondent’s above described conduct, particularly in the election
case pending before him, involving petitioner (as protestee) and private
respondent (as protestant) is not in consonance with the standard of cold
neutrality of an impartial judge and thus he cannot render a fair and impartial
decision in the case.chanrobles virtual lawlibrary
The incidents leading to this petition started when petitioner, Nicolas
Fecundo, mayoralty candidate in the Municipality of Dumalag, Capiz, during
the 1988 local elections, won over private respondent Julius Salcedo with a
margin of 100 votes. On 29 January 1988, private respondent Salcedo filed
an election protest docketed as Election Case No. M-944; a supplemental
petition followed on 4 February 1988. The case was assigned to Branch 20,
RTC of Mambusao, Capiz presided over by respondent judge, Hon. Ramon
Berjamen. After the filing of the answer with counter protest, respondent
judge issued an order, dated 1 February 1988, directing the Municipal
Treasurer of Dumalag, Capiz to deliver to the court the ballot boxes subject
of the protest. On 10 February 1988, the Municipal Treasurer of Dumalag
addressed a letter to respondent judge stating:
"Sir:
This is to inform you that I cannot execute the order of this court dated
February 1, 1988, because the Municipal Mayor of Dumalag, Capiz, and his
cohorts are preventing and threatening me if I insist to bring the ballot boxes
mentioned in your order to your court. My life is presently in danger so I ask
your assistance.
In view of this circumstance, I would like to request that the Provincial
Commander of the Philippine Constabulary, Loctugan Hills, Roxas City, be
ordered to secure me or to get by themselves the ballot boxes in question.
Thank you." 2
The same day, 10 February 1988, respondent judge issued the order already
adverted to. On 3 March 1988, petitioner filed a motion to withdraw his
counter protest. Another order dated 23 February 1988 was issued for
delivery of the ballot boxes and keys covered by the supplemental petition. 3
After several hearings before three (3) commissioners, and based on the
view that a protestant must first be required to present and mark his evidence
before the opening and revision of ballots involved in protestee’s counter
protest, a special civil action for certiorari, prohibition and mandamus was
filed by petitioner with this Court on 27 June 1988 4 seeking to prohibit the
respondent court from proceeding with the election case. A temporary
restraining order was issued on 13 July 1988 by the First Division of this Court
but the petition was ultimately dismissed in a resolution dated 25 January
1989 for failure to show grave abuse of discretion or lack or excess of
jurisdiction, the questioned order of respondent court being in accordance
with law and conducive to the expeditious disposition of the election contest.
5
Hearings were resumed before respondent judge.
Petitioner filed a motion for inhibition before the same judge on 18 April 1989
with notice of hearing set on 20 April 1989. Both parties failed to indicate in
the records of this case whether a hearing actually took place on the motion
but an order of 2 May 1989 issued by respondent judge, denied the motion
for noncompliance with the three (3) day notice rule. No motion for
reconsideration was filed by petitioner due to respondent judge’s statement
in open court on 8 May 1989 that:
Page 384
"If you intend to file another pleadings, [sic] you can do and the Court will
cross the bridge when it comes to it, without considering the merits and
demerits of this motion, the Court resolved to deny said motion. So, if you file
LEGAL ETHICS
another one, the Court will just deny when it received (sic) it." 6
These manifestations of alleged partiality to private respondent (or perhaps,
antipathy to petitioner) and the fact that petitioner’s counsel was not allegedly
furnished a copy of the 10 February 1988 order, having accidentally
discovered the same from the records of the case only sometime in May
1989, 7 are cited in support of the present petition.
As prayed for, a temporary restraining order was issued by the Court in its
resolution of 23 May 1989 ordering the respondent judge to cease and desist
from hearing Election Case No. M-944, until further orders from the Court,
simultaneously requiring respondents to file their comments to the petition. 8
Private respondent Julius Salcedo contends that petitioner is guilty of
deliberately delaying the resolution of the election contest. This petition,
according to private respondent, is his (petitioner’s) second attempt. The first
was also thru a petition for certiorari (G.R. No. 83779) which was ultimately
dismissed by the Court’s First Division. Now that the probability of his losing
the election case is apparent, petitioner moves for the disqualification of the
judge.
Petitioner’s charges are moreover pure inventions, according to private
Respondent. The incidents constituting alleged bias or prejudice of
respondent judge occurred prior to the filing of the first petition before the
Supreme Court; the present petition is thus a violation of the omnibus motion
rule. Furthermore, according to private respondent, in bad faith, petitioner
has concealed from the respondent judge the procedural remedies he has
availed of.chanrobles law library
Respondent judge, for his part, denies all the accusations, imputing them to
petitioner’s wild imagination, political immaturity and childish mentality. Some
words used in the order (10 February 1988) were merely taken from the letter
of the Municipal treasurer; the others were reminders and advice to petitioner
to respect and recognize the authority of the court. This petition, according to
respondent judge, is part of a scheme to delay the disposition of the election
case in violation of the Election Law, which respondent judge is seeking to
uphold. He disclaims any utang na loob (debt of gratitude) to Congressman
Villareal, and almost proudly states:
". . .. If this fact is true, Cong. Villareal was just paying the favors he owed the
undersigned so that Cong. Villareal could not influence this representation as
to how to decide a case no matter who the parties are. With the almost three
years in office of this representation, not even one case could the petitioner
cite an instance where Cong. Villareal had influenced the undersigned in his
decisions. . . .." 9
Petitioner’s reply and supplement to the reply insist that his first petition for
certiorari with this Court had a valid reason, i.e. to prevent private respondent
from fishing for evidence with the tolerance and support of the respondent
judge. The present petition arises from the conviction that there is partiality
and bias of respondent judge. There is no objection to the speedy disposition
of the election case provided that due process is observed, according to
the petitioner.chanrobles virtual lawlibrary
A motion to allow petitioner to file a reply to the comment of public respondent
was received on 16 September 1989; the reply was filed on 12 October 1989.
Without requiring other pleadings, the Court treated the comments as
answers and gave due course to the petition.
The filing of a previous petition for certiorari with this Court (ultimately
dismissed) is raised by private respondent as an affirmative defense to the
present petition. An examination of the records is thus unavoidable. The
prayer of the petition in G.R. No. 83779 reads:
"WHEREFORE, premises considered it is respectfully prayed that
Restraining Order as prayed, be issued and after hearing an Order be issued
declaring the Order dated June 21, 1988 of the public respondent as null and
void, ordering him to require private respondent to formally mark or identify
PINEDAPCGRNMAN
as exhibits those ballots subject of the protest, present evidence in support
of the petitioner [sic] and further ordering the public respondent, to defer the
opening of the ballots boxes of the counter protested precincts until the
private respondent has presented its [sic] evidence and has rested its [sic]
case on the basis of his Petition."cralaw virtua1aw library
The present petition, on the other hand, moves for inhibition of the
respondent judge, on grounds of bias and partiality, invoking an alleged gross
disregard of the Rules of Court.
Rule 137, Sec. 2 states:chanrob1es virtual 1aw library Rule
137 — DISQUALIFICATION OF JUDICIAL OFFICERS.
xxx
SEC. 2. Objection that judge disqualified, how made and effect. — If it be
claimed that an official is disqualified from sitting as above provided, the party
objecting to his competency may, in writing, file with the official his objection,
stating the grounds therefor, and the official shall thereupon proceed with the
trial, or withdraw therefrom, in accordance with his determination of the
question of his disqualification. His decision shall be forthwith made in writing
and filed with the other papers in the case, but no appeal or stay shall be
allowed from, or by reason of, his decision in favor of his own competency,
until after final judgment in the case.
Petitioner submits that respondent judge should have met the issues raised
by him, one by one, in his motion to inhibit, instead of rejecting said motion
on a technicality (non-compliance with three (3) day notice rule).
We do not, however, find any grave abuse of discretion or excess of
jurisdiction in respondent judge’s denial of the motion to inhibit for non-
compliance with the three (3) day notice rule. Section 4, Rule 15 of the Rules
of Court requires that notice of a motion be served by the movant on all
parties concerned at least three (3) days before the hearing thereof. Section
5 of the same Rule provides that the notice shall be directed to the parties
concerned, and shall state the time and place for the hearing of the motion.
A motion which does not meet the requirements of Sections 4 and 5 of Rule
15 of the Rules of Court is considered a worthless piece of paper which the
clerk has no right to receive and the court has no authority to act upon. 10
Service of copy of a motion containing notice of the time and place of hearing
of said motion is a mandatory requirement. 11
Further, we have to correct the statement of petitioner’s counsel in the
supplement to his reply which reads:
"Petitioner is also aware of the fact that although there are several election
protests pending in the various Regional Trial Courts in the four Provinces of
Panay, it is only in this election contest where the revision of the protested
ballots were already finished and has reached the stage of presentation of
evidence. In short the proceedings so far reached is way ahead as compared
with the other election contests." 12
This contention or observation is a non-sequitur. Tardiness or delay in the
disposition of election cases in other courts does not connote partiality of the
presiding judge in election cases speedily disposed of.
Sec. 258 of the Omnibus Election Code (BP Blg. 881) provides for the
preferential disposition of election contests within six (6) months after filing.
If judges in the four (4) provinces of Panay island hearing election cases are
indeed taking their time in deciding such election cases, as alluded to by
counsel, then they are not certainly complying with the election law.
Moving to the issue of bias and partiality as grounds for disqualification,
Page 385
recently, in Genoblazo v. CA, 13 it was enunciated:
"While it is true that partiality and prejudgment may constitute a just or valid
LEGAL ETHICS
reason for the trial judge to voluntarily inhibit himself from hearing the case,
it is not enough that the same be merely alleged. It is now settled that mere
suspicion that a judge is partial to one of the parties to the case is not enough;
there should be evidence to prove the charge (Beltran v. Garcia, G.R. No. L-
30868, September 31, 1971, 41 SCRA 158.)"
But, we still have to heed the sound admonition in Santos v. Gutierrez: 14
"Moreover, second only to the duty of rendering a just decision, is the duty of
doing it in a manner that will not arouse any suspicion as to its fairness and
the integrity of the Judge. Consequently, we take it to be the true intention of
the law stated in general terms -that no judge shall preside in a case in which
he is not wholly free, disinterested, impartial and independent (30 Am. Jur.
Supra) because —
‘. . . However upright the judge, and however free from the slightest inclination
but to do justice, there is peril of his unconscious bias or prejudice, or lest
any former opinion formed ex-parte may still linger to affect unconsciously
his present judgment, or lest he may be moved or swayed unconsciously by
his knowledge of the facts which may not be revealed or stated at the trial, or
cannot under the rules of evidence. No effort of the will can shut out memory;
there is no art of forgetting. We cannot be certain that the human mind will
deliberate and determine unaffected by that which it knows, but which it
should forget in that process.’" (Ann. Cas. 1917 A, p. 1235).
In the concurring opinion of Mr. Justice Teehankee in Beltran v. Garcia, 15
he said:
"This case should impress upon respondents the intangible imperatives of
not only being actually impartial but also maintaining the appearance of strict
impartiality, so as not to arouse needlessly the suspicions of either of the
parties, as in the case of herein petitioners.
While bias and prejudice are not to be presumed especially if weighed
against a judge’s sacred obligation under his oath of office to administer
justice without respect to person, the Court has at the same time admonished
judges to so conduct themselves and exercise their discretion in a way that
the peoples’ and litigants’ ‘all-important confidence in the impartiality of the
judiciary’ is ever nurtured and upheld."cralaw virtua1aw library
While the procedural tactics and/or motives of petitioner’s counsel may not
be all too laudable, as it was, for instance, impossible for him to be unaware
of the 10 February 1988 order, until sometime in May 1989, because on p. 3,
par. 1 of his petition in G.R. No. 83779 filed on 27 June 1988, he already
alleged:
"The aforementioned Orders for the delivery of the ballot boxes of the 11
precincts subject of the protest were duly implemented and as a result of
which the officials mentioned in the aforesaid Orders delivered those ballot
boxes and the public respondent took custody of the same."cralaw virtua1aw
library
yet, the language employed by the respondent judge in his 10 February 1988
order and even in his comment on the petition at bar, manifests at the very
least an exasperation bordering on indignation at petitioner and his tactics,
which may unnecessarily cloud his impartiality in deciding the election case
at hand. A spotless dispensation of justice requires not only that the decision
rendered be intrinsically fair but that the judge rendering it must, at all times,
maintain the appearance of fairness and impartiality. His language, both
written and spoken, must be guarded and measured, lest the best of
intentions be misconstrued.
To erase any doubt whatsoever as to the judge’s bias and/or prejudice
against petitioner in Election Case No. M-944, the Court believes it prudent
and better to serve the ends of justice to transfer the said case to Branch 21,
Mambusao, Capiz, presided over by the newly appointed Judge thereof, Hon.
Julius L. Abella.
Considering also that this is an election contest, Judge Abella is hereby
directed to terminate the proceedings and decide the case within three (3)
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months from notice of this decision.
WHEREFORE, the petition is GRANTED. The restraining order issued on 23
May 1989 is made permanent. Let election case No. M-944 be transferred
from Branch 20 to Branch 21, Mambusao, Capiz, presided over by Judge
Julius L. Abella who shall terminate proceedings therein and decide the case
within three (3) months from notice of this decision.
3.05 SEC. 5. Judges shall disqualify themselves from participating in
any proceedings in which they are unable to decide the matter
impartially or in which it may appear to a reasonable observer that they
are unable to decide the matter impartially. Such proceedings include,
but are not limited to, instances where
(a) The judge has actual bias or prejudice concerning a party or
personal knowledge of disputed evidentiary facts concerning the
proceedings;
(b) The judge previously served as a lawyer or was a material witness
in the matter in controversy;
(c) The judge, or a member of his or her family, has an economic
interest in the outcome of the matter in controversy;
(d) The judge served as executor, administrator, guardian, trustee or
lawyer in the case or matter in controversy, or a former associate of the
judge served as counsel during their association, or the judge or lawyer
was a material witness therein;
(e) The judge’s ruling in a lower court is the subject of review;
(f) The judge is related by consanguinity or affinity to a party litigant
within the sixth civil degree or to counsel within the fourth civil degree;
or
(g) The judge knows that his or her spouse or child has a financial
interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject
matter in controversy or in a party to the proceeding, or any other
interest that could be substantially affected by the outcome of the
proceedings;
G.R. Nos. 86587-93 July 25, 1989
ATTY. LOLITO G. APARICIO, petitioner,
vs.
HON. ERMELINDO C. ANDAL, Presiding Judge of the Regional Trial
Court, Branch 27, 11th Judicial Region, With Station at Tandag, Surigao
del Sur; The Republic of the Philippines, The National Treasurer of said
Republic; The Commission on Audit of said Republic; And such other
persons or entities of the Government as may be required by the
Honorable Court to be included as parties or nominal
parties,respondents.
Lolito G. Aparicio for and in his own behalf.
RESOLUTION
SARMIENTO, J:
Assailed in this special civil action for certiorari, prohibition, and
mandamus are the orders ** of the respondent judge dated October 11 and
Page 386
12, 1988 in Criminal Cases Nos. 1371, 1439, 1475,1480, and 1476 and Civil
Cases Nos. 742 and 755, denying the petitioner's Motion for Inhibition.
LEGAL ETHICS
Textually, the Motion for Inhibition reads:
COMES NOW, the Movant to this Honorable Court respectfully states:
(1) that the Movant has just received the letter from the Supreme Court
through its Deputy Court Administrator, hereto attached to the original of this
Motion only, same being covered by confidentiality as for its internal
operation only, issued in connection with my Petition for inhibition, also
annexed to the original only of this Motion, inhibition by the Honorable
Presiding Judge of this Court, to inhibit himself from trying, hearing or in any
manner acting on all cases, civil and criminal, in which the Movant is involved
and handling.
PRAYER
WHEREFORE, in view of the letter of the Deputy Court Administrator of the
Honorable Supreme Court, undersigned Attorney is compelled to request the
Honorable Presiding Judge of this Court to inhibit himself from trying, hearing
or in any manner acting in any of the cases in which the undersigned Attorney
is involved and is handling or will be involved, either as Complainant or
otherwise.
Madrid, Surigao del Sur, Philippines.
September 26, 1988.
Respectfully submitted without argument:
(SGD.) ATTY. LOLITO G. APARICIO
Madrid, Surigao del Sur
IBP No. 172531 and PTR No.
8798243, all for 1988 1
Considering the aforecited motion, Judge Andal issued the substantially
identical orders assailed herein.
The focal issue is whether or not Judge Andal acted with grave abuse of
discretion amounting to lack of jurisdiction when he denied the petitioner's
Motion for Inhibition in the several criminal and civil cases subject thereof and
in thereafter continuing to take cognizance of said cases and all the other
cases pending before him. Concomitant thereto is the question of whether or
not Judge Andal can be held civilly liable for damages under Art. 32 of the
Civil Code in relation to the constitutional provision that all public officers must
at all times be accountable to the people.
The petitioner maintains that there is between him and Judge Andal an
existing state of hostility 2 sparked off by the filing by him of petitions for
certiorari and administrative cases against the latter before this Court, prior
to the filing of the Motion for Inhibition, which was, as earlier stated, denied
by Judge Andal. He avers that although the Motion for Inhibition did not
explicitly state on its face the valid grounds relied upon to support his motion,
such grounds were known to Judge Andal. 3 He theorizes that the Judge in
refusing to inhibit himself from the cases subject of the Motion for Inhibition
and in all the other cases pending before him in which the petitioner is acting
either as counsel or a party litigant, Judge Andal violated his constitutional
rights to due process, equal protection of the law, access to the court and
speedy disposition of cases, making Judge Andal civilly liable under Art. 32
of the new Civil Code. 4 He asserts that because of Judge Andal's refusal to
inhibit himself, he (petitioner) and his family suffered mental anguish and
incurred expenses for which they must be compensated. 5
PINEDAPCGRNMAN
On the other hand, Judge Andal maintains that the motion for inhibition did
not cite any valid grounds to justify his inhibition. 6 He submits that when he
denied the motion for inhibition, he was not aware that A.M. No. RTJ-88-245
was filed against him as it was only on November 4, 1988 when he received
a resolution of this Court directing him to comment thereon, that he first came
to know about it. 7 He describes as a mere gratuitous assumption the
petitioner's assertion that in denying the Motion for Inhibition he was
motivated by rancor and resentment because of the certiorari and
administrative cases earlier filed against him. 8 In this score, he asseverates
that he does not normally resent the filing of certiorari cases against him as
he has neither the reason nor the luxury of time to entertain such a feeling.
Moreover, he is so preoccupied with his case load to even think of it. 9 He
further stresses that he has nothing personal against petitioner, as he does
not know the latter personally. 10
On the claim for damages, he submits that the same is without basis and is
purely imaginary and speculative.
Rule 137, Section 1 of the new Rules of Court provides:
Section 1. Disqualification of Judges — No judge or judicial officer shall sit in
any case in which he, or his wife or child, is pecuniarily interested as heir,
legatee, creditor or otherwise, or in which he is related to either party within
the sixth degree of consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the civil law, or in which he has
been executor, administrator, guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or decision is the subject of
review, without the written consent of all parties in interest, signed by them
and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from
sitting ill a case for just or valid reasons other than those mentioned above.
It must be observed that the Motion for Inhibition, as correctly stated by Judge
Andal in his orders denying the same, cited no valid ground, which fact was
confirmed by the prosecuting fiscal and the counsel for the accused in the
criminal cases and the defendants in the civil cases. There is, therefore, no
doubt that the denial of the said motion was not whimsical or capricious nor
was the said denial intended to spite the petitioner, as the petitioner would
want this Court to believe, but was done in the valid and judicious exercise
of his function and duty as judge.
We agree with the Solicitor General that the state of hostility being pressed
by the petitioner is purely imaginary.11 Indeed the petitioner had not
presented any evidence to support his conclusion that the filing of the petition
for certiorari docketed as UDK 8748 and UDK 8822 and the administrative
cases adverted to, caused the displeasure of Judge Andal as to affect his
impartiality in trying petitioner's cases. In fact, such allegations were refuted
by Judge Andal when he categorically stated that he does not normally resent
the filing of certiorari cases before this Court where he is impleaded as a
mere nominal party, 12 after all, when still a practitioner he too filed certiorari
cases. Moreover, as a judge, he knows he has neither the reason nor luxury
of time to entertain such a feeling, preoccupied as he is with the many cases
assigned to him.. 13
A circumspective analysis of the assailed orders belies the petitioner's charge
of bias or prejudice and hostility, as all of the said orders appear to have been
issued in accordance with law and nowhere was there a showing of any
outward manifestation of the supposed state of hostility between Judge Andal
and petitioner as to warrant the inhibition or disqualification of the former. And
having denied the Motion for Inhibition, Judge Andal acted within his
jurisdiction when he continued to take cognizance of all the cases pending
before him, there being no writ of injunction or a restraining order issued,
enjoining him to cease and desist from acting on the said cases. It must be
Page 387
noted that it was only on February 16, 1989 that a restraining order was
issued by this Court. 14 The Court has held that mere pendency of a special
civil action for certiorari commenced in relation to a case pending
LEGAL ETHICS
before the lower court, does not interrupt the course of the latter when there
is no writ of injunction restraining it. 15 Likewise, "the mere filing of an
administrative case against respondent judge is not a ground for disqualifying
him from hearing the case, for if on every occasion the party apparently
aggrieved would be allowed to either stop the proceedings in order to await
the final decision on the desired disqualification, or demand the immediate
inhibition of the judge on the basis alone of his being so charged, many cases
would have to be kept pending or perhaps there would not be enough judges
to handle all the cases pending in all the courts. The Court has to be shown
acts or conduct of the judge clearly indicative of arbitrariness or prejudice
before the latter can be branded the stigma of being biased or partial, 16 and
on this regard the petitioner failed.
In Pimentel vs. Salanga, 17 we rationalized:
Efforts to attain fair, just and impartial trial and decision, have a natural and
alluring appeal. But, we are not licensed to indulge in unjustified
assumptions, or make a speculative approval to this Ideal. It ill behooves this
Court to tar and feather a judge as biased or prejudiced, simply because
counsel for a party litigant happens to complain against him. As applied here,
respondent judge has not as yet crossed the line that divides partiality and
impartiality. He has not thus far stepped to one side of the fulcrum. No act or
conduct of his would show arbitrariness or prejudice. Therefore, we are not
to assume what respondent judge, not otherwise legally disqualified, will do
in a case before him. We have had occasion to rule in a criminal case that a
charge made before trial that a party "will not be given a fair, impartial and
just hearing is "premature." Prejudice is not to be presumed. Especially if
weighed against a judge's legal obligation under his oath to administer justice
without respect to person and do equal right to the poor and the rich." To
disqualify or not to disqualify himself then, as far as respondent judge is
concerned, is a matter of conscience. (Emphasis supplied).
On his claim for damages against Judge Andal in these same proceedings,
the petitioner-lawyer invokes Art. 32 of the Civil Code which provides in part:
Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another person shall be liable to
the latter for damages:
xxx
8) The right to the equal protection of the laws
xxx
16) The right of the accused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a
speedy and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witness in his behalf:
xxx
(19) Freedom of access to the courts.
xxx
The responsibility herein set forth is not demandable from the judge unless
his act or omission constitutes a violation of the Penal Code or other penal
statute.
In Aberca v. Ver, 18 we postulated thus: "The purpose of the above codal
provision is to provide a sanction to the deeply cherished rights and freedom
enshrined in the constitution. Its message is clear; no man may seek to
PINEDAPCGRNMAN
violate those sacred rights with impunity." Under said article judges are
excluded from liability, provided their acts or omissions do not constitute a
violation of the Penal Code and other penal statute. 19 As we have earlier
stated, the acts of Judge Andal in denying the motion for inhibition and in
thereafter proceeding with the trial of the different criminal and civil cases
pending before his court were done in a regular manner and were considered
as his official acts, thus, he is not answerable for damages.
In Alzua and Arnalot vs. Johnson, 20 this Court, adopting the concurring
opinion in Forbes, etc. vs. Chuoco Tiaco and Crossfield, 21 stated thus:
... whenever and wherever a judge of a court of superior jurisdiction exercises
judicial functions, he will not be personally liable in civil damages for the result
of his actions, and the test of judicial liability is not jurisdiction, but such
liability depends wholly upon the nature of the question which is being
determined when the error complained of is committed by the court. If such
question is one the determination of which requires the exercise of judicial
functions, the judge is not liable, even though there is in reality an absolute
failure of jurisdiction over the subject matter ... .
An important point that should not be overlooked in this case is petitioner's
audacious propensity of filing certiorari and administrative cases against the
respondent judge based on flimsy and unfounded charges he can conceive.
Thus, it behooves us to remind the petitioner of his basic duty "to observe
and maintain the respect due to the courts of justice and judicial officers to
conduct himself with "all good fidelity to the courts;" to maintain towards the
courts a respectful attitude, not for the sake of the temporary incumbent of
the judicial office, but for the maintenance of its supreme importance that his
duty to render respectful civility, without fawning, to the courts is indeed
essential to the orderly administration of justice. Thus, he should be
courteous, fair, and circumspect, not petulant, combative, or bellicose in his
dealings with the courts; and finally, that the use of disrespectful,
intemperate, manifestly baseless, and malicious statements by an attorney
in his pleading or motion is not only a violation of the lawyer's oath and a
transgression of the cannons of professional ethics, but also constitutes
direct contempt of court for which a lawyer may be disciplined. 22
Accordingly, the petitioner is hereby admonished to be more prudent in his
dealings with the court and its judicial officers.
WHEREFORE, premises considered, the petition is DISMISSED for lack of
merit. The Restraining Order dated February 16, 1980 is lifted and set aside.
Atty. Lolito G. Aparicio is hereby REPRIMANDED for conduct unbecoming a
member of the bar and an officer of the court with a WARNING that a
repetition of the same or similar conduct will be dealt with more severely.
Let a copy of this resolution be entered in the bar record of Atty. Lolito G.
Aparicio.
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial
Court of Misamis Oriental, Branch 18, Cagayan de Oro City, and
TERESITA S. GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1)
the Order of the respondent Judge, dated 10 December 1986, ordering
Page 388
petitioner to pay support pendente lite to private respondent (his wife) and
their child, and (2) the Order of the same respondent Judge, dated 5 August
LEGAL ETHICS
1987, denying petitioner's motion to suspend hearings in the action for legal
separation filed against him by private respondent as well as his motion to
inhibit respondent Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with
the Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch
18, in Cagayan de Oro City, presided over by respondent Judge, a complaint
against petitioner for legal separation, on the ground of concubinage, with a
petition for support and payment of damages. This case was docketed as
Civil Case No. 10636. On 13 October 1986, private respondent also filed with
the Municipal Trial Court, General Santos City, a complaint against petitioner
for concubinage, which was docketed on 23 October 1986 as Criminal Case
No. 15437111. On 14 November 1986, application for the provisional remedy
of support pendente lite, pending a decision in the action for legal separation,
was filed by private respondent in the civil case for legal separation. The
respondent judge, as already stated, on 10 December 1986, ordered The
payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation
and the incidents consequent thereto, such as, application for support
pendente lite, should be suspended in view of the criminal case for
concubinage filed against him the private respondent. In support of his
contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal
Procedure, which states:
SEC. 3. Other Civil action arising from offenses. — Whenever the offended
party shall have instituted the civil action to enforce the civil liability arising
from the offense. as contemplated in the first Section 1 hereof, the following
rules shall be observed:
(a) After a criminal action has been commenced the pending civil action
arising from the same offense shall be suspended, in whatever stage it may
be found, until final judgment in the criminal proceeding has been rendered.
...
The civil action for legal separation, grounded as it is on concubinage, it is
petitioner's position that such civil action arises from, or is inextricably tied to
the criminal action for concubinage, so that all proceedings related to legal
separation will have to be suspended to await conviction or acquittal for
concubinage in the criminal case. Authority for this position is this Court's
decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action
for legal separation would be proper if an allegation of concubinage is made
therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules
of Court on criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising from offenses.-Except as
otherwise provided by law, the following rules shall he observed:
(a) When a criminal action is instituted, the civil action for recovery of civil
liability arising from the offense charged is impliedly instituted with the
criminal action, unless the offended party expressly waives the civil action or
reserves his right to institute it separately;
(b) Criminal and civil actions arising from the same offense may be instituted
separately, but after the criminal action has been commenced the civil action
can not be instituted until final judgment has been rendered in the criminal
action;
(c) After a criminal action has been commenced, no civil action arising from
the same offense can be prosecuted and the same shall be suspended in
PINEDAPCGRNMAN
whatever stage it may be found until final judgment in the criminal proceeding
has been rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that
the civil action to be suspended, with or upon the filing of a criminal action, is
one which is "to enforce the civil liability arising from the offense". In other
words, in view of the amendment under the 1985 Rules on Criminal
Procedure, a civil action for legal separation, based on concubinage, may
proceed ahead of, or simultaneously with, a criminal action for concubinage,
because said civil action is not one "to enforce the civil liability arising from
the offense" even if both the civil and criminal actions arise from or are related
to the same offense. Such civil action is one intended to obtain the right to
live separately, with the legal consequences thereof, such as, the dissolution
of the conjugal partnership of gains, custody of offsprings, support, and
disqualification from inheriting from the innocent spouse, among others. As
correctly pointed out by the respondent Judge in his Order dated 5 August
1987:
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of
CFI of Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not
controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the Rules of
Court, which reads:
After a criminal action has been commenced, no civil action arising from the
same offense can be prosecuted and the same shall be suspended, in
whatever stage it may be found, until final judgment in the criminal
proceeding has been rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal
Procedure which refers to "civil actions to enforce the civil liability arising from
the offense" as contemplated in the first paragraph of Section 1 of Rule 111-
which is a civil action "for recovery of civil liability arising from the offense
charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for
the recovery of civil liability arising from the offense charged. Whereas, the
old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the
offense."
As earlier noted this action for legal separation is not to recover civil liability,
in the main, but is aimed at the conjugal rights of the spouses and their
relations to each other, within the contemplation of Articles 7 to 108, of the
Civil Code." 2
Petitioner also argues that his conviction for concubinage will have to be first
secured before the action for legal separation can prosper or succeed, as the
basis of the action for legal separation is his alleged offense of concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be issued
upon proof by preponderance of evidence in the action for legal separation.
3 No criminal proceeding or conviction is necessary. To this end, the doctrine
in Francisco vs. Tayao 4 has been modified, as that case was decided under
Act. No. 2710, when absolute divorce was then allowed and had for its
grounds the same grounds for legal separation under the New Civil Code, with
the requirement, under such former law, that the guilt of defendant spouses
had to be established by final judgment in a criminal action. That requirement
has not been reproduced or adopted by the framers of the present Civil Code,
and the omission has been uniformly accepted as a modification of the
stringent rule in Francisco v. Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to his wife must
also fail, as we find no proof of grave abuse of discretion on the part of the
respondent Judge in ordering the same. Support pendente lite, as a remedy,
Page 389
can be availed of in an action for legal separation, and granted at the
discretion of the judge. 6 If petitioner finds the amount of
LEGAL ETHICS
support pendente lite ordered as too onerous, he can always file a motion to
modify or reduce the same.7
Petitioner lastly seeks to have the respondent Judge disqualified from
hearing the case, as the grant of supportpendente lite and the denial of the
motion to suspend hearings in the case, are taken by the petitioner as a
disregard of applicable laws and existing doctrines, thereby showing the
respondent Judge's alleged manifest partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a
judge hearing a case and a party's counsel, as to applicable laws and
jurisprudence, is not a sufficient ground to disqualify the judge from hearing
the case, on the ground of bias and manifest partiality. This is more so, in
this case, where we find the judge's disposition of petitioner's motions to be
sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against
petitioner.
SO ORDERED.
3.06 SEC. 6. A judge disqualified as stated above may, instead of
withdrawing from the proceeding, disclose on the records the basis of
disqualification. If, based on such disclosure, the parties and lawyers,
independently of the judge’s participation, all agree in writing that the
reason for the inhibition is immaterial or unsubstantial, the judge may
then participate in the proceeding. The agreement, signed by all parties
and lawyers, shall be incorporated in the record of the proceedings.
LORENZO VS MARQUEZ (SUPRA)
CANON 4 PROPRIETY
Propriety and the appearance of propriety are essential to the
performance of all the activities of a judge.
4.01 SEC. 1. Judges shall avoid impropriety and the appearance of
impropriety in all of their activities.
[A.M. No. RTJ-96-1336. July 25, 1996]
JOCELYN TALENS-DABON, complainant, vs. JUDGE HERMIN E.
ARCEO, respondent.
DECISION
PER CURIAM:
Once again, this Court must strike hard at an erring member of the Judiciary.
The case before us stemmed from a sworn-complaint filed by Jocelyn C.
Talens-Dabon, Clerk of Court V of the Regional Trial Court of San Fernando
Pampanga, charging Judge Hermin E. Arceo, the Executive Judge thereat
with gross misconduct. The complaint was later amended to include
immorality. Judge Arceo filed his answer with counter-complaint to the main
complaint and his answer to the amended complaint. He likewise submitted
the affidavits of his witnesses.
After considering the answers, we issued a Resolution dated February 1,
1996 referring the case to Associate Justice Portia Alio-Hormachuelos of the
Court of Appeals for investigation, report, and recommendations, and at the
PINEDAPCGRNMAN
same time, placing Judge Arceo under preventive suspension for the
duration of the investigation (p. 61, Rollo).
After requests for postponement from both parties, hearings were held on
March 4, 19, 20, 21, 22, and on April 1, 8, 10 and 18, 1996. Both parties
presented their respective witnesses.Except for Atty. Arnel Santos and
Prosecutor Ramon S. Razon, all of Judge Arceo's witnesses were court
employees assigned at either the Office of the Clerk of Court or Branch 43 of
the Regional Trial Court of San Fernando, Pampanga.
In due time, the Investigating Justice submitted her Report and
Recommendation with the following findings:
The evidence shows that complainant Atty. Jocelyn "Joy" C. Talens-Dabon,
29, a resident of Dolores, San Fernando, Pampanga, is the Assistant Clerk
of Court of the RTC, San Fernando, Pampanga which item she assumed on
August 10, 1995, after working for more than a year as Branch Clerk of Court
of RTC Kalookan City under Judge Adoracion G. Angeles. At the time of her
assumption to office, she was about to get married to Atty. Dabon, a lawyer
who work at the Court of Appeals. She is a Methodist, the same religion as
that of respondent's wife and family.
Respondent Judge Hermin E. Arceo, 54, a resident of Guiguinto, Bulacan is
the Presiding Judge of the RTC Branch 43 in San Fernando, Pampanga. He
was newly designated Executive Judge therein vice Judge Teodoro Bay who
transferred to Quezon City. His wife is ailing and on dialysis, and has been
residing in the U.S. with their daughter since 1989. His family is in the printing
business and his translations of some laws and books have been published
(Exhs. 15-23). He has pursued further legal studies abroad either as
participant or guest. He is President of the Pampanga-Angeles City RTC
Judges Association and was designated Presidential Assistant for
Operations of the Philippine Judges Association (PJA).
Three days after complainant first reported at the Office of the Clerk of Court,
Atty. Elenita Quinsay, she was summoned by respondent. He was typing
when she came in and at this first meeting, she was surprised that without
even looking up at her, he asked her in a loud voice what she wanted. When
he did look at her she was bothered by the way he looked at her from head
to foot "as if he were undressing her." Respondent told her that she was going
to be detailed to his office as his assistant, a situation which she did not
welcome having heard of respondent's reputation in the office as "bastos"
and "maniakis" prompting her to work for her transfer to Branch 45 under
Judge Adelaida Ala-Medina.
On August 21, 1995, complainant received respondent's Executive Order No.
001-95 (Exh. H) requiring her to report to the office of the Executive Judge
effective August 28, 1995. Her work was to draft and file memos and
circulars, pay telephone and electric bills and other clerical duties assigned
to her by respondent. At one time she was designated to act as Branch Clerk
of Court of Branch 43 in the absence of OIC Bernardo Taruc. She observed
respondent to be rude and disrespectful to her and the other court personnel.
He talked in a loud voice and shouted at them; used offensive words such as
"walang isip", "tanga"; told green jokes and stories; made harsh and negative
comments about court personnel in the presence of others. Whenever he
had the opportunity he would make bodily contact ("chancing") with her and
certain female employees. Twice as she was about to go out the door
respondent would approach it in big strides so that his body would be in
contact with hers and he would press the lower part of his body against her
back. When complainant introduced her fiance to him, respondent asked her
why she was playing with her forefinger, at the same time gesturing with his
to signify sexual intercourse.Sometime in November 1995, respondent
kissed complainant on the cheek, a fact admitted by him in his testimony. He
also admitted kissing witnesses Marilyn Leander, Ester Galicia and other
female employees.
Page 390
Sometime in October 1995, the Courts of San Fernando transferred to the
Greenfields Country Club due to the inundation of their regular offices with
LEGAL ETHICS
lahar. Ester Galicia whose house was also affected was allowed to house
her appliances in the staff room of RTC Branch 43. These included a VCR
on which, as testified by witness Bernardo Taruc, a VHS tape entitled "Illegal
in Blue" brought by respondent was played at respondent's bidding. The tape
contained explicit sex scenes and during its showing respondent would come
out of his chamber and tease the female employees about it. Taruc further
related that at one time respondent brought and showed to the employees a
picture which when held in some way showed figures in coital position.
Adding to complainant's apprehensions about respondent's sexual
predilection were the revelations of Marilyn Senapilo-Leander, 23, a
stenographer of Branch 43. Testifying on her own experiences with
respondent, Leander stated that respondent wrote a love poem to her (Exh.
A) and that many times while taking dictation from respondent in his chamber,
he would suddenly dictate love letters or poems addressed to her as if
courting her (Exhs. B to E). He kissed her several times, pointedly stared at her
lower parts when she wore tight pants and made body contacts ("chancing").
At one point bursting into tears -- which prompted this Investigator to suspend
her testimony; she was so agitated -- Leander testified of the time that
respondent summoned her to his chamber and she found him clad only in
briefs.When she turned around to flee, respondent called after her saying
"why are you afraid. After all, this is for you."
Leander took into her confidence the most senior employee in Branch 43,
OIC Clerk of Court Bernardo Taruc who then took it upon himself to
accompany Leander in respondent's office whenever he could or ask other
female employees to accompany her. Taruc asked Leander to report the
matter to Deputy Court Administrator Reynaldo Suarez but Leander
expressed fear of retribution from respondent. When Leander's wedding was
set in late 1995, respondent taunted her by saying "Ikay, ang dami ko pa
namang balak sa 'yo, kinuha pa naman kita ng bahay sa isang subdivision,
tapos sinayang mo lang, tanga ka kasi!" This is admitted by respondent who
said it was only a joke. Asked why she did not file any complaint against the
respondent for sexually harassing her, Marilyn Leander explained:
"I am afraid considering that I am just an ordinary employee. And I know for
a fact that Judge Hermin Arceo is a very influential person, he is very rich. I
know he has lots of friends in Pampanga like the Governor. I know I cannot
fight by myself alone." (TSN, March 20, 1966, p. 30).
For the complainant, these personal and vicarious experiences hit bottom
with the incident that happened in the afternoon of December 6, 1995. As
testified by complainant, corroborated in parts by Bemardo Taruc, Yolanda
Valencia and Rosanna Garcia, complainant was summoned at about 1:30
p.m. to respondent's temporary chamber at Greenfields Country Club by
respondent who himself came to the Staff room. By this time, only the Office
of the Clerk of Court and RTC Branch 43 had been left at Greenfields; the
other RTC branches had returned to their usual offices at the Hall of Justice.
The Sangguniang Panglalawigan which had also occupied Greenfields had
likewise vacated the building only the day before.
At his temporary chamber at Greenfields, respondent occupied two (2) small
adjoining rooms while the personnel of the Office of the Clerk of Court and
RTC Branch 43 occupied a bigger room called the Maple Room (Please see
Exhs. "J", "K" and "2"). In respondent's Floor Plan marked Exhibit "2" it
appears that from respondent's chamber, one had to pass a chapel and bar
lounge before reaching the staff room. The door to the outer room of the
chamber was equipped with a knob and an automatic door closer. When
locked from inside, it could not be opened outside except with a key. Since
there was no airconditioner, this door was usually held open for ventilation
by a chair or a small table. The outer room had filing cabinet and sacks of
rice lined up on two (2) sides of the wall. The inner room also had a door but
without a knob. Respondent had his desk here. The window in this room
opened to the lawn of the Country Club.
Amid this backdrop in what may have been a somnolent afternoon at
Greenfields, complainant entered respondent's office. Already made
PINEDAPCGRNMAN
cautious by respondent's reputation and Mrs. Leander's experience, she took
care to check the outer door and noted the chair which prevented it from
closing. Her apprehension increased because the hallway was clear of
people and only the personnel of Branch 43 and the Office of the Clerk of
Court were left holding office there. She entered the inner room, and sat on
a chair in front of respondent's desk. They talked about the impending
construction of the Hall of Justice.Their conversation was interrupted when
Bemardo Taruc dropped by to tell respondent of a phone call for him.
Respondent left the room but told complainant to remain for the signing of her
Certificate of Service which she was then bringing. After a few minutes
respondent returned and they resumed their conversation. When the talk
veered to his wife, complainant became uneasy and directed respondent's
attention to her unsigned Certificate of Service. After respondent signed it,
complainant prepared to leave the room. At this juncture, respondent handed
to her a folded yellow paper containing his handwritten poem (Exh. M; p. 22,
Record).
Hereunder quoted is the poem and complainant's interpretation of it as
contained in her Memorandum:
"Dumating ka sa buhay ko isang araw ng Agosto
Ang baon mo ay 'yong ganda at talinong abogado
Ang tamis ng 'yong ngiti ang bumihag sa puso ko
Malakas na pampalubag sa mainit kong ulo."
"Indeed, the last two lines of the first stanza are consistent with complainant's
claim regarding respondent's rude manner and erratic mood swings.
"The second stanza of respondent's poem also jibes with his own testimony
that he would often look for complainant whenever he would not see her, and
with complainant's testimony that respondent's behavior towards her -- his
propensity to utter remarks with sexual connotations, his acts of making
physical contact with her, among others --
"Ang akala ko'y gayong lamang magiging pagtingin sa iyo
Ako itong amo at ikaw ang empleyado
Bakit habang tumatagal isip ko'y nagugulo
Pag di ka nakikita'y laging nagagalit ako."
"The third stanza is most descriptive of respondent's attitude towards
complainant which complainant and her witnesses described as rude. It is
also consistent with the testimonies of witnesses that respondent would
shout at complainant and would crack green jokes towards her:
"Damdamin kong sumusumpling pilit kong itinatago
Sa malalakas na mga tinig asik at mga biro
Ngunit kung nag-iisa puso ko'y nagdurugo
Hinahanap ng puso ko ang maganda mong anyo.
"The fifth stanza jibes with complainant's testimony that respondent gave her
an unexpected kiss on at least two occasions:
Page 391
"Bawat patak ng luha ko'y mga butil ng pag-ibig
LEGAL ETHICS
Na siya kong kalasag sa pagnanakaw ng halik
Sa pisngi mo aking mahal, aking nilalangit
Patak ng ulan -- sa buhay kong tigang ang nakakawangis."
"Finally, the fourth and last paragraphs of the poem provides the context of
the lascivious acts committed by respondent against complainant on 6
December 1995:
"Sawingpalad na pagibig nabigong pangarap
Na ikaw ay maangkin, mahagkan at mayakap
Pag-ibig mo'y ibinigay sa higit na mapalad
Ako ngayo'y naririto bigong-bigong umiiyak."
Kapalaran ay malupit, di kita makatalik
Sa ngayon o bukas pagkat di mo ibig
Aangkinin kita kahit sa panaginip
Gano'n kita kamahal Joy, aking pag- ibig."
(Complainant's Memorandum, pp. 32-33)
Complainant found the poem repulsive (obscene) particularly the line saying
"Kapalaran ay malupit, di kita makatalik sa ngayon at bukas pagkat di mo
ibig." In her testimony, complainant said she considered the poem malicious
because they were both married persons, and he was a judge and she was
his subordinate. Although outraged, complainant respectfully asked
permission to leave while putting the poem in the pocket of her blazer. She
then proceeded towards the outer room where she was surprised to find the
door closed and the chair holding it open now barricaded it. The knob's button
was now in a vertical position signifying that door was locked.
Complainant was removing the chair when respondent walked to her in big
strides asking her for a kiss. Seconds later he was embracing her and trying
to kiss her. Complainant evaded and struggled and pushed respondent
away. Then panicking, she ran in the direction of the filing cabinets.
Respondent caught up with her, embraced her again, pinned her against the
filing cabinets and pressed the lower part of his body against hers.
Complainant screamed for help while resisting and pushing respondent.
Then she ran for the open windows of the inner room. But before she could
reach it respondent again caught her.In the ensuing struggle, complainant
slipped and fell on the floor, her elbows supporting the upper part of her body
while her legs were outstretched between respondent's feet. Respondent
then bent his knees in a somewhat sitting (squatting) position, placed his
palms on either side of her head and kissed her on the mouth with his mouth
open and his tongue sticking out. As complainant continued to struggle,
respondent suddenly stopped and sat on the chair nearest the door of the
inner room with his face red and breathing heavily. Complainant angrily
shouted "maniac, demonyo, bastos, napakawalanghiya ninyo".Respondent
kept muttering "I love you" and was very apologetic offering for his driver to
take her home. Complainant headed for the Maple Room where, when she
entered, she was observed by Bernardo Taruc and Yolanda Valencia to be
flushed in the face and with her hair disheveled. Yolanda particularly found
surprising complainant's disheveled hair because complainant considered
her (long straight) hair one of her assets and was always arranging it.
Rosanna Garcia in her testimony observed that complainant was really angry
as shown by the way she grabbed her bag "talagang galit."
PINEDAPCGRNMAN
It is to be noted that Mrs. Rosanna Garcia, 36, was a most reluctant witness.
When first subpoenaed, she did not appear and sent a medical certificate (p.
120, Record) that she was suffering from hypertension.She testified that she
was asked by respondent to sign an affidavit (Exh. F, pp. 56-57, Record)
prepared by him and that eventually, she executed a Sinumpaang Salaysay
in her own handwriting (Exh. G) wherein she stated that some of the
statements in her earlier affidavit were false and that she was only forced to
sign because respondent shouted at her when she refused; that she was
afraid of respondent who was her boss. She corroborated complainant's
declaration that respondent went to the door of the Maple Room in order to
call her (complainant), adding that his call could not be made from his office
because he could not be heard as his office was far from the Maple Room. T
his is in direct contrast to respondent's testimony that he did not summon
complainant but she came to him to get the poem that she asked him to make
for her.
When complainant angrily left the Maple Room, Yolanda Valencia followed
and walked with her outside. On the road, complainant told Valencia
"napakawalanghiya ni Judge, bastos, demonyo" and vowed that she would
tell her family about what respondent did to her so that her father would maul
him. As testified by Yolanda Valencia, complainant was so angry
"nagdadabog talaga siya" (TSN, March 19, 1996, p. 194). But as they were
already on the road, complainant did not tell Valencia what happened.
The next day complainant related her experience to Bernardo Taruc with
whom she rode to the office. As testified by Taruc:
"A She was telling me about the incident which happened that afternoon of
December 6, 1995.
Q Can you tell us what she told you about the December 6, 1995 incident?
A She told me that she was kissed by the Judge inside his office.
Q What else did she tell you, if any?
A She said that she was pushed on the floor and she was very disorganized
in relating the incident it was as if she was trying to say all things at the same
time. But what I got from her was that she was kissed by the Judge in the
office on December 6 on the lips and she was fuming mad.
Q What was your reaction when you heard that from Atty. Talens-Dabot?
A I was . . . I was shocked . . . I don't know the proper term. I was shocked.
Q What did you say or do upon learning the incident?
A When she later on was pacified, she asked me, 'what am I going to do?
Am I going to press charges?'
Q What did you say?
A I told her it is up to her and before doing it she has to weigh all things, the
consequences if she would file a case.
Q Was that the end of the conversation?
A No, she kept on retelling it all over again till we reach the office."
(TSN, March 20, 1966, pp. 127-128).
Page 392
Complainant also related what happened to witness Atty. Elenita Quinsay
but, as testified by Atty. Quinsay, complainant did not want anybody (else) to
LEGAL ETHICS
know about the kissing incident at that point. Atty. Quinsay advised
complainant to talk with respondent and ask for a transfer.
On December 12, 1995 complainant went to the Hall of Justice where
respondent was, and as he was about to board his car, approached him and
verbally broached her request for transfer. He acceded. Thus in the morning
of December 18, 1995, complainant brought her written request for transfer
dated December 12, 1995 (Exh. N) for respondent's signature, reminding him
of his earlier verbal approval. He refused saying he needed her for two (2)
administrative cases that he was investigating. When she insisted, he
shouted at her saying it was his decision and had to be obeyed. However, he
eventually signed the memorandum (Exh. O) transferring her later that
morning.
Two days later, on December 20, 1995, complainant, after consulting her
family, reported the matter to the police and filed with the Municipal Trial
Court of San Fernando, Pampanga criminal cases for acts of lasciviousness
(Exh. 3), Violation of Anti-Sexual Harassment Law (Exh. 5) and this
administrative case the following day.
For his part, respondent mostly denied complainant's allegations. He
presented his version of some specific incidents or conduct such as that he
was merely imitating complainant's gesture with her forefinger as she
nervously introduced her boyfriend to him. He admitted that he kissed her
("November incident was not the first but it was the last") and other female
employees; admitted the pre-wedding incident where he told Mrs. Leander
"tanga ka kasi" but said it was only a joke; admitted that his voice is louder
than others but he does not shout; admitted that he tells green but "never
vulgar" jokes. Denying Marilyn Leander's allegations and disclaiming any
knowledge of Exhs. A to E, he described Leander as a "very young funny
person, always laughing." In his testimony he never showed why Marilyn
Leander, Rosanna Garcia or Yolanda Valencia would testify against him to
corroborate complainant's testimony, reserving his venom for Bernardo
Taruc. He said Taruc's research work were "not usable. He insinuated that
Taruc perjured himself because he was jealous about Marilyn Leander with
whom he (Taruc) has a relationship.
He declared that nothing happened on December 6, that it was complainant
who entered his room to get the poem she herself asked him to make. He
called the December 6 incident a "mere fabrication" of complainant in
vengeful retaliation of four (4) incident that he either scolded or humiliated
her namely: in September 1995 when he reminded, but did not scold, her to
report to Branch 43; in November 1995 when he reproached her for not
reflecting in her Certificate of Service that she had gone to Hongkong; in the
first week of December 1995 when she committed an error in the notice for
a judges' meeting; and finally on December 18, 1995, when he scolded her
for insisting to allow her to return to the Office of the Clerk of Court. He
asserted that he never noticed any change of complainant's behavior towards
him and that he was never attracted to her.
He dismissed the poem marked Exhibit "M" as nothing more than an
intellectual creation "too apocryphal to be true", that it was exaggerated and
meant only to praise and entertain complainant. He declared that he had in
fact written other poems (Exhs. 25 to 30) including the one published through
a certain Fred Roxas (Exh. 25). Belying the kissing incident, he contended
that there had been a gardener working at 3:00 to 5:00 that afternoon on the
lawn just outside the window of his office, implying that if indeed complainant
had screamed, it would have been heard by the gardener. But it is to be noted
that this alleged gardener was never presented.
(pp. 11-31, Report and Recommendation)
Based on the foregoing findings, the Investigating Justice made the following
conclusions: a) that there is sufficient evidence to create a moral certainty
that respondent committed the acts complained of, especially the violent
kissing incident which transpired last December 6, 1995; b) that complainant
and her witnesses are credible witnesses who have no ulterior motive or bias
PINEDAPCGRNMAN
to falsely testify against respondent; c) that respondent's denials can not
prevail over the weight and probative value of the affirmative assertions of
complainant and her witnesses; d) that respondent's poem has damned him,
being documented proof of his sexual intentions towards the complainant; e)
that by filing her charges imputing to respondent a crime against chastity and
with her background as a lawyer and a court employee, complainant was
well-aware that her honor would itself be on trial; f) that it is unbelievable that
complainant, a demure newly-married lady and a religious person, would
fabricate a story with such severe implications on respondent's professional
and personal life just to get even with respondent for an alleged simple
scolding incident; and g) that by doing the acts complained of, respondent
has tempted the morals of not only complainant but also the other court
employees over whom he exercised power and influence as Executive
Judge. The Investigating Justice thereupon, recommended that respondent
be dismissed from the service with prejudice to re-appointment in any other
government position and with forfeiture of all benefits and privileges
appertaining him, if any.
The Court has reviewed the record of this case and has thereby satisfied
itself that the findings and recommendations of the Investigating Justice are
in truth adequately supported by the evidence and are in accord with
applicable legal principles. The Court agrees and adopts such findings and
recommendations.
The integrity of the Judiciary rests not only upon the fact that it is able to
administer justice but also upon the perception and confidence of the
community that the people who run the system have done justice. At times,
the strict manner by which we apply the law may, in fact, do justice but may
not necessarily create confidence among the people that justice, indeed, is
served. Hence, in order to create such confidence, the people who run the
judiciary, particularly judges and justices, must not only be proficient in both
the substantive and procedural aspects of the law, but more importantly, they
must possess the highest integrity, probity, and unquestionable moral
uprightness, both in their public and private lives. Only then can the people
be reassured that the wheels of justice in this country run with fairness and
equity, thus creating confidence in the judicial system.
With the avowed objective of promoting confidence in the Judiciary, we have
the following provisions of the Code of Judicial Conduct:
Canon I
Rule 1.01: A Judge should be the embodiment of competence, integrity and
independence.
Canon II
Rule 2.00: A Judge should avoid impropriety and the appearance of
impropriety in all activities.
Rule 2.01: A judge should so behave at all times as to promote public
confidence in the integrity and impartiality of the judiciary.
The Court has adhered and set forth the exacting standards of morality and
decency which every member of the judiciary must observe (Sicat vs.
Alcantara, 161 SCRA 284 [1988]). A magistrate is judged not only by his
official acts but also by his private morals, to the extent that such private
morals are externalized (Junio vs. Rivera, 225 SCRA 688 [1993]). He should
not only possess proficiency in law but should likewise possess moral
integrity for the people look up to him as a virtuous and upright man.
In Dy Teban Hardware and Auto Supply Co. vs. Tapucar (102 SCRA 493
[1981]), the Court laid down the rationale why every judge must possess
Page 393
moral integrity, thusly;
LEGAL ETHICS
The personal and official actuations of every member of the judiciary must
be beyond reproach and above suspicion. The faith and confidence of the
people in the administration of justice can not be maintained if a judge who
dispenses it is not equipped with the cardinal judicial virtue of moral integrity
and if he obtusely continues to commit affront to public decency. In fact, moral
integrity is more than a virtue; it is a necessity in the judiciary.
(at p. 504.)
In Castillo vs. Calanog (199 SCRA 75 [1991]), it was emphasized that:
The Code of Judicial Ethics mandates that the conduct of a judge must be
free of a whiff of impropriety not only with respect to his performance of his
judicial duties, but also to his behavior outside his sala and as a private
individual. There is no dichotomy of morality; a public official is also judged
by his private morals. The Code dictates that a judge, in order to promote
public confidence in the integrity and impartiality of the judiciary, must behave
with propriety at all times. As we have very recently explained, a judge's
official life can not simply be detached or separated from his personal
existence. Thus:
Being the subject of constant public scrutiny, a judge should freely and
willingly accept restrictions on conduct that might be viewed as burdensome
by the ordinary citizen.
A judge should personify integrity and exemplify honest public service. The
personal behavior of a judge, both in the performance of his official duties
and in private life should be above suspicion.
(at p. 93.)
Respondent has failed to measure up to these exacting standards. He has
behaved in a manner unbecoming of a judge and as model of moral
uprightness. He has betrayed the people's high expectations and diminished
the esteem in which they hold the judiciary in general.
We need not repeat the narration of lewd and lustful acts committed by
respondent judge in order to conclude that he is indeed unworthy to remain
in office. The audacity under which the same were committed and the
seeming impunity with which they were perpetrated shock our sense of
morality. All roads lead us to the conclusion that respondent judge has failed
to behave in a manner that will promote confidence in the judiciary. His
actuations, if condoned, would damage the integrity of the judiciary,
fomenting distrust in the system. Hence, his acts deserve no less than the
severest form of disciplinary sanction of dismissal from the service.
The actuations of respondent are aggravated by the fact that complainant is
one of his subordinates over whom he exercises control and supervision, he
being the executive judge. He took advantage of his position and power in
order to carry out his lustful and lascivious desires. Instead of he being in loco
parentis over his subordinate employees, respondent was the one who
preyed on them, taking advantage of his superior position.
Noteworthy then is the following observation of the Investigating Justice:
But the very act of forcing himself upon a married woman, being himself a
married man, clearly diverts from the standard of morality expected of a man
of less than his standing in society. This is exacerbated by the fact that by
doing the acts complained of, he has tempted the morals of not only the
complainant but also the young Mrs. Marilyn Leander and the other
employees in the court over whom he exercised power and influence as
Executive Judge.
(pp. 36-37.)
PINEDAPCGRNMAN
Respondent may indeed be a legally competent person as evidenced by his
published law books (translations from English to Tagalog) and his legal
studies abroad, but he has demonstrated himself to be wanting of moral
integrity. He has violated the Code of Judicial Conduct which requires every
judge to be the embodiment of competence, integrity, and independence and
to avoid impropriety and the appearance of impropriety in all activities as to
promote public confidence in the integrity and impartiality of the judiciary.
Having tarnished the image of the Judiciary, respondent, the Court holds
without any hesitation, must be meted out the severest form of disciplinary
sanction -- dismissal from the service.
As a reminder to all judges, it is fitting to reiterate one of the mandates of the
Court in its Circular No. 13 dated July 1, 1987, to wit:
Finally, all trial judges should endeavor to conduct themselves strictly in
accordance with the mandate of existing laws and the Code of Judicial Ethics
that they be exemplars in the communities and the living personification of
justice and the Rule of Law.
WHEREFORE, Judge Hermin E. Arceo is hereby DISMISSED from the
service for gross misconduct and immorality prejudicial to the best interests
of the service, with forfeiture of all retirement benefits and with prejudice to
re-employment in any branch of the government, including government-
owned and controlled corporations.
SO ORDERED.
4.02 SEC. 2. As a subject of constant public scrutiny, judges must
accept personal restrictions that might be viewed as burdensome by
the ordinary citizen and should do so freely and willingly. In particular,
judges shall conduct themselves in a way that is consistent with the
dignity of the judicial office.
[A.M. No. MTJ 98-1168. April 21, 1999]
LUALHATI M. LIWANAG, complainant, vs. JUDGE PATERNO H.
LUSTRE, Presiding Judge, Municipal Trial Court, Calamba, Laguna,
respondent.
DECISION
QUISUMBING, J.:
On September 19, 1995, complainant Lualhati M. Liwanag sent a letter to the
Court[1] praying that respondent Judge Paterno H. Lustre be dismissed from
the service due to gross immorality and grave misconduct unbecoming of his
profession.[2] Attached to her letter was a sworn statement, reproduced
verbatim hereunder, which details how respondent allegedly molested her
sexually.
SWORN STATEMENT
I, LUWALHATI LIWANAG, of legal age, Filipino and a resident of
Karunungan Road, Pamana Homes, Calamba, Laguna, after being duly
sworn, according to law, hereby depose and state:
1. Prior to July, 1994, my husband, Jose B. Zafra filed twelve (12) counts of
violation of B.P. 22 against Oscar Chua, Dante Chua and Rowena Chua for
issuing checks amounting to approximately 3.5 million pesos, that were
dishonored when presented for payment.
Page 394
LEGAL ETHICS
2. On July 22, 1994, the Assistant Provincial Prosecutor of Laguna filed
twelve (12) informations for violation of BP 22 against Oscar Chua, Dante
Chua and Rowena Chua, charging each of them with three (3) counts of
Violation of BP 22. Copies of the informations are hereto attached for
reference.
3. The said cases were assigned at the Municipal Trial Court of Calamba,
Laguna presided by Judge Paterno Lustre.
4. After the informations were filed, the accused posted bail. However, their
arraignment were (sic) postponed several times at the instance of the
accused.
5. The case was set for hearing for November 16, 1994. However, when the
date came, Judge Lustre was not present. Hence, the hearing was reset to
December 15, 1994.
6. On November 17, 1994 at about 8:30 A.M., I went to see Judge Lustre at
his chamber to inquire about the case filed by my husband, why the accused
have not yet been arraigned. At that point, I asked Judge Lustre if it is
possible to schedule hearings in January and February, 1995 and every
month thereafter and to order the arraignment of the accused. He responded
in the affirmative and told me to come back after the hearing on December
15, 1994, at about 7:00 A.M. in his chamber.
7. The date of the hearing arrived, Dec. 15, 1994 at 1:30
P.M. The representative of Atty. Buted, counsel for the accused, arrived with
a Motion to Transfer the scheduled hearing. Judge Lustre then reset the
hearing on Jan. 17, Feb. 1, 9 and 23, 1995.
8. As requested, on December 16, 1994, one day after the hearing, at about
7:00 A.M., I went to see Judge Lustre at his chamber. There, he told me that
he prepared an order for the accused. I thanked him and I told him that if the
accused will pay us, my husband and I will give him five (5%) percent of it as
token of gratitude. At that point, he stood up and told me he does not need
money.While he was giving me a copy of the order, he touched my shoulder,
down to my breast. I froze and could not do anything. He was telling me that
he acceded to my request. Later, he told me that he is available during
Mondays and Fridays as there are no scheduled hearings and for me to come
back to him before the hearing on January 17, 1995.
9. I did not go back to see Judge Lustre as per his request before the hearing
on Jan. 17, 1995 because of what he did to me, he took advantage of the
situation to molest me.
10. Came the date of the hearing on Jan. 17, 1995. Despite the previous
order setting the case for hearing for Feb. 1, 9 and 23, 1995, he cancelled
hearings on all dates as per request of the counsel for the accused. Instead,
he reset the same on Feb. 22, 28 and March 7, 1995.
11. When the hearing on Feb. 22, 1995 came, Judge Lustre cancelled the
one set on Feb. 28, 1995.
12. By the way things were going, I could sense that Judge Lustre is delaying
the case, granting postponement after postponement, despite objections
from our lawyer. The case was already dragging and nothing was happening.
We were running out of money and we needed to have the case terminated
right away in order to get paid for the money the accused have swindled us.
Because of this dilemma, I decided to see Judge Lustre.
13. On March 6, 1995, Monday, at about 10:00 A.M., I went to see Judge
Lustre. I asked him why he cancelled the hearings. He responded that I
fooled him since I did not come to him as per his request, whereas he
acceded to my earlier request. He then told me that I must obey his wishes
if I want our case to go smoothly since he is the only one who will decide our
PINEDAPCGRNMAN
cases. After that, he told me that he was already free and for me to wait for
him outside the courtroom. We boarded his white Toyota car, with Plate No.
PLN-513 and he brought me to Canlubang Tollway. While in the car, he
kissed me on the lips and caressed my breast. I was repulsed and disgusted
but I could not do anything since our cases are with him and he was
deliberately delaying the hearings. At that instant, I told him to set hearings
for April and May, 1995 since according to his staff, there would be no
hearings in May and in April. He told me, he will take care of it and ordered
me to come to his office on March 13, 1995 at 7:00 A.M. and we will talk
about the settings.
14. On March 13, 1995, Monday, as ordered, I went to see Judge Lustre at
his office at around 7:10 A.M. There was no one there except him. I saw him
waiting just outside his chamber. He ushered me inside, but I had barely
entered the room, when he kissed me on the lips and caressed my body,
particularly my breast. He exposed his penis and ordered me to masturbate
him. I could not do anything but obey. There was a fluid that oozed from his
penis, which was somewhat bloody. I felt dirty. While doing that, he told me
to tell my lawyer to file a motion to set hearing for April and May, 1995. He
then asked me to go with him to Laguna de Bay Inn. I refused, he got angry.
He retorted that the fate of our case is on his hands and told me to see him
on March 23, 1995 at 7:00 A.M. at Laguna de Bay Inn in Sucat since his house
is near the area.
15. After that, my lawyer filed a Motion to Set Case for Hearing. But I did not
go and see Judge Lustre at Laguna de Bay Inn. Thus, on March 28, 1995
hearing, no schedule was set for April and May.Instead, he made the setting
in June, 1995.
16. On April 10, 1995 I received a new subpoena for pre-trial and arraignment
of the new cases we filed, scheduling the same for May 3, 1995. The
following day, April 11, Tuesday, I went to see Judge Lustre to inquire why
our case was not scheduled on May 3, at any rate, there is arraignment of
our new case filed on the same date. He responded that he was early at
Laguna de Bay Inn on March 23, and he waited for me at 7:00 A.M. but I did
not come. He told me not to fool him, "masama daw siyang magalit."
17. The June 6 hearing proceeded, that of June 13 was cancelled at the
instance of the accused's lawyer.
18. On June 15, 1995, Thursday, at around 7:00 A.M., I went to Judge Lustre
in his office because I was told that our next hearing would be in September
despite previous settings. I requested Judge Lustre to give us monthly
hearings, in July and August. He told me that he would oblige if I would follow
his wishes. As he was saying that, he was already touching my breast. He
exposed his penis at told me to perform "fellatio." I refused. I was then told to
return the following day, the same time and he will wait for me.
19. I came back on June 16, around 7:00 A.M. As ordered, I proceeded to
the Calamba Church to wait for Judge Lustre. He fetch (sic) me from there
on board his white Toyota car and he brought me to Riverview Resort and
Sports Complex in Crossing, Calamba, Laguna. I could not refuse because
of the threat about our case. Inside the room at Riverview, he told me there
will be a setting for July and August. Then he undressed himself and ordered
me to do the same. I knew I was selling myself to the devil but our blood
money is at stake. It is for the future of my son and I was willing to do anything
for my family. Perhaps I was too stupid to do it, but at that time, I felt helpless.
He ordered me to perform "fellatio" on him and I obeyed. There was blood that
oozed from his penis. I also saw black rashes on his body, especially on his
legs. Before we left, he told me to see him again on July 10 in his office.
20. On June 23, 1995, the same thing happened. I went to his office at 7:00
A.M. Judge Lustre brought me to Riverview Resort and Sports Complex and
Page 395
I was again ordered to perform "fellatio" on him.
LEGAL ETHICS
21. The June 28 hearing proceeded. But I did not go and see Judge Lustre
on July 10 as requested. I just called him and presented an alibi. He told me
to just come the following day, July 11 at 7:00 A.M. at Jollibee, Calamba and
he will wait for me. As parting words, he told me not to fool him.
22. I did not see him on July 11 because I already felt so dirty and used. I
never realized before I was capable of doing such a thing for my family, until
the time came. But I could not take it anymore.
23. On July 27, the hearing proceeded. But the previous schedules were
cancelled and instead hearing was set in November, 1995.
24. On August 15, 1995 at 7:00 A.M., I went to his office to get an order for
the referral of the specimen signatures of Rowena Chua to the NBI. Again,
he kissed me and touched me. I could not refuse for fear of retaliation.
25. I could see that Judge Paterno H. Lustre is deliberately delaying the
prosecution of our cases to prolong his abusive acts towards me. As can be
seen from the transcript of the hearings, he is not leaning in our favor. What
we are asking only is for the continuous setting of the trial because we cannot
afford a long drawn out proceedings. But instead, he is delaying the trial. He
has even shown hostility towards my husband when he was testifying and
towards my lawyer, allegedly because he was jealous.
26. This kind of judge gives the judiciary a bad name. There must be a stop
to this evil doings. I am not the only victim of Judge Lustre. I know at least
two (2) other women who are similarly situated are being used and abused
by him. But they do not want to complain because of fear and the possible
consequence to their cases. As for me, I am emboldened by disgust and
frustration. I now seek the intervention of the Honorable Supreme Court to
give justice to the victims and rid the judiciary of the likes of Judge Paterno
H. Lustre.
27. I know the shame I have to bear but I have to expose the wrong doings
of a judge who is supposed to uphold the law and morality. But instead, he
preys on hapless and those who are not learned in law as his victims.
28. What I have narrated here are true, which I would never have revealed
were it not for my better sense of judgment. I know I made a mistake by
becoming a willing victim. But I did it for my family as I thought that is the only
way I can help my husband get back his money for our future.[3]
Apart from the letter and the sworn statement, complainant also sent the
Court 11 photographs showing her and respondent together in various
places. Five of these were allegedly taken at the Riverview Resort in
Calamba, Laguna. She also submitted a receipt issued by said resort dated
June 23, 1995 and two transcripts of phone conversations she had with
respondent.[4]
Respondents defense is anchored on denial. In a 2nd Indorsement[5] he sent
to the Court, by way of answer to the complaint, he strongly denie(d)[6] the
charges leveled against him and dismissed them as the vile products of
(complainant's) malicious and prejudiced mind.[7] According to him,
complainant and her common-law husband thought of filing charges against
him when he refused to bend to, and accommodate, (their) haughty and
arrogant demands to hastily schedule, try continuously, finish and decide
arbitrarily within a very short period of time[8] the B.P. 22 (Bouncing Checks
Law) cases filed by complainants husband. The complaint was, according to
respondent, likewise prompted by respondents refusal to accept
complainants offer to reward him with five percent of the P3.5 million her
husband seeks to recover.
Respondent claimed that he could not have been in his chambers as early
as 7:00 in the morning as alleged by complainant since he usually arrives for
work some five to ten minutes before 8:00 in the morning. Moreover, he said
the door to his room is never locked -- thus, the impossibility of him engaging
PINEDAPCGRNMAN
in illicit sexual conduct within its confines -- since the only comfort room in
the courtroom is inside his room and anyone who wants to use it may enter
his room freely.
Respondent further pointed out that at age 67, with a heart ailment and
diabetes, (s)ex is beyond (his) physical capacity.[9] He said he is no longer
capable of what ordinary men indulge in, lest (he) die in the attempt.[10] He
sought the dismissal of the complaint filed against him.
In support of his claims, respondent submitted the following documentary
evidence: (1) affidavit executed by Rodelio A. Alcaraz, a utility worker, stating
that respondent usually arrives at the office at 7:45 in the morning; (2)affidavit
executed by Atty. Benjamin A. Alonzo, Sr., a private practitioner based in
Calamba, attesting to respondents fine work ethics and moral uprightness;
and (3) certification from Dr. Elmer S. Sayoc stating that respondent is being
treated for coronary artery diseases, atrial fibrillation, and diabetes
mellitus.[11]
In response to respondents averments, complainant alleged that respondent
had set their meetings at 7:00 in the morning since he knew that nobody from
his staff reported for work that early. She said respondent was very particular
about the time she left his office, which must be before 7:30 in the morning.
As for respondents health condition, complainant pointed out that, indeed, he
did not engage in sexual intercourse with her but only engaged in foreplay and
asked her to perform oral sex on him; and while diabetes might have
diminished respondents sexual urge, it did not totally erase the same.[12]
In a resolution dated January 17, 1996, this Court resolved to refer the matter
to Judge Norberto Geraldez, Executive Judge, Regional Trial Court,
Calamba, Laguna, for investigation, report and recommendation. In the same
resolution, respondent was directed to inhibit himself from hearing the B.P.
22 cases filed by complainants husband.
On January 8, 1997, Judge Geraldez requested that he be allowed to inhibit
himself from hearing the case because complainant raised the matter of his
friendship with respondent.[13]The Court, however, in a Resolution dated
June 9, 1997, denied his request and directed him to resolve the case with
dispatch.[14]
In his report dated October 6, 1997, Judge Geraldez recommended dismissal
of the complaint against respondent since complainant failed to establish his
guilt beyond reasonable doubt.
Judge Geraldez observed that:
In the B.P. 22 cases pending before Judge Lustre, Jose Zafra was never
assured that he could recover the amount of P3.5 million even if the sexual
demands were satisfied. Jose Zafra and Ms. Liwanag were aware of this.
Consequently, it is surprising why the complainant, no matter how desperate
she may have been, would submit to oral sex. And, why Jose Zafra allowed
it.
The B.P. 22 cases are simply not classic cases where the courts decision
would be so vital, that the judge can demand his price.
There is a rather large disparity in the value of the B.P. 22 cases vis-a-vis the
seriousness and mess of the sexual demand. Ms. Liwanags allegations are
beyond comprehension. It borders on the very credibility of the sexual
allegations. This is specially true with respect to the allegations of oral sex
with its blood secretions. And, according to her she did it more than once. If
indeed there were blood secretions the first time, the claim of a second time
is beyond relief (sic).
Page 396
Ms. Liwanag claimed that Judge Lustre, on August 15, 1995, simply kissed
and touched her. But human nature would demand another oral sex as they
LEGAL ETHICS
had done before. Moreover, in her complaint dated September 19, 1995, Ms.
Liwanag failed to advance any reason why they stopped at oral sex.[15]
Judge Geraldez concluded that the evidence presented by complainant is
not credible in itself.
Moreover, Judge Geraldez pointed out that complainant merely relied on the
photographs showing her and respondent together, which, however, do not
establish the acts complained of.Despite having the opportunity to do so,
according to the report, complainant failed to testify to substantiate her
claims, thereby depriving respondent of his right to cross-examine her.
Judge Geraldez recommended that the complaint be dismissed for lack of
evidence.
The Court thereafter referred the case to the Office of the Court Administrator
(OCA) for evaluation, report, and recommendation.
The OCA, in its Memorandum dated September 1, 1998, took a position
directly opposite that of Judge Geraldez.
The OCA noted that:
xxx we cannot help discerning here an effort to gloss over a charge against
respondent which the investigating judge himself admitted to be serious. His
investigative work and his subsequent report reveal a perfunctory treatment
and analysis of the submissions of the parties, particularly the complainant
herein, and an egregious misapplication of the law and jurisprudence.
xxx
We find credible the allegations of complainant Lualhati M. Liwanag. Her
narration bears the earmarks of truth, for the incidents giving rise to the acts
complained of are so finely etched by her as to preclude any suspicion of wild
imagining or other similar fictive handiwork. It is an essential baring of rage,
revulsion and disgust: xxx
The OCA recommended that the case be formally docketed as an
administrative complaint and that respondent be dismissed from the service
with forfeiture of all retirement benefits and with prejudice to reemployment
in any branch of the government, including government-owned and -
controlled corporations.
Clearly, we have to review the records of this case for a comprehensive view
of the entire controversy. Moreover, it is essential to lay stress on basic
canons of conduct applicable to judges, in whatever level of the judicial
hierarchy they may be.
As a rule, proof beyond reasonable doubt is not necessary in deciding
administrative cases. Only substantial evidence is required,[16] as clearly
provided for under Rule 133 of the Revised Rules of Evidence:[17]
Sec 5. Substantial evidence. -- In cases filed before administrative or quasi-
judicial bodies, a fact may be deemed established if it is supported by
substantial evidence, or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion.
Given this requirement, we find that there is enough evidence on record to
sufficiently establish complainants case against respondent.
The photographs submitted by complainant to this Court show her and
respondent in various places. The first two show them talking beside an outlet
of Andoks Litson Manok, another shows respondents car parked by a
PINEDAPCGRNMAN
sidewalk, its front passenger door open. The car is seen leaving in the next
photograph. In the next two photographs, the car is seen in the driveway of
what appears to be one of a row of rooms. On top of this rooms doorway is
the letter "D". Next are five photographs which show complainant and
respondent coming out of the room together and heading towards
respondents parked car. [18]
Complainant claims that the photographs were taken when respondent took
her to the Riverview Resort in Calamba, Laguna.
In a Manifestation dated September 2, 1996, respondent pointed out that
nothing indecent is portrayed in the photographs. They did not show any act
constituting immorality or grave misconduct. He denied that the pictures
showing him and complainant leaving a room together were taken at the
Riverview Resort. He added that the receipt issued by the resort did not
indicate that he was with complainant at said resort.
Respondent took his own set of photographs at the Riverview Resort.[19] On
the basis of his own pictures, he concluded that complainants photographs
could not have been taken at that resort. When he testified on his behalf, he
said:
" when I went to the place those letters were not there, I have photographs
there because I personally went there to have these photographs but this
(sic) sign boards were not there, sir."[20]
A sign prohibiting vandalism, noticeable in complainant's pictures, was
missing in respondents pictures.
Respondent avers that the real intention of complainant in filing the complaint
-- which she has denied -- is to extort money from him as she allegedly made
an outrageous demand[21]for P3.5 million to settle the case.
We are not convinced, however, that respondents conduct in this case is
entirely blameless, nor that complainants alleged intent would excuse
respondents wrongdoing.
It is true that the pictures do not show respondent and complainant actually
engaging in any form of sexual congress. However, this is understandable
since by their very nature, such acts are not proper subjects of photographs.
Often, as in this case, what is available to us is only the narration of the
parties involved.
Respondent denies that the photographs were taken at Riverview. He took
pictures of the resort himself to prove his contention. He said his pictures are
different from those of complainants.
We note, however, that respondent does not deny that he is the one
appearing with complainant in the photographs. He conveniently testified that
somebody else had posed for the photograph,[22] but this is obviously an
afterthought. Respondent made this assertion almost a year after
complainant filed her complaint. He could have done it as early as October
1995 in his comment to complainants charges.
If the pictures were not taken at Riverview, where were they taken and why
was respondent with complainant at that time? If, indeed, there was a
legitimate reason for complainant and respondent to be seen together at the
time and place depicted in the photographs, respondent would have wasted
no time explaining where they were taken and under what circumstances, in
order to extricate himself from his present predicament. This, he failed to do.
The reason for this, we believe, is that he could not simply offer any plausible
explanation why he was seen with complainant coming out of what is
apparently a private room.
Page 397
LEGAL ETHICS
Respondent claims that the charges hurled against him are products of
complainants vindictiveness. Again, this claim raises more questions than it
answers. It opens the door to undue speculation. Thus, why should she
resent his actions? Was it only because of repeated postponements of the
hearing of her cases?
Complainant may have harbored ill feelings towards respondent due to the
unjustifiable delays in the hearing of their B.P. 22 cases. But would she
falsely accuse respondent with sexual molestation only to get back at him?
This goes against the grain of human nature and therefore unlikely. She should
know that by revealing her sexual misadventures with respondent,
graphically describing each and every detail, she would only be exposing
herself and her family to shame and ridicule. She would stand to gain nothing
from the exercise, save the hope that her dignity may somehow be vindicated
in the process.
As for complainants failure to testify on her own behalf, this is of no moment.
Complainants affidavit stands in lieu of her testimony; the investigating judge
even had her re-subscribe and re-affirm her sworn statement and let the
same be adopted as part of complainants evidence.[23]
Complainant could have been cross-examined based on her affidavit. That
she was not cross-examined by respondent is not her fault but respondents.
As the records now stand, we are constrained to agree with the Court
Administrators assessment that respondent has failed to live up to the high
standard of conduct required of members of the bench. He grossly violated
his duty to uphold the integrity of the judiciary and to avoid impropriety not
only in his public but in his private life as well.[24] All to the grave prejudice of
the administration of justice, indeed.
The Court cannot countenance any act or omission, on the part of the officials
at every level in the administration of justice, which erodes rather than
enhances the publics faith and trust in the judiciary. Respondents disgraceful
conduct surely merits sanctions even if he has already retired as of
November 1, 1998.[25] For the serious misconduct of respondent, the penalty
provided for in Rule 140, Section 10, of the Rules of Court, by way of fine in
the maximum amount should be imposed.[26]
We are not in accord with the OCAs recommendation, however, as regards
forfeiture of all retirement benefits due respondent. We note that
implementation of this penalty, while directed at respondent, might adversely
affect innocent members of his family, who are dependent on him and his
retirement gratuity. It is our considered view that, given the circumstances of
this case, the maximum fine of P40,000.00 would be sufficient penalty.
WHEREFORE, in view of the foregoing, we hereby find respondent GUILTY
of gross misconduct. As he has already retired from the service and thus could
no longer be dismissed nor suspended, we hereby order that a FINE of
P40,000.00 be imposed upon him, to be deducted from his retirement
benefits. Further, he is hereby barred from any employment in all branches
of the government including government-owned and -controlled
corporations.
SO ORDERED.
4.03 SEC. 3. Judges shall, in their personal relations with individual
members of the legal profession who practice regularly in their court,
avoid situations which might reasonably give rise to the suspicion or
appearance of favoritism or partiality.
G.R. No. 89591-96 August 13, 1990
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
PINEDAPCGRNMAN
THE HON. BONIFACIO SANZ MACEDA, Presiding Judge of Branch 12,
Regional Trial Court of Antique, and AVELINO T. JAVELLANA,
respondents.
The Solicitor General for petitioner.
PADILLA, J.:
In the morning of 11 February 1986, the late ex-Governor of Antique, Evelio
Javier, was gunned down in the plaza of San Jose, Antique.
Immediately thereafter, the authorities conducted an investigation, and as a
result thereof, a complaint against John Paloy and Vicente Vegafria was filed
with the Office of the Provincial Prosecutor.
During the preliminary investigation, private respondent Avelino T. Javellana
appeared as counsel for John Paloy and Vicente Vegafria, until Federico
Carluto, Jr., executed an affidavit, 1 dated 16 June 1986, and Evelyn Magare
and Fritz Xavier their sworn statements, 2 dated 19 February 1986 and 7
March 1986, respectively, implicating private respondent in the killing of the
late Evelio Javier.
On 29 October 1986, the then Senior State Prosecutor Tirso D.C. Velasco,
now RTC Judge of Quezon City, filed with the RTC of Antique, six (6)
separate informations, 3 all dated 13 October 1986, charging private
respondent Avelino T. Javellana together with John Paloy, Vicente Vegafria,
Eduardo Iran alias "Boy Muslim", alias "Muklo" Rudolfo
Pacificador Alias "Ding", Arturo F. Pacificador and several John Does, with
the crime of murder, frustrated murder and for four (4) counts of attempted
murder. 4
Meanwhile, on 23 September 1986 and 27 October 1986, Romeo Nagales
and Jose Delumen executed their respective sworn statements, 5 admitting
their participation in the kiling of Evelio Javier, and implicating other persons
in the commission of the crime.
On the basis of their sworn statements, the prosecution, through Senior State
Prosecutor Aurelio C. Trampe, amended the aforesaid informations by
including therein the following persons as accused, namely: Ramon
Hortillano alias "Ramie", Henry Salaber alias "Henry", Eleazar Edemne
alias "Toto", Arleen Limoso alias "Arleen", Romeo Nagales alias
"Reming", Rolando C. Bernardino alias Lando Jose De Lumen alias "Marlon",
Jose Delumen alias "Winfield", Oscar Tianzon alias "Oca", alias "Nono",
alias Akong alias "Nonoy", alias "Tatang" andalias "Dolfo". 6
On motion of Senior State Prosecutor Aurelio C. Trampe, the said criminal
cases were consolidated in Branch 12 of the RTC of Antique, presided over
by respondent Judge.
Of the nineteen (19) accused, only six (6) had been apprehended and/or
surrendered, namely: John Paloy, Vicente Vegafria Rolando Bernardino,
Jesus Garcia y Amorsolo alias "Nono Picoy" Jose Delumen alias "Winfield"
and Romeo Nagales alias "Reming". All the others were at large, including
herein private respondent Avelino Javellana. 7 Hence, trial proceeded only as
against the said six (6) accused.
On 9 May 1989, the prosecution moved to discharge the accused Jose
Delumen and Romeo Nagales, claiming that their testimonies were
absolutely necessary against accused Rolando Bernardino as well as the
other accused, including private respondent who was then at-large.
Page 398
On 11 May 1989, the court a quo granted the motion to discharge Romeo
Nagales but denied it as regards Jose Delumen, the latter having admitted a
prior conviction for the crime of robbery.
LEGAL ETHICS
However, despite the discharge of Rome Nagales, the prosecution rested its
case without presenting him his state witness and reserved its right to present
him as a witness against the other accused who were then at-large.
On 12 May 1989, private respondent was arrested by the Constabulary
Security Group (CSG) in Parañaque, Metro Manila. On 15 May 1989, the
Integrated Bar of the Philippines (IBP), Iloilo Chapter, through its President,
Atty. J.T. Barrera, enterred its appearance as counsel for private respondent
with a motion that the IBP, Iloilo Chapter be allowed to as assume custody of
the private respondent as his jailer and/or in the alternative, to confine him at
the Military Stockade at Camp Delgado and/or at the Iloilo Provincial Jail. 8
When private respondent was brought before the trial court on 7 June 1989,
Atty. J.T. Barrera manifested and moved that his motion of 15 May 1989 be
heard. During the hearing, Assistant Provincial Prosecutor John Turalba
opposed the motion. The issue was heatedly argued by the prosecution and
the defense. Whereupon, private respondent pleaded that he be allowed to
approach the bench together with all the counsel, which respondent Judge
reluctantly granted. Private respondent informed the court that there exists a
real and grave danger to his life if he were to be confined in the Antique
Provincial Jail. He then narrated an incident when he, as the then counsel for
John Paloy and Vicente Vegafria prior to his inclusion as one of the
respondents, was refused the right to visit and confer with his clients by a
drunk jail guard at the Antique Provincial Jail; that the said guard was toying
with his armalite rifle while standing at the gate of the provincial jail and did
not allow him to enter; that said guard aimed and pointed his armalite rifle
twice at him; and that because of his complaint, the guard was suspended
but has long been back on duty of the provincial jail. After hearing the
narration, Assistant Provincial Prosecutor John Turalba withdrew his
objection. 9
Hence, on the same date, 7 June 1989, respondent Judge issued an order,
10 the pertinent part of which reads:
. . . , without jurisdiction on the part of Prosecutor John Turalba, accused
Javellana is hereby ordered confined at PC, Stockade, Bugante Point San
Jose, Antique in the custody of the PC/INP Provincial Commander who is
directed to take charge of the custody of said accused and to bring him back
to court whenever required.
On 2 August 1989, the Provincial Commander, Col. Teodulo Abayata wrote
respondent Judge:
I am in receipt of instruction from CPC to turn over Atty. Avelino Javellana to
the Provincial Jail effective immediately and for me to give feedback NLT
today 2 August 1989.
Since his custody under the Provincial Commander was through the order of
that Honorable Court, request that another order be issued for me to be able
to comply (sic) the instructions from my superior officers. 11
On the same date, 2 August 1989, respondent Judge issued an order
12 granting the request of Col. Abayata, and ordered the private respondent
to be confined as a detention prisoner at the Binirayan Rehabilitation Center,
San Jose, Antique, subject to the conditions set forth therein.
Upon receipt of the order on the same day, private respondent filed an urgent
ex-parte motion for reconsideration, 13 alleging that the Binirayan
Rehabilitation Center, aside from being a little bit far and unsafe, has
conditions which may not work well for his health; that he underwent
retrograde operation less than a year ago and up to the present he is still
taking medication for maintenance; that he has a history of heart treatment
and very often he takes maintenance pills and he is confronted by his
unstable blood presure; that the location of the rehabilitation center and the
absence of facilities there may cause adverse effects on his health condition;
PINEDAPCGRNMAN
and praying that he be confined in the Provincial Jail of Iloilo where he can
be nearer to better hospital facilities.
When the aforesaid motion for private respondent was called for hearing in
the afternoon of 2 August 1989, respondent Judge required the presence of
Assistant Provincial Prosecutor John Turalba. The latter appeared and
reiterated the earlier objection of the Senior State Prosecutor to the
confinement of private respondent in any place other than the Provincial Jail
of Antique.
After the hearing, respondent Judge issued an order, 14 reconsidering and
setting aside the earlier order, and directed that —
. . . the accused, should in the meantime, be committed to the Angel Salazar
Memorial Hospital and subjected to a physical check-up at the expense of
the accused Javellana. The head of the said hospital is directed to submit his
report soonest on the physical condition of accused Javellana.
Meantime, while the check-up is being undertaken, the Station Commander
of San Jose, Antique is directed to take custody and provide adequate
security for accused Javellana in order to prevent his escape and to continue
such custody until further orders from the court. . . .
On 3 August 1989, the head of the hospital issued a certification on the result
of the physical check-up conducted on private respondent, thus:
As per order of your Honor, dated August 2, 1989, Atty. Avelino T. Javellana
was examined by Dr. Felipe Rosendo Muzones and his ECG examination
showed that everything is within normal limits. However, Dr. Muzones
contends that the same is not the only determinant factor as far as the
condition of the heart is concerned. Hence, he recommends that blood
chemistry examination is necessary. We are sad to inform your Honor that
we do not have necessary chemicals for this type of examination at present.
15
In view of the aforesaid certification, the private respondent filed on the same
day an Urgent Ex-Parte Motion, 16praying that he be allowed further medical
examination at the Iloilo Mission Hospital in Iloilo City under at least two (2)
police escorts. When the motion was called in open court in the afternoon,
the private respondent and the Assistant Provincial Prosecutor appeared,
and both argued for and against the motion. Thereafter, the respondent
Judge issued an order, 17 the pertinent part of which reads, as follows:
It is the considered view of the Court that whether the blood chemistry
examination is necessary or not, the fact still remains that the examination
conducted on the heart of movant is incomplete and the court will not leave
to chance the condition of the heart of movant who stands charged of a
serious crime in these cases. The Court believes that the best interest of
justice may be served should the accused be given time to be subjected to a
more complete and exhaustive physical examination particularly his heart
condition, especially considering the information given in open court by
movant that his brother died at a tender age of thirty-three (33) of coronary
thrombosis and their family has a history of heart ailment and according to
specialist doctor, movant himself is prone to coronary thrombosis.
xxx xxx xxx
WHEREFORE, in view of all the foregoing, the Station Commander of San
Jose, Antique is hereby directed to assign two (2) guards to whom custody
of movant Javellana is entrusted by the Court to escort the movant Avelino
Javellana to Iloilo Mission Hospital, Iloilo City for a complete medical check-
up, particularly on the heart of Mr. Javellana. . . .
Page 399
However, before private respondent and his two (2) police escorts could
leave for Iloilo City, P/Col. Magsinpoc, Station Commander of San Jose,
LEGAL ETHICS
Antique, verbally conveyed to respondent Judge an "unforseen emergency"
necessitating the "response of all personnel of his Command" and requesting
authority to recall the police escorts. In view thereof, respondent Judge was
constrained to issue on the same day, 3 August 1989, another order,
18granting the request of the Station Commander, and directed the Provincial
Probation Officer of Antique to take custody of private respondent and to
escort him to Iloilo City for medical check-up and bring him back to court not
later than 8:30 A.M. on Monday, 7 August 1989. Thus, the Provincial Probation
Officer brought the private respondent to the Iloilo Mission Hospital and left
him there for a 3-day medical check-up, and thereafter brought him back to
court at 8:30 o'clock in the morning of 7 August 1989.
When the cases were called in the morning of 7 August 1989, Attys. Amelia
K. del Rosario, Arturo Alinio and J.T. Barrera entered their appearance as
counsel for private respondent, and argued that the custody of private
respondent be entrusted to the IBP, Iloilo Chapter, headed by Atty. J.T.
Barrera. However, Senior State Prosecutor Aurelio C. Trampe moved that
the resolution of the incident be held in abeyance until the hearing, in the
afternoon.
On the other hand, Atty. Jose A. Alegario entered his appearance as counsel
for the then recently arrested accused Oscar Tianzon, who manifested that
his client was ready for arraignment. Accordingly, the said accused was
arraigned. He pleaded "not guilty."
Thereafter, the respondent Judge issued an order, 19 terminating the custody
of the Provincial Probation Officer, and, in the meantime, gave the custody
of private respondent to his lawyers, as officers of the court, ordering the
confinement of accused Oscar Tianzon with the Antique Provincial Jail
Warden and setting the continuation of the hearing to 8 August 1989.
After the hearing in the afternoon, the respondent Judge issued another
order, 20 deputizing private respondent's lawyers as deputies of the court and
ordered the confinement of private respondent at the San Jose residence of
Atty. Deogracias del Rosario, who happened to be the Clerk of Court of the
RTC of Antique.
On 8 August 1989, respondent Judge issued an order, 21 terminating the
deputization of private respondent's lawyers and ordered them to turn over
the custody of private respondent to the Clerk of Court and Ex- Oficio
Provincial Sheriff of the RTC of Antique, Atty. Deogracias del Rosario,
directing the latter to hold and detain private respondent in his residence at
San Jose, Antique and not to allow him liberty to roam around but to hold him
as a detention prisoner thereat.
Meanwhile, on 21 June 1989, Atty. J.T. Barrera filed a motion for admission
to bail on behalf of private respondent. 22 On 4 July 1989, Senior State
Prosecutor Aurelio Trampe filed his opposition 23 thereto, alleging that private
respondent was charged with the crime of murder, frustrated murder and
attempted murders and that the evidence of guilt is strong; hence, he is not
entitled to bail as a matter of right.
On 26 June 1989, private respondent was arraigned, and thereafter, private
respondent's petition for bail was set for hearing on 7, 11 and 28 August 1989
to 1 September 1989, as agreed upon by the prosecution and the defense.
24
On 7 August 1989, Senior State Prosecutor Aurelio C. Trampe filed a motion
25 dated 3 August 1989 to discharge accused Oscar Tianzon to be utilized as
a state witness, alleging that there is an absolute necessity for his testimony
against all the accused; that there is no other direct evidence available for
the proper prosecution of the offenses except the testimony of said accused,
which can be substantially corroborated in its material points by other
evidence; that the accused Tianzon does not appear to be the most guilty
among the accused, as he acted merely as a lookout and did not actually
participate in the assassination of the deceased Evelio Javier, and that he
has not been previously convicted of any offense involving moral
PINEDAPCGRNMAN
turpitude. The hearing of the motion was set on 9 August 1989 at 2:00 o'clock
in the afternoon.
The scheduled hearing on the aforesaid motion of the prosecution was,
however, cancelled and the hearing thereof was reset to 23 August 1989.
At the hearing on 23 August 1989, the prosecution adduced its evidence in
support of the motion; however, respondent Judge deferred the resolution of
the motion. Thereupon, the prosecution moved that the presentation of its
evidence in opposition to private respondent's petition for bail, which was set
for hearing on 28 August 1989 and 1 September 1989, be likewise deferred
on the ground that accused Oscar Tianzon is a material witness against
private respondent and that his testimony is necessary for the purpose of
determining private respondent's qualification for bail, i.e., whether the
evidence of guilt is strong.
On 28 August 1989, petitioner filed the instant petition for CERTIORARI, to
annul and set aside the orders dated 3, 7 and 8 August 1989, claiming that
said orders were issued with grave abuse of discretion and PROHIBITION to
enjoin the respondent Judge from hearing private respondent's petition for
bail until he has resolved the motion to discharge accused Oscar Tianzon,
and praying that a writ of preliminary injunction and/or temporary restraining
order be issued.
As prayed for, the Court issued on 31 August 1989 a temporary restraining
order, 26 ordering the respondent Judge to cease and desist from continuing
the hearing on respondent-accused Avelino Javellana's petition for bail until
after the respondent Judge has resolved the motion to discharge Oscar
Tianzon as state witness.
When private respondent's petition for bail was heard on 28 August 1989,
respondent Judge was apprised of the filing of the petition before this Court;
hence, the hearing was reset to 1 September 1989.
At the afternoon hearing on 1 September 1989, the prosecution furnished
respondent Judge and the defense, copies of the restraining order issued by
this Court. The respondent Judge, however, advised the parties that the
motion to discharge accused Oscar Tianzon has already been resolved in
the morning and that copies of the resolution would be available at any time
then. 27 Thereafter, respondent Judge released the resolution, 28 dated 1
September 1989, denying the prosecution's motion to discharge accused
Oscar Tianzon to be utilized as a state witness. He ruled, among others, as
follows:
The court searched the records for evidence to corroborate the material
points in the aforesaid testimony of Tianzon against Javellana but found none
to corroborate his statement pointing to Javellana as the gun supplier and
the plotter. Neither has the prosecution presented evidence during the
hearing to determine Tianzon's qualification tending to corroborate the
implication of Javellana nor did the prosecution indicate to the court where
such corroboration can be found by the court.
On the contrary, the court notes a clash of the statements of Tianzon in the
question and answer No. 45 of his affidavit with the testimonies of the
previous witnesses for the prosecution because question and answer No. 45
specifies the names of the passengers of the two (2) nissan jeeps but the
same does not mention either accused John Paloy or Vicente Vegafria as
one of the passengers of the same jeeps while the testimonies of previous
witnesses for the prosecution proclaim that they (Paloy and Vegafria) were
among the passengers of the such jeeps who alighted therefrom at the Plaza
where the late Governor Evelio Javier was killed.
Not only that. The court finds no absolute necessity to date of Tianzon's
Page 400
testimony because the court earlier on May 11, 1989 dis charged accused
Romeo Nagales on motion of the Prosecutor to be utilized as a state witness.
But, instead of utilizing Nagales as a state witness, as promised by the
LEGAL ETHICS
Prosecutor, the prosecution did not present him up to this writing but
proceeded to formally offer its evidence and thereafter rested its case.
What is more, when the prosecution asked for the discharge of state witness
Nagales, it assured the court that:
That in the instant cases, there is an absolute necessity for the testimonies
of accused Jose Delumen and Romeo Nagales as against accused Arturo
Pacificador, Rodolfo Pacificador, Avelino Javellana, Eduardo Iran, Ramon
Hortillano, Henry Salaver, Arlene Limoso, Rolando Bernardino, Oscar
Tianzon, Eleazar Edemne alias "Nono", Alias Akong
and Alias Tatang, Alias Dolfo, as shown in their sworn statements, copies
hereto attached as Annexes "A" and "B" and form part hereof;
That there is no other direct evidence available for the proper prosecution of
the offenses committed by the accused named in the next preceding
paragraph except the testimonies of said Delumen and Nagales which can
be substantially corroborated in its material points by other evidence.
But neither did the prosecutor use state witness Nagales against accused
Rolando Bernardino nor did the prosecution use his testimony against Jose
Delumen and Jesus Garcia. Consequently, there being no evidence against
accused Delumen and Garcia, on motion of their respective counsel, the
cases against these two (2) accused were dismissed.
These situation disturbs, let alone alarms, the court in the conduct of the
prosecution in these cases. The failure of the prosecution to adduce any
evidence against Delumen and Garcia appears to lend credence to the
charge of accused Javellana that the prosecution in these cases has adopted
a "scandalous dual theory of the prosecution."
Upon receipt of the resolution, the prosecution through Senior State
Prosecutor Aurelio C. Trampe, immediately filed a motion to inhibit 29 the
respondent Judge, dated 24 August 1989, on the ground of manifest partiality
to private respondent, and set it for hearing on 16 October 1989. Thereupon,
the prosecution moved to defer the presentation of its evidence in opposition
to private respondent's petition for bail. Despite the opposition of the
prosecution, the respondent Judge reset the hearing on 14, 15 September
1989 to 4, 5 and 6 October 1989.
Afterwards, the prosecution filed a motion for reconsideration 30 of the order
of 1 September 1989 which denied the prosecution's motion to discharge
accused Oscar Tianzon.
On 4 September 1989, the Senior State Prosecutor also filed a motion 31 to
reset the hearings on 14, 15 September 1989 and 4, 5, 6 October 1989 on
the petition for bail, on the grounds that the motion to inhibit should first be
resolved and also because of the pendency of the motion for reconsideration
of the order of 1 September 1989.
At the hearing on 14 September 1989, only Assistant Provincial Prosecutor
John Turalba appeared for the prosecution. He manifested that he was
appearing only to reiterate the Senior State Prosecutor's motion for
deferment of the scheduled hearings on private respondent's petition for bail.
Private respondent opposed the motion. The respondent Judge denied the
motion, and directed the prosecution to present its evidence in opposition to
the private respondent's petition for bail. The Assistant Provincial Prosecutor
moved for reconsideration, claiming that his position is subservient to that of
the Senior State Prosecutor who is the duly designated principal prosecutor
and as a matter of conviction, he cannot proceed with the trial as well as with
the subsequent trials which were covered by the motion of 4 September
1989, and that, moreover, to proceed would render moot and academic the
petition for certiorari before this Court. Respondent Judge denied the motion
for reconsideration, and, again, directed the prosecution to present its
evidence. At this juncture, the Assistant Provincial Prosecutor manifested
PINEDAPCGRNMAN
that he was not participating in the proceedings and begged to be allowed to
leave the courtroom, which the respondent Judge refused.
Nevertheless, Assistant Provincial Prosecutor John Turalba walked out and,
while walking towards the door, respondent Judge ordered the Sheriff to
arrest him. Thereafter, respondent Judge issued an order finding Assistant
Provincial Prosecutor John Turalba in contempt of court; declaring the
prosecution to have waived its right to present evidence in opposition to
private respondent's petition for bail; and considering the said petition for bail
submitted for resolution. 32 The respondent Judge imposed upon the
Assistant Provincial Prosecutor the penalty of ten (10) days imprisonment. 33
Hence, the petitioner filed with this Court a Supplemental Petition to annul
and set aside the orders of 1 September 1989 as well as the order of 14
September 1989; and to inhibit respondent Judge from further taking
cognizance of Criminal Cases Nos. 3350 to 3355; and praying that a writ of
preliminary mandatory injunction be issued directing respondent Judge to
promptly order the release of Assistant Provincial Prosecutor John Turalba
from custody on the cognizance of the Provincial Prosecutor.
As prayed for, the Court issued on 22 September 1989 a writ of preliminary
mandatory injunction. 34 However, when the respondent Judge received it on
26 September 1989, Assistant Provincial Prosecutor John Turalba had
already been released on 25 September 1989 having served his sentence.
Petitioner contends that the respondent Judge committed a grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the following
orders, to wit:
(a) the order of 3 August 1989, placing custody of private respondent with
the Antique Provincial Probation Officer;
(b) the order of 7 August 1989, transferring the custody of private respondent
to his own lawyers;
(c) the Order of 8 August 1989, entrusting the custody of private respondent
with the Clerk of Court and ex-oficioProvincial Sheriff, Deogracias del
Rosario; and
(d) the Order of 1 September 1989, which denied the prosecution's motion to
discharge Oscar Tianzon to be utilized as a state witness.
Petitioner further contends that respondent Judge committed a grave abuse
of discretion amounting to lack or excess of jurisdiction when he insisted on
continuously hearing private respondent's petition for bail and in ordering the
arrest and commitment of Assistant Provincial Prosecutor John Turalba in
the Provincial Jail.
It has been repeatedly held that there is grave abuse of discretion justifying
the issuance of a writ of certiorariwhere there is a capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction; where the power
is exercised in an arbitrary or despotic manner by reason of passion,
prejudice, or personal hostility amounting to an evasion of positive duty or to
a virtual refusal to perform the duty enjoined, or to act at all in contemplation
of law. 35
In claiming that respondent Judge committed grave abuse of discretion in
issuing the orders of 3 August 1989, 7 August 1989 and 8 August 1989,
petitioner argues that there was no compelling reason for the respondent
Judge to order, with undue haste, the medical "check up" of private
respondent at the Iloilo Mission Center notwithstanding the absence of any
police escort or other law enforcer to ensure that private respondent would
Page 401
not take flight as he had previously done; that while all the other accused
were confined in the Provincial Jail of Antique, the respondent Judge merely
"entrusted" the custody of private respondent to his lawyers, and then to the
LEGAL ETHICS
Clerk of Court of the RTC of Antique, who is the son of one of private
respondent's lawyers; and that respondent Judge has not advanced a valid
and legal rationale for the "accommodations" afforded private respondent
who, in law, occupies no better position and no preferential rights over those
of his co-accused.
The respondent Judge, however, has, to our mind, sufficiently explained in
the order of 7 August 1989 the reasons behind the issuance of the aforesaid
orders. He said:
The Court is aware of certain reasons why accused Javellana should not be
placed in the Provincial Jail. This was the subject of a discussion in open
court before the Presiding Judge of this court between the lawyers of
Javellana and Javellana, himself and Asst. Provincial Prosecutor John I-C.
Turalba who, after hearing the particular reason given by Javellana withdrew
his opposition to the placing of Javellana other than in the Provincial Jail of
Antique and acceded that custody of Javellana be placed at the hands of the
Provincial Commander of Antique.
Recently, particulary on August 2, 1989 as well as on August 3, 1989, the
court had difficulty in securing the safety of accused Javellana. The court was
left with no other choice but to entrust his custody to the Provincial Probation
Officer to escort him to Iloilo City for a medical check-up. It is the perception
of the court that there are movements going ground, by whom is unknown
yet to the court, to compel the incarceration of accused Javellana in the
Provincial Jail. The court abhors this situation and the court will not be
intimidated by anyone. It is the perception of this court that even its lawful
orders have somehow been subverted. The court's perception of the
circumstances presently obtaining on the custody and place of detention of
Javellana is a hot agenda and of grave importance, particularly his safety and
well being during detention in order that the court can try him on the charges
against him.
After serious deliberation, it is the considered view of the court that his
detention be placed somewhere else. The court hereby appoints Attys. Del
Rosario, Barrera and Alinio as deputies of the court and as such to take
custody of accused Javellana meantime that the motion to fix bail is going on
and for them to bring the accused to court whenever his presence is needed.
As earlier noted, the court perceives a movement to compel detention of the
accused in the Provincial Jail of Antique. This disturbs the court. This even
lends credence to the information by Javellana that there is indeed danger to
his life if he is placed in the Provincial Jail of Antique. This perception of the
court is premised on what appears to be a subversion of the order of the court
placing custody of accused Javellana with the Provincial Commander of
Antique. The court, however, allowed, on motion of the Provincial
Commander, that Javellana be transferred to the Binirayan Rehabilitation
Center. But, on motion of Javellana for reasons of health, as the same center
is too far away and no adequate (sic) transport facilities at certain time of the
day and night are available to convey accused should an emergency occur,
accused was ordered confined at the Angel Salazar Memorial Hospital in San
Jose, Antique for check-up. Because of the incomplete results of the
examination, order was issued for his complete check-up in a hospital in
Iloilo. The court ordered the Station Commander of San Jose, Antique to
provide police escorts and security to prevent escape of accused in
conducting check-up. Before the accused and his escorts could depart, on
August 3, 1989 for Iloilo City, the INP Station Commander of San Jose
begged the Presiding Judge of this Court to allow him to recall the security
personnel he has assigned and ordered to conduct accused Javellana to
Iloilo City. It left the court with no choice and no enforcers. The court,
however, had to be assured on the physical condition of accused Javellana
that he will be able to face trial against him. Accordingly, the court ordered
the Provincial Probation Officer, to whom the custody of accused Javellana
was entrusted, to escort the latter to Iloilo City for the medical check-up. The
Probation Officer earlier this morning manifested that there was opportunity
for accused Javellana to escape but despite such opportunity he came back
to court today to face the trial against him. This, to the mind of the court is to
be considered in his favor.
PINEDAPCGRNMAN
The aforesaid movements directed to compel the court to place Javellana in
the Provincial Jail, is (sic) to the mind of the court, as (sic) indication that
should (sic) be place there, something may happen to him and this court will
not allow that thing to happen. And as it is the considered view of the court
that justice maybe better served to deputize, as the lawyers of accused
Javellana have been deputized, as deputies of the court. As such they are
now drawn from the status of private individuals but are now the deputies of
the court. In the matter of facilities, accused Javellana is to be confined at the
San Jose residence of Atty. Deogracias Del Rosario, the son of Atty. Amelia
del Rosario who happens to be the Clerk of Court of the Regional Trial Court
of Antique.
There may be truth to the Prosecutor's contention that there will be nothing
to prevent the other accused from following suit in asking that their custody
likewise (sic) be transferred to their respective lawyers.
But, such is only to request. The grant or denial thereof is a matter altogether
different.
In the present incident it is the findings (sic) of the court that indeed the life
of Javellana will be imperilled if confined elsewhere other than the place
above directed.
Considering the foregoing, the Court finds and so holds that respondent
Judge did not commit grave abuse of discretion, i.e., that he did not act
"arbitrarily", "capriciously" or "despotically" amounting to lack or excess of
jurisdiction in issuing the questioned orders of 3, 7 and 8 August 1989.
Coming now to the 1 September 1989 order of respondent Judge, denying
the prosecution's motion to discharge accused Oscar Tianzon, the Court
reiterates the rule that, for a writ of certiorari to issue, it must not only be
shown that the board, tribunal or officer acted without jurisdiction, or with
grave abuse of discretion, but also that there is no appeal or other plain,
speedy and adequate remedy in the ordinary course of law. 36 Thus, before
filing a petition for certiorari in a higher court, the attention of the lower court
should generally be first called to its supposed error and its correction should
be sought. The reason for the rule is that issues which the lower courts are
bound to decide should not summarily be taken from them and submitted to
an appellate court without first giving such lower courts the opportunity to
dispose of the same with due deliberation. 37 In other words, all available
remedies in the lower court must first be exhausted before filing a petition for
certiorari in the higher courts.
In the case at bar, the petitioner had filed a motion for reconsideration of the
order of 1 September 1989 which is still pending resolution by respondent
Judge. A petition for certiorari may not be granted where there is an appeal
or other adequate remedy, like a motion for reconsideration, which is still
pending in the court below, 38 as in the present case.
The Court, however, holds that respondent Judge committed grave abuse of
discretion amounting to lack or excess of jurisdiction when he insisted in
continuously hearing private respondent's petition for bail and in ordering the
arrest and commitment of the Assistant Provincial Prosecutor.
It is well to recall that in the restraining order issued on 31 August 1989, this
Court ordered the respondent Judge to cease and desist from continuing the
hearing on private respondent's petition for bail until after he had resolved
the motion for discharge of Oscar Tianzon as state witness. Although the
aforesaid motion had already been denied in the order of 1 September 1989,
nevertheless, the prosecution had filed a motion to reconsider the said order
which is still pending resolution. Hence, the said motion has not yet been
resolved with finality. When respondent Judge, therefore, denied the
prosecution's motion for deferment of the scheduled hearings on private
respondent's petition for bail and in proceeding to hear the said motion, by
Page 402
ordering the prosecution to present its evidence — which precipitated the
walk-out of the Assistant Provincial Prosecutor and his consequent arrest
and commitment to the Provincial Jail — he (respondent judge) was acting
LEGAL ETHICS
in violation of the restraining order issued by this Court. Had the respondent
Judge granted the prosecution's motion for deferment, or at least, cancelled
the hearings on 14 and 15 September 1989, and instead, resolved the
prosecution's motion for reconsideration of the order of 1 September 1989,
this unfortunate incident could have been avoided.
Although the matter of adjournment and postponement of trials is within the
sound discretion of the court, such discretion should always be predicated
on the consideration that more than the mere convenience of the courts or of
the parties in the case, the ends of justice and fairness should be served
thereby. 39 After all, postponements and continuances are part and parcel of
our procedural system of dispensing justice. 40
Besides, contempt of court presupposes a contumacious attitude, a flouting
or arrogant belligerence, a defiance of the court. 41 And, while courts are
inherently empowered to punish for contempt to the end that they may
enforce their authority, preserve their integrity, maintain their dignity, and
insure the effectiveness of the administration of justice, 42nevertheless, such
power should be exercised on the preservative and not on the vindictive
principle, for the power to punish for contempt, being drastic and
extraordinary in its nature, should not be resorted to unless necessary in the
interest of justicen 43
A perusal of the transcript of the hearing held on 14 September 1989 shows
that Assistant Provincial Prosecutor John Turalba had not made any
statement that could be considered as "contumacious" or an affront to the
dignity of the court. And, while the act of Assistant Provincial Prosecutor
Turalba of "walking out" does not meet our approval — as he should have
stayed after the respondent Judge had denied his motion for permission to
leave the courtroom — yet, the respondent Judge, in ordering the
incarceration of Assistant Provincial Prosecutor Turalba, acted beyond the
permissible limits of his power to punish for contempt.
And now to the question on whether or not respondent Judge should be
disqualified from further hearing Crim. Cases Nos. 3350-3355, Section 1,
Rule 137 of the Rules of Court provides:
SECTION 1. Disqualification of judges.— No judge or judicial officer shall sit
in any case in which he, or his wife or child, is pecuniarily interested as heir,
legatee, creditor or otherwise, or in which he is related to either party within
the sixth degree of consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the civil law, or in which he has
been executor, administrator, guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or decision is the subject of
review, without the written consent of all parties in interest, signed by them
and entered upon the records.
A judge, may in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those mentioned above.
In the case at bar, the reason relied upon for the inhibition or disqualification
of respondent Judge, i.e. manifest partiality to private respondent, is not
based on any of the grounds enumerated in the first paragraph of Section 1,
Rule 137 which per se disqualifies a judge from sitting in a case, but on the
second paragraph thereof. The settled rule is that the judge is left to decide
for himself whether he will desist, for just or valid reasons, from sitting in a
case. Respondent Judge has not as yet decided whether or not he will inhibit
himself from further hearing Criminal Cases Nos. 3350-3355 in the face of
the prosecution's motion to disqualify or inhibit him. It would be premature for
the Court at this stage to rule on the matter.
WHEREFORE, the petition for certiorari is GRANTED insofar as the order of
14 September 1989 is concerned, and the said order is hereby ANNULLED
and SET ASIDE. Without costs.
SO ORDERED.
PINEDAPCGRNMAN
4.04 SEC. 4. Judges shall not participate in the determination of a case
in which any member of their family represents a litigant or is
associated in any manner with the case.
[A.M. No. RTJ-89-380 : December 19, 1990.]
192 SCRA 434
EFREN JAVIER and PEDRO JAVIER, Complainants, vs. JUDGE
SALVADOR P. DE GUZMAN, JR., Respondent.
DECISION
PER CURIAM:
Disbarment proceedings on the ground of "dishonorable conduct" were
instituted on 8 August 1989 before the Committee on Bar Discipline of the
Integrated Bar by complainants Efren Javier (son) and Pedro Javier (father)
against respondent Salvador P. de Guzman, Jr., as a member of the Bar and
as Presiding Judge of the Regional Trial Court, Makati, Metro Manila.
However, pursuant to Supreme Court Circular No. 3-89, dated 9 February
1989, requiring that complaints filed in the IBP against Justices and Judges
of the lower Courts be promptly referred to the Supreme Court for appropriate
action, the Complaint was eventually transmitted to this Court.
After the Comment by Respondent Judge and the Reply by Complainants
were filed, the Court referred the case to Mme. Justice Lorna L. de la Fuente
of the Court of Appeals for investigation, report and recommendation.
The Report and Recommendation was submitted to the Court on 20
September 1990.: nad
Complainants allege that, on 7 December 1987, Efren Javier, and his mother,
Lolita Javier, borrowed P200,000.00 from Respondent Judge with interest
orally agreed upon at ten per cent (10%) monthly. They tendered to the latter
UCPB Check No. BNE 012872, dated 7 January 1988, in the amount of
P220,000.00. The drawer of the check was actually Donato Belen, a brother-
in-law of Efren, as the Javiers had no personal checking account. The
following day, Respondent required them to sign a Memorandum of
Agreement, which they did. Two of the conditions imposed were interest at
the rate of twenty per cent (20%) per month, compounded monthly, and
should they fail to pay the loan and its interest upon maturity on 7 January
1988 and the check is deposited and dishonored, an appropriate charge for
violation of Batas Pambansa Blg. 22 may be filed at Respondent's option.
When the Javiers defaulted on due date because of business reverses,
partial payments in the total amount of P177,000.00 were made to
Respondent between 6 January 1988 and 16 June 1988. Meanwhile, the
check, which was deposited by Respondent on 14 April 1988, was
dishonored by the drawee bank.
On 8 September 1988, Respondent instituted suit for a "Sum of Money and
Damages with Prayer for the Issuance of a Writ of Preliminary Attachment"
in the Regional Trial Court of Makati, Metro Manila, against the spouses
Pedro and Lolita Javier, and their son, Efren, for the recovery of the "sum of
P220,000.00 with 20% interest/penalty a month compounded monthly from
January 7, 1988 until fully paid," computed at P622,871.67 (Annex B,
Complaint). Judgment on the pleadings was rendered on 3 February 1989
ordering the Javiers to pay Respondent Judge the "sum of P608,871.67 with
20% interest/penalty a month compounded monthly beginning September 8,
1988 until fully paid" and the "sum equal to 10% of the amounts due and
recoverable as reimbursement of attorney's fees and litigation expenses"
(Order, RTC Rollo, p. 107). In the meantime, an Order granting execution
pending appeal was issued by the Trial Court on 14 April 1989 (Ibid., pp. 216-
Page 403
217). The Javiers appealed to the Court of Appeals where the case still
pends.
LEGAL ETHICS
Still later, Respondent filed in Manila two (2) criminal complaints, the first, for
violation of B.P. Blg. 22 against Efren, who, however, was acquitted, and the
second, for Estafa against Complainants and Lolita Javier, which complaint
was dismissed (Rollo, p. 194).
On 21 March 1989, Respondent further filed an administrative charge against
Complainant father, Pedro, with the Bureau of Internal Revenue where the
latter was employed. Earlier, an administrative charge against Pedro had
also been filed with the Civil Service Commission on 3 March 1989 accusing
Pedro in both instances, of having committed estafa against him and his wife,
of dishonesty and of conduct unbecoming of a government official.
Feeling harassed, Complainants filed this administrative charge against
Respondent Judge on four counts of "dishonorable conduct," as follows:
1. Respondent had loaned money to Complainants at usurious interest as
can be gleaned from the fact that after receiving P177,000.00 in installments,
he still seeks to recover the amount of P622,817.67;
2. Respondent took advantage of his position as Regional Trial Court Judge
of Makati, Metro Manila, by filing a collection case against Complainants and
Lolita Javier before the same Court and making false and fraudulent
manifestations that Complainants had failed to pay any amount as of 8
September 1988;
3. Respondent resorted to harassment by filing a criminal complaint for
violation of B.P. Blg. 22 against Complainant, Efren, despite knowledge that
the latter was not the drawer of the UCPB check; and
4. Respondent failed to reveal the true facts of the case, in violation of Articles
182 and 183 of the Revised Penal Code penalizing "False testimony," when
he filed the administrative charges with the Bureau of Internal Revenue and
the Civil Service Commission against Complainant Pedro notwithstanding
knowledge of the fact that Pedro was not involved in the transaction in
question.: nad
In his Comment, Respondent denied that he lent any money to the Javiers
alleging that it was his wife who had asked her first cousin, Mrs. Hedy Laca,
to make available the amount of P200,000.00. The real lender, therefore, was
the latter. When the Javiers failed to repay the loan, they were compelled to
pay back the amount to Mrs. Laca. Respondent, therefore, became the
creditor of the Javiers "by force of circumstances."
Respondent also stressed that the rate of interest of twenty per cent (20%)
per month, compounded monthly, was not usurious for the reason that said
rate was designed more as a penalty in order to force the Javiers to pay back
the loan as soon as possible. He contends that under the circumstances, the
filing of several complaints against the Javiers was the more "civilized thing
to do." And as to the filing of the case in Makati, he reasons out that it was
upon prior consultation with the Executive Judge.
With regard to the administrative charges, which he had filed against
Complainant Pedro, Respondent maintains that the latter was not really an
innocent party to the whole transaction, but the "prime mover."
With "dishonorable conduct" defined by the Investigating Justice and by the
parties as conduct not in keeping with any of the rules embodied in the Code
of Professional Responsibility for lawyers and the Code of Judicial Ethics,
Justice de la Fuente concluded that there were valid grounds to sustain the
first three (3) charges, for the commission of which Respondent Judge was
recommended to be reprimanded, with warning of a severer penalty in case
of repetition. The fourth charge was recommended to be dismissed (Report,
p. 4).
PINEDAPCGRNMAN
Anent the first charge, that is, whether or not Respondent was, in fact, the
lender and had charged a usurious rate of interest, the Investigating Justice
found that Respondent's disclaimer cannot prevail over the Agreement
between the parties, which clearly point to the Respondent as the lender. He
is mentioned in said Agreement as the "Third Party," the "First Party" being
Lolita Javier, and the "Second Party" being Efren. The UCPB postdated
check was also made out in Respondent's name. The foregoing refutes
Respondent's contention that he became the lender only "by force of
circumstances" after the Javiers had failed to repay their indebtedness.
Further, it was Respondent who made collections on the loan and it was to
him that payments were made. Additionally, it was Respondent who filed the
civil case for collection of the loan as well as the administrative cases against
complainant Pedro.
As to the usurious rate of interest, while that issue was considered by Justice
de la Fuente as irrelevant since the Usury Law is now legally inexistent
pursuant to Central Bank Circular No. 905 and the interest now legally
chargeable depends upon the agreement of lender and borrower (Liam Law
v. Olympic Sawmill Co., G.R. No. L-30771, May 28, 1984, 129 SCRA 439),
she found that the interest charged on the loan was exorbitant. To quote:
"The Memorandum of Agreement (pls. see fifth whereas clause) stipulates
that for the period from December 7, 1987, when the sum of P200,000.00
was lent to the Javiers, to December 22, 1987, on which date the loan fell
due with extension up to January 7, 1988' — or for a period of from 15 to 30
days — the interest shall be `at the rate of Ten Percent (10%) for the period
of time', in other words, the interest rate is 10% a month. This explains why
the postdated check required under the Agreement to be issued by Efren
Javier to respondent is for P220,000.00, the additional P20,000.00 being the
amount earned on the sum of P200,000.00 over a period of, at most, 30 days.
Then, as further stipulated in the Agreement (par. 2), if the loan and interest
due thereon shall not have been paid by January 7, 1988, the Javiers shall
pay to respondent 'a sum equal to Twenty Percent (20%) a month
compounded monthly over the initial principal plus the initial interest on the
total sum of P220,000.00, until the full amount is paid.' The result of this
stipulation is that despite the fact, established by the evidence and admitted
by respondent, that as of June 16, 1988 the total payments made by the
Javiers on the loan of P200,000.00 had amounted to P177,000.00 — or only
P23,000.00 short of P200,000.00, the amount originally invested by
respondent — he sought to collect in his suit filed in September 1988 against
the Javiers — the relatively and staggeringly huge amount of P622,871.67
(pls. see Motion for Judgment on the Pleadings, CC No. 88-1872, Annex C
to Complaint, p. 12 Record). The foregoing figures speak for themselves;
they show clearly the exorbitance and shocking harshness of the imposition
in question.- nad
Nor can such unconscionability be excused on the ground, as respondent
interposes, that the 20% interest compounded monthly is intended not as
interest but as penalty. However it may be termed, the fact remains that the
said amount is being collected by respondent as a charge for the use of his
money by the Javiers, and this charge is blatantly out of proportion to the
amount of the money which respondent loaned to the Javiers."
Our review of the evidence shows that the foregoing conclusions are
warranted.
As to the second charge — that Respondent took advantage of his position
as Makati Regional Trial Court Judge by filing the collection case against
Complainants in said Court — we quote with approval Justice de la Fuente's
observations thereon:
". . . The civil case was filed by respondent with the Makati RTC on
September 8, 1988; and respondent admits that he was 'detailed indefinitely
to Branch 142 of the same Court on June 30, 1988 and assumed office
thereat on July 5, 1988.' Instead of filing the suit in Quezon City where the
Page 404
Javiers reside or in Manila where respondent resides, respondent — taking
advantage of what he calls the waiver of venue stipulation in the
LEGAL ETHICS
Memorandum of Agreement (which states that 'in case of litigation, venue
shall be in any court in Metro Manila, at the option of the Third Party,' i.e., the
respondent) — chose to file the case in Makati.
"True, considering the abovecited stipulation, it might be said that respondent
was acting in the legal exercise of the option granted to him in the Agreement.
Nonetheless, the undersigned submits that in thus acting, respondent had
fallen short of what is expected of him as a Judge and officer of the court
among whose duties it is to see to it that public confidence in the honor,
dignity, integrity and independence of the judiciary is not eroded, pursuant to
Canons 3 and 25 of the Canons of Judicial Ethics, supra. It is reasonably to
be expected, considering the peculiar Filipino psyche, personality and culture
— of which a Judge like respondent is presumably aware — that the public,
particularly respondent's adversary in this case, would naturally be
apprehensive that respondent might exert influence to favor himself, to the
detriment of his said adversary. And so it turned out, this was precisely the
substance of complainant's second charge. Indeed, instead of promoting
public confidence in the dignity, honor, integrity and independence of the
Judiciary, as every Judge is urged to do by the Canons just cited,
respondent's aforesaid behavior produced the opposite result."
The third charge concerns Respondent's alleged act of harassment in
continuing with the criminal prosecution of complainant, Efren, for violation of
Batas Pambansa Blg. 22 despite his having been informed that Efren was
not the owner and drawer of the check, and, therefore, is not the proper
person to be charged. On this score, the Investigating Justice found, and with
which we agree:
". . . Even discounting the weight of complainant's said evidence, it bears
emphasis that while the case was shall under investigation before the Fiscal's
Office, respondent had, as he himself admits, already been informed that it
was not Efren Javier who had signed the postdated check. Thus, it was,
under the aforecited Canons, respondent's bounden duty — as a Judge
whose personal behavior should at all times, even in his everyday life, be
beyond reproach so as to promote public confidence in the dignity, honor,
integrity, and independence of the judiciary (Canon 3, supra), who should
endeavor always to prevent the erosion of such public confidence 'by
irresponsible or improper conduct' — to disregard his personal animosity
towards the Javiers and to see to the forthright dismissal of the case. He
failed to comply with this duty when he instead saw to the continuation of the
prosecution of the case until it reached the Regional Trial Court and up to its
termination thereat (with the acquittal of Efren)."
The fourth charge — that of having filed with the BIR and the Civil Service
Commission administrative charges against Complainant Pedro,
notwithstanding Respondent's knowledge of the fact that Pedro had no
participation whatsoever in the loan transaction in question — was found by
Justice de la Fuente to be unsubstantiated. We find no reason to differ.
". . . It is true that it appears from the Memorandum of Agreement that Pedro
Javier is not a party nor a signatory thereof; nonetheless, it also appears that
his wife Lolita Javier is that 'First Party,' and his son Efren Javier is the
'Second Party' thereof. There was reason for respondent to believe that
Pedro Javier was not an 'innocent' party and had in reality a 'behind-the-
scenes' participation in the transaction. For as respondent believably relates
it, Pedro Javier 'was the prime mover who, on December 5, 1987 invited
respondent and Mrs. de Guzman for dinner and wanted the respondent to
join in the venture.' Besides, in view of the closeness of 'the Filipino family
ties which usually extend to financial matters, similarly, while it was
respondent himself who had been expressly named the 'Third Party' in the
loan agreement, it was respondent's wife who, although not at all mentioned
as a party to the same Agreement, took it upon herself to locate the funds
with which to finance the loan given to the Javiers. And considering that
respondent had the feeling, groundless or not, that the Javiers had, so to
speak, put one over on the de Guzmans when the former did not pay to
respondent the amount which he wished to collect on the loan, respondent
naturally felt aggrieved or wronged by Pedro Javier, and this he undoubtedly
thought could be righted by the filing of the administrative charges against
PINEDAPCGRNMAN
him (Pedro Javier). As the undersigned sees it, this — and not malice or a
desire to harass — is the motivation for respondent's filing of said charges."
Except for the act complained of in the last charge, Respondent Judge's
actuations, indeed, show reproachable and improper conduct. He denied that
he was the lender when, in fact, he was, as concluded by Justice de la
Fuente.
While he had every right to protect his investment, and while the contract of
loan entered into between him and the Javiers was legal per se, Respondent
rendered it unconscionable by imposing a penalty of twenty per cent (20%)
interest per month compounded monthly. It strikes us, too, that Respondent
was equivocal as to the repayments that were made to him by the Javiers. In
his Verified Complaint before the Trial Court, he averred failure to repay
(Annex B, Complaint). However, in the computation attached to his Motion
for Judgment on the Pleadings (Annex C, ibid.), he made mention of "alleged
payments being accepted by (him) at face value" and included them in the
determination of the balance due.
Respondent also brought suit to collect the staggering sum of P622,871.67
despite payments by the debtors of approximately P177,000.00 of the
original P200,000.00 loan. Although not illegal under the terms of the
Memorandum of Agreement, as in fact, the Trial Court had ruled in
Respondent's favor, it does not necessarily follow that it was moral and fair.
Respondent is not a hard-boiled and callous businessman. He is a Judge.
A Judge's official conduct should be free from the appearance of impropriety,
and his personal behavior, not only upon the bench and in the performance
of judicial duties, but also in his everyday life, should be beyond reproach
(Canons of Judicial Ethics, Canon 3, which was applicable at the time of the
transaction in 1987; emphasis supplied). This was reiterated in the Code of
Judicial Conduct, Canon 2 and Rule 2.01, which provides that a Judge should
so behave at all times as to promote public confidence in the integrity and
impartiality of the Judiciary.
This is premised on the truism that a Judge's official life cannot simply be
detached or separated from his personal existence and that upon a Judge's
attributes depend the public perception of the Judiciary. Thus:
"Public confidence in the Judiciary is eroded by irresponsible or improper
conduct of judges. A judge must avoid all impropriety and the appearance
thereof. Being the subject of constant public scrutiny, a judge should freely
and willingly accept restrictions on conduct that might be viewed as
burdensome by the ordinary citizen.chanrobles virtual law library
A judge should personify judicial integrity and exemplify honest public
service. The personal behavior of a judge, both in the performance of official
duties and in private life should be above suspicion." (Commentaries on
Canon, 2.01)
So exacting are the standards of judicial department that a Judge is even
enjoined from making investments in any enterprise that is likely to be
involved in litigation.
"A judge shall refrain from financial and business dealings that tend to reflect
adversely on the court's impartiality, interfere with the proper performance of
judicial activities, or increase involvement with lawyers or persons likely to
come before the Court. A judge should so manage investments and other
financial interests as to minimize the number of cases giving grounds for
disqualification" cralaw (Code of Judicial Conduct, Rule 5.02)
The rationale for the rule applies with equal vigor in this case.
Page 405
While Respondent Judge may have had reasons of convenience for filing his
collection suit in Makati where he sits as one of the Trial Judges, a sense of
LEGAL ETHICS
propriety should have impelled him to desist. In the eyes of the public, it
arouses suspicion, rightly or wrongly, that advantage is being taken of one's
position and that a Judge's adversary is sure to get a raw deal. As it turned
out, Respondent Judge, in his official stationery, upbraided the Sheriff who
enforced the Writ of Preliminary Attachment for not having taken into custody
all the items he had levied upon and "asked" him to do so "within forty eight
hours" (Exhibit J, Complaint, Rollo, p. 44). In this regard, Respondent had
exposed the Bench to possible charges of exertion of undue pressure and
influence.
The continued prosecution of the criminal charge for violation of Batas
Pambansa Blg. 22 against Complainant Efren, despite subsequent
knowledge that the latter was not the drawer of the check but his brother-in-
law, although Efren had filled out the check himself, again exhibits
reproachable conduct. Respondent could have moved for the dismissal of
the case, considering his professional responsibility not to encourage, for any
motive or interest, any suit or proceeding (Rule 1.03, Code of Professional
Responsibility).
His explanation that the making and the issuance of a check without sufficient
funds constitute separate offenses so that he could proceed even against
Efren, exhibits "splitting of hairs" and a misuse of Court processes in order to
promote one's own interests. As it was, the criminal charge was dismissed.
All told, traces of animosity and harassment on the part of Respondent Judge
are all too evident, in sharp contrast to what a Judge should — be the
embodiment of what is judicious, proper and fair.: nad
WHEREFORE, finding Respondent Judge, Salvador P. de Guzman, Jr. guilty
on three (3) counts, of irresponsible, improper and dishonorable conduct in
disregard of the Code of Judicial Ethics, he is hereby SEVERELY
CENSURED, with a stern warning that a repetition of the said acts or similar
acts in the future shall receive graver sanctions.
Let this Decision be spread upon the personal records of Respondent Judge.
4.05 SEC. 5. Judges shall not allow the use of their residence by a
member of the legal profession to receive clients of the latter or of other
members of the legal profession.
4.06 SEC. 6. Judges, like any other citizen, are entitled to freedom of
expression, belief, association and assembly, but in exercising such
rights, they shall always conduct themselves in such a manner as to
preserve the dignity of the judicial office and the impartiality and
independence of the judiciary.
A.M. No. RTJ-99-1460 March 31, 2006
OFFICE OF THE COURT ADMINISTRATOR, Petitioner,
vs.
JUDGE FLORENTINO V. FLORO, JR., Respondent.
x -------------------------- x
A.M. No. 99-7-273-RTC March 31, 2006
Re: RESOLUTION DATED 11 MAY 1999 OF JUDGE FLORENTINO V.
FLORO, JR.
x -------------------------- x
A.M. No. RTJ-06-1988 March 31, 2006
(Formerly A.M. OCA IPI No. 99-812-RTJ)
PINEDAPCGRNMAN
LUZ ARRIEGO, Petitioner,
vs.
JUDGE FLORENTINO V. FLORO, JR., Respondent.
DECISION
CHICO-NAZARIO, J.:
"Equity does not demand that its suitors shall have led blameless
lives." Justice Brandeis, Loughran v. Loughran 1
THE CASES
The First Case: A.M. No. RTJ-99-1460 (Office of the Court Administrator
v. Judge Florentino V. Floro, Jr.)
It was in 1995 that Atty. Florentino V. Floro, Jr. first applied for judgeship. A
pre-requisite psychological evaluation on him then by the Supreme Court
Clinic Services (SC Clinic) revealed "(e)vidence of ego disintegration" and
"developing psychotic process." Judge Floro later voluntarily withdrew his
application. In June 1998, when he applied anew, the required psychological
evaluation exposed problems with self-esteem, mood swings, confusion,
social/interpersonal deficits, paranoid ideations, suspiciousness, and
perceptual distortions. Both 1995 and 1998 reports concluded that Atty. Floro
was unfit to be a judge.
Because of his impressive academic background, however, the Judicial and
Bar Council (JBC) allowed Atty. Floro to seek a second opinion from private
practitioners. The second opinion appeared favorable thus paving the way to
Atty. Floro’s appointment as Regional Trial Court (RTC) Judge of Branch 73,
Malabon City, on 4 November 1998.
Upon Judge Floro’s personal request, an audit on his sala was conducted by
the Office of the Court Administrator (OCA) from 2 to 3 March 1999.2
After conducting the audit, the audit team, led by Atty. Mary Jane Dacarra-
Buenaventura, reported its findings to erstwhile Court Administrator, Alfredo
L. Benipayo, who submitted his own report/memorandum 3 to then Chief
Justice Hilario G. Davide, Jr. dated 13 July 1999 recommending, among
other things, that his report be considered as an administrative complaint
against Judge Floro and that Judge Floro be subjected to an appropriate
psychological or mental examination. Court Administrator Benipayo
recommended as well that Judge Floro be placed under preventive
suspension for the duration of the investigation against him.
In a Resolution4 dated 20 July 1999, the Court en banc adopted the
recommendations of the OCA, docketing the complaint as A.M. No. RTJ-99-
1460, in view of the commission of the following acts or omissions as reported
by the audit team:
(a) The act of circulating calling cards containing self-laudatory statements
regarding qualifications and for announcing in open court during court
session his qualification in violation of Canon 2, Rule 2.02, Canons of Judicial
Conduct;
(b) For allowing the use of his chambers as sleeping quarters;
(c) For rendering resolutions without written orders in violation of Rule 36,
Section 1, 1997 Rules of Procedures;
(d) For his alleged partiality in criminal cases where he declares that he is
Page 406
pro-accused which is contrary to Canon 2, Rule 2.01, Canons of Judicial
Conduct;
LEGAL ETHICS
(e) For appearing and signing pleadings in Civil Case No. 46-M-98 pending
before Regional Trial Court, Branch 83, Malolos, Bulacan in violation of
Canon 5, Rule 5.07, Canons of Judicial Conduct which prohibits a judge from
engaging in the private practice of law;
(f) For appearing in personal cases without prior authority from the Supreme
Court and without filing the corresponding applications for leaves of absence
on the scheduled dates of hearing;
(g) For proceeding with the hearing on the Motion for Release on
Recognizance filed by the accused without the presence of the trial
prosecutor and propounding questions in the form of examination of the
custodian of the accused;
(h) For using/taking advantage of his moral ascendancy to settle and
eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in
the guise of settling the civil aspect of the case, by persuading the private
complainant and the accused to sign the settlement even without the
presence of the trial prosecutor;
(i) For motu proprio and over the strong objection of the trial prosecutor,
ordering the mental and physical examination of the accused based on the
ground that the accused is "mahina ang pick-up";
(j) For issuing an Order on 8 March 1999 which varies from that which he
issued in open court in Criminal Case No. 20385-MN, for frustrated homicide;
(k) For violation of Canon 1, Rule 1.01 Code of Judicial Conduct when he
openly criticized the Rules of Court and the Philippine justice system;
(l) For the use of highly improper and intemperate language during court
proceedings;
(m) For violation of Circular No. 135 dated 1 July 1987.
Per the same resolution of the Court, the matter was referred to Retired Court
of Appeals Justice Pedro Ramirez (consultant, OCA) for investigation, report
and recommendation within 60 days from receipt. Judge Floro was directed
to comment within ten days from receipt of the resolution and to subject
himself to an appropriate psychological or mental examination to be
conducted "by the proper office of the Supreme Court or any duly authorized
medical and/or mental institution." In the same breath, the Court resolved to
place Judge Floro under preventive suspension "for the duration of the
investigation of the administrative charges against him." He was barely eight
months into his position.
On 20 August 1999, Judge Floro submitted a Verified Comment where he
set forth both affirmative and negative defenses6 while he filed his
"Answer/Compliance" on 26 August 1999.
On 3 March 2000, Judge Floro moved for the provisional/final dismissal of
his case for failure to prosecute.7However, on 21 March 2000, he presented
himself as his first witness in the hearing conducted by Justice Ramirez.8
Subsequently, on 7 July 2000, Judge Floro filed a "Petition for
Inhibition/Disqualification" against Justice Ramirez as investigator9 which
was denied by Justice Ramirez in an Order dated 11 July 2000. 10 Judge
Floro’s motion for reconsideration 11 suffered the same fate. 12 On 27 July
2000, Judge Floro submitted the question of Justice Ramirez’s
inhibition/disqualification to this Court. 13 On 8 August 2000, the Court ruled
against the inhibition of Justice Ramirez. 13
On 11 September 2000, the OCA, after having been ordered by the Court to
comment on Judge Floro’s motion to dismiss, 15 recommended that the same
should be denied.
PINEDAPCGRNMAN
Judge Floro presented his last witness on 6 March 2001. 16 The day after,
Justice Ramirez came out with a "Partial Report" recommending the
dismissal of Judge Floro from office "by reason of insanity which renders him
incapable and unfit to perform the duties and functions of Judge of the
Regional Trial Court, National Capital Judicial Region, Malabon, Metro
Manila, Branch 73." 17
In the meantime, throughout the investigation of the 13 charges against him
and even after Justice Ramirez came out with his report and
recommendation on 7 March 2001, Judge Floro had been indiscriminately
filing cases against those he perceived to have connived to boot him out of
office.
A list of the cases Judge Floro filed in the wake of his 20 July 1999 preventive
suspension follows:
1. OCA IPI No. 00-07-OCA – against Atty. Mary Jane Dacarra-Buenaventura,
Team Leader, Judicial Audit Team, Office of the Court Administrator 18
2. OCA IPI No. 00-933-RTJ – against Judge Benjamin Aquino, Jr., Regional
Trial Court, Branch 72, Malabon City 19
3. AC No. 5286 – against Court Administrator Alfredo L. Benipayo and Judge
Benjamin Aquino, Jr.20
4. AC No. CBD-00-740 – against Thelma C. Bahia, Court Management
Office, Atty. Mary Jane Dacarra-Buenaventura, Atty. II, Court Management
Office, both of the Office of the Court Administrator and Atty. Esmeralda G.
Dizon, Branch Clerk of Court, Branch 73, Malabon21
5. AC No. 6282 (CPL No. C-02-0278) – against former Court Administrator
Justice Alfredo L. Benipayo and (Ret.) Justice Pedro A. Ramirez, Consultant,
Office of the Court Administrator22
6. A.M. No. 03-8-03-0 – against (Ret.) Justice Pedro A. Ramirez23
7. A.C. No. 6050 – against (Ret.) Justice Pedro A. Ramirez24
On 1 February 2006, Judge Floro moved that the cases he filed, now totaling
seven, be dismissed.25 On 14 February 2006, the Court granted the motion
to dismiss.26
The Second Case: A.M. No. RTJ-06-1988(Luz Arriego v. Judge Florentino
V. Floro, Jr.)
This charge is likewise the subject matter of charge "h" in A.M. No. RTJ-99-
1460: "(f)or using/taking advantage of his moral ascendancy to settle and
eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in
the guise of settling the civil aspect of the case, by persuading the private
complainant and the accused to sign the settlement even without the
presence of the trial prosecutor." The complainant Luz Arriego is the mother
of the private complainant in Criminal Case No. 20385-MN.
On 28 June 2001, Arriego testified, while court stenographer Jocelyn
Japitenga testified on 16 July 2001. On 31 July 2001, Arriego filed her Formal
Offer of Evidence which was opposed by Judge Floro on 21 August 2001.
On 5 September 2001, Judge Floro testified on his behalf while Atty. Galang
testified against him on 4 October 2001. On 16 October 2001, Judge Floro
filed a Memorandum in this case.27
Page 407
The Third Case: A.M. No. 99-7-273-RTC (Re: Resolution Dated 11 May 1999
of Judge Florentino V. Floro, Jr.)
LEGAL ETHICS
As can be gathered from the title, this case concerns a resolution issued by
Judge Floro on 11 May 1999 in Special Proceeding Case No. 315-MN "In
Re: Petition To Be Admitted A Citizen Of The Philippines, Mary Ng Nei,
Petitioner." The resolution disposed of the motions for voluntary inhibition of
Judge Floro and the reconsideration of the order denying the petition for
naturalization filed by petitioner in that case, Mary Ng Nei.
This resolution found its way to the OCA through a letter written by Atty. David
S. Narvasa, the petitioner’s counsel.28 The OCA, through Court Administrator
Benipayo, made the following evaluation:
In the subject resolution, Judge Floro, Jr. denied the motion for inhibition and
declared it as null and void. However, he ordered the raffling of the case
anew (not re-raffle due to inhibition) so that the petitioner, Mary Ng Nei, will
have a chance to have the case be assigned to other judges through an
impartial raffle.
When Judge Floro, Jr. denied the motion for inhibition, he should have
continued hearing and taking cognizance of the case. It is improper for him
to order the raffle of the case "anew" as this violates Administrative Circular
No. 1 (Implementation of Sec. 12, Art. XVIII of the 1987 Constitution) dated
January 28, 1988 which provides to wit:
"8. Raffle of Cases:
xxxx
8.3 Special raffles should not be permitted except on verified application of
the interested party who seeks issuance of a provisional remedy and only
upon a finding by the Executive Judge that unless the special raffle is
conducted, irreparable damage shall be suffered by the applicant. The
special raffle shall be conducted by at least two judges in a multiple-sala
station.
x x x x"
Based on the foregoing, a judge may not motu proprio order the special raffle
of a case since such is only allowed upon a verified application of the
interested party seeking a provisional remedy and only upon the Executive
Judge’s finding that if a special raffle is not conducted, the applicant will suffer
irreparable damage. Therefore, Judge Floro, Jr.’s order is contrary to the
above-mentioned Administrative Circular.
Moreover, it is highly inappropriate for Judge Floro, Jr. to even mention in his
resolution that Justice Regino C. Hermosisima, Jr. is his benefactor in his
nomination for judgeship. It is not unusual to hear a judge who speaks highly
of a "padrino" (who helped him get his position). Such remark even if made
as an expression of deep gratitude makes the judge guilty of creating a
dubious impression about his integrity and independence. Such flaunting and
expression of feelings must be suppressed by the judges concerned. A judge
shall not allow family, social, or other relationships to influence judicial
conduct or judgment (Canon 2, Rule 2.03, Code of Judicial Conduct).
The merits of the denial of the motion for inhibition and the ruling on the
motion for reconsideration are judicial matters which this Office has no
authority to review. The remedy is judicial, not administrative.29
The OCA thus recommended that Judge Floro comment on (a) his act of
ordering the raffle of the case in violation of Administrative Circular No. 1;
and (b) his remark on page 5 of the subject resolution that "Justice
Hermosisima, Jr. x x x helped undersigned so much, in the JBC, regarding
his nomination x x x."
In a Resolution dated 17 August 1999, the Court en banc adopted the
recommendations of the OCA.30 Judge Floro, through his counsel, filed his
PINEDAPCGRNMAN
Comment on 22 October 199931 which was noted by this Court on 7
December 1999. On 11 January 2000, Judge Floro filed a Formal Offer of
Evidence which this Court, in a resolution dated 25 January 2000, referred
to Justice Ramirez for inclusion in his report and recommendation.
For the record, the OCA is yet to come up with its report and recommendation
in this case as well as in the second case (i.e., A.M. No. RTJ-06-1988). Thus,
in a resolution dated 14 February 2006, the Court directed Judge Floro as
well as the other parties in these two cases to inform the Court whether or
not they are willing to submit A.M. RTJ-06-1988 and A.M. No. 99-7-273-RTC
for decision on the basis of the pleadings filed and the evidence so far
submitted by them or to have the decision in A.M. No. RTJ-99-1460 decided
ahead of the two. On 20 February 2006, the OCA, thru Court Administrator
Presbitero J. Velasco, Jr., manifested its willingness to submit A.M. No. 99-
7-273-RTC for resolution based on the pleadings and the evidence submitted
therein. Complainant Luz Arriego in A.M. No. RTJ-06-1988 likewise informed
this Court, in a Letter dated 28 February 2006, her willingness to submit her
case for decision based on the pleadings already submitted and on the
evidence previously offered and marked. On the other hand, on 3 March
2006, Judge Floro manifested his preference to have A.M. No. RTJ-99-1460
decided ahead of A.M. RTJ-06-1988 and A.M. No. 99-7-273-RTC.
In the interest of orderly administration of justice, considering that these are
consolidated cases, we resolve to render as well a consolidated decision.
But first, the ground rules: Much has been said across all fronts regarding
Judge Floro’s alleged mental illness and its effects on his duties as Judge of
a Regional Trial Court. For our part, figuring out whether Judge Floro is
indeed psychologically impaired and/or disabled as concluded by the
investigator appointed by this Court is frankly beyond our sphere of
competence, involving as it does a purely medical issue; hence, we will have
to depend on the findings of the mental health professionals who
interviewed/analyzed Judge Floro. Our job is simply to wade through the
evidence, filter out the irrelevant and the irreverent in order to determine once
and for all if Judge Floro is indeed guilty of the charges against him. If the
evidence makes out a case against Judge Floro, the next issue is to
determine the appropriate penalty to be imposed.
Finally, we will have to determine whether Judge Floro acted with an evil
mind or because of a psychological or mental incapacity. Upon the resolution
of this question hinges the applicability of equity.
As an aside, it bears pointing out that some of the charges ("c" and "g", "h"
and "j", "e" and "f") will be jointly discussed as they had likewise been jointly
discussed by the OCA. These charges involve common facts and to treat
them separately will be superfluous.
DISCUSSION
As alleged and as proven, the 13 specified charges do not warrant the
supreme penalty of dismissal against Judge Floro
(a) Re: Charge of circulating calling cards containing self-laudatory
statements regarding qualifications AND for announcing in open court during
court session his qualifications in violation of Canon 2, Rule 2.02, Canons of
Judicial Conduct
As narrated by the audit team, Judge Floro was circulating calling cards
bearing his name as the Presiding Judge of RTC, Branch 73, Malabon City,
and indicating therein that he is a "bar exams topnotcher (87.55%)" and with
"full second honors" from the Ateneo de Manila University, A.B. and LL.B.32
The audit team likewise reported that: "(b)efore the start of court session,
Judge Floro is introduced as a private law practitioner, a graduate of Ateneo
Page 408
de Manila University with second honors, and a bar topnotcher during the
1983 Bar Examinations with an average score of 87.55%. Afterwards, a
reading of the Holy Bible, particularly the Book of Revelation
LEGAL ETHICS
according to Saint John, was made. The people in the courtroom were given
the opportunity to ask Judge Floro questions on the matter read. No
questions were asked; hence the session commenced."33
Judge Floro argues that, per commentary of Justice Ruperto G. Martin,
34 "the use of professional cards containing the name of the lawyer, his title,
his office and residence is not improper" and that the word "title" should be
broad enough to include a Judge’s legal standing in the bar, his honors duly
earned or even his Law School. Moreover, other lawyers do include in their
calling cards their former/present titles/positions like President of the Jaycees,
Rotary Club, etc., so where then does one draw the line? Finally, Judge Floro
argues that his cards were not being circulated but were given merely as
tokens to close friends or by reciprocity to other callers considering that
common sense dictates that he is not allowed by law to seek other
professional employment.
As to the charge that he had been announcing in open court his qualifications,
Judge Floro counters that it was his branch clerk of court, Atty. Esmeralda
Galang-Dizon, who suggested that during his initial court session, she would
briefly announce his appointment with an introduction of his school, honors,
bar rating and law practice. Naively, Judge Floro agreed as the introduction
was done only during the first week of his assumption into office.
Canon 2, Rule 2.02 of the Code of Judicial Conduct says in no uncertain
terms that "a judge should not seek publicity for personal vainglory." A
parallel proscription, this time for lawyers in general, is found in Rule 3.01 of
the Code of Professional Responsibility: "a lawyer shall not use or permit the
use of any false, fraudulent, misleading, deceptive, undignified, self-
laudatory or unfair statement or claim regarding his qualifications or legal
services." This means that lawyers and judges alike, being limited by the
exacting standards of their profession, cannot debase the same by acting as
if ordinary merchants hawking their wares. As succinctly put by a leading
authority in legal and judicial ethics, "(i)f lawyers are prohibited from x x x
using or permitting the use of any undignified or self-laudatory statement
regarding their qualifications or legal services (Rule 3.01, Code of
Professional Responsibility), with more reasons should judges be prohibited
from seeking publicity for vanity or self-glorification. Judges are not actors or
actresses or politicians, who thrive by publicity." 35
The question, therefore, is: By including self-laudatory details in his
professional card, did Judge Floro violate Canon 2, Rule 2.02 of the Code of
Judicial Conduct?
In Ulep v. Legal Clinic, Inc., 36 we explained that the use of an ordinary and
simple professional card by lawyers is permitted and that the card "may
contain only a statement of his name, the name of the law firm which he is
connected with, address, telephone number and special branch of law
practiced." In herein case, Judge Floro’s calling cards cannot be considered
as simple and ordinary. By including therein the honors he received from his
law school with a claim of being a bar topnotcher, Judge Floro breached the
norms of simplicity and modesty required of judges.
Judge Floro insists, however, that he never circulated his cards as these
were just given by him as tokens and/or only to a few who requested the
same. 37 The investigation by Justice Ramirez into the matter reveals
otherwise. An eye-witness from the OCA categorically stated that Judge
Floro circulated these cards. 38 Worse, Judge Floro’s very own witness, a
researcher from an adjoining branch, testified that Judge Floro gave her one
of these cards. 39
As this charge involves a violation of the Code of Judicial Conduct, it should
be measured against Rule 140 of the Rules of Court as amended by A.M.
No. 01-8-10-SC being more favorable to respondent Judge Floro. Rule 140,
before its amendment, automatically classified violations of the Code of
Judicial Conduct as serious charges. As amended, a violation of the Code of
Judicial Conduct may amount to gross misconduct, which is a serious
charge, or it may amount to simple misconduct, which is a less serious
PINEDAPCGRNMAN
charge or it may simply be a case of vulgar and/or unbecoming conduct which
is a light charge.
"Misconduct" is defined as wrong or improper conduct while "gross" connotes
something "out of all measure; beyond allowance; not to be excused;
flagrant; shameful." 40 For serious misconduct to exist, the judicial act
complained of should be corrupt or inspired by an intention to violate the law
or a persistent disregard of well-known legal rules. 41
With the foregoing as yardstick, we find the act of Judge Floro in circulating
calling cards containing self-laudatory statements constitutive of simple
misconduct in violation of Canon 2, Rule 2.02 of the Code of Judicial Conduct
as it appears that Judge Floro was not motivated by any corrupt motive but,
from what we can see from the evidence, a persistent and unquenchable
thirst for recognition. Concededly, the need for recognition is an all too human
flaw and judges do not cease to be human upon donning the judicial robe.
Considering, however, the proscription against judges seeking publicity for
personal vainglory, they are held to a higher standard as they must act within
the confines of the code they swore to observe.
As to the charge that Judge Floro, through his branch clerk of court, had been
announcing in open court his qualifications, we find that this is likewise
violative of Canon 2, Rule 2.02 of the Code of Judicial Conduct as it smacks
of unnecessary publicity. Judges should not use the courtroom as platform
for announcing their qualifications especially to an audience of lawyers and
litigants who very well might interpret such publicity as a sign of insecurity.
Verily, the public looks upon judges as the bastion of justice – confident,
competent and true. And to discover that this is not so, as the judge appears
so unsure of his capabilities that he has to court the litigants and their lawyers’
approval, definitely erodes public confidence in the judiciary.
As it is not disputed, however, that these announcements went on for only a
week, Judge Floro is guilty of simple misconduct only.
(b)Re: Charge of allowing the use of his chambers as sleeping quarters
The audit team observed that "inside Judge Floro’s chamber[s], there is a
folding bed with cushion located at the right corner of the room. A man, who
was later identified as Judge Floro’s driver, was sleeping. However, upon
seeing the audit team, the driver immediately went out of the room." 42
Judge Floro contends that this charge is without legal or factual basis. The
man the audit team saw "sleeping" on his folding bed, J. Torralba, was Judge
Floro’s aide or "alalay" whom he allows to rest from time to time (in between
periods and especially during court sessions) for humanitarian reasons. J.
Torralba was not sleeping during that time that the audit team was in Branch
73 as he immediately left when he saw the members thereof.
This charge must fail as there is nothing inherently improper or deplorable in
Judge Floro having allowed another person to use his folding bed for short
periods of time during office hours and while there is no one else in the room.
The situation would have been different if there had been any allegation of
misuse or abuse of government funds and/or facilities such as in the case of
Presado v. Genova 43 wherein Judge Genova was found guilty of serious
misconduct and conduct prejudicial to the best interest of the service when
he and his family used his chambers as residential quarters, with the
provincial government paying for the electrical bills.
Be that as it may, it does not augur well for a new judge to allow such
familiarity from his aide as this becomes fodder for gossip as what had
apparently happened in this case. Judge Floro should have been aware of
and attuned to the sensibilities of his staff who were understandably
uncomfortable with the uncommon arrangement of a judge allowing his aide
Page 409
easy access to his folding bed.
LEGAL ETHICS
(c) Re: Charge of rendering resolutions without written orders in violation of
Rule 36, Section 1, 1997 Rules of Procedure
(g) Re: Charge of proceeding with the hearing on the Motion for Release on
Recognizance filed by the accused without the presence of the trial
prosecutor and propounding questions in the form of examination of the
custodian of the accused
The memorandum report reads:
c. It was reported by the staff of Branch 73 that regardless of the absence of
the trial prosecutor, Judge Floro, Jr. still proceeded with the hearing of the
following matters:
(c-1) "Motion for Release on Recognizance" filed by the accused, in Criminal
Cases Nos. 20384, 20371, 20246 and 20442 entitled "People vs. Luisito
Beltran", "People vs. Emma Alvarez, et al.", "People vs. Rowena Camino",
and "People vs. John Richie Villaluz", respectively. In the hearing of these
motions, Judge Floro, Jr. propounded questions (in a form of direct
examination) to the custodian of the accused without the accused being
sworn by the administering officer. (Note: initially, Judge Floro, Jr. ordered
the Branch Clerk of Court Dizon to place the accused under oath prior to the
start of his questions. However, COC Dizon refused). The hearing on the
aforesaid motions is an offshoot of a previous hearing wherein the accused
had pleaded guilty to a lesser offense. After the reading of the sentence,
Judge Floro, Jr. would automatically inform the accused that they are
qualified to apply for probation. In fact, Judge Floro, Jr. would even instruct
his staff to draft the application in behalf of the accused so that a motion for
release on recognizance will immediately be heard and be consequently
granted. As appearing in the minutes of the hearing (attached herewith as
Annexes "3" to "6"), the custodians of the accused are either a barangay
kagawad, barangay tanod or a member of the lupong tagapamayapa.
Likewise, no written order granting the motion for release on recognizance is
being issued by Judge Floro, Jr. since according to him neither rules nor
circular mandates the issuance of a written order. Instead, after granting the
motion, Judge Floro, Jr. just requires the parties to sign the minutes of the
session. Photocopies of the minutes dated March 4, 1999 in Criminal Cases
Nos. 20384-MN; 20373-MN; and 20371-MN are hereto attached as Annexes
"3" to "5".
On March 11, 1999, in Criminal Cases Nos. 20426-MN and 20442-MN,
Judge Floro, Jr. granted a similar motion without issuing a written order.
Copies of the minutes are hereto attached as annexes "6" to "7." 44
In his Verified Comment, Judge Floro argues that he never violated any rule
of procedure with respect to the cases mentioned by the Audit Team,
asserting that –
Contrary to the stance of the TEAM, Sec. 1 of Rule 36, Rules of Court refers
only to final and not interlocutory orders. Only final orders and judgments are
promulgated, rendered and entered.
xxxx
Applying the foregoing well-settled doctrines of law to the case at bar, herein
respondent faithfully complied with the requirements of Sec. 7 of P.D. 968 as
amended, regarding the applications for release on recognizance, thus:
a. The application for release on recognizance, although captioned as
MOTION FOR RELEASE ON RECOGNIZANCE, is primarily governed by
Sec. 7 of P.D. 968, a Special Law on Probation.
b. Any Application for Release on Recognizance, is given due course/taken
cognizance of by respondent, if on its face, the same bears the rubber stamp
mark/receipt by the Office of the City/Public Prosecutor.
PINEDAPCGRNMAN
c. The consistent practice both in RTC, METRO MANILA (all courts),
especially in RTC, MALABON, and in Malolos, Bulacan (where respondent
practiced from 1985-1998 – almost 14 years), [and especially the practice of
former Judge A. V. Cabigao, Br. 73, RTC, Malabon, Metro Manila], is to
interview the custodian, in the chambers, regarding his being a responsible
member of the community where the accused reside/resides; the questions
propounded are in the form of direct and even cross examination questions.
d. The accused is not required to be placed on the witness stand, since there
is no such requirement. All that is required, is to inform the accused regarding
some matters of probation (optional) such as whether he was sentenced
previously by a Court, whether or not he has had previous cases, etc.
e. Even if RTC Judges in Malabon do not conduct Court hearings on
application for release on recognizance, respondent, for caution in most of
the applications, included the interview/hearing on the applications for
release on recognizance, during criminal trial dates, where a fiscal/trial
prosecutor is available; at other times, the hearing is held in the chambers.45
The explanation given by Judge Floro betrays his liability for ignorance of the
rules on probation under Presidential Decree No. 968 (Probation Law), as
amended. Contrary to his remonstrations, the release of an accused on
recognizance entails more than a cursory interview of the custodian and the
applicant. Under the Probation Law,46 and as we explained in Poso v. Judge
Mijares,47 it is incumbent upon the Judge hearing the application to ascertain
first that the applicant is not a "disqualified offender" as "(p)utting the
discharge of the accused on hold would have allowed [the judge] more time
to pass upon the request for provisional liberty."
Moreover, from Judge Floro’s explanations, it would seem that he completely
did away with the requirement for an investigation report by the probation
officer. Under the Probation Law, the accused’s temporary liberty is
warranted only during the period for awaiting the submission of the
investigation report on the application for probation and the resolution
thereon.48 As we explained in Poso v. Judge Mijares49 :
It must be stressed that the statutory sequence of actions, i.e., order to
conduct case study prior to action on application for release on recognizance,
was prescribed precisely to underscore the interim character of the
provisional liberty envisioned under the Probation Law. Stated differently, the
temporary liberty of an applicant for probation is effective no longer than the
period for awaiting the submission of the investigation report and the
resolution of the petition, which the law mandates as no more than sixty (60)
days to finish the case study and report and a maximum of fifteen (15) days
from receipt of the report for the trial judge to resolve the application for
probation. By allowing the temporary liberty of the accused even before the
order to submit the case study and report, respondent Judge
unceremoniously extended the pro tem discharge of the accused to the
detriment of the prosecution and the private complainants. (Emphasis
supplied)
As to the argument of Judge Floro that his Orders for the release of an
accused on recognizance need not be in writing as these are duly reflected
in the transcript of stenographic notes, we refer to Echaus v. Court of
Appeals50 wherein we held that "no judgment, or order whether final or
interlocutory, has juridical existence until and unless it is set down in writing,
signed and promulgated, i.e., delivered by the Judge to the Clerk of Court for
filing, release to the parties and implementation." Obviously, then, Judge
Floro was remiss in his duties as judge when he did not reduce into writing
his orders for the release on recognizance of the accused in Criminal Cases
No. 20384, 20371, 202426 and 20442 entitled, "People v. Luisito Beltran,"
"People v. Emma Alvarez, et al.," "People v. Rowena Camino," and "People
v. John Richie Villaluz." 51 From his explanation that such written orders are
not necessary, we can surmise that Judge Floro’s failure was not due to
inadvertence or negligence on his part but to ignorance of a procedural rule.
Page 410
LEGAL ETHICS
In fine, we perceive three fundamental errors in Judge Floro’s handling of
probation cases. First, he ordered the release on recognizance of the
accused without the presence of the prosecutor thus depriving the latter of
any opportunity to oppose said release. Second, Judge Floro ordered the
release without first requiring the probation officer to render a case study and
investigation report on the accused. Finally, the order granting the release of
the accused on recognizance was not reduced into writing.
It would seem from the foregoing that the release of the accused on
recognizance, as well as his eventual probation, was already a done deal
even before the hearing on his application as Judge Floro took up the cudgels
for the accused by instructing his staff to draft the application for probation.
This, Judge Floro did not deny. Thus, we agree in the observation of the audit
team that Judge Floro, as a matter of policy, had been approving applications
for release on recognizance hastily and without observing the requirements
of the law for said purpose. Verily, we having nothing against courts leaning
backward in favor of the accused; in fact, this is a salutary endeavor, but only
when the situation so warrants. In herein case, however, we cannot
countenance what Judge Floro did as "the unsolicited fervor to release the
accused significantly deprived the prosecution and the private complainants
of their right to due process." 52
Judge Floro’s insistence that orders made in open court need not be reduced
in writing constitutes gross ignorance of the law. Likewise, his failure to follow
the basic rules on probation, constitutes gross ignorance of the law. 53
Verily, one of the fundamental obligations of a judge is to understand the law
fully and uphold it conscientiously.54 When the law is sufficiently basic, a
judge owes it to his office to know and simply apply it for anything less is
constitutive of gross ignorance of the law. 55 True, not every judicial error
bespeaks ignorance of the law and that, if committed in good faith, does not
warrant administrative sanctions. 56 To hold otherwise "would be nothing
short of harassing judges to take the fantastic and impossible oath of
rendering infallible judgments." 57 This rule, however, admits of an exception
as "good faith in situations of fallible discretion inheres only within the
parameters of tolerable judgment and does not apply where the issues are
so simple and the applicable legal principle evident and as to be beyond
permissible margins of error." 58 Thus, even if a judge acted in good faith but
his ignorance is so gross, he should be held administratively liable. 59
(d) RE: Charge of partiality in criminal cases where he declared that he is
pro-accused which is contrary to Canon 2, Rule 2.01, Canons of Judicial
Conduct
The audit team reported that Judge Floro relayed to the members thereof
that in criminal cases, he is always "pro-accused" particularly concerning
detention prisoners and bonded accused who have to continually pay for the
premiums on their bonds during the pendency of their cases.
Judge Floro denies the foregoing charge. He claims that what he did impart
upon Atty. Buenaventura was the need for the OCA to remedy his
predicament of having 40 detention prisoners and other bonded accused
whose cases could not be tried due to the lack of a permanent prosecutor
assigned to his sala. He narrated as well to Atty. Buenaventura the sufferings
of detention prisoners languishing in the Malabon/Navotas jail whose cases
had not been tried during the vacancy of his sala from February 1997 to 5
November 1998. At any rate, Judge Floro submits that there is no single
evidence or proof submitted by any litigant or private complainant that he
sided with the accused.
Atty. Dizon, Judge Floro’s Clerk of Court, on the other hand, categorically
stated under oath that Judge Floro, during a staff meeting, admitted to her
and the staff of Branch 73 and in the presence of his Public Attorney’s Office
(PAO) lawyer that he is pro-accused for the reason that he commiserated
with them especially those under detention as he, himself, had been accused
by his brother and sister-in-law of so many unfounded offenses. 60
PINEDAPCGRNMAN
Between the two versions, the testimony of Atty. Dizon is more credible
especially since it is corroborated by independent evidence, 61 e.g., Judge
Floro’s unwarranted eagerness in approving application for release on
recognizance as previously discussed.
Canon 2.01 of the Code of Judicial Conduct states: "A judge should so
behave at all times as to promote public confidence in the integrity and
impartiality of the judiciary." This means that a judge whose duty is to apply
the law and dispense justice "should not only be impartial, independent and
honest but should be believed and perceived to be impartial, independent
and honest" as well. 62 Like Caesar’s wife, a judge must not only be pure but
above suspicion. 63 Judge Floro, by broadcasting to his staff and the PAO
lawyer that he is pro-accused, opened himself up to suspicion regarding his
impartiality. Prudence and judicial restraint dictate that a judge should
reserve personal views and predilections to himself so as not to stir up
suspicions of bias and unfairness. Irresponsible speech or improper conduct
of a judge erodes public confidence in the judiciary. 64 "His language, both
written and spoken, must be guarded and measured, lest the best of
intentions be misconstrued." 65
On a more fundamental level, what is required of judges is objectivity if an
independent judiciary is to be realized. And by professing his bias for the
accused, Judge Floro is guilty of unbecoming conduct as his capacity for
objectivity is put in serious doubt, necessarily eroding the public’s trust in his
ability to render justice. As we held in Castillo v. Juan 66 :
In every litigation, x x x, the manner and attitude of a trial judge are crucial to
everyone concerned, the offended party, no less than the accused. It is not
for him to indulge or even to give the appearance of catering to the at-times
human failing of yielding to first impressions. He is to refrain from reaching
hasty conclusions or prejudging matters. It would be deplorable if he lays
himself open to the suspicion of reacting to feelings rather than to facts, of
being imprisoned in the net of his own sympathies and predilections. It must
be obvious to the parties as well as the public that he follows the traditional
mode of adjudication requiring that he hear both sides with patience and
understanding to keep the risk of reaching an unjust decision at a minimum.
It is not necessary that he should possess marked proficiency in law, but it is
essential that he is to hold the balance true. What is equally important is that
he should avoid any conduct that casts doubt on his impartiality. What has
been said is not merely a matter of judicial ethics. It is impressed with
constitutional significance.
(h) Re: Charge of using/taking advantage of his moral ascendancy to settle
and eventually dismiss Criminal Case No. 20385-MN (for frustrated
homicide) in the guise of settling the civil aspect of the case, by persuading
the private complainant and the accused to sign the settlement even without
the presence of the trial prosecutor.
(j) Re: Charge of issuing an Order on 8 March 1999 which varies from that
which he issued in open court in Criminal Case No. 20385-MN, for frustrated
homicide.
The memorandum report states:
During the arraignment and pre-trial of Criminal Case No. 20385-MN entitled:
"People vs. Nenita Salvador", Judge Floro, Jr., in the absence of the public
prosecutor and considering that the private complainant was not being
represented by a private prosecutor, used his moral ascendancy and
influence to convince the private complainant to settle and eventually cause
the dismissal of the case in the guise of settling its civil aspect by making the
private complainants and the accused sign the settlement. (Copy of the
signed stenographic notes is hereto attached as Annex "8").
xxxx
Page 411
LEGAL ETHICS
In an Order dated March 8, 1999 in Criminal Case No. 20385-MN, for
frustrated homicide, Judge Floro, Jr. put on record the "manifestations" of the
private complainant and the accused relative to their willingness to settle the
civil aspect of the case. In the same order, Judge Floro, Jr. reserved his ruling
on the said settlement until after the public prosecutor has given his
comment. However, per report of the court employees in Branch 73, the
aforesaid order was actually a revised one or a deviation from the original
order given in open court. Actually, the said criminal case was already settled
even without the presence of the public prosecutor. The settlement was in
the nature of absolving not only the civil liability of the accused but the
criminal liability as well. It was further reported that the private complainants
signed the compromise agreement due to the insistence or persuasion of
Judge Floro, Jr. The audit team was furnished a copy of the stenographic
notes (unsigned draft order) and the revised order (signed). Copies of the
stenographic notes and the revised order are hereto attached as Annexes
"8", "13", and "14". (Note: the stenographic notes were signed by the parties
to the case).
In the meantime, the mother of the private complainant in Criminal Case No.
20385-MN, Luz Arriego, filed an administrative case against Judge Floro
docketed as A.M. OCA-I.P.I. No. 99-812-RTJ. In her Affidavit Complaint67
dated 9 August 1999, she alleged that on 8 March 1999, Judge Floro forced
them to settle her daughter’s case against the accused therein despite the
absence of the trial prosecutor. When the parties could not agree on the
amount to be paid by the accused for the medical expenses incurred by
complaining witness, they requested respondent that they be given time to
study the matter and consult a lawyer to which Judge Floro replied that the
case be settled immediately, uttering, "ngayon na! ngayon na!" Moreover,
Judge Floro allegedly made them believe that the counter-charges filed by
the accused against the complaining witness would likewise be dismissed,
so they agreed to settle the case. However, the written Order issued by
respondent Judge did not reflect the agreement entered into by the parties in
open court.
Judge Floro takes exception to the foregoing OCA report and the complaint
filed by Mrs. Arriego, maintaining that the hearing on said case was not only
in accordance with the Rules of Court but was also beneficial to the litigants
concerned as they openly manifested their willingness to patch up their
differences in the spirit of reconciliation. Then, considering that the parties
suggested that they would file the necessary pleadings in due course, Judge
Floro waited for such pleadings before the TSN-dictated Order could be
reduced to writing. Meanwhile, in the course of a conversation between
Judge Floro and Court Administrator Benipayo, the latter opined that under
Section 27 of Rule 130 of the Rules of Court, an offer of compromise in
criminal cases is tantamount to an admission of guilt except in some cases.
With this in mind, the 8 March 1999 Order of the hearing on even date was
superseded by the revised written Order likewise dated 8 March 1999.
Judge Floro asserts that contrary to Atty. Buenaventura’s stance that he has
no power to revise an Order, courts have plenary power to recall and amend
or revise any orally dictated order in substance and in form even motu
proprio.
The rule on the matter finds expression in Echaus v. Court of
Appeals 68 wherein we declared:
x x x [N]o judgment, or order whether final or interlocutory, has juridical
existence until and unless it is set down in writing, signed and promulgated,
i.e., delivered by the Judge to the Clerk of Court for filing, release to the
parties and implementation, and that indeed, even after promulgation, it does
not bind the parties until and unless notice thereof is duly served on them by
any of the modes prescribed by law. This is so even if the order or judgment
has in fact been orally pronounced in the presence of the parties, or a draft
thereof drawn up and signed and/or copy thereof somehow read or acquired
by any party. In truth, even after promulgation (i.e., filing with the clerk of
court), and even after service on the parties of notice of an order or judgment,
the Court rendering it indisputably has plenary power to recall and amend or
revise it in substance or form on motion of any party or even motu proprio,
PINEDAPCGRNMAN
provided that in the case of a final order or judgment, the same has not
attained finality. (Emphasis supplied)
In herein case, what was involved was an interlocutory order made in open
court – ostensibly a judicial approval of a compromise agreement – which
was amended or revised by removing the stamp of judicial approval, the
written order merely stating that Judge Floro was reserving its ruling
regarding the manifestations of the parties to enter into a compromise
agreement after the public prosecutor shall have submitted its comments
thereto. 69
Considering then that it was well within the discretion of Judge Floro to revise
his oral order per the Echaus ruling and factoring in his explanation for
resorting to such an amendment, we find no basis for the charge of
dishonesty (under paragraph "j" of the complaint).
Anent the charge that Judge Floro used his moral ascendancy to settle and
eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in
the guise of settling the civil aspect of the case, by persuading the private
complainant and the accused to sign the settlement even without the
presence of the trial prosecutor, the same must likewise fail for lack of basis.
The controversial settlement never came to pass. It was not judicially
approved as reflected in the revised Order of 8 March 1999, thus, Mrs.
Arriego actually had no cause for complaint. She cannot, on one hand,
complain that the written order did not reflect the agreement reached during
the hearing and, on the other hand, claim that this agreement was reached
under duress at the instance of Judge Floro.
(i) For motu proprio and over the strong objection of the trial prosecutor,
ordering the mental and physical examination of the accused based on the
ground that the accused is "mahina ang pick-up"
The audit team reported that in an Order dated 8 February 1999 in Criminal
Case No. 20347-MN, Judge Floro "motu proprio ordered the physical and
mental examination of the accused by any physician, over the strong
objection of the trial prosecutor, on the ground that the accused is "mahina
ang pick-up." 70
In refutation, Judge Floro argues --
In the case at bar, respondent/Court carefully observed the demeanor of the
accused NESTOR ESCARLAN and noted the manifestations of his counsel
de oficio, Atty. E. Gallevo, PAO lawyer, and the comment/objections of the
trial prosecutor, Prosecutor J. Diaz, thus:
a. Atty. Gallevo manifested to the Court that the accused opted to enter a
plea of not guilty;
b. But upon query of the Court, the accused approached the bench and he
appeared trembling and stammering;
c. Atty. Gallevo, upon questions by respondent, readily admitted that accused
is "nauutal", has difficulty of reasoning, of speaking, and very nervous;
d. Atty. Gallevo also manifested that the accused often changed his mind
regarding the plea, from not guilty to guilty and to not guilty, and so forth;
e. Considering the grave situation, Atty. Gallevo, upon citation by the
Court/respondent of the pertinent provisions of the Rules, namely Rule 28
(Mental Examination of Persons), Sec. 12 of Rule 116, and Sec. 5(g) of Rule
135, Rules of Court (plenary powers to issue orders to conform to justice),
manifested orally that the accused is "mahina ang pick-up";
Page 412
LEGAL ETHICS
f. Hence, respondent exercised his sound discretion in issuing the ORDER
OF MENTAL EXAMINATION.
The MENTAL examination ORDER finds legal support, since it is well-settled
that "the court may order a physical or MENTAL examination of a party where
his physical or mental condition is material to the issues involved." (27 C.J.S.
p. 119, cf. MARTIN, p. 107, id.). 71
PAO lawyer Erwin Joy B. Gallevo took the witness stand for Judge Floro. He
testified that he moved for the suspension of the arraignment of the accused
Nestor Escarlan Escancilla in order to assess his mental fitness for trial. 72 As
reflected in the Order for suspension, however, and as admitted by Judge
Floro himself in his Comment, Atty. Gallevo merely manifested that accused
is "mahina ang pick-up."
Be that as it may, we cannot fault Judge Floro for suspending the arraignment
motu proprio and "over the strong objection of the trial prosecutor." It must
be remembered that the scheduled arraignment took place in February 1999
when the applicable rule was still Section 12(a) of Rule 116 of the 1985 Rules
of Criminal Procedure, which reads:
SEC. 12. Suspension of arraignment. – The arraignment shall be suspended,
if at the time thereof:
(a) The accused appears to be suffering from an unsound mental condition
which effectively renders him unable to fully understand the charge against
him and to plead intelligently thereto. In such case, the court shall order his
mental examination and, if necessary, his confinement for such purpose.
The above-cited rule does not require that the suspension be made pursuant
to a motion filed by the accused unlike Section 11(a), Rule 116 of the present
2000 Rules of Criminal Procedure which decrees that the suspension be
made "upon motion by the proper party." 73 Thus, it was well within the
discretion of Judge Floro to order the suspension of the arraignment motu
proprio based on his own assessment of the situation. In fact, jurisprudence
imposes upon the Judge the duty to suspend the proceedings if it is found
that the accused, even with the aid of counsel, cannot make a proper
defense. 74 As we underscored in People v. Alcalde 75 :
Settled is the rule that when a judge is informed or discovers that an accused
is apparently in a present condition of insanity or imbecility, it is within his
discretion to investigate the matter. If it be found that by reason of such
affliction the accused could not, with the aid of counsel, make a proper
defense, it is the duty of the court to suspend the proceedings and commit
the accused to a proper place of detention until his faculties are recovered. x
x x.
xxxx
The constitutional right to be informed of the nature and cause of the
accusation against him under the Bill of Rights carries with it the correlative
obligation to effectively convey to the accused the information to enable him
to effectively prepare for his defense. At the bottom is the issue of fair trial.
While not every aberration of the mind or exhibition of mental deficiency on
the part of the accused is sufficient to justify suspension of the proceedings,
the trial court must be fully satisfied that the accused would have a fair trial
with the assistance the law secures or gives. x x x.
Whether or not Judge Floro was indeed correct in his assessment of the
accused’s mental fitness for trial is already beside the point. If ever he erred,
he erred in the side of caution which, under the circumstances of the case, is
not an actionable wrong.
(e) Re: Charge of appearing and signing pleadings in Civil Case No. 46-M-98
pending before Regional Trial Court, Branch 83, Malolos, Bulacan in violation
PINEDAPCGRNMAN
of Canon 5, Rule 5.07, Code of Judicial Conduct which prohibits a judge from
engaging in the private practice of law
(f) Re: Charge of appearing in personal cases without prior authority from the
Supreme Court and without filing the corresponding applications for leaves
of absence on the scheduled dates of hearing
In support of the above charges, the memorandum report states:
i.Judge Floro, Jr. informed the audit team that he has personal cases pending
before the lower courts in Bulacan. He admitted that Atty. Bordador, the
counsel of record in some of these cases, is just signing the pleadings for
him while he (Judge Floro, Jr.) acts as collaborating counsel. When attending
the hearing of the cases, Judge Floro, Jr. admitted that he does not file an
application for leave of absence.
Based on the reports gathered by the audit team, Judge Floro, Jr. has a
pending civil case in the Regional Trial Court of Malolos, Bulacan and a
criminal case in Municipal Trial Court, Meycauayan, Bulacan. It is reported
that in these cases, he is appearing and filing pleadings in his capacity as
party and counsel for himself and even indicating in the pleadings that he is
the Presiding Judge of Branch 73, RTC, Malabon.
Upon verification by the audit team, it was found out that Judge Floro, Jr.
indeed has a pending case before the Regional Trial Court, Branch 83,
Malolos, Bulacan docketed as Civil Case No. 46-M-98, entitled: "In Re: In the
Matter of the Petition for Habeas Corpus of Robert V. Floro, Atty. Florentino
V. Floro, Jr., Petitioner - versus – Jesie V. Floro and Benjamin V. Floro". In
this case Judge Floro, Jr. filed an "Ex-Parte Motion for Issuance of Entry of
Judgment with Manifestation and/or Judicial Admission" wherein he signed
as the petitioner and at the same time indicated that he is the presiding judge
of RTC, Branch 73, Malabon, Metro Manila. Court stenographer Marissa
Garcia, RTC, Branch 83, Malolos, Bulacan confirmed this information. Judge
Floro, Jr. even attached a copy of his oath taking and his picture together
with President Joseph Estrada to the aforesaid pleading. Photocopy of the
said Motion is hereto attached as Annex "9".
Judge Floro, Jr. has a pending request with the Court Management Office,
Office of the Court Administrator, to appear as counsel or collaborating
counsel in several civil cases (except the above-mentioned case) pending
before lower courts. 76
Well ensconced is the rule that judges are prohibited from engaging in the
private practice of law. Section 35, Rule 138 of the Rules of Court
unequivocally states 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 member of the bar or give professional advice to client." Canon
5, Rule 5.07 of the Code of Judicial Conduct, on the other hand, provides
that: "A judge shall not engage in the private practice of law."
Judge Floro vehemently denies the foregoing charge claiming that he hired
lawyers to attend to his personal cases. 77
A scrutiny of the voluminous records in this case does not reveal any
concrete proof of Judge Floro having appeared as counsel in his personal
cases after he had already been appointed Judge except that he prepared a
pleading ("Ex Parte Motion For Issuance of Entry of Judgment With
Manifestation and/or Judicial Admission") jointly with his counsel of record in
connection with a habeas corpus case he filed against his brothers for the
custody of their "mild, mentally-retarded" brother. He explained, however,
that he prepared the said pleading in the heat of anger as he could not accept
the judgment of dismissal in that case.78 He likewise explained that the
pleading was signed by him alone due to inadvertence and that he had
Page 413
rectified the same by filing an Amended Manifestation with Affidavit of Merit.
79 Finally, during the hearing of this case, Judge Floro argued that he filed the
subject pleading as petitioner and not as counsel. 80
LEGAL ETHICS
The proscription against the private practice of law by judges is based on
sound public policy, thus:
[T]he rights, duties, privileges and functions of the office of an attorney-at-
law are inherently incompatible with the high official functions, duties,
powers, discretion and privileges of a judge. It also aims to ensure that judges
give their full time and attention to their judicial duties, prevent them from
extending special favors to their own private interests and assure the public
of their impartiality in the performance of their functions. These objectives are
dictated by a sense of moral decency and desire to promote the public
interest. 81
Based on the above rationale, it becomes quite evident that what is
envisioned by "private practice" is more than an isolated court appearance,
for it consists in frequent or customary action, a succession of acts of the
same nature habitually or customarily holding one’s self to the public as a
lawyer. 82 In herein case, save for the "Motion for Entry of Judgment," it does
not appear from the records that Judge Floro filed other pleadings or
appeared in any other court proceedings in connection with his personal
cases. It is safe to conclude, therefore, that Judge Floro’s act of filing the
motion for entry of judgment is but an isolated case and does not in any wise
constitute private practice of law. Moreover, we cannot ignore the fact that
Judge Floro is obviously not lawyering for any person in this case as he
himself is the petitioner.
Be that as it may, though Judge Floro might not be guilty of unauthorized
practice of law as defined, he is guilty of unbecoming conduct for signing a
pleading wherein he indicated that he is the presiding judge of RTC, Branch
73, Malabon City and for appending to the pleading a copy of his oath with a
picture of his oath-taking. The only logical explanation we can reach for such
acts is that Judge Floro was obviously trying to influence or put pressure on
a fellow judge by emphasizing that he himself is a judge and is thus in the
right. 83 Verily, Canon 2, Rule 2.04 of the Code of Judicial Conduct mandates
that a "judge shall refrain from influencing in any manner the outcome of
litigation or dispute pending before another court or administrative agency."
By doing what he did, Judge Floro, to say the least, put a fellow judge in a
very awkward position.
As to charge (f), the OCA has failed to substantiate its claim that Judge Floro
has been attending the hearing of his personal cases without filing for leave
of absence. As Judge Floro vehemently protests the charge as untrue, it was
incumbent upon the OCA to prove its case. Time and again we have held
that although administrative proceedings are not strictly bound by formal
rules on evidence, the liberality of procedure in administrative actions is still
subject to limitations imposed by the fundamental requirement of due
process. 84
(k) Re: Charge of openly criticizing the Rules of Court and the Philippine
justice system
(l) Re: Charge of use of highly improper and intemperate language during
court proceedings
The memorandum report reads:
In the course of the judicial audit, the audit team was able to observe the way
Judge Floro, Jr. conducts court proceedings. With the assistance of the court
staff, the team was able to obtain a tape-recorded proceeding conducted by
Judge Floro, Jr. Attached is the transcript of the proceedings (Annex "15").
The tape record of the court proceedings is also submitted along with this
report as Exhibit "A".
xxxx
The case for hearing that day was Civil Case No. 1256 MM. A certain Atty.
Abelarde was appearing for the plaintiff while Atty. Emmanuel Basa was
PINEDAPCGRNMAN
appearing for the defendant. During the hearing, it seems that the counsels
for both parties were guiding Judge Floro, Jr. on how to proceed with the trial.
There was one instance when Judge Floro, Jr. criticized the Rules of Court,
to wit:
"Judge Floro, Jr.: Kasi nga ang may plano nito ay ang Rules of Court, hindi
nila maayos ang Rules of Court natin, hindi realistic kinopya lang sa law of
California on Civil Procedure; pagdating dito eh … dahil sa kanila maraming
nagkakaproblema, masyadong maraming … eh ako wala akong
pinagkopyahan yan … but ginawa ko lang yon … Sabi ko si Judge nagko-
complain kasi, sabi ko nga pagka ang lawyer hindi alam yan talo na sa akin
… except … na hindi papayag … kasi marami diyang …"
In another proceeding conducted on a different day, Judge Floro, Jr., instead
of holding trial, discussed, in open court, the case involving his brother. He
even condemned the Philippine justice system and manifested his disgust on
the unfairness of the system. Thus, he said:
"Sabi ko paano ko matatagpuan ang katarungan dito sa korteng eto bulok
ang hustisya. Ang kapatid ko napakayaman, ako walang pera."
He continued:
"Yung kapatid ko. Hindi ko makuha kundi makita ko lang. Bawal kasi; yung
kapatid ko retarded, bawal. In memory of my brother, Robert Floro. So,
ngayon nag-file ako. Sabi ni Judge Agloro senermonan pa ako, ganun …
ganun … Sabi ko paano ko makikita ang katarungan. Tapos ngayon ang
nangyari di Judge na ako, hindi ko pa nakita ang kapatid ko. Di ngayon, ang
ginawa ko na-dismiss na yung case, hindi ko inano kasi wala akong
nakikitang katarungan dahil ang kapatid ko ay napakaraming pera. Alam ko
naman kung ang isang court eh parehas o may kiling eh. Yung abogado niya
malakas na malakas doon. Sana hindi naka-record eto (laughs) baka ako
ma-contempt dito." 85
Judge Floro denies the foregoing accusations, emphatically arguing that
these are all hearsay fabrications supplied by his Clerk of Court, Atty. Dizon,
and by disgruntled RTC personnel due to ill or ulterior motives (i.e., to
allegedly cover-up their consistent tardiness, habitual absenteeism and gross
neglect of duties which were all unearthed by Judge Floro).
As to the tape recording of an alleged court hearing wherein he criticized the
Philippine judicial system, Judge Floro contends that this recording was done
clandestinely by his staff in violation of the Anti-Wire Tapping Law (Republic
Act No. 4200) and, to suit their plans, they twisted the facts by cutting portions
thereof. They also made it appear that the conversation took place in a court
proceeding when, in fact, this was inside his chambers.
During the investigation, it was established that the two tapes in question
were submitted to the OCA sans the "yellow notes" and the official
transcribed copy thereof. 86 This means that the transcribed copy that was
submitted by the audit team as Annex "15" is but an unofficial copy and does
not, by itself, prove that what was being recorded was a court proceeding.
This being the case, the two tapes, without concrete proof that they were
taken officially during a court proceeding, cannot be used against Judge Floro
as the unauthorized recording of a private conversation is inadmissible under
Rep. Act No. 4200. 87
Without the tape and transcribed copies of the contents thereof, we are thus
left with only Judge Floro’s word against that of Atty. Dizon, his Clerk of Court
who testified under oath as to Judge Floro’s alleged propensity to criticize the
judiciary and to use intemperate language. Resolving these particular
charges would therefore depend upon which party is more credible.
Page 414
Atty. Dizon stated on the witness stand that:
LEGAL ETHICS
Q: Is Judge Floro guilty of Violation of Canon 1 Rule 1.01 Code of Judicial
Conduct when he openly criticized the Rules of Court and the Philippine
Justice System?
A: Yes. Judge Floro has mentioned to each and everyone of us in branch 73
the alleged "kabulukan ng hustisya". Time and again he said the Rules of
Court is of no use. He said that since theory and the practice of law are very
different, the Rules of Court does not always apply to different cases. Not
only the justice system did he criticize but likewise Judges and Justices. He
told us . . . and I quote "D’yan sa Malolos sangkatutak ang corrupt na Judges
. . . Sa Court of Appeals P25,000.00 ang pinakamababang lagayan diyan."
To our mind, how can a Judge like him openly criticize the very institution he
is now serving? Where is his respect to the court, to the bar and to the bench?
How can he uphold courts as temples of justice if he himself did not believe
in the justice system?
xxxx
Q What can you say about charge letter "L" which reads for the use of highly
improper and intemperate language during court proceedings?
A Judge Floro, if in the presence of all his staff, during the presence of me,
the Court Interpreter, the Legal Researcher, maybe a Clerk, he always
discuss matters regarding practitioners in our court. There is one time one
Atty. Feliciano a lady lawyer, he said, "Luka-luka, talaga yang babaing yan"
and then he would call even not during court session, but during office hours
our Court Interpreter "malandi, luka-luka, may fruit of the sun". So, it did not
surprise us one time when during a pre-trial conference in a Civil Case, for
Civil Case No. 25-86-MN "Lopez v. Reyes and Mercado", he uttered
offensive language against his fellow judge. Take the transcription of this
court proceeding is already adapted by the Court Administrator. It was the
content of the tape he sent the Court Administrator. Actually, for consultation
and advise after hearing what Judge Floro discussed in open Court, before
all of us, the court staff present in the hearing and before the lawyer and the
defendants in the case, we were in quandary whether or not to attach in the
record the stenographic notes or even the actual transcription of the
proceedings because it contained offensive languages against the justice
system, against a certain judge, against a certain Clerk of Court named Jude
Assanda, against people he is disgusted with. In fact, instead of discussing
the merit of the case or the possibility of the amicable settlement between
the parties, he integrated this kind of discussion. So, as a Clerk of Court, I
may not use my discretion whether or not to advise the stenographer to
indeed present the same or attach the same in the record because it
contained offensive languages highly improper and intemperate languages
like for example, "putang ina", words like "ako ang anghel ng kamatayan,
etcetera, etcetera". 88
The denials of Judge Floro are insufficient to discredit the straightforward and
candid declarations of Atty. Dizon especially in the light of confirming proofs
from Judge Floro himself.
The Court finds the version of Atty. Dizon more credible because subject
utterances are consistent with Judge Floro’s claims of intellectual superiority
for having graduated with several honors from the Ateneo School of Law and
having placed 13th in the bar examinations. Moreover, his utterances against
the judicial system on account of his perception of injustice in the disposition
of his brother’s case are not far removed from his reactions to what he
perceived were injustices committed against him by the OCA and by the
persons who were either in charge of the cases against him or had some sort
of participation therein. Consequently, although there is no direct proof that
Judge Floro said what he is claimed to have said, nonetheless, evidence that
he sees himself as intellectually superior as well as evidence of his habit of
crying foul when things do not go his way, show that it is more likely that he
actually criticized the Rules of Court and the judicial system and is thus guilty
of unbecoming conduct. Verily, in administrative cases, the quantum of proof
necessary for a finding of guilt is substantial evidence or such relevant
PINEDAPCGRNMAN
evidence as reasonable mind might accept as adequate to support a
conclusion. 89 In this case, there is ample and competent proof of violation on
Judge Floro’s part.
(m) Re: Charge of violating Circular No. 13-87 dated 1 July 1987
The memorandum report stated that Judge Floro –
[D]eviat[ed] from the regular course of trial when he discusses matters
involving his personal life and beliefs. Canon 3, Rule 3.03 provides that "[a]
judge shall maintain order and proper decorum in the court." A disorderly
judge generates disorderly work. An indecorous judge invites indecorous
reactions. Hence, the need to maintain order and proper decorum in court.
When the judge respects himself, others will respect him too. When he is
orderly, others will follow suit. Proceedings in court must be conducted
formally and solemnly. The atmosphere must be characterized with honor
and dignity befitting the seriousness and importance of a judicial trial called
to ascertain the truth. Anything which tends to detract from this atmosphere
must be avoided. And the judge is supposed to be in control and is therefore
responsible for any detraction therefrom.
Circular No. 13 (Guidelines in the Administration of Justice) dated July 1,
1987 provides that trial of cases should be conducted efficiently and
expeditiously. Judges should plan the course and direction of trials so that
waste of time is avoided.
Moreover, a judge should avoid being queer in his behavior, appearance and
movements. He must always keep in mind that he is the visible representative
of the law. Judge Floro, Jr.’s claims that he is endowed with psychic powers,
that he can inflict pain and sickness to people, that he is the angel of death
and that he has unseen "little friends" are manifestations of his psychological
instability and therefore casts doubt on his capacity to carry out the functions
and responsibilities of a judge. Hence, it is best to subject Judge Floro, Jr.
once again to psychiatric or mental examination to ascertain his fitness to
remain in the judiciary. 90
Circular No. 13-87, by itself, does not define nor punish an offense but, as its
title would suggest, it merely sets the guidelines in the administration of
justice following the ratification of the 1987 Constitution.
The arguments forwarded by the OCA, however, best exemplify the fact that
the 13 charges are inextricably linked to the charge of mental/psychological
illness which allegedly renders Judge Floro unfit to continue discharging the
functions of his office. This being the case, we will consider the allegation
that Judge Floro proclaims himself to be endowed with psychic powers, that
he can inflict pain and sickness to people, that he is the angel of death and
that he has unseen "little friends" in determining the transcendental issue of
his mental/psychological fitness to remain in office.
But before we even go into that, we must determine the appropriate penalty
to be imposed for the seven of the 13 charges discussed above. To
recapitulate, we have found Judge Floro guilty, in one way or another, of
seven of the 13 charges against him. Thus:
1) Charge "a" - simple misconduct
2) Charges "c" and "g" – gross ignorance of the law
3) Charge "d" – unbecoming conduct
4) Charge "e" – unbecoming conduct
Page 415
5) Charges "k" and "l" – unbecoming conduct
LEGAL ETHICS
Gross ignorance of the law or procedure is a serious charge. Under Rule 140
as amended, a judge guilty of a serious charge may be dismissed from the
service, suspended from office without salary and other benefits for more
than three but not exceeding six months or fined in the amount of P 20,000.00
but not exceeding P 40,000.00 depending on the circumstances of the case.
In herein case, considering that Judge Floro had barely warmed his seat
when he was slammed with these charges, his relative inexperience is to be
taken in his favor. And, considering further that there is no allegation or proof
that he acted in bad faith or with corrupt motives, we hold that a fine is the
appropriate penalty. The fine is to be imposed in the maximum, i.e. P
40,000.00, as we will treat the findings of simple misconduct and unbecoming
conduct as aggravating circumstances. 91
Judge Floro must be relieved of his position as Judge of RTC Malabon
Branch due to a medically disabling condition of the mind that renders him
unfit to discharge the functions of his office
As we have explained, the common thread which binds the 13 seemingly
unrelated accusations in A.M. No. RTJ-99-1460 is the charge of mental
illness against Judge Floro embodied in the requirement for him to undergo
an appropriate mental or psychological examination and which necessitated
his suspension pending investigation. This charge of mental illness, if true,
renders him unfit to perform the functions of his office notwithstanding the
fact that, in disposing of the 13 charges, there had been no finding of
dismissal from the service against Judge Floro.
The Supreme Court Clinic first had occasion to interview Judge Floro when
the latter applied for judgeship (which application he later voluntarily
withdrew) way back in September 1995. The psychological report, as
prepared by Cecilia C. Villegas, M.D. (Director III, Chief SC Clinic Services)
and Melinda C. Grio (Psychologist), stated in part:
PSYCHIATRIC EVALUATION:
There are evidences of developing psychotic process at present.
REMARKS:
Atty. Floro was observed to be restless and very anxious during the interview.
He was argumentative and over solicitous of questions asked, giving the
impressions of marked suspiciousness. He centered on his academic
excellence, an Ateneo de Manila graduate of the College of Law, rated top
13th place in the bar examination. He emphasized his obsessive and
compulsive method of studying, at least 15 hours per day regardless of
whether it was school days or vacation time. Vying for honors all the time and
graduated Law as second honor, he calls this self-discipline and self-
organization. He expressed dissatisfaction of his achievements, tend to be a
perfectionist and cannot accept failures. To emphasize his ultra bright mind
and analytical system, he related that, for the past 3 to 5 years, he has been
experiencing "Psychic vision" every morning and that the biggest secret of
the universe are the "unseen things." He can predict future events because
of "power in psychic phenomenon" as when his bar results was to be
released, he saw lights in the sky "no. 13-1," and he got the 13th place. He
has been practicing "parapsychology" – seeing plenty of "dwendes" around
him.
He can talk on and on of bizarre ideas, that tends (sic) to be irrelevant.
Intellectually, he has high assets, however, evidence of ego disintegration
are prominent findings, both in the interview (conscious) and psychological
test results. (unconscious level). 92
Approximately three years later, in June 1998, Judge Floro again presented
himself to the Supreme Court Clinic when he applied anew for judgeship, this
time of RTC Malabon. Psychologist Beatriz O. Cruz and Celeste P. Vista,
PINEDAPCGRNMAN
M.D. (Psychiatrist and Medical Officer IV) did the interview and evaluation.
Dr. Vista observed:
Atty. Floro has an impressive academic achievements (sic), and he takes
pride in this. During the interview, he was quite reluctant to reveal information
about his family background and would rather talk about his work and
academic achievements. However, he failed to integrate his knowledge into
a cohesive unit which he can utilize to cope with the various tasks that he
undertakes. This renders him confused and ambivalent with a tendency to
vacillate with decision-making. He also has a low self-esteem and prone to
mood swings with the slightest provocation.
From the interview, there seems to have been no drastic change in his
personality and level of functioning as a lawyer in private practice. However,
he showed a pervasive pattern of social and interpersonal deficits. He has
poor social skills and showed discomfort with close social contacts. Paranoid
ideations, suspiciousness of others’ motives as well as perceptual distortions
were evident during the interview.
Atty. Floro’s current intelligence function is along the mild mental retardation
(68) which is below the expected cognitive efficiency of a judge. Despite his
impressive academic background and achievements, he has lapses in
judgment and may have problems with decision-making. His character traits
such as suspiciousness and seclusiveness and preoccupation with
paranormal and psychic phenomena though not detrimental to his role as a
lawyer, may cloud his judgment, and hamper his primary role as a judge in
dispensing justice. Furthermore, he is at present not intellectually and
emotionally equipped to hurdle the responsibilities of a judge and he may
decompensate when exposed to anxiety-provoking and stress-laden
situation. 93
It would seem that the JBC disregarded the above-quoted report as it allowed
Judge Floro to seek a second opinion from private practitioners. A.M. No.
RTJ-99-1460, however, resurrected the issue of his mental and
psychological capacity to preside over a regional trial court. Thus, the
Resolution of 20 July 1999 specifically ordered Judge Floro to submit to
"appropriate psychological or mental examination."
On 1 February 2000, per recommendation of Justice Ramirez, 94 the Court
clarified that the "appropriate psychological or mental examination" being
adverted to in the Resolution of 20 July 1999 is to be conducted by the SC
Clinic. The Court thereby directed Judge Floro to "submit himself to the SC
Clinic for psychological or mental examination, within ten (10) days from
notice." 95 Judge Floro sought reconsideration which was denied by the Court
on 22 February 2000. 96
The order to submit to the appropriate psychological examination by the SC
Clinic was reiterated by the Court on 17 October 2000 with the admonition
that Judge Floro’s failure to do so would result in appropriate disciplinary
sanctions. 97
On 24 October 2000, Judge Floro sought reconsideration of the 17 October
2000 Resolution with a conjunctive special motion for him to undergo
psychiatric examination by any duly authorized medical and/or mental
institution. 98 This was denied by the Court on 14 November 2000. 99
On 10 November 2000, Judge Floro moved, among other things, for the
inhibition or disqualification of Supreme Court Clinic doctors 100 and
psychologist 101 with a manifestation that he filed cases against them for
revocation of licenses before the Professional Regulatory Commission
(PRC), the Philippine Medical Association (PMA) and the PAP 102 for alleged
gross incompetence and dishonorable conduct under Sec. 24 of Rep. Act
No. 2382/1959 Medical Act/Code of Medical Ethics. 103
Page 416
On 16 November 2000, Justice Ramirez, with the approval of Court
Administrator Benipayo, moved that Judge Floro be sanctioned for obvious
LEGAL ETHICS
contempt in refusing to comply with the 1 February 2000 and 17 October
2000 resolutions. According to Justice Ramirez, Judge Floro’s filing of
administrative cases with the PRC against Dr. Mendoza, et al., is an
indication of the latter’s intention to disregard and disobey the legal orders of
the Court. 104The Court en banc agreed in the report of Justice Ramirez, thus
Judge Floro was ordered to submit to psychological and mental examination
within 10 days from receipt, otherwise, he "shall be ordered arrested and
detained at the jail of the National Bureau of Investigation (NBI) x x x." 105
Judge Floro finally complied with the directive on 13 and 15 December 2000.
106 He likewise sought the services of a private practitioner, Dr. Eduardo T.
Maaba, who came out with his own evaluation of Judge Floro on 3 January
2001. 107
Thus, Judge Floro trooped to the Supreme Court Clinic for the third time in
December 2000, this time in connection with A.M. No. RTJ-99-1460.
Francianina G. Sanchez, Clinical Psychologist and Chief Judicial Staff Officer
reported that "(o)ver all data strongly suggest a delusional disorder with
movement in the paranoid direction." Dr. Celeste Vista, for her part, stated
that:
Based on the clinical data gathered, it appears that Judge Floro is basically
a cautious, and suspicious individual with a compulsion to analyze and
observe motives in his milieu. Despite his status, cognitive assets and
impressive educational background, his current functioning is gauged along
the LOW AVERAGE intelligence.
He can function and apply his skills in everyday and routine situations.
However, his test protocol is characterized by disabling indicators. There is
impairment in reality testing which is an indicator of a psychotic process. He
is unable to make an objective assessment and judgment of his milieu.
Hence, he is apt to misconstrue signals from his environment resulting to
perceptual distortions, disturbed associations, and lapses in judgment. Such
that, cultural beliefs in dwarfs, psychic and paranormal phenomena and
divine gifts of healing have become incorporated in a delusional (false and
unshakable beliefs) system, that it has interfered and tainted his occupational
and social functioning. Hence, he is found to be unfit in performing his court
duties as a judge. 108
Pursuant to the aforecited December 2000 interview of Judge Floro,
Supreme Court Senior Chief Staff Officer Rosa J. Mendoza, M.D., reported
to Chief Justice Hilario G. Davide, Jr. in March 2001 that –
The findings of mental and psychological incapacity is thus substantially
supported by evidence. Based on the three[3] psychological tests and
evaluation of the two[2] psychiatrists, the undersigned has no other recourse
but to recommend that Judge Florentino Floro be declared unfit to discharge
his duties as a Judge, effective immediately.
Not one to take this last recommendation sitting down, Judge Floro submitted
earlier psychological evaluations conducted by several mental health
professionals which were all favorable to him. The first three evaluations
were in connection with his application as RTC Judge of Malabon City in
1998 brought about by him having "failed" the examination given by the
Supreme Court Clinic. The report dated 04 September 1998 by staff
psychologist, Rowena A. Reyes as noted by clinical Psychologist, Ma.
Teresa Gustilo-Villasor of the Metropolitan Psychological Corporation (MPC),
states in part:
I. INTELLECTUAL/COGNITIVE CHARACTERISTICS
SUMMARY OF INTELLECTUAL/COGNITIVE CHARACTERISTICS
1. FFJ can draw from above average intellectual resources to cope with
everyday demands. He is able to handle both concrete and abstract
PINEDAPCGRNMAN
requirements of tasks. Alert to details, he has a logical approach in evaluating
the relationship between things and ideas.
2. He thrives in predictable and structured situations, where he can consider
solid facts to arrived (sic)at concrete, tangible outcomes. Task-oriented, he
can organize procedures and details so as to get things done correctly and
on schedule. He uses conventional standards to determine personal
progress. Set in his views, he may not readily accept others’ ideas and
contributions especially if these oppose his own.
3. A serious and thorough approach to his commitments is expected of FFJ.
Generally, he prefers to control his emotions and does not let this get in the
way of his judgment and decisions.
II. EMOTIONAL/INTERPERSONAL CHARACTERISTICS
FFJ is motivated by the need to be recognized and respected for his
undertakings. Achievement-oriented, he sets high personal standards and
tends to judge himself and others according to these standards. When things
do not develop along desired lines, he may become restless and impatient.
Nevertheless, he is careful of his social stature and can be expected to
comply with conventional social demands. 109
Testifying as one of Judge Floro’s witnesses, Rowena A. Reyes opined on
cross-examination that "psychologically speaking," Judge Floro was not fit to
be a judge. Thus:
JUDGE AQUINO:
Q: Now, that we are telling you that Judge Floro based on his testimony here
and on every available records of the proceedings, has been claiming that
he [is] possessed with Psychic Powers and he did not tell you that in the
interview. Would you consider his failure to tell you about his Psychic Powers
to be a fatal [flaw]?
xxxx
A: Yes, Sir.
Q: Very grave one, because it will affect the psychological outlook of the
patient?
A: Yes, Sir.
xxxx
Q: I tell you now, Judge Floro has been claiming in [these] proceedings and
you were here when we were cross-examining Mr. Licaoco and you heard
that we mentioned in the course of our cross-examination. Would you
consider his failure to tell you about his power of by location to be a fatal
[flaw] and your assessment of his psychological outlook?
xxxx
A: Yes, Sir.
Q: Fatal [flaw]?
A: Yes, Sir.
Page 417
Q: Did Judge Floro tell you also in the course of the interview that he is
capable of being in a trance?
LEGAL ETHICS
A: He did not.
Q: So, he did not tell you that while in a trance he could type letters?
A: He did not.
xxxx
Q: And reality oriented and a reality oriented person is one who will not be
pronouncing or making pronouncement concerning his psychic powers. Is
this not correct?
xxxx
A: Yes sir.
Q: A reality oriented person is also one who will not claim that he is capable
of having trances in the course of his private activities and even in the course
of the performance of his official duty as a Judge. Will you not agree with
that?
A: I agree with you, Sir.
Q: And if he will do so, he will not be actually a reality oriented person.
Meaning tatagalugin ko na po nakukuha naman "na ako ay psychic, na ako
ay pwedeng ipower ng by location, na kaya kong mag trance. Gumawa pa
ng iba’t iba pang bagay at the same time." Yan ay hindi compatible sa
pagiging reality oriented?
A: Yes, Sir.
Q: And a person who is not reality oriented is not fit to sit as a Judge.
xxxx
Q: I will add the phrase Psychologically speaking.
xxxx
A: Yes, Sir. 110
Another psychiatrist, Pacita Ramos-Salceda, M.D., Senior Consultant
Psychiatrist of the Makati Medical Center, stated in her report dated 3
September 1998 that at the time of the interview Judge Floro –
[W]as enthusiastic and confident. He is well informed about current issues,
able to discuss a wide variety of topics intelligently without hesitation. His
thinking is lucid, rational, logical and reality based. He is well oriented,
intelligent, emotionally stable, with very good judgment. There is no previous
history of any psychological disturbances. 111
This was followed by the evaluation of Eduardo L. Jurilla, M.D., dated
September 1998, who stated in his report that –
Atty. Floro is an asthenic, medium height, fairly groomed, be-spectacled
person with graying hair. When interviewed he was somewhat anxious,
elaborative and at times approximate in his answers. He was alert, oriented,
conscious, cooperative and articulate in Pilipino and English. He denied any
perceptual disturbances. Stream of thought was logical and goal-directed.
There was pressure of speech with tendency to be argumentative or
defensive but there were no flight of ideas, thought blocking, looseness of
associations or neologisms. Delusions were not elicited. Affect was broad
PINEDAPCGRNMAN
and appropriate but mood was anxious. There were no abnormal involuntary
movements or tics. Impulse control is good. Cognition is intact. Judgment,
insight, and other test for higher cortical functions did not reveal abnormal
results.
Comments: The over-all results of this psychiatric evaluation of Atty.
Florentino V. Floro, Jr. do not contradict his nomination and appointment to
the post he is seeking. 112
On the witness stand, however, and testifying as Judge Floro’s witness, Dr.
Jurilla clarified that the interview had its limitations 113 and he might have
missed out certain information left out by his patient. 114 The following
exchange is thus instructive:
JUDGE AQUINO: x x x. Did Judge Floro tell you in the interview that he has
little unseen, unheard friends known as duwendes?
DR. JURILLA: He did not.
xxxx
Q: Did you interview Judge Floro or did he [volunteer] to you information
about his claim to be the number five psychic in the country?
xxxx
A: No, Your Honor.
Q: He did not tell you also that he is gifted also with this so called, psychic
phenomena?
A: He did not.
xxxx
Q: He did not tell you also that in [traveling] from one place to another, at
least four (4) kilometers apart, he used to ride on a big white or whatever it
is, horse?
A: Not during our interview.
xxxx
A: It is possible like any other psychiatrist or mental health doctor you might
have missed some information or it is possible that our clients or patients
might not [have] told us everything.
Q: And if your clients or patients did not tell you things such as those that
Judge Floro did not admittedly tell you in the course of the interview, your
opinion of the patient would be altered a little?
xxxx
A: The answer has something to do whether my evaluation may be altered.
Yes, Your Honor in the absence of any corroborative contradiction.
Q: More so, if the presence of confirming events that transpired after the
interview, would that be correct?
Page 418
A: The interview has its limitations.
LEGAL ETHICS
Q: Let us say, what Judge Floro did [not] tell you during the interview are
confirmed by events that transpired after the interview, would you not say
you have more reason to have your evaluation altered?
A: Yes.
Q: Especially so if you will now know that after that interview Judge Floro has
been proclaiming himself as the number five psychic in the country [where]
no one has called him as a psychic at all?
xxxx
Q: Would it be really more altered?
A: I would say so.
xxxx
Q: Returning to the confirming proofs, meaning after the interview, which are
confirmations of what Judge Floro did not tell you during the interview, would
your finding of [J]udge Floro be drastically altered if he will tell you that he is
capable or possessed of the power of bilocation?
xxxx
A: I would probably try to for a diagnosis.
Q: Which may make a drastic alteration of your evaluation of Judge Floro’s
mental and psychological x x x?
A: My diagnosis I will be seeking for an abnormal condition.
Q: When you said abnormal something would have made you suspect that
there was abnormality in the person of Judge Floro?
A: Given the data.
Q: We will give you the data or additional information. Would you also have
your evaluation favorable to Judge Floro drastically altered if I tell you that
based on record Judge Floro has claimed that while in a trance he is capable
of typing a letter?
xxxx
A: If there is data toward that effect prior to September 1998, probably
drastically altered. 115
Lastly, Judge Floro presented the psychiatric evaluation of Eduardo T.
Maaba, M.D., 116 dated 3 January 2001, the relevant portions of which state:
Affect was adequate and no mood incongruity was observed. Content of
thought did not reveal delusional thought. He was proud of his achievements
in line with his profession and expressed his frustration and dissatisfaction
with the way his colleagues are handling his pending administrative cases.
He was observed to be reality-oriented and was not suffering from
hallucinations or abnormal perceptual distortions. Orientation, with respect to
time, place and person, was unimpaired. Judgment and decision-making
capacity were adequately functioning.
xxxx
PINEDAPCGRNMAN
An open-ended clinical interview was conducted at our clinic on December
26, 2000. He talked about his family and academic achievements. He
claimed to possess a divine gift for prophecy and a gift of healing. He also
talked about a "covenant" made during a dream between him and 3 dwarf
friends named Luis, Armand and Angel. He reported that the first part of his
ministry is to cast illness and/or disease and the second part is to heal and
alleviate sufferings/pain from disease.
A series of psychological test was administered to Judge Floro on December
28, 2000. The battery of test consisted of the following: (1) Otis-Lennon
Mental Ability Test (2) SRA Language Test (3) Purdue Non-Language Test
(4) Sack’s Sentence Completion Test and (5) Draw A Person Test. Test
results and evaluation showed an individual with an Above Average
Intelligence. Projective data, showed an obsessive-compulsive person who
is meticulous to details and strive for perfection in tasks assigned to him. He
is reality-oriented and is deemed capable of making day-to-day decisions in
his personal as well as professional decisions. Confusion with regard to
sexual identification, was further observed.
Based on the clinical observation and the results of the psychological tests,
respondent Judge Florentino V. Floro, Jr., was found to be a highly intelligent
person who is reality-oriented and is not suffering from any major psychotic
disorder. He is not deluded nor hallucinated and is capable of utilizing his
superior intellect in making sound decisions. His belief in supernatural
abilities is culture-bound and needs further studies/work-ups.
On cross-examination by Judge Aquino, however, Dr. Maaba also stated that
Judge Floro was unfit to be a judge.117 The relevant exchanges between Dr.
Maaba and Judge Aquino are hereunder reproduced:
JUDGE AQUINO: And would you say that something is wrong with a judge
who shall claim that he is possessed with power of [bi-location]?
xxxx
DR. MAABA: A reality-oriented individual would not claim to be in two (2)
places at one time.
Q: And that something must be wrong?
A: Yes.
Q: Okay. Would you say that something is wrong also with a judge claiming
in the course of his testimony and in this very case that while [he] was so
testifying there is another spirit, another person, another character unseen
who is with him at the same time or in tagalog "sumapi sa kanya".
xxxx
A: The observation that Judge Floro had unseen companion "sumapi" to me
is unbelievable.
Q: Unbelievable. And anyone claiming it might be suffering from some
delusion?
xxxx
A: It could be and it could not be considered as perceptual distortion, your
Honor.
Q: No, Delusion.
Page 419
A: Delusions, no, but Hallucinations, maybe yes.
LEGAL ETHICS
Q: Ah, Hallucination, and which maybe worse?
A: Both are on the same footing.
Q: Okay. Would you say that the person declaring in a proceeding as a
witness about hallucinatory matters would turn out to be fit to become a
judge?
xxxx
A. If these delusions or hallucinations are part and parcel of a major
psychiatric disorder like schizophrenia or an organic mental disorder, this
individual suffering from hallucinations or delusions is unfit to sit as a judge,
however, there is, this symptom might also exi[s]t in a non-psychotic illness
and the hallucinations and delusions could be transient and short in duration.
Q: But of doubtful capacity to sit as a judge?
A: Yes, doubtful capacity.
Q: Now, trance is something covered by the field of which you are practicing
with psychiatry.
A: Yes.
Q: Would you consider a person claiming in the course of a judicial, quasi-
judicial or administrative proceedings particularly in the course of his
testimony that while he was doing so, he was under trance normal.
xxxx
A: Let me explain the phenomenon of trance it is usually considered in the
Philippines as part of a culture bound syndrome and it could also be an
indication … Basically the phenomenon of trance are often seen in cases of
organic mental disorder. It is also common in culture bound syndrome and
the effect of person is usually loss of concentration in a particular settings or
situations so that a person or a judge hearing a case in court would [lose]
concentration and would not be able to follow up testimony of witnesses as
well as arguments given by the counsel for the defense and also for the
prosecution, so I would say that there is this difficulty in manners of attention
span and concentration if that person sitting as a judge experience trance as
in the case of Judge Floro, this trance is manifested by flashing of lights and
he might not be able to rationalize or to control expressions or as well as
physical when he is in a trance.
Q: Have you heard of a judge claiming that in the course of a proceeding, he
was in a trance?
A: No, I have not encountered any.
Q: And if you hear one and will be shown records of one maybe such claim
you will call that person not a normal person.
A: Maybe weird.
Q: I will now show to you portions of the stenographic notes of the
proceedings in these cases held on October 10, 2000, afternoon session,
page 30 we start with the question of Atty. Dizon. "Atty. Dizon: Mr. witness,
can you tell us? Are you in trance at this very precise moment? JUDGE
FLORO, JR.: "Nakalakip sila". I call it a trance, but I distinguished not the
trance that you see the – nag-sa-Sto., Nino, naninigas. That’s a trance that
is created by the so called… Because Fr. Jaime Bulatao, multi awarded
Jesuit priest, considered that as mind projection. He is correct in a sense that
PINEDAPCGRNMAN
those nagta-trance na yan, naninigas, the mind projection or the hypnosis do
come, and there is a change in the psychological aspect of the person. But
in my case I never was changed physically or mentally. Only the lights and
heat will penetrate that person. ATTY. DIZON: That will do. So at this very
moment, Mr. witness, "meron kayong kalakip ngayon?"" "Ngayong oras na
ito?" JUDGE FLORO: Yes, they are here. Atty. DIZON: Where are they?
Judge Floro, Jr.: They cannot be seen but… ATTY. DIZON: No, can you see
them?" To point to us where are they in this room?", Now that you have read
and seen this portion wherein Judge Floro himself admitted that in the course
of his testimony in these cases he was in a trance, would you still consider
him at least insofar as this claim of his to be a normal person?
A: No.
Q: No, okay, so he is not normal. Now, Judge Floro in these proceedings also
and I will show to you the transcript of stenographic notes later have claimed
that he had, always had and still had a so–called counter part, his other side,
other self, what can you say to that claim, would that be the claim of a normal,
mental sound person?
A: No.
Q: And one who is not normal and mentally sound is of course not fit to sit as
judge?
xxxx
A: Yes. 118
Based on the foregoing, the OCA, thru Justice Ramirez, reported that:
Upon the testimony of his own witnesses, Drs. Eduardo T. Maaba, Ma.
Nieves Celeste and Eduardo L. Jurilla, respondent Judge Florentino V. Floro,
Jr. is unfit because of insanity to remain in office as Judge of the Regional
Trial Court, National Capital Judicial Region, Malabon, Metro Manila, Branch
73.
It is weird for respondent Judge to state in one of his pleadings in this case
that President Estrada would not finish his term as President. It is unusual
and queer of him to state in his calling card that he is a graduate of Ateneo
de Manila, second honors, bar topnotcher with a grade of 87.55% and include
in his address the name Colonel Reynaldo Cabauatan who was involved in
a coup d’etat attempt. So is it strange of him to make use of his alleged
psychic powers in writing decisions in the cases assigned to his court. It is
improper and grandiose of him to express superiority over other judges in the
course of hearings he is conducting and for him to say that he is very
successful over many other applicants for the position he has been
appointed. It is abnormal for a Judge to distribute self-serving propaganda.
One who distributes such self-serving propaganda is odd, queer, amusing,
irresponsible and abnormal. A judge suffering from delusion or hallucination
is unfit to be one. So is he who gets into a trance while presiding at the
hearing of a case in court. One need not be a doctor of medicine, a
psychiatrist and a psychologist to determine and conclude that a person in
such circumstances is mentally unfit or insane and should not be allowed to
continue discharging the duties and functions of a judge. The life, liberty and
property of the litigants in the court presided by such judge are in his hands.
Hence, it is imperative that he is free from doubt as to his mental capacity
and condition to continue discharging the functions of his office.
RECOMMENDATION
WHEREFORE, it is respectfully recommended that by reason of insanity
which renders him incapable and unfit to perform the duties and functions of
Page 420
Judge of the Regional Trial Court, National Capital Judicial Region, Malabon,
LEGAL ETHICS
Metro Manila, Branch 73, respondent Florentino V. Floro, Jr. be REMOVED
and DISMISSED from such office. 119
We are in agreement with the OCA that Judge Floro cannot remain as RTC
Judge because of the findings of mental impairment that renders him unfit to
perform the functions of his office. We hasten to add, however, that neither
the OCA nor this Court is qualified to conclude that Judge Floro is "insane"
as, in fact, the psychologists and psychiatrists on his case have never said
so.
When Justice Ramirez recommended that Judge Floro be dismissed from
the service due to "insanity," he was apparently using the term in its loose
sense. Insanity is a general layman’s term, a catch–all word referring to
various mental disorders. Psychosis is perhaps the appropriate medical term
120 as this is the one used by Drs. Vista and Villegas of the Supreme Court
Clinic. It is of note that the 1995, 1998 and 2000 psychological evaluations
all reported signs and symptoms of psychosis.
Courts exist to promote justice; thus aiding to secure the contentment and
happiness of the people. 121 An honorable, competent and independent
judiciary exists to administer justice in order to promote the stability of
government, and the well-being of the people. 122 Carrying much of the weight
in this daunting task of administering justice are our front liners, the judges
who preside over courts of law and in whose hands are entrusted the destinies
of individuals and institutions. As it has been said, courts will only succeed in
their tasks if the judges presiding over them are truly honorable men,
competent and independent. 123
There is no indication that Judge Floro is anything but an honorable man.
And, in fact, in our disposition of the 13 charges against him, we have not
found him guilty of gross misconduct or acts or corruption. However, the
findings of psychosis by the mental health professionals assigned to his case
indicate gross deficiency in competence and independence.
Moreover, Judge Floro himself admitted that he believes in "psychic visions,"
of foreseeing the future because of his power in "psychic phenomenon." He
believes in "duwendes" and of a covenant with his "dwarf friends Luis,
Armand and Angel." He believes that he can write while on trance and that
he had been seen by several people to have been in two places at the same
time. He has likened himself to the "angel of death" who can inflict pains on
people, especially upon those he perceived as corrupt officials of the RTCs
of Malabon. He took to wearing blue robes during court sessions, switching
only to black on Fridays. His own witness testified that Judge Floro explained
that he wore black from head to foot on Fridays to recharge his psychic
powers. Finally, Judge Floro conducted healing sessions in his chambers
during his break time. All these things validate the findings of the Supreme
Court Clinic about Judge Floro’s uncommon beliefs and that such beliefs
have spilled over to action.
Lest we be misconstrued, we do not denigrate such belief system. However,
such beliefs, especially since Judge Floro acted on them, are so at odds with
the critical and impartial thinking required of a judge under our judicial
system.
Psychic phenomena, even assuming such exist, have no place in a judiciary
duty bound to apply only positive law and, in its absence, equitable rules and
principles in resolving controversies. Thus, Judge Floro’s reference to
psychic phenomena in the decision he rendered in the case of People v.
Francisco, Jr. 124 sticks out like a sore thumb. In said decision, Judge Floro
discredited the testimony of the prosecution’s principal witness by concluding
that the testimony was a "fairytale" or a "fantastic story." 125 He then went to
state that "psychic phenomena" was destined to cooperate with the
stenographer who transcribed the testimony of the witness. The pertinent
portion of Judge Floro’s decision is quoted hereunder:
3. The testimony of the prosecution’s PRINCIPAL witness (sole eyewitness
of the incident) NORMANDY is INCREDIBLE, is full of inconsistencies (major
PINEDAPCGRNMAN
and not regarding minor points), ergo, the court concludes that due to several
indicia of fraud/perjury (flagrant/palpable deception of the Court), his
testimony is not worthy of belief, assuming ex-gratia argumenti, that the same
may be admissible, and his Court narrative is hereby declared a FAIRY TALE
or a FANTASTIC STORY of a crime scene that is acceptable only for
SCREEN/cinematic viewing. The following details, are proof of the foregoing
conclusion:
a.) NORMANDY swore that he, Ponciano Ineria and Raul Ineria were
"sinalubong" by Lando/accused on June 21, 1987 at 2:30 a.m. at alley
Wesleyan/Tangos, Navotas, and that he saw the "nagpambuno" between
Raul and Ando, and that HE SAW P. INERIA dead, but HE WAS NO
LONGER THERE, but he still saw the "nagpambuno"; MORE
IMPORTANTLY, he SWORE that HE NOTICED the ACCUSED P. Francisco
THE FOLLOWING DAY;
b.) The foregoing verily demonstrate his 11th HOUR CONCOCTION (Big Lie,
having been asked to submit false testimony); for how could have he
witnessed the stabbing by accused when he NOTICED him the following
day? (TSN dated May 2, 1995, pp. 1-2); assuming arguendo that the TSN
was incorrect due to typographical error, or maybe the Court Stenographer
III Eloisa B. Domingo might have been SLEEPING during the testimony, so
that the word DAY should have been corrected to another word SUITABLE
to Normandy’s FAIRY TALE, still, the Court had synthesized the entire
NARRATIVE of Normandy, but the Court found no reason that the seeming
error ‘DAY’ should be corrected; the Court’s sole/remaining conclusion is that
EVEN the STENOGRAPHIC NOTES cooperated by PSYCHIC
PHENOMENA perhaps of FOR SURE, in having BEEN DESTINED to be
FATEFULLY INSCRIBED WITH THE WORDS FOLLOWING DAY (line 3, p.
3 TSN, id.) 126 (Emphasis supplied)
In State Prosecutors v. Muro 127 we held that –
What is required on the part of judges is objectivity. An independent judiciary
does not mean that judges can resolve specific disputes entirely as they
please. There are both implicit and explicit limits on the way judges perform
their role. Implicit limits include accepted legal values and the explicit limits
are substantive and procedural rules of law. 128
The judge, even when he is free, is still not wholly free. He is not to innovate
at pleasure. He is not a knight-errant, roaming at will in pursuit of his own
ideal of beauty or goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and
unregulated benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinate to the
"primordial necessity of order in the social life." 129
Judge Floro does not meet such requirement of objectivity and his
competence for judicial tasks leaves much to be desired. As reported by the
Supreme Court Clinic:
Despite his impressive academic background and achievements, he has
lapses in judgment and may have problems with decision-making. His
character traits such as suspiciousness and seclusiveness and
preoccupation with paranormal and psychic phenomena though not
detrimental to his role as a lawyer, may cloud his judgment, and hamper his
primary role as a judge in dispensing justice. x x x 130
Judge Floro’s belief system, as well as his actuations in the eight months that
he served as RTC judge, indubitably shows his inability to function with the
cold neutrality of an impartial judge.
Verily, Judge Floro holds an exalted position in our system of government.
Page 421
Thus:
Long before a man dons the judicial robes, he has accepted and identified
himself with large components of the judge’s role. Especially if he has aspired
to a judge’s status, he is likely to have conducted himself, more or less
unconsciously, in the fashion of one who is said to have "the judicial
temperament." He is likely to have displayed the kinds of behavior that the
judge’s role demands. A large proportion of his experiences on the bench
develop and reinforce such conformity, moreover. The ritualistic elements of
investiture and of court procedure, the honorific forms of address, and even
the imposing appearance of some court buildings serve to emphasize the
demands upon his behavior. Even the most unscrupulous former ambulance
chaser who owes his position to a thoroughly corrupt political organization
must conform at least in part to the behaviors expected of him as a judge.131
The expectations concerning judicial behavior are more than those expected
of other public officials. Judges are seen as guardians of the law and they
must thus identify themselves with the law to an even greater degree than
legislators or executives. 132
As it has been said, "[j]udges administer justice judicially, i.e., not according
to some abstract ideas of right and justice, but according to the rules laid
down by society in its Code of Laws to which it gives its sanctions. The
function of the judge is primarily adjudication. This is not a mechanical craft
but the exercise of a creative art, whether we call it legislative or not, which
requires great ability and objectivity." 133 We, thus, quote Justice Frankfurter,
in speaking of the functions of the Justices of the Supreme Court of the
United States:
To practice the requisite detachment and to achieve sufficient objectivity no
doubt demands of judges the habit of self-discipline and self-criticism,
incertitude that one’s own views are incontestable and alert tolerance toward
views not shared. But these are precisely the presuppositions of our judicial
process. They are precisely the qualities society has a right to expect from
those entrusted with … judicial power.
xxxx
The judicial judgment … must move within the limits of accepted notions of
justice and is not to be based upon the idiosyncrasies of a merely personal
judgment. 134
In fine, Judge Floro lacks the judicial temperament and the fundamental
requirements of competence and objectivity expected of all judges. He
cannot thus be allowed to continue as judge for to do so might result in a
serious challenge to the existence of a critical and impartial judiciary.
Equitable considerations entitle Judge Floro backwages and other economic
benefits for a period of three (3) years.
In retrospect, we are forced to say that Judge Floro should not have joined
the judiciary as RTC judge. However, we have assiduously reviewed the
history of this case and we cannot hold anyone legally responsible for such
major and unfortunate faux pas.
Judge Floro did not breach any rule of procedure relative to his application
for judgeship. He went through the entire gamut of tests and interviews and
he was nominated by the JBC on the strength of his scholastic achievements.
As to having failed the psychological examinations given by the SC Clinic, it
must be pointed out that this was disregarded by the JBC upon Judge Floro’s
submission of psychiatric evaluations conducted by mental health
professionals from the private sector and which were favorable to him.
Nowhere is it alleged that Judge Floro acted less than honorably in procuring
these evaluations.
The JBC in 1999 had all the discretion to refer Judge Floro to a private clinic
for a second opinion of his mental and psychological fitness. In performing
its functions, the JBC had been guided primarily by the Constitution which
prescribes that members of the Judiciary must be, in addition to other
requirements, persons of proven competence, integrity, probity and
independence. 135 It was only on 18 October 2000 when it promulgated JBC-
009, the "Rules of the Judicial and Bar Council," that the JBC put down in
writing guidelines or criteria it had previously used in ascertaining "if one
seeking such office meets the minimum constitutional qualifications and
possesses qualities of mind and heart expected of the Judiciary." 136 Rule 6
thereof states:
SECTION 1. Good health. – Good physical health and sound
mental/psychological and emotional condition of the applicant play a critical
role in his capacity and capability to perform the delicate task of administering
justice. x x x
SEC. 2. Psychological/psychiatric tests. – The applicant shall submit to
psychological/psychiatric tests to be conducted by the Supreme Court
Medical Clinic or by a psychologist and/or psychiatrist duly accredited by the
Council.
It would seem that as things stood then, the JBC could very well rely on the
evaluation of a private psychologist or psychiatrist not accredited by the JBC.
Thus, the JBC cannot be faulted for accepting the psychological evaluations
of mental health professionals not affiliated with the Supreme Court Clinic.
It goes without saying that Judge Floro’s appointment as RTC judge is fait
accompli. What awaits us now is the seemingly overwhelming task of finding
the PROPER, JUST AND EQUITABLE solution to Judge Floro’s almost
seven years of suspension in the light of the fact that the penalty imposed
herein does not merit a suspension of seven years.
Verily, the Supreme Court is vested with the power to promulgate rules
concerning pleading, practice and procedure in all courts. 137 The Constitution
limits this power through the admonition that such rules "shall provide a
simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights." 138
Rule 140 of the Rules of Court outlines the procedure to be followed in
administrative cases against judges. Glaringly, Rule 140 does not detail the
steps to be taken in cases when the judge is preventively suspended pending
investigation. This is the state of things even after its amendment by A.M.
No. 01-8-10-SC which took effect on 1 October 2001.
The Supreme Court’s power to suspend a judge, however, is inherent in its
power of administrative supervision over all courts and the personnel thereof.
139 This power -- consistent with the power to promulgate rules concerning
pleading, practice and procedure in all courts -- is hemmed in only by the
Constitution which prescribes that an adjective law cannot, among other
things, diminish, increase or modify substantive rights.
The resolution of 20 July 1999 which put Judge Floro under preventive
suspension resolved to:
(1) DIRECT Judge Florentino V. Floro, Jr. to answer the foregoing charges
against him within ten (10) days from notice; (2) REFER this case to Retired
Justice Pedro Ramirez, Consultant, Office of the Court Administrator for
investigation, report and recommendation, within sixty (60) days from receipt
of the records thereof; (3) SUBJECT Judge Florentino V. Floro, Jr. for
appropriate psychological or mental examination to be conducted by the
proper office of the Supreme Court or any duly authorized medical and/or
mental institution.
Moreover, the Court RESOLVED to place Judge Florentino Floro, effective
Page 422
immediately under PREVENTIVE SUSPENSION for the duration of the
investigation of the administrative charges against him. 140
As can be gleaned from the above-quoted resolution, Judge Floro’s
suspension, albeit indefinite, was for the duration of the investigation of the
13 charges against him which the Court pegged at 60 days from the time of
receipt by the investigator of the records of the case. Rule 140, as amended,
now states that "(t)he investigating Justice or Judge shall terminate the
investigation within ninety (90) days from the date of its commencement or
within such extension as the Supreme Court may grant" 141 and, "(w)ithin
thirty (30) days from the termination of the investigation, the investigating
Justice or Judge shall submit to the Supreme Court a report containing
findings of fact and recommendation." 142
From the foregoing, the rule now is that a Judge can be preventively
suspended not only for the entire period of his investigation which would be
90 days (unless extended by the Supreme Court) but also for the 30 days
that it would take the investigating judge or justice to come up with his report.
Moreover, the Court may preventively suspend a judge until such time that a
final decision is reached in the administrative case against him or her. 143This
is because –
[U]nlike ordinary civil service officials and employees, judges who are
charged with a serious offense warranting preventive suspension are not
automatically reinstated upon expiration of the ninety (90)-day period, as
mandated above. The Court may preventively suspend a judge until a final
decision is reached in the administrative case especially where there is a
strong likelihood of his guilt or complicity in the offense charged. Indeed, the
measure is intended to shield the public from any further damage or
wrongdoing that may be caused by the continued assumption of office by the
erring judge. It is also intended to protect the courts’ image as temples of
justice where litigants are heard, rights and conflicts settled and justice
solemnly dispensed.
This is a necessary consequence that a judge must bear for the privilege of
occupying an exalted position. Among civil servants, a judge is indeed in a
class all its own. After all, in the vast government bureaucracy, judges are
beacon lights looked upon as the embodiment of all what is right, just and
proper, the ultimate weapons against justice and oppression. 144
In the case of Judge Floro, he is under preventive suspension up to the
present because of the serious charge of mental unfitness aggravated by the
fact that the actual investigation into his cases dragged on for a much longer
period than 90 days. And the reasons for the delay, for the most part, can be
directly ascribed to Judge Floro himself. From the records, it would seem that
not only did Judge Floro move for several re-settings of the hearings of his
cases; he likewise dragged his feet with respect to the order to submit himself
to the appropriate psychological/mental examination. Worse, what started
out as single case against him ballooned into 10 cases which were
consolidated into one due to common questions of fact and law. 145 All in all,
Judge Floro filed seven cases against those he perceived had connived to
remove and/or suspend him from office, the last of which he filed on 19 May
2003 against Justice Ramirez. 146
Be that as it may, EQUITY demands that we exercise utmost compassion in
this case considering that the rules on preventive suspension of judges, not
having been expressly included in the Rules of Court, are amorphous at best.
We have ruled similarly in the case of Judge Philbert Iturralde, thus:
Be that as it may, we cannot in conscience hold that a judge who was placed
under preventive suspension pending investigation is not entitled to the
payment of back salaries, allowances and other economic benefits for the
entire duration of the preventive suspension. The inequity of the doctrine as
applied to judges is clearly apparent, given the peculiar circumstance in
which a judge finds himself preventively suspended by the Court "until further
orders".
In this case, Judge Iturralde was preventively suspended for 13½ months,
during which period he was not paid his salaries, allowances and other
benefits. Except for a teaching job that the Court permitted him to undertake
pending resolution of the administrative case, Judge Iturralde had no other
source of income. He thus incurred several loans to provide for his family’s
basic needs.
It would thus be unjust to deprive Judge Iturralde of his back salaries,
allowances and other economic benefits for the entire period that he was
preventively suspended. As we have said in Gloria v. Court of Appeals,
preventive suspension pending investigation is not a penalty but only a
measure intended to enable the disciplining authority to conduct an
unhampered formal investigation. We held that ninety (90) days is ample time
to conclude the investigation of an administrative case. Beyond ninety (90)
days, the preventive suspension is no longer justified. Hence, for purposes
of determining the extent of back salaries, allowances and other benefits that
a judge may receive during the period of his preventive suspension, we hold
that the ninety-day maximum period set in Gloria v. Court of Appeals, should
likewise be applied.
Concededly, there may be instances when an investigation would extend
beyond ninety (90) days and such may not be entirely unjustified.
Nevertheless, we believe that in such a situation, it would be unfair to
withhold his salaries and other economic benefits for the entire duration of
the preventive suspension, moreso if the delay in the resolution of the case
was not due to his fault. Upon being found innocent of the administrative
charge, his preventive suspension exceeding the ninety-day (90) period
actually becomes without basis and would indeed be nothing short of
punitive. It must be emphasized that his subsequent acquittal completely
removed the cause for his preventive suspension in the first place.
Necessarily, therefore, we must rectify its effects on just and equitable
grounds. 147
Taking off from the case of Judge Iturralde, we hold that Judge Floro is
likewise entitled to the payment of back salaries, allowances and other
economic benefits being at the receiving end of a rule peculiar to judges who
find themselves preventively suspended by the Court "until further orders" or,
as this case, "for the duration of the investigation." Judge Iturralde’s
suspension of 13 ½ months even pales in comparison to Judge Floro’s
suspension of 81 months, more or less. During this entire excruciating period
of waiting, Judge Floro could not practice his profession, thus putting him
solely at the mercy of his brother’s largesse. And, though he was given
donations by those who came to him for healing, obviously, these could not
compensate for his loss of income as Judge.
Unlike the case of Judge Iturralde, however, wherein we held that the period
of suspension exceeding 90 days should be the basis for the payment of back
salaries, we hold that, as a matter of equity, Judge Floro is entitled to back
salaries, allowances and other economic benefits for a period corresponding
to three of his almost seven years suspension. We cannot apply the ruling in
Gloria that any suspension served beyond 90 days must be compensated as
we would be, in effect, rewarding Judge Floro’s propensity to delay the
resolution of his case through the indiscriminate filing of administrative cases
against those he perceived connived to oust him out of office. In Judge
Iturralde’s case, the investigation was not delayed through any fault of his.
More importantly, Judge Iturralde was ultimately held innocent, thus, using
by analogy Gloria v. Court of Appeals, his suspension in excess of 90 days
was already in the nature of a penalty which cannot be countenanced
precisely because, being innocent, he cannot be penalized. Judge Floro, on
the other hand, and as already discussed, contributed to the delay in the
investigation of his cases. Moreover, unlike Judge Iturralde, Judge Floro has
not been adjudged innocent of all the 13 charges against him.
These facts, however, as we have already discussed, do not put Judge Floro
beyond the reach of equity. To paraphrase Justice Brandeis, equity does not
demand that its suitors are free of blame. As we are wont to say:
Page 423
Equity as the complement of legal jurisdiction seeks to reach and do
complete justice where courts of law, through the inflexibility of their rules and
want of power to adapt their judgments to the special circumstances of cases,
are incompetent so to do. Equity regards the spirit of and not the letter, the
intent and not the form, the substance rather than the circumstance, as it is
variously expressed by different courts. 148
In fine, notwithstanding the fact that Judge Floro is much to blame for the
delay in the resolution of his case, equitable considerations constrain us to
award him back salaries, allowances and other economic benefits for a
period corresponding to three years. This is because Judge Floro’s
separation from the service is not a penalty as we ordinarily understand the
word to mean. It is imposed instead upon Judge Floro out of necessity due
to a medically disabling condition of the mind which renders him unfit, at least
at present, to continue discharging the functions of his office.
The period of three years seems to us the most equitable under the
circumstances. As discussed, if we were to give him more than three years
of back salaries, etc., then it would seem that we are rewarding him for his
role in delaying the resolution of these cases (as well as the seven cases he
filed which were only dismissed on 14 February 2006 at his own bidding). On
the other hand, if we were to peg the period at less than three years then the
same would only be a pittance compared to the seven years suspension he
had to live through with Damocles’ sword hanging over his head and with his
hands bound as he could not practice his profession.
Judge Floro’s separation from the service moots the case against him
docketed as A.M. No. 99-7-273-RTC (Re: Resolution Dated 11 May 1999 Of
Judge Florentino V. Floro, Jr.) A.M. No. RTJ-06-1988 (Luz Arriego v. Judge
Florentino V. Floro, Jr.), on the other hand, is dismissed for lack of merit.
A.M. No. 99-7-273-RTC
It cannot be gainsaid that Judge Floro’s separation from the service renders
moot the complaint in A.M. No. 99-7-273-RTC. As it is, even the most
favorable of resolutions in this case will not cause a ripple on the Court’s
decision to separate Judge Floro from the service. Thus, this charge is
dismissed for being moot and academic.
A.M. No. RTJ-06-1988
Considering that this case is a replica of charge "h" in A.M. No. RTJ-99-1460
and considering that charge "h" is without basis, this particular complaint filed
by Luz Arriego must necessarily be dismissed for lack of merit.
Judge Floro’s separation from the service does not carry with it forfeiture of
all or part of his accrued benefits nor disqualification from appointment to any
other public office including government-owned or controlled corporations.
As Judge Floro’s separation from the service cannot be considered a penalty,
such separation does not carry with it the forfeiture of all or part of his accrued
benefits nor disqualification from appointment to any other public office
including government-owned or controlled corporations.
In fact, the psychological and psychiatric reports, considered as the bedrock
of the finding of mental impairment against Judge Floro, cannot be used to
disqualify him from re-entering government service for positions that do not
require him to dispense justice. The reports contain statements/findings in
Judge Floro’s favor that the Court cannot overlook in all fairness as they
deserve equal consideration. They mention Judge Floro’s assets and
strengths and capacity for functionality, with minor modification of work
environment. Thus:
a. High intellectual assets as a result of "self-discipline and self-
organization." 149
b. "(I)mpressive academic achievements" with "no drastic change in his
personality and level of functioning as a lawyer in private practice." 150
c. "(C)haracter traits of suspiciousness, seclusiveness, pre-occupation with
paranormal and psychic phenomena … not detrimental to his role as a
lawyer." 151
d. "Everyday situations can be comprehended and dealt with in moderate
proficiency …. His concern for the details that make up a total field represents
his attempts at being systematic and cautious." 152
e. "(E)quipped with analytical power." 153
Consequently, while Judge Floro may be dysfunctional as a judge because
of the sensitive nature of said position, he may still be successful in other
areas of endeavor.
Putting all of the above in perspective, it could very well be that Judge Floro’s
current administrative and medical problems are not totally of his making. He
was duly appointed to judgeship and his mental problems, for now, appear
to render him unfit with the delicate task of dispensing justice not because of
any acts of corruption and debasement on his part but clearly due to a
medically disabling condition.
Finally, if Judge Floro’s mental impairment is secondary to genetics
154 and/or adverse environmental factors (and, unfortunately, such essential
information is not available), we cannot condemn people for their faulty genes
and/or adverse environment – factors they have no control over.
WHEREFORE, premises considered, the Court resolves to:
1) FINE Judge Florentino V. Floro, Jr. in the total amount of FORTY
THOUSAND (P40,000.00) PESOS for seven of the 13 charges against him
in A.M. No. RTJ-99-1460;
2) RELIEVE Judge Florentino V. Floro, Jr. of his functions as Judge of the
Regional Trial Court, Branch 73, Malabon City and consider him
SEPARATED from the service due to a medically disabling condition of the
mind that renders him unfit to discharge the functions of his office, effective
immediately;
3) As a matter of equity, AWARD Judge Florentino V. Floro, Jr. back salaries,
allowances and other economic benefits corresponding to three (3) years;
4) DISMISS the charge in A.M. No. RTJ-06-1988 (Luz Arriego v. Judge
Florentino V. Floro, Jr.) for LACK OF MERIT; and
5) DISMISS the charge in A.M. No. 99-7-273-RTC (Re: Resolution Dated 11
May 1999 Of Judge Florentino V. Floro, Jr.) for MOOTNESS.
SO ORDERED.
4.07 SEC. 7. Judges shall inform themselves about their personal
fiduciary and financial interests and shall make reasonable efforts to be
informed about the financial interests of members of their family.
4.08 SEC. 8. Judges shall not use or lend the prestige of the judicial
office to advance their private interests, or those of a member of their
family or of anyone else, nor shall they convey or permit others to
convey the impression that anyone is in a special position improperly
to influence them in the performance of judicial duties.
Page 424
G.R. No. 84324 April 5, 1990
SANTIAGO AQUINO, TERENCIO YUMANG, JR. and FULGENCIO
ICARO, petitioners,
vs.
HON. GUILLERMO R. LUNTOK, Presiding Judge, Regional Trial Court,
Branch XXIX, Libmanan, Camarines Sur and LUDOVICO B. PERALTA,
respondents.
Estanislao L. Cesa, Jr. for private respondents.
REGALADO, J.:
In this special civil action for certiorari, with an application for preliminary
injunction and/or restraining order, petitioners seek the annulment of the
following orders of respondent judge in Civil Case No. L-361 of the Regional
Trial Court of Camarines Sur, entitled "Ludovico B. Peralta vs. Henry B.
Rañola et al.," to wit: (1) Temporary restraining order (TRO, for brevity), dated
August 27, 1987, enjoining petitioners herein for a period of twenty (20) days
from proceeding or taking action against herein private respondent; (2)
Order, dated September 16, 1987, extending the efficacy of said TRO for
another period of twenty (20) days; (3) Order, dated October 6, 1987,
indirectly extending the efficacy of the TRO for an uncertain period; (4) Order,
dated November 4, 1987, granting the application for a writ of preliminary
injunction; and (5) Order, dated November 5, 1987, approving the bond filed
by private respondent which led to the eventual issuance of the writ of
November 11, 1987.
It is of record, however, that the Court of Appeals had previously rendered
judgment on May 11, 1988, in CA-G.R. SP No. 13186, 1 likewise an original
action for certiorari for the annulment of the aforesaid orders of August 27,
1987, September 16, 1987 and October 6, 1987, wherein it dismissed the
petition for being moot since a writ of preliminary injunction had already been
issued by respondent judge. We take cognizance of the finality and entry of
such judgment, 2 for which reason this Court shall primarily consider only the
prayer for the annulment of the orders, dated November 4, 1987 and
November 5, 1987, and the writ of November 11, 1987 in the present petition.
Reduced to its essential terms, the present petition raises a question,
apparently of first impression, concerning the validity of a writ of preliminary
injunction issued beyond the 20-day period of the effectivity of a restraining
order and during the extended efficacy of such order. Indeed, in the cases
treating on the matter of TROs, it appears that only the propriety of orders
extending the efficacy of the initial TRO, or the issuance of another TRO after
the first had automatically expired after the twentieth day of its issuance, have
been squarely ruled upon, but not the question of the validity of a writ of
preliminary injunction issued to restrain the same act complained of after the
lapse of the 20-day period of the TRO.
The records show that petitioners, in their capacity as Provincial Auditor of
Camarines Sur, State Auditor I of the Provincial Auditor's Office and State
Examiner of the Provincial Auditor's Office, respectively, conducted an audit
of private respondent's accounts as Municipal Treasurer of Libmanan,
Camarines Sur and found a cash shortage of P274,011.17 under his
accountability. 3
Allegedly pursuant to Section 157, Batas Pambansa Blg. 337, petitioners
seized private respondent's cash, books, papers and accounts and the latter
was suspended from office. As a consequence, private respondent
requested reinvestigation by the Commission on Audit. 4 Pending action on
the request, private respondent filed a petition dated August 26, 1987 with
the trial court, presided over by respondent judge, for prohibition with
injunction and with a prayer for a restraining order and damages. 5
Forthwith, respondent judge issued the TRO of August 27, 1987, enjoining
all respondents therein, their agents and/or representatives, for a period of
twenty (20) days from date thereof, to desist from proceeding or taking action
against private respondent based on petitioner Yumang's report and from
exercising such derivative powers and functions. 6
On September 16, 1987, which was the last day of effectivity of the TRO,
respondent judge, on motion filed by private respondent, issued an order
extending the efficacy of the TRO for another period of twenty (20) days, or
until October 6, 1987. 7
On September 24, 1987, likewise upon motion of private respondent,
respondent judge issued an order directing petitioners to return to private
respondent the cash, books and other papers they had seized. Thereupon,
petitioner Aquino filed a motion for the reconsideration of said order, to which
private respondent filed his opposition. Under date of October 5, 1987,
petitioners also filed their answer to the petition, with an opposition to the
application for preliminary injunction. 8
On October 6, 1987, the last day of the extended effectivity of the TRO,
private respondent filed another motion for extension of the efficacy of the
restraining order. On the same date, respondent judge issued an order
directing petitioners to refrain from taking any action against private
respondent until the motion is resolved. 9
In a petition dated October 27, 1987, petitioners instituted in the Court of
Appeals an original action for certiorari, with an application for preliminary
injunction and/or restraining order, docketed therein as CA-G.R. SP No.
13186 and entitled "Santiago Aquino, et al. vs. Hon. Guillermo Luntok, et al.,"
precisely putting in issue and assailing the validity of the aforesaid multiple
restraining orders dated August 27, 1987, September 16, 1987 and October
6, 1987. 10
While said petition was pending, respondent judge issued an order, dated
November 4, 1987, granting the application of private respondent for a writ
of preliminary injunction. 11 A day later, respondent judge issued another
order, dated November 5, 1987, approving the bond filed by private
respondent. 12 On November 11, 1987, respondent judge issued the
corresponding writ of preliminary injunction. 13
As an offshoot thereof and as hereinbefore noted, the Court of Appeals
rendered a decision on May 11, 1988 dismissing the petition for certiorari in
CA-G.R. SP No. 13186 on the ground of mootness, since respondent judge
had already granted the writ of preliminary injunction, thus:
Under the factual milieu of this case, no practical effect could be had since
the respondent court had already granted a writ of preliminary injunction on
November 4, 1987. 14
As earlier explained, the other orders of respondent judge, dated November
4, 1987 and November 5, 1987, and the validity of the writ issued on
November 11, 1987, are now before us for resolution in the present action.
Petitioners asseverate that the questioned writ of preliminary injunction is null
and void, it being in reality a fourth restraining order issued beyond the 20-
day effectivity of the preceeding TRO. 15 Further, petitioners claim that the
injunction was issued in utter disregard of the doctrine of exhaustion of
administrative remedies, private respondent having brought the action below
pending his request for reinvestigation with the Commission on Audit.16
On the charge of non-exhaustion of administrative remedies, although it is
well-settled in our jurisdiction that, unless otherwise provided by law or
required by public interest, before bringing an action in or resorting to the
courts of justice all remedies of administrative character affecting or
determinative of the controversy at that level should first be exhausted by the
aggrieved party, 17 this doctrine is not a hard and fast rule. In the present
case, we are inclined to subscribe to private respondent's invocation of the
urgency of judicial intervention, as one of the admitted exceptions to the rule,
18 which likewise would be in keeping with the court's broad discretion in
Page 425
granting injunctions. Whatever circumstances warranted the grant of
injunction in the court below would be no different than the circumstances
which created the urgency, and there can ordinarily be no better judge to
determine the existence thereof than the trial court itself.
Thus, it has been said that the court which is to exercise the discretion of
granting an injunction is the court of original jurisdiction and not the appellate
court; 19 and a preliminary injunction will usually be granted when it is made
to appear that there is a substantial controversy between the parties and one
of them is committing an act or threatening the immediate commission of an
act that will cause irreparable injury or destroy the status quo of the
controversy before a full hearing can be had on the merits of the case. The
only limitations to such discretion would be that it must have been exercised
upon the grounds and in the manner provided by law, 20 an inquiry into which
is precisely part of the subject of our immediately succeeding discussion on
the matter of the status of the injunction in controversy.
Contrary to petitioners' position, we are disposed to sustain the validity of the
writ of preliminary injunction in question. A temporary restraining order, while
being in effect a species of injunction, is in some respects to be distinguished
therefrom. It is an interlocutory order or writ issued by the court as a restraint
on the defendant until the propriety of granting a preliminary injunction can
be determined, thus going no further in its operation than to preserve the
status quo until that determination. When such determination is made, the
whole force of the order ceases by its own limitations and become functus
officio, having by then served its purpose.21
On this basis lies the mootness of the issue on the propriety of the issuance
of successive restraining orders upon the approval of the application for a
writ of preliminary injunction, as ruled by the Court of Appeals. With the grant
of the writ, hearing the petition which sought the annulment of the three
antecedent TROs would be inutile as the writ has been substituted for and
subserves the purpose of the prior restraining orders.
It is worth noting, nonetheless, that Section 5, Rule 58 of the Rules of Court,
as amended by Batas Pambansa Blg. 224 effective April 16, 1982, sets a
specific period for the juridical life span of a TRO, thus:
No preliminary injunction shall be granted without notice to the defendant. If
it shall appear from the facts shown by affidavits or by the verified complaint
that great or irreparable injury would result to the applicant before the matter
can be heard on notice, the judge to whom the application for preliminary
injunction was made, may issue a restraining order to be effective only for a
period of twenty days from date of its issuance. Within said twenty-day
period, the judge must cause an order to be served on the defendant,
requiring him to show cause, at a specified time and place, why the injunction
should not be granted, and determine within the same period whether or not
the preliminary injunction shall be granted, and shall accordingly issue the
corresponding order. In the event that the application for preliminary
injunction is denied, the restraining order is deemed automatically vacated. .
..
The 20-day period of effectivity of a TRO is non-extendible; the restraining
order automatically terminates at the end of such period without the need of
any judicial declaration to that effect. 22 Any extension would, therefore,
ordinarily, be disallowed. But, when injunction is subsequently granted, as in
the case at bar, any defect in the order brought about by the extension of its
enforceability is deemed cured. 23
The status or validity of the writ of preliminary injunction itself, however,
remains in question. From a reading of the above-cited provision, it may
appear that the order granting the injunction must issue within the same 20-
day period. Be that as it may, we are constrained to enunciate, since the
contrary is not expressed or otherwise indicated therein, that the mandatory
tenor of the aforecited provision should not be taken to mean that a writ
issued beyond the time frame is an absolute nullity, provided that, aside from
the existence of any of the grounds for its issuance the determination of which
is largely addressed to the trial court, the other requirements prescribed by
the rules are present, namely, healing and posting of a bond. Instead, the
obligatory import of the rule should be considered as a directive for the judge
to act with corresponding dispatch on the application for preliminary
injunction within the 20-day period if a TRO has been issued, with a
proscription against an ex parteproceeding on such application since it would
deprive the affected parties of the opportunity to be heard.
Indeed, a look at the history of the provision would reveal that Batas
Pambansa Blg. 224 was adopted precisely as a reaction against the
indiscriminate issuance of writs of preliminary injunction which, not
infrequently, converted the writ from an instrument in furtherance of justice to
a shield for injustice. 24 This was made possible not only by unscrupulous
lawyers and adventurous litigants but also by idle and corrupt judges who
tolerated the improvident and ex parte issuance thereof and, in the case of
TRO's apparently oblivious of or insensitive to the fact that these were not
conditioned on the posting of bonds to indemnify the parties against whom
they were issued.
In the instant case, we note that the protection of such bond has been
required.1âwphi1 Also, it is of record that herein petitioners and private
respondent were given an opportunity to be heard and, in fact, a hearing was
conducted by the trial court before the issuance of the writ of preliminary
injunction to determine the existence of a valid ground therefor. 25
We are constrained to sustain such action of the trial court since, except for
the delay in the resolution of the application for and the subsequent issuance
of the writ, the other requisites provided by the rules for the grant thereof
have been observed. These considerations notwithstanding, we are aware
that under the present state of the law which does not nullify a writ of
preliminary injunction issued beyond the 20-day period where a TRO has
been granted, the courts may thereby be allowed to do by indirection that
which should not be done directly. This is a matter, however, which should
be remedied by the corresponding amendment of the rule if the intent is to
nullify a writ of preliminary injunction thus belatedly issued.
Consequently, there being no other sufficient ground26 to dissolve the
injunction in controversy, the grant of the writ must sequences of the be
upheld but without prejudice to the consequences of the conduct of
respondent judge. The circumstances under which the writ was granted after
a protracted delay, punctuated by dubious orders issued in the interim,
certainly cannot be countenanced lest such conduct be replicated in
circumvention of the rules. Specifically, respondent judge failed to observe
Rule 3.01 of Canon 3 of the Code of Judicial Conduct, which calls for a judge
to be faithful to the law and maintain professional competence, and Rule 3.05
which admonishes all judges to dispose of the court's business promptly and
decide cases within the required periods. Definitely, this Court cannot gloss
over the challenged actuations of respondent judge which are amply
reflected in the records of this case.
IN VIEW OF ALL THE FOREGOING, the present petition is hereby
DISMISSED. The grant of the writ of preliminary injunction by respondent
judge is hereby SUSTAINED and the Regional Trial Court at Libmanan,
Camarines Sur or to which Civil Case No. L-361 is presently assigned is
hereby DIRECTED to expediently hear and decide the same on the merits
within a mandatory period of thirty (30) days from the finality of this judgment.
Respondent judge is hereby REPRIMANDED with a stern warning that a
repetition of the same or any similar action shall be more severely dealt with
by the Court. The temporary restraining order issued pursuant to our
resolution of August 22, 1988 is hereby LIFTED.
SO ORDERED.
4.09 SEC. 9. Confidential information acquired by judges in their judicial
capacity shall not be used or disclosed for any other purpose related
to their judicial duties.
Page 426
G.R. No. L-33508 May 25, 1973
LEON UMALE, petitioner,
vs.
HONORABLE ONOFRE VILLALUZ, HONORABLE BENJAMIN AQUINO,
PEOPLE OF THE PHILIPPINES, EDUARDO FELICIANO, ANTONIO
DAVID, CECILIO CHICO, BENJAMIN ESCANDOR, ROLANDO SAMSON,
and ALFONSO CO, respondents.
Salonga, Ordoñes, Yap, Parlade, & Associates for petitioner.
Jose W. Diokno for respondents Alfonso Co.
Noel Ramal Salaysay for respondent Benjamin Escandor and Rolando
Samson.
MAKASIAR, J.:
Petitioner Leon Umale impugns the validity of the order dated April 15, 1971
of respondent Judge Onofre A. Villaluz of the Circuit Criminal Court sitting at
Pasig, Rizal, disqualifying or inhibiting himself from trying the robbery charge
against sixteen (16) accused including the six (6) herein private respondents
Eduardo Feliciano, Antonio David, Virgilio Chico, Benjamin Escandor,
Rolando Samson, and Alfonso Co, entitled "People vs. Marina Geronimo, et
al." and docketed as CCC-VII-660-Rizal.
Petitioner Leon Umale is the complainant in the said robbery case, the
robbery having been allegedly committed on September 21, 1970 in his
warehouse in Pasig, Rizal from which were assorted textile materials valued
at P229,659.904. The original information was dated January 11, 1971, while
the first amended information was dated March 4, 1971. The case was filed
by the acting state prosecutor, who conducted the preliminary investigation
directly with the Circuit Criminal Court presided by respondent Judge Onofre
A. Villaluz, who from January 19 to April 12, 1971, issued several orders for
the arrest of the accused, fixing their bail bonds, allowing an accused to post
cash or surety bond for his provisional liberty, for their arraignment, or for
their commitment to the provincial jail, as well as issued subpoena duces
tecum and contempt citations against certain police officers who failed to
appear on the days set for hearing.
However, on April 15, 1971, without any party moving for his disqualification
or inhibition, respondent Judge Onofre Villaluz voluntarily inhibited himself
from trying the case "for the peace of mind of the parties concerned and to
insure an impartial administration of justice" on the ground that before the
criminal case was filed in his court, he already had personal knowledge of
the same; and directed the immediate forwarding of the records of the case
to the Executive Judge of the Court of First Instance of Pasig, Rizal, for
proper disposition. Petitioner's motion for reconsideration of said order of
inhibition was denied on April 16, 1971 by said respondent Judge. Another
motion of petitioner for the deferment of the raffling of the case in the Court
of First Instance of Rizal was denied by the Executive Judge, who likewise
rejected petitioner's motion for the return of the case to the Circuit Criminal
Court. The case was, after raffling, assigned to Branch VIII of the Court of
First Instance of Rizal, then presided by then Judge Benjamin Aquino and
docketed as Crim. Case No. 2729.
OUR resolution dated May 18, 1971 required respondents to answer and
authorized the issuance of a writ of preliminary injunction upon posting by
petitioner of a bond of P1,000. Petitioner posted the bond and a writ of
preliminary injunction was issued on June 21, 1971 enjoining respondent
Judge Benjamin Aquino from taking cognizance of and exercising jurisdiction
over the criminal case.
Only respondent Alfonso Co, thru counsel, filed an answer.
In a motion dated September 20, 1971 and filed on September 22, 1971,
private respondents Benjamin Escandor and Rolando Samson, two of the
defendants in CCC-VII-660 and docketed as Crim. Case No. 2729 on the
Court of First Instance, Branch VIII, Pasig, Rizal, prayed for the modification
of the said preliminary injunction so as to allow respondent Judge Benjamin
Aquino to act on their motion for bail.
In a resolution dated September 28, 1971, petitioner was required to
comment thereon within ten (10) days from notice. Petitioner failed however
to submit the required comment.
In a motion dated October 25, 1971 and filed on November 20, 1971, private
respondents Benjamin Escandor and Rolando Samson reiterated the
aforesaid motion.
In a resolution dated November 25, 1971, the Court resolved to defer action
thereon until the case is considered on the merits.
On November 4, 1971, petitioner filed his memorandum; while private
respondent Alfonso Co filed his memorandum on November 20, 1971.
The issues posed by the petition are:
(1) whether respondent Judge Onofre A. Villaluz of the Circuit Criminal Court
of Pasig, Rizal, can voluntarily, inhibit himself, without any motion therefor by
the parties, on the ground of his personal knowledge of the case even before
the same was filed; and
(2) whether, after having acquired jurisdiction over the case, the Circuit
Criminal Court can transfer the hearing of the same to the regular court of
first instance.
Undoubtedly, personal knowledge of the case pending before him is not one
of the causes for the disqualification of a judge under the first paragraph of
Section 1 of Rule 137 of the Revised Rules of Court which took effect on
January 1, 1964. But paragraph 2 of said Section 1 of Rule 137 authorizes
the judge, "in the exercise of his sound discretion, to disqualify himself from
sitting in a case, for just or valid reason other than those mentioned" in
paragraph 1.
Before the rule was amended in 1964, a judge could not voluntarily inhibit
himself on grounds of extreme delicacy,1 or prejudice or bias or hostility 2 not
even when he would be violating Sections 3, 26 and 30 of the Canons of
Judicial Ethics because he is a paid professor of law in the college owned by
one of the litigants. 3 Neither was a judge disqualified from trying a
prosecution for perjury of an accused, who was ordered investigated and
prosecuted as a perjured witness by said judge; 4 not even if the judge himself
took great interest and an active part in the filing of the criminal charge to the
extent of appointing the fiscal when the regular province fiscal refused to file
the proper information. 5
But in 1961, We enunciated that a judge can inhibit himself from trying a case
on the ground that the opinion he express in a letter addressed by him as
counsel might in some way or another influence his decision in the case at
bar and express his fear of not being able to render a truly impartial judgment.
6
In 1962, We also ruled in the case of Del Castillo vs. Javelona 7 that a judge
may voluntarily inhibit himself by reason of his being related to a counsel
within the fourth civil degree (no expressly included as a ground in par. 1 of
Rule 137); because Rule 126 (the old rule) "does not include nor preclude
cases and circumstances for voluntary inhibition which depends upon the
discretion of the officers concerned."
Page 427
And in 1967, We affirmed that a judge may voluntarily disqualify himself on
grounds other than those mentioned in paragraph 1 of Section 1 of Rule 137,
as amended, such as bias or prejudice engendered by the judge having "lost
respect in the manner the prosecutor was handling the case ..." 8; or when
the lawyer for a litigant is his former associate. 9
Herein respondent Judge, because of his personal knowledge of the case, at
least had conducted a careful self-examination after hearing some incidents
on the criminal case wherein petitioner is the complainant, because such
personal knowledge on his part might generate in his mind some bias or
prejudice against the complaining witness or any of the accused or in an
manner unconsciously color his judgment one way or the other without the
parties having the opportunity to cross-examine him as a witness. Herein
respondent Judge therefore harkened to the injunction announced by this
Court in Pimentel versus Salanga 10 that when a Judge "might be induced to
act in favor of one party or with bias or prejudice against a litigant arising out
of circumstance reasonably capable of inciting such a state of mind, he
should conduct a careful self-examination. He should exercise his discretion
in a way that the people's faith in the courts of justice is not impaired. A
salutary norm is that he reflect on the probability that a losing party might
nurture at the back of his mind the thought that the judge had unmeritoriously
tilted the scales of justice against him."
It is possible that the respondent Judge might be influenced by his personal
knowledge of the case when he tries and decides the same on the merits,
which would certainly constitute a denial of due process to the party
adversely affected by his judgment or decision. It is best that, after some
reflection, the respondent Judge on his own initiative disqualified himself from
hearing the robbery case filed by herein petitioner and thereby rendered
himself available as witness to any of the parties and therefore maybe subject
to cross-examination.
Herein respondent Judge should be commended this time for heeding Our
ruling in the case of Geotina vs. Gonzales 11 that "a judge, sitting on a case
must at all times be fully free, disinterested, impartial and independent.
Elementary due process requires a hearing before an impartial and
disinterested tribunal. A judge has both the duty of rendering a just decision
and the duty of doing it in a manner completely free from suspicion as to his
fairness and as to his integrity."
And Mr. Justice Fernando, speaking for the Court, in the case of Mateo, Jr.,
et al. vs. Honorable Onofre Villaluz, etc., supra, added that: "... it is made
clear to the occupants of the bench that outside of pecuniary interest,
relationship or previous participation in the matter that calls for adjudication,
there may be other causes that could conceivably erode the trait of
objectivity, thus calling for inhibition. That is to betray a sense of realism, for
the factors that lead to preferences or Predilections are many and varied. It
is well, therefore, that if any such should make its appearance and prove
difficult to resist, the better course for a judge is to disqualify himself. That
way, he avoids being misunderstood. His reputation for probity and objectivity
is preserved. What is even more important, the ideal of an impartial
administration of justice is lived up to. Thus is due process vindicated."
Having thus voluntarily inhibited himself from trying the criminal case in which
herein petitioner is the complainant, the respondent Judge has the discretion
likewise to transfer the case to the regular courts of first instance sitting in
Pasig, Rizal where he holds court, since the regular Court of First Instance
has concurrent jurisdiction with the Circuit Criminal Court over this case for
robbery (Sec. 1, R.A. No. 5179).
This transfer is all the more justified because there is no other judge sitting
in the Circuit Criminal Court of Rizal or in the 7th Judicial District which
comprises the provinces of Rizal, Cavite and Palawan, as well as the cities
of Quezon, Caloocan, Pasay, Cavite, Tagaytay, and Trece Martires as there
is only one circuit criminal court for each of the 16 judicial districts of the court
(Sec. 1, R.A. No. 5179). Furthermore, under Section 3 of Republic Act No.
5179, the "provisions of all laws and the Rules of Court relative to the judges
of the Courts of First Instance and the trial, disposition and appeal of criminal
cases therein shall be applicable to the circuit judges and the cases
cognizable by them insofar as they are not inconsistent with" its provisions.
The Judiciary Act and the Rules of Court do not prohibit the raffling or re-
raffling among the Judges in the same station and in the same Judicial
District of a case where the Judge to whom it was originally raffled or
assigned is disqualified or voluntarily inhibiting himself for valid and just
causes. This has been done in many instances. It was likewise done in the
case at bar after the criminal case transferred to the regular Courts of First
Instance sitting at Pasig, Rizal. The validity of the trial and the decision
rendered in the case depends solely on the jurisdiction of the court over the
subject matter of the case and over the parties, to whom due process of law
has been accorded.
Consequently, herein respondent Judge committed no abuse of discretion..
WHEREFORE THE PETITION IS HEREBY DISMISSED, WITH COSTS
AGAINST PETITIONER.
4.10 SEC. 10. Subject to the proper performance of judicial duties,
judges may
(a) Write, lecture, teach and participate in activities concerning the law,
the legal system, the administration of justice or related matters;
(b) Appear at a public hearing before an official body concerned with
matters relating to the law, the legal system, the administration of
justice or related matters;
(c) Engage in other activities if such activities do not detract from the
dignity of the judicial office or otherwise interfere with the performance
of judicial duties.
A.M. No. 88-7-1861-RTC October 5, 1988
IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER
OF THE ILOCOS NORTE PROVINCIAL COMMITTEE ON JUSTICE.
PADILLA, J.:
On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui,
Ilocos Norte, Branch 19, sent this Court a letter which reads:
Hon. Marcelo Fernan
Chief Justice of the Supreme Court
of the Philippines
Manila
Thru channels: Hon. Leo Medialdea
Court Administrator
Supreme Court of the Philippines
Sir:
By Executive Order RF6-04 issued on June 21, 1988 by the Honorable
Provincial Governor of Ilocos Norte, Hon. Rodolfo C. Farinas, I was
designated as a member of the Ilocos Norte Provincial Committee on Justice
created pursuant to Presidential Executive Order No. 856 of 12 December
1986, as amended by Executive Order No. 326 of June 1, 1988. In
Page 428
consonance with Executive Order RF6-04, the Honorable Provincial
Governor of Ilocos Norte issued my appointment as a member of the
Committee. For your ready reference, I am enclosing herewith machine
copies of Executive Order RF6-04 and the appointment.
Before I may accept the appointment and enter in the discharge of the powers
and duties of the position as member of the Ilocos (Norte) Provincial
Committee on Justice, may I have the honor to request for the issuance by
the Honorable Supreme Court of a Resolution, as follows:
(1) Authorizing me to accept the appointment and to as assume and
discharge the powers and duties attached to the said position;
(2) Considering my membership in the Committee as neither violative of the
Independence of the Judiciary nor a violation of Section 12, Article VIII, or of
the second paragraph of Section .7, Article IX (B), both of the Constitution,
and will not in any way amount to an abandonment of my present position as
Executive Judge of Branch XIX, Regional Trial Court, First Judicial Region,
and as a member of the Judiciary; and
(3) Consider my membership in the said Committee as part of the primary
functions of an Executive Judge.
May I please be favored soon by your action on this request.
Very respectfully yours,
(Sgd) RODOLFO U. MANZANO
Judge
An examination of Executive Order No. 856, as amended, reveals that
Provincial/City Committees on Justice are created to insure the speedy
disposition of cases of detainees, particularly those involving the poor and
indigent ones, thus alleviating jail congestion and improving local jail
conditions. Among the functions of the Committee are—
3.3 Receive complaints against any apprehending officer, jail warden, final
or judge who may be found to have committed abuses in the discharge of his
duties and refer the same to proper authority for appropriate action;
3.5 Recommend revision of any law or regulation which is believed prejudicial
to the proper administration of criminal justice.
It is evident that such Provincial/City Committees on Justice perform
administrative functions. Administrative functions are those which involve the
regulation and control over the conduct and affairs of individuals for; their
own welfare and the promulgation of rules and regulations to better carry out
the policy of the legislature or such as are devolved upon the administrative
agency by the organic law of its existence (Nasipit Integrated Arrastre and
Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29 September 1978,
Blacks Law Dictionary).
Furthermore, under Executive Order No. 326 amending Executive Order No.
856, it is provided that—
Section 6. Supervision.—The Provincial/City Committees on Justice shall be
under the supervision of the Secretary of justice Quarterly accomplishment
reports shall be submitted to the Office of the Secretary of Justice.
Under the Constitution, the members of the Supreme Court and other courts
established by law shag not be designated to any agency performing quasi-
judicial or administrative functions (Section 12, Art. VIII, Constitution).
Considering that membership of Judge Manzano in the Ilocos Norte
Provincial Committee on Justice, which discharges a administrative
functions, will be in violation of the Constitution, the Court is constrained to
deny his request.
Former Chief Justice Enrique M. Fernando in his concurring opinion in the
case of Garcia vs. Macaraig (39 SCRA 106) ably sets forth:
2. While the doctrine of separation of powers is a relative theory not to be
enforced with pedantic rigor, the practical demands of government precluding
its doctrinaire application, it cannot justify a member of the judiciary being
required to assume a position or perform a duty non-judicial in character.
That is implicit in the principle. Otherwise there is a plain departure from its
command. The essence of the trust reposed in him is to decide. Only a higher
court, as was emphasized by Justice Barredo, can pass on his actuation. He
is not a subordinate of an executive or legislative official, however eminent.
It is indispensable that there be no exception to the rigidity of such a norm if
he is, as expected, to be confined to the task of adjudication. Fidelity to his
sworn responsibility no less than the maintenance of respect for the judiciary
can be satisfied with nothing less.
This declaration does not mean that RTC Judges should adopt an attitude of
monastic insensibility or unbecoming indifference to Province/City
Committee on Justice. As incumbent RTC Judges, they form part of the
structure of government. Their integrity and performance in the adjudication
of cases contribute to the solidity of such structure. As public officials, they
are trustees of an orderly society. Even as non-members of Provincial/City
Committees on Justice, RTC judges should render assistance to said
Committees to help promote the laudable purposes for which they exist, but
only when such assistance may be reasonably incidental to the fulfillment of
their judicial duties.
ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is
DENIED.
SO ORDERED.
Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and
Regalado, JJ., concur.
4.11 SEC. 11. Judges shall not practice law whilst the holder of judicial
office.
TUAZON VS PURUGGANAN 370 SCRA 511
4.12 SEC. 12. Judges may form or join associations of judges or
participate in other organizations representing the interests of judges.
4.13 SEC. 13. Judges and members of their families shall neither ask
for, nor accept, any gift, bequest, loan or favor in relation to anything
done or to be done or omitted to be done by him or her in connection
with the performance of judicial duties.
4.14 SEC. 14. Judges shall not knowingly permit court staff or others
subject to their influence, direction or authority, to ask for, or accept,
any gift, bequest, loan or favor in relation to anything done or to be
done or omitted to be done in connection with their duties or functions.
4,15 SEC. 15. Subject to law and to any legal requirements of public
disclosure, judges may receive a token gift, award or benefit as
appropriate to the occasion on which it is made, provided that such gift,
award or benefit might not reasonably be perceived as intended to
influence the judge in the performance of judicial duties or otherwise
give rise to an appearance of partiality.
Page 429
A.M. No. MTJ-86-11 September 27, 1989
ATTY. DAVID G. OMPOC, complainant,
vs.
JUDGE NORITO E. TORRES, respondent.
Valeriano S. Carillo for respondent.
RESOLUTION
PER CURIAM:
In his First Indorsement dated 9 September 1986 1 Mr. Ramon J. Liwag,
Service Chief, Technical Staff, Ministry of Justice (now Department of
Justice) referred to the Court Administrator a sworn letter complaint dated 18
June 1986 of Atty. David G. Ompoc against Judge Norito E. Torres.
The letter-complaint charged respondent Judge with gross misconduct in
office, stating, among other things, that "Judge Norito Torres is wanting of
[sic] that degree of moral fiber required of a member of a judiciary. He is unfit
to hold such an exalted position and his removal from such will pave the way
to cleanse the judiciary of the corrupt and graft-prone judges 2 Details of the
complaint read as follows:
A civil case no. R-26374 for ejectment entitled, Marcos A. Escobar, plaintiff
versus Deco Sales, defendant, was filed sometime in 1984 with the City Court
of Cebu. After the usual raffle it was assigned to Judge Norito Torres, Branch
VII. While the case was being tried on the merits, at one time he invited me
to see him at his residence at Banawa, Cebu City and he instructed me to
bring my client, Mr. Charlie Taguiam, proprietor of Deco Sales along with
me.That meeting at the residence of Judge Torres was actually held with me
and Mr. Taguiam present, and in the course of our intimate conversation he
gave us a guide what evidence and argument we have to present. Also in
that meeting Judge Torres requested Mr. Charlie Taguiam, who is engage
(sic) in the business of Car Decor to install a brand new airconditioner on his
Toyota Hi-Ace and said airconditioner was installed without Judge Norito
Torres paying for it.
As the ejectment case progressed Judge Norito Torres had been pestering
my client Mr. Charlie Taguiam with request for loans which he never
acknowledged by means of a receipt and he was given by my client sums of
money totalling Twenty Five Thousand Pesos (P25,000.00) in various
amounts and on different dates. These loans have never been paid up to now
and this certainly will not be paid, to the end of time because Judge Norito
Torres is smart enough not to sign anything.Before he penned (sic) his
decision on May 2, 1986, xerox copy is hereto attached Annex A, Judge
Torres called my client and pressured him to enter into an amicable
settlement with the plaintiff by paying the back rentals amounting to Two
Hundred Thousand Pesos (P200,000.00) because he may have entered into
an agreement with the plaintiff in the division of the spoils just in case my
client would accede to it. My client refused to enter into any kind of settlement
because he believed in the justness of his cause 3
In a Resolution dated 2 October 1986, the Court required the respondent
Judge to file his comments on the complaint. Upon consideration of the
comment dated 4 November 1986 of respondent, the Court, by a Resolution
dated 3 March 1987, resolved to refer the complaint to then Executive Judge
Juanito Bernad (now Deputy Court Administrator of the Supreme Court),
Regional Trial Court, Cebu, for investigation, report and recommendation.
Immediately after he received the order, the Investigating Judge conducted
hearings on the complaint on March 25, 27 and 31,1987; April 8, 13, 15, 20,
22 and 30,1987; and May 4 and 14, and 31, 1987.
In a Report and Recommendation dated 23 June 1987, Investigating Judge
found that respondent Judge Norito Torres then Presiding Judge of MTCC,
Branch 7, Cebu City, had before him an ejectment case entitled Marcos A.
Escobar v. Deco Sales (or Charlie Taguiam) docketed as Civil Case No. R-
26374; that while the case was ongoing, Judge Torres invited counsel for
defendant Deco Sales and the owner of Deco Sales, Mr. Charlie Taguiam, to
see him at his (the Judge's) residence for a conference; that the conference
turned out to be an out-of-chambers discussion of Civil Case No. R-26374
where Judge Torres advised them on the steps to be undertaken in order to
win the case and at the same time, requested Mr. Taguiam to have a new
air-conditioner on his Toyota Hi-Ace installed; that subsequently, Judge
Torres borrowed from Mr. Taguiam a total amount of P8,000.00 on different
dates; that in the end, Mr. Taguiam lost in Civil Case No. R-26374 because
he refused to listen to Judge Torres' advice to settle the case amicably by
paying plaintiff Marcos Escobar the amount of P200,000.00 allegedly
representing back rentals.
The Report of the Investigating Judge reads in part as follows:
(1) that the respondent Judge Norito E. Torres MTCC Cebu, City Branch VII
was, like all other judges and fiscals in Central Visayas the object of
background investigation conducted by the NBI, Regional Office, Cebu City
in connection with the judiciary reorganization of 1986, after the assumption
to office of President Aquino (Exh. 'E', p. 90 record);
(2) that the agent assigned to conduct said investigation on respondent was
Senior Agent Ramon Barot, Jr. (Exhs. 'D' and 'D-l', p. 89 Ibid);
(3) that in connection with said investigation Agent Barot elicited
documentary and testimonial evidence incriminatory to the respondent from
the respondent's janitor Mr. Paterno H. Rafols who executed on 24 June
1986 a sworn statement (Exh. 'A', pp. 84-86, record) who stated that in
addition to his duties as janitor to Branch VII, he also did errands for the
respondent and one of those errands was being sent by the respondent to
Mr. Charlie Taguiam on 24 December 1985 to receive P5,000.00 which was
in the form (to the mind of this investigator was not anticipated by the
respondent) of City Trust Bank Check No. 181384 dated 24 December 1985
(Exh. 'B', p. 86, Ibid);
(4) that janitor Rafols, without realizing the implications of receiving a check
from a party to a case for the judge, cashed it with drawee bank by indorsing
the check at the back thereof, received the cash P5,000.00 and delivered it
to the judge without telling the latter that he received a check, no evidence
that janitor Rafols told the judge having been offered;
(5) that at the time Exhibit 'B' was received by the respondent's janitor, Mr.
Charlie Taguiam and/or Deco Sales was a party defendant in Civil Case No.
R-26374 for Ejectment with a Prayer for A Writ of Preliminary Attachment
then pending at the sala of the respondent, decision thereof dated May 2,
1986 (p. 5, Ibid);
(6) that on 27 December l985 respondent's janitor again received from
Charlie Taguiam for the judge Consolidated Bank and Trust Corporation
(Tabo -an Branch, Cebu City) Check No. A 32 - 186586 dated December 27,
1985 for the amount of P3,000.00 (Exh. 'B-l', p. 87, Ibid) which he encashed
and the proceeds thereof delivered to the respondent;
xxx xxx xxx
The facts noted in the aforestated observations have been admitted by the
respondent except our own conclusions on the facts that the respondent was
unaware of the existence of those checks received and indorsed by his janitor
and the unanticipated background checks because being a former agent of
Page 430
the NBI, he would have known better than to leave tell-tale evidence.
The receipt of the checks for the respondent and the amounts corresponding
thereto were confirmed not only by court janitor Rafols but also by Mr. Charlie
Taguiam himself who took the witness standnot as an avenging witness
desiring vengeance but appeared merely in obedience to the subpoena
issued by this investigator in his capacity as Executive Judge (p. 71, record).
The existence and authenticity of said photocopies (Exh. 'B', 'B-1') were
established by the testimony of Senior Agent Ramon Barot Jr. who likewise
testified and Identified the photocopies comparing them with the originals and
microfilm presented during the hearing and found by the undersigned to be
faithful reproductions.
Charlie Taguiam testified that those amounts (Exh. 'B', for P5,000.00 and
Exh. 'B-l' for P3,000.00 were loans requested by the respondent-judge from
him during the pendency of his case but were not receipted by the respondent
and were never paid; that he did not demand any receipt because the
respondent was and still is a judge that he could not bring himself to demand
receipts from the respondent but impliedly would have welcomed, if not
wished to be paid, notwithstanding the pendency of his case then at the
respondent's sala at the time the loans were asked:
That Charlie Taguiam while testifying did not show or betray any trace of
revenge against the judge whom he gave so much attention and expense
(the improvements on the respondent's vehicle will be discussed later) in
spite of losing his case after so much expectation of a victory somewhat
anticipated not only by his belief on the merits of his case but also by the
respondent's seemingly encouraging attitude in the request and acceptance
of favors other than the uncontrollable tears rolling down his cheeks
remembering the past, losing the case and in having to compromise his case
for P200,000.00 at the RTC of Cebu City at his aged and sick mother's
behest, who had suffered a stroke as a result of said litigation, near
bankruptcy, him without a father and having to revive and resuscitate the
business as the eldest in the family at that stage of near bankruptcy 4
xxx xxx xxx
Respondent tried to account for the checks that were submitted in evidence
through a strange, involved story concerning an alleged entrepreneurial effort
on the part of some of his townmates to raise money. The Investigating Judge
found the respondent's and his witnesses' stories as unworthy of credence:
Indeed, it is taxing one's imagination to lend credence to the fantastic theory
of the defense that to summarize briefly, a Municipal judge will raise
P50,000.00 in cold cash from a friend (Mr. Amodia) in a matter of a day's
time, without signing any note or giving any collateral for it, nor the latter
demanding any memorandum thereof and giving it to another friend (Mr.
Amistad) without again any promissory note, memorandum or collateral but
merely on a verbal promise of 50% share in the profit plus legal interest of a
considerable amount such as P50,000.00 in 3 month's time;
That when the 3 months was up, the alleged lender (Amodia) called the judge
(Torres) to remind him of the money and the latter reminding the borrower,
who allegedly issued a P25,000.00 check (which was never produced in
evidence giving the impression to the undersigned that there was never such
a check), delivered it to the judge who grudgingly acceded to his interpreter's
(Mr. Malig-on) moral perorations that there was nothing wrong with asking a
litigant to encash a post-dated check for P25,000.00 which was allegedly
honored for only P5,000.00 and which amount was gladly accepted by the
lender for the P25,000.00 check paid to him;
That to the undersigned, it is not credible that a man with P25,000.00 check
in his favor paid by his debtor, would entrust the encashment of the same to
the janitor of the judge rather than for him to do it himself after the judge and
Mr. Taguiam had talked on the telephone;
That the lender of P50,000.00 cold cash would accept P5,000.00 for a
P25,000.00 check without a whimper and still tipped the janitor P100.00; that
for another P25,000.00 check of the borrower dated January 7, 1985 (Exh.
'2') when the first payment was made on December 31, 1985, was supposed
to have been a mistaken date because the alleged true date was January 7,
1986 and a chinese businessman like Mr. Taguiam will honor it (wrong date
and all) for P3,000.00 and the lender (Amodia) will accept P3,000.00 for
P25,000.00 check again without a whimper?
Such was the story unraveled by the respondent and his witnesses in his
defense on the checks. No documentation whatsoever was presented for
such a transaction involving P50,000.00 supposedly in cold cash except for
a worthless check with an alleged wrong date (Exh. '2') and supposedly
bearing the date of January 7, 1986 but actually dated January 7,1985 which
Mr. Taguiam peremptorily dismissed as having nothing to do with the
transaction in question for it was indeed a worthless check which was
presented to him for payment by the respondent judge which he refused and
after depositing, it bounced and returned by Taguiam and was forgotten 5
From the evidence submitted to him, the Investigating Judge reached the
following conclusions:
The undersigned is convinced that, on the basis of the testimonial and
documentary evidence offered and admitted on both sides, the respondent
judge failed to rebut successfully the evidence of the complainant on the
check charges.
As to the charges re the "Light Ace" van, respondent admitted the ownership
originally by him and later by his wife of said vehicle (Exhs. '3' and '4');
admitted that complainant and client Taguiam went to his residence to talk
about the case which he entertained; admitted sending his vehicle to
defendant's shop for repair on seats, new seat covers furnished by the
defendant, repairs on his sedan, all for free during the pendency of the case
on the shop owner's (Taguiam) assurance that the materials used were extra
remnants from repairs of other customers and inconsequential.
Respondent denies the installation of an airconditioner but the way Mr.
Taguiam testified about it, where it was installed (ceiling of the van), his
sincerity in testifying along with the admission of respondent in having sent
for his van with his driver to the defendant's (Taguiam) shop for the repairs
which he himself (respondent) estimated to have cost P350.00 or more (a
conservative estimate on the basis of the description of the improvements
introduced) and even offered to pay now if owner Taguiam will accept even
in the absence of invoices of the cost of the aircon and other materials, a
strong conviction that the complainant's allegations, including the installation
of the aircon in respondent's van, are true.
Other than the aircon which Taguiam offered to respondent at a 50%
discount from the original cost of P10,000.00 (brand new), he really had no
intention to be paid for the minor repairs and improvements. He had really
given them away to the judge. 6
xxx xxx xxx
While he found the charges against respondent Judge to have been proven,
the Investigating Judge refrained from making a recommendation on the
appropriate administrative penalty for respondent.
After having carefully examined the records in this case, the Court is
convinced that respondent Judge did commit the acts with which he was
charged. In receiving P5,000.00 and P3,000.00 from a party to a litigation
before him, as loans which he never paid back and which to all appearances
he never intended to pay back, and in refusing or failing to pay for an
Page 431
airconditioner installed in his wife's automobile van by a shop owned by a
party litigant before him, respondent Judge is guilty of serious misconduct in
office and of acts unbecoming a member of the judiciary.
This Court cannot too strongly deplore and denounce the gross misconduct
of respondent Judge. In Haw Tay v. Singayao, 7 the Court, in holding a judge
guilty of serious misconduct in office and his dismissal warranted (had his
resignation not already been accepted by the President), upon finding that
he had demanded and received money from a party litigant said:
It is this kind of gross and flaunting misconduct on the part of those who are
charged with the responsibility of administering the law and rendering justice
that so quickly and surely corrodes the respect for law and the courts without
which government cannot continue and that tears apart the very bonds of our
politly. 8
Again, in the case of Cabrera v. Pajares, 9 the Court dismissed respondent
Judge from the service, having found him guilty of accepting money from a
party litigant in a case before his sala knowing that the amount was given to
him by reason of his office, stressed:
Members of the judiciary should display not only the highest integrity but must
at all times conduct themselves in such manner as to be beyond reproach
and suspicion. (Quiz vs. Cantano, 107 SCRA 196; Montemayor vs. Collado,
107 SCRA 258) The Court had likewise stressed in De la Paz vs. Inutan (64
SCRA 540) that 'the judge is the visible representation of the law and, more
importantly of justice. From him, the people draw their will and awareness to
obey the law. They see in him an intermediary of justice between two
conflicting interests, ... Thus, for the judge to return that regard, he must be
the first to abide by the law and weave an example for the others to follow.
He should be studiously careful to avoid even the slightest infraction of the
law.' (See also Fonacier-Abaño v. Ancheta, 107 SCRA 538). 10
ACCORDINGLY, the Court Resolved to DISMISS respondent Judge from the
service, with forfeiture of all his accrued retirement benefits, leave and other
privileges, if any, and with prejudice to re-employment in any branch, agency
or instrumentality of the government, including government-owned or
controlled corporations.
The Court also Resolved to REQUIRE respondent to show cause within ten
(10) days from receipt of this Resolution why he should not be DISBARRED
for gross professional misconduct and violation of the attorney's oath,
consisting of the same acts of which he has here been found to be guilty.
Let a copy of this Resolution be furnished the Ombudsman, for appropriate
action on the probable violations of the Anti-Graft and Corrupt Practices Act
by the respondent Norito E.Torres, with the request that the Court be
informed of the action taken.
A copy of this Resolution shall also be forwarded to the Integrated Bar of the
Philippines for its information and records.
CANON 5 is presently confined in the National Mental Hospital, without prejudice to its
EQUALITY
Ensuring equality of treatment to all before the courts is essential to the
due performance of the judicial office.
5.1 SEC. 1. Judges shall be aware of, and understand, diversity in
society and differences arising from various sources, including but not
limited to race, color, sex, religion, national origin, caste, disability, age,
marital status, sexual orientation, social and economic status and other
like causes.
5.2 SEC. 2. Judges shall not, in the performance of judicial duties, by
words or conduct, manifest bias or prejudice towards any person or
group on irrelevant grounds.
5.3 SEC. 3. Judges shall carry out judicial duties with appropriate
consideration for all persons, such as the parties, witnesses, lawyers,
court staff and judicial colleagues, without differentiation on any
irrelevant ground, immaterial to the proper performance of such duties.
5.4 SEC. 4. Judges shall not knowingly permit court staff or others
subject to his or her influence, direction or control to differentiate
between persons concerned, in a matter before the judge, on any
irrelevant ground.
5.5 SEC. 5. Judges shall require lawyers in proceedings before the
court to refrain from manifesting, by words or conduct, bias or
prejudice based on irrelevant grounds, except such as are legally
relevant to an issue in proceedings and may be the subject of legitimate
advocacy.
G.R. No. L-61652 June 22, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALEJANDRO IBASAN, SR., alias "Loring"; ALEJANDRO IBASAN, JR.,
alias "Intsik"; ALEJANDRO IBASAN II, alias "Boy"; and ALEJANDRO
IBASAN III alias "Tito", defendants-appellants.
The Solicitor General for plaintiff-appellee. E. M. Fallarme for defendants-
appellants.
GUTIERREZ, JR., J.:
Before Us, on appeal is a Decision of the Circuit Criminal Court, Dagupan
City, Third Judicial District, convicting Alejandro Ibasan, Sr., alias "Loring";
Alejandro Ibasan, Jr. alias "Intsik"; Alejandro Ibasan II alias "Boy" and
Alejandro Ibasan III alias "Tito" of the crime of murder. The dispositive portion
of the decision reads:
WHEREFORE, the Court hereby finds all the four (4) accused, namely:
Alejandro Ibasan, Sr., alias "Loring", Alejandro Ibasan, Jr., alias "Intsik",
Alejandro Ibasan 11, alias " Boy", and Alejandro Ibasan III, alias "Tito",
GUILTY beyond reasonable doubt of the crime of murder, and pursuant to
law, hereby sentences each of them to suffer the medium penalty of reclusion
perpetua (life imprisonment), to indemnify the heirs of the victim, Leoncio
Balolong in the amount of P12,000.00, plus P12,000.00 as moral damages,
without subsidiary imprisonment in case of insolvency, and to pay the costs.
Let this case be archived as against accused Juan Ibasan, alias 'John', who
reinstatement as against said accused, upon motion of the prosecution and
return to sanity of said accused.
The original information dated June 8, 1978 charged the appellants with the
crime of homicide, together with two others, Juan Ibasan, alias "John" and
Demetrio Ibasan alias "Etring". However, upon a finding that accused Juan
Ibasan alias "John" was mentally unfit to stand trial, proceedings as against
him were suspended pending the recovery of his sanity, hence, his non-
inclusion in these proceedings. On the other hand, Demetrio Ibasan alias
"Etring" died prior to final judgment in the lower court and the case against
him was accordingly dismissed.
After the information was filed but before the accused could be arraigned, a
motion to amend the charges to murder and for the presentation of additional
Page 432
evidence convinced the Fiscal to conduct a reinvestigation. A notice of
reinvestigation was issued by the District State Prosecutor, upon proper
authority of the Dagupan City Fiscal, with the advice that he "will conduct a
reinvestigation of the above-entitled case on Wednesday, August 9, 1978,
..."
On July 27, 1978, pending reinvestigation of the case, accused Alejandro
Ibasan, Jr., alias "Intsik" filed a motion to be arraigned ahead of his co-
accused to enable him to leave for employment abroad as seaman for a
period of ten (10) months. He assured the court that his departure was not
intended to avoid the case and that he needed employment badly as the only
source of livelihood to sustain his family. The following day, July 28, 1978,
he filed a written manifestation and waiver to wit:
COMES NOW the accused Alejandro Ibasan, Jr. in the above-entitled case
through counsel and to this Honorable Court most respectfully manifests:
1. That he filed a motion dated July 27,1978 for an early arraignment as to
him alone, ahead of his other co-accused based upon the grounds stated in
said motion;
2. That he is aware of the move of the Fiscal to reinvestigate this case to
determine whether there is basis to amend the charge from HOMICIDE to
MURDER;
3. That in case his motion is granted and is arraigned ahead of his co-
accused, he is willing to withdraw his plea on the charge of HOMICIDE and
will enter a plea of NOT GUILTY to the charge of MURDER in case the Fiscal
finally decide to amend the charge;
4. That he is expressly waiving the defense of double jeopardy which
otherwise will be available to him in case the charge is amended from
HOMICIDE to MURDER in view of his early arraignment.
WHEREFORE, premises considered, it is most respectfully prayed that this
manifestation be favorably acted upon.
The same was filed through counsel Benigno M. Gubatan. The motion was
granted and accused Alejandro Ibasan, Jr. alias "Intsik" was accordingly
arraigned on July 28, 1978 with a plea of NOT GUILTY to homicide.
Subsequently, he left for abroad after waiving his right to be present during
the proceedings.
On the basis of the fiscal's reinvestigation, an amended information dated
August 30, 1978 was filed charging all accused with the crime of murder as
follows:
That on or about May 31, 1978 at Bonuan Gueset, Dagupan City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, with
intent to kill, treachery, evident premeditation, and taking advantage of their
superior strength, did then and there wilfully, unlawfully and feloniously
assault, maul and hit Leoncio Balolong at the back of his head and other vital
parts of his body with a piece of bamboo, stones, empty bottles of beer, pepsi
cola, coke, dagger, hollow block and wooden bench, which caused his death,
to the damage and prejudice of his heirs in the sum of P12,000.00.
The crime was committed by a band.
The remaining accused were arraigned under the above information and all
entered their plea of "not guilty" to the charge of MURDER.
Upon his return and with the aid of a new counsel, Atty. Salvador Avedania,
Alejandro Ibasan, Jr., filed a motion to quash the information on the ground
that the filing of the amended information constituted double jeopardy, as he
had already been arraigned and had pleaded not guilty under the original
information for HOMICIDE, and the same had been dismissed without his
consent when the new information was filed for the graver offense of
MURDER. He further maintained that his earlier waiver of the defense of
double jeopardy was of no moment, the same having been done prior to
arraignment. He stated that it was not possible then for him to waive jeopardy
which had not yet attached.
Denying said motion, the court reasoned that by his own acts the accused
was estopped to interpose the defense of double jeopardy and that his
manifestation was express consent on his part to the amendment of the
original information. The court stated that the defense of double jeopardy was
never intended to be a tool for the benefit of one who had intentionally misled
and confused the court for his own escape to go abroad. Furthermore, there
being no plea under the amended information, double jeopardy had not yet
attached. Accused's motion for reconsideration was likewise denied.
Subsequently, accused Juan Ibasan alias "John", through his own counsel,
also filed a motion to quash the amended information on the ground of
accused's insanity. The motion was denied and, as earlier stated, accused
Juan Ibasan was committed to the National Mental Hospital for observation
and treatment. The trial as against him was suspended until such time as he
is certified mentally fit to stand trial.
Trial proceeded against the rest of the accused except Demetrio Ibasan alias
"Etring" the case against him having been dismissed after his death.
The prosecution evidence tended to prove that:
... On May 31, 1978, at about 6:00 P.M., while Leoncio Balolong was walking
(with his cousin Alberto Balolong) along the road towards Balolong Street, at
Bonuan Gueset, Dagupan City Juan Ibasan, alias "John", who was armed
with a baseball bat 1 meter long), hit Leoncio Balolong (who was then
unarmed) suddenly with said bat once on top of his head, holding the bat with
both hands. Upon being hit by the baseball bat, Leoncio ran away, but he
was pursued by Alejandro Ibasan III, alias "Tito", who then struck Leoncio
with a baseball bat (1 meter long) hitting him on the left leg, causing Leoncio
to fall to the ground. Upon seeing his cousin Leoncio fall to the ground,
Alberto Balolong ran away.
After Leoncio fell to the ground after being hit on the leg by accused Alejandro
Ibasan III, alias "Tito", accused Alejandro Ibasan II, alias "Boy", who was
armed with the dagger (Exh. J).lwphl@itç which is double bladed, sharp
pointed and about 8" long with 4" handle and a leather scabbard, stabbed
Leoncio several times with said dagger on the breast, causing him (Leoncio)
to grasp for breath and disabling him. All the six (6) accused threw stones
(bigger than the size of a fist) at Leoncio, then accused Alejandro Ibasan,
alias "Boy" and Juan Ibasan, alias "John", held the hands of Leoncio and
dragged him inside their (Ibasan's) yard, passing through the steel gate
fronting the Ibasan's residence, adjacent to their sari-sari store (Exh. E).
Inside the yard, all the six (6) accused again hit Leoncio several times with
bottles of beer, coke and with a wooden leg of a bench hitting him on the
head, breast and abdomen (57 tsn., Sept. 8, 1981). A few minutes later,
Dagupan City policemen arrived at the place and they brought Leoncio to the
Pangasinan Provincial Hospital. At the time of the arrival of said policemen,
all the six (6) accused were no longer at the crime scene as they have already
fled.
The prosecution relied on the testimony of two eyewitnesses, Domingo Paras
and Agustina Redoban, both of whom positively Identified all the accused.
Domingo Paras testified that while all the six (6) accused were mauling
Leoncio Balolong, they shouted "Vulva of your mother, we are going to kill
you" and that accused Alejandro Ibasan, Sr., alias "Loring" addressed
accused Juan Ibasan, alias "John", Alejandro Ibasan II alias "Boy", Alejandro
Ibasan III alias "Tito" and shouted "You finish him" while the accused
continued mauling Leoncio.
Page 433
Prosecution witness Agustina Redoban corroborated the testimony of
Domingo Paras in all its material points and furthermore, declared that upon
seeing Leoncio Balolong already prostrate on the ground, she told the six (6)
accused to stop beating him but they refused to heed her plea. She also
heard Alejandro Ibasan, Jr., alias "Intsik" state that "Whoever will testify in
this case should be killed."
For its part, the defense introduced evidence to prove the following: On May
31, 1978, at about 5:00 p.m., Leoncio Balolong and his counsel, Alberto
Balolong, came looking for accused Alejandro Ibasan, Sr., alias "Loring" at
the latter's store. Leoncio was asking Loring to come out in a loud voice.
Leoncio was carrying with him a balisong tucked on his right waist. Accused
Demetrio Ibasan, alias "Etring" told Leoncio that his father was asleep. This
made Leoncio angry. Leoncio then told Demetrio "Vulva of your mother", "let
your father come out." Demetrio then picked up a stone and thereupon,
Leoncio drew his balisong (Exh. J). Demetrio Ibasan, sensing the presence
of an imminent danger, immediately got hold of an empty bottle and with it hit
Leoncio again, this time hitting the latter on the center forehead, as a result
of which blood oozed from his head (tsn., March 15, 1982, p. 175).
During the altercation between Demetrio Ibasan and Leoncio Balolong,
Alberto Balolong fled and he did so at the moment Leoncio Balolong fell
down. Felisa Ibasan, wife of accused Alejandro Ibasan, Sr., and Linda
Ibasan, his daughter, scurried upstairs to the house where they cried, and
woke up Loring Ibasan (tsn., March 15, 1982, pp. 178-179). Soon Loring
Ibasan came out of the house and told his son, Demetrio Ibasan to kill
Leoncio Balolong probably because the latter might kill them all if he survives.
Loring Ibasan, in order to insure the death of Leoncio Balolong, himself got a
2 feet long and 2 inches thick piece of wood and with it, hit said Leoncio
Balolong who was already lying flat, several times (tsn., March 15, 1982, pp.
100-101). At that moment when Alejandro Ibasan began to hit Leoncio
several times, the latter was not moving anymore and it was difficult to say
whether he was already dead according to their eyewitness Angel Paras
(tsn., March 15, 1982, pp. 181-182). This same eyewitness stated that he left
the place after Alejandro Ibasan, alias "Loring" hit Leoncio Balolong with a
piece of wood (tsn., March 15, 1982, p. 182). He then went to the other side
of the road and that he did not bother to report the incident to the police for
fear that he might get involved (tsn., March 15, 1982, p. 183).
Not long after, two policemen arrived. The two policemen went inside the
yard of the Ibasans, and thereafter brought the bleeding body of Leoncio
Balolong and put him down immediately in front of the steel gate while the
said policemen waited for a ride (tsn., March 16, 1982, p. 171). After about
five minutes, the policemen were able to get a ride, a passenger jeepney, on
which they loaded the body of Leoncio Balolong and left (tsn., March 16,
1982, p. 172) for the Pangasinan Provincial Hospital (tsn., October 12, 1981,
p. 75; tsn., October 23, 1981, p. 87). After bringing the body of Leoncio
Balolong to the Pangasinan Provincial Hospital, the two policemen hurriedly
went back to the scene of the crime to make their investigation. Later,
Demetrio Ibasan, who is actually one of the accused, (but whose case had
been previously dismissed because of his death), voluntarily and willingly
went along with the police and submitted himself for their investigation
(tsn.,November 9, 1981, p. 107). In fact, at the police sub-station, he admitted
to Patrolman Rolando Coquia in the presence of Patrolman Rolando Valdez,
that he was the one who killed Leoncio Balolong and that no one else was
responsible for it (tsn., November 9, 1981, p. 108).
Thus, the defense tried to show that the aggressor was Leoncio Balolong and
that, in self-defense, Demetrio Ibasan, alias "Etring", now deceased, had to
hit Leoncio with a stone and an empty bottle. Likewise, Alejandro Ibasan, Sr.,
alias "Loring" had to hit Leoncio with a piece of wood, but Leoncio was, by
then dead from Etring's blows.
The other accused- appellants interposed the defense of alibi. Alejandro
Ibasan, Jr. alias "Intsik" alleged that at the time of the commission of the
crime, he was attending the Perpetual Help Novena and mass, it being a
Wednesday, with his wife. His alibi was reiterated by two of his friends who
testified in his behalf. Alejandro Ibasan II, alias "Boy" and Alejandro Ibasan
III alias "Tito" alleged that at the time of the incident, they were at the house
of their uncle, Juan Ibasan alias "John" feeding and watching his poultry and
that they had attended to their duties therein without leaving said premises.
After the trial, the court found the four appellants guilty as charged. Hence,
this appeal.
The accused-appellants interposed the following assignments of errors:
I. THE LOWER COURT ERRED IN NOT DISMISSING THE CASE AS
AGAINST THE ACCUSED ALEJANDRO IBASAN, JR., ON THE GROUND
OF DOUBLE JEOPARDY.
II. THE LOWER COURT ERRED IN ACTIVELY PARTICIPATING IN
AND/OR CONDUCTING THE EXAMINATION OF WITNESSES AS
THOUGH IT WERE THE PROSECUTION; AND IN DEPRIVING THE
DEFENSE FROM PRESENTING OTHER MATERIAL WITNESSES BY
GIVING HOPE AND IMPRESSIONS WHICH TURNED OUT TO BE FALSE
AFTER ALL.
III. THE LOWER COURT ERRED IN ITS APPRECIATION OF THE FACTS
AS PRESENTED, AND IN MAKING CONCLUSIONS NOT SUPPORTED BY
THE EVIDENCE AS ADDUCED.
IV. THE LOWER COURT ERRED IN NOT DISMISSING THE CASE AS
AGAINST ALL THE ACCUSED AFTER THE PROSECUTION HAD RESTED
ITS CASE AND UPON MOTION TO DISMISS FILED BY DEFENSE BASED
ON THREE VALID GROUNDS.
V. THE LOWER COURT ERRED IN NOT ACQUITTING THE FOUR
REMAINING ACCUSED AFTER THE TERMINATION OF THE TRIAL ON
THE GROUND THAT THE PROSECUTION UTTERLY FAILED TO PROVE
THEIR GUILT BEYOND REASONABLE DOUBT.
VI. THE LOWER COURT ERRED IN DENYING THE FOUR CONVICTED
ACCUSED OF THEIR RIGHT TO BAIL, THEIR RIGHT TO HAVE THEIR
CASE TRANSFERRED TO ANOTHER SALA OR OTHER COURT OF
COMPETENT JURISDICTION, AND THEIR RIGHT TO BE DETAINED IN
THE LOCAL JAIL PENDING THEIR APPEAL INSTEAD OF IN THE
NATIONAL PENITENTIARY AT MUNTINGLUPA.
Pending appeal, notice was received by this Court about the death of
accused Alejandro Ibasan, Sr., alias "Loring" while confined in the New Bilibid
Prisons in Muntinglupa. The case against him was dismissed insofar as his
criminal liability was concerned.
At the outset, it is important to note the very peculiar factor which had given
rise to the first issue. First of all, we find quite unusual that the accused
Alejandro Ibasan, Jr., alias "Intsik" was allowed to leave the country while
standing charged with the serious crime of homicide. His claim of innocence
did not preclude the possibility of his jumping bail while abroad and not
returning to answer the charges against him. The accused was allowed to be
arraigned earlier than his co-accused even as the circumstances of murder
were being reinvestigated.
Second, it was error for the court to allow the advance arraignment of Intsik
for homicide when the prosecution was still reinvestigating the case to
determine the possibility of amending the information to murder. Intsik should
have been arraigned for murder and afterwards could have been convicted
either of homicide or murder as may be proven, the former being an offense
necessarily included in the crime charged.
We cannot sanction the conduct of the fiscal and the court. They should be
more prudent and cautious in the performance of their duties.
Appellant Alejandro Ibasan, Jr. would have us dismiss the case against him
Page 434
for murder on the ground of double jeopardy.
The prosecution, sustained by the court a quo, contended that the requisite
of double jeopardy to wit:
xxx xxx xxx
(4) That the defendant had been convicted or acquitted, or the case against
him dismissed or otherwise terminated without his express consent.
is not present under the circumstances of the case. It argued that since the
accused had earlier filed a written manifestation and waiver of his right to be
present as well as his right to the defense of double jeopardy, the first
information had been amended with the accused's express consent.
The appellant maintains otherwise. He states that the element of time plays
an important role in considering when such "express consent" should be
given, He submits that the express consent must be given after the accused
had already entered a plea and not before. Was there double jeopardy?
At the time that the accused executed his waiver, the right to the defense of
double jeopardy for murder did not yet exist. For jeopardy to attach, it is
necessary that the defendant has been arraigned and has pleaded to the
charge because it is from that moment that the issues for trial are deemed
joined. Before that, the accused is not in danger of being validly convicted,
hence he is not yet in jeopardy (People v. Turla, 50 Phil. 1001). If the accused
has not yet been arraigned for either homicide or murder, a motion to quash
and a waiver of the right to the defense of double jeopardy would be
premature. Jeopardy attaches (a) upon valid indictment, (b) before a
competent court, (c) after arraignment and (d) after plea (People v. Ylagan,
58 Phil. 851).lwphl@itç The defendant, not having been arraigned and not
having pleaded to either charge when the waiver of his right to the defense
of double jeopardy was made, the same produces no legal effect. There
could have been no valid waiver for there was nothing to waive. There is no
double jeopardy in this case.
Appellant Alejandro Ibasan, Jr. was arraigned and he pleaded "NOT
GUILTY" under the original information for homicide. He was never arraigned
for Murder. Hence, the proceedings below, while for the charge of murder
insofar as the other accused were concerned, were only for homicide as
regards Alejandro Ibasan, Jr. The treachery which qualified the crime to
murder was, for him, an aggravating circumstance. No mitigating
circumstance was proved during trial.
Coming now to the appellants' second assignment of error, we find the same
to be without merit. It is not denied that the court had at certain points
conducted its own questioning during the proceedings. The records,
however, show that the court's questions did not amount to interference as
to make the case for the prosecution and deprive the accused of their
defense. The questions of the judge addressed to the witnesses and the
accused were merely to clarify certain points and confirm certain statements.
The number of times that a judge intervenes is not necessarily an indication
of bias. It cannot be taken against a judge if the clarificatory questions he
propounds happen to reveal certain truths which tend to destroy the theory
of one party.
As held in the case of Ventura v. Yatco (105 Phil. 287) "Judges are not mere
referees like those of a boxing bout, only to watch and decide the results of
a game; they should have as much interest as counsel in the orderly and
expeditious presentation of evidence, calling attention of counsel to points at
issue that are overlooked, directing them to ask questions that would elicit
the facts on the issues involved, clarifying ambiguous remarks by witnesses,
etc."
A judge may properly intervene in the trial of a case to promote expedition
and avoid unnecessary waste of time or to clear up some obscurity (People
v. Catindihan, 97 SCRA 196; Par. 14 Canons of Judicial Ethics;
Administrative Order No. 162 dated August 1, 1946, 42 O.G. 1803). In this
respect, the record shows no irregularity in the conduct of the trial judge.
As to the alleged deprivation of the appellants' right to present other material
witnesses, we find the same without basis. The appellants alleged that they
had intended to present two witnesses, namely: Atty. Gubatan and Atty.
Esteves. However, the judge had expressed displeasure against the
appearance of the two witnesses when the defense requested that they be
subpoenaed, to wit:
COURT
You know, Esteves is a persona non grata in this court. He filed a case
against me in Lingayen. I don't like to see his face. Never, forever, never in
my whole life. Gubatan, Ancheta, Esteves, as far as I am concerned, they
are already buried a long time. (con't. of order) subpoena the following;
Erlinda Relosemon, Bonuan Gueset, Dr. Dominador Gutierrez, c/o GSIS,
Dagupan City. (tsn., March 16, 1982, p. 196).
The emotional outburst of the presiding judge is rather unfortunate. Even if a
judge sincerely believes that a counsel is deliberately exasperating or inciting
him through the introduction of witnesses publicly known to be personally
anathema to the judge and not because their testimony may prove or
disprove matters in issue, the judge should avoid any unseemly display of
shortness of temper or other unbecoming behaviour. A judge should not allow
himself to be led by counsel or witnesses into showing that he can be moved
by pride, prejudice, passion, or pettiness in the performance of his official
functions (Austria v. Masaquel, 20 SCRA 1247). It is precisely during such
trying moments that a judge should be studiously careful about his conduct
and in the measures he takes to uphold the court's authority and dignity.
However, the actuations of the trial judge showing some impatience against
the appellants did not preclude them from adequately presenting their case,
We have examined the records carefully and we find that the appealed
decision was not based on any matters improperly elicited by the trial Judge
during his examination of the witnesses nor has it been affected by the
quoted remarks. Appellants were given all the opportunity to present their
evidence.
Neither did the initial refusal of the trial judge to subpoena the two supposed
witnesses prevent their being presented in court if they were really willing to
testify for the defense. There are remedies available to parties for such
situations. In fact, the records show that, later, the trial judge was amenable
to their being present in court as witnesses and it was the defense which
found no more need for the testimony:
ATTY. FALLARME
We are intending to present another witnesses especially Atty. Gubatan and
Atty. Esteves, but I think there is no need, so we are closing our evidence
and may we be given a chance to close tomorrow, your Honor. (Tsn., April
19, 1982, p. 269)
The appellants state that they did not take certain steps they should have
taken because the presiding judge had impressed upon the accused and
counsel "that the case of the prosecution was weak and that it was not airtight
nor foolproof, and that eventually he was going to acquit the accused. The
following statement of the trial court:
COURT
I would suggest to counsel that since this case have been pending for the
past 7 to 8 years and its record is about 4 to 6 inches thick, that trial of this
case will continue Mondays and Tuesdays every week so that the innocent
Page 435
will be set free and that the guilty will be put to jail. ... Why prolong this agony?
... (tsn., March 16, 1982, p. 195) (Emphasis supplied).
is no indication that the accused would eventually be acquitted. The
statement shows no bias nor intention to give false hopes to either party. The
judge merely expressed the need for a speedy trial. The statement should
not be relied upon as a suggestion that the case for the defendants was
stronger than the case for the prosecution. Notwithstanding any remarks of
any judge, a lawyer should continue giving his client entire devotion to the
latter's interest, warm zeal in the maintenance and defense of his rights and
the exertion of the lawyer's utmost learning and ability appropriate for the
circumstances.
Notwithstanding any impressions that counsel may have about the
predispositions of a judge, the client is entitled to the benefit of any remedy
and defense that is authorized by law. The lawyer should assert every such
remedy or defense (Canon 15, Canons of Professional Ethics; Javier v.
Cornejo, 63 Phil. 293 (1936); In re Tionko, 43 Phil. 191 (1922); In re Oliva,
103 Phil. 312 (1958); Lualhati v. Albert, 57 Phil. 86 (1932); Toguib v. Tomol,
Jr. GR. Adm. Case No. 554, Jan. 3, 1969; People v. Macellones, GR. No.
33639, Feb. 28, 1975; Tan Kui v. Court of Appeals, GR. No. 36808, Nov. 29,
1973, See Agpalo, Legal Ethics, 1980, pp. 147-186.)
The second assignment of error has no merit but nonetheless we take this
opportunity to remind members of the bench that judges' undue interference,
impatience, or participation in the examination of witnesses or a severe
attitude on the court's part towards the witnesses, especially those who are
excited or terrified by the unusual circumstances of a trial may tend to prevent
the proper presentation of the cause or ascertainment of the truth in respect
thereto. (People v. Catindihan, 97 SCRA 196). Thus, a judge should exercise
more care and patience in conducting a case, his right to intervene to be used
sparingly, if at all. He must bear in mind that witnesses may be easily
intimidated by an overly inquisitive judge considering the unusual
circumstances which they find themselves in, especially when testifying in
criminal cases.
We find no merit in the appellants' third and fifth assignments of errors. The
lower court correctly appreciated the facts of the case and the testimonies of
the witnesses. The appellants' point out alleged inconsistencies in the
prosecution witnesses' testimonies vis-a-vis their sworn statements. They
also seek to discredit the prosecution witnesses Domingo Paras because of
his relationship with Gregorio Balolong, the deceased's father. The
appellants state that the prosecution witnesses' statements are conflicting,
exaggerated, perjured, prejudiced, evasive, and apparently dubious.
Furthermore, the defense relies on the alleged counter-affidavit of Agustina
Redoban, an eyewitness for the prosecution, recanting her earlier statements
to the police.
An examination of the records shows no compelling reason to disbelieve the
testimonies of the prosecution witnesses. The inconsistencies to which the
appellants advert are but minor discrepancies which do not affect the weight
of the witnesses' testimonies where they all coincide in the matter of Identity
of the accused and in the narration of all material facts. Minor discrepancies
do not render testimony incredible and cannot destroy the probative value of
the consistent testimony of the witnesses on how the six (6) perpetrators has
assaulted and mauled the victim to death. (People v. Pajenado, 69 SCRA
172; People v. Lopez, 80 SCRA 18; People v. Llanto, 88 SCRA 8; People v.
dela Cruz, 91 SCRA 525; People v. Yutila, 102 SCRA 264; People v. Hinlo,
102 SCRA 472; People v. Garcia, 105 SCRA 325; People v. Canizares, 107
SCRA 296; People v. Munoz, 107 SCRA 313; People v. Demate, 113 SCRA
353; People v. Millora, 119 SCRA 417; People v. Barros, 122 SCRA 34;
People v. dela Rosa, 102 SCRA 147). It is settled that some minor
inconsistencies become themselves indices of truth, a sign of veracity of the
statements of unlearned and untutored eyewitnesses. (People v. Paculba,
124 SCRA 383; People v. Cardinas, 118 SCRA 458).lwphl@itç According to
the trial court, the prosecution witnesses testified in a clear, positive,
straightforward, truthful and convincing manner. The witnesses remained
consistent on cross-examination. We see no reason to doubt the lower
court's finding that they are more credible. Having been eyewitnesses to a
frightful event as the killing of a fellow human, minor inaccurate expressions
or honest mistakes in observation are not fatal. Differences in some details
from nervous, rattled, and scared eyewitnesses cannot be avoided. It cannot
be expected that these witnesses under such strain and pressure could pay
particular attention and remember each and every detail no matter how trivial.
Thus, whether the weapon used is referred to as a bat or a club is a matter
of semantics. The fact remains that the deceased was hit by a one meter
long wooden truncheon and mauled to death. Also, whether or not the
beating of the victim had first occurred inside or outside the fence of the
Ibasans is immaterial, the fact is the former was beaten both inside and
outside of the premises of the Ibasans' yard. The fact is clear that the
deceased was mauled and beaten with pieces of wood, bottles and a dagger
or balisong, the weapons used being properly established by the evidence
on record. Also, the fact remains that the victim died at the hands of the
accused all of whom were positively Identified.
Anent the alleged relationship of a prosecution eyewitness to the deceased's
father, we reiterate the oft-repeated rule that relationship of witnesses does
not necessarily affect credibility. (People v. Ruiz, 93 SCRA 739; People v.
Puesce, 87 SCRA 130). Relationship to the victim by itself, does not prove
that a witness is prejudiced and biased when, as in this case, said testimony
is not only clear and natural, but is corroborated substantially by the other
findings of the trial court. There is moreover the absence of an improper
motive actuating the witness to testify falsely against the accused. (People v.
Abejuela, 92 SCRA 503; People v. Veloso, 92 SCRA 515). And as to
eyewitness Agustina Redoban, her friendship with the victim standing alone
is not proof of prejudice (People v. Campana, 24 SCRA 271), the same not
being a sufficient motive for witnesses to testify falsely against an accused
(People v. Salcedo, 122 SCRA 54). As we stated in one case, the fact that
two of the prosecution's witnesses were sheltered and fed by the deceased
father's victim does not prove that said witnesses perjured in recounting what
they saw. It is well-known that witnesses to killings usually do not want to
undergo the trouble and inconvenience of going to court and being exposed
to reprisal. (People v. Medrana, 110 SCRA 130).
The alleged inconsistencies between witness Redoban's testimony in open
court and her statements in pre-trial affidavits, are not marks of
untrustworthiness or wilfull falsehood (People v. Bermoy 105 SCRA 106). It
is a matter of judicial notice and experience that, not infrequently, affidavits
are prepared in haste and are almost always incomplete and inaccurate
(People v. Gonzales. 99 SCRA 697). Greater weight is accorded the
statements given on the witness stand where both prosecution and defense
counsel could more thoroughly question the witness.
The appellants would have us dismiss the case or acquit accused Juan
Ibasan alias "John" on the ground of insanity. They argue that the trial court
erred in denying their motion to quash. Section 2 of Rule 117 of the Rules of
Court provides among the grounds for a motion to quash: "That the defendant
is insane." When after an examination into the mental condition of the
accused, it appears that the defendant is insane at the time of the trial, the
court is under a legal duty to suspend the proceedings and to order the
commitment of the accused to an asylum. The fundamental reason behind
this may be taken from the very fact that if the accused were insane, he would
never have a fair trial; the assistance that the law provides would be an empty
ceremony (US v. Guendia, 37 Phil. 337). The trial court acted fully in
accordance with the law.
Appellants, however, maintain that at the hearing on the motion to quash, the
evidence presented tended to show that accused Juan Ibasan was insane
before, during, and after the commission of the crime, as well as at the time
of trial, and should be exempt from criminal liability. This is properly a matter
to be considered as a matter of defense during a fullblown trial to determine
the guilt of the accused. For the same to be properly passed upon in the
motion to quash defendants should have invoked Subsection g, Section 2
Rule 117, to wit:
xxx xxx xxx
Page 436
(g) That it contains averments which, if true, would constitute a legal excuse
or justification;
xxx xxx xxx
They did not do so,
The fourth assignment of error has no merit.
Defendants' sixth assignment of error that the lower court erred in denying
— (1) bail to the accused on appeal, (2) their right to have their case
transferred to another sala or court of competent jurisdiction, and (3) their
right to be detained in the local jail pending their appeal instead of the
National Penitentiary in Muntinglupa, cannot be sustained.
Section 4, Rule 114 provides:
After conviction by the Court of First Instance defendant may, upon
application, be bailed at the discretion of the court.
This discretion will not be disturbed absent any showing of abuse or
arbitrariness on the part of the trial court. (Reyes v. Court of Appeals, 83 Phil.
658) There is no such showing in the case at bar.
As for their detention at the National Penitentiary rather than the local jail, the
appellants are national prisoners and are correctly detained at the New Bilibid
Prisons in Muntinglupa, Rizal, pending the resolution of their appeal.
The transfer of the case, after judgment in the lower court, cannot be
sanctioned. No law or rule permits the same. Appeal is an adequate remedy
to correct whatever errors may have been committed by the lower court.
WHEREFORE, in view of the foregoing, the judgment appealed from is
hereby AFFIRMED insofar as appellants Alejandro Ibasan II, alias "Boy" and
Alejandro Ibasan III alias "Tito" are concerned, with the modification that the
indemnity for the heirs of the victim, Leoncio Balolong, is raised from Twelve
Thousand (P12,000.00) to Thirty Thousand (P30,000.00) Pesos in
accordance with the ruling laid down by this Court in People v. de la
Fuente,126 SCRA 518. The judgment of the court a quo as to them is
AFFIRMED in all other respects. Insofar as appellant Alejandro Ibasan, Jr.
alias "Intsik" is concerned, we find him GUILTY beyond reasonable doubt of
the crime of homicide and hereby sentence him to an indeterminate penalty
of TEN (10) YEARS and ONE (1) DAY ofprision mayor as minimum to
SEVENTEEN (17) YEARS, FOUR (4) MONTHS, and ONE (1) DAY
of reclusion temporal as maximum, and order him to indemnify the heirs of
the victim jointly and solidarily with the other accused-appellants. The
resolutions dismissing the cases against Demetrio Ibasan, Sr., alias "Loring"
are reiterated. The late Alejandro Ibasan, Sr., remains civilly liable, his death
having occurred pending appeal. He is likewise ordered to indemnify the
heirs of Leoncio Balolong together with the other accused-appellants.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente,
JJ., concur.
CANON 6 willing to submit the matter for resolution on the basis of the pleadings filed.
COMPETENCE AND DILIGENCE
Competence and diligence are prerequisites to the due performance of
judicial office.
A.M. No. RTJ-11-2289 October 2, 2012
(Formerly A.M. OCA lPI No. 11-3656-RTJ)
Re: Anonymous Letter dated August 12, 2010, complaining against
Judge Ofelia T. Pinto, Regional Trial Court, Branch 60, Angeles City,
Pampanga.
DECISION
PER CURIAM:
An anonymous letter-complaint dated August 12, 2010 was filed before the
Office of the Court Administrator (OCA) against Judge Ofelia T. Pinto,
Presiding Judge of the Regional Trial Court, Branch 60, Angeles City,
Pampanga. Judge Pinto was charged with dishonesty, violation of the Anti-
Graft and Corrupt Practices Act, Gross Misconduct in violation of the Code
of Judicial Conduct, and knowingly rendering an unjust judgment in
connection with the reopening of a criminal case whose decision was already
final and executory and subject of an entry of judgment in the Court of
Appeals (CA). The anonymous letter-complaint narrated that despite the
finality of the decision in Criminal Case No. 91-937, Judge Pinto granted the
motion filed by the convicted accused (at large) to reopen the case and to
adduce evidence in his behalf.
Subsequently, the OCA required Judge Pinto to comment on the anonymous
letter-complaint. Judge Pinto alleged that the outright denial of the motion to
reopen the case was improper, without violating the accused’s opportunity to
be heard, given the exculpatory evidence presented and considering the lack
of objection by the public prosecutor and the private complainant who were
properly notified of the motion. Judge Pinto also alleged that even granting
that her acts were indeed erroneous, they were done in the exercise of her
adjudicative functions which cannot be made subject of a disciplinary, civil or
criminal action absent fraud, dishonesty and corruption on her part.
The Recommendation of the OCA
The OCA found the anonymous letter-complaint meritorious. The OCA
observed that Judge Pinto misapplied the law despite the clear wordings of
Section 24, Rule 119 of the 2000 Revised Rules of Criminal Procedure. The
OCA also found that Judge Pinto subsequently disregarded the final and
executory decision of the CA, a higher court, when she dismissed the criminal
case against the accused-movant. The OCA recommended, thus –
RECOMMENDATION: It is respectfully recommended for the consideration
of the Honorable Court that:
1. The Anonymous Complaint dated 12 August 2010 be RE-DOCKETED as
a regular administrative matter; and
2. Judge Ofelia T. Pinto, Regional Trial Court, Branch 60, Angeles City,
Pampanga, be HELD GUILTY of Gross Ignorance of the Law and Procedure
and be SUSPENDED from service without salary and other benefits for a
period of Six (6) Months (Sec. 89, in relation to Sec. 11[A(2.)], Rule 140, id.)
with a STERN WARNING that a repetition of the same or similar infraction
shall be dealt with utmost severity. [emphases and italics supplied]
In the Resolution dated August 3, 2011, the Court re-docketed the
anonymous letter-complaint and required the parties to manifest if they were
In response, Judge Pinto filed a Manifestation and a Supplemental Comment
where she stressed her good faith and honest intention to prevent a
miscarriage of justice, which led her to disregard the mandatory character of
the rule on the reopening of criminal cases. She offered her sincere apologies
to the Court and pleaded for compassion and understanding.
The Court’s Ruling
Page 437
Except for the recommended penalty, we agree with the findings of the
OCA.
"To be able to render substantial justice and maintain public confidence in
the legal system, judges should be embodiments of competence, integrity
and independence."1 Judges are also "expected to exhibit more than just a
cursory acquaintance with statutes and procedural rules and to apply them
properly in all good faith".2 Judges are "likewise expected to demonstrate
mastery of the principles of law, keep abreast of prevailing jurisprudence, and
discharge their duties in accordance therewith."3 The records clearly show
that the conduct exhibited by Judge Pinto deviated from these exacting
standards.
Judge Pinto had no jurisdiction to entertain the motion filed by the accused-
movant to reopen Criminal Case No. 91-937 because the CA’s decision,
which affirmed the accused-movant’s conviction, had become final and
executory. Judge Pinto’s conduct was contrary to the clear language of
Section 24, Rule 119 of the 2000 Revised Rules of Criminal Procedure which
provides that the reopening of a criminal case may only be availed of "at any
time before finality of the judgment of conviction:"
Sec. 24. Reopening. – At any time before finality of the judgment of
conviction, the judge may, motu proprio or upon motion, with hearing in either
case, reopen the proceedings to avoid a miscarriage of justice. The
proceedings shall be terminated within thirty (30) days from the order
granting it. [italics supplied]
In other words, a motion to reopen a criminal case is not the proper
procedural recourse when there is already a final judgment of conviction. This
rule is consistent with the doctrine of finality of judgment which Judge Pinto
failed to apply. "The doctrine of finality of judgment, which is grounded on
fundamental considerations of public policy and sound practice, dictates that
at the risk of occasional error, the judgments of the courts must become final
and executory at some definite date set by law."4 In this case, the final
decision of the CA should have been given effect.
Moreover, Judge Pinto should have respected the final decision of a higher
court, instead of replacing it with her own decision.5 We have previously ruled
that a judge cannot amend a final decision, more so where the decision was
promulgated by an appellate court.6 As aptly observed by the OCA:
Judge Pinto ought to know her place in the judicial ladder. In Lamberto P.
Villaflor vs. Judge Romanito A. Amatong (A.M. No. MTJ-00-1333, November
15, 2000), the High Court could not have been more emphatic, thus: "Inferior
courts must be modest enough to consciously realize the position that they
occupy in the interrelation and operation of the integrated judicial system of
the nation. Occupying as (she) does a court much lower in rank than the
Court of Appeals, (Judge Ofelia Tuazon Pinto) owes respect to the latter and
should, of necessity, defer to the orders of the higher court. The appellate
jurisdiction of a higher court would be rendered meaningless if a lower court
may, with impunity, disregard and disobey it.7 (italics supplied)
In the first place, even granting that there is an available procedural remedy
to question the final decision of the CA, such procedural recourse is beyond
the scope of Judge Pinto’s judicial authority. The matter of the accused-
movant’s denial of due process, as the case may be, should have been
brought up to the CA or with the Court in an appropriate petition. Judge Pinto
cannot relax mandatory rules to justify the award of judicial reliefs that are
beyond her judicial authority to give.
Even granting that Judge Pinto had been motivated by good intentions
leading her to disregard the laws and rules of procedure, these personal
motivations cannot relieve her from the administrative consequences of her
actions as they affect her competency and conduct as a judge in the
discharge of her official functions.
We have previously held that when a law or a rule is basic, judges owe it to
their office to simply apply the law.8"Anything less is gross ignorance of the
law."9 There is gross ignorance of the law when an error committed by the
judge was "gross or patent, deliberate or malicious."10 It may also be
committed when a judge ignores, contradicts or fails to apply settled law and
jurisprudence because of bad faith, fraud, dishonesty or corruption.11Gross
ignorance of the law or incompetence cannot be excused by a claim of good
faith.121âwphi1
In this case, Judge Pinto’s utter disregard to apply settled laws and rules of
procedure constitutes gross ignorance of the law which merits administrative
sanction. Section 8(9), Rule 140 of the Rules of Court classifies gross
ignorance as a serious charge with the following imposable penalties:
1. Dismissal from the service, forfeiture of all or part of the benefits as the
Court may determine, and disqualification from reinstatement or appointment
to any public office, including government-owned or controlled corporations.
Provided, however, that the forfeiture of benefits shall in no case include
accrued leave credits;
2. Suspension from office without salary and other benefits for more than
three (3) but not exceeding six (6) months; or
3. A fine of more than P 20,000.00 but not exceeding P 40,000.00.13
We note that this not the first time that we found Judge Pinto administratively
liable. We found her liable in two other administrative cases. In Pineda v.
Pinto,14 the Court reprimanded Judge Pinto for charges of gross inefficiency
and neglect of duty. In A1arcos v. Pinto,15 we found Judge Pinto liable of
simple misconduct and imposed a fine in the amount of P 10,000.00 for
charges of gross ignorance of the law, partiality and knowingly rendering an
unjust judgment/order.
In both cases, we sternly warned Judge Pinto that a repetition of the same or
similar act shall be dealt with more severely. Judge Pinto's continued failure
to live up to the exacting standards of her office is clear.16 Her escalating
violations, taken collectively, raise the question of her competency in
continuing to perform the functions of a magistrate.17 Bearing this in mind and
the warnings she earlier received from the Court, we find the imposition of
the supreme penalty of dismissal from the service justified.
WHEREFORE, premises considered, Judge Ofelia T. Pinto, Presiding Judge
of the Regional Trial Court, Branch 60, Angeles City, Pampanga, is found
GUlLTY of Gross Ignorance of the Law and is hereby DISMISSED FROM
THE SERVICE, with forfeiture of all retirement benefits, except accrued leave
credits, and with prejudice to re-employment in any branch, agency or
instrumentality of the government, including government-owned or controlled
corporations.
SO ORDERED.
A.M. No. RTJ-12-2316 October 9, 2012
(Formerly A.M. No. 09-7-280-RTC)
OFFICE OF THE COURT ADMINISTRATOR, Complainant,
vs.
HON. LIBERTY 0. CASTANEDA, Presiding Judge, ATTY. PAULINO I.
SAGUYOD, Clerk of Court, LOURDES E. COLLADO, Sheriff,
MARYLINDA C, DOCTOR, EVELYN B. ANTONIO, ROSALIE P.
SARSAGAT and CHERYL B. ESTEBAN, Court Stenographers,
Page 438
GEORGE P. CLEMENTE, Clerk, MARITONI FLORIAN C. CERVANTES,
Court Interpreter, and RUBEN A. GIGANTE, Utility Worker, all of the
REGIONAL TRIAL COURT, BRANCH 67, PANIQUI, TARLAC,
Respondents.
DECISION
PER CURIAM:
This administrative matter is a consequence of the judicial audit and
physical inventory of cases conducted from September 29, 2008 to October
8, 2008 in the Regional Trial Court (RTC) of Paniqui, Tarlac, Branch 67,
presided over by Judge Liberty O. Castañeda (Judge Castañeda). A follow-
up audit was subsequently conducted on February 1 to 4, 2011.
The Facts
The team from the Office of the Court Administrator (OCA) reported1 that
as of audit date, Branch 67 had a caseload of 1,123, consisting of 406
criminal cases and 717 civil cases. Of the 70 cases submitted for
decision,18 have not been decided notwithstanding the lapse of the 90-day
period within which to resolve them. Likewise, of the seven (7) criminal and
three (3) civil cases with pending incidents submitted for resolution, seven
(7) have been awaiting resolution beyond the reglementary period.
However, notwithstanding her failure to decide the 18 cases and resolve
the incidents in the seven (7) cases mentioned above, Judge Castañeda
certified in her Certificates of Service from January to December 2008 that
she has decided and resolved all cases and incidents within three (3)
months from the date of submission.
The audit team also reported that 164 cases have not been acted upon for
a considerable length of time; there are 14 cases with pending incidents;
and no initial action has been taken in 27 cases. Apart from these figures,
the audit team likewise noted that Branch 67 had a poor case and records
management, particularly citing the absence of minutes of the court
proceedings, lack of stamp receipts on the pleadings filed before it, official
receipts reflecting that filing fees were paid days after the cases had been
filed, registry receipts containing no registry numbers, and lack of proofs of
receipts of court processes or issuances. Case records were not even
properly stitched together.
The audit also revealed that there were criminal cases that were ordered
archived even before the expiration of the 6-month period reckoned from
the delivery of the warrant of arrest to the police authorities, in violation of
OCA Circular No. 89-20042 dated August 12, 2004. In one case, Judge
Castañeda arbitrarily reduced the bail bond of an accused from
P120,000.00 to P10,000.00, and released another on recognizance on
charges of violation of Section 11, Article II of Republic Act No. (R.A.)
9165.3 Similarly, another accused, who was charged with violation of R.A.
7610,4 was released on recognizance despite the fact that the penalty
therefor is reclusion temporal in its medium period to reclusion perpetua.
It was also found that Atty. Paulino I. Saguyod (Atty. Saguyod), the Branch
Clerk of Court, issued commitment orders in two (2) criminal cases without
written authority from Judge Castañeda, and that no certificates of
arraignment were issued in some cases.
Prompted by reports that Branch 67 is fast becoming a haven for couples
who want their marriages to be judicially declared null and void or annulled,
or those who merely want to be legally separated, the audit team gave
special attention to cases for declaration of nullity of marriage, annulment of
marriage and legal separation, and found that of the 717 civil cases, 522 or
72.80% involved nullity of marriage, annulment and legal separation.
Further investigation of these cases revealed various irregularities in the
proceedings, consisting of blatant violations of A.M. No. 02-11-10-SC,5 or
the Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, as well as A.M. No. 02-11-11-SC,6 or
the Rule on Legal Separation.
First. Judge Castañeda allowed the petitions for nullity of marriage or
annulment to prosper despite the impropriety of venue. The audit showed
that most of the parties in these petitions are not actual residents of the
places under the territorial jurisdiction of Branch 67, i.e., Paniqui, Anao,
Moncada and San Miguel, all in Tarlac. A number of the addresses
reflected on the pleadings are incomplete or vague, some are handwritten,
typewritten or super-imposed on blanks, or even left completely blank.
Many of the respondents raised the issue of improper venue, which Judge
Castañeda ignored. One of the respondents, Lea Benaid, the respondent in
Civil Case No. 254-P’07 (Dodgie Benaid v. Lea Borreo-Benaid) claimed, in
a letter7 dated October 8, 2008 addressed to the Chief Justice, that she
and her petitioner-husband are not residents of Tarlac but of Infanta,
Quezon, and that she never received any summons nor has she been
notified of a collusion investigation by the public prosecutor. She also
averred that she never met the clinical psychologist, whose report reflected
that she was purportedly suffering from psychological incapacity. Neither
was she subjected to any psychological test.
Second. In some cases, there are no proofs of payment of docket fees,
while in others, summons and other initial court processes were issued
even before the docket fees were fully paid.
Third. There are cases where the Office of the Solicitor General (OSG) and
the Office of the Public Prosecutor (OPP) were not furnished copies of the
petition, which under the rules must be done within five (5) days from the
date of its filing, and proof of such service must be submitted to the court
within the same period, otherwise, the petition may be outrightly dismissed.
However, in those cases where it has been established that the OSG and
OPP were not served copies of the petition, Judge Castañeda did not order
the petitioners to comply.
Fourth. In several cases, the process server or sheriff merely resorted to
substituted service of summons, without strict compliance with the rule8
thereon as well as the Court's ruling in Manotoc v. Court of Appeals9
elucidating on the requirements for effecting a valid substituted service.
Nonetheless, Judge Castañeda acted on these petitions.
Fifth. Judge Castañeda likewise granted motions for depositions and
allowed the advance taking of testimonies even without the respondent or
public prosecutor being furnished copies of the motion. In several cases,
she granted the motion on the very same day, or merely a day after it was
filed.
Sixth. After having been served with summons, respondents were usually
no longer notified of subsequent court orders or processes.
Seventh. In other cases, Judge Castañeda permitted the public prosecutor
to conduct a collusion investigation even before the respondent has filed an
answer, or the lapse of the prescribed period of 15 days. She would
proceed with the pre-trial even without proof that respondent had been duly
notified, or terminate the pre-trial for failure of respondent to file an answer
and even without the prosecutor's collusion report. Worse, eight (8)
petitions were granted despite the absence of an investigation report from
the public prosecutor.
Eighth. Judge Castañeda allowed the pre-trial to proceed in several cases,
notwithstanding the absence of the petitioner, or the fact that the latter
failed to authorize his/her counsel, through a duly-executed special power
of attorney (SPA), to represent him/her thereat. She also condoned the late
filing of pre-trial briefs, as in fact, there were instances when the petitioner's
pre-trial brief was filed on the day of the pre-trial conference itself.
Page 439
Ninth. There are cases where the documentary evidence had been
allegedly marked and formally offered, and which Judge Castañeda
admitted, but which cannot be found in the records. In several cases, the
petitioner would be allegedly cross-examined by the public prosecutor, but
records are bereft of showing to establish such proceeding.
Tenth. Most of the pyschologists' reports are pro forma and mere
photocopies, and the psychologists did not even testify in court. On the
other hand, the respondent's failure to appear in court for purposes of
presenting his/her evidence is considered a waiver thereof, despite lack of
due notice.
Eleventh. At the time of the audit, Judge Castañeda had granted 175 cases
involving nullity or annulment of marriage and legal separation. More
particularly, the audit team observed the extraordinary speed and
overzealousness with which Judge Castañeda acted in granting some 11
cases, which were decided between a period of a mere 16 days to four (4)
months from the date of their filing.
Finally, Judge Castañeda issued certificates of finality of decisions
notwithstanding the lack of proof that the parties, counsels, the OSG and
the OPP had been duly furnished with copies of the decisions.
Acting upon the report of the audit team, the Court, in its Resolution10
dated November 23, 2009, resolved, inter alia, to:
(a) preventively suspend Judge Castañeda from office immediately upon
receipt of notice, and direct her to explain, within 60 days from notice, why
she should not be administratively dealt with for her numerous infractions
above-enumerated, and to comment on the letter of Lea Benaid dated
October 8, 2008, the respondent in Civil Case No. 254-P’07 (Dodgie Benaid
v. Lea Benaid);
(b) direct Atty. Saguyod, the Clerk of Court of Branch 67, to:
(1) explain why he should not be administratively dealt with for issuing
commitment orders without Judge Castañeda's written authority in two (2)
criminal cases; failing to issue certificates of arraignment in several cases;
failing to furnish respondents copies of notice of pre-trial in some cases;
allowing the issuance of notice of pre-trial in two (2) civil cases only two (2)
days prior to the pre-trial conference; allowing the delay in the issuance of
notice of pre-trial in Civil Case No. 228-07, which respondent received 16
days after the scheduled pre-trial; failing to furnish the respondent the
court's order setting the presentation of respondent's evidence in several
cases; and issuing the certificates of finality in many cases without the OSG
having been furnished with copies of the court's decisions;
(2) explain why no initial action has been taken on several cases, to take
appropriate action and to submit a report to the Court, through the OCA, on
the status of these cases;
(c) direct Process Server Angel C. Vingua (Process Server Vingua) and
Sheriff Lourdes E. Collado (Sheriff Collado), both of Branch 67, to explain
within 15 days from notice why they failed to comply with the rules on
personal service of summons and the requirements to effect a valid
substituted service, in several cases;
(d) order Court Stenographers Marylinda C. Doctor (Doctor), Evelyn B.
Antonio (Antonio), Rosalie P. Sarsagat (Sarsagat) and Cheryl B. Esteban
(Esteban) to attach their stenographic notes and transcripts thereof to the
case records;
(e) advise Clerk George P. Clemente (Clerk Clemente) and Court
Interpreter Maritoni Florian C. Cervantes (Court Interpreter Cervantes),
personnel in charge of the criminal and civil dockets, to attach the registry
receipts and registry returns to the case records, arrange the pleadings and
court orders chronologically according to the dates of receipt or issue,
cause the pagination of records and update their respective dockets; and
(f) order Utility Worker Ruben A. Gigante (Utility Worker Gigante) to stitch
all court records.
In her defense, Judge Castañeda claimed11 that when she assumed her
judicial functions on March 16, 2007, the court was actually housed in a
dilapidated old school building, with leaky ceilings and faulty wiring, and
that the records were in bundles and complete disarray. When her
predecessor retired, she inherited quite a number of cases, and she was
taken to task with rickety typewriters, limited office supplies, and lack of
personnel. In July 2008, when the construction of a new judiciary building
commenced, the court was transferred to a 6x10 square-meter session hall
in the barangay. Judge Castañeda declared that this was the situation in
which the OCA team found Branch 67 when they conducted the audit.
More specifically, Judge Castañeda asseverated that her preventive
suspension was a violation of her human rights, as well as her
constitutional rights to due process and equal protection. She maintained
that the undecided and unresolved cases which Judge Alipio C. Yumul,
who took over her duties during her preventive suspension, was directed to
decide included 2008 cases, which were either newly-filed, pending trial, or
submitted for decision. Defending Atty. Saguyod's issuance of commitment
orders, she insisted that it was sanctioned by the 2002 Manual for Clerks of
Court, especially when the judge's signature could not be secured.
Judge Castañeda cited inadvertence with respect to the archiving of cases
without the warrants of arrest having been returned, and claimed that the
two (2) accused who allegedly have not yet been arraigned had, in fact,
already been arraigned when she was appointed as judge. She averred
that she reduced the bail bond of an accused charged with violation of RA
No. 9165 from P120,000.00 to P10,000.00 because it was recommended
by Provincial Prosecutor Aladin Bermudez, and that she released on
recognizance two (2) other accused charged with violation of RA No. 7610
because they were minors, both of whom she referred to the Department of
Social Welfare and Development.
With regard to her alleged failure to decide cases within the reglementary
period, Judge Castañeda insisted that she had already resolved them,
thereby prompting her to declare such fact, in good faith, in her Certificates
of Service.
Finally, Judge Castañeda denied that she failed to observe the provisions
of A.M. Nos. 02-11-10-SC and 02-11-11-SC. Instead, she asseverated that,
since the petitions filed before her were all verified, it was no longer
incumbent upon her to confirm the veracity of the contents thereof,
including the parties' addresses. She contended that she merely allowed
the issuance of summons even before the filing fees had been paid when
no receipts were readily available to be issued. She likewise explained that
it was not the duty of the court to order the petitioner to furnish the OSG or
the OPP with copies of the petition, and that it was only upon the petitioner's
failure to do so that the court arrogates unto itself the duty to furnish the
OSG a copy of the petition.
With respect to the granting of motions to take depositions without the
respondent and the OPP being furnished copies thereof, she asserted that
only the OSG is required to be given a copy, not the respondent, who only
learns of the case when summons is served upon him/her. On the other
hand, she adopted the explanation offered by Sheriff Collado on the matter
of resorting to substituted service and the failure to strictly observe the
requirements on validly effecting it, as mandated by the rules.
Meanwhile, Judge Castañeda blamed the clerk in-charge for allegedly
forgetting to attach the court orders requiring the public prosecutor to
conduct a collusion investigation in declaration of nullity and annulment of
marriage, and legal separation cases. She defended her stance to proceed
Page 440
with pre-trial conferences notwithstanding the absence of the public
prosecutor's investigation report, maintaining that resetting the pre-trial for
this reason alone would unduly delay the proceedings. She also proceeded
with pre-trial despite lack of showing that respondent was duly notified
thereof as the court merely presumes that he/she received it viaregistered
mail within a period of 30 days. With regard to the absence of the
petitioners themselves during pre-trial, or an SPA authorizing their counsels
to act on their behalf, Judge Castañeda averred that the parties may have
simply forgotten to sign the minutes, or the staff failed to make them sign
for some reason. As for those cases where there were no SPAs presented,
or where the petitioner has yet to submit a pre-trial brief, she imputed the
blame upon the clerk in charge, who she claimed had forgotten to attach
them to the records or who may have even misplaced or misfiled them.
Judge Castañeda likewise avowed that she always checks all documents
when she renders her decisions. Thus, even if there has been no proof that
respondent was furnished with a copy of the notice of hearing for the
presentation of respondent's evidence, she nonetheless issues Orders
submitting them for decision, as to wait for the returns would unnecessarily
delay case disposition. She also insisted that the public prosecutor's
investigation reports were always in the case records, and if they were not,
they might have been misplaced or accidentally removed. She also
postulated that the OSG is always furnished with copies of the decisions in
all cases.
With respect to the letter12 sent by Lea Benaid, Judge Castañeda
reiterated her earlier ratiocination that the petition filed by Lea's
petitionerhusband was verified, thus, the court had no duty to investigate on
the veracity of its contents. Judge Castañeda likewise pointed out that,
despite having received summons, Lea did not file any responsive pleading,
nor did her counsel appear before the court to participate in the
proceedings.
For his part, Atty. Saguyod explained13 that he issued the commitment
orders without Judge Castañeda's written authority as he was empowered,
under the 2002 Manual of Clerks of Court to issue a mittimus whenever the
signature of the judge could not be secured, and there was an immediate
necessity to detain an accused. He charged to mere inadvertence or
oversight instances when the branch staff failed to have the accused or
counsel affix their signatures on the certificates of arraignment. With regard
to his alleged failure to furnish respondents copies of notice of pre-trial,
Atty. Saguyod explained that these notices were actually sent on time but
the proofs of mailing were not immediately attached to the records, and
unfortunately, these proofs were misplaced.
Further, Atty. Saguyod averred that there was a mere typographical error
on the date of one notice of pre-trial, supposedly issued two (2) days before
the pre-trial conference, which should have reflected ―February 8, 2008‖
and not ―February 18, 2008.‖ In a civil case where the respondent
received the notice of pre-trial only on February 22, 2008, 16 days after the
scheduled pre-trial, Atty. Saguyod claimed that the notice of pre-trial was
promptly mailed to respondent on February 1, 2008. Similarly, the order
setting the hearing for the presentation of respondent's evidence was
actually mailed, only that the proof of mailing was not attached to the case
records.
Finally, Atty. Saguyod echoed the defense of Judge Castañeda that the
OSG had always been furnished with copies of the court's decisions before
the corresponding certificates of finality were issued.
In compliance with the Court's directive, Atty. Saguyod submitted a
report14of the initial action taken on the cases mentioned in the Court's
November 23, 2009 Resolution.
For her part, Sheriff Collado claimed15 that she served summons only in 10
cases enumerated in the Court's November 23, 2009 Resolution, but
admitted that she failed to observe the requirements to validly effect
substituted service of summons set forth in Manotoc v. Court of Appeals,16
as she was allegedly not aware thereof and because she was used to a pro
forma return of service. However, she posited that it was an honest mistake
and made assurances to strictly observe the rules in future services of
summons.
On the other hand, records show that Process Server Vingua died on
January 1, 2009.17
On March 12, 2010, Judge Castañeda manifested18 that she will resume
her duties as Presiding Judge of Branch 67 on March 22, 2010,
asseverating that since she had already acted upon the cases cited in the
Court's November 23, 2009 Resolution, and that any lapses thereon were
not attributable to her but to her staff, she has the right to be reinstated to
her position. Thus, Judge Castañeda reported back to her court on March
22, 2010 notwithstanding the lack of any action from the Court regarding
her manifestation.
On February 1 to 4, 2011, a second audit was conducted in Branch 67, the
results of which essentially mirrored those of the first audit.19
The Action and Recommendation of the OCA
In its Memorandum20 dated March 22, 2011, the OCA recommended the
following, inter alia:
(a) that Judge Castañeda be dismissed from the service, with forfeiture of
all retirement benefits, except accrued leave credits, if any, and with
prejudice to reemployment in any branch or instrumentality of the
government, including government-owned or -controlled corporations, for
dishonesty, gross ignorance of the law and procedure, gross misconduct
and incompetency;
(b) that Atty. Saguyod be suspended for six (6) months and one (1) day,
without salaries and other benefits, with warning that a repetition of the
same or similar acts will be dealt with more severely, forinefficiency and
incompetency;
(c) that Sheriff Collado, Court Stenographers Doctor, Antonio, Sarsagat and
Esteban, Clerk Clemente, Court Interpreter Cervantes, and Utility Worker
Gigante be fined in the amount of P5,000.00 each, forsimple neglect of
duties, with warning that a repetition of the same or similar acts will be dealt
with more severely; and,
(d) that Atty. Saguyod and Clerk Clemente be ordered to explain, within
fifteen (15) days from notice, why they failed to present to the audit team, in
the conduct of the second audit, the records of 241 nullity of marriage
cases decided in 2010, and why 30 decided cases involving nullity of
marriage were not reported in 2010.
In arriving at its recommendation insofar as Judge Castañeda is concerned,
the OCA found that she failed to decide cases within the reglementary
period, and that her inaction or procrastination was inexcusable. The OCA
touted Judge Castañeda's explanation as unsatisfactory, especially since
she attempted to use her staff as scapegoats to evade administrative
liability.
Because she failed to conduct a semi-annual inventory of her case docket,
Judge Castañeda failed to see that there were two (2) accused who were
yet to be arraigned. With respect to the accused charged with an offense
involving drugs whose bailbonds she drastically reduced from P120,000.00
to P10,000.00 purportedly upon the recommendation of the public
prosecutor, records are bereft of such recommendation.
Moreover, the OCA also considered the irregularities and procedural lapses
in the manner in which Judge Castañeda handled cases for nullity,
annulment of marriage and legal separation, as she completely disregarded
the basic provisions of A.M. Nos. 02-11-10-SC and 02-11-11-SC. For these
Page 441
infractions, the OCA found her guilty of gross ignorance of the law and
procedure, and held her unjustifiable zeal and readiness in granting
petitions for nullity, annulment and legal separation to be so gross, patent
and deliberate that it reeks of utter bad faith. In fact, the OCA aptly took
note of Judge Castañeda's alarming and indiscriminate granting of petitions
for nullity and annulment of marriage, as evidenced by the fact that these
cases would be usually submitted for decision within a month from the filing
of the petition and decided in a mere 2 months' time. In 2010 alone, Judge
Castañeda granted the extremely high total of 410 petitions of this nature.
From this observation, the OCA explained that Judge Castañeda
demonstrated an utter lack of competence and integrity in performing her
duties as a judge, which amounted to grave abuse of authority.
Finally, by submitting her Certificates of Service for February and March
2010 and falsely asserting therein that she rendered work for that period
when, in fact, she served her preventive suspension from January 13, 2010
to March 21, 2010, Judge Castañeda deliberately committed acts of
dishonesty.
In fine, Judge Castañeda violated the Code of Judicial Conduct, which
enjoins judges to uphold the integrity of the judiciary, avoid impropriety or
the appearance of impropriety in all activities and to perform their duties
honestly and diligently. Thus, considering the number and severity of Judge
Castañeda's infractions, the OCA indicated that the extreme penalty of
dismissal may be imposed upon her.
On the other hand, the OCA found Atty. Saguyod administratively liable for
inefficiency and incompetence in the performance of his duties, which is
classified as a grave offense under the Uniform Rules on Administrative
Cases in the Civil Service. The judicial audits showed that Atty. Saguyod
went beyond the ministerial duties of a branch clerk of court and arrogated
unto himself functions that belong to a judge by issuing commitment orders
in two criminal cases. On the other hand, he was remiss in his mandated
duties as a branch clerk of court when he accepted nonverified petitions for
nullity, annulment and legal separation as well as petitions which were not
within the territorial jurisdiction of Branch 67. He demonstrated inefficiency
when he failed to: (1) issue certificates of arraignment in several criminal
cases; (2) furnish respondents copies of notice of pre-trial; and (3) furnish
the respondent the Order setting the case for presentation of the latter's
evidence, as well as when he issued certificates of finality without furnishing
the respondent and/or the public prosecutor with copies of the decision.
Moreover, Atty. Saguyod miserably failed in performing his mandated duty
under the Rules of Court to oversee and exercise control and supervision
over the orderly keeping of court records, papers and files. Worse, he
passed the blame to his subordinates and attributed the miserable state of
their records to the condition of their office during the first audit.
However, when the second audit was eventually conducted, the team
observed no substantial improvement in case and records management
despite the fact that Branch 67 had already transferred to a new building.
As for Sheriff Collado, the OCA held that she should endeavor to learn the
rules on service of summons, and her claim that their office uses a pro
forma return of service is no excuse to absolve her from liability. On the
other hand, despite having been ordered in the Court's November 23, 2009
Resolution to attach the stenographic notes and transcripts of stenographic
notes to the case records, Court Stenographers Doctor, Antonio, Sarsagat
and Esteban still failed to do so. Similarly, Clerk Clemente failed to attach
the registry receipts and registry returns to the case records, arrange the
pleadings and court issuances chronologically, cause the pagination of
records and update the court docket book. For her part, former Clerk and
currently Court Interpreter Cervantes was found to have failed to prepare
the minutes of the court proceedings and mark exhibits properly. Finally,
Utility Worker Gigante still failed to stitch all court records accordingly.
For their respective infractions, the OCA found Sheriff Collado, Court
Stenographers Doctor, Antonio, Sarsagat and Esteban, Clerk Clemente,
Court Interpreter Cervantes, and Utility Worker Gigante liable for simple
neglect of duties, which is classified as a less grave offense under the
Uniform Rules on Administrative Cases in the Civil Service, punishable by
suspension for 1 month and 1 day to 6 months for the first offense. Instead
of suspending them, however, the OCA recommended that a fine of
P5,000.00 each be imposed upon them. The OCA refused to give credence
to their defense that they cannot cope with their work because of the court's
heavy caseload.
The Issue Before The Court
The sole issue before the Court is whether Judge Castañeda, Atty.
Saguyod, Sheriff Collado, Court Stenographers Doctor, Antonio, Sarsagat
and Esteban, Clerk Clemente, Court Interpreter Cervantes, and Utility
Worker Gigante should be imposed the penalties as recommended by the
OCA, for their various and respective infractions in the performance of their
official duties.
The Court's Ruling
After a judicious perusal of the records, the Court wholly concurs with the
findings and recommendations of the OCA as enumerated above.
Judge Liberty O. Castañeda, Presiding Judge
A. On the Delay in the Disposition of Cases
"Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine
Judiciary provides that judges shall perform all judicial duties, including the
delivery of reserved decisions, efficiently, fairly, and with reasonable
promptness."21 Section 15 (1), Article VIII of the Constitution mandates trial
court judges to decide a case within the reglementary period of 90 days, to
wit:
(1) All cases or matters filed after the effectivity of this Constitution must be
decided or resolved within twenty-four months from date of submission for
the Supreme Court, and, unless reduced by the Supreme Court, twelve
months for all lower collegiate courts, and three months for all other lower
courts. (Emphasis supplied)
Likewise, the Code of Judicial Conduct under Rule 3.05 of Canon 3
dictates:
Rule 3.05 — A judge shall dispose of the court's business promptly and
decide cases within the required periods.
Thus, ―rules prescribing the time within which certain acts must be done
are indispensable to prevent needless delays in the orderly and speedy
disposition of cases, making the 90-day period within which to decide cases
mandatory."22 Corollarily, judges have always been exhorted to observe
strict adherence to the rule on speedy disposition of cases.23 Delay in the
disposition of cases is a major culprit in the erosion of public faith and
confidence in the judicial system, as judges have the sworn duty to
administer justice without undue delay, for justice delayed is justice
denied.24
In Judge Castañeda's case, both judicial audits conducted in the RTC of
Paniqui, Tarlac, Branch 67 revealed that there were many cases that were
undecided notwithstanding the lapse of the 90-day reglementary period
within which they should be disposed, apart from those that have remained
dormant or unacted upon for a considerable amount of time. Judge
Castañeda failed to decide, within the prescribed period, 4025 cases from
the first audit and 22 cases from the second audit, or a total of 62 cases. In
the absence of an extension of time within which to decide these cases,
which Judge Castañeda could have sought from the Court, her failure to
assiduously perform her judicial duties is simply inexcusable. An
inexcusable failure to decide a case within the prescribed 90-day period
Page 442
constitutes gross inefficiency26 warranting a disciplinary sanction.27
B. On the Falsification of the Certificates of Service
A certificate of service is an instrument essential to the fulfillment by the
judges of their duty to dispose of their cases speedily as mandated by the
Constitution.28 A judge who fails to decide cases within the reglementary
period but continues to collect his salaries upon his certification that he has
no pending matters to resolve transgresses the constitutional right of the
people to the speedy disposition of their cases.29
Notwithstanding her failure to dispose of cases within the prescribed period,
Judge Castañeda made it appear in her monthly Certificates of Service that
she had decided or resolved cases within 90 days from their submission.
When she was preventively suspended in the Court's November 23, 2009
Resolution, which suspension she served from January 13, 2010 to March
21, 2010, she nonetheless misrepresented on her Certificates of Service in
February and March 2010 that she rendered work for those months.
Because of such dishonest conduct, she was able to receive her salaries
for the months when she was supposedly under preventive suspension. A
judge who falsifies her Certificate of Service is administratively liable for
serious misconduct and inefficiency.30
C. On Disregarding the Provisions of A.M. Nos. 02-11-10-SC and 02-11-11-
SC
"A judge should observe the usual and traditional mode of adjudication
requiring that he should hear both sides with patience and understanding to
keep the risk of reaching an unjust decision at a minimum."31 Thus, ―he
must neither sacrifice for expediency’s sake the fundamental requirements
of due process nor forget that he must conscientiously endeavor each time
to seek the truth, to know and aptly apply the law, and to dispose of the
controversy objectively and impartially."32
The serious infractions committed by Judge Castañeda were in cases
involving petitions for nullity and annulment of marriage and legal
separation, the most disturbing and scandalous of which was the haste with
which she disposed of such cases. For the year 2010 alone, Judge
Castañeda granted a total of 410 petitions of this nature. The audits
likewise showed that she acted on these petitions despite the fact that it
was not verified; that the OSG or the OPP were not furnished a copy of the
petition within 5 days from its filing; that the petition did not recite the true
residence of the parties, which should be within the territorial jurisdiction of
Branch 67 for at least 6 months prior to the filing of the petition; or that the
docket fees have not been fully paid and jurisdiction over the person of the
respondents have not been acquired.
The Court takes special exception to Civil Case No. 254-P’07 (Dodgie
Benaid v. Lea Benaid), which Judge Castañeda granted notwithstanding
the following irregularities: (1) petitioner-husband Dodgie Benaid appeared
to be a resident of Infanta, Quezon, contrary to the information reflected on
the petition that he was a resident of Apulid, Paniqui, Tarlac; (2)
respondent-wife Lea Benaid is not a resident, either, of Goldenland
Subdivision, Mabalacat, Pampanga, but of Infanta, Quezon; and (3) Lea
was neither interviewed nor investigated by the public prosecutor in arriving
at the conclusion that no collusion exists between her and her husband. In
fact, records show that Dodgie Benaid, the Chief of Police of Real, Quezon,
was eventually found guilty of misconduct and dishonesty for falsely
claiming in his petition for nullity of marriage that he was a resident of
Apulid, Tarlac and that his wife, Lea, was a resident of Mabalacat,
Pampanga.
The OCA has extensively elucidated on the transgressions committed by
Judge Castañeda, which the Court adopts in its entirety. For her blatant
disregard of the provisions of A.M. Nos. 02-11-10-SC and 02-11-11-SC,
Judge Castañeda is thus found guilty of gross ignorance of the law and
procedure. Thus, in Pesayco v. Layague,the Court held:
No less than the Code of Judicial conduct mandates that a judge shall be
faithful to the laws and maintain professional competence. Indeed,
competence is a mark of a good judge. A judge must be acquainted with
legal norms and precepts as well as with procedural rules. When a judge
displays an utter lack of familiarity with the rules, he erodes the public’s
confidence in the competence of our courts. Such is gross ignorance of the
law. One who accepts the exalted position of a judge owes the public and
the court the duty to be proficient in the law. Unfamiliarity with the Rules of
Court is a sign of incompetence. Basic rules of procedure must be at the
palm of a judge’s hands.33 Moreover, the reprehensible haste with which
she granted petitions for nullity and annulment of marriage and legal
separation, despite noncompliance with the appropriate rules and evident
irregularities in the proceedings, displayed her utter lack of competence and
probity, and can only be considered as grave abuse of authority.
Atty. Paulino I. Saguyod, Branch Clerk of Court
In Office of the Court Administrator v. Judge Trocino, the Court explained
the functions and responsibilities of a clerk of court, to wit:
Clerks of court perform vital functions in the prompt and sound
administration of justice. Their office is the hub of adjudicative and
administrative orders, processes, and concerns. Clerks of court are
charged not only with the efficient recording, filing, and management of
court records but also with administrative supervision over court personnel.
A clerk of court is the personnel officer of the court who exercises general
supervision over all court personnel, enforces regulations, initiates
investigations of erring employees, and recommends appropriate action to
the judge. They play a vital role in the complement of the court. 34
In the extensive results of the judicial audits conducted by the OCA, Atty.
Saguyod miserably failed to meet the standards required of an effective and
competent clerk of court. He arrogated unto himself functions which were
not his, and at the same time, failed to perform duties which were
incumbent upon him to do.
Records further show that Branch 67 has been remiss in the submission of
the reportorial requirements, as evidenced by the fact that as of March 21,
2011, the latest Docket Inventory of Cases submitted by Branch 67 is for
January to June 2010, and the latest Monthly Report of Cases is for
November 2010.35 Clearly, Atty. Saguyod violated Administrative Circular
No. 4-2004 dated February 4, 2004, which requires the Monthly Report of
Cases to be filed with the Court on or before the 10th day of the succeeding
month, as well as Administrative Circular No. 76-2007 dated August 31,
2007 which in turn requires all trial judges and their clerks of court to submit
the docket inventory of cases not later than the first week of February and
the first week of August each year.
As aptly pointed out by the OCA, when he assumed the position of Clerk of
Court of Branch 67, Atty. Saguyod is presumed to be ready, willing, and
able to perform his tasks with utmost devotion and efficiency, failing which,
he becomes administratively liable. Thus, Atty. Saguyod is administratively
liable for inefficiency and incompetence in the performance of official duties.
Sheriff Lourdes E. Collado
In Manotoc v. Court of Appeals, the Court expounded on the duty of the
sheriff with respect to effecting a valid service of summons, thus:
Sheriffs are asked to discharge their duties on the service of summons with
due care, utmost diligence, and reasonable promptness and speed so as
not to prejudice the expeditious dispensation of justice. Thus, they are
enjoined to try their best efforts to accomplish personal service on
defendant. On the other hand, since the defendant is expected to try to
avoid and evade service of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process on the defendant.
For substituted service of summons to be available, there must be several
attempts by the sheriff to personally serve the summons within a
Page 443
reasonable period [of one month] which eventually resulted in failure to
prove impossibility of prompt service. "Several attempts" means at least
three (3) tries, preferably on at least two different dates. In addition, the
sheriff must cite why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted. 36 (Emphasis
supplied)
With Sheriff Collado's admission that she indeed failed to observe the
requirements to effect a valid substituted service of summons set forth in
Manotoc v. Court of Appeals37 in the 10 cases assigned to her, and upon
her assurances to strictly observe these rules in the future, the Court
therefore reminds Sheriff Collado to endeavor to commit to memory the
rules on proper service of summons.
Court Stenographers Marylinda C. Doctor, Evelyn B. Antonio, Rosalie P.
Sarsagat and Cheryl B. Esteban; Clerk George P. Clemente; Court
Interpreter Maritoni Florian C. Cervantes; Utility Worker Ruben A. Gigante
Section 17 of Rule 136 of the Rules of Court provides for the functions and
duties of a court stenographer, which states in part:
SEC. 17. Stenographer. – It shall be the duty of the stenographer who has
attended a session of a court either in the morning or in the afternoon, to
deliver to the clerk of court, immediately at the close of such morning or
afternoon session, all the notes he has taken, to be attached to the record
of the case; and it shall likewise be the duty of the clerk to demand that the
stenographer comply with said duty. The clerk of court shall stamp the date
on which such notes are received by him. When such notes are
transcribed, the transcript shall be delivered to the clerk, duly initialed on
each page thereof, to be attached to the record of the case.1ªvvph!1
Further, Administrative Circular No. 24-9038 requires all stenographers to
transcribe all stenographic notes and to attach the transcripts to the records
of the case not later than 20 days from the time the notes were taken.
Stenographers are also required to accomplish a verified monthly
certification to monitor their compliance with this directive. In the absence of
such certification or for failure or refusal to submit the certification, the
stenographer’s salary shall be withheld.1âwphi1
In the Court's November 23, 2009 Resolution, issued pursuant to the
results of the first audit conducted by the OCA, Stenographers Doctor,
Antonio, Sarsagat and Esteban were already directed by the Court to attach
their stenographic notes and transcripts of stenographic notes to the case
records. Likewise, Clerk Clemente, who was in charge of civil cases, was
advised to attach registry receipts and registry returns to their respective
records, arrange papers chronologically, complete records pagination and
update his docket book. Similarly, Court Interpreter Cervantes was ordered
to prepare the Minutes of proceedings and mark exhibits properly, and
Utility Worker Gigante was tasked to stitch all court records properly.
Unfortunately, by the time the second audit had been concluded on
February 4, 2011, all of them miserably failed to complete the respective
tasks assigned to them, for which they must be held administratively liable.
On this note, the Court takes the opportunity to remind judges, clerks of
court, and other court employees that all of them share in the same duty
and obligation to ascertain that justice is dispensed promptly. In order to
realize this end, they must be able to work together and mutually assist one
another. However, it bears to stress that it is the judge who has, at the end
of the day, the ultimate responsibility to ensure that the professional
competence of her staff is constantly displayed, and to take the necessary
steps when she feels that the same is not observed or begins to take a
downward path. Thus, judges should supervise their court personnel to
guarantee the prompt and efficient dispatch of business, and require at all
times the observance of high standards of public service and fidelity.39
WHEREFORE, in view of all the foregoing, the Court finds:
(a) JUDGE LIBERTY. 0. CASTANEDA guilty of dishonesty, gross ignorance
of the law and procedure, gross misconduct and incompetency and hereby
DISMISSES her fro·m the service, with forfeiture of all retirement benefits,
except accrued leave credits, if any, and with prejudice to reemployment in
any branch or instrumentality of the government, including government-
owned or -controlled corporations;
(b) ATTY. PAULINO I. SAGUYOD guilty of inefficiency and incompetency
and hereby SUSPENDS him for six (6) months and one (1) day, without
salaries and other benefits, with warning that a repetition of the same or
similar acts will be dealt with more severely;
(c) SHERIFF LOURDES E. COLLADO; COURT STENOGRAPHERS
MARYLINDA C. DOCTOR, EVELYN B. ANTONIO, ROSALIE P.
SARSAGAT AND CHERYL B. ESTEBAN; CLERK GEORGE P.
CLEMENTE; COURT INTERPRETER MARITONI FLORIAN C.
CERVANTES and UTILITY WORKER RUBEN A. GIGANTE guilty .of
simple neglect of duties and hereby imposes upon them a FINE in the
amount of P5,000.00 each, with wan1ing that a repetition of the same or
similar acts will be dealt with more severely.
Let a copy of this Decision be attached to the records of Judge Castaneda,
Atty. Saguyod, Sheriff Collado, Stenographers Doctor, Antonio, Sarsagat
and Esteban,· Clerk Clemente, Court Interpreter Cervantes and Utility
Worker Gigante on file with the Court.
SO ORDERED.
6.01 SEC. 1. The judicial duties of a judge take precedence over all other
activities.
G.R. No. 90388 June 19, 1990
THE OFFICE OF THE COURT ADMINISTRATOR, complainant,
vs.
JUDGE VIRGILIO S. LANSANG, MTC, Clark Field, Angeles City,
respondent.
RESOLUTION
PER CURIAM:
An administrative complaint, dated February 26, 1990, was filed against
Judge Virgilio S. Lansang, Metropolitan Trial Court, Clark Field, Angeles
City, based on the following findings of the Judiciary Planning Development
and Implementation Office and the Deputy Court Administrator Reynaldo L.
Suarez in the course of an investigation conducted in his court, as follows:
1. Cases deemed submitted for decision, some of which had been
submitted since 1979 and 1982 had remained undecided as of January 3,
1990, contrary to his monthly certification that he has no pending civil and
criminal cases under submission for decision or determination beyond the
90-day period.
2. Cases calendared for hearing during the month of June 1989 to
December 1989, show that for the month of October 1989, only one (1)
hearing was conducted; for November, only one (1) hearing also; for
December, also one (1) hearing; for the month of January 1990, only two
(2) days have been set for trial hearing; for the month of February 1990,
only one (1) and for the month ofaugust 1989, it appears that no case has
Page 444
been disposed of.
3. While it has been verified from reports and records in his office that he
has been solemnizing several marriages between Fihpino citizens and
Americans or foreigners on an average of about three (3) marriages a day
aside from notarizing public documents for a fee, his monthly reports for
1989 to the Statistic Division of this Court do not show any marriage
solemnized or document notarized by him.
4. The accumulated caseload of 182 cases has remained invariably a back
log which has not been reduced over the year despite the few casw that are
filed averaging from 4 to 6 cases a month only. (Complaint, pp. 1-2)
Earlier however, on January 26, 1990, in view of the special visit of Court of
Appeals Associate Justice Leonor Ines Luciano to the Metropolitan Trial
Court, Clark Field, prompted by various complaints against Judge Lansang
and the latter being aware of the seriousness of the charges, respondent
Judge submitted his irrevocable resignation to take effect January 31, 1990.
In his Comment dated April 4, 1990, respondent Judge summed up his
reasons in this wise:
... my failure to decide, to settle cases load was the non-apprehension or
arrest of the accused, the existence of rift between me and the Clerk of
Court, became almost irreconcilable, as manifested in the inconsistent
monthly report, which was full of intrigue and inaccuracy, which lead me to
say I could no longer stay, and happy worldng with them. That even before
this controversy, I have nursed the Idea of resigning. (p. 3, Comment)
Considering all the allegations, issues and arguments raised in the
complaint and in the Comment and the resignation letter of respondent
Judge dated January 26, 1990, the Court finds Judge Virgilio S. Lansang
GUILTY of the charges complained of. His actuations, practices and
conduct are unbecoming of a judicial officer; his acts of commission and
omission having been committed through admitted negligence on his part,
failure to report to the Supreme Court or to the Court Administrator, his
grievances against his own Clerk of Court against whom he never filed any
formal complaints regarding the latter's alleged irregularities; his apparent
acceptance of the accuracy of the reports submitted by his Clerk of Court;
and unmitigated failure to ask for administrative remedies from the
Supreme Court and Court Administrator and the existence up to now of 182
pending cases which according to the Court Administrator had been
submitted for decision, and not merely pending trial. The Court likewise
Resolved not to accept such resignation (acceptance of resignations from
the judiciary being a prerogative of the President of the Philippines), but
instead to consider him RETIRED, with all benefits and gratuities forfeited.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado, JJ.,
concur.
6.02 SEC. 2. Judges shall devote their professional activity to judicial
duties, which include not only the performance of judicial functions and
responsibilities in court and the making of decisions, but also other
tasks relevant to the judicial office or the court’s operations.
A.M. No. 704-RTJ June 14, 1990
FELDMERTO M. LONGBOAN, complainant,
vs.
HON. EMILIO L. POLIG, respondent.
RESOLUTION
PER CURIAM:
A letter-complaint was addressed to the Court Administrator on July 18, 1986
charging the respondent judge with gross negligence of duty or abuse of
authority for his failure to apprise complainant of the status of Civil Case No.
641 despite the former's registered letters requesting the status.
Civil Case No. 641 involved a dispute for collection of a sum of money
between the complainant as plaintiff and one Arsenic Cunaden as defendant.
The complainant obtained a favorable judgment from Municipal Circuit Judge
Flora M. Tel-equen of the 2nd Municipal Circuit Court of Bauko-Sibangan,
Mountain Province on October 26, 1981. It was on appeal when the matter
subject of the letter-complaint came about.
It appears that on February 20, 1984, the complainant was informed by
Regional Trial Court Judge Nicasio A. Baguilat that respondent judge, his
predecessor, was in possession of the records of Civil Case No. 641
considering that the appeal thereto had been perfected prior to respondent
judge's transfer to the Regional Trial Court, Branch 14 at Lagawe, Ifugao. On
August 8, 1984, Judge Baguilat's Clerk of Court certified, among others, that
Civil Case No. 641 was among the cases retained by respondent judge and
that as of the said date no decision therein had been received from the said
judge.
Meanwhile, the complainant had sent five registered letters inquiring about
the status of Civil Case No. 641. Due to respondent Judge's failure to make
any reply as requested, the Office of the Court Administrator sent respondent
judge three tracers dated August 12, 1985, April 15, 1986 and June 23, 1986,
respectively in relation to the records of Civil Case No. 641. Still, the
respondent judge made no reply.
In our resolution dated September 9, 1986, we ordered the respondent judge
to: (a) show cause why no disciplinary or administrative action should be
taken against him, and (b) comply with the inquiry within ten (10) days from
notice thereof with a warning that failure still to do so would be dealt with
accordingly.
In our resolution dated July 31, 1987, we suspended the respondent judge
"immediately and continuing until further orders" for his willful disobedience
and disregard of our previous resolution. The respondent judge was further
ordered to show cause and comply with complainant's inquiry with a warning
that failure to do so would be dealt with more severely.
On May 30, 1989, we resolved to dispatch an audit team headed by Deputy
Court Administrator Juanito A. Bernad to conduct a physical inventory of the
cases pending in the respondent judge's sala on the basis of the
communication from Judge Baguilat informing the Office of the Court
Administrator that Civil Case No. 641 had already been decided by him and
that he could not decide the other cases pending before the respondent
judge's former sala because the records thereof could not be located and the
respondent judge could not be contacted.
On June 1, 1989, a manifestation from the respondent judge with prayer for
the lifting of his suspension and reinstatement to his office was received by
us stating that the respondent judge was unable to submit his comment within
the time allotted because the record of Civil Case No. 641 was somehow
mislaid on account of his transfer to Lagawe, Ifugao; that while in the process
of locating the said record, we suspended respondent judge; that eventually
the said record was found inadvertently mixed up with the disposed and
archived cases and upon discovery, respondent judge immediately
transmitted the same to Judge Baguilat's sala for disposition since he was
under suspension; that Civil Case No. 641 had already been decided by the
Regional Trial Court of Bontoc, Mountain Province; that respondent judge
failed to ask for extension of time to make and submit his comment to our
show-cause resolution due to "awful shock and anxiety at the thought that
the record of the said case may have been lost beyond recovery"; that it took
respondent judge a long time to plead for the lifting of his suspension due to
"self-reproach and disgust of himself for his omission"; and that upon
Page 445
realizing that he still has to support two boys in high school and two boys in
college and considering the present high cost of living, respondent judge
deemed his two-year suspension as enough punishment for his omission,
thus, resumption of his judicial functions should be ordered.
On June 27, 1989, Deputy Court Administrator Juanita A. Bernad conducted
the physical inventory of the cases pending before respondent judge's sala.
In a memorandum dated July 4, 1989, Deputy Court Administrator Bernad
reported that all the cases inventoried were accounted for except four (4)
criminal cases where the accused are not under detention and four (4) civil
cases which remained missing as of June 29, 1989.
On July 6, 1989, we resolved to refer the instant case for investigation and
recommendation to Associate Justice Jesus Elbinias of the Court of Appeals.
After hearing, the investigating officer recommended the lifting of respondent
judge's suspension and the resumption of his official duties. A fine equivalent
to two month's pay to be paid through equitable salary deductions was further
recommended. As to the missing cases, the investigating officer stated that:
With regard to the missing four (4) criminal cases without prisoners and four
(4) civil cases referred to by Deputy Court Administrator Bernad in his
memorandum for the Chief Justice, it is my view that this is a matter entirely
outside the scope of the administrative complaint under inquiry. While the
instant case is privately initiated in the sense that a member of the public
instituted it, in the matter of the missing cases without the parties involved in
them having as yet initiated any action, I believe the decision of whether or
not to require respondent Judge to account for them lies with the Honorable
Supreme Court or Office of the Court Administrator.
After a careful perusal of the records of the instant administrative case
coupled with painstaking deliberations, we are convinced that the respondent
judge's continued silence as to the status of Civil Case No. 641 despite
repeated written queries from one of the parties, his failure to reply to the
tracers of the Office of the Court Administrator, and his willful disobedience
and disregard to our show-cause resolutions constituted grave and serious
misconduct affecting his fitness and the worthiness of the honor and integrity
attached to his office. Once again, we hold with great emphasis that:
...The Judge is the visible representation of the law of justice. From him, the
people draw their will and awareness to obey the law ..." (see Call A. Impao.,
et al. v. Judge Jacosalem D. Makilala, A.M. No. MTJ 88-184, October 13,
1989; Atty. David G. Ompoc, Jr. v. Judge Norito E. Torres, A.M. No. MTJ 86-
11, September 27, 1989)
How can the respondent judge expect others to respect the law when he
himself cannot obey orders as simple as the show cause resolution?
Moreover, it is not enough that the complaining litigant was eventually
appeased by the turn of circumstances. What is more important is whether
or not in the course of the judicial process, judicial norms have been
maintained. It is with this end in view that we stress diligence and efficiency
attendant to the discharge of a judge's function in the present Code of Judicial
Conduct. Canon 3, Rule 3.08, of the said Code provides that:
A judge should diligently discharge administrative responsibilities, maintain
professional competence in court management and facilitate the
performance of the administrative functions of other judges and court
personnel.
In the instant case, respondent judge even impeded the speedy disposition
of cases by his successor on account of missing records of cases. This fact
reflects an inefficient and disorderly system in the recording of cases
assigned to his sala. Although blame can also be conveniently laid on the
court personnel's mismanagement of the records of cases, proper and
efficient court management is as much the judge's responsibility for the Court
personnel are not the guardians of a Judge's responsibilities. (See. of Justice
v. Legaspi, 107 SCRA 233 [1981])
With respect to the inventoried four (4) criminal cases without prisoners and
four (4) civil cases missing, we find no justification for the failure to present
them to the Deputy Court Administrator when required and their absence
from the place where court records are stored. A judge is expected to ensure
that the records of cases assigned to his sala are intact. There is no
justification for missing records save fortuitous events. The loss of not one
but eight records is indicative of gross misconduct and inexcusable
negligence unbecoming of a judge. For true professionalism in the bench to
exist, judges whose acts demoralize the ethical standards of a judicial office
and whose acts demonstrate unfitness and unworthiness of the prestige and
prerequisites attached to said office must be weeded out.
Lastly, the report on the physical inventory of the records of the cases in RTC,
Branch 14, Lagawe, Ifugao, which was respondent judge's last assignment
before his suspension revealed that a total of 35 cases submitted for decision
have remained unresolved beyond the 90-day reglementary period. We have
consistently held that failure to decide a case within the required period is not
excusable and constitutes gross inefficiency. (Ubarra v. Tecson, 134 SCRA
4 [1985]; De Leon v. Castro, 104 SCRA 241 [1981]; and In re: Judge Jose F.
Madara, 104 SCP A, 245 [1981]).
In sum, the Court finds respondent judge guilty of inexcusable negligence,
gross inefficiency and grave and serious misconduct in the discharge of his
functions.
ACCORDINGLY, the COURT RESOLVED to DISMISS RESPONDENT
JUDGE from the service with forfeiture of all his accrued retirement benefits,
leave and other privileges, if any, and with prejudice to re-employment in any
branch, agency or instrumentality of the government, including government
owned or controlled corporations.
SO ORDERED.
6.03 SEC. 3. Judges shall take reasonable steps to maintain and
enhance their knowledge, skills and personal qualities necessary for
the proper performance of judicial duties, taking advantage for this
purpose of the training and other facilities which should be made
available, under judicial control, to judges.
G.R. No. L-66469 July 29, 1986
PEOPLE OF THE PHILIPPINES and ALFREDO QUIJANO, petitioners,
vs.
HON. BERNARDO SALAS (In his capacity as Presiding Judge of RTC,
Cebu, Branch VIII), MARIO ABONG, ALFREDO DE LEON, ERIWADWIN
MONTEBON, ROMEO DE GUZMAN, & EDUARDO
MABUHAY, respondents.
Basilio E. Duaban for accused.
CRUZ, J.:
Mario Abong was originally charged with homicide in the Court of First
Instance of Cebu but before he could be arraigned the case was
reinvestigated on motion of the prosecution. 1 As a result of the
reinvestigation, an amended information was filed, with no bail
recommended, to which he pleaded not guilty. 2 Trial commenced, but while
it was in progress, the prisoner, taking advantage of the first information for
homicide, succeeded in deceiving the city court of Cebu into granting him bail
and ordering his release; and so he escaped. 3 The respondent judge,
Page 446
learning later of the trickery, cancelled the illegal bail bond and ordered
Abong's re-arrest. 4 But he was gone. Nonetheless, the prosecution moved
that the hearing continue in accordance with the constitutional provision
authorizing trial in absentia under certain circumstances. 5 The respondent
judge denied the motion, however, and suspended all proceedings until the
return of the accused. 6 The order of the trial court is now before us on
certiorari and mandamus. 7
The judge erred. He did not see the woods for the trees. He mistakenly
allowed himself to be tethered by the literal reading of the rule when he
should have viewed it from the broader perspective of its intendment.
The rule is found in the last sentence of Article IV, Section 19, of the 1973
Constitution, reading in full as follows:
Section 19. In all criminal prosecution, the accused shall be presumed
innocent until the contrary is proved and shall enjoy the right to be heard by
himself and counsel, to he informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence
of the accused provided that he has been duly notified and his failure to
appear is unjustified.
The purpose of this rule is to speed up the disposition of criminal cases, trial
of which could in the past be indefinitely deferred, and many times completely
abandoned, because of the defendant's escape. The old case ofPeople v.
Avanceña 8 required his presence at certain stages of the trial which as a
result, had to be discontinued as long as the defendant had not re-appeared
or remained at large. As his right to be present at these stages was then held
not waivable even by his escape, such escape thus operated to the fugitive's
advantage, and in mockery of the authorities, insofar as the trial could not
proceed as long as he had not been recaptured.
The doctrine laid down in that case has been modified by Section 19, which
now allows trial in absentia, Now, the prisoner cannot by simply escaping
thwart his continued prosecution and possibly eventual conviction provided
only that: a) he has been arraigned; b) he has been duly notified of the trial;
and c) his failure to appear is unjustified.
The respondent judge was probably still thinking of the old doctrine when he
ruled that trial in absentia of the escapee could not be held because he could
not be duly notified under Section 19. He forgets that the fugitive is now
deemed to have waived such notice precisely because he has escaped, and
it is also this escape that makes his failure to appear at his trial unjustified.
Escape can never be a legal justification. In the past, his escape "rewarded"
him by postponing all further proceedings against him and in effect ultimately
absolving him of the charge he was facing. Under the present rule, his escape
will, legally speaking, operate to Ms disadvantage by preventing him from
attending his trial, which will continue even in his absence and most likely
result in his conviction.
The right to be present at one's trial may now be waived except only at that
stage where the prosecution intends to present witnesses who will Identify
the accused. 9 Under Section 19, the defendant's escape will be considered
a waiver of this right and the inability of the court to notify him of the
subsequent hearings will not prevent it from continuing with his trial. He will
be deemed to have received due notice. The same fact of his escape will
make his failure to appear unjustified because he has, by escaping, placed
himself beyond the pale, and protection, of the law.
Trial in absentia was not allowed in Borja v. Mendoza 10 because it was held
notwithstanding that the accused had not been previously arraigned. His
subsequent conviction was properly set aside. But in the instant case, since
all the requisites are present, there is absolutely no reason why the
respondent judge should refuse to try the accused, who had already been
arraigned at the time he was released on the illegal bail bond. Abong should
be prepared to bear the consequences of his escape, including forfeiture of
the right to be notified of the subsequent proceedings and of the right to
adduce evidence on his behalf and refute the evidence of the prosecution,
not to mention a possible or even probable conviction.
We admonish against a too-literal reading of the law as this is apt to constrict
rather than fulfill its purpose and defeat the intention of its authors. That
intention is usually found not in "the letter that killeth but in the spirit that
vivifieth," which is not really that evanescent or elusive. As judges, we must
look beyond and not be bound by the language of the law, seeking to
discover, by our own lights, the reason and the rhyme for its enactment. That
we may properly apply it according to its ends, we need and must use not
only learning but also vision.
The trial judge is directed to investigate the lawyer who assisted Mario Abong
in securing bail from the city court of Cebu on the basis of the withdrawn
information for homicide and to report to us the result of his investigation
within sixty days.
WHEREFORE, the order of the trial court dated December 22, 1983, denying
the motion for the trial in absentia of the accused is set aside. The respondent
judge is directed to continue hearing the case against the respondent Mario
Abong in absentia as long as he has not reappeared, until it is terminated. No
costs.
SO ORDERED.
6.04 SEC. 4. Judges shall keep themselves informed about relevant
developments of international law, including international conventions
and other instruments establishing human rights norms.
A.M. No. RTJ-05-1966 March 21, 2006
IMELDA S. ENRIQUEZ, Complainant,
vs.
JUDGE ANACLETO L. CAMINADE, Respondent.
DECISION
PANGANIBAN, CJ:
Judges are expected to exhibit more than just cursory acquaintance with
statutes and procedural laws. In all good faith, they must know the laws and
apply them properly. Judicial competence requires no less. Where the legal
principle involved is sufficiently basic and elementary, lack of conversance
with it constitutes gross ignorance of the law.
The Case and the Facts
This administrative case stems from a verified Complaint1 filed with the Office
of the Court Administrator (OCA) by Imelda S. Enriquez. In that case, Judge
Anacleto Caminade was charged with gross misconduct, knowingly
rendering an unjust judgment, and gross ignorance of the law. The material
averments of the Complaint and respondent’s Comment are summarized by
the OCA as follows:
"x x x [Complainant] Imelda S. Enriquez charges [Respondent] Judge
Anacleto Caminade with Gross Misconduct, Knowingly Rendering an Unjust
Judgment and Gross Ignorance of the Law and Procedure relative [to]
Criminal Case No. CBU-066703, entitled ‘People of the Philippines versus
Sherwin Que @ Bungol, Anthony John Apura,’ for Murder. As mother of the
victim in the criminal case, [complainant] alleges that respondent issued an
order dated 31 March 2004, the decretal portion of which reads:
Page 447
‘WHEREFORE, the Court hereby denies the motion for the issuance of the
warrant of arrest against the accused-movants; sets aside the assailed
Resolution of the City Prosecutor on the basis of which the latest amended
information was filed; quashes the latest amended information; and remands
this case to the City Prosecutor for completion of the preliminary
investigation.’
"Respondent so ruled because there was no preliminary investigation
completed on accused Alvin Taggart Pimentel Alvez and Alvin John Apura
[as] they were denied the opportunity to file a motion for reconsideration or a
petition for review before the information was filed in court.
"Complainant claims that respondent was grossly mistaken when he ruled,
in effect, that the investigating prosecutor cannot file a criminal information
before the expiration of the 15-day period within which the accused are
allowed by the Revised Rules of Court to move for reconsideration or petition
for review of an adverse ‘Resolution.’ Respondent cited Sales versus
Sandiganbayan (G.R. [No.] 143802, 16 November 2001) that ‘the filing of
motion for reconsideration is an integral part of the preliminary investigation
proper’ and that an [i]nformation ‘filed without first affording x x x accused his
right to file motion for reconsideration’ is tantamount to a denial of the right
itself to a preliminary investigation.
"Complainant contends that Sales is not applicable to the criminal case
because of significant factual and procedural distinctions between the two
cases: (1) the Sales case proceeded under the Rules of Procedure of the
Ombudsman, while subject criminal case was conducted under the Rules of
Court; (2) there was no completed preliminary investigation in the Sales case
but there was a completed full-blown panel preliminary investigation on the
accused in the subject criminal case; and (3) it is only under the Rules of
Procedure of the Ombudsman that the preliminary investigation is deemed
completed and terminated upon the lapse of the period to file a motion for
reconsideration from the resolution of the Ombudsman while there is nothing
in the Rules of Court which states that a person investigated has the right to
file a motion for reconsideration or reinvestigation before the [i]nformation
can be filed in court.
"In his COMMENT, respondent explains that the panel of prosecutors
conducting preliminary investigation filed in court their amended information
without furnishing accused Apura and Alvez their copy of the resolution. He
stresses that his challenged order is in accordance with law and
jurisprudence, citing among others, the case of Sales. He claims his order
was an honest response to the pending matters before him and [he] merely
granted reliefs consistent with those granted by the Supreme Court in the
Sales case.
"[Respondent judge asserts that] while the facts of Sales and the criminal
case are different, the legal principle involved in the former case ‘that a
preliminary investigation is part of due process and a motion for
reconsideration of the Resolution of the Prosecutor finding probably cause
for the filing of information is part of a preliminary investigation and
respondent who is not given the opportunity to file the same is in effect
deprived of his right without due process of law’ cannot be overlooked.
Respondent points out that complainant, who was represented by two
attorneys, should have resorted to judicial recourse such as an appeal of the
order in question via a petition for certiorari to the Court of Appeals."2
Report and Recommendation of the OCA
In its Report,3 the OCA finds respondent guilty of gross ignorance of the law.
Thus, it recommends that respondent be penalized with the maximum
imposable fine of P40,000, considering that he was earlier penalized with six
months’ suspension for another serious though unrelated offense.
According to the OCA, the issue raised by complainant does not pertain to
an error of judgment or to one pertaining to the exercise of sound judicial
discretion by respondent. Rather, the issue is whether respondent complied
with procedural rules so elementary that to digress from them amounts to
either ignorance or negligence. Since the procedure for the institution of
criminal actions is basic and clearly expressed in the Rules of Court,
respondent’s Order is deemed to have been attended by gross ignorance of
the law.
The Court’s Ruling
The Court agrees with the findings of the OCA but reduces the penalty.
Administrative Liability of Respondent
This Court has consistently held that lack of conversance with legal principles
sufficiently basic and elementary constitutes gross ignorance of the law.4 As
an advocate of justice and a visible representation of the law, a judge is
expected to be proficient in the interpretation of our laws.5
A perusal of the Order issued by respondent on March 31, 2004, shows that
he remanded Criminal Case No. CBU-066703 to the city prosecutor for the
completion of the preliminary investigation based on this Court’s ruling in
Sales v. Sandiganbayan.6 Clearly, respondent failed to read the case in its
entirety, or he grossly misapprehended the doctrine it had laid down.
A careful study of Sales reveals that it applies specifically to preliminary
investigations conducted before the Ombudsman. That case was decided in
accordance with the Rules of Procedure of the Ombudsman, granting the
accused fifteen days to move for a reconsideration or a reinvestigation of an
adverse resolution in a preliminary investigation.7 Obviously, the criminal
case filed before respondent’s court was not covered by the Rules of
Procedure of the Ombudsman but by the Rules of Court, which had no
corresponding provision. Thus, Sales was not in point.
Diligence in keeping up-to-date with the decisions of this Court is a
commendable virtue of judges and, of course, members of the bar.
Comprehending the Court’s decisions is a different matter, however, for it is
in this area where one’s competence may be tested and proven.8
As aptly pointed out by the OCA, the termination of a preliminary investigation
upon the filing of an information in court is a well-established procedural rule
under the Rules of Criminal Procedure. Respondent clearly strayed from the
well-trodden path when he grossly misapplied the ruling of the Court in Sales.
Since a preliminary investigation in Criminal Case No. CBU-066703 was
held, that stage of the legal process was already completed.
The New Code of Judicial Conduct for the Philippine Judiciary requires
judges to be embodiments of judicial competence and diligence.9 Those who
accept this exalted position owe the public and this Court the ability to be
proficient in the law and the duty to maintain professional competence at all
times.10 Indeed, competence is a mark of a good judge. This exalted position
entails a lot of responsibilities, foremost of which is proficiency in the law.
One cannot seek refuge in a mere cursory knowledge of statutes and
procedural rules.11
Respondent judge fell short of these standards when he failed in his duties
to follow elementary law and to keep abreast with prevailing jurisprudence.12
Service in the judiciary involves continuous study and research from
beginning to end.13
Exacting as these standards may be, judges are expected to be
personifications of justice and the rule of law and, as such, to have more than
just a modicum acquaintance with statutes and procedural rules.14 Essential
to every one of them is faithfulness to the laws and maintenance of
professional competence.
Page 448
Judges are not common individuals whose gross errors "men forgive and
time forgets."15 For when they display an utter lack of familiarity with the rules,
they erode the confidence of the public in the competence of our
courts.16 Such lack is gross ignorance of the law. Verily, failure to follow basic
legal commands and rules constitutes gross ignorance of the law, of which
no one is excused, and surely not a judge.17
Respondent contends that instead of filing the instant Administrative
Complaint, complainant should have resorted to judicial recourse, like an
appeal of the Order in question. It should be reiterated that the court’s power
of appellate review is distinct from an administrative matter, which involves
the exercise of the court’s power to discipline judges. An administrative
matter is undertaken and prosecuted solely for the public welfare; that is, to
maintain the faith and confidence of the people in the government.18
In sum, we reiterate our ruling in Abbariao v. Beltran,19 as follows:
"We emphasize that ignorance of the law is the mainspring of injustice. For
this reason, we always remind the members of the bench of their duty to be
faithful to the law and to maintain professional competence. Judges are
called upon to exhibit more than just cursory acquaintance with statutes and
procedural rules. Basic rules must be at the palms of their hands. Their
inexcusable failure to observe the basic laws and rules will render them
administratively liable. ‘Where the law involved -- as in this case -- is simple
and elementary, lack of conversance therewith constitutes gross ignorance
of the law.’"20
As to the charges of grave misconduct and knowingly rendering an unjust
judgment, we agree with the findings of the OCA that there is no allegation
or evidence on record to support these claims.
Regarding the penalty to be imposed on respondent, although gross
ignorance of the law is classified as a serious charge, it has been sanctioned
with a wide range of penalties.21 The Court has to balance the recommended
penalty. The OCA suggests the maximum fine of P40,000, because
respondent was penalized earlier with six months’ suspension for another
serious though unrelated offense. Without minimizing the seriousness of the
previous misconduct, the Court notes that the acts presently complained of
are completely unrelated to and dissimilar from those in the prior case. The
acts under consideration cannot be considered a repetition of the same or
similar acts for which respondent was previously suspended. Neither is there
any showing that he acted with malice or bad faith in issuing his Order in the
present case. Under the present circumstances, this Court deems a fine of
P20,000 to be appropriate.
Unrelated or not, both cases reflect poorly on respondent as a public officer.
The Constitution expects judges to be embodiments of competence, integrity,
probity and independence.22 Indeed, magistrates should personify fourIns;
namely, integrity, independence, industry and intelligence.23
WHEREFORE, Judge Anacleto L. Caminade is found guilty of gross
ignorance of the law, for which he is FINED in the amount of twenty thousand
pesos (P20,000). He is STERNLY WARNED that a repetition of the same or
similar acts shall be dealt with more severely in the future.
SO ORDERED.
6.05 SEC. 5. Judges shall perform all judicial duties, including the
delivery of reserved decisions, efficiently, fairly and with reasonable
promptness.
[A.M. No. MTJ-94-1004. August 21, 1996]
SANGGUNIANG BAYAN OF BATAC, ILOCOS NORTE, complainant, vs.
JUDGE EFREN F. ALBANO, respondent.
DECISION
PER CURIAM:
Before us is Resolution No. 56 s. 1994 issued by the Sangguniang Bayan of
Batac, Ilocos Norte calling for the immediate investigation of Judge Efren F.
Albano, of the Municipal Trial Court of Batac, Ilocos Norte.
The Sanggunian alleged that:
(1) the stay of Judge Albano in the Municipality of Batac as the Presiding
Judge of its Municipal Trial Court has been marred by controversial decisions
coupled with habitual absence from office which hampered speedy resolution
of cases to the prejudice of (their) constituents, and
(2) there have been reported cases and complaints from (their) constituents
that due to the indiscretion, inefficiency and incompetence of the incumbent
Presiding Judge, it has clogged the dockets of the court, caused misery to
litigants which resulted to the filing of certiorari cases against the Presiding
Judge.[1]
On November 3, 1994, we referred the Sanggunians resolution to Judge
Alejandrino C. Cabebe of the Regional Trial Court of Batac, Ilocos Norte for
investigation, report and recommendation.[2]
Judge Cabebe summoned Mr. Da Vinci Crisostomo, Presiding Officer of the
Sanggunian, to a conference to substantiate their charges against the
respondent judge. Mr. Crisostomo pointed out several irregularities in the
way respondent judge conducts preliminary investigations. Judge Cabebe
then examined the criminal dockets of the Municipal Trial Court of Batac,
Ilocos Norte as well as the records of preliminary investigations conducted in
said court.[3]
In the course of his investigation, Judge Cabebe uncovered around forty (40)
criminal cases dismissed after preliminary investigation.[4] In all these cases,
respondent judge failed to transmit the resolution and records to the
provincial prosecutor upon conclusion of the proceedings. Respondent judge
also archived two (2) cases when the police failed to arrest the suspects
therein, in violation of Section 5 of Rule 112 of the Revised Rules of Court. In
addition, Judge Cabebe discovered that respondent judge issued warrants
of arrest without examining the complainant and his witnesses in writing and
under oath, in violation of Section 6 (b) of Rule 112 of the Revised Rules of
Court and Section 21, Article III of the Constitution. Judge Cabebe
recommended the dismissal of respondent judge from the service with
forfeiture of benefits.[5] The Office of the Court Administrator made a similar
recommendation in a Memorandum dated May 23, 1996.[6]
It is the stance of respondent judge that the cases cited by Judge Cabebe
were all dismissed at the preliminary examination stage and did not reach
the preliminary investigation proper.Respondent judge averred that before
going to the preliminary investigation proper, he first conducted a preliminary
examination to determine whether there is probable cause to issue a warrant
of arrest. In the cases cited by Judge Cabebe, respondent judge found no
probable cause for the issuance of a warrant, hence he did not proceed to
the preliminary investigation proper. He argued that since there were no
preliminary investigations conducted and concluded, there were no records
to be forwarded to the provincial prosecutor for the filing of the corresponding
information.[7] Respondent judge further argued that (he) may not be held
liable for improper disposition of cases under preliminary investigation
because the acts imputed against him pertains (sic) to his judicial capacity
that are not subject to disciplinary power.[8]
Respondent judges stance clearly demonstrates his gross ignorance of the
proper procedure in conducting a preliminary investigation.
Under the old rules, the preliminary investigation conducted by a municipal
Page 449
judge had two stages: (1) the preliminary examination stage during which the
investigating judge determines whether there is reasonable ground to believe
that an offense has been committed and the accused is probably guilty
thereof, so that a warrant of arrest may be issued and the accused held for
trial; and (2) the preliminary investigation proper where the complaint or
information is read to the accused after his arrest and he is informed of the
substance of the evidence adduced against him, after which he is allowed to
present evidence in his favor if he so desires.[9] Presidential Decree 911,[10]
upon which the present rule is based, removed the preliminary
examination stage and integrated it into the preliminary investigation
proper. Now, the proceedings consist only of one stage.[11]
Section 3 of Rule 112 of the Revised Rules of Court outlines the procedure
for conducting a preliminary investigation:
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint
or information for an offense cognizable by the Regional Trial Court shall be
filed without a preliminary investigation having been first conducted in the
following manner:
(a) The complaint shall state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as
other supporting documents, in such number of copies as there are
respondents plus two (2) copies for the official file. The said affidavits shall
be sworn to before any fiscal, state prosecutor or government official
authorized to administer oath, or in their absence or unavailability, a notary
public, who must certify that he has personally examined the affiants and that
he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating
officer shall either dismiss the same if he finds no ground to continue with the
inquiry, or issue a subpoena to the respondent attaching thereto a copy of
the complaint, affidavits and other supporting documents. Within ten (10)
days from receipt thereof the respondent shall submit counter-affidavits and
other supporting documents.He shall have the right to examine all other
evidence submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the
respondent shall also be sworn to and certified as prescribed in paragraph
(a) hereof and copies thereof shall be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed does not
submit counter-affidavits within the ten (10) day period, the investigating
officer shall base his resolution on the evidence presented by the
complainant.
(e) If the investigating officer believes that there are matters to be clarified,
he may set a hearing to propound clarificatory questions to the parties or their
witnesses, during which the parties shall be afforded an opportunity to be
present but without the right to examine or cross-examine. If the parties so
desire, they may submit questions to the investigating officer which the latter
may propound to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the
investigating officer shall resolve the case within ten (10) days therefrom.
Upon the evidence thus adduced, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial.
Section 5 of the same rule specifies the duty of the investigating judge upon
conclusion of the preliminary investigation:
Sec. 5. Duty of investigating judge. Within ten (10) days after the conclusion
of the preliminary investigation, the investigating judge shall transmit to the
provincial or city fiscal, for appropriate action, the resolution of the case,
stating briefly the findings of facts and the law supporting his action, together
with the entire records of the case, which shall include: (a) the warrant, if the
arrest is by virtue of a warrant; (b) the affidavits and other supporting
evidence of the parties; (c) the undertaking or bail of the accused; (d) the
order of release of the accused and cancellation of his bail bond, if the
resolution is for the dismissal of the complaint.
Should the provincial or city fiscal disagree with the findings of the
investigating judge on the existence of probable cause, the fiscals ruling shall
prevail, but he must explain his action in writing furnishing the parties with
copies of his resolution, not later than thirty (30) days from receipt of the
records from the judge. If the accused is detained, the fiscal shall order his
release.
Respondent judges failure to transmit the resolution and records of the cases
disregards the clear mandate of Section 5 of Rule 112. Under this provision,
it is mandatory for the investigating judge to transmit to the provincial or city
prosecutor his resolution dismissing or admitting the complaint, together with
the entire records of the case.
A preliminary investigation is conducted to determine whether there is
sufficient ground to engender a well-founded belief that a crime cognizable
by the Regional Trial Court has been committed and that the respondent is
probably guilty thereof and should be held for trial.[12] It is an executive, not a
judicial function. It falls under the authority of the prosecutor who is given by
law the power to direct and control all criminal actions. However, since there
are not enough fiscals and prosecutors to investigate the crimes committed
in all the municipalities all over the country, the government was constrained
to assign this function to judges of Municipal Trial Courts and Municipal
Circuit Trial Courts.[13] Thus, when a municipal judge conducts preliminary
investigation, he performs a non-judicial function as an exception to his usual
duties. His findings, therefore, are subject to review by the provincial or city
prosecutor whose findings, in turn, may be reviewed by the Secretary of
Justice in appropriate cases. Hence, the investigating judge, after conducting
a preliminary investigation, must perform his ministerial duty to transmit
within ten (10) days the resolution of the case together with the entire records
to the provincial or city prosecutor.[14]
It is true that the determination of the existence of probable cause for the
issuance of a warrant of arrest is a judicial function which is beyond the
reviewing power of the prosecutor.However, distinction should be made
between a preliminary inquiry for the determination of probable cause for the
issuance of a warrant of arrest and a preliminary investigation to ascertain
whether or not a person should be held for trial. The first is a judicial function
while the second is an executive function.[15] Even if the investigating judge
finds no sufficient ground to issue a warrant of arrest, he is still duty-bound
to transmit the records to the provincial or city prosecutor. The prosecutors
reviewing power shall affect only his conclusion as to whether or not a
criminal complaint or information should be filed against the respondent, but
not his conclusion as to the propriety of issuing a warrant of arrest.
We now come to the warrants of arrest issued by the respondent judge. The
issuance of a warrant of arrest is addressed to the sound discretion of a
judge. Provided there is no grave abuse of discretion or malice, a mistake on
his part in the determination of probable cause will not subject him to
disciplinary action. He is nevertheless expected to follow strictly the
procedure laid down in the rules regarding its issuance. Failure to comply
with such procedure will make him administratively liable.[16] In the case at
bar, respondent judge issued several warrants of arrest without
examining the complainant and his witnesses in writing and under oath,
in violation of Section 6 of Rule 112 which provides:
Sec. 6. When warrant of arrest may issue. x x x
(b) By the Municipal Trial Court. If the municipal trial judge conducting the
preliminary investigation is satisfied after an examination in writing and under
oath of the complainant and his witnesses in the form of searching questions
and answers, that a probable cause exists and that there is a necessity of
Page 450
placing the respondent under immediate custody in order not to frustrate the
ends of justice, he shall issue a warrant of arrest.
The records show that respondent judge has violated the rules on preliminary
investigation and issuance of a warrant of arrest since the start of his term as
municipal judge in Batac, Ilocos Norte in September 1991. The gross
ignorance of respondent judge has immensely prejudiced the administration
of justice. Parties adversely affected by his rulings dismissing their
complaints after preliminary investigation have been denied their statutory
right of review that should have been conducted by the provincial prosecutor.
His practice of issuing warrants of arrest without examining the complainants
and their witnesses is improvident and could have unnecessarily deprived
the accused of their liberty however momentary it may be. Our Constitution
requires that all members of the judiciary must be of proven competence,
integrity, probity and independence.[17] Respondent judges stubborn
adherence to improper procedures and his constant violation of the
constitutional provision requiring him to personally examine the complainant
and the witness in writing and under oath before issuing a warrant of arrest
makes him unfit to discharge the functions of a judge.[18]
IN VIEW WHEREOF, respondent Judge Efren F. Albano is
DISMISSED from the service with forfeiture of all leave credits and retirement
benefits and with disqualification for reemployment in the national and local
governments, as well as in any governmental instrumentality or agency,
including government-owned or controlled corporations.
This decision is immediately executory and the respondent judge is further
ordered to cease and desist from discharging the functions of his office upon
receipt of this Decision. Let a copy be entered in the personal records of the
respondent.
SO ORDERED.
6.06 SEC. 6. Judges shall maintain order and decorum in all
proceedings before the court and be patient, dignified and courteous in
relation to litigants, witnesses, lawyers and others with whom the judge
deals in an official capacity. Judges shall require similar conduct of
legal representatives, court staff and others subject to their influence,
direction or control.
A.M. No. R-192-RTJ January 9, 1987
ATTY. ARTURO A. ROMERO, complainant,
vs.
HON. JUDGE GABRIEL O. VALLE, JR., respondent.
RESOLUTION
PER CURIAM:
In a verified complaint dated November 28, 1984, Atty. Arturo A. Romero
charged Judge Gabriel O. Valle, Jr;. of the Regional Trial Court of Laoag City,
Branch XII with grave misconduct and oppression. In the words of
complainant himself, the acts complained of consisted in:
5. That instead of directing complainant to proceed with the marking of
exhibits and to continue the direct examination, respondent continued to utter
embarrassing remarks which hurt complainant and, therefore, the latter tried
to make further explanations on said exhibits and to defend his integrity in a
controlled and respectful manner, but his honor, the respondent judge
suddenly banged his gavel producing such a deafening noise that several
persons from the adjoining branches of the Court came: that without
declaring a recess, said respondent judge unceremoniously REMOVED his
coat and told, angrily, herein complainant: "You step out and we will finish
the matter"; immediately thereafter, respondent judge stepped down from the
rostrum and left;
6. That, shaken and stunned by such sudden aggressive behaviour of
respondent, complainant then stood by his seat, and as some people in the
Courtroom rushed out of the Courtroom, complainant looked around and then
saw respondent judge outside the courtroom holding a gun with his right
hand, in front of him, facing towards complainant, in an angry and menacing
manner, and waited for complainant to go outside; confronted by such
alarming and threatening stance of respondent, complainant could not move
for a moment, as complainant was totally unarmed, surprised and shocked;
and when complainant saw respondent Judge briskly walked to and fro still
holding a gun, complainant then asked the Court stenographer: "Please put
in the record that the Judge is holding a gun"; that luckily thereafter, Atty.
Isidro Madamba, member of the Sangunian Panlalawigan, succeeded in
pacifying respondent judge and shortly, said respondent returned to the
Court; that after some remarks by respondent judge, complainant moved that
the Honorable respondent voluntarily inhibit himself from further trying the
case in the light of the antecedents, but denied it and ordered the resetting
of the case; 1
Required to comment on the complaint, respondent judge denied the charges
and branded the same as "exaggerated, sensationalized, fabricated and
inherently improbable and contrary to human experience and one- sided.
2 Respondent judge likewise explained that he has been issued by the
provincial commander the necessary permit to carry his licensed pistol
outside his residence on account of a threat on his life from the New People's
Army. By way of prayer, he asked that complainant be suspended from the
practice of law for a certain period of time. 3
On January 31, 1985, the Court en banc resolved to refer the case to
Associate Justice of the then Intermediate Appeallate Court, Abdulwahid
Bidin, for investigation, report and recommendation. From the evidence
adduced at the hearings, Associate Justice Bidin made the following findings
of facts and conclusions:
Complainant is one of the two counsels for plaintiff in Civil Case No. 6821
entitled "Iglesia Filipina Independiente versus Rafael Albano, et. al.," for
"Quieting of Title with Preliminary Injunction," pending before the Regional
Trial Court of Ilocos Norte-Laoag City, branch XII, presided by Respondent
Judge.
During the trial of said case on November 19, 1984, complainant requested
that an inventory book of plaintiff be marked as Exhibit F. Respondent Judge
interrupted the complainant with a remark that the said inventory book should
be marked Exh. G since there is already an Exh. F of the plaintiff which was
marked during the last hearing of the case when complainant was absent.
The fact that there was already an Exh. F for the plaintiff was confirmed by
the manifestation of Atty. Rafael Ruiz, counsel for the defendant after
verifying his notes as requested by respondent judge. Nevertheless, the
complainant in a loud voice insisted that his proposed marking of the Exhibit
is the correct one as the Exhibit F referred to by respondent judge and Atty.
Ruiz was not initialed by the Clerk of Court. This remark of complainant
irritated the respondent judge who retorted that complainant is not prepared
for trial and admonished the latter to be prepared with his trial brief before
coming to court so that he will not bangle (sic) the marking of his exhibit. As
the complainant continued insisting in a loud voice that his proposed marking
of the inventory book as Exhibit F is correct, despite the fact that respondent
judge had admonished him [complainant] not to bring his "passion" to the
court and if complainant does not respect the Judge, he should respect the
court, the respondent banged his gavel left the rostrum and went to his
chamber. According to the complainant and his witness, [Atty. Andres Tunac,
co-counsel of complainant in the case], the respondent, before leaving the
rostrum made this remark to complainant "You step out. We finish the
matter." Respondent denied having made the challenge to complainant and
alleged that what he said or declared before leaving the rostrum was "five
minutes recess." This call for a recess by respondent is confirmed and/or
corroborated by Atty. Rafael Ruiz, defendant's counsel in the case on trial
and respondent's witness in this investigation. From his chamber, respondent
Page 451
judge went to the stairs passing the corridor holding his coat with his left hand
while on his right hand he was holding a hand gun [revolver] which was inside
its holster. As respondent walked on the corridor towards the stairs, he looked a sign of disrespect, improper to one whose "investiture into the legal
at the courtroom where the lawyers were. Upon reaching the stairs, profession places upon his shoulders no burden more basic, more exacting
respondent was informed by his clerk that there are still cases in the calendar and more imperative than that of respectful behavior towards the courts." 9
ready for trial. Respondent returned to his chamber and placed his gun inside
his table. Later, respondent came out to resume his court session.
Complainant is an active law practitioner in the province of Ilocos Norte. He
was director of the Integrated Bar of the Philippines, Ilocos Norte-Laoag City
At the resumption of the trial, the complainant stood up and asked the Chapter in 1982, Chairman of the Legal Aid Committee of said chapter,
respondent to inhibit himself from hearing the case. The respondent required president of PHILCONSA, Ilocos Norte-Laoag City Chapter from 1981-83
the complainant to put his request in writing and dictated an order resetting and president of the Ilocos Norte Lions Club in 1983. 10 As a recognized
the case to another date. The case [Civil Case No. 6821], is now transferred community leader, complainant should provide an example in proper court
to another judge who presides over Branch XIII. decorum to his brothers in the profession, and not to foment discord in the
courtroom. Considering complainant's obvious high standing in the legal
profession and the community, he should have observed humility to accept
Respondent claims that he is authorized to carry his licensed pistol outside
mistakes graciously and to treat the same as the proverbial learning
of his residence as evidenced by the Certification issued by the Provincial
experience.
Commander of Ilocos Norte [Exh. 7] and that he had been carrying the said
gun from his house to office and back ever since he received a letter threat
dated March 22, 1984 [Exh. 1 ] from the NPA. On the other hand, respondent judge exhibited shortness of temper and
impatience, contrary to the duties and restrictions imposed upon him by
reason of his office. 11 In Calalang vs. Fernandez, Adm. Case No. 175-J,
According to Atty. Leandro Rafales [complainant's own witness] and who
June 10, 1971, We stated that a judge should show no shortness of temper
appears with [sic] the most impartial among the witnesses, the respondent
for it merely detracts from the equanimity and judiciousness that should be
stood up, bang [sic] his gavel and left the rostrum because the complainant
the constant marks of a dispenser of justice. In the case at bar, respondent
did not stop making remarks and insisted in a loud voice in marking the
judge, in losing his temper and engaging complainant in a heated discussion,
inventory book as Exhibit F despite the fact that it has been established that
not only failed to observe the proper decorum expected of judicial officers,
there was already an Exhibit F of the plaintiff and that before banging the
but as a consequence thereof likewise failed to preserve and enforce order
gavel respondent judge told the complainant not to bring his passion to court
in his court. Precisely, judicial officers are given contempt powers in order
and if complainant does not respect the Judge, he should respect the court.
that without being arbitrary, unreasonable or unjust, they may endeavor to
Atty. Rafales also testified that respondent judge did not remove his coat
hold counsel to a proper appreciation of their duties to the court. Respondent
when he left the rostrum and while respondent was holding his gun which
judge could very well have cited complainant in contempt of court instead of
was inside its holster with his right hand when he came out of his chamber
indulging in tantrums by banging his gavel in a very forceful manner and
on his way towards the stairs, the gun was not pointed at anyone, although
unceremoniously walking out of the courtroom.
the respondent turned his face towards the people inside the courtroom as
he walked towards the stairs.
Respondent judge appears to have a valid explanation for gun, but such
explanation cannot be taken as carrying a satisfactory. for his having chosen
As regards the charge that respondent challenged the complainant to step
to carry the same in plain view of the complainant and other lawyers inside
out and we settle the matter the evidence is inconclusive. While the
the courtroom when he came out of his chambers on his way to the stairs.
complainant and his co-counsel, Atty. Tunac testified that the respondent
Taken in the light of what had just transpired, the actuation of respondent
Judge uttered those statements, the latter and Atty. Rafael Ruiz [defendant's
judge was not an innocent gesture, but one calculated to instill fear in or
counsel and witness for respondent] denied that such statement was made
intimidate complainant. We cannot let this pass unnoticed. Respondent
by respondent. Both respondent and Atty. Ruiz allege that what respondent
judge's behavior constitutes grave misconduct. It is a serious violation of the
said or declared before leaving the rostrum was "five minute recess." On the
Canons of Judicial Ethics which require that a "judge's official conduct should
other hand, Atty. Rafales testified that what he heard from respondent-judge
be free from the appearance of impropriety, and his personal behavior, not
was "step out" only. The transcript of the proceedings that took place before
only upon the bench and in the performance of judicial duties, but also in his
respondent judge on that fateful day had not been presented as evidenced
every day life, should be beyond reproach." 12 Moreover, it reveals an
[sic] by the parties at this investigation. In view of this conflicting testimony of
attitude diametrically opposed to our pronouncement in De la Paz v. Inutan,
the witnesses, the undersigned cannot conclude that respondent judge
64 SCRA 540. that "the judge is the visible representation of law, and more
challenged the complainant as alleged in the complaint. 4
importantly, of justice." Certainly, one who lives by the uncivilized precept of
"might is right," is unworthy of an office entrusted with the duty to uphold the
It is evident from the foregoing that complainant and respondent judge are rule of law.
equally to blame for the incident under consideration. We have enunciated in
the case of Lugue vs. Kayanan, 29 SCRA 165, that:
WHEREFORE, Judge Gabriel O. Valle, Jr. is found guilty of grave
misconduct and is hereby ordered DISMISSED from the service, without
It is the duty of both counsel and judge to maintain, not to destroy, the high forfeiture of retirement benefits but with prejudice to reinstatement in any
esteem and regard for courts. Any act on the part of one or the other that branch of the government or any of its agencies or instrumentalities.
tends to undermine the people's respect for, and confidence in, the Complainant Atty. Arturo A. Romero is required to show cause why no
administration of justice is to be avoided. And this, even if both may have to disciplinary action should be taken against him for conduct unbecoming of
restrain pride from taking the better part of their system. To be expected then an officer of the court, within fifteen (15) days from notice.
of petitioner and respondent is a sense of shared responsibility, a crucial
factor in the administration of justice. ...
The decision is immediately executory.

The relations between counsel and judge should be based on-mutual respect
SO ORDERED.
and on a deep appreciation by one of the duties of the other. 5 Thus, counsel
is expected to observe and maintain the respect due to the courts of justice
and judicial of officers. 6 Although allowed some latitude of remarks or 6.07 SEC. 7. Judges shall not engage in conduct incompatible with the
comment in the furtherance of causes he upholds, 7his arguments, written or diligent discharge of judicial duties.
Page 452

oral, should be gracious to both court and opposing counsel and be of such
words as may be properly addressed by one gentleman to another.
8 Certainly, and most especially in our culture, raising one's voice is