1 A.C. No.
5816, March 10, 2015
DR. ELMAR O.
PEREZ, Complainant, v. ATTY. TRISTAN A.
CATINDIG AND ATTY. KAREN E.
BAYDO, Respondents.
DECISION
PER CURIAM:
Before the Court is an administrative
complaint1 for disbarment filed by Dr. Elmar O.
Perez (Dr. Perez) with the Office of the Bar
Confidant on August 27, 2002 against Atty.
Tristan A. Catindig (Atty. Catindig) and Atty.
Karen E. Baydo (Atty. Baydo) (respondents)
for gross immorality and violation of the Code
of Professional Responsibility.
The Facts
In her complaint, Dr. Perez alleged that she
and Atty. Catindig had been friends since the
mid-1960’s when they were both students at
the University of the Philippines, but they lost
touch after their graduation. Sometime in
1983, the paths of Atty. Catindig and Dr. Perez
again crossed. It was at that time that Atty.
Catindig started to court Dr. Perez.2
Atty. Catindig admitted to Dr. Perez that he
was already wed to Lily Corazon Gomez
(Gomez), having married the latter on May 18,
1968 at the Central Methodist Church in
Ermita, Manila, which was followed by a
Catholic wedding at the Shrine of Our Lady of
Lourdes in Quezon City.3 Atty. Catindig
however claimed that he only married Gomez
because he got her pregnant; that he was
afraid that Gomez would make a scandal out
of her pregnancy should he refuse to marry
her, which could have jeopardized his
scholarship in the Harvard Law School.4
Atty. Catindig told Dr. Perez that he was in the
process of obtaining a divorce in a foreign
country to dissolve his marriage to Gomez,
and that he would eventually marry her once
the divorce had been decreed. Consequently,
sometime in 1984, Atty. Catindig and Gomez
obtained a divorce decree from the Dominican
Republic. Dr. Perez claimed that Atty. Catindig
assured her that the said divorce decree was
lawful and valid and that there was no longer
any impediment to their marriage.5
Thus, on July 14, 1984, Atty. Catindig married
Dr. Perez in the State of Virginia in the United
States of America (USA). Their union was
blessed with a child whom they named Tristan
Jegar Josef Frederic.6
Years later, Dr. Perez came to know that her
marriage to Atty. Catindig is a nullity since the
divorce decree that was obtained from the
Dominican Republic by the latter and Gomez
is not recognized by Philippine laws. When
she confronted Atty. Catindig about it, the
latter allegedly assured Dr. Perez that he
would legalize their union once he obtains a
declaration of nullity of his marriage to Gomez
under the laws of the Philippines. He also
promised to legally adopt their son.7
Sometime in 1997, Dr. Perez reminded Atty.
Catindig of his promise to legalize their union
by filing a petition to nullify his marriage to
Gomez. Atty. Catindig told her that he would
still have to get the consent of Gomez to the
said petition.8
Sometime in 2001, Dr. Perez alleged that she
received an anonymous letter9 in the mail
informing her of Atty. Catindig’s scandalous
affair with Atty. Baydo, and that sometime
later, she came upon a love letter10 written and
signed by Atty. Catindig for Atty. Baydo dated
April 25, 2001. In the said letter, Atty. Catindig
professed his love to Atty. Baydo, promising to
marry her once his “impediment is removed.”
Apparently, five months into their relationship,
Atty. Baydo requested Atty. Catindig to put a
halt to their affair until such time that he is able
to obtain the annulment of his marriage. On
August 13, 2001, Atty. Catindig filed a petition
to declare the nullity of his marriage to
Gomez.11
On October 31, 2001, Atty. Catindig
abandoned Dr. Perez and their son; he moved
to an upscale condominium in Salcedo Village,
Makati City where Atty. Baydo was frequently
seen.12
In a Resolution13 dated October 9, 2002, the
Court directed the respondents to file their
respective comments, which they separately
did on November 25, 2002.14
Atty. Catindig, in his Comment,15 admitted that
he married Gomez on May 18, 1968. He
claimed, however, that immediately after the
wedding, Gomez showed signs that she was
incapable of complying with her marital
obligations, as she had serious intimacy
problems; and that while their union was
blessed with four children, their relationship
simply deteriorated.
1

Eventually, their irreconcilable differences led
to their de facto separation in 1984. They then
consulted Atty. Wilhelmina Joven (Atty.
Joven), a mutual friend, on how the agreement
to separate and live apart could be
implemented. Atty. Joven suggested that the
couple adopt a property regime of complete
separation of property. She likewise advised
the couple to obtain a divorce decree from the
Dominican Republic for whatever value it may
have and comfort it may provide them.16
Thus, on April 27, 1984, Atty. Catindig and
Gomez each executed a Special Power of
Attorney addressed to a Judge of the First
Civil Court of San Cristobal, Dominican
Republic, appointing an attorney-in-fact to
institute a divorce action under its laws. Atty.
Catindig likewise admitted that a divorce by
mutual consent was ratified by the Dominican
Republic court on June 12, 1984. Further, Atty.
Catindig and Gomez filed a Joint Petition for
Dissolution of Conjugal Partnership before the
Regional Trial Court of Makati City, Branch
133, which was granted on June 23, 1984.17
Atty. Catindig claimed that Dr. Perez knew of
the foregoing, including the fact that the
divorce decreed by the Dominican Republic
court does not have any effect in the
Philippines. Notwithstanding that she knew
that the marriage of Atty. Catindig and Gomez
still subsisted, Dr. Perez demanded that Atty.
Catindig marry her. Thus, Atty. Catindig
married Dr. Perez in July 1984 in the USA.18
Atty. Catindig claimed that Dr. Perez knew that
their marriage was not valid since his previous
marriage to Gomez was still subsisting, and
that he only married Dr. Perez because he
loved her and that he was afraid of losing her if
he did not. He merely desired to lend a
modicum of legitimacy to their relationship.19
Atty. Catindig claimed that his relationship with
Dr. Perez turned sour. Eventually, he left their
home in October 2001 to prevent any
acrimony from developing.20
He denied that Atty. Baydo was the reason
that he left Dr. Perez, claiming that his
relationship with Dr. Perez started to fall apart
as early as 1997. He asserted that Atty. Baydo
joined his law firm only in September 1999;
and that while he was attracted to her, Atty.
Baydo did not reciprocate and in fact rejected
him. He likewise pointed out that Atty. Baydo
resigned from his firm in January 2001.21
For her part, Atty. Baydo denied that she had
an affair with Atty. Catindig. She claimed that
Atty. Catindig began courting her while she
was employed in his firm. She however
rejected Atty. Catindig’s romantic overtures;
she told him that she could not reciprocate his
feelings since he was married and that he was
too old for her. She said that despite being
turned down, Atty. Catindig still pursued her,
which was the reason why she resigned from
his law firm.22
On January 29, 2003, the Court referred the
case to the Integrated Bar of the Philippines
(IBP) for investigation, report and
recommendation within 90 days from notice.23
On June 2, 2003, the IBP’s Commission on
Bar Discipline (CBD) issued an Order24 setting
the mandatory conference of the
administrative case on July 4, 2003, which
was later reset to August 29, 2003. During the
conference, the parties manifested that they
were already submitting the case for resolution
based on the pleadings already submitted.
Thereupon, the IBP-CBD directed the parties
to submit their respective position papers
within 10 days from notice. Respondents Atty.
Catindig and Atty. Baydo filed their position
papers on October 17, 200325 and October 20,
2003,26 respectively. Dr. Perez filed her
position paper27 on October 24, 2003.
Findings of the IBP Investigating
Commissioner
On May 6, 2011, after due proceedings, the
Investigating Commissioner of the IBP-CBD
issued a Report and
Recommendation,28 which recommended the
disbarment of Atty. Catindig for gross
immorality, violation of Rule 1.01, Canon 7 and
Rule 7.03 of the Code of Professional
Responsibility. The Investigating
Commissioner pointed out that Atty. Catindig’s
act of marrying Dr. Perez despite knowing fully
well that his previous marriage to Gomez still
subsisted was a grossly immoral and illegal
conduct, which warrants the ultimate penalty
of disbarment. The Investigating
Commissioner further opined that:
In this case, the undisputed facts gathered
from the evidence and the admissions of Atty.
Catindig established a pattern of grossly
immoral conduct that warrants fustigation and
2
his disbarment. His conduct was not only
corrupt or unprincipled; it was reprehensible to
the highest degree.
There is no dichotomy of morality. A lawyer
and a professor of law, both in his official and
personal conduct, must display exemplary
behavior. Respondent’s bigamous marriage
and his proclivity for extramarital adventurism
have definitely caused damage to the legal
and teaching professions. How can he hold his
head up high and expect his students, his
peers and the community to look up to him as
a model worthy of emulation when he failed to
follow the tenets of morality? In contracting a
second marriage notwithstanding knowing fully
well that he has a prior valid subsisting
marriage, Atty. Catindig has made a mockery
of an otherwise inviolable institution, a serious
outrage to the generally accepted moral
standards of the community.29
On the other hand, the Investigating
Commissioner recommended that the charge
against Atty. Baydo be dismissed for dearth of
evidence; Dr. Perez failed to present clear and
preponderant evidence in support of the
alleged affair between the respondents.
Findings of the IBP Board of Governors
On December 10, 2011, the IBP Board of
Governors issued a Resolution,30 which
adopted and approved the recommendation of
the Investigating Commissioner.
Atty. Catindig sought a reconsideration31 of the
December 10, 2011 Resolution of the IBP
Board of Governors, claiming that the
Investigating Commissioner erred in relying
solely on Dr. Perez’s uncorroborated
allegations. He pointed out that, under Section
1 of Rule 139-B of the Rules of Court, a
complaint for disbarment must be supported
by affidavits of persons having knowledge of
the facts therein alleged and/or by such
documents as may substantiate said facts. He
said that despite the absence of any
corroborating testimony, the Investigating
Commissioner gave credence to Dr. Perez’
testimony.
He also claimed that he had absolutely no
intention of committing any felony; that he
never concealed the status of his marriage
from anyone. In fact, Atty. Catindig asserted
that he had always been transparent with both
Gomez and Dr. Perez.
The IBP Board of Governors, in its
Resolution32 dated December 29, 2012,
denied Atty. Catindig’s motion for
reconsideration.
The Issue
The issue in this case is whether the
respondents committed gross immorality,
which would warrant their disbarment.
Ruling of the Court
After a thorough perusal of the respective
allegations of the parties and the
circumstances of this case, the Court agrees
with the findings and recommendations of the
Investigating Commissioner and the IBP Board
of Governors.
The Code of Professional Responsibility
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.
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.
In Arnobit v. Atty. Arnobit,33 the Court held:
[T]he requirement of good moral character is
of much greater import, as far as the general
public is concerned, than the possession of
legal learning. Good moral character is not
only a condition precedent for admission to the
legal profession, but it must also remain intact
in order to maintain one’s good standing in
that exclusive and honored fraternity. Good
moral character is more than just the absence
of bad character. Such character expresses
itself in the will to do the unpleasant thing if it
is right and the resolve not to do the pleasant
thing if it is wrong. This must be so because
“vast interests are committed to his care; he is
the recipient of unbounded trust and
confidence; he deals with his client’s property,
reputation, his life, his all.”34 (Citation omitted)
In this regard, Section 27, Rule 138 of the
Rules of Court provides that a lawyer may be
removed or suspended from the practice of
law, inter alia, for grossly immoral conduct.
Thus:
3
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
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. (Emphasis ours)
“A lawyer may be suspended or disbarred for
any misconduct showing any fault or
deficiency in his moral character, honesty,
probity or good demeanor.”35 Immoral conduct
involves acts that are willful, flagrant, or
shameless, and that show a moral indifference
to the opinion of the upright and respectable
members of the community. Immoral conduct
is gross when it is so corrupt as to constitute a
criminal act, or so unprincipled as to be
reprehensible to a high degree, or when
committed under such scandalous or revolting
circumstances as to shock the community’s
sense of decency. The Court makes these
distinctions, as the supreme penalty of
disbarment arising from conduct requires
grossly immoral, not simply immoral,
conduct.36
Contracting a marriage during the
subsistence of a previous one amounts to
a grossly immoral conduct.
The facts gathered from the evidence adduced
by the parties and, ironically, from Atty.
Catindig’s own admission, indeed establish a
pattern of conduct that is grossly immoral; it is
not only corrupt and unprincipled, but
reprehensible to a high degree.
Atty. Catindig was validly married to Gomez
twice – a wedding in the Central Methodist
Church in 1968, which was then followed by a
Catholic wedding. In 1983, Atty. Catindig
started pursuing Dr. Perez when their paths
crossed again. Curiously, 15 years into his first
marriage and four children after, Atty. Catindig
claimed that his first marriage was then
already falling apart due to Gomez’ serious
intimacy problems.
A year after pursuing Dr. Perez, Atty. Catindig
had a de facto separation from Gomez,
dissolved their conjugal partnership of gains,
obtained a divorce decree from a court in the
Dominican Republic, and married Dr. Perez in
the USA all in the same year. Atty. Catindig
was so enchanted with Dr. Perez at that time
that he moved heaven and earth just so he
could marry her right away – a marriage that
has at least a semblance of legality.
From his own admission, Atty. Catindig knew
that the divorce decree he obtained from the
court in the Dominican Republic was not
recognized in our jurisdiction as he and
Gomez were both Filipino citizens at that time.
He knew that he was still validly married to
Gomez; that he cannot marry anew unless his
previous marriage be properly declared a
nullity. Otherwise, his subsequent marriage
would be void. This notwithstanding, he still
married Dr. Perez. The foregoing
circumstances seriously taint Atty. Catindig’s
sense of social propriety and moral values. It
is a blatant and purposeful disregard of our
laws on marriage.
It has also not escaped the attention of the
Court that Atty. Catindig married Dr. Perez in
the USA. Considering that Atty. Catindig knew
that his previous marriage remained valid, the
logical conclusion is that he wanted to marry
Dr. Perez in the USA for the added security of
avoiding any charge of bigamy by entering into
the subsequent marriage outside Philippine
jurisdiction.
Moreover, assuming arguendo that Atty.
Catindig’s claim is true, it matters not that Dr.
Perez knew that their marriage is a nullity. The
fact still remains that he resorted to various
legal strategies in order to render a façade of
validity to his otherwise invalid marriage to Dr.
Perez. Such act is, at the very least, so
unprincipled that it is reprehensible to the
highest degree.
Further, after 17 years of cohabiting with Dr.
Perez, and despite the various legal actions he
resorted to in order to give their union a
semblance of validity, Atty. Catindig left her
and their son. It was only at that time that he
finally decided to properly seek the nullity of
his first marriage to Gomez. Apparently, he
was then already entranced with the much
4
younger Atty. Baydo, an associate lawyer
employed by his firm.
While the fact that Atty. Catindig decided to
separate from Dr. Perez to pursue Atty.
Baydo, in itself, cannot be considered a
grossly immoral conduct, such fact forms part
of the pattern showing his propensity towards
immoral conduct. Lest it be misunderstood, the
Court’s finding of gross immoral conduct is
hinged not on Atty. Catindig’s desertion of Dr.
Perez, but on his contracting of a subsequent
marriage during the subsistence of his
previous marriage to Gomez.
“The moral delinquency that affects the fitness
of a member of the bar to continue as such
includes conduct that outrages the generally
accepted moral standards of the community,
conduct for instance, which makes ‘a mockery
of the inviolable social institution of
marriage.’”37 In various cases, the Court has
held that disbarment is warranted when a
lawyer abandons his lawful wife and maintains
an illicit relationship with another woman who
has borne him a child.38
Atty. Catindig’s subsequent marriage during
the subsistence of his previous one definitely
manifests a deliberate disregard of the sanctity
of marriage and the marital vows protected by
the Constitution and affirmed by our laws. By
his own admission, Atty. Catindig made a
mockery out of the institution of marriage,
taking advantage of his legal skills in the
process. He exhibited a deplorable lack of that
degree of morality required of him as a
member of the bar, which thus warrant the
penalty of disbarment.
The Court is not unmindful of the rule that the
power to disbar must be exercised with great
caution, and only in a clear case of misconduct
that seriously affects the standing and
character of the lawyer as an officer of the
Court and as a member of the bar. Where a
lesser penalty, such as temporary suspension,
could accomplish the end desired, disbarment
should never be decreed. Nevertheless, in this
case, the seriousness of the offense compels
the Court to wield its power to disbar, as it
appears to be the most appropriate penalty.
Atty. Catindig’s claim that Dr. Perez’s
allegations against him are not credible since
they are uncorroborated and not supported by
affidavits contrary to Section 1, Rule 139-B of
the Rules of Court, deserves scant
consideration. Verily, Atty. Catindig himself
admitted in his pleadings that he indeed
married Dr. Perez in 1984 while his previous
marriage with Gomez still subsisted.
Indubitably, such admission provides ample
basis for the Court to render disciplinary
sanction against him.
There is insufficient evidence to prove the
affair between the respondents.
The Court likewise agrees with the
Investigating Commissioner that there is a
dearth of evidence to prove the claimed
amorous relationship between the
respondents. As it is, the evidence that was
presented by Dr. Perez to prove her claim was
mere allegation, an anonymous letter
informing her that the respondents were
indeed having an affair and the purported love
letter to Atty. Baydo that was signed by Atty.
Catindig.
The Court has consistently held that in
suspension or disbarment proceedings against
lawyers, the lawyer enjoys the presumption of
innocence, and the burden of proof rests upon
the complainant to prove the allegations in his
complaint. The evidence required in
suspension or disbarment proceedings is
preponderance of evidence.39
The presentation of the anonymous letter that
was received by Dr. Perez only proves that the
latter indeed received a letter informing her of
the alleged relations between the
respondents; it does not prove the veracity of
the allegations therein. Similarly, the supposed
love letter, if at all, only proves that Atty.
Catindig wrote Atty. Baydo a letter professing
his love for her. It does not prove that Atty.
Baydo is indeed in a relationship with Atty.
Catindig.
WHEREFORE, in consideration of the
foregoing disquisitions, the Court resolves
to ADOPT the recommendations of the
Commission on Bar Discipline of the
Integrated Bar of the Philippines. Atty. Tristan
A. Catindig is found GUILTY of gross
immorality and of violating the Lawyer’s Oath
and Rule 1.01, Canon 7 and Rule 7.03 of the
Code of Professional Responsibility and is
hereby DISBARRED from the practice of law.
Let a copy of this Decision be entered into the
5
records of Atty. Tristan A. Catindig in the
Office of the Bar Confidant and his name
is ORDERED STRICKEN from the Roll of
Attorneys. Likewise, copies of this Decision
shall be furnished to the Integrated Bar of the
Philippines and circulated by the Court
Administrator to all appellate and trial courts.
The charge of gross immorality against Atty.
Karen E. Baydo is hereby DISMISSED for lack
of evidence.
SO ORDERED.
FACTS:
Atty. Tristan A. Catindig admitted to Dr. Elmar
Perez that he was already wed to Lily Corazon
Gomez. Atty. Catindig told Dr. Perez that he
was in the process of obtaining a divorce in a
foreign country to dissolve his marriage to
Gomez, and that he would eventually marry
her once the divorce had been decreed.
Consequently, sometime in 1984, Atty.
Catindig and Gomez obtained a divorce
decree from the Dominican Republic.
On July 14, 1984, Atty. Catindig married Dr.
Perez in the State of Virginia in the United
States of America (USA).
Years later, Dr. Perez came to know that
her marriage to Atty. Catindig is a nullity
since the divorce decree that was obtained
from the Dominican Republic by the latter
and Gomez is not recognized by Philippine
laws. Sometime in 1997, Dr. Perez reminded
Atty. Catindig of his promise to legalize their
union by filing a petition to nullify his marriage
to Gomez.
Sometime in 2001, Dr. Perez alleged that
she received an anonymous letter in the
mail informing her of Atty. Catindig’s
scandalous affair with Atty. Baydo, and that
sometime later, she came upon a love
letter written and signed by Atty. Catindig for
Atty. Baydo dated April 25, 2001. In the said
letter, Atty. Catindig professed his love to Atty.
Baydo, promising to marry her once his
“impediment is removed.”
On October 31, 2001, Atty. Catindig
abandoned Dr. Perez and their son; he
moved to an upscale condominium in Salcedo
Village, Makati City where Atty. Baydo was
frequently seen.
Atty. Catindig, in his Comment, admitted that
he married Gomez on May 18, 1968. He
claimed, however, that immediately after the
wedding, Gomez showed signs that she was
incapable of complying with her marital
obligations. Eventually, their irreconcilable
differences led to their de facto separation in
1984.
Atty. Catindig claimed that Dr. Perez knew of
the foregoing, including the fact that the
divorce decreed by the Dominican Republic
court does not have any effect in the
Philippines.
Atty. Catindig claimed that his relationship with
Dr. Perez turned sour. Eventually, he left their
home in October 2001 to prevent any
acrimony from developing.anroblesvirtu
He denied that Atty. Baydo was the reason
that he left Dr. Perez.
For her part, Atty. Baydo denied that she had
an affair with Atty. Catindig.
IBP – recommended the disbarment of Atty.
Catindig for gross immorality, violation of Rule
1.01, Canon 7 and Rule 7.03 of the Code of
Professional Responsibility. Complaint against
Atty. Baydo – dismissed for dearth of
evidence.
ISSUE:
WON the respondents committed gross
immorality, which would warrant their
disbarment.
HELD:
YES.
RATIO:
The Code of Professional Responsibility
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.
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.
In this regard, Section 27, Rule 138 of the
Rules of Court provides that a lawyer may
be removed or suspended from the
6
practice of law, inter alia, for grossly
immoral conduct.
“A lawyer may be suspended or disbarred for
any misconduct showing any fault or
deficiency in his moral character, honesty,
probity or good demeanor.” Immoral conduct
involves acts that are willful, flagrant, or
shameless, and that show a moral indifference
to the opinion of the upright and respectable
members of the community. Immoral conduct
is gross when it is so corrupt as to constitute a
criminal act, or so unprincipled as to be
reprehensible to a high degree, or when
committed under such scandalous or revolting
circumstances as to shock the community’s
sense of decency. The Court makes these
distinctions, as the supreme penalty of
disbarment arising from conduct requires
grossly immoral, not simply immoral,
conduct.roblesvirtu
Contracting a marriage during the
subsistence of a previous one amounts to
a grossly immoral conduct.
The facts gathered from the evidence
adduced by the parties and, ironically, from
Atty. Catindig’s own admission, indeed
establish a pattern of conduct that is
grossly immoral; it is not only corrupt and
unprincipled, but reprehensible to a high
degree.
Moreover, assuming arguendo that Atty.
Catindig’s claim is true, it matters not that Dr.
Perez knew that their marriage is a nullity. The
fact still remains that he resorted to various
legal strategies in order to render a façade of
validity to his otherwise invalid marriage to Dr.
Perez. Such act is, at the very least, so
unprincipled that it is reprehensible to the
highest degree.
Further, after 17 years of cohabiting with Dr.
Perez, and despite the various legal actions he
resorted to in order to give their union a
semblance of validity, Atty. Catindig left her
and their son. It was only at that time that he
finally decided to properly seek the nullity of
his first marriage to Gomez. Apparently, he
was then already entranced with the much
younger Atty. Baydo, an associate lawyer
employed by his firm.
While the fact that Atty. Catindig decided to
separate from Dr. Perez to pursue Atty.
Baydo, in itself, cannot be considered a
grossly immoral conduct, such fact forms part
of the pattern showing his propensity towards
immoral conduct. Lest it be misunderstood,
the Court’s finding of gross immoral
conduct is hinged not on Atty. Catindig’s
desertion of Dr. Perez, but on his
contracting of a subsequent marriage
during the subsistence of his previous
marriage to Gomez.
Atty. Catindig’s subsequent marriage
during the subsistence of his previous one
definitely manifests a deliberate disregard
of the sanctity of marriage and the marital
vows protected by the Constitution and
affirmed by our laws. By his own
admission, Atty. Catindig made a mockery
out of the institution of marriage, taking
advantage of his legal skills in the process.
He exhibited a deplorable lack of that
degree of morality required of him as a
member of the bar, which thus warrant the
penalty of disbarment.
There is insufficient evidence to prove the
affair between the respondents.
As it is, the evidence that was presented by
Dr. Perez to prove her claim was mere
allegation, an anonymous letter informing her
that the respondents were indeed having an
affair and the purported love letter to Atty.
Baydo that was signed by Atty. Catindig.
The Court has consistently held that in
suspension or disbarment proceedings against
lawyers, the lawyer enjoys the presumption of
innocence, and the burden of proof rests upon
the complainant to prove the allegations in his
complaint. The evidence required in
suspension or disbarment proceedings is
preponderance of evidence.
anroblesvirtu
DISPOSITION: Catindig – disbarred. Baydo –
dismissed.
2. A.C. No. 7973 and A.C. No.
10457 February 3, 2015
MELVYN G. GARCIA, Complainant,
vs.
ATTY. RAUL H. SESBRENO, Respondent.
DECISION
PER CURIAM:
Two complaints for disbarment were filed by
Dr. Melvyn G. Garcia (Garcia) against Atty.
Raul H. Sesbrefio (Sesbrefio). The two cases,
docketed as A.C. No. 7973 and A.C. No.
10457, were consolidated in the Court's
Resolution dated 30 September 2014.
A.C. No. 7973
On 30 July 2008, Garcia filed a complaint for
disbarment against Sesbreño before the Office
of the Bar Confidant. The case was docketed
7
as A.C. No. 7973. Garcia alleged that in 1965,
he married Virginia Alcantara in Cebu. They
had two children, Maria Margarita and Angie
Ruth. In 1971, he and Virginia separated. He
became a dentist and practiced his profession
in Cabanatuan City. Garcia alleged that
in1992, Virginia filed a petition for the
annulment of their marriage, which was
eventually granted.
Garcia alleged that in 2005 while he was in
Japan, Sesbreño, representing Maria
Margarita and Angie Ruth, filed an action for
support against him and his sister Milagros
Garcia Soliman. At the time of the filing of the
case, Maria Margarita was already 39 years
old while Angie Ruth was 35 years old. The
case was dismissed. In 2007, Garcia returned
from Japan. When Sesbreño and Garcia’s
children learned abouthis return, Sesbreño
filed a Second Amended Complaint against
him. Garcia alleged that he learned that
Sesbreño was convicted by the Regional Trial
Court of Cebu City, Branch 18, for Homicide in
Criminal Case No. CBU-31733. Garcia alleged
that Sesbreño is only on parole. Garcia
alleged that homicide is a crime against moral
turpitude; and thus, Sesbreño should not be
allowed to continue his practice of law.
In his Comment, Sesbreño alleged that on 15
August 2008, Garcia filed a similar complaint
against him before the Integrated Bar of the
Philippines, Commission on Bar Discipline
(IBP-CBD), docketed as CBC Case No. 08-
2273. Sesbreño alleged that Garcia’s
complaint was motivated by resentment and
desire for revenge because he acted as pro
bono counsel for Maria Margarita and Angie
Ruth.
In the Court’s Resolution dated 18 January
2010, the Court referred A.C. No. 7973 to the
IBP for investigation, report and
recommendation.
A.C. No. 10457 (CBC Case No. 08-2273)
A day prior to the filing of A.C. No. 7973, or on
29 July 2008, Garcia filed a complaint for
disbarment against Sesbreño before the IBP-
CBD. He alleged that Sesbreño is practicing
law despite his previous conviction for
homicide in Criminal Case No. CBU-31733,
and despite the facts that he is only on parole
and that he has not fully served his sentence.
Garcia alleged that Sesbreño violated Section
27, Rule 138 of the Rules of Court by
continuing to engage in the practice of law
despite his conviction of a crime involving
moral turpitude. Upon the directive of the IBP-
CBD, Garcia submitted his verified complaint
against Sesbreño alleging basically the same
facts he alleged in A.C. No. 7973.
In his answer to the complaint, Sesbreño
alleged that his sentence was commuted and
the phrase "with the inherent accessory
penalties provided by law" was deleted.
Sesbreño argued that even if the accessory
penalty was not deleted, the disqualification
applies only during the term of the sentence.
Sesbreño further alleged that homicide does
not involve moral turpitude. Sesbreño claimed
that Garcia’s complaint was motivated by
extreme malice, bad faith, and desire to
retaliate against him for representing Garcia’s
daughters in court.
The IBP-CBD consolidated A.C. No. 7973 with
CBD Case No. 08-2273. The parties agreed
on the sole issue to be resolved: whether
moral turpitude is involved in a conviction for
homicide. The IBP-CBD ruled that the
Regional Trial Court of Cebu found Sesbreño
guilty of murder and sentenced him to suffer
the penalty of reclusion perpetua. On appeal,
this Court downgraded the crime to homicide
and sentenced Sesbreño to suffer the penalty
of imprisonment for 9 years and 1 day of
prision mayor as minimum to 16 years and 4
months of reclusion temporalas maximum.
The IBP-CBD found that Sesbreño was
released from confinement on 27 July 2001
following his acceptance of the conditions of
his parole on 10 July 2001.
The IBP-CBD ruled that conviction for a crime
involving moral turpitude is a ground for
disbarment or suspension. Citing International
Rice Research Institute v. National Labor
Relations Commission,1 the IBPCBD further
ruled that homicide may or may not involve
moral turpitude depending on the degree of
the crime. The IBP-CBD reviewed the decision
of this Court convicting Sesbreño for the crime
of homicide, and found that the circumstances
leading to the death of the victim involved
moral turpitude. The IBP-CBD stated:
Neither victim Luciano Amparadon or his
companion Christopher Yapchangco was
shown to be a foe of respondent and neither
had the victim Luciano nor his companion
Christopher shown to have wronged the
respondent. They simply happened to be at
the wrong place and time the early morning of
June 3, 1993.
The circumstances leading to the death of
Luciano solely caused by respondent, bear the
earmarks of moral turpitude. Paraphrasing
what the Supreme Court observed in Soriano
v. Dizon, supra, the respondent, by his
8
conduct, displayed extreme arrogance and
feeling of self-importance. Respondent acted
like a god who deserved not to be slighted by
a couple of drunks who may have shattered
the stillness of the early morning with their
boisterous antics, natural display of loud
bravado of drunken men who had one too
many. Respondent’s inordinate over reaction
to the ramblings of drunken men who were not
even directed at respondent reflected poorly
on his fitness to be a member of the legal
profession. Respondent was not only
vindictive without a cause; he was cruel with a
misplaced sense of superiority.2
Following the ruling of this Court in Soriano v.
Atty. Dizon3 where the respondent was
disbarred for having been convicted of
frustrated homicide, the IBP-CBD
recommended that Sesbreño be disbarred and
his name stricken from the Roll of Attorneys.
In its Resolution No. XX-2013-19 dated 12
February 2013, the IBP Board of Governors
adopted and approved the Report and
Recommendation of the IBP-CBD.
On 6 May 2013, Sesbreño filed a motion for
reconsideration before the IBP-CBD.
Sesbreño alleged that the IBP-CBD
misunderstood and misapplied Soriano v. Atty.
Dizon. He alleged that the attendant
circumstances in Sorianoare disparate,
distinct, and different from his case. He further
alleged that there was no condition set on the
grant of executive clemency to him; and thus,
he was restored to his full civil and political
rights. Finally, Sesbreño alleged that after his
wife died in an ambush, he already stopped
appearing as private prosecutor in the case for
bigamy against Garcia and that he already
advised his clients to settle their other cases.
He alleged that Garcia already withdrew the
complaints against him.
On 11 February 2014, the IBP Board of
Governors passed Resolution No. XX-2014-31
denying Sesbreño’s motion for
reconsideration. The IBPCBD transmitted the
records of the case to the Office of the Bar
Confidant on 20 May 2014. CBD Case No. 08-
2273 was redocketed as A.C. No. 10457. In
the Court’s Resolution dated 30 September
2014, the Court consolidated A.C. No. 7973
and A.C. No. 10457.
The only issue in these cases is whether
conviction for the crime of homicide involves
moral turpitude.
We adopt the findings and recommendation of
the IBP-CBD and approve Resolution No. XX-
2013-19 dated 12 February 2013 and
Resolution No. XX-2014-31 dated 11 February
2014 of the IBP Board of Governors.
Section 27, Rule 138 of the Rules of Court
states that a member of the bar may be
disbarred or suspended as attorney by this
Court by reason of his conviction of a crime
involving moral turpitude. This Court has ruled
that disbarment is the appropriate penalty for
conviction by final judgment for a crime
involving moral turpitude.4 Moral turpitude is
an act of baseness, vileness, or depravity in
the private duties which a man owes to his
fellow men or to society in general, contraryto
justice, honesty, modesty, or good morals.5
The question of whether conviction for
homicide involves moral turpitude was
discussed by this Court in International Rice
Research Institute v. NLRC6 where it ruled:
This is not to say that all convictions of the
crime of homicide do not involve moral
turpitude.1âwphi1 Homicide may or may not
involve moral turpitude depending on the
degree of the crime. Moral turpitude is not
involved in every criminal act and is not shown
by every known and intentional violation of
statute, but whether any particular conviction
involves moral turpitude may be a question of
fact and frequently depends on all the
surrounding circumstances. While x x x
generally but not always, crimes mala in
seinvolve moral turpitude, while crimes mala
prohibitado not, it cannot always be
ascertained whether moral turpitude does or
does not exist by classifying a crime as malum
in se or as malum prohibitum, since there are
crimes which are mala in se and yet rarely
involve moral turpitude and there are crimes
which involve moral turpitude and are mala
prohibita only. It follows therefore, that moral
turpitude is somewhat a vague and indefinite
term, the meaning of which must be left to the
process of judicial inclusion or exclusion as the
cases are reached.7
In People v. Sesbreño,8 the Court found
Sesbreño guilty of homicide and ruled:
WHEREFORE, the assailed decision of the
Regional Trial Court of Cebu City, Branch 18,
in Criminal Case No. CBU-31733 is hereby
MODIFIED. Appellant Raul H. Sesbreñois
hereby found GUILTY of HOMICIDE and
hereby sentenced to suffer a prison term of 9
years and 1 day of prision mayor, as a
minimum, to 16 years and 4 months of
reclusion temporal, as a maximum, with
accessory penalties provided by law, to
indemnify the heirs of the deceased Luciano
9
Amparado in the amount of ₱50,000.00 and to
pay the costs.
SO ORDERED.9
We reviewed the Decision of this Court and we
agree with the IBPCBD that the circumstances
show the presence of moral turpitude.
The Decision showed that the victim Luciano
Amparado (Amparado) and his companion
Christopher Yapchangco (Yapchangco) were
walking and just passed by Sesbreño’s house
when the latter, without any provocation from
the former, went out of his house, aimed his
rifle, and started firing at them. According to
Yapchangco, theywere about five meters,
more or less, from the gate of Sesbreño when
they heard the screeching sound of the gate
and when they turned around, they saw
Sesbreño aiming his rifle at them. Yapchangco
and Amparado ran away but Amparado was
hit. An eyewitness, Rizaldy Rabanes
(Rabanes), recalled that he heard shots and
opened the window of his house. He saw
Yapchangco and Amparado running away
while Sesbreño was firing his firearm rapidly,
hitting Rabanes’ house in the process. Another
witness, Edwin Parune, saw Amparado fall
down after being shot, then saw Sesbreño in
the middle of the street, carrying a long
firearm, and walking back towards the gate of
his house. The IBP-CBD correctly stated that
Amparado and Yapchangco were just at the
wrong place and time. They did not do
anything that justified the indiscriminate firing
done by Sesbreño that eventually led to the
death of Amparado.
We cannot accept Sesbreño’s argument that
the executive clemency restored his full civil
and political rights. Sesbreño cited In re Atty.
Parcasio10 to bolster his argument. In
thatcase, Atty. Parcasio was granted "an
absolute and unconditional pardon"11 which
restored his "full civil and political rights,"12 a
circumstance not present inthese cases. Here,
the Order of Commutation13 did not state that
the pardon was absolute and unconditional.
The accessory penalties were not mentioned
when the original sentence was recited in the
Order of Commutation and they were also not
mentioned in stating the commuted sentence.
It only states: By virtue of the authority
conferred upon me by the Constitution and
upon the recommendation of the Board of
Pardons and Parole, the original sentence of
prisoner RAUL SESBREÑO Y HERDA
convicted by the Regional Trial Court, Cebu
City and Supreme Court and sentenced to an
indeterminate prison term of from 9 years and
1 day to 16 years and 4 months imprisonment
and to pay an indemnity of ₱50,000.00 is/are
hereby commuted to an indeterminate prison
term of from 7 years and 6 months to 10 years
imprisonment and to pay an indemnity of
₱50,000.00.14
Again, there was no mention that the
executive clemency was absolute and
unconditional and restored Sesbreño to his full
civil and political rights.
There are four acts of executive clemency that
the President can extend: the President can
grant reprieves, commutations, pardons, and
remit fines and forfeitures, after conviction by
final judgment.15 In this case, the executive
clemency merely "commuted to an
indeterminate prison term of 7 years and 6
months to 10 years imprisonment" the penalty
imposed on Sesbrefio. Commutation is a mere
reduction of penalty.16 Commutation only
partially extinguished criminal liability.17 The
penalty for Sesbrefio' s crime was never wiped
out. He served the commuted or reduced
penalty, for which reason he was released
from prison. More importantly, the Final
Release and Discharge18 stated that "[i]t is
understood that such x x x accessory penalties
of the law as have not been expressly remitted
herein shall subsist." Hence, the Parcasio
case has no application here. Even if
Sesbrefio has been granted pardon, there is
nothing in the records that shows that it was a
full and unconditional pardon. In addition, the
practice of law is not a right but a privilege.19 It
is granted only to those possessing good
moral character.20 A violation of the high moral
standards of the legal profession justifies the
imposition of the appropriate penalty against a
lawyer, including the penalty of disbarment.21
WHEREFORE, respondent Raul H. Sesbrefio
is DISBARRED effective immediately upon his
receipt of this Decision.
Let copies of this Decision be furnished the
Office of the Bar Confidant, the Integrated Bar
of the Philippines for distribution to all its
chapters, and the Office of the Court
Administrator for dissemination to all courts all
over the country. Let a copy of this Decision
be attached to the personal records of
respondent.
SO ORDERED.
3. GARCIA vs. SESBREÑO
A.C. No. 7973 and A.C. No. 10457 | February
3, 2015
By: Karen P. Lustica
10
FACTS:
Garcia filed a complaint for disbarment against
Sesbreño before the Office of the Bar
Confidant.
Garcia alleged that in 2005 while he was in
Japan, Sesbreño, representing Maria
Margarita and Angie Ruth, filed an action for
support against him and his sister Milagros
Garcia Soliman. At the time of the filing of the
case, Maria Margarita was already 39 years
old while Angie Ruth was 35 years old. The
case was dismissed. In 2007, Garcia returned
from Japan. When Sesbreño and Garcia’s
children learned about his return, Sesbreño
filed a Second Amended Complaint against
him.
Garcia alleged that he learned that Sesbreño
was convicted by the Regional Trial Court of
Cebu City, Branch 18, for Homicide in Criminal
Case No. CBU-31733. Garcia alleged that
Sesbreño is only on parole. Garcia alleged
that homicide is a crime against moral
turpitude; and thus, Sesbreño should not be
allowed to continue his practice of law.
In his answer to the complaint, Sesbreño
alleged that his sentence was commuted and
the phrase “with the inherent accessory
penalties provided by law” was deleted.
Sesbreño argued that even if the accessory
penalty was not deleted, the disqualification
applies only during the term of the sentence.
Sesbreño further alleged that homicide does
not involve moral turpitude. Sesbreño claimed
that Garcia’s complaint was motivated by
extreme malice, bad faith, and desire to
retaliate against him for representing Garcia’s
daughters in court.
ISSUES:
1. WON conviction for the crime of
homicide involves moral turpitude.
2. WON Sesbreño should be disbarred
HELD:
1. YES.
2. YES.
RATIO:
1. This is not to say that all convictions of the
crime of homicide do not involve moral
turpitude. Homicide may or may not involve
moral turpitude depending on the degree of
the crime. Moral turpitude is not involved in
every criminal act and is not shown by every
known and intentional violation of statute, but
whether any particular conviction involves
moral turpitude may be a question of fact and
frequently depends on all the surrounding
circumstances. While x x x generally but not
always, crimes mala in se involve moral
turpitude, while crimes mala prohibitado not, it
cannot always be ascertained whether moral
turpitude does or does not exist by classifying
a crime as malum in se or as malum
prohibitum, since there are crimes which are
mala in se and yet rarely involve moral
turpitude and there are crimes which involve
moral turpitude and are mala prohibita only. It
follows therefore, that moral turpitude is
somewhat a vague and indefinite term, the
meaning of which must be left to the process
of judicial inclusion or exclusion as the cases
are reached.
The IBP-CBD correctly stated that Amparado
and Yapchangco were just at the wrong place
and time. They did not do anything that
justified the indiscriminate firing done by
Sesbreño that eventually led to the death of
Amparado.
We cannot accept Sesbreño’s argument that
the executive clemency restored his full civil
and political rights. Sesbreño cited In re Atty.
Parcasio to bolster his argument. In that case,
Atty. Parcasio was granted “an absolute and
unconditional pardon” which restored his “full
civil and political rights,” a circumstance not
present in these cases. Here, the Order of
Commutation did not state that the pardon was
absolute and unconditional.
There are four acts of executive clemency that
the President can extend: the President can
grant reprieves, commutations, pardons, and
remit fines and forfeitures, after conviction by
final judgment. In this case, the executive
clemency merely “commuted to an
indeterminate prison term of 7 years and 6
months to 10 years imprisonment” the penalty
imposed on Sesbrefio. Commutation is a mere
reduction of penalty. Commutation only
partially extinguished criminal liability. The
penalty for Sesbrefio’ s crime was never wiped
out. He served the commuted or reduced
penalty, for which reason he was released
from prison.
2. Section 27, Rule 138 of the Rules of
Court states that a member of the bar may be
disbarred or suspended as attorney by this
Court by reason of his conviction of a crime
involving moral turpitude. This Court has ruled
that disbarment is the appropriate penalty for
conviction by final judgment for a crime
involving moral turpitude. Moral turpitude is an
act of baseness, vileness, or depravity in the
private duties which a man owes to his fellow
11
men or to society in general, contraryto justice,
honesty, modesty, or good morals.
DISPOSITION: Respondent Raul H.
Sesbreno is DISBARRED
4.A.C. No. 8776, March 22, 2015
ANTONINA S. SOSA, Complainant, v. ATTY.
MANUEL V. MENDOZA, Respondent.
DECISION
BRION, J.:
Before this Court is the Complaint for the
disbarment/suspension of Atty. Manuel V.
Mendoza (Atty. Mendoza) filed on October 22,
2010 by Antonina S. Sosa (Ms. Sosa), for
violation of Rule 1.01 of the Code of
Professional Responsibility arising from non-
payment of debt.1
This Court, in a Resolution dated April 18,
2012, referred the case to the Integrated Bar
of the Philippines (IBP) for investigation, report
and recommendation.2
On May 11, 2013, the IBP Board of Governors
adopted and approved with modification the
Investigating Commissioner’s report and
recommendation. The IBP resolved to
suspend Atty. Mendoza from the practice of
law for six (6) months, likewise ordering him to
return the amount of the debt with legal
interest.3
On December 10, 2013, the IBP Director for
Bar Discipline transmitted to this Court the
Notice of the Resolution and the records of the
case.4
The Factual Background
Ms. Sosa alleged that on July 28, 2006, she
extended a loan of Five Hundred Thousand
Pesos (P500,000.00) to Atty. Mendoza at an
interest of twenty-five thousand pesos
(P25,000.00) to be paid not later than
September 25, 2006. They agreed that a
penalty or collection charge of ten percent
(10%) per month shall accrue in case of
default.5
To ensure the payment of the obligation, Atty.
Mendoza signed a promissory note and issued
a postdated check for P500,000.00.6
Atty. Mendoza failed to comply with his
obligation on due date. Upon demand to pay,
he requested Ms. Sosa not to deposit the
postdated check. She acceded and deferred
the deposit of the check based on Atty.
Mendoza’s promise that he would later
pay. The check was subsequently
returned/dishonored after Ms. Sosa finally
deposited it sometime in October 2006; it was
“Drawn Against Insufficient Funds.” Ms. Sosa
then obtained the services of a lawyer, Atty.
Ernesto V. Cabrera (Atty. Cabrera), to legally
address Atty. Mendoza’s failure to pay.
On January 11, 2010, Atty. Cabrera sent a
letter7 to Atty. Mendoza demanding payment
of the loan plus interest and collection
charges. Atty. Mendoza ignored the demand
letter despite receipt, as proven by the
Registry Receipt and Registry Return
Receipt.8 Likewise, he did not, in any manner,
contact Ms. Sosa to explain why he failed to
pay.
In view of the repeated failure of Atty.
Mendoza to pay, Ms. Sosa filed the complaint
for disbarment or suspension, charging Atty.
Mendoza for violation of Rule 1.01 of the Code
of Professional Responsibility. This Rule
states that “[a] lawyer shall not engage in
unlawful, dishonest, immoral or deceitful
conduct.”
Acting on the complaint, this Court required
Atty. Mendoza to comment on the complaint in
a Resolution dated January 10, 2011.9 He
filed an Urgent Motion for Extension on March
18, 2011,10 which this Court granted in a
Resolution dated October 19, 2011. Atty.
Mendoza finally filed his Brief Comment on
January 10, 2012.11
Atty. Mendoza admitted in his Brief Comment
the existence of the loan and that it is a valid
obligation. However, he alleged that he only
received One Hundred Thousand Pesos
(P100,000.00) from one Elenita Cruz (Elenita),
a friend of the complainant. Atty. Mendoza did
not attach an affidavit from Elenita nor any
evidence proving that he only received
P100,000.00.12
The Proceedings before the IBP
On July 4, 2012, Investigating Commissioner
Honesto A. Villamor issued the Notice of
Mandatory Conference/Hearing scheduled on
August 16, 2012.
When the case was called for hearing, only
Atty. Cabrera appeared. Atty. Cabrera marked
the complainant’s documentary exhibits and
12
the mandatory conference was subsequently
declared terminated. The parties were then
directed to submit their respective verified
position papers, documentary exhibits and/or
affidavits of their witnesses, if any, within
fifteen (15) days.
In her position paper,13 Ms. Sosa reiterated
her allegations in her Complaint-Affidavit. She
argued that Atty. Mendoza is liable not only
administratively but also civilly.
Atty. Mendoza, in his
Manifestation,14admitted that (i) he arrived
late during the scheduled hearing; (ii) he had
on hand Six Hundred Thousand Pesos
(P600,000.00); (iii) he was advised by the
Hearing Officer to communicate with the
complainant’s counsel; and (iv) the validity of
his obligation and that he has to pay the
same.
Atty. Mendoza did not make good his offer to
pay despite the express manifestation he
made.15
The IBP Findings
The Investigating Commissioner found Atty.
Mendoza liable not only administratively but
also civilly. He gave credence to Ms. Sosa’s
allegations that Atty. Mendoza failed to pay the
loan despite Ms. Sosa’s attempts to
collect. He also took notice of Atty. Mendoza’s
admission that the obligation is valid.
The IBP Board of Governors adopted with
modification the findings of the Investigating
Commissioner. In a Resolution dated May 11,
2013, the IBP ruled:
RESOLVED to ADOPT and APPROVE, as it is
hereby unanimously ADOPTED and
APPROVED, with modification, the Report
and Recommendation of the Investigating
Commissioner x x x finding the
recommendation fully supported by the
evidence on record and the applicable laws
and rules and considering that [the
respondent] is guilty of misconduct for his
failure to pay a just and valid debt, Atty.
Manuel V. Mendoza is hereby SUSPENDED
from the practice of law for six (6) months
and Ordered to Return the amount of Five
Hundred Thousand (P500,000.00) to [the
complainant] with legal interest.
The Court’s Ruling
We adopt with modification the findings and
recommendation of the IBP.
This Court has held that any gross misconduct
of a lawyer in his professional or in his private
capacityis a ground for the imposition of the
penalty of suspension or disbarment because
good character is an essential qualification for
the admission to and continued practice of
law.16 Any wrongdoing, whether professional
or non-professional, indicating unfitness for
the profession justifies disciplinary action.17
Gross misconduct is defined as "improper or
wrong conduct, the transgression of some
established and definite rule of action, a
forbidden act, a dereliction of duty, willful in
character, and implies a wrongful intent and
not a mere error in judgment."18
Rule 1.01 of the Code of Professional
Responsibility is emphatic: “[a] lawyer shall not
engage in unlawful, dishonest, immoral or
deceitful conduct.”
The facts of the case show that Atty. Mendoza
engaged in improper or wrong conduct, as
found under Rule 1.01, as the failure to pay
the loan was willful in character and implied a
wrongful intent and not a mere error in
judgment.
We find it undisputed that Atty. Mendoza
obtained a loan in the amount of P500,000.00.
He signed the promissory note and
acknowledgement receipt showing he received
P500,000.00.19 Although he initially denied
getting this amount and claimed that he only
received P100,000.00, he did not present any
evidence to prove his claim. He later also
admitted the validity of his loan without
qualification as to the amount.20
Also undisputed is the fact that Ms. Sosa tried
to collect the amount due upon maturity but
Atty. Mendoza failed to pay. In fact, Ms. Sosa
deferred depositing the postdated check upon
Atty. Mendoza’s request, and based on his
promises that he would pay. Despite all these,
he still failed to comply with his
obligation. Worse, the check – when finally
deposited – was dishonored, a fact that Atty.
Mendoza did not dispute.
Atty. Mendoza further claimed he had
P600,000.00 on hand during the hearing with
13
the IBP Investigating Officer.21 He allegedly
failed to deliver the amount to Ms. Sosa or her
counsel because he arrived late.
We find Atty. Mendoza’s excuse to be flimsy. It
could have been very easy for him to deliver
the P600,000.00 to Ms. Sosa if he had the real
intention to pay. In fact, Ms. Sosa wrote,
through her counsel, Atty. Mendoza asking
him to settle his obligation because of his
manifestation that he already had the money.22
It is unclear to us why Atty. Mendoza ignored
Ms. Sosa’s request for settlement after
claiming that he already had the needed
funds. He was either lying he had the money,
or had no intention of paying in the first
place. Atty. Mendoza was also not candid with
the IBP Investigating Officer when he claimed
he had P600,000.00 and that he was ready to
pay his obligation. What is clear is that his
obligation remains outstanding after all these
years.
In Yuhico v. Atty. Gutierrez23 this Court
sitting en banc held:
We have held that deliberate failure to pay
just debts constitute gross misconduct, for
which a lawyer may be sanctioned with
suspension from the practice of law. Lawyers
are instruments for the administration of justice
and vanguards of our legal system. They are
expected to maintain not only legal proficiency,
but also a high standard of morality, honesty,
integrity and fair dealing so that the people’s
faith and confidence in the judicial system is
ensured. They must, at all times, faithfully
perform their duties to society, to the bar,
the courts and to their clients, which
include prompt payment of financial
obligations. They must conduct themselves
in a manner that reflects the values and norms
of the legal profession as embodied in the
Code of Professional Responsibility.
[Emphasis supplied.]
Other than his claim that he was disposing of
real properties in order to settle his
obligation,24 Atty. Mendoza failed to explain
why he failed to pay despite his admission
of a just and valid loan. Whatever his reasons
or excuses may be, dire financial condition
does not justify non-payment of debt, as we
have held in Yuhico. 25
We also reiterate that –
[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. No
moral qualification for bar membership is
more important than truthfulness and
candor. 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.
While it is true that there was no attorney-
client relationship between respondent and
complainant, it is well-settled 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, showing him to be unfit
for the office and unworthy of the privileges
which his license and the law confer upon
him.26[Emphasis supplied and citations
omitted.]
The facts and evidence in this case clearly
establish Atty. Mendoza’s failure to live up to
his duties as a lawyer as dictated by the
lawyer's oath, the Code of Professional
Responsibility and the Canons of Professional
Ethics, thereby degrading not only his
personal integrity but his profession as well.27
To reiterate, his failure to honor his just debt
constitutes dishonest and deceitful
conduct. This dishonest conduct was
compounded by Atty. Mendoza’s act of
interjecting flimsy excuses that only
strengthened the conclusion that he refused to
pay a valid and just debt.28
While we agree with the punishment meted
out by the IBP, we differ with its
recommendation ordering Atty. Mendoza to
pay the amount of the loan plus legal
interest.
We take exception to the IBP’s order to
pay only because the case before us is solely
an administrative complaint for disbarment
and is not a civil action for collection of a
sum of money. The quantum of evidence in
these two types of cases alone deters us from
agreeing with the IBP’s order to pay; the
administrative complaint before us only
requires substantial evidence to justify a
finding of liability, while a civil action requires
greater evidentiary standard of preponderance
14
of evidence.
A proceeding for suspension or disbarment
is not 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.29
The purpose of disbarment is mainly to
determine the fitness of a lawyer to continue
acting as an officer of the court and as
participant in the dispensation of justice.30 The
purpose of disbarment is to protect the courts
and the public from the misconduct of the
officers of the court and to ensure the
administration of justice by requiring that those
who exercise this important function shall be
competent, honorable and trustworthy men in
whom courts and clients may repose
confidence.31
We are aware that jurisprudence has allowed
a complainant in a disbarment case to collect
an outstanding debt from a
lawyer.32 However, in the recent case
of Heenan v. Atty. Espejo,33 this Court
sitting en banc did not agree with the IBP’s
recommendation to order the erring lawyer to
return the money he borrowed from the
complainant. We said in this case:
In disciplinary proceedings against lawyers,
the only issue is whether the officer of the
court is still fit to be allowed to continue as a
member of the Bar. Our only concern is the
determination of respondent’s administrative
liability. Our findings have no material
bearing on other judicial action which the
parties may choose to file against each
other. Furthermore, disciplinary
proceedings against lawyers do not involve
a trial of an action, but rather
investigations by the Court into the
conduct of one of its officers. The only
question for determination in these
proceedings is whether or not the attorney is
still fit to be allowed to continue as a member
of the Bar. Thus, this Court cannot rule on
the issue of the amount of money that
should be returned to the
complainant.34 [Emphasis supplied and
citations omitted.]
We note that as in the facts of the present
case, the respondent-lawyer in
the Heenan case also did not deny the validity
of her loan nor did she proffer any reason for
issuing unfunded checks.
As a final note, we understand the frustration
of, and sympathize with Ms. Sosa in her
present situation. However, because the
matter before us is not a civil action for the
collection money, we cannot order Atty.
Mendoza to pay his outstanding loan. We can
only clarify that our ruling in this case is
without prejudice to any future civil or criminal
action that Ms. Sosa, if she so decides, may
file against Atty. Mendoza in the future. Our
action likewise is without prejudice to any
action we may take that is not based on the
violation of the Code of Professional
Responsibility.
WHEREFORE, premises considered, ATTY.
MANUEL V. MENDOZA is SUSPENDED from
the practice of law for a period of one (1) year
for violation of Rule 1.01 of the Code of
Professional Responsibility with a STERN
WARNING that commission of the same or
similar offense in the future will result in the
imposition of a more severe penalty.
SO ORDERED.
5. A.C. No. 7158, March 09, 2015
YOLANDA A. ANDRES, MINETTE A.
MERCADO, AND ELITO P.
ANDRES , Complainants, v. ATTY.
SALIMATHAR V. NAMBI, Respondent.
RESOLUTION
DEL CASTILLO, J.:
This is a Complaint for Disbarment1 filed
against then Labor Arbiter Salimathar V.
Nambi (respondent) on the ground of gross
ignorance of the law in issuing an Amended
Alias Writ of Execution against M.A. Blocks
Work, Inc. and its incorporators, the herein
complainants, who are not parties to the case.
Factual Antecedents
On December 10, 2003, respondent rendered
a Decision2 in a consolidated labor
case3 against M.A. Mercado Construction and
spouses Maximo and Aida Mercado (spouses
Mercado), the fallo of which reads:
WHEREFORE, premises considered,
judgment is hereby rendered ordering
respondents, M.A. Mercado Construction and
Maximo and Aida Mercado to reinstate the
complainants to their former position[s] without
loss of seniority rights and to pay jointly and
severally, their full backwages from October
15
28, 2000 up to the date of this decision plus
ten (10%) percent attorney’s fees of the total
monetary award. The Research and
Information Unit of this Office is hereby
directed to compute complainants[’] monetary
award which shall form part of this decision.
The complaint for damages is dismissed. The
complaint against Shoemart, Inc., is likewise
DISMISSED for lack of merit. SO
ORDERED. 4
The respondents in the labor case, namely the
Spouses Mercado, doing business under the
name and style of M.A. Mercado Construction,
interposed an appeal which was dismissed for
failure to post an appeal bond. Thus, an Alias
Writ of Execution was issued to implement the
Decision. Thereafter, the complainants in the
labor case filed an Ex Parte Motion for
Amendment of an Alias Writ of
Execution.5 They claimed that they could
hardly collect the judgment award from M.A.
Mercado Construction because it allegedly
transferred its assets to M.A. Blocks Work,
Inc. They thus prayed that the Alias Writ of
Execution be amended to include M.A. Blocks
Work, Inc. and all its
incorporators/stockholders6 as additional
entity/personalities against which the writ of
execution shall be enforced. In an
Order7 dated February 10, 2006, respondent
granted the motion to amend the alias writ of
execution. Accordingly, on February 17, 2006
an Amended Alias Writ of Execution was
issued to enforce the monetary judgment
amounting to P19,527,623.55 against M.A.
Blocks Work, Inc. and all its incorporators. By
way of special appearance, M.A. Blocks Work,
Inc., together with three of its stockholders
who are the complainants in this administrative
case, namely Yolanda A. Andres, Minette A.
Mercado and Elito P. Andres, filed an Urgent
Motion to Quash8 the Amended Alias Writ of
Execution, contending that they are not bound
by the judgment as they were not parties to
the labor case. In an Order9 dated March 13,
2006, however, respondent denied the Urgent
Motion to Quash. Aggrieved, herein
complainants filed the instant Complaint for
Disbarment, which we referred to the IBP on
March 4, 2007 for investigation, report and
recommendation.10
IBP’s Report and Recommendation
In his Report and Recommendation11 dated
September 6, 2010, the Investigating
Commissioner found respondent guilty of
gross ignorance of the law and recommended
that he be suspended from the practice of law
for a period of six months. This was adopted
and approved with modification by the IBP
Board of Governors in an April 12, 2011
Resolution, to wit:
RESOLUTION NO. XIX-2011-110 Adm. Case
No. 7158 Yolanda A. Andres, et al. vs. Atty.
Salimathar V. Nambi
RESOLVED to ADOPT and APPROVE, as it is
hereby unanimously ADOPTED and
APPROVED, with modification the Report
and Recommendation of the Investigating
Commissioner in the above-entitled case
herein made part of this Resolution as Annex
“A”; and, finding the recommendation fully
supported by the evidence on record and the
applicable laws and rules, considering
respondent[’s] contumacious disregard of the
lawful Order of Supreme Court and the
Commission on Bar Discipline of the IBP, and
for his failure to appear despite due notices,
Atty. Salimathar V. Nambi is
hereby SUSPENDED from the practice of law
for six (6) months.12(Emphasis in the original).
Issue
Whether respondent is guilty of gross
ignorance of the law and of violating the Code
of Professional Responsibility.
Our Ruling
At the outset, it must be emphasized that in
this administrative proceeding, our discussion
should be limited only on the issue of whether
respondent acted in gross ignorance of the law
when he granted the motion to amend the
alias writ of execution; when he issued an
Amended Alias Writ of Execution to enforce
the monetary judgment against M.A. Blocks
Work, Inc. and all its incorporators; and when
he denied complainants’ Urgent Motion to
Quash. As a rule, for one to be held
administratively accountable for gross
ignorance of the law, there must be a showing
that the error was gross and patent as to
support a conclusion that the actor was so
moved with malice, bad faith, corruption, fraud,
and dishonesty. As such, our discussion
should be focused primarily on whether
respondent grossly erred in issuing the above
orders as to amount to malice, bad faith,
corruption, fraud and dishonesty. On the other
hand, we need not delve into the issue of
whether there is an apparent misapplication of
16
the doctrine of piercing the veil of corporate
fiction when respondent issued the Amended
Alias Writ of Execution. For one, it is outside
the ambit of this administrative
proceeding. Moreover, the issue of whether
the doctrine of piercing the veil of corporate
fiction applies is the subject of an appeal
brought by complainants before the National
Labor Relations Commission and eventually to
the Court of Appeals.13We perused the
records of the case particularly respondent’s
Order14 dated March 13, 2006 denying
complainants’ Urgent Motion to
Quash. Therein, we note that respondent’s
ruling was not arrived at arbitrarily; on the
contrary, he cited grounds based on his
personal assessment of the facts at hand, viz:
As culled from the case record, there is
substantial evidence that respondents Maximo
A. Mercado and Aida A. Mercado, who are
doing business under the name and style of
M.A. Mercado Construction put up a
corporation in the name of M.A. Block Works,
Inc. where individual movants are one of the
incorporators. We give credence to the
argument of the complainants that the
incorporators therein are relatives of Maximo
A. Mercado and Aida Mercado as shown by
the Articles of Incorporation adduced by the
former. The incorporators listed have similar
family names of the Mercados and the
Andreses and common address at Gen.
Hizon, Quezon City and 50 Daisy St., Quezon
City, and Maximo A. Mercado is the biggest
stockholder. Aside from the Articles of
Incorporation, complainants also submitted a
Letter of Intent/Notice To Proceed where
respondents, despite their representation that
they have already ceased their business
operation, are still continuing their business
operation. The documents submitted by the
complainants were corroborated by
certification issued by Maggie T. Jao, AVP-
Assistant Controller of SM Prime Holdings,
Inc. that based on their records, an amount of
P3,291,300.00 representing a sum total of all
goods, effects, money and credit that was
garnished belong to M.A. Mercado
Construction and/or Maximo Mercado and/or
Aida Mercado and/or M.A. Block Works, Inc.
and/or Gertrudes Casilda A. Mercado,
Yolanda A. Andres, Minette A. Mercado and/or
Elito P. Andres. This Office has therefore,
enough reason to conclude that respondents
Maximo A. Mercado and Aida Mercado and
the movants herein are one and the
same. Movants are alter egos or business
conduits to defraud the complainants and to
consequently evade payment of judgment
award. x x x As respondents are duly notified
and aware of the execution proceedings, the
argument of denial of due process is
untenable.15
It is apparent from the foregoing disquisition
that respondent’s conclusion had some bases
and was not plucked from thin air, so to
speak. Clearly, respondent did not act
whimsically or arbitrarily; his ruling could not in
any manner be characterized as imbued with
malice, fraud or bad faith. To reiterate what we
have already stated above, we are not here to
judge in this present administrative proceeding
whether respondent’s ratiocination on the
application of the piercing of corporate veil is
correct; our only concern here is to decide
whether respondent’s error was so gross as to
amount to fraud and dishonesty. Based on the
above-quoted disquisition, it cannot be said,
by any stretch of imagination, that
respondent’s error, if any, was so gross or that
he was actuated by malice when he issued the
above orders. His conclusion was reached
after an examination of the documents
presented and evaluation and assessment of
the arguments raised by the parties. He did
not capriciously rule on the issues presented;
on the contrary, he exerted efforts to weigh the
positions of the contending parties. In any
event, we hold that respondent should not be
held accountable for committing an honest
mistake or an error in the appreciation of the
facts of the case before him. Otherwise every
labor arbiter or any judicial or quasi-judicial
officer for that matter, would be continually
plagued with the possibility of being
administratively sanctioned for every honest
mistake or error he commits. For sure, this
would not augur well to the administration of
justice as a whole. Pertinently, the Court ruled
in Andrada v. Judge Banzon,16viz:
Well-settled is the rule that unless the acts
were committed with fraud, dishonesty,
corruption, malice or ill-will, bad faith, or
deliberate intent to do an injustice, respondent
judge may not be held administratively liable
for gross misconduct, ignorance of the law or
incompetence of official acts in the exercise of
judicial functions and duties, particularly in the
adjudication of cases. Further, to hold a judge
administratively accountable for every
erroneous rule or decision he renders would
be nothing short of harassment and would
make his position doubly unbearable. To hold
otherwise would be to render judicial office
17
untenable, for no one called upon to try the
facts or interpret the law in the process of the
administration of justice can be infallible in his
judgment.17
Based on the foregoing, we have no basis to
hold respondent administratively liable for
gross ignorance of the law. However, we note
that respondent had consistently and
obstinately disregarded the Court’s and IBP’s
orders. It is on record that respondent totally
ignored the Court’s June 7, 2006
Resolution18directing him to file his
Comment. He also failed to attend the
mandatory conference before the IBP’s
Commission on Bar Discipline despite
notice.19 Neither did he file his Position
Paper. As a former Labor Arbiter, respondent
should know that orders of the court “are not
mere requests but directives which should
have been complied with promptly and
completely.”20 “He disregarded the oath he
took when he was accepted to the legal
profession ‘to obey the laws and the legal
orders of the duly constituted legal authorities.’
x x x His conduct was unbecoming of a lawyer
who is called upon to obey court orders and
processes and is expected to stand foremost
in complying with court directives as an officer
of the court.”21 Section 27, Rule 138 of the
Rules of Court 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 willful disobedience of any lawful
order of a superior court, or for corruptly or
willfully appearing as an attorney for a party to
a case without authority so to do. The practice
of soliciting cases at law for the purpose of
gain, either personally or through paid agents
or brokers, constitutes malpractice. (Emphasis
supplied)
Considering that this appears to be
respondent’s first infraction, we find it proper to
impose on him the penalty of reprimand with
warning that commission of the same or
similar infraction will be dealt with more
severely.
WHEREFORE, the
Court REPRIMANDS respondent Atty.
Salimathar V. Nambi for obstinately and
unjustifiably refusing to obey lawful orders of
the Court and the Integrated Bar of the
Philippines, with a warning that a repetition of
the same or similar act or offense shall be
dealt with more severely. Let copies of this
Resolution be furnished the Office of the Bar
Confidant and noted in Atty. Nambi’s record as
a member of the Bar.
SO ORDERED.
6. G.R. No. 208290 December 11, 2013
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
THE HONORABLE JUANITO C.
CASTANEDA, JR., HONORABLE CAESAR
A. CASANOVA, HONORABLE CIELITO N.
MINDARO-GRULLA, AS ASSOCIATE
JUSTICES OF THE SPECIAL SECOND
DIVISION, COURT OF TAX APPEALS; and
MYRNA M. GARCIA AND CUSTODIO
MENDOZA VESTIDAS, JR., Respondents.
RESOLUTION
PER CURIAM:
This is a petition for certiorari under Rule 65 of
the Rules of Court seeking to review the
March 26, 20131 and May 15,
20132 Resolutions of the Court of Tax Appeals
(CTA) in CTA Crim. Case No. 0-285, ordering
the dismissal of the case against the private
respondents for violation of Section 36023 in
relation to Sections 2503 and 2530 (f) (i) and
1, (3) (4) and (5) of the Tariff and Customs
Codeof the Philippines, as amended, on the
ground of insufficiency of evidence.
The antecedentsas culled from the records:
Private respondents Myrna M. Garcia (Garcia)
and Custodio Mendoza Vestidas,
Jr.(VestidasJr.)were charged before the CTA
under an Information which reads:
That on or about November 5, 2011, or prior or
subsequent thereto, in the City of Manila,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused
Myrna M. Garcia and Custodio Mendoza
Vestidas, Jr. as owner/proprietress and broker
of Plinth Enterprise respectively, conspiring
and confederating with each other, with intent
to defraud the government, did then and there
willfully, unlawfully and fraudulently import into
the Port of Manila, 858 cartons of 17,160
pieces of Anti-Virus Software Kaspersky
Internet Security Premium 2012, subject to
customs duties,by misdeclaration under Import
Entry No. C-181011 and Bill of Lading No.
PFCMAN1715, filed with the Bureau of
Customs (BOC),covering One Forty Footer
(1x40) container van shipment bearing No.
KKFU7195683 which was falsely declared to
18
contain 40 pallets/1,690 cartons of CD kit
cleaner and plastic CD case, said imported
items having customs duties amounting to
Three Million Three Hundred Forty One
Thousand Two Hundred Forty Five Pesos
(Php 3,341,245) of which only the amount of
One Hundred Thousand Three Hundred Sixty
Two Pesos (Php100,362) was paid, in
violation of the above-captioned law, and to
the prejudice and damage of the Government
in the amount of Three Million Two Hundred
Forty Thousand Eight Hundred Eighty Three
Pesos (Php3,240,883).4
In a hearing held on August 1, 2012, Garcia
and VestidasJr.pleaded "Not Guilty" to the
aforementioned charge. Thereafter, a
preliminary conference was held on
September 5, 2012 followed by thepre-trial on
September 13, 2012. Both the prosecution
and the defense agreed to adopt the joint
stipulations of facts and issues entered in the
course of the preliminary conference.
Thereafter, trial ensued.
The prosecution presented a number of
witnesses whoessentially observed5 the
physical examination of Container Van No.
KKFU 7195638 conducted6 by the Bureau of
Customs (BOC) and explained7 the process of
electronic filing under the Electronic to Mobile
(E2M) Customs Systems of the BOC and the
alleged misdeclared goods therein.
Subsequent to the presentation of witnesses,
the prosecution filed its Formal Offer of
Evidence on December 10, 2012.
On January 15, 2013, Garcia and Vestidas, Jr.
filed their Omnibus Motion to File Demurrer to
Evidence with Leave of Court to Cancel
Hearing Scheduled on January 21,
2013,whichwas grantedby the CTA.
Thereafter, they filed theDemurrer to
Evidence, dated January 13, 2012,
claimingthat the prosecution failed to prove
their guilt beyond reasonable doubt for the
following reasons:
a)The pieces of documentary evidence
submitted by the prosecution were
inadmissible incourt;
b)The object evidence consisting of the
allegedly misdeclared goods were not
presented as evidence; and
c)None of the witnesses for the prosecution
made a positive identification of the two
accused as the ones responsible for the
supposed misdeclaration.
Despite opposition, the CTA dismissed the
caseagainst Garcia and Vestidas Jr.in its
March 26, 2013 Resolution, for failure of the
prosecution to establish theirguilt beyond
reasonable doubt.
According to the CTA, "no proof whatsoever
was presented by the prosecution showing
that the certified true copies of the public
documents offered in evidence against both
accused were in fact issued by the legal
custodians."8 It cited Section 26, Rule 132 of
the Revised Rules of Court, which provides
that “when the original of a document is a
public record, it should not generally be
removed from the office or place in which it is
kept."9 As stated in Section 7, Rule 130,10 its
contents may be proven using secondary
evidence and such evidence may pertain to
the certified true copy of the original document
issued by the public officer in custody
thereof.Hence, the CTA wrotethat the certified
true copiesof the public documents offered in
evidence should have been presented in
court.
Anent its offer of private documents,11 the
prosecution likewise failed to comply with
Section 27, Rule 132 of the Rules of Court,
which reads, "[a]n authorized public record of
a private document may be proved by the
original record, or by a copy thereof, attested
by the legal custodian of the record, with an
appropriate certificate that such officer has the
custody." Considering that the private
documents were submitted and filed with
the BOC, the same became part of public
records. Again, the records show that the
prosecution failed to present the certified true
copies of the documents.
The CTA noted that,in its Opposition to the
Demurrer,the prosecution even admitted that
none of their witnesses ever positively
identified the accused in open court and that
the alleged misdeclared goods were not
competently and properly identified in court by
any of the prosecution witnesses.
The prosecution filed its motion for
reconsideration, but it was deniedby the CTAin
its May 15, 2013 Resolution, stressing, among
others, that to grant it would place the accused
in double jeopardy.12
On July 24, 2013, the Run After the Smugglers
(RATS) Group, Revenue Collection Monitoring
Group (RCMG), as counsel for the BOC,
received a copy of the July 15, 2013
Resolution of the CTA ordering the entry of
judgment in the case.
Hence,this petition for certiorari, ascribing
grave abuse of discretion on the part of the
CTA when in ruled that: 1) the pieces of
documentary evidence submitted by the
19
prosecution were inadmissible in evidence; 2)
the object evidence consisting of the alleged
misdeclared goods were not presented as
evidence; and 3) the witnesses failed to
positively identify the accused as responsible
for the misdeclaration of goods.
The Court agrees with the disposition of the
CTA.
At the outset, it should be noted that the
petition was filed beyond the reglementary
period for the filing thereof under Rule 65. The
petition itself stated that a copy of the May 15,
2013 Resolution was received by the BOC two
(2) days after its promulgation, or on May 17,
2013. Nonetheless, the RATS was only alerted
by the developments in the case on July 24,
2013, when Atty. Danilo M. Campos Jr. (Atty.
Campos) received the July 15, 2013
Resolution of the CTA ordering the entry of
judgment in the case, considering that no
appeal was taken by any of the parties.
According to Atty. Campos, it was only on that
occasion when he discovered the May 15,
2013 Resolution of the CTA. Thus, it was
prayed that the petition be given due course
despite its late filing.
This belated filing cannot be countenanced by
the Court.
Section 4, Rule 65 of the 1997 Rules of Civil
Procedureis explicit in stating
thatcertiorarishould be instituted within a
period of 60 days from notice of the judgment,
orderor resolution sought to be assailed. The
60-day period is inextendible to avoid any
unreasonable delay that would violate the
constitutional rights of parties to a speedy
disposition of their case.13 While there are
recognized exceptions14 to such strict
observance, there should be an effort on the
part of the party invoking liberality to advance
a reasonable or meritorious explanation for
his/her failure to comply with the rules.15
In the case at bench, no convincing
justification for the belated filing of the petition
was advanced to warrant the relaxation of the
Rules. Notably, the records show that the
petition was filed only on August 12, 2013, or
almost a month late from the due date which
fell on July 16, 2013. To excuse this grave
procedural lapse will not only be unfair to the
other party, but it will also sanction a seeming
rudimentary attempt to circumvent standing
rules of procedure. Suffice it to say, the
reasons proffered by the petitioner do not
carry even a tinge of merit that would deserve
leniency.
The late filing of the petition was borne out of
the petitioner’s failure to monitor incoming
court processes that needed to be addressed
by the office. Clearly, this is an admission of
inefficiency, if not lack of zeal, on the part of
an office tasked to effectively curb smuggling
activities which rob the government of millions
of revenue every year.
The display of patent violations of even the
elementary rules leads the Court to
suspectthat the case against Garcia and
Vestidas Jr. was doomed by designfrom the
start. The failure to present the certified true
copies of documentary evidence; the
failure to competently and properly identify
the misdeclared goods; the failure to
identify the accused in court; and,worse,
the failure to file this petition on time
challenging a judgment of acquittal, are tell-
tale signs of a reluctant and subdued attitude
in pursuing the case. This stance taken by the
lawyers in government service rouses the
Court’s vigilance against inefficiency in the
administration of justice. Verily, the lawyers
representing the offices under the executive
branch should be reminded that they still
remain as officers of the court from whom a
high sense of competence and fervor is
expected. The Courtwill not close its eyes to
this sense of apathy in RATS lawyers, lest the
government’s goal of revenue enhancement
continues to suffer the blows of smuggling and
similar activities.
Even the error committed by the RATS in filing
a motion for reconsideration with the CTA
displays gross ignorance as to the effects of
an acquittal in a criminal case and the
constitutional proscription on double jeopardy.
Had the RATS been eager and keen in
prosecuting the respondents, it would have, in
the first place, presented its evidence with the
CTA in strict compliance with the Rules.
In any case, even if the Court decides to
suspend the rules and permit this recourse,
the end result would remain the same. While a
judgment of acquittal in a criminal case may
be assailed in a petition for certiorari under
Rule 65 of the Rules of Court,it must be shown
that there was grave abuse of discretion
amounting to lack or excess of jurisdiction or a
denial of due process.In this case, a perusal of
the challenged resolutions ofthe CTAdoes not
disclose any indication of grave abuse of
discretion on its partor denial of due
process.The records are replete with
indicators that the petitioner actively
participated during the trial and, in fact,
20
presented its offer of evidence and opposed
the demurrer.1âwphi1
Grave abuse of discretion is defined as
capricious or whimsical exercise of judgment
as is equivalent to lack of jurisdiction. The
abuse of discretion must be patent and gross
as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law,
as where the power is exercised in an arbitrary
and despotic manner by reason of passion
and hostility.16 Here, the subject resolutions of
the CTA have been issued in accordance with
the rules on evidence and existing
jurisprudence.
On a final note, the Court deems it proper to
remind the lawyers in the Bureau of Customs
that the canons embodied in the Code of
Professional Responsibility equally apply to
lawyers in government service in the
discharge of their official tasks. 17 Thus, RATS
lawyers should exert every effort and
consider it their duty to assist in the
speedy and efficient administration of
justice.18
WHEREFORE, the petition is DISMISSED and
the assailed March 26, 2013 and May 15,
2013 Resolutions of the Court of Tax Appeals
are AFFIRMED.
The Office of the Ombudsman is hereby
ordered to conduct an investigation for
possible criminal or administrative offenses
committed by the Run After the Smugglers
(RA TS) Group, Revenue Collection
Monitoring Group (RCMG), Bureau of
Customs, relative to the filing and handling of
the subject complaint for violations of the Tariff
and Customs Code of the Philippines.
Let copies of this resolution be furnished the
Office of the President, the Secretary of
Finance, the Collector of Customs, and the
Office of the Ombudsman for their guidance
and appropriate action.
SO ORDERED.
7.PEDRO L. LINSANGAN, A.C. No. 6672
Complainant,
Present:
PUNO, C.J., Chairperson,
CARPIO,
- v e r s u s - CORONA,
LEONARDO-DE CASTRO and
BERSAMIN, JJ.
ATTY. NICOMEDES TOLENTINO,
Respondent. Promulgated:
September 4, 2009
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
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
21
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.
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.
22
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 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.
8.[A.C. No. 5712. June 29, 2005]
FRANCISCO LORENZANA, complainant,
vs. ATTY. CESAR G.
FAJARDO, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Francisco Lorenzana, complainant, charges
respondent Atty. Cesar G. Fajardo with
violation of the Civil Service Law and Canon 6
of the Code of Professional Responsibility and
seeks his disbarment from the practice of the
law profession.
23
In a verified complaint dated May 27, 2002,
complainant alleged that respondent, while
employed as Legal Officer V at the Urban
Settlement Office in Manila, until his retirement
on May 15, 2002, was a member of the
Peoples Law Enforcement Board (PLEB) of
Quezon City, receiving a monthly honorarium
of P4,000.00.[1] He was also a member of
the Lupong Tagapamayapa of Barangay
Novaliches Proper, also receiving a monthly
allowance/ honorarium.[2]
Complainant also alleged that respondent was
engaged in the private practice of law,
receiving acceptance fees ranging
from P20,000.00 to P50,000.00. He lives in a
house and lot owned by complainants family
without paying any rental and refuses to leave
the place despite the latters demands.
Asked to comment on the complaint,
respondent countered that his membership in
the PLEB of Quezon City, representing the
NGO, was without fixed compensation. He
reported only once a week in the afternoon for
which he received only per diems allowed
under Section 43 par. (c) of Republic Act No.
6975.[3]As regards his designation as a
member of the Lupong Tagapamayapa, the
same is authorized under Section 406 of the
Local Government Code of 1991; and his
monthly allowance/honorarium is allowed
under Section 393.
While he received allowances, honoraria and
other emoluments as member of the PLEB
and of the Lupong Tagapamayapa, even as
he is in the government service, the same is
authorized by law. Hence, there was no
double compensation. He admitted having
appeared as private counsel in several cases.
However, his clients were his relatives and
friends, among them were complainants father
and brother Ricardo. He emphasized that his
services were pro bono.
Respondent denied that the lot on which his
house is built belongs to complainants family.
In fact, it is now the subject of an Accion
Publiciana filed against him by one Dionisio
delos Reyes before the Regional Trial Court of
Quezon City, Branch 100.
In a Resolution dated January 20, 2003, we
referred the complaint to the Integrated Bar of
the Philippines (IBP) for investigation, report
and recommendation.
IBP Commissioner Doroteo B. Aguila, who
conducted the investigation, found that
respondents appointment as a member of
the Lupong Tagapamayapa of Barangay Town
Proper, Novaliches, Quezon City, while
concurrently employed as a legal officer of the
Manila Urban Settlements Office is not
unlawful. Such appointment is in accordance
with the Local Government Code of 1991. Nor
could respondent be found liable for receiving
honoraria as a Lupon member, since the Local
Government Code of 1991
authorizes Lupon members to receive
honoraria, allowances, and other emoluments.
With respect to respondents appointment as
PLEB member, IBP Commissioner Aguila
stated that the same is not an exception to the
prohibition against dual appointments or
employment of government officials or
employees.
IBP Commissioner Aguila found that
respondents court appearances as counsel for
litigants do not constitute private practice of
law since complainant failed to show that he
received compensation. However, respondent
should still be held liable for violation of Civil
Service Rules and Regulations since he failed
to show that he was permitted by his Office to
appear as counsel for his clients.
On August 30, 2003, the IBP Board of
Governors passed Resolution No. XVI-2003-
93 quoted as follows:
RESOLVED to ADOPT and APPROVE, as it is
hereby ADOPTED and APPROVED, the
Report and Recommendation of the
Investigating Commissioner of the above-
entitled case, herein made part of this
Resolution/Decision as Annex A, and finding
the recommendation fully supported by the
evidence on record and the applicable laws
and rules and in view of respondents
accepting appointment as Board Member of
the Peoples Law Enforcement Board of
Quezon City while he was still employed as
Legal Officer V of the Manila Urban Settlement
Office, Atty. Cesar G. Fajardo is hereby
SUSPENDED from the practice of law for one
(1) month and hereby REPRIMANDED with
stern WARNING for failing to obtain written
permission from his superiors to appear as
counsel to certain relatives and friends as
required by Sec. 12, Rule XVIII of the Revised
Civil Service Rules.
The prohibition against government officials
and employees, whether elected or appointed,
from concurrently holding any other office or
position in the government is contained in
Section 7, Article IX-B of the Constitution
which provides:
Unless otherwise allowed by law or by the
primary functions of his position, no appointive
official shall hold any other office or
24
2employment in the Government, or any
subdivision, agency or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries.[4]
In trying to justify his appointment as PLEB
member, respondent invoked Section 43 (c) of
R.A. No. 6975[5] quoted below which,
according to him, is the law allowing him to be
appointed as such member of the Quezon City
PLEB.
Section 43. Peoples Law Enforcement Board
xxxxxxxxx
(c) Compensation, Membership in the PLEB is
a civic duty. However, PLEB members may be
paid per diem as may be determined by the
city or municipal council from city or municipal
funds.
It is clear that this provision pertains only to
the compensation of PLEB members. It cannot
be construed as an exception to the
Constitutional and statutory prohibition against
dual or multiple appointments of appointive
public employees.
Respondent also failed to establish that his
primary functions as Legal Officer of the
Manila Urban Settlements Office allow his
appointment as PLEB member, an exception
to dual appointment prohibited by the
Constitution and the statutes. Indeed,
respondent, in accepting such appointment,
has transgressed the Constitution, the
Administrative Code of 1987, and the Local
Government Code of 1991. Being contra
leges, respondent also violated the Code of
Professional Responsibility and the Attorneys
Oath.
Canon 1 of the Code of Professional
Responsibility states:
CANON 1. A LAWYER
SHALL UPHOLD THE CONSTITUTION,
OBEY THE LAWS OF THE
LAND, PROMOTE RESPECT FOR LAW AND
LEGAL PROCESSES.
These duties are further enshrined in the
Attorneys Oath, which every lawyer in this
jurisdiction has to take before he is allowed to
practice law. The Attorneys Oath states in part
that every lawyer shall support the
Constitution and obey the laws as well as
the legal orders of the duly constituted
authorities
The lawyers paramount duty to society is
to obey the law. For of all classes and
professions, it is the lawyer who is most
sacredly bound to uphold the laws, for he is
their sworn servant.[6] Sadly, respondent failed
to fulfill this exacting duty.
On respondents appointment as a member of
the Lupong Tagapamayapa of Barangay
Novaliches Proper, while serving as Legal
Officer V of the Manila Urban Settlements
Office, we agree with the IBP Investigating
Commissioner that the same is in order, being
allowed by law.
Section 406. Character of Office and Service
of Lupon Members
xxxxxxxxx
(b) The lupon or pangkat members shall serve
without compensation, except as provided for
in Section 393 and without prejudice to
incentives as provided for in this Section and
in Book IV of this Code. The Department of
Interior and Local Government shall provide
for a system of granting economic or other
incentives to the lupon or pangkat members
who adequately demonstrate the ability to
judiciously and expeditiously resolve cases
referred to them. While in the performance
of their duties,
the lupon or pangkat members, whether in
public or private employment, shall be
deemed to be on official time, and shall not
suffer from any diminution in
compensation or allowance from said
employment by reason thereof.
The above provision allows government
officials and employees to sit
as lupon or pangkat members. The phrase
whether in public or private employment
sustains respondents posture.
We now determine whether respondent
engaged in the practice of law while employed
as Legal Officer V in the Manila Urban
Settlement Office. Private practice of law
contemplates a succession of acts of the same
nature habitually or customarily holding ones
self to the public as a lawyer.[7] Practice is
more than an isolated appearance for it
consists in frequent or customary action a
succession of acts of the same kind. The
practice of law by attorneys employed in the
government, to fall within the prohibition of
statutes has been interpreted as customarily
habitually holding ones self out to the public,
as a lawyer and demanding payment for such
services.[8]
In the case at bar, respondents appearance as
counsel is not merely isolated. Evidence
presented by complainant shows that he had
an extensive practice of law. While employed
as a Legal Officer in the Urban Resettlement
Office of Manila, he maintained a law office.
The pleadings he signed as counsel for his
clients filed with the courts indicate his office
25
address as Room 201 7 JA Building, 244 Gen.
Luis St., Novaliches, Quezon City. Following is
the letter head appearing on the letters and
envelopes[9] sent to his clients:
Cesar G. Fajardo
Attorney and Counsellor-at-Law
Room 201 7 J & A Building
244 Gen. Luis St., Novaliches
Quezon City.
Respondent cannot justify his practice of law
by claiming that his office (the Manila Urban
Resettlement) is not really strict when it comes
to appearing in some private cases as they
(employees) were sometimes called to render
service even on holidays without additional
compensation. At most, he should have asked
written permission from his chief as required
by Section 12, Rule XVIII of the Revised Civil
Service Rules that (n)o officer or employee
shall engage directly in any private business,
vocation or profession or be connected with
any commercial, credit, agricultural or
industrial undertaking without a written
permission from the head of the Department.
As to respondents alleged unlawful stay on
complainants property affecting his conduct as
a member of the Bar, suffice it to state that any
discussion on this issue is premature since the
case is still pending in the RTC, Branch 100,
Quezon City.
Anent the penalty to be imposed, as
mentioned earlier, the IBP Board of Governors
recommended that respondent be suspended
for one (1) month for accepting a prohibited
appointment as a member of the PLEB of
Quezon City and be reprimanded for failing to
obtain a written permission from his superiors
to appear as counsel for certain friends and
relatives. We believe that a heavier penalty
should be imposed upon him for he
transgressed not only the statutes but the very
fundamental law itself, in violation of his
Attorneys Oath and Canon 1 of the Code of
Professional Responsibility.
Section 27, Rule 138 of the Revised Rules of
Court reads:
SEC. 27. Disbarment or suspension of
attorneys by Supreme Court, grounds
therefore. 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 is he is required to take before
admission to practice, for a willful
disobedience of any lawful order of a superior
court or for corruptly and willfully appearing as
an attorney for a party to a 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 (Stress supplied).
WHEREFORE, for accepting employment as a
member of the PLEB of Quezon City while
concurrently employed as Legal Officer V of
the Manila Urban Settlement Office, in
violation of the Constitution and the statutes,
which in turn contravene his Attorneys Oath
and Code of Professional Responsibility; and
by engaging in the illegal practice of law, Atty.
Cesar G. Fajardo is hereby SUSPENDED
from the practice of law for a period of six (6)
months effective from notice and is
REPRIMANDED and WARNED that any
repetition of similar acts would be dealt with
more severely.
Let copies of this Decision be furnished the
Office of the Bar Confidant to be spread upon
the records of Atty. Cesar G. Fajardo; the
Office of the Court Administrator to be
furnished to the courts of the land for their
information and guidance.
SO ORDERED.
9. 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.
26
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
10. July 30, 1979
PETITION FOR AUTHORITY TO CONTINUE
USE OF THE FIRM NAME "SYCIP,
SALAZAR, FELICIANO, HERNANDEZ &
CASTILLO." LUCIANO E. SALAZAR,
FLORENTINO P. FELICIANO, BENILDO G.
HERNANDEZ. GREGORIO R. CASTILLO.
ALBERTO P. SAN JUAN, JUAN C. REYES.
JR., ANDRES G. GATMAITAN, JUSTINO H.
CACANINDIN, NOEL A. LAMAN,
ETHELWOLDO E. FERNANDEZ, ANGELITO
C. IMPERIO, EDUARDO R. CENIZA,
TRISTAN A. CATINDIG, ANCHETA K. TAN,
and ALICE V. PESIGAN, petitioners.
IN THE MATTER OF THE PETITION FOR
AUTHORITY TO CONTINUE USE OF THE
FIRM NAME "OZAETA, ROMULO, DE
LEON, MABANTA & REYES." RICARDO J.
ROMULO, BENJAMIN M. DE LEON, ROMAN
MABANTA, JR., JOSE MA, REYES, JESUS
S. J. SAYOC, EDUARDO DE LOS
ANGELES, and JOSE F.
BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.:ñé+.£ªwph!1
Two separate Petitions were filed before this
Court 1) by the surviving partners of Atty.
Alexander Sycip, who died on May 5, 1975,
and 2) by the surviving partners of Atty.
Herminio Ozaeta, who died on February 14,
1976, praying that they be allowed to continue
using, in the names of their firms, the names
of partners who had passed away. In the
Court's Resolution of September 2, 1976, both
Petitions were ordered consolidated.
Petitioners base their petitions on the following
arguments:
1. Under the law, a partnership is not
prohibited from continuing its business under a
firm name which includes the name of a
deceased partner; in fact, Article 1840 of the
Civil Code explicitly sanctions the practice
when it provides in the last paragraph
that: têñ.£îhqwâ£
The use by the person or partnership
continuing the business of the partnership
name, or the name of a deceased partner as
part thereof, shall not of itself make the
individual property of the deceased partner
liable for any debts contracted by such person
or partnership. 1
2. In regulating other professions, such as
accountancy and engineering, the legislature
has authorized the adoption of firm names
without any restriction as to the use, in such
firm name, of the name of a deceased
partner; 2 the legislative authorization given to
those engaged in the practice of accountancy
— a profession requiring the same degree of
trust and confidence in respect of clients as
that implicit in the relationship of attorney and
client — to acquire and use a trade name,
strongly indicates that there is no fundamental
policy that is offended by the continued use by
a firm of professionals of a firm name which
includes the name of a deceased partner, at
least where such firm name has acquired the
characteristics of a "trade name." 3
3. The Canons of Professional Ethics are not
transgressed by the continued use of the
name of a deceased partner in the firm name
of a law partnership because Canon 33 of the
Canons of Professional Ethics adopted by the
American Bar Association declares
that: têñ.£îhqwâ£
... The continued use of the name of a
deceased or former partner when permissible
27
by local custom, is not unethical but care
should be taken that no imposition or
deception is practiced through this use. ... 4
4. There is no possibility of imposition or
deception because the deaths of their
respective deceased partners were well-
publicized in all newspapers of general
circulation for several days; the stationeries
now being used by them carry new letterheads
indicating the years when their respective
deceased partners were connected with the
firm; petitioners will notify all leading national
and international law directories of the fact of
their respective deceased partners' deaths. 5
5. No local custom prohibits the continued use
of a deceased partner's name in a
professional firm's name; 6 there is no custom
or usage in the Philippines, or at least in the
Greater Manila Area, which recognizes that
the name of a law firm necessarily Identifies
the individual members of the firm. 7
6. The continued use of a deceased partner's
name in the firm name of law partnerships has
been consistently allowed by U.S. Courts and
is an accepted practice in the legal profession
of most countries in the world.8
The question involved in these Petitions first
came under consideration by this Court in
1953 when a law firm in Cebu (the Deen case)
continued its practice of including in its firm
name that of a deceased partner, C.D.
Johnston. The matter was resolved with this
Court advising the firm to desist from including
in their firm designation the name of C. D.
Johnston, who has long been dead."
The same issue was raised before this Court
in 1958 as an incident in G. R. No. L-11964,
entitled Register of Deeds of Manila vs. China
Banking Corporation. The law firm of Perkins
& Ponce Enrile moved to intervene as amicus
curiae. Before acting thereon, the Court, in a
Resolution of April 15, 1957, stated that it
"would like to be informed why the name of
Perkins is still being used although Atty. E. A.
Perkins is already dead." In a Manifestation
dated May 21, 1957, the law firm of Perkins
and Ponce Enrile, raising substantially the
same arguments as those now being raised by
petitioners, prayed that the continued use of
the firm name "Perkins & Ponce Enrile" be
held proper.
On June 16, 1958, this Court
resolved: têñ.£îhqwâ£
After carefully considering the reasons given
by Attorneys Alfonso Ponce Enrile and
Associates for their continued use of the name
of the deceased E. G. Perkins, the Court found
no reason to depart from the policy it adopted
in June 1953 when it required Attorneys Alfred
P. Deen and Eddy A. Deen of Cebu City to
desist from including in their firm designation,
the name of C. D. Johnston, deceased. The
Court believes that, in view of the personal
and confidential nature of the relations
between attorney and client, and the high
standards demanded in the canons of
professional ethics, no practice should be
allowed which even in a remote degree
could give rise to the possibility of
deception. Said attorneys are accordingly
advised to drop the name "PERKINS" from
their firm name.
Petitioners herein now seek a re-examination
of the policy thus far enunciated by the Court.
The Court finds no sufficient reason to
depart from the rulings thus laid down.
A. Inasmuch as "Sycip, Salazar, Feliciano,
Hernandez and Castillo" and "Ozaeta,
Romulo, De Leon, Mabanta and Reyes" are
partnerships, the use in their partnership
names of the names of deceased partners will
run counter to Article 1815 of the Civil Code
which provides: têñ.£îhqwâ£
Art. 1815. Every partnership shall operate
under a firm name, which may or may not
include the name of one or more of the
partners.
Those who, not being members of the
partnership, include their names in the firm
name, shall be subject to the liability, of a
partner.
It is clearly tacit in the above provision that
names in a firm name of a partnership must
either be those of living partners and. in the
case of non-partners, should be living persons
who can be subjected to liability. In fact, Article
1825 of the Civil Code prohibits a third person
from including his name in the firm name
under pain of assuming the liability of a
partner. The heirs of a deceased partner in a
law firm cannot be held liable as the old
members to the creditors of a firm particularly
where they are non-lawyers. Thus, Canon 34
of the Canons of Professional Ethics "prohibits
an agreement for the payment to the widow
and heirs of a deceased lawyer of a
percentage, either gross or net, of the fees
received from the future business of the
deceased lawyer's clients, both because the
recipients of such division are not lawyers and
because such payments will not represent
service or responsibility on the part of the
recipient. " Accordingly, neither the widow nor
the heirs can be held liable for transactions
28
entered into after the death of their lawyer-
predecessor. There being no benefits
accruing, there ran be no corresponding
liability.
Prescinding the law, there could be practical
objections to allowing the use by law firms of
the names of deceased partners. The public
relations value of the use of an old firm name
can tend to create undue advantages and
disadvantages in the practice of the
profession. An able lawyer without
connections will have to make a name for
himself starting from scratch. Another able
lawyer, who can join an old firm, can
initially ride on that old firm's reputation
established by deceased partners.
B. In regards to the last paragraph of Article
1840 of the Civil Code cited by
petitioners, supra, the first factor to consider is
that it is within Chapter 3 of Title IX of the
Code entitled "Dissolution and Winding Up."
The Article primarily deals with the exemption
from liability in cases of a dissolved
partnership, of the individual property of the
deceased partner for debts contracted by the
person or partnership which continues
the business using the partnership name or
the name of the deceased partner as part
thereof. What the law contemplates therein is
a hold-over situation preparatory to formal
reorganization.
Secondly, Article 1840 treats more of
a commercial partnership with a good will to
protect rather than of
a professional partnership, with no saleable
good will but whose reputation depends on the
personal qualifications of its individual
members. Thus, it has been held that a
saleable goodwill can exist only in a
commercial partnership and cannot arise in a
professional partnership consisting of
lawyers. 9têñ.£îhqwâ£
As a general rule, upon the dissolution of
a commercial partnership the succeeding
partners or parties have the right to carry on
the business under the old name, in the
absence of a stipulation forbidding it, (s)ince
the name of a commercial partnership is a
partnership asset inseparable from the good
will of the firm. ... (60 Am Jur 2d, s 204, p. 115)
(Emphasis supplied)
On the other hand, têñ.£îhqwâ£
... a professional partnership the reputation of
which depends or; the individual skill of the
members, such as partnerships of attorneys or
physicians, has no good win to be distributed
as a firm asset on its dissolution, however
intrinsically valuable such skill and reputation
may be, especially where there is no provision
in the partnership agreement relating to good
will as an asset. ... (ibid, s 203, p. 115)
(Emphasis supplied)
C. A partnership for the practice of law cannot
be likened to partnerships formed by other
professionals or for business. For one thing,
the law on accountancy specifically allows the
use of a trade name in connection with the
practice of accountancy.10 têñ.£îhqwâ£
A partnership for the practice of law is not a
legal entity. It is a mere relationship or
association for a particular purpose. ... It is not
a partnership formed for the purpose of
carrying on trade or business or of holding
property." 11 Thus, it has been stated that "the
use of a nom de plume, assumed or trade
name in law practice is improper. 12
The usual reason given for different standards
of conduct being applicable to the practice of
law from those pertaining to business is that
the law is a profession.
Dean Pound, in his recently published
contribution to the Survey of the Legal
Profession, (The Lawyer from Antiquity to
Modern Times, p. 5) defines a profession as "a
group of men pursuing a learned art as a
common calling in the spirit of public service,
— no less a public service because it may
incidentally be a means of livelihood."
xxx xxx xxx
Primary characteristics which distinguish the
legal profession from business are:
1. A duty of public service, of which the
emolument is a byproduct, and in which one
may attain the highest eminence without
making much money.
2. A relation as an "officer of court" to the
administration of justice involving thorough
sincerity, integrity, and reliability.
3. A relation to clients in the highest degree
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. 13
"The right to practice law is not a natural or
constitutional right but is in the nature of a
privilege or franchise. 14 It is limited to persons
of good moral character with special
qualifications duly ascertained and
certified. 15 The right does not only presuppose
in its possessor integrity, legal standing and
attainment, but also the exercise of a special
29
privilege, highly personal and partaking of the
nature of a public trust." 16
D. Petitioners cited Canon 33 of the Canons of
Professional Ethics of the American Bar
Association" in support of their petitions.
It is true that Canon 33 does not consider as
unethical the continued use of the name of a
deceased or former partner in the firm name of
a law partnership when such a practice
is permissible by local custom but the Canon
warns that care should be taken that no
imposition or deception is practiced
through this use.
It must be conceded that in the Philippines, no
local custom permits or allows the continued
use of a deceased or former partner's name in
the firm names of law partnerships. Firm
names, under our custom, Identify the more
active and/or more senior members or
partners of the law firm. A glimpse at the
history of the firms of petitioners and of other
law firms in this country would show how their
firm names have evolved and changed from
time to time as the composition of the
partnership changed.
The continued use of a firm name after the
death of one or more of the partners
designated by it is proper only where
sustained by local custom and not where by
custom this purports to Identify the active
members. ...
There would seem to be a question, under the
working of the Canon, as to the propriety of
adding the name of a new partner and at the
same time retaining that of a deceased
partner who was never a partner with the new
one. (H.S. Drinker, op. cit., supra, at pp.
207208) (Emphasis supplied).
The possibility of deception upon the public,
real or consequential, where the name of a
deceased partner continues to be used cannot
be ruled out. A person in search of legal
counsel might be guided by the familiar ring of
a distinguished name appearing in a firm title.
E. Petitioners argue that U.S. Courts have
consistently allowed the continued use of a
deceased partner's name in the firm name of
law partnerships. But that is so because it is
sanctioned by custom.
In the case of Mendelsohn v. Equitable Life
Assurance Society (33 N.Y.S. 2d 733) which
petitioners Salazar, et al. quoted in their
memorandum, the New York Supreme Court
sustained the use of the firm name Alexander
& Green even if none of the present ten
partners of the firm bears either
name because the practice was sanctioned by
custom and did not offend any statutory
provision or legislative policy and was adopted
by agreement of the parties. The Court stated
therein: têñ.£îhqwâ£
The practice sought to be proscribed has the
sanction of custom and offends no statutory
provision or legislative policy. Canon 33 of the
Canons of Professional Ethics of both the
American Bar Association and the New York
State Bar Association provides in part as
follows: "The continued use of the name of a
deceased or former partner, when permissible
by local custom is not unethical, but care
should be taken that no imposition or
deception is practiced through this use." There
is no question as to local custom. Many firms
in the city use the names of deceased
members with the approval of other attorneys,
bar associations and the courts. The Appellate
Division of the First Department has
considered the matter and reached The
conclusion that such practice should not be
prohibited. (Emphasis supplied)
xxx xxx xxx
Neither the Partnership Law nor the Penal Law
prohibits the practice in question. The use of
the firm name herein is also sustainable by
reason of agreement between the partners. 18
Not so in this jurisdiction where there is no
local custom that sanctions the practice.
Custom has been defined as a rule of conduct
formed by repetition of acts, uniformly
observed (practiced) as a social rule, legally
binding and obligatory. 19 Courts take no
judicial notice of custom. A custom must be
proved as a fact, according to the rules of
evidence. 20 A local custom as a source of
right cannot be considered by a court of justice
unless such custom is properly established by
competent evidence like any other fact. 21 We
find such proof of the existence of a local
custom, and of the elements requisite to
constitute the same, wanting herein. Merely
because something is done as a matter of
practice does not mean that Courts can rely on
the same for purposes of adjudication as a
juridical custom. Juridical custom must be
differentiated from social custom. The former
can supplement statutory law or be applied in
the absence of such statute. Not so with the
latter.
Moreover, judicial decisions applying or
interpreting the laws form part of the legal
system. 22 When the Supreme Court in the
Deen and Perkins cases issued its
Resolutions directing lawyers to desist from
including the names of deceased partners in
30
their firm designation, it laid down a legal rule
against which no custom or practice to the
contrary, even if proven, can prevail. This is
not to speak of our civil law which clearly
ordains that a partnership is dissolved by the
death of any partner. 23 Custom which are
contrary to law, public order or public policy
shall not be countenanced. 24
The practice of law is intimately and peculiarly
related to the administration of justice and
should not be considered like an ordinary
"money-making trade." têñ.£îhqwâ£
... It is of the essence of a profession that it is
practiced in a spirit of public service. A trade ...
aims primarily at personal gain; a profession at
the exercise of powers beneficial to mankind.
If, as in the era of wide free opportunity, we
think of free competitive self assertion as the
highest good, lawyer and grocer and farmer
may seem to be freely competing with their
fellows in their calling in order each to acquire
as much of the world's good as he may within
the allowed him by law. But the member of a
profession does not regard himself as in
competition with his professional brethren. He
is not bartering his services as is the artisan
nor exchanging the products of his skill and
learning as the farmer sells wheat or corn.
There should be no such thing as a lawyers' or
physicians' strike. The best service of the
professional man is often rendered for no
equivalent or for a trifling equivalent and it is
his pride to do what he does in a way worthy
of his profession even if done with no
expectation of reward, This spirit of public
service in which the profession of law is and
ought to be exercised is a prerequisite of
sound administration of justice according to
law. The other two elements of a profession,
namely, organization and pursuit of a learned
art have their justification in that they secure
and maintain that spirit. 25
In fine, petitioners' desire to preserve the
Identity of their firms in the eyes of the public
must bow to legal and ethical impediment.
ACCORDINGLY, the petitions filed herein are
denied and petitioners advised to drop the
names "SYCIP" and "OZAETA" from their
respective firm names. Those names may,
however, be included in the listing of
individuals who have been partners in their
firms indicating the years during which they
served as such.
SO ORDERED.
Teehankee, Concepcion, Jr., Santos,
Fernandez, Guerrero and De Castro, JJ.,
concur
Fernando, C.J. and Abad Santos, J., took no
part.
Separate Opinions
FERNANDO, C.J., concurring:
The petitions are denied, as there are only four
votes for granting them, seven of the Justices
being of the contrary view, as explained in the
plurality opinion of Justice Ameurfina
Melencio-Herrera. It is out of delicadeza that
the undersigned did not participate in the
disposition of these petitions, as the law office
of Sycip, Salazar, Feliciano, Hernandez and
Castillo started with the partnership of
Quisumbing, Sycip, and Quisumbing, the
senior partner, the late Ramon Quisumbing,
being the father-in-law of the undersigned, and
the most junior partner then, Norberto J.
Quisumbing, being his brother- in-law. For the
record, the undersigned wishes to invite the
attention of all concerned, and not only of
petitioners, to the last sentence of the opinion
of Justice Ameurfina Melencio-Herrera: 'Those
names [Sycip and Ozaeta] may, however, be
included in the listing of individuals wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law
firm, Sycip, Salazar, Feliciano, Hernandez &
Castillo, in their petition of June 10, 1975,
prayed for authority to continue the use of that
firm name, notwithstanding the death of
Attorney Alexander Sycip on May 5, 1975
(May he rest in peace). He was the founder of
the firm which was originally known as the
Sycip Law Office.
On the other hand, the seven surviving
partners of the law firm, Ozaeta, Romulo, De
Leon, Mabanta & Reyes, in their petition of
August 13, 1976, prayed that they be allowed
to continue using the said firm name
notwithstanding the death of two partners,
former Justice Roman Ozaeta and his son,
Herminio, on May 1, 1972 and February 14,
1976, respectively.
They alleged that the said law firm was a
continuation of the Ozaeta Law Office which
was established in 1957 by Justice Ozaeta
and his son and that, as to the said law firm,
the name Ozaeta has acquired an institutional
and secondary connotation.
Article 1840 of the Civil Code, which speaks of
the use by the partnership of the name of a
deceased partner as part of the partnership
name, is cited to justify the petitions. Also
invoked is the canon that the continued use by
a law firm of the name of a deceased partner,
31
"when permissible by local custom, is not
unethical" as long as "no imposition or
deception is practised through this use"
(Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be
granted with the condition that it be indicated
in the letterheads of the two firms (as the case
may be) that Alexander Sycip, former Justice
Ozaeta and Herminio Ozaeta are dead or the
period when they served as partners should
be stated therein.
Obviously, the purpose of the two firms in
continuing the use of the names of their
deceased founders is to retain the clients who
had customarily sought the legal services of
Attorneys Sycip and Ozaeta and to benefit
from the goodwill attached to the names of
those respected and esteemed law
practitioners. That is a legitimate motivation.
The retention of their names is not illegal per
se. That practice was followed before the war
by the law firm of James Ross.
Notwithstanding the death of Judge Ross the
founder of the law firm of Ross, Lawrence,
Selph and Carrascoso, his name was retained
in the firm name with an indication of the year
when he died. No one complained that the
retention of the name of Judge Ross in the
firm name was illegal or unethical.
# Separate Opinions
FERNANDO, C.J., concurring:
The petitions are denied, as there are only four
votes for granting them, seven of the Justices
being of the contrary view, as explained in the
plurality opinion of Justice Ameurfina
Melencio-Herrera. It is out of delicadeza that
the undersigned did not participate in the
disposition of these petitions, as the law office
of Sycip, Salazar, Feliciano, Hernandez and
Castillo started with the partnership of
Quisumbing, Sycip, and Quisumbing, the
senior partner, the late Ramon Quisumbing,
being the father-in-law of the undersigned, and
the most junior partner then, Norberto J.
Quisumbing, being his brother- in-law. For the
record, the undersigned wishes to invite the
attention of all concerned, and not only of
petitioners, to the last sentence of the opinion
of Justice Ameurfina Melencio-Herrera: 'Those
names [Sycip and Ozaeta] may, however, be
included in the listing of individuals wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law
firm, Sycip, Salazar, Feliciano, Hernandez &
Castillo, in their petition of June 10, 1975,
prayed for authority to continue the use of that
firm name, notwithstanding the death of
Attorney Alexander Sycip on May 5, 1975
(May he rest in peace). He was the founder of
the firm which was originally known as the
Sycip Law Office.
On the other hand, the seven surviving
partners of the law firm, Ozaeta, Romulo, De
Leon, Mabanta & Reyes, in their petition of
August 13, 1976, prayed that they be allowed
to continue using the said firm name
notwithstanding the death of two partners,
former Justice Roman Ozaeta and his son,
Herminio, on May 1, 1972 and February 14,
1976, respectively.
They alleged that the said law firm was a
continuation of the Ozaeta Law Office which
was established in 1957 by Justice Ozaeta
and his son and that, as to the said law firm,
the name Ozaeta has acquired an institutional
and secondary connotation.
Article 1840 of the Civil Code, which speaks of
the use by the partnership of the name of a
deceased partner as part of the partnership
name, is cited to justify the petitions. Also
invoked is the canon that the continued use by
a law firm of the name of a deceased partner,
"when permissible by local custom, is not
unethical" as long as "no imposition or
deception is practised through this use"
(Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be
granted with the condition that it be indicated
in the letterheads of the two firms (as the case
may be) that Alexander Sycip, former Justice
Ozaeta and Herminio Ozaeta are dead or the
period when they served as partners should
be stated therein.
Obviously, the purpose of the two firms in
continuing the use of the names of their
deceased founders is to retain the clients who
had customarily sought the legal services of
Attorneys Sycip and Ozaeta and to benefit
from the goodwill attached to the names of
those respected and esteemed law
practitioners. That is a legitimate motivation.
The retention of their names is not illegal per
se. That practice was followed before the war
by the law firm of James Ross.
Notwithstanding the death of Judge Ross the
founder of the law firm of Ross, Lawrence,
Selph and Carrascoso, his name was retained
in the firm name with an indication of the year
when he died. No one complained that the
retention of the name of Judge Ross in the
firm name was illegal or unethical.
32