Professional Documents
Culture Documents
EN BANC
ROBERTO SORIANO, Complainant,
- versus Atty. MANUEL DIZON, Respondent.
A.C. No. 6792, January 25, 2006
DECISION
PER CURIAM:
Before us is a Complaint-Affidavit for the disbarment of Atty.
Manuel Dizon, filed by Roberto Soriano with the Commission
on Bar Discipine (CBD) of the Integrated Bar of the Philippines
(IBP). Complainant alleges that the conviction of respondent
for a crime involving moral turpitude, together with the
circumstances surrounding the conviction, violates Canon 1 of
Rule 1.01 of the Code of Professional Responsibility; and
constitutes sufficient ground for his disbarment under Section
27 of Rule 138 of the Rules of Court.
Because of the failure of Atty. Dizon to submit his Answer to
the Complaint, the CBD issued a Notice dated May 20, 2004,
informing him that he was in default, and that an ex-parte
hearing had been scheduled for June 11, 2004.
After that hearing, complainant manifested that he was
submitting the case on the basis of the Complaint and its
attachments. Accordingly, the CBD directed him to file his
Position Paper, which he did on July 27, 2004. Afterwards, the
case was deemed submitted for resolution.
On December 6, 2004, Commissioner Teresita J. Herbosa
rendered her Report and Recommendation, which was later
adopted and approved by the IBP Board of Governors in its
Resolution No. XVI-2005-84 dated March 12, 2005.
In his Complaint-Affidavit, Soriano alleged that respondent had
violated Canon 1, Rule 1.01 of the Code of Professional
Responsibility; and that the conviction of the latter for frustrated
homicide, which involved moral turpitude, should result in his
disbarment.
The facts leading to respondents conviction were summarized
by Branch 60 of the Regional Trial Court of Baguio City in this
wise:
x x x. The accused was driving his brown Toyota Corolla and
was on his way home after gassing up in preparation for his
trip to Concepcion, Tarlac with his wife. Along Abanao Street, a
taxi driver overtook the car driven by the accused not knowing
that the driver of the car he had overtaken is not just someone,
but a lawyer and a prominent member of the Baguio
community who was under the influence of liquor. Incensed,
the accused tailed the taxi driver until the latter stopped to
make a turn at [the] Chugum and Carino Streets. The accused
also stopped his car, berated the taxi driver and held him by his
shirt. To stop the aggression, the taxi driver forced open his
door causing the accused to fall to the ground. The taxi driver
knew that the accused had been drinking because he smelled
of liquor. Taking pity on the accused who looked elderly, the
taxi driver got out of his car to help him get up. But the
accused, by now enraged, stood up immediately and was
about to deal the taxi driver a fist blow when the latter boxed
him on the chest instead. The accused fell down a second
time, got up again and was about to box the taxi driver but the
latter caught his fist and turned his arm around. The taxi driver
held on to the accused until he could be pacified and then
released him. The accused went back to his car and got his
revolver making sure that the handle was wrapped in a
handkerchief. The taxi driver was on his way back to his
vehicle when he noticed the eyeglasses of the accused on the
ground. He picked them up intending to return them to the
2
case, respondent has been found guilty; and he stands
convicted, by final judgment, of frustrated homicide. Since his
conviction has already been established and is no longer open
to question, the only issues that remain to be determined are
as follows: 1) whether his crime of frustrated homicide involves
moral turpitude, and 2) whether his guilt warrants disbarment.
3
were so minor that it is improbable[,] if not downright
unbelievable[,] that three people who he said were bent on
beating him to death could do so little damage. On the
contrary, his injuries sustain the complainants version of the
incident particularly when he said that he boxed the accused
on the chest. x x x.
Lawyers must be ministers of truth. No moral qualification for
bar membership is more important than truthfulness. The
rigorous ethics of the profession places a premium on honesty
and condemns duplicitous behavior. Hence, lawyers must not
mislead the court or allow it to be misled by any artifice. In all
their dealings, they are expected to act in good faith.
The actions of respondent erode rather than enhance public
perception of the legal profession. They constitute moral
turpitude for which he should be disbarred. Law is a noble
profession, and the privilege to practice it is bestowed only
upon individuals who are competent intellectually, academically
and, equally important, morally. Because they are vanguards of
the law and the legal system, lawyers must at all times conduct
themselves, especially in their dealings with their clients and
the public at large, with honesty and integrity in a manner
beyond reproach.
The foregoing abhorrent acts of respondent are not merely
dishonorable; they reveal a basic moral flaw. Considering the
depravity of the offense he committed, we find the penalty
recommended by the IBP proper and commensurate.
The purpose of a proceeding for disbarment is to protect the
administration of justice by requiring that those who exercise
this important function be competent, honorable and reliable -lawyers in whom courts and clients may repose confidence.
Thus, whenever a clear case of degenerate and vile behavior
disturbs that vital yet fragile confidence, we shall not hesitate to
rid our profession of odious members.
We remain aware that the power to disbar must be exercised
with great caution, and that disbarment should never be
decreed when any lesser penalty would accomplish the end
desired. In the instant case, however, the Court cannot extend
that munificence to respondent. His actions so despicably and
wantonly disregarded his duties to society and his profession.
We are convinced that meting out a lesser penalty would be
irreconcilable with our lofty aspiration for the legal profession -that every lawyer be a shining exemplar of truth and justice.
We stress that membership in the legal profession is a
privilege demanding a high degree of good moral character,
not only as a condition precedent to admission, but also as a
continuing requirement for the practice of law. Sadly, herein
respondent has fallen short of the exacting standards expected
of him as a vanguard of the legal profession.
In sum, when lawyers are convicted of frustrated homicide, the
attending circumstances not the mere fact of their conviction
would demonstrate their fitness to remain in the legal
profession. In the present case, the appalling vindictiveness,
treachery, and brazen dishonesty of respondent clearly show
his unworthiness to continue as a member of the bar.
WHEREFORE, RESPONDENT MANUEL DIZON is hereby
DISBARRED, and his name is ORDERED STRICKEN from the
Roll of Attorneys. Let a copy of this Decision be entered in his
record as a member of the Bar; and let notice of the same be
served on the Integrated Bar of the Philippines, and on the
Office of the Court Administrator for circulation to all courts in
the country.
SO ORDERED
EN BANC
4
5.
Absolute Date of Sale dated 23 June 1993,
executed by Danilo Gonzales in favor of Senecio C. Marzan,
notarized by Rolando Dela Cruz;
6.
Joint Affidavit By Two Disinherited Parties dated 5
March 1994, executed by Evelyn C. Canullas and Pastora C.
Tacadena, subscribed and sworn to before Rolando Dela Cruz;
7.
Sworn Statement dated 31 May 1994, executed
by Felimon B. Rimorin, subscribed and sworn to before
Rolando Dela Cruz;
8.
Deed of Sale dated 17 August 1994, executed by
Woodrow Apurado in favor of Jacinto Batara, notarized by
Rolando Dela Cruz;
9.
Joint Affidavit by Two Disinterested Parties dated
1 June 1994, executed by Ponciano V. Abalos and Arsenio C.
Sibayan, subscribed and sworn to before Rolando Dela Cruz;
10.
Absolute Deed of Sale dated 23 March 1995,
executed by Eleanor D.Meridor in favor of Leonardo N. Benter,
notarized by Rolando Dela Cruz;
11.
Deed of Absolute Sale dated 20 December 1996,
executed by Mandapat in favor of Mario R. Mabalot, notarized
by Rolando Dela Cruz;
12.
Joint Affidavit By Two Disinterested Parties dated
17 April 1996, executed by Villiam C. Ambong and Romeo L.
Quiming, subscribed and sworn to before Rolando Dela Cruz;
13.
Conditional Deed of Sale dated 27 February 1997,
executed by Aurelia Demot Cados in favor of Jose Ma. A.
Pangilinan, notarized by Rolando Dela Cruz;
14.
Memorandum of Agreement[15] dated 19 July
1996, executed by JARCO represented by Mr. Johnny Teope
and AZTEC Construction represented by Mr. George Cham,
notarized by Rolando Dela Cruz.
Quite remarkably, respondent, in his comment, denied the
charges of child abuse, illegal deduction of salary and others
which are still pending before the St. Louis University (SLU),
National Labor Relations Commission (NLRC) and the
Prosecutors Office. He did not discuss anything about the
allegations of immorality in contracting a second marriage and
malpractice in notarizing documents despite the expiration of
his commission.
After the filing of comment, We referred the case to the
Integrated Bar of the Philippines (IBP), for investigation, report
and recommendation.
The IBP conducted the mandatory preliminary conference.
The complainants, thereafter, submitted their position paper
which is just a reiteration of their allegations in their complaint.
Respondent, on his part, expressly admitted his second
marriage despite the existence of his first marriage, and the
subsequent nullification of the former. He also admitted having
notarized certain documents during the period when his
notarial commission had already expired. However, he offered
some extenuating defenses such as good faith, lack of malice
and noble intentions in doing the complained acts.
After the submission of their position papers, the case was
deemed submitted for resolution.
On 30 March 2005, Commissioner Acerey C. Pacheco
submitted his report and recommended that:
WHEREFORE, premises considered, it is respectfully
recommended that respondent be administratively penalized
for the following acts:
5
prestige of the profession and the courts, may at any time be
the subject of inquiry on the part of the proper authorities.
One of the conditions prior to admission to the bar is that an
applicant must possess good moral character. Possession of
such moral character as requirement to the enjoyment of the
privilege of law practice must be continuous. Otherwise,
membership in the bar may be terminated when a lawyer
ceases to have good moral conduct.
In the case at bench, there is no dispute that respondent and
Teresita Rivera contracted marriage on 31 May 1982 before
Judge Tomas W. Macaranas. In less than a year, they parted
ways owing to their irreconcilable differences without seeking
judicial recourse. The union bore no offspring. After their
separation in-fact, respondent never knew the whereabouts of
Teresita Rivera since he had lost all forms of communication
with her. Seven years thereafter, respondent became attracted
to one Mary Jane Pascua, who was also a faculty member of
SLU-LHS. There is also no dispute over the fact that in 1989,
respondent married Mary Jane Pascua in the Municipal Trial
Court (MTC) of Baguio City, Branch 68. Respondent even
admitted this fact. When the second marriage was entered
into, respondents prior marriage with Teresita Rivera was still
subsisting, no action having been initiated before the court to
obtain a judicial declaration of nullity or annulment of
respondents prior marriage to Teresita Rivera or a judicial
declaration of presumptive death of Teresita Rivera.
Respondent was already a member of the Bar when he
contracted the bigamous second marriage in 1989, having
been admitted to the Bar in 1985. As such, he cannot feign
ignorance of the mandate of the law that before a second
marriage may be validly contracted, the first and subsisting
marriage must first be annulled by the appropriate court. The
second marriage was annulled only on 4 October 1994 before
the RTC of Benguet, Branch 9, or about five years after
respondent contracted his second marriage. The annulment of
respondents second marriage has no bearing to the instant
disbarment proceeding. Firstly, as earlier emphasized, the
annulment came after the respondents second bigamous
marriage. Secondly, as we held in In re: Almacen, a disbarment
case is sui generis for it is neither purely civil nor purely
criminal but is rather an investigation by the court into the
conduct of its officers. Thus, if the acquittal of a lawyer in a
criminal action is not determinative of an administrative case
against him, or if an affidavit of withdrawal of a disbarment
case does not affect its course, then neither will the judgment
of annulment of respondents second marriage also exonerate
him from a wrongdoing actually committed. So long as the
quantum of proof - clear preponderance of evidence - in
disciplinary proceedings against members of the Bar is met,
then liability attaches.
Section 27, Rule 138 of the Rules of Court cites grossly
immoral conduct as a ground for disbarment.
The Court has laid down with a common definition of what
constitutes immoral conduct, vis--vis, grossly immoral conduct.
Immoral conduct is that conduct which is willful, flagrant, or
shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the
community and what is grossly immoral, that is, it must be so
corrupt and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree.
Undoubtedly, respondents act constitutes immoral conduct. But
is it so gross as to warrant his disbarment? Indeed, he
exhibited a deplorable lack of that degree of morality required
of him as a member of the Bar. In particular, he made a
mockery of marriage which is a sacred institution demanding
respect and dignity. His act of contracting a second marriage
while the first marriage was still in place, is contrary to honesty,
justice, decency and morality.
6
As to the charge of misconduct for having notarized several
documents during the years 1988-1997 after his commission
as notary public had expired, respondent humbly admitted
having notarized certain documents despite his knowledge that
he no longer had authority to do so. He, however, alleged that
he received no payment in notarizing said documents.
EN BANC
MAELOTISEA S. GARRIDO,
Complainant,
- versus ATTYS. ANGEL E. GARRIDO and ROMANA P. VALENCIA,
Respondents.
A.C. No. 6593
DECISION
PER CURIAM:
Maelotisea Sipin Garrido filed a complaint-affidavit and a
supplemental affidavit for disbarment against the respondents
Atty. Angel E. Garrido (Atty. Garrido) and Atty. Romana
P.Valencia (Atty. Valencia) before the Integrated Bar of the
Philippines (IBP) Committee on Discipline charging them with
gross immorality. The complaint-affidavit states:
1.
That I am the legal wife of Atty. Angel E. Garrido by virtue
of our marriage on June 23, 1962 at San Marcelino Church,
Ermita, Manila which was solemnized by Msgr. Daniel Cortes x
xx
2.
That our marriage blossomed into having us blessed with
six (6) children, namely, Mat Elizabeth, Arnel Angelito,
Madeleine Eloiza, Arnel Angelo, Arnel Victorino and Madonna
Angeline, all surnamed Garrido;
3.
xxxx
7
4.
That on May, 1991, during my light moments with our
children, one of my daughters, Madeleine confided to me that
sometime on the later part of 1987, an unknown caller talked
with her claiming that the former is a child of my husband. I
ignored it and dismissed it as a mere joke. But when May
Elizabeth, also one of my daughters told me that sometime on
August 1990, she saw my husband strolling at the Robinsons
Department Store at Ermita, Manila together with a woman and
a child who was later identified as Atty. Ramona Paguida
Valencia and Angeli Ramona Valencia Garrido, respectively x x
x
5.
xxxx
6.
That I did not stop from unearthing the truth until I was
able to secure the Certificate of Live Birth of the child, stating
among others that the said child is their daughter and that Atty.
Angel Escobar Garrido and Atty. Romana Paguida Valencia
were married at Hongkong sometime on 1978.
7.
That on June 1993, my husband left our conjugal home
and joined Atty. Ramona Paguida Valencia at their residence x
xx
8.
That since he left our conjugal home he failed and still
failing to give us our needed financial support to the prejudice
of our children who stopped schooling because of financial
constraints.
xxxx
That I am also filing a disbarment proceedings against his
mistress as alleged in the same affidavit, Atty. Romana P.
Valencia considering that out of their immoral acts I suffered
not only mental anguish but also besmirch reputation,
wounded feelings and sleepless nights; x x x
In his Counter-Affidavit, Atty. Garrido denied Maelotiseas
charges and imputations. By way of defense, he alleged that
Maelotisea was not his legal wife, as he was already married to
Constancia David (Constancia) when he married Maelotisea.
He claimed he married Maelotisea after he and Constancia
parted ways. He further alleged that Maelotisea knew all his
escapades and understood his bad boy image before she
married him in 1962. As he and Maelotisea grew apart over the
years due to financial problems, Atty. Garrido met Atty.
Valencia. He became close to Atty. Valencia to whom he
confided his difficulties. Together, they resolved his personal
problems and his financial difficulties with his second family.
Atty. Garrido denied that he failed to give financial support to
his children with Maelotisea, emphasizing that all his six (6)
children were educated in private schools; all graduated from
college except for Arnel Victorino, who finished a special
secondary course.[4] Atty. Garrido alleged that Maelotisea had
not been employed and had not practiced her profession for
the past ten (10) years.
Atty. Garrido emphasized that all his marriages were
contracted before he became a member of the bar on May 11,
1979, with the third marriage contracted after the death of
Constancia on December 26, 1977. Likewise, his children with
Maelotisea were born before he became a lawyer.
In her Counter-Affidavit, Atty. Valencia denied that she was the
mistress of Atty. Garrido. She explained that Maelotisea was
not the legal wife of Atty. Garrido since the marriage between
them was void from the beginning due to the then existing
marriage of Atty. Garrido with Constancia. Atty. Valencia
claimed that Maelotisea knew of the romantic relationship
between her and Atty. Garrido, as they (Maelotisea and Atty.
Valencia) met in 1978. Maelotisea kept silent about her
relationship with Atty. Garrido and had maintained this silence
when she (Atty. Valencia) financially helped Atty. Garrido build
a house for his second family. Atty. Valencia alleged that
8
In compliance with our Resolution dated August 25, 2009, Atty.
Alicia A. Risos-Vidal (Atty. Risos-Vidal), Director of the
Commission on Bar Discipline, filed her Comment on the
petition. She recommends a modification of the penalty from
disbarment to reprimand, advancing the view that disbarment
is very harsh considering that the 77-year old Atty. Garrido took
responsibility for his acts and tried to mend his ways by filing a
petition for declaration of nullity of his bigamous marriage. Atty.
Risos-Vidal also notes that no other administrative case has
ever been filed against Atty. Garrido.
THE COURTS RULING
After due consideration, we resolve to adopt the findings of the
IBP Board of Governors against Atty. Garrido, and to reject its
recommendation with respect to Atty. Valencia.
General Considerations
Laws dealing with double jeopardy or with procedure such as
the verification of pleadings and prejudicial questions, or in this
case, prescription of offenses or the filing of affidavits of
desistance by the complainant do not apply in the
determination of a lawyers qualifications and fitness for
membership in the Bar.[13] We have so ruled in the past and
we see no reason to depart from this ruling.[14] First,
admission to the practice of law is a component of the
administration of justice and is a matter of public interest
because it involves service to the public.[15] The admission
qualifications are also qualifications for the continued
enjoyment of the privilege to practice law. Second, lack of
qualifications or the violation of the standards for the practice
of law, like criminal cases, is a matter of public concern that the
State may inquire into through this Court. In this sense, the
complainant in a disbarment case is not a direct party whose
interest in the outcome of the charge is wholly his or her own;
[16] effectively, his or her participation is that of a witness who
brought the matter to the attention of the Court.
9
[26] This was a misrepresentation given as an excuse to lure a
woman into a prohibited relationship.
Third, Atty. Garrido contracted his second marriage with
Maelotisea notwithstanding the subsistence of his first
marriage. This was an open admission, not only of an illegal
liaison, but of the commission of a crime.
Fourth, Atty. Garrido engaged in an extra-marital affair with
Atty. Valencia while his two marriages were in place and
without taking into consideration the moral and emotional
implications of his actions on the two women he took as wives
and on his six (6) children by his second marriage.
Fifth, instead of making legal amends to validate his marriage
with Maelotisea upon the death of Constancia, Atty. Garrido
married Atty. Valencia who bore him a daughter.
Sixth, Atty. Garrido misused his legal knowledge and
convinced Atty. Valencia (who was not then a lawyer) that he
was free to marry, considering that his marriage with
Maelotisea was not valid.
Seventh, as the evidence on record implies, Atty. Garrido
married Atty. Valencia in Hongkong in an apparent attempt to
accord legitimacy to a union entered into while another
marriage was in place.
Eighth, after admission to the practice of law, Atty. Garrido
simultaneously cohabited and had sexual relations with two (2)
women who at one point were both his wedded wives. He also
led a double life with two (2) families for a period of more than
ten (10) years.
Lastly, Atty. Garrido petitioned for the nullity of his marriage to
Maelotisea. Contrary to the position advanced by Atty. Alicia A.
Risos-Vidal, this was not an act of facing up to his
responsibility or an act of mending his ways. This was an
attempt, using his legal knowledge, to escape liability for his
past actions by having his second marriage declared void after
the present complaint was filed against him.
By his actions, Garrido committed multiple violations relating
to the legal profession, specifically, violations of the bar
admission rules, of his lawyers oath, and of the ethical rules of
the profession.
He did not possess the good moral character required of a
lawyer at the time of his admission to the Bar. As a lawyer, he
violated his lawyers oath, Section 20(a) of Rule 138 of the
Rules of Court, and Canon 1 of the Code of Professional
Responsibility,[30] all of which commonly require him to obey
the laws of the land. In marrying Maelotisea, he committed the
crime of bigamy, as he entered this second marriage while his
first marriage with Constancia was subsisting. He openly
admitted his bigamy when he filed his petition to nullify his
marriage to Maelotisea.
He violated ethical rules of the profession, specifically, Rule
1.01 of the Code of Professional Responsibility, which
commands that he shall not engage in unlawful, dishonest,
immoral or deceitful conduct; Canon 7 of the same Code,
which demands that [a] lawyer shall at all times uphold the
integrity and dignity of the legal profession; Rule 7.03 of the
Code of Professional Responsibility, which provides that, [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.
As a lawyer, his community looked up to Atty. Garrido with the
expectation and that he would set a good example in
promoting obedience to the Constitution and the laws. When
he violated the law and distorted it to cater to his own personal
needs and selfish motives, he discredited the legal profession
and created the public impression that laws are mere tools of
convenience that can be used, bended and abused to satisfy
personal whims and desires. In this case, he also used the law
to free him from unwanted relationships.
The Court has often reminded the members of the bar to live
up to the standards and norms expected of the legal profession
by upholding the ideals and principles embodied in the Code of
Professional Responsibility.[31] Lawyers are bound to maintain
not only a high standard of legal proficiency, but also of
morality, including honesty, integrity and fair dealing.[32]
Lawyers are at all times subject to the watchful public eye and
community approbation.[33] Needless to state, those whose
conduct both public and private fail this scrutiny have to be
disciplined and, after appropriate proceedings, accordingly
penalized.
Atty. Valencia
We agree with the findings of Investigating Commissioner San
Juan that Atty. Valencia should be administratively liable under
the circumstances for gross immorality:
x x x The contention of respondent that they were not yet
lawyers in March 27, 1978 when they got married shall not
afford them exemption from sanctions, for good moral
character is required as a condition precedent to admission to
the Bar. Likewise there is no distinction whether the
misconduct was committed in the lawyers professional
capacity or in his private life. Again, the claim that his marriage
to complainant was void ab initio shall not relieve respondents
from responsibility x x x Although the second marriage of the
respondent was subsequently declared null and void the fact
remains that respondents exhibited conduct which lacks that
degree of morality required of them as members of the Bar.
Moral character is not a subjective term but one that
corresponds to objective reality. To have good moral character,
a person must have the personal characteristics of being good.
It is not enough that he or she has a good reputation, i.e., the
opinion generally entertained about a person or the estimate in
which he or she is held by the public in the place where she is
known. The requirement of good moral character has four
general purposes, namely: (1) to protect the public; (2) to
protect the public image of lawyers; (3) to protect prospective
clients; and (4) to protect errant lawyers from themselves.
Each purpose is as important as the other.
Under the circumstances, we cannot overlook that prior to
becoming a lawyer, Atty. Valencia already knew that Atty.
Garrido was a married man (either to Constancia or to
Maelotisea), and that he already had a family. As Atty. Garridos
admitted confidante, she was under the moral duty to give him
proper advice; instead, she entered into a romantic relationship
with him for about six (6) years during the subsistence of his
two marriages. In 1978, she married Atty. Garrido with the
knowledge that he had an outstanding second marriage. These
circumstances, to our mind, support the conclusion that she
lacked good moral character; even without being a lawyer, a
person possessed of high moral values, whose confidential
advice was sought by another with respect to the latters family
problems, would not aggravate the situation by entering into a
romantic liaison with the person seeking advice, thereby
effectively alienating the other persons feelings and affection
from his wife and family.
While Atty. Valencia contends that Atty. Garridos marriage with
Maelotisea was null and void, the fact remains that he took a
man away from a woman who bore him six (6) children.
Ordinary decency would have required her to ward off Atty.
Garridos advances, as he was a married man, in fact a twicemarried man with both marriages subsisting at that time; she
should have said no to Atty. Garrido from the very start.
Instead, she continued her liaison with Atty. Garrido, driving
10
him, upon the death of Constancia, away from legitimizing his
relationship with Maelotisea and their children. Worse than
this, because of Atty. Valencias presence and willingness, Atty.
Garrido even left his second family and six children for a third
marriage with her. This scenario smacks of immorality even if
viewed outside of the prism of law.
We are not unmindful of Atty. Valencias expressed belief that
Atty. Garridos second marriage to Maelotisea was invalid;
hence, she felt free to marry Atty. Garrido. While this may be
correct in the strict legal sense and was later on confirmed by
the declaration of the nullity of Atty. Garridos marriage to
Maelotisea, we do not believe at all in the honesty of this
expressed belief.
The records show that Atty. Valencia consented to be married
in Hongkong, not within the country. Given that this marriage
transpired before the declaration of the nullity of Atty. Garridos
second marriage, we can only call this Hongkong marriage a
clandestine marriage, contrary to the Filipino tradition of
celebrating a marriage together with family. Despite Atty.
Valencias claim that she agreed to marry Atty. Garrido only
after he showed her proof of his capacity to enter into a
subsequent valid marriage, the celebration of their marriage in
Hongkong leads us to the opposite conclusion; they wanted to
marry in Hongkong for the added security of avoiding any
charge of bigamy by entering into the subsequent marriage
outside Philippine jurisdiction. In this regard, we cannot help
but note that Atty. Valencia afterwards opted to retain and use
her surname instead of using the surname of her husband.
Atty. Valencia, too, did not appear to mind that her husband did
not live and cohabit with her under one roof, but with his
second wife and the family of this marriage. Apparently, Atty.
Valencia did not mind at all sharing her husband with another
woman. This, to us, is a clear demonstration of Atty. Valencias
perverse sense of moral values.
Measured against the definition of gross immorality, we find
Atty. Valencias actions grossly immoral. Her actions were so
corrupt as to approximate a criminal act, for she married a man
who, in all appearances, was married to another and with
whom he has a family. Her actions were also unprincipled and
reprehensible to a high degree; as the confidante of Atty.
Garrido, she preyed on his vulnerability and engaged in a
romantic relationship with him during the subsistence of his two
previous marriages. As already mentioned, Atty. Valencias
conduct could not but be scandalous and revolting to the point
of shocking the communitys sense of decency; while she
professed to be the lawfully wedded wife, she helped the
second family build a house prior to her marriage to Atty.
Garrido, and did not object to sharing her husband with the
woman of his second marriage.
We find that Atty. Valencia violated Canon 7 and Rule 7.03 of
the Code of Professional Responsibility, as her behavior
demeaned the dignity of and discredited the legal profession.
She simply failed in her duty as a lawyer to adhere
unwaveringly to the highest standards of morality.[40] In
Barrientos v. Daarol,[41] we held that lawyers, as officers of the
court, must not only be of good moral character but must also
be seen to be of good moral character and must lead lives in
accordance with the highest moral standards of the community.
Atty. Valencia failed to live up to these standards before she
was admitted to the bar and after she became a member of the
legal profession.
Conclusion
Membership in the Bar is a privilege burdened with conditions.
As a privilege bestowed by law through the Supreme Court,
membership in the Bar can be withdrawn where circumstances
concretely show the lawyers lack of the essential qualifications
required of lawyers. We resolve to withdraw this privilege from
11
mother and her sister Marivinia were procured only by the
vendee Shirley and not by them. Complainant submits the
affidavit[6] executed by Edwin Gawayon, Barangay Treasurer
of C-8, Claveria, Cagayan, on August 3, 2002, attesting that
the CTCs were procured at the instance of Shirley and were
paid without the complainant and her co-heirs personally
appearing before him. Gawayon stated that the signatures and
thumbmarks appearing on the CTCs are not genuine and
authentic because it can be seen with the naked eyes that the
signatures are similar in all three CTCs.
Lastly, complainant alleges that the two deeds were used by
respondent and Shirley to annul a previously simulated deed of
sale[7] dated June 20, 1979 purportedly executed by Lope in
favor of the spouses Madki and Shirley Mipanga. Said deed
was likewise a complete nullity because at that time Shirley
Mipanga was only sixteen years old and still single.
In his comment,[8] respondent admits having prepared and
notarized the two disputed Deeds of Extra-Judicial Settlement
of the Estate with Sale (subject deeds), but denies any
irregularity in their execution. He claims that the preparation
and notarization of the subject deeds were made under the
following circumstances:
EN BANC
PACITA CAALIM-VERZONILLA,
Complainant,
- versus ATTY. VICTORIANO G. PASCUA, Respondent.
A.C. No. 6655, October 11, 2011
DECISION
VILLARAMA, JR., J.:
Before the Court is the verified affidavit-complaint[1] of Pacita
Caalim-Verzonilla seeking the disbarment of respondent Atty.
Victoriano G. Pascua for allegedly falsifying a public document
and evading the payment of correct taxes through the use of
falsified documents.
Complainant alleges that on September 15, 2001, respondent
prepared and notarized two Deeds of Extra-Judicial Settlement
of the Estate of Deceased Lope Caalim with Sale. The first
deed[2] was for a consideration of P250,000 and appears to
have been executed and signed by Lopes surviving spouse,
Caridad Tabarrejos, and her children (complainant, Virginia
Caalim-Inong and Marivinia Caalim) in favor of spouses Madki
and Shirley Mipanga. The second deed[3]was for a
consideration of P1,000,000 and appears to have been
executed by and for the benefit of the same parties as the first
deed. The two deeds have identical registration numbers, page
numbers and book numbers in the notarial portion.
Complainant avers that both deeds are spurious because all
the heirs signatures were falsified. She contends that her sister
Marivinia does not know how to sign her name and was
confined at the Cagayan Valley Medical Center, Tuguegarao
City, at the time the deeds were allegedly signed by her, as
shown by a certification[4]from said hospital. The certification,
dated February 6, 2004 and signed by Dr. Alice Anghad,
Medical Officer IV, attested that Marivinia has been confined at
the Psychiatry Ward of the Cagayan Valley Medical Center
since May 3, 1999 after being diagnosed of Substance Induced
Psychosis and Schizophrenia, Undifferentiated Type.
Complainant further alleges that the two deeds were not
presented to any of them and they came to know of their
existence only recently. She further claims that the Community
Tax Certificates[5] (CTCs) in her name and in the names of her
12
payable, he replied that it depends on the assessment of the
BIR examiner which will be based on the zonal value or selling
price stated in the deed of sale. He added that the estate taxes
due, with interests and surcharges, would also have to be paid.
Since the consideration for the sale is P1,000,000, the taxes
payable was quite enormous. Shirley asked him who between
the vendor and the vendee should pay the taxes, and he
replied that under the law, it is the obligation of the vendors to
pay said taxes but it still depends upon the agreement of the
parties. He asked if there was already an agreement on the
matter, but the parties replied in the negative.
Shirley then told the vendors that they should shoulder the
payment of taxes. Caridad and her co-vendors, however,
refused and said that a big portion of the P1,000,000 paid to
them was already used by them to pay and settle their other
obligations. Shirley then offered to pay one-half of whatever
amount the BIR will assess, but Caridad insisted that another
document be prepared stating a reduced selling price of only
P250,000 so that they need not contribute to the payment of
taxes since Shirley was anyway already willing to pay one-half
of the taxes based on the selling price stated in the first deed.
This resulted in a heated discussion between the parties,
which was, however, later resolved by an agreement to
execute a second deed. The prospect of preparing an
additional deed, however, irritated respondent as it meant
additional work for him. Thus, respondent went home.
Later, the parties visited respondent at his house and pleaded
with him to prepare the second deed with the reduced selling
price. Moved by his humane and compassionate disposition,
respondent gave in to the parties plea.
In the presence of all the heirs, the vendees and the
instrumental witnesses, respondent prepared and notarized the
second deed providing for the lower consideration of only
P250,000. He used the same document number, page number
and book number in the notarial portion as the first deed
because according to him, the second deed was intended by
the parties to supplant the first.
Respondent denies complainants assertions that the two
deeds are simulated and falsified, averring that as stated
above, all the parties acknowledged the same before him.
Likewise, he and his clients, the spouses Madki and Shirley
Mipanga, presented the subject deeds as exhibits in Civil Case
No. 2761-S also pending before the Regional Trial Court
(RTC), Branch 12, of Sanchez Mira, Cagayan.
As to the allegation that Marivinia did not appear before him as
she was allegedly under confinement at the Cagayan Valley
Medical Center on September 15, 2001, respondent cites a
medical certificate[9]stating that Marivinia was confined in said
hospital from May 3, 1999 to August 10, 1999. He also points
out that Marivinia is one of the plaintiffs in Civil Case No. 2836S pending before the RTC, Branch 12, Sanchez Mira,
Cagayan, for the annulment of the subject deeds, and nothing
in the complaint states that she is mentally or physically
incapacitated. Otherwise, her co-plaintiffs would have asked
the appointment of a guardian for her.
By Resolution[10] dated August 10, 2005, this Court referred
the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.
In a Report and Recommendation[11] dated May 3, 2007,
Commissioner Jose Roderick F. Fernando found respondent
administratively liable on account of his indispensable
participation in an act designed to defraud the government. He
recommended that respondent be suspended from the practice
of law for three months and that his notarial commission, if still
existing, be revoked and that respondent be prohibited from
being commissioned as a notary public for two years.
13
untruthful statement in a public document for an unlawful
purpose. As the second deed indicated an amount much lower
than the actual price paid for the property sold, respondent
abetted in depriving the Government of the right to collect the
correct taxes due. His act clearly violated Rule 1.02, Canon 1
of the Code of Professional Responsibility which reads:
CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION,
OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT
FOR LAW AND LEGAL PROCESSES.
Xxxx
Rule 1.02. A lawyer shall not counsel or abet activities aimed at
defiance of the law or at lessening confidence in the legal
system.
Not only did respondent assist the contracting parties in an
activity aimed at defiance of the law, he likewise displayed lack
of respect for and made a mockery of the solemnity of the oath
in an Acknowledgment. By notarizing such illegal and
fraudulent document, he is entitling it full faith and credit upon
its face, which it obviously does not deserve considering its
nature and purpose.
In Gonzales v. Ramos,[14] we elucidated on how important
and sacrosanct the notarial act is:
By affixing his notarial seal on the instrument, the respondent
converted the Deed of Absolute Sale, from a private document
into a public document. Such act is no empty gesture. The
principal function of a notary public is to authenticate
documents. When a notary public certifies to the due execution
and delivery of a document under his hand and seal, he gives
the document the force of evidence. Indeed, one of the
purposes of requiring documents to be acknowledged before a
notary public, in addition to the solemnity which should
surround the execution and delivery of documents, is to
authorize such documents to be given without further proof of
their execution and delivery. A notarial document is by law
entitled to full faith and credit upon its face. Courts,
administrative agencies and the public at large must be able to
rely upon the acknowledgement executed before a notary
public and appended to a private instrument. Hence, a notary
public must discharge his powers and duties, which are
impressed with public interest, with accuracy and fidelity.[15]
Moreover, while respondents duty as a notary public is
principally to ascertain the identity of the affiant and the
voluntariness of the declaration, it is nevertheless incumbent
upon him to guard against any illegal or immoral arrangement
or at least refrain from being a party to its consummation.
[16]Rule IV, Section 4 of the 2004 Rules on Notarial Practice in
fact proscribes notaries public from performing any notarial act
for transactions similar to the herein document of sale, to wit:
SEC. 4. Refusal to Notarize. A notary public shall not perform
any notarial act described in these Rules for any person
requesting such an act even if he tenders the appropriate fee
specified by these Rules if:
(a) the notary knows or has good reason to believe that the
notarial act or transaction is unlawful or immoral;
xxxx
In this case, respondent proceeded to notarize the second
deed despite knowledge of its illegal purpose. His purported
desire to accommodate the request of his client will not
absolve respondent who, as a member of the legal profession,
should have stood his ground and not yielded to the
importunings of his clients. Respondent should have been
more prudent and remained steadfast in his solemn oath not to
commit falsehood nor consent to the doing of any.[17] As a
lawyer, respondent is expected at all times to uphold the
integrity and dignity of the legal profession and refrain from any
act or omission which might lessen the trust and confidence
reposed by the public in the integrity of the legal profession.
[18]
Respondent also failed to comply with Section 2, Rule VI of the
2004Rules on Notarial Practice when he gavethe second
document the same document number, page number and book
number as the first:
SEC. 2. Entries in the Notarial Register. x x x
xxxx
(e) The notary public shall give to each instrument or document
executed, sworn to, or acknowledged before him a number
corresponding to the one in his register, and shall also state on
the instrument or document the page/s of his register on which
the same is recorded. No blank line shall be left between
entries.
Xxxx
Respondent admitted having given the second deed the same
document number, page number and book number as in the
first deed, reasoning that the second deed was intended to
supplant and cancel the first deed. He therefore knowingly
violated the above rule, in furtherance of his clients intention of
concealing the actual purchase price so as to avoid paying the
taxes rightly due to the Government.
Even assuming that the second deed was really intended to
reflect the true agreement of the parties and hence
superseding the first deed they had executed, respondent
remains liable under the afore-cited Section 2(e) which
requires that each instrument or document, executed, sworn
to, or acknowledged before the notary public shall be given a
number corresponding to the one in his register. Said rule is
not concerned with the validity or efficacy of the document or
instrument recorded but merely to ensure the accuracy and
integrity of the entries in the notarial register.
A lawyer may be suspended or disbarred for any misconduct
showing any fault or deficiency in his moral character, honesty,
probity or good demeanor.[19] Section 27, Rule 138 of the
Revised Rules of Court provides:
SEC. 27. Disbarment or suspension of attorneys by Supreme
Court, grounds _herefore. 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, of
for any violation of the oath which he is required to take before
admission to practice, or for a willful disobedience 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.
Xxxx
In Gonzales, the notary public who notarized the document
despite the non-appearance of one of the signatories was
meted the penalties of revocation of his notarial commission
and disqualification from re-appointment for two years. The
notary in Gonzales was likewise suspended from the practice
of law for one year. Said penalty was in accord with the cases
of Bon v. Ziga,[20]Serzo v. Flores,[21]Zaballero v.
Montalvan[22] and Tabas v. Mangibin.[23] The Court found that
by notarizing the questioned deed, the respondent in Gonzales
engaged in unlawful, dishonest, immoral or deceitful conduct.
[24]
14
In the instant case, we hold that respondent should similarly be
meted the penalty of suspension and revocation of his notarial
commission for having violated the 2004 Rules on Notarial
Practice. In line withcurrent jurisprudence, and as
recommended by the IBP Board of Governors, the revocation
of his notarial commission and disqualification from reappointment as notary public for two years is in order.
With respect, however, to his suspension from the practice of
law, we hold that the one-year suspension imposed in
Gonzales and the other cases is not applicable considering
that respondent not only failed to faithfully comply with the
rules on notarial practice, he also violated his oath when he
prepared and notarized the second deed for the purpose of
avoiding the payment of correct amount of taxes, thus abetting
an activity aimed at defiance of the law. Under these
circumstances, we find the two-year suspension recommended
by the IBP Board of Governors as proper and commensurate
to the infraction committed by respondent.
WHEREFORE, respondent ATTY. VICTORIANO G. PASCUA is
hereby SUSPENDED from the practice of law for a period of
two (2) years. In addition, his present notarial commission, if
any, is hereby REVOKED, and he is DISQUALIFIED from
reappointment as a notary public for a period of two (2) years.
He is further WARNED that any similar act or infraction in the
future shall be dealt with more severely.
CARPIO, J.:
The Case
Before the Court is a complaint for disbarment filed by Rodolfo
A. Espinosa (Espinosa) and Maximo A. Glindo (Glindo) against
Atty. Julieta A. Omaa (Omaa).
The Antecedent Facts
Complainants Espinosa and Glindo charged Omaa with
violation of her oath as a lawyer, malpractice, and gross
misconduct in office.
Complainants alleged that on 17 November 1997, Espinosa
and his wife Elena Marantal (Marantal) sought Omaas legal
advice on whether they could legally live separately and
dissolve their marriage solemnized on 23 July 1983. Omaa
then prepared a document entitled Kasunduan Ng
Paghihiwalay (contract) which reads:
REPUBLIKA NG PILIPINAS
BAYAN NG GUMACA
LALAWIGAN NG QUEZON
KASUNDUAN NG PAGHIHIWALAY
SO ORDERED.
1.
Na nais na naming maghiwalay at magkanya-kanya ng
aming mga buhay ng walang pakialaman, kung kayat bawat
isa sa amin ay maaari ng humanap ng makakasama sa buhay;
2.
Na ang aming mga anak na sina Ariel John Espinosa, 14
na taong gulang; Aiza Espinosa, 11 taong gulang at Aldrin
Espinosa, 10 taong gulang ay namili na kung kanino sasama
sa aming dalawa. Si Ariel John at Aiza Espinosa ay sasama sa
kanilang ama, Rodolfo Espinosa, at ang bunso, Aldrin
Espinosa at sasama naman sa ina na si Elena;
3.
Na dahil sina Ariel John at Aiza ay nagsisipag-aral sa
kasalukuyan sila ay pansamantalang mananatili sa kanilang
ina, habang tinatapos ang kanilang pag-aaral. Sa pasukan sila
ay maaari ng isama ng ama, sa lugar kung saan siya ay
naninirahan;
4.
Na ang mga bata ay maaaring dalawin ng sino man sa
aming dalawa tuwing may pagkakataon;
5.
Na magbibigay ng buwanang gastusin o suporta ang
ama kay Aldrin at ang kakulangan sa mga pangangailangan
nito ay pupunan ng ina;
SECOND DIVISION
RODOLFO A. ESPINOSA and MAXIMO A. GLINDO,
Complainants,
6.
Na lahat ng mga kasangkapan sa bahay tulad ng T.V.,
gas stove, mga kagamitan sa kusina ay aking (Rodolfo)
ipinagkakaloob kay Elena at hindi na ako interesado dito
7.
Na lahat ng maaaring maipundar ng sino man sa amin
dalawa sa mga panahong darating ay aming mga sari-sariling
pag-aari na at hindi na pinagsamahan o conjugal.
Respondent.
(Sgd) (Sgd)
DECISION
Nagkasundo Nagkasundo
- versus -
15
PINATUNAYAN AT PINANUMPAAN dito sa harap ko ngayong
ika-17 ng Nobyembre, 1997, dito sa Gumaca, Quezon
ATTY. JULIETA A. OMAA
Notary Public
Gumaca, Quezon
The Issue
Doc. No. 482; Page No. 97; Book No. XI; Series of 1997.
SO ORDERED.
16
farm such as land preparation, planting, weeding, fertilizing,
harvesting, dealing with third persons in all matters relating to
the hacienda and attending to such other tasks as may be
assigned to him by private respondent. For this purpose, he
lived on the farm, occupying the upper floor of the house there.
Following his marriage on June 6, 1982, petitioner moved to
Bacolod City with his wife and commuted to work daily. He
suffered various ailments and was hospitalized on two
separate occasions in June and August, 1982. In November,
1982, he underwent fistulectomy, or the surgical removal of the
fistula, a deep sinuous ulcer. During his recuperation which
lasted over four months, he was under the care of Dr. Patricio
Tan. In June, 1983, he was confined for acute gastroenteritis
and, thereafter, for infectious hepatitis from December, 1983 to
January, 1984.
During the entire periods of petitioner's illnesses, private
respondent took care of his medical expenses and petitioner
continued to receive compensation. However, in April, 1984,
without due notice, private respondent ceased to pay the
latter's salary. Petitioner made oral and written demands for an
explanation for the sudden withholding of his salary from Atty.
Apolonio Sumbingco, private respondent's auditor and legal
adviser, as well as for the remittance of his salary. Both
demands, however, were not acted upon.
SECOND DIVISION
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH
DIVISION), CEBU CITY, and JON DE YSASI, respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for
naught in this case, notwithstanding the vinculum of paternity
and filiation between the parties. It would indeed have been the
better part of reason if herein petitioner and private respondent
had reconciled their differences in an extrajudicial atmosphere
of familial amity and with the grace of reciprocal concessions.
Father and son opted instead for judicial intervention despite
the inevitable acrimony and negative publicity. Albeit with
distaste, the Court cannot proceed elsewise but to resolve their
dispute with the same reasoned detachment accorded any
judicial proceeding before it.
The records of this case reveal that petitioner was employed
by his father, herein private respondent, as farm administrator
of Hacienda Manucao in Hinigaran, Negros Occidental
sometime in April, 1980. Prior thereto, he was successively
employed as sales manager of Triumph International (Phil.),
Inc. and later as operations manager of Top Form
Manufacturing (Phil.), Inc. His employment as farm
administrator was on a fixed salary, with other allowances
covering housing, food, light, power, telephone, gasoline,
medical and dental expenses.
As farm administrator, petitioner was responsible for the
supervision of daily activities and operations of the sugarcane
17
Before proceeding with a discussion of the issues, the
observation of the labor arbiter is worth noting:
This case is truly unique. What makes this case unique is the
fact that because of the special relationship of the parties and
the nature of the action involved, this case could very well go
down (in) the annals of the Commission as perhaps the first of
its kind. For this case is an action filed by an only son, his
father's namesake, the only child and therefore the only heir
against his own father.
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2)
observations were noted that may justify why this labor case
deserves special considerations. First, most of the complaints
that petitioner and private respondent had with each other,
were personal matters affecting father and son relationship.
And secondly, if any of the complaints pertain to their work,
they allow their personal relationship to come in the way.
I.
Petitioner maintains that his dismissal from
employment was illegal because of want of just cause therefor
and non-observance of the requirements of due process. He
also charges the NLRC with grave abuse of discretion in
relying upon the findings of the executive labor arbiter who
decided the case but did not conduct the hearings thereof.
Private respondent, in refutation, avers that there was
abandonment by petitioner of his functions as farm
administrator, thereby arming private respondent with a ground
to terminate his employment at Hacienda Manucao. It is also
contended that it is wrong for petitioner to question the factual
findings of the executive labor arbiter and the NLRC as only
questions of law may be appealed for resolution by this Court.
Furthermore, in seeking the dismissal of the instant petition,
private respondent faults herein petitioner for failure to refer to
the corresponding pages of the transcripts of stenographic
notes, erroneously citing Sections 15(d) and 16(d), Rule 44
(should be Section 16[c] and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which
provide that want of page references to the records is a ground
for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221
of the Labor Code that technical rules of evidence prevailing in
courts of law and equity shall not be controlling, and that every
and all reasonable means to speedily and objectively ascertain
the facts in each case shall be availed of, without regard to
technicalities of law or procedure in the interest of due process.
It is settled that it is not procedurally objectionable for the
decision in a case to be rendered by a judge, or a labor arbiter
for that matter, other than the one who conducted the hearing.
The fact that the judge who heard the case was not the judge
who penned the decision does not impair the validity of the
judgment, 11 provided that he draws up his decision and
resolution with due care and makes certain that they truly and
accurately reflect conclusions and final dispositions on the
bases of the facts of and evidence submitted in the case.
Thus, the mere fact that the case was initially assigned to
Labor Arbiter Ricardo T. Octavio, who conducted the hearings
therein from December 5, 1984 to July 11, 1985, and was later
transferred to Executive Labor Arbiter Oscar S. Uy, who
eventually decided the case, presents no procedural infirmity,
especially considering that there is a presumption of regularity
in the performance of a public officer's functions, which
petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in the Labor
Code relaxing the application of technical rules of procedure in
labor cases in the interest of due process, ever mindful of the
long-standing legal precept that rules of procedure must be
18
obliged to live and stay 24 hours a day inside Hacienda
Manucao.
After evaluating the evidence within the context of the special
circumstances involved and basic human experience,
petitioner's illness and strained family relation with respondent
Jon de Ysasi II may be considered as justifiable reason for
petitioner Jon de Ysasi III's absence from work during the
period of October 1982 to December 1982. In any event, such
absence does not warrant outright dismissal without notice and
hearing.
The elements of abandonment as a ground for dismissal of an
employee are as follows:
(1)
failure to report for work or absence without valid or
justifiable reason; and (2) clear intention to sever the employeremployee tie (Samson Alcantara, Reviewer in Labor and Social
Legislation, 1989 edition, p. 133).
This Honorable Court, in several cases, illustrates what
constitute abandonment. In Dagupan Bus Company v. NLRC
(191 SCRA 328), the Court rules that for abandonment to
arise, there must be a concurrence of the intention to abandon
and some overt act from which it may be inferred that the
employee has no more interest to work. Similarly, in Nueva
Ecija I Electric Cooperative, Inc. v. NLRC (184 SCRA 25), for
abandonment to constitute a valid cause for termination of
employment, there must be a deliberate, unjustified refusal of
the employee to resume his employment. . . Mere absence is
not sufficient; it must be accompanied by overt acts unerringly
pointing to the fact that the employee simply does not want to
work anymore.
There are significant indications in this case, that there is no
abandonment. First, petitioner's absence and his decision to
leave his residence inside Hacienda Manucao, is justified by
his illness and strained family relations. Second he has some
medical certificates to show his frail health. Third, once able to
work, petitioner wrote a letter (Annex "J") informing private
respondent of his intention to assume again his employment.
Last, but not the least, he at once instituted a complaint for
illegal dismissal when he realized he was unjustly dismissed.
All these are indications that petitioner had no intention to
abandon his employment.
The records show that the parties herein do not dispute the
fact of petitioner's confinement in the hospital for his various
afflictions which required medical treatment. Neither can it be
denied that private respondent was well aware of petitioner's
state of health as the former admittedly shouldered part of the
medical and hospital bills and even advised the latter to stay in
Bacolod City until he was fit to work again. The disagreement
as to whether or not petitioner's ailments were so serious as to
necessitate hospitalization and corresponding periods for
recuperation is beside the point. The fact remains that on
account of said illnesses, the details of which were amply
substantiated by the attending physician, 21 and as the
records are bereft of any suggestion of malingering on the part
of petitioner, there was justifiable cause for petitioner's
absence from work. We repeat, it is clear, deliberate and
unjustified refusal to resume employment and not mere
absence that is required to constitute abandonment as a valid
ground for termination of employment.
With his position as farm administrator of Hacienda Manucao,
petitioner unmistakably may be classified as a managerial
employee 23 to whom the law grants an amount of discretion
in the discharge of his duties. This is why when petitioner
stated that "I assigned myself where I want to go," 24 he was
simply being candid about what he could do within the sphere
of his authority. His duties as farm administrator did not strictly
require him to keep regular hours or to be at the office
premises at all times, or to be subjected to specific control from
19
1984. 26 With these, petitioner contends that it is immaterial
how the monthly pecuniary amounts are designated, whether
as salary, pension or allowance, with or without deductions, as
he was entitled thereto in view of his continued service as farm
administrator.
To stress what was earlier mentioned, in order that a finding of
abandonment may justly be made there must be a
concurrence of two elements, viz.: (1) the failure to report for
work or absence without valid or justifiable reason, and (2) a
clear intention to sever the employer-employee relationship,
with the second element as the more determinative factor and
being manifested by some overt acts. Such intent we find
dismally wanting in this case.
It will be recalled that private respondent himself admitted
being unsure of his son's plans of returning to work. The
absence of petitioner from work since mid-1982, prolonged
though it may have been, was not without valid causes of
which private respondent had full knowledge. As to what
convinced or led him to believe that petitioner was no longer
returning to work, private respondent neither explains nor
substantiates by any reasonable basis how he arrived at such
a conclusion.
Moreover, private respondent's claim of abandonment cannot
be given credence as even after January, 1983, when private
respondent supposedly "became convinced" that petitioner
would no longer work at the farm, the latter continued to
perform services directly required by his position as farm
administrator. These are duly and correspondingly evidenced
by such acts as picking up some farm machinery/equipment
from G.A. Machineries, Inc., 28 claiming and paying for
additional farm equipment and machinery shipped by said firm
from Manila to Bacolod through Zip Forwarders, 29 getting the
payment of the additional cash advances for molasses for crop
year 1983-1984 from Agrotex Commodities, Inc., 30 and
remitting to private respondent through
Atty. Sumbingco the sums collected along with receipts for
medicine and oil.
It will be observed that all of these chores, which petitioner
took care of, relate to the normal activities and operations of
the farm. True, it is a father's prerogative to request or even
command his child to run errands for him. In the present case,
however, considering the nature of these transactions, as well
as the property values and monetary sums involved, it is
unlikely that private respondent would leave the matter to just
anyone. Prudence dictates that these matters be handled by
someone who can be trusted or at least be held accountable
therefor, and who is familiar with the terms, specifications and
other details relative thereto, such as an employee. If indeed
petitioner had abandoned his job or was considered to have
done so by private respondent, it would be awkward, or even
out of place, to expect or to oblige petitioner to concern himself
with matters relating to or expected of him with respect to what
would then be his past and terminated employment. It is hard
to imagine what further authority an employer can have over a
dismissed employee so as to compel him to continue to
perform work-related tasks:
It is also significant that the special power of attorney 32
executed by private respondent on June 26, 1980 in favor of
petitioner, specifically stating
That I, JON de YSASI, Filipino, of legal age, married, and a
resident of Hda. Manucao, hereinafter called and referred to as
PRINCIPAL, am a sugarcane planter, BISCOM Mill District,
and a duly accredited planter-member of the BINALBAGANISABELA PLANTERS' ASSOCIATION, INC.;
20
regardless of designation, were in consideration for services
rendered emanating from an employer-employee relationship
and were not of a character that can qualify them as mere civil
support given out of parental duty and solicitude. We are also
hard put to imagine how abandonment can be impliedly
converted into a voluntary resignation without any positive act
on the part of the employee conveying a desire to terminate his
employment. The very concept of resignation as a ground for
termination by the employee of his employment 38 does not
square with the elements constitutive of abandonment.
On procedural considerations, petitioner posits that there was
a violation by private respondent of the due process
requirements under the Labor Code for want of notice and
hearing. 39 Private respondent, in opposition, argues that
Section 2, Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code applies only to cases where the
employer seeks to terminate the services of an employee on
any of the grounds enumerated under Article 282 of the Labor
Code, but not to the situation obtaining in this case where
private respondent did not dismiss petitioner on any ground
since it was petitioner who allegedly abandoned his
employment.
The due process requirements of notice and hearing applicable
to labor cases are set out in Rule XIV, Book V of the Omnibus
Rules Implementing the Labor Code in this wise:
Sec. 2. Notice of Dismissal. Any employer who seeks to
dismiss a worker shall furnish him a written notice stating the
particular acts or omission(s) constituting the grounds for his
dismissal. In cases of abandonment of work, notice shall be
served at the worker's last known address.
Sec. 5. Answer and hearing. The worker may answer the
allegations as stated against him in the notice of dismissal
within a reasonable period from receipt of such notice. The
employer shall afford the worker ample opportunity to be heard
and to defend himself with the assistance of his representative,
if he so desires.
Sec. 6. Decision to dismiss. The employer shall
immediately notify a worker in writing of a decision to dismiss
him stating clearly the reasons therefor.
Sec. 7. Right to contest dismissal. Any decision taken by
the employer shall be without prejudice to the right of the
worker to contest the validity or legality of his dismissal by filing
a complaint with the Regional Branch of the Commission.
Sec. 11. Report of dismissal. The employer shall submit a
monthly report to the Regional Office having jurisdiction over
the place of work at all dismissals effected by him during the
month, specifying therein the names of the dismissed workers,
the reasons for their dismissal, the dates of commencement
and termination of employment, the positions last held by them
and such other information as may be required by the Ministry
for policy guidance and statistical purposes.
Private respondent's argument is without merit as there can be
no question that petitioner was denied his right to due process
since he was never given any notice about his impending
dismissal and the grounds therefor, much less a chance to be
heard. Even as private respondent controverts the applicability
of the mandatory twin requirements of procedural due process
in this particular case, he in effect admits that no notice was
served by him on petitioner. This fact is corroborated by the
certification issued on September 5, 1984 by the Regional
Director for Region VI of the Department of Labor that no
notice of termination of the employment of petitioner was
submitted thereto.
Granting arguendo that there was abandonment in this case, it
nonetheless cannot be denied that notice still had to be served
21
Clearly, therefore, an employee is entitled to reinstatement with
full back wages in the absence of just cause for dismissal. 45
The Court, however, on numerous occasions has tempered the
rigid application of said provision of the Labor Code,
recognizing that in some cases certain events may have
transpired as would militate against the practicability of
granting the relief thereunder provided, and declares that
where there are strained relations between the employer and
the employee, payment of back wages and severance pay may
be awarded instead of reinstatement, 46 and more particularly
when managerial employees are concerned. 47 Thus, where
reinstatement is no longer possible, it is therefore appropriate
that the dismissed employee be given his fair and just share of
what the law accords him.
We note with favor and give our imprimatur to the Solicitor
General's ratiocination, to wit:
As a general rule, an employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority
rights and to his backwages computed from the time his
compensation was withheld up to the time of his reinstatement.
(Morales vs. NLRC, 188 SCRA 295). But in Pacific Cement
Company, Inc. vs. NLRC, 173 SCRA 192, this Honorable Court
held that when it comes to reinstatement, differences should
be made between managers and the ordinary workingmen.
The Court concluded that a company which no longer trusts its
managers cannot operate freely in a competitive and profitable
manner. The NLRC should know the difference between
managers and ordinary workingmen. It cannot imprudently
order the reinstatement of managers with the same ease and
liberality as that of rank and file workers who had been
terminated. Similarly, a reinstatement may not be appropriate
or feasible in case of antipathy or antagonism between the
parties (Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should not be
reinstated as farm administrator of Hacienda Manucao. The
present relationship of petitioner and private respondent (is) so
strained that a harmonious and peaceful employee-employer
relationship is hardly possible.
III.
Finally, petitioner insists on an award of moral
damages, arguing that his dismissal from employment was
attended by bad faith or fraud, or constituted oppression, or
was contrary to morals, good customs or public policy. He
further prays for exemplary damages to serve as a deterrent
against similar acts of unjust dismissal by other employers.
Moral damages, under Article 2217 of the Civil Code, may be
awarded to compensate one for diverse injuries such as
mental anguish, besmirched reputation, wounded feelings, and
social humiliation, provided that such injuries spring from a
wrongful act or omission of the defendant which was the
proximate cause thereof. 50 Exemplary damages, under Article
2229, are imposed by way of example or correction for the
public good, in addition to moral, temperate, liquidated or
compensatory damages. They are not recoverable as a matter
of right, it being left to the court to decide whether or not they
should be adjudicated.
We are well aware of the Court's rulings in a number of cases
in the past allowing recovery of moral damages where the
dismissal of the employee was attended by bad faith or fraud,
or constituted an act oppressive to labor, or was done in a
manner contrary to morals, good customs or public policy, 52
and of exemplary damages if the dismissal was effected in a
wanton, oppressive or malevolent manner. 53 We do not feel,
however, that an award of the damages prayed for in this
petition would be proper even if, seemingly, the facts of the
case justify their allowance. In the aforestated cases of illegal
dismissal where moral and exemplary damages were awarded,
the dismissed employees were genuinely without fault and
22
situations. While we are convinced that we have adjudicated
the legal issues herein squarely on the bases of law and
jurisprudence, sans sentimentality, we are saddened by the
thought that we may have failed to bring about the
reconciliation of the father and son who figured as parties to
this dispute, and that our adherence here to law and duty may
unwittingly contribute to the breaking, instead of the
strengthening, of familial bonds. In fine, neither of the parties
herein actually emerges victorious. It is the Court's earnest
hope, therefore, that with the impartial exposition and extended
explanation of their respective rights in this decision, the
parties may eventually see their way clear to an ultimate
resolution of their differences on more convivial terms.
WHEREFORE, the decision of respondent National Labor
Relations Commission is hereby SET ASIDE. Private
respondent is ORDERED to pay petitioner back wages for a
period not exceeding three (3) years, without qualification or
deduction, 58 and, in lieu of reinstatement, separation pay
equivalent to one (1) month for every year of service, a fraction
of six (6) months being considered as one (1) whole year.
SO ORDERED.
Narvasa, C.J., Padilla, Nocon and Puno, JJ., concur.
SECOND DIVISION
[A. C. No. 5485. March 16, 2005]
ELMER CANOY, complainant, vs. ATTY. JOSE MAX ORTIZ,
respondent.
DECISION
TINGA, J.:
There are no good reasons that would justify a lawyer virtually
abandoning the cause of the client in the midst of litigation
without even informing the client of the fact or cause of
desertion. That the lawyer forsook his legal practice on account
of what might be perceived as a higher calling, election to
public office, does not mitigate the dereliction of professional
duty. Suspension from the practice is the usual penalty, and
there is no reason to deviate from the norm in this case.
A Complaint dated 10 April 2001 was filed with the Office of the
Bar Confidant by Elmer Canoy (Canoy) accusing Atty. Jose
Max Ortiz (Atty. Ortiz) of misconduct and malpractice. It was
alleged that Canoy filed a complaint for illegal dismissal
against his former employer, Coca Cola Bottlers Philippines.
The complaint was filed with the National Labor Relations
Commission (NLRC) Regional Arbitration Board VI in Bacolod
City. Atty. Ortiz appeared as counsel for Canoy in this
proceeding. In 1998, the labor arbiter hearing the complaint
ordered the parties to submit their respective position papers.
Canoy submitted all the necessary documents and records to
Atty. Ortiz for the preparation of the position paper. Thereafter,
he made several unfruitful visits to the office of Atty. Ortiz to
follow-up the progress of the case. After a final visit at the
office of Atty. Ortiz in April of 2000, during which Canoy was
told to come back as his lawyer was not present, Canoy
decided to follow-up the case himself with the NLRC. He was
shocked to learn that his complaint was actually dismissed way
back in 1998, for failure to prosecute, the parties not having
submitted their position papers. The dismissal was without
prejudice. Canoy alleged that Atty. Ortiz had never
communicated to him about the status of the case, much less
the fact that he failed to submit the position paper.
The Comment filed by Atty. Ortiz is the epitome of selfhagiography. He informs the Court that since commencing his
23
Yet, the problem of under-representation of indigent or lowincome clients is just as grievous as that of non-representation.
Admirable as the apparent focus of Atty. Ortizs legal practice
may have been, his particular representation of Canoy in the
latters illegal dismissal case leaves much to be desired.
24
deliver the lawyer, no matter how well-meaning, from the
consequences of negligent acts. It is not enough to say that all
pauper litigants should be assured of legal representation.
They deserve quality representation as well.
2.
The
commercialization of law practice is condemned
in certain canons of professional ethics adopted
by the American Bar Association. "Unprofessional
conduct in an attorney is that which violates the
rules or ethical code of his profession or which is
unbecoming a member of that profession" (Note
14, 7 C.J.S. 743). We censure lawyer David for
having entered and acted upon such void and
unethical agreement. We discountenance his
conduct, not because of the complaint of Tan Tek
Beng (who did not know legal ethics) but
because David should have known better.
DECISION
AQUINO, J.:
The issue in this case is whether disciplinary action should be
taken against lawyer Timoteo A. David (admitted to the bar in
1945) for not giving Tan Tek Beng, a nonlawyer (alleged
missionary of the Seventh Day Adventists), one-half of the
attorneys fees received by David from the clients supplied by
Tan Tek Beng. Their agreement reads:
"December 3, 1970
"Mr. Tan Tek Beng
"Manila
"Dear Mr. Tan:
In compliance with your request, I am now putting into writing
our agreement which must be followed in connection with the
accounts that you will entrust to me for collection. Our terms
and conditions shall be as follows:
SECOND DIVISION
[A.C. No. 1261. December 29, 1983.]
TAN TEK BENG, Complainant, v. TIMOTEO A. DAVID,
Respondent.
Basilio Lanoria for complainant.
Timoteo A. David for and in his own behalf.
SYLLABUS
1.
"1.
On all commission or attorneys fees that we shall
receive from our clients by virtue of the collection that we shall
be able to effect on their accounts, we shall divide fifty-fifty.
Likewise you are entitled to commission, 50/50 from domestic,
inheritance and commercial from our said clients or in any
criminal cases where they are involved.
"2.
I shall not deal directly with our clients without your
consent.
"3.
You shall take care of collecting our fees as well as
advances for expenses for the cases referred to us by our
clients and careful in safeguarding our interest.
"4.
It is understood that legal expenses that we shall
recover from the debtors shall be turned over to our clients.
Other clients who directly or indirectly have been approached
or related (sic) to you as a result of your labor are your clients.
"I hereby pledge in the name of God, our Heavenly Father, that
I will be sincere, honest and fair with you in connection with our
transactions with our clients. Likewise you must be sincere,
honest and fair with me.
25
Very truly yours,
(Sgd.) Illegible
TIMOTEO A. DAVID
"P.S.
I will be responsible for all documents entrusted me by our
clients.
(Sgd.) Initial
"CONFORME to the above and likewise will reciprocate my
sincerity to Atty. David as stated in the last paragraph of this
letter.
(Sgd.) Tan Tek Beng
MR. TAN TEK BENG"
The foregoing was a reiteration of an agreement dated August
5, 1969. Note that in said agreement lawyer David not only
agreed to give one-half of his professional fees to an
intermediary or commission agent but he also bound himself
not to deal directly with the clients.
The business relationship between David and Tan Tek Beng
did not last. There were mutual accusations of doublecross.
For allegedly not living up to the agreement, Tan Tek Beng in
1973 denounced David to Presidential Assistant Ronaldo B.
Zamora, to the Office of Civil Relations at Camp Crame and to
this Court. He did not file any civil action to enforce the
agreement.
In his 1974 comment, David clarified that the partnership was
composed of himself as manager, Tan Tek Beng as assistant
manager and lawyer Pedro Jacinto as president and financier.
When Jacinto became ill and the costs of office maintenance
mounted, David suggested that Tan Tek Beng should also
invest some money or shoulder a part of the business
expenses but Tan Tek Beng refused.
This case was referred to the Solicitor General for
investigation, report and recommendation. Hearings were
scheduled from 1974 to 1981. It was proposed that respondent
should submit a stipulation of facts but that did not materialize
because the scheduled hearings were not held due to the
nonavailability of Tan Tek Beng and his counsel.
On September 16, 1977 Tan Tek Beng died at the Philippine
Union Colleges Compound, Baesa, Caloocan City but it was
only in the manifestation of his counsel dated August 10, 1981
that the Solicitor Generals Office was informed of that fact. A
report on this case dated March 21, 1983 was submitted by the
Solicitor General to this Court.
We hold that the said agreement is void because it was
tantamount to malpractice which is "the practice of soliciting
cases at law for the purpose of gain, either personally or
through paid agents or brokers" Sec. 27, Rule 138, Rules of
Court). Malpractice ordinarily refers to any malfeasance or
dereliction of duty committed by a lawyer. Section 27 gives a
special and technical meaning to the term "malpractice" (Act
No. 2828, amending sec. 21 of Act No. 190).
That meaning is in consonance with the elementary notion that
the practice of law is a profession, not a business. "The lawyer
may not seek or obtain employment by himself or through
others for to do so would be unprofessional" (2 R.C.L. 1097
cited in In re Tagorda, 53 Phil. 37, 42; Malcolm, J., Jayme v.
Bualan, 58 Phil. 422; Arce v. Philippine National Bank, 62 Phil.
569). The commercialization of law practice is condemned in
certain canons of professional ethics adopted by the American
Bar Association:
"34.
Division of Fees. No division of fees for legal
services is proper, except with another lawyer, based upon a
division of service or responsibility."
"35.
Intermediaries. The professional services of a
lawyer should not be controlled or exploited by any law agency,
personal or corporate, which intervenes between client and
lawyer. A lawyers responsibilities and qualifications are
individual. He should avoid all relations which direct the
performance of his duties by or in the interest of such
intermediary. A lawyers relation to his client should be
personal, and the responsibility should be direct to the client. . .
."
"38.
Compensation, Commissions and Rebates. A
lawyer should accept no compensation, commissions, rebates
or other advantages from others without the knowledge and
consent of his client after full disclosure." (Appendix, Malcolm,
Legal Ethics).
We censure lawyer David for having entered and acted upon
such void and unethical agreement. We discountenance his
conduct, not because of the complaint of Tan Tek Beng (who
did not know legal ethics) but because David should have
known better.
"Unprofessional conduct in an attorney is that which violates
the rules or ethical code of his profession or which is
unbecoming a member of that profession" (Note 14, 7 C.J.S.
743).
WHEREFORE, respondent is reprimanded for being guilty of
malpractice. A copy of this decision should be attached to his
record in the Bar Confidants office.
SO ORDERED.
Concepcion, Jr., Guerrero, Abad Santos, De Castro and
Escolin, JJ., concur.
Makasiar (Chairman), J., took no part.
EN BANC
March 23, 1929
In re LUIS B. TAGORDA,
Duran & Lim for respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the
Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a
member of the provincial board of Isabela, admits that previous
to the last general elections he made use of a card written in
Spanish and Ilocano, which, in translation, reads as follows:
LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
Province of Isabela
(NOTE. As notary public, he can execute for you a deed of
sale for the purchase of land as required by the cadastral
office; can renew lost documents of your animals; can make
your application and final requisites for your homestead; and
26
can execute any kind of affidavit. As a lawyer, he can help you
collect your loans although long overdue, as well as any
complaint for or against you. Come or write to him in his town,
Echague, Isabela. He offers free consultation, and is willing to
help and serve the poor.)
The respondent further admits that he is the author of a letter
addressed to a lieutenant of barrio in his home municipality
written in Ilocano, which letter, in translation, reads as follows:
ECHAGUE, ISABELA, September 18, 1928
MY DEAR LIEUTENANT: I would like to inform you of the
approaching date for our induction into office as member of the
Provincial Board that is on the 16th of next month. Before my
induction into office I should be very glad to hear your
suggestions or recommendations for the good of the province
in general and for your barrio in particular. You can come to my
house at any time here in Echague, to submit to me any kind of
suggestion or recommendation as you may desire.
I also inform you that despite my membership in the Board I
will have my residence here in Echague. I will attend the
session of the Board of Ilagan, but will come back home on the
following day here in Echague to live and serve with you as a
lawyer and notary public. Despite my election as member of
the Provincial Board, I will exercise my legal profession as a
lawyer and notary public. In case you cannot see me at home
on any week day, I assure you that you can always find me
there on every Sunday. I also inform you that I will receive any
work regarding preparations of documents of contract of sales
and affidavits to be sworn to before me as notary public even
on Sundays.
I would like you all to be informed of this matter for the reason
that some people are in the belief that my residence as
member of the Board will be in Ilagan and that I would then be
disqualified to exercise my profession as lawyer and as notary
public. Such is not the case and I would make it clear that I am
free to exercise my profession as formerly and that I will have
my residence here in Echague.
I would request you kind favor to transmit this information to
your barrio people in any of your meetings or social gatherings
so that they may be informed of my desire to live and to serve
with you in my capacity as lawyer and notary public. If the
people in your locality have not as yet contracted the services
of other lawyers in connection with the registration of their land
titles, I would be willing to handle the work in court and would
charge only three pesos for every registration.
Yours respectfully,
(Sgd.) LUIS TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the
applicable legal provisions. Section 21 of the Code of Civil
Procedure as originally conceived related to disbarments of
members of the bar. In 1919 at the instigation of the Philippine
Bar Association, said codal section was amended by Act No.
2828 by adding at the end thereof the following: "The practice
of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes
malpractice."
The statute as amended conforms in principle to the Canons of
Professionals Ethics adopted by the American Bar Association
in 1908 and by the Philippine Bar Association in 1917. Canons
27 and 28 of the Code of Ethics provide:
27. ADVERTISING, DIRECT OR INDIRECT. The most
worthy and effective advertisement possible, even for a young
27
Isabela, with whom joined the representative of the AttorneyGeneral in the oral presentation of the case, suggests that the
respondent be only reprimanded. We think that our action
should go further than this if only to reflect our attitude toward
cases of this character of which unfortunately the respondent's
is only one. The commission of offenses of this nature would
amply justify permanent elimination from the bar. But as
mitigating, circumstances working in favor of the respondent
there are, first, his intimation that he was unaware of the
impropriety of his acts, second, his youth and inexperience at
the bar, and, third, his promise not to commit a similar mistake
in the future. A modest period of suspension would seem to fit
the case of the erring attorney. But it should be distinctly
understood that this result is reached in view of the
considerations which have influenced the court to the relatively
lenient in this particular instance and should, therefore, not be
taken as indicating that future convictions of practice of this
kind will not be dealt with by disbarment.
In view of all the circumstances of this case, the judgment of
the court is that the respondent Luis B. Tagorda be and is
hereby suspended from the practice as an attorney-at-law for
the period of one month from April 1, 1929,
FIRST DIVISION
28
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 willful disobedience appearing as attorney for
a party without authority to do so.
It has been repeatedly stressed that the practice of law is not a
business. It is a profession in which duty to public service, not
money, is the primary consideration. Lawyering is not primarily
meant to be a money-making venture, and law advocacy is not
a capital that necessarily yields profits.[13] The gaining of a
livelihood should be a secondary consideration.[14] The duty to
public service and to the administration of justice should be the
primary consideration of lawyers, who must subordinate their
personal interests or what they owe to themselves.[15] The
following elements distinguish the legal profession from a
business:
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 the court to the administration of
justice involving thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of fiduciary;
4. A relation to colleagues at the bar characterized by candor,
fairness, and unwillingness to resort to current business
methods of advertising and encroachment on their practice, or
dealing directly with their clients.
There is no question that respondent committed the acts
complained of. He himself admits that he caused the
publication of the advertisements. While he professes
repentance and begs for the Courts indulgence, his contrition
rings hollow considering the fact that he advertised his legal
services again after he pleaded for compassion and after
claiming that he had no intention to violate the rules. Eight
months after filing his answer, he again advertised his legal
services in the August 14, 2001 issue of the Buy & Sell Free
Ads Newspaper. Ten months later, he caused the same
advertisement to be published in the October 5, 2001 issue of
Buy & Sell. Such acts of respondent are a deliberate and
contemptuous affront on the Courts authority.
What adds to the gravity of respondents acts is that in
advertising himself as a self-styled Annulment of Marriage
Specialist, he wittingly or unwittingly erodes and undermines
not only the stability but also the sanctity of an institution still
considered sacrosanct despite the contemporary climate of
permissiveness in our society. Indeed, in assuring prospective
clients that an annulment may be obtained in four to six
months from the time of the filing of the case,[19] he in fact
encourages people, who might have otherwise been
disinclined and would have refrained from dissolving their
marriage bonds, to do so.
Nonetheless, the solicitation of legal business is not altogether
proscribed. However, for solicitation to be proper, it must be
compatible with the dignity of the legal profession. If it is made
in a modest and decorous manner, it would bring no injury to
the lawyer and to the bar.[20] Thus, the use of simple signs
stating the name or names of the lawyers, the office and
residence address and fields of practice, as well as
advertisement in legal periodicals bearing the same brief data,
are permissible. Even the use of calling cards is now
acceptable. Publication in reputable law lists, in a manner
consistent with the standards of conduct imposed by the
canon, of brief biographical and informative data is likewise
allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:
Such data must not be misleading and may include only a
statement of the lawyers name and the names of his
professional associates; addresses, telephone numbers, cable
29
EN BANC
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.:
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:
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.
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; 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.
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:
... 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. ...
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.
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.
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.
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:
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:
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.
30
Those who, not being members of the partnership, include
their names in the firm name, shall be subject to the liability, of
a partner.
xxx
xxx
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.
"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 privilege, highly
personal and partaking of the nature of a public trust."
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. ...
31
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:
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.
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 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
32
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).
EN BANC
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.
February 7, 1940
of
Tayabas
Hermogenes
Caluag
for
LAUREL, J.:
This is an original petition for the peremptory writ of mandamus
filed by Fortunato N. Suarez with this court, to compel the
respondent judge to reinstate criminal case No. 6426 of the
Court of First Instance of Tayabas so that the case may
proceed to trial in the ordinary course.
It appears on May 9, 1935, Lieutenant Vivencio Orais, of the
Philippine Constabulary, one of the respondents in this case,
filed a complaint under oath with the justice of the peace of
Calauag, Province of Tayabas, charging the petitioner herein,
Fortunato N. Suarez, and one Tomas Ruedas, with sedition
under Article 142 of the Revised Penal Code. The complaint,
upon preliminary examination, was docketed and given due
course. While the said case was pending preliminary
investigation, Lieutenant Orais, in obedience to an order of the
Provincial Commander of Tayabas, moved for the temporary
dismissal of the case. This motion was granted by the justice of
the peace of Calauag on May 20, 1935, and the case thus
dismissed.
At the instance of the petitioner herein, Fortunato N. Suarez,
the deputy provincial fiscal of Tayabas, Perfecto R. Palacio, in
turn charged Lieutenant Vivencio Orais and Damian Jimenez
in the justice of the peace court of Calauag with the crime of
arbitrary detention committed, according to the information
under date of July 8, 1935, as follows:
That on or about the 9th day of May, 1935, in the municipality
of Calauag, Province of Tayabas, P.I., and within the
jurisdiction of this Court, the accused Vivencio Orais being
then a public officer to wit: a second lieutenant of the Philippine
Constabulary duly appointed and qualified as such and
detailed in the Province of Tayabas, without warrant of arrest
and without any legal ground whatsoever, moved by personal
33
grudge and ill-feeling which he entertained against Attorney
Fortunato Suarez, did, then and there willfully, unlawfully and
feloniously arrest and detain said Attorney Fortunato Suarez in
the train while the latter was going to Calauag, and with the
purpose of concealing the illegality of said arrest and detention
of said Fortunato Suarez said accused Vivencio Orais
conniving with the other accused, Damian Jimenez, justice of
the peace of the said municipality, prepared and subscribed
under oath before said Fortunato Suarez with the commission
of the crime of sedition; that the said justice of the peace
Damian Jimenez, conniving with the other accused Vivencio
Orais with the same purpose of concealing the illegality of the
arrest and detention of said Fortunato Suarez, without legal
grounds whatsoever willfully and unlawfully issued an order
declaring that there were merits in the complaint thereby
sanctioning the illegal and unjust arrest and detention of
Fortunato Suarez who was kept in the municipal jail of Calauag
for eight hours.
The justice of the peace of Calauag, being one of the accused,
the preliminary examination was conducted by the justice of
the peace of Lopez, Tayabas, who thereafter bound the
defendants over to the Court of First Instance, where the case
was docketed as criminal case No. 6426. While the case was
pending in the latter court, on petition, of the accused, the
provincial fiscal of Tayabas, Ramon Valdez y Nieto,
reinvestigated the case. After such reinvestigation, he filed on
April 23, 1936, a motion for the dismissal of the case.
Fortunato N. Suarez, the petitioner herein, on May 5, 1936,
asked the court to appoint Attorney Godofredo Reyes as acting
provincial fiscal to handle the prosecution, alleging, among
other things, that the provincial fiscal had no courage to
prosecute the accused. On May 11, 1936, Attorney Godofredo
Reyes entered his appearance as private prosecutor, and
vigorously objected to the motion of dismissal filed by the
provincial fiscal. The Bar Association of Tayabas, through its
president, Emiliano A. Gala, entered its appearance as amicus
curiae and likewise objected to the dismissal of the case. On
August 14, 1936, the then presiding judge of Branch I of the
Court of First Instance of Tayabas, Hon. Ed. Gutierrez David,
after hearing, denied the motion, ruling that there was prima
facie case against the accused. The court, upon petitioner of
the provincial fiscal, designated Deputy Provincial Fiscal
Perfecto R. Palacio to handle the prosecution. But Fiscal
Palacio, being apparently of the same opinion as the provincial
fiscal, declined to proceed, and moved that a practicing
attorney or a competent attorney in the Bureau of Justice be
designated in his stead. Accordingly, the provincial fiscal of
Sorsogon, Jacinto Yamson, at the request of the judge a quo
was assigned by the Department of Justice to handle the
prosecution of the case. Fiscal Yamson after going over the
case likewise entered a nolle prosequi. So, on September 23
1936, he moved for reconsideration of the court's order of
August 14, 1936, denying the motion for dismissal presented
by the provincial fiscal. Attorney Godofredo Reyes again
vigorously objected to this motion on the ground that there was
sufficient proof to warrant the prosecution of the accused. The
case in this state when Judge Emilio Pena was appointed to
the place of Judge Gutierres David. Later, Judge Serviliano
Platon, one of the respondents herein, was appointed to
preside over case No. 6426 corresponded, and the case was
thus transferred to that sala for action. Judge Platon, after
consideration of all the facts and proofs submitted in the case,
considered the court's order of August 14, 1936, and dismissed
the case, holding that the evidence was insufficient to convict
the accused of the crime charged. From this order, the
petitioner herein appealed to this Court and the case was here
docketed as G.R. No. 45431. On June 30, by a closely divided
court, the appeal was dismissed.
The petitioner has now filed with this Court the present petition,
in which, as stated in the opening paragraph of this decision,
we are asked to issue the peremptory writ of mandamus to
34
superiores, dicho Teniente Vivencio Orais
sobreseimiento provisional de su denuncia.
pidio
el
35
Separate Opinions
MORAN, J., dissenting:
The majority decision takes for granted that which precisely is
in issue in this case.
In the morning of May 9, 1935, the accused, Lieutenant
Vivencio Orais, and Attorney Fortunato Suarez were both in
the train on their way to Calauag, Tayabas. In the conversation
which ensued between them, Attorney Suarez made certain
remarks about the abuses of authority committed by the
officers of the Government who conducted the raid against the
Sakdalistas at Sariaya. Upon inquiry of Lieutenant Orais as to
what party Attorney Suarez belonged, and, pressed upon to
state whether or not he was a Sakdalista, Attorney Suarez
replied "may be". On the strength of these facts, Lieutenant
Orais arrested Attorney Suarez for the alleged offense of
uttering seditious words, and conducted him to the municipal
building of Calauag and there lodged him in jail. He filed in the
justice of the peace court of the same municipality an
information against Attorney Suarez for uttering seditious
words, in violation of article 142 of then Revised Penal Code.
On the day following, Lieutenant Orais, acting under the
instruction of his superior, moved for the dismissal of the case.
Thereafter, the deputy provincial fiscal of Tayabas, at the
instance of Fortunato Suarez, filed an information against
Lieutenant Orais and Damian Jimemez, the latter as justice of
the peace of Calauag, Tayabas, for the crime of arbitrary
detention, the information reading as follows:
That on or about the 9th day of May, 1935, in the municipality
of Calauag, Province of Tayabas, P.I., and within the
jurisdiction of this Court, the accused Vivencio Orais being
then a public officer to wit: a second lieutenant of the Philippine
Constabulary duly appointed and qualified as such and
detailed in the province of Tayabas, without any legal ground
whatsoever, moved by personal grudge and ill-feeling which he
entertained against Attorney Fortunato Suarez, did, then and
there willfully, unlawfully and feloniously arrest and detain said
Attorney Fortunato Suarez in the train while the latter was
going to Calauag; and with the purpose of concealing the
illegality of said arrest and detention of said Fortunato Suarez
said accused Vivencio Orais conniving with the other accused
Damian Jimenez, justice of the peace of said municipality,
prepared and subscribed under oath before said justice of the
peace a complaint falsely charging said Fortunato Suarez with
the commission of the crime of sedition; that the said justice of
the peace Damian Jimenez, conniving with the other accused
Vivencio Orais with the same purpose of concealing the
illegality of the arrest and detention of said Fortunato Suarez,
without legal grounds whatsoever willfully and unlawfully
issued an order declaring that there were merits in the
complaint thereby sanctioning the illegal and unjust arrest and
detention of Fortunato Suarez who was kept in the municipal
jail of Calauag for eight hours.
The justice of the peace of Lopez, Tayabas, conducted the
preliminary investigation, and, thereafter, remanded the case to
the Court of First Instance. On April 23, 1936, the provincial
fiscal moved for the dismissal of the case upon the alleged
ground, that after a supposed reinvestigation, the new facts
established therein disclose no sufficient evidence to sustain
the information. The motion was overruled by Judge Gutierrez
David, then presiding the second branch of the Court of First
Instance of Tayabas. Jacinto Yamson, appointed as special
fiscal to take charge of the case, moved for the reconsideration
of the order of Judge Gutierrez David. To this motion, Attorney
Suarez, through counsel, interposed an opposition. Judge
Servillano Platon, then presiding the first branch of the Court of
First Instance of Tayabas, acceded to the motion and
dismissed the information. From this order, Attorney Suarez
appealed, but the appeal was dismissed by this Court on the
36
the complainant when he was still a district attorney in the
Citizen's Legal Assistance Office (predecessor of PAO) of Bian,
Laguna and was assigned as counsel for the complainant's
daughter.
In 1992, the complainant requested him to help her file an
action for damages against the Jovellanoses.[7] Because he
was with the PAO and aware that the complainant was not an
indigent, he declined.[8] Nevertheless, he advised the
complainant to consult Atty. Tim Ungson, a relative who was a
private practitioner.[9] Atty. Ungson, however, did not accept
the complainant's case as she was unable to come up with the
acceptance fee agreed upon.[10] Notwithstanding Atty.
Ungson's refusal, the complainant allegedly remained
adamant. She insisted on suing the Jovellanoses. Afraid that
she might spend the cash on hand, the complainant asked
respondent to keep the P5,000 while she raised the balance of
Atty. Ungson's acceptance fee.
A year later, the complainant requested respondent to issue an
antedated receipt because one of her daughters asked her to
account for the P5,000 she had previously given the
respondent for safekeeping.[12] Because the complainant was
a friend, he agreed and issued a receipt dated July 15, 1992.
EN BANC
-versus-
The CBD noted that the receipt[17] was issued on July 15,
1992 when respondent was still with the PAO.[18] It also noted
that respondent described the complainant as a shrewd
businesswoman and that respondent was a seasoned trial
lawyer. For these reasons, the complainant would not have
accepted a spurious receipt nor would respondent have issued
one. The CBD rejected respondent's claim that he issued the
receipt to accommodate a friend's request.[19] It found
respondent guilty of violating the prohibitions on government
lawyers from accepting private cases and receiving lawyer's
fees other than their salaries. The CBD concluded that
respondent violated the following provisions of the Code of
Professional Responsibility:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
Rule 16.01. A lawyer shall account for all money or property
collected or received for or from a client.
Rule 18.01. A lawyer should not undertake a legal service
which he knows or should know that he is not qualified to
render. However, he may render such service if, with the
consent of his client, he can obtain as collaborating counsel a
lawyer who is competent on the matter.
Thus, it recommended respondent's suspension from the
practice of law for three years and ordered him to immediately
return to the complainant the amount of P5,000 which was
substantiated by the receipt.[21]
The IBP Board of Governors adopted and approved the
findings of the CBD that respondent violated Rules 1.01, 16.01
and 18.01 of the Code of Professional Responsibility. It,
however, modified the CBD's recommendation with regard to
37
the restitution of P5,000 by imposing interest at the legal rate,
reckoned from 1995 or, in case of respondent's failure to return
the total amount, an additional suspension of six months.
THE COURT'S RULING
We adopt the findings of the IBP with modifications.
Lawyers are expected to conduct themselves with honesty and
integrity.[23] More specifically, lawyers in government service
are expected to be more conscientious of their actuations as
they are subject to public scrutiny. They are not only members
of the bar but also public servants who owe utmost fidelity to
public service.
Government employees are expected to devote themselves
completely to public service. For this reason, the private
practice of profession is prohibited. Section 7(b)(2) of the Code
of Ethical Standards for Public Officials and Employees
provides:
Section 7. Prohibited Acts and Transactions. -- In addition to
acts and omissions of public officials and employees now
prescribed in the Constitution and existing laws, the following
constitute prohibited acts and transactions of any public official
and employee and are hereby declared unlawful:
xxx xxx xxx
(b) Outside employment and other activities related thereto,
public officials and employees during their incumbency shall
not:
xxx xxx xxx
(1) Engage in the private practice of profession unless
authorized by the Constitution or law, provided that such
practice will not conflict with their official function.
Thus, lawyers in government service cannot handle private
cases for they are expected to devote themselves full-time to
the work of their respective offices.
In this instance, respondent received P5,000 from the
complainant and issued a receipt on July 15, 1992 while he
was still connected with the PAO. Acceptance of money from a
client
establishes
an
attorney-client
relationship.[26]
Respondent's admission that he accepted money from the
complainant and the receipt confirmed the presence of an
attorney-client relationship between him and the complainant.
Moreover, the receipt showed that he accepted the
complainant's case while he was still a government lawyer.
Respondent clearly violated the prohibition on private practice
of profession
Aggravating respondent's wrongdoing was his receipt of
attorney's fees. The PAO was created for the purpose of
providing free legal assistance to indigent litigants. Section
14(3), Chapter 5, Title III, Book V of the Revised Administrative
Code provides:
Sec. 14. xxx
The PAO shall be the principal law office of the Government in
extending free legal assistance to indigent persons in criminal,
civil, labor, administrative and other quasi-judicial cases.
As a PAO lawyer, respondent should not have accepted
attorney's fees from the complainant as this was inconsistent
with the office's mission.[29] Respondent violated the
prohibition against accepting legal fees other than his salary.
Canon 1 of the Code of Professional Responsibility provides:
CANON
1.
A LAWYER
SHALL
UPHOLD
THE
CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT
PROCESSES.
FOR
THE
LAW
AND
LEGAL
38
39
[15] In its resolution dated July 11, 2001, the Fifth Division of
the Sandiganbayan denied the other PCGGs motion to
disqualify respondent Mendoza.[16] It adopted the resolution of
its Second Division dated April 22, 1991, and observed that the
arguments were the same in substance as the motion to
disqualify filed in Civil Case No. 0005. The PCGG sought
reconsideration of the ruling but its motion was denied in its
resolution dated December 5, 2001.[17]
Hence, the recourse to this Court by the PCGG assailing the
resolutions dated July 11, 2001 and December 5, 2001 of the
Fifth Division of the Sandiganbayan via a petition for certiorari
and prohibition under Rule 65 of the 1997 Rules of Civil
Procedure.[18] The PCGG alleged that the Fifth Division acted
with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed resolutions contending that:
1) Rule 6.03 of the Code of Professional Responsibility
prohibits a former government lawyer from accepting
employment in connection with any matter in which he
intervened; 2) the prohibition in the Rule is not time-bound; 3)
that Central Bank could not waive the objection to respondent
Mendozas appearance on behalf of the PCGG; and 4) the
resolution in Civil Case No. 0005 was interlocutory, thus res
judicata does not apply.
The petition at bar raises procedural and substantive issues of
law. In view, however, of the import and impact of Rule 6.03 of
the Code of Professional Responsibility to the legal profession
and the government, we shall cut our way and forthwith resolve
the substantive issue.
I Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional
Responsibility applies to respondent Mendoza. Again, the
prohibition states: A lawyer shall not, after leaving government
service, accept engagement or employment in connection with
any matter in which he had intervened while in the said
service.
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the
historical lineage of Rule 6.03 of the Code of Professional
Responsibility
In the seventeenth and eighteenth centuries, ethical standards
for lawyers were pervasive in England and other parts of
Europe. The early statements of standards did not resemble
modern codes of conduct. They were not detailed or collected
in one source but surprisingly were comprehensive for their
time. The principal thrust of the standards was directed
towards the litigation conduct of lawyers. It underscored the
central duty of truth and fairness in litigation as superior to any
obligation to the client. The formulations of the litigation duties
were at times intricate, including specific pleading standards,
an obligation to inform the court of falsehoods and a duty to
explore settlement alternatives. Most of the lawyer's other
basic duties -- competency, diligence, loyalty, confidentiality,
reasonable fees and service to the poor -- originated in the
litigation context, but ultimately had broader application to all
aspects of a lawyer's practice.
The forms of lawyer regulation in colonial and early postrevolutionary America did not differ markedly from those in
England. The colonies and early states used oaths, statutes,
judicial oversight, and procedural rules to govern attorney
behavior. The difference from England was in the
pervasiveness and continuity of such regulation. The standards
set in England varied over time, but the variation in early
America was far greater. The American regulation fluctuated
within a single colony and differed from colony to colony. Many
regulations had the effect of setting some standards of
conduct, but the regulation was sporadic, leaving gaps in the
40
leave it for large fees in private practice, where they can exploit
information, contacts, and influence garnered in government
service.[25] These concerns were classified as adverseinterest conflicts and congruent-interest conflicts. Adverseinterest conflicts exist where the matter in which the former
government lawyer represents a client in private practice is
substantially related to a matter that the lawyer dealt with while
employed by the government and the interests of the current
and former are adverse.[26] On the other hand, congruentinterest representation conflicts are unique to government
lawyers and apply primarily to former government lawyers.[27]
For several years, the ABA attempted to correct and update the
canons through new canons, individual amendments and
interpretative opinions. In 1928, the ABA amended one canon
and added thirteen new canons.[28] To deal with problems
peculiar to former government lawyers, Canon 36 was minted
which disqualified them both for adverse-interest conflicts and
congruent-interest representation conflicts.[29] The rationale
for disqualification is rooted in a concern that the government
lawyers largely discretionary actions would be influenced by
the temptation to take action on behalf of the government client
that later could be to the advantage of parties who might later
become private practice clients.[30] Canon 36 provides, viz.:
41
The PCGG imputes grave abuse of discretion on the part of
the Sandiganbayan (Fifth Division) in issuing the assailed
Resolutions dated July 11, 2001 and December 5, 2001
denying the motion to disqualify Atty. Mendoza as counsel for
respondents Tan, et al. The PCGG insists that Atty. Mendoza,
as then Solicitor General, actively intervened in the closure of
GENBANK by advising the Central Bank on how to proceed
with the said banks liquidation and even filing the petition for its
liquidation with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated
March 29, 1977 prepared by certain key officials of the Central
Bank, namely, then Senior Deputy Governor Amado R. Brinas,
then Deputy Governor Jaime C. Laya, then Deputy Governor
and General Counsel Gabriel C. Singson, then Special
Assistant to the Governor Carlota P. Valenzuela, then Asistant
to the Governor Arnulfo B. Aurellano and then Director of
Department of Commercial and Savings Bank Antonio T.
Castro, Jr., where they averred that on March 28, 1977, they
had a conference with the Solicitor General (Atty. Mendoza),
who advised them on how to proceed with the liquidation of
GENBANK. The pertinent portion of the said memorandum
states:
Immediately after said meeting, we had a conference with the
Solicitor General and he advised that the following procedure
should be taken:
1. Management should submit a memorandum to the Monetary
Board reporting that studies and evaluation had been made
since the last examination of the bank as of August 31, 1976
and it is believed that the bank can not be reorganized or
placed in a condition so that it may be permitted to resume
business with safety to its depositors and creditors and the
general public.
2. If the said report is confirmed by the Monetary Board, it shall
order the liquidation of the bank and indicate the manner of its
liquidation and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of
Genbank of the foregoing decision to liquidate the bank and
the liquidation plan approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of
First Instance reciting the proceedings which had been taken
and praying the assistance of the Court in the liquidation of
Genbank.
The PCGG further cites the Minutes No. 13 dated March 29,
1977 of the Monetary Board where it was shown that Atty.
Mendoza was furnished copies of pertinent documents relating
to GENBANK in order to aid him in filing with the court the
petition for assistance in the banks liquidation. The pertinent
portion of the said minutes reads:
The Board decided as follows:
E. To authorize Management to furnish the Solicitor General
with a copy of the subject memorandum of the Director,
Department of Commercial and Savings Bank dated March 29,
1977, together with copies of:
1. Memorandum of the Deputy Governor, Supervision and
Examination Sector, to the Monetary Board, dated March 25,
1977, containing a report on the current situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank
and Trust Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial
and Savings Bank, to the Monetary Board, dated March 24,
1977, submitting, pursuant to Section 29 of R.A. No. 265, as
amended by P.D. No. 1007, a report on the state of insolvency
of Genbank, together with its attachments; and
42
executory, and can be set aside by the court only if there is
convincing proof that the action is plainly arbitrary and made in
bad faith. No restraining order or injunction shall be issued by
the court enjoining the Central Bank from implementing its
actions under this Section and the second paragraph of
Section 34 of this Act, unless there is convincing proof that the
action of the Monetary Board is plainly arbitrary and made in
bad faith and the petitioner or plaintiff files with the clerk or
judge of the court in which the action is pending a bond
executed in favor of the Central Bank, in an amount to be fixed
by the court. The restraining order or injunction shall be
refused or, if granted, shall be dissolved upon filing by the
Central Bank of a bond, which shall be in the form of cash or
Central Bank cashier(s) check, in an amount twice the amount
of the bond of the petitioner or plaintiff conditioned that it will
pay the damages which the petitioner or plaintiff may suffer by
the refusal or the dissolution of the injunction. The provisions of
Rule 58 of the New Rules of Court insofar as they are
applicable and not inconsistent with the provisions of this
Section shall govern the issuance and dissolution of the
restraining order or injunction contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the
inability of a bank or non-bank financial intermediary
performing quasi-banking functions to pay its liabilities as they
fall due in the usual and ordinary course of business. Provided,
however, That this shall not include the inability to pay of an
otherwise non-insolvent bank or non-bank financial
intermediary performing quasi-banking functions caused by
extraordinary demands induced by financial panic commonly
evidenced by a run on the bank or non-bank financial
intermediary performing quasi-banking functions in the banking
or financial community.
The appointment of a conservator under Section 28-A of this
Act or the appointment of a receiver under this Section shall be
vested exclusively with the Monetary Board, the provision of
any law, general or special, to the contrary notwithstanding.
(As amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16,
1981)
We hold that this advice given by respondent Mendoza on the
procedure to liquidate GENBANK is not the matter
contemplated by Rule 6.03 of the Code of Professional
Responsibility. ABA Formal Opinion No. 342 is clear as daylight
in stressing that the drafting, enforcing or interpreting
government or agency procedures, regulations or laws, or
briefing abstract principles of law are acts which do not fall
within the scope of the term matter and cannot disqualify.
Secondly, it can even be conceded for the sake of argument
that the above act of respondent Mendoza falls within the
definition of matter per ABA Formal Opinion No. 342. Be that
as it may, the said act of respondent Mendoza which is the
matter involved in Sp. Proc. No. 107812 is entirely different
from the matter involved in Civil Case No. 0096. Again, the
plain facts speak for themselves. It is given that respondent
Mendoza had nothing to do with the decision of the Central
Bank to liquidate GENBANK. It is also given that he did not
participate in the sale of GENBANK to Allied Bank. The matter
where he got himself involved was in informing Central Bank
on the procedure provided by law to liquidate GENBANK thru
the courts and in filing the necessary petition in Sp. Proc. No.
107812 in the then Court of First Instance. The subject matter
of Sp. Proc. No. 107812, therefore, is not the same nor is
related to but is different from the subject matter in Civil Case
No. 0096. Civil Case No. 0096 involves the sequestration of
the stocks owned by respondents Tan, et al., in Allied Bank on
the alleged ground that they are ill-gotten. The case does not
involve the liquidation of GENBANK. Nor does it involve the
sale of GENBANK to Allied Bank. Whether the shares of stock
of the reorganized Allied Bank are ill-gotten is far removed from
the issue of the dissolution and liquidation of GENBANK.
43
of the Solicitor General is not that of the usual court litigator
protecting the interest of government.
II Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional
Responsibility represents a commendable effort on the part of
the IBP to upgrade the ethics of lawyers in the government
service. As aforestressed, it is a take-off from similar efforts
especially by the ABA which have not been without difficulties.
To date, the legal profession in the United States is still fine
tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of
Professional Responsibility, the Court took account of various
policy considerations to assure that its interpretation and
application to the case at bar will achieve its end without
necessarily prejudicing other values of equal importance. Thus,
the rule was not interpreted to cause a chilling effect on
government recruitment of able legal talent. At present, it is
already difficult for government to match compensation offered
by the private sector and it is unlikely that government will be
able to reverse that situation. The observation is not inaccurate
that the only card that the government may play to recruit
lawyers is have them defer present income in return for the
experience and contacts that can later be exchanged for higher
income in private practice.[45] Rightly, Judge Kaufman warned
that the sacrifice of entering government service would be too
great for most men to endure should ethical rules prevent them
from engaging in the practice of a technical specialty which
they devoted years in acquiring and cause the firm with which
they become associated to be disqualified.[46] Indeed, to make
government service more difficult to exit can only make it less
appealing to enter.
In interpreting Rule 6.03, the Court also cast a harsh eye on its
use as a litigation tactic to harass opposing counsel as well as
deprive his client of competent legal representation. The
danger that the rule will be misused to bludgeon an opposing
counsel is not a mere guesswork. The Court of Appeals for the
District of Columbia has noted the tactical use of motions to
disqualify counsel in order to delay proceedings, deprive the
opposing party of counsel of its choice, and harass and
embarrass the opponent, and observed that the tactic was so
prevalent in large civil cases in recent years as to prompt
frequent judicial and academic commentary.[48] Even the
United States Supreme Court found no quarrel with the Court
of Appeals description of disqualification motions as a
dangerous game.[49] In the case at bar, the new attempt to
disqualify respondent Mendoza is difficult to divine. The
disqualification of respondent Mendoza has long been a dead
issue. It was resuscitated after the lapse of many years and
only after PCGG has lost many legal incidents in the hands of
respondent Mendoza. For a fact, the recycled motion for
disqualification in the case at bar was filed more than four
years after the filing of the petitions for certiorari, prohibition
and injunction with the Supreme Court which were
subsequently remanded to the Sandiganbayan and docketed
as Civil Case Nos. 0096-0099.[50] At the very least, the
circumstances under which the motion to disqualify in the case
at bar were refiled put petitioners motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not
unconcerned with the prejudice to the client which will be
caused by its misapplication. It cannot be doubted that granting
a disqualification motion causes the client to lose not only the
law firm of choice, but probably an individual lawyer in whom
the client has confidence.[51] The client with a disqualified
lawyer must start again often without the benefit of the work
done by the latter.[52] The effects of this prejudice to the right
to choose an effective counsel cannot be overstated for it can
result in denial of due process.
44
employee might be subject to a conflict of loyalties while still in
government service.[61] The example given by the proponents
of this argument is that a lawyer who plans to work for the
company that he or she is currently charged with prosecuting
might be tempted to prosecute less vigorously.[62] In the
cautionary words of the Association of the Bar Committee in
1960: The greatest public risks arising from post employment
conduct may well occur during the period of employment
through the dampening of aggressive administration of
government policies.[63] Prof. Morgan, however, considers this
concern as probably excessive.[64] He opines x x x it is hard to
imagine that a private firm would feel secure hiding someone
who had just been disloyal to his or her last client the
government. Interviews with lawyers consistently confirm that
law firms want the best government lawyers the ones who
were hardest to beat not the least qualified or least vigorous
advocates.[65] But again, this particular concern is a non factor
in the case at bar. There is no charge against respondent
Mendoza that he advised Central Bank on how to liquidate
GENBANK with an eye in later defending respondents Tan, et
al. of Allied Bank. Indeed, he continues defending both the
interests of Central Bank and respondents Tan, et al. in the
above cases.
Likewise, the Court is nudged to consider the need to curtail
what is perceived as the excessive influence of former officials
or their clout.[66] Prof. Morgan again warns against extending
this concern too far. He explains the rationale for his warning,
viz: Much of what appears to be an employees influence may
actually be the power or authority of his or her position, power
that evaporates quickly upon departure from government x x x.
[67] More, he contends that the concern can be demeaning to
those sitting in government. To quote him further: x x x The
idea that, present officials make significant decisions based on
friendship rather than on the merit says more about the present
officials than about their former co-worker friends. It implies a
lack of will or talent, or both, in federal officials that does not
seem justified or intended, and it ignores the possibility that the
officials will tend to disfavor their friends in order to avoid even
the appearance of favoritism.[68]
III The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among
others, that the congruent interest prong of Rule 6.03 of the
Code of Professional Responsibility should be subject to a
prescriptive period. Mr. Justice Tinga opines that the rule
cannot apply retroactively to respondent Mendoza. Obviously,
and rightly so, they are disquieted by the fact that (1) when
respondent Mendoza was the Solicitor General, Rule 6.03 has
not yet adopted by the IBP and approved by this Court, and (2)
the bid to disqualify respondent Mendoza was made after the
lapse of time whose length cannot, by any standard, qualify as
reasonable. At bottom, the point they make relates to the
unfairness of the rule if applied without any prescriptive period
and retroactively, at that. Their concern is legitimate and
deserves to be initially addressed by the IBP and our
Committee on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions
dated July 11, 2001 and December 5, 2001 of the Fifth Division
of the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.
No cost.
SO ORDERED.
45
period of one (1) year from the date of her separation from
government employment.
Atty. Buffe further alleged that the intention of the above
prohibition is to remove the exercise of clout, influence or
privity to insider information, which the incumbent public
employee may use in the private practice of his profession.
However, this situation did not obtain in her case, since she
had already resigned as Clerk of Court of RTC-Branch 18 of
Romblon. She advanced the view that she could engage in the
private practice of law before RTC-Branch 81 of Romblon, so
long as her appearance as legal counsel shall not conflict or
tend to conflict with her former duties as former Clerk of Court
of that Branch.
Then Deputy Court Administrator (now Court Administrator)
Jose P. Perez made the following observations when the
matter was referred to him:
The general intent of the law, as defined in its title is to uphold
the time-honored principle of public office being a public trust.
Section 4 thereof provides for the norms of conduct of public
officials and employees, among others: (a) commitment to
public interest; (b) professionalism; and (c) justness and
sincerity. Of particular significance is the statement under
professionalism that [t]hey [public officials and employees]
shall endeavor to discourage wrong perceptions of their roles
as dispensers or peddlers of undue patronage.
Thus, it may be well to say that the prohibition was intended to
avoid any impropriety or the appearance of impropriety which
may occur in any transaction between the retired government
employee and his former colleagues, subordinates or superiors
brought about by familiarity, moral ascendancy or undue
influence, as the case may be.
Subsequently, in a Minute Resolution dated July 15, 2008, we
resolved to refer this case to the Office of the Chief Attorney
(OCAT) for evaluation, report and recommendation.[3] The
OCAT took the view that:
The premise of the query is erroneous. She interprets Section
7 (b) (2) as a blanket authority for an incumbent clerk of court
to practice law. Clearly, there is a misreading of that provision
of law and further observed:
The confusion apparently lies in the use of the term such
practice after the phrase provided that. It may indeed be
misinterpreted as modifying the phrase engage in the private
practice of their profession should be prefatory sentence that
public officials during their incumbency shall not be
disregarded. However, read in its entirety, such practice may
only refer to practice authorized by the Constitution or law or
the exception to the prohibition against the practice of
profession. The term law was intended by the legislature to
include a memorandum or a circular or an administrative order
issued pursuant to the authority of law.
The interpretation that Section 7 (b) (2) generally prohibits
incumbent public officials and employees from engaging in the
practice of law, which is declared therein a prohibited and
unlawful act, accords with the constitutional policy on
accountability of public officers stated in Article XI of the
Constitution
The policy thus requires public officials and employees to
devote full time public service so that in case of conflict
between personal and public interest, the latter should take
precedence over the former.
With respect to lawyers in the judiciary, the OCAT pointed to
Section 5, Canon 3 of the Code of Conduct for Court
Personnel the rule that deals with outside employment by an
incumbent judicial employee and which limits such outside
employment to one that does not require the practice of
46
As we stated at the outset, this administrative matter confronts
us, not merely with the task of determining how the Court will
respond to the query, both with respect to the substance and
form (as the Court does not give interpretative opinions[9] but
can issue circulars and regulations relating to pleading,
practice and procedure in all courts[10] and in the exercise of
its administrative supervision over all courts and personnel
thereof[11]), but also with the task of responding to admitted
violations of Section 7 (b)(2) of R.A. No. 6713 and to multiple
recourses on the same subject.
After our directive to the Office of the Court Administrator to
issue a circular on the subject of the query for the guidance of
all personnel in the Judiciary, we consider this aspect of the
present administrative matter a finished task, subject only to
confirmatory closure when the OCA reports the completion of
the undertaking to us.
Atty. Buffes admitted appearance, before the very same branch
she served and immediately after her resignation, is a violation
that we cannot close our eyes to and that she cannot run away
from under the cover of the letter-query she filed and her
petition for declaratory relief, whose dismissal she manifested
she would pursue up to our level. We note that at the time she
filed her letter-query (on March 4, 2008), Atty. Buffe had
already appeared before Branch 81 in at least three (3) cases.
The terms of Section 7 (b)(2) of R.A. No. 6713 did not deter
her in any way and her misgivings about the fairness of the law
cannot excuse any resulting violation she committed. In other
words, she took the risk of appearing before her own Branch
and should suffer the consequences of the risk she took. Nor
can she hide behind the two declaratory relief petitions she
filed, both of which were dismissed, and her intent to elevate
the dismissal to this Court for resolution. The first, filed before
the RTC, Branch 54, Manila, was dismissed on July 23, 2008
because the court declined to exercise the power to declare
rights as prayed for in the petition, as any decision that may be
rendered will be inutile and will not generally terminate the
uncertainty or controversy.[12] The second, filed with the RTC,
Branch 17, Manila, was dismissed for being an inappropriate
remedy after the dismissal ordered by the RTC, Branch 54,
Manila, on December 4, 2008.[13] Under these circumstances,
we see nothing to deter us from ruling on Atty. Buffes actions,
as no actual court case other than the present administrative
case, is now actually pending on the issue she raised. On the
contrary, we see from Atty. Buffes recourse to this Court and
the filing of the two declaratory petitions the intent to shop for a
favorable answer to her query. We shall duly consider this
circumstance in our action on the case.
A last matter to consider before we proceed to the merits of
Atty. Buffes actions relates to possible objections on procedural
due process grounds, as we have not made any formal
directive to Atty. Buffe to explain why she should not be
penalized for her appearance before Branch 81 soon after her
resignation from that Branch. The essence of due process is
the grant of the opportunity to be heard; what it abhors is the
lack of the opportunity to be heard.[14] The records of this
case show that Atty. Buffe has been amply heard with respect
to her actions. She was notified, and she even responded to
our November 11, 2008 directive for the Executive Judge of the
RTC of Romblon to report on Atty. Buffes appearances before
Branch 81; she expressly manifested that these appearances
were part of the Branch records. Her legal positions on these
appearances have also been expressed before this Court; first,
in her original letter-query, and subsequently, in her
Manifestation. Thus, no due process consideration needs to
deter us from considering the legal consequences of her
appearances in her previous Branch within a year from her
resignation.
The Governing Law: Section 7 of R.A. No. 6713
47
perform those acts which are characteristics of the profession;
to practice law is to give notice or render any kind of service,
which device or service requires the use in any degree of legal
knowledge or skill. Under both provisions, a common objective
is to avoid any conflict of interest on the part of the employee
who may wittingly or unwittingly use confidential information
acquired from his employment, or use his or her familiarity with
court personnel still with the previous office.
After separation from the service, Section 5, Canon 3 of the
Code of Conduct for Court Personnel ceases to apply as it
applies specifically to incumbents, but Section 7 and its
subsection (b)(2) of R.A. No. 6713 continue to apply to the
extent discussed above. Atty. Buffes situation falls under
Section 7.
Atty. Buffes Situation
A distinctive feature of this administrative matter is Atty. Buffes
admission that she immediately engaged in private practice of
law within the one-year period of prohibition stated in Section
7(b)(2) of R.A. No. 6713. We find it noteworthy, too, that she is
aware of this provision and only objects to its application to her
situation; she perceives it to be unfair that she cannot practice
before her old office Branch 81 for a year immediately after
resignation, as she believes that her only limitation is in
matters where a conflict of interest exists between her
appearance as counsel and her former duties as Clerk of
Court. She believes that Section 7 (b)(2) gives preferential
treatment to incumbent public officials and employees as
against those already separated from government
employment.
Atty. Buffe apparently misreads the law. As the OCAT aptly
stated, she interprets Section 7 (b)(2) as a blanket authority for
an incumbent clerk of court to practice law. We reiterate what
we have explained above, that the general rule under Section
7 (b)(2) is to bar public officials and employees from the
practice of their professions; it is unlawful under this general
rule for clerks of court to practice their profession. By way of
exception, they can practice their profession if the Constitution
or the law allows them, but no conflict of interest must exist
between their current duties and the practice of their
profession. As we also mentioned above, no chance exists for
lawyers in the Judiciary to practice their profession, as they are
in fact expressly prohibited by Section 5, Canon 3 of the Code
of Conduct for Court Personnel from doing so. Under both the
general rule and the exceptions, therefore, Atty. Buffes basic
premise is misplaced.
As we discussed above, a clerk of court can already engage in
the practice of law immediately after her separation from the
service and without any period limitation that applies to other
prohibitions under Section 7 of R.A. No. 6713. The clerk of
courts limitation is that she cannot practice her profession
within one year before the office where he or she used to work
with. In a comparison between a resigned, retired or separated
official or employee, on the one hand, and an incumbent official
or employee, on the other, the former has the advantage
because the limitation is only with respect to the office he or
she used to work with and only for a period of one year. The
incumbent cannot practice at all, save only where specifically
allowed by the Constitution and the law and only in areas
where no conflict of interests exists. This analysis again
disproves Atty. Buffes basic premises.
A worrisome aspect of Atty. Buffes approach to Section 7 (b)(2)
is her awareness of the law and her readiness to risk its
violation because of the unfairness she perceives in the law.
We find it disturbing that she first violated the law before
making any inquiry. She also justifies her position by referring
to the practice of other government lawyers known to her who,
after separation from their judicial employment, immediately
engaged in the private practice of law and appeared as private
48
provided the basis for the determination of respondents'
administrative liability, without need for further inquiry into the
matter under the principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy,
that no evidentiary hearing is required before the respondent
may be disciplined for professional misconduct already
established by the facts on record.
We applied the principle of res ipsa loquitur once more in In re:
Wenceslao Laureta where we punished a lawyer for grave
professional misconduct solely based on his answer to a showcause order for contempt and without going into a trial-type
hearing. We ruled then that due process is satisfied as long as
the opportunity to be heard is given to the person to be
disciplined.
Likewise in Zaldivar v. Gonzales, the respondent was
disciplined and punished for contempt for his slurs regarding
the Courts alleged partiality, incompetence and lack of integrity
on the basis of his answer in a show-cause order for contempt.
The Court took note that the respondent did not deny making
the negative imputations against the Court through the media
and even acknowledged the correctness of his degrading
statements. Through a per curiam decision, we justified
imposing upon him the penalty of suspension in the following
tenor:
The power to punish for contempt of court does not exhaust
the scope of disciplinary authority of the Court over lawyers.
The disciplinary authority of the Court over members of the Bar
is but corollary to the Court's exclusive power of admission to
the Bar. A lawyer is not merely a professional but also an
officer of the court and as such, he is called upon to share in
the task and responsibility of dispensing justice and resolving
disputes in society. Any act on his part which visibly tends to
obstruct, pervert, or impede and degrade the administration of
justice constitutes both professional misconduct calling for the
exercise of disciplinary action against him, and contumacious
conduct warranting application of the contempt power.
These cases clearly show that the absence of any formal
charge against and/or formal investigation of an errant lawyer
do not preclude the Court from immediately exercising its
disciplining authority, as long as the errant lawyer or judge has
been given the opportunity to be heard. As we stated earlier,
Atty. Buffe has been afforded the opportunity to be heard on
the present matter through her letter-query and Manifestation
filed before this Court.
A member of the bar may be penalized, even disbarred or
suspended from his office as an attorney, for violation of the
lawyers oath and/or for breach of the ethics of the legal
profession as embodied in the Code of Professional
Responsibility. The appropriate penalty on an errant lawyer
depends on the exercise of sound judicial discretion based on
the surrounding facts.
In this case, we cannot discern any mitigating factors we can
apply, save OCATs observation that Atty Buffes letter-query
may really reflect a misapprehension of the parameters of the
prohibition on the practice of the law profession under Section
7 (b) (2) of R.A. No. 6713. Ignorance of the law, however, is no
excuse, particularly on a matter as sensitive as practice of the
legal profession soon after ones separation from the service. If
Atty. Buffe is correct in the examples she cited, it is time to ring
the bell and to blow the whistle signaling that we cannot allow
this practice to continue.
As we observed earlier, Atty. Buffe had no qualms about the
simultaneous use of various fora in expressing her misgivings
about the perceived unfairness of Section 7 of R.A. 6713. She
formally lodged a query with the Office of the Court
Administrator, and soon after filed her successive petitions for
AND
EDUARDO
A.
PANES,
JR.,
49
On January 18, 2007, the Dela Pea board also adopted
Resolution No. 009[5] appointing respondents Atty. Rodolfo U.
Viajar, Jr. and Atty. Leonard Buentipo Mann as private
collaborating counsels for all cases of KWD and its Board of
Directors, under the direct supervision and control of Atty.
Ignes.
Subsequently, on February 9, 2007, Attys. Ignes, Viajar, Jr. and
Mann filed SCA Case No. 50-24 for Indirect Contempt of
Court[6] entitled Koronadal Water District (KWD), represented
herein by its General Manager, Eleanor Pimentel-Gomba v.
Efren V. Cabucay, et al. On February 19, 2007, they also filed
Civil Case No. 1799 for Injunction and Damages[7] entitled
Koronadal Water District (KWD), represented herein by its
General Manager, & Eleanor Pimentel-Gomba v. Rey J.
Vargas. On March 9, 2007, KWD and Eleanor PimentelGomba filed a supplemental complaint[8] in Civil Case No.
1799.
Meanwhile, in Contract Review No. 079[9] dated February 16,
2007, the OGCC had approved the retainership contract of
Atty. Benjamin B. Cuanan as new legal counsel of KWD and
stated that the retainership contract of Atty. Ignes had expired
on January 14, 2007.
In its letter[10] dated March 2, 2007, the OGCC also
addressed Eleanor P. Gombas insistence that the retainership
contract of Atty. Ignes will expire on April 17, 2007. The OGCC
stated that as stipulated, the KWD or OGCC may terminate the
contract anytime without need of judicial action; that OGCCs
grant of authority to private counsels is a privilege
withdrawable under justifiable circumstances; and that the
termination of Atty. Igness contract was justified by the fact that
the Local Water Utilities Administration had confirmed the
Yaphockun board as the new Board of Directors of KWD and
that said board had terminated Atty. Igness services and
requested to hire another counsel.
Alleging that respondents acted as counsel for KWD without
legal authority, complainants filed a disbarment complaint
against the respondents before the IBP Commission on Bar
Discipline (CBD), docketed as CBD Case No. 07-1953.
Complainants alleged that respondents filed SCA Case No. 5024 and Civil Case No. 1799 as counsels of KWD without legal
authority. They likewise stated in their position paper[12] that
Atty. Ignes continued representing KWD even after the OGCC
had confirmed the expiration of Atty. Igness contract in its April
4, 2007 manifestation/motion[13] in Civil Case No. 1796-25
entitled Koronadal Water District (KWD), represented herein by
its General Manager, Eleanor Pimentel Gomba v. Supreme
Investigative and Security Agency, represented by its Manager
Efren Y. Cabucay.
In his defense,[14] Atty. Mann stated that he and his fellow
respondents can validly represent KWD until April 17, 2007
since Atty. Ignes was not notified of his contracts pretermination. Atty. Mann also stated that he stopped
representing KWD after April 17, 2007 in deference to the
OGCCs stand. Attys. Ignes, Viajar, Jr. and Nadua echoed Atty.
Manns defense.
On March 10, 2008, complainants filed a manifestation[16]
before the IBP with the following attachments: (1) the transcript
of stenographic notes taken on January 28, 2008 in Civil Case
No. 1799, and (2) the notice of appeal dated February 28,
2008 of the January 7, 2008 Order dismissing Civil Case No.
1799. Aforesaid transcript showed that Atty. Ignes appeared as
counsel of KWD and Ms. Gomba. He also signed the notice of
appeal.
In his report and recommendation,[17] the
Commissioner recommended that the charge
Ignes be dismissed for lack of merit. The
Commissioner held that Atty. Ignes had valid
Investigating
against Atty.
Investigating
authority as
counsel of KWD for one (1) year, from April 2006 to April 2007,
and he was unaware of the pre-termination of his contract
when he filed pleadings in SCA Case No. 50-24 and Civil Case
No. 1799 in February and March 2007.
As to Attys. Viajar, Jr., Mann and Nadua, the Investigating
Commissioner recommended that they be fined P5,000 each
for appearing as attorneys for a party without authority to do
so, per Santayana v. Alampay.[18] The Investigating
Commissioner found that they failed to secure the conformity
of the OGCC and COA to their engagement as collaborating
counsels for KWD.
As aforesaid, the IBP Board of Governors reversed the
recommendation of the Investigating Commissioner and
dismissed the case for lack of merit.
Hence, the present petition.
Complainants contend that the IBP Board of Governors erred
in dismissing the case because respondents had no authority
from the OGCC to file the complaints and appear as counsels
of KWD in Civil Case No. 1799, SCA Case No. 50-24 and Civil
Case No. 1796-25. Complainants point out that the
retainership contract of Atty. Ignes had expired on January 14,
2007; that the Notice of Appeal filed by Atty. Ignes, et al. in Civil
Case No. 1799 was denied per Order dated April 8, 2008 of the
Regional Trial Court (RTC) for being filed by one not duly
authorized by law; and that the authority of Attys. Viajar, Jr. and
Mann as collaborating counsels is infirm since Resolution No.
009 of the Dela Pea board lacks the conformity of the OGCC.
As a consequence, according to complainants, respondents
are liable for willfully appearing as attorneys for a party to a
case without authority to do so.
In his comment, Atty. Ignes admits that their authority to
represent KWD had expired on April 17, 2007, but he and his
fellow respondents stopped representing KWD after that date.
He submits that they are not guilty of appearing as counsels
without authority. In their comment, Attys. Viajar, Jr. and Nadua
propound similar arguments. They also say that their fees were
paid from private funds of the members of the Dela Pea board
and KWD personnel who might need legal representation, not
from the public coffers of KWD. In his own comment, Atty.
Mann submits similar arguments.
After a careful study of the case and the parties submissions,
we find respondents administratively liable.
At the outset, we note that the parties do not dispute the need
for OGCC and COA conformity if a GOCC hires private
lawyers. Nonetheless, we shall briefly recall the legal basis of
this rule. Under Section 10, Chapter 3, Title III, Book IV of the
Administrative Code of 1987, it is the OGCC which shall act as
the principal law office of all GOCCs. And Section 3 of
Memorandum Circular No. 9,[19] issued by President Estrada
on August 27, 1998, enjoins GOCCs to refrain from hiring
private lawyers or law firms to handle their cases and legal
matters. But the same Section 3 provides that in exceptional
cases, the written conformity and acquiescence of the Solicitor
General or the Government Corporate Counsel, as the case
may be, and the written concurrence of the COA shall first be
secured before the hiring or employment of a private lawyer or
law firm. In Phividec Industrial Authority v. Capitol Steel
Corporation,[20] we listed three (3) indispensable conditions
before a GOCC can hire a private lawyer: (1) private counsel
can only be hired in exceptional cases; (2) the GOCC must first
secure the written conformity and acquiescence of the Solicitor
General or the Government Corporate Counsel, as the case
may be; and (3) the written concurrence of the COA must also
be secured.
In the case of respondents, do they have valid authority to
appear as counsels of KWD?
50
We find that Attys. Nadua, Viajar, Jr. and Mann had no valid
authority to appear as collaborating counsels of KWD in SCA
Case No. 50-24 and Civil Case No. 1799. Nothing in the
records shows that Atty. Nadua was engaged by KWD as
collaborating counsel. While the 4th Whereas Clause of
Resolution No. 009 partly states that he and Atty. Ignes
presently stand as KWD legal counsels, there is no proof that
the OGCC and COA approved Atty. Naduas engagement as
legal counsel or collaborating counsel. Insofar as Attys. Viajar,
Jr. and Mann are concerned, their appointment as
collaborating counsels of KWD under Resolution No. 009 has
no approval from the OGCC and COA.
Attys. Nadua, Viajar, Jr. and Mann are in the same situation as
the private counsel of Phividec Industrial Authority in Phividec.
In that case, we also ruled that said private counsel of Phividec
Industrial Authority, a GOCC, had no authority to file the
expropriation case in Phividecs behalf considering that the
requirements set by Memorandum Circular No. 9 were not
complied with.[21] Thus, Resolution No. 009 did not grant
authority to Attys. Nadua, Viajar, Jr. and Mann to act as
collaborating counsels of KWD. That Atty. Ignes was not
notified of the pre-termination of his own retainership contract
cannot validate an inexistent authority of Attys. Nadua, Viajar,
Jr. and Mann as collaborating counsels.
In the case of Atty. Ignes, he also appeared as counsel of KWD
without authority, after his authority as its counsel had expired.
True, the OGCC and COA approved his retainership contract
for one (1) year effective April 17, 2006. But even if we assume
as true that he was not notified of the pre-termination of his
contract, the records still disprove his claim that he stopped
representing KWD after April 17, 2007.
Atty. Ignes offered no rebuttal to the verified manifestation of
complainants filed with the IBP on March 10, 2008. Attached
therein was the transcript of stenographic notes[22] in Civil
Case No. 1799 taken on January 28, 2008 when Atty. Ignes
argued the extremely urgent motion for the immediate return of
the facilities of the KWD to the KWD Arellano Office. The RTC
was compelled to ask him why he seeks the return of KWD
properties if he filed the motion as counsel of Ms. Gomba.
When the RTC noted that KWD does not appear to be a party
to the motion, Atty. Ignes said that KWD is represented by Ms.
Gomba per the caption of the case. Atty. Ignes also manifested
that they will file a motion for reconsideration of the orders
dismissing Civil Case No. 1799 and Civil Case No. 1793. The
RTC ruled that it will not accept any motion for reconsideration
in behalf of KWD unless he is authorized by the OGCC, but
Atty. Ignes later filed a notice of appeal[23] dated February 28,
2008, in Civil Case No. 1799. As the notice of appeal signed by
Atty. Ignes was filed by one (1) not duly authorized by law, the
RTC, in its Order[24] dated April 8, 2008, denied due course to
said notice of appeal.
As we see it, Atty. Ignes portrayed that his appearance on
January 28, 2008 was merely as counsel of Ms. Gomba. He
indicted himself, however, when he said that Ms. Gomba
represents KWD per the case title. In fact, the extremely urgent
motion sought the return of the facilities of KWD to its Arellano
Office. Clearly, Atty. Ignes filed and argued a motion with the
interest of KWD in mind. The notice of appeal in Civil Case No.
1799 further validates that Atty. Ignes still appeared as counsel
of KWD after his authority as counsel had expired. This fact
was not lost on the RTC in denying due course to the notice of
appeal.
Now did respondents willfully appear as counsels of KWD
without authority?
The following circumstances convince us that, indeed,
respondents willfully and deliberately appeared as counsels of
KWD without authority. One, respondents have admitted the
existence of Memorandum Circular No. 9 and professed that
51
IBP Board of Governors in CBD Case No. 07-1953 is
REVERSED and SET ASIDE.
Respondents Attys. Michael A. Ignes, Leonard Buentipo Mann,
Rodolfo U. Viajar, Jr., and John Rangal D. Nadua are found
GUILTY of willfully appearing as attorneys for a party to a case
without authority to do so and FINED P5,000 each, payable to
this Court within ten (10) days from notice of this Resolution.
They are STERNLY WARNED that a similar offense in the
future will be dealt with more severely.
Let a copy of this Resolution be attached to respondents
personal records in the Office of the Bar Confidant.
SO ORDERED.
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It is also alleged that The Legal Clinic published an article
entitled Rx for Legal Problems in Star Week of Philippine Star
wherein Nogales stated that they The Legal Clinic is composed
of specialists that can take care of a clients problem no matter
how complicated it is even if it is as complicated as the Sharon
Cuneta-Gabby Concepcion situation. He said that he and his
staff of lawyers, who, like doctors, are specialists in various
fields, can take care of it. The Legal Clinic, Inc. has specialists
in taxation and criminal law, medico-legal problems, labor,
litigation and family law. These specialists are backed up by a
battery of paralegals, counselors and attorneys.
As for its advertisement, Nogales said it should be allowed in
view of the jurisprudence in the US which now allows it (John
Bates vs The State Bar of Arizona). And that besides, the
advertisement is merely making known to the public the
services that The Legal Clinic offers.
ISSUE: Whether or not The Legal Clinic is engaged in the
practice of law; whether such is allowed; whether or not its
advertisement may be allowed.
HELD: Yes, The Legal Clinic is engaged in the practice of law
however, such practice is not allowed. The Legal Clinic is
composed mainly of paralegals. The services it offered include
various legal problems wherein a client may avail of legal
services from simple documentation to complex litigation and
corporate undertakings. Most of these services are
undoubtedly beyond the domain of paralegals, but rather, are
exclusive functions of lawyers engaged in the practice of law.
Under Philippine jurisdiction however, the services being
offered by Legal Clinic which constitute practice of law cannot
be performed by paralegals. Only a person duly admitted as a
member of the bar and who is in good and regular standing, is
entitled to practice law.
Anent the issue on the validity of the questioned
advertisements, the Code of Professional Responsibility
provides that a lawyer in making known his legal services shall
use only true, honest, fair, dignified and objective information
or statement of facts. The standards of the legal profession
condemn the lawyers advertisement of his talents. A lawyer
cannot, without violating the ethics of his profession, advertise
his talents or skills as in a manner similar to a merchant
advertising his goods. Further, the advertisements of Legal
Clinic seem to promote divorce, secret marriage, bigamous
marriage, and other circumventions of law which their experts
can facilitate. Such is highly reprehensible.
The Supreme Court also noted which forms of advertisement
are allowed. The best advertising possible for a lawyer is a
well-merited reputation for professional capacity and fidelity to
trust, which must be earned as the outcome of character and
conduct. Good and efficient service to a client as well as to the
community has a way of publicizing itself and catching public
attention. That publicity is a normal by-product of effective
service which is right and proper. A good and reputable lawyer
needs no artificial stimulus to generate it and to magnify his
success. He easily sees the difference between a normal byproduct of able service and the unwholesome result of
propaganda.
The Supreme Court also enumerated the
following as allowed forms of advertisement:
1.
2.
3.
Listing in a phone directory but without designation as
to his specialization