Legal Ethics

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
(PCGG), petitioner,
vs. SANDIGANBAYAN
(Fifth Division)

This
case
is prima
impressiones and it is weighted
with significance for it concerns on
one hand, the efforts of the Bar to
upgrade the ethics of lawyers in
government service and on the
other, its effect on the right of
government to recruit competent
counsel to defend its interests.
In 1976, General Bank and
Trust
Company
(GENBANK)
encountered financial difficulties.
GENBANK
had
extended
considerable financial support to
Filcapital Development Corporation
causing
it
to
incur
daily
overdrawings
on
its
current
account with the Central Bank.[1] It
was later found by the Central
Bank that GENBANK had approved
various loans to directors, officers,
stockholders and related interests
totaling P172.3 million, of which
59% was classified as doubtful
and P0.505 million as uncollectible.
[2]
As a bailout, the Central Bank
extended emergency loans to
GENBANK which reached a
total of P310 million.[3] Despite
the mega loans, GENBANK failed to
recover from its financial woes. On
March 25, 1977, the Central Bank
issued a resolution declaring
GENBANK insolvent and unable
to resume business with safety to
its depositors, creditors and the
general public, and ordering its
liquidation.[4] A public
bidding
of GENBANKs assets was held
from March 26 to 28, 1977, wherein
the Lucio Tan group submitted the
winning
bid.
[5]
Subsequently, former Solicitor
General Estelito P. Mendoza
filed a petition with the then
Court of First Instance praying for
the assistance and supervision of
the court in GENBANKs liquidation
as mandated by Section 29 of
Republic Act No. 265.

In February 1986, the EDSA I

revolution toppled the Marcos
government. One of the first acts of
President Corazon C. Aquino was to
establish
the
Presidential
Commission on Good Government
(PCGG) to recover the alleged illgotten wealth of former President
Ferdinand Marcos, his family and
his cronies. Pursuant to this
mandate, the PCGG, on July 17,
1987,
filed
with
the Sandiganbayan a complaint
for reversion,
reconveyance,
restitution,
accounting
and
damages against
respondents
Lucio Tan, Carmen Khao Tan,
Florencio T. Santos, Natividad P.
Santos, Domingo Chua, Tan Hui
Nee, Mariano Tan Eng Lian, Estate
of Benito Tan Kee Hiong, Florencio
N. Santos, Jr., Harry C. Tan, Tan Eng
Chan, Chung Poe Kee, Mariano
Khoo, Manuel Khoo, Miguel Khoo,
Jaime Khoo, Elizabeth Khoo, Celso
Ranola, William T. Wong, Ernesto B.
Lim, Benjamin T. Albacita, Willy Co,
Allied Banking Corporation (Allied
Bank), Allied Leasing and Finance
Corporation, Asia Brewery, Inc.,
Basic Holdings Corp., Foremost
Farms,
Inc.,
Fortune
Tobacco
Corporation,
Grandspan
Development
Corp.,
Himmel
Industries,
Iris
Holdings
and
Development Corp., Jewel Holdings,
Inc., Manufacturing Services and
Trade Corp., Maranaw Hotels and
Resort Corp., Northern Tobacco
Redrying Plant, Progressive Farms,
Inc., Shareholdings, Inc., Sipalay
Trading Corp., Virgo Holdings &
Development Corp., (collectively
referred to herein as respondents
Tan, et
al.),
then
President
Ferdinand E. Marcos, Imelda R.
Marcos, Panfilo O. Domingo, Cesar
Zalamea, Don Ferry and Gregorio
Licaros. The case was docketed
as Civil Case No. 0005 of the
Second
Division
of
the Sandiganbayan.[6] In
connection therewith, the PCGG
issued
several writs
of
sequestration on
properties
allegedly acquired by the abovenamed
persons
by
taking
advantage
of
their
close
relationship and influence with
former President Marcos.
1

Legal Ethics

Respondents Tan, et al. repaired

to this Court and filed petitions
for certiorari,
prohibition
and
injunction to nullify, among others,
the writs of sequestration issued by
the PCGG.[7] After the filing of the
parties comments, this Court
referred
the
cases
to
the Sandiganbayan for
proper
disposition. These cases were
docketed as Civil Case Nos.
0096-0099. In all these cases,
respondents
Tan, et
al.
were
represented by their counsel,
former Solicitor General Estelito P.
Mendoza, who has then resumed
his private practice of law.
On February 5, 1991, the
PCGG
filed motions
to
disqualify respondent Mendoza as
counsel for respondents Tan, et al.
with
the Second Division
of
the Sandiganbayan in Civil Case
Nos. 0005[8] and 0096-0099.[9] The
motions alleged that respondent
Mendoza,
as
then
Solicitor
[10]
General
and counsel to Central
Bank, actively intervened in the
liquidation of GENBANK, which was
subsequently
acquired
by
respondents Tan, et al. and became
Allied
Banking
Corporation.
Respondent
Mendoza
allegedly
intervened in the acquisition of
GENBANK by respondents Tan, et
al. when, in his capacity as then
Solicitor General, he advised the
Central
Banks
officials
on
the procedure to
bring
about
GENBANKs
liquidation
and
appeared as counsel for the Central
Bank in connection with its petition
for assistance in the liquidation of
GENBANK which he filed with the
Court of First Instance (now
Regional Trial Court) of Manila and
was
docketed
as
Special
Proceeding
No.
107812.
The
motions to disqualify invoked Rule
6.03
of
the
Code
of
Professional
Responsibility. Rule
6.03 prohibits
former
government
lawyers from
accepting
engagement
or
employment in connection with any
matter in which he had intervened
while in said service.

On April 22, 1991 the Second

Division
of
the Sandiganbayan issued
a
resolution denying PCGGs motion
to disqualify respondent Mendoza
in Civil Case No. 0005.[11] It found
that the PCGG failed to prove the
existence of an inconsistency
between respondent Mendozas
former function as Solicitor General
and his present employment as
counsel of the Lucio Tan group. It
noted that respondent Mendoza did
not take a position adverse to that
taken on behalf of the Central Bank
during his term as Solicitor
General.[12] It further ruled that
respondent Mendozas appearance
as counsel for respondents Tan, et
al. was beyond the one-year
prohibited period under Section
7(b) of Republic Act No. 6713 since
he ceased to be Solicitor General in
the year 1986. The said section
prohibits a former public official or
employee from practicing his
profession in connection with any
matter before the office he used to
be with within one year from his
resignation,
retirement
or
separation from public office.
[13]
The PCGG did not seek any
reconsideration of the ruling.[14]
It appears that Civil Case Nos.
0096-0099 were transferred from
the Sandiganbayans Second
Division to the Fifth Division.[15] In
its resolution dated July 11, 2001,
the
Fifth
Division
of
the Sandiganbayan denied
the
other PCGGs motion to disqualify
respondent
Mendoza.
[16]
It adopted the resolution of
its Second Division dated April
22, 1991, and observed that the
arguments were the same in
substance as the motion to
disqualify filed in Civil Case No.
0005.
The
PCGG
sought
reconsideration of the ruling but its
motion was denied in its resolution
dated December 5, 2001.[17]
Hence, the recourse to this
Court by the PCGG assailing the
resolutions dated July 11, 2001 and
December 5, 2001 of the Fifth
Division of
the Sandiganbayan via a petition
for certiorari and prohibition under
2

Legal Ethics

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
[19]
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 intervenedwhile 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 substantive standards.
Only three of the traditional core
duties can be fairly characterized
as pervasive in the formal, positive
law of the colonial and postrevolutionary period: the duties of
litigation fairness, competency and
reasonable fees.[20]
The nineteenth century has
been termed the dark ages of
legal ethics in the United States.
By mid-century, American legal
reformers were filling the void in
two ways. First, David Dudley Field,
the drafter of the highly influential
New York Field Code, introduced a
3

Legal Ethics

new set of uniform standards of

conduct for lawyers. This concise
statement of eight statutory duties
became law in several states in the
second half of the nineteenth
century. At the same time, legal
educators, such as David Hoffman
and George Sharswood, and many
other lawyers were working to flesh
out the broad outline of a lawyer's
duties. These reformers wrote
about
legal
ethics
in
unprecedented detail and thus
brought
a
new
level
of
understanding to a lawyer's duties.
A
number
of
mid-nineteenth
century laws and statutes, other
than the Field Code, governed
lawyer behavior. A few forms of
colonial regulations e.g., the do no
falsehood oath and the deceit
prohibitions -- persisted in some
states. Procedural law continued to
directly, or indirectly, limit an
attorney's litigation behavior. The
developing
law
of
agency
recognized
basic
duties
of
competence,
loyalty
and
safeguarding of client property.
Evidence law started to recognize
with
less
equivocation
the
attorney-client privilege and its
underlying theory of confidentiality.
Thus, all of the core duties, with
the likely exception of service to
the poor, had some basis in formal
law. Yet, as in the colonial and early
post-revolutionary periods, these
standards were isolated and did not
provide
a
comprehensive
statement of a lawyer's duties. The
reformers, by contrast, were more
comprehensive in their discussion
of a lawyer's duties, and they
actually ushered a new era in
American legal ethics.[21]
Toward
the end
of
the
nineteenth century, a new form
of ethical standards began to guide
lawyers in their practice the bar
association code of legal ethics.
The bar codes were detailed ethical
standards formulated by lawyers
for lawyers. They combined the two
primary sources of ethical guidance
from the nineteenth century. Like
the academic discourses, the bar
association codes gave detail to
the statutory statements of duty
and the oaths of office. Unlike the

academic lectures, however, the

bar association codes retained
some of the official imprimatur of
the statutes and oaths. Over time,
the bar association codes became
extremely popular that states
adopted them as binding rules of
law. Critical to the development of
the new codes was the reemergence of bar associations
themselves. Local bar associations
formed sporadically during the
colonial period, but they disbanded
by the early nineteenth century. In
the late nineteenth century, bar
associations began to form again,
picking up where their colonial
predecessors had left off. Many of
the new bar associations, most
notably the Alabama State Bar
Association and the American Bar
Association, assumed on the task
of drafting substantive standards of
conduct for their members.[22]
In 1887, Alabama became the
first state with a comprehensive
bar association code of ethics. The
1887 Alabama Code of Ethics was
the model for several states codes,
and it was the foundation for the
American Bar Association's (ABA)
1908 Canons of Ethics.[23]
In 1917, the Philippine
Bar found that the oath and duties
of a lawyer were insufficient to
attain the full measure of public
respect
to
which
the
legal
profession was entitled. In that
year, the Philippine Bar Association
adopted as its own, Canons 1 to 32
of the ABA Canons of Professional
Ethics.[24]
As early as 1924, some ABA
members have questioned the
form and function of the canons.
Among
their
concerns
was
the revolving door or the process
by which lawyers and others
temporarily
enter
government
service from private life and then
leave it for large fees in private
practice, where they can exploit
information,
contacts,
and
influence garnered in government
service.[25] These concerns were
classified
as adverse-interest
conflicts and congruent-interest
conflicts. Adverse-interest
4

Legal Ethics

conflicts exist where the matter in

which the former government
lawyer represents a client in
private practice is substantially
related to a matter that the lawyer
dealt with while employed by the
government and the interests of
the current and former are
adverse.[26] On
the
other
hand, congruent-interest
representation
conflicts are
unique to government lawyers and
apply
primarily
to
former
[27]
government lawyers. For several
years, the ABA attempted to
correct and update the canons
through new canons, individual
amendments and interpretative
opinions. In
1928, the ABA
amended one canon and added
thirteen new canons.[28] To deal
with problems peculiar to former
government
lawyers, Canon
36 was minted which disqualified
them both for adverse-interest
conflicts and congruent-interest
representation
conflicts.[29] The
rationale for disqualification is
rooted in a concern that the
government
lawyers
largely
discretionary actions would be
influenced by the temptation to
take action on behalf of the
government client that later could
be to the advantage of parties who
might
later
become
private
practice
clients.[30] Canon
36 provides, viz.:
36.
Retirement
from
judicial
position or public employment
A lawyer should not accept
employment as an advocate in any
matter upon the merits of which he
has previously acted in a judicial
capacity.
A lawyer, having once held
public office or having been in
the public employ should not,
after his retirement, accept
employment in connection with
any matter he has investigated
or passed upon while in such
office or employ.
Over the next thirty years, the
ABA continued to amend many of
the canons and added Canons 46

and 47 in 1933
respectively.[31]

and

1937,

In 1946, the Philippine Bar

Association again adopted as its
own Canons 33 to 47 of the ABA
Canons of Professional Ethics.[32]
By
the middle
of
the
twentieth century, there was
growing consensus that the ABA
Canons needed more meaningful
revision.
In
1964,
the
ABA
President-elect Lewis Powell asked
for the creation of a committee to
study
the
adequacy
and
effectiveness of the ABA Canons.
The committee recommended that
the canons needed substantial
revision, in part because the ABA
Canons
failed
to
distinguish
between the inspirational and the
proscriptive
and
were
thus
unsuccessful in enforcement. The
legal profession in the United
States
likewise
observed
that Canon 36 of the ABA Canons
of Professional Ethics resulted in
unnecessary
disqualification
of
lawyers for negligible participation
in matters during their employment
with the government.
The unfairness of Canon 36
compelled ABA to replace it in
the 1969 ABA Model Code of
Professional
Responsibility.
[33]
The basic ethical principles in
the
Code
of
Professional
Responsibility were supplemented
by Disciplinary Rules that defined
minimum rules of conduct to which
the lawyer must adhere.[34] In the
case of Canon 9, DR 9-101(b)
[35]
became
the
applicable
supplementary norm. The drafting
committee
reformulated
the
canons into the Model Code of
Professional Responsibility, and, in
August of 1969, the ABA House of
Delegates approved the Model
Code.[36]
Despite these amendments,
legal
practitioners
remained
unsatisfied with the results and
indefinite standards set forth by DR
9-101(b) and the Model Code of
Professional Responsibility as a
whole. Thus, in August 1983,
the ABA adopted new Model
5

Legal Ethics

Rules
of
Professional
Responsibility. The Model Rules
used the restatement format,
where the conduct standards were
set-out in rules, with comments
following each rule. The new
format was intended to give better
guidance
and
clarity
for
enforcement because the only
enforceable standards were the
black letter Rules. The Model Rules
eliminated
the
broad
canons
altogether
and
reduced
the
emphasis on narrative discussion,
by placing comments after the
rules
and
limiting
comment
discussion to the content of the
black letter rules. The Model Rules
made a number of substantive
improvements particularly with
regard to conflicts of interests.[37] In
particular, the ABA did away
with Canon 9, citing the
hopeless dependence of the
concept of impropriety on the
subjective views of anxious
clients as well as the norms
indefinite nature.[38]

phrase investigated and passed

upon with the word intervened. It
is, therefore, properly applicable to
both adverse-interest
conflicts and congruent-interest
conflicts.

In
cadence
with
these
changes, the Integrated Bar of
the Philippines (IBP) adopted a
proposed Code of Professional
Responsibility in 1980 which it
submitted to this Court for
approval. The Code was drafted to
reflect
the
local
customs,
traditions, and practices of the bar
and
to
conform
with
new
realities. On June 21, 1988, this
Court promulgated the Code of
Professional
Responsibility.
[39]
Rule 6.03 of the Code of
Professional Responsibility deals
particularly
with
former
government
lawyers,
and
provides, viz.:

The key to unlock Rule 6.03 lies

in
comprehending
first,
the
meaning of matter referred to in
the rule and, second, the metes
and
bounds
of
the intervention made
by
the
former government lawyer on the
matter.
The
American
Bar
Association in its Formal Opinion
342, defined matter as any
discrete, isolatable act as well as
identifiable transaction or conduct
involving a particular situation and
specific party, and not merely an
act of drafting, enforcing or
interpreting government or agency
procedures, regulations or laws, or
briefing abstract principles of law.

Rule 6.03 A lawyer shall not, after

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

Firstly, it is critical that we

pinpoint the matter which was the
subject
of
intervention
by
respondent Mendoza while he was
the Solicitor General. The PCGG
relates the following acts of
respondent
Mendoza
as
constituting the matter where he
intervened
as
a
Solicitor
[40]
General, viz:

Rule 6.03 of the Code of

Professional Responsibility retained
the general structure of paragraph
2, Canon 36 of the Canons of
Professional
Ethics
but replaced the
expansive

The case at bar does not

involve the adverse interest
aspect of Rule 6.03. Respondent
Mendoza, it is conceded, has no
adverse interest problem when he
acted as Solicitor General in Sp.
Proc. No. 107812 and later as
counsel of respondents Tan, et
al. in Civil Case No. 0005 and Civil
Case
Nos.
0096-0099
before
the Sandiganbayan.
Nonetheless, there remains the
issue of whether there exists
a congruent-interest
conflict sufficient
to
disqualify
respondent
Mendoza
from
representing respondents Tan, et
al.
I.B. The congruent
aspect of Rule 6.03

interest

The PCGGs Case for Atty. Mendozas

Disqualification
6

Legal Ethics

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:

Legal Ethics

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;

the CFI of Manila. In fine, the Court

should resolve whether his act of
advising the Central Bank on
the legal procedure to liquidate
GENBANK is included within the
concept
of matter under
Rule
6.03. The
procedure
of
liquidation is given in black and
white in Republic Act No. 265,
section 29, viz:

2. Aide Memoire on
the
Antecedent
Facts Re: General
Bank and Trust
Co., dated March
23, 1977;

SEC.
29. Proceedings
upon insolvency. Whenever,
upon examination by the
head of the appropriate
supervising or examining
department
or
his
examiners or agents into
the condition of any bank or
non-bank
financial
intermediary
performing
quasi-banking functions, it
shall be disclosed that the
condition of the same is one
of insolvency, or that its
continuance in business
would involve probable loss
to
its
depositors
or
creditors, it shall be the
duty of the department
head concerned forthwith,
in writing, to inform the
Monetary Board of the facts,
and the Board may, upon
finding the statements of
the department head to be
true, forbid the institution to
do
business
in
the
Philippines
and
shall
designate an official of the
Central Bank or a person of
recognized competence in
banking or finance, as
receiver
to
immediately
take charge of its assets
and
liabilities,
as
expeditiously as possible
collect and gather all the
assets and administer the
same for the benefit of its
creditors, exercising all the
powers necessary for these
purposes including, but not
limited to, bringing suits
and foreclosing mortgages
in the name of the bank or
non-bank
financial
intermediary
performing
quasi-banking functions.

3. Memorandum of
the
Director,
Department
of
Commercial and
Savings Bank, to
the
Monetary
Board,
dated
March 24, 1977,
submitting,
pursuant
to
Section 29 of R.A.
No.
265,
as
amended by P.D.
No. 1007, a repot
on the state of
insolvency
of
Genbank,
together with its
attachments; and
4.

Such
other
documents
as
may
be
necessary
or
needed by the
Solicitor General
for his use in
then CFI-praying
the assistance of
the Court in the
liquidation
of
Genbank.

Beyond
doubt,
therefore,
the matter or
the
act
of
respondent Mendoza as Solicitor
General involved in the case at bar
is advising the Central Bank,
on how to proceed with the said
banks liquidation and even filing
the petition for its liquidation with

The provision reads in part:

Legal Ethics

...
If the Monetary Board
shall determine and confirm
within the said period that
the
bank
or
non-bank
financial
intermediary
performing
quasi-banking
functions is insolvent or
cannot resume business
with safety to its depositors,
creditors and the general
public, it shall, if the public
interest requires, order its
liquidation,
indicate
the
manner of its liquidation
and approve a liquidation
plan. The Central Bank
shall,
by
the
Solicitor
General, file a petition in the
Court of First Instance
reciting the proceedings
which have been taken and
praying the assistance of
the court in the liquidation
of such institution. The court
shall have jurisdiction in the
same
proceedings
to
adjudicate disputed claims
against the bank or nonbank financial intermediary
performing
quasi-banking
functions
and
enforce
individual liabilities of the
stockholders and do all that
is necessary to preserve the
assets of such institution
and to implement the
liquidation plan approved by
the Monetary Board. The
Monetary
Board
shall
designate an official of the
Central Bank, or a person of
recognized competence in
banking or finance, as
liquidator who shall take
over the functions of the
receiver
previously
appointed by the Monetary
Board under this Section.
The liquidator shall, with all
convenient speed, convert
the assets of the banking
institution
or
non-bank
financial
intermediary
performing
quasi-banking
functions to money or sell,
assign or otherwise dispose
of the same to creditors and
other
parties
for
the
purpose of paying the debts

of such institution and he

may, in the name of the
bank or non-bank financial
intermediary
performing
quasi-banking
functions,
institute such actions as
may be necessary in the
appropriate court to collect
and recover accounts and
assets of such institution.
The provisions of any
law
to
the
contrary
notwithstanding, the actions
of the Monetary Board
under this Section and the
second paragraph of Section
34 of this Act shall be final
and executory, and can be
set aside by the court only if
there is convincing proof
that the action is plainly
arbitrary and made in bad
faith. No restraining order or
injunction shall be issued by
the court enjoining the
Central
Bank
from
implementing its actions
under this Section and the
second paragraph of Section
34 of this Act, unless there
is convincing proof that the
action of the Monetary
Board is plainly arbitrary
and made in bad faith and
the petitioner or plaintiff
files with the clerk or judge
of the court in which the
action is pending a bond
executed in favor of the
Central Bank, in an amount
to be fixed by the court. The
restraining
order
or
injunction shall be refused
or, if granted, shall be
dissolved upon filing by the
Central Bank of a bond,
which shall be in the form of
cash
or
Central
Bank
cashier(s) check, in an
amount twice the amount of
the bond of the petitioner or
plaintiff conditioned that it
will pay the damages which
the petitioner or plaintiff
may suffer by the refusal or
the
dissolution
of
the
injunction. The provisions of
Rule 58 of the New Rules of
Court insofar as they are
applicable
and
not
9

Legal Ethics

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 illgotten is far removed from the
issue of the dissolution and
liquidation of GENBANK. GENBANK
was liquidated by the Central Bank
due, among others, to the alleged
banking malpractices of its owners
and officers. In other words, the
legality of the liquidation of
GENBANK is not an issue in the
sequestration cases. Indeed, the
jurisdiction of the PCGG does not
include
the
dissolution
and
liquidation of banks. It goes without
saying that Code 6.03 of the Code
of
Professional
Responsibility cannot apply to
10

Legal Ethics

respondent Mendoza because

his alleged intervention while a
Solicitor General in Sp. Proc.
No. 107812 is an intervention
on a matter different from the
matter involved in Civil Case
No. 0096.
Thirdly, we now slide to the
metes
and
bounds
of
the intervention contemplated by
Rule 6.03. Intervene means, viz.:
1: to enter or appear as an
irrelevant or extraneous feature or
circumstance . . . 2: to occur, fall,
or come in between points of time
or events . . . 3: to come in or
between by way of hindrance or
modification: INTERPOSE . . . 4: to
occur or lie between two things
(Paris, where the same city lay on
both sides of an intervening river . .
.)[41]
On the other hand, intervention is
defined as:
1: the act or fact of
intervening:
INTERPOSITION;
2:
interference that may affect
the interests of others.[42]
There
are,
therefore, two possible
interpretations
of
the
word
intervene.
Under
the first
interpretation, intervene includes
participation in a proceeding even
if the intervention is irrelevant or
has no effect or little influence.
[43]
Under
the second
interpretation, intervene only
includes an act of a person who
has the power to influence the
subject proceedings.[44] We hold
that this second meaning is more
appropriate to give to the word
intervention under Rule 6.03 of the
Code of Professional Responsibility
in light of its history. The evils
sought to be remedied by the Rule
do not exist where the government
lawyer does an act which can be
considered as innocuous such as x
x
x
drafting,
enforcing
or
interpreting government or agency
procedures, regulations or laws, or
briefing abstract principles of law.

In fine, the intervention cannot

be
insubstantial
and
insignificant. Originally, Canon 36
provided that a former government
lawyer should not, after his
retirement, accept employment in
connection with any matter which
he has investigated or passed
upon while in such office or
employ. As aforediscussed, the
broad sweep of the phrase which
he has investigated or passed upon
resulted in unjust disqualification of
former government lawyers. The
1969 Code restricted its latitude,
hence, in DR 9-101(b), the
prohibition extended only to a
matter in which the lawyer, while in
the
government
service,
had substantial
responsibility. The 1983 Model
Rules further constricted the reach
of the rule. MR 1.11(a) provides
that a lawyer shall not represent a
private client in connection with a
matter
in
which
the
lawyer participated
personally
and substantially as a public
officer or employee.
It is, however, alleged that the
intervention
of
respondent
Mendoza in Sp. Proc. No. 107812 is
significant and substantial. We
disagree. For one, the petition in
the
special
proceedings
is
an initiatory pleading, hence, it
has to be signed by respondent
Mendoza as the then sitting
Solicitor General. For another,
the record
is
arid as
to
the actual participation
of
respondent
Mendoza
in
the
subsequent proceedings. Indeed,
the case was in slumberville for a
long number of years. None of the
parties pushed for its early
termination. Moreover, we note
that the petition filed merely seeks
the assistance of the court in the
liquidation
of
GENBANK.
The
principal role of the court in this
type of proceedings is to assist the
Central
Bank
in
determining claims
of
creditors against the GENBANK.
The role of the court is not strictly
as a court of justice but as an
agent to assist the Central Bank in
determining the claims of creditors.
In
such
a
proceeding,
the
11

Legal Ethics

participation of the Office of the

Solicitor General is not that of the
usual court litigator protecting the
interest of government.
II
Balancing
Considerations

Policy

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
[46]
disqualified.
Indeed, to make
government service more difficult

to exit can only make it less

appealing to enter.[47]
In interpreting Rule 6.03, the
Court also cast a harsh eye on its
use as a litigation tactic to
harass opposing counsel as well
as deprive his client of competent
legal representation. The danger
that the rule will be misused to
bludgeon an opposing counsel is
not a mere guesswork. The Court of
Appeals for the District of Columbia
has noted the tactical use of
motions to disqualify counsel in
order to delay proceedings, deprive
the opposing party of counsel of its
choice, and harass and embarrass
the opponent, and observed that
the tactic was so prevalent in large
civil cases in recent years as to
prompt
frequent
judicial
and
academic commentary.[48] Even the
United States Supreme Court found
no quarrel with the Court of
Appeals
description
of
disqualification
motions
as
a
[49]
dangerous game.
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
12

Legal Ethics

of
choice,
but
probably
an
individual lawyer in whom the
client has confidence.[51] The client
with a disqualified lawyer must
start again often without the
benefit of the work done by the
latter.[52] The
effects
of
this
prejudice to the right to choose an
effective
counsel
cannot
be
overstated for it can result in denial
of due process.
The Court has to consider
also the possible adverse effect
of a truncated reading of the
rule
on
the
official
independence of lawyers in the
government service. According
to Prof. Morgan: An individual who
has the security of knowing he or
she can find private employment
upon leaving the government is
free to work vigorously, challenge
official positions when he or she
believes them to be in error, and
resist illegal demands by superiors.
An employee who lacks this
assurance of private employment
does not enjoy such freedom.[53] He
adds: Any system that affects the
right to take a new job affects the
ability to quit the old job and any
limit on the ability to quit inhibits
official independence.[54] The case
at bar involves the position of
Solicitor General, the office once
occupied by respondent Mendoza.
It cannot be overly stressed
that the position
of
Solicitor
General should be endowed
with
a
great
degree
of
independence.
It
is
this
independence that allows the
Solicitor General to recommend
acquittal of the innocent; it is this
independence that gives him the
right to refuse to defend officials
who violate the trust of their office.
Any undue dimunition of the
independence of the Solicitor
General will have a corrosive effect
on the rule of law.
No
less
significant
a
consideration
is
the
deprivation
of
the
former
government lawyer of the
freedom
to
exercise
his
profession. Given the current
state of our law, the disqualification
of a former government lawyer

may extend to all members of his

law firm.[55] Former government
lawyers stand in danger of
becoming the lepers of the legal
profession.
It is, however, proffered that
the mischief sought to be remedied
by Rule 6.03 of the Code of
Professional
Responsibility
is
the possible
appearance
of
impropriety and loss of public
confidence in government. But as
well observed, the accuracy of
gauging public perceptions is a
highly speculative exercise at
best[56] which can lead to untoward
results.[57] No less than Judge
Kaufman doubts that the lessening
of restrictions as to former
government attorneys will have
any detrimental effect on that free
flow of information between the
government-client and its attorneys
which the canons seek to protect.
[58]
Notably, the appearance of
impropriety theory has been
rejected in the 1983 ABA Model
Rules
of
Professional
[59]
Conduct
and some courts have
abandoned per se disqualification
based on Canons 4 and 9 when an
actual conflict of interest exists,
and demand an evaluation of the
interests
of
the
defendant,
government, the witnesses in the
case, and the public.[60]
It is also submitted that the
Court should apply Rule 6.03 in all
its strictness for it correctly
disfavors
lawyers
who switch
sides. It is claimed that switching
sides carries the danger that
former
government
employee
may compromise
confidential
official
information in
the
process. But this concern does not
cast a shadow in the case at bar.
As afore-discussed, the act of
respondent Mendoza in informing
the Central Bank on the procedure
how to liquidate GENBANK is
a different
matter from
the
subject matter of Civil Case No.
0005
which
is
about
the
sequestration of the shares of
respondents Tan, et al., in Allied
Bank. Consequently, the danger
that confidential official information
might be divulged is nil, if not
13

Legal Ethics

inexistent. To be sure, there are no

inconsistent sides to be bothered
about in the case at bar. For there
is no question that in lawyering for
respondents Tan, et al., respondent
Mendoza is not working against the
interest of Central Bank. On the
contrary, he is indirectly defending
the validity of the action of Central
Bank in liquidating GENBANK and
selling it later to Allied Bank. Their
interests coincide instead of
colliding. It is for this reason that
Central Bank offered no objection
to the lawyering of respondent
Mendoza in Civil Case No. 0005 in
defense of respondents Tan, et
al. There is no switching of
sides for no two sides are
involved.
It is also urged that the Court
should consider that Rule 6.03 is
intended to avoid conflict of
loyalties, i.e., that a government
employee might be subject to a
conflict of loyalties while still in
government
service.[61] The
example given by the proponents
of this argument is that a lawyer
who plans to work for the company
that he or she is currently charged
with prosecuting might be tempted
to prosecute less vigorously.[62] In
the cautionary words of the
Association of the Bar Committee
in 1960: The greatest public risks
arising from post employment
conduct may well occur during the
period of employment through the
dampening
of
aggressive
administration
of
government
policies.[63] Prof. Morgan, however,
considers this concern as probably
excessive.[64] He opines x x x it is
hard to imagine that a private firm
would feel secure hiding someone
who had just been disloyal to his or
her last client the government.
Interviews
with
lawyers
consistently confirm that law firms
want the best government lawyers
the ones who were hardest to beat
not the least qualified or least
vigorous
advocates.[65] But
again, this particular concern is
a non factor in the case at bar.
There is no charge against
respondent
Mendoza
that
he
advised Central Bank on how to
liquidate GENBANK with an eye in

later defending respondents Tan, et

al. of Allied Bank. Indeed, he
continues defending both the
interests of Central Bank and
respondents Tan, et al. in the above
cases.
Likewise, the Court is nudged to
consider the need to curtail what is
perceived
as
the excessive
influence of former officials or
their clout.[66] Prof. Morgan again
warns
against extending
this
concern too far. He explains the
rationale for his warning, viz: Much
of what appears to be an
employees influence may actually
be the power or authority of his or
her position, power that evaporates
quickly
upon
departure
from
government x x x.[67] More, he
contends that the concern can
be demeaning to those sitting in
government. To quote him further:
x x x The idea that, present officials
make significant decisions based
on friendship rather than on the
merit says more about the present
officials than about their former coworker 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
14

Legal Ethics

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.

15

Legal Ethics

RAUL M.
FRANCIA, Complainant,
vs.
ATTY. REYNALDO V.
ABDON, Respondent.

In a verified complaint1 dated

December 4, 2007 filed before
the Integrated Bar of the
Philippines, Committee on Bar
Discipline (IBP-CBD), Raul M.
Francia (complainant) prayed
for
the
disbarment
and
imposition
of
other
disciplinary
sanctions
on
Labor Arbiter (LA) Reynaldo V.
Abdon
(respondent)
for
violation of the lawyer's oath
and the Code of Professional
Responsibility.
On February 4, 2008, the
respondent
filed
his
2
Answer vehemently denying
the
allegations
in
the
complaint.
On August 13, 2008, both
parties
appeared
at
the
mandatory conference. Upon
its termination, the parties
were required to submit their
respective position papers
afterwhich the case was
submitted for resolution.
In his position paper,3 the
complainant alleged that in
November 2006, he had a
meeting with the respondent
at the Makati Cinema Square
to seek his assistance with
respect to a pending case in
the Court of Appeals (CA)
involving the labor union of
Nueva
Ecija
III
Electric
Cooperative (NEECO III). The
said case was docketed as CAG.R. SP No. 96096 and raffled
to the 6th Division then

chaired by Justice Rodrigo V.

Cosico, with Justices Edgardo
Sundiam (Justice Sundiam)
and Celia Librea-Leagogo as
members. The respondent,
who is a LA at the National
Labor Relations Commission,
San Fernando, Pampanga, told
the complainant that he can
facilitate, expedite and ensure
the release of a favorable
decision,
particularly
the
award
of
assets
and
management of NEECO III to
the union. To bolster his
representation, he told him
that the same regional office
where he was assigned had
earlier rendered a decision in
favor of the labor union and
against
the
National
Electrification
Administration.4 With
the
respondents assurance, the
complainant yielded.
In
December
2006,
the
complainant
met
the
respondent to discuss their
plan and timetable in securing
a favorable ruling from the
CA. The respondent told him
that in order to facilitate the
release of such favorable
decision, the union must
produce
the
amount
of P1,000,000.00,
a
considerable portion of which
is
intended
for
Justice
Sundiam, the ponente of the
case and the two member
justices of the division, while a
fraction thereof is allotted to
his costs.5
Shortly
thereafter,
the
complainant
met
the
respondent again and handed
him
the
amount
of P350,000.00,which
was
raised out of the individual
contributions of the members
16

Legal Ethics

of the union, as partial

payment for the agreed
amount and undertook to pay
the balance as soon as the
union is finally allowed to
manage and operate the
electric cooperative. In turn,
the respondent assured him
that a favorableruling will be
rendered by the CA in no
time.6
A week before Christmas of
the
same
year,
the
complainant made several
follow-ups
with
the
respondent about the status
of the decision. In response to
his
inquiries,
the
respondentwould
tell
him
that: (1) the decision is being
routed for signature of the
members of the three-man CA
division; (2) the lady justice
was the only one left to sign;
and (3) the lady justice went
to a Christmas party and was
not able to sign the decision.
Ultimately,
the
promised
favorable decision before the
end of that year was not
issued by the CA, with no
explanation
from
the
7
respondent.
On January 4, 2007, the union
was advised by their counsel
that the CA has already
rendered a decision on their
case and the same was
adverse
to
them.
This
infuriated the union members
who then turned to the
complainant and demanded
for
the
return
of
the
350,000.00 that they raised
as respondents facilitation
fee. The respondent promised
to return the money but asked
for a few weeks to do so. After
two weeks, the respondent
turned over the amount
of P100,000.00, representing

the unspent portion of the

money given to him and
promised to pay the balance
of P250,000.00 as soon as
possible.
The
respondent,
however, reneged on his
promise and would not even
advise the complainant of the
reason for his failure to return
the
money.
Thus,
the
complainant was constrained
to give his car to the union to
settle the remaining balance
which the respondent failed to
return.8
To support his claims, the
complainant submitted the
following pieces of evidence:
(1) a transcript of the
exchange of text messages
between
him
and
the
9
respondent; (2) affidavit of
Butch Pena (Pena),10 officer of
the Association of Genuine
Labor Organization (AGLO);
(3) a transcript of the text
message of a certain Paulino
Manongsong, confirming the
respondents
mobile
11
number; (4) copy of the CA
decision in CA-G.R. SP No.
96096;12 and (5) affidavit of
Shirley Demillo (Demillo).13
For his part, the respondent
denied that he made any
representation
to
the
complainant; that he had the
capacity to facilitate the
release of a favorable decision
in the CA; and that he
received money in exchange
therefor. He admitted that he
had a chance meeting with
the complainant at the Makati
Cinema Square in December
2006. Since they have not
seen each other for a long
time, they had a short
conversation
over
snacks
upon
the
complainants
invitation. In the course of
17

Legal Ethics

their
conversation,
the
complainant asked if he knew
of the case involving the
union of the NEECO III. He told
him that he was not familiar
with the details but knew that
the same is already pending
execution before the office of
LA
Mariano
Bactin.
The
complainant told him that the
properties of NEECO III were
sold at public auction but the
union members were yet to
obtain the proceeds because
of a temporary restraining
order issued by the CA. He
inquired if he knew anyone
from the CA who can help the
union members in their case
as he was assisting them in
following up their case. The
respondent answered in the
negative but told him that he
can refer him to his former
client, a certain Jaime "Jimmy"
Vistan (Vistan), who may be
able to help him. At that very
moment, he called Vistan
using his mobile phone and
relayed
to
him
the
complainants
predicament.
After giving Vistan a brief
background of the case, he
handed the mobile phone to
the
complainant,
who
expounded on the details.
After their conversation,the
complainant told him that he
will be meeting Vistan on the
following day and asked him if
he could accompany him. He
politely declined and just gave
him Vistans mobile number
so
that
they
can
directlycommunicate
with
14
each other.
Sometime
thereafter,
he
received a call from Vistan
who told him that he was
given P350,000.00
as
facilitation fee. After their

conversation, he never heard

from Vistan again.15
In January 2007, he received a
text from the complainant,
asking him to call him through
his landline. Over the phone,
the complainant told him
about his arrangement with
Vistan insecuring a favorable
decision for the union but the
latter
failed
to
do
his
undertaking. The complainant
blamed him for the misfortune
and even suspected that he
was in connivance with Vistan,
which
he
denied.
The
complainant then asked for
his help to recover the money
he gave to Vistan.16
When their efforts to locate
Vistan failed, the complainant
turned to him again and asked
him to return the money
because the union threatened
him with physical harm. The
respondent,
however,
maintained
his
lack
of
involvement
in
their
transaction.
Still,
the
complainant insisted and even
threatened he would cause
him miseryand pain should he
not
return
the
money.
Offended by the innuendoof
collusion in the complainants
language,
the
respondent
yelled at him and told him,
"Ano
bang
malaking
kasalanan ko para takutin mo
ako ng ganyan?" before he
hang up the phone. He never
heard from the complainant
thereafter.
Then,
on
December 18, 2007, he was
surprised toreceive a copy of
the complaint for disbarment
filed by the complainant
against him.17
In
the
Report
and
18
Recommendation of the IBP18

Legal Ethics

CBD dated September 30,

2008,
the
Investigating
Commissioner recommended
for the dismissal of the
complaint, holding that there
is
no
proof
that
the
respondent received money
from the complainant.19 The
report reads, as follows:
The case is dismissible.
There is no proof that
respondent Reynaldo Abdon
received any amount of
money from complainant Raul
Francia.
While
it
is
true
that
respondentReynaldo
Abdon
admitted that he introduced
the complainant to Jaime
Vistan, there is no proof that
the respondent received any
money from the complainant
Raul Francia or from Jaime
Vistan.
The attached Annex "A" of the
complaint is of no moment. As
pointed out by the respondent
it is easy to manipulate and
fabricate text messages. That
complainant
could
have
bought the said SIM card
bearing the said telephone
number and texted his other
cellphone numbers to make it
appear
that
such
text
messages came from the
cellphone of the respondent.
Those text messages are not
reliable as evidence.
xxxx
WHEREFORE,
premises
considered,
it
is
most
respectfully
recommended
that the instant complaint be
dismissed for lack of merit.20

Upon review of the case, the

IBP Board of Governors issued
Resolution
No.
XVIII-200821
545, reversing
the
recommendation
of
the
Investigating Commissioner,
disposing thus:
RESOLVED TO REVERSE as it
is hereby REVERSED, the
Report and Recommendation
of
the
Investigating
Commissioner, and APPROVE
the
SUSPENSIONfrom
the
practice of law for one (1)
year of Atty. Reynaldo V.
Abdon and to Return the
Amount of Two Hundred Fifty
Thousand
Pesos
([P]250,000.00) within thirty
(30) days from receipt of
notice.22
On February 23, 2009, the
respondent filed a Motion for
Reconsideration23 but the IBP
Board of Governors denied the
same in its Resolution No. XX2013-55,24 which reads:
RESOLVED to unanimously
DENY Respondents Motion for
Reconsideration there being
no cogent reason to reverse
the
findings
of
the
Commission and it being a
mere
reiteration
of
the
matters which had already
been threshed out and taken
into
consideration.
Thus,
Resolution No. XVIII-2008-545
dated November 20, 2008 is
hereby AFFIRMED.25
The case is now before
thisCourt for confirmation.
"It is well to remember that in
disbarment proceedings, the
burden of proof rests upon the
complainant. For the Court to
exercise
its
disciplinary
powers, the case against the
19

Legal Ethics

respondent
must
be
established by convincing and
satisfactory proof."26
In Aba v. De Guzman, Jr.,27 the
Court
reiterated
that
a
preponderance of evidence is
necessary before a lawyer
maybe held administratively
liable, to wit:
Considering
the
serious
consequences
of
the
disbarment or suspension of a
member of the Bar, the Court
has consistently held that
clearly preponderant evidence
is necessary to justify the
imposition of administrative
penalty on a member of the
Bar.
Preponderance of evidence
means that the evidence
adduced by one side is, as a
whole, superior to or has
greater weight than that of
the other. It means evidence
which is more convincing to
the court as worthy of belief
than that which is offered in
opposition
thereto.
Under
Section 1 of Rule 133, in
determining whether or not
there is preponderance of
evidence, the court may
consider the following: (a) all
the facts and circumstances of
the case; (b) the witnesses
manner of testifying, their
intelligence, their means and
opportunity of knowing the
facts to which they are
testifying, the nature of the
facts to which they testify, the
probability or improbability of
their
testimony;
(c)
the
witnesses interest or want of
interest,
and
also
their
personal credibility so far as
the same may ultimately
appear in the trial; and (d) the
number
of
witnesses,

although it does not mean

that
preponderance
is
necessarily with the greater
number.28 (Citations omitted)
In
the
absence
of
preponderant evidence, the
presumption of innocence of
the lawyer subsists and the
complaint against him must
be dismissed.29
After a careful review of the
facts and circumstances of the
case, the Court finds that the
evidence submitted by the
complainant fell short of the
required quantum of proof.
Aside from bare allegations,
no evidence was presented to
convincingly establish that the
respondent
engaged
in
unlawful
and
dishonest
conduct,
particularly
in
extortion
and
influencepeddling.
Firstly, the transcript of the
alleged exchange of text
messages
between
the
complainant
and
the
respondent
cannot
be
admitted in evidence since
the
same
was
not
authenticatedin
accordance
with A.M. No. 01-7-01-SC,
pertaining to the Rules on
Electronic Evidence. Without
proper authentication, the
text messages presented by
the complainant have no
evidentiary value.
The Court cannot also give
credence to the affidavits of
Pena and Demillo which, on
close examination, do not
prove anything about the
alleged transaction between
the complainant and the
respondent. In his affidavit,
Pena, an officer of AGLO, the
organization
assisting
the
20

Legal Ethics

union members of NEECO III,

alleged:
THAT, sometime in the first
weekof November 2006, the
former
workers
and
employees
of
NEECO
III
informed me of their desire to
engage the services of a third
party to help facilitate the
expeditious release of a
favorable decision from the
Court of Appeals in CA-GR SP
No. 96096, and that they
already contacted a friend of
mine, Mr. Raul Francia, who
knows somebody who can
help us work on the CA case;
THAT, in succeeding separate
meetings with Mr. Francia, he
intimated to me on various
occasions
that
he
had
contracted a certain Atty.
Reynaldo V. Abdon, a labor
arbiter based in San Fernando,
Pampanga to facilitate the
expeditious release of a
favorable decision from the
Court of Appeals;
THAT, I gathered from Mr.
Francia and based on the
information given to me by
the
former
workers
and
employees of NEECO III, Labor
Arbiter Abdon asked for [P]1
[M]illion to cover the amount
to be given to the justices of
the Court of Appeals handling
the case and facilitation and
mobilization fees;
THAT, sometime towards the
end of the first week of
December, the former workers
and employees of NEECO III
met with Mr. Francia at our
office. They handed to him
[P]350,000[.00]
as
downpayment for the []1
[M]illion being demanded by
Mr. Abdon, the balance of

which
would
have
been
payable on a later agreed
period;
THAT, the [P]350,000[.00] was
sourced by the former workers
and employees of NEECO III
from
their
personal
contributions; and
THAT, soon after the meeting
with the former workers and
employees of NEECO III, Mr.
Francia left to meet with Labor
Arbiter Abdon to deliver the
money[.]30
It is clear from the foregoing
thatPena
never
had
the
opportunity to meet the
respondent. He never knew
the respondent and did not
actually see him receiving the
money
that
the
union
members raised as facilitation
fee. His statement does not
prove at all thatthe alleged
illegal
deal
transpired
between the complainant and
the respondent.If at all, it only
proved
that
the
union
members made contributions
to raise the amount of money
required as facilitation fee and
that they gave it to the
complainant
for
supposed
delivery to the respondent.
However, whether the money
was actually delivered to the
respondent was not known to
Pena.
The same observation holds
true with respect to the
affidavit
of
Demillo,
an
acquaintance
of
the
complainant, who claims to
have
witnessed
the
transaction
between
the
parties at the Makati Cinema
Square. She alleged that she
saw the complainant handing
a bulging brown supotto an
21

Legal Ethics

unidentified man while the

two were at the open dining
space of a caf. Upon seeing
the complainant again, she
learned that the person he
was talking to at the caf was
the respondent LA.31

surmises
and
imagined
possibilities. A mere suspicion
cannot substitute for the
convincing and satisfactory
proof required to justify the
suspension or disbarment of a
lawyer.

Demillos affidavit, however,

does not prove any relevant
fact that will establish the
respondents
culpability.1wphi1 To
begin
with, it was not established
with certainty that the person
whom she saw talking with
the complainant was the
respondent. Even assuming
that respondents identity was
established, Demillo could not
have
known
about
the
complainant and respondents
business by simply glancing at
them while she was on her
way to the supermarket to run
some
errands.
That
she
allegedly saw the complainant
handing the respondent a
bulging brown supothardly
proves any illegal transaction
especially that she does not
have knowledge about what
may have been contained in
the said bag.

In
Alitagtag
v.
32
Garcia, the
emphasized, thus:

The complainant miserably

failed
tosubstantiate
his
claims
with
preponderant
evidence. Surely, he cannot
prove
the
respondents
culpability
by
merely
presenting
equivocal
statementsof some individuals
or relying on plain gestures
that are capable of stirring the
imagination. Considering the
lasting effect of the imposition
of the penalty of suspension
or disbarment on a lawyers
professional standing, this
Court cannot allow that the
respondent be held liable for
misconduct on the basis of

Atty.
Court

Indeed, the power to disbar

must be exercised with great
caution, and may be imposed
only in a clear case of
misconduct
that
seriously
affects the standing and the
character ofthe lawyer as an
officer of the Court and as a
member
of
the
bar.
Disbarment should never be
decreed where any lesser
penalty could accomplish the
end desired. Without doubt, a
violation of the high moral
standards
of
the
legal
profession
justifies
the
imposition of the appropriate
penalty, including suspension
and disbarment. However, the
said penalties are imposed
with great caution, because
they are the most severe
forms of disciplinary action
and their consequences are
beyond
repair.33 (Citations
omitted)
The respondent, however, is
not entirely faultless. He has,
nonetheless, engendered the
suspicion that he is engaged
in an illegal deal when he
introduced the complainant to
Vistan, who was the one who
allegedly
demanded P1,000,000.00
infacilitation fee from the
union members. The records
bearout that the complainant,
at the outset, made clear his
intention
to
seek
the
22

Legal Ethics

respondents assistance in
following up the unions case
in the CA. The respondent,
however, instead of promptly
declining the favor sought in
order
to
avoid
any
appearance of impropriety,
even volunteered to introduce
the complainant to Vistan, a
former client who allegedly
won a case in the CA in
August 2006. It later turned
out that Vistan represented to
the complainant that he has
the capacity to facilitate the
favorable resolution of cases
and does this for a fee. This
fact was made known to him
by Vistan himself duringa
telephone conversation when
the latter told him he was
given P350,000.00
as
34
facilitation
fee. His
connection with Vistan was
the
reason
why
the
complainant had suspected
that he was in connivance
with him and that he got a
portion of the loot. His gesture
of
introducing
the
complainant
to
Vistan
precipitated the idea that
what the latter asked of him
was with his approval. It
registered
a
mistaken
impression
on
the
complainant that his case can
be expeditiously resolved by
resorting to extraneous means
or channels. Thus, while the
respondent may not have
received money from the
complainant, the fact is that
he
has
made
himself
instrumental to Vistans illegal
activity. In doing so, he has
exposed the legal profession
to undeserved condemnation
and invited suspicion on the
integrity of the judiciary for
which he must be imposed
with a disciplinary sanction.

Canon 7 of the Code of

Professional
Responsibility
mandates that a "lawyer shall
at all times uphold the
integrity and dignity of the
legal profession." For, the
strength
of
the
legal
profession lies in the dignity
and
integrity
of
its
35
members. It
is
every
lawyers duty to maintain the
high regard to the profession
by staying trueto his oath and
keeping his actions beyond
reproach.
Also, the respondent, as a
member
of
the
legal
profession, has a further
responsibility to safeguard the
dignity of the courts which the
public
perceives
as
the
bastion of justice. Hemust at
all times keep its good name
untarnished
and
not
be
instrumental to its disrepute.
In
Berbano
v.
Atty.
36
Barcelona, the
Court
reiterated the bounden duty
of lawyers to keep the
reputation
of the
courts
unscathed, thus:
A lawyer is an officer of the
courts; he is, "like the court
itself, an instrument or agency
to advance the endsof justice.
["] [x x x] His duty is to uphold
the dignity and authority of
the courts to which he owes
fidelity, ["]not to promote
distrust inthe administration
of justice." [x x x] Faith in the
courts a lawyer should seek to
preserve. For, to undermine
the
judicial
edifice
"is
disastrous to the continuity of
the government and to the
attainment of the liberties of
the people." [x x x] Thus has it
been said of a lawyer that
"[a]s an officer of the court, it
is his sworn and moral duty to
23

Legal Ethics

help build and not destroy

unnecessarily
that
high
esteem and regard towards
the courts so essential to the
proper
administration
of
37
justice."
A strong and independent
judiciary is one of the key
elements
in
the
orderly
administration of justice. It
holds a revered status in the
society as the public perceives
it as the authority of what is
proper and just, and abides by
its pronouncements. Thus, it
must
keep
its
integrity
inviolable and this entails that
the members of the judiciary
be extremely circumspect in
their actions, whether in their
public or personal dealings.
Nonetheless, the duty to
safeguard the good name of
the judiciary is similarly
required from all the members
of the legal profession. The
respondent,
however,
compromised the integrity of
the
judiciary
by
his
association with a scoundrel
who
earns
a
living
by
dishonoring the court and
maliciously imputing corrupt
motives on its members.

bedisciplined
and,
after
appropriate
proceedings,
penalized accordingly.38
WHEREFORE,
for
having
committed an act which
compromised
the
publics
trust in the justice system,
Atty. Reynaldo V. Abdon is
hereby SUSPENDEDfrom the
practice of law for a period of
ONE (1) MONTH effective
upon receipt of this Decision,
with a STERN WARNING that a
repetition of the same or
similar act in the future shall
be dealt with severely.
Let copies of this Decision be
furnished the Integrated Bar
of the Philippines and the
Office
of
the
Court
Administrator
which
shall
circulate the same in all
courts in the country, and
attached to the personal
records of Atty. Reynaldo V.
Abdon in the Office of the Bar
Confidant.
SO ORDERED.

The
Court
reiterates
its
directive tothe members of
the Bar to be mindful of the
sheer
responsibilities
thatattach to their profession.
They must maintain high
standards of legal proficiency,
aswell as morality including
honesty, integrity and fair
dealing. For, they are at all
times
subject
to
the
scrutinizing
eye
of
publicopinion and community
approbation.
Needless
to
state, those whose conduct
both public and private fails
this scrutiny would have to
24

Legal Ethics

IN RE: VICTORIO D.
LANUEVO, former Bar
Confidant and Deputy
Clerk of Court, respondent.

Administrative
proceedings
against Victorio D. Lanuevo
for disbarment; Ramon E.
Galang, alias Roman E. Galang

for
disbarment;
Hon.
Bernardo Pardo, Hon. Ramon
Pamatian, Atty. Manuel C.
Tomacruz; Atty. Manuel G.
Montecillo, Atty. Fidel Manalo
and Atty. Guillermo Pablo, Jr.
for disciplinary action for
their acts and omissions
during
the
1971
Bar
Examinations.
In his request dated March 29,
1972
contained
in
a
confidential letter to the Court
for re-correction and reevaluation of his answer to
the 1971 Bar Examinations
question, Oscar Landicho
who flunked in the 1971, 1968
and 1967 Bar Examinations
with a grade of 70.5%,
65.35%
and
67.55%,
respectively invited the
attention of the Court to "The
starling fact that the grade in
one examination (Civil Law) of
at least one bar candidate
was raised for one reason or
another, before the bar results
were
released
this
year" (Confidential Letter, p.
2. Vol. I, rec.). This was
confirmed, according to him,
by the Civil Law Examiner
himself
(Hon.
Ramon
C.
Pamatian) as well as by Bar
Confidant Victorio D. Lanuevo.
He further therein stated "that
there are strong reasons to
believe that the grades in
other examination notebooks

in
other
subjects
also
underwent alternations to
raise the grades prior to the
release of the results. Note
that this was without any
formal motion or request from
the proper parties, i.e., the
bar candidates concerned. If
the
examiners
concerned
reconsidered
their
grades without formal motion,
there is no reason why they
may not do so now when
proper request answer motion
therefor is made. It would be
contrary
to due
process postulates. Might not
one say that some candidates
got
unfair
and
unjust
treatment, for their grades
were
not
asked
to
be
reconsidered
'unofficially'?
Why the discrimination? Does
this not afford sufficient
reason
for
the
Court en
banc to go into these matters
by its conceded power to
ultimately decide the matter
of admission to the bar?" (p.
2, Confidential Letter, Vol. I,
rec.).
Acting
on
the
aforesaid
confidential letter, the Court
checked the records of the
1971 Bar Examinations and
found that the grades in five
subjects Political Law and
Public International Law, Civil
Law, Mercantile Law, Criminal
Law and Remedial Law of a
successful bar candidate with
office code No. 954 underwent
some
changes
which,
however, were duly initialed
and authenticated by the
respective
examiner
concerned. Further check of
the records revealed that the
bar candidate with office code
No. 954 is one Ramon E.
Galang,
a
perennial
bar
25

Legal Ethics

candidate, who flunked in

the 1969, 1966, 1964, 1963,
and 1962 bar
examinations
with a grade of 67.55%,
68.65%,
72.75%,
68.2%,
56.45%
and
57.3%, respectively.
He
passed in the 1971 bar
examinations with a grade of
74.15%,
which
was
considered as 75% by virtue
of a Court of 74.15%, which
was considered as 75% as the
passing mark for the 1971 bar
examinations.
Upon the direction of the
Court,
the
1971
Bar
Examination
Chairman
requested
Bar
Confidant
Victorio D. Lanuevo and the
five
(5)
bar
examiners
concerned to submit their
sworn statements on the
matter, with which request
they complied.
In his sworn statement dated
April 12, 1972, said Bar
Confidant admitted having
brought the five examination
notebooks
of
Ramon
E.
Galang,
alias
Ramon
E.
Galang, back to the respective
examiners for re-evaluation
and/or re-checking, stating
the
circumstances
under
which the same was done and
his reasons for doing the
same.
Each of the five (5) examiners
in
his
individual
sworn
statement admitted having reevaluated and/or re-checked
the
notebook
involved
pertaining to his subject upon
the representation to him by
Bar Confidant Lanuevo that he
has the authority to do the
same and that the examinee
concerned failed only in his

particular subject and/or was

on the borderline of passing.
Finding a prima facie case
against
the
respondents
warranting
a
formal
investigation,
the
Court
required, in a resolution dated
March 5, 1973, Bar Confidant
Victorio Lanuevo "to show
cause within ten (10) days
from notice why his name
should not be stricken from
the Roll of Attorneys" (Adm.
Case No. 1162, p. 34, rec.).
Considering that the reevaluation of the examination
papers of Ramon E. Galang,
alias
Roman
E.
Galang,
was unauthorized,
and
therefore he did not obtain a
passing average in the 1971
bar examinations, the Court
likewise resolved on March 5,
1971 to requires him "to show
cause within ten (10) days
from notice why his name
should not be stricken from
the Roll of Attorneys" (Adm.
Case No. 1163, p. 99, rec.).
The five examiners concerned
were also required by the
Court "to show cause within
ten (10) days from notice
why no disciplinary action
should be taken against
them" (Adm. Case No. 1164,
p. 31, rec.).
Respondent Tomacruz filed his
answer on March 12, 1973
(Adm. Case No. 1164, p. 70,
rec.).
while
respondents
Pardo, Pamatian, Montecillo,
Manalo and Lanuevo filed
theirs on March 19, 1973
(Adm. Case No. 1162, pp. 6063, 32-35, 40-41, 36-39 and
35-38, rec.). At the hearing on
August 27, 1973, respondent
Lanuevo filed another sworn
statement in addition to, and
in amplication of, his answer
26

Legal Ethics

filed on March 19, 1973 (Adm.

Case No. 1162, pp. 45-47,
rec.). Respondent Galang filed
his unverified answer on
March 16, 1973 (Adm. Case
No. 1163, pp. 100-104, rec.).
He was required by the Court
to verify the same and
complaince came on May 18,
1973 (Adm. Case No. 1163,
pp. 106-110,) rec.).

Mercantile Law resulting in the

change of the grade from 4%
to 50% This notebook bearing
Office Code No. 110 is owned
by
another
successful
candidate
by
the
name
of Alfredo
Ty
dela
Cruz.
Quitaleg and Ty dela Cruz and
the
latter's
father
were
summoned to testify in the
investigation.

In
the
course
of
the
investigation, it was found
that it was not respondent
Bernardo
Pardo
who
reevaluated and/or re-checked
examination
booklet
with
Office Code No. 954 in Political
Law and Public International
Law of examinee Ramon
Galang,
alias
Roman
E.
Galang, but Guillermo Pablo,
Jr., examiner in Legal Ethics
and Practical Exercise, who
was asked to help in the
correction of a number of
examination
notebooks
in
Political
Law
and
Public
International Law to meet the
deadline for submission (pp.
17-24, Vol. V, rec.). Because of
this
development,
Atty.
Guillermo
Pablo,
Jr.
was
likewise
included
as
respondent in Administrative
Case No. 1164. Hon. Bernardo
Pardo
remainded
as
a
respondent for it was also
discovered that another paper
in Political Law and Public
International
Law
also
underwent
re-evaluation
and/or
re-checking.
This
notebook with Office Code No.
1662 turned out to be owned
by
another
successful
candidate
by
the
name
of Ernesto Quitaleg. Further
investigation resulted in the
discovery of another reevaluation and/or re-checking
of a notebook in the subject of

An investigation conducted by
the
National
Bureau
of
Investigation upon request of
the Chairman of the 1971 Bar
Examination Committee as
Investigation Officer, showed
that one Romy Galang y
Esguerra, alias Ramon E.
Galang, a student in the
School of Law of Manuel L.
Quezon University, was, on
September 8, 1959, charged
with the crime of slight
physical
injuries
in
the
Municipal Court of Manila
committed on Eufrosino F. de
Vera, another student of the
same university. Confronted
with this information at the
hearing of August 13, 1973
(Vol. V, pp. 20-21, 32, rec.),
respondent Galang declared
that he does not remember
having been charged with the
crime
of
slight
physical
injuries in that case. (Vol. VI,
pp. 45-60, rec.).
Respondent Galang, in all his
application to take the bar
examinations, did not make
mention of this fact which he
is required under the rules to
do.
The joint investigation of all
the cases commenced on July
17, 1973 and was terminated
on
October
2,
1973.
Thereafter,
partiesrespondents were required to
27

Legal Ethics

submit
their
memoranda.
Respondents Lanuevo, Galang
and Pardo submitted their
respective memorandum on
November 14, 1973.
Before the joint hearing
commenced, Oscar Landicho
took up permanent residence
in Australia, where he is
believed
to
be
gainfully
employed. Hence, he was not
summoned to testify.
At the joint investigation, all
respondents,
except
respondent Pablo, who offered
as evidence only his oral
testimony, submitted as their
direct evidence only his oral
testimony, submitted as their
direct evidence the affidavits
and answers earlier submitted
by them to the Court. The
same became the basis for
their cross-examination.
In their individual sworn
statements and answer, which
they offered as their direct
testimony in the investigation
conducted by the Court, the
respondent-examiners
recounted the circumstances
under which they re-evaluated
and/or
re-checked
the
examination
notebooks
in
question.
In His affidavit dated April 11,
1972, respondent Judge (later
Associate Justice of the Court
of
Appeals)
Ramon
C.
Pamatian, examiner in Civil
Law, affirmed:
2. That one evening
sometime
in
December last year,
while
I
was
correcting
the
examination
notebooks,
Atty.

Lanuevo, Bar
Confidant,
explained to me
that
it
is
the
practice and the
policy
in
bar
examinations that
he (Atty. Lanuevo)
make a review of
the grades obtained
in all subjects and if
he
finds
that
candidate obtained
an
extraordinary
high grade in one
subject and a rather
low one in another,
he will bring back
the latter to the
examiner
concerned for reevaluation
and
change of grade;
3. That sometime in
the latter part of
January of this year,
he brought back to
me an examination
booklet in Civil Law
for
re-evaluation,
because according
to him the owner of
the paper is on the
borderline and if I
could reconsider his
grade to 75% the
candidate
concerned will get
passing mark;
4. That taking his
word for it and
under the belief
that it was really
the practice and
policy
of
the
Supreme Court to
do so in the further
belief that I was just
manifesting
cooperation
in
doing
so,
I re28

Legal Ethics

evaluated the paper

and
reconsidered
the grade to 75%;

and 10 remainded
at 5% and Nos. 6
and 9 at 10%;

5. That only one

notebook in Civil
Law was brought
back to me for such
re-evaluation
and
upon verifying my
files I found that the
notebook
is
numbered '95;

4. That at the time I

made
the
reconsideration
of
examination booklet
No. 951 I did not
know the identity of
its owner until I
received
this
resolution of the
Honorable Supreme
Court
nor
the
identities
of
the
examiners in other
subjects;

6. That the original

grade was 64% and
my re-evaluation of
the answers were
based on the same
standard used in
the correction and
evaluation of all
others; thus, Nos. 3
and 4 with original
grades of 7% each
was reconsidered to
10%; No. 5 with 4%
to 5%; No. 7 with
3% to 5%; and No. 8
with 8% to 10%
(emphasis
supplied).
His answer dated March 19,
1973 substantially reiterated
his allegations in his April 11,
1972 affidavit with following
additional statements:
xxx xxx xxx
3. ... However the
grades in Nos. 1, 2,
6, 9 and 10, were
not reconsidered as
it is no longer to
make
the
reconsideration
of
these
answers
because
of
the
same
evaluation
and
standard;
hence, Nos. 1, 2

5. That the above

re-evaluation
was
made in good faith
and under the belief
that
I
am
authorized to do so
in view of the
misrepresentation
of
said
Atty.
Lanuevo, based on
the
following
circumstances:
a) Since I
started
correcting
the
papers on
or about
October
16, 1971,
relationsh
ip
between
Atty.
Lanuevo
and
myself
had
develope
d to the
point that
with
respect to
29

Legal Ethics

the
correction
of
the
examinati
on
booklets
of
bar
candidate
s I have
always
followed
him and
considere
d
his
instructio
ns
as
reflecting
the rules
and
policy of
the
Honorabl
e
Supreme
Court
with
respect to
the same;
that
I
have no
alternativ
e but to
take
his
words;
b)
That
consideri
ng
this
relationsh
ip
and consi
dering his
misrepres
entation
to me as
reflecting
the real
and
policy of
the
Honorabl
e
Supreme

Court,
I
did
not
bother
any more
to get the
consent
and
permissio
n of the
Chairman
of the Bar
Committe
e.
Besides,
at
that
time,
I
was
isolating
myself
from
all
members
of
the
Supreme
Court and
specially
the
chairman
of the Bar
Committe
e for fear
that
I
might be
identified
as a bar
examiner;
xxx xxx xxx
e)
That
no
consideration
whatsoever
has
been received by
me in return for
such
recorrection,
and as proof of it, I
declined to consider
and evaluate one
booklet in Remedial
Law
aforesaid
because I was not
the one who made
the
original
correction of the
30

Legal Ethics

same (Adm. Case

No. 1164, pp. 3235, rec.; emphasis
supplied).
Then
Assistant
Solicitor
General, now CFI Judge,
Bernardo Pardo, examiner in
Political
Law
and
Public
International Law, confirmed
in his affidavit of April 8, 1972
that:
On a day or two
after
the
Bar
Confidant went to
my residence to
obtain from me the
last bag of two
hundred notebooks
(bearing examiner's
code numbers 1200
to
1400)
which
according to my
record
was
on
February 5, 1972,
he came to my
residence at about
7:30 p.m. riding in a
Vokswagen panel of
the Supreme Court,
with at least two
companions.
The
bar confidant had
with
him
an
examinee's
notebook
bearing
code number 661,
and, after the usual
amenties, he
requested me if it
was possible for me
to review and reexamine the said
notebook because it
appears that the
examinee obtained
a grade of 57,
whereas, according
to
the
Bar
Confidant, the said
examinee
had
obtained
higher

grades
in
other
subjects,
the
highest of which
was 84, if I recall
correctly,
in
remedial law.
I asked the Bar
Confidant if I was
allowed to receive
or re-examinee the
notebook as I had
submitted the same
beforehand, and he
told me that I was
authorized to do so
because the same
was still within my
control
and
authority as long as
the
particular
examinee's
name
had
not
been
identified or that
the code number
decode and
the
examinee's
name
was revealed. The
Bar Confidant told
me that the name
of the examinee in
the case present
bearing
code
number 661 had not
been identified or
revealed; and that it
might have been
possible that I had
given a particularly
low grade to said
examinee.
Accepting at face
value the truth of
the Bar Confidant's
representations to
me, and as it was
humanly
possible
that I might have
erred in the grading
of
the
said
notebook,
I
reexamined the same,
31

Legal Ethics

carefully read the

answer, and graded
it in accordance
with
the
same
standards
I
had
used throughout the
grading
of
the
entire
notebooks, with the
result
that
the
examinee deserved
an increased grade
of 66. After again
clearing with the
Bar Confidant my
authority to correct
the grades, and as
he had assured me
that
the
code
number
of
the
examinee
in
question had not
been decoded and
his name known, ...
I
therefore
corrected the total
grade in
the
notebook and the
grade card attached
thereto,
and
properly initia(l)ed
the same. I also
corrected
the
itemized
grades
(from item No. 1 to
item No. 10) on the
two sets of grading
sheets, my personal
copy thereof, and
the Bar Confidant
brought with him
the
other
copy
thereof, and the Bar
Confidant
brought
with him the other
copy the grading
sheet" (Adm. Case
No. 1164, pp. 5859; rec.; emphasis
supplied)
In his answer dated March 17,
1973 which he denominated

as "Explanation", respondent
Bernardo P. Pardo adopted
and replaced therein by
reference the facts stated in
his earlier sworn statement
and in additional alleged that:
xxx xxx xxx
3. At the time I
reviewed
the
examinee's
notebook in political
and
international
law, code
numbered 661, I did
know the name of
the examinee. In
fact, I came to know
his name only upon
receipt
of
the
resolution of March
5,
1973;
now
knowing his name, I
wish to state that I
do not know him
personally, and that
I have never met
him even up to the
present;
4. At that time, I
acted under the
impression that I
was authorized to
make such review,
and had repeatedly
asked
the
Bar
Confidant whether I
was authorized to
make such revision
and was so assured
of my authority as
the name of the
examinee had not
yet been decoded
or
his
identity
revealed. The Bar
Confidant's
assurance
was
apparently regular
and so appeared to
be in the regular
32

Legal Ethics

course of express
prohibition in the
rules and guidelines
given to me as an
examiner, and the
Bar Confidant was
my official liaison
with
the
Chairman, as,
unless
called,
I
refrained as much
as possible from
frequent
personal
contact with the
Chairman lest I be
identified
as
an
examiner. ...;
5. At the time the
Bar Confidant came
to see me at about
7:30 o'clock in the
evening
at
my
residence, I felt it
inappropriate
to
verify his authority
with
the
Chairman. It did not
appear to me that
his representations
were unauthorized
or
suspicious.
Indeed,
the
Bar
Confidant
was
riding in the official
vehicle
of
the
Supreme Court, a
Volkswagen panel,
accompanied
by
two
companions,
which was usual,
and thus looked like
a regular visit to me
of
the
Bar
Confidant, as it was
about
the
same
hour that he used to
see me:
xxx xxx xxx
7.
Indeed,
notebook

the
code

numbered 661 was

still in the same
condition as when I
submitted
the
same. In agreeing
to review the said
notebook
code
numbered 661, my
aim was to see if I
committed an error
in the correction,
not to make the
examinee pass the
subject.
I
considered
it
entirely
humanly
possible to have
erred, because I
corrected
that
particular notebook
on December 31,
1971, considering
especially
the
representation
of
the Bar Confidant
that
the
said
examinee
had
obtained
higher
grades
in
other
subjects,
the
highest of which
was
84%
in
remedial law, if I
recall correctly. Of
course, it did not
strike
me
as
unusual that the Bar
Confidant knew the
grades
of
the
examinee in the
position to know
and that there was
nothing irregular in
that:
8. In political and
international
law,
the original grade
obtained
by
the
examinee
with
notebook
code
numbered 661 was
57%. After review, it
33

Legal Ethics

was increased by 9
points, resulting in a
final grade of 66%.
Still, the examinee
did not pass the
subject,
and,
as
heretofore
stated,
my aim was not to
make the examinee
pass,
notwithstanding the
representation that
he had passed the
other subjects. ...
9. I quite recall that
during
the
first
meeting of the Bar
Examiners'
Committee
consensus was that
where an examinee
failed in only one
subject and passed
the
rest,
the
examiner in said
subject
would
review
the
notebook. Nobody
objected to it as
irregular.
At
the
time
of
the
Committee's
first
meeting, we still did
not know the names
of the candidates.
10. In fine, I was a
victim of deception,
not a party to it. It
had absolutely no
knowledge of the
motives of the Bar
Confidant or his
malfeasance
in
office, and did not
know the examinee
concerned nor had I
any kind of contract
with him before or
rather the review
and even up to the
present (Adm. Case

No. 1164, pp. 6063; rec.; emphasis

supplied).
Atty.
Manuel
Tomacruz,
examiner in Criminal Law,
affirmed in his affidavit dated
April 12, 1972:
1. xxx xxx xxx
2.
That
about
weekly,
the
Bar
Confidant
would
deliver and collect
examination books
to my residence at
951 Luna Mencias,
Mandaluyong, Rizal.
3. That towards the
end when I had
already completed
correction of the
books in Criminal
Law
and
was
helping
in
the
correction of some
of the papers in
another subject, the
Bar
Confidant brought
back to me one (1)
paper in Criminal
Law saying that
that
particular
examinee
had
missed the passing
grade by only a
fraction
of
a
percent and that if
his
paper
in
Criminal Law would
be raised a few
points to 75% then
he would make the
general
passing
average.
4. That seeing the
jurisdiction, I raised
the grade to 75%,
that is, giving a
34

Legal Ethics

raise
of,
if
I
remember correctly,
2
or
3
points,
initialled the revised
mark and revised
also the mark and
revised also the
mark in the general
list.
5. That I do not
recall the number of
the book of the
examinee
concerned"
(Adm.
Case No. 1164, p.
69, rec.; emphasis
supplied).
In his answer dated March 12,
1973, respondent Tomacruz
stated that "I accepted the
word of the Bar Confidant in
good faith and without the
slightest inkling as to the
identity of the examinee in
question who up to now
remains a total stranger and
without expectation of nor did
I derive any personal benefit"
(Adm. Case No. 1164, p. 70,
rec.; emphasis supplied).
Atty. Fidel Manalo, examiner in
Remedial Law, stated in his
affidavit dated April 14, 1972,
that:
xxx xxx xxx
2. Sometime about
the late part of
January or early
part of February
1972,
Attorney
Lanuevo,
Bar
Confidant of the
Supreme Court, saw
me in my house at
No. 1854 Asuncion
Street,
Makati,
Rizal. He produced
to
me
an

examinee's
notebook
in
Remedial Law which
I had previously
graded
and
submitted to him.
He informed
me
that
he
and
others (he used the
words
"we") had
reviewed the said
notebook.
He
requested me to
review
the
said
notebook
and
possibly reconsider
the grade that I had
previously
given.
He explained that
the
examine
concerned
had
done well in other
subjects, but that
because
of
the
comparatively low
grade that I had
given
him
in
Remedial Law his
general
average
was
short
of
passing.
Mr.
Lanuevo remarked
that he thought that
if the paper were
reviewed I might
find the examinee
deserving of being
admitted to the Bar.
As far as I can
recall, Mr. Lanuevo
particularly
called
my attention to the
fact in his answers
the
examinee
expressed
himself
clearly and in good
enough English. Mr.
Lanuevo
however
informed me that
whether I would
reconsider
the
grades
I
had
previously
given
35

Legal Ethics

and submitted was

entirely within my
discretion.
3. Believing fully
that it was within
Mr.
Lanuevo's
authority as Bar
Confidant
to
address
such
a
request to me and
that
the
said
request
was
in
order, I, in the
presence
of
Mr.
Lanuevo,
proceeded
toreread
and
reevaluate each and
every item of the
paper in question. I
recall that in my reevaluation of the
answers, I increased
the grades in some
items,
made
deductions in other
items,
and
maintained
the
same
grades
in
other
items.
However, I recall
that
after
Mr.
Lanuevo and I had
totalled the new
grades that I had
given
after
reevaluation, the total
grade increased by
a few points, but
still short of the
passing mark of
75% in my subject.
xxx xxx xxx (Adm.
Case No. 1164, pp.
74-75,
rec.;
emphasis supplied).
In his answer (response)
dated
March
18,
1973,
respondent Manalo reiterated
the contents of his sworn

statement,
following:

adding

the

xxx xxx xxx

5. In agreeing to reevaluate
the
notebook,
with
resulted
in
increasing the total
grade
of
the
examineeconcerned
in
Remedial
Law
from 63.75%
to
74.5%,
herein
respondent acted in
good faith. It may
well be that he
could be faulted for
not having verified
from the Chairman
of the Committee of
Bar Examiners the
legitimacy of the
request made by
Mr. Lanuevo. Herein
respondent,
however, pleads in
attenuation of such
omission, that
a) Having
been
appointed
an
Examiner
for
the
first time,
he
was
not
aware,
not
having
been
apprised
otherwise
, that it
was
not
within the
authority
of the Bar
Confidant
36

Legal Ethics

of
the
Supreme
Court to
request or
suggest
that the
grade of a
particular
examinati
on
notebook
be
revised or
reconside
red. He
had every
right
to
presume,
owing to
the highly
fiduciary
nature of
the
position
of the Bar
Confidant
, that the
request
was
legitimat
e.
xxx xxx xxx
c)
In
revising
the grade
of
the
particular
examinee
concerne
d, herein
responde
nt
carefully
evaluated
each and
every
answer
written in
the
notebook.
Testing

the
answers
by
the
criteria
laid down
by
the
Court,
and givin
g the said
examinee
the
benefit of
doubt in
view
of
Mr.
Lanuevo'
s
represent
ation that
it
was
only
in
that
particular
subject
that the
said
examine
failed,
herein
responde
nt
became
convinced
that the
said
examinee
deserved
a higher
grade
than that
previousl
y given to
him, but
that
he
did
not
deserve,
in herein
responde
nt's
honest
appraisal,
to
be
given the
37

Legal Ethics

passing
grade of
75%.
It
should
also
be
mentione
d that, in
reappraisi
ng
the
answers,
herein
responde
nt
downgrad
ed
a
previous
rating of
an
answer
written by
the
examinee
,
from
9.25% to
9% (Adm.
Case No.
1164, pp.
36-39,
rec.;
emphasis
supplied).
Atty.
Manuel
Montecillo,
examiner in Mercantile Law,
affirmed in his affidavit dated
April 17, 1972:
xxx xxx xxx
That during one of
the deliberations of
the Bar Examiners'
Committee after the
Bar
Examinations
were held, I was
informed that one
Bar
examinee
passed all other
subjects
except
Mercantile Law;
That I informed the
Bar
Examiners'

Committee that I
would be willing to
re-evaluate
the
paper
of
this
particular
Bar
candidate;.
That the next day,
the Bar Confidant
handed to me a Bar
candidate's
notebook
(No.
1613) showing a
grade of 61%;
That I reviewed the
whole paper and
after re-evaluating
the answers of this
particular
Bar
candidate I decided
to
increase
his
final grade to 71%;
That consequently, I
amended my report
and duly initialed
the changes in the
grade sheet (Adm.
Case No. 1164, p.
72, rec.; emphasis
supplied).
In his answer dated March 19,
1973, respondent Montecillo
restated the contents of his
sworn statement of April 17,
1972, and
xxx xxx xxx
2. Supplementary to
the foregoing sworn
statement, I hereby
state
that
I reevaluated the
examination
notebook of Bar
Candidate No. 1613
in Mercantile Law in
absolute good faith
and
in
direct
compliance with the
38

Legal Ethics

agreement
made
during one of the
deliberations of the
Bar
Examiners
Committee
that
where a candidate
fails in only one
subject,
the
Examiner
concerned
should
make
a
reevaluation of the
answers
of
the
candidate
concerned, which I
did.
3. Finally, I hereby
state that I did not
know at the time I
made
the
aforementioned reevaluation
that
notebook No. 1613
in Mercantile Law
pertained to bar
examine Ramon E.
Galang,
alias
Roman E. Galang,
and that I have
never met up to this
time this particular
bar examinee (Adm.
Case No. 1164, pp.
40-41,
rec.;
emphasis supplied).
In his sworn statement dated
April 12, 1972, Bar Confidant
Lanuevo stated:
xxx xxx xxx
As I was going over
those
notebooks,
checking
the
entries
in
the
grading sheets and
the posting on the
record of ratings, I
was impressed of
the writing and the
answers on the first

notebook. This led

me to scrutinize all
the
set
of
notebooks.
Believing that those
five
merited
reevalation on the
basis
of
the
memorandum
circularized to the
examiners
shortly
earlier to the effect
that
... in the
correction
of
the
papers,
substanti
al weight
should
then
be
given to
clarify of
language
and
soundnes
s
of
reasoning
' (par. 4),
I
took
it upon
myself
to
bring
them back to the
respective
examiners for reevaluation
and/or
re-checking.
It is our experience
in the Bar Division
that
immediately
after the release of
the results of the
examinations,
we
are
usually
swarmed
with
requests
of
the
examinees
that
they be shown their
notebooks. Many of
them would copy
their answers and
39

Legal Ethics

have them checked

by their professors.
Eventually some of
them
would
file
motions or requests
for
re-correction
and/or
reevaluation.
Right
now, we have some
19 of such motions
or requests which
we are reading for
submission to the
Honorable Court.
Often we feel that a
few of them are
meritorious, but just
the same they have
to
be
denied
because the result
of the examinations
when released is
final
and
irrevocable.
It was to at least
minimize
the
occurrence of such
instances
that
motivated me to
bring
those
notebooks back to
the
respective
examiners for reevaluation"
(Adm.
Case No. 1162, p.
24, rec.; emphasis
supplied).
In his answer dated March 19,
1973, respondent Lanuevo
avers:
That he submitted
the notebooks in
question
to
the
examiners
concerned in his
hotest belief that
the same merited
re-evaluation; that
in so doing, it was

not his intention to

forsake or betray
the trust reposed in
him
as
bar
confidant but on the
contrary
to
do
justice
to
the
examinee
concerned;
that
neither did he act in
a
presumptuous
manner,
because
the
matter
of
whether or not reevaluation
was
inorder
was
left
alone
to
the
examiners'
decision; and that,
to his knowledge,
he
does
not
remember
having
made the alleged
misrepresentation
but
that
he
remembers having
brought
to
the
attention
of
the
Committee
during
the
meeting
a
matter concerning
another examinee
who
obtained
a
passing
general
average but with a
grade below 50% in
Mercantile Law. As
the
Committee
agreed to remove
the disqualification
by way of raising
the grade in said
subject, respondent
brought
the
notebook
in
question
to
the
Examiner
concerned
who
thereby raised the
grade thus enabling
the said examinee
to
pass.
If
he
remembers
right,
40

Legal Ethics

the
examinee
concerned is one
surnamed "de la
Cruz" or "Ty-de la
Cruz".
Your
Honors,
respondent
never
entertained a notion
that his act would
stir such serious
charges as would
tend to undermine
his
integrity
because he did it in
all good faith.
xxx xxx xxx (Adm.
Case No. 1162, p.
35, rec.; emphasis
supplied).
On August 27, 1973, during
the
course
of
the
investigation,
respondent
Lanuevo filed another sworn
statement in addition to, and
in amplification of, his answer,
stating:
xxx xxx xxx
1.
That
I
vehemently
deny
having deceived the
examiners
concerned
into
believing that the
examinee involved
failed only in their
respective subjects,
the fact of the
matter being that
the notebooks in
question
were
submitted to the
respective
examiners for reevaluation believing
in all good faith that
they so merited on
the basis of the
Confidential

Memorandum
(identified
and
marked as Exh. 1Lanuevo,
particularly
that
portion marked as
Exh.
1-aLanuevo)which was
circulated to all the
examiners
earlier,
leaving
to
them
entirely the matter
of whether or not
re-evaluation was in
order,
2.
That
the
following
coincidence
prompted me to pry
into the notebooks
in question:
Sometime
during
the latter
part
of
January
and
the
early part
of
February,
1972, on
my
way
back
to
the office
(Bar
Division)
after
lunch,
I
though of
buying a
sweepsta
ke ticket.
I
have
always
made it a
point that
the
moment I
think
of
so
buying, I
41

Legal Ethics

pick
a
number
from any
object
and
the
first
number
that
comes
into
my
sight
becomes
the basis
of
the
ticket that
I buy. At
that
moment,
the
first
number
that I saw
was "954"
boldly
printed
on
an
electrical
contriban
ce
(evidently
belonging
to
the
MERALCO
)
attached
to a post
standing
along the
right
sidewalk
of P. Faura
street
towards
the
Supreme
Court
building
from San
Marcelino
street and
almost
adjacent
to
the
south-

eastern
corner of
the fence
of
the
Araullo
High
School(ph
otograph
of
the
number
'954', the
contrivan
ce
on
which it is
printed
and
a
portion of
the post
to which
it
is
attached
is
identified
and
marked
as Exhibit
4Lanuevo
and
the
number
"954" as
Exh. 4-aLanuevo).
With this
number
(954)
in
mind,
I
proceede
d to Plaza
Sta. Cruz
to look for
a
ticket
that
would
contain
such
number.
Eventuall
y, I found
a ticket,
which
I
then
42

Legal Ethics

bought,
whose
last three
digits
correspon
ded
to
"954".
This
number
became
doubly
impressiv
e to me
because
the sum
of all the
six digits
of
the
ticket
number
was "27",
a number
that is so
significan
t to me
that
everythin
g I do I try
somewha
t
instinctiv
ely to link
or
connect it
with said
number
whenever
possible.
Thus
even
in
assigning
code
numbers
on
the
Master
List
of
examinee
s
from
1968
when
I
first took
charge of
the

examinati
ons
as
Bar
Confidant
up
to
1971,
I
either
started
with the
number
"27"
(or
"227") or
end with
said
number.
(1968
Master
List
is
identified
and
marked
as Exh. 5Lanuevo
and
the
figure
"27"
at
the
beginning
of the list,
as Exh. 5a
Lanuevo;
1969
Master
List
as
Exh.
6Lanuevo
and
the
figure
"227" at
the
beginning
of the list,
as Exh. 6aLanuevo;
1970
Master
List
as
Exh.
7Lanuevo
and
the
figure
43

Legal Ethics

"227" at
the
beginning
of the list
as Exh. 7aLanuevo;
and
the
1971
Master
List
as
Exh.
8Lanuevo
and
the
figure
"227" at
the end of
the list as
Exh. 8-aLanuevo).
The
significan
ce to me
of
this
number
(27) was
born out
of these
incidents
in my life,
to wit: (a)
On
Novembe
r
27,
1941
while with
the
Philippine
Army
stationed
at Camp
Manacnac
,
Cabanatu
an, Nueva
Ecija,
I
was
stricken
with
pneumoni
a and was
hospitaliz

ed at the
Nueva
Ecija
Provincial
Hospital
as
a
result. As
will
be
recalled,
the
last
Pacific
War broke
out
on
Decembe
r 8, 1941.
While
I
was still
confined
at
the
hospital,
our camp
was
bombed
and
strafed by
Japanese
planes on
Decembe
r
13,
1941
resulting
in many
casualties
.
From
then on, I
regarded
Novembe
r
27,
1941 as
the
beginning
of a new
life for me
having
been
saved
from the
possibility
of being
among
the
casualties
;(b)
On
44

Legal Ethics

February
27, 1946,
I was able
to get out
of
the
army
byway of
honorable
discharge
; and (c)
on
February
27, 1947,
I
got
married
and since
then we
begot
children
the
youngest
of whom
was born
on
February
27, 1957.
Returning
to
the
office that
same
afternoon
after
buying
the ticket,
I resumed
my work
which at
the time
was
on
the
checking
of
the
notebook
s.
While
thus
checking,
I
came
upon the
notebook
s bearing
the office
code

number
"954". As
the
number
was still
fresh
in
my mind,
it aroused
my
curiosity
promptin
g me to
pry
into
the
contents
of
the
notebook
s.
Impresse
d by the
clarity of
the
writing
and
language
and
the
apparent
soundnes
s of the
answers
and,
thereby,
believing
in
all
good faith
on
the
basis
of
the
aforemen
tioned
Confidenti
al
Memoran
dum (Exh.
1Lanuevo
and Exh.
1-aLanuevo)
that they
merited
reevaluatio
45

Legal Ethics

n, I set
them
aside and
later
on
took them
back
to
the
respectiv
e
examiner
s
for
possible
review
recalling
to
them
the said
Confidenti
al
Memoran
dum but
leaving
absolutel
y
the
matter to
their
discretion
and
judgment.
3. That the alleged
misrepresentation
or deception could
have reference to
either of the two
cases
which
I
brought
to
the
attention
of
the
committee
during
the meeting and
which
the
Committee agreed
to refer back to the
respective
examines, namely:
(a)
That
of
an
examinee
who
obtained
a passing
general
average

but with a
grade
below
50%
(47%) in
Mercantil
e Law(the
notebook
s of this
examinee
bear the
Office
Code No.
110,
identified
and
marked
as Exh. 9Lanuevo
and
the
notebook
in
Mercantil
e
Law
bearing
the
Examiner'
s
Code
No.
951
with the
original
grade of
4%
increased
to
50%
after reevaluatio
n as Exh.
9-aLanuevo);
and
(b) That
of
an
examinee
who
obtained
a
borderline
general
average
of 73.15%
with
a
46

Legal Ethics

grade
below
60%
(57%) in
one
subject
which, at
the time,
I
could
not
pinpoint
having
inadverte
ntly left in
the office
the data
thereon.
It turned
out that
the
subject
was
Political
and
Internatio
nal
Law
under
Asst.
Solicitor
General
Bernardo
Pardo
(The
notebook
s of this
examinee
bear the
Office
Code No.
1622
identified
and
marked
as
Exh.
10Lanuevo
and
the
notebook
in Political
and
Internatio
nal
Law
bearing

the
Examiner'
s
Code
No.
661
with the
original
grade of
57%
increased
to
66%
after reevaluatio
n, as Exh.
10-aLanuevo).
This
notebook
in Political
and
Internatio
nal Law is
precisely
the same
notebook
mentione
d in the
sworn
statemen
t of Asst.
Solicitor
General
Bernardo
Pardo(Exh
.
------Pardo).
4. That in each of
the
two
cases
mentioned in the
next
preceding
paragraph, only one
(1)
subject
or
notebook
was
reviewed
or
reevaluated, that is,
only Mercantile Law
in the former; and
only Political and
International Law in
the latter, under the
facts
and
circumstances
I
made known to the
47

Legal Ethics

Committee
and
pursuant to which
the
Committee
authorized
the
referral
of
the
notebooks involved
to the examiners
concerned;

pry into the contents of the

notebooks"
of
respondent
Galang "bearing office code
number '954."

5. That at that
juncture,
the
examiner
in
Taxation
even
volunteered
to
review or re-check
some 19, or so,
notebooks in his
subject but that I
told the Committee
that there was very
little time left and
that the increase in
grade
after
reevaluation,
unless
very
highly
substantial, may not
alter the outcome
since the subject
carries the weight
of only 10% (Adm.
Case No. 1162, pp.
45-47, rec.).

1.
That
herein
respondent is not
acquainted
with
former BarConfidant
Victorio
Lanuevo
and never met him
before except once
when, as required
by
the
latter
respondent
submitted
certain
papers
necessary
for taking the bar
examinations.

The
foregoing
last-minute
embellishment only serves to
accentuate the fact that
Lanuevo's story is devoid of
truth. In his sworn statement
of April 12, 1972, he was "led
to scrutinize all the set of
notebooks"
of
respondent
Galang, because he "was
impressed of the writing and
the answers on the first
notebook "as he "was going
over
those
notebooks,
checking the entries in the
grading
sheets
and
the
posting on the record of
ratings." In his affidavit of
August 27, 1973, he stated
that the number 954 on a
Meralco post provoked him "to

Respondent Ramon E. Galang,

alias
Roman
E.
Galang,
asserted, among others;

xxx xxx xxx

4. That it has been
the
consistent
policy
of
the
Supreme Court not
to
reconsider
"failure" cases; after
the official release
thereof; why should
it now reconsider a
"passing"
case,
especially
in
a
situation where the
respondent and the
bar confidant do not
know each other
and, indeed, met
only once in the
ordinary course of
official business?
It is not inevitable,
then, to conclude
that
the
entire
situation
clearly
manifests
a
reasonable doubt to

48

Legal Ethics

which respondent is
richly entitled?
5. That respondent,
before reading a
copy
of
this
Honorable
Court's
resolution
dated
March 5, 1973, had
no
knowledge
whatsoever
of
former
Bar
Confidant
Victorio
Lanuevo's
actuations
which
are
stated
in
particular in the
resolution. In fact,
the
respondent
never knew this
man intimately nor,
had
the
herein
respondent utilized
anyone to contact
the Bar Confidant
Lanuevo
in
his
behalf.
But, assuming as
true,
the
said
actuations of Bar
Confidant Lanuevo
as stated in the
Resolution,
which
are
evidently
purported to show
as
having
redounded to the
benefit of herein
respondent,
these
questions
arise:
First, was the reevaluation
of
Respondent's
examination papers
by
the
Bar
Examination
Committee
done
only or especially
for him and not
done generally as
regards the paper of
the
other
bar

candidates who are

supposed to have
failed? If the reevaluation
of
Respondent's
grades was done
among
those
of
others, then it must
have been done as
a matter of policy of
the Committee to
increase
the
percentage
of
passing
in
that
year's examination
and, therefore, the
insinuation
that
only
respondent's
papers
were
reevaluated upon the
influence
of
Bar
Confidant Lanuevo
would
be
unjustifiable, if not
far
fetched.
Secondly, is the fact
that
BarConfidant
Lanuevo's
actuations resulted
in
herein
Respondent's
benefit an evidence
per
se
of
Respondent's
having
caused
actuations of Bar
confidant Lanuevo
to
be
done
in
former's behalf? To
assume this could
be
disastrous in
effect because that
would be presuming
all the members of
the Bar Examination
Committee
as
devoid of integrity,
unfit for the bar
themselves and the
result of their work
that year, as also
unworthy
of
anything.
All
of
49

Legal Ethics

these inferences are

deductible from the
narration of facts in
the resolution, and
which only goes to
show said narration
of
facts
an
unworthy
of
credence,
or
consideration.
xxx xxx xxx
7. This Honorable
Tribunal's Resolution
of March 5, 1973
would make this
Respondent
Account or answer
for the actuations of
Bar
Confidant
Lanuevo as well as
for the actuations of
the Bar Examiners
implying
the
existence of some
conspiracy between
them
and
the
Respondent.
The
evident imputation
is denied and it is
contended that the
Bar Examiners were
in the performance
of their duties and
that they should be
regarded as such in
the consideration of
this case.
xxx xxx xxx (Adm.
Case No. 1163, pp.
100-104, rec.).
I
The evidence thus disclosed
clearly
demonstrates
how
respondent
Lanuevo
systematically and cleverly
initiated and prepared the
stage leading to the reevalation and/or recorrection

of the answers of respondent

Galang
by
deceiving
separately and individually
the respondents-examiners to
make the desired revision
without prior authority from
the Supreme Court after the
corrected notebooks had been
submitted
to
the
Court
through the respondent Bar
Confidant, who is simply the
custodian thereof for and in
behalf of the Court.
It appears that one evening,
sometime around the middle
part of December, 1971, just
before
Christmas
day,
respondent
Lanuevo
approached
Civil
Law
examiner Pamatian while the
latter was in the process of
correcting
examination
booklets, and then and there
made the representations that
as BarConfidant, he makes a
review of the grades obtained
in
all
subjects
of
the
examinees and if he finds that
a
candidate
obtains
an
extraordinarily high grade in
one subject and a rather low
one on another, he will bring
back
to
the
examiner
concerned the notebook for
re-evaluation and change of
grade(Exh. 2-Pamatian, Adm.
Case No. 1164, pp. 55-56; Vol.
V, pp. 3-4, rec.).
Sometime in the latter part of
January, 1972, respondent
Lanuevo brought back to
respondent-examiner
Pamatian
an
examination
booklet in Civil Law for reevaluation, representing that
the examinee who owned the
particular notebook is on the
borderline of passing and if
his grade in said subject could
be reconsidered to 75%, the
said examine will get a
50

Legal Ethics

passing average. Respondentexaminer

Pamatian
took
respondent Lanuevo's word
and under the belief that was
really the practice and policy
of the Supreme Court and in
his further belief that he was
just manifesting cooperation
in doing so, he re-evaluated
the paper and reconsidered
the examinee's grade in said
subject to 75% from 64%. The
particular notebook belonged
to
an
examinee
with
Examiner's Code Number 95
and with Office Code Number
954. This examinee is Ramon
E. Galang, alias Roman E.
Galang. Respondent Pamatian
did not know the identity of
the examinee at the time he
re-evaluated the said booklet
(Exhs.
1-Pamatian,
2Pamatian, and 3-Pamatian,
Adm. Case No. 1164, pp. 3233, 55-56, 57; Vol. V, pp. 3-4,
rec.).
Before Justice Pamatian made
the revision, Examinee Galang
failed
in
seven
subjects
including Civil Law. After such
revision, examinee Galang still
failed in six subjects and could
not
obtain
the
passing
average of 75% for admission
to the Bar.
Thereafter, about the latter
part of January, 1972 or early
part
of
February,
1972,
respondent Lanuevo went to
the residence of respondentexaminer Fidel Manalo at
1854 Asuncion Street, Makati,
Rizal, with an examinee's
notebook in Remedial Law,
which respondent Manalo and
previously
corrected
and
graded. Respondent Lanuevo
then requested respondent
Manalo to review the said
notebook and possibly to

reconsider the grade given,

explaining and representing
that "they" has reviewed the
said notebook and that the
examinee
concerned
had
done well in other subjects,
but that because of the
comparatively
low
grade
given said examinee by
respondent
Manalo
in
Remedial Law, the general
average of said examinee was
short of passing. Respondent
Lanuevo likewise made the
remark and observation that
he thought that if the
notebook
were
reviewed,
respondent Manalo might yet
find the examinee deserving
of being admitted to the Bar.
Respondent
Lanuevo
also
particularly
called
the
attention
of
respondent
Manalo to the fact that in his
answers,
the
examinee
expressed himself clearly and
in good English. Furthermore,
respondent Lanuevo called
the attention of respondent
Manalo to Paragraph 4 of the
Confidential
Memorandum
that read as follows:
4.
Examination
questions should be
more a test of logic,
knowledge of legal
fundamentals, and
ability to analyze
and
solve
legal
problems
rather
than
a test
of
memory;
in
the
correction
of
papers, substantial
weight should be
given to clarify of
language
and
soundness
of
reasoning.
Respondent
however,

Manalo
informed

was,
by
51

Legal Ethics

respondent Lanuevo that the

matter of reconsideration was
entirely within his (Manalo's)
discretion.
Respondent
Manalo,
believing
that
respondent Lanuevo, as Bar
Confidant, had the authority
to make such request and
further believing that such
request
was
in
order,
proceeded to re-evaluate the
examinee's answers in the
presence
of
Lanuevo,
resulting in an increase of the
examinee's grade in that
particular subject, Remedial
Law, from 63.25% to 74.5%.
Respondent
Manalo
authenticated
with
his
signature the changes made
by him in the notebook and in
the grading sheet. The said
notebook examiner's code
number is 136, instead of 310
as earlier mentioned by him in
his affidavit, and belonged to
Ramon E. Galang, alias Roman
E. Galang (Exhs. 1 & 2Manalo, Adm. Case No. 1164,
pp. 36-39, 74-75; Vol. V, pp.
50-53, rec.).
But even after the reevaluation by Atty. Manalo,
Examinee Galang could not
make the passing grade due
to his failing marks in five
subjects.
Likewise, in the latter part of
January,
1972,
on
one
occasion when respondent
Lanuevo went to deliver to
respondent Guillermo Pablo, Jr.
in the latter's house a new
batch of examination papers
in Political Law and Public
International
Law
to
be
corrected,
respondent
Lanuevo
brought
out
a
notebook in Political Law
bearing Examiner's
Code
Number 1752 (Exh. 5-Pardo,

Adm. Case No. 1164, p. 66,

rec.), informing respondent
Pablo that
particular
examinee who owns the said
notebook seems
to
have
passed in all other subjects
except in Political Law and
Public International Law; and
that if the said notebook
would be re-evaluated and
the mark be increased to at
least 75%, said examinee will
pass the bar examinations.
After satisfying himself from
respondent
that
this
is
possible the respondent
Bar Confidant informing him
that this is the practice of the
Court to help out examinees
who are failing in just one
subject respondent Pablo
acceded to the request and
thereby told the Bar Confidant
to
just
leave
the
said
notebook. Respondent Pablo
thereafter re-evaluated the
answers,
this
time
with
leniency.
After
the
reevaluation, the grade was
increased to 78% from 68%,
or an increase of 10%.
Respondent Pablo then made
the corresponding corrections
in the grading sheet and
accordingly
initialed
the
charges made. This notebook
with Office Code Number 954
also belonged to Ramon E.
Galang, alias Roman E. Galang
(Vol. V, pp. 43-46, rec.).
After the re-evaluation by Atty.
Pablo, Jr., examinee Galang's
general average was still
below the passing grade,
because of his failing marks in
four subjects.
Towards the end of the
correction
of
examination
notebooks,
respondent
Lanuevo brought back to
respondent
Tomacruz
one
52

Legal Ethics

examination
booklet
in
Criminal Law, with the former
informing the latter, who was
then helping in the correction
of papers in Political Law and
Public International Law, as he
had
already
finished
correcting the examination
notebooks in his assigned
subject Criminal Law that
the examinee who owns that
particular
notebook
had
missed the passing grade by
only a fraction of a percent
and that if his grade in
Criminal Law would be raised
a few points to 75%, then the
examinee would make the
passing grade. Accepting the
words of respondent Lanuevo,
and seeing the justification
and because he did not want
to be the one causing the
failure
of
the
examinee, respondent
Tomacruz raised the grade
from
64%
to
75% and
thereafter, he initialed the
revised mark and also revised
the mark in the general list
and likewise initialed the
same.
The
examinee's
Examiner Code Number is 746
while his Office Code Number
is 954. This examinee is
Ramon E. Galang, alias Roman
E. Galang (Exhs. 1, 2 & 3Tomacruz, Adm. Case No.
1164, pp. 65, 66 and 71; Vol.
V, pp. 24-25, 60-61, rec.).
Respondent Tomacruz does
not recall having been shown
any memo by respondent
Lanuevo when the latter
approached him for this
particular
re-evaluation;
but he remembers Lanuevo
declaring to him that where a
candidate had almost made
the passing average but had
failed in one subject, as a
matter of policy of the Court,

leniency
is
applied
in
reviewing
the
examinee's
notebook
in
the
failing
subject. He recalls, however,
that he was provided a copy
of
the
Confidential
Memorandum but this was
long before the re-evaluation
requested
by
respondent
Lanuevo as the same was
received by him before the
examination period (Vol. V, p.
61, rec.).
However, such revision by
Atty. Tomacruz could not raise
Galang's general average to a
passing grade because of his
failing mark in three more
subjects, including Mercantile
Law. For the revision of
examinee Galang's notebook
in Mercantile Law, respondent
Lanuevo neatly set the last
phase of his quite ingenious
scheme

by
securing
authorization from the Bar
Examination Committee for
the examiner in Mercantile
Law
tore-evaluate
said
notebook.
At the first meeting of the Bar
Examination Committee on
February 8, 1972, respondent
Lanuevo
suggested
that
where an examinee failed in
only one subject and passed
the
rest,
the
examiner
concerned would review the
notebook. Nobody objected to
it as irregular and the
Committee
adopted
the
suggestion (Exhs. A & BMontecillo, Exh. 2-Pardo, Adm.
Case No. 1164, pp. 41, 72, 63;
Vol. Vi, p. 16, rec.).
At a subsequent meeting of
the
Bar
Examination
Committee,
respondent
Montecillo was informed by
respondent Lanuevo that a
53

Legal Ethics

candidate passed all other

subjects except Mercantile
Law. This information was
made during the meeting
within hearing of the order
members,
who
were
all
closely
seated
together.
Respondent Montecillo made
known his willingness toreevaluate the particular paper.
The next day, respondent
Lanuevo
handed
to
respondent Montecillo a bar
candidate's notebook with
Examiner's
Code
Number
1613 with a grade of 61%.
Respondent Montecillo then
reviewed the whole paper and
after
re-evaluating
the
answers, decided to increase
the final grade to 71%. The
matter was not however
thereafter officially brought to
the
Committee
for
consideration
or
decision
(Exhs. A& B-Montecillo, Adm.
Case No. 1164, pp. 40-41, 7071; Vol. V, pp. 33-34, rec.).
Respondent
Montecillo
declared that without being
given the information that the
particular examinee failed
only in his subject and passed
all the others, he would not
have consented to make the
re-evaluation of the said
paper(Vol.
V,
p.
33,
rec.).Respondent
Montecillo
likewise added that there was
only
one
instance
he
remembers,
which
is
substantiated by his personal
records, that he had to
change the grade of an
examinee
after
he
had
submitted his report, referring
to the notebook of examinee
Ramon E. Galang, alias Roman
E. Galang, with Examiner's
Code Number 1613 and with
Office Code Number 954 (Vol.
V, pp. 34-35, rec.).

A day or two after February 5,

1972,
when
respondent
Lanuevo
went
to
the
residence
of
respondentexaminer Pardo to obtain the
last bag of 200 notebooks,
respondent Lanuevo returned
to the residence of respondent
Pardo riding in a Volkswagen
panel of the Supreme Court of
the Philippines with two
companions.
According
to
respondent Lanuevo, this was
around the second week of
February, 1972, after the first
meeting
of
the
Bar
Examination
Committee.
respondent Lanuevo had with
him on that occasion an
examinee's notebook bearing
Examiner's
Code
No.
661. Respondent
Lanuevo,
after
the
usual
amenities, requested
respondent Pardo to review
and re-examine, if possible,
the said notebook because,
according
to
respondent
Lanuevo, the examine who
owns that particular notebook
obtained higher grades in
other subjects, the highest of
which is 84% in Remedial Law.
After clearing with respondent
Lanuevo his authority to
reconsider
the
grades, respondent Pardo reevaluated the answers of the
examine concerned, resulting
in an increase of grade from
57% of 66%. Said notebook
has number 1622 as office
code number. It belonged to
examinee Ernesto Quitaleg
(Exhs. 1 & 2-Pardo, Adm. Case
No. 1164, pp. 58-63; Vol. V,
pp. 12-24, 29-30, rec.).
II
Re: Administrative Case No.
1162, Victorio D. Lanuevo,
respondent.
54

Legal Ethics

A
UNAUTHORIZED
REEVALUATION
OF
THE
ANSWERS
OF
EXAMINE
RAMON E. GALANG, alias
ROMAN E. GALANG, IN ALL
FIVE (5) MAJOR SUBJECTS.
Respondent
Victorio
D.
Lanuevo
admitted
having
requested on his own initiative
the five examiners concerned
to
re-evaluate
the
five
notebooks
of
Ramon
E.
Galang,
alias
Roman
E.
Galang,
that
eventually
resulted in the increase of
Galang's
average
from
66.25% to the passing grade
74.15%, or a total increase of
eight (8) weighted points,
more or less, that enabled
Galang to hurdle the 1971 Bar
examinations via a resolution
of the Court making 74% the
passing average for that
year's examination without
any grade below fifty percent
(50%) in any subject. Galang
thereafter took his lawyer's
oath. It is likewise beyond
dispute that he had no
authority from the Court or
the Committee to initiate such
steps towards the said reevaluation of the answers of
Galang or of other examinees.
Denying
that
he
made
representations
to
the
examiners concerned that
respondent Galang failed only
in their respective subjects
and/or was on the borderline
of
passing,
Respondent
Lanuevo sought to justify his
actuations on the authority of
the aforequoted paragraph 4
of
the
Confidential
Memorandum(Exhs. 1 and 1A-Lanuevo, Adm. Cases Nos.
1162 & 1164, p. 51, Adm.

Case No. 1162; Vol. VII, p. 4,

rec.)
distributed
to
the
members
of
the
Bar
Examination Committee. He
maintains that he acted in
good faith and "in his honest
belief that the same merited
re-evaluation; that in doing so,
it was not his intention to
forsake or betray the trust
reposed
in
him
as
BarConfidant but on the
contrary to do justice to the
examinee concerned; and that
neither did he act in a
presumptuous
manner
because
the
matter
of
whether or not re-evaluation
was in order was left alone to
the examiners' decision ..."
(Exh. 2-Lanuevo, Adm. Case
No. 1162, pp. 35-37, rec.).
But as openly admitted by
him in the course of the
investigation,
the
said
confidential
memorandum
was intended solely for the
examiners to guide them in
the initial correction of the
examination papers and never
as a basis for him to even
suggest to the examiners the
re-evaluation
of
the
examination papers of the
examinees (Vol. VII, p. 23,
rec.). Any such suggestion or
request
is
not
only
presumptuous
but
also
offensive to the norms of
delicacy.
We believe the Examiners
Pablo,
Manalo,
Montecillo,
Tomacruz, Pardo and Pamatian
whose declarations on the
matter
of
the
misrepresentations
and
deceptions
committed
by
respondent Lanuevo, are clear
and consistent as well as
corroborate each other.
55

Legal Ethics

For indeed the facts unfolded

by the declarations of the
respondents-examiners (Adm.
Case No. 1164) and clarified
by
extensive
crossexamination conducted during
the investigation and hearing
of the cases show how
respondent Lanuevo adroitly
maneuvered the passing of
examinee Ramon E. Galang,
alias Roman E. Galang in the
1971 Bar Examinations. It is
patent likewise from the
records
that
respondent
Lanuevo too undue advantage
of the trust and confidence
reposed in him by the Court
and the Examiners implicit in
his position as BarConfidant
as well as the trust and
confidence that prevailed in
and
characterized
his
relationship with the five
members of the 1971 Bar
Examination Committee, who
were thus deceived and
induced into re-evaluating the
answers
of only respondent
Galang in five subjects that
resulted in the increase of his
grades
therein,
ultimately
enabling him to be admitted a
member of the Philippine Bar.
It was plain, simple and
unmitigated deception that
characterized
respondent
Lanuevo's well-studied and
well-calculated
moves
in
successively
representing
separately to each of the five
examiners concerned to the
effect that the examinee
failed only in his particular
subject and/or was on the
borderline of passing. To
repeat,
the
before
the
unauthorized
re-evaluations
were made, Galang failed in
the five (5) major subjects and
in two (2) minor subjects while
his general average was only

66.25% which under no

circumstances or standard
could it be honestly claimed
that the examinee failed only
in one, or he was on the
borderline of passing. In fact,
before the first notebook of
Galang was referred back to
the examiner concerned for
re-evaluation,
Galang
had
only one passing mark and
this was in Legal Ethics and
Practical Exercises, a minor
subject, with grade of 81%.
The averages and individual
grades of Galang before and
after the unauthorized reevaluation are as follows:
BAI
1. Political Law
Public
International Law
68% 78% = 10 pts.
or 30 weighted
points
BAI
Labor Laws and
Social
Legislations 67%
67% = no reevaluation made.
2. Civil Law 64%
75% = 1 points
or 33 weighted
points.
Taxation 74% 74%
= no reevaluation made.
3. Mercantile Law
61% 71% = 10 pts.
or 30 weighted
points.
4. Criminal Law 64%
75% = 11 pts. or
22 weighted points.
56

Legal Ethics

5. Remedial Law
63.75% (64) 75.5%
(75%) =
11 pts. or 44
weighted points.
Legal Ethics and
Practical
Exercises 81% 81%
= no reevaluation made.

General Weighted
Averages 66.25%
74.15%
Hence,
by
the
simple
expedient of initiating the reevaluation of the answers of
Galang in the five (5) subjects
under
the
circumstances
already narrated, Galang's
original average of 66.25%
was increased to 74.15% or
an increase of 7.9 weighted
points, to the great damage
and prejudice of the integrity
of the Bar examinations and
to the disadvantage of the
other examinees. He did this
in favor only of examinee
Galang, with the possible
addition of examinees Ernesto
Quitaleg and Alfredo Ty dela
Cruz. But only one notebook
was re-evaluated for each of
the latter who Political Law
and Public International Law
for Quitaleg and Mercantile
Law for Ty dela Cruz.
The
Office
of
the
Bar
Confidant, it must be stressed,
has absolutely nothing to do
in
the
re-evaluation
or
reconsideration of the grades
of examinees who fail to make
the passing mark before or
after their notebooks are
submitted to it by the
Examiners. After the corrected

notebooks are submitted to

him by the Examiners, his
only function is to tally the
individual grades of every
examinee in all subjects taken
and thereafter compute the
general average. That done,
he will then prepare a
comparative data showing the
percentage of passing and
failing in relation to a certain
average to be submitted to
the Committee and to the
Court and on the basis of
which the Court will determine
the passing average, whether
75 or 74 or 73, etc. The Bar
Confidant has no business
evaluating the answers of the
examinees
and
cannot
assume the functions of
passing upon the appraisal
made by the Examiners
concerned. He is not the overall Examiner. He cannot
presume to know better than
the examiner. Any request for
re-evaluation should be done
by the examinee and the
same should be addressed to
the Court, which alone can
validly act thereon. A Bar
Confidant who takes such
initiative, exposes himself to
suspicion
and
thereby
compromises his position as
well as the image of the
Court.
Respondent Lanuevo's claim
that he was merely doing
justice to Galang without any
intention of betraying the
trust and confidence reposed
in him by the Court as Bar
Confidant, can hardly invite
belief in the fact of the
incontrovertible fact that he
singled out Galang's papers
for re-evaluation, leaving out
the papers of more than
ninety (90) examinees with far
better averages ranging from
57

Legal Ethics

70% to 73.9% of which he was

fully aware (Vol. VI, pp. 46-47,
101, rec.), which could be
more properly claimed as
borderline cases. This fact
further betrays respondent
Lanuevo's claim of absolute
good faith in referring back
the papers of Galang to the
Examiners for re-evaluation.
For certainly, as against the
original weighted average of
66.25% of Galang, there can
hardly be any dispute that the
cases of the aforesaid more
than ninety (90) examinees
were
more deserving of
reconsideration. Hence, in
trying to do justice to Galang,
as claimed by respondent
Lanuevo, grave injustice was
inflicted
on
the
other
examinees of the 1971 Bar
examinations, especially the
said
more
than
ninety
candidates.
And
the
unexplained
failure
of
respondent
Lanuevo
to
apprise the Court or the
Committee or even the Bar
Chairman of the fact of reevaluation before or after the
said
re-evaluation
and
increase of grades, precludes,
as the same is inconsistent
with, any pretension of good
faith.
His request for the reevaluation of the notebook in
Political Law and International
Law of Ernesto Quitaleg and
the notebook in Mercantile
Law of Alfredo Ty dela Cruz to
give his actuations in the case
of Galang a semblance of
impartiality, hoping that the
over ninety examinees who
were far better situated than
Galang would not give him
away. Even the re-evaluation
of one notebook of Quitaleg
and one notebook of Ty dela

Cruz violated the agreement

of the members of the 1971
Bar Examination Committee
to re-evaluate when the
examinee concerned fails only
in one subject. Quitaleg and
Ty dela Cruz failed in four (4)
and
three
(3)
subjects
respectively as hereinafter
shown.
The strange story concerning
the figures 954, the office
code
number
given
to
Galang's notebook, unveiled
for
the
first
time
by
respondent Lanuevo in his
suplemental
sworn
statement(Exh. 3- Lanuevo,
Adm. Case No. 1162, pp. 4547. rec.) filed during the
investigation with this Court
as to why he pried into the
papers of Galang deserves
scant consideration. It only
serves to picture a man
desperately
clutching
at
straws in the wind for support.
Furthermore, it was revealed
by respondent Lanuevo for
the first time only on August
27, 1973 or a period of more
than five 95) months after he
filed his answer on March 19,
1973(Exh. 2-Lanuevo, Adm.
Case No. 1162, pp. 35-36,
rec.), showing that it was just
an after-thought.
B
REFERRAL
OF
EXAMINEE
ALFREDO TY DELA CRUZ
NOTEBOOK IN MERCHANTILE
LAW TO RAISE HIS GRADE OF
47% TO 50% TO EXAMINER
MANUEL MONTECILLO AND OF
EXAMINEE
ERNESTO
QUITALEG'S NOTEBOOK IN
POLITICAL LAW TO EXAMINER
BERNARDO PARDO FOR REEVALUATION, RESULTING IN
THE INCREASE OF HIS GRADE
58

Legal Ethics

IN THAT SUBJECT FROM 57%

TO 66%.
Likewise, respondent Victorio
D. Lanuevo admitted having
referred back the aforesaid
notebooks on Mercantile Law
and Political Law respectively
of Alfredo Ty dela Cruz and
Ernesto
Quitaleg
to
the
Examiners concerned.
The records are not clear,
however,
under
what
circumstances the notebooks
of Ty dela Cruz and Quitaleg
were referred back to the
Examiners
concerned.
Respondent Lanuevo claimed
that these two cases were
officially brought to the Bar
Examination
Committee
during its first meeting (Vol.
VI, pp. 50-51, rec.) and the
latter decided to refer them
back
to
the
Examiners
concerned for re-evaluation
with respect to the case of
Quitaleg and to remove the
disqualification in the case of
Ty dela Cruz(Vol. VI, pp. 33-39,
84-86,
rec.).
Respondent
Lanuevo further claimed that
the date of these two cases
were contained in a sheet of
paper which was presented at
the said first meeting of the
Committee (Vol. VI, pp. 39-43,
49-51, rec.). Likewise a record
of the dates of every meeting
of the Committee was made
by respondent Lanuevo (Vol.
VI, p. 28, rec.). The alleged
sheet containing the date of
the two examinees and record
of the dates of the meeting of
the Committee were not
presented
by
respondent
Lanuevo as, according to him,
he left them inadvertently in
his desk in the Confidential
Room when he went on leave
after the release of the Bar

results (Vol. VI, pp. 28, 41-45,

rec.). It appears, however,
that the inventory conducted
by officials of the Court in the
Confidential
Room
of
respondent Lanuevo did not
yield any such sheet of record
(Exh. X, Adm. Case No. 1162,
p. 74, rec.; Vol. VIII, pp. 11-13,
20-22, 29-31, rec.).
Respondent
Examiner
Montecillo, Mercantile Law,
maintained that there was
only
one
notebook
in
Mercantile Law which was
officially brought to him and
this is substantiated by his
personal file and record (Vol.
VI, pp. 34-35, rec.). According
to
him,
this
notebook's
examiner code number is
1613 (Vol. V, p.35, rec.) and is
owned by Ramon E. Galang,
alias Roman E. Galang. It
appears, however, that the
original grade of 47% in
Mercantile Law of Ty dela Cruz
was changed to 50% as
appearing in the cover of the
notebook of said examinee
and
the
change
is
authenticated with the initial
of Examiner Montecillo. He
was present when respondent
Lanuevo
presented
in
evidence the notebook of Ty
dela Cruz bearing Examiner
code number 951 and Office
Code Number 110 as Exhibit
9-Lanuevo in Administrative
Case No. 1162, and the
figures
47
crossed
out,
replaced by the figures 50
bearing the initial of Examiner
Montecillo as Exhibit 9-aLanuevo (Adm. Case No.
1162, p. 48, rec.; Vol. VI, pp.
23-24, Vol. VIII, p. 4, rec.); but
Atty.
Montecillo
did
not
interpose any objection to
their admission in evidence.
59

Legal Ethics

In this connection, respondent

Examiner Pardo testified that
he remembers a case of an
examinee presented to the
Committee,
who
obtained
passing marks in all subjects
except in one and the
Committee agreed to refer
back
to
the
Examiner
concerned the notebook in the
subject in which the examinee
failed (Vol. V, pp. 15-16, rec.).
He cannot recall the subject,
but he is certain that it was
not Political Law (Vol. V, p. 16,
rec.).Further, Pardo declared
that he is not aware of any
case of an examinee who was
on the borderline of passing
but who got a grade below
50% in one subject that was
taken up by the Committee
(Vol. V, pp. 16-17, rec.).
Examiner Montecillo testified
that it was the notebook with
Examiner Code Number 1613
(belonging to Galang) which
was referred to the Committee
and the Committee agreed to
return it to the Examiner
concerned. The day following
the meeting in which the case
of an examinee with Code
Number 1613 was taken up,
respondent Lanuevo handed
him said notebook and he
accordingly re-evaluated it.
This particular notebook with
Office Code Number 954
belongs to Galang.
Examiner Tomacruz recalled a
case of an examinee whose
problem was Mercantile Law
that was taken up by the
Committee. He is not certain
of any other case brought to
the Committee (Vol. V, pp. 5961, rec.). Pardo declared that
there was no case of an
examinee that was referred to
the Committee that involved

Political Law. He re-evaluated

the
answers
of
Ernesto
Quitaleg in Political Law upon
the representation made by
respondent Lanuevo to him.
As heretofore stated, it was
this consensus at the meeting
on February 8, 1972 of the
members of the Committee
that where an examinee failed
in only one subject and
passed all the others, the
Examiner in whose subject the
examinee failed should reevaluate or recheck the
notebook (Vol. V, p. 16, rec.:
Exh. 2-Pardo, allegation No. 9,
Adm. Case No. 1164, pp. 6063,
Exh.
A-Montecillo,
Allegation No. 2, Adm. Case
No. 1164, pp. 40-41, and Exh.
B-Montecillo, Adm. Case No.
1164, p. 72, rec.).
At the time the notebook of
Ernesto Quitaleg in Political
Law with a grade of 57% was
referred back to Examiner
Pardo, said examinee had
other failing grades in three
(3) subjects, as follows:
Labor
Laws 3%
Taxation
69%
Mercantil
e
Law
68%
Ernesto Quitaleg's grades and
averages before and after the
re-evaluation of his grade in
Political Law are as follows:
BA
Political
Law 57%
66% = 9
pts. or 27
60

Legal Ethics

weighted
points
Labor
Laws 73%
73% = No
reevaluati
on
Civil Law
75% 75%
="
Taxation
69% 69%
="
Mercantil
e Law
68% 68%
="
Criminal
Law 78%
78% = "
Remedial
Law 85%
85% = "
Legal
Ethics
83% 83%
="

i
t
i
c
a
l
L
a
w
7
0
%
T
a
x
a
t
i
o
n
7
2
%
His grades and averages
before
and
after
the
disqualifying
grade
was
removed are as follows:

Average
(weighted
) 73.15%
74.5%

BA

(Vol. VI, pp. 26-27; Exhs. 10

and 10-A-Lanuevo, Adm. Case
No. 1162, rec.)
Alfredo Ty dela Cruz, at the
time
his
notebook
in
Mercantile Law was referred
to Examiner Montecillo to
remove the disqualification
grade of 47% in said subject,
had two (2) other failing
grades. These are:
P
o
l

Political
Law 70%
70% = No
reevaluati
on
Labor
Laws 75%
75% = "
Civil Law
89% 89%
="
Taxation
72% 72%
="
Mercantil
e Law
47% 50%
= 3 pts.
61

Legal Ethics

or 9
weighted
points
Criminal
Law 78%
78% = no
reevaluati
on
Remedial
Law 88%
88% = "
Legal
Ethics
79% 79%
="

Remedial Law was considered

75% under the Confidential
Memorandum and was so
entered in the record. His
grade in Mercantile Law as
subsequently re-evaluated by
Examiner Montecillo was 71%.

Weighted
Averages
74.95%
75.4%

As
to
whether
Ernesto
Quitaleg and Alfredo Ty dela
Cruz should be disbarred or
their names stricken from the
Roll of Attorneys, it is believed
that they should be required
to show cause and the
corresponding
investigation
conducted.

(Vol. VI, pp. 26-27, rec.).

The re-evaluation of the
answers of Quitaleg in Political
Law and the answers of Ty
dela Cruz in Mercantile Law,
violated the consensus of the
Bar Examination Committee in
February,
1971,
which
violation was due to the
misrepresentation
of
respondent Lanuevo.
It must be stated that the
referral of the notebook of
Galang in Mercantile Law to
Examiner
Montecillo
can
hardly be said to be covered
by the consensus of the Bar
Examination
Committee
because even at the time of
said referral, which was after
the
unauthorized
reevaluation of his answers of
four (4) subjects, Galang had
still failing grades in Taxation
and Labor Laws. His reevaluated grade of 74.5% in

Respondent
Lanuevo
is
therefore guilty of serious
misconduct of having
betrayed
the
trust
and
confidence reposed in him as
Bar
Confidant,
thereby
impairing the integrity of the
Bar
examinations
and
undermining public faith in
the Supreme Court. He should
be disbarred.

III
Re: Administrative Case No.
1163, Ramon E. Galang, alias
Roman E. Galang, respondent.
A
The name of respondent
Ramon E. Galang, alias Roman
E. Galang, should likewise be
stricken off the Roll of
Attorneys. This is a necessary
consequence
of
the
unauthorized re-evaluation of his
answers in five(5) major
subjects Civil Law, Political
and
International
Law,
Criminal Law, Remedial Law,
and Mercantile Law.
The judicial function of the
Supreme Court in admitting
62

Legal Ethics

candidates
to
the
legal
profession, which necessarily
involves
the
exercise
of
discretion,
requires:
(1)
previous established rules and
principles; (2) concrete facts,
whether past or present,
affecting
determinate
individuals; and (3) a decision
as to whether these facts are
governed by the rules and
principles (In re: Cunanan
Flunkers'
Petition
for
Admission to the Bar -- 94
Phil. 534, 544-545). The
determination of whether a
bar candidate has obtained
the required passing grade
certainly involves discretion
(Legal and Judicial Ethics,
Justice Martin, 1969 ed., p.
13).
In the exercise of this
function,
the
Court
acts
through a Bar Examination
Committee, composed of a
member of the Court who acts
as Chairman and eight (8)
members of the Bar who act
as examiners in the eight (8)
bar subjects with one subject
assigned to each. Acting as a
sort of liaison officer between
the Court and the Bar
Chairman, on one hand, and
the individual members of the
Committee, on the other, is
the Bar Confidant who is at
the same time a deputy clerk
of the Court. Necessarily,
every act of the Committee in
connection with the exercise
of discretion in the admission
of examinees to membership
of the Bar must be in
accordance
with
the
established rules of the Court
and must always be subject to
the final approval of the Court.
With respect to the Bar
Confidant, whose position is
primarily confidential as the

designation
indicates,
his
functions in connection with
the conduct of the Bar
examinations are defined and
circumscribed by the Court
and must be strictly adhered
to.
The re-evaluation by the
Examiners concerned of the
examination
answers
of
respondent Galang in five (5)
subjects, as already clearly
established, was initiated by
Respondent Lanuevo without
any authority from the Court,
a serious breach of the trust
and confidence reposed by
the Court in him as Bar
Confidant. Consequently, the
re-evaluation that enabled
respondent Galang to pass
the 1971 Bar examinations
and to be admitted to the Bar
is a complete nullity. The Bar
Confidant does not possess
any discretion with respect to
the matter of admission of
examinees to the Bar. He is
not clothed with authority to
determine whether or not an
examinee's answers merit reevaluation or re-evaluation or
whether
the
Examiner's
appraisal of such answers is
correct. And whether or not
the examinee benefited was
in connivance or a privy
thereto is immaterial. What is
decisive
is
whether
the
proceedings or incidents that
led
to
the
candidate's
admission to the Bar were in
accordance with the rules.
B
Section 2 of Rule 138 of the
Revised Rules of Court of
1964, in connection, among
others, with the character
requirement of candidates for
admission to the Bar, provides
63

Legal Ethics

that "every applicant for

admission as a member of the
Bar must be ... of good
moral character ... and must
produce before the Supreme
Court satisfactory evidence of
good moral character, and
that no charges against him
involving
moral
turpitude,
have been filed or are pending
in
any
court
in
the
Philippines." Prior to 1964, or
under the old Rules of Court, a
bar applicant was required to
produce before the Supreme
Court satisfactory testimonials
of good moral character (Sec.
2, Rule 127). Under both rules,
every applicant is duty bound
to lay before the Court all his
involvement in any criminal
case, pending or otherwise
terminated, to enable the
Court to fully ascertain or
determine applicant's moral
character. Furthermore, as to
what crime involves moral
turpitude, is for the supreme
Court to determine. Hence,
the necessity of laying before
or informing the Court of one's
personal record whether he
was
criminally
indicted,
acquitted, convicted or the
case dismissed or is still
pending becomes more
compelling. The forms for
application to take the Bar
examinations provided by the
Supreme Court beginning the
year
1965
require
the
disclosure not only of criminal
cases
involving
moral
turpitude filed or pending
against the applicant but also
of all other criminal cases of
which he has been accused. It
is of course true that the
application form used by
respondent Galang when he
took the Bar for the first time
in 1962 did not expressly
require the disclosure of the

applicant's criminal records, if

any. But as already intimated,
implicit in his task to show
satisfactory evidence or proof
of good moral character is his
obligation to reveal to the
Court all his involvement in
any criminal case so that the
Court can consider them in
the
ascertainment
and
determination of his moral
character. And undeniably,
with the applicant's criminal
records before it, the Court
will be in a better position to
consider the applicant's moral
character; for it could not be
gainsaid that an applicant's
involvement in any criminal
case, whether pending or
terminated by its dismissal or
applicant's
acquittal
or
conviction, has a bearing
upon his character or fitness
for admission to the Bar. In
1963
and
1964,
when
respondent Galang took the
Bar for the second and third
time,
respectively,
the
application form provided by
the Court for use of applicants
already required the applicant
to declare under oath that "he
has not been accused of,
indicted for or convicted by
any court or tribunal of any
offense
involving
moral
turpitude; and that there is no
pending case of that nature
against him." By 1966, when
Galang
took
the
Bar
examinations for the fourth
time, the application form
prepared by the Court for use
of applicants required the
applicant to reveal all his
criminal
cases
whether
involving moral turpitude or
not. In paragraph 4 of that
form, the applicant is required
under oath to declare that "he
has not been charged with
any offense before a Fiscal,
64

Legal Ethics

Municipal Judge, or other

officer; or accused of, indicted
for or convicted by any court
or tribunal of any crime
involving moral turpitude; nor
is there a pending case
against him" (Adm. Case No.
1163, p. 56, rec.). Yet,
respondent Galang continued
to intentionally withhold or
conceal from the Court his
criminal case of slight physical
injuries which was then and
until now is pending in the
City Court of Manila; and
thereafter repeatedly omitted
to make mention of the same
in his applications to take the
Bar examinations in 1967,
1969 and 1971.
All told, respondent Ramon E.
Galang,
alias
Roman
E.
Galang,
is
guilty
of
fraudulently concealing and
withholding from the Court his
pending criminal case for
physical injuries in 1962,
1963, 1964, 1966, 1967, 1969
and 1971; and in 1966,
1967,1969 and 1971, he
committed perjury when he
declared under oath that he
had no pending criminal case
in
court.
By
falsely
representing to the Court that
he had no criminal case
pending in court, respondent
Galang
was
allowed
unconditionally to take the
Bar examinations seven (7)
times and in 1972 was
allowed to take his oath.
That the concealment of an
attorney in his application to
take the Bar examinations of
the fact that he had been
charged with, or indicted for,
an alleged crime, is a ground
for revocation of his license to
practice law is well settled

(see 165 ALR 1151, 7 CJS

741). Thus:
[1] It requires no
argument to reach
the conclusion that
the respondent, in
withholding
from
the board of law
examiners and from
the justice of this
court, to whom he
applied
for
admission,
information
respecting
so
serious a matter as
an indictment for a
felony, was guilty of
fraud
upon
the
court (cases cited).
[2] It is equally clear
that, had the board
of law examiners, or
the judge to whom
he
applied
for
admission,
been
apprised of the true
situation,
neither
the certificate of the
board nor of the
judge would have
been
forthcoming
(State ex rel. Board
of Law Examiners v.
Podell, 207 N W
709 710).
The license of respondent
Podell
was
revoke
and
annulled, and he was required
to surrender to the clerk of
court the license issued to
him, and his name was
stricken from the roll of
attorneys (p. 710).
Likewise in Re Carpel, it was
declared that:
[1] The power to
admit to the bar on
65

Legal Ethics

motion is conferred
in the discretion of
the
Appellate
Division.'
In
the
exercise
of
the
discretion, the court
should be informed
truthfully
and
frankly of matters
tending to show the
character of the
applicant and his
standing at the bar
of the state from
which he comes.
The
finding
of
indictments against
him, one of which
was
still
outstanding at the
time of his motion,
were facts which
should have been
submitted to the
court, with such
explanations
as
were
available.
Silence respecting
them
was
reprehensible,
as
tending to deceive
the court (165 NYS,
102, 104; emphasis
supplied).
Carpel's admission to the bar
was revoked (p. 105).
Furthermore,
respondent's
persistent
denial
of
his
involvement in any criminal
case despite his having been
apprised by the Investigation
of some of the circumstances
of the criminal case including
the very name of the victim in
that case(he finally admitted
it when he was confronted by
the victim himself, who was
called to testify thereon), and
his continued failure for about
thirteen years to clear his
name in that criminal case up

to the present time, indicate

his lack of the requisite
attributes of honesty, probity
and good demeanor. He is
therefore
unworthy
of
becoming a member of the
noble profession of law.
While this aspect of the
investigation was not part of
the formal resolution of the
Court requiring him to explain
why his name should not be
stricken from the Roll of
Attorneys, respondent Galang
was, as early as August, 1973,
apprised of his omission to
reveal to the Court his
pending criminal case. Yet he
did not offer any explanation
for such omission.
Under the circumstances in
which respondent Ramon E.
Galang,
alias
Roman
E.
Galang, was allowed to take
the Bar examinations and the
highly irregular manner in
which he passed the Bar, WE
have no other alternative but
to order the surrender of his
attorney's certificate and the
striking out of his name from
the Roll of Attorneys. For as
WE said in Re Felipe del
Rosario:
The practice of the
law
is
not
an
absolute right to be
granted every one
who demands it,
but is a privilege to
be
extended
or
withheld
in
the
exercise of sound
discretion.
The
standards of the
legal profession are
not
satisfied
by
conduct
which
merely enables one
to
escape
the
66

Legal Ethics

penalties
of
the
criminal
law.
It
would be a disgrace
to the Judiciary to
receive one whose
integrity
is
questionable as an
officer of the court,
to clothe him with
all the prestige of
its confidence, and
then to permit him
to hold himself as a
duly
authorized
member of the bar
(citing
American
cases) [52 Phil. 399401].
What WE now do with
respondent Ramon E. Galang,
alias Roman E. Galang, in this
present case is not without
any
precedent
in
this
jurisdiction.
WE
had
on
several occasions in the past
nullified the admission of
successful bar candidates to
the membership of the Bar on
the grounds, among others, of
(a)misrepresentations of, or
false pretenses relative to, the
requirement on applicant's
educational attainment [Tapel
vs. Publico, resolution of the
Supreme Court striking off the
name of Juan T. Publico from
the Roll of Attorneys on the
basis of the findings of the
Court Investigators contained
in
their
report
and
recommendation, Feb. 23,
1962; In re: Telesforo A. Diao,
7 SCRA 475-478; (b) lack of
good moral character [In re:
Peralta, 101 Phil. 313-314];
and (c) fraudulent passing of
the Bar examinations [People
vs. Romualdez -- re: Luis
Mabunay, 57 Phil. 151; In re:
Del Rosario, 52 Phil. 399 and
People vs. Castro and Doe, 54
Phil. 42]. In the cases of

Romualdez (Mabunay) and

Castro, the Court found that
the grades of Mabunay and
Castro were falsified and they
were convicted of the crime of
falsification
of
public
documents.
IV
RE: Administrative Case No.
1164,
Assistant
Solicitor
General Bernardo Pardo (now
CFI Judge), Judge Ramon
Pamatian(Later
Associate
Justice of the Court of
Appeals, now deceased)Atty.
Manuel G. Montecillo, Atty.
Fidel Manalo, Atty. Manuel
Tomacruz and Atty. Guillermo
Pablo, Jr., respondents.
All respondents Bar examiners
candidly
admitted
having
made the re-evaluation and/or
re-correction of the papers in
question
upon
the
misrepresentation
of
respondent
BarConfidant
Lanuevo.
All,
however,
professed good faith; and that
they re-evaluated or increased
the grades of the notebooks
without knowing the identity
of the examinee who owned
the said notebooks; and that
they did the same without any
consideration or expectation
of any. These the records
clearly demonstrate and WE
are of the opinion and WE so
declare
that
indeed
the
respondents-examiners made
the
re-evaluation
or
recorrecion in good faith and
without
any
consideration
whatsoever.
Considering however the vital
public interest involved in the
matter
of
admission
of
members to the Bar, the
respondents bar examiners,
67

Legal Ethics

under
the
circumstances,
should have exercised greater
care and caution and should
have been more inquisitive
before
acceding
to
the
request of respondent Bar
Confidant
Lanuevo.
They
could
have
asked
the
Chairman
of
the
Bar
Examination Committee, who
would have referred the
matter to the Supreme Court.
At least the respondentsexaminers
should
have
required respondent Lanuevo
to produce or show them the
complete grades and/or the
average of the examinee
represented by respondent
Lanuevo to have failed only in
their respective and particular
subject and/or was on the
borderline of passing to fully
satisfy themselves that the
examinee
concerned
was
really so circumstances. This
they could have easily done
and the stain on the Bar
examinations could have been
avoided.
Respondent Bar examiners
Montecillo,
Pamatian,
and
Manalo
claimed
and
so
declared under oath that the
answers of respondent Galang
really deserved or merited the
increased grades; and so with
respondent
Pardo
in
connection
with
the
reevaluation
of
Ernesto
Quitaleg's answers in Political
Law.
With
respect
to
respondents Tomacruz and
Pablo, it would appear that
they increased the grades of
Galang in their respective
subject solely because of the
misrepresentations
of
Respondent Lanuevo. Hence,
in the words of respondent
Tomacruz: "You brought to me
one paper and you said that

this particular examinee had

almost passed, however, in
my subject he received 60
something,
I
cannot
remember the exact average
and if he would get a few
points higher, he would get a
passing average. I agreed to
do that because I did not wish
to be the one causing his
failure. ..." (Vol. V, pp. 60-61,
rec.; see also allegations 3
and 4, Exh. 1-Tomacruz, Adm.
Case No. 1164, p. 69, rec.;
emphasis
ours).
And
respondent Pablo: "... he told
me
that
this
particular
examinee seems to have
passed in allot her subject
except this subject and that if
I
can
re-evaluate
this
examination notebook and
increase the mark to at least
75, this particular examinee
will pass the bar examinations
so I believe I asked him 'Is this
being done?' and he said 'Yes,
that is the practice used to be
done before to help out
examinees who are failing in
just one subject' so I readily
acceded to his request and
said 'Just leave it with me and
I will try to re-evaluate' and he
left it with me and what i did
was to go over the book and
tried to be as lenient as I
could. While I did not mark
correct the answers which
were wrong, what I did was to
be more lenient and if the
answers was correct although
it was not complete I raise the
grade so I had a total of 78
instead of 68 and what I did
was to correct the grading
sheet accordingly and initial
the changes" (Vol. V, pp. 4445, rec.; emphasis supplied).
It could not be seriously
denied, however, that the
favorable re-evaluations made
68

Legal Ethics

by
respondents Pamatian,
Montecillo, Manalo and Pardo
notwithstanding
their
declarations
that
the
increases in grades they gave
were
deserved
by
the
examinee concerned, were to
a certain extent influenced by
the misrepresentation and
deception
committed
by
respondent Lanuevo. Thus in
their own words:

(Vol. V, p.
33, rec.;
see also
allegation
s
in
paragrap
hs 2, 3, 4
&
5,
Affidavit
of
April
17, 1972,
Exh.
BMontecillo
;
allegation
No.
2,
Answer
dated
march 19,
1973,
Exh.
AMontecillo
,
Adm.
Case No.
1164, pp.
40-41,
and
72,
rec.).

Montecillo
Q And by
reason of
that
informatio
n
you
made the
reevaluatio
n of the
paper?
A
Yeas,
your
Honor.
Q Would
you have
reevaluated
the paper
of
your
own
accord in
the
absence
of
such
informatio
n?
A
No,
your
Honor,
because I
have
submitted
my report
at
that
time"

Pamatian
3. That sometime in
the later part of
January of this year,
he brought back to
me an examination
booklet in Civil Law
for
re-evaluation
because according
to him the owner of
the paper is on the
borderline and if I
could reconsider his
grade to 75% the
candidate
concerned will get
passing mark;
4. That taking his
word for it and
under the belief
that it was really
the practice and
69

Legal Ethics

policy
of
the
Supreme Court to
do so and in the
further belief that I
was
just
manifesting
cooperation
in
doing so, I reevaluated the paper
and
reconsidered
the
grade
to
75%; ..." (Exh. 2Pamatian,
Adm.
Case No. 1164, p.
55, rec.); and
5. That the above
re-evaluation
was
made in good faith
and under the belief
that I am authorized
to do so in view of
them
is
representation
of
said Atty. Victorio
Lanuevo, ..." (Exh.
1-Pamatian,
Adm.
Case No. 1164, pp.
33-34, rec.).
Manalo
(c) In revising the
grade
of
the
particular examinee
concerned,
herein
respondent
carefully evaluated
each
and
every
answer written in
the
notebook.
Testing the answer
by the criteria laid
down by the Court,
and giving the said
examinee
the
benefit of the doubt
in
view
of
Mr.
Lanuevo's
representation that
it was only in that
particular
subject
that said examinee

failed,
herein
respondent became
convinced that the
said
examinee
deserved a higher
grade
than
that
previously
given
him, but he did not
deserve, in herein
respondent's honest
appraisal,
to
be
given the passing
grade
of
75%. ..."(allegation
5-c, p. 38, Exh. 1Manalo,
rec.;
emphasis supplied).
Pardo
... I considered it
entirely
humanly
possible to have
erred, because I
corrected
that
particular notebook
on
December
31,1971,
considering
especially
the
representation
of
the Bar Confidant
that
the
said
examinee
had
obtained
higher
grades
in
other
subjects,
the
highest of which
was
84%
in
Remedial Law, if I
recall
correctly.
...
(allegation 7, Exh.
2-Pardo, Adm. Case
No. 1164, p. 62,
rec.;
emphasis
supplied).
With the misrepresentations
and the circumstances utilized
by respondent Lanuevo to
induce the herein examiners
to make the re-evaluation
70

Legal Ethics

adverted to, no one among

them can truly claim that the
re-evaluation
effected
by
them was impartial or free
from any improper influence,
their
conceded
integrity,
honesty
and
competence
notwithstanding.
Consequently, Galang cannot
justifiably
claim
that
he
deserved
the
increased
grades given after the said reevaluations(Galang's
memo
attached to the records, Adm.
Case No. 1163).
At
any
rate,
WE
are
convinced, in the light of the
explanations
of
the
respondents-examiners, which
were earlier quoted in full,
that
their
actuations
in
connection
with
the
reevaluation of the answers of
Galang in five (5) subjects do
not warrant or deserve the
imposition of any disciplinary
action.
WE
find
their
explanations
satisfactory.
Nevertheless,
WE
are
constrained to remind herein
respondents-examiners
that
their participation in the
admission of members to the
Bar is one impressed with the
highest consideration of public
interest absolute purity of
the proceedings and so are
required to exercise the
greatest or utmost case and
vigilance in the performance
of their duties relative thereto.
V
Respondent Atty. Victorio D.
Lanuevo, in his memorandum
filed on November 14, 1973,
claimed
that
respondentexaminer
Pamatian
"in
bringing up this unfounded
cause, or lending undue

assistance
or
support
thereto ... was motivated with
vindictiveness
due
to
respondent's refusal to be
pressured into helping his
(examiner's) alleged friend
a participant in the 1971 Bar
Examinations
whom
said
examiner named as Oscar
Landicho and who, the records
will show, did not pass said
examinations (p. 9, Lanuevo's
memo, Adm. Case No. 1162).
It must be stated that this is a
very serious charge against
the honor and integrity of the
late Justice Ramon Pamatian,
who passed away on October
18, 1973 and therefore cannot
refute Lanuevo's insinuations.
Respondent
Victorio
D.
Lanuevo did not bring this out
during the investigation which
in his words is "essential to his
defense. "His pretension that
he did not make this charge
during the investigation when
Justice Pamatian was still
alive, and deferred the filing
of such charge against Justice
Pamatian and possibly also
against Oscar Landicho before
the
latter
departed
for
Australia "until this case shall
have been terminated lest it
be misread or misinterpreted
as being intended as a
leverage for a favorable
outcome of this case on the
part of respondent or an act of
reprisal", does not invite
belief; because he does not
impugn the motives of the
five other members of the
1971
Bar
Examination
Committee, who also affirmed
that he deceived them into reevaluating or revising the
grades of respondent Galang
in their respective subjects.

71

Legal Ethics

It appears, however, that after

the release of the results of
the 1971 Bar examinations,
Oscar Landicho, who failed in
that examinations, went to
see and did see Civil Law
examiner Pamatian for the
purpose of seeking his help in
connection with the 1971 Bar
Examinations.
Examiner
Pamatian advised Landicho to
see the Chairman of the 1971
Bar Examination Committee.
Examiner
Pamatian
mentioned in passing to
Landicho that an examination
booklet was re-evaluated by
him (Pamatian) before the
release of the said bar results
(Vol. V, pp. 6-7, rec). Even
though such information was
divulged
by
respondent
Pamatian after the official
release of the bar results, it
remains an indecorous act,
hardly expected of a member
of the Judiciary who should
exhibit
restraint
in
his
actuations
demanded
by
resolute adherence to the
rules of delicacy. His unseemly
act tended to undermine the
integrity
of
the
bar
examinations and to impair
public faith in the Supreme
Court.
VI
The investigation failed to
unearth direct evidence that
the illegal machination of
respondent Lanuevo to enable
Galang to pass the 1971 Bar
examinations was committed
for valuable consideration.
A
There
are,
however,
acquisitions
made
by
Respondent
Lanuevo
immediately after the official

release of the 1971 Bar

examinations
in
February,
1972, which may be out of
proportion to his salary as Bar
Confidant and Deputy Clerk of
Court of the Supreme Court.
1. On April 5, 1972,
respondent Lanuevo
and
his
wife
acquired from the
BF Homes, Inc. a
house and lot with
an area of 374
square
meters,
more or less, for the
amount
of
P84,114.00.
The
deed of sale was
dated
March
5,
1972
but
was
notarized only on
April 5, 1972. On
the
same
date,
however,
respondent Lanuevo
and
his
wife
executed
two
(2)mortgages
covering the said
house and lot in
favor of BF Homes,
Inc. in the total
amount
of
P67,291.20
(First
mortgage

P58,879.80,
Entry
No. 90913: date of
instrument April
5, 1972, date of
inscription April
20, 1972: Second
mortgage

P8,411.40,
Entry
No. 90914: date of
instrument April
5, 1972, date of
inscription April
20, 1972). [D-2 to
D-4, Vol. III, rec.].
Respondent
Lanuevo paid as
down payment the
72

Legal Ethics

amount
of
only
P17,000.00, which
according to him is
equivalent to 20%,
more or less, of the
purchase price of
P84,114.00.
Respondent
Lanuevo
claimed
that P5,000.00 of
the P17,000.00 was
his savings while
the remaining the
P12,000.00
came
from his sister in
Okinawa in the form
of
a
loan
and
received by him
through
a
niece
before Christmas of
1971
in
dollars
($2000) [Vol. VII,
pp. 41-48; Vol. VIII,
pp. 2-3, rec.]

P2,000.00
bank
deposit listed in his
1971
statement
under Assets, only
the
amount
of
P989.00 was used
or withdrawn. The
amount
of
P18,000.00
receivable
listed
under Assets in his
1971 statement was
not
realized
because
the
transaction therein
involved did not
push
through
(Statement
of
Assets
and
Liabilities
of
respondent Lanuevo
from 1965 to 1972;
Vol. VIII, pp. 47-48,
rec.).

It
appears,
however, that his
alleged P5,000.00
savings and P12,00
0.00 loan from his
sister; are not fully
reflected
and
accounted for in
respondent's 1971
Statement of Assets
and Liabilities which
hefiled on January
17, 1972.

Likewise,
the
alleged December,
1971 $2000 loan of
respondent from his
married sister in
Okinawa
is
extremely doubtful.
In the first place,
said
amount
of
$2000 (P12,000.00)
is not reflected in
his 1971 Statement
of
Assets
and
Liabilities filed
on
January 17, 1972.
Secondly,
the
alleged note which
he
allegedly
received from his
sister at the time he
received the $200
was
not
even
presented
by
respondent during
the
investigation.
And according to
Respondent
Lanuevo
himself,

In
said
1971
statement,
respondent Lanuevo
listed under Assets
a bank deposit in
the amount of only
P2,000.00. In his
1972 statement, his
bank deposit listed
under Assets was in
the
amount
of
P1,011.00,
which
shows
therefore
that
of
the

73

Legal Ethics

while he considered
this a loan, his
sister
did
not
seriously consider it
as one. In fact, no
mode or time of
payment
was
agreed
upon
by
them.
And
furthermore, during
the
investigation,
respondent Lanuevo
promised to furnish
the Investigator the
address of his sister
in Okinawa. Said
promise was not
fulfilled as borne
out by the records.
Considering
that
there is no showing
that his sister, who
has a family of her
own, is among the
top
earners
in
Okinawa
or
has
saved a lot of
money to give to
him, the conclusion,
therefore,
that
the P17,000.00 of
respondent Lanuevo
was either an illgotten
or
undeclared income
is inevitable under
the
foregoing
circumstances.
On August
14,
1972,
respondent
Lanuevo and his
wife
mortgaged
their
BF
Homes
house and lot to the
GSIS for the amount
of
P65,000.00
(Entry
No.
4992: August
14,
1972
date
of
instrument; August
23, 1972 date of
inscription).

On February
28,
1973,
the second
mortgage in favor
of BF Homes, Entry
No.
90914,
was
redeemed
by
respondent and was
subsequently
cancelled on March
20,1973, Entry No.
30143.
Subsequently, or on
March 2, 1973 the
first mortgage in
favor of BF Homes,
Entry No. 90913
was also redeemed
by
respondent
Lanuevo
and
thereafter cancelled
on March 20, 1973,
(See D-2 to D-4, Vol.
III,
rec.).
Hence,
only the mortgage
in favor of GSIS
remains
as
the
encumbrance
of
respondent's house
and lot. According
to
respondent
Lanuevo,
the
monthly
amortization of the
GSIS mortgage is
P778.00 a month,
but that since May
of 1973, he was
unable to pay the
same. In his 1972
Statement of Assets
and
Liabilities,
which he filed in
connection with his
resignation
and
retirement
(filed October
13,
1972), the house
and lot declared as
part of his assets,
were
valued
at
P75,756.90. Listed,
however, as an item
in his liabilities in
74

Legal Ethics

the same statement

was the GSIS real
estate loan in the
amount
of P64,200.00 (1972
Statement of Assets
and Liabilities).
2. Listed as an asset
in
his 1972
Statement of Assets
and
Liabilities is
a 1956
VW car
valued
at P5,200.00. That
he acquired this car
sometime between
January, 1972 and
November,
1972
could be inferred
from the fact that
no such car or any
car was listed in his
statement of assets
and liabilities of
1971 or in the years
previous to 1965. It
appears, however,
that his listed total
assets,
excluding
receivables in his
1971
Statement
was
P19,000.00,
while in his 1972
(as of November,
1972)
Statement,
his
listed
total
assets, excluding
the house and lot
was
P18,211.00, includi
ng the said 1956
VW
car worth
P5,200.00.
The proximity in
point
of
time
between the official
release of the 1971
Bar
examinations
and the acquisition
of
the
abovementioned

properties, tends to
link or tie up the
said
acquisitions
with
the
illegal
machination
committed
by
respondent Lanuevo
with
respect
to
respondent
Galang's
examination papers
or to show that the
money
used
by
respondent Lanuevo
in the acquisition of
the
above
properties
came
from
respondent
Galang
in
consideration of his
passing the Bar.
During the early stage of this
investigation but after the
Court
had
informed
respondent Lanuevo of the
serious irregularities in the
1971
Bar
examinations
alleged in Oscar Landicho's
Confidential Letter and in fact,
after Respondent Lanuevo had
filed on April 12, 1972 his
sworn statement on the
matter, as ordered by the
Court, respondent Lanuevo
surprisingly filed his letter or
resignation on October 13,
1972 with the end in view of
retiring from the Court. His
resignation before he was
required to show cause on
March 5, 1973 but after he
was informed of the said
irregularities, is indicative of a
consciousness of guilt.
It
must
be
noted
that
immediately after the official
release of the results of the
1971
Bar
examinations,
respondent Lanuevo went on
vacation and sick leave from
March 16, 1972 to January 15,
75

Legal Ethics

1973, obtaining the case

value thereof in lump sum in
the amount of P11,000.00. He
initially
claimed
at
the
investigation that h e used a
part thereof as a down
payment for his BF Homes
house and lot (Vol. VII, pp. 4048, rec.), which he bought on
April 5, 1972.

judicial
functions
through
manifest
partiality, evidence
bad faith or gross
inexcusable
negligence.
This
provision shall apply
to
officers
and
employees
of
offices
or
government
corporations
charged with the
grant of licenses or
permits or other
concessions.

Criminal proceedings may be

instituted against respondent
Lanuevo under Section 3 (a &
e) in relation to Section 9 of
Republic Act No. 1379 (AntiGraft Law) for:
(a)
Persuading
inducing
or
influencing another
public
officer
to
perform
an
act
constituting
a
violation of rules
and regulations duly
promulgated
by
competent
authority
or
an
offense
in
connection with the
official duties of the
latter, or allowing
himself
to
be
presented, induced,
or
influenced
to
commit
such
violation or offense.
xxx xxx xxx
(e)
Causing
any
undue injury to any
party, including the
Government,
or
giving any private
party
any
unwarranted
benefits, advantage
or preference in the
discharge
of
his
official
administrative
or

Section 8 of said Republic Act

No. 3019 authorizes the
dismissal or removal of a
public officer once it is
determined that his property
or money "is manifestly out of
proportion to his salary as
such
public
officer
or
employee and to his other
lawful income and the income
from legitimately acquired
property ... " (Sec. 2, Rep. Act
1379; Sec. 8, Rep. Act 3019).
It
should
be
stressed,
however,
that
respondent
Lanuevo's
aforementioned
Statements of Assets and
Liabilities were not presented
or taken up during the
investigation; but they were
examined as they are part of
the records of this Court.
B
There
are
likewise
circumstances
indicating
possible contacts between
respondent Ramon E. Galang
and/or
his
father
and
respondent
Victorio
D.
Lanuevo before the latter
become the bar Confidant.

76

Legal Ethics

1. Respondent Ramon E.
Galang was a beneficiary of
the
G.I
Bill
of
Rights
educational program of the
Philippine
Veterans
Board
from his high school days
1951 to 1955 up to his
pre-law studies at the MLQ
Educational Institution (now
MLQ University) 1955 to
1958. From 1948 to 1958,
respondent
Victorio
D.
Lanuevo was connected with
the Philippine Veterans Board
which is the governmental
agency entrusted with the
affairs
of
our
veterans
including the implementation
of the Veterans Bill of Rights.
From 1955
to
1958,
Respondent
Lanuevo
successively held the position
of
Junior
Investigator,
Veterans Claims Investigator,
Supervising
Veterans
Investigator
and
Veterans
Claims Investigator (Service
Record, p. 9, Adm. Case No.
1162). During that period of
time, therefore, respondent
Lanuevo had direct contacts
with
applicants
and
beneficiaries of the Veterans
Bill
of
Rights.
Galang's
educational
benefits
was
approved on March 16, 1954,
retroactive as of the date of
waiver July 31, 1951, which
is also the date of filing (A,
Vol. IV, rec.).
It is alleged by respondent
Ramon E. Galang that it was
his father who all the time
attended to the availment of
the said educational benefits
and even when he was
already in Manila taking up his
pre-law at MLQ Educational
Institution from 1955 to 1958.
In 1955, respondent Galang
was already 19 years old, and
from 1957 to 1958, he was

employed as a technical
assistant in the office of
Senator Roy (Vol. V, pp. 79-80,
86-87,
rec.).[Subsequently,
during the investigation, he
claimed that he was the
private secretary of Senator
Puyat in 1957 (Vol. VI, pp. 1213,
rec.)].
It
appears,
however, that a copy of the
notice-letter dated June 28,
1955
of
the
Philippine
Veterans Board to the MLQ
Educational Institution on the
approval of the transfer of
respondent Galang from Sta.
Rita Institute to the MLQ
Educational
Institution
effective the first semester of
the school year 1955-56 was
directly
addressed
and
furnished
to
respondent
Ramon E. Galang at 2292 Int.
8 Banal St., Tondo, Manila (A12, Vol. IV, rec.).
Respondent Ramon E. Galang
further declared that he never
went to the Office of the
Philippine Veterans to follow
up his educational benefits
and claimed that he does not
even know the location of the
said office. He does not also
know whether beneficiaries of
the
G.I.
Bill
of
Rights
educational
benefits
are
required
to
go
to
the
Philippine
Veterans
Board
every semester to submit
their ratings (Vol. V, p. 86,
rec.). But respondent Galang
admits that he had gone to
the GSIS and City Court of
Manila, although he insists
that he never bothered to
take a look at the neighboring
buildings (Vol. V, pp. 93-94,
rec.). The huge and imposing
Philippine Veterans Building is
beside the GSIS building and
is obliquely across the City
Court building.
77

Legal Ethics

2. Respondent Lanuevo stated

that as an investigator in the
Philippine Veterans Board, he
investigated claims for the
several benefits given to
veterans
like
educational
benefits
and
disability
benefits; that he does not
remember, however, whether
in the course of his duties as
veterans
investigator,
he
came across the application of
Ramon
E.
Galang
for
educational benefits; and that
he does not know the father
of Mr. Ramon E. Galang and
has never met him (Vol. VII,
pp. 28, 49, rec.).
3. Respondent Lanuevo, as a
member
of
the USAFEE,
belonged to the 91st Infantry
operating at Zambales and
then
Cabanatuan,
Nueva
Ecija, shortly before the
war (Vol. VII, pp. 48-49, rec.).
Later he joined the guerrilla
movement in Samar.
He used to be a member of
the Philippine Veterans Legion
especially while working with
the
Philippine
Veterans
Board(Vol. VII, p. 49, rec.).
He does not know the Banal
Regiment of the guerrillas, to
which
Galang's
father
belonged.
During
the
Japanese
occupation,
his
guerrilla outfit was operating
in Samar only and he had no
communications with other
guerrilla organization in other
parts of the country.
He attended meetings of the
Philippine Veterans Legion in
his chapter in Samar only and
does not remember having
attended its meeting here in
Manila, even while he was
employed with the Philippine

Veterans Board. He is not a

member of the Defenders of
Bataan and Corregidor (Vol.
VII, p.51, rec.).
On November 27, 1941, while
respondent Lanuevo was with
the Philippine Army stationed
at
Camp
Manacnac,
Cabanatuan, Nueva Ecija, he
was stricken with pneumonia
and was hospitalized at the
Nueva Ecija Provincial Hospital
as a result and was still
confined there when their
camp
was
bombed
and
strafed by Japanese planes on
December 13, 1941 (Sworn
statement
of
respondent
Lanuevo dated August 27,
1973, Adm. Case No. 1162, p.
46, rec.).
German Galang, father of
respondent Galang, was a
member of the Banal Guerilla
Forces, otherwise known as
the Banal Regiment. He was
commissioned and inducted
as a member thereof on
January 16, 1942 and was
given the rank of first
lieutenant. His unit "was
attached and served into the
XI-Corps, US Army; XIII-C US
Army, 43rd Div., US Army,
stationed
headquarters
at Sta. Rosa, Nueva Ecija and
with the 38th Division, US
army stationed at Corregidor
in the mopping-up operations
against the enemies, from 9
May 1945 date of recognition
to 31 December 1945, date of
demobilization"(Affidavit
of
Jose Banal dated December
22, 1947, Vol. IV, A-3, rec.).
It should be stressed that
once the bar examiner has
submitted
the
corrected
notebooks
to
the
Bar
Confidant, the same cannot
78

Legal Ethics

be withdrawn for any purpose

whatsoever
without
prior
authority from the Court.
Consequently,
this
Court
expresses herein its strong
disapproval of the actuations
of the bar examiners in
Administrative Case No. 1164
as above delineated.
WHEREFORE,
IN
ADMINISTRATIVE CASE NO.
1162, RESPONDENT VICTORIO
D.
LANUEVO
IS
HEREBY
DISBARRED AND HIS NAME
ORDERED STRICKEN FROM
THE ROLL OF ATTORNEYS;
AND IN ADMINISTRATIVE CASE
NO.
1163,
RESPONDENT
RAMON E. GALANG, alias
Roman E. GALANG, IS HEREBY
LIKEWISE DISBARRED AND HIS
NAME
ALSO
ORDERED
STRICKEN FROM THE ROLL OF
ATTORNEYS.

79

Legal Ethics

Re: 2003 BAR

EXAMINATIONS

On 22 September 2003,
the day following the bar
examination
in
Mercantile
Law, Justice Jose C. Vitug,
Chairman of the 2003 Bar
Examinations Committee, was
apprised of a rumored leakage
in the examination on the
subject. After making his own
inquiries,
Justice
Vitug
reported the matter to Chief
Justice Hilario G. Davide, Jr.,
and to the other members of
the Court, recommending that
the bar examination on the
subject be nullified and that
an investigation be conducted
forthwith. On 23 September
2003, the Court adopted the
recommendation of Justice
Vitug, and resolved to nullify
the examination in Mercantile
Law and to hold another
examination on 04 October
2003 at eight oclock in the
evening (being the earliest
available time and date) at
the De La Salle University, Taft
Avenue, Manila. The resolution
was issued without prejudice
to any action that the Court
would further take on the
matter.
Following the issuance of
the resolution, the Court
received numerous petitions
and
motions
from
the
Philippine Association of Law
Schools and various other
groups
and
persons,
expressing agreement to the
nullification
of
the
bar
examinations in Mercantile
Law
but
voicing
strong
reservations
against
the
holding
of
another

examination on the subject.

Several
reasons
were
advanced by petitioners or
movants,
among
these
reasons being the physical,
emotional
and
financial
difficulties that would be
encountered
by
the
examinees,
if
another
examination on the subject
were to be held anew.
Alternative
proposals
submitted
to
the
Court
included the spreading out of
the weight of Mercantile Law
among the remaining seven
bar subjects, i.e., to determine
and gauge the results of the
examinations on the basis
only of the performance of the
examinees in the seven bar
subjects. In a resolution,
dated 29 September 2003,
the Court, finding merit in the
submissions, resolved
to
cancel
the
scheduled
examination in Mercantile Law
on 04 October 2003 and to
allocate
the
fifteen
percentage points among the
seven
bar
examination
subjects.
In
the
same
resolution, the Court further
resolved
to
create
a
Committee composed of three
retired members of the Court
that
would
conduct
a
thorough investigation of the
incident subject of the 23
September 2003 resolution.
In a resolution, dated 07
October 2003, the Court
adopted the computation in
the allocation of the fifteen
percentage
points
for
Mercantile Law among the
remaining
seven
bar
examination subjects, to wit:
Subject Original Adjusted R
elative Adjusted
80

Legal Ethics

Percentage Percentage Wei

ght Relative
Weight Weight Weight
Political and
International
Law 15% 17.647% 3 3.53%
Labor and
Social
Legislation 10% 11.765% 2
2.35%
Civil
law 15% 17.647% 3 3.53%
Taxation 10% 11.765% 2 2.35
%
Criminal
law 10% 11.765% 2 2.35%
Remedial
Law 20% 23.529% 4 4.71%
Legal Ethics
and Practical
Exercises 5% 5.882% 1 1.1
8%
100% 20%
In
another
resolution,
dated 14 October 2003, the
Court designated the following
retired Associate Justices of
the
Supreme
Court
to
compose the Investigating
Committee:
Chairman: Justice Carolina C.
Grio-Aquino
Members: Justice
Melo

Jose

A.R.

Justice Vicente
V. Mendoza
The Investigating Committee
was tasked to determine and
identify the source of leakage,
the
parties
responsible
therefor or who might have
benefited
therefrom,
recommend sanctions against
all those found to have been
responsible for, or who would
have benefited from, the
incident in question and to
recommend measures to the
Court
to
safeguard
the
integrity
of
the
bar
examinations.
On 15 January 2004, the
Investigating
Committee
submitted its report and
recommendation to the Court,
herein reproduced in full; thus
In the morning of September
21, 2003, the third Sunday of
the 2003 bar examinations,
the
examination
in
commercial law was held in
De la Salle University on Taft
Avenue, Manila, the venue of
the bar examinations since
1995. The next day, the
newspapers carried news of
an alleged leakage in the said
examination.[1]
Upon hearing the news and
making preliminary inquiries
of his own, Justice Jose C.
Vitug, chairman of the 2003
Bar Examinations Committee,
reported the matter to the
Chief
Justice
and
recommended
that
the
examination in mercantile law
be cancelled and that a formal
investigation of the leakage
be undertaken.

81

Legal Ethics

Acting on the report and

recommendation of Justice
Vitug,
the
Court,
in
a
resolution dated September
23,
2003,
nullified
the
examination in mercantile law
and resolved to hold another
examination in that subject on
Saturday, October 4, 2003 at
eight oclock in the evening
(being the earliest available
time and date) at the same
venue.
However,
because
numerous petitions, protests,
and
motions
for
reconsideration
were
filed
against the retaking of the
examination in mercantile
law, the Court cancelled the
holding of such examination.
On the recommendation of
the
Office
of
the
Bar
Confidant, the Court instead
decided to allocate the fifteen
(15) percentage points for
mercantile law among the
seven
(7)
other
bar
examination
subjects
(Resolution dated October 7,
2003).
In
a
Resolution
dated September 29, 2003,
the Supreme Court created an
Investigating
Committee
composed of three (3) retired
Members of the Court to
conduct an investigation of
the leakage and to submit its
findings
and
recommendations
on
or
before December 15, 2003.
The Court designated the
following retired Associate
Justices of the Supreme Court
to compose the Committee:
Chairman: Justice CAROLINA G
RIO-AQUINO
Members: Justice JOSE A. R.
MELO

Justice
VICENTE
MENDOZA

V.

The Investigating Committee

was directed to determine and
identify the source of the
leakage,
the
parties
responsible therefor and those
who benefited therefrom, and
to recommend measures to
safeguard the integrity of the
bar examinations.
The investigation commenced
on October
21,
2003 and
continued up to November 7,
2003. The following witnesses
appeared and testified at the
investigation:
1. Associate Justice Jose
C. Vitug, chairman
of the 2003 Bar
Examinations
Committee;
2. Atty. Marlo MagdozaMalagar, law clerk
in the office of
Justice Vitug
3. Atty. Marcial O. T.
Balgos, examiner in
mercantile law;
4. Cheryl Palma, private
secretary of Atty.
Balgos;
5. Atty.
Danilo
De
Guzman, assistant
lawyer in the firm of
Balgos & Perez;
6. Atty.
Enrico
G.
Velasco, managing
partner of Balgos &
Perez;
7. Eduardo J. F. Abella,
reviewer
in
commercial law at
82

Legal Ethics

the Lex Review Cent

er;
8. Silvestre T. Atienza,
office manager of
Balgos & Perez;
9. Reynita
Villasis,
private secretary of
Atty. De Guzman;
10. Ronan
Garvida,
fraternity brother of
Atty. De Guzman;
11. Ronald F. Collado,
most
illustrious
brother of the Beta
Sigma
Lambda
Fraternity;
12. Jovito M. Salonga,
Asst. Division Chief
of
Systems
Development
for
Judicial Application,
MlSO;
The Committee held
nine (9) meetings - six
times to conduct the
investigation and three
times to deliberate on
its report.
ASSOCIATE JUSTICE JOSE C.
VITUG, chairman of the Bar
Examinations
Committee,
testified that on Monday
morning, September 22, 2003,
the
day
after
the
Bar
examination in mercantile or
commercial law, upon arriving
in his office in the Supreme
Court, his secretary,[2] Rose
Kawada, informed him that
one of the law clerks, Atty.
Marlo Magdoza-Malagar, told
her that a friend of hers
named Ma. Cecilia DelgadoCarbajosa, a bar examinee
from Xavier University in
Cagayan de Oro City, who was

staying at the Garden Plaza

Hotel in Paco, confided to her
that something was wrong
with
the
examination
in
mercantile
law,
because
previous
to
the
examination, i.e., on Saturday
afternoon, the eve of the
examination, she received a
copy of the test questions in
that subject. She did not pay
attention to the test questions
because no answers were
provided, and she was hardpressed to finish her review of
that subject, using other
available
bar
review
materials, of which there were
plenty coming from various
bar review centers.
However, upon perusing the
questions
after
the
examinations, Cecilia noticed
that many of them were the
same questions that were
asked in the just-concludedexamination.
Justice Vitug requested Marlo
to invite her friend to his
office in the Supreme Court,
but Carbajosa declined the
invitation. So, Justice Vitug
suggested that Marlo and
Rose invite Carbajosa to meet
them at Robinsons Place,
Ermita. She agreed to do that.
Cecilia Carbajosa arrived at
Robinsons
Place
at
the
appointed time and showed
the test questions to Rose and
Marlo. Rose obtained a xerox
copy of the leaked questions
and compared them with the
bar questions in mercantile
law. On the back of the pages,
she wrote, in her own hand,
the differences she noted
between the leaked questions
and the bar examination
questions.
83

Legal Ethics

Rose and Marlo delivered the

copy of the leaked questions
to Justice Vitug who compared
them
with
the
bar
examination
questions
in
mercantile law. He found the
leaked questions to be the
exact same questions which
the examiner in mercantile
law, Attorney Marcial O. T.
Balgos, had prepared and
submitted to him as chairman
of the Bar Examinations
Committee. However, not all
of those questions were asked
in
the
bar
examination.
According to Justice Vitug,
only 75% of the final bar
questions
were
questions
prepared by Atty. Balgos; 25%
prepared by Justice Vitug
himself, were included in the
final bar examination. The
questions prepared by Justice
Vitug were not among the
leaked test questions.
Apart from the published news
stories about the leakage,
Chief Justice Hilario G. Davide,
Jr. and Justice Vitug received,
by
telephone
and
mail,
reports of the leakage from
Dean Mariano F. Magsalin, Jr.
of
the
Arellano
Law
Foundation (Exh. H) and a
certain Dale Philip R. De los
Reyes (Exh. B -B-3), attaching
copies of the leaked questions
and the fax transmittal sheet
showing that the source of the
questions was Danny De
Guzman who faxed them to
Ronan Garvida on September
17, 2003, four days before the
examination in mercantile law
on September 21, 2003 (Exh.
B-1).
ATTORNEY MARLO MAGDOZAMALAGAR was subpoenaed by
the Committee. She identified
the copy of the leaked

questions that came from

Cecilia Carbajosa (Exh. A). She
testified that, according to
Carbajosa, the latter received
the test questions from one of
her co-bar reviewees staying,
like her, at the Garden Plaza
Hotel in Paco, and also
enrolled in the review classes
at the Lex Review Center at
the corner of P. Faura Street
and Roxas Boulevard, Ermita.
She did not pay for the handout
because
the LexReview Center gives
them away for free to its bar
reviewees.
ATTORNEY MARCIAL O. T.
BALGOS, 71 years of age,
senior partner in the law firm
of BALGOS AND PEREZ with
offices in Rm. 1009 West
Tektite Tower, Exchange Road,
Ortigas Center, Pasig City,
testified that in November
2002, Justice Jose C. Vitug, as
chair of the Committee on the
2003
Bar
Examinations,
invited
him
to
be
the
examiner in commercial law.
He accepted the assignment
and
almost
immediately
began the preparation of test
questions on the subject.
Using his personal computer
in the law office, he prepared
for three consecutive days,
three (3) sets of test questions
which covered the entire
subject of Mercantile Law (pp.
3-5, tsn, Oct. 24, 2003). As he
did not know how to prepare
the questionnaire in final
form, he asked his private
secretary, Cheryl Palma, to
format the questions (p. 13,
tsn, Oct. 24, 2003). And, as he
did not know how to print the
questionnaire,
he
likewise
asked Cheryl Palma to make a
print-out (Id., pp. 14-15). All of
this was done inside his office
84

Legal Ethics

with
only
him and his
secretary there. His secretary
printed only one copy (Id., p.
15). He then placed the
printed copy of the test
questions, consisting of three
sets, in an envelope which he
sealed, and called up Justice
Vitug to inform him that he
was bringing the questions to
the
latters
office
that
afternoon. However, as Justice
Vitug was leaving his office
shortly, he advised Atty.
Balgos to give the sealed
envelope to his confidential
assistant who
had been
instructed to keep it. When
Atty. Balgos arrived in the
office of Justice Vitug, he was
met
by
Justice
Vitugs
confidential assistant to whom
he entrusted the sealed
envelope containing the test
questions (pp. 19-26, tsn, Oct.
24, 2003).
Atty. Balgos admitted that he
does not know how to operate
a computer except to type on
it. He does not know how to
open and close his own
computer
which
has
a
password for that purpose. In
fact, he did not know, as he
still does, the password. It is
his secretary, Cheryl Palma,
who opened and closed his
computer for him (p. 45, tsn,
Oct. 24, 2003).
Atty. Balgos testified that he
did not devise the password
himself. It was Cheryl Palma
who devised it (Id., p. 71).
His computer is exclusively for
his own use. It is located
inside his room which is
locked when he is not in the
office. He comes to the office
every other day only.

He thought that his computer

was safely insulated from
third parties, and that he
alone had access to it. He was
surprised to discover, when
reports of the bar leakage
broke out, that his computer
was in fact interconnected
with the computers of his nine
(9) assistant attorneys (tsn,
pp. 30,45). As a matter of
fact, the employees - Jovito M.
Salonga and Benjamin R. Katly
- of the Courts Management
Information Systems Office
(MISO) who, upon the request
of Atty. Balgos, were directed
by
the
Investigating
Committee to inspect the
computer system in his office,
reported that there were 16,
not 9, computers connected
to each other via Local Area
Network (LAN) and one (1)
stand-alone
computer
connected to the internet
(Exh. M). Atty. Balgos law
partner,
former
Justice
Secretary Hernando Perez,
also had a computer, but
Perez took it away when he
became the Secretary of
Justice.
The
nine
(9)
assistant
attorneys with computers,
connected to Attorney Balgos
computer, are:
1. Zorayda Zosobrado
resigned in July 2003)

(she

2. Claravel Javier
3. Rolynne Torio
4. Mark Warner Rosal
5. Charlynne Subia
6. Danilo
De
Guzman
(resigned
on October
22,
2003 [Exh. D])
85

Legal Ethics

7. Enrico
G.
managing partner

Velasco,

8. Concepcion De los Santos

9. Pamela June Jalandoni
Upon learning from Justice
Vitug of the leakage of the bar
questions prepared by him in
mercantile law, Atty. Balgos
immediately called together
and questioned his office
staff. He interrogated all of
them except Atty. Danilo De
Guzman who was absent
then. All of them professed to
know nothing about the bar
leakage.
He
questioned
Silvestre
Atienza, the office manager,
Atienza is only a second year
law student at MLQU. But he
is an expert in installing and
operating computers. It was
he and/or his brother Gregorio
who
interconnected
the
computers in the law office,
including
Attorney
Balgos
computer, without the latters
knowledge and permission.
Atienza admitted to Attorney
Balgos that he participated in
the bar operations or bar ops
of the Beta Sigma Lambda law
fraternity of which he is a
member, but he clarified that
his participation consisted
only of bringing food to the
MLQU bar examinees (Tsn, pp.
46-47, Oct. 24, 2003).
The next day, Attorney Balgos
questioned Attorney Danilo De
Guzman, also a member of
the Beta Sigma Lambda
fraternity, FEU chapter. De
Guzman admitted to him that
he
downloaded
the
test
questions
from
Attorney
Balgos computer and faxed a

copy to a fraternity brother.

Attorney
Balgos
was
convinced that De Guzman
was the source of the leakage
of his test questions in
mercantile law (Tsn, p. 52,
Oct. 24, 2003).
Attorney Balgos prepared a
COMPARISON (Exh. E) of the
juxtaposed final bar questions
and
his
proposed
test
questions,
with
marginal
markings made by Justice
Vicente V. Mendoza (Ret.),
indicating
whether
the
questions are similar: (S); or
different: (D), together with
the
percentage
points
corresponding
to
each
question. On the basis of this
comparative table and Atty.
Balgos indications as to which
questions were the same or
different from those given in
the final questionnaire, Justice
Mendoza computed the credit
points
contained
in
the
proposed leaked questions.
The
proposed
questions
constituted 82% of the final
bar questions. Attached to this
Report as Annex A is the
comparative table and the
computation of credit points
marked as Exh. E-1.
CHERYL PALMA, 34 years old,
private secretary of Attorney
Balgos for the past six years,
testified that she did not type
the
test
questions.
She
admitted, however, that it was
she
who
formatted
the
questions and printed one
copy as directed by her
employer. She confirmed Atty.
Balgos testimony regarding
her
participation
in
the
operation of his personal
computer. She disclosed that
what appears in Atty. Balgos
computer can be seen in the
86

Legal Ethics

neighborhood network if the

other computers are open and
not in use; that Silvestre
Atienza of the accounting
section, can access Atty.
Balgos computer when the
latter is open and not in use.
ATTORNEY ENRICO VELASCO,
managing partner of the firm,
testified that on October 16,
2003, he sent De Guzman a
memo (Exh. C) giving him 72
hours to explain in writing
why you should not be
terminated for causing the
Firm
an
undeserved
condemnation and dishonor
because
of
the
leakage
aforesaid.
On October 22, 2003, De
Guzman
handed
in
his
resignation
effective
immediately. He explained
that:
Causing the firm, its partners
and members to suffer from
undeserved
condemnation
and humiliation is not only
farthest from, but totally out
of, my mind. It is just
unfortunate that the incident
subject
matter
of
your
memorandum occurred. Rest
assured, though, that I have
never been part of any
deliberate scheme to malign
the good reputation and
integrity of the firm, its
partners and members. (Exh.
D)
DANILO DE GUZMAN testified
that he joined Balgos & Perez
in April 2000. He obtained his
LLB degree from FEU in 1998.
As a student, he was an
awardee
for
academic
excellence. He passed the
1998 bar examinations with a
grade of 86.4%. In FEU, he

joined
the
Beta
Sigma
Lambda law fraternity which
has chapters in MLQU, UE and
MSU
(Mindanao State University).
As a member of the fraternity,
he was active during bar
examinations and participated
in the fraternitys bar ops.
He testified that sometime in
May 2003, when he was
exploring
Atty.
Balgos
computer, (which he often did
without the owners knowledge
or permission), to download
materials which he thought
might be useful to save for
future use, he found and
downloaded
the
test
questions in mercantile law
consisting of 12 pages. He
allegedly thought they were
quizzers for a book that Atty.
Balgos might be preparing. He
saved them in his hard disk.
He thought of faxing the test
questions to one of his
fraternity brods, a certain
Ronan
Garvida
who,
De
Guzman thought, was taking
the 2003 bar examinations.
Garvida is also a law graduate
from FEU. He had taken the
2002 bar examinations, but
did not pass.
On September 17, 2003, four
days before the mercantile
law
bar
examination,
De Guzman faxed a copy of
the 12-page-test questions
(Exhs. I, I-1, I-2, I-3) to Garvida
because
earlier
he
was
informed by Garvida that he
was
retaking
the
bar
examinations.
He
advised
Garvida
to
share
the
questions with other Betan
examinees. He allegedly did
not charge anything for the
test questions. Later, after the
87

Legal Ethics

examination
was
over,
Garvida texted (sent a text
message on his cell phone)
him (De Guzman), that he did
not take the bar examination.

De Guzman also contacted

Garvida who informed him
that he gave copies of the test
questions to Betans Randy
Iigo and James Bugain.

Besides Garvida, De Guzman

faxed the mercantile law bar
questions to another fraternity
brother
named
Arlan
(surname unknown), through
Reynita (Nanette) Villasis, his
secretary (Tsn, pp. 20-28, Oct.
29, 2003). But he himself
faxed the questions to still
another brod named Erwin Tan
who had helped him during
the bar ops in 1998 when he
(De Guzman) took the bar
examinations (Id., p. 28). He
obtained
the
cell
phone
numbers of Arlan and Erwin
Tan from Gabby Tanpiengco
whom he informed by text
message, that they were
guide questions, not tips, in
the
mercantile
law
examination.

Arlan also texted De Guzman

that almost all the questions
were
asked
in
the
examination.
Erwin
Tan
commented that many of the
leaked questions were asked
in the examination, pero hindi
exacto; mi binago (they were
not exactly the same; there
were some changes).

When he was confronted by

Attorney
Velasco
on
Wednesday
after
the
examination, (news of the
leakage was already in all the
newspapers),
De
Guzman
admitted to Attorney Velasco
that he faxed the questions to
his fraternity brothers, but he
did not reveal where he got
the test questions.
De Guzman received a text
message from Erwin Tan
acknowledging
that
he
received the test questions.
However, Erwin informed him
that the questions were kalat
na kalat (all over the place)
even if he did not share them
with others (Tsn, pp. 54-55,
Oct. 29, 2003).

De Guzman tried to text

Garvida, but he received no
response.
De Guzman disclosed that he
learned how to operate a
computer
from
Silvestre
Atienza, the office manager,
and through self-study, by
asking
those
who
are
knowledgeable on computers.
He has been using computers
since 1997, and he bought his
own computer in 2001, a
Pentium 3, which he uses at
home.
REYNITA VILLASIS, the 36year-old legal secretary of
Attorney
De
Guzman,
submitted her affidavit (Exh.
F) and orally affirmed her
participation
in
the
reproduction and transmittal
by fax of the leaked test
questions in mercantile law to
Ronan Garvida and Arlan, as
testified by De Guzman.
RONAN GARVIDA, appeared
before
the
Investigating
Committee in compliance with
the subpoena that was issued
to him. Garvida graduated
from FEU College of Law in
2000. He is about 32 years of
88

Legal Ethics

age. While still a student in

1998, he was afflicted with
multiple sclerosis or MS, a
disease of the nervous system
that attacks the nerve sheaths
of the brain and spinal cord. It
is a chronic disabling disease
although it may have periods
of remission. It causes its
victim to walk with erratic,
stiff and staggering gait; the
hands
and
fingers
may
tremble in performing simple
actions; the eyesight can be
impaired, and speech may be
slow and slurred (p. 737, Vol.
2, Readers Digest Medical
Encyclopedia,
1971
Ed.,
compiled by Benjamin F.
Miller,
M.D.).
All
these
symptoms were present when
Garvida testified before the
Committee on November 6,
2003 to answer its questions
regarding his involvement in
the leakage of the examiners
test questions in mercantile
law.
Garvida testified that when he
was a freshman at FEU, he
became a member of the Beta
Sigma
Lambda
fraternity
where he met and was
befriended by Attorney De
Guzman who was his senior
by one and a half years.
Although they had been out of
touch since he went home to
the province on account of the
recurrence of his illness, De
Guzman was able [to] get this
cell phone number from his
compadre, Atty. Joseph Pajara.
De Guzman told Garvida that
he was faxing him possible
questions
in
the
bar
examination in mercantile law.
Because the test questions
had no answers, De Guzman
stressed that they were not
tips but only possible test
questions.

Garvida had intended to take

the 2003 bar examinations.
He
enrolled
in
the Consortium Review Center
in FEU, paying P10,000.00 as
enrollment fee. However, on
his way to the Supreme Court
to file his application to take
the bar examination, he
suffered pains in his wrist symptoms that his MS had
recurred.
His
physician
advised
him
to
go
to
the National Orthopedic Hospi
tal in Quezon
City for
treatment. This he did.
He gave up his plan to take
the 2003 bar examinations.
Nevertheless, he continued to
attend the review classes at
the Consortium Review Center
because he did not want to
waste
completely
the
P10,000-enrollment fee that
he paid for the review course
(Nahihinayang ako). That was
presumably why De Guzman
thought that Garvida was
taking the bar exams and sent
him a copy of the test
questions in mercantile law.
Upon receipt of the test
questions, Garvida faxed a
copy to his brod Randy Iigo
who
was
reviewing
at
the Consortium Review Center
. Randy photocopied them for
distribution to other fraternity
brods. Some of the brods
doubted the usefulness of the
test questions, but Randy who
has a high regard for De
Guzman, believed that the
questions were tips. Garvida
did not fax the questions to
any other person than Randy
Iigo. He allegedly did not sell
the questions to Randy. I could
not do that to a brod, he
explained.
89

Legal Ethics

In view of the fact that one of

the copies of the leaked test
questions (Exh. H) bore on the
left margin a rubber stamp
composed of the Greek initials
BEA-MLQU, indicating that the
source of that copy was the
Beta Sigma Lambda chapter
at MLQU, the Committee
subpoenaed Ronald Collado,
the Most Illustrious Brother of
the Beta Sigma Lambda
fraternity of MLQU.
RONALD COLLADO is a senior
law student at the MLQU. He
admitted that his fraternity
conducted Bar Ops for the
2003 bar exams. Bar Ops are
the biggest activity of the
fraternity every year. They
start as soon as new officers
of the fraternity are elected in
June, and they continue until
the bar examinations are over.
The bar operations consist of
soliciting funds from alumni
brods and friends to be spent
in reproducing bar review
materials for the use of their
barristers (bar candidates) in
the various review centers,
providing meals for their brodbarristers
on
examination
days; and to rent a bar site or
place near De la Salle
University
where
the
examinees
and
the
frat
members can convene and
take their meals during the
break time. The Betans bar
site
for
the
2003
bar
examinations
was
located
on Leon Guinto Street, Malate.
On September 19 and 21,
before [the] start of the
examination,
Collados
fraternity
distributed
bar
review materials for the
mercantile law examination to
the examinees who came to
the
bar
site.
The
test
questions (Exh. H) were

received by Collado from a

brod, Alan Guiapal, who had
received them from Randy
Iigo.
Collado caused 30 copies of
the test questions to be
printed with the logo and
initials of the fraternity (BEAMLQU) for distribution to the
30 MLQU examinees taking
the bar exams. Because of
time
constraints,
frat
members were unable to
answer the test questions
despite
the
clamor
for
answers, so, they were given
out as is - without answers.
DEAN EDUARDO J. F. ABELLA
of the Jose Rizal University law
school
in Mandaluyong City,
was the reviewer in Mercantile
Law and Practical Exercises at
the Lex Review Center which
is operated by the Lex Review
& Seminars Inc., of which
Dean Abella is one of the
incorporators.
He
learned
about the leakage of test
questions in mercantile law
when he was delivering the
pre-week lecture on Legal
Forms
at
the Arellano University.
The
leaked questions were shown
to him by his secretary,
Jenylyn Domingo, after the
mercantile law exam. He
missed the Saturday lecture in
mercantile law because he
was suffering from a touch of
flu. He gave his last lecture on
the subject on Wednesday or
Thursday before the exam. He
denied having bought or
obtained and distributed the
leaked test questions in
Mercantile Law to the bar
reviewees
in
the Lex Review Center.
FINDINGS
90

Legal Ethics

The Committee finds that the

leaked test questions in
Mercantile Law were the
questions which the examiner,
Attorney Marcial O. T. Balgos,
had prepared and submitted
to Justice Jose C. Vitug, as
chairman of the 2003 Bar
Examinations Committee. The
questions constituted 82% of
the questions asked in the
examination in Mercantile Law
in the morning of September
21, 2003, Sunday, in some
cases with slight changes
which were not substantial
and in other cases exactly as
proposed by Atty. Balgos.
Hence, any bar examinee who
was able to get hold of the
leaked questions before the
mercantile law examination
and answered them correctly,
would have been assured of
passing the examination with
at least a grade of 82%!
The circumstance that the
leaked
test
questions
consisted entirely of test
questions prepared by Atty.
Balgos, proves conclusively
that the leakage originated
from his office, not from the
Office of Justice Vitug, the Bar
Examinations Chairman.
Atty. Balgos claimed that the
leaked test questions were
prepared by him on his
computer.
Without
any
doubt, the source of the
leaked test questions was
Atty. Balgos computer. The
culprit
who
stole
or
downloaded them from Atty.
Balgos computer without the
latters
knowledge
and
consent, and who faxed them
to other persons, was Atty.
Balgos
legal
assistant,
Attorney Danilo De Guzman,
who voluntarily confessed the

deed to the Investigating

Committee.
De
Guzman
revealed that he faxed the
test questions, with the help
of
his
secretary
Reynita
Villasis, to his fraternity brods,
namely, Ronan Garvida, Arlan
(whose surname he could not
recall), and Erwin Tan.
In turn, Ronan Garvida faxed
the test questions to Betans
Randy Iigo and James Bugain.
Randy Iigo passed a copy or
copies of the same questions
to
another
Betan,
Alan
Guiapal, who gave a copy to
the
MLQU-Beta
Sigma
[Lambdas] Most Illustrious
Brother, Ronald F. Collado,
who ordered the printing and
distribution of 30 copies to the
MLQUs 30 bar candidates.
Attorney Danilo De Guzmans
act of downloading Attorney
Balgos test questions in
mercantile law from the
latters computer, without his
knowledge and permission,
was a criminal act of larceny.
It was theft of intellectual
property; the test questions
were intellectual property of
Attorney Balgos, being the
product of his intellect and
legal knowledge.
Besides theft, De Guzman also
committed
an
unlawful
infraction of Attorney Balgos
right
to
privacy
of
communication,
and
to
security of his papers and
effects against unauthorized
search and seizure - rights
zealously protected by the Bill
of Rights of our Constitution
(Sections 2 and 3, Article III,
1987 Constitution).

91

Legal Ethics

He transgressed the very first

canon of the lawyers Code of
Professional
Responsibility
which provides that [a] lawyer
shall uphold the Constitution,
obey the laws of the land, and
promote respect for law and
legal processes.
By
transmitting
and
distributing the stolen test
questions to some members
of the Beta Sigma Lambda
Fraternity,
possibly
for
pecuniary profit and to given
them undue advantage over
the other examiners in the
mercantile law examination,
De Guzman abetted cheating
or dishonesty by his fraternity
brothers in the examination,
which is violative of Rule 1.01
of Canon 1, as well as Canon 7
of the Code of Professional
Responsibility for members of
the Bar, which provide:
Rule 1.01 - A lawyer shall not
engage in unlawful, dishonest,
immoral or deceitful conduct
Canon 7 - A LAWYER SHALL AT
ALL TIMES UPHOLD THE
INTEGRITY AND DIGNITY OF
THE LEGAL PROFESSION AND
SUPPORT THE ACTIVITIES OF
THE INTEGRATED BAR.
De Guzman was guilty of
grave
misconduct
unbecoming a member of the
Bar. He violated the law
instead of promoting respect
for it and degraded the noble
profession of law instead of
upholding its dignity and
integrity.
His
actuations
impaired public respect for
the Court, and damaged the
integrity
of
the
bar
examinations as the final
measure of a law graduates
academic preparedness to

embark upon the practice of

law.
However, the Investigating
Committee does not believe
that De Guzman was solely
responsible for the leakage of
Atty. Balgos proposed test
questions in the mercantile
law
examination.
The
Committee does not believe
that he acted alone, or did not
have the assistance and
cooperation of other persons,
such as:
Cheryl Palma, Atty. Balgos
private
secretary,
who,
according to Atty. Balgos
himself, was the only person
who knew the password, who
could open and close his
computer; and who had the
key to his office where his
computer was kept. Since a
computer
may
not
be
accessed
or
downloaded
unless it is opened, someone
must have opened Atty.
Balgos computer in order for
De Guzman to retrieve the
test questions stored therein.
Silvestre Atienza, also a
fraternity brod of De Guzman,
who was responsible for
interconnecting Atty. Balgos
computer with the other
computers
outside
Atty.
Balgos room or office, and
who was the only other
person, besides Cheryl Palma,
who knew the password of
Atty. Balgos computer.
The following persons who
received from De Guzman,
and distributed copies of the
leaked test questions, appear
to have conspired with him to
steal and profit from the sale
of the test questions. They
could
not
have
been
92

Legal Ethics

motivated solely by a desire

to help the fraternity, for the
leakage
was
widespread
(kalat na kalat) according to
Erwin Tan. The possible coconspirators were:
Ronan Garvida,
Arlan,
Erwin Tan,
Randy Iigo,
Ronald
and

Collado,

Allan Guiapal
The Committee does not
believe that De Guzman
recklessly broke the law and
risked his job and future as a
lawyer, out of love for the
Beta Sigma Lambda fraternity.
There must have been an
ulterior material consideration
for his breaking the law and
tearing the shroud of secrecy
that, he very well knows,
covers the bar examinations.
On the other hand, the
Committee finds that the theft
of the test questions from
Atty. Balgos computer could
have been avoided if Atty.
Balgos had exercised due
diligence in safeguarding the
secrecy of the test questions
which he prepared. As the
computer
is
a
powerful
modern machine which he
admittedly
is
not
fairly
familiar with, he should not
have trusted it to deep secret
the test questions that he
stored in its hard disk. He
admittedly did not know the
password of his computer. He
relied on his secretary to use
the password to open and
close his computer. He kept

his computer in a room to

which other persons had
access. Unfamiliar with the
use of the machine whose
potential for mischief he could
not have been totally unaware
of, he should have avoided its
use for so sensitive an
undertaking as typing the
questions
in
the
bar
examination. After all he knew
how to use the typewriter in
the use of which he is quite
proficient. Atty. Balgos should
therefore have prepared the
test questions in his trusty
typewriter, in the privacy of
his home, (instead of his law
office), where they would
have been safe from the
prying eyes of secretaries and
assistant
attorneys.
Atty.
Balgos negligence in the
preparation and safekeeping
of his proposed test questions
for the bar examination in
mercantile law, was not the
proximate cause of the bar
leakage; it was, in fact, the
root cause. For, if he had
taken
those
simple
precautions to protect the
secrecy of his papers, nobody
could have stolen them and
copied and circulated them.
The integrity of the bar
examinations would not have
been sullied by the scandal.
He admitted that Mali siguro
ako, but that was what
happened (43 tsn, Oct. 24,
2003).
RECOMMENDATION
This Honorable court in the
case of Burbe v. Magulta, A.C.
No. 5713, June 10, 2002, 383
SCRA 276, pronounced the
following
reminder
for
lawyers: Members of the bar
must do nothing that may
tend to lessen in any degree
93

Legal Ethics

the confidence of the public in

the fidelity, the honesty and
integrity of the profession. In
another case, it likewise
intoned: We cannot overstress
the duty of a lawyer to at all
times uphold the integrity and
dignity of the legal profession.
He can do this by faithfully
performing his duties to
society, to the bar, to the
courts, and to his clients.
(Reyes v. Javier, A.C. No.
5574, February 2, 2002, 375
SCRA 538). It goes without
saying that a lawyer who
violates this precept of the
profession by committing a
gross
misconduct
which
dishonors and diminishes the
publics respect for the legal
profession,
should
be
disciplined.
After careful deliberation, the
Investigating
Committee
recommends that:
1. Attorney Danilo De Guzman
be DISBARRED for he had
shown that he is morally unfit
to continue as a member of
the legal profession, for grave
dishonesty, lack of integrity,
and criminal behavior. In
addition, he should make a
written PUBLIC APOLOGY and
pay DAMAGES to the Supreme
Court for involving it in
another bar scandal, causing
the
cancellation
of
the
mercantile law examination,
and wreaking havoc upon the
image of this institution.
2. Attorney Marcial O. T.
Balgos
should
be
REPRIMANDED by the Court
and likewise be required to
make a written APOLOGY to
the Court for the public
scandal he brought upon it as
a result of his negligence and

lack of due care in preparing

and
safeguarding
his
proposed test questions in
mercantile law. As the Court
had to cancel the Mercantile
Law examination on account
of the leakage of Attorney
Balgos test questions, which
comprised 82% of the bar
questions in that examination,
Atty. Balgos is not entitled to
receive any honorarium as
examiner for that subject.
3. FURTHER INVESTIGATION of
Danilo De Guzman, Cheryl
Palma,
Silvestre
Atienza,
Ronan Garvida, Arlan, Erwin
Tan, Randy Iigo, James Bugain,
Ronald Collado and Allan
Guiapal
by
the
National
Bureau of Investigation and
the Philippine National Police,
with a view to their criminal
prosecution as probable coconspirators in the theft and
leakage of the test questions
in mercantile law.
With regard to recommending
measures to safeguard the
integrity
of
the
bar
examinations and prevent a
repetition of future leakage in
the
said
examinations,
inasmuch as this matter is at
present under study by the
Courts Committee on Legal
Education and Bar Matters, as
an aspect of proposals for bar
reforms,
the
Investigating
Committee believes it would
be well-advised to refrain from
including in this report what
may
turn
out
to
be
duplicative, if not contrary,
recommendations
on
the
[3]
matter.
The Court adopts the
report, including with some
modifications
the
recommendation,
of
the
94

Legal Ethics

Investigating Committee. The

Court,
certainly
will
not
countenance
any
act
or
conduct that can impair not
only the integrity of the Bar
Examinations but the trust
reposed on the Court.
The Court also takes note
that Mr. Jovito M. Salonga and
Mr. Benjamin R. Katly, two of
its employees assigned to the
Management
Information
Systems Office (MISO), who
were
tasked
by
the
Investigating Committee to
inspect the computer system
in the office of Atty. Balgos,
found
that
the
Courts
Computer-Assisted
Legal
Research
(CALR) database[4] was
installed in the computer used
by Atty. Balgos. Mr. Salonga
and Mr. Katly reported that
the
system,
which
was
developed by the MISO, was
intended for the exclusive use
of the Court. The installation
thereof
to
any
external
computer
would
be
unauthorized
without
the
permission of the Court. Atty.
Velasco informed the two
Court employees that the
CALR database was installed
by Atty. De Guzman on the
computer being used by Atty.
Balgos. The matter would also
need further investigation to
determine
how
Atty.
De
Guzman was able to obtain a
copy of the Courts CALR
database.
WHEREFORE, the Court,
acting
on
the
recommendations
of
the
Investigating
Committee,
hereby resolves to (1) DISBAR Atty. DANILO
DE GUZMAN from the

practice
of
effective
upon
receipt
of
RESOLUTION;

law
his
this

(2) REPRIMAND
Atty.
MARCIAL O.T. BALGOS
and DISENTITLE him
from
receiving
any honorarium as an
Examiner
in
Mercantile Law;
(3) Direct the National
Bureau
of
Investigation (a) to
undertake
further
investigation of Danilo
De Guzman, Cheryl
Palma,
Silvestre
Atienza,
Ronan
Garvida, Erwin Tan,
Randy
Iigo,
James
Bugain,
Ronald
Collado
and
Allan
Guiapal with a view to
determining
their
participation
and
respective
accountabilities in the
bar
examination
leakage
and
to
conduct
an
investigation on how
Danilo De Guzman
was able to secure a
copy of the Supreme
Courts
CALR
database.
Let
a
copy
of
this
Resolution be made part of
the records of Danilo De
Guzman in the Office of the
Bar Confidant, Supreme Court
of the Philippines, and copies
to be furnished the Integrated
Bar
of
the Philippines and
circulated by the Office of the
Court Administrator to all
courts.
SO ORDERED.
95

Legal Ethics

96

Legal Ethics

Atty. RAMON P.
REYES, complainant,
vs. Atty. VICTORIANO
T. CHIONG
JR., respondent.

Lawyers should treat each

other with courtesy, dignity
and civility. The bickering and
the hostility of their clients
should not affect their conduct
and rapport with each other
as professionals and members
of the bar.
The Case
Before us is a Sworn
Complaint[1] filed
by
Atty.
Ramon P. Reyes with the
Office of the Bar Confidant of
this
Court,
seeking
the
disbarment of Atty. Victoriano
T. Chiong Jr. for violation of his
lawyers oath and of Canon 8
of the Code of Professional
Responsibility. After the Third
Division of this Court referred
the case to the Integrated Bar
of the Philippines (IBP), the
IBP
Commission
on
Bar
Discipline resolved to suspend
him as follows:
x x x [C]onsidering that
respondent is bound by his
oath which binds him to the
obligation that he will not
wittingly or willingly promote
or sue any groundless, false or
unlawful suit, nor give aid nor
consent
to
the
same. In
addition, Canon 8 of the Code
of Professional Responsibility
provides that a lawyer shall
conduct himself with courtesy,
fairness and candor towards
his professional colleagues,
and shall avoid harassing
tactics
against
opposing

counsel. In
impleading
complainant and Prosecutor
Salanga in Civil Case No.
4884, when it was apparent
that there was no legal ground
to do so, respondent violated
his oath of office as well as
the above-quoted Canon of
the Code of Professional
Responsibility, [r]espondent is
hereby SUSPENDED from the
practice of law for two (2)
years.[2]
The Facts
In his Complaint, Atty.
Reyes alleges that sometime
in January 1998, his services
were engaged by one Zonggi
Xu,[3] a Chinese-Taiwanese, in
a business venture that went
awry. Xu
invested P300,000
on a Cebu-based fishball,
tempura
and
seafood
products factory being set up
by a certain Chia Hsien Pan,
another
Chinese-Taiwanese
residing
in
Zamboanga
City. Eventually, the former
discovered that the latter had
not established a fishball
factory. When Xu asked for his
money back, Pan became
hostile, making it necessary
for the former to seek legal
assistance.
Xu,
through
herein
complainant, filed a Complaint
for estafa against Pan, who
was
represented
by
respondent. The
Complaint,
docketed as IS 98J-51990, was
assigned to Assistant Manila
City Prosecutor Pedro B.
Salanga, who then issued a
subpoena for Pan to appear
for preliminary investigation
on October 27 and 29,
1998. The
latter
neither
appeared
on
the
two
97

Legal Ethics

scheduled
hearings
nor
submitted
his
counteraffidavit. Hence,
Prosecutor
Salanga filed a Criminal
Complaint[4] for estafa against
him before the Regional Trial
Court (RTC) of Manila.[5] On
April 8, 1999, the Manila RTC
issued
a
Warrant
of
[6]
Arrest against Pan.
Thereafter,
respondent
filed an Urgent Motion to
Quash the Warrant of Arrest.
[7]
He also filed with the RTC of
Zamboanga
City
a
Civil
Complaint for the collection of
a sum of money and damages
as well as for the dissolution
of a business venture against
complainant,
Xu
and
Prosecutor Salanga.
When
confronted
by
complainant,
respondent
explained that it was Pan who
had decided to institute the
civil action against Atty.
Reyes. Respondent claimed he
would suggest to his client to
drop
the
civil
case,
if
complainant would move for
the dismissal of the estafa
case. However,
the
two
lawyers failed to reach a
settlement.
In his Comment[8] dated
January 27, 2000, respondent
argued that he had shown no
disrespect in impleading Atty.
Reyes as co-defendant in Civil
Case No. 4884. He claimed
that there was no basis to
conclude that the suit was
groundless, and that it had
been instituted only to exact
vengeance. He alleged that
Prosecutor
Salanga
was
impleaded as an additional
defendant because of the
irregularities the latter had
committed in conducting the

criminal
investigation. Specifically,
Prosecutor
Salanga
had
resolved to file the estafa case
despite the pendency of Pans
Motion for an Opportunity to
Submit Counter-Affidavits and
Evidence,[9] of the appeal[10] to
the justice secretary, and of
the Motion to Defer/Suspend
Proceedings.[11]
On
the
other
hand,
complainant was impleaded,
because
he
allegedly
connived with his client (Xu)
in filing the estafa case, which
the former knew fully well was
baseless. According
to
respondent, the irregularities
committed
by
Prosecutor
Salanga
in
the
criminal
investigation
and
complainants
connivance
therein were discovered only
after the institution of the
collection suit.
The Third Division of this
Court referred the case to the
IBP for investigation, report
and
recommendation.
[12]
Thereafter, the Board of
Governors of the IBP passed
its June 29, 2002 Resolution.
[13]

Report
Recommendation
IBP

of

and
the

In
her
Report
and
[14]
Recommendation,
Commiss
ioner Milagros V. San Juan, to
whom the case was assigned
by the IBP for investigation
and report, averred that
complainant and Prosecutor
Salanga had been impleaded
in Civil Case No. 4884 on the
sole basis of the Criminal
Complaint for estafa they had
filed
against
respondents
98

Legal Ethics

client. In
his
Comment,
respondent himself claimed
that the reason x x x was x x x
the
irregularities
of
the
criminal
investigation/connivance and
consequent damages.
Commissioner San Juan
maintained that the collection
suit with damages had been
filed purposely to obtain
leverage against the estafa
case, in which respondents
client
was
the
defendant. There was no need
to implead complainant and
Prosecutor
Salanga,
since
they had never participated in
the
business
transactions
between
Pan
and
Xu. Improper
and
highly
questionable was the inclusion
of
the
prosecutor
and
complainant in the civil case
instituted by respondent on
the alleged prodding of his
client. Verily, the suit was filed
to harass complainant and
Prosecutor Salanga.
Commissioner San Juan
held that respondent had no
ground to implead Prosecutor
Salanga and complainant in
Civil Case No. 4884. In so
doing, respondent violated his
oath of office and Canon 8 of
the Code of Professional
Responsibility.
The
IBP
adopted
the
investigating
commissioners
recommendation
for
his
suspension from the practice
of law for two (2) years.
This Courts Ruling
We agree with the IBPs
recommendation.
Lawyers
are
licensed
officers of the courts who are

empowered
to
appear,
prosecute and defend; and
upon whom peculiar duties,
responsibilities and liabilities
are devolved by law as a
consequence.[15] Membership
in the bar imposes upon them
certain obligations. Mandated
to maintain the dignity of the
legal profession, they must
conduct themselves honorably
and fairly. Moreover, Canon 8
of the Code of Professional
Responsibility provides that
[a] lawyer shall conduct
himself with courtesy, fairness
and
candor
towards
his
professional colleagues, and
shall avoid harassing tactics
against opposing counsel.
Respondents actions do
not measure up to this
Canon. Civil Case No. 4884
was for the collection of a sum
of money, damages and
dissolution of an unregistered
business
venture. It
had
originally been filed against
Spouses Xu, but was later
modified
to
include
complainant and Prosecutor
Salanga.
The
Amended
Supplemental
Complaints[16] alleged
following:

and
the

27. The
investigating
prosecutor defendant Pedro
Salanga
knowingly
and
deliberately refused and failed
to perform his duty enjoined
by
the
law
and
the
Constitution to afford plaintiff
Chia Hsien Pan due process by
violating his rights under the
Rules
on
preliminary
investigations; he also falsely
made a Certification under
oath
that
preliminary
investigation
was
duly
99

Legal Ethics

conducted and plaintiff [was]

duly informed of the charges
against him but did not
answer; he maliciously and x
x x partially ruled that there
was probable cause and filed
a Criminal Information for
estafa against plaintiff Chia
Hsien Pan, knowing fully [well]
that the proceedings were
fatally defective and null and
void; x x x;
28. Said assistant prosecutor,
knowing also that plaintiff
Chia Hsien Pan filed said
appeal and motion to defer for
the valid grounds stated
therein deliberately refused to
correct
his
errors
and
consented to the arrest of said
plaintiff under an invalid
information and warrant of
arrest.
29. Defendant Atty. Ramon
Reyes, knowing that the suit
of defendant Zongoi Xu is
baseless connived with the
latter to harass and extort
money from plaintiff Chia
Hsien Pan by said criminal
prosecution in the manner
contrary to law, morals and
public policy, resulting to the
arrest of said plaintiff and
causing
plaintiffs
grave
[17]
irreparable damages[.]
We concur with the IBP
that the amendment of the
Complaint and the failure to
resort to the proper remedies
strengthen
complainants
allegation that the civil action
was intended to gain leverage
against the estafa case. If
respondent or his client did
not agree with Prosecutor
Salangas
resolution,
they
should have used the proper
procedural and administrative
remedies. Respondent
could

have gone to the justice

secretary and filed a Motion
for Reconsideration or a
Motion for Reinvestigation of
Prosecutor Salangas decision
to file an information for
estafa.
In the trial court, a Motion
to Dismiss was available to
him if he could show that the
estafa case was filed without
basis. Moreover,
he
could
have instituted disbarment
proceedings
against
complainant and Prosecutor
Salanga, if he believed that
the two had conspired to act
illegally. As
a
lawyer,
respondent
should
have
advised his client of the
availability
of
these
remedies. Thus, the filing of
the
civil
case
had
no
justification.
The lack of involvement of
complainant and Prosecutor
Salanga in
the
business
transaction subject of the
collection suit shows that
there was no reason for their
inclusion in that case. It
appears that respondent took
the estafa case as a personal
affront and used the civil case
as a tool to return the
inconvenience suffered by his
client. His
actions
demonstrate a misuse of the
legal process. The aim of
every lawsuit should be to
render justice to the parties
according to law, not to
harass them.[18]
Lawyers should treat their
opposing counsels and other
lawyers with courtesy, dignity
and civility. A great part of
their comfort, as well as of
their success at the bar,
depends upon their relations
100

Legal Ethics

with
their
professional
brethren. Since
they
deal
constantly with each other,
they must treat one another
with trust and respect. Any
undue ill feeling between
clients should not influence
counsels in their conduct and
demeanor
toward
each
other. Mutual
bickering,
unjustified recriminations and
offensive
behavior
among
lawyers not only detract from
the dignity of the legal
profession,[19] but
also
constitute
highly
unprofessional
conduct
subject to disciplinary action.

perfunctorily
created,
or
gained
by
artifice
or
contrivance. It is born of sharp
contests and thrives despite
conflicting
interests. It
emanates
solely
from
integrity, character, brains
and skill in the honorable
performance of professional
duty.[22]
WHEREFORE, respondent
is found guilty as charged and
is hereby SUSPENDED for two
(2) years from the practice of
law, effective immediately.
SO ORDERED.

Furthermore, the Lawyers

Oath exhorts law practitioners
not to wittingly or willingly
promote
or
sue
any
groundless, false or unlawful
suit, nor give aid nor consent
to the same.
Respondent claims that it
was his client who insisted in
impleading complainant and
Prosecutor
Salanga. Such
excuse
is
flimsy
and
unacceptable. While lawyers
owe entire devotion to the
interests of their clients, their
office
does
not
permit
violation of the law or any
manner of fraud or chicanery.
[20]
Their rendition of improper
service invites stern and just
condemnation. Correspondingl
y, they advance the honor of
their profession and the best
interests of their clients when
they render service or give
advice that meets the strictest
principles of moral law.[21]
The highest reward that
can be bestowed on lawyers is
the
esteem
of
their
professional
brethren. This
esteem cannot be purchased,
101

Legal Ethics

IN RE: PETITION TO SIGN

IN THE ROLL OF
ATTORNEYS
MICHAEL A.
MEDADO, Petitioner.

We resolve the instant Petition

to Sign in the Roll of Attorneys
filed by petitioner Michael A.
Medado (Medado).
Medado graduated from the
University of the Philippines
with the degree of Bachelor of
Laws in 19791 and passed the
same year's bar examinations
with a general weighted
average of 82.7.2
On 7 May 1980, he took the
Attorneys
Oath
at
the
Philippine
International
Convention
Center
(PICC)
together with the successful
bar
examinees.3 He
was
scheduled to sign in the Roll
of Attorneys on 13 May
1980,4 but he failed to do so
on
his
scheduled
date,
allegedly because he had
misplaced the Notice to Sign
the Roll of Attorneys5 given by
the Bar Office when he went
home to his province for a
vacation.6
Several years later, while
rummaging through his old
college files, Medado found
the Notice to Sign the Roll of
Attorneys. It was then that he
realized that he had not
signed in the roll, and that
what he had signed at the
entrance of the PICC was
probably just an attendance
record.7
By the time Medado found the
notice,
he
was
already

working. He stated that he

was mainly doing corporate
and taxation work, and that
he was not actively involved
in litigation practice. Thus, he
operated "under the mistaken
belief that since he had
already taken the oath, the
signing of the Roll of Attorneys
was not as urgent, nor as
crucial to his status as a
lawyer";8 and "the matter of
signing in the Roll of Attorneys
lost
its
urgency
and
compulsion,
and
was
9
subsequently forgotten."
In
2005,
when
Medado
attended
Mandatory
Continuing Legal Education
(MCLE) seminars, he was
required to provide his roll
number in order for his MCLE
compliances to be credited.10
Not having signed in the Roll
of Attorneys, he was unable to
provide his roll number.
About seven years later, or on
6 February 2012, Medado filed
the instant Petition, praying
that he be allowed to sign in
the Roll of Attorneys.11
The
Office
of
the
Bar
Confidant (OBC) conducted a
clarificatory conference on the
matter on 21 September
201212 and
submitted
a
Report and Recommendation
to this Court on 4 February
2013.13 The
OBC
recommended that the instant
petition
be
denied
for
petitioners gross negligence,
gross misconduct and utter
lack of merit.14 It explained
that, based on his answers
during
the
clarificatory
conference, petitioner could
offer no valid justification for
102

Legal Ethics

his negligence in signing in

the Roll of Attorneys.15
After a judicious review of the
records, we grant Medados
prayer in the instant petition,
subject to the payment of a
fine and the imposition of a
penalty
equivalent
to
suspension from the practice
of law.
At the outset, we note that
not allowing Medado to sign in
the Roll of Attorneys would be
akin to imposing upon him the
ultimate
penalty
of
disbarment, a penalty that we
have reserved for the most
serious ethical transgressions
of members of the Bar.
In this case, the records do
not show that this action is
warranted.
For
one,
petitioner
demonstrated good faith and
good moral character when he
finally filed the instant Petition
to Sign in the Roll of
Attorneys. We note that it was
not a third party who called
this Courts attention to
petitioners omission; rather,
it was Medado himself who
acknowledged his own lapse,
albeit after the passage of
more than 30 years. When
asked by the Bar Confidant
why it took him this long to
file
the
instant
petition,
Medado very candidly replied:
Mahirap hong i-explain yan
pero, yun bang at the time,
what can you say? Takot ka
kung anong mangyayari sa
yo, you dont know whats
gonna happen. At the same
time, its a combination of
apprehension and anxiety of
whats gonna happen. And,

finally its the right thing to

do. I have to come here
sign the roll and take the oath
as necessary.16
For another, petitioner has not
been subject to any action for
disqualification
from
the
17
practice of law, which is
more than what we can say of
other individuals who were
successfully
admitted
as
members of the Philippine Bar.
For this Court, this fact
demonstrates that petitioner
strove to adhere to the strict
requirements of the ethics of
the profession, and that he
has prima facie shown that he
possesses
the
character
required to be a member of
the Philippine Bar.
Finally, Medado appears to
have been a competent and
able legal practitioner, having
held various positions at the
Laurel Law Office,18 Petron,
Petrophil
Corporation,
the
Philippine
National
Oil
Company, and the Energy
Development Corporation.19
All
these
demonstrate
Medados worth to become a
full-fledged member of the
Philippine Bar.1wphi1 While
the practice of law is not a
right but a privilege,20 this
Court will not unwarrantedly
withhold this privilege from
individuals who have shown
mental fitness and moral fiber
to withstand the rigors of the
profession.
That said, however, we cannot
fully
exculpate
petitioner
Medado from all liability for
his years of inaction.
Petitioner has been engaged
in the practice of law since
103

Legal Ethics

1980, a period spanning more

than 30 years, without having
signed
in
the
Roll
of
21
Attorneys. He justifies this
behavior by characterizing his
acts as "neither willful nor
intentional but based on a
mistaken belief and an honest
error of judgment."22
We disagree.
While an honest mistake of
fact could be used to excuse a
person
from
the
legal
consequences of his acts23 as
it negates malice or evil
motive,24 a mistake of law
cannot be utilized as a lawful
justification,
because
everyone is presumed to know
the
law
and
its
25
consequences. Ignorantia
factiexcusat; ignorantia legis
neminem excusat.
Applying these principles to
the case at bar, Medado may
have at first operated under
an honest mistake of fact
when he thought that what he
had signed at the PICC
entrance before the oathtaking was already the Roll of
Attorneys.
However,
the
moment he realized that what
he had signed was merely an
attendance record, he could
no longer claim an honest
mistake of fact as a valid
justification. At that point,
Medado should have known
that he was not a full-fledged
member of the Philippine Bar
because of his failure to sign
in the Roll of Attorneys, as it
was the act of signing therein
that would have made him
so.26 When, in spite of this
knowledge,
he chose to
continue
practicing
law
without taking the necessary
steps to complete all the

requirements for admission to

the Bar, he willfully engaged
in the unauthorized practice
of law.
Under the Rules of Court, the
unauthorized practice of law
by ones assuming to be an
attorney or officer of the
court, and acting as such
without
authority,
may
constitute indirect contempt
of court,27 which is punishable
by fine or imprisonment or
both.28 Such
a
finding,
however, is in the nature of
criminal contempt29 and must
be reached after the filing of
charges and the conduct of
hearings.30 In this case, while
it appears quite clearly that
petitioner committed indirect
contempt
of
court
by
knowingly
engaging
in
unauthorized practice of law,
we refrain from making any
finding of liability for indirect
contempt,
as
no
formal
charge pertaining thereto has
been filed against him.
Knowingly
engaging
in
unauthorized practice of law
likewise transgresses Canon 9
of 'the Code of Professional
Responsibility, which provides:
CANON 9 -A lawyer shall not,
directly or indirectly, assist in
the unauthorized practice of
law.
While a reading of Canon 9
appears to merely prohibit
lawyers from assisting in the
unauthorized practice of law,
the unauthorized practice of
law by the lawyer himself is
subsumed
under
this
provision, because at the
heart of Canon 9 is the
lawyer's duty to prevent the
unauthorized practice of law.
104

Legal Ethics

This duty likewise applies to

law
students
and
Bar
candidates.
As
aspiring
members of the Bar, they are
bound to comport themselves
in accordance with the ethical
standards
of
the
legal
profession.
Turning now to the applicable
penalty, previous violations of
Canon 9have warranted the
penalty of suspension from
the
practice
of
law.31 As
Medado is not yet a fullfledged lawyer, we cannot
suspend him from the practice
of law. However, we see it fit
to impose upon him a penalty
akin to suspension by allowing
him to sign in the Roll of
Attorneys one (1) year after
receipt of this Resolution. For
his
transgression
of
the
prohibition
against
the
unauthorized practice of law,
we likewise see it fit to fine
him in the amount of P32,000.
During the one year period,
petitioner is warned that he is
not allowed to engage in the
practice of law, and is sternly
warned that doing any act
that constitutes practice of
law before he has signed in
the Roll of Attorneys will be
dealt with severely by this
Court.

WARNED that doing any act

that constitutes practice of
law before he has signed in
the Roll of Attorneys will be
dealt will be severely by this
Court.
Let a copy of this Resolution
be furnished the Office of the
Bar Confidant, the Integrated
Bar
of the Philippines, and the
Office
of
the
Court
Administrator for circulation to
all courts in the country.
SO ORDERED.

WHEREFORE,
the
instant
Petition to Sign in the Roll of
Attorneys is hereby GRANTED.
Petitioner Michael A. Medado
is ALLOWED to sign in the Roll
of Attorneys ONE (1) YEAR
after
receipt
of
this
Resolution.
Petitioner
is
likewise ORDERED to pay a
FINE
of P32,000
for
his
unauthorized practice of law.
During the one year period,
petitioner is NOT ALLOWED to
practice law, and is STERNLY
105

Legal Ethics

REXIE EFREN A. BUGARING AND

ROYAL BECHTEL
BUILDERS,
INC., petitioners, vs. HON.
DOLORES S. ESPAOL, in
her capacity as Presiding
Judge of the Regional Trial
Court Branch 90, Imus,
Cavite, respondent.

Before us is a petition for

review on certiorari of the Decision
dated March 6, 1998 of the Court of
Appeals[1] affirming the decision of
the Regional Trial Court of Cavite,
Branch 90, Imus, Cavite, declaring
petitioner Rexie Efren A. Bugaring
guilty in direct contempt of court.
The incident subject of the
petition occurred during a hearing
held on December 5, 1996 of Civil
Case No. 1266-96 entitled Royal
Becthel[2] Builders, Inc. vs. Spouses
Luis Alvaran and Beatriz Alvaran, et
al., for Annulment of Sale and
Certificates
of
Title,
Specific
Performance and Damages with
Prayer for Preliminary Injunction
and/or
Temporary
Restraining
Order in the sala of respondent
judge Dolores S. Espaol of the
Regional Trial Court of Cavite,
Branch 90, Imus, Cavite.
Pursuant to a motion filed by
the previous counsel of Royal
Bechtel Builders, Inc., the trial
court issued an order on February
27, 1996 directing the Register of
Deeds of the Province of Cavite to
annotate at the back of certain
certificates of title a notice of lis
pendens. Before the Register of
Deeds of the Province of Cavite
could comply with said order, the
defendant Spouses Alvaran on April
15, 1996, filed a motion to
cancel lis pendens. On July 19,
1996,
petitioner,
the
newly
appointed counsel of Royal Bechtel
Builders, Inc., filed an opposition to
the motion to cancel lis pendens.
On August 16, 1996, the motion to
cancel lis pendens was granted by
the court. Petitioner filed a motion
for reconsideration, which was
opposed by the defendants. On

November 5, 1996, petitioner filed

an Urgent Motion to Resolve, and
on November 6, 1996, filed a
Rejoinder to Opposition and a
Motion for Contempt of Court.[3]
During the hearing of the
motion for contempt of court held
on December 5, 1996, the following
incident transpired:
ATTY. BUGARING: For
the
plaintiff, your Honor, we are
ready.
ATTY
CORDERO: Same
appearance
for
the
defendant, your Honor.
ATTY.
BUGARING: Your
Honor
please, we are ready with
respect to the prosecution of
our motion for contempt,
your Honor. May we know
from the record if the
Register of Deeds is properly
notified for todays hearing.
COURT: Will you call
Register of Deeds.

on

the

INTERPRETER: Atty.
Diosdado
Concepcion, He is here, your
Honor.
ATTY. BUGARING: We are ready,
your Honor.
COURT: There is a motion for
contempt in connection with
the order of this Court which
directed
your
office
to
register lis pendens of the
complaint in connection with
this case of Royal Becthel
Builder, Inc. versus spouses
Luis Alvaran and Beatriz
Alvaran, et al.
ATTY. CONCEPCION: Your Honor, I
just received this morning at
ten o clock [in the morning]
the subpoena.
ATTY. BUGARING: May we put it
on record that as early as
November 6, 1996, the Office
of the Register of Deeds was
furnished with a copy of our
motion, your Honor please,
106

Legal Ethics

and the record will bear it

out. Until now they did not
file any answer, opposition or
pleadings with respect to this
motion.
ATTY. CONCEPCION: Well I was
not informed because I am
not the Register of Deeds. I
am only the Deputy Register
of Deeds and I was not
informed by the receiving
clerk of our office regarding
this case. As a matter of fact
I was surprised when I
received this morning the
subpoena, your Honor.
ATTY.
BUGARING: Your
Honor
please, may we put that on
record that the manifestation
of the respondent that he
was not informed.
COURT: That is recorded. This is
a Court of record and
everything that you say here
is recorded.
ATTY. BUGARING: Yes your Honor
please, we know that but we
want to be specific because
we will be [filing] a case
against this receiving clerk
who did not [inform] him your
Honor please, with this
manifestation of the Deputy
of the Register of Deeds that
is
irregularity
in
the
performance of the official
duty of the clerk not to
inform the parties concerned.
COURT: Counsel, the Court would
like to find out who this
fellow who is taking the video
recording
at
this
proceedings. There
is
no
permission from this Court
that such proceedings should
be taken.
ATTY. BUGARING: Your Honor, my
Assistant. I did not advise
him to take a video he just
accompanied
me
this
morning.
COURT: Right, but the video
recording is prepared process

and you should secure the

permission of this Court.
ATTY. BUGARING: Actually, I did
not instruct him to take some
video tape.
COURT: Why
would
he
be
bringing camera if you did
not give him the go signal
that shots should be done.
ATTY.
BUGARING: This
Court
should not presume that,
your Honor please, we just
came from an occasion last
night and I am not yet come
home, your Honor please. I
could prove your Honor
please, that the contents of
that tape is other matters
your Honor please. I was just
surprised why he took video
tape your Honor please, that
we ask the apology of this
Court if that offend this Court
your Honor please.
COURT: It
is
not
offending
because this is a public
proceedings
but
the
necessary
authority
or
permission
should
be
secured.
ATTY. BUGARING: In
fact
I
instructed him to go out, your
Honor.
COURT: After the court have
noticed that he is taking a
video tape.
ATTY.
BUGARING: Yes,
your
Honor, in fact that is not my
personal problem your Honor
please, that is personal to
that guy your Honor please if
this representation is being .
COURT: That is very
dont give that alibi.

shallow,

ATTY. BUGARING: At any rate,

your Honor please, we are
going
to
mark
our
documentary evidence as
part of our motion for
contempt, your Honor please.

107

Legal Ethics

COURT: What has the Register of

Deeds got to say with this
matter?
ATTY. CONCEPCION: Well as I
have said before, I have not
received
any
motion
regarding this contempt you
are talking. I am willing now
to testify.
ATTY. BUGARING: Your Honor I
am still of the prosecution
stage, it is not yet the
defense. This is a criminal
proceedings,
contempt
proceedings is a criminal.
ATTY. CONCEPCION: Your Honor
please, may I ask for the
assistance from the Fiscal.
COURT: If this is going to
proceed,
we
need
the
presence of a Fiscal or a
counsel for the Register of
Deeds.
ATTY.
CONCEPCION: Can
I
appoint an outside lawyer not
a Fiscal but a private
counsel, your Honor.
COURT: That
is
at
your
pleasure. The
Court
will
consider that you should be
amply represented.
ATTY. CONCEPCION: As a matter
of fact I have a lawyer here,
Atty. Barzaga if he is willing
ATTY.
BARZAGA[4]: Yes,
your
Honor, I will just review the
records.
ATTY. BUGARING: Anyway your
Honor please, I will not yet
present my witness but I will
just mark our documentary
exhibits which are part of
the record of the case and
thereafter your Honor please.
COURT: You wait for a minute
counsel because there is a
preparation being done by
newly appointed counsel of
the respondent, Atty. Barzaga
is considered as the privately
hired counsel of the register

of deeds and the respondent

of
this
contempt
proceedings. How much time
do you need to go over the
record of this case so that we
can call the other case in the
meanwhile.
ATTY.
BARZAGA: Second
your Honor.

call,

---------------------------------------------------------------------------COURT: Are you

Barzaga?

ready

Atty.

ATTY. BARZAGA: Yes,

your
Honor. Well
actually
your
Honor, after reviewing the
record of the case your
Honor, I noticed that the
motion for contempt of Court
was filed on November 6,
1966 and in paragraph 6
thereof, your Honor it is
stated that, the record of the
case shows up to the filing of
this motion, the Register as
well as the Deputy Register
Diosdado Concepcion of the
Office of the Register of
Deeds of the Province of
Cavite, did not comply with
the Court Orders dated
February 27, 1996, March 29,
1996, respectively. However,
your Honor, Atty. Diosdado
Concepcion has shown to me
a letter coming from Atty.
Efren A. Bugaring dated
September
18,
1996
addressed to the Register
regarding this notice of Lis
Pendens pertaining to TCT
Nos. T-519248, 519249 and
519250
and
this
letter
request, your Honor for
the annotation of the lis
pendens clearly shows that it
has been already entered in
the book of primary entry. We
would like also to invite the
attention of the Hon. Court
that the Motion for Contempt
of Court was filed on
November 6, 1996. The letter
for the annotation of the lis
pendens was made by the
108

Legal Ethics

counsel for the plaintiff only

on September 18, 1996, your
Honor. However, your Honor,
as early as August 16, 1996
an Order has already been
issued by the Hon. Court
reading
as
follows,
Wherefore in
view
of the
above, the motion of the
defendant is GRANTED and
the Register of Deeds of the
Province of Cavite, is hereby
directed to CANCEL the
notice
of
lis
pendens
annotated at the back of
Certificate of
Title
Nos.
519248, 51949 (sic) and
51950 (sic).
ATTY.
BUGARING: Your
Honor
please, may we proceed your
Honor, will first mark our
documentary evidence.
COURT: You wait until the Court
allows you to do what you
want to do, okay. The counsel
has just made manifestation,
he has not prayed for
anything. So let us wait
until he is finished and then
wait for the direction of this
Court what to do to have an
orderly proceedings in this
case.
ATTY.
BARZAGA: Considering
your Honor, that the issues
appear to be a little bit
complicated
your
Honor,
considering that the order
regarding the annotation of
the lis pendens has already
been revoked by the Hon.
Court your Honor, we just
request that we be given a
period of ten days from today
your Honor, within which to
submit our formal written
opposition your Honor.
COURT: Counsel, will you direct
your
attention
to
the
manifestation filed earlier by
Atty. Tutaan in connection
with the refusal of the
Register
of
Deeds
to
annotate the lis pendens
because
of
certain
reasons. According to the
manifestation of Atty. Tutaan

and it is appearing in the

earlier part of the record of
this case, the reason for that
is because there was a
pending subdivision plan, it is
so stated. I think it was dated
March, 1996. May I have the
record please.
ATTY. BARZAGA: Yes, your Honor.
COURT: This Court would like to
be
enlightened
with
respect to that matter.
ATTY. BARZAGA: Well, according
to Atty. Diosdado Concepcion
he could already explain this,
your Honor.
COURT: Have
it
properly
addressed as part of the
manifestation so that this
court
can
be
guided
accordingly. Because
this
Court believes that the root
of the matter started from
that. After the submission of
the . what are you suppose to
submit?
ATTY. BARZAGA: Comment your
Honor, on the motion to cite
Atty. Diosdado Concepcion in
contempt of Court.
COURT: After the submission of
the Comment and furnishing
a copy of the comment to the
counsel for the plaintiff, this
Court is going to give the
counsel for the plaintiff an
equal time within which to
submit his reply.
ATTY.
BUGARING: Your
Honor
please, it is the position of
this
representation
your
Honor please, that we will be
marking
first
our
documentary
evidence
because this is set for
hearing for today, your Honor
please.
COURT: If you are going to mark
your evidence and they do
not have their comment yet
what are we going to receive
as evidence.

109

Legal Ethics

ATTY. BUGARING: If your Honor

please
COURT: Will you listen to the
Court and just do whatever
you have to do after the
submission of the comment.
ATTY. BUGARING: I am listening,
your Honor please, but the
record will show that the
motion for contempt was
copy furnished with the
Register
of
Deeds
and
Diosdado Concepcion.
COURT: Precisely, if you are
listening then you will get
what the Court would want to
do. This should be an orderly
proceedings and considering
that this is a Court of record
the comment has to be in
first then in your reply you
can submit your evidence to
rebut the argument that is
going to be put up by the
respondent and so we will be
able to hear the case
smoothly.
ATTY. BUGARING: My point here
your Honor please, is that the
respondent had been long
time
furnished
of
this
contempt proceedings. With
a copy of the motion they
should have filed it in due
time in accordance with the
rules and because it is
scheduled for trial, we are
ready to mark our evidence
and present to this Court,
your Honor.
COURT: (Banging the gavel) Will
you listen.
ATTY. BUGARING: I am listening,
your Honor.
COURT: And this Court declares
that you are out of order.
ATTY. BUGARING: Well, if that is
the contention of the Court
your Honor please, we are all
officers of the Court, your
Honor, please, we have also
---- and we know also our
procedure, your Honor.

COURT: If
you
know
your
procedure then you follow
the procedure of the Court
first and then do whatever
you want.
ATTY. BUGARING: Yes, your Honor
please, because we could
feel
the
antagonistic
approach of the Court to this
representation ever since I
appeared your Honor please
and I put on record that I will
be filing an inhibition to this
Hon. Court.
COURT: Do
that
right
away. (Banging the gavel)
ATTY. BUGARING: Because we
could not find any sort of
justice in town.
COURT: Do that right away.
ATTY. BUGARING: We are ready
to present our witness and
we are deprive to present our
witness.
COURT: You have presented a
witness and it was an
adverse witness that was
presented.
ATTY. BUGARING: I did not.
COURT: With respect to this, the
procedure of the Court is for
the respondent to file his
comment.
ATTY.
BUGARING: Well
your
Honor please, at this point in
time I dont want to comment
on anything but I reserve my
right to inhibit this Honorable
Court before trying this case.
COURT: You can do whatever you
want.
ATTY.
BUGARING: Yes,
your
Honor, that is our prerogative
your Honor.
COURT: As far as this Court is
concerned it is going to
follow the rules.

110

Legal Ethics

ATTY.
BUGARING: Yes,
your
Honor, we know all the rules.
COURT: Yes, you know your rules
thats why you are putting the
cart ahead of the horse.
ATTY. BUGARING: No your Honor,
Ive been challenged by this
Court that I know better than
this
Court. Modestly
(sic)
aside your Honor please, Ive
been
winning
in
many
certiorari cases, your Honor.
COURT: Okay, okay, do that, do
that. I am going to cite you
for
contempt
of
Court. (Banging
the
gavel) You call the police and
I am going to send this
lawyer in jail. (Turning to the
Sheriff)
ATTY.
BUGARING: I
am
just
manifesting and arguing in
favor of my client your Honor
please.
COURT: You have been given
enough time and you have
been abusing the discretion
of this Court.
ATTY. BUGARING: I am very sorry
your Honor, if that is the
appreciation of the Court but
this is one way I am
protecting my client, your
Honor.
COURT: That is not the way to
protect your client that is an
abuse of the discretion of this
Court. (Turning
to
the
Sheriff) Will you see to it that
this guy is put in jail. (pp. 2942. Rollo)
Hence,
in
an
Order
dated December 5, 1996, Judge
Espaol cited petitioner in direct
contempt of court, thus:
During the hearing of this case,
plaintiffs and counsel were present
together with one (1) operating a
video camera who was taking
pictures of the proceedings of the
case while counsel, Atty. Rexie
Efren
Bugaring
was
making

manifestation to the effect that he

was
ready
to
mark
his
documentary evidence pursuant to
his Motion to cite (in contempt of
court) the Deputy Register of
Deeds of
Cavite,
Diosdado
Concepcion.
The Court called the attention of
said counsel who explained that he
did not cause the appearance of
the cameraman to take pictures,
however, he admitted that they
came from a function, and that was
the
reason
why
the
said
cameraman was in tow with him
and the plaintiffs. Notwithstanding
the flimsy explanation given, the
counsel sent out the cameraman
after the Court took exception to
the
fact
that
although
the
proceedings are open to the public
and that it being a court of record,
and since its permission was not
sought, such situation was an
abuse of discretion of the Court.
When the respondent, Deputy
Register of Deeds Concepcion
manifested that he needed the
services of counsel and right then
and there appointed Atty. Elpidio
Barzaga to represent him, the case
was allowed to be called again. On
the second call, Atty. Bugaring
started to insist that he be allowed
to
mark
and
present
his
documentary evidence in spite of
the fact that Atty. Barzaga was still
manifesting that he be allowed to
submit a written pleading for his
client, considering that the Motion
has so many ramifications and the
issues are complicated.
At this point, Atty. Bugaring was
insisting that he be allowed to
mark his documentary evidence
and was raring to argue as in fact
he
was
already
perorating
despite the fact that Atty. Barzaga
has not yet finished with his
manifestation. As Atty. Bugaring
appears
to
disregard
orderly
procedure, the Court directed him
to listen and wait for the ruling of
the
Court
for
an
orderly
proceeding.
While claiming that he was
listening, he would speak up
111

Legal Ethics

anytime he felt like doing so. Thus,

the Court declared him out of
order,
at which
point,
Atty.
Bugaring flared up and uttered
words insulting the Court; such as:
that he knows better than the
latter as he has won all his cases of
certiorari in the appellate Courts,
that he knows better the Rules of
Court; that he was going to move
for the inhibition of the Presiding
Judge
for
allegedly
being
antagonistic to his client, and other
invectives were hurled to the
discredit of the Court.
Thus, in open court, Atty. Bugaring
was declared in direct contempt
and order the Courts sheriff to
arrest and place him under
detention.
WHEREFORE, in view of the
foregoing and the fact that Atty.
Rexie Efren Bugaring committed an
open defiance, even challenging
the Court in a disrespectful,
arrogant,
and
contumacious
manner, he is declared in direct
contempt of Court and is sentenced
to three (3) days imprisonment and
payment of a fine of P3,000.00. His
detention
shall
commence
immediately at the Municipal Jail of
Imus, Cavite.[5]
Pursuant to said Order, the
petitioner served his three (3) day
sentence at the Imus Municipal Jail,
and paid the fine of P3,000.00.[6]
While serving the first day of
his sentence on December 5, 1996,
petitioner filed a motion for
reconsideration of the Order citing
him
in
direct
contempt
of
court. The next day, December 6,
1996, petitioner filed another
motion praying for the resolution of
his
motion
for
reconsideration. Both motions were
never resolved and petitioner was
released on December 8, 1996.[7]
To clear his name in the legal
circle and the general public,
petitioner filed a petition before the
Court of Appeals praying for the
annulment of the Order dated
December 5, 1996 citing him in
direct contempt of court and the

reimbursement of the fine of

P3,000.00
on
grounds
that
respondent Judge Dolores S. Espaol
had no factual and legal basis in
citing him in direct contempt of
court, and that said Order was null
and void for being in violation of
the
Constitution
and
other
pertinent laws and jurisprudence.[8]
The Court of Appeals found that
from a thorough reading of the
transcript of stenographic notes of
the hearing held on December 5,
1996, it was obvious that the
petitioner was indeed arrogant, at
times
impertinent,
too
argumentative, to the extent of
being disrespectful, annoying and
sarcastic towards the court.[9] It
affirmed
the
order
of
the
respondent judge, but found that
the fine of P3,000.00 exceeded the
limit of P2,000.00 prescribed by the
Rules of Court,[10] and ordered the
excess of P1,000.00 returned to
petitioner. On March 6, 1998, it
rendered judgment, the dispositive
portion of which reads:
WHEREFORE, the petition is hereby
DISMISSED for lack of merit and the
assailed order dated December 5,
1996 issued by the trial court is
hereby
AFFIRMED
with
the
modification that the excess fine of
P1,000.00 is ORDERED RETURNED
to the petitioner.
Before us, petitioner ascribes to
the Court of Appeals this lone error:
THE
APPELLATE
COURT
COMMITTED A REVERSIBLE ERROR
IN
AFFIRMING
THE
ASSAILED
ORDER OF THE TRIAL COURT
WHICH
TO
PETITIONERS
SUBMISSIONS
SMACKS
OF
OPPRESSION
AND
ABUSE
OF
AUTHORITY, HENCE IT COMMITTED
A GRAVE ERROR OF LAW IN ITS
QUESTIONED DECISION.[11]
Petitioner insists that a careful
examination of the transcript of
stenographic notes of the subject
proceedings would reveal that the
contempt
order
issued
by
respondent judge had no factual
and legal basis. It would also show
that he was polite and respectful
112

Legal Ethics

towards the court as he always

addressed the court with the
phrase your honor please.
We disagree.
Section 1, Rule 71 of the Rules
of
Court
as
amended
by
Administrative Circular No. 22-95
provides:
Direct
contempt
punished
summarily. - A person guilty of
misbehavior in the presence of or
so near a court or judge as to
obstruct
or
interrupt
the
proceedings before the same,
including disrespect toward the
court
or
judge,
offensive
personalities toward others, or
refusal to be sworn or to answer as
a witness, or to subscribe an
affidavit
or
deposition
when
lawfully required to do so, may be
summarily adjudged in contempt
by such court or judge and
punished by a fine not exceeding
two
thousand
pesos
or
imprisonment not exceeding ten
(10) days, or both, if it be a
superior court, or a judge thereof,
or by a fine not exceeding two
hundred pesos or imprisonment not
exceeding one (1) day, or both, if it
be an inferior court.
We agree with the statement of
the
Court
of
Appeals
that
petitioners alleged deference to the
trial
court
in
consistently
addressing the respondent judge as
your Honor please throughout the
proceedings is belied by his
behavior therein:
1. the veiled threat to file a
petition
for
certiorari
against the trial court (pp.
14-15, tsn, December 5,
1996; pp. 41-42, Rollo) is
contrary to Rule 11.03,
Canon 11 of the Code of
Professional
Responsibility
which
mandates that a lawyer
shall
abstain from
scandalous, offensive or
menacing language or
behavior
before
the
Courts.

2. the hurled uncalled for

accusation
that
the
respondent judge was
partial in favor of the
other party (pp. 13-14,
tsn, December 5, 1996;
pp.
40-41,
Rollo)
is
against Rule 11.04, Canon
11 of the Code of
Professional
Responsibility
which
enjoins
lawyers
from
attributing to a judge
motives not supported by
the record or have no
materiality to the case.
3.

behaving without due

regard to the trial courts
order to maintain order in
the proceedings (pp. 913, tsn, December 5,
1996; pp. 36-40, Rollo) is
in utter disregard to
Canon 1 of the Canons of
Professional Ethics which
makes it a lawyers duty
to maintain towards the
courts
(1)
respectful
attitude
in
order
to
maintain its importance in
the
administration
of
justice, and Canon 11 of
the Code of Professional
Responsibility
which
mandates
lawyers
to
observe and maintain the
respect due to the Courts
and to judicial officers
and should insist on
similar conduct by others.

4.

behaving without due

regard or deference to his
fellow counsel who at the
time he was making
representations in behalf
of the other party, was
rudely interrupted by the
petitioner and was not
allowed to further put a
word in edgewise (pp. 713, tsn, December 5,
1996; pp. 34-39, Rollo) is
violative of Canon 8 of
the Code of Professional
Responsibility and Canon
22 of the Canons of
Professional Ethics which
obliges
a
lawyer
to
conduct
himself
with
113

Legal Ethics

courtesy, fairness and

candor
toward
his
professional colleagues,
and
5.

the refusal of the

petitioner to allow the
Registrar of Deeds of the
Province
of
Cavite,
through
counsel,
to
exercise his right to be
heard (Ibid) is against
Section 1 of Article III,
1997 Constitution on the
right to due process of
law, Canon 18 of the
Canons of Professional
Ethics which mandates a
lawyer to always treat an
adverse
witness
with
fairness
and
due
consideration, and Canon
12 of Code of Professional
Responsibility
which
insists on a lawyer to
exert every effort and
consider it his duty to
assist in the speedy and
efficient administration of
justice.

The Court cannot therefore help

but notice the sarcasm in the
petitioners use of the phrase your
honor please. For, after using said
phrase
he
manifested
utter
disrespect to the court in his
subsequent utterances. Surely this
behavior from an officer of the
Court cannot and should not be
countenanced, if proper decorum is
to be observed and maintained
during court proceedings.[12]
Indeed,
the
conduct
of
petitioner in persisting to have his
documentary evidence marked to
the extent of interrupting the
opposing counsel and the court
showed disrespect to said counsel
and the court, was defiant of the
courts system for an orderly
proceeding, and obstructed the
administration
of
justice. The
power to punish for contempt is
inherent in all courts and is
essential to the preservation of
order in judicial proceedings and to
the enforcement of judgments,
orders, and mandates of the court,
and consequently, to the due

administration of justice.[13] Direct

contempt is committed in the
presence of or so near a court or
judge, as in the case at bar, and
can be punished summarily without
hearing.[14] Hence,
petitioner cannot claim that there
was irregularity in the actuation of
respondent judge in issuing the
contempt order inside her chamber
without giving the petitioner the
opportunity to defend himself or
make
an
immediate
reconsideration. The records show
that petitioner was cited in
contempt of court during the
hearing in the sala of respondent
judge, and he even filed a motion
for reconsideration of the contempt
order on the same day.[15]
Petitioner argued that while it
might appear that he was carried
by his emotions in espousing the
case of his client - by persisting to
have his documentary evidence
marked despite the respondent
judges contrary order - he did so in
the
honest
belief
that
he
was bound to protect the interest
of his client to the best of his ability
and with utmost diligence.
The
stated:

Court

of

Appeals

aptly

But a lawyer should not be carried

away in espousing his clients
cause (Buenaseda v. Flavier, 226
SCRA 645, 656). He should not
forget that he is an officer of the
court, bound to exert every effort
and placed under duty, to assist in
the
speedy
and
efficient
administration of justice pursuant
to
Canon
12,
Canons
of
Professional Responsibility (Gomez
v. Presiding Judge, RTC, Br. 15,
Ozamis City, 249 SCRA 432,
439). He should not , therefore,
misuse the rules of procedure to
defeat the ends of justice per Rule
10.03. Canon 10 of the Canons of
Professional
Responsibility,
or
unduly delay a case, impede the
execution of a judgment or misuse
court processes, in accordance with
Rule 12.04, Canon 12 of the same
Canons (Ibid).

114

Legal Ethics

Lawyers should be reminded that

their primary duty is to assist the
courts in the administration of
justice. Any conduct which tends to
delay, impede or obstruct the
administration
of
justice
contravenes such lawyers duty.[16]
Although respondent judge was
justified in citing petitioner in direct
contempt of court, she erred in
imposing a fine in the amount of
P3,000.00 which exceeded the
ceiling of P2,000.00 under Supreme
Court Administrative Circular No.
22-95 which took effect on
November 16, 1995. It was not
established that the fine was
imposed in bad faith. The Court of
Appeals thus properly ordered the
return
of
the
excess
of
P1,000.00. Aside from the fine, the
three days imprisonment meted
out to petitioner was justified and
within the 10-day limit prescribed
in Section 1, Rule 71 of the Rules of
Court, as amended.
It is our view and we hold,
therefore, that the Court of Appeals
did not commit any reversible error
in its assailed decision.
WHEREFORE,
the
assailed
Decision dated March 6, 1998 of
the Court of Appeals is hereby
AFFIRMED. The Regional Trial Court
of Cavite, Branch 90, Imus, Cavite
is ordered to return to the
petitioner, Rexie Efren A. Bugaring,
the sum of P1,000.00 out of the
original fine of P3,000.00.
SO ORDERED.

115

Legal Ethics

ANA MARIE
CAMBALIZA
- versusATTY. ANA LUZ B.
CRISTAL-TENORIO
In a verified complaint
for disbarment filed with the
Committee on Bar Discipline
of the Integrated Bar of the
Philippines (IBP) on 30 May
2000, complainant Ana Marie
Cambaliza, a former employee
of respondent Atty. Ana Luz B.
Cristal-Tenorio in her law
office, charged the latter with
deceit, grossly immoral
conduct, and malpractice or
other gross misconduct in
office.
On deceit, the
complainant alleged that the
respondent has been falsely
representing herself to be
married to Felicisimo R.
Tenorio, Jr., who has a prior
and subsisting marriage with
another
woman. However, through
spurious means, the
respondent and Felicisimo R.
Tenorio, Jr., were able to
obtain a false marriage
contract,[1] which states that
they were married on 10
February 1980 in
Manila. Certifications from the
Civil Registry of Manila[2] and
the National Statistics Office
(NSO)[3] prove that no record
of marriage exists between
them. The false date and
place of marriage between the
two are stated in the birth
certificates of their two
children, Donnabel
Tenorio[4] and Felicisimo
Tenorio III.[5] But in the birth
certificates of their two other
children, Oliver Tenorio[6] and
John Cedric Tenorio,[7] another
date and place of marriage

are indicated, namely, 12

February 1980 in Malaybalay,
Bukidnon.
As to grossly immoral
conduct, the complainant
alleged that the respondent
caused the dissemination to
the public of a libelous
affidavit derogatory to Makati
City Councilor Divina Alora
Jacome. The respondent
would often openly and
sarcastically declare to the
complainant and her coemployees the alleged
immorality of Councilor
Jacome.
On malpractice or other
gross misconduct in office, the
complainant alleged that the
respondent (1) cooperated in
the illegal practice of law by
her husband, who is not a
member of the Philippine Bar;
(2) converted her clients
money to her own use and
benefit, which led to the filing
of an estafa case against her;
and (3) threatened the
complainant and her family on
24 January 2000 with the
statement Isang bala ka
lang to deter them from
divulging respondents illegal
activities and transactions.
In her answer, the
respondent denied all the
allegations against her. As to
the charge of deceit, she
declared that she is legally
married to Felicisimo R.
Tenorio, Jr. They were married
on 12 February 1980 as
shown by their Certificate of
Marriage, Registry No. 20009108 of the Civil Registry of
Quezon City.[8] Her husband
has no prior and subsisting
marriage with another
woman.
116

Legal Ethics

As to the charge of
grossly immoral conduct, the
respondent denied that she
caused the dissemination of a
libelous and defamatory
affidavit against Councilor
Jacome. On the contrary, it
was Councilor Jacome who
caused the execution of said
document. Additionally, the
complainant and her cohorts
are the rumormongers who
went around the city of Makati
on the pretext of conducting a
survey but did so to besmirch
respondents good name and
reputation.
The charge of
malpractice or other gross
misconduct in office was
likewise denied by the
respondent. She claimed that
her Cristal-Tenorio Law
Office is registered with the
Department of Trade and
Industry as a single
proprietorship, as shown by its
Certificate of Registration of
Business Name.[9] Hence, she
has no partners in her law
office. As to the estafa case,
the same had already been
dropped pursuant to the Order
of 14 June 1996 issued by
Branch 103 of the Regional
Trial Court of Quezon City.
[10]
The respondent likewise
denied that she threatened
the complainant with the
words Isang bala ka lang on
24 January 2000.
Further, the respondent
averred that this disbarment
complaint was filed by the
complainant to get even with
her. She terminated
complainants employment
after receiving numerous
complaints that the
complainant extorted money

from different people with the

promise of processing their
passports and marriages to
foreigners, but she reneged
on her promise. Likewise, this
disbarment complaint is
politically motivated: some
politicians offered to re-hire
the complainant and her
cohorts should they initiate
this complaint, which they did
and for which they were rehired. The respondent also
flaunted the fact that she had
received numerous awards
and citations for civic works
and exemplary service to the
community. She then prayed
for the dismissal of the
disbarment case for being
baseless.
The IBP referred this case
to Investigating Commissioner
Atty. Kenny H. Tantuico.
During the hearing on 30
August 2000, the parties
agreed that the complainant
would submit a Reply to
respondents Answer, while the
respondent would submit a
Rejoinder to the Reply. The
parties also agreed that the
Complaint, Answer, and the
attached affidavits would
constitute as the respective
direct testimonies of the
parties and the affiants.[11]
In her Reply, the
complainant bolstered her
claim that the respondent
cooperated in the illegal
practice of law by her
husband by submitting (1) the
letterhead of Cristal-Tenorio
Law Office[12] where the name
of Felicisimo R. Tenorio, Jr., is
listed as a senior partner; and
(2) a Sagip Communication
Radio Group identification
card[13] signed by the
117

Legal Ethics

respondent as Chairperson
where her husband is
identified as Atty. Felicisimo R.
Tenorio, Jr. She added that
respondents husband even
appeared in court hearings.
In her Rejoinder,
respondent averred that she
neither formed a law
partnership with her husband
nor allowed her husband to
appear in court on her
behalf. If there was an
instance that her husband
appeared in court, he did so
as a representative of her law
firm. The letterhead submitted
by the complainant was a
false reproduction to show
that her husband is one of her
law partners. But upon crossexamination, when confronted
with the letterhead of CristalTenorio Law Office bearing her
signature, she admitted that
Felicisimo R. Tenorio, Jr., is not
a lawyer, but he and a certain
Gerardo A. Panghulan, who is
also not a lawyer, are named
as senior partners because
they have investments in her
law office.[14]
The respondent further
declared that she married
Felicisimo R. Tenorio, Jr., on 12
February 1980 in Quezon City,
but when she later discovered
that their marriage contract
was not registered she applied
for late registration on 5 April
2000. She then presented as
evidence a certified copy of
the marriage contract issued
by the Office of the Civil
Registrar General and
authenticated by the
NSO. The erroneous entries in
the birth certificates of her
children as to the place and
date of her marriage were
merely an oversight.[15]

Sometime after the

parties submitted their
respective Offer of Evidence
and Memoranda, the
complainant filed a Motion to
Withdraw Complaint on 13
November 2002 after
allegedly realizing that this
disbarment complaint arose
out of a misunderstanding and
misappreciation of facts. Thus,
she is no longer interested in
pursuing the case. This
motion was not acted upon by
the IBP.
In her Report and
Recommendation dated 30
September 2003, IBP
Commissioner on Bar
Discipline Milagros V. San Juan
found that the complainant
failed to substantiate the
charges of deceit and grossly
immoral conduct. However,
she found the respondent
guilty of the charge of
cooperating in the illegal
practice of law by Felicisimo R.
Tenorio, Jr., in violation of
Canon 9 and Rule 9.01 of the
Code of Professional
Responsibility based on the
following evidence: (1) the
letterhead of Cristal-Tenorio
Law Office, which lists
Felicisimo R. Tenorio, Jr., as a
senior partner; (2) the Sagip
Communication Radio Group
identification card of Atty.
Felicisimo R. Tenorio, Jr.,
signed by respondent as
Chairperson; (3) and the
Order dated 18 June 1997
issued by the Metropolitan
Trial Court in Criminal Cases
Nos. 20729 20734,
wherein Felicisimo R. Tenorio,
Jr., entered his appearance as
counsel and even moved for
the provisional dismissal of
the cases for failure of the
118

Legal Ethics

private complainants to
appear and for lack of interest
to prosecute the said
cases. Thus, Commissioner
San Juan recommended that
the respondent be
reprimanded.
In its Resolution No. XVI2003-228 dated 25 October
2003, the IBP Board of
Governors adopted and
approved with modification
the Report and
Recommendation of
Commissioner San Juan. The
modification consisted in
increasing the penalty from
reprimand to suspension from
the practice of law for six
months with a warning that a
similar offense in the future
would be dealt with more
severely.
We agree with the
findings and conclusion of
Commissioner San Juan as
approved and adopted with
modification by the Board of
Governors of the IBP.
At the outset, we find
that the IBP was correct in not
acting on the Motion to
Withdraw Complaint filed by
complainant
Cambaliza. In Rayos-Ombac
vs. Rayos,[16] we declared:
The affidavit of
withdrawal of the
disbarment case
allegedly executed
by complainant
does not, in any
way, exonerate the
respondent. A case
of suspension or
disbarment may
proceed regardless
of interest or lack
of interest of the

complainant. What
matters is
whether, on the
basis of the facts
borne out by the
record, the charge
of deceit and
grossly immoral
conduct has been
duly proven. This
rule is premised on
the nature of
disciplinary
proceedings. A
proceeding for
suspension or
disbarment is not
in any sense a civil
action where the
complainant is a
plaintiff and the
respondent lawyer
is a
defendant. Discipli
nary proceedings
involve no private
interest and afford
no redress for
private
grievance. They
are undertaken
and prosecuted
solely for the
public
welfare. They are
undertaken for the
purpose of
preserving courts
of justice from the
official ministration
of persons unfit to
practice in
them.The attorney
is called to answer
to the court for his
conduct as an
officer of the
court. The
complainant or the
person who called
the attention of the
court to the
attorney's alleged
119

Legal Ethics

misconduct is in no
sense a party, and
has generally no
interest in the
outcome except as
all good citizens
may have in the
proper
administration of
justice. Hence, if
the evidence on
record warrants,
the respondent
may be suspended
or disbarred
despite the
desistance of
complainant or his
withdrawal of the
charges.
Hence, notwithstanding the
Motion to Withdraw
Complaint, this disbarment
case should proceed
accordingly.
The IBP correctly found
that the charges of deceit and
grossly immoral conduct were
not substantiated. In
disbarment proceedings, the
complainant has the burden of
proving his case by convincing
evidence.[17] With respect to
the estafa case which is the
basis for the charge of
malpractice or other gross
misconduct in office, the
respondent is not yet
convicted thereof. In Gerona
vs. Datingaling,[18] we held
that when the criminal
prosecution based on the
same act charged is still
pending in court, any
administrative disciplinary
proceedings for the same act
must await the outcome of
the criminal case to avoid
contradictory findings.

We, however, affirm the IBPs

finding that the respondent is
guilty of assisting in the
unauthorized practice of
law. A lawyer who allows a
non-member of the Bar to
misrepresent himself as a
lawyer and to practice law is
guilty of violating Canon 9 and
Rule 9.01 of the Code of
Professional Responsibility,
which read as follows:
Canon 9 A lawyer
shall not directly or
indirectly assist in
the unauthorized
practice of law.
Rule 9.01 A lawyer
shall not delegate
to any unqualified
person the
performance of
any task which by
law may only be
performed by a
member of the Bar
in good standing.
The term practice of law
implies customarily or
habitually holding oneself out
to the public as a lawyer for
compensation as a source of
livelihood or in consideration
of his services. Holding ones
self out as a lawyer may be
shown by acts indicative of
that purpose like identifying
oneself as attorney, appearing
in court in representation of a
client, or associating oneself
as a partner of a law office for
the general practice of law.
[19]
Such acts constitute
unauthorized practice of law.
In this case, Felicisimo R.
Tenorio, Jr., is not a lawyer,
but he holds himself out as
one. His wife, the respondent
herein, abetted and aided him
120

Legal Ethics

in the unauthorized practice

of the legal profession.
At the hearing, the
respondent admitted that the
letterhead of Cristal-Tenorio
Law Office listed Felicisimo R.
Tenorio, Jr., Gerardo A.
Panghulan, and Maricris D.
Battung as senior
partners. She admitted that
the first two are not lawyers
but paralegals. They are listed
in the letterhead of her law
office as senior partners
because they have
investments in her law office.
[20]
That is a blatant
misrepresentation.
The Sagip
Communication Radio Group
identification card is another
proof that the respondent
assisted Felicisimo R. Tenorio,
Jr., in misrepresenting to the
public that he is a
lawyer. Notably, the
identification card stating that
he is Atty. Felicisimo Tenorio,
Jr., bears the signature of the
respondent as Chairperson of
the Group.
The lawyers duty to
prevent, or at the very least
not to assist in, the
unauthorized practice of law is
founded on public interest and
policy. Public policy requires
that the practice of law be
limited to those individuals
found duly qualified in
education and character. The
permissive right conferred on
the lawyer is an individual and
limited privilege subject to
withdrawal if he fails to
maintain proper standards of
moral and professional
conduct. The purpose is to
protect the public, the court,
the client, and the bar from

the incompetence or
dishonesty of those
unlicensed to practice law and
not subject to the disciplinary
control of the Court. It
devolves upon a lawyer to see
that this purpose is
attained. Thus, the canons
and ethics of the profession
enjoin him not to permit his
professional services or his
name to be used in aid of, or
to make possible the
unauthorized practice of law
by, any agency, personal or
corporate. And, the law makes
it a misbehavior on his part,
subject to disciplinary action,
to aid a layman in the
unauthorized practice of law.
[21]

WHEREFORE, for
culpable violation of Canon 9
and Rule 9.01 of the Code of
Professional Responsibility,
respondent Atty. Ana Luz B.
Cristal-Tenorio is
hereby SUSPENDED from the
practice of law for a period of
six (6) months effective
immediately, with a warning
that a repetition of the same
or similar act in the future will
be dealt with more severely.
Let copies of this
Resolution be attached to
respondent Cristal-Tenorios
record as attorney in this
Court and furnished to the IBP
and the Office of the Court
Administrator for circulation to
all courts.
SO ORDERED.

121

Legal Ethics

ENRIQUE A.
ZALDIVAR, petitioner,
vs.
THE HONORABLE
SANDIGANBAYAN and
HONORABLE RAUL M.
GONZALEZ, claiming to be
and acting as TanodbayanOmbudsman under the
1987
Constitution, respondents.
We have examined carefully
the lengthy and vigorously
written Motion for
Reconsideration dated
October 18, 1988 filed by
counsel for respondent Raul
M. Gonzalez, relating to
the per curiam Resolution of
the Court dated October 7,
1988. We have reviewed once
more the Court's
extended per
curiam Resolution, in the light
of the argument adduced in
the Motion for
Reconsideration, but must
conclude that we find no
sufficient basis for modifying
the conclusions and rulings
embodied in that Resolution.
The Motion for
Reconsideration sets forth
copious quotations and
references to foreign texts
which, however, whatever
else they may depict, do not
reflect the law in this
jurisdiction.
Nonetheless, it might be
useful to develop further, in
some measure, some of the
conclusions reached in
the per curiam Resolution,
addressing in the process
some of the "Ten (10) Legal
Points for Reconsideration,"
made in the Motion for
Reconsideration.
1. In respondent's
point A, it is claimed
that it was error for

this Court "to

charge respondent
[with] indirect
contempt and
convict him of direct
contempt."
In the per curiam Resolution
(page 50), the Court
concluded that "respondent
Gonzalez is guilty both of
contempt of court in facie
curiae and of gross
misconduct as an officer of
the court and member of the
bar." The Court did not use
the phrase "in facie curiae" as
a technical equivalent of
"direct contempt," though we
are aware that courts in the
United States have sometimes
used that phrase in speaking
of "direct contempts' as
"contempts in the face of the
courts." Rather, the court
sought to convey that it
regarded the contumacious
acts or statements (which
were made both in a pleading
filed before the Court and in
statements given to the
media) and the misconduct of
respondent Gonzalez as
serious acts flaunted in the
face of the Court and
constituting a frontal
assault upon the integrity of
the Court and, through the
Court, the entire judicial
system. What the Court would
stress is that it required
respondent, in its Resolution
dated 2 May 1988, to explain
"why he should not be
punished for contempt of
court and/or subjected to
administrative sanctions" and
in respect of which,
respondent was heard and
given the most ample
opportunity to present all
defenses, arguments and
evidence that he wanted to
present for the consideration
122

Legal Ethics

of this Court. The Court did

not summarily impose
punishment upon the
respondent which it could
have done under Section 1 of
Rule 71 of the Revised Rules
of Court had it chosen to
consider respondent's acts as
constituting "direct
contempt."
2. In his point C,
respondent's
counsel argues that
it was "error for this
Court to charge
respondent under
Rule 139 (b) and
not 139 of the
Revised Rules of
Court."
In its per curiam Resolution,
the Court referred to Rule 139
(b) of the Revised Rules of
Court pointing out that:
[R]eference of
complaints against
attorneys either to
the Integrated Bar
of the Philippines or
to the Solicitor
General is not
mandatory upon the
Supreme Court such
reference to the
Integrated Bar of
the Philippines or to
the Solicitor General
is certainly not an
exclusive procedure
under the terms of
Rule 139 (b) of the
Revised Rules of
Court, especially
where the charge
consists of acts
done before the
Supreme Court.
The above statement was
made by the Court in
response to respondent's
motion for referral of this case
either to the Solicitor General
or to the Integrated Bar of the

Philippines under Rule 139 (b).

Otherwise, there would have
been no need to refer to Rule
139 (b). It is thus only
necessary to point out that
under the old rule, Rule 139,
referral to the Solicitor
General was similarly not an
exclusive procedure and was
not the only course of action
open to the Supreme Court. It
is well to recall that under
Section 1 (entitled "Motion or
complaint") of Rule 139,
"Proceedings for the removal
or suspension of attorneys
may be taken by the Supreme
Court, (1) on its own motion,
or (2) upon the complaint
under oath of another in
writing" (Parentheses
supplied). The procedure
described in Sections 2 et
seq. of Rule 139 is the
procedure provided for
suspension or disbarment
proceedings initiated upon
sworn complaint of another
person, rather than a
procedure required for
proceedings initiated by the
Supreme Court on its own
motion. It is inconceivable
that the Supreme Court would
initiate motu
proprioproceedings for which
it did not find probable cause
to proceed against an
attorney. Thus, there is no
need to refer a case to the
Solicitor General, which
referral is made "for
investigation to determine if
there is sufficient ground to
proceed with the prosecution
of the respondent" (Section 3,
Rule 139), where the Court
itself has initiated against the
respondent. The Court may, of
course, refer a case to the
Solicitor General if it feels
that, in a particular case,
further factual investigation is
123

Legal Ethics

needed. In the present case,

as pointed out in the per
curiamResolution of the Court
(page 18), there was "no need
for further investigation of
facts in the present case for it
[was] not substantially
disputed by respondent
Gonzalez that he uttered or
wrote certain statements
attributed to him" and that "in
any case, respondent has had
the amplest opportunity to
present his defense: his
defense is not that he did not
make the statements ascribed
to him but that those
statements give rise to no
liability on his part, having
been made in the exercise of
his freedom of speech. The
issues which thus need to be
resolved here are issues of
law and of basic policy and
the Court, not any other
agency, is compelled to
resolve such issues."
In this connection, we note
that the quotation in page 7 of
the Motion for Reconsideration
is from a dissentingopinion of
Mr. Justice Black in Green v.
United State. 1 It may be
pointed out that the majority
in Green v. United
States, through Mr. Justice
Harlan, held, among other
things, that: Federal courts do
not lack power to impose
sentences in excess of one
year for criminal contempt;
that criminal contempts are
not subject to jury trial as a
matter of constitutional right;
nor does the (US) Constitution
require that contempt subject
to prison terms of more than
one year be based on grand
jury indictments.
In his concurring
opinion in the same
case, Mr. Justice
Frankfurter said:

Whatever the
conflicting views of
scholars in
construing more or
less dubious
manuscripts of the
Fourteenth
Century, what is
indisputable is that
from the foundation
of the United States
the constitutionality
of the power to
punish for contempt
without the
intervention of a
jury has not been
doubted. The First
Judiciary Act
conferred such a
power on the
federal courts in the
very act of their
establishment, 1
State 73, 83, and of
the Judiciary
Committee of eight
that reported the
bill to the Senate,
five member
including the
chairman, Senator,
later to be Chief
Justice, Ellsworth,
had been delegates
to the Constitutional
Convention (Oliver
Ellsworth,
Chairman, William
Paterson, Caleb
Strong, Ricard
Basett, William Few.
1 Annals of Cong
17). In the First
Congress itself no
less than nineteen
member including
Madison who
contemporaneously
introduced the Bill
of Rights, had been
delegates to the
Convention. And
124

Legal Ethics

when an abuse
under this power
manifested itself,
and led Congress to
define more
explicitly the
summary power
vested in the
courts, it did not
remotely deny the
existence of the
power but merely
defined the
conditions for its
exercise more
clearly, in an Act
"declaratory of the
law concerning
contempts of
court." Act of Mar.
2, 1831, 4 Stat 487.
xxxxxxxxx
Nor has the
constitutionality of
the power been
doubted by this
Court throughout its
existence . In at
least two score
cases in this Court,
not to mention the
vast mass of
decisions in the
lower federal
courts, the power to
punish summarily
has been accepted
without
question. ... 2
To say that a judge who
punishes a contemnor judges
his own cause, is simplistic at
best. The judge who finds
himself compelled to exercise
the power to punish for
contempt does so not really to
avenge a wrong inflicted upon
his own person; rather he
upholds and vindicates the
authority, dignity and integrity
of the judicial institution and
its claim to respectful
behaviour on the part of all

persons who appears before

it, and most especially from
those who are officers of the
court.
3. In his point D,
respondent counsel
urges that it is error
"for this Court to
apply the "visible
tendency" rule
rather than the
"clear and present
danger" rule in
disciplinary and
contempt charges."
The Court did not purport to
announce a new doctrine of
"visible tendency," it was,
more modestly, simply
paraphrasing Section 3 (d) of
Rule 71 of the Revised Rules
of Court which penalizes a
variety of contumacious
conduct including: "any
improper conduct tending,
directly or indirectly, to
impede, obstruct or degrade
the administration of justice."
The "clear and present
danger" doctrine invoked by
respondent's counsel is not a
magic incantation which
dissolves all problems and
dispenses with analysis and
judgment in the testing of the
legitimacy of claims to free
speech, and which compels a
court to exonerate a
defendant the moment the
doctrine is invoked, absent
proof of impending
apocalypse. The clear and
present danger" doctrine has
been an accepted method for
marking out the appropriate
limits of freedom of speech
and of assembly in certain
contexts. It is not, however,
the only test which has been
recognized and applied by
courts. In Logunzad v. Vda. de
Gonzales, 3 this Court,
125

Legal Ethics

speaking through Mme.

Justice Melencio-Herrera said:
...The right of
freedom of
expression indeed,
occupies a
preferred position
in the "hierarchy of
civil liberties"
(Philippine Blooming
Mills Employees
Organization v.
Philippine Blooming
Mills Co., Inc., 51
SCRA 191 [1963]. It
is not, however,
without
limitations. As held
in Gonzales v.
Commission on
Elections, 27 SCRA
835, 858 [1960]:
"From the language
of the specific
constitutional
provision, it would
appear that the
right is not
susceptible of any
limitation. No law
may be passed
abridging the
freedom of speech
and of the
press. The realities
of life in a complex
society preclude
however, a literal
interpretation.
Freedom of
expression is not an
absolute. It would
be too much to
insist that all times
and under all
circumstances it
should remain
unfettered and
unrestrained. There
are other societal
values that press
for recognition."

The prevailing
doctrine is that the
clear and present
danger rule is such
a limitation.
Another criterion for
permissible
limitation on
freedom of speech
and of the
press, which
includes such
vehicles of the mass
media as radio,
television and the
movies, is
the "balancing-ofinterests
test" (Chief Justice
Enrique M.
Fernando on the Bill
of Rights, 1970 ed.,
p. 79). The principle
"requires a court to
take conscious and
detailed
consideration of the
interplay of
interests
observable in a
given situation or
type of
situation (Separate
Opinion of the late
Chief Justice Castro
in Gonzales v.
Commission on
Elections, supra, p.
899). (Emphasis
Supplied) 4
Under either the "clear and
present danger" test or the
"balancing-of-interest test,"
we believe that the
statements here made by
respondent Gonzalez are of
such a nature and were made
in such a manner and under
such circumstances, as to
transcend the permissible
limits of free speech. This
conclusion was implicit in
the per curiam Resolution of
126

Legal Ethics

October 7, 1988. It is
important to point out that the
"substantive evil" which the
Supreme Court has a right
and a duty to prevent does
not, in the instant case, relate
to threats of physical disorder
or overt violence or similar
disruptions of public
order. 5 What is here at stake
is the authority of the
Supreme Court to confront
and prevent a "substantive
evil" consisting not only of the
obstruction of a free and fair
hearing of a particular case
but also the avoidance of the
broader evil of the
degradation of the judicial
system of a country and the
destruction of the standards
of professional conduct
required from members of the
bar and officers of the courts.
The "substantive evil" here
involved, in other words, is
not as palpable as a threat of
public disorder or rioting but is
certainly no less deleterious
and more far reaching in its
implications for society.
4. In his point H,
respondent's
counsel argues that
it is error "for this
Court to hold that
intent is irrelevant
in charges of
misconduct." What
the Court actually
said on this point
was:
Respondent
Gonzalez disclaims
an intent to attack
and denigrate the
Court. The
subjectivities of the
respondent are
irrelevant so far as
characterization of
his conduct or
misconduct is

concerned. He will
not, however, be
allowed to disclaim
the natural and
plain import of his
words and acts. It
is, upon the other
hand, not irrelevant
to point out that the
respondent offered
no apology in his
two (2) explanations
and exhibited no
repentance
(Resolution, p. 7;
footnotes omitted).
The actual subjectivities of the
respondent are irrelevant
because such subjectivities
(understood as pyschological
phenomena) cannot be
ascertained and reached by
the processes of this Court.
Human intent can only be
shown derivatively and
implied from an examination
of acts and statements. Thus,
what the Court was saying
was that respondent's
disclaimer of an intent to
attack and denigrate the
Court, cannot prevail over the
plain import of what he did
say and do. Respondent
cannot negate the clear
import of his acts and
statements by simply
pleading a secret intent or
state of mind incompatible
with those acts or statements.
It is scarcely open to dispute
that, e.g., one accused of
homicide cannot successfully
deny his criminal intent by
simply asserting that while he
may have inserted a knife
between the victim's ribs, he
actually acted from high
motives and kind feelings for
the latter.
5 In his point 1,
respondent's
counsel argues that
127

Legal Ethics

it is error "for this

Court to punish
respondent for
contempt of court
for out of court
publications."
Respondent's counsel asks
this Court to follow what he
presents as alleged modern
trends in the United Kingdom
and in the United States
concerning the law of
contempt. We are, however,
unable to regard the texts
that he cites as binding or
persuasive in our jurisdiction.
The Court went to some
length to document the state
of our case law on this matter
in its per curiam Resolution.
There is nothing in the
circumstances of this case
that would suggest to this
Court that that case law,
which has been followed for at
least half a century or so,
ought to be reversed.
6. In his point J,
respondent's
counsel pleads that
the imposition of
indefinite
suspension from the
practice of law
constitutes "cruel,
degrading or
inhuman
punishment". The
Court finds it
difficult to consider
this a substantial
constitutional
argument. The
indefiniteness of the
respondent's
suspension, far from
being "cruel" or
"degrading" or
"inhuman," has the
effect of placing, as
it were, the key to
the restoration of
his rights and

privileges as a
lawyer in his own
hands. That
sanction has the
effect of giving
respondent the
chance to purge
himself in his own
good time of his
contempt and
misconduct by
acknowledging such
misconduct,
exhibiting
appropriate
repentance and
demonstrating his
willingness and
capacity to live up
to the exacting
standards of
conduct rightly
demanded from
every member of
the bar and officer
of the courts.
ACCORDINGLY, the Court
Resolved to DENY the Motion
for Reconsideration for lack of
merit. The denial is FINAL.
The Court also NOTED the ExParte Manifestation and
Motion, dated October 25,
1988 and the Supplemental
Manifestation, dated October
27, 1988, filed by respondent

128

Legal Ethics

IIGO F. CARLET, as Special

Administrator of the
Estate of Pablo Sevillo
and Antonia
Palisoc, petitioner, vs.
HON. COURT OF
APPEALS, VIRGINIA C.
ZARATE, JACOBO C.
ZARATE, VICTORIA C.
ZARATE, HON.
CONRADO DIZON,
Acting Judge of the
Municipal Trial Court
of Bian, Laguna, and
DEPUTY SHERIFF
ROGELIO S. MOLINA of
Bian,
Laguna, respondents.
The Rules of Court provide
litigants with options on what
course of action to take in
obtaining judicial relief. Once
such option is taken and a
case is filed in court, the
parties are compelled to
ventilate all matters and
relevant issues therein. The
losing party who files another
action regarding the same
controversy will be needlessly
squandering time, effort and
financial resources because
he is barred by law from
litigating the same
controversy all over
again. Such is the situation in
the case at bar: whether or
not there is res judicata or bar
by prior judgment. The
present controversy is
surrounded by the following
facts:
Lot 981 of the Bian Estate in
Laguna, with an area of 864
square meters, was purchased
by Jose Sevillo in 1910 on
installment. In 1917, Transfer
Certificate No. 1599 was
issued in his name after
payment of the full purchase
price. Jose Sevillos marriage
to Severa Bayran produced

four sons, Teodoro, Mariano,

Vicente and Pablo. Pablo
married Antonia Palisoc in
1920 and they begot four
children, Consolacion,
Alejandra (Andrea), Samero
(Casimiro) and Marin (Martin
or Maltin) Sevillo. In 1949,
Pablo Sevillo declared Lot No.
981 for taxation purposes
under Tax Declaration Nos.
6125 and 2586 even if the
property was still in Jose
Sevillos name.
In 1955, Pablo, by then a
widower, married Candida
Baylo. The union produced no
offspring. Candidas daughter,
Cirila Baylo Carolasan, was
sired by another man.
In 1965, Pablo Sevillo, with
Candida Baylo, filed a petition
before the Court of First
Instance for reconstitution of
title. Reconstitution was
allowed and TCT No. RT-926
was issued in the name of
Pablo Sevillo, married to
Candida Baylo. Pablo Sevillo
and his wife died in 1967 and
in 1974, respectively.
In 1980, the heirs of Cirila
Baylo Carolasan,[1] all
surnamed Zarate and herein
private respondents, filed a
case for annulment of deed
of sale over Lot 981 and
for partition of property
among the surviving heirs
of Pablo Sevillo. The case
was docketed as Civil Case
No. B-1656 before the Court
of First Instance of Bian,
Laguna. The Deed of Sale
sought to be annulled was
allegedly executed by Candida
Baylo, grandmother to the
Zarates, in favor of Gregorio,
Samero, Martin and Andrea,
surnamed Sevillo and Isidro
Zamora. After trial on the
merits, the court rendered its
Decision on June 15, 1982
129

Legal Ethics

with the following dispositive

portion:
WHEREFORE, in view of the
foregoing considerations,
judgment is hereby
rendered declaring the
deed of sale entitled Bilihang
Patuluyan ng Bahagi ng Isang
Lupang Panahanan
purportedly executed by
Candida Baylo on August 25,
1971, acknowledged before
Notary Public Apolinario S.
Escueta and entered in his
notarial register as Doc. No.
124, Page No. 16, Book No. IV,
Series of 1971, as null and
void and of no force and
effect, and the
representative of the
estate of the plaintiff Cirila
Baylo Carolasan and the
defendants Gregorio
Sevillo, Samero Sevillo,
Maltin Sevillo, Andrea
Sevillo and Isidro Zamora,
as the surviving spouse of
Consolacion Sevillo, are
hereby ordered to
partition Lot No. 981 of the
Bian Estate, situated in
Tubigan, Bian, Laguna if they
are able to agree among
themselves by proper
instruments of conveyance,
within 30 days from the
finality of this decision, which
shall be confirmed by this
Court, otherwise,
commissioners will be
appointed to make the
partition.
The defendants Gregorio
Sevillo and Samero Sevillo are
hereby jointly and severally
ordered to pay plaintiffs
substituted heirs of the late
Cirila Baylo Carolasan,
namely, Virginia C. Zarate, of
Brgy. Real, Calamba, Laguna,
Jacobo C. Zarate, Victoria C.
Zarate, Nemesio C. Zarate,
Dominador C. Zarate and

Elvira C. Zarate, all of Brgy.

Tubigan, Bian, Laguna, the
sum of P3,000.00 for
attorneys fees and the sum
of P2,000.00 for litigation
expenses aside from costs of
suit.
The decision having
become final and executory, a
writ of execution was issued
on November 10, 1982. Lot
981 was surveyed and
subdivided into six lots, one
lot having an area of 452.04
square meters, four lots with
86.49 square meters each
and one lot with 66 square
meters as footpath or
concession to a right of way.
[2]
By virtue of this
adjudication, private
respondents Zarate procured
TCT Nos. T-163388 and T163393 over their share in the
property.
The losing parties in that
case, the Sevillos, filed a case
to annul the aforesaid
decision of the trial court in
Civil Case No. B-1656 before
the then Intermediate
Appellate Court (CA-G.R. SP
No. 07657) alleging lack of
jurisdiction based on service
of summons on unauthorized
counsel. On March 31, 1986,
the appellate court granted
the Zarates motion to dismiss
the case on the ground of res
judicata. The Supreme Court
denied the petition for review
filed by the Sevillos for lack of
merit on September 8, 1986
in G.R. No. 74505.[3]
On May 6, 1983, private
respondents, the Zarates,
filed Civil Case No. 2375, an
ejectment suit against the
Sevillos before the Municipal
Trial Court of Bian.[4] The
municipal court ruled in favor
of plaintiffs and ordered
defendants below, to
130

Legal Ethics

immediately vacate the

subject property and remove
their houses thereon and to
pay rental in arrears,
damages, attorneys fees and
litigation expenses.[5] Writs of
execution and demolition
were issued by the
court. Defendants filed a
motion for reconsideration but
before said motion could be
heard, they filed a petition
for certiorari with the Regional
Trial Court of Laguna (Civil
Case No. B-3106). The Sevillos
alleged that the inferior court
did not have jurisdiction over
the case which was filed more
than a year after the alleged
unlawful entry. The Regional
Trial Court held that the
municipal court had no
jurisdiction over the complaint
for ejectment. On appeal, the
Court of Appeals reversed the
Regional Trial Courts decision
on July 11, 1990 in CA-G.R. SP
No. 18806. Affirming the
appellate courts decision, the
Supreme Court denied the
Sevillos petition for review in
G.R. No. 94382 on April 10,
1991.[6]
On July 10, 1991, petitioner
Iigo F. Carlet, as special
administrator of the estate of
Pablo and Antonia Sevillo,
filed the case at bar, an
action for reconveyance of
property, docketed as Civil
Case No. B-3582, against
the heirs of Cirila namely,
Virginia, Jacobo, Victoria and
Elvira, all surnamed
Zarate. Plaintiff therein prayed
for a declaration of ownership
over the entire 864-squaremeter lot in the name of the
estate of Jose Sevillo and/ or
the estate of Teodoro,
Mariano, Vicente and Pablo
Sevillo; that TCT Nos. T163393 and T-163388 be

annulled and a new one be

issued in favor of said estate;
and that defendants be
ordered to pay P20,000.00,
attorneys fees in the amount
of P50,000.00 and expenses
of litigation.[7]
Defendants Zarate moved
to dismiss the case on the
ground of res judicata,
claiming that the facts alleged
in the complaint had already
been pleaded and passed
upon by the lower court
in Civil Case No. B-1656,
the Court of Appeals in CAG.R. SP No. 07657 and by the
Supreme Court in G.R. No.
74505. They also opposed the
motion for preliminary
injunction saying it was meant
to delay and that the grounds
relied upon had previously
been passed upon by the
lower court in Civil Case
Nos. B-1656 and 2375, the
Court of Appeals in CA-G.R. SP
No. 18806 and the Supreme
Court in G.R. No. 94382.
On October 8, 1991, the
trial court issued an Order
granting the motion to dismiss
Civil Case No. B-3582, stating
that the issue of ownership
had been threshed out in the
cases cited and that, as held
by the Court of Appeals in CAG.R. SP No. 07657, plaintiff
below merely tried to obtain
the same relief by way of a
different action. The
dispositive portion of said
Order reads:
WHEREFORE, finding merit in
the motion to dismiss, the
same is hereby granted and
the above case is hereby
ordered dismissed. As a
consequence, the motion for
preliminary injunction is
hereby denied.
Pursuant to well-settled
pronouncements of the
131

Legal Ethics

Supreme Court, the plaintiff

and her counsel are hereby
ordered to explain within five
(5) days from receipt hereof
why they should not be cited
in contempt of court for
forum-shopping. Let a copy of
this order be furnished the
local IBP Chapter where Atty.
Modesto Jimenez belongs so
that he may be
administratively dealt with in
accordance with law.
SO ORDERED.
Carlets appeal to
respondent court (CA-G.R. CV
No. 36129) was dismissed on
January 11, 1994, with the
Court of Appeals affirming the
questioned Order of the trial
court in toto and ordering
appellants and counsel to pay
treble costs.[8]
Hence, the instant petition
for review where the issue to
be resolved is whether or not
the adjudication in Civil Case
No. B-1656 (including CA-G.R.
SP No. 07657 and SC-G.R. No.
74505) constitutes res
judicata to the case at bar
(Civil Case No. B-3582).
Petitioner in the main
contends that respondent
court erred, because there is
no identity of cause of action
between the case at bar (Civil
Case No. B-3582) and the
cases cited, particularly Civil
Case No. B-1656. The former
is an entirely different case
which seeks the annulment of
TCT No. 1599 and the
derivative titles issued in the
name of private respondents
Zarate. There is likewise no
identity of parties. According
to petitioner, the plaintiff in
Civil Case No. 3582 is the
Special Administrator
representing the estate of Jose
Sevillo and Severa Bayran,
who does not represent any of

the private respondents

herein.[9]
We affirm the contested
decision of the Court of
Appeals.
When material facts or
questions which were in issue
in a former action and were
admitted or judicially
determined there are
conclusively settled by a
judgment rendered therein,
such facts or questions
become res judicata and may
not again be litigated in a
subsequent action between
the same parties or their
privies regardless of the form
of the latter. This is the
essence of res judicata or bar
by prior judgment.[10]
There are four requisites to
successfully invoke res
judicata: (a) finality of the
former judgment; (b) the court
which rendered it had
jurisdiction over the subject
matter and the parties; (c) it
must be a judgment on the
merits; and (d) there must be
between the first and second
actions identity of parties,
subject matter and cause of
action.[11] A judgment on the
merits rendered in the first
case constitutes an absolute
bar to the subsequent action
when the three identities are
present.[12]
The attendance of the first
three elements for the
application of res judicata is
not disputed by
petitioner. What needs to be
determined is the existence of
identity in parties, subject
matter and cause of action
between Civil Case Nos. B1656 and B-3582.
Respondent court correctly
concluded that there is
identity of parties between
the case at bar (Civil Case No.
132

Legal Ethics

B-3582), an action for

reconveyance of Lot No. 981,
and Civil Case No. B-1656 for
annulment of deed of sale and
partition involving the same
Lot 981. Although Civil Case
No. B-3582was initiated by
petitioner as administrator of
the estate of Pablo and
Antonia Sevillo, the fact
remains that he represents
the same heirs of Pablo
Sevillo, namely Martin,
Alejandra, Casimiro (or
Samero) and Consolacion
Sevillo who were defendants
in Civil Case No. B-1656, as
the latter or their heirs would
eventually benefit should
petitioner succeed in this
case. Petitioners allegation
that he represents the heirs of
Jose Sevillo and Severa
Bayran Sevillo and, therefore,
including Pablo Sevillos three
brothers, is belied by the very
title of the instant petition
that he is the special
administrator of the estate of
Pablo Sevillo and Antonia
Palisoc, having been
appointed as such on July 10,
1991.[13]
It should further be
stressed that absolute identity
of parties is not required for
the principle of res judicata to
be applicable.[14] A shared
identity of interest is sufficient
to invoke the coverage of this
principle.[15] While it is true
that the heirs of Pablo and
Antonia Sevillo will still be
judicially determined at the
intestate proceedings in which
petitioner was named estate
special administrator, it is
equally true that the
defendants in Civil Case No. B1656, namely Consolacion,
Alejandra, Samero and Martin
Sevillo, are the children and

heirs of Pablo and Antonia

Sevillo.
There is no dispute as
regards the identity of subject
matter since the center
of controversy in the instant
case and in Civil Case No. B1656 is Lot No. 981 of the
Bian Estate.
As regards identity of
causes of action, the test
often used in determining
whether causes of action are
identical is to ascertain
whether the same evidence
which is necessary to sustain
the second action would have
been sufficient to authorize a
recovery in the first, even if
the forms or nature of the two
actions be different. If the
same facts or evidence would
sustain both actions, the two
actions are considered the
same within the rule that the
judgment in the former is a
bar to the subsequent action;
otherwise, it is not.[16]
The instant case (Civil Case
No. B-3582), which is an
action for the reconveyance of
Lot No. 981, is premised on
the claim that TCT Nos. T163388 and T-163393,
belonging to private
respondents as heirs of
Candida Baylo and Cirila Baylo
Carolasan, are null and void.
[17]
To succeed entails
presenting evidence that the
title acquired by the Zarates,
upon which they founded their
complaint for partition in Civil
Case No. B-1656, is in fact null
and void.
In Civil Case No. B-1656,
the Zarates prayer for
partition of Lot No. 981 was
anchored on the authenticity
of their title
thereto. Consequently, the
case provided the defendants,
heirs of Pablo and Antonia
133

Legal Ethics

Sevillo, the opportunity to

prove otherwise, i.e. that the
Zarates title was null and
void.However, they failed to
contest the matter before the
trial court, the Court of
Appeals and the Supreme
Court.[18] Inasmuch as the
same evidence was needed in
prosecuting Civil Case No. B1656 and the case at bar,
there is identity of causes of
action. The additional fact
alleged by petitioner - that
Candida Baylo was not in fact
married to Pablo Sevillo and
the reconstituted title in their
name reflects a
misrepresentation is, under
the circumstances,
immaterial. Said allegation
could have been presented
and heard in Civil Case No. B1656.[19] The parties are bound
not only as regards every
matter offered and received to
sustain or defeat their claims
or demand but as to any other
admissible matter which
might have been offered for
that purpose and of all other
matters that could have been
adjudged in that case.[20]
Neither does the fact that
Civil Case No. B-1656 was an
action for annulment of deed
of sale and partition while
Civil Case No. B-3582 is for
reconveyance of property
alter the fact that both cases
have an identical cause of
action. A change in the form
of the action or in the relief
sought does not remove a
proper case from the
application of res judicata.[21]
Moreover, as early as
March 31, 1986 in the original
action for annulment of
judgment case, the then
Intermediate Appellate Court
immediately recognized that:

Clearly, the relief sought in

this action for annulment of
judgment beyond nullity of
the decision in Civil Case No.
B-1656, is an adjudication that
herein defendants are not
entitled to Lot 981 of the Bian
Estate or any part thereof, on
the stated grounds that said
property in the name of Pablo
Sevillo and Candida Baylo
under T.C.T. No. RT-926 was in
fact owned by Pablo Sevillo
and Antonia Palisoc, and that
in any event, Candida Baylo
had ceded her interest therein
to plaintiffs and/or their
predecessors in interest on
March 31, 1969.
The self-same issue of
ownership of Lot 981 was
squarely raised in Civil Case
No. B-1656, herein defendants
interest in said property
having therein been traversed
by invoking instead an alleged
sale of Lot 981 to Gregorio
Sevillo on August 25, 1971.
This amounts to employment
of different forms of action to
obtain identical relief, in
violation of the principle that
one and the same cause of
action shall not twice be
litigated (Yusingco v. Ong
Hian, 42 SCRA 589).[22]
It is to the interest of the
public that there should be an
end to litigation by the parties
over a subject fully and fairly
adjudicated - republicae ut
sit finis litium. And an
individual should not be vexed
twice for the same cause
- nemo debet bis vexari
pro eadem causa. As this
Court has had occasion to
rule:
The foundation principle upon
which the doctrine of res
judicata rests is that parties
ought not to be permitted to
litigate the same issue more
134

Legal Ethics

than once; that, when a right

or fact has been judicially
tried and determined by a
court of competent
jurisdiction, or an opportunity
for such trial has been given,
the judgment of the court, so
long as it remains unreversed,
should be conclusive upon the
parties and those in privity
with them in law or estate.[23]
With respect to the issue of
forum-shopping for which the
trial court ordered counsel for
petitioners, Atty. Modesto
Jimenez, to explain why he
should not be cited in
contempt,[24] this applies only
when the two (or more) cases
are still pending.[25]
Clearly, despite knowledge
of final judgments in Civil
Case No. B-1656, CA-G.R. CV
No. 07657 and SC-G.R. No.
74505, as well as in G.R. No.
94382 (the ejectment case),
counsel persisted in filing the
case at bar for
reconveyance. Since this case
is barred by the judgment in
Civil Case No. B-1656, there
was no other pending case to
speak of when it was filed in
July 1991. Thus, the nonforum-shopping rule is not
violated.
What counsel for
petitioners did, however, in
filing this present action to
relitigate the title to and
partition over Lot No. 981,
violates Canon 10 of the Code
of Professional Responsibility
for lawyers which states that a
lawyer owes candor, fairness
and good faith to the
court. Rule 10.01 of the same
Canon states that (a) lawyer
shall not do any falsehood x x
x nor shall he mislead or allow
the court to be misled by any
artifice. Counsels act of filing
a new case involving

essentially the same cause of

action is likewise abusive of
the courts processes and may
be viewed as improper
conduct tending to directly
impede, obstruct and degrade
the administration of justice.
[26]

WHEREFORE, the petition

is hereby DENIED. The
Decision of the Court of
Appeals dated January 11,
1994 is hereby
AFFIRMED. Treble costs
against petitioner.
SO ORDERED.

135

Legal Ethics

ATTY. LUIS V. ARTIAGA

JR., complainant,
vs.
ATTY. ENRIQUE C.
VILLANUEVA, respondent.
In a sworn complaint filed with this
Court on April 2, 1978, Atty. Luis V.
Artiaga Jr. sought the disbarment of
Atty. Enrique C. Villanueva for
alleged unethical practices.
By a resolution dated May 24,
1978, this Court required
respondent Atty. Enrique C.
Villanueva to answer the
complaint. To the answer of
respondent dated July 5, 1978,
complainant Atty. Luis V. Artiaga Jr.
filed his reply of July 31, 1978.
After considering the answer of
respondent, this Court resolved to
refer the case to the Solicitor
General for investigation, report
and recommendation. The solicitor
General forwarded to the Court his
Report and Recommendation dated
May 4, 1988 with the finding that
respondent was guilty of
misconduct and with the
recommendation that he be
suspended from the practice of law
for a period of at least six (6)
months.
The complaint for disbarment arose
from four (4) separate cases and
several incidental cases with
Juliano Estolano, client of
complainant Atty. Artiaga, Jr. and
Glicerio Aquino and/or Florentina
Guanzon, clients of respondent
Atty. Villanueva, as adversaries in
all of these cases involving the
same property.
The factual background of these
cases is summed up in the decision
of the Court of Appeals in CA-G.R.
No. SP06600 dated November 16,
1977, a petition for certiorari and
prohibition, an offshoot of Civil
Case No. 183-C for Recovery of
Possession filed by Estolano
against Aquino and Guanzon before
the Court of First Instance of
Laguna, Branch VI on June 11,
1974. Quoted hereunder are
pertinent portions of the Court's
decision:
There were three
parcels of land involved
herein. All continuos
and adjoining to each

other and located in

Bambang, Los Banos,
Laguna. The first
covered an area of
2.6793 hectares; the
second, an area of one
hectare; and the third,
an area of one-half
hectare. On July
20,1950, petitioner
Juliano Estolano was
issued original
Certificate of Title No.
P-286 in his name over
the first parcel. There is
no controversy,
therefore, in respect of
this first parcel, the
dispute being confined
to the second and third
parcels.
The second and third
parcels were the object
of Revocable Permit
Applications by Paciano
Malabayabas and
Canuto Suyo, both filed
on March 31, 1951. On
June 12, 1956, Canuto
transferred his right
over the third parcel to
petitioner. On March 4,
1958, Malabayabas
also sold his rights over
the second parcel to
petitioner. On May 15,
1958, petitioner filed
Insular Government
Property Sales
Application No. 1772
(New) covering the
second and third
parcels.
On November 7, 1958,
Glicerio Aquino, private
respondent, filed his
Revocable Permit
Application over an
area of 8,000 square
meters, which was later
found to cover a part of
the first parcel already
titled in favor of
petitioner and of the
third parcel transferred
to him by Suyo. On
December 29, 1958,
private respondent
Florentina Guanzon,
Aquino's sister-in-law,
also filed Revocable
136

Legal Ethics

Permit Application over

the second parcel.
Eventually, the
conflicts were taken
cognizance of by the
Bureau of Lands (B.L.
Conflict No. 3-953, and
B.L.O. Conflict No. 236).
On May 21, 1962, the
Director of Lands
rendered a Decision
against private
respondents, as
follows:
WHEREFOR
E, it is
ordered
that the
Revocable
Permit
Application
No. V14105 of
Glicerio
Aquino be,
as hereby it
is, rejected,
forfeiting in
favor of the
Governmen
t whatever
amount has
been paid
on account
thereof.
The
Revocable
Permit
Application
No. V14142 of
Florentina
Guanzon
shall
remain, as
it is,
rejected.
Glicerio
Aquino and
Florentina
Guanzon
shall
vacate the
land within
sixty (60)
days from
their
receipt of a
copy hereof
The new
Insular

Governmen
t Property
Sales
Application
of Julian
Estolano
shall be
given due
course
after the
survey of
the land
covered
thereby.'
Private respondents
moved for the
reconsideration of the
aforequoted Decision,
and the Director of
Lands, in an Order of
August 13, 1962,
amended his previous
Decision as follows:
WHEREFOR
E, our
decision of
May 21,
1962, is
hereby
modified by
awarding to
protesting
Glicerio
Aquino
preferential
right to
that area
actually
occupied
and
cultivated
by him,
indicated
as portion
"K" in the
sketch
drawn on
the back
hereof, and
amending
the Insular
Governmen
t Property
Sales
Application
(New) of
Juliano
Estolano so
as to
exclude
therefrom
137

Legal Ethics

the said
portion.
With this
modificatio
n, the
decision
stands
confirmed.
Petitioner and private
respondents appealed
the amended Decision
of the Director of Lands
to the Secretary of
Agriculture and Natural
Resources who, in a
Decision dated
September 9, 1963,
dismissed the appeals
of private respondents,
set aside the Order of
the Director of Lands
dated August 13, 1962,
and affirmed the
latter's Decision of May
21, 1962. Respondent
Guanzon moved for the
reconsideration of the
Secretary's Decision
but said Motion was
denied.
Respondent Aquino
appealed the Decision
of the Secretary of
Agriculture and Natural
Resources to the Office
of the President of the
Philippines, which
likewise affirmed the
Decision appealed
from.
The Decision of the
Director of Lands
having become final,
an order of Execution
thereof was issued on
January 4, 1967, but
this notwithstanding,
private respondents
remained in possession
of the subject property.
For failure to obtain
possession thereof,
petitioner filed, on June
15, 1974, the principal
case, (Civil Case No.
183-C) in the lower
court which eventually
gave rise to the
proceedings now
challenged in this
Petition." (pp. 3-7,

Decision in CA-G.R. No.

Sp-06600)
The restraining order issued in Civil
Case No. 183-C on October 27,
1976 enjoining the Director of
Lands from enforcing the Order of
Execution was set aside by the
Court of Appeals and the writ of
prohibition prayed for by petitioner
Estolano was granted.
Meanwhile, on April 13, 1974,
respondent's clients, Aquino and
Guanzon, filed a complaint for
forcible entry against complainant's
client, Estolano, in the Municipal
Court of Los Banos Laguna
docketed as Civil Case No. 192.
This case was dismissed by the
Municipal Court on January 5, 1977.
On appeal to the Court of First
Instance (CFI), the order of
dismissal was affirmed on
November 4, 1979 in Civil Case No.
386-C. No appeal was interposed
from this decision, thus it became
final.
The third case for annulment of
Estolano's title over the same land
was filed by respondent's client,
Aquino, with the CFI on May 15,
1974 docketed as Civil Case No.
179-C which was dismissed on April
23, 1976. On appeal to the Court of
Appeals which was docketed as CAG.R. No. 62576-R, the dismissal by
the trial court was affirmed on June
25, 1981. On October 21, 1981, the
case was remanded to the trial
court for execution.
Finally, while their petition for
certiorari and prohibition over Civil
Case No. 183-C was pending before
the Court of Appeals, respondent's
clients, Aquino, filed a complaint
with the Court of Agrarian Relations
(CAR) at San Pablo City docketed
as CAR Case No. 7043 against
Estolano and the Director of Lands
on July 1, 1977. On July 2, 1977,
the CAR issued an order requiring
Estolano to respect Aquino's
possession. On May 18, 1979, the
CAR dismissed the case and on
appeal, its dismissal was affirmed
in a decision of the Court of
Appeals dated February 5, 1981 in
CA-G.R. No. 11635-CAR.
Respondent Atty. Enrique C.
Villanueva is charged with the
following unethical practices: (1)
That respondent had caused his
138

Legal Ethics

client to perjure himself; (2) That

he lacks candor and respect toward
his adversary and the courts; and
(3) That he had been abusive of
the right of recourse to the courts.
We find respondent Atty. Villanueva
guilty as above charged.
Anent the first charge, the
complaint and amended complaint
for forcible entry in Civil Case No.
192 filed by respondent's client are
clear proofs that respondent had
indeed caused his client Glicerio
Aquino to perjure himself as to the
date he lost possession of the
subject property so as to place the
case within the jurisdiction of the
court.
Paragraph 5 of the original
complaint filed on April 18, 1974
reads:
5. That sometime in
the early part of 1960,
defendant Julian
Estolano was able to
dispossess plaintiffs
spouses Glicerio Aquino
and Lorenzo
Magpantay of a portion
of the above-described
parcel of land ...
(Emphasis supplied.) 1
Paragraph 5 of the Amended
Complaint dated June 19, 1974
reads:
5. That sometime in
the early part of June,
1973, defendant Julian
Estolano and Segundo
de los Santos
unlawfully
dispossessed and/or
deprived or turned out
plaintiffs Sps. Aquino
and Magpantay thru
stealth, strategy, force
and intimidation of
and/or possession over
a certain portion (now
caused by defendant
Segundo de los Santos
to be planted to
bananas now of less
than a year old as of
the filing of the original
complaint) located on
the southern portion of
their above-described
landholding . ....
(Emphasis supplied. ) 2

In the original complaint,

respondent's client alleged that he
was dispossessed of the subject
land in 1960, while in the amended
complaint, he alleged it was in
June, 1973. Clearly, this was a ploy
concocted by respondent to enable
the court to acquire jurisdiction
over the case since a forcible entry
case must be filed within one year
from the accrual of the cause of
action under Rule 70, Section 1.
Such action of respondent counsel
is a clear violation of his oath that
"he will do no falsehood nor
consent to the doing of any in
court." 3 A legal counsel is of
course expected to defend his
client's cause with zeal, but not at
the disregard of the truth. 4 The
duty of an attorney to the courts to
employ, for the purpose of
maintaining the causes confided to
him, such means as are consistent
with truth and honor cannot be
overemphasized. 5 His high
vocation is to correctly inform the
court upon the law and the facts of
the case, and to aid it in doing
justice and arriving at correct
conclusions. He violated his oath of
office when he resorted to
deception. 6 Worse, he had caused
his client to perjure himself thus
subjecting the latter to criminal
prosecution for perjury brought
before the Municipal Court of Los
Banos, Laguna. 7 Instead of
safeguarding the interests of his
client as his responsibility dictates,
he did exactly the opposite by
causing his client to commit a
felony.
From the foregoing, the lack of
candor of respondent counsel
towards the court is evident. This
lack of candor and honesty to the
courts and his adversary is further
demonstrated by other acts of
respondent.
In Civil Case No. 192, respondent's
clients were restored to the
possession of the 2-1/2 hectares of
the untitled portion of subject
property by virtue of a writ of
preliminary mandatory injunction
issued by the court on May 21,
1974 upon filing of a property bond
by respondent. Upon the dismissal
of the case on January 5, 1977, the
writ of preliminary mandatory
139

Legal Ethics

injunction was dissolved and

respondent's clients were ordered
to restore possession of subject
property to complainant's client
Estolano. However, respondent
blocked the order by filing an
urgent ex-parte motion seeking
clarification as to whether the
dispositive portion of the order of
January 5, 1977 was immediately
executory and asking the court to
allow his clients to remain in the
meantime in the premises. Before
the court could even resolve the
motion, respondent perfected his
appeal from the order of January 5,
1977 on January 25, 1977. Thus,
when the court's order affirming its
previous order came out on January
26,1977, the Provincial Sheriff of
Laguna refused to implement the
orders of January 5 and 26, 1977
until the appeal has been finally
disposed of. On appeal, the CFI of
Laguna, affirmed the questioned
orders of the Municipal Court.
When the decision of the CFI
became final because respondent
failed to appeal, his clients refused
to abide by the Order of Execution
issued by the Municipal Court.
Consequently, Estolano filed an exparte motion asking that the
Provincial Sheriff be authorized to
forcibly evict respondent's clients.
On the date set for the hearing of
the motion, respondent did not
appear and instead filed his
"Opposition/ Manifestation"
informing the court of a petition for
certiorari filed against the presiding
judge before the Court of First
Instance of Laguna. In deference to
this petition, the Municipal Court
resolved to hold in abeyance
the ex-parte motion of Estolano
until resolution of said petition.
Indeed, the manner in which
respondent counsel handled the
forcible entry case filed against the
client of complainant shows his
total lack of candor and respect for
the courts and the rights of his
adversary. He had employed every
step necessary to forestall
complainant's client from taking
rightful possession of subject
property. He has shown utter
disregard of the proper rules of
procedure to suit his purpose.
While he filed his urgent ex-

parte motion for clarification, he

chose not to wait for its resolution
and instead perfected his appeal to
the Court of First Instance. When
finally the decision became
executory because of his failure to
appeal to the Court of Appeals, he
filed a petition for certiorari against
the decision of the CFI which
petition is obviously frivolous and a
mere tactic to delay enforcement
of the court's decision. In the
meantime, the clients of
respondents refused to obey the
order of execution.
A lawyer should obey all lawful
orders and rulings of the court. 8 He
should have counseled his clients
to submit to the order of the court
instead of encouraging them to
resist such order. The actuations of
respondent of employing dilatory
tactics by filing a clearly frivolous
case amounts to obstruction of the
administration of justice which
constitutes misconduct and
justifies disciplinary action against
him. 9
Respondents counsel further
demonstrated his questionable
motive by filing another case, this
time for annulment of the title of
complainant's client to the other 21/2 hectares of subject land with
the Court of First Instance of
Laguna, Branch VI. This case was
dismissed on the ground of res
judicata and prescription.
Respondent appealed this ruling to
the Court of Appeals where it was
pending resolution at the time the
instant complaint for disbarment
was filed. The decision of the trial
court was affirmed and remanded
to the lower court for execution.
Not satisfied with the abovementioned appeal, respondent
counsel brought another case
against complainant's client this
time before the Court of Agrarian
Relations (CAR Case No. 7043) for
determination allegedly of who had
a better right over the subject
property when he was well aware e
of the absence of any tenancy
relationship between the parties.
An examination of the records
shows that respondent did not
disclose before the Court of
Agrarian Relations (CAR) prior law
suits and decisions rendered
140

Legal Ethics

relative to the subject land. As a

result, respondent was able to
secure ex-parte from the CAR a
restraining order against the
Director of Lands and Estolano on
July 2, 1977. So when the decision
of the Court of First Instance of
Laguna in Civil Case No. 386-C
affirming the decision of the trial
court in the forcible entry case No.
192 was rendered on November 4,
1977 ordering the immediate
restoration of subject land to
Estolano, because of the
restraining order issued by the
agrarian court, the execution of the
said decision cannot be fully
satisfied, To make matters worse,
respondent even filed a criminal
complaint against complainant and
his client, among others, for
alleged violation of P.D. 316 and
the restraining order issued by the
Court of Agrarian Relations in CAR
Case No. 7043. 10 The CAR
dismissed this case and on appeal,
the dismissal was affirmed.
We also note that after respondent
filed the case with the CAR on July
1, 1 977, he filed on July 5, 1977 in
Civil Case No. 179-C before the CFI
of Laguna, a motion to dismiss the
present action without prejudice to
his clients' right to prosecute their
present action with the Court of
Agrarian Relations. The lower court
denied the motion since it had
already dismissed the case on
some other ground and their
appeal was already perfected
without plaintiffs' manifesting that
they are abandoning their appeal.
Thus, respondent was able to
elevate two (2) separate appeals-CA-G.R. No. 62576-R re: annulment
of title (Civil Case No. 179-C) and
CA-G.R. No. 11635-CAR arising
from the CAR Case No. 7043,
before the Court of Appeals over
the same issues involving the same
subject property titled to Estolano.
The cause of respondent's clients is
obviously bereft of merit.
Respondent was aware of this fact
so he resorted to forum shopping,
continuously seeking the court
where he may possibly obtain
favorable judgment, thereby
adding to the already clogged
dockets of the courts with the
unmeritorious cases he filed. He

grossly abused his right of recourse

to the courts by filing multiple
petitions or complaints for a cause
that had been previously rejected
in the false hope of getting some
favorable action, somehow, thus,
obstructing the administration of
justice. 11 He was derelict in his
duty as counsel to maintain such
actions or proceedings only as
appears to him to be just, and such
defenses only as he believes to be
honestly debatable under the
law. 12 He had thus prostituted his
office at the expense of justice.
The practice of law is a privilege
accorded only to those who
measure up to certain standards of
mental and moral fitness. 13 For a
counsel who has been sworn to
assist in the administration of
justice and to uphold the rule of
law, respondent has miserably
failed to live up to the standards
expected of a member of the Bar.
Instead of assisting in the speedy
disposition of cases, he made a
mockery of our system of justice,
thus deserving to be censured and
penalized by this Court. No doubt,
respondent is guilty of gross
misconduct in office.
WHEREFORE, the respondent is
hereby SUSPENDED INDEFINITELY
from the practice of law from date
of notice until such time that he
can demonstrate to the court that
he has rehabilitated himself and
deserves to resume the practice of
law. Let this decision be noted in
the bar records of respondent.
SO ORDERED.

141

Legal Ethics

SURIGAO MINERAL
RESERVATION BOARD and the
EXECUTIVE
SECRETARY, petitioners,
vs.
HON. GAUDENCIO CLORIBEL, as
Judge of the Court of First
Instance of Manila
and MAC-ARTHUR
INTERNATIONAL MINERALS
CO., respondents.
Original action for certiorari and
prohibition, with preliminary
injunction, to restrain the
Honorable Gaudencio Cloribel, as
Judge of the Court of First Instance
of Manila, from continuing with the
hearing of Civil Case No. 67400 of
said Court, and from enforcing a
restraining order issued therein on
November 16, 1966, as well as to
annul an order of respondent
Judge, in the same case, dated
December 9, 1966.
It appears that, on or about
December 2, 1964, the Surigao
Mineral Reservations Board
hereinafter referred to as the Board
issued an Invitation to Bid, on
May 12, 1965, for the exploration
and development of mineral
deposits in a portion of the Surigao
Mineral Reservation, in the
province of Surigao, more
particularly described in said
Invitation to Bid; that, in response
thereto, two (2) bids were filed,
namely one (1) by the Mac-Arthur
International Minerals Co.
hereinafter referred to as the
Company and the other by
Benguet Consolidated, Inc.; that,
these two (2) bids were referred by
the Board to an Evaluation
Committee created therefor; that
both bids were later rejected by the
Board, upon consideration of the
report thereon of said Committee;
and that, a reconsideration, sought
by the Company, of the action thus
taken by the Board was, thereafter,
denied by the latter.
Thereupon, or on September 1,
1966, the Company filed, with the
Court of First Instance of Manila,
the petition in said Case No. 67400,
against the Board and the
Executive Secretary as the
officer "responsible for the approval
and authorization of public

biddings and the acceptance,

handling and processing of all bids"
seemingly to annul the
proceedings before said Board
leading to the rejection of the bid
of the Company and to prevent the
Board, the Evaluation Committee
and the Executive Secretary from
taking such steps as may impair
the rights that the Company claims
to have acquired in consequence of
its bid.
After requiring petitioners herein,
as respondents in said Case No.
67400, to answer the petition
therein, or on November 16, 1966,
respondent Judge issued a
restraining order directing
petitioners herein, their agents
and/or representatives, to refrain
from executing the acts adverted
to above. On December 1, 1966,
petitioners herein filed their answer
to said Case No. 67400, with a
motion to dismiss and an
opposition to the writ of
preliminary injunction prayed for by
the Company. Acting on said
motion, on December 9, 1966,
respondent Judge denied the same
and set the case for hearing.
Presently, or on January 14, 1967,
petitioners herein commenced the
present action against respondent
Judge and the Company, for the
purpose indicated at the beginning
of this decision. On January 19,
1967, this Court required
respondents herein to file their
answer, not a motion to dismiss, as
well as issued the writ of
preliminary, injunction prayed for
by the petitioners. Subsequently,
respondents filed their answer and
later moved to dissolve or amend
said writ of preliminary injunction;
but we denied the motion.
The main issue in this case is
whether or not respondent Judge
had committed a grave abuse of
discretion, amounting to excess of
jurisdiction, in issuing the
restraining order dated November
16, 1966. This question, in turn,
hinges on whether or not the
records of said Case No. 67400
disclose that the Company has no
cause of action against petitioners
herein.
In this connection, it should be
noted that the petition in said case
142

Legal Ethics

is predicated like the answer in

the case at bar upon the theory
that the Invitation to Bid issued by
the Board constitutes an "offer",
which was unqualifiedly accepted
by the bid submitted by the
Company, thereby resulting
according to the latter's contention
in both cases into a perfected
contract, which is binding upon the
Board, thereby imposing upon the
same the obligation to implement
said alleged contract and to refrain
from entering into negotiations or
doing anything tending to defeat or
impair the supposed rights of the
Company under said contract.
This theory is, however, absolutely
untenable. An Invitation to Bid,
is not an "offer", which, if accepted,
matures into a contract. In the
language of Article 1326 of our
Civil Code, "advertisements for
bidders are simply invitations to
make proposals and the advertiser
is not bound to accept the highest
or lowest bidder, unless the
contrary appears."1 The Company
does not even allege that "the
contrary appears."
Worse, still, the Invitation to Bid,
issued by the Board,
provided, inter alia, that "the
Government reserves the right to
reject any and all bids, waive any
defect of form or accept such bid
as may be deemed most
advantageous to it." In other
words, acceptance by the Board of
a given bid is necessary for a
contract to exist between the
Board or the Government and any
bidder, regardless of the terms and
conditions of his bid. This
reservation of the "right" of the
Board "to reject any and all bids," is
one of the terms and conditions of
the Invitation to Bid which the
Company has accepted and, hence,
binds the same.2 As a
consequence, it is now in estoppel
to object to or assail the exercise of
said "right" by the Board.3
Then, contrary to the conclusions
made in the pleadings of the
Company, the same has not, in
fact, adhered faithfully to the terms
and conditions of said Invitation to
Bid. Indeed, the latter explicitly
declares that "bids not
accompanied by bid bonds will be

rejected." Admittedly, the bid of

the Company had been submitted
without the requisite bond.
It is thus manifest, from the records
of said Case No. 67400, that the
Company had no cause of action
against petitioners herein and that,
accordingly, respondent Judge
committed a grave abuse of
discretion, amounting to excess of
jurisdiction, in issuing its
restraining order of November 16,
1966, and its order of December 9,
1966, refusing, in effect, to set
aside said order of November 16,
1966.4
WHEREFORE, said orders of
respondent Judge dated November
16, and December 9, 1966, are
hereby annulled and the writ of
preliminary injunction issued in the
present case made permanent,
with costs against respondent,
Mac-Arthur International Minerals
Company. Writ granted. It is so
ordered.

143

Legal Ethics

IN THE MATTER OF
PROCEEDINGS FOR
DISCIPLINARY ACTION AGAINST
ATTY. VICENTE RAUL ALMACEN
In L-27654, ANTONIO H.
CALERO,
vs.
VIRGINIA Y. YAPTINCHAY.
Before us is Atty. Vicente Raul
Almacen's "Petition to Surrender
Lawyer's Certificate of Title," filed
on September 25, 1967, in protest
against what he therein asserts is
"a great injustice committed
against his client by this Supreme
Court." He indicts this Court, in his
own phrase, as a tribunal "peopled
by men who are calloused to our
pleas for justice, who ignore
without reasons their own
applicable decisions and commit
culpable violations of the
Constitution with impunity." His
client's he continues, who was
deeply aggrieved by this Court's
"unjust judgment," has become
"one of the sacrificial victims
before the altar of hypocrisy." In
the same breath that he alludes to
the classic symbol of justice, he
ridicules the members of this
Court, saying "that justice as
administered by the present
members of the Supreme Court is
not only blind, but also deaf and
dumb." He then vows to argue the
cause of his client "in the people's
forum," so that "the people may
know of the silent injustice's
committed by this Court," and that
"whatever mistakes, wrongs and
injustices that were committed
must never be repeated." He ends
his petition with a prayer that
... a resolution issue
ordering the Clerk of
Court to receive the
certificate of the
undersigned attorney
and counsellor-at-law
IN TRUST with
reservation that at any
time in the future and
in the event we regain
our faith and
confidence, we may
retrieve our title to
assume the practice of
the noblest profession.

He reiterated and disclosed to the

press the contents of the
aforementioned petition. Thus, on
September 26, 1967, the Manila
Times published statements
attributed to him, as follows:
Vicente Raul Almacen,
in an unprecedented
petition, said he did it
to expose the
tribunal's "unconstituti
onal and
obnoxious" practice of
arbitrarily denying
petitions or appeals
without any reason.
Because of the
tribunal's "short-cut
justice," Almacen
deplored, his client was
condemned to pay
P120,000, without
knowing why he lost
the case.
xxx xxx xxx
There is no use
continuing his law
practice, Almacen said
in this petition, "where
our Supreme Court is
composed of men who
are calloused to our
pleas for justice, who
ignore without reason
their own applicable
decisions and commit
culpable violations of
the Constitution with
impunity.
xxx xxx xxx
He expressed the hope
that by divesting
himself of his title by
which he earns his
living, the present
members of the
Supreme Court "will
become responsive to
all cases brought to its
attention without
discrimination, and will
purge itself of those
unconstitutional and
obnoxious "lack of
merit" or "denied
resolutions. (Emphasis
supplied)
Atty. Almacen's statement that
... our own Supreme
Court is composed of
men who are calloused
144

Legal Ethics

to our pleas of [sic]

justice, who ignore
their own applicable
decisions and commit
culpable violations of
the Constitution with
impunity
was quoted by columnist Vicente
Albano Pacis in the issue of
the Manila Chronicle of September
28, 1967. In connection therewith,
Pacis commented that Atty.
Almacen had "accused the high
tribunal of offenses so serious that
the Court must clear itself," and
that "his charge is one of the
constitutional bases for
impeachment."
The genesis of this unfortunate
incident was a civil case
entitled Virginia Y. Yaptinchay vs.
Antonio H. Calero,1 in which Atty.
Almacen was counsel for the
defendant. The trial court, after
due hearing, rendered judgment
against his client. On June 15, 1966
Atty. Almacen received a copy of
the decision. Twenty days later, or
on July 5, 1966, he moved for its
reconsideration. He served on the
adverse counsel a copy of the
motion, but did not notify the latter
of the time and place of hearing on
said motion. Meanwhile, on July 18,
1966, the plaintiff moved for
execution of the judgment. For
"lack of proof of service," the trial
court denied both motions. To
prove that he did serve on the
adverse party a copy of his first
motion for reconsideration, Atty.
Almacen filed on August 17, 1966 a
second motion for reconsideration
to which he attached the required
registry return card. This second
motion for reconsideration,
however, was ordered withdrawn
by the trial court on August 30,
1966, upon verbal motion of Atty.
Almacen himself, who, earlier, that
is, on August 22, 1966, had already
perfected the appeal. Because the
plaintiff interposed no objection to
the record on appeal and appeal
bond, the trial court elevated the
case to the Court of Appeals.
But the Court of Appeals, on the
authority of this Court's decision
in Manila Surety & Fidelity Co., Inc.
vs. Batu Construction & Co., L-

16636, June 24, 1965, dismissed

the appeal, in the following words:
Upon consideration of
the motion dated
March 27, 1967, filed
by plaintiff-appellee
praying that the appeal
be dismissed, and of
the opposition thereto
filed by defendantappellant; the Court
RESOLVED TO DISMISS,
as it hereby dismisses,
the appeal, for the
reason that the motion
for reconsideration
dated July 5, 1966 (pp.
90-113, printed record
on appeal) does not
contain a notice of time
and place of hearing
thereof and is,
therefore, a useless
piece of paper (Manila
Surety & Fidelity Co.,
Inc. vs. Batu
Construction & Co.,
G.R. No. L-16636, June
24, 1965), which did
not interrupt the
running of the period to
appeal, and,
consequently, the
appeal was perfected
out of time.
Atty. Almacen moved to reconsider
this resolution, urging that Manila
Surety & Fidelity Co. is not
decisive. At the same time he filed
a pleading entitled "Latest decision
of the Supreme Court in Support of
Motion for Reconsideration,"
citing Republic of the Philippines
vs. Gregorio A. Venturanza, L20417, decided by this Court on
May 30, 1966, as the applicable
case. Again, the Court of Appeals
denied the motion for
reconsideration, thus:
Before this Court for
resolution are the
motion dated May 9,
1967 and the
supplement thereto of
the same date filed by
defendant- appellant,
praying for
reconsideration of the
resolution of May 8,
1967, dismissing the
appeal.
145

Legal Ethics

Appellant contends
that there are some
important distinctions
between this case and
that of Manila Surety
and Fidelity Co., Inc.
vs. Batu Construction &
Co., G.R. No. L- 16636,
June 24, 1965, relied
upon by this Court in
its resolution of May 8,
1967. Appellant further
states that in the latest
case, Republic vs.
Venturanza, L-20417,
May 30, 1966, decided
by the Supreme Court
concerning the
question raised by
appellant's motion, the
ruling is contrary to the
doctrine laid down in
the Manila Surety &
Fidelity Co., Inc. case.
There is no substantial
distinction between this
case and that of Manila
Surety & Fidelity Co.
In the case of Republic
vs. Venturanza, the
resolution denying the
motion to dismiss the
appeal, based on
grounds similar to
those raised herein was
issued on November
26, 1962, which was
much earlier than the
date of promulgation of
the decision in the
Manila Surety Case,
which was June 24,
1965. Further, the
resolution in the
Venturanza case was
interlocutory and the
Supreme Court issued
it "without prejudice to
appellee's restoring the
point in the brief." In
the main decision in
said case (Rep. vs.
Venturanza the
Supreme Court passed
upon the issue sub
silencio presumably
because of its prior
decisions contrary to
the resolution of
November 26, 1962,
one of which is that in

the Manila Surety and

Fidelity case.
Therefore Republic vs.
Venturanza is no
authority on the matter
in issue.
Atty. Almacen then appealed to this
Court by certiorari. We refused to
take the case, and by minute
resolution denied the appeal.
Denied shortly thereafter was his
motion for reconsideration as well
as his petition for leave to file a
second motion for reconsideration
and for extension of time. Entry of
judgment was made on September
8, 1967. Hence, the second motion
for reconsideration filed by him
after the Said date was ordered
expunged from the records.
It was at this juncture that Atty.
Almacen gave vent to his
disappointment by filing his
"Petition to Surrender Lawyer's
Certificate of Title," already
adverted to a pleading that is
interspersed from beginning to end
with the insolent contemptuous,
grossly disrespectful and
derogatory remarks hereinbefore
reproduced, against this Court as
well as its individual members, a
behavior that is as unprecedented
as it is unprofessional.
Nonetheless we decided by
resolution dated September 28,
1967 to withhold action on his
petition until he shall have actually
surrendered his certificate.
Patiently, we waited for him to
make good his proffer. No word
came from him. So he was
reminded to turn over his
certificate, which he had earlier
vociferously offered to surrender,
so that this Court could act on his
petition. To said reminder he
manifested "that he has no
pending petition in connection with
Case G.R. No. L-27654, Calero vs.
Yaptinchay, said case is now final
and executory;" that this Court's
September 28, 1967 resolution did
not require him to do either a
positive or negative act; and that
since his offer was not accepted,
he "chose to pursue the negative
act."
In the exercise of its inherent
power to discipline a member of
the bar for contumely and gross
146

Legal Ethics

misconduct, this Court on

November 17, 1967 resolved to
require Atty. Almacen to show
cause "why no disciplinary action
should be taken against him."
Denying the charges contained in
the November 17 resolution, he
asked for permission "to give
reasons and cause why no
disciplinary action should be taken
against him ... in an open and
public hearing." This Court resolved
(on December 7) "to require Atty.
Almacen to state, within five days
from notice hereof, his reasons for
such request, otherwise, oral
argument shall be deemed waived
and incident submitted for
decision." To this resolution he
manifested that since this Court is
"the complainant, prosecutor and
Judge," he preferred to be heard
and to answer questions "in person
and in an open and public hearing"
so that this Court could observe his
sincerity and candor. He also asked
for leave to file a written
explanation "in the event this Court
has no time to hear him in person."
To give him the ampliest latitude
for his defense, he was allowed to
file a written explanation and
thereafter was heard in oral
argument.
His written answer, as undignified
and cynical as it is unchastened,
offers -no apology. Far from being
contrite Atty. Almacen
unremittingly repeats his jeremiad
of lamentations, this time
embellishing it with abundant
sarcasm and innuendo. Thus:
At the start, let me
quote passages from
the Holy Bible, Chapter
7, St. Matthew:
"Do not
judge, that
you may
not be
judged. For
with what
judgment
you judge,
you shall
be judged,
and with
what
measure
you
measure, it

shall be
measured
to you. But
why dost
thou see
the speck
in thy
brother's
eye, and
yet dost
not
consider
the beam
in thy own
eye? Or
how can
thou say to
thy brother,
"Let me
cast out the
speck from
thy eye";
and behold,
there is a
beam in
thy own
eye? Thou
hypocrite,
first cast
out the
beam from
thy own
eye, and
then thou
wilt see
clearly to
cast out the
speck from
thy
brother's
eyes."
"Therefore
all that you
wish men
to do to
you, even
to do you
also to
them: for
this is the
Law and
the
Prophets."
xxx xxx xxx
Your respondent has no
intention of disavowing
the statements
mentioned in his
petition. On the
contrary, he refirms the
truth of what he stated,
147

Legal Ethics

compatible with his

lawyer's oath that he
will do no falsehood,
nor consent to the
doing of any in court.
But he vigorously DENY
under oath that the
underscored
statements contained
in the CHARGE are
insolent,
contemptuous, grossly
disrespectful and
derogatory to the
individual members of
the Court; that they
tend to bring the entire
Court, without
justification, into
disrepute; and
constitute conduct
unbecoming of a
member of the noble
profession of law.
xxx xxx xxx
Respondent stands
four-square that his
statement is borne by
TRUTH and has been
asserted with NO
MALICE BEFORE AND
AFTER THOUGHT but
mainly motivated with
the highest interest of
justice that in the
particular case of our
client, the members
have shown
callousness to our
various pleas for
JUSTICE, our pleadings
will bear us on this
matter, ...
xxx xxx xxx
To all these beggings,
supplications, words of
humility, appeals for
charity, generosity,
fairness,
understanding,
sympathy and above
all in the highest
interest of JUSTICE,
what did we get from
this COURT? One word,
DENIED, with all its
hardiness and
insensibility. That was
the unfeeling of the
Court towards our
pleas and prayers, in

simple word, it is plain

callousness towards
our particular case.
xxx xxx xxx
Now that your
respondent has the
guts to tell the
members of the Court
that notwithstanding
the violation of the
Constitution, you
remained unpunished,
this Court in the
reverse order of natural
things, is now in the
attempt to inflict
punishment on your
respondent for acts he
said in good faith.
Did His Honors care to
listen to our pleadings
and supplications for
JUSTICE, CHARITY,
GENEROSITY and
FAIRNESS? Did His
Honors attempt to
justify their stubborn
denial with any
semblance of reason,
NEVER. Now that your
respondent is given the
opportunity to face
you, he reiterates the
same statement with
emphasis, DID YOU?
Sir. Is this. the way of
life in the Philippines
today, that even our
own President, said:
"the story is current,
though nebulous ,is to
its truth, it is still being
circulated that justice
in the Philippines today
is not what it is used to
be before the war.
There are those who
have told me frankly
and brutally that justice
is a commodity, a
marketable commodity
in the Philippines."
xxx xxx xxx
We condemn the SIN,
not the SINNER. We
detest the ACTS, not
the ACTOR. We attack
the decision of this
Court, not the
members. ... We were
provoked. We were
148

Legal Ethics

compelled by force of
necessity. We were
angry but we waited for
the finality of the
decision. We waited
until this Court has
performed its duties.
We never interfered nor
obstruct in the
performance of their
duties. But in the end,
after seeing that the
Constitution has placed
finality on your
judgment against our
client and sensing that
you have not
performed your duties
with "circumspection,
carefulness, confidence
and wisdom", your
Respondent rise to
claim his God given
right to speak the truth
and his Constitutional
right of free speech.
xxx xxx xxx
The INJUSTICES which
we have attributed to
this Court and the
further violations we
sought to be prevented
is impliedly shared by
our President. ... .
xxx xxx xxx
What has been abhored and
condemned, are the very things
that were applied to us. Recalling
Madam Roland's famous
apostrophe during the French
revolution, "O Liberty, what crimes
are committed in thy name", we
may dare say, "O JUSTICE, what
technicalities are committed in thy
name' or more appropriately, 'O
JUSTICE, what injustices are
committed in thy name."
xxx xxx xxx
We must admit that
this Court is not free
from commission of
any abuses, but who
would correct such
abuses considering
that yours is a court of
last resort. A strong
public opinion must be
generated so as to
curtail these abuses.
xxx xxx xxx

The phrase, Justice is

blind is symbolize in
paintings that can be
found in all courts and
government offices. We
have added only two
more symbols, that it is
also deaf and dumb.
Deaf in the sense that
no members of this
Court has ever heard
our cries for charity,
generosity, fairness,
understanding
sympathy and for
justice; dumb in the
sense, that inspite of
our beggings,
supplications, and
pleadings to give us
reasons why our appeal
has been DENIED, not
one word was spoken
or given ... We refer to
no human defect or
ailment in the above
statement. We only
describe the.
impersonal state of
things and nothing
more.
xxx xxx xxx
As we have stated, we
have lost our faith and
confidence in the
members of this Court
and for which reason
we offered to surrender
our lawyer's certificate,
IN TRUST ONLY.
Because what has been
lost today may be
regained tomorrow. As
the offer was intended
as our self-imposed
sacrifice, then we alone
may decide as to when
we must end our selfsacrifice. If we have to
choose between forcing
ourselves to have faith
and confidence in the
members of the Court
but disregard our
Constitution and to
uphold the Constitution
and be condemned by
the members of this
Court, there is no
choice, we must uphold
the latter.
149

Legal Ethics

But overlooking, for the nonce, the

vituperative chaff which he claims
is not intended as a studied
disrespect to this Court, let us
examine the grain of his
grievances.
He chafes at the minute resolution
denial of his petition for review. We
are quite aware of the
criticisms2expressed against this
Court's practice of rejecting
petitions by minute resolutions. We
have been asked to do away with
it, to state the facts and the law,
and to spell out the reasons for
denial. We have given this
suggestion very careful thought.
For we know the abject frustration
of a lawyer who tediously collates
the facts and for many weary hours
meticulously marshalls his
arguments, only to have his efforts
rebuffed with a terse unadorned
denial. Truth to tell, however, most
petitions rejected by this Court are
utterly frivolous and ought never to
have been lodged at all.3 The rest
do exhibit a first-impression
cogency, but fail to, withstand
critical scrutiny. By and large, this
Court has been generous in giving
due course to petitions
for certiorari.
Be this as it may, were we to
accept every case or write a full
opinion for every petition we reject,
we would be unable to carry out
effectively the burden placed upon
us by the Constitution. The proper
role of the Supreme Court, as Mr.
Chief Justice Vinson of the U.S.
Supreme Court has defined it, is to
decide "only those cases which
present questions whose
resolutions will have immediate
importance beyond the particular
facts and parties involved."
Pertinent here is the observation of
Mr. Justice Frankfurter in Maryland
vs. Baltimore Radio Show, 94 L. ed
562, 566:
A variety of
considerations underlie
denials of the writ, and
as to the same petition
different reasons may
read different justices
to the same result ... .
Since there are these
conflicting, and, to the
uninformed, even

confusing reasons for

denying petitions
for certiorari, it has
been suggested from
time to time that the
Court indicate its
reasons for denial.
Practical considerations
preclude. In order that
the Court may be
enabled to discharge
its indispensable
duties, Congress has
placed the control of
the Court's business, in
effect, within the
Court's discretion.
During the last three
terms the Court
disposed of 260, 217,
224 cases,
respectively, on their
merits. For the same
three terms the Court
denied, respectively,
1,260, 1,105,1,189
petitions calling for
discretionary review. If
the Court is to do its
work it would not be
feasible to give
reasons, however brief,
for refusing to take
these cases. The tune
that would be required
is prohibitive. Apart
from the fact that as
already indicated
different reasons not
infrequently move
different members of
the Court in concluding
that a particular case
at a particular time
makes review
undesirable.
Six years ago, in Novino, et
al., vs. Court of Appeals, et
al., 1,21098, May 31, 1963 (60 O.G.
8099), this Court, through the then
Chief Justice Cesar Bengzon,
articulated its considered view on
this matter. There, the petitioners
counsel urged that a "lack of merit"
resolution violates Section 12 of
Article VIII of the Constitution. Said
Chief Justice Bengzon:
In connection with
identical short
resolutions, the same
question has been
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Legal Ethics

raised before; and we

held that these
"resolutions" are not
"decisions" within the
above constitutional
requirement. They
merely hold that the
petition for review
should not be
entertained in view of
the provisions of Rule
46 of the Rules of
Court; and even
ordinary lawyers have
all this time so
understood it. It should
be remembered that a
petition to review the
decision of the Court of
Appeals is not a matter
of right, but of sound
judicial discretion; and
so there is no need to
fully explain the court's
denial. For one thing,
the facts and the law
are already mentioned
in the Court of Appeals'
opinion.
By the way, this mode
of disposal has as
intended helped the
Court in alleviating its
heavy docket; it was
patterned after the
practice of the U.S.
Supreme Court,
wherein petitions for
review are often merely
ordered "dismissed".
We underscore the fact that cases
taken to this Court on petitions
for certiorari from the Court of
Appeals have had the benefit of
appellate review. Hence, the need
for compelling reasons to buttress
such petitions if this Court is to be
moved into accepting them. For it
is axiomatic that the supervisory
jurisdiction vested upon this Court
over the Court of Appeals is not
intended to give every losing party
another hearing. This axiom is
implied in sec. 4 of Rule 45 of the
Rules of Court which recites:
Review of Court of
Appeals' decision
discretionary.A
review is not a matter
of right but of sound
judicial discretion, and

will be granted only

when there are special
and important reasons
therefor. The following,
while neither
controlling nor fully
measuring the court's
discretion, indicate the
character of reasons
which will be
considered:
(a) When the Court of
Appeals has decided a
question of substance,
not theretofore
determined by the
Supreme Court, nor has
decided it in a way
probably not in accord
with law or with the
applicable decisions of
the Supreme Court;
(b) When the Court of
Appeals has so far
departed from the
accepted and usual
course of judicial
proceedings, or so far
sanctioned such
departure by the lower
court, as to call for the
exercise of the power
of supervision.
Recalling Atty. Almacen's petition
for review, we found, upon a
thoroughgoing examination of the
pleadings. and records, that the
Court of Appeals had fully and
correctly considered the dismissal
of his appeal in the light of the law
and applicable decisions of this
Court. Far from straying away from
the "accepted and usual course of
judicial proceedings," it traced the
procedural lines etched by this
Court in a number of decisions.
There was, therefore, no need for
this Court to exercise its
supervisory power.
As a law practitioner who was
admitted to the Bar as far back as
1941, Atty. Almacen knew or
ought to have known that for a
motion for reconsideration to stay
the running of the period of appeal,
the movant must not only serve a
copy of the motion upon the
adverse party (which he did), but
also notify the adverse party of the
time and place of hearing (which
admittedly he did not). This rule
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Legal Ethics

was unequivocally articulated

in Manila Surety & Fidelity vs. Batu
Construction & Co., supra:
The written notice
referred to evidently is
prescribed for motions
in general by Rule 15,
Sections 4 and 5
(formerly Rule 26),
which provides that
such notice shall state
the time, and place of
hearing and shall be
served upon all the
Parties concerned at
least three days in
advance. And
according to Section 6
of the same Rule no
motion shall be acted
upon by the court
without proof of such
notice. Indeed it has
been held that in such
a case the motion is
nothing but a useless
piece of paper
(Philippine National
Bank v. Damasco,
I,18638, Feb. 28, 1963;
citing Manakil v.
Revilla, 42 Phil. 81;
Roman Catholic Bishop
of Lipa v. Municipality
of Unisan, 41 Phil. 866;
and Director of Lands
vs. Sanz, 45 Phil. 117).
The reason is obvious:
Unless the movant sets
the time and place of
hearing the Court
would have no way to
determine whether that
party agrees to or
objects to the motion,
and if he objects, to
hear him on his
objection, since the
Rules themselves do
not fix any period
within which he may
file his reply or
opposition.
If Atty. Almacen failed to move the
appellate court to review the lower
court's judgment, he has only
himself to blame. His own
negligence caused the forfeiture of
the remedy of appeal, which,
incidentally, is not a matter of
right. To shift away from himself

the consequences of his

carelessness, he looked for a
"whipping boy." But he made sure
that he assumed the posture of a
martyr, and, in offering to
surrender his professional
certificate, he took the liberty of
vilifying this Court and inflicting his
exacerbating rancor on the
members thereof. It would thus
appear that there is no justification
for his scurrilous and scandalous
outbursts.
Nonetheless we gave this
unprecedented act of Atty. Almacen
the most circumspect
consideration. We know that it is
natural for a lawyer to express his
dissatisfaction each time he loses
what he sanguinely believes to be
a meritorious case. That is why
lawyers are given 'wide latitude to
differ with, and voice their
disapproval of, not only the courts'
rulings but, also the manner in
which they are handed down.
Moreover, every citizen has the
right to comment upon and criticize
the actuations of public officers.
This right is not diminished by the
fact that the criticism is aimed at a
judicial authority,4 or that it is
articulated by a lawyer.5 Such right
is especially recognized where the
criticism concerns a concluded
litigation,6 because then the court's
actuations are thrown open to
public consumption.7"Our decisions
and all our official actions," said the
Supreme Court of Nebraska,8 "are
public property, and the press and
the people have the undoubted
right to comment on them, criticize
and censure them as they see fit.
Judicial officers, like other public
servants, must answer for their
official actions before the chancery
of public opinion."
The likely danger of confusing the
fury of human reaction to an attack
on one's integrity, competence and
honesty, with "imminent danger to
the administration of justice," is the
reason why courts have been loath
to inflict punishment on those who
assail their actuations.9 This danger
lurks especially in such a case as
this where those who Sit as
members of an entire Court are
themselves collectively the
aggrieved parties.
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Legal Ethics

Courts thus treat with forbearance

and restraint a lawyer who
vigorously assails their
actuations. 10 For courageous and
fearless advocates are the strands
that weave durability into the
tapestry of justice. Hence, as
citizen and officer of the court,
every lawyer is expected not only
to exercise the right, but also to
consider it his duty to expose the
shortcomings and indiscretions of
courts and judges. 11
Courts and judges are not
sacrosanct. 12 They should and
expect critical evaluation of their
performance. 13 For like the
executive and the legislative
branches, the judiciary is rooted in
the soil of democratic society,
nourished by the periodic appraisal
of the citizens whom it is expected
to serve.
Well-recognized therefore is the
right of a lawyer, both as an officer
of the court and as a citizen, to
criticize in properly respectful
terms and through legitimate
channels the acts of courts and
judges. The reason is that
An attorney does not
surrender, in assuming
the important place
accorded to him in the
administration of
justice, his right as a
citizen to criticize the
decisions of the courts
in a fair and respectful
manner, and the
independence of the
bar, as well as of the
judiciary, has always
been encouraged by
the courts. (In re Ades,
6 F Supp. 487) .
Criticism of the courts has, indeed,
been an important part of the
traditional work of the bar. In the
prosecution of appeals, he points
out the errors of lower courts. In
written for law journals he dissects
with detachment the doctrinal
pronouncements of courts and
fearlessly lays bare for -all to see
that flaws and inconsistence" of the
doctrines (Hill v. Lyman, 126 NYS
2d 286). As aptly stated by Chief
Justice Sharswood in Ex Parte
Steinman, 40 Am. Rep. 641:

No class of the
community ought to be
allowed freer scope in
the expansion or
publication of opinions
as to the capacity,
impartiality or integrity
of judges than
members of the bar.
They have the best
opportunities for
observing and forming
a correct judgment.
They are in constant
attendance on the
courts. ... To say that
an attorney can only
act or speak on this
subject under liability
to be called to account
and to be deprived of
his profession and
livelihood, by the judge
or judges whom he
may consider it his
duty to attack and
expose, is a position
too monstrous to be
entertained. ... .
Hence, as a citizen and as Officer
of the court a lawyer is expected
not only to exercise the right, but
also to consider it his duty to avail
of such right. No law may abridge
this right. Nor is he "professionally
answerable for a scrutiny into the
official conduct of the judges,
which would not expose him to
legal animadversion as a citizen."
(Case of Austin, 28 Am. Dee. 657,
665).
Above all others, the
members of the bar
have the beat
Opportunity to become
conversant with the
character and
efficiency of our
judges. No class is less
likely to abuse the
privilege, as no other
class has as great an
interest in the
preservation of an able
and upright bench.
(State Board of
Examiners in Law v.
Hart, 116 N.W. 212,
216)
To curtail the right of a lawyer to be
critical of the foibles of courts and
153

Legal Ethics

judges is to seal the lips of those in

the best position to give advice and
who might consider it their duty to
speak disparagingly. "Under such a
rule," so far as the bar is
concerned, "the merits of a sitting
judge may be rehearsed, but as to
his demerits there must be
profound silence." (State v. Circuit
Court, 72 N.W. 196)
But it is the cardinal condition of all
such criticism that it shall be bona
fide, and shall not spill over the
walls of decency and propriety. A
wide chasm exists between fair
criticism, on the One hand, and
abuse and slander of courts and
the judges thereof, on the other.
Intemperate and unfair criticism is
a gross violation of the duty of
respect to courts. It is Such a
misconduct that subjects a lawyer
to disciplinary action.
For, membership in the Bar
imposes upon a person obligations
and duties which are not mere flux
and ferment. His investiture into
the legal profession places upon his
shoulders no burden more basic,
more exacting and more
imperative than that of respectful
behavior toward the courts. He
vows solemnly to conduct himself
"with all good fidelity ... to the
courts; 14 and the Rules of Court
constantly remind him "to observe
and maintain the respect due to
courts of justice and judicial
officers." 15 The first canon of legal
ethics enjoins him "to maintain
towards the courts a respectful
attitude, not for the sake of the
temporary incumbent of the
judicial office, but for the
maintenance of its supreme
importance."
As Mr. Justice Field puts it:
... the obligation which
attorneys impliedly
assume, if they do not
by express declaration
take upon themselves,
when they are
admitted to the Bar, is
not merely to be
obedient to the
Constitution and laws,
but to maintain at all
times the respect due
to courts of justice and
judicial officers. This

obligation is not
discharged by merely
observing the rules of
courteous demeanor in
open court, but
includes abstaining out
of court from all
insulting language and
offensive conduct
toward judges
personally for their
judicial acts. (Bradley,
v. Fisher, 20 Law. 4d.
647, 652)
The lawyer's duty to render
respectful subordination to the
courts is essential to the orderly
administration of justice. Hence, in
the assertion of their clients'
rights, lawyers even those gifted
with superior intellect are enjoined
to rein up their tempers.
The counsel in any
case may or may not
be an abler or more
learned lawyer than the
judge, and it may tax
his patience and
temper to submit to
rulings which he
regards as incorrect,
but discipline and selfrespect are as
necessary to the
orderly administration
of justice as they are to
the effectiveness of an
army. The decisions of
the judge must be
obeyed, because he is
the tribunal appointed
to decide, and the bar
should at all times be
the foremost in
rendering respectful
submission. (In Re
Scouten, 40 Atl. 481)
We concede that a
lawyer may think
highly of his intellectual
endowment That is his
privilege. And he may
suffer frustration at
what he feels is others'
lack of it. That is his
misfortune. Some such
frame of mind,
however, should not be
allowed to harden into
a belief that he may
attack a court's
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Legal Ethics

decision in words
calculated to jettison
the time-honored
aphorism that courts
are the temples of
right. (Per Justice
Sanchez in Rheem of
the Philippines vs.
Ferrer, L-22979. June
26, 1967)
In his relations with the courts, a
lawyer may not divide his
personality so as to be an attorney
at one time and a mere citizen at
another. Thus, statements made by
an attorney in private
conversations or
communications 16 or in the course
of a political, campaign, 17 if
couched in insulting language as to
bring into scorn and disrepute the
administration of justice, may
subject the attorney to disciplinary
action.
Of fundamental pertinence at this
juncture is an examination of
relevant parallel precedents.
1. Admitting that a "judge as a
public official is neither sacrosanct
nor immune to public criticism of
his conduct in office," the Supreme
Court of Florida in State v.
Calhoon, 102 So. 2d 604, 608,
nevertheless declared that "any
conduct of a lawyer which brings
into scorn and disrepute the
administration of justice demands
condemnation and the application
of appropriate penalties," adding
that:
It would be contrary to,
every democratic
theory to hold that a
judge or a court is
beyond bona fide
comments and
criticisms which do not
exceed the bounds of
decency and truth or
which are not aimed at.
the destruction of
public confidence in the
judicial system as such.
However, when the
likely impairment of the
administration of
justice the direct
product of false and
scandalous accusations
then the rule is
otherwise.

2. In In Re Glenn, 130 N.W. 2d 672,

an attorney was suspended for
putting out and circulating a leaflet
entitled "JUSTICE??? IN OTUMWA,"
which accused a municipal judge of
having committed judicial error, of
being so prejudiced as to deny his
clients a fair trial on appeal and of
being subject to the control of a
group of city officials. As a
prefatory statement he wrote:
"They say that Justice is BLIND, but
it took Municipal Judge Willard to
prove that it is also DEAF and
DUMB!" The court did not hesitate
to find that the leaflet went much
further than the accused, as a
lawyer, had a right to do.
The entire publication
evidences a desire on
the part Of the accused
to belittle and besmirch
the court and to bring it
into disrepute with the
general public.
3. In In Re Humphrey, 163 Pac. 60,
the Supreme Court of California
affirmed the two-year suspension
of an attorney who published a
circular assailing a judge who at
that time was a candidate for reelection to a judicial office. The
circular which referred to two
decisions of the judge concluded
with a statement that the judge
"used his judicial office to enable
-said bank to keep that money."
Said the court:
We are aware that
there is a line of
authorities which place
no limit to the criticism
members of the bar
may make regarding
the capacity,
impartiality, or integrity
of the courts, even
though it extends to
the deliberate
publication by the
attorney capable of
correct reasoning of
baseless insinuations
against the intelligence
and integrity of the
highest courts.
See State Board, etc. v.
Hart. 116 N.W. 212, 17
LRA (N.S.) 585, 15 Ann
Cas 197 and note: Ex
parte Steinman 95 Pac.
155

Legal Ethics

220, 40 Am. Rep. 637.

In the first case
mentioned it was
observed, for instance:
"It may be
(although
we do not
so decide)
that a
libelous
publication
by an
attorney,
directed
against a
judicial
officer,
could be so
vile and of
such a
nature as
to justify
the
disbarment
of its
author."
Yet the false charges
made by an attorney in
that case were of
graver character than
those made by the
respondent here. But,
in our view, the better
rule is that which
requires of those who
are permitted to enjoy
the privilege of
practicing law the
strictest observance at
all times of the
principles of truth,
honesty and fairness,
especially in their
criticism of the courts,
to the end that the
public confidence in the
due administration of
justice be upheld, and
the dignity and
usefulness of the
courts be maintained.
In re Collins, 81 Pac.
220.
4. In People ex rel Chicago Bar
Asso. v. Metzen, 123 N.E. 734, an
attorney, representing a woman
who had been granted a divorce,
attacked the judge who set aside
the decree on bill of review. He
wrote the judge a threatening
letter and gave the press the story

of a proposed libel suit against the

judge and others. The letter began:
Unless the record
in In re Petersen v.
Petersen is cleared up
so that my name is
protected from the
libel, lies, and perjury
committed in the cases
involved, I shall be
compelled to resort to
such drastic action as
the law allows and the
case warrants.
Further, he said: "However let me
assure you I do not intend to allow
such dastardly work to go
unchallenged," and said that he
was engaged in dealing with men
and not irresponsible political
manikins or appearances of men.
Ordering the attorney's
disbarment, the Supreme Court of
Illinois declared:
... Judges are not
exempt from just
criticism, and
whenever there is
proper ground for
serious complaint
against a judge, it is
the right and duty of a
lawyer to submit his
grievances to the
proper authorities, but
the public interest and
the administration of
the law demand that
the courts should have
the confidence and
respect of the people.
Unjust criticism,
insulting language, and
offensive conduct
toward the judges
personally by
attorneys, who are
officers of the court,
which tend to bring the
courts and the law into
disrepute and to
destroy public
confidence in their
integrity, cannot be
permitted. The letter
written to the judge
was plainly an attempt
to intimidate and
influence him in the
discharge of judicial
functions, and the
156

Legal Ethics

bringing of the
unauthorized suit,
together with the writeup in the Sunday
papers, was intended
and calculated to bring
the court into disrepute
with the public.
5. In a public speech, a Rhode
Island lawyer accused the courts of
the state of being influenced by
corruption and greed, saying that
the seats of the Supreme Court
were bartered. It does not appear
that the attorney had criticized any
of the opinions or decisions of the
Court. The lawyer was charged with
unprofessional conduct, and was
ordered suspended for a period of
two years. The Court said:
A calumny of that
character, if believed,
would tend to weaken
the authority of the
court against whose
members it was made,
bring its judgments into
contempt, undermine
its influence as an
unbiased arbiter of the
people's right, and
interfere with the
administration of
justice. ...
Because a man is a
member of the bar the
court will not, under
the guise of disciplinary
proceedings, deprive
him of any part of that
freedom of speech
which he possesses as
a citizen. The acts and
decisions of the courts
of this state, in cases
that have reached final
determination, are not
exempt from fair and
honest comment and
criticism. It is only
when an attorney
transcends the limits of
legitimate criticism that
he will be held
responsible for an
abuse of his liberty of
speech. We well
understand that an
independent bar, as
well as independent
court, is always a

vigilant defender of
civil rights. In Re Troy,
111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879,
an attorney was suspended for six
months for submitting to an
appellate court an affidavit
reflecting upon the judicial integrity
of the court from which the appeal
was taken. Such action, the Court
said, constitutes unprofessional
conduct justifying suspension from
practice, notwithstanding that he
fully retracted and withdrew the
statements, and asserted that the
affidavit was the result of an
impulse caused by what he
considered grave injustice. The
Court said:
We cannot shut our
eyes to the fact that
there is a growing habit
in the profession of
criticising the motives
and integrity of judicial
officers in the
discharge of their
duties, and thereby
reflecting on the
administration of
justice and creating the
impression that judicial
action is influenced by
corrupt or improper
motives. Every
attorney of this court,
as well as every other
citizen, has the right
and it is his duty, to
submit charges to the
authorities in whom is
vested the power to
remove judicial officers
for any conduct or act
of a judicial officer that
tends to show a
violation of his duties,
or would justify an
inference that he is
false to his trust, or has
improperly
administered the duties
devolved upon him;
and such charges to
the tribunal, if based
upon reasonable
inferences, will be
encouraged, and the
person making them
protected. ... While we
recognize the inherent
157

Legal Ethics

right of an attorney in a
case decided against
him, or the right of the
Public generally, to
criticise the decisions
of the courts, or the
reasons announced for
them, the habit of
criticising the motives
of judicial officers in
the performance of
their official duties,
when the proceeding is
not against the officers
whose acts or motives
are criticised, tends to
subvert the confidence
of the community in
the courts of justice
and in the
administration of
justice; and when such
charges are made by
officers of the courts,
who are bound by their
duty to protect the
administration of
justice, the attorney
making such charges is
guilty of professional
misconduct.
7. In In Re Mitchell, 71 So. 467, a
lawyer published this statement:
I accepted the decision
in this case, however,
with patience, barring
possible temporary
observations more or
less vituperative and
finally concluded, that,
as my clients were
foreigners, it might
have been expecting
too much to look for a
decision in their favor
against a widow
residing here.
The Supreme Court of Alabama
declared that:
... the expressions
above set out, not only
transcend the bounds
of propriety and
privileged criticism, but
are an unwarranted
attack, direct, or by
insinuation and
innuendo, upon the
motives and integrity
of this court, and make
out a prima facie case

of improper conduct
upon the part of a
lawyer who holds a
license from this court
and who is under oath
to demean himself with
all good fidelity to the
court as well as to his
client.
The charges, however, were
dismissed after the attorney
apologized to the Court.
8. In State ex rel. Dabney v.
Breckenridge, 258 Pac. 747, an
attorney published in a newspaper
an article in which he impugned
the motives of the court and its
members to try a case, charging
the court of having arbitrarily and
for a sinister purpose undertaken
to suspend the writ of habeas
corpus. The Court suspended the
respondent for 30 days, saying
that:
The privileges which
the law gives to
members of the bar is
one most subversive of
the public good, if the
conduct of such
members does not
measure up to the
requirements of the law
itself, as well as to the
ethics of the
profession. ...
The right of free speech
and free discussion as
to judicial
determination is of
prime importance
under our system and
ideals of government.
No right thinking man
would concede for a
moment that the best
interest to private
citizens, as well as to
public officials, whether
he labors in a judicial
capacity or otherwise,
would be served by
denying this right of
free speech to any
individual. But such
right does not have as
its corollary that
members of the bar
who are sworn to act
honestly and honorably
both with their client
158

Legal Ethics

and with the courts

where justice is
administered, if
administered at all,
could ever properly
serve their client or the
public good by
designedly misstating
facts or carelessly
asserting the law. Truth
and honesty of purpose
by members of the bar
in such discussion is
necessary. The health
of a municipality is
none the less impaired
by a polluted water
supply than is the
health of the thought of
a community toward
the judiciary by the
filthy wanton, and
malignant misuse of
members of the bar of
the confidence the
public, through its duly
established courts, has
reposed in them to deal
with the affairs of the
private individual, the
protection of whose
rights he lends his
strength and money to
maintain the judiciary.
For such conduct on
the part of the
members of the bar the
law itself demands
retribution not the
court.
9. In Bar Ass'n of San Francisco v.
Philbrook, 170 Pac. 440, the filing
of an affidavit by an attorney in a
pending action using in respect to
the several judges the terms
criminal corrupt, and wicked
conspiracies,," "criminal
confederates," "colossal and
confident insolence," "criminal
prosecution," "calculated brutality,"
"a corrupt deadfall," and similar
phrases, was considered conduct
unbecoming of a member of the
bar, and the name of the erring
lawyer was ordered stricken from
the roll of attorneys.
10. In State Board of Examiners v.
Hart, 116 N.W. 215, the erring
attorney claimed that greater
latitude should be allowed in case
of criticism of cases finally

adjudicated than in those pending.

This lawyer wrote a personal letter
to the Chief Justice of the Supreme
Court of Minnesota impugning both
the intelligence and the integrity of
the said Chief Justice and his
associates in the decisions of
certain appeals in which he had
been attorney for the defeated
litigants. The letters were published
in a newspaper. One of the letters
contained this paragraph:
You assigned it (the
property involved) to
one who has no better
right to it than the
burglar to his plunder.
It seems like robbing a
widow to reward a
fraud, with the court
acting as a fence, or
umpire, watchful and
vigilant that the widow
got no undue
advantage. ... The point
is this: Is a proper
motive for the
decisions discoverable,
short of assigning to
the court emasculated
intelligence, or a
constipation of morals
and faithlessness to
duty? If the state bar
association, or a
committee chosen from
its rank, or the faculty
of the University Law
School, aided by the
researches of its
hundreds of bright,
active students, or if
any member of the
court, or any other
person, can formulate a
statement of a correct
motive for the decision,
which shall not require
fumigation before it is
stated, and quarantine
after it is made, it will
gratify every rightminded citizen of the
state to read it.
The Supreme Court of Minnesota,
in ordering the suspension of the
attorney for six months, delivered
its opinion as follows:
The question remains
whether the accused
was guilty of
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Legal Ethics

professional
misconduct in sending
to the Chief Justice the
letter addressed to
him. This was done, as
we have found, for the
very purpose of
insulting him and the
other justices of this
court; and the insult
was so directed to the
Chief Justice personally
because of acts done
by him and his
associates in their
official capacity. Such a
communication, so
made, could never
subserve any good
purpose. Its only effect
in any case would be to
gratify the spite of an
angry attorney and
humiliate the officers
so assailed. It would
not and could not ever
enlighten the public in
regard to their judicial
capacity or integrity.
Nor was it an exercise
by the accused of any
constitutional right, or
of any privilege which
any reputable attorney,
uninfluenced by
passion, could ever
have any occasion or
desire to assert. No
judicial officer, with due
regard to his position,
can resent such an
insult otherwise than
by methods sanctioned
by law; and for any
words, oral or written,
however abusive, vile,
or indecent, addressed
secretly to the judge
alone, he can have no
redress in any action
triable by a jury. "The
sending of a libelous
communication or
libelous matter to the
person defamed does
not constitute an
actionable publication."
18 Am. & Eng. Enc. Law
(2d Ed.) p. 1017. In
these respects the
sending by the accused

of this letter to the

Chief Justice was wholly
different from his other
acts charged in the
accusation, and, as we
have said, wholly
different principles are
applicable thereto.
The conduct of the
accused was in every
way discreditable; but
so far as he exercised
the rights of a citizen,
guaranteed by the
Constitution and
sanctioned by
considerations of public
policy, to which
reference has been
made, he was immune,
as we hold, from the
penalty here sought to
be enforced. To that
extent his rights as a
citizen were paramount
to the obligation which
he had assumed as an
officer of this court.
When, however he
proceeded and thus
assailed the Chief
Justice personally, he
exercised no right
which the court can
recognize, but, on the
contrary, willfully
violated his obligation
to maintain the respect
due to courts and
judicial officers. "This
obligation is not
discharged by merely
observing the rules of
courteous demeanor in
open court, but it
includes abstaining out
of court from all
insulting language and
offensive conduct
toward the judges
personally for their
official acts." Bradley v.
Fisher, 13 Wall. (U.S.)
355, 20 L. Ed. 646. And
there appears to be no
distinction, as regards
the principle involved,
between the indignity
of an assault by an
attorney upon a judge,
induced by his official
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Legal Ethics

act, and a personal

insult for like cause by
written or spoken
words addressed to the
judge in his chambers
or at his home or
elsewhere. Either act
constitutes misconduct
wholly different from
criticism of judicial acts
addressed or spoken to
others. The distinction
made is, we think
entirely logical and well
sustained by authority.
It was recognized in Ex
parte McLeod supra.
While the court in that
case, as has been
shown, fully sustained
the right of a citizen to
criticise rulings of the
court in actions which
are ended, it held that
one might be
summarily punished for
assaulting a judicial
officer, in that case a
commissioner of the
court, for his rulings in
a cause wholly
concluded. "Is it in the
power of any person,"
said the court, "by
insulting or assaulting
the judge because of
official acts, if only the
assailant restrains his
passion until the judge
leaves the building, to
compel the judge to
forfeit either his own
self-respect to the
regard of the people by
tame submission to the
indignity, or else set in
his own person the evil
example of punishing
the insult by taking the
law in his own
hands? ... No highminded, manly man
would hold judicial
office under such
conditions."
That a communication
such as this, addressed
to the Judge personally,
constitutes professional
delinquency for which a
professional

punishment may be
imposed, has been
directly decided. "An
attorney who, after
being defeated in a
case, wrote a personal
letter to the trial
justice, complaining of
his conduct and
reflecting upon his
integrity as a justice, is
guilty of misconduct
and will be disciplined
by the court." Matter of
Manheim 133 App. Div.
136, 99 N.Y. Supp. 87
The same is held in Re
Griffin (City Ct.) 1 N.Y. 7
and in Re Wilkes (City
Ct.) 3 N.Y. In the latter
case it appeared that
the accused attorney
had addressed a sealed
letter to a justice of the
City Court of New York,
in which it was stated,
in reference to his
decision: "It is not law;
neither is it common
sense. The result is I
have been robbed of
80." And it was decided
that, while such
conduct was not a
contempt under the
state, the matter
should be "called to the
attention of the
Supreme Court, which
has power to discipline
the attorney." "If," says
the court, "counsel
learned in the law are
permitted by writings
leveled at the heads of
judges, to charge them
with ignorance, with
unjust rulings, and with
robbery, either as
principals or
accessories, it will not
be long before the
general public may feel
that they may redress
their fancied
grievances in like
manner, and thus the
lot of a judge will be
anything but a happy
one, and the
administration of
161

Legal Ethics

justice will fall into bad

repute."
The recent case
of Johnson v.
State (Ala.) 44 South.
671, was in this respect
much the same as the
case at bar. The
accused, an attorney at
law, wrote and mailed
a letter to the circuit
judge, which the latter
received by due course
of mail, at his home,
while not holding court,
and which referred in
insulting terms to the
conduct of the judge in
a cause wherein the
accused had been one
of the attorneys. For
this it was held that the
attorney was rightly
disbarred in having
"willfully failed to
maintain respect due to
him [the judge] as a
judicial officer, and
thereby breached his
oath as an attorney." As
recognizing the same
principle, and in
support of its
application to the facts
of this case, we cite the
following: Ex
parte Bradley, 7 Wall
(U.S.) 364, 19 L. Ed.
214; Beene v. State, 22
Ark.
149; Commonwealth v.
Dandridge, 2 Va. Cas.
408; People v. Green, 7
Colo 237, 244, 3 Pac.
65, 374, 49 Am. Rep.
351; Smith's Appeal,
179 Pa. 14, 36 Atl. 134;
Scouten's Appeal, 186
Pa. 270, Atl. 481.
Our conclusion is that
the charges against the
accused have been so
far sustained as to
make it our duty to
impose such a penalty
as may be sufficient
lesson to him and a
suitable warning to
others. ...
11. In Cobb v. United States, 172 F.
641, the court affirmed a lawyer's

suspension for 18 months for

publishing a letter in a newspaper
in which he accused a judge of
being under the sinister influence
of a gang that had paralyzed him
for two years.
12. In In Re Graves, 221 Pac. 411,
the court held that an attorney's
unjustifiable attack against the
official acts and decisions of a
judge constitutes "moral
turpitude." There, the attorney was
disbarred for criticising not only the
judge, but his decisions in general
claiming that the judge was
dishonest in reaching his decisions
and unfair in his general conduct of
a case.
13. In In Re Doss, 12 N.E. 2d 659,
an attorney published newspaper
articles after the trial of cases,
criticising the court in intemperate
language. The invariable effect of
this sort of propaganda, said the
court, is to breed disrespect for
courts and bring the legal
profession into disrepute with the
public, for which reason the lawyer
was disbarred.
14. In State v. Grimes, 354 Pac. 2d
108, an attorney, dissatisfied with
the loss of a case, prepared over a
period of years vicious attacks on
jurists. The Oklahoma Supreme
Court declared that his acts
involved such gross moral
turpitude as to make him unfit as a
member of the bar. His disbarment
was ordered, even though he
expressed an intention to resign
from the bar.
The teaching derived from the
above disquisition and impressive
affluence of judicial
pronouncements is indubitable:
Post-litigation utterances or
publications, made by lawyers,
critical of the courts and their
judicial actuations, whether
amounting to a crime or not, which
transcend the permissible bounds
of fair comment and legitimate
criticism and thereby tend to bring
them into disrepute or to subvert
public confidence in their integrity
and in the orderly administration of
justice, constitute grave
professional misconduct which may
be visited with disbarment or other
lesser appropriate disciplinary
sanctions by the Supreme Court in
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Legal Ethics

the exercise of the prerogatives

inherent in it as the duly
constituted guardian of the morals
and ethics of the legal fraternity.
Of course, rarely have we wielded
our disciplinary powers in the face
of unwarranted outbursts of
counsel such as those catalogued
in the above-cited jurisprudence.
Cases of comparable nature have
generally been disposed of under
the power of courts to punish for
contempt which, although resting
on different bases and calculated
to attain a different end,
nevertheless illustrates that
universal abhorrence of such
condemnable practices.
A perusal of the more
representative of these instances
may afford enlightenment.
1. In Salcedo vs. Hernandez, 61
Phil. 724, where counsel branded
the denial of his motion for
reconsideration as "absolutely
erroneous and constituting an
outrage to the rigths of the
petitioner Felipe Salcedo and a
mockery of the popular will
expressed at the polls," this Court,
although conceding that
It is right and plausible
that an attorney, in
defending the cause
and rights of his client,
should do so with all
the fervor and energy
of which he is capable,
but it is not, and never
will be so for him to
exercise said right by
resorting to
intimidation or
proceeding without the
propriety and respect
which the dignity of the
courts requires. The
reason for this is that
respect for the courts
guarantees the stability
of their institution.
Without such guaranty,
said institution would
be resting on a very
shaky foundation,
found counsel guilty of contempt
inasmuch as, in its opinion, the
statements made disclosed
... an inexcusable
disrespect of the
authority of the court

and an intentional
contempt of its dignity,
because the court is
thereby charged with
no less than having
proceeded in utter
disregard of the laws,
the rights to the
parties, and 'of the
untoward
consequences, or with
having abused its
power and mocked and
flouted the rights of
Attorney Vicente J.
Francisco's client ... .
2. In In re Sotto, 82 Phil. 595,
counsel, a senator and the author
of the Press Freedom Law, reaching
to, the imprisonment for contempt
of one Angel Parazo, who, invoking
said law, refused to divulge the
source of a news item carried in his
paper, caused to be published in i
local newspaper a statement
expressing his regret "that our High
Tribunal has not only erroneously
interpreted said law, but it is once
more putting in evidence the
incompetency or narrow
mindedness of the majority of its
members," and his belief that "In
the wake of so many blunders and
injustices deliberately committed
during these last years, ... the only
remedy to put an end to go much
evil, is to change the members of
the Supreme Court," which tribunal
he denounced as "a constant peril
to liberty and democracy" and "a
far cry from the impregnable
bulwark of justice of those
memorable times of Cayetano
Arellano, Victorino Mapa, Manuel
Araullo and other learned jurists
who were the honor and glory of
the Philippine Judiciary." He there
also announced that one of the first
measures he would introduce in
then forthcoming session of
Congress would have for its object
the complete reorganization of the
Supreme Court. Finding him in
contempt, despite his avowals of
good faith and his invocation of the
guarantee of free speech, this
Court declared:
But in the abovequoted written
statement which he
caused to be published
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Legal Ethics

in the press, the

respondent does not
merely criticize or
comment on the
decision of the Parazo
case, which was then
and still is pending
consideration by this
Court upon petition of
Angel Parazo. He not
only intends to
intimidate the
members of this Court
with the presentation
of a bill in the next
Congress, of which he
is one of the members,
reorganizing the
Supreme Court and
reducing the number of
Justices from eleven, so
as to change the
members of this Court
which decided the
Parazo case, who
according to his
statement, are
incompetent and
narrow minded, in
order to influence the
final decision of said
case by this Court, and
thus embarrass or
obstruct the
administration of
justice. But the
respondent also
attacks the honesty
and integrity of this
Court for the apparent
purpose of bringing the
Justices of this Court
into disrepute and
degrading the
administration. of
justice ... .
To hurl the false charge
that this Court has
been for the last years
committing deliberately
so many blunders and
injustices, that is to
say, that it has been
deciding in favor of
Que party knowing that
the law and justice is
on the part of the
adverse party and not
on the one in whose
favor the decision was
rendered, in many

cases decided during

the last years, would
tend necessarily to
undermine the
confidence of the
people in the honesty
and integrity of the
members of this Court,
and consequently to
lower ,or degrade the
administration of
justice by this Court.
The Supreme Court of
the Philippines is,
under the Constitution,
the last bulwark to
which the Filipino
people may repair to
obtain relief for their
grievances or
protection of their
rights when these are
trampled upon, and if
the people lose their
confidence in the
honesty and integrity
of the members of this
Court and believe that
they cannot expect
justice therefrom, they
might be driven to take
the law into their own
hands, and disorder
and perhaps chaos
might be the result. As
a member of the bar
and an officer of the
courts, Atty. Vicente
Sotto, like any other, is
in duty bound to
uphold the dignity and
authority of this Court,
to which he owes
fidelity according to the
oath he has taken as
such attorney, and not
to promote distrust in
the administration of
justice. Respect to the
courts guarantees the
stability of other
institutions, which
without such guaranty
would be resting on a
very shaky foundation.
Significantly, too, the Court therein
hastened to emphasize that
... an attorney as an
officer of the court is
under special
obligation to be
164

Legal Ethics

respectful in his
conduct and
communication to the
courts; he may be
removed from office or
stricken from the roll of
attorneys as being
guilty of flagrant
misconduct (17 L.R.A.
[N.S.], 586, 594.)
3. In Rheem of the Philippines vs.
Ferrer: In re Proceedings against
Alfonso Ponce Enrile, et al., supra,
where counsel charged this Court
with having "repeatedly fallen" into
,the pitfall of blindly adhering to its
previous "erroneous"
pronouncements, "in disregard of
the law on jurisdiction" of the Court
of Industrial Relations, our
condemnation of counsel's
misconduct was unequivocal.
Articulating the sentiments of the
Court, Mr. Justice Sanchez stressed:
As we look back at the
language (heretofore
quoted) employed in
the motion for
reconsideration,
implications there are
which inescapably
arrest attention. It
speaks of one pitfall
into which this Court
has repeatedly
fallen whenever the
jurisdiction of the Court
of Industrial Relations
comes into question.
That pitfall is the
tendency of this Court
to rely on its own
pronouncements in
disregard of the law on
jurisdiction. It makes a
sweeping charge that
the decisions of this
Court, blindly adhere to
earlier rulings without
as much as making any
reference to and
analysis of the
pertinent statute
governing the
jurisdiction of the
industrial court. The
plain import of all these
is that this Court is so
patently inept that in
determining the
jurisdiction of the

industrial court, it has

committed error and
continuously repeated
that error to the point
of perpetuation. It
pictures this Court as
one which refuses to
hew to the line drawn
by the law on
jurisdictional
boundaries. Implicit in
the quoted statements
is that the
pronouncements of this
Court on the
jurisdiction of the
industrial court are not
entitled to respect.
Those statements
detract much from the
dignity of and respect
due this Court. They
bring into question the
capability of the
members and some
former members of this
Court to render justice.
The second paragraph
quoted yields a tone of
sarcasm which counsel
labelled as "so called"
the "rule against
splitting of jurisdiction."
Similar thoughts and sentiments
have been expressed in other
cases 18 which, in the interest of
brevity, need not now be reviewed
in detail.
Of course, a common denominator
underlies the aforecited cases all
of them involved contumacious
statements made in pleadings filed
pending litigation. So that, in line
with the doctrinal rule that the
protective mantle of contempt may
ordinarily be invoked only against
scurrilous remarks or malicious
innuendoes while a court mulls
over a pending case and not after
the conclusion thereof, 19 Atty.
Almacen would now seek to
sidestep the thrust of a contempt
charge by his studied emphasis
that the remarks for which he is
now called upon to account were
made only after this Court had
written finis to his appeal. This is of
no moment.
The rule that bars contempt after a
judicial proceeding has terminated,
has lost much of its vitality. For
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Legal Ethics

sometime, this was the prevailing

view in this jurisdiction. The first
stir for a modification thereof,
however, came when, in People vs.
Alarcon, 20 the then Chief Justice
Manuel V. Moran dissented with the
holding of the majority, speaking
thru Justice Jose P. Laurel, which
upheld the rule above-adverted to.
A complete disengagement from
the settled rule was later to be
made in In re Brillantes, 21 a
contempt proceeding, where the
editor of the Manila Guardian was
adjudged in contempt for
publishing an editorial which
asserted that the 1944 Bar
Examinations were conducted in a
farcical manner after the question
of the validity of the said
examinations had been resolved
and the case closed. Virtually, this
was an adoption of the view
expressed by Chief Justice Moran in
his dissent in Alarcon to the effect
that them may still be contempt by
publication even after a case has
been terminated. Said Chief Justice
Moran in Alarcon:
A publication which
tends to impede,
obstruct, embarrass or
influence the courts in
administering justice in
a pending suit or
proceeding, constitutes
criminal contempt
which is 'summarily
punishable by courts. A
publication which tends
to degrade the courts
and to destroy public
confidence in them or
that which tends to
bring them in any way
into disrepute,
constitutes likewise
criminal contempt, and
is equally punishable
by courts. What is
sought, in the first kind
of contempt, to be
shielded against the
influence of newspaper
comments, is the allimportant duty of the
courts to administer
justice in the decision
of a pending case. In
the second kind of
contempt, the punitive

hand of justice is
extended to vindicate
the courts from any act
or conduct calculated
to bring them into
disfavor or to destroy
public confidence in
them. In the first there
is no contempt where
there is no action
pending, as there is no
decision which might in
any way be influenced
by the newspaper
publication. In the
second, the contempt
exists, with or without
a pending case, as
what is sought to be
protected is the court
itself and its dignity.
Courts would lose their
utility if public
confidence in them is
destroyed.
Accordingly, no comfort is afforded
Atty. Almacen by the circumstance
that his statements and actuations
now under consideration were
made only after the judgment in
his client's appeal had attained
finality. He could as much be liable
for contempt therefor as if it had
been perpetrated during the
pendency of the said appeal.
More than this, however,
consideration of whether or not he
could be held liable for contempt
for such post litigation utterances
and actuations, is here immaterial.
By the tenor of our Resolution of
November 17, 1967, we have
confronted the situation here
presented solely in so far as it
concerns Atty. Almacen's
professional identity, his sworn
duty as a lawyer and his fitness as
an officer of this Court, in the
exercise of the disciplinary power
the morals inherent in our authority
and duty to safeguard and ethics of
the legal profession and to
preserve its ranks from the
intrusions of unprincipled and
unworthy disciples of the noblest of
callings. In this inquiry, the
pendency or non-pendency of a
case in court is altogether of no
consequence. The sole objective of
this proceeding is to preserve the
purity of the legal profession, by
166

Legal Ethics

removing or suspending a member

whose misconduct has proved
himself unfit to continue to be
entrusted with the duties and
responsibilities belonging to the
office of an attorney.
Undoubtedly, this is well within our
authority to do. By constitutional
mandate, 22 our is the solemn duty,
amongst others, to determine the
rules for admission to the practice
of law. Inherent in this prerogative
is the corresponding authority to
discipline and exclude from the
practice of law those who have
proved themselves unworthy of
continued membership in the Bar.
Thus
The power to discipline
attorneys, who are
officers of the court, is
an inherent and
incidental power in
courts of record, and
one which is essential
to an orderly discharge
of judicial functions. To
deny its existence is
equivalent to a
declaration that the
conduct of attorneys
towards courts and
clients is not subject to
restraint. Such a view
is without support in
any respectable
authority, and cannot
be tolerated. Any court
having the right to
admit attorneys to
practice and in this
state that power is
vested in this court-has
the inherent right, in
the exercise of a sound
judicial discretion to
exclude them from
practice. 23
This, because the admission of a
lawyer to the practice of law is a
representation to all that he is
worthy of their confidence and
respect. So much so that
... whenever it is made
to appear to the court
that an attorney is no
longer worthy of the
trust and confidence of
the public and of the
courts, it becomes, not
only the right, but the

duty, of the court which

made him one of its
officers, and gave him
the privilege of
ministering within its
bar, to withdraw the
privilege. Therefore it is
almost universally held
that both the admission
and disbarment of
attorneys are judicial
acts, and that one is
admitted to the bar and
exercises his functions
as an attorney, not as a
matter of right, but as
a privilege conditioned
on his own behavior
and the exercise of a
just and sound judicial
discretion. 24
Indeed, in this jurisdiction, that
power to remove or suspend has
risen above being a mere inherent
or incidental power. It has been
elevated to an express mandate by
the Rules of Court. 25
Our authority and duty in the
premises being unmistakable, we
now proceed to make an
assessment of whether or not the
utterances and actuations of Atty.
Almacen here in question are
properly the object of disciplinary
sanctions.
The proffered surrender of his
lawyer's certificate is, of course,
purely potestative on Atty.
Almacen's part. Unorthodox though
it may seem, no statute, no law
stands in its way. Beyond making
the mere offer, however, he went
farther. In haughty and coarse
language, he actually availed of the
said move as a vehicle for his
vicious tirade against this Court.
The integrated entirety of his
petition bristles with vile insults all
calculated to drive home his
contempt for and disrespect to the
Court and its members. Picturing
his client as "a sacrificial victim at
the altar of hypocrisy," he
categorically denounces the justice
administered by this Court to be
not only blind "but also deaf and
dumb." With unmitigated acerbity,
he virtually makes this Court and
its members with verbal talons,
imputing to the Court the
perpetration of "silent injustices"
167

Legal Ethics

and "short-cut justice" while at the

same time branding its members
as "calloused to pleas of justice."
And, true to his announced threat
to argue the cause of his client "in
the people's forum," he caused the
publication in the papers of an
account of his actuations, in a
calculated effort ;to startle the
public, stir up public indignation
and disrespect toward the Court.
Called upon to make an
explanation, he expressed no
regret, offered no apology. Instead,
with characteristic arrogance, he
rehashed and reiterated his
vituperative attacks and, alluding
to the Scriptures, virtually tarred
and feathered the Court and its
members as inveterate hypocrites
incapable of administering justice
and unworthy to impose
disciplinary sanctions upon him.
The virulence so blatantly evident
in Atty. Almacen's petition, answer
and oral argumentation speaks for
itself. The vicious language used
and the scurrilous innuendoes they
carried far transcend the
permissible bounds of legitimate
criticism. They could never serve
any purpose but to gratify the spite
of an irate attorney, attract public
attention to himself and, more
important of all, bring ;this Court
and its members into disrepute and
destroy public confidence in them
to the detriment of the orderly
administration of justice. Odium of
this character and texture presents
no redeeming feature, and
completely negates any pretense
of passionate commitment to the
truth. It is not a whit less than a
classic example of gross
misconduct, gross violation of the
lawyer's oath and gross
transgression of the Canons of
Legal Ethics. As such, it cannot be
allowed to go unrebuked. The way
for the exertion of our disciplinary
powers is thus laid clear, and the
need therefor is unavoidable.
We must once more stress our
explicit disclaimer of immunity
from criticism. Like any other
Government entity in a viable
democracy, the Court is not, and
should not be, above criticism. But
a critique of the Court must be
intelligent and discriminating,

fitting to its high function as the

court of last resort. And more than
this, valid and healthy criticism is
by no means synonymous to
obloquy, and requires detachment
and disinterestedness, real
qualities approached only through
constant striving to attain them.
Any criticism of the Court must,
possess the quality of judiciousness
and must be informed -by
perspective and infused by
philosophy. 26
It is not accurate to say, nor is it an
obstacle to the exercise of our
authority in ;the premises, that, as
Atty. Almacen would have appear,
the members of the Court are the
"complainants, prosecutors and
judges" all rolled up into one in this
instance. This is an utter
misapprehension, if not a total
distortion, not only of the nature of
the proceeding at hand but also of
our role therein.
Accent should be laid on the fact
that disciplinary proceedings like
the present are sui generis. Neither
purely civil nor purely criminal, this
proceeding is not and does not
involve a trial of an action or a
suit, but is rather an investigation
by the Court into the conduct of its
officers. 27 Not being intended to.
inflict punishment, it is in no sense
a criminal prosecution. Accordingly,
there is neither a plaintiff nor a
prosecutor therein It may be
initiated by the Court motu
proprio. 28 Public interest is its
primary objective, and the real
question for determination is
whether or not the attorney is still
a fit person to be allowed the
privileges as such. Hence, in the
exercise of its disciplinary powers,
the Court merely calls upon a
member of the Bar to account for
his actuations as an officer of the
Court with the end in view of
preserving the purity of the legal
profession and the proper and
honest administration of justice by
purging the profession of members
who by their misconduct have
proved themselves no longer
worthy to be entrusted with the
duties and responsibilities
pertaining to the office of an
attorney. 29 In such posture, there

168

Legal Ethics

can thus be no occasion to speak of

a complainant or a prosecutor.
Undeniably, the members of the
Court are, to a certain degree,
aggrieved parties. Any tirade
against the Court as a body is
necessarily and inextricably as
much so against the individual
members thereof. But in the
exercise of its disciplinary powers,
the Court acts as an entity
separate and distinct from the
individual personalities of its
members. Consistently with the
intrinsic nature of a collegiate
court, the individual members act
not as such individuals but. only as
a duly constituted court. Their
distinct individualities are lost in
the majesty of their office. 30 So
that, in a very real sense, if there
be any complainant in the case at
bar, it can only be the Court itself,
not the individual members thereof
as well as the people themselves
whose rights, fortunes and
properties, nay, even lives, would
be placed at grave hazard should
the administration of justice be
threatened by the retention in the
Bar of men unfit to discharge the
solemn responsibilities of
membership in the legal fraternity.
Finally, the power to exclude
persons from the practice of law is
but a necessary incident of the
power to admit persons to said
practice. By constitutional precept,
this power is vested exclusively in
this Court. This duty it cannot
abdicate just as much as it cannot
unilaterally renounce jurisdiction
legally invested upon it. 31 So that
even if it be conceded that the
members collectively are in a
sense the aggrieved parties, that
fact alone does not and cannot
disqualify them from the exercise
of that power because public policy
demands that they., acting as a
Court, exercise the power in all
cases which call for disciplinary
action. The present is such a case.
In the end, the imagined anomaly
of the merger in one entity of the
personalities of complainant,
prosecutor and judge is absolutely
inexistent.
Last to engage our attention is the
nature and extent of the sanctions
that may be visited upon Atty.

Almacen for his transgressions. As

marked out by the Rules of Court,
these may range from mere
suspension to total removal or
disbarment. 32 The discretion to
assess under the circumstances
the imposable sanction is, of
course, primarily addressed to the
sound discretion of the Court
which, being neither arbitrary and
despotic nor motivated by personal
animosity or prejudice, should ever
be controlled by the imperative
need that the purity and
independence of the Bar be
scrupulously guarded and the
dignity of and respect due to the
Court be zealously maintained.
That the misconduct committed by
Atty. Almacen is of considerable
gravity cannot be overemphasized.
However, heeding the stern
injunction that disbarment should
never be decreed where a lesser
sanction would accomplish the end
desired, and believing that it may
not perhaps be futile to hope that
in the sober light of some future
day, Atty. Almacen will realize that
abrasive language never fails to do
disservice to an advocate and that
in every effervescence of candor
there is ample room for the added
glow of respect, it is our view that
suspension will suffice under the
circumstances. His demonstrated
persistence in his misconduct by
neither manifesting repentance nor
offering apology therefor leave us
no way of determining how long
that suspension should last and,
accordingly, we are impelled to
decree that the same should be
indefinite. This, we are empowered
to do not alone because
jurisprudence grants us discretion
on the matter 33 but also because,
even without the comforting
support of precedent, it is obvious
that if we have authority to
completely exclude a person from
the practice of law, there is no
reason why indefinite suspension,
which is lesser in degree and
effect, can be regarded as falling
outside of the compass of that
authority. The merit of this choice is
best shown by the fact that it will
then be left to Atty. Almacen to
determine for himself how long or
how short that suspension shall
169

Legal Ethics

last. For, at any time after the

suspension becomes effective he
may prove to this Court that he is
once again fit to resume the
practice of law.
ACCORDINGLY, IT IS THE SENSE of
the Court that Atty. Vicente Raul
Almacen be, as he is hereby,
suspended from the practice of law
until further orders, the suspension
to take effect immediately.
Let copies of this resolution. be
furnished the Secretary of Justice,
the Solicitor General and the Court
of Appeals for their information and
guidance.

170

Legal Ethics

RE : SUSPENSION OF
ATTY. ADM. CASE No. 7006
ROGELIO Z. BAGABUYO,
FORMER
SENIOR STATE PROSECUTOR
This administrative case
stemmed from the events of the
proceedings in Crim. Case No.
5144, entitled People v. Luis
Bucalon Plaza, heard before the
sala of Presiding Judge Jose Manuel
P. Tan, Regional Trial Court (RTC)
of Surigao City, Branch 29.
Crim. Case No. 5144 was
originally raffled to the sala of
Judge Floripinas C. Buyser, RTC of
Surigao City, Branch 30. In an
Order dated March 14, 2002, Judge
Buyser denied the Demurrer to
the Evidence of the accused,
declaring that the evidence thus
presented by the prosecution was
sufficient to prove the crime of
homicide and not the charge
of murder. Consequently, the
counsel for the defense filed a
Motion to Fix the Amount of Bail
Bond. Respondent Atty. Rogelio Z.
Bagabuyo, then Senior State
Prosecutor and the deputized
prosecutor of the case, objected
thereto mainly on the
ground that the original charge
of murder, punishable
with reclusion perpetua, was not
subject to bail under Sec. 4, Rule
114 of the Rules of Court.[1]
In an Order dated August 30,
2002, Judge Buyser inhibited
himself from further trying the case
because of the harsh insinuation of
Senior Prosecutor Rogelio Z.
Bagabuyo that he lacks the cold
neutrality of an impartial
magistrate, by allegedly suggesting
the filing of the motion to fix the
amount of bail bond by counsel for
the accused.
[2]

The case was transferred to

Branch 29 of the RTC of Surigao
City, presided by Judge Jose Manuel
P. Tan. In an Order dated November
12, 2002, Judge Tan favorably
resolved the Motion to Fix the
Amount of Bail Bond, and fixed the
amount of the bond at P40,000.

Respondent filed a motion for

reconsideration of the Order
dated November 12, 2002, which
motion was denied for lack of merit
in an Order dated February 10,
2003. In October, 2003, respondent
appealed from the Orders
dated November 12,
2002 and February 10, 2003, to the
Court of Appeals (CA).
Instead of availing himself
only of judicial remedies,
respondent caused the publication
of an article regarding the Order
granting bail to the accused in
the August 18, 2003 issue of the
Mindanao Gold Star Daily. The
article, entitled Senior prosecutor
lambasts Surigao judge for
allowing murder suspect to bail
out, reads:
SENIOR state
prosecutor has lashed
at a judge
in Surigao City for
allowing a murder
suspect to go out on
bail.
Senior state
prosecutor Rogelio
Bagabuyo lambasted
Judge Manuel Tan of
the Regional Trial Court
(RTC) Branch 29 based
in Surigao City for
ruling on a motion that
sought a bailbond
for Luis Plaza who
stands charged with
murdering a
policeman . . . .
Plaza reportedly
posted a P40-thousand
bail bond.
Bagabuyo argued
that the crime of
murder is a nonbailable offense. But
Bagabuyo admitted
that a judge could still
opt to allow a murder
suspect to bail out in
cases when the
evidence of the
prosecution is weak.

171

Legal Ethics

But in this
murder case, Bagabuyo
said the judge who
previously handled it,
Judge
F[lori]pinas B[uy]ser,
described the evidence
to be strong. B[uy]ser
inhibited from the case
for an unclear reason.
xxx
Bagabuyo said he
would contest Tans
decision before the
Court of Appeals and
would file criminal and
administrative charges
of certiorari against the
judge.
Bagabuyuo said
he was not afraid of
being cited in contempt
by Judge Tan.
This is the only
way that the public
would know that there
are judges there who
are displaying judicial
arrogance. he said.[3]
In an Order dated August 21,
2003, the RTC of Surigao City,
Branch 29, directed respondent
and the writer of the article, Mark
Francisco of the Mindanao Gold
Star Daily, to appear in court on
September 20, 2003 to explain why
they should not be cited for indirect
contempt of court for the
publication of the article which
degraded the court and its
presiding judge with its lies and
misrepresentation.
The said Order stated that
contrary to the statements in
the article, Judge Buyser described
the evidence for the prosecution as
not strong, but sufficient to prove
the guilt of the accused only for
homicide. Moreover, it was not true
that Judge Buyser inhibited himself
from the case for an unclear
reason. Judge Buyser, in an Order
dated August 30, 2002, declared in
open court in the presence of
respondent that he was inhibiting

himself from the case due to the

harsh insinuation of respondent
that he lacked the cold neutrality of
an impartial judge.
On the scheduled hearing of
the contempt charge, Mark
Francisco admitted that the
Mindanao Gold Star Daily caused
the publication of the article. He
disclosed that respondent, in a
press conference, stated that the
crime of murder is non-bailable.
When asked by the trial court why
he printed such lies, Mr. Francisco
answered that his only source was
respondent.[4] Mr. Francisco clarified
that in the statement alleging that
Judge Buyser inhibited himself from
the case for an unclear reason, the
phrase for an unclear reason, was
added by the newspapers
Executive Editor Herby S. Gomez.[5]
Respondent admitted that he
caused the holding of the press
conference, but refused to answer
whether he made the statements
in the article until after he shall
have filed a motion to dismiss. For
his refusal to answer, the trial court
declared him in contempt of court
pursuant to Sec. 3, Rule 71 of the
Rules of Court.[6] The Courts Order
dated September 30, 2003 reads:
ORDER
Mr. Mark
Francisco for publishing
this article which is a
lie clothed in half truth
to give it a semblance
of truth is hereby
ordered to pay a fine
of P10,000. Prosecutor
Bagabuyo, for
obstinately refusing to
explain why he should
not be cited for
contempt and
admitting that the
article published in the
Mindanao Gold Star
Daily on August 18,
2003 and quoted in the
Order of this Court
dated August 21, 2003
which is contemptuous
was caused by him to
be published, is hereby
adjudged to have
172

Legal Ethics

committed indirect
contempt of Court
pursuant to Section 3
of Rule 71 of the Rules
of Court and he is
hereby ordered to
suffer the penalty of 30
days in jail. The BJMP is
hereby ordered to
arrest Prosecutor
Rogelio Z. Bagabuyo if
he does not put up a
bond of P100,000.00.
SO ORDERD.[7]
Respondent posted the
required bond and was released
from the custody of the law. He
appealed the indirect contempt
order to the CA.
Despite the citation of
indirect contempt, respondent
presented himself to the media for
interviews in Radio Station DXKS,
and again attacked the integrity of
Judge Tan and the trial courts
disposition in the proceedings of
Crim. Case No. 5144.
In an Order dated October
20, 2003, the RTC of Surigao City,
Branch 29, required respondent to
explain and to show cause within
five days from receipt thereof why
he should not be held in contempt
for his media interviews that
degraded the court and the
presiding judge, and why he should
not be suspended from the practice
of law for violating the Code of
Professional Responsibility,
specifically Rule 11.05 of Canon
11[8] and Rule 13.02 of Canon 13.[9]
In the Order, the trial court
stated that respondent was
interviewed by Jun Clergio, and
that the interview was repeatedly
aired on September 30, 2003 and
in his news program between 6:00
and 8:00 a.m. on October 1,
2003. He was also interviewed by
Tony Consing on October 1 and 2,
2003, between 8:00 and 9:00 a.m.
in his radio program. In those radio
interviews, respondent allegedly
called Judge Tan a judge who does
not know the law, a liar, and a

dictator who does not accord due

process to the people.
The hearing for the second
contempt charge was set
on December 4, 2003.
On November, 20, 2003,
respondent filed an Urgent Motion
for Extension of Time to File Answer
to Contempt alleging that he was
saddled with work of equal
importance and needed ample time
to answer the same. He also
prayed for a bill of particulars in
order to properly prepare for his
defense.
In an Order dated November
20, 2003, the trial court denied the
motion. It stated that a bill of
particulars is not applicable in
contempt proceedings, and that
respondents actions and
statements are detailed in the
Order of October 20, 2003.
On the scheduled hearing
of December 4, 2003 respondent
neither appeared in court nor
informed the court of his
absence. The trial court
issued an Order dated December 4,
2003 cancelling the hearing to give
Prosecutor Bagabuyo all the
chances he asks for, and
ordered him to appear on January
12, 2004 to explain in writing or
orally why he should not be cited in
contempt of court pursuant to the
facts stated in the Order dated
October 20, 2003. However,
respondent did not appear in the
scheduled hearing of January 12,
2004.
On January 15, 2004, the trial
court received respondents Answer
dated January 8, 2004. Respondent
denied the charge that he sought
to be interviewed by radio station
DXKS. He, however, stated that
right after the hearing
of September 30, 2003, he was
approached by someone who
asked him to comment on the
Order issued in open court, and
that his comment does not fall
within the concept of indirect
contempt of court. He also
admitted that he was interviewed
173

Legal Ethics

by his friend, Tony Consing, at the

latters instance. He justified his
response during the interview as a
simple exercise of his constitutional
right of freedom of speech and that
it was not meant to offend or
malign, and was without malice.
On February 8, 2004, the trial
court issued an Order, the
dispositive portion of which reads:
WHEREFORE,
finding preponderant
evidence that
Prosecutor Bagabuyo
has grossly violated the
Canons of the legal
profession and [is]
guilty of grave
professional
misconduct, rendering
him unfit to continue to
be entrusted with the
duties and
responsibilities
belonging to the office
of an attorney, he is
hereby SUSPENDED
from the practice of
law.
Likewise, he is
also found guilty of
indirect contempt of
court, for which he is
hereby ordered to
suffer the penalty of
IMPRISONMENT for
ninety (90) days to be
served at the Surigao
City Jail and to pay the
maximum fine of
THIRTY THOUSAND
PESOS
(P30,000.00). Future
acts of contempt will
be dealt with more
severely.
Let copies of the
relevant records be
immediately forwarded
to the Supreme Court
for automatic review
and for further
determination of
grounds for [the]
disbarment of
Prosecutor Rogelio Z.
Bagabuyo.[10]

The trial court found

respondents denials to be lame as
the tape of his interview
on October 2, 2003, duly
transcribed, showed disrespect of
the court and its officers, thus:
TONY CONSING: Fiscal, nanglabay ang mga
oras,
nanglabay
ang gamayng
panahon ang
samad sa
imong
kasingkasing
nagpabilin pa
ba ni. O ingnon
nato duna na
bay pagbag-o
sa imong hunahuna karon?
(Fiscal, after the lapse of time, are you still
hurt? Or
have you
not
changed
your mind
yet?)
BAGABUYO : Ang akong huna-huna kon
aduna man
ugaling
pagbag-o
ang
pagsiguro,
ang mga
Huwes nga
dili mahibalo
sa balaod
tangtangon
pagka
abogado,
mao kana.
(If my mind has changed at all, it is that I
ensure that
all judges
who are
ignorant of
the law
should be
disbarred. Th
ats it.)
xxx
BAGABUYO : Mao kana ang tinuod, Ton, ug
kining akong
guibatonan
karon nga
hunahuna
mahitungod
nianang mga
Huwes nga
dili kahibalo
sa balaod,
magkadugay
magkalami.
Kada adlao
nagatoon
ako. Nagaba
sa ako sa
mga bagong jurisprud
ence ug sa
atong balaod
aron sa
pagsiguro
gayod nga
inigsang-at
unya nako
sa kaso
nga disbarm
ent niining di
mahibalo
nga Huwes,
sigurado

174

Legal Ethics
gayod ako
nga
katangtanga
n siya sa
lisensiya . . .
. Ang kini
nga Huwes
nga dili
mahibalo sa
balaod,
pagatangtan
gon na, dili
lamang sa
pagkaHuwes kon
dili sa
pagkaabogado. Ta
n-awa ra
gyod kining
iyang
gibuhat
nga Order, To
n, ang iyang
pagkabakak
on . . . .
(Thats true, Ton, and this conviction I have
now about
judges who
are ignorant
of the law is
made firmer
by time. I
study
everyday. I
read new
jurisprudenc
e and the
law to insure
that when I
file the
disbarment
case
against this
Judge who
does
not know his
law, I am
certain that
he loses his
license. . . . T
his judge
who is
ignorant of
the
law should
not only be
removed as
a judge but
should also
be
disbarred. Ju
st take a look
at his Order,
Ton, and see
what a liar
he is . . . .)
xxx
BAGABUYO : Yes, nag-ingon ang iyang Order.
. . . Ngano
nga
nakaingon
ako
nga bakakon
kini, nagingon nga
kini
konong order
given in
open
court, ang
kalooy sa
dios, ang
iyang order s
a Korte wala
siya magingon ug
kantidad
nga P100,00

0.00 nga bail

bond. . . .
(Yes, his Order said that . . . . Why did I say
that he is a
liar? It states
that this
Order was
given in
open court,
and in
Gods mercy,
he did not
state the
amount
of P100,000.
00 as bail bo
nd. . . .)
BAGABUYO : Kay dili man lagi mahi
balo
sa b
alao
d, a
ko
siyang gui-ingnan, Your Honor, I have the
right to
appeal. Miba
lik dayon, ug
miingon
siya, BJMP
arrest
Bagabuyo.
(Becaus
e he
does not
know
the law,
I said,
Your
Honor, I
have the
right to
appeal.
Then he
came
back
and
said,
BJMP,
arrest
Bagabuy
o.)
xxx
BAGABUYO : . . . P100,000.00 ang i
yang guipapiyansa.
Nau
nsa
na?
Din
hi
ma
kita
nim
o
ang
iyan
g
pag
ka g
ross
igno
ranc
e of
the
law.
...
(He imposed a bail
of P
100,
000.
00.
How
com
e? T
his
is
whe

175

Legal Ethics
re
you
will
see
his
gros
s
igno
ranc
e of
the
law.
...
)
xxx
TONY CONSING : So karon,
unsay plano
nimo karon?
(So what is your plan now?)
BAGABUYO : Sumala sa akong gui-ingon
moundang
lang ako kon
matangtang
na siya sa
pagka
abogado. . .
.
(As I have said, I will only stop if he
is
alre
ady
disb
arre
d. . .
.)
xxx
BAGABUYO : Nasuko siya niini kay
hambugero
kuno, pero
angayan
niyang
hibaw-an
nga ang
trabajo sa
Huwes dili
ang pagtanaw kon ang
tawo
hambugero .
. . . Ug ang
akong gisulti
mao lamang
ang balaod
nga siya in
fact at that
time I said
he is not
conversant o
f the law,
with regards
to the case
of murder. . .
.
(He got angry because I was allegedly
bragging but
he should
know that it
is not for a
judge to
determine if
a person is a
braggart. . . .
And what I
said was
based on the
law. In fact,
at that time,
I said he is
not
conversant
of the law,
with regards
to the case

of
murder . . . .)
xxx
BAGABUYO : Ah, mi sit
down sab ak
o, contempt
ra ba kadto .
. . . Mao
kana, pero
unsa may
iyang
katuyoan
ang iyang
katuyoan
nga ipa-adto
ako didto
kay didto,
iya akong
pakauwawan
kay iya kong
sikopon, iya
kong ipapriso, pero
kay di man
lagi
mahibalo sa
balaod, ang
iyang gui
orderan
BJMP,
intawon por
dios por
Santo, Mr.
Tan, pagbasa
intawon ug
balaod,
naunsa ka
ba Mr.
Tan? Unsa
may imong
hunahuna
nga kon ikaw
Huwes, ikaw
na ang
diktador, no
way, no sir,
ours is a
democratic
country
where all
and
everyone is
entitled to
due process
of law you
did not
accord me
due process
of law . . . .
(I sat down. . . . Thats it. But what was his
purpose? He
made me
come in
order to
humiliate me
because he
wanted me
arrested, he
wanted me
imprisoned,
but because
he is
ignorant of
the law, he
ordered the
BMJP. For
Gods sake,
Mr. Tan,
whats wrong
with you, Mr.
Tan? Please
read the
law. What is
your
thinking? Th
at when you
are a judge,
you are also
a

176

Legal Ethics
dictator? No
way, no sir,
ours is a
democratic
country
where all
and
everyone is
entitled to
due process
of law you
did not
accord me
due process
of law. . . .)
TONY CONSING: So mopasaka

kang disbar
ment, malau
mon kita nga
maaksiyona
n kini, with
all this
problem sa
Korte
Suprema.

(So you are filing a disbarment case? We

hope that
this be given
action with
all the
problems in
the Supreme
Court.)
BAGABUYO : Dili ako mabalaka niana
kay usa ka tr
uck ang
akong jurispr
udence, nga
ang mga
Huwes nga
di mahibalo
sa balaod
pagatangtan
gon gayod
sa ilang
pagka
Huwes. . . . A
pan unsa
man intawon
ang balaod
ang iyang
gibasa niini
nadunggan
ko nga kini
kuno siya
madjongero,
mao bitaw
na, madjong
ang iyang
guitunan?
(I am not worried because I have a truckload
of
jurisprudenc
e that judges
who are
ignorant of
the law must
be removed
from the
Bench. But
what law has
he been
reading? I
heard that
he is a
mahjong afic
ionado (mahj
ongero) and
that is why
he is
studying
mahjong.[11]

The trial court concluded that

respondent, as a member of the
bar and an officer of the court, is
duty bound to uphold the dignity
and authority of the court, and
should not promote distrust in the
administration of justice.
The trial court stated that it
is empowered to suspend
respondent from the practice of law
under Sec. 28, Rule 138 of the
Rules of Court[12] for any of the
causes mentioned in Sec. 27[13] of
the same Rule. Respondent was
given the opportunity to be heard,
but he opted to be silent. Thus, it
held that the requirement of due
process has been duly satisfied.
In accordance with the
provisions of Sec. 29,[14] Rule 138
and Sec. 9,[15] Rule 139 of the Rules
of Court, the RTC of Surigao City,
Branch 29, transmitted to the
Office of the Bar Confidant the
Statement of Facts of respondents
suspension from the practice of
law, dated July 14, 2005, together
with the order of suspension and
other relevant documents.
In its Report dated January 4,
2006, the Office of the Bar
Confidant found that the article in
the August 18, 2003 issue of the
Mindanao Gold Star Daily, which
maligned the integrity and
independence of the court and its
officers, and respondents criticism
of the trial courts Order dated
November 12, 2002, which was
aired in radio station DXKS, both in
connection with Crim. Case No.
5144, constitute grave violation
of oath of office by respondent. It
stated that the requirement of due
process was complied with when
respondent was given an
opportunity to be heard, but
respondent chose to remain silent.
The Office of the Bar
Confidant recommended the
implementation of the trial courts
order of suspension dated February
8, 2004, and that respondent be
suspended from the practice of law
for one year, with a stern warning
that the repetition of a similar
177

Legal Ethics

offense will be dealt with more

severely.
The Court approves the
recommendation of the Office of
the Bar Confidant. It has been
reiterated in Gonzaga v.
Villanueva, Jr.[16] that:
A lawyer may be
disbarred or suspended
for any violation of his
oath, a patent
disregard of his duties,
or an odious
deportment
unbecoming an
attorney. Among the
grounds enumerated in
Section 27, Rule 138 of
the Rules of Court are
deceit; malpractice;
gross misconduct in
office; grossly immoral
conduct; conviction of
a crime involving moral
turpitude; any violation
of the oath which he is
required to take before
admission to the
practice of law; willful
disobedience of any
lawful order of a
superior court; corrupt
or willful appearance
as an attorney for a
party to a case
without authority to do
so. The grounds are not
preclusive in nature
even as they are broad
enough as to cover
practically any kind of
impropriety that a
lawyer does or commits
in his professional
career or in his private
life. A lawyer must at
no time be wanting in
probity and moral fiber
which are not only
conditions precedent to
his entrance to the Bar,
but are likewise
essential demands for
his continued
membership therein.

Lawyers are licensed officers

of the courts who are empowered

to appear, prosecute and defend;

and upon whom peculiar duties,
responsibilities and liabilities are
devolved by law as a consequence.
[17]
Membership in the bar imposes
upon them certain obligations.
[18]
Canon 11 of the Code of
Professional Responsibility
mandates a lawyer to observe and
maintain the respect due to the
courts and to judicial officers and
[he] should insist on similar
conduct by others. Rule 11.05 of
Canon 11 states that a lawyer shall
submit grievances against a judge
to the proper authorities only.
Respondent violated Rule
11.05 of Canon 11 when he
admittedly caused the holding of a
press conference where he made
statements against the Order
dated November 12, 2002 allowing
the accused in Crim. Case No. 5144
to be released on bail.
Respondent also violated
Canon 11 when he indirectly stated
that Judge Tan was displaying
judicial arrogance in the article
entitled, Senior prosecutor
lambasts Surigao judge for
allowing murder suspect to bail
out, which appeared in the August
18, 2003 issue of the Mindanao
Gold Star Daily. Respondents
statements in the article, which
were made while Crim. Case No.
5144 was still pending in court,
also violated Rule 13.02 of Canon
13, which states that a lawyer shall
not make public statements in the
media regarding a pending case
tending to arouse public opinion for
or against a party.
In regard to the radio
interview given to Tony Consing,
respondent violated Rule 11.05 of
Canon 11 of the Code of
Professional Responsibility for not
resorting to the proper authorities
only for redress of his grievances
against Judge Tan. Respondent also
violated Canon 11 for his
disrespect of the court and its
officer when he stated that Judge
Tan was ignorant of the law, that as
a mahjong aficionado, he was
studying mahjong instead of

178

Legal Ethics

studying the law, and that he was a

liar.
Respondent also violated the
Lawyers Oath, as he has sworn to
conduct [himself] as a lawyer
according to the best of [his]
knowledge and discretion with all
good fidelity as well to the courts
as to [his] clients.
As a senior state prosecutor
and officer of the court, respondent
should have set the example of
observing and maintaining the
respect due to the courts and to
judicial officers. Montecillo v.
Gica[19] held:

Let copies of this Decision be

furnished the Office of the Bar
Confidant to be appended to
respondents personal record as an
attorney, the Integrated Bar of
the Philippines, the Department of
Justice, and all courts in the
country for their information and
guidance.
No costs.
SO ORDERED.

It is the duty of
the lawyer to maintain
towards the courts a
respectful attitude. As
an officer of the court,
it is his duty to uphold
the dignity and
authority of the court
to which he owes
fidelity, according to
the oath he has
taken. Respect for the
courts guarantees the
stability of our
democratic institutions
which, without such
respect, would be
resting on a very shaky
foundation.
The Court is not against
lawyers raising grievances against
erring judges but the rules clearly
provide for the proper venue and
procedure for doing so, precisely
because respect for the institution
must always be maintained.
WHEREFORE, in view of the
foregoing, Atty. Rogelio Z.
Bagabuyo is found guilty of
violating Rule 11.05, Canon 11 and
Rule 13.02, Canon 13 of the Code
of Professional Responsibility, and
of violating the Lawyers Oath, for
which he is SUSPENDED from the
practice of law for one (1) year
effective upon finality of this
Decision, with
a STERN WARNING that the
repetition of a similar offense shall
be dealt with more severely.
179

Legal Ethics

THE INSULAR LIFE

ASSURANCE CO., LTD.,
EMPLOYEES ASSOCIATIONNATU, FGU INSURANCE
GROUP WORKERS and
EMPLOYEES ASSOCIATIONNATU, and INSULAR LIFE
BUILDING EMPLOYEES
ASSOCIATION-NATU, petitio
ners,
vs.
THE INSULAR LIFE
ASSURANCE CO., LTD., FGU
INSURANCE GROUP, JOSE
M. OLBES and COURT OF
INDUSTRIAL
RELATIONS, respondents.
Appeal, by certiorari to review
a decision and a resolution en
banc of the Court of Industrial
Relations dated August 17,
1965 and October 20, 1965,
respectively, in Case 1698ULP.
The Insular Life Assurance
Co., Ltd., Employees
Association-NATU, FGU
Insurance Group Workers &
Employees Association-NATU,
and Insular Life Building
Employees Association-NATU
(hereinafter referred to as the
Unions), while still members
of the Federation of Free
Workers (FFW), entered into
separate collective bargaining
agreements with the Insular
Life Assurance Co., Ltd. and
the FGU Insurance Group
(hereinafter referred to as the
Companies).
Two of the lawyers of the
Unions then were Felipe Enaje
and Ramon Garcia; the latter
was formerly the secretarytreasurer of the FFW and
acting president of the Insular
Life/FGU unions and the
Insular Life Building
Employees Association.
Garcia, as such acting
president, in a circular issued

in his name and signed by

him, tried to dissuade the
members of the Unions from
disaffiliating with the FFW and
joining the National
Association of Trade Unions
(NATU), to no avail.
Enaje and Garcia soon left the
FFW and secured employment
with the Anti-Dummy Board of
the Department of Justice.
Thereafter, the Companies
hired Garcia in the latter part
of 1956 as assistant corporate
secretary and legal assistant
in their Legal Department,
and he was soon receiving
P900 a month, or P600 more
than he was receiving from
the FFW. Enaje was hired on
or about February 19, 1957 as
personnel manager of the
Companies, and was likewise
made chairman of the
negotiating panel for the
Companies in the collective
bargaining with the Unions.
In a letter dated September
16, 1957, the Unions jointly
submitted proposals to the
Companies for a modified
renewal of their respective
collective bargaining contracts
which were then due to expire
on September 30, 1957. The
parties mutually agreed and
to make whatever benefits
could be agreed upon
retroactively effective October
1, 1957.
Thereafter, in the months of
September and October 1957
negotiations were conducted
on the Union's proposals, but
these were snagged by a
deadlock on the issue of union
shop, as a result of which the
Unions filed on January 27,
1958 a notice of strike for
"deadlock on collective
bargaining." Several
conciliation conferences were
held under the auspices of the
180

Legal Ethics

Department of Labor wherein

the conciliators urged the
Companies to make reply to
the Unions' proposals en
toto so that the said Unions
might consider the feasibility
of dropping their demand for
union security in exchange for
other benefits. However, the
Companies did not make any
counter-proposals but,
instead, insisted that the
Unions first drop their demand
for union security, promising
money benefits if this was
done. Thereupon, and prior to
April 15, 1958, the petitioner
Insular Life Building
Employees Association-NATU
dropped this particular
demand, and requested the
Companies to answer its
demands, point by point, en
toto. But the respondent
Insular Life Assurance Co. still
refused to make any counterproposals. In a letter
addressed to the two other
Unions by the joint
management of the
Companies, the former were
also asked to drop their union
security demand, otherwise
the Companies "would no
longer consider themselves
bound by the commitment to
make money benefits
retroactive to October 1,
1957." By a letter dated April
17, 1958, the remaining two
petitioner unions likewise
dropped their demand for
union shop. April 25, 1958
then was set by the parties to
meet and discuss the
remaining demands.
From April 25 to May 6, 1958,
the parties negotiated on the
labor demands but with no
satisfactory result due to a
stalemate on the matter of
salary increases. On May 13,
1958 the Unions demanded

from the Companies final

counter-proposals on their
economic demands,
particularly on salary
increases. Instead of giving
counter-proposals, the
Companies on May 15, 1958
presented facts and figures
and requested the Unions to
submit a workable formula
which would justify their own
proposals, taking into account
the financial position of the
former. Forthwith the Unions
voted to declare a strike in
protest against what they
considered the Companies'
unfair labor practices.
Meanwhile, eighty-seven (87)
unionists were reclassified as
supervisors without increase
in salary nor in responsibility
while negotiations were going
on in the Department of Labor
after the notice to strike was
served on the Companies.
These employees resigned
from the Unions.
On May 20, 1958 the Unions
went on strike and picketed
the offices of the Insular Life
Building at Plaza Moraga.
On May 21, 1958 the
Companies through their
acting manager and
president, the respondent Jose
M. Olbes (hereinafter referred
to as the respondent Olbes),
sent to each of the strikers a
letter (exhibit A) quoted
verbatim as follows:
We recognize it is
your privilege both
to strike and to
conduct picketing.
However, if any of
you would like to
come back to work
voluntarily, you
may:
1. Advise the
nearest police
officer or security
181

Legal Ethics

guard of your
intention to do so.
2. Take your meals
within the office.
3. Make a choice
whether to go home
at the end of the
day or to sleep
nights at the office
where comfortable
cots have been
prepared.
4. Enjoy free coffee
and occasional
movies.
5. Be paid overtime
for work performed
in excess of eight
hours.
6. Be sure
arrangements will
be made for your
families.
The decision to
make is yours
whether you still
believe in the
motives of the
strike or in the
fairness of the
Management.
The Unions, however,
continued on strike, with the
exception of a few unionists
who were convinced to desist
by the aforesaid letter of May
21, 1958.
From the date the strike was
called on May 21, 1958, until
it was called off on May 31,
1958, some management
men tried to break thru the
Unions' picket lines. Thus, on
May 21, 1958 Garcia,
assistant corporate secretary,
and Vicente Abella, chief of
the personnel records section,
respectively of the
Companies, tried to penetrate
the picket lines in front of the
Insular Life Building. Garcia,
upon approaching the picket
line, tossed aside the placard

of a picketer, one Paulino

Bugay; a fight ensued
between them, in which both
suffered injuries. The
Companies organized three
bus-loads of employees,
including a photographer, who
with the said respondent
Olbes, succeeded in
penetrating the picket lines in
front of the Insular Life
Building, thus causing injuries
to the picketers and also to
the strike-breakers due to the
resistance offered by some
picketers.
Alleging that some nonstrikers were injured and with
the use of photographs as
evidence, the Companies then
filed criminal charges against
the strikers with the City
Fiscal's Office of Manila.
During the pendency of the
said cases in the fiscal's
office, the Companies likewise
filed a petition for injunction
with damages with the Court
of First Instance of Manila
which, on the basis of the
pendency of the various
criminal cases against striking
members of the Unions,
issued on May 31, 1958 an
order restraining the strikers,
until further orders of the said
court, from stopping,
impeding, obstructing, etc.
the free and peaceful use of
the Companies' gates,
entrance and driveway and
the free movement of persons
and vehicles to and from, out
and in, of the Companies'
building.
On the same date, the
Companies, again through the
respondent Olbes, sent
individually to the strikers a
letter (exhibit B), quoted
hereunder in its entirety:

182

Legal Ethics

The first day of the

strike was last 21
May 1958.
Our position
remains unchanged
and the strike has
made us even more
convinced of our
decision.
We do not know
how long you intend
to stay out, but we
cannot hold your
positions open for
long. We have
continued to
operate and will
continue to do so
with or without you.
If you are still
interested in
continuing in the
employ of the
Group Companies,
and if there are no
criminal charges
pending against
you, we are giving
you until 2 June
1958 to report for
work at the home
office. If by this
date you have not
yet reported, we
may be forced to
obtain your
replacement.
Before, the
decisions was yours
to make.
So it is now.
Incidentally, all of the more
than 120 criminal charges
filed against the members of
the Unions, except three (3),
were dismissed by the fiscal's
office and by the courts.
These three cases involved
"slight physical injuries"
against one striker and "light
coercion" against two others.
At any rate, because of the
issuance of the writ of

preliminary injunction against

them as well as the ultimatum
of the Companies giving them
until June 2, 1958 to return to
their jobs or else be replaced,
the striking employees
decided to call off their strike
and to report back to work on
June 2, 1958.
However, before readmitting
the strikers, the Companies
required them not only to
secure clearances from the
City Fiscal's Office of Manila
but also to be screened by a
management committee
among the members of which
were Enage and Garcia. The
screening committee initially
rejected 83 strikers with
pending criminal charges.
However, all non-strikers with
pending criminal charges
which arose from the
breakthrough incident were
readmitted immediately by
the Companies without being
required to secure clearances
from the fiscal's office.
Subsequently, when
practically all the strikers had
secured clearances from the
fiscal's office, the Companies
readmitted only some but
adamantly refused
readmission to 34 officials and
members of the Unions who
were most active in the strike,
on the ground that they
committed "acts inimical to
the interest of the
respondents," without
however stating the specific
acts allegedly committed.
Among those who were
refused readmission are
Emiliano Tabasondra, vice
president of the Insular Life
Building Employees'
Association-NATU; Florencio
Ibarra, president of the FGU
Insurance Group Workers &
Employees Association-NATU;
183

Legal Ethics

and Isagani Du Timbol, acting

president of the Insular Life
Assurance Co., Ltd.
Employees Association-NATU.
Some 24 of the above number
were ultimately notified
months later that they were
being dismissed retroactively
as of June 2, 1958 and given
separation pay checks
computed under Rep. Act
1787, while others (ten in
number) up to now have not
been readmitted although
there have been no formal
dismissal notices given to
them.
On July 29, 1958 the CIR
prosecutor filed a complaint
for unfair labor practice
against the Companies under
Republic Act 875. The
complaint specifically charged
the Companies with (1)
interfering with the members
of the Unions in the exercise
of their right to concerted
action, by sending out
individual letters to them
urging them to abandon their
strike and return to work, with
a promise of comfortable cots,
free coffee and movies, and
paid overtime, and,
subsequently, by warning
them that if they did not
return to work on or before
June 2, 1958, they might be
replaced; and (2)
discriminating against the
members of the Unions as
regards readmission to work
after the strike on the basis of
their union membership and
degree of participation in the
strike.
On August 4, 1958 the
Companies filed their answer
denying all the material
allegations of the complaint,
stating special defenses
therein, and asking for the
dismissal of the complaint.

After trial on the merits, the

Court of Industrial Relations,
through Presiding Judge
Arsenio Martinez, rendered on
August 17, 1965 a decision
dismissing the Unions'
complaint for lack of merit. On
August 31, 1965 the Unions
seasonably filed their motion
for reconsideration of the said
decision, and their supporting
memorandum on September
10, 1965. This was denied by
the Court of Industrial
Relations en banc in a
resolution promulgated on
October 20, 1965.
Hence, this petition for review,
the Unions contending that
the lower court erred:
1. In not finding the
Companies guilty of
unfair labor practice
in sending out
individually to the
strikers the letters
marked Exhibits A
and B;
2. In not finding the
Companies guilty of
unfair labor practice
for discriminating
against the striking
members of the
Unions in the
matter of
readmission of
employees after the
strike;
3. In not finding the
Companies guilty of
unfair labor practice
for dismissing
officials and
members of the
Unions without
giving them the
benefit of
investigation and
the opportunity to
present their side in
regard to activities
undertaken by them
184

Legal Ethics

in the legitimate
exercise of their
right to strike; and
4. In not ordering
the reinstatement
of officials and
members of the
Unions, with full
back wages, from
June 2, 1958 to the
date of their actual
reinstatement to
their usual
employment.
I. The respondents contend
that the sending of the letters,
exhibits A and B, constituted a
legitimate exercise of their
freedom of speech. We do not
agree. The said letters were
directed to the striking
employees individually by
registered special delivery
mail at that without being
coursed through the Unions
which were representing the
employees in the collective
bargaining.
The act of an
employer in
notifying absent
employees
individually during a
strike following
unproductive efforts
at collective
bargaining that the
plant would be
operated the next
day and that their
jobs were open for
them should they
want to come in has
been held to be an
unfair labor
practice, as an
active interference
with the right of
collective
bargaining through
dealing with the
employees
individually instead

of through their
collective
bargaining
representatives. (31
Am. Jur.
563, citing NLRB v.
Montgomery Ward
& Co. [CA 9th] 133
F2d 676, 146 ALR
1045)
Indeed, it is an unfair labor
practice for an employer
operating under a collective
bargaining agreement to
negotiate or to attempt to
negotiate with his employees
individually in connection with
changes in the agreement.
And the basis of the
prohibition regarding
individual bargaining with the
strikers is that although the
union is on strike, the
employer is still under
obligation to bargain with the
union as the employees'
bargaining representative
(Melo Photo Supply
Corporation vs. National Labor
Relations Board, 321 U.S.
332).
Indeed, some such similar
actions are illegal as
constituting unwarranted acts
of interference. Thus, the act
of a company president in
writing letters to the strikers,
urging their return to work on
terms inconsistent with their
union membership, was
adjudged as constituting
interference with the exercise
of his employees' right to
collective bargaining (Lighter
Publishing, CCA 7th, 133 F2d
621). It is likewise an act of
interference for the employer
to send a letter to all
employees notifying them to
return to work at a time
specified therein, otherwise
new employees would be
engaged to perform their jobs.
185

Legal Ethics

Individual solicitation of the

employees or visiting their
homes, with the employer or
his representative urging the
employees to cease union
activity or cease striking,
constitutes unfair labor
practice. All the abovedetailed activities are unfair
labor practices because they
tend to undermine the
concerted activity of the
employees, an activity to
which they are entitled free
from the employer's
molestation.1
Moreover, since exhibit A is a
letter containing promises of
benefits to the employees in
order to entice them to return
to work, it is not protected by
the free speech provisions of
the Constitution (NLRB v.
Clearfield Cheese Co., Inc.,
213 F2d 70). The same is true
with exhibit B since it
contained threats to obtain
replacements for the striking
employees in the event they
did not report for work on June
2, 1958. The free speech
protection under the
Constitution is inapplicable
where the expression of
opinion by the employer or his
agent contains a promise of
benefit, or threats, or reprisal
(31 Am. Jur. 544; NLRB vs.
Clearfield Cheese Co., Inc.,
213 F2d 70; NLRB vs. Goigy
Co., 211 F2d 533, 35 ALR 2d
422).
Indeed, when the respondents
offered reinstatement and
attempted to "bribe" the
strikers with "comfortable
cots," "free coffee and
occasional movies,"
"overtime" pay for "work
performed in excess of eight
hours," and "arrangements"
for their families, so they
would abandon the strike and

return to work, they were

guilty of strike-breaking
and/or union-busting and,
consequently, of unfair labor
practice. It is equivalent to an
attempt to break a strike for
an employer to offer
reinstatement to striking
employees individually, when
they are represented by a
union, since the employees
thus offered reinstatement are
unable to determine what the
consequences of returning to
work would be.
Likewise violative of the right
to organize, form and join
labor organizations are the
following acts: the offer of a
Christmas bonus to all "loyal"
employees of a company
shortly after the making of a
request by the union to
bargain; wage increases given
for the purpose of mollifying
employees after the employer
has refused to bargain with
the union, or for the purpose
of inducing striking employees
to return to work; the
employer's promises of
benefits in return for the
strikers' abandonment of their
strike in support of their
union; and the employer's
statement, made about 6
weeks after the strike started,
to a group of strikers in a
restaurant to the effect that if
the strikers returned to work,
they would receive new
benefits in the form of
hospitalization, accident
insurance, profit-sharing, and
a new building to work in.2
Citing paragraph 5 of the
complaint filed by the acting
prosecutor of the lower court
which states that "the officers
and members of the
complainant unions decided
to call off the strike and return
to work on June 2, 1958 by
186

Legal Ethics

reason of the injunction issued

by the Manila Court of First
Instance," the respondents
contend that this was the
main cause why the strikers
returned to work and not the
letters, exhibits A and B. This
assertion is without merit. The
circumstance that the strikers
later decided to return to work
ostensibly on account of the
injunctive writ issued by the
Court of First Instance of
Manila cannot alter the
intrinsic quality of the letters,
which were calculated, or
which tended, to interfere
with the employees' right to
engage in lawful concerted
activity in the form of a strike.
Interference constituting
unfair labor practice will not
cease to be such simply
because it was susceptible of
being thwarted or resisted, or
that it did not proximately
cause the result intended. For
success of purpose is not, and
should not, be the criterion in
determining whether or not a
prohibited act constitutes
unfair labor practice.
The test of whether
an employer has
interfered with and
coerced employees
within the meaning
of subsection (a) (1)
is whether the
employer has
engaged in conduct
which it may
reasonably be said
tends to interfere
with the free
exercise of
employees' rights
under section 3 of
the Act, and it is not
necessary that
there be direct
evidence that any
employee was in

fact intimidated or
coerced by
statements of
threats of the
employer if there is
a reasonable
inference that antiunion conduct of
the employer does
have an adverse
effect on selforganization and
collective
bargaining.
(Francisco, Labor
Laws 1956, Vol. II,
p. 323, citing NLRB
v. Ford, C.A., 1948,
170 F2d 735).
Besides, the letters, exhibits A
and B, should not be
considered by themselves
alone but should be read in
the light of the preceding and
subsequent circumstances
surrounding them. The letters
should be interpreted
according to the "totality of
conduct doctrine,"
... whereby the
culpability of an
employer's remarks
were to be
evaluated not only
on the basis of their
implicit
implications, but
were to be
appraised against
the background of
and in conjunction
with collateral
circumstances.
Under this
"doctrine"
expressions of
opinion by an
employer which,
though innocent in
themselves,
frequently were
held to be culpable
because of the
187

Legal Ethics

circumstances
under which they
were uttered, the
history of the
particular
employer's labor
relations or antiunion bias or
because of their
connection with an
established
collateral plan of
coercion or
interference.
(Rothenberg on
Relations, p. 374,
and cases cited
therein.)
It must be recalled that
previous to the petitioners'
submission of proposals for an
amended renewal of their
respective collective
bargaining agreements to the
respondents, the latter hired
Felipe Enage and Ramon
Garcia, former legal counsels
of the petitioners, as
personnel manager and
assistant corporate secretary,
respectively, with attractive
compensations. After the
notice to strike was served on
the Companies and
negotiations were in progress
in the Department of Labor,
the respondents reclassified
87 employees as supervisors
without increase in salary or
in responsibility, in effect
compelling these employees
to resign from their unions.
And during the negotiations in
the Department of Labor,
despite the fact that the
petitioners granted the
respondents' demand that the
former drop their demand for
union shop and in spite of
urgings by the conciliators of
the Department of Labor, the
respondents adamantly
refused to answer the Unions'

demands en toto. Incidentally,

Enage was the chairman of
the negotiating panel for the
Companies in the collective
bargaining between the
former and the Unions. After
the petitioners went to strike,
the strikers were individually
sent copies of exhibit A,
enticing them to abandon
their strike by inducing them
to return to work upon
promise of special privileges.
Two days later, the
respondents, thru their
president and manager,
respondent Jose M. Olbes,
brought three truckloads of
non-strikers and others,
escorted by armed men, who,
despite the presence of eight
entrances to the three
buildings occupied by the
Companies, entered thru only
one gate less than two meters
wide and in the process,
crashed thru the picket line
posted in front of the
premises of the Insular Life
Building. This resulted in
injuries on the part of the
picketers and the strikebreakers.lwph1.t Then the
respondents brought against
the picketers criminal
charges, only three of which
were not dismissed, and these
three only for slight
misdemeanors. As a result of
these criminal actions, the
respondents were able to
obtain an injunction from the
court of first instance
restraining the strikers from
stopping, impeding,
obstructing, etc. the free and
peaceful use of the
Companies' gates, entrance
and driveway and the free
movement of persons and
vehicles to and from, out and
in, of the Companies'
buildings. On the same day
188

Legal Ethics

that the injunction was issued,

the letter, Exhibit B, was sent
again individually and by
registered special delivery
mail to the strikers,
threatening them with
dismissal if they did not report
for work on or before June 2,
1958. But when most of the
petitioners reported for work,
the respondents thru a
screening committee of
which Ramon Garcia was a
member refused to admit
63 members of the Unions on
the ground of "pending
criminal charges." However,
when almost all were cleared
of criminal charges by the
fiscal's office, the respondents
adamantly refused admission
to 34 officials and union
members. It is not, however,
disputed that all-non-strikers
with pending criminal charges
which arose from the
breakthrough incident of May
23, 1958 were readmitted
immediately by the
respondents. Among the nonstrikers with pending criminal
charges who were readmitted
were Generoso Abella, Enrique
Guidote, Emilio Carreon,
Antonio Castillo, Federico
Barretto, Manuel Chuidian and
Nestor Cipriano. And despite
the fact that the fiscal's office
found no probable cause
against the petitioning
strikers, the Companies
adamantly refused admission
to them on the pretext that
they committed "acts inimical
to the interest of the
respondents," without stating
specifically the inimical acts
allegedly committed. They
were soon to admit, however,
that these alleged inimical
acts were the same criminal
charges which were dismissed

by the fiscal and by the

courts..
Verily, the above actuations of
the respondents before and
after the issuance of the
letters, exhibit A and B, yield
the clear inference that the
said letters formed of the
respondents scheme to
preclude if not destroy
unionism within them.
To justify the respondents'
threat to dismiss the strikers
and secure replacements for
them in order to protect and
continue their business, the
CIR held the petitioners' strike
to be an economic strike on
the basis of exhibit 4 (Notice
of Strike) which states that
there was a "deadlock in
collective bargaining" and on
the strength of the supposed
testimonies of some union
men who did not actually
know the very reason for the
strike. It should be noted that
exhibit 4, which was filed on
January 27, 1958, states, inter
alia:
TO:
BUREAU
OF LABOR
RELATION
S
DEPARTM
ENT OF
LABOR
MANILA
Thirty (30) days
from receipt of this
notice by the Office,
this [sic] unions
intends to go on
strike against
THE
INSULAR
LIFE
ASSURAN
CE CO.,
LTD.
Plaza
189

Legal Ethics

Moraga,
Manila
THE FGU
INSURAN
CE
GROUP
Plaza
Moraga,
Manila
INSULAR
LIFE
BUILDING
ADMINIST
RATION
Plaza
Moraga,
Manila .
for the following
reason: DEADLOCK
IN COLLECTIVE
BARGAINING...
However, the employees did
not stage the strike after the
thirty-day period, reckoned
from January 27, 1958. This
simply proves that the reason
for the strike was not the
deadlock on collective
bargaining nor any lack of
economic concessions. By
letter dated April 15, 1958,
the respondents categorically
stated what they thought was
the cause of the "Notice of
Strike," which so far as
material, reads:
3. Because you did
not see fit to agree
with our position on
the union shop, you
filed a notice of
strike with the
Bureau of Labor
Relations on 27
January 1958, citing
`deadlock in
collective
bargaining' which
could have been for
no other issue than
the union shop."
(exhibit 8, letter

dated April 15,

1958.)
The strike took place nearly
four months from the date the
said notice of strike was filed.
And the actual and main
reason for the strike was,
"When it became crystal clear
the management double
crossed or will not negotiate
in good faith, it is tantamount
to refusal collectively and
considering the unfair labor
practice in the meantime
being committed by the
management such as the
sudden resignation of some
unionists and [who] became
supervisors without increase
in salary or change in
responsibility, such as the
coercion of employees,
decided to declare the strike."
(tsn., Oct. 14, 1958, p. 14.)
The truth of this assertion is
amply proved by the following
circumstances: (1) it took the
respondents six (6) months to
consider the petitioners'
proposals, their only excuse
being that they could not go
on with the negotiations if the
petitioners did not drop the
demand for union shop (exh.
7, respondents' letter dated
April 7, 1958); (2) when the
petitioners dropped the
demand for union shop, the
respondents did not have a
counter-offer to the
petitioners' demands. Sec. 14
of Rep. Act 875 required the
respondents to make a reply
to the petitioners' demands
within ten days from receipt
thereof, but instead they
asked the petitioners to give a
"well reasoned, workable
formula which takes into
account the financial position
of the group companies."
(tsn., Sept. 8, 1958, p. 62;
tsn., Feb. 26, 1969, p. 49.)
190

Legal Ethics

II. Exhibit H imposed three

conditions for readmission of
the strikers, namely: (1) the
employee must be interested
in continuing his work with the
group companies; (2) there
must be no criminal charges
against him; and (3) he must
report for work on June 2,
1958, otherwise he would be
replaced. Since the evidence
shows that all the employees
reported back to work at the
respondents' head office on
June 2, 1953, they must be
considered as having
complied with the first and
third conditions.
Our point of inquiry should
therefore be directed at
whether they also complied
with the second condition. It is
not denied that when the
strikers reported for work on
June 2, 1958, 63 members of
the Unions were refused
readmission because they had
pending criminal charges.
However, despite the fact that
they were able to secure their
respective clearances 34
officials and union members
were still refused readmission
on the alleged ground that
they committed acts inimical
to the Companies. It is beyond
dispute, however, that nonstrikers who also had criminal
charges pending against them
in the fiscal's office, arising
from the same incidents
whence the criminal charges
against the strikers evolved,
were readily readmitted and
were not required to secure
clearances. This is a clear act
of discrimination practiced by
the Companies in the process
of rehiring and is therefore a
violation of sec. 4(a) (4) of the
Industrial Peace Act.
The respondents did not
merely discriminate against

all the strikers in general.

They separated the active
from the less active unionists
on the basis of their militancy,
or lack of it, on the picket
lines. Unionists belonging to
the first category were
refused readmission even
after they were able to secure
clearances from the
competent authorities with
respect to the criminal
charges filed against them. It
is significant to note in this
connection that except for one
union official who deserted his
union on the second day of
the strike and who later
participated in crashing
through the picket lines, not a
single union officer was taken
back to work. Discrimination
undoubtedly exists where the
record shows that the union
activity of the rehired strikers
has been less prominent than
that of the strikers who were
denied reinstatement.
So is there an unfair
labor practice
where the
employer, although
authorized by the
Court of Industrial
Relations to dismiss
the employees who
participated in an
illegal strike,
dismissed only the
leaders of the
strikers, such
dismissal being
evidence of
discrimination
against those
dismissed and
constituting a
waiver of the
employer's right to
dismiss the striking
employees and a
condonation of the
fault committed by
191

Legal Ethics

them." (Carlos and

Fernando, Labor
and Social
Legislation, p.
62, citing Phil. Air
Lines, Inc. v. Phil.
Air Lines Emloyees
Association, L-8197,
Oct. 31, 1958.)
It is noteworthy that
perhaps in an anticipatory
effort to exculpate themselves
from charges of discrimination
in the readmission of strikers
returning to work the
respondents delegated the
power to readmit to a
committee. But the
respondent Olbes had chosen
Vicente Abella, chief of the
personnel records section, and
Ramon Garcia, assistant
corporate secretary, to screen
the unionists reporting back to
work. It is not difficult to
imagine that these two
employees having been
involved in unpleasant
incidents with the picketers
during the strike were
hostile to the strikers.
Needless to say, the mere act
of placing in the hands of
employees hostile to the
strikers the power of
reinstatement, is a form of
discrimination in rehiring.
Delayed
reinstatement is a
form of
discrimination in
rehiring, as is
having the
machinery of
reinstatement in the
hands of employees
hostile to the
strikers, and
reinstating a union
official who formerly
worked in a
unionized plant, to a
job in another mill,

which was
imperfectly
organized. (Morabe,
The Law on Strikes,
p. 473, citing
Sunshine Mining
Co., 7 NLRB 1252;
Cleveland Worsted
Mills, 43 NLRB 545;
emphasis supplied.)
Equally significant is the fact
that while the management
and the members of the
screening committee
admitted the discrimination
committed against the
strikers, they tossed back and
around to each other the
responsibility for the
discrimination. Thus, Garcia
admitted that in exercising for
the management the
authority to screen the
returning employees, the
committee admitted the nonstrikers but refused
readmission to the strikers
(tsn., Feb. 6, 1962, pp. 15-19,
23-29). Vicente Abella,
chairman of the
management's screening
committee, while admitting
the discrimination, placed the
blame therefor squarely on
the management (tsn., Sept.
20, 1960, pp. 7-8, 14-18). But
the management, speaking
through the respondent Olbes,
head of the Companies,
disclaimed responsibility for
the discrimination. He
testified that "The decision
whether to accept or not an
employee was left in the
hands of that committee that
had been empowered to look
into all cases of the strikers."
(tsn., Sept. 6, 1962, p. 19.)
Of course, the respondents
through Ramon Garcia tried
to explain the basis for such
discrimination by testifying
that strikers whose
192

Legal Ethics

participation in any alleged

misconduct during the
picketing was not serious in
nature were readmissible,
while those whose
participation was serious were
not. (tsn., Aug. 4, 1961, pp.
48-49, 56). But even this
distinction between acts of
slight misconduct and acts of
serious misconduct which the
respondents contend was the
basis for either reinstatement
or discharge, is completely
shattered upon a cursory
examination of the evidence
on record. For with the
exception of Pascual Esquillo
whose dismissal sent to the
other strikers cited the alleged
commission by them of simple
"acts of misconduct."
III. Anent the third assignment
of error, the record shows that
not a single dismissed striker
was given the opportunity to
defend himself against the
supposed charges against
him. As earlier mentioned,
when the striking employees
reported back for work on
June 2, 1958, the respondents
refused to readmit them
unless they first secured the
necessary clearances; but
when all, except three, were
able to secure and
subsequently present the
required clearances, the
respondents still refused to
take them back. Instead,
several of them later received
letters from the respondents
in the following stereotyped
tenor:
This will confirm the
termination of your
employment with
the Insular Life-FGU
Insurance Group as
of 2 June 1958.
The termination of
your employment

was due to the fact

that you committed
acts of misconduct
while picketing
during the last
strike. Because this
may not constitute
sufficient cause
under the law to
terminate your
employment
without pay, we are
giving you the
amount of
P1,930.32
corresponding to
one-half month pay
for every year of
your service in the
Group Company.
Kindly acknowledge
receipt of the check
we are sending
herewith.
Very truly yours,
(Sgd.) JOSE M. OLBES
President, Insurance Life
Acting President, FGU.
The respondents, however,
admitted that the alleged
"acts of misconduct"
attributed to the dismissed
strikers were the same acts
with which the said strikers
were charged before the
fiscal's office and the courts.
But all these charges except
three were dropped or
dismissed.
Indeed, the individual cases of
dismissed officers and
members of the striking
unions do not indicate
sufficient basis for dismissal.
Emiliano Tabasondra, vicepresident of the petitioner
FGU Insurance Group Workers
& Employees AssociationNATU, was refused
reinstatement allegedly
because he did not report for
duty on June 2, 1958 and,
193

Legal Ethics

hence, had abandoned his

office. But the overwhelming
evidence adduced at the trial
and which the respondents
failed to rebut, negates the
respondents' charge that he
had abandoned his job. In his
testimony, corroborated by
many others, Tabasondra
particularly identified the
management men to whom
he and his group presented
themselves on June 2, 1958.
He mentioned the respondent
Olbes' secretary, De Asis, as
the one who received them
and later directed them
when Olbes refused them an
audience to Felipe Enage,
the Companies' personnel
manager. He likewise
categorically stated that he
and his group went to see
Enage as directed by Olbes'
secretary. If Tabasondra were
not telling the truth, it would
have been an easy matter for
the respondents to produce
De Asis and Enage who
testified anyway as witnesses
for the respondents on several
occasions to rebut his
testimony. The respondents
did nothing of the kind.
Moreover, Tabasondra called
on June 21, 1958 the
respondents' attention to his
non-admission and asked
them to inform him of the
reasons therefor, but instead
of doing so, the respondents
dismissed him by their letter
dated July 10, 1958.
Elementary fairness required
that before being dismissed
for cause, Tabasondra be
given "his day in court."
At any rate, it has been held
that mere failure to report for
work after notice to return,
does not constitute
abandonment nor bar
reinstatement. In one case,

the U.S. Supreme Court held

that the taking back of six of
eleven men constituted
discrimination although the
five strikers who were not
reinstated, all of whom were
prominent in the union and in
the strike, reported for work at
various times during the next
three days, but were told that
there were no openings. Said
the Court:
... The Board found,
and we cannot say
that its finding is
unsupported, that,
in taking back six
union men, the
respondent's
officials
discriminated
against the latter on
account of their
union activities and
that the excuse
given that they did
not apply until after
the quota was full
was an afterthought
and not the true
reason for the
discrimination
against them.
(NLRB v. Mackay
Radio & Telegraph
Co., 304 U.S. 333,
58 Sup. Ct. 904, 82
L. Ed. 1381)
(Mathews, Labor
Relations and the
Law, p. 725, 728)
The respondents' allegation
that Tabasondra should have
returned after being refused
readmission on June 2, 1958,
is not persuasive. When the
employer puts off
reinstatement when an
employee reports for work at
the time agreed, we consider
the employee relieved from
the duty of returning further.
194

Legal Ethics

Sixto Tongos was dismissed

allegedly because he revealed
that despite the fact that the
Companies spent more than
P80,000 for the vacation trips
of officials, they refused to
grant union demands; hence,
he betrayed his trust as an
auditor of the Companies. We
do not find this allegation
convincing. First, this
accusation was emphatically
denied by Tongos on the
witness stand. Gonzales,
president of one of the
respondent Companies and
one of the officials referred to,
took a trip abroad in 1958.
Exchange controls were then
in force, and an outgoing
traveller on a combined
business and vacation trip
was allowed by the Central
Bank, per its Circular 52
(Notification to Authorized
Agent Banks) dated May 9,
1952, an allocation of $1,000
or only P2,000, at the official
rate of two pesos to the dollar,
as pocket money; hence, this
was the only amount that
would appear on the books of
the Companies. It was only on
January 21, 1962, per its
Circular 133 (Notification to
Authorized Agent Banks), that
the Central Bank lifted the
exchange controls. Tongos
could not therefore have
revealed an amount bigger
than the above sum. And his
competence in figures could
not be doubted considering
that he had passed the board
examinations for certified
public accountants. But
assuming arguendo that
Tongos indeed revealed the
true expenses of Gonzales'
trip which the respondents
never denied or tried to
disprove his statements
clearly fall within the sphere

of a unionist's right to discuss

and advertise the facts
involved in a labor dispute, in
accordance with section 9(a)
(5) of Republic Act 875 which
guarantees the untramelled
exercise by striking
employees of the right to give
"publicity to the existence of,
or the fact involved in any
labor dispute, whether by
advertising, speaking,
patrolling or by any method
not involving fraud or
violence." Indeed, it is not
only the right, it is as well the
duty, of every unionist to
advertise the facts of a
dispute for the purpose of
informing all those affected
thereby. In labor disputes, the
combatants are expected to
expose the truth before the
public to justify their
respective demands. Being a
union man and one of the
strikers, Tongos was expected
to reveal the whole truth on
whether or not the respondent
Companies were justified in
refusing to accede to union
demands. After all, not being
one of the supervisors, he was
not a part of management.
And his statement, if indeed
made, is but an expression of
free speech protected by the
Constitution.
Free speech on both
sides and for every
faction on any side
of the labor relation
is to me a
constitutional and
useful right. Labor is
free ... to turn its
publicity on any
labor oppression,
substandard wages,
employer
unfairness, or
objectionable
working conditions.
195

Legal Ethics

The employer, too,

should be free to
answer and to turn
publicity on the
records of the
leaders of the
unions which seek
the confidence of
his men ...
(Concurring opinion
of Justice Jackson in
Thomas v. Collins,
323 U.S. 516, 547,
65 Sup. Ct. 315, 89
L. Ed. 430.)
(Mathews, Labor
Relations and the
Law, p. 591.)
The respondents also allege
that in revealing certain
confidential information,
Tongos committed not only a
betrayal of trust but also a
violation of the moral
principles and ethics of
accountancy. But nowhere in
the Code of Ethics for Certified
Public Accountants under the
Revised Rules and Regulations
of the Board of Accountancy
formulated in 1954, is this
stated. Moreover, the
relationship of the Companies
with Tongos was that of an
employer and not a client.
And with regard to the
testimonies of Juan Raymundo
and Antolin Carillo, both vicepresidents of the Trust
Insurance Agencies, Inc. about
the alleged utterances made
by Tongos, the lower court
should not have given them
much weight. The firm of
these witnesses was newly
established at that time and
was still a "general agency" of
the Companies. It is not
therefore amiss to conclude
that they were more inclined
to favor the respondents
rather than Tongos.

Pacifico Ner, Paulino Bugay,

Jose Garcia, Narciso Dao,
Vicente Alsol and
Hermenigildo Ramirez, opined
the lower court, were
constructively dismissed by
non-readmission allegedly
because they not only
prevented Ramon Garcia,
assistant corporate secretary,
and Vicente Abella, chief of
the personnel records section
of the Companies, from
entering the Companies'
premises on May 21, 1958,
but they also caused bruises
and abrasions on Garcia's
chest and forehead acts
considered inimical to the
interest of the respondents.
The Unions, upon the other
hand, insist that there is
complete lack of evidence
that Ner took part in pushing
Garcia; that it was Garcia who
elbowed his way through the
picket lines and therefore Ner
shouted "Close up," which the
picketers did; and that Garcia
tossed Paulino Bugay's
placard and a fight ensued
between them in which both
suffered injuries. But despite
these conflicting versions of
what actually happened on
May 21, 1958, there are
grounds to believe that the
picketers are not responsible
for what
happened.lwph1.t The
picketing on May 21, 1958, as
reported in the police blotter,
was peaceful (see Police
blotter report, exh. 3 in CAG.R. No. 25991-R of the Court
of Appeals, where Ner was
acquitted). Moreover,
although the Companies
during the strike were holding
offices at the Botica Boie
building at Escolta, Manila;
Tuason Building at San
Vicente Street, Manila; and
196

Legal Ethics

Ayala, Inc. offices at Makati,

Rizal, Garcia, the assistant
corporate secretary, and
Abella, the chief of the
personnel records section,
reported for work at the
Insular Life Building. There is
therefore a reasonable
suggestion that they were
sent to work at the latter
building to create such an
incident and have a basis for
filing criminal charges against
the petitioners in the fiscal's
office and applying for
injunction from the court of
first instance. Besides, under
the circumstances the
picketers were not legally
bound to yield their grounds
and withdraw from the picket
lines. Being where the law
expects them to be in the
legitimate exercise of their
rights, they had every reason
to defend themselves and
their rights from any assault
or unlawful transgression. Yet
the police blotter, about
adverted to, attests that they
did not resort to violence.
The heated altercations and
occasional blows exchanged
on the picket line do not affect
or diminish the right to strike.
Persuasive on this point is the
following commentary: .
We think it must be
conceded that some
disorder is
unfortunately quite
usual in any
extensive or long
drawn out strike. A
strike is essentially
a battle waged with
economic weapons.
Engaged in it are
human beings
whose feelings are
stirred to the
depths. Rising
passions call forth

hot words. Hot

words lead to blows
on the picket line.
The transformation
from economic to
physical combat by
those engaged in
the contest is
difficult to prevent
even when cool
heads direct the
fight. Violence of
this nature,
however much it is
to be regretted,
must have been in
the contemplation
of the Congress
when it provided in
Sec. 13 of Act 29
USCA Sec. 163, that
nothing therein
should be construed
so as to interfere
with or impede or
diminish in any way
the right to strike. If
this were not so, the
rights afforded to
employees by the
Act would indeed be
illusory. We
accordingly recently
held that it was not
intended by the Act
that minor disorders
of this nature would
deprive a striker of
the possibility of
reinstatement.
(Republic Steel
Corp. v. N. L. R. B.,
107 F2d
472, cited in
Mathews, Labor
Relations and the
Law, p. 378)
Hence the incident that
occurred between Ner, et al.
and Ramon Garcia was but a
necessary incident of the
strike and should not be
considered as a bar to
197

Legal Ethics

reinstatement. Thus it has

been held that:
Fist-fighting between union
and non-union employees in
the midst of a strike is no bar
to reinstatement. (Teller,
Labor Disputes and Collective
Bargaining, Vol. II, p.
855 citing Stackpole Carbon,
Co. 6 NLRB 171, enforced 105
F2d 167.)
Furthermore, assuming that
the acts committed by the
strikers were transgressions of
law, they amount only to mere
ordinary misdemeanors and
are not a bar to
reinstatement.
In cases involving
misdemeanors the board has
generally held that unlawful
acts are not bar to
reinstatement. (Teller, Labor
Disputes and Collective
Bargaining, Id., p.
854, citing Ford Motor
Company, 23 NLRB No. 28.)
Finally, it is not disputed that
despite the pendency of
criminal charges against nonstriking employees before the
fiscal's office, they were
readily admitted, but those
strikers who had pending
charges in the same office
were refused readmission. The
reinstatement of the strikers
is thus in order.
[W]here the
misconduct,
whether in
reinstating persons
equally guilty with
those whose
reinstatement is
opposed, or in other
ways, gives rise to
the inference that
union activities
rather than
misconduct is the
basis of his
[employer]

objection, the Board

has usually required
reinstatement."
(Teller, supra, p.
853, citing the Third
Annual Report of
NLRB [1938], p.
211.)
Lastly, the lower Court
justified the constructive
dismissal of Florencio Ibarra
allegedly because he
committed acts inimical to the
interest of the respondents
when, as president of the FGU
Workers and Employees
Association-NATU, he advised
the strikers that they could
use force and violence to have
a successful picket and that
picketing was precisely
intended to prevent the nonstrikers and company clients
and customers from entering
the Companies' buildings.
Even if this were true, the
record discloses that the
picket line had been generally
peaceful, and that incidents
happened only when
management men made
incursions into and tried to
break the picket line. At any
rate, with or without the
advice of Ibarra, picketing is
inherently explosive. For, as
pointed out by one author,
"The picket line is an
explosive front, charged with
the emotions and fierce
loyalties of the unionmanagement dispute. It may
be marked by colorful namecalling, intimidating threats or
sporadic fights between the
pickets and those who pass
the line." (Mathews, Labor
Relations and the Law, p.
752). The picket line being the
natural result of the
respondents' unfair labor
practice, Ibarra's misconduct
is at most a misdemeanor
198

Legal Ethics

which is not a bar to

reinstatement. Besides, the
only evidence presented by
the Companies regarding
Ibarra's participation in the
strike was the testimony of
one Rodolfo Encarnacion, a
former member of the board
of directors of the petitioner
FGU Insurance Group Workers
and Employees Union-NATU,
who became a "turncoat" and
who likewise testified as to
the union activities of Atty.
Lacsina, Ricardo Villaruel and
others (annex C, Decision, p.
27) another matter which
emphasizes the respondents'
unfair labor practice. For
under the circumstances,
there is good ground to
believe that Encarnacion was
made to spy on the actvities
of the union members. This
act of the respondents is
considered unjustifiable
interference in the union
activities of the petitioners
and is unfair labor practice.
It has been held in a
great number of
decisions at
espionage by an
employer of union
activities, or
surveillance thereof,
are such instances
of interference,
restraint or coercion
of employees in
connection with
their right to
organize, form and
join unions as to
constitute unfair
labor practice.
... "Nothing is more
calculated to
interfere with,
restrain and coerce
employees in the
exercise of their
right to self-

organization than
such activity even
where no
discharges result.
The information
obtained by means
of espionage is in
valuable to the
employer and can
be used in a variety
of cases to break a
union." The unfair
labor practice is
committed whether
the espionage is
carried on by a
professional labor
spy or detective, by
officials or
supervisory
employees of the
employer, or by
fellow employees
acting at the
request or direction
of the employer, or
an ex-employee..."
(Teller, Labor
Disputes and
Collective
Bargaining, Vol. II,
pp. 765-766, and
cases cited.) .
IV. The lower court should
have ordered the
reinstatement of the officials
and members of the Unions,
with full back wages from June
2, 1958 to the date of their
actual reinstatement to their
usual employment. Because
all too clear from the factual
and environmental milieu of
this case, coupled with settled
decisional law, is that the
Unions went on strike because
of the unfair labor practices
committed by the
respondents, and that when
the strikers reported back for
work upon the invitation of
the respondents they were
discriminatorily dismissed.
199

Legal Ethics

The members and officials of

the Unions therefore are
entitled to reinstatement with
back pay.
[W]here the strike
was induced and
provoked by
improper conduct
on the part of an
employer
amounting to an
'unfair labor
practice,' the
strikers are entitled
to reinstatement
with back pay.
(Rothenberg on
Labor Relations, p.
418.)
[A]n employee who
has been dismissed
in violation of the
provisions of the Act
is entitled to
reinstatement with
back pay upon an
adjudication that
the discharge was
illegal."
(Id., citingWaterman
S. S. Corp. v. N. L. R.
B., 119 F2d 760; N.
L. R. B. v. Richter's
Bakery, 140 F2d
870; N. L. R. B. v.
Southern Wood
Preserving Co., 135
F. 2d 606; C. G.
Conn, Ltd. v. N. L. R.
B., 108 F2d 390; N.
L. R. B. v. American
Mfg. Co., 106 F2d
61; N. L. R. B. v.
Kentucky Fire Brick
Co., 99 F2d 99.)
And it is not a defense to
reinstatement for the
respondents to allege that the
positions of these union
members have already been
filled by replacements.
[W]here the
employers' "unfair

labor practice"
caused or
contributed to the
strike or where the
'lock-out' by the
employer
constitutes an
"unfair labor
practice," the
employer cannot
successfully urge as
a defense that the
striking or lock-out
employees position
has been filled by
replacement. Under
such circumstances,
if no job sufficiently
and satisfactorily
comparable to that
previously held by
the aggrieved
employee can be
found, the employer
must discharge the
replacement
employee, if
necessary, to
restore the striking
or locked-out
worker to his old or
comparable position
... If the employer's
improper conduct
was an initial cause
of the strike, all the
strikers are entitled
to reinstatement
and the dismissal of
replacement
employees
wherever
necessary; ... . (Id.,
p. 422 and cases
cited.)
A corollary issue to which we
now address ourselves is,
from what date should the
backpay payable to the
unionists be computed? It is
now a settled doctrine that
strikers who are entitled to
reinstatement are not entitled
200

Legal Ethics

to back pay during the period

of the strike, even though it is
caused by an unfair labor
practice. However, if they
offer to return to work under
the same conditions just
before the strike, the refusal
to re-employ or the imposition
of conditions amounting to
unfair labor practice is a
violation of section 4(a) (4) of
the Industrial Peace Act and
the employer is liable for
backpay from the date of the
offer (Cromwell Commercial
Employees and Laborers
Union vs. Court of Industrial
Relations, L-19778, Decision,
Sept. 30, 1964, 12 SCRA
124; Id., Resolution on motion
for reconsideration, 13 SCRA
258; see also Mathews, Labor
Relations and the Law, p. 730
and the cited cases). We have
likewise ruled that
discriminatorily dismissed
employees must receive
backpay from the date of the
act of discrimination, that is,
from the date of their
discharge (Cromwell
Commercial Employees and
Laborers Union vs. Court of
Industrial Relations, supra).
The respondents notified the
petitioner strikers to report
back for work on June 2, 1958,
which the latter did. A great
number of them, however,
were refused readmission
because they had criminal
charges against them pending
before the fiscal's office,
although non-strikers who
were also facing criminal
indictments were readily
readmitted. These strikers
who were refused readmission
on June 2, 1958 can thus be
categorized as discriminatorily
dismissed employees and are
entitled to backpay from said
date. This is true even with

respect to the petitioners Jose

Pilapil, Paulino Bugay, Jr. and
Jose Garcia, Jr. who were
found guilty only of
misdemeanors which are not
considered sufficient to bar
reinstatement (Teller, Labor
Disputes and Collective
Bargaining, p. 854), especially
so because their unlawful acts
arose during incidents which
were provoked by the
respondents' men. However,
since the employees who
were denied readmission have
been out of the service of the
Companies (for more than ten
years) during which they may
have found other employment
or other means of livelihood, it
is only just and equitable that
whatever they may have
earned during that period
should be deducted from their
back wages to mitigate
somewhat the liability of the
company, pursuant to the
equitable principle that no one
is allowed to enrich himself at
the expense of another
(Macleod & Co. of the
Philippines v. Progressive
Federation of Labor, 97 Phil.
205 [1955]).
The lower court gave
inordinate significance to the
payment to and acceptance
by the dismissed employees
of separation pay. This Court
has ruled that while
employers may be authorized
under Republic Act 1052 to
terminate employment of
employees by serving the
required notice, or, in the
absence thereof, by paying
the required compensation,
the said Act may not be
invoked to justify a dismissal
prohibited by law, e.g.,
dismissal for union activities.
... While Republic
Act No. 1052
201

Legal Ethics

authorizes a
commercial
establishment to
terminate the
employment of its
employee by
serving notice on
him one month in
advance, or, in the
absence thereof, by
paying him one
month
compensation from
the date of the
termination of his
employment, such
Act does not give to
the employer a
blanket authority to
terminate the
employment
regardless of the
cause or purpose
behind such
termination.
Certainly, it cannot
be made use of as a
cloak to circumvent
a final order of the
court or a scheme
to trample upon the
right of an
employee who has
been the victim of
an unfair labor
practice. (Yu Ki Lam,
et al. v. Nena
Micaller, et al., 99
Phil. 904 [1956].)
Finally, we do not share the
respondents' view that the
findings of fact of the Court of
Industrial Relations are
supported by substantial and
credible proof. This Court is
not therefore precluded from
digging deeper into the
factual milieu of the case
(Union of Philippine Education
Employees v. Philippine
Education Company, 91 Phil.
93; Lu Do & Lu Ym
Corporation v. Philippine-Land-

Air-Sea Labor Union, 11 SCRA

134 [1964]).
V. The petitioners (15 of them)
ask this Court to cite for
contempt the respondent
Presiding Judge Arsenio
Martinez of the Court of
Industrial Relations and the
counsels for the private
respondents, on the ground
that the former wrote the
following in his decision
subject of the instant petition
for certiorari, while the latter
quoted the same on pages 9091 of the respondents' brief: .
... Says the
Supreme Court in
the following
decisions:
In a
proceedin
g for
unfair
labor
practice,
involving
a
determin
ation as
to
whether
or not the
acts of
the
employee
s
concerne
d justified
the
adoption
of the
employer
of
disciplinar
y
measures
against
them, the
mere fact
that the
employee
s may be
202

Legal Ethics

able to
put up a
valid
defense
in a
criminal
prosecuti
on for the
same
acts, does
not erase
or
neutralize
the
employer'
s right to
impose
discipline
on said
employee
s. For it is
settled
that not
even the
acquittal
of an
employee
of the
criminal
charge
against
him is a
bar to the
employer'
s right to
impose
discipline
on its
employee
s, should
the act
upon
which the
criminal
charged
was
based
constitute
neverthel
ess an
activity
inimical
to the

employer'
s
interest...
The act of
the
employee
s now
under
considera
tion may
be
considere
d as a
miscondu
ct which
is a just
cause for
dismissal.
(Lopez,
Sr., et al.
vs.
Chronicle
Publicatio
n
Employee
s Ass'n. et
al., G.R.
No. L20179-81,
Decembe
r 28,
1964.)
(emphasi
s
supplied)
The two pertinent paragraphs
in the above-cited decision *
which contained the
underscored portions of the
above citation read however
as follows:
Differently as
regard the dismissal
of Orlando Aquino
and Carmelito
Vicente, we are
inclined to uphold
the action taken by
the employer as
proper disciplinary
measure. A reading
of the article which
allegedly caused
203

Legal Ethics

their dismissal
reveals that it really
contains an
insinuation albeit
subtly of the
supposed exertion
of political pressure
by the Manila
Chronicle
management upon
the City Fiscal's
Office, resulting in
the non-filing of the
case against the
employer. In
rejecting the
employer's theory
that the dismissal of
Vicente and Aquino
was justified, the
lower court
considered the
article as "a report
of some acts and
omissions of an
Assistant Fiscal in
the exercise of his
official functions"
and, therefore, does
away with the
presumption of
malice. This being a
proceeding for
unfair labor
practice, the matter
should not have
been viewed or
gauged in the light
of the doctrine on a
publisher's
culpability under
the Penal Code. We
are not here to
determine whether
the employees' act
could stand criminal
prosecution, but
only to find out
whether the
aforesaid act
justifies the
adoption by the
employer of

disciplinary
measure against
them. This is not
sustaining the
ruling that the
publication in
question is qualified
privileged, but even
on the assumption
that this is so, the
exempting
character thereof
under the Penal
Code does not
necessarily erase or
neutralize its effect
on the employer's
interest which may
warrant
employment of
disciplinary
measure. For it
must be
remembered that
not even the
acquittal of an
employee, of the
criminal charges
against him, is a
bar to the
employer's right to
impose discipline
on its employees,
should the act upon
which the criminal
charges was based
constitute
nevertheless an
activity inimical to
the employer's
interest.
In the herein case,
it appears to us that
for an employee to
publish his
"suspicion," which
actually amounts to
a public accusation,
that his employer is
exerting political
pressure on a public
official to thwart
some legitimate
204

Legal Ethics

activities on the
employees, which
charge, in the least,
would sully the
employer's
reputation, can be
nothing but an act
inimical to the said
employer's interest.
And the fact that
the same was made
in the union
newspaper does not
alter its deleterious
character nor shield
or protect a
reprehensible act
on the ground that
it is a union activity,
because such end
can be achieved
without resort to
improper conduct or
behavior. The act of
the employees now
under consideration
may be considered
as a misconduct
which is a just
cause for
dismissal.**
(Emphasis ours)
It is plain to the naked eye
that the 60 un-underscored
words of the paragraph
quoted by the respondent
Judge do not appear in the
pertinent paragraph of this
Court's decision in L-2017981. Moreover, the first
underscored sentence in the
quoted paragraph starts with
"For it is settled ..." whereas it
reads, "For it must be
remembered ...," in this
Court's decision. Finally, the
second and last underlined
sentence in the quoted
paragraph of the respondent
Judge's decision, appears not
in the same paragraph of this
Court's decision where the
other sentence is, but in the

immediately succeeding
paragraph.
This apparent error, however,
does not seem to warrant an
indictment for contempt
against the respondent Judge
and the respondents'
counsels. We are inclined to
believe that the misquotation
is more a result of clerical
ineptitude than a deliberate
attempt on the part of the
respondent Judge to mislead.
We fully realize how saddled
with many pending cases are
the courts of the land, and it is
not difficult to imagine that
because of the pressure of
their varied and multifarious
work, clerical errors may
escape their notice. Upon the
other hand, the respondents'
counsels have the prima
facie right to rely on the
quotation as it appears in the
respondent Judge's decision,
to copy it verbatim, and to
incorporate it in their brief.
Anyway, the import of the
underscored sentences of the
quotation in the respondent
Judge's decision is
substantially the same as, and
faithfully reflects, the
particular ruling in this Court's
decision, i.e., that "[N]ot even
the acquittal of an employee,
of the criminal charges
against him, is a bar to the
employer's right to impose
discipline on its employees,
should the act upon which the
criminal charges were based
constitute nevertheless an
activity inimical to the
employer's interest."
Be that as it may, we must
articulate our firm view that in
citing this Court's decisions
and rulings, it is the bounden
duty of courts, judges and
lawyers to reproduce or copy
the same word-for-word and
205

Legal Ethics

punctuation mark-forpunctuation mark. Indeed,

there is a salient and salutary
reason why they should do
this. Only from this Tribunal's
decisions and rulings do all
other courts, as well as
lawyers and litigants, take
their bearings. This is because
the decisions referred to in
article 8 of the Civil Code
which reads, "Judicial
decisions applying or
interpreting the laws or the
Constitution shall form a part
of the legal system of the
Philippines," are only those
enunciated by this Court of
last resort. We said in no
uncertain terms in Miranda, et
al. vs. Imperial, et al. (77 Phil.
1066) that "[O]nly the
decisions of this Honorable
Court establish jurisprudence
or doctrines in this
jurisdiction." Thus, ever
present is the danger that if
not faithfully and exactly
quoted, the decisions and
rulings of this Court may lose
their proper and correct
meaning, to the detriment of
other courts, lawyers and the
public who may thereby be
misled. But if inferior courts
and members of the bar
meticulously discharge their
duty to check and recheck
their citations of authorities
culled not only from this
Court's decisions but from
other sources and make
certain that they are verbatim
reproductions down to the last
word and punctuation mark,
appellate courts will be
precluded from acting on
misinformation, as well as be
saved precious time in finding
out whether the citations are
correct.
Happily for the respondent
Judge and the respondents'

counsels, there was no

substantial change in the
thrust of this Court's particular
ruling which they cited. It is
our view, nonetheless, that for
their mistake, they should be,
as they are hereby,
admonished to be more
careful when citing
jurisprudence in the future.
ACCORDINGLY, the decision of
the Court of Industrial
Relations dated August 17,
1965 is reversed and set
aside, and another is entered,
ordering the respondents to
reinstate the dismissed
members of the petitioning
Unions to their former or
comparatively similar
positions, with backwages
from June 2, 1958 up to the
dates of their actual
reinstatements. Costs against
the respondents.

206

Legal Ethics

ALLIED BANKING
CORPORATION, petitioner,
vs. COURT OF APPEALS
and POTENCIANO L.
GALANIDA, respondents.
The Case
Before the Court is a petition for
review[1] assailing the
Decision[2] of 27 April 2000 and the
Resolution of 8 August 2000 of the
Court of Appeals in CA-G.R. SP No.
51451. The Court of Appeals
upheld the Decision[3] of 18
September 1998 and the
Resolution of 24 December 1998 of
the National Labor Relations
Commission (NLRC) in NLRC Case
No. V-000180-98. The NLRC
modified the Decision dated 23
December 1997 of Labor Arbiter
Dominador A. Almirante (Labor
Arbiter) in NLRC Case No. RAB VII05-0545-94 holding that Allied
Banking Corporation (Allied Bank)
illegally dismissed Potenciano L.
Galanida (Galanida). The NLRC
awarded Galanida separation pay,
backwages, moral and exemplary
damages, and other amounts
totaling P1,264,933.33.
Antecedent Facts
For a background of this case,
we quote in part from the Decision
of the Court of Appeals:
Private
respondent Potenciano Galanida
was hired by petitioner Allied
Banking Corporation on 11 January
1978 and rose from accountantbook(k)eeper to assistant manager
in 1991. His appointment was
covered by a Notice of Personnel
Action which provides as one of the
conditions of employment the
provision on petitioners right to
transfer employees:
REGULAR APPOINTMENT: xxx It is
understood that the bank reserves
the right to transfer or assign you
to other departments or branches
of the bank as the need arises and
in the interest of maintaining
smooth and uninterrupted service
to the public.
Private respondent was promoted
several times and was transferred
to several branches as follows:
a) January, 1978 to March, 1982
Tagbilaran City Br
anch
207

Legal Ethics

b) April, 1982 to May, 1984

Lapulapu City Bra
nch
c) June, 1984
Mandaue City Bra
nch
d) July, 1984 to April, 1986
Tagbilaran City Br
anch
e) May, 1986 to May, 1987
Dumaguete City
Branch
f) June, 1987 to August,
1987
Carbon
Branch, Cebu Cit
y
g) September, 1987 to Sept.
1989
Lapulapu City Bra
nch, Cebu
h) October, 1989 to Sept.
1992
Carbon
Branch, Cebu Cit
y
i) October 1992 to Sept.
1994
Jakosalem Region
al Branch,
Cebu City (Rollo,
p. 47)
Effecting a rotation/movement of
officers assigned in
the Cebu homebase, petitioner
listed respondent as second in the
order of priority of assistant
managers to be assigned outside
of Cebu City having been stationed
in Cebu for seven years
already. Private respondent
manifested his refusal to be
transferred to Bacolod City in a
letter dated 19 April 1994 citing as
reason parental obligations,
expenses, and the anguish that
would result if he is away from his
family. He then filed a complaint
before the Labor Arbiter for
constructive dismissal.
Subsequently, petitioner bank
informed private respondent (Rollo,
p. 86) that he was to report to the
Tagbilaran City Branch effective 23
May 1994. Private respondent
refused. In a letter dated 13 June
1994, petitioner warned and
required of private respondent as
follows:
There is no discrimination in your
transfer. In fact, among the officers

mentioned, only you have refused

the new assignment citing difficulty
of working away from your family
as if the other officers concerned
do not suffer the same
predicament. To exempt you from
the officer transfer would result in
favoritism in your favor and
discrimination as against the other
officers concerned.
In furtherance of maintaining a
smooth and uninterrupted service
to the public, and in accordance
with the Banks order of priority of
rotating its accountants places of
assignments, you are well aware
that Roberto Isla, AM/Accountant,
assigned in Cebu for more than ten
(10) years, was, on February 14,
1994, reassigned to Iligan City
Branch and then to Cagayan de
Oro City Branch on June 8,
1994. Hence, your objection on the
ground of your length of service is
without merit.
xxx
As discussed, your refusal to follow
instruction concerning your
transfer and reassignment to
Bacolod City and to Tagbilaran City
is penalized under Article XII of the
Banks Employee Discipline Policy
and Procedure [which] provides:
XII Transfer and Reassignment
Refusal to follow instruction
concerning transfers and
reassignments.
First and subsequent offenses
The penalty may range from
suspension to dismissal as
determined by management. The
employee shall be required to
comply with the order of transfer
and reassignment, if the penalty is
not termination of employment.
In view of the foregoing, please
explain in writing within three (3)
days from receipt hereof why no
disciplinary action should be meted
against you for your having refused
to follow instructions concerning
the foregoing transfer and
reassignment. xxx[4]
On 16 June 1994, Galanida
replied that (w)hether the banks
penalty for my refusal be
Suspension or Dismissal xxx it will
all the more establish and fortify
my complaint now pending at
NLRC, RAB 7.[5] In the same letter,
he charged Allied Bank with
208

Legal Ethics

discrimination and favoritism in

ordering his transfer, thus:
xxx What I cannot decipher now
under the headship of Mr. Olveda is
managements discriminatory act of
transferring only the long staying
accountants of Cebu in the guise of
its exercise of management
prerogative when in truth and in
fact, the ulterior motive is to
accommodate some new officers
who happen to enjoy favorable
connection with management. How
can the bank ever justify the
transfer of Melinda T. Co, a new
officer who had experienced being
assigned outside of Cebu for more
than a year only to Tabunok
Branch? If the purpose is for check
and balance, is management
implying that Melinda Co can
better carry out such function over
Mr. Larry Sabelino, who is a
seasoned and experienced
accountant or any of the Metro
Cebu accountants for that matter?
Isnt this act of management an
obvious display of favoritism? xxx[6]
On 5 October 1994, Galanida
received an inter-office
communication[7] (Memo) dated 8
September 1994 from Allied Banks
Vice-President for Personnel, Mr.
Leonso C. Pe. The Memo informed
Galanida that Allied Bank had
terminated his services effective 1
September 1994. The reasons
given for the dismissal were: (1)
Galanidas continued refusal to be
transferred from the
Jakosalem, Cebu City branch; and
(2) his refusal to report for work
despite the denial of his application
for additional vacation leave. The
salient portion of the Memo reads:
Therefore, your refusal to follow
instruction concerning your
transfer and reassignment
to Bacolod City and
to Tagbilaran City is without any
justifiable reason and constituted
violations of Article XII of the Banks
EDPP xxx
In view of the foregoing, please be
informed that the Bank has
terminated your services
effective September 1,
1994 and considered whatever
benefit, if any, that you are entitled
as forfeited in accordance with 04,
V Administrative Penalties, page 6

of the Banks EDPP which provides

as follows:
04. Dismissal.
Dismissal is a
permanent
separation for cause
xxx
Notice of termination shall be
issued by the Investigation
Committee subject to the
confirmation of the President or his
authorized representative as
officer/employee who is terminated
for cause shall not be eligible to
receive any benefit arising from
her/his employment with the Bank
or to termination pay.
It is understood that the
termination of your service shall be
without prejudice to whatever legal
remedies which the Bank may have
already undertaken and/or will
undertake against you.
Please be guided
accordingly. (Emphasis supplied)[8]
The Ruling of the Labor Arbiter
After several hearings, the
Labor Arbiter held that Allied Bank
had abused its management
prerogative in ordering the transfer
of Galanida to its Bacolod and
Tagbilaran branches. In ruling that
Galanidas refusal to transfer did
not amount to insubordination, the
Labor Arbiter misquoted this
Courts decision in Dosch v. NLRC,
[9]
thus:
As a general rule, the right to
transfer or reassign an employee is
recognized as an employers
exclusive right and the prerogative
of management (Abbott
Laboratories vs. NLRC, 154 SCRA
713 [1987]).
The exercise of this right, is not
however, absolute. It has certain
limitations. Thus, in Helmut Dosch
vs. NLRC, et al. 123 SCRA 296
(1983), the Supreme Court, ruled:
While it may be true that the right
to transfer or reassign an employee
is an employers exclusive right and
the prerogative of
management, such right is not
absolute. The right of an employer
to freely select or discharge his
employee is limited by the
paramount police power xxx for the
relations between capital and labor
are not merely contractual but
impressed with public interest. xxx
209

Legal Ethics

And neither capital nor labor shall

act oppressively against each
other.
Refusal to obey a transfer order
cannot be considered
insubordination where employee
cited reason for said refusal, such
(sic) as that of being away from the
family.[10] (Underscoring supplied
by the Labor Arbiter)
The Labor Arbiter reasoned that
Galanidas transfer was
inconvenient and prejudicial
because Galanida would have to
incur additional expenses for
board, lodging and travel. On the
other hand, the Labor Arbiter held
that Allied Bank failed to show any
business urgency that would justify
the transfer.
The Labor Arbiter also gave
credence to Galanidas claim that
Allied Bank gave Ms. Co special
treatment. The Labor Arbiter stated
that Allied Bank deliberately left
out Ms. Cos name from the list of
accountants transferred to Cebu as
contained in Allied Banks letter
dated 13 June 1994.However, Mr.
Regidor Olveda, Allied Banks Vice
President for Operations
Accounting, testified that the bank
transferred Ms. Co to the
Tabunok, Cebu branch within the
first half of 1994.
Still, the Labor Arbiter declined
to award Galanida back wages
because he was not entirely free
from blame. Since another bank
had already employed Galanida,
the Labor Arbiter granted Galanida
separation pay in lieu of
reinstatement. The dispositive
portion of the Labor Arbiters
Decision of 23 December
1997 provides:
WHEREFORE, premises considered,
judgment is hereby rendered
ordering respondent Allied Banking
Corporation to pay complainant the
aggregate total amount of Three
Hundred Twenty Four Thousand
Pesos (P324,000.00) representing
the following awards:
a) Separation pay for P272,000.00;
b) Quarter bonus for
1994 P16,000.00;
c) 13th month pay for
1994 P16,000.00;
d) Refund of contribution to
Provident Fund - P20,000.00.

SO ORDERED.[11]
The Ruling of the NLRC
On appeal, the NLRC likewise
ruled that Allied Bank terminated
Galanida without just cause. The
NLRC agreed that the transfer
order was unreasonable and
unjustified, considering the family
considerations mentioned by
Galanida. The NLRC characterized
the transfer as a demotion since
the Bacolod and Tagbilaran
branches were smaller than the
Jakosalem branch, a regional office,
and because the bank wanted
Galanida, an assistant manager, to
replace an assistant accountant in
the Tagbilaran branch. The NLRC
found unlawful discrimination since
Allied Bank did not transfer several
junior accountants in Cebu. The
NLRC also held that Allied Bank
gave Ms. Co special treatment by
assigning her to Cebu even though
she had worked for the bank for
less than two years.
The NLRC ruled that Galanidas
termination was illegal for lack of
due process. The NLRC stated that
Allied Bank did not conduct any
hearing. The NLRC declared that
Allied Bank failed to send a
termination notice, as required by
law for a valid termination. The
Memo merely stated that Allied
Bank would issue a notice of
termination, but the bank did not
issue any notice.
The NLRC concluded that Allied
Bank dismissed Galanida in bad
faith, tantamount to an unfair labor
practice as the dismissal
undermined Galanidas right to
security of tenure and equal
protection of the laws. On these
grounds, the NLRC promulgated its
Decision of 18 September 1998,
the relevant portion of which
states:
In this particular case, We view as
impractical, unrealistic and no
longer advantageous to both
parties to order reinstatement of
the complainant. xxx For lack of
sufficient basis, We deny the claim
for 1994 quarter bonus. Likewise,
no attorneys fees is awarded as
counsels for complainant-appellee
are from the City Prosecutors Office
of Cebu.

210

Legal Ethics

WHEREFORE, premises considered,

the decision of the Labor Arbiter
dated December 23, 1997 is
hereby MODIFIED by increasing the
award of separation pay and
granting in addition thereto
backwages, moral and exemplary
damages. The respondentappellant, ALLIED BANKING
CORPORATION, is thus ordered to
pay to herein complainantappellee, POTENCIANO L.
GALANIDA, the following amounts:
a) P336,000.00, representing
separation pay
b) P833,600.00,
representing backwages
c) P 5,333.23 representing
proportional 1994
13th month pay
d) P 20,000.00 representing
refund of Provident Fund
Contribution
e) P 50,000.00 representing
moral damages
f) P 20,000.00 representing
exemplary damages
===========
P1,264,933.33 TOTAL
AWARD
All other claims are dismissed for
lack of basis. The other
respondents are dropped for lack of
sufficient basis that they acted in
excess of their corporate powers.
SO ORDERED.[12]
Allied Bank filed a motion for
reconsideration which the NLRC
denied in its Resolution of 24
December 1998.[13]
Dissatisfied, Allied Bank filed a
petition for review questioning the
Decision and Resolution of the
NLRC before the Court of Appeals.
The Ruling of the Court of
Appeals
Citing Dosch v. NLRC,[14] the
Court of Appeals held that
Galanidas refusal to comply with
the transfer orders did not warrant
his dismissal. The appellate court
ruled that the transfer from a
regional office to the
smaller Bacolod or Tagbilaran
branches was effectively a
demotion. The appellate court
agreed that Allied Bank did not
afford Galanida procedural due
process because there was no
hearing and no notice of
termination. The Memo merely

stated that the bank would issue a

notice of termination but there was
no such notice.
The Court of Appeals affirmed
the ruling of the NLRC in its
Decision of 27 April 2000, thus:
WHEREFORE, for lack of merit, the
petition is DISMISSED and the
assailed Decision of public
respondent NLRC is AFFIRMED.
SO ORDERED. [15]
Allied Bank filed a motion for
reconsideration which the appellate
court denied in its Resolution of 8
August 2000.[16]
On 26 April 2001, Allied Bank
appealed the appellate courts
decision and resolution to the
Supreme Court. Allied Bank prayed
that the Supreme Court: (1) issue a
temporary restraining order or writ
of preliminary injunction ex
parte to restrain the
implementation or execution of the
questioned Decision and
Resolution; (2) declare Galanidas
termination as valid and legal; (3)
set aside the Court of Appeals
Decision and Resolution; (4) make
permanent the restraining order or
preliminary injunction; (5) order
Galanida to pay the costs; and (6)
order other equitable reliefs.
The Issues
Allied Bank raises the following
issues:
1. WHETHER UNDER THE
FACTS PRESENTED THERE
IS LEGAL BASIS IN
PETITIONERS EXERCISE
OF ITS MANAGEMENT
PREROGATIVE.
2. WHETHER PRIVATE
RESPONDENTS
VIOLATIONS OF COMPANY
RULES CONSTITUTE A
GROUND TO WARRANT
THE PENALTY OF
DISMISSAL.
3. WHETHER UNDER THE
FACTS PRESENTED,
THERE IS LEGAL BASIS TO
HOLD THAT ALLIED BANK
AFFORDED PRIVATE
RESPONDENT THE
REQUIRED DUE PROCESS.
4. WHETHER UNDER THE
FACTS, THERE IS LEGAL
BASIS TO HOLD THAT
PRIVATE RESPONDENT

211

Legal Ethics

CANNOT RECOVER ANY

MONETARY AWARD.[17]
In sum, Allied Bank argues that
the transfer of Galanida was a valid
exercise of its management
prerogative. Allied Bank contends
that Galanidas continued refusal to
obey the transfer orders
constituted willful disobedience or
insubordination, which is a just
cause for termination under the
Labor Code.
On the other hand, Galanida
defended his right to refuse the
transfer order. The memorandum
for Galanida filed with this Court,
prepared by Atty. Loreto M. Durano,
again misquoted the Courts ruling
in Dosch v. NLRC, thus:
xxx His [Galanidas] refusal to
transfer falls well within the ruling
of the Supreme Court in Helmut
Dosch vs. NLRC, et. al., 123 SCRA
296 (1983) quoted as follows:
xxx
Refusal to obey a transfer order
cannot be considered
insubordination where employee
cited reason for said refusal, such
as that of being away from the
family.[18]
The Ruling of the Court
The petition is partly
meritorious.
Preliminary Matter: Misquoting
Decisions of the Supreme Court
The memorandum prepared by
Atty. Durano and, worse, the
assailed Decision of the Labor
Arbiter, both misquoted the
Supreme Courts ruling in Dosch v.
NLRC. The Court held in Dosch:
We cannot agree to Northwests
submission that petitioner was
guilty of disobedience and
insubordination which respondent
Commission sustained. The only
piece of evidence on which
Northwest bases the charge of
contumacious refusal is petitioners
letter dated August 28, 1975 to
R.C. Jenkins wherein petitioner
acknowledged receipt of the
formers memorandum dated
August 18, 1975, appreciated his
promotion to Director of
International Sales but at the same
time regretted that at this time for
personal reasons and reasons of
my family, I am unable to accept
the transfer from the Philippines

and thereafter expressed his

preference to remain in his
position, saying: I would, therefore,
prefer to remain in my position of
Manager-Philippines until such time
that my services in that capacity
are no longer required by
Northwest Airlines. From this
evidence, We cannot discern even
the slightest hint of defiance, much
less imply insubordination on the
part of petitioner.[19]
The phrase [r]efusal to obey a
transfer order cannot be
considered insubordination where
employee cited reason for said
refusal, such as that of being away
from the family does not appear
anywhere in
the Dosch decision. Galanidas
counsel lifted the erroneous phrase
from one of the italicized lines in
the syllabus of Dosch found in
the Supreme Court Reports
Annotated (SCRA).
The syllabus of cases in official
or unofficial reports of Supreme
Court decisions or resolutions is not
the work of the Court, nor does it
state this Courts decision. The
syllabus is simply the work of the
reporter who gives his
understanding of the decision. The
reporter writes the syllabus for the
convenience of lawyers in reading
the reports. A syllabus is not a part
of the courts decision.[20] A counsel
should not cite a syllabus in place
of the carefully considered text in
the decision of the Court.
In the present case, Labor
Arbiter Almirante and Atty. Durano
began by quoting from Dosch, but
substituted a portion of the
decision with a headnote from the
SCRA syllabus, which they even
underscored. In short, they
deliberately made the quote from
the SCRA syllabus appear as the
words of the Supreme Court. We
admonish them for what is at the
least patent carelessness, if not an
outright attempt to mislead the
parties and the courts taking
cognizance of this case. Rule 10.02,
Canon 10 of the Code of
Professional Responsibility
mandates that a lawyer shall not
knowingly misquote or
misrepresent the text of a decision
or authority. It is the duty of all
212

Legal Ethics

officers of the court to cite the

rulings and decisions of the
Supreme Court accurately.[21]
Whether Galanida was
dismissed for just cause
We accord great weight and
even finality to the factual findings
of the Court of Appeals, particularly
when they affirm the findings of
the NLRC or the lower
courts. However, there are
recognized exceptions to this
rule. These exceptions are: (1)
when the findings are grounded on
speculation, surmise and
conjecture; (2) when the inference
made is manifestly mistaken,
absurd or impossible; (3) when
there is grave abuse of discretion
in the appreciation of facts; (4)
when the factual findings of the
trial and appellate courts are
conflicting; (5) when the Court of
Appeals, in making its findings, has
gone beyond the issues of the case
and such findings are contrary to
the admissions of both appellant
and appellee; (6) when the
judgment of the appellate court is
premised on a misapprehension of
facts or when it has failed to
consider certain relevant facts
which, if properly considered, will
justify a different conclusion; (7)
when the findings of fact are
conclusions without citation of
specific evidence on which they are
based; and (8) when the findings of
fact of the Court of Appeals are
premised on the absence of
evidence but are contradicted by
the evidence on record.[22] After a
scrutiny of the records, we find that
some of these exceptions obtain in
the present case.
The rule is that the transfer of
an employee ordinarily lies within
the ambit of the employers
prerogatives.[23] The employer
exercises the prerogative to
transfer an employee for valid
reasons and according to the
requirement of its business,
provided the transfer does not
result in demotion in rank or
diminution of the employees
salary, benefits and other
privileges.[24] In illegal dismissal
cases, the employer has the
burden of showing that the transfer
is not unnecessary, inconvenient

and prejudicial to the displaced

employee.[25]
The constant transfer of bank
officers and personnel with
accounting responsibilities from
one branch to another is a
standard practice of Allied Bank,
which has more than a hundred
branches throughout the country.
[26]
Allied Bank does this primarily
for internal control. It also enables
bank employees to gain the
necessary experience for eventual
promotion. The Bangko Sentral ng
Pilipinas, in its Manual of
Regulations for Banks and Other
Financial Intermediaries,[27] requires
the rotation of these
personnel. The Manual directs that
the duties of personnel handling
cash, securities and bookkeeping
records should be rotated and that
such rotation should be irregular,
unannounced and long enough to
permit disclosure of any
irregularities or manipulations.[28]
Galanida was well aware of
Allied Banks policy of periodically
transferring personnel to different
branches. As the Court of Appeals
found, assignment to the different
branches of Allied Bank was a
condition of Galanidas
employment. Galanida consented
to this condition when he signed
the Notice of Personnel Action.[29]
The evidence on record
contradicts the charge that Allied
Bank discriminated against
Galanida and was in bad faith when
it ordered his transfer. Allied Banks
letter of 13 June 1994[30] showed
that at least 14 accounting officers
and personnel from various
branches, including Galanida, were
transferred to other
branches. Allied Bank did not single
out Galanida. The same letter
explained that Galanida was
second in line for assignment
outside Cebu because he had been
in Cebu for seven years
already. The person first in line,
Assistant Manager Roberto Isla,
who had been in Cebu for more
than ten years, had already
transferred to a branch in Cagayan
de Oro City. We note that none of
the other transferees joined
Galanida in his complaint or
corroborated his allegations of
213

Legal Ethics

widespread discrimination and

favoritism.
As regards Ms. Co, Galanidas
letter of 16 June 1994 itself showed
that her assignment to Cebu was
not in any way related to Galanidas
transfer. Ms. Co was supposed to
replace a certain Larry Sabelino in
the Tabunok branch. The employer
has the prerogative, based on its
assessment of the employees
qualifications and competence, to
rotate them in the various areas of
its business operations to ascertain
where they will function with
maximum benefit to the company.
[31]

Neither was Galanidas transfer

in the nature of a
demotion. Galanida did not present
evidence showing that the transfer
would diminish his salary, benefits
or other privileges. Instead, Allied
Banks letter of 13 June
1994 assured Galanida that he
would not suffer any reduction in
rank or grade, and that the transfer
would involve the same rank,
duties and
obligations. Mr. Olveda explained
this further in the affidavit he
submitted to the Labor Arbiter,
thus:
19. There is no demotion in
position/rank or diminution of
complainants salary, benefits and
other privileges as the
transfer/assignment of branch
officers is premised on the
role/functions that they will assume
in the management and operations
of the branch, as shown below:
(a) The Branch Accountant, as
controller of the branch is
responsible for the proper
discharge of the functions of the
accounting section of the branch,
review of documentation/proper
accounting and control of
transaction. As such, the
accounting functions in the branch
can be assumed by any of the
following officers with the rank
of: Senior Manager/Acctg.;
Manager/ Acctg.; Senior Asst.
Manager/Acctg.; Asst.
Manager/Acctg.; Accountant or
Asst. Accountant.
xxx
20. The transfer/assignment of
branch officer from one branch, to

another branch/office is lateral in

nature and carries with it the same
position/rank, salary, benefits and
other privileges. The
assignment/transfer is for the
officer to assume the functions
relative to his job and NOT the
position/rank of the officer to be
replaced.
There is also no basis for the
finding that Allied Bank was guilty
of unfair labor practice in
dismissing Galanida. Unfair labor
practices relate only to violations of
the constitutional right of workers
and employees to selforganization[32] and are limited to
the acts enumerated in Article 248
of the Labor Code, none of which
applies to the present case. There
is no evidence that Galanida took
part in forming a union, or even
that a union existed in Allied Bank.
This leaves the issue of whether
Galanida could validly refuse the
transfer orders on the ground of
parental obligations, additional
expenses, and the anguish he
would suffer if assigned away from
his family.
The Court has ruled on this
issue before. In the case
of Homeowners Savings and
Loan Association, Inc. v. NLRC,
[33]
we held:
The acceptability of the proposition
that transfer made by an employer
for an illicit or underhanded
purpose i.e., to defeat an
employees right to selforganization, to rid himself of an
undesirable worker, or to penalize
an employee for union activities
cannot be upheld is self-evident
and cannot be gainsaid. The
difficulty lies in the situation where
no such illicit, improper or
underhanded purpose can be
ascribed to the employer, the
objection to the transfer being
grounded solely upon the personal
inconvenience or hardship that will
be caused to the employee by
reason of the transfer. What then?
This was the very same situation
we faced in Phil. Telegraph and
Telephone Corp. v. Laplana. In
that case, the employee, Alicia
Laplana, was a cashier at the
Baguio City Branch of PT&T who
was directed to transfer to the
214

Legal Ethics

companys branch office

at LaoagCity. In refusing the
transfer, the employee averred that
she had established Baguio City as
her permanent residence and that
such transfer will involve additional
expenses on her part, plus the fact
that an assignment to a far place
will be a big sacrifice for her as she
will be kept away from her family
which might adversely affect her
efficiency. In ruling for the
employer, the Court upheld the
transfer from one city to another
within the country as valid as long
as there is no bad faith on the part
of the employer. We held then:
Certainly the Court cannot accept
the proposition that when an
employee opposes his employers
decision to transfer him to another
work place, there being no bad
faith or underhanded motives on
the part of either party, it is the
employees wishes that should be
made to prevail.
Galanida, through counsel,
invokes the Courts ruling in Dosch
v. NLRC.[34] Dosch, however, is not
applicable to the present case.
Helmut Dosch refused a transfer
consequential to a promotion. We
upheld the refusal because no law
compels an employee to accept a
promotion, and because the
position Dosch was supposed to be
promoted to did not even exist at
that time.[35] This left as the only
basis for the charge of
insubordination a letter from Dosch
in which the Court found not even
the slightest hint of defiance, much
less xxx insubordination.[36]
Moreover, the transfer of an
employee to an overseas post, as
in the Dosch case, cannot be
likened to a transfer from one city
to another within the country,
[37]
which is the situation in the
present case. The distance
from Cebu City to Bacolod City or
from Cebu City to Tagbilaran City d
oes not exceed the distance
from Baguio City to Laoag City or
from Baguio City to Manila, which
the Court considered a reasonable
distance in PT&T v. Laplana.[38]
The refusal to obey a valid
transfer order constitutes willful
disobedience of a lawful order of an
employer.[39] Employees may object

to, negotiate and seek redress

against employers for rules or
orders that they regard as unjust or
illegal. However, until and unless
these rules or orders are declared
illegal or improper by competent
authority, the employees ignore or
disobey them at their peril.
[40]
For Galanidas continued refusal
to obey Allied Banks transfer
orders, we hold that the bank
dismissed Galanida for just cause
in accordance with Article 282 (a)
of the Labor Code.[41] Galanidais
thus not entitled to reinstatement
or to separation pay.
Whether Galanidas dismissal
violated the
requirement of notice and
hearing
To be effective, a dismissal
must comply with Section 2 (d),
Rule 1, Book VI of the Omnibus
Rules Implementing the Labor Code
(Omnibus Rules), which provides:
For termination of employment
based on just causes as defined in
Article 282 of the Labor Code:
(i) A written notice served
on the employee
specifying the ground or
grounds of termination,
and giving said
employee reasonable
opportunity within which
to explain his side.
(ii) A hearing or conference
during which the
employee concerned,
with the assistance of
counsel if he so desires
is given opportunity to
respond to the charge,
present his evidence, or
rebut the evidence
presented against him.
(iii) A written notice of
termination served on
the employee indicating
that upon due
consideration of all the
circumstances, grounds
have been established
to justify his
termination.
The first written notice was
embodied in Allied Banks letter
of 13 June 1994. The first notice
required Galanida to explain why
no disciplinary action should be

215

Legal Ethics

taken against him for his refusal to

comply with the transfer orders.
On the requirement of a
hearing, this Court has held that
the essence of due process is
simply an opportunity to be heard.
[42]
An actual hearing is not
necessary. The exchange of several
letters, in which Galanidas wife, a
lawyer with the City Prosecutors
Office, assisted him, gave Galanida
an opportunity to respond to the
charges against him.
The remaining issue is whether
the Memo dated 8 September
1994 sent to Galanida constitutes
the written notice of termination
required by the Omnibus Rules. In
finding that it did not, the Court of
Appeals and the NLRC cited Allied
Banks rule on dismissals, quoted in
the Memo, that, Notice of
termination shall be issued by the
Investigation Committee subject to
the confirmation of the President or
his authorized representative.
[43]
The appellate court and NLRC
held that Allied Bank did not send
any notice of termination to
Galanida. The Memo, with the
heading Transfer and
Reassignment, was not the
termination notice required by law.
We do not agree.
Even a cursory reading of the
Memo will show that it
unequivocally informed Galanida of
Allied Banks decision to dismiss
him. The statement, please be
informed that the Bank has
terminated your
services effective September 1,
1994 and considered whatever
benefit, if any, that you are entitled
[to] as forfeited xxx[44] is plainly
worded and needs no
interpretation. The Memo also
discussed the findings of the
Investigation Committee that
served as grounds for Galanidas
dismissal. The Memo referred to
Galanidas open defiance and
refusal to transfer first to
the Bacolod City branch and then
to the Tagbilaran City branch. The
Memo also mentioned his
continued refusal to report for work
despite the denial of his application
for additional vacation leave.[45] The
Memo also refuted Galanidas
charges of discrimination and

demotion, and concluded that he

had violated Article XII of the banks
Employee Discipline Policy and
Procedure.
The Memo, although captioned
Transfer and Reassignment, did not
preclude it from being a notice of
termination. The Court has held
that the nature of an instrument is
characterized not by the title given
to it but by its body and contents.
[46]
Moreover, it appears that
Galanida himself regarded the
Memo as a notice of
termination. We quote from the
Memorandum for Private
Respondent-Appellee, as follows:
The proceedings may be capsulized
as follows:
1. On March 13, 1994[47] Private
Respondent-Appellee filed before
the Region VII Arbitration Branch a
Complaint for Constructive
Dismissal. A copy of the Complaint
is attached to the Petition as Annex
H;
xxx
5. On September 8, 1994,
Petitioner-Appellant issued him
a Letter of Termination. A copy
of said letter is attached to the
Petition as Annex N;
6. Private Respondent-Appellee
filed an Amended/ Supplemental
Complaint wherein he alleged
illegal dismissal. A copy of the
Amended/Supplemental Complaint
is attached to the Petition as Annex
O; xxx [48] (Emphasis supplied)
The Memorandum for Private
Respondent-Appellee refers to the
Memo as a Letter of
Termination. Further, Galanida
amended his complaint for
constructive dismissal[49] to one for
illegal dismissal[50] after he received
the Memo. Clearly, Galanida had
understood the Memo to mean that
Allied Bank had terminated his
services.
The Memo complied with Allied
Banks internal rules which required
the banks President or his
authorized representative to
confirm the notice of
termination. The banks VicePresident for Personnel, as the
head of the department that
handles the movement of
personnel within Allied Bank, can
certainly represent the bank
216

Legal Ethics

president in cases involving the

dismissal of employees.
Nevertheless, we agree that the
Memo suffered from certain
errors. Although the Memo stated
that Allied Bank terminated
Galanidas services as of 1
September 1994, the Memo bore
the date 8 September 1994. More
importantly, Galanida only received
a copy of the Memo on 5 October
1994, or more than a month after
the supposed date of his
dismissal. To be effective, a written
notice of termination must
be served on the employee.
[51]
Allied Bank could not terminate
Galanida on 1 September
1994 because he had not received
as of that date the notice of Allied
Banks decision to dismiss
him. Galanidas dismissal could only
take effect on 5 October 1994,
upon his receipt of the Memo. For
this reason, Galanida is entitled to
backwages for the period from 1
September 1994 to 4 October
1994.
Under the circumstances, we
also find an award of P10,000 in
nominal damages proper. Courts
award nominal damages to
recognize or vindicate the right of a
person that another has violated.
[52]
The law entitles Galanida to
receive timely notice of Allied
Banks decision to dismiss
him. Allied Bank should have
exercised more care in issuing the
notice of termination.
WHEREFORE, the Decision of
27 April 2000 of the Court of
Appeals in CA-G.R. SP No. 51451
upholding the Decision of 18
September 1998 of the NLRC in
NLRC Case No. V-000180-98
is AFFIRMED, with the
following MODIFICATIONS:
1) The awards of separation
pay, moral damages and
exemplary damages are
hereby deleted for lack of
basis;
2) Reducing the award of
backwages to cover only
the period from 1
September 1994 to 4
October 1994; and
3) Awarding nominal damages
to private respondent
for P10,000.

This case is REMANDED to the

Labor Arbiter for the computation,
within thirty (30) days from receipt
of this Decision, of the backwages,
inclusive of allowances and other
benefits, due to Potenciano L.
Galanida for the time his dismissal
was ineffectual from 1 September
1994 until 4 October 1994.
Labor Arbiter Dominador A.
Almirante and Atty. Loreto M.
Durano are ADMONISHED to be
more careful in citing the decisions
of the Supreme Court in the future.
SO ORDERED.

217

Legal Ethics

PATERNO R. CANLAS, petitioner,

vs.
HON. COURT OF APPEALS, and
FRANCISCO
HERRERA, respondents.
The case dramatizes the
unpleasant spectacle of a lawyer
tangling with his own client, more
often than not, in the matter of
fees. The lawyer, the petitioner
himself, would have his petition
decided on pure questions of
procedure, yet, the Court cannot
let pass unnoticed the murkier face
of the controversy, wherein the law
is corrupted to promote a lawyer's
selfseeking ends, and the law
profession, debased into a simple
business dealing. Accordingly, we
resolve it on the basis not only of
the questions raised by the
petitioner pertaining to procedure,
but considering its serious ethical
implications, on its merits as well.
We turn to the facts.
The private respondent was the
registered owner of eight (six,
according to the petitioner) parcels
of land located in Quezon
City. 1 Between 1977 and
1978, 2 he obtained various loans
from the L & R Corporation, a
financing institution, in various
sums totalling P420,000.00 As
security therefor, he executed
deeds of mortgage in favor of the
corporation over the parcels
aforesaid. On August 28,1979, and
upon the maturing of said loans,
the firm caused an extrajudicial
foreclosure of mortgage following
his failure to pay, as a
consequence of which, the said
eight (six, according to the
petitioner) parcels of land were
disposed of at public auction, and
in which L & R Corporation was
itself the highest bidder.
Pending redemption, the private
respondent filed a complaint for
injunction against L & R
Corporation, to enjoin consolidation
of title in its name, in which he
succeeded in obtaining preliminary
injunctive relief. He was
represented by the petitioner. Two
years later, and with no imminent
end to the litigation in sight, the
parties entered into a compromise
agreement whereby L & R

Corporation accorded the private

respondent another year to redeem
the foreclosed properties subject to
payment of P600,000.00, with
interest thereon at one per cent
per month. They likewise stipulated
that the petitioner shall be entitled
to attorney's fees of P100,000.00.
On November 19, 1982, the
court 3 approved the compromise.
The private respondent, however,
remained in dire financial straits
a fact the petitioner himself
concede 4 for which reason he
failed to acquire the finding to
repay the loans in question, let
alone the sum of P100,000.00 in
attorney's fees demanded by the
petitioner. That notwithstanding,
the petitioner moved for execution
insofar as his fees were concemed.
The court granted execution,
although it does not appear that
the sum was actually collected. 5
Sometime thereafter, the petitioner
and the private respondent met to
discuss relief for the latter with
respect to his liability to L & R
Corporation on the one hand, and
his obligation to the petitioner on
the other. The petitioner contends
that the private respondent
"earnestly implored" 6 him to
redeem the said properties; the
private respondent maintains that
it was the petitioner himself who
'offered to advance the
money," 7 provided that he, the
private respondent, executed a
"transfer of mortgage" 8over the
properties in his favor. Who
implored whom is a bone of
contention, but as we shall see
shortly, we are inclined to agree
with the private respondent's
version, considering primarily the
petitioner's moral ascendancy over
his client and the private
respondent's increasing
desperation.
The records further show that the
parties, pursuant to their
agreement, executed a "Deed of
Sale and Transfer of Rights of
Redemption and/or to Redeem," a
document that enabled the
petitioner, first, to redeem the
parcels in question, and secondly,
to register the same in his name.
The private respondent alleges that
he subsequently filed loan
218

Legal Ethics

applications with the Family

Savings Bank to finance a wet
market project upon the subject
premises to find, according to him,
and to his dismay, the properties
already registered in the name of
the petitioner. He likewise contends
that the "Deed of Sale and Transfer
of Rights of Redemption and/or to
Redeem" on file with the Register
of Deeds (for Quezon City) had
been falsified as follows:
WHEREFORE, for and in
full settlement of the
attorney's fees of
TRANSFEREE in the
amount of ONE
HUNDRED THOUSAND
PESOS (Pl00,000.00) I,
FRANCISCO HERRERA,
hereby transfer, assign
and convey unto
TRANSFEREE, Atty.
Paterno R. Canlas, any
and all my rights of the
real properties and/or
to redeem from the
Mortgagee, L & R
Corporation my
mortgaged properties
foreclosed and sold at
public auction by the
Sheriff of Quezon City
and subject matter of
the above Compromise
Agreement in Civil Case
No. Q30679 ... 9
whereas it originally reads:
WHEREFORE, for and in
full settlement of the
attorney's fees of
TRANSFEREE in the
amount of ONE
HUNDRED THOUSAND
PESOS (P100,000.00), I,
FRANCISCO HERRERA,
hereby transfer, assign
and convey unto
TRANSFEREE, Atty.
Paterno R. Canlas, any
and all my rights of
equity of redemption
and/or to redeem from
the Mortgagee, L & R
Corporation my
mortgaged properties
foreclosed and sold at
public auction by the
Sheriff of Quezon City
and subject matter of
the above Compromise

Agreement in Civil Case

No. Q30679. . . 10
As a consequence, the private
respondent caused the annotation
of an adverse claim upon the
respective certificates of title
embracing the properties. Upon
learning of the same, the petitioner
moved for the cancellation of the
adverse claim and for the issuance
of a writ of possession. The court
granted both motions. The private
respondent countered with a
motion for a temporary restraining
order and later, a motion to recall
the writ of possession. He likewise
alleges that he commenced
disbarment proceedings before this
Court against the petitioner 11 as
well as various criminal complaints
for estafa, falsification, and
"betrayal of trust" 12 with the
Department of Justice. On
December 1, 1983, finally, he
instituted an action for
reconveyance and reformation of
document, 13 praying that the
certificates of title issued in the
name of the petitioner be cancelled
and that "the Deed of Sale and
Transfer of Rights of Equity of
Redemption and/or to Redeem
dated May 3, 1983 ... be reformed
to reflect the true agreement of
Francisco Herrera and Paterno R.
Canlas, of a mortgage." 14He
vehemently maintains that the
petitioner's "agreement with [him]
was that the latter would lend the
money to the former for a year, so
that [petitioner] would have time to
look for a loan for the wet market
which [the petitioner] intended to
put up on said
property." 15Predictably, the
petitioner moved for dismissal.
The trial court, however, denied
the private respondent's petition. It
held that the alteration complained
of did not change the meaning of
the contract since it was "well
within [the petitioner's]
rights" 16 "to protect and insure his
interest of P654,000.00 which is
the redemption price he has
paid;" 17 secondly, that the
petitioner himself had acquired an
interest in the properties subject of
reconveyance based on the
compromise agreement approved
by Judge Castro in the injunction
219

Legal Ethics

case, pursuant to Section 29(b), of

Rule 39, of the Rules of Court, that
had, consequently, made him a
judgment creditor in his own right;
thirdly, that the private respondent
had lost all rights over the same
arising from his failure to redeem
them from L & R Corporation within
the extended period; and finally,
that the petitioner cannot be said
to have violated the ban against
sales of properties in custodia
legis to lawyers by their
clients pendente lite, since the sale
in question took place after
judgment in the injunction case
abovesaid had attained finality. The
complaint was consequently
dismissed, a dismissal that
eventually attained a character of
finality.
Undaunted, the private respondent,
on December 6, 1985, filed a suit
for "Annulment Of Judgment 18 in
the respondent Court of
Appeals, 19 praying that the orders
of Judge Castro: (1). granting
execution over the portion of the
compromise agreement obliging
the private respondent to pay the
petitioner P100,000.00 as
attorney's fees; (2) denying the
private respondent's prayer for a
restraining order directed against
the execution: and (3) denying the
motion to recall writ of possession,
all be set aside.
The petitioner filed a comment on
the petition, but followed it up with
a motion to dismiss. On December
8, 1986, the respondent Court of
Appeals promulgated the first of its
challenged resolutions, denying the
motion to dismiss. On March 3,
1987, the Appellate Court denied
reconsideration. 20
Hence the instant petition.
As we stated, the petitioner assails
these twin resolutions on grounds
of improper procedure. Specifically,
he assigns the following errors:
I.
THE RESPONDENT COURT GRAVELY
ABUSE [sic] ITS DISCRETION IN NOT
DISMISSING AC G.R. NO. 07860 ON
THE GROUND THAT IT IS IN REALITY
A PETITION FOR CERTIORARI FILED
OUT OF TIME AND SHOULD NOT BE
GIVEN DUE COURSE.
II.

THE RESPONDENT COURT GRAVELY

ABUSE [sic] ITS DISCRETION IN NOT
DISMISSING AC G.R. NO. 07860 ON
THE GROUND OF RES JUDICATA
III.
THE RESPONDENT COURT GRAVELY
ABUSE [sic] ITS DISCRETION IN NOT
CONSIDERING AC G. R. 07860 AS
MOOT AND ACADEMIC SINCE
PETITIONER HAD DISPOSED OF THE
SUBJECT PROPERTIES LONG
BEFORE THE FILING OF THIS SUIT.
IV
THE RESPONDENT COURT GRAVELY
ABUSED ITS DISCRETION IN NOT
DENYING PETITIONER'S MOTION TO
DISMISS SOLELY ON THE GROUND
THAT THE ARGUMENT RAISED
THEREIN ARE BUT REHASH OF THE
ARGUMENTS IN HIS COMMENT TO
THE PETITION. 21
The petitioner argues that the
petition pending with the
respondent court "is actually a
petition for certiorari," 22disguised
as a pleading for annulment of
judgment and that in such a case,
it faces alleged legal impediments
(1) It had been filed out of time,
allegedly two years from the
issuance of the assailed orders,
and (2) It was not preceded by a
motion for reconsideration. He
adds that assuming annulment of
judgment were proper, no
judgment allegedly exists for
annulment, the aforesaid two
orders being in the nature of
interlocutory issuances.
On purely technical grounds, the
petitioner's arguments are
impressive. Annulment of
judgment, we have had occasion to
rule, rests on a single ground:
extrinsic fraud. What "extrinsic
fraud" means is explained
in Macabingkil v. People's Homesite
and Housing Corporation : 23
xxx xxx xxx
It is
only extrinsic or collate
ral fraud, as
distinguished from
intrinsic fraud,
however, that can
serve as a basis for the
annulment of
judgment. Fraud has
been regarded as
extrinsic or collateral,
within the meaning of
220

Legal Ethics

the rule, "where it is

one the effect of which
prevents a party from
having a trial, or real
contest, or from
presenting all of his
case to the court, or
where it operates upon
matters pertaining, not
to the judgment itself,
but of the manner in
which it was procured
so that there is not a
fair submission of the
controversy." In other
words, extrinsic fraud
refers to any fraudulent
act of the prevailing
party in the litigation
which is committed
outside of the trial of
the case, whereby the
defeated party has
been prevented from
exhibiting fully his side
of the case, by fraud or
deception practiced on
him by his opponent. 24
A perusal of the petition of therein
private respondent Herrera
pending before the respondent
Court reveals no cause of action for
annulment of judgment. In the first
place, and as herein petitioner
Canlas correctly points out, the
judgment itself is not assailed, but
rather, the orders merely
implementing it. Secondly, there is
no showing that extrinsic fraud,
as Makabingkil defines it, indeed
vitiated the proceedings presided
over by Judge Castro. On the
contrary, Herrera's petition in the
respondent court will show that he
was privy to the incidents he
complains of, and in fact, had
entered timely oppositions and
motions to defeat Atty. Canlas'
claims under the compromise
agreement.
What he objects to is his suspected
collusion between Atty. Canlas and
His Honor to expedite the former's
collection of his fees. He alleges
that his counsel had deliberately,
and with malevolent designs,
postponed execution to force him
(Herrera) to agree to sell the
properties in controversy to him
(Atty. Canlas) subject to
redemption. ("...[I]t was

understandable that respondent

Atty. Paterno R. Canlas did not
implement the writ of execution,
instead he contacted petitioner in
order that petitioner would sign the
questioned documents. This was
the clincher of the plan of
respondent Atty, Paterno R. Canlas
to divest petitioner of his
properties. For this purpose, it is
obvious that respondent Atty.
Paterno R. Canlas had to conspire
with the respondent court judge to
achieve his plan." 25) Aside from
being plain speculation, it is no
argument to justify annulment.
Clearly, it does not amount to
extrinsic fraud as the term is
defined in law.
Neither is it proper for the
extraordinary remedy of
certiorari. Certiorari presupposes
the absence of an appeal 26and
while there is no appeal from
execution of judgment, appeal lies
in case of irregular implementation
of the writ. 27 In the case at bar,
there is no irregular execution to
speak of As a rule, "irregular
execution" means the failure of the
writ to conform to the decree of the
decision executed. 28 In the instant
case, respondent Herrera's
charges, to wit, that Judge Castro
had erred in denying his motions
for temporary restraining order and
to recall writ of possession, or that
His Honor had acted hastily (". . .
that respondent court/judge took
only one [1) day to resolve
petitioner's motion for issuance of
[a] [restraining] order. . ." 29) in
denying his twofold motions, do not
make out a case for irregular
execution. The orders impugned
are conformable to the letter of the
judgment approving the
parties'compromise agreement.
The lengths the private
respondent, Francisco Herrera,
would go to in a last-ditch bid to
hold on to his lands and constraints
of economic privation have not
been lost on us. It is obvious that
he is uneasy about the judgment
on compromise itself, as well as the
subsequent contract between him
and his lawyer. In such a case,
Article 2038 of the Civil Code
applies:

221

Legal Ethics

Art. 2038. A
compromise in which
there is mistake, fraud,
violence intimidation,
undue influence, or
falsity of documents, is
subject to the
provisions of article
1330 of this Code ...
in relation to Article 1330 thereof:
Art. 1330. A contract
where consent is given
through mistake,
violence, intimidation,
undue influence, or
fraud is voidable.
in relation to its provisions on
avoidance of'contracts. 30 The court
notes that he had, for this purpose,
gone to the Regional Trial Court, a
vain effort as we stated, and in
which the decision had become
final.
We, however, sustain Atty. Canlas'
position-on matters of procedure
for the enlightenment solely of the
bench and the bar. It does not
mean that we find merit in his
petition. As we have intimated, we
cannot overlook the unseemlier
side of the proceeding, in which a
member of the bar would exploit
his mastery of procedural law to
score a "technical knockout" over
his own client, of all people.
Procedural rules, after all, have for
their object assistance unto parties
"in obtaining just, speedy, and
inexpensive determination of every
action and proceeding." 31 If
procedure were to be an
impediment to such an objective,
"it deserts its proper office as an
aid to justice and becomes its great
hindrance and chief enemy." 32 It
was almost eight decades ago that
the Court held:
... A litigation is not a
game of technicalities
in which one, more
deeply schooled and
skilled in the subtle art
of movement and
position, entraps and
destroys the other. It is,
rather, a contest in
which each contending
party fully and fairly
lays before the court
the facts in issue and
then, brushing aside as

wholly trivial and

indecisive all
imperfections of form
and technicalities of
procedure, asks that
justice be done upon
the merits. Lawsuits,
unlike duels, are not to
be won by the a
rapier's thrust ... 33
It is a ruling that almost eight
decades after it was rendered,
holds true as ever.
By Atty. Canlas' own account, "due
to lack of paying capacity of
respondent Herrera, no financing
entity was willing to extend him
any loan with which to pay the
redemption price of his mortgaged
properties and petitioner's
P100,000.00 attorney's fees
awarded in the Compromise
Judgment," 34 a development that
should have tempered his demand
for his fees. For obvious reasons,
he placed his interests over and
above those of his client, in
opposition to his oath to "conduct
himself as a lawyer ... with all good
fidelity ... to [his] clients." 35 The
Court finds the occasion fit to
stress that lawyering is not a
moneymaking venture and lawyers
are not merchants, a fundamental
standard that has, as a matter of
judicial notice, eluded not a few
law advocates. The petitioner's
efforts partaking of a shakedown"
of his own client are not becoming
of a lawyer and certainly, do not
speak well of his fealty to his oath
to "delay no man for money." 36
It is true that lawyers are entitled
to make a living, in spite of the fact
that the practice of law is not a
commercial enterprise; but that
does not furnish an excuse for plain
lust for material wealth, more so at
the expense of another. Law
advocacy, we reiterate, is not
capital that yields profits. The
returns it births are simple rewards
for a job done or service rendered.
It is a calling that, unlike mercantile
pursuits which enjoy a greater deal
of freedom from government
interference, is impressed with a
public interest, for which it is
subject to State regulation. 37Anent
attomey's fees, section 24, of Rule

222

Legal Ethics

138, of the Rules, provides in part

as follows:
SEC. 24. Compensation
of attorneys,
agreement as to fees.
An attorney shall be
entitled to have and
recover from his client
no more than a
reasonable
compensation for his
services, with a view to
the importance of the
subject matter of the
controversy, the extent
of the services
rendered, and the
professional standing of
the attorney... A written
contract for services
shall control the
amount to be paid
therefor unless found
by the court to be
unconscionable or
unreasonable.
So also it is decreed by Article 2208
of the Civil Code, reproduced in
part, as follows:
Art. 2208 ...
In all cases, the
attorney's fees and
expenses of litigation
must be reasonable.
We do not find the petitioner's
claim of attorney's fees in the sum
of P100,000.00 reasonable. We do
not believe that it satisfies the
standards set forth by the Rules.
The extent of the services he had
rendered in Civil Case No. 30679,
and as far as the records will yield,
is not impressive to justify payment
of such a gargantuan amount. The
case itself moreover did not involve
complex questions of fact or law
that would have required
substantial effort as to research or
leg work for the petitioner to
warrant his demands. The fact that
the properties subject thereof
commanded quite handsome prices
in the market should not be a
measure of the importance or nonimportance of the case. We are not
likewise persuaded that the
petitioner's stature warrants the
sum claimed.
All things considered, we reduce
the petitioner's fees, on a quantum
meruit basis, to P20,000.00.

It is futile to invoke the rule

granting attorneys a lien upon the
things won in litigation similar to
that vested upon
redemptioners. 38 To begin with,
the rule refers to realty sold as a
result of execution in satisfaction of
judgment. In this case, however,
redemption was decreed by
agreement (on compromise)
between the mortgagor and
mortgagee. It did not give the
petitioner any right to the
properties themselves, much less
the right of redemption, although
provisions for his compensation
were purportedly provided. It did
not make him a redemptioner for
the plain reason that he was not
named one in the amicable
settlement. To this extent, we
reverse Judge Pedro Santiago's
ruling in Civil Case No. 40066,
recognizing Atty. Canlas' "legal
right, independent of the
questioned deed of sale and
transfer which was executed
subsequently on May 3, 1983, to
redeem the subject realty from the
L & R Corporation pursuant to Sec.
29 (b), Rule 39 of the Rules of
Court." 39 Whatever right he had, it
was, arguably with respect alone to
his renumeration. It did not extend
to the lands.
Secondly, and assuming that such
a right exists, it must be in
proportion to the "just fees and
disbursements" 40due him. It is still
subject to the tempering hand of
this Court.
The Court notes a hidden agenda in
the petitioner's haste to execute
the compromise agreement and
subsequently, to force the transfer
of the properties to himself. As we
have observed, in spite of the
issuance of the writ of execution, it
does not appear that the petitioner
took pains to implement it. We find
this perplexing given his
passionate and persistent pleas
that he was entitled to the
proceeds. There can indeed be no
plausible explanation other than to
enable him to keep an "ace"
against the private respondent that
led finally, to the conveyance of
the properties in his favor. To be
sure, he would have us beheve that
by redeeming the same from the
223

Legal Ethics

mortgagee and by in fact parting

with his own money he had
actually done the private
respondent a favor, but this is to
assume that he did not get
anything out of the transaction.
Indeed, he himself admits that
"[t]itles to the properties have
been issued to the new owners
long before the filing of private
respondents [sic] petition for
annulment." 41 To say that he did
not profit therefrom is to take
either this Court or the petitioner
for naive, a proposition this Court is
not prepared to accept under the
circumstances.
We are likewise convinced that it
was the petitioner who succeeded
in having the private respondent
sign the "Deed of Sale and Transfer
of Rights of Equity of Redemption
and/or to Redeem," a pre-prepared
document apparently, that allowed
him (the petitioner) to exercise the
right of redemption over the
properties and to all intents and
purposes, acquire ownership
thereof. As we have earlier averred,
the private respondent, by reason
of bankruptcy, had become an
easy quarry to his counsel's moral
influence and ascendancy. We are
hard put to believe that it was the
private respondent who "earnestly
implored" 42 him to undertake the
redemption amid the former's
obstinate attempts to keep his
lands that have indeed led to the
multiple suits the petitioner now
complains of, apart from the fact
that the latter himself had
something to gain from the
transaction, as alluded to above.
We are of the opinion that in ceding
his right of redemption, the private
respondent had intended merely to
forestall the total loss of the
parcels to the mortgagee upon the
understanding that his counsel
shall acquire the same and keep
them therefore within reach,
subject to redemption by his client
under easier terms and conditions.
Surely, the petitioner himself would
maintain that he agreed to make
the redemption"in order that [he]
may already be paid the
P100,000.00 attorney's fees
awarded him in the Compromise
Agreement," 43 and if his sole

concern was his fees, there was no

point in keeping the properties in
their entirety.
The Court simply cannot fag for the
petitioner's pretensions that he
acquired the properties as a
gesture of magnanimity and
altruism He denies, of course,
having made money from it, but
what he cannot dispute is the fact
that he did resell the properties. 44
But if he did not entertain intents
of making any profit, why was it
necessary to reword the
conveyance document executed by
the private respondent? It shall be
recalled that the deed, as originally
drafted, provided for conveyance of
the private respondent's "rights of
equity of redemption and/or
redeem" 45 the properties in his
favor, whereas the instrument
registered with the Register of
Deeds purported to transfer "any
and all my rights of the real
properties and/or to redeem," 46 in
his favor. He admits having entered
the intercalations in question but
argues that he did so "to facilitate
the registration of the questioned
deed with the Register of
Deeds" 47 and that it did not
change the meaning of the paper,
for which Judge Santiago acquitted
him of any falsification
charges. 48 To start with, the Court
is at a loss how such an alteration
could "facilitate" registration.
Moreover, if it did not change the
tenor of the deed, why was it
necessary then? And why did he
not inform his client? At any rate,
the agreement is clearly a contract
of adhesion. Its provisions should
be read against the party who
prepared it.
But while we cannot hold the
petitioner liable for falsification
this is not the proper occasion for it
we condemn him nonetheless
for infidelity to his oath "to do no
falsehood" 49
This brings us to the final question:
Whether or not the conveyance in
favor of the petitioner is subject to
the ban on acquisition by attorneys
of things in litigation. The pertinent
provisions of the Civil Code state as
follows:
Art. 1491. The following
persons cannot acquire
224

Legal Ethics

by purchase, even at a
public or judicial action,
either in person or
through the mediation
of another:
(1) The guardian, the
property of the person
or persons who may be
under his guardianship;
(2) Agents, the
property whose
administration or sale
may have been
intrusted to them,
unless the consent of
the principal have been
given;
(3) Executors and
administrators, the
property of the estate
under administration;
(4) Public officers and
employees, the
property of the State or
of any subdivision
thereof, or of any
government owned or
controlled corporation,
or institution, the
administration of which
has been instrusted to
them; this provision
shall apply to judges
and government
experts who, in any
manner whatsoever,
take part in the sale;
(5) Justice judges
prosecuting attorneys
clerks of superior and
inferior courts, and
other officers and
employees connected
with the administration
of justice, the property
and rights in litigation
or levied upon an
execution before the
court within whose
jurisdiction or territory
they exercise their
respective functions;
this prohibition
includes the act of
acquiring by
assignment and shall
apply to lawyers, with
respect to the property
and rights which may
be the object of any
litigation in which they

may take part by virtue

of their profession.
(6) Any others specially
disqualified by law.**
In Rubias v. Batiller, 50 we declared
such contracts to be void by force
of Article 1409, paragraph (7), of
the Civil Code, defining inexistent
contracts. In Director of Lands v.
Ababa51 however, we said that the
prohibition does not apply to
contingent contracts, in which the
conveyance takes place after
judgment, so that the property can
no longer be said to be "subject of
litigation."
In the instant case, the Court
observes that the "Deed of Sale
and Transfer of Rights of Equity of
Redemption and/or to Redeem"
was executed following the finality
of the decision approving the
compromise agreement. It is
actually a new contract not one
in pursuance of what had been
agreed upon on compromise in
which, as we said, the petitioner
purportedly assumed redemption
rights over the disputed properties
(but in reality, acquired absolute
ownership thereof). By virtue of
such a subsequent agreement, the
lands had ceased to be properties
which are "the object of any
litigation." Parenthetically, the
Court states that a writ of
possession is improper to eject
another from possession unless
sought in connection with: (1) a
land registration proceeding; (2) an
extrajudicial foreclosure of
mortgage of real property; (3) in a
judicial foreclosure of property
provided that the mortgagor has
possession and no third party has
intervened; and (4) in execution
sales. 52 It is noteworthy that in this
case, the petitioner moved for the
issuance of the writ pursuant to the
deed of sale between him and the
private respondent and not the
judgment on compromise. (He was,
as we said, issued a writ of
execution on the compromise
agreement but as we likewise
observed, he did not have the
same enforced. The sale
agreement between the parties, it
should be noted, superseded the
compromise.) The writ does not lie

225

Legal Ethics

in such a case. His remedy is

specific performance.
At any rate, the transfer, so we
hold, is not subject to the
injunction of Article 1491 of the
Civil Code. But like all voidable
contracts, it is open to annulment
on the ground of mistake, fraud, or
undue influence, 53 which is in turn
subject to the right of innocent
purchasers for value. 54
For this reason, we invalidate the
transfer in question specifically for
undue influence as earlier detailed.
While the respondent Herrera has
not specifically prayed for
invalidation, this is the clear tenor
of his petition for annulment in the
Appellate Court. It appearing,
however, that the properties have
been conveyed to third persons
whom we presume to be innocent
purchasers for value, the
petitioner, Atty. Paterno Canlas,
must be held liable, by way of
actual damages, for such a loss of
properties.
We are not, however, condoning
the private respondent's own
shortcomings. In condemning Atty.
Canlas monetarily, we cannot
overlook the fact that the private
respondent has not settled his
hability for payment of the
properties. To hold Atty. Canlas
alone liable for damages is to
enrich said respondent at the
expense of his lawyer. The parties
must then set off their obligations
against the other. To obviate
debate as the actual amounts
owing by one to the other, we hold
Francisco Herrera, the private
respondent, liable to Atty. Paterno
Canlas, the petitioner, in the sum
of P654,000.00 representing the
redemption price of the
properties, 55 in addition to the sum
of P20,000. 00 as and for attomey's
fees. We order Atty. Canlas, in turn,
to pay the respondent Herrera the
amount of P1,000,000.00, the sum
he earned from the resale
thereof, 56 such that he shall, after
proper adjustments, be indebted to
his client in the sum of
P326,000.00 as and for damages.
Needless to say, we sustain the
action of the respondent Court of
Appeals in taking cognizance of the
petition below. But as we have

stated, we are compelled, as the

final arbiter of justiciable cases and
in the highest interests ofjustice, to
write finis to the controversy that
has taxed considerably the dockets
of the inferior courts.
Let the Court further say that while
its business is to settle actual
controversies and as a matter of
general policy, to leave alone moot
ones, its mission is, first and
foremost, to dispense justice. At
the outset, we have made clear
that from a technical vantage
point, certiorari, arguably lies, but
as we have likewise stated, the
resolution of the case rests not only
on the mandate of technical rules,
but if the decision is to have any
real meaning, on the merits too.
This is not the first time we would
have done so; in many cases we
have eschewed the rigidity of the
Rules of Court if it would establish
a barrier upon the administration
ofjustice. It is especially so in the
case at bar, in which no end to suit
and counter-suit appears imminent
and for which it is high time that
we have the final say. We likewise
cannot, as the overseer of good
conduct in both the bench and the
bar, let go unpunished what
convinces us as serious
indiscretions on the part of a
lawyer.
WHEREFORE, judgment is hereby
rendered.
1. ORDERING the petitioner, Atty.
Patemo Canlas, to pay to the
private respondent, Francisco
Herrera, the sum of P326,000.00,
as and for damages;
2. ORDERING the petitioner to
SHOW CAUSE why no disciplinary
action may be imposed on him for
violation of his oath, as a lawyer,
within ten (10) days from notice,
after which the same will be
consolidated with AC No. 2625;
3. DISMISSING this petition and
REMANDING the case to the
respondent Court of Appeals for
execution; and
4. ORDERING the petitioner to pay
costs.
SO ORDERED.

226

Legal Ethics

In re VICENTE SOTTO, for

contempt of court.
Vicente Sotto in his own
behalf.
This is a proceeding for
contempt of our court against
the respondent Atty. Vicente
Sotto, who was required by
their Court on December 7,
1948, to show cause why he
should not be punished for
contempt to court for having
issued a written statement in
connection with the decision
of this Court in In re Angel
Parazo for contempt of court,
which statement, as published
in the Manila Times and other
daily newspapers of the
locality, reads as follows:
As author of the Press
Freedom Law (Republic
Act No. 53.) interpreted
by the Supreme Court in
the case of Angel Parazo,
reporter of a local daily,
who now has to suffer 30
days imprisonment, for
his refusal to divulge the
source of a news
published in his paper, I
regret to say that our
High Tribunal has not
only erroneously
interpreted said law, but
that it is once more
putting in evidence the
incompetency of narrow
mindedness o the
majority of its members,
In the wake of so many
mindedness of the
majority deliberately
committed during these
last years, I believe that
the only remedy to put
an end to so much evil, is
to change the members
of the Supreme Court. To
his effect, I announce
that one of the first
measures, which as its
227

Legal Ethics

objects the complete

reorganization of the
Supreme Court. As it is
now constituted, a
constant peril to liberty
and democracy. It need
be said loudly, very
loudly, so that even the
deaf may hear: the
Supreme Court very of
today is a far cry from
the impregnable bulwark
of Justice of those
memorable times of
Cayetano Arellano,
Victorino Mapa, Manuel
Araullo and other learned
jurists who were the
honor and glory of the
Philippine Judiciary.
Upon his request, the
respondent was granted ten
days more besides the five
originally given him to file his
answer, and although his
answer was filed after the
expiration of the period of
time given him the said
answer was admitted. This
Court could have rendered a
judgment for contempt after
considering his answer,
because he does not deny the
authenticity of the statement
as it has been published. But,
in order to give the
respondent ample opportunity
to defend himself or justify the
publication of such libelous
statement, the case was set
for hearing or oral argument
on January 4, the hearing
being later postponed to
January 10, 1949. As the
respondent did not appear at
the date set for hearing, the
case was submitted for
decision.
In his answer, the respondent
does not deny having
published the above quoted
threat, and intimidation as
well as false and calumnious

charges against this Supreme

Court. But he therein
contends that under section
13, Article VIII of the
Constitution, which confers
upon this Supreme Court the
power to promulgate rules
concerning pleading, practice,
and procedure, "this Court has
no power to impose
correctional penalties upon
the citizens, and that the
Supreme Court can only
impose fines and
imprisonment by virtue of a
law, and has to be
promulgated by Congress with
the approval of the Chief
Executive." And he also
alleges in his answer that "in
the exercise of the freedom of
speech guaranteed by the
Constitution, the respondent
made his statement in the
press with the utmost good
faith and with no intention of
offending any of the majority
of the honorable members of
this high Tribunal, who, in his
opinion, erroneously decided
the Parazo case; but he has
not attacked, or intended to
attack the honesty or integrity
of any one.' The other
arguments set forth by the
respondent in his defenses
observe no consideration.
Rules 64 of the rules
promulgated by this court
does not punish as for
contempt of court an act
which was not punishable as
such under the law and the
inherent powers of the court
to punish for contempt. The
provisions of section 1 and 3
of said Rule 64 are a mere
reproduction of section 231
and 232 of the old Code of
Civil Procedure, Act No. 190,
amended, in connection with
the doctrine laid down by this
Court on the inherent power if
228

Legal Ethics

the superior courts to punish

for contempt is several cases,
among them In re Kelly, 35
Phil., 944. That the power to
punish for contempt is
inherent in all courts of
superior statue, is a doctrine
or principle uniformly
accepted and applied by the
courts of last resort in the
United States, which is
applicable in this jurisdiction
since our Constitution and
courts of justice are patterned
as expounded in American
Jurisprudence is as follows:
The power of inflicting
punishment upon
persons guilty of
contempt of court may
be regarded as an
essential element of
judicial authority, IT is
possessed as a part of
the judicial authority
granted to courts created
by the Constitution of the
United States or by the
Constitutions of the
several states. It is a
power said to be inherent
in all courts general
jurisdiction, whether they
are State or Federal;
such power exists in
courts of general
jurisdiction
independently of any
special express grant of
statute. In many
instances the right of
certain courts of
tribunals to punish for
contempt is expressly
bestowed by statue, but
such statutory
authorization is
unnecessary, so far as
the courts of general
jurisdiction are
concerned, and in
general adds nothing
statutory authority may

be necessary as
concerns the inferior
courts statutory
authority may be
necessary to empower
them to act. (Contempt,
12 Jur., pp. 418, 419.)
In conformity with the
principle enunciated in the
above quotation from
American Jurisprudence, this
Court, in In re Kelly, held the
following:
The publication of a
criticism of a party or of
the court to a pending
cause, respecting the
same, has always been
considered as
misbehavior, tending to
obstruct the
administration of justice,
and subjects such
persons to contempt
proceedings. Parties
have a constitutional
right to have their fairly
in court, by an impartial
tribunal, uninfluenced by
publications or public
clamor. Every citizen has
a profound personal
interest in the
enforcement of the
fundamental right to
have justice
administered by the
courts, under the
protection and forms of
law, free from outside
coercion or interference.
Any publication, pending
a suit, reflecting upon
the upon court, the
parties, the officers of
the court, the counsel,
etc., with reference to
the suit, or tending to
influence the decision of
the controversy, is
contempt of court and is
punishable. The power to
punish for contempt is
229

Legal Ethics

inherent in all court. The

summary power to
commit and punish for
contempt tending to
obstructed or degrade
the administration of
justice, as inherent in
courts as essential to the
execution of their powers
and to the maintenance
of their authority is a
part of the law of the
land. (In reKelly, 35 Phil.,
944, 945.)
Mere criticism or comment on
the correctness or wrongness,
soundness or unsoundness of
the decision of the court in a
pending case made in good
faith may be tolerated;
because if well founded it may
enlighten the court and
contribute to the correction of
an error if committed; but if it
is not well taken and
obviously erroneous, it should,
in no way, influence the court
in reversing or modifying its
decision. Had the respondent
in the present case limited
himself to as statement that
our decision is wrong or that
our construction of the
intention of the law is not
correct, because it is different
from what he, as proponent of
the original bill which became
a law had intended, his
criticism might in that case be
tolerated, for it could not in
any way influence the final
disposition of the Parazo case
by the court; inasmuch as it is
of judicial notice that the bill
presented by the respondent
was amended by both Houses
of Congress, and the clause
"unless the court finds that
such revelation is demanded
by the interest of the State"
was added or inserted; and
that, as the Act was passed by
Congress and not by any

particular member thereof,

the intention of Congress and
not that of the respondent
must be the one to be
determined by this Court in
applying said act.
But in the above-quoted
written statement which he
caused to be published in the
press, the respondent does
not merely criticize or
comment on the decision of
the Parazo case, which was
then and still is pending
reconsideration by this Court
upon petition of Angel Parazo.
He not only intends to
intimidate the members of
this Court with the
presentation of a bill in the
next Congress, of which he is
one of the members,
reorganizing the Supreme
Court and reducing the
members, reorganizing the
Supreme Court and reducing
the members of Justices from
eleven to seven, so as to
change the members of this
Court which decided the
Parazo case, who according to
his statement, are
incompetent and narrow
minded, in order to influence
the final decision of said case
by this Court, and thus
embarrass or obstruct the
administration of justice. But
the respondent also attacks
the honesty and integrity of
this Court for the apparent
purpose of bringing the
Justices of this Court into
disrepute and degrading the
administration of justice, for in
his above-quoted statement
he says:
In the wake of so many
blunders and injustices
deliberately committed
during these last years, I
believe that the only
remedy to put an end to
230

Legal Ethics

so much evil, is to
change the members of
the Supreme Court. To
this effect, I announce
that one of the first
measures, which I will
introduce in the coming
congressional sessions,
will have as its object the
complete reorganization
of the Supreme Court. As
it is now the Supreme
Court of today
constitutes a constant
peril to liberty and
democracy.
To hurl the false charge that
this Court has been for the
last years committing
deliberately "so many
blunders and injustices," that
is to say, that it has been
deciding in favor of one party
knowing that the law and
justice is on the part of the
adverse party and not on the
one in whose favor the
decision was rendered, in
many cases decided during
the last years, would tend
necessarily to undermine the
confidence of the people in
the honesty and integrity of
the members of this Court,
and consequently to lower or
degrade the administration of
justice by this Court. The
Supreme Court of the
Philippines is, under the
Constitution, the last bulwark
to which the Filipino people
may repair to obtain relief for
their grievances or protection
of their rights when these are
trampled upon, and if the
people lose their confidence in
the honesty and integrity of
the members of this Court and
believe that they cannot
expect justice therefrom, they
might be driven to take the
law into their own hands, and
disorder and perhaps chaos

might be the result. As a

member of the bar and an
officer of the courts Atty.
Vicente Sotto, like any other,
is in duty bound to uphold the
dignity and authority of this
Court, to which he owes
fidelity according to the oath
he has taken as such
attorney, and not to promote
distrust in the administration
of justice. Respect to the
courts guarantees the stability
of other institutions, which
without such guaranty would
be resting on a very shaky
foundation.
Respondent's assertion in his
answer that "he made his
statement in the press with
the utmost good faith and
without intention of offending
any of the majority of the
honorable members of this
high Tribunal," if true may
mitigate but not exempt him
from liability for contempt of
court; but it is belied by his
acts and statements during
the pendency of this
proceeding. The respondent in
his petition of December 11,
alleges that Justice Gregorio
Perfecto is the principal
promoter of this proceeding
for contempt, conveying
thereby the idea that this
Court acted in the case
through the instigation of Mr.
Justice Perfecto.
It is true that the
constitutional guaranty of
freedom of speech and the
press must be protected to its
fullest extent, but license or
abuse of liberty of the press
and of the citizen should not
be confused with liberty in its
true sense. As important as
the maintenance of an
unmuzzled press and the free
exercise of the right of the
citizen, is the maintenance of
231

Legal Ethics

the independence of the

judiciary. As Judge Holmes
very appropriately said U.
S vs Sullens (1929), 36 Fed.
(2nd), 230, 238, 239: "The
administration of justice and
the freedom of the press,
though separate and distinct,
are equally sacred, and
neither should be violated by
the other. The press and the
courts have correlative rights
and duties and should
cooperate to uphold the
principles of the Constitution
and laws, from which the
former receives its
prerogatives and the latter its
jurisdiction. The right of
legitimate publicity must be
scrupulously recognized and
care taken at all times to
avoid impinging upon it. In a
clear case where it is
necessary, in order to dispose
of judicial business
unhampered by publications
which reasonably tend to
impair the impartiality of
verdicts, or otherwise obstruct
the administration of justice,
this court will not hesitate to
exercise its undoubted power
to punish for contempt. This
Court must be permitted to
proceed with the disposition if
its business in an orderly
manner free from outside
interference obstructive of its
constitutional functions. This
right will be insisted upon as
vital to an impartial court,
and, as a last resort, as a
individual exercises the right
of self-defense, it will act to
preserve its existence as an
unprejudiced tribunal. . . ."
It is also well settled that an
attorney as an officer of the
court is under special
obligation to be respectful in
his conduct and
communication to the courts,

he may be removed from

office or stricken from the roll
of attorneys as being guilty of
flagrant misconduct (17 L. R.
A. [N.S.], 586, 594).
In view of all the foregoing, we
find the respondent Atty.
Vicente Sotto guilty of
contempt of this Court by
virtue of the above-quoted
publication, and he is hereby
sentenced to pay, within the
period of fifteen days from the
promulgation of this
judgment, a fine of P1,000,
with subsidiary imprisonment
in case of insolvency.
The respondent is also hereby
required to appear, within the
same period, and show cause
to this Court why he should
not be disbarred form
practicing as an attorney-atlaw in any of the courts of this
Republic, for said publication
and the following statements
made by him during the
pendency of the case against
Angel Parazo for contempt of
Court.
In his statement to the press
as published in the Manila
Times in its issue of December
9, 1948, the respondent said
"The Supreme Court can send
me to jail, but it cannot close
my mouth; " and in his other
statement published on
December 10, 1948, in the
same paper, he stated among
others: "It is not the
imprisonment that is
degrading, but the cause of
the imprisonment." In his Rizal
day speech at the Abellana
High School in Cebu,
published on January 3, 1949,
in the Manila Daily Bulletin,
the respondent said that
"there was more freedom of
speech when American
Justices sat in the Tribunal
than now when it is composed
232

Legal Ethics

of our countrymen;" reiterated

that "even if it succeeds in
placing him behind bars, the
court can not close his
mouth," and added: "I would
consider imprisonment a
precious heritage to leave for
those who would follow me
because the cause is noble
and lofty." And the Manila
Chronicle of January 5
published the statement of
the respondent in Cebu to the
effect that this Court "acted
with malice" in citing him to
appear before this Court on
January 4 when "the members
of this Court know that I came
here on vacation." In all said
statements the respondent
misrepresents to the public
the cause of the charge
against him for contempt of
court. He says that the cause
is for criticizing the decision of
this Court in said Parazo case
in defense of the freedom of
the press, when in truth and in
fact he is charged with
intending to interfere and
influence the final disposition
of said case through
intimidation and false
accusations against this
Supreme Court. So ordered.

233

Legal Ethics

THE PEOPLE OF THE

PHILIPPINES, plaintiffappellee,
vs.
LIBERATO GAGUI, ET
AL., defendants.
EUSEBIO V.
NAVARRO, respondent.
On November 8, 1957, when
Criminal Case No. 2193 of the
Court of First Instance of
Pampanga was called for trial,
Atty. Eusebio V. Navarro,
counsel of record for one of
the accused, failed to appear
and forthwith the court issued
an order, which is
quoted verbatim as follows:
By virtue of the order
dated October 8, 1957,
the assignment of this
case was set for today,
November 8, 1957.
Present were Fiscal Pedro
S. David and counsel, Mr.
Ahmed Garcia, for the
accused Arsenio Mangila.
Attached to the record is
an urgent motion for
postponement filed by
Mr. Eusebio Navarro,
counsel for the other
accused Liberato Gagui,
alleging that he cannot
attend to this case, as he
is engaged in a civil case
in the Court of First
Instance of Camarines
Sur.
The record clearly shows
that when the trial was
set for November 8,
1957, it was done in
open court and after
consultation with Mr.
Navarro. As a matter of
fact, the court ordered
the detail of a Tagalog
interpreter. The said
interpreter is also
present.

The reasons given by Mr.

Navarro are not
satisfactory. Mr. Navarro
is fully aware of the fact
that this case has been
pending for a
considerable length of
time. He should have,
therefore, given priority
to this case.
IN VIEW OF THE
FOREGOING, the Court
hereby imposes a fine of
P100.00 upon Mr.
Navarro for delaying this
criminal case. The court
announces in advance
that it will not reconsider
this order.
Reset the trial on January
7, 1958, at 9:00 o'clock
in the morning.
Let a copy of this order
be served upon the
Department of Justice for
the detail again of the
Tagalog interpreter on
the said date.
In another order issued on
November 16, 1957, the
above quoted order was
amended by providing in the
dispositive part thereof that
"in the event that Mr. Navarro
fails to pay the fine of P100.00
he shall suffer a subsidiary
imprisonment not to exceed
five (5) days." Subsequently,
on December 2, 1957, the
lower court issued still
another order warning Atty.
Navarro "that if he fails to pay
the said fine on or before
December 14, 1957, the court
will order his arrest and
confinement."
From the three orders above
referred to, Atty. Eusebio V.
Navarro has interposed the
present appeal.
It would appear that for the
absence from court of the
appellant Atty. Navarro when
234

Legal Ethics

Criminal Case No. 2193, in

which he was counsel of
record for one of the accused,
was called for trial, the lower
court summarily adjudged him
guilty of direct contempt and
sentenced him to pay a fine
under penalty of
imprisonment if he fails to do
so within a given period.
In our opinion, the contempt
supposed to have been
committed by appellant is not
a direct contempt so as to be
summarily punishable under
section 1 of Rule 64, for it is
not a misbehavior in the
presence of or so near a court
or judge as to interrupt the
administration of justice. If
any contempt occurred he
failure of said appellant to
appear for trial under the
circumstances mentioned in
the order of November 8,
1957 complained of, it would
be an indirect contempt,
punishable only after written
charge and hearing, under
section 3 of the same Rule 64,
paragraph (b) of which
mentions "disobedience of or
resistance to a lawful writ,
process, order, judgment, or
command of a court, or
injunction granted by a court
or judge." As held in the case
of Rivera vs. Arellano (83 Phil.
744)
. . . failure or refusal of
an accused or of his
attorney to appear from
trial comes closer to the
definition of indirect
contempt in paragraph
(b) of section 3 (Rule 64)
than to a misbehavior in
the presence of or near
the court contemplated
in Section 1.
In State vs. Winthrop,
148 Wash., 526 P. 793;
59 A.L.R. 1265, it was

held that the unexcused

absence of an attorney
from the court when a
case in which he was
attorney of record for
one of the parties was
called for trial is not a
contempt occurring in
the presence or view of
the court, so as to be
summarily punishable,
but contempt therein, if
any occurred, away from,
and out of, the presence
of the court, and he is
not subject to discipline
and punishment, other
than by a charge being
first made against him
substantially as required
by statute.' (Footnote, 12
Am. Jur. Sec. 11, p. 396).
In Finnick vs. Peterson, 6
Phil. 172, this Court said:
'A witness who fails or
refuses to comply with a
subpoena duces tecum is
guilty of contempt. Such
contempt is not
committed in the
presence of the court,
even though, upon
appearance of the
witness, the court should
make a verbal order
commanding him to
comply with the terms of
the subpoena. Such a
witness can not be
punished summarily. He
is entitled to the hearing
provided for under
sections 232-240 of the
Code of Procedure in Civil
Actions. (See also
Francisco vs. Enriquez, G.
R. No. L-7058, March 20,
1954.) .
It clearly appearing that no
charge in writing for contempt
has been filed against herein
appellant, nor An opportunity
given to him to be heard by
235

Legal Ethics

himself or counsel, Are find

and so hold that the lower
court acted in excess if not in
grave abuse, of its jurisdiction
in proceeding against and
declaring said appellant guilty
of contempt. (See. 3, Rule 64;
Nava vs. Teodoro, et al., G.R.
No. L-10074, April 30, 1959).
Having arrived at the above
conclusion, we deem it
unnecessary to pass upon the
other questions raised by
appellant.
WHEREFORE, the orders
complained of are hereby set
aside. So ordered without
costs.

236

Legal Ethics

SPS. APOLINARIO MELO and

LILIA T. MELO, and JULIA
BARRETO, petitioners,
vs.
THE HON. COURT OF APPEALS
and ARSENIA
CORONEL, respondents.
This is a petition for review
on certiorari of the resolution 1 of
the Court of Appeals, dated January
2, 1996, affirming the denial by the
Regional Trial Court, Branch 57,
Angeles City, of the motion to
dismiss filed by petitioners spouses
Apolinario and Lilia Melo and Julia
Barreto.
The facts are not disputed:
Private respondent Arsenia Coronel
mortgaged to the Rural Bank of
Mabalacat, Inc. a parcel of land in
Angeles City, covered by T.C.T. No.
43872, to secure a loan of
P60,000.00. Because of her failure
to pay the loan, the bank caused
the extra-judicial foreclosure of the
mortgage pursuant to Act. No.
3135, as amended by Act No. 4118,
as a result of which the land was
sold to petitioners as the highest
bidders. Petitioners then filed a
Petition for the Ex-Parte Issuance of
a Writ of Possession with the
Regional Trial Court, Branch 60,
Angeles City. 2
To counter the petition, private
respondent filed, on June 8, 1995, a
complaint for injunction against
petitioners in the Regional Trial
Court, Branch 57, Angeles City. In
turn, petitioners moved to dismiss
private respondent's action on the
following grounds: (1) litis
pendentia; (2) forum shopping; and
(3) failure of private respondent to
attach a certification of non-forum
shopping to her complaint. 3
On July 3, 1995, private respondent
amended her complaint by
including the certification of nonforum shopping which stated: 4
AMENDED
VERIFICATION/CERTIFIC
ATION
I, ARSENIA CORONEL,
being duly sworn in
accordance with law do
hereby declare and
depose:
1. That I am the
plaintiff in Civil Case

No. 8022 filed before

Branch 57 of the
Regional Trial Court of
Angeles City;
2. That I caused the
foregoing complaint to
be prepared and have
read and understood
the allegations thereof;
3. That said allegations
are true and correct of
my own personal
knowledge;
4. That I have not
commenced any other
complaint/petition
involving the same
issues similar to the
instant complaint;
5. That to the best of
my knowledge or
belief, there is no other
complaint/petition filed
involving the same
issues at bar;
6. That there is,
however, a Petition for
Issuance of Writ of
Possession filed against
me by the defendants
herein docketed as
Cad. Case No. A-124694 before Branch 60
of the Regional Trial
Court, Angeles City;
7. That I execute this
affidavit to attest to the
truth of the foregoing.
FURTHER AFFIANT
SAYETH NONE.
(SGD. ARSENIA
CORONEL)
On August 7, 1995, the trial court
denied petitioners' motion to
dismiss explaining
A reading of the
complaint shows that
the plaintiff, in order to
exercise her right of
redemption, seeks to
prevent the defendants
and the Register of
Deeds of Angeles City
from doing something.
Paragraph 14 of the
complaint reads as
follows:
14. That
defendants
are about
to
237

Legal Ethics

consolidate
the
ownership
of the
plaintiff's
property
(T.C.T. No.
43872 of
the
Register of
Deeds of
Angeles
City) in
their
names and
register the
said
consolidati
on of
ownership
with the
Register of
Deeds of
Angeles
City, upon
the expiry
date of the
redemption
period
(June 9,
1995); the
desire and
willingness
of the
plaintiff to
exercise
her right of
redemption
notwithstan
ding.
It only avers that she
has a right to redeem
the property and that
she is entitled to the
reliefs prayed for, such
as the issuance of a
permanent injunction.
Furthermore, the
complaint states a
sufficient cause of
action which is set out
in its paragraph 4 to 6,
inclusive, that is, the
right to redeem the
property and to prevent
the defendant-spouses
Apolinario Melo and
Lilia T. Melo and
defendant Julio Barreto
to consolidate their

ownership over the

property.
xxx xxx xxx
On Forum Shopping:
In the case at bar,
there is no forum
shopping. There is
forum shopping
whenever, as a result
of an adverse opinion
in one forum, a party
seeks a favorable
opinion (other than by
appeal or certiorari) in
another, and the
principle applies not
only with respect to
suits filed in the courts
while an administrative
proceeding is pending,
in order to defeat
administrative
processes and in
anticipation of an
unfavorable
administrative ruling
and a favorable court
ruling.
The petition for the
issuance of a writ of
possession and the
present case, as
heretofore stated, are
oceans apart, so to
speak. Thus, even if a
writ of possession is
issued, this will not
prevent the plaintiff
from exercising her
right to redeem the
property, if warranted.
And it may be added
that an indemnity bond
is required to be posted
in order that
possession may then
be obtained under a
writ which may be
applied for ex-parte,
pursuant to Section 7
of Act 3135 as
amended by Act 116.
Plaintiff, in compliance
with Circular No. 28-91
and Section 17 of the
Interim Rules and
Guidelines, submitted
an Amended
Verification/Certificatio
n.

238

Legal Ethics

On certiorari brought by
petitioners, the Court of Appeals
upheld the trial court's order. It
ruled:
What happened in this
case was totally
different since the exparte petition for the
issuance of a writ of
possession was filed by
the petitioners against
private respondent. On
the other hand, the
complaint with
preliminary injunction
was filed by the private
respondent against
herein petitioners. It is
not a case, therefore,
of the private
respondent instituting
two (2) remedies in two
(2) different fora. Her
case entailed only one
(1) forum, to be
precise, with the RTC,
Branch 57.
Hence, this petition for review
on certiorari, raising the following
issues: (1) whether private
respondent is guilty of forum
shopping by filing her complaint
with preliminary injunction before
the Regional Trial Court, Branch 57,
Angeles City when there was a
Petition for Ex-Parte Issuance of
Writ of Possession pending before
Branch 60 of the same court; and
(2) whether there was substantial
compliance by private respondent
with the rule requiring the
submission of a certification of nonforum shopping together with
initiatory pleadings.
We shall deal with these issues
seriatim.
To begin with, the essence of
forum-shopping is the filing of
multiple suits involving the same
parties for the same cause of
action, either simultaneously or
successively, for the purpose of
obtaining a favorable judgment. 5 It
exists where the elements of litis
pendentia are present or where a
final judgment in one case will
amount to res judicata in
another. 6 On the other hand,
for litis pendentia to be a ground
for the dismissal of an action, the
following requisites must concur:

(a) identity of parties, or at least

such parties who represent the
same interests in both actions; (b)
identity of rights asserted and relief
prayed for, the relief being founded
on the same facts; and (c) the
identity with respect to the two
preceding particulars in the two
cases is such that any judgment
that may be rendered in the
pending case, regardless of which
party is successful, would amount
to res judicata in the other case. 7
But, in the instant case, the
petition for the Ex-Parte Issuance
of a Writ of Possession which
petitioners filed involved a different
cause of action from the complaint
for injunction filed by private
respondent. Petitioners sought
possession of the subject property,
whereas private respondent sought
to enjoin them from consolidating
title over the same. Petitioners'
action is founded on Act No. 3135,
7, which gives the purchaser at a
public auction the right to have
possession of the property sold to
him during the redemption period
even if eventually they do not
succeed in consolidating their title
to it. On the other hand, private
respondents' action is based on
R.A. No. 337, 78, which gives a
mortgagor the right to redeem the
property sold at foreclosure sale
within one year thereof. Thus,
private respondent could very well
oppose petitioners' action to obtain
possession of the property while
trying to prevent them from
consolidating title in a separate
case. The decision in one is not
conclusive of the other.
Nonetheless, petitioners contend
that private respondent failed to
comply with the requirements of
Administrative Circular No. 09-94
on non-forum shopping and,
therefore, her complaint should
have been dismissed by the trial
court. We find this contention to be
well taken.
Administrative Circular No. 09-94
states in pertinent parts:
The plaintiff, petitioner,
applicant or principal
party seeking relief in
the complaint, petition,
application or other
initiatory pleadings
239

Legal Ethics

shall certify under oath

in such original
pleadings, or in a sworn
certification annexed
thereto and
simultaneously filed
therewith, to the truth
of the following facts
and undertakings: (a)
he has not heretofore
commenced any other
action or proceeding
involving the same
issues in the Supreme
Court, the Court of
Appeals, or any other
tribunal or agency; (b)
to the best of his
knowledge, no such
action or proceeding is
pending in the
Supreme Court, the
Court of Appeals, or
any other tribunal or
agency; (c) if there is
any such action or
proceeding which is
either pending or may
have been terminated,
he must state the
status thereof; and, (d)
if he should thereafter
learn that a similar
action or proceeding
has been filed or is
pending before the
Supreme Court, the
Court of Appeals or any
other tribunal or
agency, he undertakes
to report that fact
within five (5) days
therefrom to the court
or agency wherein the
original pleading and
sworn certification
contemplated herein
have been filed.
xxx xxx xxx
Any violation of this
Circular shall be cause
for the dismissal of the
complaint, petition,
application or other
initiatory pleading,
upon motion and after
hearing. However, any
clearly willful and
deliberate forum
shopping by any party
and his counsel

through the filing of

multiple complaints or
other initiatory
pleadings to obtain
favorable action shall
be a ground for
summary dismissal
thereof and shall
constitute direct
contempt of court.
Furthermore, the
submission of a false
certification or noncompliance with the
undertakings therein,
as provided in
Paragraph 1 hereof,
shall constitute indirect
contempt of court,
without prejudice to
disciplinary
proceedings against
the counsel and the
filing of a criminal
action against the
guilty party.
The requirement to file a certificate
of non-forum shopping is
mandatory. 8 Failure to comply with
this requirement cannot be
excused by the fact that plaintiff is
not guilty of forum shopping. The
Court of Appeals, therefore, erred
in concluding that Administrative
Circular No. 04-94 did not apply to
private respondent's case merely
because her complaint was not
based on petitioner's cause of
action. The Circular applies to any
complaint, petition, application, or
other initiatory pleading, regardless
of whether the party filing it has
actually committed forum
shopping. Every party filing a
complaint or any other initiatory
pleading is required to swear under
oath that he has not committed nor
will he commit forum shopping.
Otherwise, we would have an
absurd situation where the parties
themselves would be the judge of
whether their actions constitute a
violation of said Circular, and
compliance therewith would
depend on their belief that they
might or might not have violated
the requirement. Such
interpretation of the requirement
would defeat the very purpose of
Circular 04-94.

240

Legal Ethics

Indeed, compliance with the

certification against forum
shopping is separate from, and
independent of, the avoidance of
forum shopping itself. Thus, there is
a difference in the treatment in
terms of imposable sanctions
between failure to comply with the
certification requirement and
violation of the prohibition against
forum shopping. The former is
merely a cause for the dismissal,
without prejudice, of the complaint
or initiatory pleading, while the
latter is a ground for summary
dismissal thereof and constitutes
direct contempt.
Nor can subsequent compliance
with the requirement excuse a
party's failure to comply in the first
instance. As Justice Regalado
explains in his works on the
Revised Rules of Civil Procedure:
1. This section, with
modifications, is taken
from Administrative
Circular No. 04-94
issued by the Supreme
Court on February 8,
1994 for this purpose
explained therein:
Revised Circular No.
28-91, dated February
8, 1994 applies to and
governs the filing of
petitions in the
Supreme Court and the
Court of Appeals and is
intended to prevent the
multiple filing of
petitions or complaints
involving the same
issues in other
tribunals or agencies as
a form of forum
shopping.
Complementary
thereto and for the
same purpose, the
following requirements,
in addition to those in
pertinent provisions of
the Rules of Court and
existing circulars, shall
be strictly complied
with in the filing of
complaints, petitions,
applications or other
initiatory pleadings in
all courts and agencies
other than the

Supreme Court and the

Court of Appeals and
shall be subject to the
sanctions provided
hereunder.
The provisions of
Revised Circular No.
28-91 have been
adopted and
incorporated in Rules
42, 43, 45, 46, 47, 64
and 65.
2. Aside from some
amendments to the
original sanctions
imposed in
Administrative Circular
04-94, this section
reiterates as a regular
requirement under the
Rules that the
certification against
forum shopping may be
incorporated in the
complaint or contained
in a sworn certification
annexed thereto and
simultaneously filed
therewith. This
enunciates the policy of
the Supreme Court
expressed as early as
Circular No. 1-88 that
subsequent compliance
with the requirements
for the filing of
petitions or motions is
not a ground for
reconsideration of the
dismissal of said
pleadings, except for
compelling reasons. In
light hereof, the view
that belated filing of
the certification may be
deemed a substantial
compliance should no
longer be sustained.
With respect to the
contents of the
certification which the
pleader may prepare,
the rule of substantial
compliance may be
availed of. While this
section requires that it
be strictly complied
with, it merely
underscores its
mandatory nature in
that it cannot be
241

Legal Ethics

altogether dispensed
with or its requirement
completely disregarded
but it does not thereby
prevent substantial
compliance on this
aspect of its provisions
under justifiable
circumstances
(see Gabionza vs. Court
of Appeals, et al., G.R.
No. 112547, July 18,
1994). This certification
on non-forum shopping
was designed to
promote and facilitate
the orderly
administration of
justice and, therefore,
should not be
interpreted with
absolute literalness
(Loyola vs. Court of
Appeals, et al., G.R. No.
117186, June 29,
1995).
More importantly, this
section specifically
states that the
"(f)ailure to comply
with the foregoing
requirements shall not
be curable by mere
amendment of the
complaint or other
initiatory pleading but
shall be cause for the
dismissal of the case
without prejudice,
unless otherwise
provided, upon motion
and after hearing." This
will obviate the former
practice of some trial
courts in allowing
amendment of the
incomplete pleading for
the incorporation
therein of the
certificate against
forum shopping. That
was erroneous since
this undertaking
against multiple filing
of cases is not part of
the operative facts
required to be alleged
in an initiatory
pleading, such as
allegations on the
cause of action, but is a

special requirement for

admission of the
initiatory pleading for
filing in court, hence
the absence thereof is
not curable by mere
amendment.
Instead, the case shall
be dismissed on motion
but, just like the
practice under Revised
Circular No. 28-91 in
the appellate courts,
such dismissal shall be
without prejudice. This
more liberal rule is
distinguishable from
the effects of dismissal
of the case for noncompliance with the
Rules under the
provisions of Sec. 3,
Rule 17 which
presupposes the
pendency of the case,
whereas what is
contemplated in this
section is the initiation
of the case. The case
may consequently be
refiled within the
balance of the
reglementary period
but subject to the
provisions on
prescription of actions.
In those cases in which we excused
non-compliance with the
requirements of Administrative
Circular No. 04-94, there were
special circumstances or
compelling reasons which made
the strict application of said
Circular clearly unjustified. 9 In
contrast private respondent gave
no reason at all for her failure to
submit the certificate in question.
Indeed, she cannot even feign
ignorance of the Circular as her
complaint was filed more than one
year after the effectivity thereof.
We are not unmindful of the
adverse consequence to private
respondent of a dismissal of her
complaint, nor of the time, effort,
and money spent litigating up to
this Court solely on a so-called
technical ground. Nonetheless, we
hold that compliance with the
certification requirement on nonforum shopping should not be
242

Legal Ethics

made subject to a party's

afterthought, lest the policy of the
law be undermined.
WHEREFORE, the resolution of the
Court of Appeals is REVERSED, the
orders of the Regional Trial Court of
Angeles City, Branch 57, in Civil
Case No. 8022 are SET ASIDE, and
the complaint filed against
petitioners is DISMISSED without
prejudice.
SO ORDERED.

243

Legal Ethics

RE: LETTER OF THE UP

LAW FACULTY ENTITLED
"RESTORING INTEGRITY: A
STATEMENT BY THE
FACULTY OF THE
UNIVERSITY OF THE
PHILIPPINES COLLEGE OF
LAW ON THE ALLEGATIONS
OF PLAGIARISM AND
MISREPRESENTATION IN
THE SUPREME COURT"

For disposition of the Court

are the various submissions of
the
37
respondent
law
1
professors in response to the
Resolution dated October 19,
2010
(the
Show
Cause
Resolution), directing them to
show cause why they should
not be disciplined as members
of the Bar for violation of
specific provisions of the Code
of Professional Responsibility
enumerated therein.
At the outset, it must be
stressed that the Show Cause
Resolution clearly dockets this
as an administrative matter,
not a special civil action for
indirect contempt under Rule
71 of the Rules of Court,
contrary to the dissenting
opinion of Associate Justice
Maria Lourdes P. A. Sereno
(Justice Sereno) to the said
October 19, 2010 Show Cause
Resolution. Neither is this a
disciplinary
proceeding
grounded on an allegedly
irregularly concluded finding
of
indirect
contempt
as
intimated by Associate Justice
Conchita
Carpio
Morales
(Justice
Morales)
in
her
dissenting opinions to both
the October 19, 2010 Show
Cause Resolution and the
present decision.

With the nature of this case as

purely a bar disciplinary
proceeding firmly in mind, the
Court finds that with the
exception of one respondent
whose
compliance
was
adequate and another who
manifested he was not a
member of the Philippine Bar,
the submitted explanations,
being mere denials and/or
tangential to the issues at
hand,
are
decidedly
unsatisfactory. The proffered
defenses even more urgently
behoove this Court to call the
attention of respondent law
professors, who are members
of the Bar, to the relationship
of their duties as such under
the Code of Professional
Responsibility to their civil
rights
as
citizens
and
academics in our free and
democratic republic.
The provisions of the Code of
Professional
Responsibility
involved in this case are as
follows:
CANON 1 A lawyer shall
uphold the constitution, obey
the laws of the land and
promote respect for law and
legal processes.
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.
CANON 10 - A lawyer owes
candor, fairness and good
faith to the court.
Rule 10.01 - A lawyer
shall
not
do
any
falsehood, nor consent to
the doing of any in court;
244

Legal Ethics

nor shall he mislead, or

allow the Court to be
misled by any artifice.
Rule 10.02 - A lawyer
shall
not
knowingly
misquote
or
misrepresent
the
contents of paper, the
language
or
the
argument of opposing
counsel, or the text of a
decision or authority, or
knowingly cite as law a
provision
already
rendered inoperative by
repeal or amendment, or
assert as a fact that
which has not been
proved.
Rule 10.03 - A lawyer
shall observe the rules of
procedure and shall not
misuse them to defeat
the ends of justice.
CANON 11 A lawyer shall
observe and maintain the
respect due to the courts and
to judicial officers and should
insist on similar conduct by
others.
RULE 11.05 A lawyer
shall submit grievances
against a Judge to the
proper authorities only.
CANON 13 A lawyer shall
rely upon the merits of his
cause and refrain from any
impropriety which tends to
influence,
or
gives
the
appearance of influencing the
court.
Established jurisprudence will
undeniably support our view
that when lawyers speak their
minds, they must ever be
mindful of their sworn oath to
observe ethical standards of

their
profession,
and
in
particular, avoid foul and
abusive language to condemn
the Supreme Court, or any
court for that matter, for a
decision it has rendered,
especially
during
the
pendency of a motion for such
decisions
reconsideration.
The accusation of plagiarism
against a member of this
Court is not the real issue
here but rather this plagiarism
issue has been used to deflect
everyones attention from the
actual concern of this Court to
determine by respondents
explanations whether or not
respondent members of the
Bar have crossed the line of
decency
and
acceptable
professional
conduct
and
speech and violated the Rules
of Court through improper
intervention or interference as
third parties to a pending
case. Preliminarily, it should
be stressed that it was
respondents themselves who
called upon the Supreme
Court
to
act
on
their
2
Statement, which
they
formally submitted, through
Dean Marvic M.V.F. Leonen
(Dean Leonen), for the Courts
proper
disposition.
Considering the defenses of
freedom
of
speech
and
academic freedom invoked by
the respondents, it is worth
discussing here that the legal
reasoning used in the past by
this Court to rule that freedom
of expression is not a defense
in
administrative
cases
against lawyers for using
intemperate speech in open
court or in court submissions
can similarly be applied to
respondents invocation of
academic freedom. Indeed, it
is
precisely
because
respondents are not merely
245

Legal Ethics

lawyers but lawyers who

teach law and mould the
minds of young aspiring
attorneys that respondents
own non-observance of the
Code
of
Professional
Responsibility,
even
if
purportedly motivated by the
purest of intentions, cannot be
ignored nor glossed over by
this Court.
To fully appreciate the grave
repercussions of respondents
actuations, it is apropos to
revisit the factual antecedents
of this case.
BACKGROUND OF THE CASE
Antecedent
Proceedings

Facts

and

On April 28, 2010, the

ponencia of Associate Justice
Mariano del Castillo (Justice
Del Castillo) in Vinuya, et al. v.
Executive Secretary (G.R. No.
162230) was promulgated. On
May 31, 2010, the counsel3 for
Vinuya, et al. (the "Malaya
Lolas"), filed a Motion for
Reconsideration of the Vinuya
decision, raising solely the
following grounds:
I. Our own constitutional
and
jurisprudential
histories
reject
this
Honorable Courts (sic)
assertion
that
the
Executives foreign policy
prerogatives are virtually
unlimited;
precisely,
under
the
relevant
jurisprudence
and
constitutional provisions,
such prerogatives are
proscribed
by
international
human
rights and humanitarian
standards,
including
those provided for in the

relevant
international
conventions of which the
Philippines is a party.4
II. This Honorable Court
has confused diplomatic
protection
with
the
broader, if fundamental,
responsibility of states to
protect the human rights
of its citizens especially
where
the
rights
asserted are subject of
erga omnes obligations
and pertain to jus cogens
norms.5
On July 19, 2010,6 counsel for
the Malaya Lolas, Attys. H.
Harry L. Roque, Jr. (Atty.
Roque) and Romel Regalado
Bagares (Atty. Bagares), filed
a Supplemental Motion for
Reconsideration in G.R. No.
162230, where they posited
for the first time their charge
of plagiarism as one of the
grounds for reconsideration of
the Vinuya decision. Among
other arguments, Attys. Roque
and Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS
HIGHLY IMPROPER FOR THIS
HONORABLE
COURTS
JUDGMENT OF APRIL 28, 2010
TO PLAGIARIZE AT LEAST
THREE SOURCES AN ARTICLE
PUBLISHED IN 2009 IN THE
YALE
LAW
JOURNAL
OF
INTERNATIONAL LAW, A BOOK
PUBLISHED
BY
THE
CAMBRIDGE
UNIVERSITY
PRESS IN 2005 AND AN
ARTICLE PUBLISHED IN 2006
IN
THE
CASE
WESTERN
RESERVE
JOURNAL
OF
INTERNATIONAL LAW AND
MAKE IT APPEAR THAT THESE
SOURCES
SUPPORT
THE
JUDGMENTS
ARGUMENTS
246

Legal Ethics

FOR DISMISSING THE INSTANT

PETITION WHEN IN TRUTH,
THE PLAGIARIZED SOURCES
EVEN MAKE A STRONG CASE
FOR THE PETITIONS CLAIMS.7
They also claimed that "[i]n
this controversy, the evidence
bears out the fact not only of
extensive plagiarism but of
(sic) also of twisting the true
intents of the plagiarized
sources by the ponencia to
suit the arguments of the
assailed Judgment for denying
the Petition."8
According to Attys. Roque and
Bagares, the works allegedly
plagiarized in the Vinuya
decision were namely: (1)
Evan J. Criddle and Evan FoxDecents article "A Fiduciary
Theory of Jus Cogens;"9 (2)
Christian
J.
Tams
book
Enforcing
Erga
Omnes
Obligations in International
Law;10 and (3) Mark Ellis
article "Breaking the Silence:
On Rape as an International
Crime."11
On the same day as the filing
of the Supplemental Motion
for Reconsideration on July 19,
2010, journalists Aries C. Rufo
and Purple S. Romero posted
an article, entitled "SC justice
plagiarized parts of ruling on
comfort women," on the
Newsbreak
website.12 The
same article appeared on the
GMA News TV website also on
July 19, 2010.13
On July 22, 2010, Atty.
Roques
column,
entitled
"Plagiarized
and
Twisted,"
appeared
in
the
Manila
14
Standard Today. In the said
column, Atty. Roque claimed
that Prof. Evan Criddle, one of
the authors purportedly not

properly acknowledged in the

Vinuya decision, confirmed
that his work, co-authored
with Prof. Evan Fox-Decent,
had been plagiarized. Atty.
Roque quoted Prof. Criddles
response to the post by Julian
Ku
regarding
the
news
15
report on
the
alleged
plagiarism in the international
law blog, Opinio Juris. Prof.
Criddle responded to Kus blog
entry in this wise:
The
newspapers16 [plagiarism]
claims are based on a motion
for
reconsideration
filed
yesterday with the Philippine
Supreme Court yesterday. The
motion is available here:
http://harryroque.com/2010/0
7/18/supplemental-motionalleging-plagiarism-in-thesupreme-court/
The motion suggests that the
Courts
decision
contains
thirty-four
sentences
and
citations that are identical to
sentences and citations in my
2009 YJIL article (co-authored
with
Evan
Fox-Decent).
Professor Fox-Decent and I
were
unaware
of
the
petitioners
[plagiarism]
allegations until after the
motion was filed today.
Speaking for myself, the most
troubling aspect of the courts
jus cogens discussion is that it
implies that the prohibitions
against
crimes
against
humanity, sexual slavery, and
torture are not jus cogens
norms.
Our
article
emphatically
asserts
the
opposite.
The
Supreme
Courts decision is available
here: http://sc.judiciary.gov.ph

247

Legal Ethics

/jurisprudence/2010/april2010
/162230.htm17
On even date, July 22, 2010,
Justice Del Castillo wrote to
his colleagues on the Court in
reply to the charge of
plagiarism contained in the
Supplemental
Motion
for
18
Reconsideration.
In a letter dated July 23, 2010,
another
purportedly
plagiarized author in the
Vinuya decision, Dr. Mark Ellis,
wrote the Court, to wit:
Your Honours:
I write concerning a most
delicate issue that has come
to my attention in the last few
days.
Much as I regret to raise this
matter before your esteemed
Court, I am compelled, as a
question of the integrity of my
work as an academic and as
an advocate of human rights
and humanitarian law, to take
exception to the possible
unauthorized use of my law
review article on rape as an
international crime in your
esteemed Courts Judgment in
the case of Vinuya et al. v.
Executive Secretary et al.
(G.R. No. 162230, Judgment of
28 April 2010).
My attention was called to the
Judgment and the issue of
possible plagiarism by the
Philippine chapter of the
Southeast Asia Media Legal
Defence
Initiative
19
(SEAMLDI), an affiliate of the
London-based Media Legal
Defence
Initiative
(MLDI),
where I sit as trustee.

In particular, I am concerned
about a large part of the
extensive
discussion
in
footnote 65, pp. 27-28, of the
said
Judgment
of
your
esteemed Court. I am also
concerned
that
your
esteemed Court may have
misread the arguments I
made in the article and
employed them for cross
purposes. This would be ironic
since the article was written
precisely to argue for the
appropriate legal remedy for
victims
of
war
crimes,
genocide, and crimes against
humanity.
I believe a full copy of my
article as published in the
Case Western Reserve Journal
of International Law in 2006
has been made available to
your esteemed Court. I trust
that your esteemed Court will
take the time to carefully
study the arguments I made
in the article.
I would appreciate receiving a
response from your esteemed
Court as to the issues raised
by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 352010 issued on July 27, 2010,
the
Court
formed
the
Committee on Ethics and
Ethical Standards (the Ethics
Committee)
pursuant
to
Section 13, Rule 2 of the
Internal Rules of the Supreme
Court.
In
an
En
Banc
Resolution also dated July 27,
2010, the Court referred the
July 22, 2010 letter of Justice
Del Castillo to the Ethics
248

Legal Ethics

Committee. The matter was

subsequently
docketed as
A.M. No. 10-7-17-SC.

Subject:

On August 2, 2010, the Ethics

Committee required Attys.
Roque
and
Bagares
to
comment on the letter of
Justice Del Castillo.21
On
August
9,
2010,
a
statement dated July 27,
2010,
entitled
"Restoring
Integrity: A Statement by the
Faculty of the University of the
Philippines College of Law on
the Allegations of Plagiarism
and Misrepresentation in the
Supreme
Court"
(the
Statement), was posted in
Newsbreaks website22 and on
Atty. Roques blog.23 A report
regarding the statement also
appeared on various on-line
news sites, such as the GMA
News
TV24 and
the
Sun
25
Star sites, on the same date.
The statement was likewise
posted at the University of the
Philippines College of Laws
bulletin board allegedly on
August 10, 201026 and at said
colleges website.27
On August 11, 2010, Dean
Leonen submitted a copy of
the
Statement
of
the
University of the Philippines
College of Law Faculty (UP
Law faculty) to the Court,
through Chief Justice Renato
C.
Corona
(Chief
Justice
Corona). The cover letter
dated August 10, 2010 of
Dean Leonen read:
The
Honorable
Supreme Court of the Republic
of the Philippines
Through: Hon. Renato C.
Corona
Chief Justice

Statement of
faculty
from the UP
College of Law
on the Plagiarism
in the case of
Vinuya v Executive
Secretary

Your Honors:
We attach for your information
and proper disposition a
statement
signed
by
28
thirty[-]eight
(38) members
of the faculty of the UP
College of Law. We hope that
its points could be considered
by the Supreme Court en
banc.
Respectfully,
(Sgd.)
Marvic
M.V.F.
Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement
attached to the above-quoted
letter did not contain the
actual signatures
of the
alleged signatories but only
stated the names of 37 UP
Law professors with
the
notation (SGD.) appearing
beside
each
name.
For
convenient reference, the text
of
the
UP
Law
faculty
Statement is reproduced here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY
OF
THE UNIVERSITY OF THE
PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF
PLAGIARISM
AND
MISREPRESENTATION
IN THE SUPREME COURT

249

Legal Ethics

An
extraordinary
act
of
injustice has again been
committed against the brave
Filipinas who had suffered
abuse during a time of war.
After they courageously came
out with their very personal
stories of abuse and suffering
as "comfort women", waited
for almost two decades for
any meaningful relief from
their own government as well
as from the government of
Japan, got their hopes up for a
semblance of judicial recourse
in the case of Vinuya v.
Executive Secretary, G.R. No.
162230 (28 April 2010), they
only had these hopes crushed
by a singularly reprehensible
act
of
dishonesty
and
misrepresentation
by
the
Highest Court of the land.
It is within this frame that the
Faculty of the University of the
Philippines College of Law
views the charge that an
Associate
Justice
of
the
Supreme Court committed
plagiarism
and
misrepresentation in Vinuya v.
Executive
Secretary.
The
plagiarism
and
misrepresentation
are
not
only affronts to the individual
scholars whose work have
been appropriated without
correct attribution, but also a
serious threat to the integrity
and
credibility
of
the
Philippine Judicial System.
In
common
parlance,
plagiarism
is
the
appropriation
and
misrepresentation of another
persons work as ones own. In
the field of writing, it is
cheating at best, and stealing
at worst. It constitutes a
taking of someone elses
ideas
and
expressions,

including all the effort and

creativity that went into
committing such ideas and
expressions into writing, and
then making it appear that
such ideas and expressions
were originally created by the
taker. It is dishonesty, pure
and simple. A judicial system
that allows plagiarism in any
form is one that allows
dishonesty. Since all judicial
decisions form part of the law
of
the
land,
to
allow
plagiarism in the Supreme
Court
is
to
allow
the
production
of
laws
by
dishonest means. Evidently,
this is a complete perversion
and falsification of the ends of
justice.
A comparison of the Vinuya
decision and the original
source material shows that
the ponente merely copied
select portions of other legal
writers
works
and
interspersed them into the
decision as if they were his
own, original work. Under the
circumstances,
however,
because the Decision has
been promulgated by the
Court, the Decision now
becomes the Courts and no
longer just the ponentes.
Thus the Court also bears the
responsibility for the Decision.
In the absence of any mention
of the original writers names
and the publications from
which they came, the thing
speaks for itself.
So far there have been
unsatisfactory responses from
the ponente of this case and
the spokesman of the Court.
It is argued, for example, that
the inclusion of the footnotes
from the original articles is a
250

Legal Ethics

reference to the primary

sources relied upon. This
cursory explanation is not
acceptable,
because
the
original authors writings and
the effort they put into finding
and
summarizing
those
primary sources are precisely
the subject of plagiarism. The
inclusion of the footnotes
together with portions of their
writings in fact aggravates,
instead of mitigates, the
plagiarism since it provides
additional evidence of a
deliberate
intention
to
appropriate
the
original
authors work of organizing
and analyzing those primary
sources.
It is also argued that the
Members of the Court cannot
be expected to be familiar
with all legal and scholarly
journals. This is also not
acceptable, because personal
unfamiliarity with sources all
the more demands correct
and careful attribution and
citation of the material relied
upon. It is a matter of
diligence and competence
expected of all Magistrates of
the Highest Court of the Land.
But a far more serious matter
is the objection of the original
writers,
Professors
Evan
Criddle and Evan Fox-Descent,
that the High Court actually
misrepresents the conclusions
of their work entitled "A
Fiduciary
Theory
of
Jus
Cogens," the main source of
the plagiarized text. In this
article they argue that the
classification of the crimes of
rape, torture, and sexual
slavery as crimes against
humanity have attained the
status of jus cogens, making it
obligatory upon the State to

seek remedies on behalf of its

aggrieved citizens. Yet, the
Vinuya decision uses parts of
the same article to arrive at
the contrary conclusion. This
exacerbates the intellectual
dishonesty of copying works
without
attribution
by transforming it into an act
of
intellectual
fraud
by
copying works in order to
mislead and deceive.
The case is a potential
landmark
decision
in
International Law, because it
deals with State liability and
responsibility
for
personal
injury and damage suffered in
a time of war, and the role of
the injured parties home
States in the pursuit of
remedies against such injury
or damage. National courts
rarely have such opportunities
to make an international
impact. That the petitioners
were Filipino "comfort women"
who suffered from horrific
abuse during the Second
World War made it incumbent
on the Court of last resort to
afford
them
every
solicitude. But
instead
of
acting with urgency on this
case, the Court delayed its
resolution for almost seven
years, oblivious to the deaths
of many of the petitioners
seeking justice from the
Court. When it dismissed
the Vinuya petition based on
misrepresented
and
plagiarized
materials,
the
Court decided this case based
on polluted sources. By so
doing, the Supreme Court
added insult to injury by
failing to actually exercise its
"power to urge and exhort the
Executive Department to take
up
the
claims
of
the Vinuya petitioners. Its
251

Legal Ethics

callous disposition, coupled

with false sympathy and
nonchalance, belies a more
alarming lack of concern for
even the most basic values of
decency
and
respect. The
reputation of the Philippine
Supreme
Court
and
the
standing of the Philippine
legal profession before other
Judiciaries and legal systems
are truly at stake.
The
High
Court
cannot
accommodate
less
than
absolute
honesty
in
its
decisions and cannot accept
excuses for failure to attain
the highest standards of
conduct imposed upon all
members of the Bench and
Bar because these undermine
the very foundation of its
authority and power in a
democratic society. Given the
Courts recent history and the
controversy that surrounded
it, it cannot allow the charges
of such clear and obvious
plagiarism to pass without
sanction as this would only
further
erode
faith
and
confidence in the judicial
system. And in light of the
significance of this decision to
the quest for justice not only
of Filipino women, but of
women elsewhere in the world
who have suffered the horrors
of
sexual
abuse
and
exploitation in times of war,
the Court cannot coldly deny
relief and justice to the
petitioners on the basis of
pilfered and misinterpreted
texts.
The Court cannot regain its
credibility and maintain its
moral
authority
without
ensuring that its own conduct,
whether
collectively
or
through
its
Members,
is

beyond
reproach.
This
necessarily includes ensuring
that not only the content, but
also
the
processes
of
preparing and writing its own
decisions, are credible and
beyond question. The Vinuya
Decision
must
be
conscientiously reviewed and
not casually cast aside, if not
for the purpose of sanction,
then at least for the purpose
of reflection and guidance. It
is an absolutely essential step
toward the establishment of a
higher
standard
of
professional care and practical
scholarship in the Bench and
Bar, which are critical to
improving the system of
administration of justice in the
Philippines. It is also a very
crucial step in ensuring the
position of the Supreme Court
as the Final Arbiter of all
controversies: a position that
requires
competence
and
integrity completely above
any and all reproach, in
accordance with the exacting
demands of judicial and
professional ethics.
With these considerations,
and bearing in mind the
solemn
duties and trust
reposed
upon
them
as
teachers in the profession of
Law, it is the opinion of the
Faculty of the University of the
Philippine College of Law that:
(1) The
plagiarism
committed in the case
of Vinuya v. Executive
Secretary is
unacceptable, unethical
and in breach of the high
standards
of
moral
conduct and judicial and
professional competence
expected of the Supreme
Court;
252

Legal Ethics

(2) Such a fundamental

breach endangers the
integrity and credibility
of the entire Supreme
Court and undermines
the foundations of the
Philippine judicial system
by allowing implicitly the
decision of cases and the
establishment of legal
precedents
through
dubious means;
(3) The same breach and
consequent disposition of
the Vinuya case
does
violence
to
the
primordial function of the
Supreme Court as the
ultimate dispenser of
justice to all those who
have been left without
legal
or
equitable
recourse, such as the
petitioners therein;
(4) In light of the
extremely serious and
far-reaching nature of
the dishonesty and to
save the honor and
dignity of the Supreme
Court as an institution, it
is
necessary
for
the ponente of Vinuya v.
Executive Secretary to
resign
his
position,
without prejudice to any
other sanctions that the
Court
may
consider
appropriate;
(5) The Supreme Court
must
take
this
opportunity to review the
manner by which it
conducts
research,
prepares drafts, reaches
and finalizes decisions in
order
to
prevent
a
recurrence
of
similar
acts, and to provide clear
and concise guidance to

the Bench and Bar to

ensure only the highest
quality of legal research
and writing in pleadings,
practice,
and
adjudication.
Malcolm Hall, University of the
Philippines College of Law,
Quezon City, 27 July 2010.
(SGD.)
MARVIC
M.V.F.
LEONEN
Dean and Professor of Law
(SGD.)
FROILAN
M.
BACUNGA
N
Dean
(19781983)

(SGD.)
PACIFICO
A. AGABIN
Dean
(19891995)

(SGD.)
MERLIN
M.
MAGALLO
NA
Dean
(19951999)

(SGD.)
SALVADO
R T.
CARLOTA
Dean
(20052008) and
Professor
of Law

REGULAR FACULTY

(SGD.)
CARMELO
V. SISON
Professor

(SGD.) JAY
L.
BATONGBA
CAL
Assistant
Professor

(SGD.)
PATRICIA
R.P.
SALVADO
R DAWAY
Associate
Dean and
Associate
Professor

(SGD.)
EVELYN
(LEO) D.
BATTAD
Assistant
Professor

253

Legal Ethics

(SGD.)
DANTE B.
GATMAYT
AN
Associate
Professor

(SGD.)
GWEN G.
DE VERA
Assistant
Professor

(SGD.)
THEODO
RE O. TE
Assistant
Professor

(SGD.)
SOLOMON
F. LUMBA
Assistant
Professor

(SGD.)
FLORIN T.
HILBAY
Assistant
Professor

(SGD.)
ROMMEL J.
CASIS
Assistant
Professor

LECTURERS
(SGD.) JOSE
GERARDO A.
ALAMPAY
(SGD.)
ARTHUR P.
AUTEA
(SGD.) ROSA
MARIA J.
BAUTISTA

(SGD.) JOSE
C. LAURETA
(SGD.) DINA
D.
LUCENARIO
(SGD.) OWEN
J. LYNCH

(SGD.)
(SGD.) MARK
ANTONIO M.
R. BOCOBO
SANTOS
(SGD.)
(SGD.) DAN
VICENTE V.
P. CALICA
MENDOZA
(SGD.)
(SGD.)
RODOLFO
TRISTAN A.
NOEL S.
CATINDIG
QUIMBO
(SGD.)
(SGD.)
SANDRA
GMELEEN
MARIE O.
FAYE B.
CORONEL
TOMBOC
(SGD.)
(SGD.)
ROSARIO O. NICHOLAS
GALLO
FELIX L. TY
(SGD.)
(SGD.)
CONCEPCION
EVALYN G.
L.
URSUA
JARDELEZA

(SGD.)
(SGD.) RAUL
ANTONIO
T. VASQUEZ
G.M. LA VIA
(SGD.)
SUSAN D.
(SGD.)
VILLANUEVA2
CARINA C.
9
LAFORTEZA
(Underscoring
supplied.)
Meanwhile, in a letter dated
August
18,
2010,
Prof.
Christian J. Tams made known
his sentiments on the alleged
plagiarism
issue
to
the
30
Court. We quote Prof. Tams
letter here:
Glasgow, 18 August 2010
Vinuya, et al. v. Executive
Secretary et al. (G.R. No.
162230)
Hon. Renato C. Corona, Chief
Justice
Your Excellency,
My name is Christian J. Tams,
and I am a professor of
international
law
at
the
University of Glasgow. I am
writing to you in relation to
the use of one of my
publications in the abovementioned judgment of your
Honourable Court.
The relevant passage of the
judgment is to be found on p.
30 of your Courts Judgment,
in the section addressing the
concept of obligations erga
omnes. As the table annexed
to this letter shows, the
relevant sentences were taken
almost word by word from the
introductory chapter of my
book Enforcing Obligations
Erga Omnes in International
Law (Cambridge University
Press 2005). I note that there
254

Legal Ethics

is a generic reference to my
work in footnote 69 of the
Judgment, but as this is in
relation to a citation from
another author (Bruno Simma)
rather than with respect to the
substantive
passages
reproduced in the Judgment, I
do not think it can be
considered an appropriate
form of referencing.
I am particularly concerned
that my work should have
been used to support the
Judgments cautious approach
to the erga omnes concept. In
fact, a most cursory reading
shows that my books central
thesis
is
precisely
the
opposite: namely that the
erga omnes concept has been
widely accepted and has a
firm place in contemporary
international law. Hence the
introductory chapter notes
that "[t]he present study
attempts to demystify aspects
of the very mysterious
concept
and
thereby
to
facilitate its implementation"
(p. 5). In the same vein, the
concluding section notes that
"the preceding chapters show
that the concept is now a part
of the reality of international
law,
established
in
the
jurisprudence of courts and
the practice of States" (p.
309).
With due respect to your
Honourable Court, I am at a
loss to see how my work
should have been cited to
support as it seemingly has
the opposite approach. More
generally, I am concerned at
the way in which your
Honourable Courts Judgment
has drawn on scholarly work
without
properly
acknowledging it.

On both aspects, I would

appreciate a prompt response
from your Honourable Court.
I remain
Sincerely yours
(Sgd.)
Christian J. Tams31
In
the
course
of
the
submission of Atty. Roque and
Atty. Bagares exhibits during
the August 26, 2010 hearing
in the ethics case against
Justice Del Castillo, the Ethics
Committee noted that Exhibit
"J" (a copy of the Restoring
Integrity Statement) was not
signed but merely reflected
the names of certain faculty
members with the letters
(SGD.) beside the names.
Thus, the Ethics Committee
directed
Atty.
Roque
to
present the signed copy of the
said Statement within three
days from the August 26
hearing.32
It was upon compliance with
this directive that the Ethics
Committee was given a copy
of the signed UP Law Faculty
Statement that showed on the
signature pages the names of
the full roster of the UP Law
Faculty, 81 faculty members
in all. Indubitable from the
actual signed copy of the
Statement was that only 37 of
the 81 faculty members
appeared to have signed the
same. However, the 37 actual
signatories to the Statement
did
not
include
former
Supreme
Court
Associate
Justice Vicente V. Mendoza
(Justice
Mendoza)
as
represented in the previous
copies of the Statement
submitted by Dean Leonen
255

Legal Ethics

and Atty. Roque. It also

appeared that Atty. Miguel R.
Armovit (Atty. Armovit) signed
the Statement although his
name was not included among
the signatories in the previous
copies submitted to the Court.
Thus, the total number of
ostensible signatories to the
Statement remained at 37.
The Ethics Committee referred
this matter to the Court en
banc
since
the
same
Statement,
having
been
formally submitted by Dean
Leonen on August 11, 2010,
was
already
under
consideration by the Court.33
In a Resolution dated October
19, 2010, the Court en banc
made
the
following
observations regarding the UP
Law Faculty Statement:
Notably, while the statement
was meant to reflect the
educators opinion on the
allegations
of
plagiarism
against Justice Del Castillo,
they treated such allegation
not only as an established
fact, but a truth. In particular,
they expressed dissatisfaction
over Justice Del Castillos
explanation on how he cited
the primary sources of the
quoted portions and yet
arrived
at
a
contrary
conclusion to those of the
authors
of
the
articles
supposedly plagiarized.
Beyond this, however, the
statement
bore
certain
remarks which raise concern
for the Court. The opening
sentence alone is a grim
preamble to the institutional
attack that lay ahead. It
reads:

An
extraordinary
act
of
injustice has again been
committed against the brave
Filipinas who had suffered
abuse during a time of war.
The first paragraph concludes
with a reference to the
decision in Vinuya v. Executive
Secretary as a reprehensible
act
of
dishonesty
and
misrepresentation
by
the
Highest Court of the land. x x
x.
The insult to the members of
the Court was aggravated by
imputations of deliberately
delaying the resolution of the
said case, its dismissal on the
basis of "polluted sources,"
the
Courts alleged
indifference to the cause of
petitioners [in the Vinuya
case], as well as the supposed
alarming lack of concern of
the members of the Court for
even the most basic values of
decency and respect.34 x x x.
(Underscoring ours.)
In the same Resolution, the
Court went on to state that:
While most agree that the
right to criticize the judiciary
is critical to maintaining a free
and democratic society, there
is also a general consensus
that healthy criticism only
goes so far. Many types of
criticism
leveled
at
the
judiciary cross the line to
become harmful
and
irresponsible attacks. These
potentially
devastating
attacks and unjust criticism
can
threaten
the
independence
of
the
judiciary. The
court
must
"insist on being permitted to
proceed to the disposition of
its business in an orderly
256

Legal Ethics

manner, free from outside

interference obstructive of its
functions and tending to
embarrass the administration
of justice."
The
Court
could
hardly
perceive
any
reasonable
purpose for the facultys less
than
objective
comments
except to discredit the April
28, 2010 Decision in the
Vinuya case and undermine
the Courts honesty, integrity
and competence in addressing
the
motion
for
its
reconsideration. As if the case
on the comfort womens
claims is not controversial
enough, the UP Law faculty
would fan the flames and
invite resentment against a
resolution that would not
reverse the said decision. This
runs contrary
to
their
obligation as law professors
and officers of the Court to be
the first to uphold the dignity
and authority of this Court, to
which
they
owe
fidelity
according to the oath they
have taken as attorneys, and
not to promote distrust in the
administration of justice.35 x x
x.
(Citations
omitted;
emphases and underscoring
supplied.)
Thus, the Court directed Attys.
Marvic M.V.F. Leonen, Froilan
M. Bacungan, Pacifico A.
Agabin, Merlin M. Magallona,
Salvador T. Carlota, Carmelo
V. Sison, Patricia R.P. Salvador
Daway, Dante B. Gatmaytan,
Theodore O. Te, Florin T.
Hilbay, Jay L. Batongbacal,
Evelyn (Leo) D. Battad, Gwen
G. De Vera, Solomon F.
Lumba, Rommel J. Casis, Jose
Gerardo A. Alampay, Miguel R.
Armovit, Arthur P. Autea, Rosa
Maria J. Bautista, Mark R.

Bocobo, Dan P. Calica, Tristan

A. Catindig, Sandra Marie O.
Coronel, Rosario O. Gallo,
Concepcion
L.
Jardeleza,
Antonio G.M. La Via, Carina
C. Laforteza, Jose C. Laureta,
Owen J. Lynch, Rodolfo Noel S.
Quimbo, Antonio M. Santos,
Gmeleen Faye B. Tomboc,
Nicholas Felix L. Ty, Evalyn G.
Ursua, Raul T. Vasquez, Susan
D. Villanueva and Dina D.
Lucenario to show cause,
within ten (10) days from
receipt of the copy of the
Resolution, why they should
not be disciplined as members
of the Bar for violation of
Canons 1,36 11 and 13 and
Rules 1.02 and 11.05 of the
Code
of
Professional
37
Responsibility.
Dean Leonen was likewise
directed to show cause within
the same period why he
should not be disciplinarily
dealt with for violation of
Canon 10, Rules 10.01, 10.02
and 10.03 for submitting
through his letter dated
August 10, 2010, during the
pendency of G.R. No. 162230
and of the investigation
before the Ethics Committee,
for the consideration of the
Court en banc, a dummy
which is not a true and faithful
reproduction of the UP Law
Faculty Statement.38
In the same Resolution, the
present
controversy
was
docketed
as
a
regular
administrative matter.
Summaries of the Pleadings
Filed
by
Respondents
in
Response to the October 19,
2010 Show Cause Resolution
On November 19, 2010, within
the
extension
for
filing
257

Legal Ethics

granted
by
the
respondents
filed
following pleadings:

Court,
the

(1) Compliance dated

November 18, 2010 by
counsels for 35 of the 37
respondents,
excluding
Prof. Owen Lynch and
Prof. Raul T. Vasquez, in
relation to the charge of
violation of Canons 1, 11
and 13 and Rules 1.02
and 11.05 of the Code of
Professional
Responsibility;
(2)
Compliance
and
Reservation
dated
November 18, 2010 by
Prof. Rosa Maria T. JuanBautista in relation to the
same charge in par. (1);
(3) Compliance dated
November 19, 2010 by
counsel for Prof. Raul T.
Vasquez in relation to the
same charge in par. (1);
(4) Compliance dated
November 19, 2010 by
counsels
for
Dean
Leonen, in relation to the
charge of violation of
Canon 10, Rules 10.01,
10.02 and 10.03; and
(5) Manifestation dated
November 19, 2010 by
counsel for Prof. Owen
Lynch.
Common Compliance of 35
Respondents (Excluding Prof.
Owen Lynch and Prof. Raul
Vasquez)
Thirty-five
(35)
of
the
respondent UP Law professors
filed on November 19, 2010 a
common compliance which
was signed by their respective

counsels
(the
Common
Compliance). In the "Preface"
of said Common Compliance,
respondents stressed that
"[they] issued the Restoring
Integrity Statement in the
discharge of the solemn
duties and trust reposed upon
them as teachers in the
profession of law, and as
members of the Bar to speak
out on a matter of public
concern and one that is of
vital interest to them."39 They
likewise alleged that "they
acted with the purest of
intentions" and pointed out
that "none of them was
involved either as party or
counsel"40 in the Vinuya case.
Further, respondents "note
with concern" that the Show
Cause Resolutions findings
and conclusions were "a
prejudgment

that
respondents indeed are in
contempt,
have
breached
their
obligations
as
law
professors and officers of the
Court, and have violated
Canons [1], 11 and 13 and
Rules 1.02 and 11.05 of the
Code
of
Professional
41
Responsibility."
By way of explanation, the
respondents emphasized the
following points:
(a) Respondents alleged
noble intentions
In
response
to
the
charges of failure to
observe due respect to
legal processes42 and the
courts43 and of tending to
influence, or giving the
appearance
of
44
influencing the Court in
the issuance of their
Statement, respondents
assert
that
their
258

Legal Ethics

intention was not to

malign the Court but
rather to defend its
integrity and credibility
and to ensure continued
confidence in the legal
system.
Their
noble
motive was purportedly
evidenced by the portion
of
their
Statement
"focusing on constructive
action."45 Respondents
call in the Statement for
the Court "to provide
clear
and
concise
guidance to the Bench
and Bar to ensure only
the highest quality of
legal
research
and
writing in adjudication,"
was
reputedly
"in
keeping with strictures
enjoining
lawyers
to
participate
in
the
development of the legal
system by initiating or
supporting efforts in law
reform
and
in
the
improvement
of
the
administration
of
justice" (under Canon 4
of
the
Code
of
Professional
Responsibility) and to
"promote respect for the
law and legal processes"
(under
Canon
1,
46
id.). Furthermore,
as
academics,
they
allegedly have a "special
interest and duty to
vigilantly guard against
plagiarism
and
misrepresentation
because
these
unwelcome occurrences
have a profound impact
in
the
academe,
especially in our law
schools."47
Respondents
further
"[called] on this Court

not to misconstrue the

Restoring
Integrity
Statement
as
an
institutional attack x x x
on the basis of its first
and
ninth
48
paragraphs." They
further clarified that at
the time the Statement
was allegedly drafted
and agreed upon, it
appeared to them the
Court "was not going to
take any action on the
grave
and
startling
allegations of plagiarism
and
misrepresentation."49 Acc
ording to respondents,
the bases for their belief
were (i) the news article
published on July 21,
2010 in the Philippine
Daily Inquirer wherein
Court Administrator Jose
Midas P. Marquez was
reported to have said
that Chief Justice Corona
would not order an
inquiry
into
the
50
matter; and (ii) the July
22, 2010 letter of Justice
Del Castillo which they
claimed "did nothing but
to downplay the gravity
of the plagiarism and
misrepresentation
charges."51 Respondents
claimed that it was their
perception of the Courts
indifference
to
the
dangers posed by the
plagiarism
allegations
against
Justice
Del
Castillo that impelled
them to urgently take a
public stand on the issue.
(b) The "correctness" of
respondents
position
that Justice Del Castillo
committed
plagiarism
and should be held
259

Legal Ethics

accountable
in
accordance
with
the
standards of academic
writing
A significant portion of
the Common Compliance
is
devoted
to
a
discussion of the merits
of respondents charge of
plagiarism against Justice
Del Castillo. Relying on
University
of
the
Philippines
Board
of
Regents v. Court of
Appeals52 and
foreign
materials
and
jurisprudence,
respondents essentially
argue that their position
regarding the plagiarism
charge against Justice
Del Castillo is the correct
view and that they are
therefore
justified
in
issuing their Restoring
Integrity
Statement.
Attachments
to
the
Common
Compliance
included, among others:
(i)
the
letter
dated
October 28, 2010 of
Peter B. Payoyo, LL.M,
Ph.D.,53 sent
to
Chief
Justice Corona through
Justice Sereno, alleging
that the Vinuya decision
likewise lifted without
proper attribution the
text from a legal article
by
Mariana
Salazar
Albornoz that appeared
in the Anuario Mexicano
De Derecho Internacional
and from an International
Court of Justice decision;
and (ii) a 2008 Human
Rights
Law
Review
Article entitled "Sexual
Orientation,
Gender
Identity and International
Human Rights Law" by
Michael OFlaherty and

John Fisher, in support of

their charge that Justice
Del Castillo also lifted
passages
from
said
article without proper
attribution, but this time,
in his ponencia in Ang
Ladlad LGBT Party v.
Commission
on
54
Elections.
(c) Respondents
belief
that they are being
"singled out" by the
Court when others have
likewise spoken on the
"plagiarism issue"
In
the
Common
Compliance, respondents
likewise asserted that
"the
plagiarism
and
misrepresentation
allegations are legitimate
public
issues."55 They
identified
various
published reports and
opinions, in agreement
with and in opposition to
the
stance
of
respondents,
on
the
issue
of
plagiarism,
specifically:
(i) Newsbreak report
on July 19, 2010 by
Aries
Rufo
and
56
Purple Romero;
(ii)
Column
of
Ramon Tulfo which
appeared in the
Philippine
Daily
Inquirer on July 24,
2010;57
(iii) Editorial of the
Philippine
Daily
Inquirer
published
on July 25, 2010;58
(iv) Letter dated July
22, 2010 of Justice
260

Legal Ethics

Del
Castillo
published in the
Philippine Star on
July 30, 2010;59
(v)
Column
of
Former Intellectual
Property
Office
Director
General
Adrian Cristobal, Jr.
published in the
Business Mirror on
August 5, 2010;60
(vi)
Column
of
Former Chief Justice
Artemio Panganiban
published in the
Philippine
Daily
Inquirer on August
8, 2010;61
(vii) News report
regarding
Senator
Francis Pangilinans
call
for
the
resignation
of
Justice Del Castillo
published in the
Daily Tribune and
the Manila Standard
Today on July 31,
2010;62
(viii) News reports
regarding
the
statement of Dean
Cesar Villanueva of
the
Ateneo
de
Manila
University
School of Law on
the calls for the
resignation
of
Justice Del Castillo
published in The
Manila Bulletin, the
Philippine Star and
the Business Mirror
on
August
11,
63
2010;
(ix) News report on
expressions
of

support for Justice

Del Castillo from a
former dean of the
Pamantasan
ng
Lungsod
ng
Maynila,
the
Philippine
Constitutional
Association,
the
Judges Association
of Bulacan and the
Integrated Bar of
the Philippines
Bulacan
Chapter
published in the
Philippine Star on
August
16,
64
2010; and
(x) Letter of the
Dean of the Liceo
de
Cagayan
University
College
of Law published in
the Philippine Daily
Inquirer on August
10, 2010.65
In view of the foregoing,
respondents alleged that
this Court has singled
them out for sanctions
and the charge in the
Show Cause Resolution
dated October 19, 2010
that they may have
violated specific canons
of
the
Code
of
Professional
Responsibility is unfair
and without basis.
(d) Freedom
expression

of

In paragraphs 28 to 30 of
the
Common
Compliance, respondents
briefly discussed their
position that in issuing
their Statement, "they
should be seen as not
only to be performing
261

Legal Ethics

their duties as members

of the Bar, officers of the
court, and teachers of
law, but also as citizens
of a democracy who are
constitutionally protected
in the exercise of free
speech."66 In support of
this
contention,
they
cited United States v.
Bustos,67 In
re:
Atty.
Vicente
Raul
68
Almacen, and In the
Matter of Petition for
Declaratory Relief Re:
Constitutionality
of
Republic
Act
4880,
Gonzales v. Commission
on Elections.69
(e) Academic freedom
In paragraphs 31 to 34 of the
Common
Compliance,
respondents asserted that
their Statement was also
issued in the exercise of their
academic
freedom
as
teachers in an institution of
higher learning. They relied on
Section 5 of the University of
the Philippines Charter of
2008 which provided that
"[t]he national university has
the right and responsibility to
exercise academic freedom."
They likewise adverted to
Garcia
v.
The
Faculty
Admission Committee, Loyola
School of Theology70 which
they claimed recognized the
extent and breadth of such
freedom as to encourage a
free and healthy discussion
and communication of a
faculty members field of
study without fear of reprisal.
It is respondents view that
had they remained silent on
the plagiarism issue in the
Vinuya decision they would
have "compromised [their]
integrity and credibility as

teachers; [their silence] would

have created a culture and
generation
of
students,
professionals, even lawyers,
who
would
lack
the
competence and discipline for
research and pleading; or,
worse, [that] their silence
would have communicated to
the public that plagiarism and
misrepresentation
are
inconsequential matters and
that intellectual integrity has
no bearing or relevance to
ones conduct."71
In
closing,
respondents
Common
Compliance
exhorted
this
Court
to
consider the following portion
of the dissenting opinion of
Justice George A. Malcolm in
Salcedo v. Hernandez,72 to wit:
Respect for the courts can
better
be
obtained
by
following a calm and impartial
course from the bench than
by an attempt to compel
respect for the judiciary by
chastising a lawyer for a too
vigorous
or
injudicious
exposition of his side of a
case. The Philippines needs
lawyers
of
independent
thought
and
courageous
bearing,
jealous
of
the
interests of their clients and
unafraid of any court, high or
low, and the courts will do
well tolerantly to overlook
occasional
intemperate
language soon to be regretted
by the lawyer which affects in
no way the outcome of a
case.73
On the matter of the reliefs to
which respondents believe
they are entitled, the Common
Compliance stated, thus:
WHEREFORE:
262

Legal Ethics

A.
Respondents,
as
citizens of a democracy,
professors
of
law,
members of the Bar and
officers of the Court,
respectfully pray that:
1. the foregoing be
noted; and
2.
the
Court
reconsider
and
reverse its adverse
findings in the Show
Cause
Resolution,
including
its
conclusions
that
respondents have:
[a] breached their
"obligation as law
professors
and
officers of the Court
to be the first to
uphold the dignity
and authority of this
Court, and not to
promote distrust in
the administration
of justice;" and [b]
committed
"violations
of
Canons 10, 11, and
13 and Rules 1.02
and 11.05 of the
Code of Professional
Responsibility."
B. In the event the
Honorable Court declines
to grant the foregoing
prayer,
respondents
respectfully pray, in the
alternative,
and
in
assertion of their due
process
rights,
that
before final judgment be
rendered:
1. the Show Cause
Resolution be set
for hearing;

2. respondents be
given a fair and full
opportunity
to
refute
and/or
address the findings
and conclusions of
fact in the Show
Cause
Resolution
(including especially
the
finding
and
conclusion of a lack
of malicious intent),
and
in
that
connection,
that
appropriate
procedures
and
schedules
for
hearing be adopted
and defined that will
allow them the full
and fair opportunity
to
require
the
production of and to
present testimonial,
documentary, and
object
evidence
bearing
on
the
plagiarism
and
misrepresentation
issues in Vinuya v.
Executive Secretary
(G.R. No. 162230,
April 28, 2010) and
In the Matter of the
Charges
of
Plagiarism,
etc.
Against
Associate
Justice Mariano C.
Del Castillo (A.M.
No.
10-7-17-SC);
and
3. respondents be
given fair and full
access
to
the
transcripts, records,
drafts, reports and
submissions in or
relating
to,
and
accorded
the
opportunity
to
cross-examine the
witnesses who were
263

Legal Ethics

or could have been

called in In The
Matter
of
the
Charges
of
Plagiarism,
etc.
Against
Associate
Justice Mariano C.
Del Castillo (A.M.
No. 10-7-17-SC).74
Compliance and Reservation
of Prof. Rosa Maria T. JuanBautista
Although already included in
the
Common
Compliance,
Prof. Rosa Maria T. JuanBautista (Prof. Juan-Bautista)
filed a separate Compliance
and Reservation (the Bautista
Compliance),
wherein
she
adopted the allegations in the
Common Compliance with
some additional averments.
Prof. Juan-Bautista reiterated
that her due process rights
allegedly entitled her to
challenge the findings and
conclusions in the Show Cause
Resolution. Furthermore, "[i]f
the
Restoring
Integrity
Statement can be considered
indirect
contempt,
under
Section 3 of Rule 71 of the
Rules of Court, such may be
punished only after charge
and hearing."75
Prof. Juan-Bautista stressed
that respondents signed the
Statement "in good faith and
with the best intentions to
protect the Supreme Court by
asking
one
member
to
76
resign." For her part, Prof.
Juan-Bautista intimated that
her deep disappointment and
sadness for the plight of the
Malaya Lolas were what
motivated her to sign the
Statement.

On the point of academic

freedom, Prof. Juan-Bautista
cited jurisprudence77 which in
her view highlighted that
academic
freedom
is
constitutionally guaranteed to
institutions of higher learning
such that schools have the
freedom to determine for
themselves who may teach,
what may be taught, how
lessons shall be taught and
who may be admitted to study
and that courts have no
authority to interfere in the
schools exercise of discretion
in these matters in the
absence of grave abuse of
discretion. She claims the
Court has encroached on the
academic freedom of the
University of the Philippines
and other universities on their
right
to
determine
how
lessons shall be taught.
Lastly,
Prof.
Juan-Bautista
asserted that the Statement
was
an
exercise
of
respondents
constitutional
right to freedom of expression
that can only be curtailed
when there is grave and
imminent danger to public
safety, public morale, public
health or other legitimate
public interest.78
Compliance of Prof. Raul T.
Vasquez
On November 19, 2010, Prof.
Raul
T.
Vasquez
(Prof.
Vasquez) filed a separate
Compliance by registered mail
(the Vasquez Compliance). In
said
Compliance,
Prof.
Vasquez
narrated
the
circumstances surrounding his
signing of the Statement. He
alleged
that
the
Vinuya
decision was a topic of
conversation among the UP
264

Legal Ethics

Law faculty early in the first

semester (of academic year
2010-11)
because
it
reportedly contained citations
not properly attributed to the
sources; that he was shown a
copy of the Statement by a
clerk of the Office of the Dean
on his way to his class; and
that, agreeing in principle with
the main theme advanced by
the Statement, he signed the
same in utmost good faith.79
In response to the directive
from this Court to explain why
he should not be disciplined
as a member of the Bar under
the Show Cause Resolution,
Prof. Vasquez also took the
position that a lawyer has the
right, like all citizens in a
democratic
society,
to
comment on acts of public
officers.
He
invited
the
attention of the Court to the
following authorities: (a) In re:
Vicente Sotto;80 (b) In re: Atty.
Vicente Raul Almacen;81 and
(c) a discussion appearing in
American
Jurisprudence
82
(AmJur) 2d. He claims that
he "never had any intention to
unduly
influence,
nor
entertained any illusion that
he could or should influence,
[the Court] in its disposition of
the Vinuya case"83 and that
"attacking the integrity of [the
Court] was the farthest thing
on respondents mind when
he
signed
the
84
Statement." Unlike
his
colleagues, who wish to
impress upon this Court the
purported homogeneity of the
views on what constitutes
plagiarism,
Prof.
Vasquez
stated in his Compliance that:
13. Before this Honorable
Court rendered its Decision
dated 12 October 2010, some

espoused the view that willful

and deliberate
intent
to
commit plagiarism is an
essential element of the
same. Others, like respondent,
were of the opinion that
plagiarism
is
committed
regardless of the intent of the
perpetrator, the way it has
always been viewed in the
academe. This uncertainty
made the issue a fair topic for
academic discussion in the
College. Now, this Honorable
Court
has
ruled
that
plagiarism
presupposes
deliberate intent to steal
anothers work and to pass it
off as ones own.85 (Emphases
supplied.)
Also in contrast to his
colleagues, Prof. Vasquez was
willing to concede that he
"might have been remiss in
correctly assessing the effects
of such language [in the
Statement] and could have
been more careful."86 He ends
his
discussion
with
a
respectful submission that
with his explanation, he has
faithfully complied with the
Show Cause Resolution and
that the Court will rule that he
had not in any manner
violated his oath as a lawyer
and officer of the Court.
Separate Compliance of Dean
Leonen regarding the charge
of violation of Canon 10 in
relation to his submission of a
"dummy" of the UP Law
Faculty Statement to this
Court
In his Compliance, Dean
Leonen claimed that there
were three drafts/versions of
the UP Law Faculty Statement,
which he described as follows:

265

Legal Ethics

"Restoring Integrity I"

which bears the entire
roster of the faculty of
the UP College of Law in
its signing pages, and
the actual signatures of
the
thirty-seven
(37)
faculty members subject
of the Show Cause
Resolution. A copy was
filed with the Honorable
Court by Roque and
Butuyan on 31 August
2010 in A.M. No. 10-7-17SC.
"Restoring Integrity II"
which does not bear any
actual physical signature,
but which reflects as
signatories the names of
thirty-seven
(37)
members of the faculty
with
the
notation
"(SGD.)". A copy of
Restoring Integrity II was
publicly and physically
posted in the UP College
of Law on 10 August
2010. Another copy of
Restoring Integrity II was
also officially received by
the Honorable Court from
the Dean of the UP
College of Law on 11
August
2010,
almost
three weeks before the
filing
of
Restoring
Integrity I.

"Restoring Integrity
III" which is a reprinting
of Restoring Integrity II,
and
which
presently
serves as the official file
copy of the Deans Office
in the UP College of Law
that may be signed by
other faculty members
who still wish to. It bears
the actual signatures of
the thirty- seven original
signatories to Restoring

Integrity I above their

printed names and the
notation "(SGD.") and, in
addition,
the
actual
signatures of eight (8)
other members of the
faculty
above
their
handwritten
or
87
typewritten names.
For
purposes
of
this
discussion,
only
Restoring
Integrity I and Restoring
Integrity II are relevant since
what Dean Leonen has been
directed to explain are the
discrepancies in the signature
pages
of
these
two
documents.
Restoring
Integrity
III
was
never
submitted to this Court.
On how Restoring Integrity I
and Restoring Integrity II were
prepared and came about,
Dean Leonen alleged, thus:
2.2 On 27 July 2010,
sensing the emergence
of a relatively broad
agreement in the faculty
on a draft statement,
Dean Leonen instructed
his staff to print the draft
and circulate it among
the faculty members so
that those who wished to
may
sign.
For
this
purpose,
the
staff
encoded the law faculty
roster to serve as the
printed drafts signing
pages. Thus did the first
printed draft of the
Restoring
Integrity
Statement,
Restoring
Integrity I, come into
being.
2.3. As of 27 July 2010,
the date of the Restoring
Integrity
Statement,
Dean
Leonen
was
266

Legal Ethics

unaware that a Motion

for Reconsideration of
the Honorable Courts
Decision in Vinuya vs.
Executive Secretary (G.R.
No. 162230, 28 April
2010) had already been
filed,
or
that
the
Honorable Court was in
the process of convening
its Committee on Ethics
and Ethical Standards in
A.M. No. 10-7-17-SC.
2.4. Dean Leonens staff
then circulated Restoring
Integrity I among the
members of the faculty.
Some faculty members
visited the Deans Office
to sign the document or
had it brought to their
classrooms in the College
of Law, or to their offices
or residences. Still other
faculty members who,
for
one
reason
or
another, were unable to
sign Restoring Integrity I
at
that
time,
nevertheless
conveyed
to Dean Leonen their
assurances that they
would sign as soon as
they could manage.
2.5. Sometime in the
second week of August,
judging that Restoring
Integrity I had been
circulated long enough,
Dean Leonen instructed
his staff to reproduce the
statement in a style and
manner appropriate for
posting in the College of
Law. Following his own
established practice in
relation to significant
public
issuances,
he
directed
them
to
reformat
the
signing
pages so that only the

names of those who

signed the first printed
draft
would
appear,
together
with
the
corresponding
"(SGD.)"
note
following
each
name. Restoring Integrity
II thus came into being.88
According to Dean Leonen,
the "practice of eliminating
blanks opposite or above the
names of non-signatories in
the final draft of significant
public issuances, is meant not
so
much
for
aesthetic
considerations as to secure
the
integrity
of
such
89
documents." He
likewise
claimed
that
"[p]osting
statements with blanks would
be an open invitation to
vandals and pranksters."90
With respect to the inclusion
of Justice Mendozas name as
among the signatories in
Restoring Integrity II when in
fact he did not sign Restoring
Integrity I, Dean Leonen
attributed the mistake to a
miscommunication involving
his administrative officer. In
his Compliance, he narrated
that:
2.7.
Upon
being
presented with a draft of
Restoring Integrity II with
the reformatted signing
pages,
Dean
Leonen
noticed the inclusion of
the name of Justice
Mendoza
among
the
"(SGD.)" signatories. As
Justice Mendoza was not
among those who had
physically
signed
Restoring
Integrity
I
when it was previously
circulated, Dean Leonen
called the attention of his
staff to the inclusion of
267

Legal Ethics

the
Justices
name
among
the
"(SGD.)"
signatories in Restoring
Integrity II.
2.8. Dean Leonen was
told by his administrative
officer that she had
spoken
to
Justice
Mendoza over the phone
on Friday, 06 August
2010. According to her,
Justice
Mendoza
had
authorized the dean to
sign
the
Restoring
Integrity Statement for
him
as
he
agreed
fundamentally with its
contents. Also according
to her, Justice Mendoza
was unable at that time
to sign the Restoring
Integrity
Statement
himself
as
he
was
leaving for the United
States
the
following
week. It would later turn
out that this account was
not
entirely
91
accurate. (Underscoring
and italics supplied.)
Dean Leonen claimed that he
"had no reason to doubt his
administrative
officer,
however, and so placed full
reliance on her account"92 as
"[t]here were indeed other
faculty members who had also
authorized
the
Dean
to
indicate
that
they
were
signatories, even though they
were at that time unable to
affix
their
signatures
physically to the document."93
However, after receiving the
Show Cause Resolution, Dean
Leonen and his staff reviewed
the
circumstances
surrounding their effort to
secure
Justice
Mendozas
signature. It would turn out

that this was what actually

transpired:
2.22.1. On Friday, 06
August 2010, when the
deans staff talked to
Justice Mendoza on the
phone,
he
[Justice
Mendoza] indeed initially
agreed
to
sign
the
Restoring
Integrity
Statement
as
he
fundamentally
agreed
with
its
contents.
However,
Justice
Mendoza did not exactly
say that he authorized
the dean to sign the
Restoring
Integrity
Statement. Rather, he
inquired if he could
authorize the dean to
sign it for him as he was
about to leave for the
United
States.
The
deans staff informed
him that they would, at
any rate, still try to bring
the Restoring Integrity
Statement to him.
2.22.2. Due to some
administrative
difficulties,
Justice
Mendoza was unable to
sign
the
Restoring
Integrity
Statement
before he left for the U.S.
the following week.
2.22.3. The staff was
able to bring Restoring
Integrity III to Justice
Mendoza when he went
to the College to teach
on 24 September 2010, a
day after his arrival from
the U.S. This time, Justice
Mendoza
declined
to
94
sign.
According to the Dean:

268

Legal Ethics

2.23. It was only at this time

that Dean Leonen realized the
true import of the call he
received from Justice Mendoza
in late September. Indeed,
Justice Mendoza confirmed
that by the time the hard copy
of the Restoring Integrity
Statement was brought to him
shortly after his arrival from
the U.S., he declined to sign it
because
it
had
already
become controversial. At that
time, he predicted that the
Court would take some form
of action against the faculty.
By then, and under those
circumstances, he wanted to
show due deference to the
Honorable Court, being a
former Associate Justice and
not
wishing
to
unduly
aggravate the situation by
signing
the
95
Statement. (Emphases
supplied.)
With respect to the omission
of Atty. Armovits name in the
signature page of Restoring
Integrity II when he was one
of the signatories of Restoring
Integrity I and the erroneous
description in Dean Leonens
August 10, 2010 letter that
the version of the Statement
submitted to the Court was
signed by 38 members of the
UP Law Faculty, it was
explained in the Compliance
that:
Respondent
Atty.
Miguel
Armovit
physically
signed
Restoring Integrity I when it
was
circulated
to
him.
However, his name was
inadvertently left out by Dean
Leonens
staff
in
the
reformatting of the signing
pages in Restoring Integrity II.
The dean assumed that his
name was still included in the

reformatted signing pages,

and so mentioned in his cover
note to Chief Justice Corona
that 38 members of the law
faculty signed (the original 37
plus Justice Mendoza.)96
Dean Leonen argues that he
should not be deemed to have
submitted a dummy of the
Statement that was not a true
and faithful reproduction of
the same. He emphasized that
the
main
body
of
the
Statement was unchanged in
all its three versions and only
the signature pages were not
the same. This purportedly is
merely "reflective of [the
Statements] essential nature
as a live public manifesto
meant to continuously draw
adherents to its message, its
signatory
portion
is
necessarily
evolving
and
dynamic x x x many other
printings of [the Statement]
may be made in the future,
each one reflecting the same
text but with more and more
signatories."97 Adverting
to
criminal law by analogy, Dean
Leonen claims that "this is not
an instance where it has been
made
to
appear
in
a
document that a person has
participated in an act when
the latter did not in fact so
participate"98 for he "did not
misrepresent which members
of the faculty of the UP
College of Law had agreed
with the Restoring Integrity
Statement proper and/or had
expressed their desire to be
signatories thereto."99
In this regard, Dean Leonen
believes that he had not
committed any violation of
Canon 10 or Rules 10.01 and
10.02 for he did not mislead
nor misrepresent to the Court
269

Legal Ethics

the contents of the Statement

or the identities of the UP Law
faculty members who agreed
with, or expressed their desire
to be signatories to, the
Statement. He also asserts
that he did not commit any
violation of Rule 10.03 as he
"coursed
[the
Statement]
through
the
appropriate
channels by transmitting the
same to Honorable Chief
Justice Corona for the latters
information
and
proper
disposition with the hope that
its points would be duly
considered by the Honorable
Court
en
banc."100 Citing
Rudecon
Management
Corporation
v.
101
Camacho, Dean
Leonen
posits
that
the
required
quantum of proof has not
been met in this case and that
no dubious character or
motivation
for
the
act
complained of existed to
warrant
an
administrative
sanction for violation of the
standard of honesty provided
for by the Code of Professional
Responsibility.102
Dean
Leonen
ends
his
Compliance
with
an
enumeration
of
nearly
identical
reliefs
as
the
Common
Compliance,
including the prayers for a
hearing and for access to the
records,
evidence
and
witnesses allegedly relevant
not only in this case but also
in A.M. No. 10-7-17-SC, the
ethical investigation involving
Justice Del Castillo.
Manifestation of Prof. Owen
Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch
(Prof. Lynch) manifests to this
Court that he is not a member

of the Philippine bar; but he is

a member of the bar of the
State of Minnesota. He alleges
that he first taught as a
visiting professor at the UP
College of Law in 1981 to
1988 and returned in the
same capacity in 2010. He
further alleges that "[h]e
subscribes to the principle,
espoused by this Court and
the Supreme Court of the
United States, that [d]ebate
on public issues should be
uninhibited, robust and wide
open and that it may well
include vehement, caustic,
and sometimes unpleasantly
sharp attacks on government
and
public
officials."103 In
signing the Statement, he
believes that "the right to
speak means the right to
speak effectively."104 Citing the
dissenting opinions in Manila
Public
School
Teachers
Association
v.
Laguio,
105
Jr., Prof. Lynch argued that
"[f]or speech to be effective, it
must be forceful enough to
make the intended recipients
listen"106 and "[t]he quality of
education would deteriorate in
an atmosphere of repression,
when the very teachers who
are supposed to provide an
example of courage and selfassertiveness to their pupils
can speak only in timorous
whispers."107 Relying on the
doctrine in In the Matter of
Petition for Declaratory Relief
Re:
Constitutionality
of
Republic Act 4880, Gonzales v.
Commission
on
108
Elections, Prof.
Lynch
believed that the Statement
did not pose any danger, clear
or present, of any substantive
evil so as to remove it from
the protective mantle of the
Bill of Rights (i.e., referring to
the constitutional guarantee
270

Legal Ethics

on free speech).109 He also

stated that he "has read the
Compliance of the other
respondents to the Show
Cause Resolution" and that
"he signed the Restoring
Integrity Statement for the
same reasons they did."110
ISSUES
Based on the Show Cause
Resolution and a perusal of
the
submissions
of
respondents,
the
material
issues to be resolved in this
case are as follows:
1.) Does the Show Cause
Resolution
deny
respondents
their
freedom of expression?
2.) Does the Show Cause
Resolution
violate
respondents
academic
freedom
as
law
professors?
3.) Do the submissions of
respondents
satisfactorily explain why
they should not be
disciplined as Members
of the Bar under Canons
1, 11, and 13 and Rules
1.02 and 11.05 of the
Code
of
Professional
Responsibility?
4.) Does the separate
Compliance
of
Dean
Leonen
satisfactorily
explain why he should
not be disciplined as a
Member of the Bar under
Canon 10, Rules 10.01,
10.02 and 10.03?
5.)
Are
respondents
entitled to have the
Show Cause Resolution
set for hearing and in

relation to such hearing,

are respondents entitled
to require the production
or
presentation
of
evidence bearing on the
plagiarism
and
misrepresentation issues
in the Vinuya case (G.R.
No. 162230) and the
ethics
case
against
Justice Del Castillo (A.M.
No. 10-7-17-SC) and to
have access to the
records and transcripts
of, and the witnesses
and evidence presented,
or could have been
presented, in the ethics
case against Justice Del
Castillo (A.M. No. 10-717-SC)?
DISCUSSION
The Show Cause Resolution
does not deny respondents
their freedom of expression.
It is respondents collective
claim that the Court, with the
issuance of the Show Cause
Resolution, has interfered with
respondents constitutionally
mandated right to free speech
and expression. It appears
that
the
underlying
assumption
behind
respondents assertion is the
misconception that this Court
is denying them the right to
criticize the Courts decisions
and actions, and that this
Court seeks to "silence"
respondent law professors
dissenting view on what they
characterize as a "legitimate
public issue."
This is far from the truth. A
reading of the Show Cause
Resolution will plainly show
that it was neither the fact
that
respondents
had
271

Legal Ethics

criticized a decision of the

Court nor that they had
charged one of its members of
plagiarism that motivated the
said Resolution. It was the
manner of the criticism and
the contumacious language
by which respondents, who
are not parties nor counsels in
the Vinuya case,
have
expressed their opinion in
favor of the petitioners in the
said pending case for the
"proper
disposition"
and
consideration of the Court
that
gave
rise
to
said
Resolution. The Show Cause
Resolution
painstakingly
enumerated the statements
that the Court considered
excessive and uncalled for
under
the
circumstances
surrounding
the
issuance,
publication,
and
later
submission to this Court of the
UP Law facultys Restoring
Integrity Statement.
To reiterate, it was not the
circumstance
that
respondents
expressed
a
belief that Justice Del Castillo
was guilty of plagiarism but
rather their expression of that
belief as "not only as an
established
fact,
but
a
111
truth" when it was "[o]f
public knowledge [that there
was] an ongoing investigation
precisely to determine the
truth of such allegations."112 It
was also pointed out in the
Show Cause Resolution that
there was a pending motion
for reconsideration of the
Vinuya decision.113 The Show
Cause Resolution made no
objections to the portions of
the
Restoring
Integrity
Statement that respondents
claimed to be "constructive"
but only asked respondents to
explain those portions of the

said Statement that by no

stretch of the imagination
could be considered as fair or
constructive, to wit:
Beyond this, however, the
statement
bore
certain
remarks which raise concern
for the Court. The opening
sentence alone is a grim
preamble to the institutional
attack that lay ahead. It
reads:
An extraordinary
act
of
injustice has
again
been
committed against the brave
Filipinas who had suffered
abuse during a time of war.
The first paragraph concludes
with a reference to the
decision in Vinuya v. Executive
Secretary as a reprehensible
act
of
dishonesty
and
misrepresentation
by
the
Highest Court of the land. x x
x.
The insult to the members of
the Court was aggravated by
imputations of deliberately
delaying the resolution of the
said case, its dismissal on the
basis of "polluted sources,"
the
Courts alleged
indifference to the cause of
petitioners [in the Vinuya
case], as well as the supposed
alarming lack of concern of
the members of the Court for
even the most basic values of
decency and respect.114 x x x.
(Underscoring ours.)
To be sure, the Show Cause
Resolution itself recognized
respondents
freedom
of
expression when it stated
that:
While most agree that the
right to criticize the judiciary
272

Legal Ethics

is critical to maintaining a free

and democratic society, there
is also a general consensus
that healthy criticism only
goes so far. Many types of
criticism
leveled
at
the
judiciary cross the line to
become harmful
and
irresponsible attacks. These
potentially
devastating
attacks and unjust criticism
can
threaten
the
independence
of
the
judiciary. The
court
must
"insist on being permitted to
proceed to the disposition of
its business in an orderly
manner, free from outside
interference obstructive of its
functions and tending to
embarrass the administration
of justice."

The
Court
could
hardly
perceive
any
reasonable
purpose for the facultys less
than
objective
comments
except to discredit the April
28, 2010 Decision in the
Vinuya case and undermine
the Courts honesty, integrity
and competence in addressing
the
motion
for
its
reconsideration. As if the case
on the comfort womens
claims is not controversial
enough, the UP Law faculty
would fan the flames and
invite resentment against a
resolution that would not
reverse the said decision. This
runs contrary
to
their
obligation as law professors
and officers of the Court to be
the first to uphold the dignity
and authority of this Court, to
which
they
owe
fidelity
according to the oath they
have taken as attorneys, and
not to promote distrust in the
administration of justice. 115 x x
x.
(Citations
omitted;
emphases and underscoring
supplied.)
Indeed, in a long line of cases,
including
those
cited
in
respondents submissions, this
Court has held that the right
to criticize the courts and
judicial officers must be
balanced against the equally
primordial concern that the
independence of the Judiciary
be
protected
from
due
influence or interference. In
cases where the critics are not
only citizens but members of
the Bar, jurisprudence has
repeatedly
affirmed
the
authority of this Court to
discipline
lawyers
whose
statements
regarding
the
courts and fellow lawyers,
whether
judicial
or
extrajudicial, have exceeded
273

Legal Ethics

the limits of fair comment and

common decency.
As early as the 1935 case of
Salcedo v. Hernandez,116 the
Court found Atty. Vicente J.
Francisco
both
guilty
of
contempt
and
liable
administratively
for
the
following paragraph in his
second
motion
for
reconsideration:
We should like frankly and
respectfully to make it of
record that the resolution of
this court, denying our motion
for
reconsideration,
is
absolutely
erroneous
and
constitutes an outrage to the
rights of the petitioner Felipe
Salcedo and a mockery of the
popular will expressed at the
polls in the municipality of
Tiaong, Tayabas. We wish to
exhaust all the means within
our power in order that this
error may be corrected by the
very
court
which
has
committed it, because we
should not want that some
citizen,
particularly
some
voter of the municipality of
Tiaong, Tayabas, resort to the
press publicly to denounce, as
he has a right to do, the
judicial outrage of which the
herein petitioner has been the
victim, and because it is our
utmost desire to safeguard
the prestige of this honorable
court and of each and every
member thereof in the eyes of
the public. But, at the same
time we wish to state
sincerely
that
erroneous
decisions like these, which the
affected
party
and
his
thousands of voters will
necessarily consider unjust,
increase the proselytes of
'sakdalism' and make the
public lose confidence in the

administration
justice.117 (Emphases
supplied.)

of

The highlighted phrases were

considered by the Court as
neither justified nor necessary
and further held that:
[I]n order to call the attention
of the court in a special way
to the essential points relied
upon in his argument and to
emphasize the force thereof,
the many reasons stated in
his said motion were sufficient
and the phrases in question
were superfluous. In order to
appeal to reason and justice,
it is highly improper and
amiss to make trouble and
resort to threats, as Attorney
Vicente J. Francisco has done,
because both means are
annoying and good practice
can never sanction them by
reason
of
their
natural
tendency to disturb and
hinder the free exercise of a
serene
and
impartial
judgment,
particularly
in
judicial
matters,
in
the
consideration of questions
submitted for resolution.
There is no question that said
paragraph of Attorney Vicente
J. Francisco's motion contains
a more or less veiled threat to
the court because it is
insinuated therein, after the
author shows the course
which the voters of Tiaong
should follow in case he fails
in his attempt, that they will
resort to the press for the
purpose of denouncing, what
he claims to be a judicial
outrage of which his client has
been the victim; and because
he states in a threatening
manner with the intention of
predisposing the mind of the
274

Legal Ethics

reader against the court, thus

creating an atmosphere of
prejudices against it in order
to make it odious in the public
eye, that decisions of the
nature of that referred to in
his motion promote distrust in
the administration of justice
and increase the proselytes
of sakdalism, a movement
with
seditious
and
revolutionary tendencies the
activities of which, as is of
public knowledge, occurred in
this country a few days ago.
This cannot mean otherwise
than contempt of the dignity
of the court and disrespect of
the authority thereof on the
part of Attorney Vicente J.
Francisco,
because
he
presumes that the court is so
devoid of the sense of justice
that, if he did not resort to
intimidation, it would maintain
its error notwithstanding the
fact that it may be proven,
with good reasons, that it has
acted
erroneously.118 (Emphases
supplied.)
Significantly, Salcedo is the
decision
from
which
respondents culled their quote
from the minority view of
Justice Malcolm. Moreover,
Salcedo
concerned
statements
made
in
a
pleading filed by a counsel in
a case, unlike the respondents
here, who are neither parties
nor
counsels
in
the Vinuya case
and
therefore, do not have any
standing at all to interfere in
the Vinuya case. Instead of
supporting
respondents
theory, Salcedo is authority
for the following principle:
As a member of the bar and
an officer of this court,

Attorney Vicente J. Francisco,

as any attorney, is in duty
bound to uphold its dignity
and authority and to defend
its integrity, not only because
it has conferred upon him the
high privilege, not a right
(Malcolm, Legal Ethics, 158
and 160), of being what he
now
is:
a
priest
of
justice(In re Thatcher, 80
Ohio St. Rep., 492, 669), but
also because in so doing, he
neither creates nor promotes
distrust in the administration
of
justice,
and
prevents
anybody from harboring and
encouraging discontent which,
in many cases, is the source
of disorder, thus undermining
the foundation upon which
rests that bulwark called
judicial power to which those
who are aggrieved turn for
protection
and
119
relief. (Emphases supplied.)
Thus, the lawyer in Salcedo
was
fined
and reprimanded for
his
injudicious statements in his
pleading, by accusing the
Court of "erroneous ruling."
Here,
the
respondents
Statement goes way beyond
merely ascribing error to the
Court.
Other
cases
cited
by
respondents likewise espouse
rulings contrary to their
position. In re: Atty. Vicente
Raul Almacen,120 cited in the
Common Compliance and the
Vasquez Compliance, was an
instance
where
the
Court indefinitely
suspended a member of the
Bar for filing and releasing to
the press a "Petition to
Surrender Lawyers Certificate
of Title" in protest of what he
claimed was a great injustice
275

Legal Ethics

to his client committed by the

Supreme
Court.
In
the
decision, the petition was
described, thus:
He indicts this Court, in his
own phrase, as a tribunal
"peopled by men who are
calloused to our pleas for
justice, who ignore without
reasons their own applicable
decisions
and
commit
culpable violations of the
Constitution with impunity."
His client's he continues, who
was deeply aggrieved by this
Court's "unjust judgment," has
become "one of the sacrificial
victims before the altar of
hypocrisy." In the same breath
that he alludes to the classic
symbol of justice, he ridicules
the members of this Court,
saying
"that
justice
as
administered by the present
members of the Supreme
Court is not only blind, but
also deaf and dumb." He then
vows to argue the cause of his
client "in the people's forum,"
so that "the people may know
of
the
silent
injustices
committed by this Court," and
that
"whatever
mistakes,
wrongs and injustices that
were committed must never
be repeated." He ends his
petition with a prayer that
"x x x a resolution issue
ordering the Clerk of Court to
receive the certificate of the
undersigned
attorney
and
counsellor-at-law IN TRUST
with reservation that at any
time in the future and in the
event we regain our faith and
confidence, we may retrieve
our title to assume the
practice
of
the
noblest
121
profession."

It is true that in Almacen the

Court extensively discussed
foreign jurisprudence on the
principle that a lawyer, just
like any citizen, has the right
to criticize and comment upon
actuations of public officers,
including judicial authority.
However, the real doctrine in
Almacen is that such criticism
of the courts, whether done in
court or outside of it, must
conform to standards of
fairness and propriety. This
case engaged in an even
more extensive discussion of
the
legal
authorities
sustaining
this
view.1awphi1 To quote from
that decision:
But it is the cardinal condition
of all such criticism that it
shall be bona fide, and shall
not spill over the walls of
decency and propriety. A wide
chasm exists between fair
criticism, on the one hand,
and abuse and slander of
courts and the judges thereof,
on the other. Intemperate and
unfair criticism is a gross
violation of the duty of respect
to courts. It is such a
misconduct that subjects a
lawyer to disciplinary action.
For, membership in the Bar
imposes
upon
a
person
obligations and duties which
are not mere flux and
ferment. His investiture into
the legal profession places
upon his shoulders no burden
more basic, more exacting
and more imperative than
that of respectful behavior
toward the courts. He vows
solemnly to conduct himself
"with all good fidelity x x x to
the courts;" and the Rules of
Court constantly remind him
"to observe and maintain the
276

Legal Ethics

respect due to courts of

justice and judicial officers."
The first canon of legal ethics
enjoins him "to maintain
towards
the
courts
a
respectful attitude, not for the
sake
of
the
temporary
incumbent of the judicial
office,
but
for
the
maintenance of its supreme
importance."
As Mr. Justice Field puts it:
"x x x the obligation which
attorneys impliedly assume, if
they do not by express
declaration
take
upon
themselves, when they are
admitted to the Bar, is not
merely to be obedient to the
Constitution and laws, but to
maintain at all times the
respect due to courts of
justice and judicial officers.
This
obligation
is
not
discharged
by
merely
observing
the
rules
of
courteous demeanor in open
court, but includes abstaining
out of court from all insulting
language
and
offensive
conduct
toward
judges
personally for their judicial
acts." (Bradley, v. Fisher, 20
Law. 4d. 647, 652)
The lawyer's duty to render
respectful subordination to
the courts is essential to the
orderly
administration
of
justice.
Hence,
in
the
assertion of their clients'
rights, lawyers even those
gifted with superior intellect
are enjoined to rein up their
tempers.
"The counsel in any case may
or may not be an abler or
more learned lawyer than the
judge, and it may tax his
patience
and
temper
to

submit to rulings which he

regards as incorrect, but
discipline and self-respect are
as necessary to the orderly
administration of justice as
they are to the effectiveness
of an army. The decisions of
the judge must be obeyed,
because he is the tribunal
appointed to decide, and the
bar should at all times be the
foremost
in
rendering
respectful submission." (In Re
Scouten, 40 Atl. 481)
xxxx
In his relations with the
courts, a lawyer may not
divide his personality so as to
be an attorney at one time
and a mere citizen at another.
Thus, statements made by an
attorney
in
private
conversations
or
communications or in the
course of a political campaign,
if
couched
in
insulting
language as to bring into
scorn and disrepute the
administration of justice, may
subject
the
attorney
to
disciplinary
action.122 (Emphases
and
underscoring supplied.)
In a similar vein, In re: Vicente
Sotto,123 cited in the Vasquez
Compliance, observed that:
[T]his Court, in In re Kelly,
held the following:
The publication of a criticism
of a party or of the court to a
pending cause, respecting the
same,
has
always
been
considered as misbehavior,
tending
to
obstruct
the
administration of justice, and
subjects such persons to
contempt proceedings. Parties
have a constitutional right to
277

Legal Ethics

have their causes tried fairly

in court, by an impartial
tribunal,
uninfluenced
by
publications or public clamor.
Every citizen has a profound
personal
interest
in
the
enforcement
of
the
fundamental right to have
justice administered by the
courts, under the protection
and forms of law, free from
outside
coercion
or
interference. x x x.
Mere criticism or comment on
the correctness or wrongness,
soundness or unsoundness of
the decision of the court in a
pending case made in good
faith
may
be
tolerated;
because if well founded it may
enlighten
the
court
and
contribute to the correction of
an error if committed; but if it
is
not
well
taken
and
obviously erroneous, it should,
in no way, influence the court
in reversing or modifying its
decision. x x x.
xxxx
To hurl the false charge that
this Court has been for the
last
years
committing
deliberately
"so
many
blunders and injustices," that
is to say, that it has been
deciding in favor of one party
knowing that the law and
justice is on the part of the
adverse party and not on the
one in whose favor the
decision was rendered, in
many cases decided during
the last years, would tend
necessarily to undermine the
confidence of the people in
the honesty and integrity of
the members of this Court,
and consequently to lower or
degrade the administration of
justice by this Court. The

Supreme
Court
of
the
Philippines is, under the
Constitution, the last bulwark
to which the Filipino people
may repair to obtain relief for
their grievances or protection
of their rights when these are
trampled upon, and if the
people lose their confidence in
the honesty and integrity of
the members of this Court and
believe that they cannot
expect justice therefrom, they
might be driven to take the
law into their own hands, and
disorder and perhaps chaos
might be the result. As a
member of the bar and an
officer of the courts Atty.
Vicente Sotto, like any other,
is in duty bound to uphold the
dignity and authority of this
Court, to which he owes
fidelity according to the oath
he
has
taken
as
such
attorney, and not to promote
distrust in the administration
of justice. Respect to the
courts guarantees the stability
of other institutions, which
without such guaranty would
be resting on a very shaky
foundation.124 (Emphases and
underscoring supplied.)
That
the
doctrinal
pronouncements
in
these
early cases are still good law
can be easily gleaned even
from
more
recent
jurisprudence.
In Choa v. Chiongson,125 the
Court
administratively
disciplined a lawyer, through
the imposition of a fine, for
making
malicious
and
unfounded criticisms of a
judge in the guise of an
administrative complaint and
held, thus:

278

Legal Ethics

As an officer of the court and

its indispensable partner in
the
sacred
task
of
administering justice, graver
responsibility is imposed upon
a lawyer than any other to
uphold the integrity of the
courts and to show respect to
its officers. This does not
mean, however, that a lawyer
cannot criticize a judge. As we
stated in Tiongco vs. Hon.
Aguilar:
It does not, however, follow
that just because a lawyer is
an officer of the court, he
cannot criticize the courts.
That is his right as a citizen,
and it is even his duty as an
officer of the court to avail of
such right. Thus, in In Re:
Almacen (31 SCRA 562, 579580
[1970]),
this
Court
explicitly declared:
Hence, as a citizen and as
officer of the court, a lawyer is
expected not only to exercise
the right, but also to consider
it his duty to avail of such
right. No law may abridge this
right. Nor is he "professionally
answerable to a scrutiny into
the official conduct of the
judges, which would not
expose
him
to
legal
animadversion as a citizen."
(Case of Austin, 28 Am Dec.
657, 665).
xxxx
Nevertheless, such a right is
not without limit. For, as this
Court warned in Almacen:
But it is a cardinal condition of
all such criticism that it shall
be bona fide, and shall not
spill over the walls of decency
and propriety. A wide chasm
exists between fair criticism,

on the one hand, and abuse

and slander of courts and the
judges thereof, on the other.
Intemperate
and
unfair
criticism is a gross violation of
the duty of respect to courts.
It is such a misconduct, that
subjects
a
lawyer
to
disciplinary action.
xxxx
Elsewise stated, the right to
criticize, which is guaranteed
by the freedom of speech and
of expression in the Bill of
Rights of the Constitution,
must
be
exercised
responsibly, for every right
carries with it a corresponding
obligation. Freedom
is
not
freedom from responsibility,
but
freedom
with
responsibility. x x x.
xxxx
Proscribed then are, inter alia,
the
use
of
unnecessary
language which jeopardizes
high esteem in courts, creates
or promotes distrust in judicial
administration
(Rheem,
supra), or tends necessarily to
undermine the confidence of
people in the integrity of the
members of this Court and to
degrade the administration of
justice by this Court (In re:
Sotto, 82 Phil. 595 [1949]); or
of offensive and abusive
language
(In
re:
Rafael
Climaco,
55
SCRA
107
[1974]); or abrasive and
offensive language (Yangson
vs. Salandanan, 68 SCRA 42
[1975]; or of disrespectful,
offensive, manifestly baseless,
and malicious statements in
pleadings or
in
a
letter
addressed to the judge (Baja
vs. Macandog, 158 SCRA
[1988], citing the resolution of
279

Legal Ethics

19 January 1988 in Phil. Public

Schools Teachers Association
vs. Quisumbing, G.R. No.
76180,
and
Ceniza
vs.
Sebastian, 130 SCRA 295
[1984]); or of disparaging,
intemperate, and uncalled-for
remarks
(Sangalang
vs.
Intermediate Appellate Court,
177 SCRA 87 [1989]).
Any criticism against a judge
made in the guise of an
administrative
complaint
which is clearly unfounded
and impelled by ulterior
motive will not excuse the
lawyer responsible therefor
under his duty of fidelity to his
client. x x x.126 (Emphases and
underscoring supplied.)
In Saberon v. Larong, where
this Court found respondent
lawyer
guilty
of
simple
misconduct
for
using
intemperate language in his
pleadings and imposed a fine
upon him, we had the
occasion to state:
127

The Code of Professional

Responsibility mandates:
CANON 8 - A lawyer shall
conduct himself with courtesy,
fairness and candor toward
his professional colleagues,
and shall avoid harassing
tactics
against
opposing
counsel.
Rule 8.01 - A lawyer shall not,
in his professional dealings,
use
language
which
is
abusive,
offensive
or
otherwise improper.

CANON 11 - A lawyer shall

observe and maintain the
respect due to the courts
and to judicial officers and
should insist on similar
conduct by others.
Rule 11.03 - A lawyer shall
abstain from scandalous,
offensive
or
menacing
language
or
behavior
before the Courts.
To be sure, the adversarial
nature of our legal system has
tempted members of the bar
to use strong language in
pursuit of their duty to
advance the interests of their
clients.
However, while a lawyer is
entitled to present his
case
with
vigor
and
courage, such enthusiasm
does not justify the use of
offensive
and
abusive
language.
Language
abounds with countless
possibilities for one to be
emphatic but respectful,
convincing
but
not
derogatory,
illuminating
but not offensive.
On many occasions, the
Court
has
reminded
members of the Bar to
abstain from all offensive
personalityand to advance
no fact prejudicial to the
honor or reputation of a party
or witness, unless required by
the justice of the cause with
which he is charged. In
keeping with the dignity of the
legal profession, a lawyers
language
even
in
his
pleadings must be dignified.128
Verily, the accusatory and
vilifying nature of certain
portions of the Statement
280

Legal Ethics

exceeded the limits of fair

comment and cannot be
deemed as protected free
speech. Even In the Matter of
Petition for Declaratory Relief
Re:
Constitutionality
of
Republic Act 4880, Gonzales v.
Commission
on
129
Elections, relied upon by
respondents in the Common
Compliance, held that:
From the language of the
specific
constitutional
provision, it would appear that
the right is not susceptible of
any limitation. No law may be
passed abridging the freedom
of speech and of the press.
The realities of life in a
complex
society
preclude
however
a
literal
interpretation. Freedom of
expression is not an absolute.
It would be too much to insist
that at all times and under all
circumstances
it
should
remain
unfettered
and
unrestrained. There are other
societal values that press for
recognition.
x
x
130
x. (Emphasis supplied.)
One such societal value that
presses for recognition in the
case at bar is the threat to
judicial independence and the
orderly
administration
of
justice
that
immoderate,
reckless and unfair attacks on
judicial
decisions
and
institutions pose. This Court
held as much in Zaldivar v.
Sandiganbayan
and
131
Gonzales, where
we indefinitely
suspended a lawyer from the
practice of law for issuing to
the media statements grossly
disrespectful
towards
the
Court in relation to a pending
case, to wit:

Respondent
Gonzales
is
entitled to the constitutional
guarantee of free speech. No
one seeks to deny him that
right, least of all this Court.
What
respondent
seems
unaware of is that freedom of
speech and of expression, like
all constitutional freedoms, is
not absolute and that freedom
of
expression
needs
on
occasion to be adjusted to and
accommodated
with
the
requirements
of
equally
important public interest. One
of these fundamental public
interests is the maintenance
of the integrity and orderly
functioning
of
the
administration
of
justice.
There is no antinomy between
free
expression
and
the
integrity of the system of
administering justice. For the
protection and maintenance
of freedom of expression itself
can be secured only within the
context of a functioning and
orderly system of dispensing
justice, within the context, in
other
words,
of
viable
independent institutions for
delivery of justice which are
accepted by the general
community.
x
x
132
x. (Emphases supplied.)
For this reason, the Court
cannot uphold the view of
some respondents133 that the
Statement presents no grave
or imminent danger to a
legitimate public interest.
The Show Cause Resolution
does
not
interfere
with
respondents
academic
freedom.
It is not contested that
respondents herein are, by
law
and
jurisprudence,
guaranteed
academic
281

Legal Ethics

freedom and undisputably,

they are free to determine
what they will teach their
students and how they will
teach. We must point out that
there is nothing in the Show
Cause Resolution that dictates
upon respondents the subject
matter they can teach and the
manner of their instruction.
Moreover,
it
is
not
inconsistent with the principle
of academic freedom for this
Court to subject lawyers who
teach law to disciplinary
action
for
contumacious
conduct and speech, coupled
with undue intervention in
favor of a party in a pending
case,
without
observing
proper procedure, even if
purportedly done in their
capacity as teachers.
A novel issue involved in the
present controversy, for it has
not been passed upon in any
previous case before this
Court, is the question of
whether lawyers who are also
law professors can invoke
academic
freedom
as
a
defense in an administrative
proceeding for intemperate
statements
tending
to
pressure
the
Court
or
influence the outcome of a
case or degrade the courts.
Applying by analogy the
Courts past treatment of the
"free speech" defense in other
bar discipline cases, academic
freedom
cannot
be
successfully
invoked
by
respondents in this case. The
implicit
ruling
in
the
jurisprudence
discussed
above
is
that
the
constitutional right to freedom
of expression of members of
the Bar may be circumscribed
by their ethical duties as

lawyers to give due respect to

the courts and to uphold the
publics faith in the legal
profession and the justice
system. To our mind, the
reason
that
freedom
of
expression
may
be
so
delimited in the case of
lawyers applies with greater
force
to
the
academic
freedom of law professors.
It would do well for the Court
to remind respondents that, in
view of the broad definition in
Cayetano
v.
134
Monsod, lawyers when they
teach law are considered
engaged in the practice of
law. Unlike professors in other
disciplines and more than
lawyers who do not teach law,
respondents are bound by
their oath to uphold the
ethical standards of the legal
profession. Thus, their actions
as law professors must be
measured against the same
canons
of
professional
responsibility applicable to
acts of members of the Bar as
the fact of their being law
professors
is
inextricably
entwined with the fact that
they are lawyers.
Even if the Court was willing
to
accept
respondents
proposition in the Common
Compliance
that
their
issuance of the Statement
was in keeping with their duty
to
"participate
in
the
development of the legal
system
by
initiating
or
supporting efforts in law
reform
and
in
the
improvement
of
the
administration
of
justice"
under Canon 4 of the Code of
Professional Responsibility, we
cannot agree that they have
fulfilled that same duty in
282

Legal Ethics

keeping with the demands of

Canons 1, 11 and 13 to give
due respect to legal processes
and the courts, and to avoid
conduct
that
tends
to
influence the courts. Members
of the Bar cannot be selective
regarding which canons to
abide by given particular
situations. With more reason
that law professors are not
allowed this indulgence, since
they are expected to provide
their students exemplars of
the Code of Professional
Responsibility as a whole and
not
just
their
preferred
portions thereof.
The Courts rulings on the
submissions regarding the
charge of violation of Canons
1, 11 and 13.
Having
disposed
of
respondents main arguments
of freedom of expression and
academic freedom, the Court
considers here the other
averments
in
their
submissions.
With respect to good faith,
respondents
allegations
presented two main ideas: (a)
the validity of their position
regarding
the
plagiarism
charge against Justice Del
Castillo, and (b) their pure
motive to spur this Court to
take the correct action on said
issue.
The Court has already clarified
that it is not the expression of
respondents staunch belief
that Justice Del Castillo has
committed a misconduct that
the majority of this Court has
found so unbecoming in the
Show Cause Resolution. No
matter how firm a lawyers
conviction
in
the

righteousness of his cause

there is simply no excuse for
denigrating the courts and
engaging in public behavior
that tends to put the courts
and the legal profession into
disrepute. This doctrine, which
we have repeatedly upheld in
such cases as Salcedo, In re
Almacen
and
Saberong,
should be applied in this case
with more reason, as the
respondents, not parties to
the Vinuya case,
denounced
the Court and urged it to
change its decision therein, in
a public statement using
contumacious
language,
which with temerity they
subsequently submitted to the
Court for "proper disposition."
That humiliating the Court
into reconsidering the Vinuya
Decision in favor of the
Malaya Lolas was one of the
objectives of the Statement
could be seen in the following
paragraphs from the same:
And in light of the significance
of this decision to the quest
for justice not only of Filipino
women,
but
of
women
elsewhere in the world who
have suffered the horrors of
sexual abuse and exploitation
in times of war, the Court
cannot coldly deny relief and
justice to the petitioners on
the basis of pilfered and
misinterpreted texts.
xxxx
(3) The same breach and
consequent
disposition
of
the Vinuya case does violence
to the primordial function of
the Supreme Court as the
ultimate dispenser of justice
to all those who have been
left without legal or equitable
283

Legal Ethics

recourse,
such
as
petitioners
therein.135 (Emphases
underscoring supplied.)

the
and

Whether or not respondents

views
regarding
the
plagiarism
issue
in
the Vinuya case
had
valid
basis was wholly immaterial
to
their
liability
for
contumacious speech and
conduct.
These
are
two
separate
matters
to
be
properly threshed out in
separate proceedings. The
Court considers it highly
inappropriate,
if
not
tantamount to dissembling,
the discussion devoted in one
of the compliances arguing
the guilt of Justice Del Castillo.
In the Common Compliance,
respondents even go so far as
to
attach
documentary
evidence to support the
plagiarism charges against
Justice Del Castillo in the
present
controversy.
The
ethics case of Justice Del
Castillo (A.M. No. 10-7-17-SC),
with the filing of a motion for
reconsideration,
was
still
pending at the time of the
filing
of
respondents
submissions
in
this
administrative
case.
As
respondents
themselves
admit, they are neither parties
nor counsels in the ethics
case against Justice Del
Castillo. Notwithstanding their
professed overriding interest
in said ethics case, it is not
proper
procedure
for
respondents to bring up their
plagiarism arguments here
especially when it has no
bearing
on
their
own
administrative case.
Still on motive, it is also
proposed that the choice of

language in the Statement

was intended for effective
speech; that speech must be
"forceful enough to make the
intended
recipients
136
listen." One wonders what
sort of effect respondents
were hoping for in branding
this Court as, among others,
callous, dishonest and lacking
in concern for the basic values
of decency and respect. The
Court fails to see how it can
ennoble the profession if we
allow respondents to send a
signal to their students that
the only way to effectively
plead
their
cases
and
persuade others to their point
of view is to be offensive.
This brings to our mind the
letters of Dr. Ellis and Prof.
Tams which were deliberately
quoted in full in the narration
of
background
facts
to
illustrate the sharp contrast
between the civil tenor of
these
letters
and
the
antagonistic irreverence of the
Statement. In truth, these
foreign authors are the ones
who would expectedly be
affected by any perception of
misuse
of
their
works.
Notwithstanding that they are
beyond the disciplinary reach
of this Court, they still
obviously
took
pains
to
convey their objections in a
deferential
and
scholarly
manner. It is unfathomable to
the Court why respondents
could not do the same. These
foreign
authors
letters
underscore the universality of
the
tenet
that
legal
professionals must deal with
each other in good faith and
due respect. The mark of the
true intellectual is one who
can express his opinions
logically and soberly without
284

Legal Ethics

resort to exaggerated rhetoric

and
unproductive
recriminations.
As for the claim that the
respondents noble intention
is to spur the Court to take
"constructive action" on the
plagiarism issue, the Court
has some doubts as to its
veracity. For if the Statement
was primarily meant for this
Courts consideration, why
was the same published and
reported in the media first
before it was submitted to this
Court? It is more plausible
that
the
Statement
was
prepared for consumption by
the
general
public
and
designed to capture media
attention as part of the effort
to generate interest in the
most controversial ground in
the Supplemental Motion for
Reconsideration filed in the
Vinuya case by Atty. Roque,
who is respondents colleague
on the UP Law faculty.
In this regard, the Court finds
that there was indeed a lack
of observance of fidelity and
due respect to the Court,
particularly when respondents
knew fully well that the
matter of plagiarism in the
Vinuya decision and the
merits of the Vinuya decision
itself, at the time of the
Statements issuance, were
still both sub judice or
pending final disposition of
the Court. These facts have
been widely publicized. On
this point, respondents allege
that
at
the
time
the
Statement was first drafted on
July 27, 2010, they did not
know of the constitution of the
Ethics Committee and they
had issued the Statement
under the belief that this

Court intended to take no

action on the ethics charge
against Justice Del Castillo.
Still, there was a significant
lapse of time from the drafting
and printing of the Statement
on July 27, 2010 and its
publication and submission to
this Court in early August
when the Ethics Committee
had already been convened. If
it is true that the respondents
outrage was fueled by their
perception of indifference on
the part of the Court then,
when it became known that
the Court did intend to take
action, there was nothing to
prevent
respondents
from
recalibrating the Statement to
take this supervening event
into account in the interest of
fairness.
Speaking of the publicity this
case has generated, we
likewise find no merit in the
respondents
reliance
on
various news reports and
commentaries in the print
media and the internet as
proof that they are being
unfairly "singled out." On the
contrary, these same annexes
to the Common Compliance
show that it is not enough for
one to criticize the Court to
warrant the institution of
disciplinary137 or
contempt138 action. This Court
takes into account the nature
of the criticism and weighs
the possible repercussions of
the same on the Judiciary.
When the criticism comes
from persons outside the
profession who may not have
a full grasp of legal issues or
from
individuals
whose
personal or other interests in
making the criticism are
obvious,
the
Court
may
perhaps tolerate or ignore
285

Legal Ethics

them. However, when law

professors are the ones who
appear to have lost sight of
the
boundaries
of
fair
commentary
and
worse,
would justify the same as an
exercise of civil liberties, this
Court cannot remain silent for
such silence would have a
grave implication on legal
education in our country.
With respect to the 35
respondents named in the
Common
Compliance,
considering that this appears
to be the first time these
respondents
have
been
involved
in
disciplinary
proceedings of this sort, the
Court is willing to give them
the benefit of the doubt that
they were for the most part
well-intentioned
in
the
issuance of the Statement.
However, it is established in
jurisprudence that where the
excessive and contumacious
language used is plain and
undeniable, then good intent
can only be mitigating. As this
Court expounded in Salcedo:
In his defense, Attorney
Vicente J. Francisco states that
it was not his intention to
offend the court or to be
recreant
to
the
respect
thereto but, unfortunately,
there are his phrases which
need no further comment.
Furthermore, it is a well
settled rule in all places where
the same conditions and
practice as those in this
jurisdiction obtain, that want
of intention is no excuse from
liability (13 C. J., 45). Neither
is the fact that the phrases
employed are justified by the
facts a valid defense:

"Where the matter is abusive

or insulting, evidence that the
language used was justified
by the facts is not admissible
as a defense. Respect for the
judicial office should always
be observed and enforced."
(In re Stewart, 118 La., 827;
43 S., 455.) Said lack or want
of intention constitutes at
most
an
extenuation
of
liability in this case, taking
into consideration Attorney
Vicente J. Francisco's state of
mind, according to him when
he prepared said motion. This
court is disposed to make
such concession. However, in
order to avoid a recurrence
thereof and to prevent others,
by following the bad example,
from taking the same course,
this
court
considers
it
imperative to treat the case of
said attorney with the justice
it
deserves.139 (Emphases
supplied.)
Thus, the 35 respondents
named
in
the
Common
Compliance
should,
notwithstanding their claim of
good faith, be reminded of
their lawyerly duty, under
Canons 1, 11 and 13, to give
due respect to the courts and
to refrain from intemperate
and
offensive
language
tending to influence the Court
on pending matters or to
denigrate the courts and the
administration of justice.
With respect to Prof. Vasquez,
the Court favorably notes the
differences in his Compliance
compared to his colleagues. In
our view, he was the only one
among the respondents who
showed true candor and
sincere deference to the
Court. He was able to give a
straightforward account of
286

Legal Ethics

how he came to sign the

Statement. He was candid
enough to state that his
agreement to the Statement
was in principle and that the
reason plagiarism was a "fair
topic of discussion" among
the UP Law faculty prior to the
promulgation of the October
12, 2010 Decision in A.M. No.
10-7-17-SC
was
the
uncertainty brought about by
a division of opinion on
whether or not willful or
deliberate intent was an
element of plagiarism. He was
likewise
willing
to
acknowledge that he may
have been remiss in failing to
assess the effect of the
language of the Statement
and could have used more
care. He did all this without
having to retract his position
on the plagiarism issue,
without
demands
for
undeserved reliefs (as will be
discussed below) and without
baseless
insinuations
of
deprivation of due process or
of prejudgment. This is all that
this Court expected from
respondents, not for them to
sacrifice their principles but
only that they recognize that
they themselves may have
committed some ethical lapse
in this affair. We commend
Prof. Vaquez for showing that
at
least
one
of
the
respondents can grasp the
true import of the Show Cause
Resolution involving them. For
these reasons, the Court finds
Prof. Vasquezs Compliance
satisfactory.
As for Prof. Lynch, in view of
his Manifestation that he is a
member of the Bar of the
State of Minnesota and,
therefore, not under the
disciplinary authority of this

Court, he should be excused

from
these
proceedings.
However,
he
should
be
reminded that while he is
engaged as a professor in a
Philippine law school he
should strive to be a model of
responsible and professional
conduct to his students even
without the threat of sanction
from this Court. For even if
one is not bound by the Code
of Professional Responsibility
for members of the Philippine
Bar,
civility
and
respect
among legal professionals of
any nationality should be
aspired for under universal
standards of decency and
fairness.
The Courts ruling on Dean
Leonens
Compliance
regarding
the
charge
of
violation of Canon 10.
To recall, the Show Cause
Resolution
directed
Dean
Leonen to show cause why he
should not be disciplinary
dealt with for violation of
Canon 10, Rules 10.01, 10.02
and 10.03 and for submitting
a "dummy" that was not a
true and faithful reproduction
of the signed Statement.
In his Compliance, Dean
Leonen
essentially
denies
that Restoring
Integrity
II was not a true and faithful
reproduction of the actual
signed
copy, Restoring
Integrity I, because looking
at the text or the body, there
were no differences between
the two. He attempts to
downplay the discrepancies in
the signature pages of the two
versions of the Statement
(i.e., Restoring
Integrity
I and Restoring Integrity II)
by claiming that it is but
287

Legal Ethics

expected in "live" public

manifestos with dynamic and
evolving pages as more and
more signatories add their
imprimatur
thereto.
He
likewise stresses that he is not
administratively
liable
because
he
did
not
misrepresent the members of
the UP Law faculty who
"had agreed
with
the
Restoring Integrity Statement
proper
and/or
who
had
expressed their desire to be
signatories thereto."140
To begin with, the Court
cannot subscribe to Dean
Leonens implied view that
the
signatures
in
the
Statement
are
not
as
significant as its contents.
Live public manifesto or not,
the Statement was formally
submitted to this Court at a
specific point in time and it
should reflect accurately its
signatories at that point. The
value of the Statement as a
UP Law Faculty Statement lies
precisely in the identities of
the persons who have signed
it, since the Statements
persuasive authority mainly
depends on the reputation
and stature of the persons
who have endorsed the same.
Indeed, it is apparent from
respondents
explanations
that their own belief in the
"importance" of their positions
as
UP
law
professors
prompted them to publicly
speak out on the matter of the
plagiarism issue in the Vinuya
case.
Further, in our assessment,
the true cause of Dean
Leonens predicament is the
fact that he did not from the
beginning submit the signed
copy, Restoring Integrity I, to

this Court on August 11, 2010

and,
instead,
submitted
Restoring Integrity II with its
retyped
or
"reformatted"
signature pages. It would turn
out,
according
to
Dean
Leonens account, that there
were errors in the retyping of
the signature pages due to
lapses of his unnamed staff.
First,
an
unnamed
administrative officer in the
deans office gave the dean
inaccurate information that
led him to allow the inclusion
of Justice Mendoza as among
the signatories of Restoring
Integrity
II.
Second,
an
unnamed staff also failed to
type the name of Atty. Armovit
when encoding the signature
pages of Restoring Integrity II
when in fact he had signed
Restoring Integrity I.
The Court can understand
why for purposes of posting
on a bulletin board or a
website a signed document
may have to be reformatted
and
signatures
may
be
indicated by the notation
(SGD). This is not unusual. We
are willing to accept that the
reformatting of documents
meant for posting to eliminate
blanks is necessitated by
vandalism concerns.
However, what is unusual is
the submission to a court,
especially this Court, of a
signed document for the
Courts consideration that did
not
contain
the
actual
signatures of its authors. In
most
cases,
it
is
the original signed document
that is transmitted to the
Court or at the very least a
photocopy of the actual
signed
document.
Dean
Leonen has not offered any
288

Legal Ethics

explanation why he deviated

from this practice with his
submission to the Court of
Restoring
Integrity
II
on
August 11, 2010. There was
nothing to prevent the dean
from submitting Restoring
Integrity I to this Court even
with its blanks and unsigned
portions. Dean Leonen cannot
claim fears of vandalism with
respect to court submissions
for court employees are
accountable for the care of
documents and records that
may come into their custody.
Yet, Dean Leonen deliberately
chose to submit to this Court
the facsimile that did not
contain the actual signatures
and his silence on the reason
therefor is in itself a display of
lack of candor.
Still, a careful reading of Dean
Leonens explanations yield
the answer. In the course of
his
explanation
of
his
willingness to accept his
administrative officers claim
that Justice Mendoza agreed
to be indicated as a signatory,
Dean Leonen admits in a
footnote that other professors
had likewise only authorized
him to indicate them as
signatories and had not in fact
signed the Statement. Thus,
at around the time Restoring
Integrity II was printed, posted
and submitted to this Court,
at
least
one
purported
signatory thereto had not
actually signed the same.
Contrary to Dean Leonens
proposition, that is precisely
tantamount to making it
appear to this Court that a
person or persons participated
in an act when such person or
persons did not.

We
are
surprised
that
someone like Dean Leonen,
with
his
reputation
for
perfection
and
stringent
standards
of
intellectual
honesty, could proffer the
explanation that there was no
misrepresentation when he
allowed at least one person to
be
indicated
as
having
actually signed the Statement
when all he had was a verbal
communication of an intent to
sign. In the case of Justice
Mendoza, what he had was
only hearsay information that
the former intended to sign
the Statement. If Dean Leonen
was truly determined to
observe
candor
and
truthfulness in his dealings
with the Court, we see no
reason why he could not have
waited until all the professors
who indicated their desire to
sign the Statement had in fact
signed before transmitting the
Statement to the Court as a
duly signed document. If it
was truly impossible to secure
some signatures, such as that
of Justice Mendoza who had to
leave for abroad, then Dean
Leonen should have just
resigned
himself
to
the
signatures that he was able to
secure.
We cannot imagine what
urgent concern there was that
he could not wait for actual
signatures before submission
of the Statement to this Court.
As respondents all asserted,
they were neither parties to
nor counsels in the Vinuya
case and the ethics case
against Justice Del Castillo.
The Statement was neither a
pleading with a deadline nor a
required submission to the
Court; rather, it was a
voluntary
submission
that
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Legal Ethics

Dean Leonen could do at any

time.
In sum, the Court likewise
finds
Dean
Leonens
Compliance
unsatisfactory.
However, the Court is willing
to ascribe these isolated
lapses in judgment of Dean
Leonen to his misplaced zeal
in pursuit of his objectives. In
due consideration of Dean
Leonens
professed
good
intentions, the Court deems it
sufficient to admonish Dean
Leonen for failing to observe
full candor and honesty in his
dealings with the Court as
required under Canon 10.
Respondents requests for a
hearing,
for
production/presentation
of
evidence bearing on the
plagiarism
and
misrepresentation issues in
G.R. No. 162230 and A.M. No.
10-7-17-SC, and for access to
the records of A.M. No. 10-717-SC are unmeritorious.
In the Common Compliance,
respondents named therein
asked for alternative reliefs
should the Court find their
Compliance
unsatisfactory,
that is, that the Show Cause
Resolution be set for hearing
and for that purpose, they be
allowed
to
require
the
production or presentation of
witnesses
and
evidence
bearing on the plagiarism and
misrepresentation issues in
the Vinuya case
(G.R.
No.
162230) and the plagiarism
case against Justice Del
Castillo (A.M. No. 10-7-17-SC)
and to have access to the
records of, and evidence that
were presented or may be
presented in the ethics case
against Justice Del Castillo.

The prayer for a hearing and

for access to the records of
A.M. No. 10-7-17-SC was
substantially echoed in Dean
Leonens
separate
Compliance. In Prof. JuanBautistas Compliance, she
similarly
expressed
the
sentiment
that
"[i]f
the
Restoring Integrity Statement
can be considered indirect
contempt, under Section 3 of
Rule 71 of the Rules of Court,
such may be punished only
after charge and hearing."141 It
is this group of respondents
premise that these reliefs are
necessary for them to be
accorded full due process.
The
Court
finds
this
contention unmeritorious.
Firstly, it would appear that
the confusion as to the
necessity of a hearing in this
case springs largely from its
characterization as a special
civil
action
for
indirect
contempt in the Dissenting
Opinion of Justice Sereno (to
the October 19, 2010 Show
Cause Resolution) and her
reliance
therein
on
the
majoritys purported failure to
follow the procedure in Rule
71 of the Rules of Court as her
main ground for opposition to
the Show Cause Resolution.
However, once and for all, it
should be clarified that this is
not an indirect contempt
proceeding and Rule 71
(which requires a hearing) has
no application to this case. As
explicitly ordered in the Show
Cause Resolution this case
was
docketed
as
an
administrative matter.
The rule that is relevant to
this controversy is Rule 139-B,
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Legal Ethics

Section 13, on disciplinary

proceedings initiated motu
proprio by the Supreme Court,
to wit:
SEC.
13. Supreme
Court
Investigators.In proceedings
initiated motu proprio by the
Supreme Court or in other
proceedings when the interest
of justice so requires, the
Supreme Court may refer the
case for investigation to the
Solicitor General or to any
officer of the Supreme Court
or judge of a lower court, in
which case the investigation
shall proceed in the same
manner provided in sections 6
to 11 hereof, save that the
review of the report of
investigation
shall
be
conducted directly by the
Supreme Court. (Emphasis
supplied.)
From the foregoing provision,
it cannot be denied that a
formal investigation, through
a referral to the specified
officers,
is
merely
discretionary, not
mandatory on
the
Court.
Furthermore, it is only if the
Court
deems
such
an
investigation necessary that
the procedure in Sections 6 to
11 of Rule 139-A will be
followed.
As respondents are fully
aware,
in
general,
administrative proceedings do
not require a trial type
hearing. We have held that:
The essence of due process is
simply an opportunity to be
heard or, as applied to
administrative
proceedings,
an opportunity to explain
one's side or an opportunity to
seek a reconsideration of the

action or ruling complained of.

What
the
law
prohibits
is absolute absence of the
opportunity to be heard,
hence, a party cannot feign
denial of due process where
he had been afforded the
opportunity to present his
side. A formal or trial type
hearing is not at all times and
in all instances essential to
due process, the requirements
of which are satisfied where
the parties are afforded fair
and reasonable opportunity to
explain their side of the
controversy.142 (Emphases
supplied.)
In relation to bar discipline
cases, we have had the
occasion to rule in Pena v.
Aparicio143 that:
Disciplinary
proceedings
against
lawyers
are sui
generis. Neither purely civil
nor purely criminal, they do
not involve a trial of an action
or a suit, but is rather an
investigation by the Court into
the conduct of one of its
officers. Not being intended to
inflict punishment, it is in no
sense a criminal prosecution.
Accordingly, there is neither a
plaintiff nor a prosecutor
therein. It may be initiated by
the Court motu proprio. Public
interest
is
its
primary
objective,
and
the
real
question for determination is
whether or not the attorney is
still a fit person to be allowed
the privileges as such. Hence,
in
the
exercise
of
its
disciplinary powers, the Court
merely calls upon a member
of the Bar to account for his
actuations as an officer of the
Court with the end in view of
preserving the purity of the
legal profession and the
291

Legal Ethics

proper
and
honest
administration of justice by
purging the profession of
members
who
by
their
misconduct
have
proved
themselves no longer worthy
to be entrusted with the
duties and responsibilities
pertaining to the office of an
attorney. In such posture,
there can thus be no occasion
to speak of a complainant or a
prosecutor.144 (Emphases
supplied.)
In Query of Atty. Karen M.
Silverio-Buffe, Former Clerk of
Court Br. 81, Romblon On
the Prohibition from Engaging
in the Private Practice of
Law,145 we further observed
that:
[I]n several cases, the Court
has
disciplined
lawyers
without further inquiry or
resort
to
any
formal
investigation where the facts
on record sufficiently provided
the
basis
for
the
determination
of
their
administrative liability.
In Prudential Bank v. Castro,
the Court disbarred a lawyer
without need of any further
investigation after considering
his actions based on records
showing
his
unethical
misconduct; the misconduct
not only cast dishonor on the
image of both the Bench and
the Bar, but was also inimical
to public interest and welfare.
In this regard, the Court took
judicial notice of several cases
handled by the errant lawyer
and his cohorts that revealed
their modus
operandi in
circumventing the payment of
the proper judicial fees for the
astronomical
sums
they
claimed in their cases. The

Court held that those cases

sufficiently 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.
xxxx
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.146 (Emphases supplied.)
Under
the
rules
and
jurisprudence,
respondents
clearly had no right to a
hearing and their reservation
of a right they do not have
has no effect on these
proceedings. Neither have
they shown in their pleadings
any justification for this Court
to call for a hearing in this
instance. They have not
specifically
stated
what relevant evidence,
documentary or testimonial,
they intend to present in their
292

Legal Ethics

defense that will necessitate a

formal hearing.
Instead, it would appear that
they
intend
to
present
records,
evidence,
and
witnesses bearing on the
plagiarism
and
misrepresentation issues in
the Vinuya case and in A.M.
No.
10-7-17-SC
on
the
assumption that the findings
of this Court which were the
bases of the Show Cause
Resolution were made in A.M.
No. 10-7-17-SC, or were
related to the conclusions of
the Court in the Decision in
that case. This is the primary
reason for their request for
access to the records and
evidence presented in A.M.
No. 10-7-17-SC.
This assumption on the part of
respondents is erroneous. To
illustrate, the only incident in
A.M. No. 10-7-17-SC that is
relevant to the case at bar is
the fact that the submission of
the actual signed copy of the
Statement
(or
Restoring
Integrity I, as Dean Leonen
referred to it) happened there.
Apart from that fact, it bears
repeating
that
the
proceedings in A.M. No. 10-717-SC, the ethics case against
Justice Del Castillo, is a
separate and independent
matter from this case.
To find the bases of the
statements of the Court in the
Show Cause Resolution that
the respondents issued a
Statement with language that
the
Court
deems
objectionable
during
the
pendency of the Vinuya case
and the ethics case against
Justice
Del
Castillo,
respondents need to go no

further than the four corners

of the Statement itself, its
various
versions,
news
reports/columns
(many
of
which
respondents
themselves supplied to this
Court
in
their
Common
Compliance)
and
internet
sources that are already of
public knowledge.
Considering
that
what
respondents
are
chiefly
required to explain are the
language of the Statement
and
the
circumstances
surrounding
the
drafting,
printing,
signing,
dissemination, etc.,
of
its
various versions, the Court
does not see how any witness
or evidence in the ethics case
of Justice Del Castillo could
possibly shed light on these
facts. To be sure, these facts
are within the knowledge of
respondents and if there is
any
evidence
on
these
matters the same would be in
their possession.
We find it significant that in
Dean Leonens Compliance he
narrated how as early as
September 2010, i.e., before
the Decision of this Court in
the ethics case of Justice Del
Castillo on October 12, 2010
and before the October 19,
2010 Show Cause Resolution,
retired Supreme Court Justice
Vicente V. Mendoza, after
being shown a copy of the
Statement upon his return
from abroad, predicted that
the Court would take some
form
of
action
on
the
Statement. By simply reading
a hard copy of the Statement,
a reasonable person, even
one
who
"fundamentally
agreed" with the Statements
principles, could foresee the
293

Legal Ethics

possibility of court action on

the same on an implicit
recognition
that
the
Statement, as worded, is not a
matter this Court should
simply let pass. This belies
respondents claim that it is
necessary for them to refer to
any record or evidence in A.M.
No. 10-7-17-SC in order to
divine the bases for the Show
Cause Resolution.
If respondents have chosen
not to include certain pieces
of evidence in their respective
compliances or chosen not to
make a full defense at this
time, because they were
counting on being granted a
hearing, that is respondents
own look-out. Indeed, law
professors of their stature are
supposed to be aware of the
above
jurisprudential
doctrines regarding the nonnecessity of a hearing in
disciplinary
cases.
They
should bear the consequence
of the risk they have taken.
Thus, respondents requests
for a hearing and for access to
the records of, and evidence
presented in, A.M. No. 10-717-SC should be denied for
lack of merit.
A final word
In a democracy, members of
the legal community are
hardly expected to have
monolithic views on any
subject, be it a legal, political
or social issue. Even as
lawyers
passionately
and
vigorously
propound
their
points of view they are bound
by certain rules of conduct for
the legal profession. This
Court is certainly not claiming
that it should be shielded from

criticism.
All
the
Court
demands is the same respect
and courtesy that one lawyer
owes
to
another
under
established ethical standards.
All lawyers, whether they are
judges,
court
employees,
professors
or
private
practitioners, are officers of
the Court and have voluntarily
taken
an
oath,
as
an
indispensable qualification for
admission to the Bar, to
conduct themselves with good
fidelity towards the courts.
There is no exemption from
this sworn duty for law
professors, regardless of their
status
in
the
academic
community or the law school
to which they belong.
WHEREFORE,
this
administrative
matter
is
decided as follows:
(1) With respect to Prof.
Vasquez, after favorably
noting his submission,
the
Court
finds
his
Compliance
to
be
satisfactory.
(2)
The
Common
Compliance
of
35
respondents,
namely,
Attys.
Marvic
M.V.F.
Leonen,
Froilan
M.
Bacungan, Pacifico A.
Agabin,
Merlin
M.
Magallona, Salvador T.
Carlota,
Carmelo
V.
Sison,
Patricia
R.P.
Salvador Daway, Dante
B. Gatmaytan, Theodore
O. Te, Florin T. Hilbay, Jay
L. Batongbacal, Evelyn
(Leo) D. Battad, Gwen G.
De Vera, Solomon F.
Lumba, Rommel J. Casis,
Jose Gerardo A. Alampay,
Miguel R. Armovit, Arthur
P. Autea, Rosa Maria J.
294

Legal Ethics

Bautista,
Mark
R.
Bocobo, Dan P. Calica,
Tristan
A.
Catindig,
Sandra Marie O. Coronel,
Rosario
O.
Gallo,
Concepcion L. Jardeleza,
Antonio G.M. La Via,
Carina C. Laforteza, Jose
C. Laureta, Rodolfo Noel
S. Quimbo, Antonio M.
Santos, Gmeleen Faye B.
Tomboc, Nicholas Felix L.
Ty, Evalyn G. Ursua,
Susan D. Villanueva and
Dina D. Lucenario, is
found UNSATISFACTORY.
These 35 respondent law
professors are reminded
of their lawyerly duty,
under Canons 1, 11 and
13 of the Code of
Professional
Responsibility, to give
due respect to the Court
and to refrain from
intemperate
and
offensive
language
tending to influence the
Court
on
pending
matters or to denigrate
the
Court
and
the
administration of justice
and warned that the
same or similar act in the
future shall be dealt with
more severely.

the same or similar act in

the future shall be dealt
with more severely.
(4) Prof. Lynch, who is
not a member of the
Philippine bar, is excused
from these proceedings.
However, he is reminded
that while he is engaged
as a professor in a
Philippine law school he
should strive to be a
model of responsible and
professional conduct to
his
students
even
without the threat of
sanction from this Court.
(5) Finally, respondents
requests for a hearing
and for access to the
records of A.M. No. 10-717-SC are denied for lack
of merit.
SO ORDERED.

(3)
The
separate
Compliance
of
Dean
Marvic
M.V.F.
Leonen
regarding the charge of
violation of Canon 10 is
found UNSATISFACTORY.
He
is
further
ADMONISHED to be more
mindful of his duty, as a
member of the Bar, an
officer of the Court, and
a Dean and professor of
law, to observe full
candor and honesty in
his dealings with the
Court and warned that
295

Legal Ethics

VICTORIA LEGARDA, petitioner,

vs.
THE HONORABLE COURT OF
APPEALS, NEW CATHAY HOUSE,
INC., THE HONORABLE
REGIONAL TRIAL COURT OF
QUEZON CITY, BRANCH
94, respondents.

Nothing is more settled than the

rule that the mistake of a counsel
binds the client. It is only in case of
gross or palpable negligence of
counsel when the courts must step
in and accord relief to a client who
suffered thereby.
The present case is a typical
example of such rare exception.
Petitioner Victoria Legarda was the
owner of a parcel of land and the
improvements thereon located at
123 West Avenue, Quezon City. On
January 11, 1985 respondent New
Cathay
House,
Inc.
filed
a
complaint against the petitioner for
specific
performance
with
preliminary
injunction
and
damages in the Regional Trial Court
(RTC) for Quezon City alleging,
among others, that petitioner
entered into a lease agreement
with
the
private
respondent
through its representative, Roberto
V. Cabrera, Jr., of the aforestated
property of petitioner effective
January 1, 1985 until December 31,
1989 or for a period of five (5)
years; that the rental is P25,000.00
per month with 5% escalation per
year; that on November 23, 1984,
private respondent deposited the
amount
of
P72,000.00
with
petitioner as down payment of
rentals; that respondent drew up
the written contract and sent it to
petitioner, that petitioner failed and
refused to execute and sign the
same
despite
demands
of
respondent;
and
that
the
respondent suffered damages due
to the delay in the renovation and
opening of its restaurant business.
The private respondent prayed that
pending the resolution of the case
a restraining order be issued
against petitioner or her agents

enjoining them from stopping the

renovation and use of the premises
by private respondent. It was also
prayed that after due hearing the
petitioner be ordered to execute
the lease contract; to pay actual
compensatory,
exemplary
and
other damages in such amount as
may be proved during the trial
including P30,000.00 attorney's
fees plus P300.00 per appearance
of counsel, and to pay the
expenses of litigation. 1
Petitioner engaged the services of
counsel to handle her case. Said
counsel filed his appearance with
an urgent motion for extension of
time to file the answer within ten
(10) days from February 26,
1985. 2 However,
said
counsel
failed to file the answer within the
extended
period
prayed
for.
Counsel for private respondent
filed an ex-parte motion to declare
petitioner in default. This was
granted by the trial court on March
25, 1985 and private respondent
was
allowed
to
present
evidence ex-parte. Thereafter, on
March 25, 1985, the trial court
rendered
its
decision,
the
dispositive part of which reads as
follows:
WHEREFORE, judgment is
hereby rendered ordering
defendant
Victoria
G.
Legarda to execute and sign
Exhibit
"D":,
the
lease
contract for the premises at
123 West Avenue, Quezon
City.
Accordingly,
the
preliminary injunction earlier
issued on January 31, 1985 is
hereby made permanent.
Judgment
is
likewise
rendered ordering defendant
to pay exemplary damages in
the sum of P100,000.00 to
serve
as
example
and
deterrent for others, and
actual and compensatory
damages as follows:
1. For loss and destroyed
goodwill and reputation in
the amount of P100,000.00;

296

Legal Ethics

2. The sum of P61,704.40 as

adjustments in the costs of
labor and materials for the
renovation of the premises;
3. The sum of P50,000.00 as
unearned income for the
delay of plaintiff 's operations
from January 1, 1985 up to
February 25, 1985 or a period
of almost two (2) months;
4. The sum of P16,635.57
and P50,424.40 as additional
compensatory
damages
incurred by plaintiff for the
extension of the lease of its
premises at Makati and
salaries of idle employees,
respectively;
5. The sum of P10,000.00 as
and by way of attorney's
fees; and
6. The costs of suit.

Copy of said decision was duly

served on counsel for the petitioner
but he did not take any action.
Thus, the judgment became final
and executory. On May 8, 1985,
upon motion of private respondent,
a writ of execution of the judgment
was issued by the trial court. 4
At public auction, the sheriff sold
the
aforestated
property
of
petitioner to Roberto V. Cabrera, Jr.
for the sum of P376,500.00 to
satisfy the judgment. The sheriff
issued a certificate of sale dated
June 8, 1985 covering the said
property.5 After
the
one
year
redemption period expired without
the petitioner redeeming the
property,
ownership
was
consolidated in the name of
Roberto V. Cabrera, Jr. The sheriff
issued a final deed of sale on July
8, 1986 in his favor. Cabrera
registered the same in the office of
the Register of Deeds on July 11,
1986.
Upon learning of this unfortunate
turn of events, petitioner prevailed
upon her counsel, to seek the
appropriate relief. On November 6,
1986 said counsel filed in the Court
of Appeals a petition for annulment

of judgment calling attention to the

unjust
enrichment
of
private
respondent in securing the transfer
in its name of the property valued
at
P
2.5
million
without
justification;
that
when
the
complaint was filed in court by
private respondent against the
petitioner, the parties came to an
agreement
to
settle
their
differences, the private respondent
assuring
petitioner
that
the
complaint
it
filed
shall
be
withdrawn so petitioner advised
her lawyer that there was no longer
any need to file an answer to the
complaint; that on February 22,
1985,
private
respondent
nevertheless
filed
an expartemotion
to
declare
the
petitioner in default; that petitioner
was deprived of the right to
present her defense through false
pretenses, misrepresentation and
fraud practiced upon her by private
respondent
warranting
the
annulment of the judgment; that
the
documentary
evidence
presented by private respondent,
which served as the basis of the
decision, is falsified and tampered
with; that as an example, the
voucher
filed
by
petitioner,
contains typewritten entries to the
effect that the term of the lease is
for five (5) years to which
petitioner never agreed, and that
the option to buy the property was
given to the private respondent;
that the fact that the property
worth P2 million was sold at public
auction at a shockingly and
questionably
low
price
of
P376,500.00 is by itself a sufficient
basis for annulling the sale for
being grossly inadequate to shock
the conscience and understanding
of
men,
giving
rise
to
a
presumption of fraud.6 Thus, it was
prayed
that
a
preliminary
mandatory
injunction
issue
ordering the private respondent to
surrender the property to petitioner
and to enjoin the former from
further harassing and threatening
the
peaceful
possession
of
petitioner; and that after hearing,
the decision of the trial court in
Civil Case No. Q-43811 and the
sheriffs certificate of sale7 be
likewise annulled; that private
297

Legal Ethics

respondent be adjudged to pay

petitioner no less than P500,000.00
actual and moral damages, as well
as
exemplary
damages
and
attorney's fees in the amount of
P50,000.00, plus the costs of the
suit. 8
On February 2, 1987 an amended
petition was filed by counsel for
petitioner in the Court of Appeals
raising the additional issue that the
decision is not supported by the
allegations in the pleadings or by
the evidence submitted. 9
In due course, a decision was
rendered by the Court of Appeals
on November 29, 1989. 10 The
appellate court made the following
observations:
On
the
other
hand,
petitioner's above allegation
of fraud supposedly practiced
upon her by Roberto V.
Cabrera, Jr. is so improbable
as to inspire belief. For the
Coronel Law Office had
already
entered
its
appearance as petitioner's
counsel by then, so that if it
were true that Cabrera had
already
agreed
to
the
conditions
imposed
by
petitioner, said law office
would have asked plaintiff to
file the proper motion to
dismiss
or
withdraw
complaint with the Court, and
if plaintiff had refused to do
so, it would have filed
defendant's answer anyway
so that she would not be
declared in default. Or said
law
office
would
have
prepared
a
compromise
agreement embodying the
conditions imposed by their
client in the lease contract in
question which plaintiff had
allegedly already accepted,
so that the same could have
been submitted to the Court
and
judgment
on
a
compromise
could
be
entered.
All
these,
any
conscientious
lawyer
of
lesser
stature
than
the
Coronel Law Office, headed
by no less than a former law

dean, Dean Antonio Coronel,

or even a new member of the
bar, would normally have
done
under
the
circumstances to protect the
interests of their client,
instead of leaving it to the
initiative
of
plaintiff
to
withdraw
its
complaint
against defendant, as it had
allegedly
promised
the
latter. Thus, it is our belief
that this case is one of-pure
and simple negligence on the
part of defendant's counsel
who simply failed to file the
answer
in
behalf
of
defendant,
But
counsel's
negligence does not stop
here. For after it had been
furnished with copy of the
decision by default against
defendant, it should then
have appealed therefrom or
file a petition from relief from
the order declaring their
client in default or from the
judgment
by
default. [sic] Again, counsel
negligently failed to do
either. Hence, defendant is
bound by the acts of her
counsel in this case and
cannot be heard to complain
that the result might have
been different if it had
proceeded differently (Pulido
vs. C.A., 122 SCRA 63; Ayllon
vs. Sevilla, 156 SCRA 257,
among other cases). And the
rationale of this rule is
obvious and clear. For "if
such grounds were to be
admitted as reasons for
opening cases, there would
never be an end to a suit so
long as new counsel could be
employed who could allege
and show that the prior
counsel
had
not
been
sufficiently
diligent,
or
experienced,
or
learned"
(Fernandez vs. Tan Tiong
Tick, 1 SCRA 1138). 11
Despite
these
findings,
the
appellate
court
nevertheless
dismissed
the
petition
for
annulment of judgment with costs
against the petitioner. A copy of
the said judgment appears to have
298

Legal Ethics

been served on counsel for the

petitioner. However, said counsel
did
not
file
a
motion
for
reconsideration
or
appeal
therefrom, so it became final.

of private respondent's counsel.

After the evidence of private
respondent was received ex-parte,
a judgment was rendered by the
trial court.

It was only in March 1990 when the

secretary of counsel for petitioner
informed the latter of the adverse
decision against her only after
persistent telephone inquiries of
the petitioner.

Said counsel for petitioner received

a copy of the judgment but took no
steps to have the same set aside or
to appeal therefrom. Thus, the
judgment
became
final
and
executory.
The
property
of
petitioner was sold at public
auction to satisfy the judgment in
favor of private respondent. The
property was sold to Roberto V.
Cabrera, Jr., representative of
private
respondent,
and
a
certificate of sale was issued in his
favor. The redemption period
expired after one year so a final
deed of sale was issued by the
sheriff in favor of Cabrera, who in
turn appears to have transferred
the same to private respondent.

Hence, petitioner secured the

services of another lawyer who
filed
this
petition
for certiorari under Rule 65 of the
Rules of Court wherein it is prayed
that the judgment of the Regional
Trial Court of Quezon City in Civil
Case No. Q-43811, the decision of
the Court of Appeals in CA-G.R. No.
10487 and the sheriff's sale at
public auction of the property in
question be annulled, as the same
are attributable to the gross
negligence and inefficiency of
petitioner's counsel, whose blunder
cannot bind the petitioner who was
deprived of due process thereby. It
is further prayed that private
respondent Cathay House, Inc. be
ordered to reconvey to petitioner
the property covered by TCT No.
270814, which was sold at public
auction to Roberto V. Cabrera, Jr.
and in whose favor its ownership
was consolidated, and thereafter
ownership appears to have been
transferred to private respondent.
The petition
merit.

is

impressed

with

Petitioner's counsel is a well-known

practicing lawyer and dean of a law
school. It is to be expected that he
would extend the highest quality of
service as a lawyer to the
petitioner. Unfortunately, counsel
appears to have abandoned the
cause of petitioner. After agreeing
to defend the petitioner in the civil
case filed against her by private
respondent,
said
counsel
did
nothing more than enter his
appearance and seek for an
extension of time to file the
answer. Nevertheless, he failed to
file the answer. Hence, petitioner
was declared in default on motion

During all the time, the petitioner

was abroad. When, upon her
return, she learned, to her great
shock, what happened to her case
and property, she nevertheless did
not lose faith in her counsel. She
still asked Atty. Coronel to take
such appropriate action possible
under the circumstances.
As above related, said counsel filed
a petition for annulment of
judgment and its amendment in
the Court of Appeals.1wphi1 But
that was all he did. After an
adverse judgment was rendered
against petitioner, of which counsel
was duly notified, said counsel did
not inform the petitioner about it.
He did not even ask for a
reconsideration thereof, or file a
petition for review before this
Court. Thus, the judgment became
final. It was only upon repeated
telephone inquiries of petitioner
that she learned from the secretary
of her counsel of the judgment that
had unfortunately become final.
A lawyer owes entire devotion to
the interest of his client, warmth
and zeal in the maintenance and
defense of his rights and the
exertion of his utmost learning and
ability, to the end that nothing can
299

Legal Ethics

be taken or withheld from his client

except in accordance with the law.
He should present every remedy or
defense authorized by the law in
support of his client's cause,
regardless of his own personal
views. In the full discharge of his
duties to his client, the lawyer
should not be afraid of the
possibility that he may displease
the judge or the general public.12
Judged by the actuations of said
counsel in this case, he has
miserably failed in his duty to
exercise his utmost learning and
ability in maintaining his client's
cause.13 It is not only a case of
simple negligence as found by the
appellate court, but of reckless and
gross negligence, so much so that
his client was deprived of her
property without due process of
law.
In People's Homesite & Housing
Corp. vs. Tiongco
and
14
Escasa, this
Court
ruled
as
follows:
Procedural
technicality
should not be made a bar to
the
vindication
of
a
legitimate grievance. When
such
technicality
deserts
from being an aid to justice,
the courts are justified in
excepting from its operation
a particular case. Where
there was something fishy
and suspicious about the
actuations of the former
counsel of petitioner in the
case at bar, in that he did not
given any significance at all
to the processes of the court,
which has proven prejudicial
to the rights of said clients,
under a lame and flimsy
explanation that the court's
processes just escaped his
attention, it is held that said
lawyer deprived his clients of
their day in court, thus
entitling
said
clients
to
petition
for
relief
from
judgment despite the lapse
of the reglementary period
for filing said period for filing
said petition.

In Escudero vs. Judge Dulay, 15 this

Court, in holding that the counsel's
blunder
in
procedure
is
an
exception to the rule that the client
is bound by the mistakes of
counsel,
made
the
following
disquisition:
Petitioners contend, through
their new counsel, that the
judgments rendered against
them by the respondent
court are null and void,
because they were therein
deprived of their day in court
and
divested
of
their
property without due process
of law, through the gross
ignorance,
mistake
and
negligence of their previous
counsel. They acknowledge
that, while as a rule, clients
are bound by the mistake of
their counsel, the rule should
not be applied automatically
to their case, as their trial
counsel's
blunder
in
procedure
and
gross
ignorance
of
existing
jurisprudence changed their
cause of action and violated
their substantial rights.
We
are
impressed
with
petitioner's contentions.
Ordinarily, a special civil
action under Rule 65 of the
Rules of Court will not be a
substitute or cure for failure
to file a timely petition for
review on certiorari (appeal)
under Rule 45 of the Rules.
Where,
however,
the
application of the rule will
result in a manifest failure or
miscarriage of justice, the
rule may be relaxed.
xxx

xxx

xxx

While this Court is cognizant

of the rule that, generally, a
client
will
suffer
the
consequences
of
the
negligence, mistake or lack
of competence of his counsel,
in the interest of justice and
equity, exceptions may be
made to such rule, in
accordance with the facts
300

Legal Ethics

and circumstances of each

case. Adherence to the
general rule would, in the
instant case, result in the
outright deprivation of their
property
through
a
technicality.

millions. The mere lessee then now

became the owner of the property.
Its true owner then, the petitioner,
now is consigned to penury all
because her lawyer appear to have
abandoned her case not once but
repeatedly.

In its questioned decision dated

November 19, 1989 the Court of
Appeals found, in no uncertain
terms, the negligence of the then
counsel for petitioner when he
failed to file the proper motion to
dismiss or to draw a compromise
agreement if it was true that they
agreed on a settlement of the case;
or in simply filing an answer; and
that after having been furnished a
copy of the decision by the court
he failed to appeal therefrom or to
file a petition for relief from the
order
declaring
petitioner
in
default. In all these instances the
appellate court found said counsel
negligent but his acts were held to
bind his client, petitioner herein,
nevertheless.

The Court cannot allow such a

grave injustice to prevail. It cannot
tolerate such unjust enrichment of
the private respondent at the
expense of the petitioner. The
situation is aggravated by the fact
that said counsel is a well-known
practicing lawyer and the dean of a
law school as the Court at the
beginning
of
this
discourse
observed. His competence should
be beyond cavil. Thus, there
appears to be no cogent excuse for
his
repeated
negligence
and
inaction. His lack of devotion to
duty is so gross and palpable that
this Court must come to the aid of
his distraught client, the petitioner
herein.

The Court disagrees and finds that

the negligence of counsel in this
case appears to be so gross and
inexcusable. This was compounded
by the fact, that after petitioner
gave said counsel another chance
to make up for his omissions by
asking him to file a petition for
annulment of the judgment in the
appellate court, again counsel
abandoned the case of petitioner in
that after he received a copy of the
adverse judgment of the appellate
court, he did not do anything to
save the situation or inform his
client of the judgment. He allowed
the judgment to lapse and become
final. Such reckless and gross
negligence should not be allowed
to bind the petitioner. Petitioner
was thereby effectively deprived of
her day in court.
Thus, We have before Us a case
where to enforce an alleged lease
agreement of the property of
petitioner, private respondent went
to court, and that because of the
gross negligence of the counsel for
the petitioner, she lost the case as
well as the title and ownership of
the property, which is worth

As member of the Philippine Bar he

owes complete fidelity to the cause
of his client. He should give
adequate attention, care and time
to his cases. This is the reason why
a practicing lawyer should accept
only so many cases he can afford
to handle. And once he agrees to
handle a case, he should undertake
the task with dedication and care.
If he should do any less, then he is
not true to his oath as a lawyer.
WHEREFORE,
the
petition
is
GRANTED and the questioned
decision of the Regional Trial Court
of Quezon City dated March 25,
1985 in Civil Case No. Q-43811; the
decision of the Court of Appeals
dated November 29, 1989 in CAG.R. No. SP-10487; the Sheriff 's
Certificate of Sale dated June 27,
1985 of the property in question;
and the subsequent final deed of
sale covering the same property,
are all hereby declared null and
void. Private respondent New
Cathay House, Inc. is directed to
reconvey said property to the
petitioner, and the Register of
Deeds is ordered to cancel the
registration of said property in the
name of private respondent and to
301

Legal Ethics

issue a new one in the name of

petitioner. Costs against private
respondent.
Said
counsel
for
petitioner is hereby required to
show cause within ten (10) days
from notice why he should not be
held administratively liable for his
acts and omissions hereinabove
described in this decision.
SO ORDERED.

302

Legal Ethics

ROSITA TAN, petitioner,

vs., ATTY. JOSE L.
LAPAK, respondent.
This is a complaint filed by
Rosita Tan against Atty. Jose L.
Lapak for misconduct, based
on respondents failure to file
with this Court a petition for
review on certiorari of a
resolution of the Court of
Appeals dismissing
complainants
appeal. Complainant alleged
that despite the fact that this
Court had granted respondent
an extension of the time to file
the petition for review on
certiorari and she had paid
respondent his fee, the latter
nonetheless failed to file the
petition in this
Court. Complainants letter,
dated January 10, 1991,
addressed to then Chief
Justice Marcelo B. Fernan,
stated:
Ako po ay sumusulat sa iyo
upang ihingi ng tulong ang
aking suliranin na may
kaugnayan sa aking kaso, G.R.
No. 93707 ROSITA TAN v. CA,
et al. na dahilan sa
kapabayaan ng aking
abogado na si Atty. Jose Lapak
ay hindi nakapagfile ng
Certiorari nasa ngayon
kanyang inihihinging palugit
ay naibigay naman, at ako po
ay nagbigay naman ng
halagang P4,000.00 upang
gawain lamang ang petition
sa pagrerepaso ng Certiorari
subalit inuulit pang hindi
gawain.
Kgg. Na Chief Justice ako poy
pinaasa lamang ng aking
abogado na wala man lamang
nagawa kung ano ang
nararapat. Ako naman ay
isang walang karanasan sa
bagay na ito ay naniwala at
naghintay. Nang makausap ko

po siya ay aking tinapat kung

ano na at walang nadating na
resulta sa ginawa niya ang
sagot sa aking maghintay na
lamang daw ako. Ngunit ng
ako po ay pumunta sa Maynila
at napadaan ako sa Korte
Suprema saka ko pa lamang
napag-alaman na ang aking
abogado ay hindi
nakapaggawa ng brief ng
Certiorari at kaya napawalaan
ng bisa ang aking apelasyon.
Akin pong naisip na idulog
ang aking kaapihan sa
Pangulo ng IBP ng Camarines
Norte ang mga bagay na ito
ang sagot po sa aking ay
maari akong maghain ng
demanda laban sa aking
abogado na si Atty. Jose L.
Lapak ngunit ako po ay
mahirap lamang at isa pa
wala akong matutustos sa
aking abogado. Isa pa po wala
akong pera at sapat na pinagaralan kaya po hindi ko alam
kung sino ang aking
dudulungan para tumulong sa
mahihirap. Kaya naisip ko
pong sumulat sa opisina
ninyo, para ihain ang aking
karaingan.Kung inyo pong
mamarapatin ako ay
humihingi ng tulong sa iyo
bilang pinakamataas na
hustisya ang aking kaapihan.
Respondent denied the
allegations against him. In his
manifestation and comment,
dated March 4, 1991, he
contended:
a) Ms. Rosita Tan was
formerly represented
by Atty. Juanito Subia
in Civil Case No. 5295,
Rosita Tan vs. Wilfredo
Enriquez before the
Regional Trial Court of
Camarines Norte; said
case was dismissed
due to failure of
Rosita Tan and his
303

Legal Ethics

(sic) counsel to
appear during the
scheduled Pre-Trial of
the case; . . .said
Order of dismissal
was however
reconsidered;
b) On November 11,
1986, Atty. Marciano
C. Dating, Jr. entered
his appearance for
the said Rosita Tan as
her original counsel,
Atty. Juanito Subia,
had withdrawn for
reasons only known to
her; . . .Atty. Marciano
C. Dating, Jr. filed an
Amended Complaint;
c) That on September
20, 1988, the Court,
through Hon. Luis
Dictado, who heard
the case, rendered a
decision dismissing
Rosita Tans complaint;
d) That on October 13,
1988, Atty. Dating,
Rosita Tans counsel,
appealed from the
adverse decision
against her to the
Court of Appeals;
e) That Atty. Marciano
Dating also withdrew
later as Rosita Tans
counsel and certain
Leopoldo P. San
Buenaventura entered
his appearance as
new counsel for the
said Rosita Tan in the
appealed case before
the Court of Appeals
which was docketed
as C.A. G.R. CV No.
20669;
f) On October 26, 1989,
Atty. Leopoldo E. San
Buenaventura filed a
Motion for Extension
of Time to File Brief
for Rosita Tan;

however, for reasons

only known to said
lawyer, he failed to
file his Appellants
Brief; hence, on
February 20, 1990,
the Court of Appeals
issued a Resolution
dismissing the appeal
for failure of Rosita
Tans counsel to file
Appellants Brief
despite extension of
time granted to him;
g) That upon receipt by
Ms. Rosita Tan of said
Resolution dismissing
her appeal due to the
failure of her Manila
lawyer to file
Appellants Brief, she
came to the law office
of undersigned
counsel in the
company of her
friend, Mrs. Gloria
Gatan, to employ the
latters services to
seek reconsideration
of the Order of
dismissal and file
Appellants Brief to
enable her to pursue
her appeal; Rosita
employed the legal
services of
undersigned counsel
not to file a Petition
for Review but to seek
reconsideration of the
order of dismissal of
her appeal;
considering then that
she does not have the
papers to the case on
appeal, Rosita Tan
agreed to pay counsel
P5,000.00 to go to
Manila, study the
records of the case in
the Court of Appeals,
file a Motion for
Reconsideration and
304

Legal Ethics

prepare Appellants
Brief for her; she was
able to pay P3,000.00
only instead of
P5,000.00 promising
to pay the balance
later; consequently,
the undersigned
counsel filed an
URGENT MOTION FOR
RECONSIDERATION
with the Court of
Appeals.;
h) Unfortunately, the
Court of Appeals
denied said Motion for
Reconsideration in a
Resolution
promulgated on May
2, 1990 .;
I) That upon receipt by
the undersigned
counsel of said
Resolution of the
Court of Appeals
denying the Motion
for Reconsideration,
the undersigned
counsel summoned
the appellant Rosita
Tan and requested her
to bring the balance
of P2,000.00 so that a
Petition for Review on
Certiorari could be
filed with the
Supreme Court;
however, the said
appellant Rosita Tan
upon knowing of the
adverse Resolution of
the Court of Appeals
became apathetic and
when she came to the
law office of the
undersigned she
expressed her
misgivings of bringing
the case to the
Supreme Court and
told counsel that she
has no more money;
despite her

indifference and
lukewarm attitude,
the undersigned
counsel filed a Motion
for Extension of Time
to file a Petition for
Review with the
Supreme Court paying
the docket fees
therefore in behalf of
said appellant; in the
meantime the
undersigned counsel
went to Manila to
make researches
preparatory to the
filing of the Petition
for Review with the
Supreme Court; The
undersigned counsel
then requested the
appellant Rosita Tan
to pay him the
balance of P2,000.00
as per agreement for
him to be able to
prepare the Petition
for review in Manila
and file it with the
Supreme Court; but
said appellant
hesitantly paid only
P1,000.00 which was
her only money
available promising to
pay the balance of
P1,000.00 later;
therafter, the
undersigned counsel
went to the Court of
Appeals to get
certified true copies of
the Resolution
denying the Motion
for Reconsideration;
he then learned that
there was already an
Entry of Judgment in
the case as the
Resolution dismissing
the appeal had
already become final;
the undersigned then
305

Legal Ethics

informed Rosita Tan of

her misfortune and
informed her that he
would study the
propriety of filing an
action for annulment
of the decision
because of his
discovery of an
anomaly which
resulted in a mistrial;
because of continuous
setbacks she suffered
from beginning to
end; Rosita Tan said
she had lost all hope
and was unwilling to
go any further; she
then demanded the
refund of P4,000.00
from the undersigned;
when the undersigned
gave back the
P1,000.00 he received
from her, she refused
to receive the amount
insisting that the
whole amount of
P4,000.00 be returned
to her claiming that
the undersigned
counsel had not done
anything for her
anyway; hence the
misunderstanding
which culminated in
her sending a letter
complaint to the
Honorable Chief
Justice of the
Supreme Court.
The case was referred to
the Integrated Bar of the
Philippines for investigation,
report, and
recommendation. On July 29,
2000, the IBP passed a
resolution aadopting the
report and recommendation of
its Investigating
Commissioner Jaime M. Vibar
that respondent be
reprimanded and ordered to

restitute to complainant the

amount of P1,000.00.
In finding respondent guilty
of betrayal of his clients trust
and confidence, the
investigating commissioner
said in his report:
Regardless of the agreement
on the total amount of fees, it
is clear that respondent
committed to prepare and file
a petition with the Supreme
Court and for which he
received P1,000.00 from the
complainant (annex B, Sagot,
dated May 31, 1991). Despite
such commitment, he failed to
file the petition.
It is not explained why the
payment of PHP1,000.00 was
made by complainant for the
petition on August 8, 1990. At
that time, the period to file
the petition for review as
contemplated by respondent
and which was the subject of
an extension motion, dated
May 18, 1990, filed with and
granted by the Hon. Supreme
Court, had already expired. It
is to be noted that
respondents motion sought an
extension of thirty (30) days
from May 26, 1990 or up to
June 25, 1990. It would appear
that respondent received
P1,000.00 on August 8, 1990
from complainant at a time
when the remedy of a review
of the dismissal order of the
Court of Appeals was no
longer available. Yet,
complainant was never
informed or favored with an
explanation that a petition for
review was no longer possible,
or perhaps that another
remedy was still open to the
complainant. To aggravate his
situation, respondent alleges
in his comment to the
complaint (at page 3) that
after he received P1,000.00
306

Legal Ethics

from the complainant he

immediately went to the Court
of Appeals to get certified
copies of the resolution
denying his motion for
reconsideration and that
thereat he discovered that an
Entry of Judgment had already
been issued. Respondent
should have known that when
he went to the Court of
Appeals after reciept of
P1,000.00, or after August 8,
1990. The period he
requested from the Hon.
Supreme Court to institute the
petition for review had long
expired.
But the silence of respondent
at the time of receipt of the
amount of P1,000.00 on
august 8, 1990 and the
petition with the Supreme
Court was no longer an
available remedy smacks of a
betrayal of a clients cause and
the trust and confidence
reposed in him. If indeed his
clients cause was no longer
worth fighting for, the lawyer
should not have demanded a
feeand made representations
that there is merit in her
case. He should have dealt
with his client with all candor
and honesty by informing her
that on August 8, 1990 the
period to file the petition had
already expired.
Complainant has been a
victim of negligence on the
part of the law firm of San
Buenaventura, et al., or
particularly Atty. Leopoldo San
Buenaventura, for their failure
to file the Appellants Brief in
behalf of complainant within
the period allowed. The
dismissal of the appeal gave
complainant a slim chance, if
not a futile remedy, with the
Hon. Supreme Court. Atty.
Lapak would have been

shackled in any disquisition

for complainants cause
considering that she alredy
lost in the trial court and her
appeal had been dismissed
without any argument being
advanced in her behalf. Atty.
Lapak should have been
candid with complainant. He
should not have asked more
at a time when nothing fruitful
could be done anymore.
With respect to
respondents offer to return
the amount of P1,000.00 paid
to him to file the petition for
review on certiorari, the
investigating commissioner
stated:
[T]his willingness to return
P1,000.00 does not erase his
breach of the Code of
Professional Responsibility for
lacking in honesty, diligence
and fairness in dealing with
his client as shown by the
very fact that he received the
amount at a time when he
could no longer file the
petition with the Supreme
Court. His client deserved the
information that on such date
the decision of the Court of
Appeals was already
final. Respondents actuation
of filing an extension motion
with the Hon. Supreme Court
and yet not filing an extension
motion with the Hon. Supreme
Court and yet not filing the
pleading within the period
requested and granted speaks
well of respondents lack of
candor, honesty and judicious
conduct in dealing with his
client or in the handling of his
case. This conduct violates
Canon 17, & Rule 18.03, Rule
18.04 of Canon 18 of the Code
of Professional Responsibility.
The investigating
commissioner recommends
that respondent only be
307

Legal Ethics

reprimanded considering his

old age and the negligent
conduct of complainants
previous counsel. The
commissioner reasoned that it
was the negligent conduct of
complainants previous
counsel which caused the
dismissal of the appeal and
rendered inutile any further
legal action before the
Supreme Court.
The investigating
commissioners findings are
supported by the
evidence. However, we hold
that the appropriate sanction
should be reprimand and
order respondent to return the
amount of P4,000.00 which he
received from complainant.
Respondent advances two
reasons why he did not file a
petition for review on
certiorari in this Court, to wit:
(1) because he found that the
resolution of the Court of
Appeals to be appealed to the
Supreme Court had become
final on May 27, 1990 and (2)
because complainant failed to
pay the balance of P1,000.00
of his fee.
First. With respect to the
first reason, Rule 18.03
thereof which provides that A
lawyer shall not neglect a
legal matter entrusted to him
and his negligence in
connection therewith shall
render him liable. Respondent
alleges that upon receipt of
the Court of Appeals
resolution denying the motion
for reconsideration which he
had filed, he summoned
complainant and told her that
it was imperative that a
petition for review on
certiorari be filed with this
Court.
At this point, it is important
to note the material dates on

record to determine if
respondents justification for
his failure to file a petition for
review is tenable. The
resolution of the Court of
Appeals dismissing
complainants appeal for
failure to file an appellants
brief was promulgated on
February 20, 1990. Within the
reglementary period for filing
an appeal, respondent filed a
motion for reconsideration
which the Court of Appeals
denied on May 2,
1990. Respondent received a
copy of this resolution
(denying the motion for
reconsideration) on May 11,
1990 so that respondent had
15 days from May 11, 1990, or
until May 26, within which to
file a petition for review on
certiorari with the Supreme
Court. Respondent therafter
asked for, and was granted by
this Court, an extension of 30
days counted from the
reglementary period, or until
June 25, 1990, within which to
file the petition. As
respondent failed to file the
petition within the extended
period, the Supreme Court
issued a resolution on August
20, 1990 declaring the
judgment sought to be
reviewed to have become
final and executory.
It is not true, therefore,
that respondent failed to file a
petition for review on
certiorari because the
judgment sought to be
reviewed had become final on
May 27, 1990.
When respondent
summoned complainant and
told her that in view of the
denial of his motion for
reconsideration it was
imperative that a petition for
review be filed with this Court,
308

Legal Ethics

the resolution of the Court of

Appeals was not yet final. In
fact, this
Court granted respondents
motion for extension of time
to file the petition for review,
because the resolution of the
Court of Appeals denying the
motion for reconsideration
had not yet attained
finality. Despite having been
granted an extension,
however, respondent failed to
file the petition within the
reglementary period. This
constitutes a serious
breach. Rule 12.03 of the
Code of Professional
Responsibility provides that A
lawyer shall not, after
obtaining extensions of time
to file pleadings, memoranda
or briefs, let the period lapse
without submitting the same
or offering an explanation for
his failure to do so.
The filing of a petition for
review is similar to the filing
of an appellants or appellees
brief. In Mariveles v. Mallari,
[1]
it was held that the lawyers
failure to file an appellants
brief despite numerous
extensions of time to file the
same constitutes a blatant
violation of Rule 12.03 of the
Code of Professional
Responsibility. As already
noted, this Rule provides that
after obtaining extensions of
time to file pleadings,
memoranda, or briefs, a
lawyer should not let the
period lapse without
submitting the same or
offering an explanation for his
failure to do so.
In Re: Santiago F. Marcos,
[2]
the Court considered a
lawyers failure to file a brief
for his client as amounting to
inexcusable negligence. Said
the Court:

An attorney is bound to
protect his clients interest to
the best of his ability and with
utmost diligence. (Del Rosario
v. CA, 114 SCRA 159). A
failure to file a brief for his
client certainly constitutes
inexcusable negligence on his
part. (People v. Villar, 46 SCRA
107) The respondent has
indeed committed a serious
lapse in the duty owed by him
to his client as well as to the
Court not to delay litigation
and to aid in the speedy
administration of
justice. (People v. Daban, 43
SCRA 185; People v. Estocada,
43 SCRA 515).
At any rate, even assuming
that the resolution of the
Court of Appeals expired on
May 27, 1990, he should not
have asked on August, 8,
1990 for the balance of
P5,000.00 which complainant
had agreed to pay since the
resolution had already
become final at that time. As
the investigating
commissioner pointed out in
his report:
To aggravate his situation,
respondent alleges in his
comment to the complaint (at
page 3) that after he received
P1,000.00 from the
complainant he immediately
went to the Court of Appeals
to get certified copies of the
resolution denying his motion
for reconsideration and that
thereat he discovered that an
Entry of Judgment had already
been issued. Respondent
should have known that when
he went to the Court of
Appeals after receipt of
P1,000.00, or after August 8,
1990, (t)he period he
requested from the Hon.
Supreme Court to institute the
309

Legal Ethics

petition for review had long

expired.[3]
It would, therefore, appear
that if an entry of judgment
had been made in the Court of
Appeals, it was precisely
because respondent failed to
file a petition for review with
the Supreme Court within the
extended period granted
him. He cannot, therefore,
excuse his breach of the duty
to his client by his own
negligent act.
Second. Respondent
asserts that complainant only
engaged his services to
pursue her appeal in the Court
of Appeals which was
dismissed due to the failure of
complainants former counsel,
Atty. Leopoldo E. San
Buenaventura, to file the
appellants brief. Whether or
not he was engaged to
represent complainant only in
the Court of Appeals and not
also in the Supreme Court is
immaterial. For the fact is that
respondent already
commenced the
representation of complainant
in the Supreme Court by filing
a motion for extension of the
time to file a petition for
review. In fact, according to
respondent, upon receipt of
the Court of Appeals
resolution denying
reconsideration of the
dismissal of complainants
appeal, respondent
summoned complainant to his
office precisely to tell her that
it was imperative that a
petition for review be filed
with the Supreme Court. Once
he took the cudgels of his
clients case and assured her
that he would represent her in
the Supreme Court,
respondent owed it to his
client to do his utmost to

ensure that every remedy

allowed by law was availed
of. As this Court has held:
It is axiomatic that no lawyer
is obliged to act either as
adviser or advocate for every
person who may wish to
become his client. He has the
right to decline employment,
subject, however, to Canon 14
of the Code of Professional
Responsibility. Once he agrees
to take up the cause of a
client, the lawyer owes fidelity
to such cause and must
always be mindful of the trust
and confidence reposed in
him. He must serve the client
with competence and
diligence, and champion the
latters cause with
wholehearted fidelity, care
and devotion. Elsewise stated,
he owes entire devotion to the
interest of his client, warm
zeal in the maintenance and
defense of his clients rights,
and the exertion of his utmost
learning and ability to the end
that nothing be taken or
withheld from his client, saved
by the rules of law legally
applied. This simply means
that his cleint is entitled to the
benefit of any and every
remedy and defense that is
authorized by the law of the
land and he may expect his
lawyer to assert every such
remedy or defense.[4]
Third. Nor can respondent
excuse himself for his failure
to file the petition for review
on certiorari on the ground
that complainant failed to pay
what she promised to
pay. Complainant agreed to
pay P5,000.00. Of this
amount, she paid respondent
P3,000.00 and later
P1,000.00, leaving only a
balance of P1,000.00. Even if
this balance had not been
310

Legal Ethics

paid, this fact was not

sufficient to justify the failure
of respondent to comply with
his professional obligation
which does not depend for
compliance on the payment of
a lawyers fees.
As respondent utterly
failed to comply with his
professional commitment to
complainant, it is, therefore,
not just for him to keep the
legal fee of P4,000.00 which
complainant paid him. He has
not rightfully earned that fee
and should return it to
complainant.
WHEREFORE, Atty. Jose L.
Lapak is REPRIMANDED and
ORDERED to refund to
complainant Rosita Tan the
amount of P4,000.00. He is
admonished henceforth to
exercise greater care and
diligence in the performance
of his duties towards his
clients and the courts and
warned that repetition of the
same or similar offense will be
more severely dealt with.
SO ORDERED.

311

Legal Ethics

MA. GINA L. FRANCISCO,

JOSEPHINE S. TAN and
CARLOS M.
JOAQUIN, Complainants,
vs.
ATTY. JAIME JUANITO P.
PORTUGAL, Respondent.

Complainants filed before this

Court
an
affidavit1
complaint on 15 August 2003
against Atty. Jaime Juanito P.
Portugal
(respondent)
for
violation of the Lawyers Oath,
gross misconduct, and gross
negligence. Complainants are
related to petitioners in G.R.
No. 152621-23 entitled SPO1
Ernest C. Francisco, SPO1
Donato F. Tan and PO3
Rolando M. Joaquin v. People
of the Philippines, in whose
behalf respondent filed the
Petition
for
Review
on
Certiorari (Ad Cautelam) in
the case.
The
complaint
against
respondent originated from
his alleged mishandling of the
above-mentioned
petition
which eventually led to its
denial with finality by this
Court to the prejudice of
petitioners therein.
The facts are as follows:
On 21 March 1994, SPO1
Ernesto C. Francisco, SPO1
Donato F. Tan and PO3
Rolando
M.
Joaquin
(eventually petitioners in G.R.
No. 152621-23, collectively
referred to herein as the
accused) were involved in a
shooting
incident
which
resulted in the death of two
individuals and the serious
injury of another. As a result,

Informations
were
filed
against them before the
Sandiganbayan for murder
and frustrated murder. The
accused pleaded not guilty
and trial ensued. After due
trial,
the
2
Sandiganbayan found
the
accused guilty of two counts
of homicide and one count of
attempted homicide.
At that juncture, complainants
engaged the services of
herein respondent for the
accused. Respondent then
filed
a
Motion
for
Reconsideration
with
the
Sandiganbayan but it was
denied in a Resolution dated
21 August 2001. Unfazed by
the denial, respondent filed an
Urgent Motion for Leave to File
Second
Motion
for
Reconsideration,
with
the
attached Second Motion for
Reconsideration.3 Pending
resolution
by
the
Sandiganbayan,
respondent
also filed with this Court a
Petition
for
Review
on
Certiorari (Ad Cautelam) on 3
May 2002.
Thereafter,
complainants
never heard from respondent
again despite the frequent
telephone calls they made to
his office. When respondent
did not return their phone
inquiries, complainants went
to respondents last known
address only to find out that
he had moved out without any
forwarding address.
More than a year after the
petition
was
filed,
complainants
were
constrained
to
personally
verify the status of the ad
cautelam petition as they had
312

Legal Ethics

neither news from respondent

about the case nor knowledge
of his whereabouts. They were
shocked to discover that the
Court had already issued a
Resolution4 dated 3 July 2002,
denying the petition for late
filing and non-payment of
docket fees.
Complainants also learned
that the said Resolution had
attained finality and warrants
of arrest5 had already been
issued against the accused
because respondent, whose
whereabouts
remained
unknown, did nothing to
prevent
the
reglementary
period
for
seeking
reconsideration from lapsing.
In his Comment,6 respondent
states that it is of vital
significance that the Court
notes that he was not the
original
counsel
of
the
accused. He only met the
accused
during
the
promulgation
of
the
Sandiganbayan
decision
convicting the accused of two
counts of homicide and one
count of attempted homicide.
He was merely requested by
the original counsel to be on
hand, assist the accused, and
be
present
at
the
promulgation
of
the
Sandiganbayan decision.
Respondent claims that there
was no formal engagement
undertaken by the parties. But
only because of his sincere
effort and in true spirit of the
Lawyers Oath did he file the
Motion for Reconsideration.
Though admitting its highly
irregular
character,
respondent
also
made
informal but urgent and
personal representation with

the members of the Division

of the Sandiganbayan who
promulgated the decision of
conviction. He asserts that
because of all the efforts he
put into the case of the
accused,
his
other
professional obligations were
neglected and that all these
were done without proper and
adequate remuneration.
As
to
the ad
cautelam petition, respondent
maintains that it was filed on
time. He stresses that the last
day of filing of the petition
was on 3 April 2002 and on
that very day, he filed with
this Court a Motion for
Extension of Time to File
Petition for Review,7 seeking
an additional thirty (30) days
to
file
the
petition.
Subsequently, on 3 May 2002,
he filed the petition by
registered mail and paid the
corresponding docket fees.
Hence, so he concludes, it was
filed within the reglementary
period.
Soon thereafter, respondent
recounted all the "herculean"
efforts he made in assisting
the accused for almost a year
after the promulgation of the
Sandiganbayan decision. He
considered the fact that it was
a case he had just inherited
from the original counsel; the
effect of his handling the case
on his other equally important
professional obligations; the
lack of adequate financial
consideration for handling the
case; and his plans to travel
to the United States to explore
further
professional
opportunities.
He
then
decided to formally withdraw
as counsel for the accused. He
wrote a letter to PO3 Rolando
313

Legal Ethics

Joaquin (PO3 Joaquin), who

served as the contact person
between
respondent
and
complainants, explaining his
decision to withdraw as their
counsel, and attaching the
Notice to Withdraw which
respondent
instructed
the
accused to sign and file with
the Court. He sent the letter
through registered mail but
unfortunately, he could not
locate the registry receipt
issued for the letter.
Respondent states that he has
asked the accused that he be
discharged from the case and
endorsed
the
Notice
of
Withdrawal to PO3 Joaquin for
the latter to file with the
Court.
Unfortunately,
PO3
Joaquin did not do so, as he
was keenly aware that it
would be difficult to find a
new counsel who would be as
equally accommodating as
respondent.
Respondent
suggests this might have
been the reason for the
several calls complainants
made to his office.
On 9 February 2004, the Court
resolved to refer the matter to
the Integrated Bar of the
Philippines
(IBP)
for
investigation,
report
and
recommendation.1awph!l.net
The case was assigned to
Investigating
Commissioner
Leland
R.
Villadolid,
Jr.
(Commissioner Villadolid) who
sent notices of hearing to the
parties but of the three
complainants,
only
complainant Carlos Joaquin
appeared.
Thus,
in
the
mandatory conference held,
the other two complainants
were declared as having
waived their rights to further

participate
in
8
proceedings.

the

IBP

The parties were directed to

file their respective position
papers and on 27 May 2005,
Commissioner
Villadolid
submitted his Report and
Recommendation
finding
respondent guilty of violation
of the Code of Professional
Responsibility9 and
recommended the imposition
of
penalty
ranging
from
reprimand to suspension of six
(6) months.1awph!l.net10 On
12 November 2005, the Board
of Directors of the IBP
resolved to adopt and approve
Commissioner
Villadolids
recommendation
to
find
respondent
guilty
and
specifically to recommend his
suspension for six (6) months
as penalty.
The only issue to be resolved
in the case at bar is,
considering all the facts
presented,
whether
respondent committed gross
negligence or misconduct in
handling G.R. No. 152621-23,
which eventually led to the ad
cautelam petitions dismissal
with finality.
After careful consideration of
the records of the case, the
Court finds the suspension
recommended by the IBP
proper.
In a criminal case like that
handled by respondent in
behalf
of
the
accused,
respondent has a higher duty
to
be
circumspect
in
defending the accused for it is
not only the property of the
accused which stands to be
lost but more importantly,
their right to their life and
314

Legal Ethics

liberty. As held in Regala v.

Sandiganbayan:11
Thus, in the creation of
lawyer-client
relationship,
there
are
rules,
ethical
conduct and duties that
breathe life into it, among
those, the fiduciary duty to his
client which is of very
delicate,
exacting
and
confidential
character,
requiring a very high degree
of fidelity and good faith, that
is required by reason of
necessity and public interest x
xx.
It is also the strict sense of
fidelity of a lawyer to his client
that distinguishes him from
any
other
profession
in
12
society. x x x
At the onset, the Court takes
notice
that
the ad
cautelam petition was actually
filed out of time. Though
respondent filed with the
Sandiganbayan
an
Urgent
Motion for Leave to File
Second
Motion
for
Reconsideration
with
the
attached Second Motion for
Reconsideration, he should
have known that a second
motion for reconsideration is a
prohibited pleading13 and it
rests on the sound discretion
of the Sandiganbayan to
admit it or not. Thus, in effect,
the motion did not toll the
reglementary
period
to
appeal. Having failed to do so,
the accused had already lost
their right to appeal long
before respondent filed his
motion
for
extension.
Therefore, respondent cannot
now say he filed the ad
cautelam petition on time.
Also important to note is the
allegation of complainants

that
the
Sandiganbayan
denied the second motion for
reconsideration
in
its
Resolution dated 7 February
2002. This respondent does
not dispute.
As to respondents conduct in
dealing with the accused and
complainants, he definitely
fell short of the high standard
of
assiduousness
that
a
counsel must perform to
safeguard the rights of his
clients. As aptly observed by
Commissioner
Villadolid,
respondent had not been
quite candid in his dealings
with
the
accused
or
complainants. The Court notes
that
though
respondent
represented to the accused
that he had changed his office
address,
still,
from
the
examination
of
the
14
pleadings he filed, it can be
gleaned that all of the
pleadings have the same
mailing address as that known
to complainants. Presumably,
at some point, respondents
office would have received the
Courts Resolution dismissing
the petition. Of course, the
prudent step to take in that
situation was to at least
inform the client of the
adverse resolution since they
had
constantly
called
respondents office to check
the status of the case. Even
when
he
knew
that
complainants had been calling
his office, he opted not to
return their calls.
Respondent
professed
an
inkling that the several phone
calls of complainants may
have been about the letter he
sent PO3 Joaquin regarding his
desire to be discharged as
counsel of the case. However,
315

Legal Ethics

though
aware
of
such
likelihood, respondent still did
not return their calls. Had he
done so, he and complainants
could have threshed out all
unresolved matters between
them.
Had respondent truly intended
to withdraw his appearance
for the accused, he as a
lawyer who is presumably
steeped in court procedures
and practices, should have
filed the notice of withdrawal
himself
instead
of
the
accused. At the very least, he
should have informed this
Court through the appropriate
manifestation that he had
already given instructions to
his clients on the proper way
to go about the filing of the
Notice of Withdrawal, as
suggested by Commissioner
Villadolid. In not so doing, he
was negligent in handling the
case of the accused.
Certainly, respondent ought to
know that he was the one who
should have filed the Notice to
Withdraw
and
not
the
accused. His tale that he sent
a registered letter to the
accused and gave them
instructions on how to go
about
respondents
withdrawal from the case
defies credulity. It should have
been
respondent
who
undertook the appropriate
measures for the proper
withdrawal
of
his
representation. He should not
have relied on his client to do
it for him if such was truly the
case.
Without
the
presentation of the alleged
registry receipt (or the return
card, which confirms the
receipt of the mail by the
recipient) of the letter he

allegedly sent to PO3 Joaquin,

the
Court
cannot
lend
credence
to
respondents
naked claim, especially so
that complainants have been
resolute in their stand that
they did not hear from
respondent after the latter
had
filed
the ad
cautelam petition. He could
relieve
himself
of
his
responsibility as counsel only
first by securing the written
conformity of the accused and
filing it with the court
pursuant to Rule 138, Section
26 of the Rules of Court.15
The rule in this jurisdiction is
that a client has the absolute
right
to
terminate
the
attorney-client
relation
at
anytime with or without
cause. The right of an
attorney
to
withdraw
or
terminate the relation other
than for sufficient cause is,
however,
considerably
restricted.
Among
the
fundamental rules of ethics is
the principle that an attorney
who undertakes to conduct an
action impliedly stipulates to
carry it to its conclusion. He is
not at liberty to abandon it
without reasonable cause. A
lawyers right to withdraw
from a case before its final
adjudication arises only from
the clients written consent or
from a good cause.16
We agree with Commissioner
Villadolid that the dismissal of
the ad cautelam petition was
primarily due to the gross
negligence of respondent. The
Court has stressed in Aromin
v. Boncavil17 that:
Once he agrees to take up the
cause of the client, the lawyer
owes fidelity to such cause
316

Legal Ethics

and must always be mindful of

the trust and confidence
reposed in him. He must serve
the client with competence
and diligence, and champion
the
latters
cause
with
wholehearted fidelity, care,
and devotion. Elsewise stated,
he owes entire devotion to the
interest of the client, warm
zeal in the maintenance and
defense of his clients rights,
and the exertion of the his
utmost learning and ability to
the end that nothing be taken
or withheld from his client,
save by the rules of law,
legally applied. This simply
means that his client is
entitled to the benefit of any
and
every
remedy
and
defense that is authorized by
the law of the land and he
may expect his lawyer to
assert every such remedy or
defense. If much is demanded
from an attorney, it is because
the entrusted privilege to
practice law carries with it the
correlative duties not only to
the client but also to the
court, to the bar, and to the
public. A lawyer who performs
his duty with diligence and
candor not only protects the
interest of his client; he also
serves the ends of justice,
does honor to the bar, and
helps maintain the respect of
the community to the legal
profession.18
Respondent has time and
again stated that he did all
the endeavors he enumerated
without adequate or proper
remuneration.
However,
complainants have sufficiently
disputed such claim when
they attached in their position
paper filed before the IBP a
machine validated deposit slip
in the amount of P15,500.00

for the Metro Bank savings

account of one Jaime Portugal
with
account
number
19
7186509273. Respondent
has neither admitted nor
denied having claimed the
deposited amount.
The
Court
also
rejects
respondents claim that there
was no formal engagement
between the parties and that
he made all his efforts for the
case without adequate and
proper consideration. In the
words
of
then
Justice
Panganiban (presently Chief
Justice) in Burbe v. Atty.
Magulta:20
After agreeing to take up the
cause of a client, a lawyer
owes fidelity to both cause
and client, even if the client
never paid any fee for the
attorney-client
relationship.
Lawyering is not a business; it
is a profession in which duty
of public service, not money,
is the primary consideration.21
Also to the point is another
case where this Court ruled,
thus:
A written contract is not an
essential element in the
employment of an attorney;
the contract may be express
or implied. To establish the
relation, it is sufficient that
the advice and assistance of
an attorney is sought and
received
in
any
matter
pertinent to his profession. x x
x 22
Hence, even if respondent felt
under-compensated in the
case he undertook to defend,
his obligation embodied in the
Lawyers Oath and the Code
of Professional Responsibility
317

Legal Ethics

still remains unwavering. The

zeal and the degree of fervor
in handling the case should
neither diminish nor cease
just because of his perceived
insufficiency of remuneration.
Lastly, the Court does not
appreciate
the
offensive
appellation respondent called
the shooting incident that the
accused was engaged in. He
described the incident, thus:
"the accused police officers
who had been convicted of
[h]omicide for the salvage of
Froilan G. Cabiling and Jose M.
Chua
and
[a]ttempted
[h]omicide
of
Mario
C.
23
24
Macato." Rule 14.01 of the
Code
of
Professional
Responsibility clearly directs
lawyers not to discriminate
clients as to their belief of the
guilt of the latter. It is ironic
that it is the defense counsel
that actually branded his own
clients as being the culprits
that "salvaged" the victims.
Though he might think of his
clients as that, still it is
unprofessional to be labeling
an event as such when even
the Sandiganbayan had not
done so.

fit to impose the same in the

case at bar.
WHEREFORE,
premises
considered,
respondent
is
hereby SUSPENDED from the
practice of law for three (3)
months. Let a copy of the
Resolution be furnished the
Bar Confidant for appropriate
annotation in the record of
respondent.
SO ORDERED.

The IBP Board of Governors

recommended the suspension
of respondent for six (6)
months, the most severe
penalty
recommended
by
Commissioner Villadolid, but
did not explain why such
penalty was justified. In a
fairly recent case where the
lawyer failed to file an appeal
brief which resulted to the
dismissal of the appeal of his
client in the Court of Appeals,
the Court imposed upon the
erring lawyer the penalty of
three
(3)
months
25
suspension. The Court finds it
318

Legal Ethics

VERONICA S. SANTIAGO,
BENJAMIN Q. HONTIVEROS,
MR. SOCORRO F. MANAS,
and TRINIDAD
NORDISTA, complainants,
vs.
ATTY. AMADO R.
FOJAS, respondent.
In their letter of 8 September
1993, the complainants,
former clients of the
respondent, pray that the
latter be disbarred for
"malpractice, neglect and
other offenses which may be
discovered during the actual
investigation of this
complaint." They attached
thereto an Affidavit of Merit
wherein they specifically
allege:
1. That we are
DefendantsAppellates [sic] in
the Court of
Appeals Case No.
CA-G.N. CV No.
38153 of which to
our surprise lost
unnecessarily the
aforesaid Petition
[sic]. A close
perusal of the case
reveals the serious
misconduct of our
attorney on record,
Atty. Amado Fojas
tantamount to
malpractice and
negligence in the
performance of his
duty obligation to
us, to defend us in
the aforesaid case.
That the said
attorney without
informing us the
reason why and
riding high on the
trust and
confidence we
repose on him

either abandoned,
failed to act
accordingly, or
seriously neglected
to answer the civil
complaint against
us in the sala of
Judge Teresita
Capulong Case No.
3526-V-91 Val.
Metro Manila so that
we were deduced
[sic] in default.
2. That under false
pretenses Atty.
Fojas assured us
that everything was
in order. That he
had already
answered the
complaint so that in
spite of the
incessant demand
for him to give us a
copy he continued
to deny same to us.
Only to disclose
later that he never
answered it after all
because according
to him he was a
very busy man.
Please refer to
Court of Appeals
decision dated
August 17, 1993.
3. That because of
Atty. Amado Foja's
neglect and
malpractice of law
we lost the Judge
Capulong case and
our appeal to the
Court of Appeals. So
that it is only proper
that Atty. Fojas be
disciplined and
disbarred in the
practice of his
profession.
In his Comment, the
respondent admits his
"mistake" in failing to file the
319

Legal Ethics

complainants' answer in Civil

Case No. 3526-V-91, but he
alleges that it was cured by
his filing of a motion for
reconsideration, which was
unfortunately denied by the
court. He asserts that Civil
Case No. 3526-V-91 was a
"losing cause" for the
complainants because it was
based on the expulsion of the
plaintiff therein from the Far
Eastern University Faculty
Association (FEUFA) which was
declared unlawful in the final
decision in NCR-OD-M-90-10050. Thus, "[t]he unfavorable
judgment in the Regional Trial
Court is not imputable to [his]
mistake but rather imputable
to the merits of the
case, i.e., the decision in the
Expulsion case wherein
defendants (complainants
herein) illegally removed from
the union (FEUFA)
membership Mr. Paulino
Salvador. . . ." He further
claims that the complainants
filed this case to harass him
because he refused to share
his attorney's fees in the main
labor case he had handled for
them. The respondent then
prays for the dismissal of this
complaint for utter lack of
merit, since his failure to file
the answer was cured and,
even granting for the sake of
argument that such failure
amounted to negligence, it
cannot warrant his disbarment
or suspension from the
practice of the law profession.
The complainants filed a Reply
to the respondent's Comment.
Issues having been joined, we
required the parties to inform
us whether they were willing
to submit this case for
decision on the basis of the
pleadings they have filed. In
their separate compliance,

both manifested in the

affirmative.
The facts in this case are not
disputed.
Complainants Veronica
Santiago, Benjamin
Hontiveros, Ma. Socorro
Manas, and Trinidad Nordista
were the President, VicePresident, Treasurer, and
Auditor, respectively, of the
FEUFA. They allegedly
expelled from the union
Paulino Salvador. The latter
then commenced with the
Department of Labor and
Employment (DOLE) a
complaint (NCR-OD-M-90-10050) to declare illegal his
expulsion from the union.
In his resolution of 22
November 1990, Med-Arbiter
Tomas Falconitin declared
illegal Salvador's expulsion
and directed the union and all
its officers to reinstate
Salvador's name in the roll of
union members with all the
rights and privileges
appurtenant thereto. This
resolution was affirmed in
toto by the Secretary of Labor
and Employment.
Subsequently, Paulino
Salvador filed with the
Regional Trial Court (RTC) of
Valenzuela, Metro Manila,
Branch 172, a complaint
against the complainants
herein for actual, moral, and
exemplary damages and
attorney's fees, under Articles
19, 20, and 21 of the Civil
Code. The case was docketed
as Civil Case No. 3526-V-91.
As the complainants' counsel,
the respondent filed a motion
to dismiss the said case on
grounds of (1) res judicata by
virtue of the final decision of
the Med-Arbiter in NCR-OD-M90-10-050 and (2) lack of
jurisdiction, since what was
320

Legal Ethics

involved was an intra-union

issue cognizable by the DOLE.
Later, he filed a supplemental
motion to dismiss.
The trial court, per Judge
Teresita Dizon-Capulong,
granted the motion and
ordered the dismissal of the
case. Upon Salvador's motion
for reconsideration, however,
it reconsidered the order of
dismissal, reinstated the case,
and required the complainants
herein to file their answer
within a nonextendible period
of fifteen days from notice.
Instead of filing an answer,
the respondent filed a motion
for reconsideration and
dismissal of the case. This
motion having been denied,
the respondent filed with this
Court a petition for certiorari,
which was later referred to the
Court of Appeals and
docketed therein as CA-G.R.
SP No. 25834.
Although that petition and his
subsequent motion for
reconsideration were both
denied, the respondent still
did not file the complainants'
answer in Civil Case No. 3526V-91. Hence, upon plaintiff
Salvador's motion, the
complainants were declared in
default, and Salvador was
authorized to present his
evidence ex-parte.
The respondent then filed a
motion to set aside the order
of default and to stop the exparte reception of evidence
before the Clerk of Court, but
to no avail.
Thereafter, the trial court
rendered a decision ordering
the complainants herein to
pay, jointly and severally,
plaintiff Salvador the amounts
of P200,000.00 as moral
damages; P50,000.00 as
exemplary damages or

corrective damages; and

P65,000.00 as attorney's fees;
plus cost of suit.
The complainants, still
assisted by the respondent,
elevated the case to the Court
of Appeals, which, however,
affirmed in toto the decision
of the trial court.
The respondent asserts that
he was about to appeal the
said decision to this Court, but
his services as counsel for the
complainants and for the
union were illegally and
unilaterally terminated by
complainant Veronica
Santiago.
The core issue that presents
itself is whether the
respondent committed
culpable negligence, as would
warrant disciplinary action, in
failing to file for the
complainants an answer in
Civil Case No. 3526-V-91 for
which reason the latter were
declared in default and
judgment was rendered
against them on the basis of
the plaintiff's evidence, which
was received ex-parte.
It is axiomatic that no lawyer
is obliged to act either as
adviser or advocate for every
person who may wish to
become his client. He has the
right to decline
employment, 1 subject,
however, to Canon 14 of the
Code of Professional
Responsibility. Once he agrees
to take up the cause of a
client, the lawyer owes fidelity
to such cause and must
always be mindful of the trust
and confidence reposed in
him. 2 He must serve the
client with competence and
diligence, 3 and champion the
latter's cause with
wholehearted fidelity, care,
and devotion. 4 Elsewise
321

Legal Ethics

stated, he owes entire

devotion to the interest of the
client, warm zeal in the
maintenance and defense of
his client's rights, and the
exertion of his utmost learning
and ability to the end that
nothing be taken or withheld
from his client, save by the
rules of law, legally
applied. 5 This simply means
that his client is entitled to the
benefit of any and every
remedy and defense that is
authorized by the law of the
land and he may expect his
lawyer to assert every such
remedy or defense. 6 If much
is demanded from an
attorney, it is because the
entrusted privilege to practice
law carries with it the
correlative duties not only to
the client but also to the
court, to the bar, and to the
public. A lawyer who performs
his duty with diligence and
candor not only protects the
interest of his client; he also
serves the ends of justice,
does honor to the bar, and
helps maintain the respect of
the community to the legal
profession. 7
The respondent admits that it
was his duty to file an answer
in Civil Case No. 3526-V-91.
He justifies his failure to do so
in this wise:
[I]n his
overzealousness to
question the Denial
Order of the trial
court, 8 [he]
instead, thru honest
mistake and
excusable neglect,
filed a PETITION
FOR CERTIORARI wit
h the Honorable
Court, docketed as
G.R. No.
100983. . . .

And, when the Court of

Appeals, to which G.R.
No. 100983 was referred,
dismissed the petition,
he again "inadvertently"
failed to file an answer
"[d]ue to honest mistake
and because of his
overzealousness as
stated earlier. . . . "
In their Reply, the
complainants allege that his
failure to file an answer was
not an honest mistake but
was "deliberate, malicious and
calculated to place them on
the legal disadvantage, to
their damage and prejudice"
for, as admitted by him in his
motion to set aside the order
of default, his failure to do so
was "due to volume and
pressure of legal work." 9 In
short, the complainants want
to impress upon this Court
that the respondent has given
inconsistent reasons to justify
his failure to file an answer.
We agree with the
complainants. In his motion
for reconsideration of the
default order, the respondent
explained his non-filing of the
required answer by impliedly
invoking forgetfulness
occasioned by a large volume
and pressure of legal work,
while in his Comment in this
case he attributes it to honest
mistake and excusable
neglect due to his
overzealousness to question
the denial order of the trial
court.
Certainly, "overzealousness"
on the one hand and "volume
and pressure of legal work" on
the other are two distinct and
separate causes or grounds.
The first presupposes the
respondent's full and
continuing awareness of his
duty to file an answer which,
322

Legal Ethics

nevertheless, he subordinated
to his conviction that the trial
court had committed a
reversible error or grave
abuse of discretion in issuing
an order reconsidering its
previous order of dismissal of
Salvador's complaint and in
denying the motion to
reconsider the said order. The
second ground is purely based
on forgetfulness because of
his other commitments.
Whether it be the first or the
second ground, the fact
remains that the respondent
did not comply with his duty
to file an answer in Civil Case
No. 3526-V-91. His lack of
diligence was compounded by
his erroneous belief that the
trial court committed such
error or grave abuse of
discretion and by his
continued refusal to file an
answer even after he received
the Court of Appeals' decision
in the certiorari case. There is
no showing whatsoever that
he further assailed the said
decision before this Court in a
petition for review under Rule
45 of the Rules of Court to
prove his claim of
overzealousness to challenge
the trial court's order. Neither
was it shown that he alleged
in his motion to lift the order
of default that the
complainants had a
meritorious defense. 10 And, in
his appeal from the judgment
by default, he did not even
raise as one of the errors of
the trial court either the
impropriety of the order of
default or the court's grave
abuse of discretion in denying
his motion to lift that order.
Pressure and large volume of
legal work provide no excuse
for the respondent's inability
to exercise due diligence in

the performance of his duty to

file an answer. Every case a
lawyer accepts deserves his
full attention, diligence, skill,
and competence, regardless
of its importance and whether
he accepts it for a fee or for
free.
All told, the respondent
committed a breach of Canon
18 of the Code of Professional
Responsibility which requires
him to serve his clients, the
complainants herein, with
diligence and, more
specifically, Rule 18.03
thereof which provides: "A
lawyer shall not neglect a
legal matter entrusted to him,
and his negligence in
connection therewith shall
render him liable."
The respondent's negligence
is not excused by his claim
that Civil Case No. 3526-V-91
was in fact a "losing cause"
for the complainants since the
claims therein for damages
were based on the final
decision of the Med-Arbiter
declaring the complainants'
act of expelling Salvador from
the union to be illegal. This
claim is a mere afterthought
which hardly persuades us. If
indeed the respondent was so
convinced of the futility of any
defense therein, he should
have seasonably informed the
complainants thereof. Rule
15.05, Canon 15 of the Code
of Professional Responsibility
expressly provides:
A lawyer, when
advising his client,
shall give a candid
and honest opinion
on the merits and
probable results of
the client's case,
neither overstating
nor understanding
323

Legal Ethics

the prospects of the

case.
Then too, if he were
unconvinced of any
defense, we are unable
to understand why he
took all the trouble of
filing a motion to dismiss
on the grounds of res
judicata and lack of
jurisdiction and of
questioning the adverse
ruling thereon initially
with this Court and then
with the Court of
Appeals, unless, of
course, he meant all of
these to simply delay the
disposition of the civil
case. Finally, the
complainants were not
entirely without any valid
or justifiable defense.
They could prove that
the plaintiff was not
entitled to all the
damages sought by him
or that if he were so,
they could ask for a
reduction of the amounts
thereof.
We do not therefore hesitate
to rule that the respondent is
not free from any blame for
the sad fate of the
complainants. He is liable for
inexcusable negligence.
WHEREFORE, ATTY. AMADO R.
FOJAS is hereby
REPRIMANDED and
ADMONISHED to be,
henceforth, more careful in
the performance of his duty to
his clients.
SO ORDERED.

324

Legal Ethics

ADELINO H.
LEDESMA, petitioner,
vs.
HON. RAFAEL C. CLIMACO,
Presiding Judge of the
Court of First Instance of
Negros Occidental, Branch
I, Silay City, respondent.
What is assailed in
this certiorari proceeding is an
order of respondent Judge
denying a motion filed by
petitioner to be allowed to
withdraw as counsel de
oficio. 1 One of the grounds for
such a motion was his
allegation that with his
appointment as Election
Registrar by the Commission
on Elections, he was not in a
position to devote full time to
the defense of the two
accused. The denial by
respondent Judge of such a
plea, notwithstanding the
conformity of the defendants,
was due "its principal effect
[being] to delay this case." 2 It
was likewise noted that the
prosecution had already
rested and that petitioner was
previously counsel de parte,
his designation in the former
category being precisely to
protect him in his new
position without prejudicing
the accused. It cannot be
plausibly asserted that such
failure to allow withdrawal
of de oficio counsel could
ordinarily be characterized as
a grave abuse of discretion
correctible by certiorari. There
is, however, the overriding
concern for the right to
counsel of the accused that
must be taken seriously into
consideration. In appropriate
cases, it should tilt the
balance. This is not one of
them. What is easily
discernible was the obvious

reluctance of petitioner to
comply with the
responsibilities incumbent on
the counsel de oficio. Then,
too, even on the assumption
that he continues in his
position, his volume of work is
likely to be very much less at
present. There is not now the
slightest pretext for him to
shirk an obligation a member
of the bar, who expects to
remain in good standing,
should fulfill. The petition is
clearly without merit.
According to the undisputed
facts, petitioner, on October
13, 1964, was appointed
Election Registrar for the
Municipality of Cadiz, Province
of Negros Occidental. Then
and there, he commenced to
discharge its duties. As he
was counsel de parte for one
of the accused in a case
pending in the sala of
respondent Judge, he filed a
motion to withdraw as such.
Not only did respondent Judge
deny such motion, but he also
appointed him counsel de
oficio for the two defendants.
Subsequently, on November
3, 1964, petitioner filed an
urgent motion to be allowed
to withdraw as counsel de
oficio, premised on the policy
of the Commission on
Elections to require full time
service as well as on the
volume or pressure of work of
petitioner, which could
prevent him from handling
adequately the defense.
Respondent Judge, in the
challenged order of November
6, 1964, denied said motion. A
motion for reconsideration
having proved futile, he
instituted
this certiorari proceeding. 3
As noted at the outset, the
petition must fail.
325

Legal Ethics

1. The assailed order of

November 6, 1964 denying
the urgent motion of
petitioner to withdraw as
counsel de oficio speaks for
itself. It began with a reminder
that a crime was allegedly
committed on February 17,
1962, with the proceedings
having started in the
municipal court of Cadiz on
July 11, 1962. Then
respondent Judge spoke of his
order of October 16, 1964
which reads thus: "In view of
the objection of the
prosecution to the motion for
postponement of October 15,
1964 (alleging that counsel for
the accused cannot continue
appearing in this case without
the express authority of the
Commission on Elections); and
since according to the
prosecution there are two
witnesses who are ready to
take the stand, after which
the government would rest,
the motion for postponement
is denied. When counsel for
the accused assumed office as
Election Registrar on October
13, 1964, he knew since
October 2, 1964 that the trial
would be resumed today.
Nevertheless, in order not to
prejudice the civil service
status of counsel for the
accused, he is hereby
designated counsel de
oficio for the accused. The
defense obtained
postponements on May 17,
1963, June 13, 1963, June 14,
1963, October 28, 1963,
November 27, 1963, February
11, 1964, March 9, 1964, June
8, 1964 July 26, 1964, and
September 7,
1964." 4 Reference was then
made to another order of
February 11, 1964: "Upon
petition of Atty. Adelino H.

Ledesma, alleging
indisposition, the continuation
of the trial of this case is
hereby transferred to March 9,
1964 at 8:30 in the morning.
The defense is reminded that
at its instance, this case has
been postponed at least eight
(8) times, and that the
government witnesses have to
come all the way from
Manapala." 5 After which, it
was noted in such order that
there was no incompatibility
between the duty of petitioner
to the accused and to the
court and the performance of
his task as an election
registrar of the Commission
on Elections and that the ends
of justice "would be served by
allowing and requiring Mr.
Ledesma to continue as
counsel de oficio, since the
prosecution has already
rested its case." 6
2. What is readily apparent
therefore, is that petitioner
was less than duly mindful of
his obligation as counsel de
oficio. He ought to have
known that membership in the
bar is a privilege burdened
with conditions. It could be
that for some lawyers,
especially the neophytes in
the profession, being
appointed counsel de oficio is
an irksome chore. For those
holding such belief, it may
come as a surprise that
counsel of repute and of
eminence welcome such an
opportunity. It makes even
more manifest that law is
indeed a profession dedicated
to the ideal of service and not
a mere trade. It is
understandable then why a
high degree of fidelity to duty
is required of one so
designated. A recent
statement of the doctrine is
326

Legal Ethics

found in People v.
Daban: 7 "There is need anew
in this disciplinary proceeding
to lay stress on the
fundamental postulate that
membership in the bar carries
with it a responsibility to live
up to its exacting standard.
The law is a profession, not a
trade or a craft. Those
enrolled in its ranks are called
upon to aid in the
performance of one of the
basic purposes of the State,
the administration of justice.
To avoid any frustration
thereof, especially in the case
of an indigent defendant, a
lawyer may be required to act
as counsel de oficio. The fact
that his services are rendered
without remuneration should
not occasion a diminution in
his zeal. Rather the contrary.
This is not, of course, to
ignore that other pressing
matters do compete for his
attention. After all, he has his
practice to attend to. That
circumstance possesses a
high degree of relevance since
a lawyer has to live; certainly
he cannot afford either to
neglect his paying cases.
Nonetheless, what is
incumbent upon him as
counsel de oficio must be
fulfilled." 8
So it has been from the 1905
decision of In re Robles
Lahesa, 9 where respondent
was de oficiocounsel, the
opinion penned by Justice
Carson making clear: "This
Court should exact from its
officers and subordinates the
most scrupulous performance
of their official duties,
especially when negligence in
the performance of those
duties necessarily results in
delays in the prosecution of
criminal cases ...." 10 Justice

Sanchez in People v.
Estebia 11 reiterated such a
view in these words: "It is true
that he is a court-appointed
counsel. But we do say that as
such counsel de oficio, he has
as high a duty to the accused
as one employed and paid by
defendant himself. Because,
as in the case of the latter, he
must exercise his best efforts
and professional ability in
behalf of the person assigned
to his care. He is to render
effective assistance. The
accused-defendant expects of
him due diligence, not mere
perfunctory representation.
For, indeed a lawyer who is a
vanguard in the bastion of
justice is expected to have a
bigger dose of social
conscience and a little less of
self-interest." 12
The weakness of the petition
is thus quite evident.
3. If respondent Judge were
required to answer the
petition, it was only due to the
apprehension that considering
the frame of mind of a counsel
loath and reluctant to fulfill his
obligation, the welfare of the
accused could be prejudiced.
His right to counsel could in
effect be rendered nugatory.
Its importance was rightfully
stressed by Chief Justice
Moran in People v. Holgado in
these words: "In criminal
cases there can be no fair
hearing unless the accused be
given an opportunity to be
heard by counsel. The right to
be heard would be of little
avail if it does not include the
right to be heard by counsel.
Even the most intelligent or
educated man may have no
skill in the science of law,
particularly in the rules of
procedure, and; without
counsel, he may be convicted
327

Legal Ethics

not because he is guilty but

because he does not know
how to establish his
innocence. And this can
happen more easily to
persons who are ignorant or
uneducated. It is for this
reason that the right to be
assisted by counsel is deemed
so important that it has
become a constitutional right
and it is so implemented that
under rules of procedure it is
not enough for the Court to
apprise an accused of his right
to have an attorney, it is not
enough to ask him whether he
desires the aid of an attorney,
but it is essential that the
court should assign one de
oficio for him if he so desires
and he is poor or grant him a
reasonable time to procure an
attorney of his
own." 13 So it was under the
previous Organic Acts. 14 The
present Constitution is even
more emphatic. For, in
addition to reiterating that the
accused "shall enjoy the right
to be heard by himself and
counsel," 15 there is this new
provision: "Any person under
investigation for the
commission of an offense
shall have the right to remain
silent and to counsel, and to
be informed of such right. No
force, violence, threat,
intimidation, or any other
means which vitiates the free
will shall be used against him.
Any confession obtained in
violation of this section shall
be inadmissible in
evidence." 16
Thus is made manifest the
indispensable role of a
member of the Bar in the
defense of an accused. Such a
consideration could have
sufficed for petitioner not
being allowed to withdraw as

counsel de oficio. For he did

betray by his moves his lack
of enthusiasm for the task
entrusted to him, to put
matters mildly. He did point
though to his responsibility as
an election registrar.
Assuming his good faith, no
such excuse could be availed
now. There is not likely at
present, and in the immediate
future, an exorbitant demand
on his time. It may likewise be
assumed, considering what
has been set forth above, that
petitioner would exert himself
sufficiently to perform his task
as defense counsel with
competence, if not with zeal,
if only to erase doubts as to
his fitness to remain a
member of the profession in
good standing. The
admonition is ever timely for
those enrolled in the ranks of
legal practitioners that there
are times, and this is one of
them, when duty to court and
to client takes precedence
over the promptings of selfinterest.
WHEREFORE, the petition for
certiorari is dismissed. Costs
against petitioner.

328

Legal Ethics

PEOPLE OF THE
PHILIPPINES, plaintiffappellee,
vs.
RlCARDO RIO, accusedappellant.
Convicted of rape and
sentenced to reclusion
perpetua by the Regional Trial
Court, Branch CXLVI * of
Makati, Metro Manila, in
Criminal Case No. 12042,
accused-appellant Ricardo Rio
interposed his appeal and as a
consequence, the clerk of
court of said regional trial
court branch forwarded the
records of the case to the
Court of Appeals. The
appellate court, however,
forwarded the records of the
case to the Supreme Court in
view of the penalty imposed
upon the accused.
On 29 December 1989, the
accused-appellant Ricardo
Rio, in two (2) letters dated 14
December 1989, addressed to
Division Clerk of Court Fermin
J. Garma and to Assistant
Clerk of Court Tomasita M.
Dris, manifested his intention
to withdraw the appeal due to
his poverty. 1
The Court resolved in a
resolution dated 22 June 1990
to require the Solicitor
General to comment on the
appellant's manifestation to
withdraw the appeal.
In the Comment filed by the
Solicitor General, the action
recommended was for the
Court to ascertain from the
accused-appellant, through
the clerk of court of the trial
court, whether he desired the
appointment of a counsel de
oficio on appeal, in view of the
reasons stated by him for the
withdrawal of his appeal, and
inasmuch as poverty should

not preclude anyone from

pursuing a cause. It was also
recommended that the clerk
of court of the trial court be
required by the Court to
submit the response of the
accused-appellant along with
a certificate of compliance
with the duty imposed on
him 2 by Section 13, of Rule
122 of the Rules of Court,
which provides:
Sec.
13. Appointment of
counsel de oficio for
accused on
appeal. It shall be
the duty of the clerk
of the trial court
upon the
presentation of a
notice of appeal in a
criminal case, to
ascertain from the
appellant, if he is
confined in prison,
whether he desires
the Intermediate
Appellate Court or
the Supreme Court
to appoint a counsel
to defend him de
oficio and to
transmit with the
record, upon a form
to be prepared by
the clerk of the
appellate court, a
certificate of
compliance with
this duty and of the
response of the
appellant to his
inquiry.
The branch clerk of the trial
court, in a letter addressed to
the Assistant Clerk of Court of
the Second Division, this
Court, in compliance with the
resolution of this Court, dated
16 April 1990, adopting the
suggestions of the Solicitor
General, which required him
329

Legal Ethics

to comply with his duty

mandated in Section 13, Rule
122 of the Rules of Court,
submitted the reply of the
accused-appellant informing
the Court that he was no
longer interested in pursuing
his appeal and had, in fact,
withdrawn his appeal. 3
Upon recommendation of the
Solicitor General, however,
the Court in a resolution dated
1 October 1990, denied the
appellant's motion
withdrawing the appeal and
appointed a counsel de
oficio for the accusedappellant for, as correctly
observed by the Solicitor
General, all the letters of the
accused-appellant reveal that
the only reason offered by him
for the withdrawal of his
appeal is his inability to retain
the services of a counsel de
parte on account of his
poverty, a reason which
should not preclude anyone
from seeking justice in any
forum. 4
It seems that the accusedappellant was unaware that
this Court can appoint a
counsel de oficio to prosecute
his appeal pursuant to Section
13 of Rule 122 of the Rules of
Court and the constitutional
mandate provided in Section
11 of Article III of the 1987
Constitution which reads as
follows:
Sec. 11. Free access
to the courts and
quasi-judicial bodies
and adequate legal
assistance shall not
be denied to any
person by reason of
poverty.
This constitutional provision
imposes a duty on the judicial
branch of the government
which can cannot be taken

lightly. "The Constitution", as

aptly stated in one case, "is a
law for rulers and for people
equally in war and in peace
and covers with the shield of
its protection all classes of
men at all times and under all
circumstances." 5
Paraphrasing Mr. Justice
Malcolm, "Two (2) of the basic
privileges of the accused in a
criminal prosecution are the
right to the assistance of
counsel and the right to a
preliminary examination.
President Mckinley made the
first a part of the Organic Law
in his Instructions to the
Commission by imposing the
inviolable rule that in all
criminal prosecutions the
accused 'shall enjoy the
right ... to have assistance of
counsel for the defense'
". 6 Today said right is
enshrined in the 1987
Constitution for, as Judge
Cooley says, this is "perhaps
the privilege most important
to the person accused of
crime." 7
"In criminal cases there can
be no fair hearing unless the
accused be given an
opportunity to be heard by
counsel. The right to be heard
would be of little meaning if it
does not include the right to
be heard by counsel. Even the
most intelligent or educated
man may have no skill in the
science of the law, particularly
in the rules of procedure, and,
without counsel, he may be
convicted not because he is
guilty but because he does
not know how to establish his
innocence. And this can
happen more easily to
persons who are ignorant or
uneducated. It is for this
reason that the right to be
assisted by counsel is deemed
330

Legal Ethics

so important that it has

become a constitutional right
and it is so implemented that
under our rules of procedure it
is not enough for the Court to
apprise an accused of his right
to have an attorney, it is not
enough to ask him whether he
desires the aid of an attorney,
but it is essential that the
court should assign one de
oficio for him if he so desires
and he is poor, or grant him a
reasonable time to procure an
attorney of his own." 8
This right to a counsel de
oficio does not cease upon the
conviction of an accused by a
trial court. It continues, even
during appeal, such that the
duty of the court to assign a
counsel de oficio persists
where an accused interposes
an intent to appeal. Even in a
case, such as the one at bar,
where the accused had
signified his intent to
withdraw his appeal, the court
is required to inquire into the
reason for the withdrawal.
Where it finds the sole reason
for the withdrawal to be
poverty, as in this case, the
court must assign a
counsel de oficio, for despite
such withdrawal, the duty to
protect the rights of the
accused subsists and perhaps,
with greater reason. After all,
"those who have less in life
must have more in
law." 9 Justice should never be
limited to those who have the
means. It is for everyone,
whether rich or poor. Its scales
should always be balanced
and should never equivocate
or cogitate in order to favor
one party over another.
It is with this thought in mind
that we charge clerks of court
of trial courts to be more
circumspect with the duty

imposed on them by law

(Section 13, Rule 122 of the
Rules of Court) so that courts
will be above reproach and
that never (if possible) will an
innocent person be sentenced
for a crime he has not
committed nor the guilty
allowed to go scot-free.
In this spirit, the Court
ordered the appointment of a
counsel de oficio for the
accused-appellant and for said
counsel and the Solicitor
General to file their respective
briefs, upon submission of
which the case would be
deemed submitted for
decision.
From the records of the case,
it is established that the
accused-appellant was
charged with the crime of
rape in a verified complaint
filed by complainant Wilma
Phua Rio, duly subscribed
before 3rd Assistant Fiscal
Rodolfo M. Alejandro of the
province of Rizal, which reads
as follows:
That on or about
the 24th day of
March, 1984, in the
Municipality of
Muntinlupa, Metro
Manila, Philippines,
a place within the
jurisdiction of this
Honorable Court,
the above-named
accused, by means
of force and
intimidation did
then and there
wilfully, unlawfully
and feloniously
have carnal
knowledge of the
undersigned Wilma
Phua against her
will. 10
On 26 June 1985, at the
arraignment, the accused331

Legal Ethics

appellant, assisted by Atty.

Leonido Manalo of the Makati
CLAO office, as counsel de
oficio, entered a plea of not
guilty to the offense
charged. 11 The evidence for
the prosecution adduced at
the trial established the
following facts:
During the months of
February and March 1984,
complainant Wilma Phua, then
only 13 years of age, was
living with her mother and
three (3) sisters in a house in
Barangay Bayanan,
Municipality of Muntinlupa,
Metro Manila. At a distance of
about three (3) meters from
this house is another house
with a toilet and bath also
owned by complainant's
mother but which was
uninhabited at that time. The
accused, complainant's uncle,
being the younger brother of
complainant's mother, was
staying in their house, free of
board and lodging, although
he helped in the household
chores. The children used the
bathroom in the uninhabited
house because the amenities
in the inhabited house were
used only by the adults. 12
At about 2:00 o'clock in the
afternoon of 24 March 1984,
classes having closed for
vacation and while Maria Zena
Phua Rio was in the house
occupied by her family, her
daughter Wilma (complainant)
asked her for the key to the
comfort room of the
uninhabited house because
she had to answer a call of
nature. After having delivered
the key to Wilma, the latter
proceeded to the other house,
entered the comfort room,
and seeing that nobody was
around and that her uncle was
washing dishes in their house,

proceeded to answer nature's

call without taking the
precaution of locking the
comfort room from inside. 13
After relieving herself but
before she could raise her
panty, the accused entered
the bathroom with his body
already exposed, held Wilma's
hands, and ordered her in a
loud voice to lie down and
when she resisted, the
accused got mad and ordered
her to lie down. After she lay
down on her back, the
accused put himself on top of
her and tried to insert his
private organ into her private
part. Wilma kept pushing the
accused away and calling for
her mother; however, since
the accused was heavier than
she, the accused succeeded in
overpowering her, inserting
his penis into her vagina and
having sexual intercourse with
her. After satisfying his lust,
the accused released Wilma
and allowed her to leave the
bathroom. 14
Outside the bathroom door,
complainant met her mother
Maria Zena who, meanwhile,
had proceeded to the said
other house after sensing that
an inordinate length of time
had passed and her daughter,
complainant herein, had not
returned from the bathroom.
Maria Zena, upon noticing
that Wilma was speechless,
trembling and looking fearful,
suspected something remiss
so she tried to open the door
of the bathroom. Unable to
open it the first time because
it was locked from inside,
Maria Zena waited a few
minutes before pushing the
door again. This time she was
successful in finding her
brother, the herein accusedappellant in the process of
332

Legal Ethics

raising his pants. Maria Zena

was ignored by her brother
when she asked him the
reason for his presence inside
the bathroom. 15
Still suspecting that the
accused has done something
to her daughter, Maria Zena
continued her inquisition of
her brother for several days
but to no avail. Finally, on 9
April 1984, the accused was
asked to leave the house and
move out by his sister Maria
Zena. 16
Only after the departure of
the accused did Wilma report
to her mother the fact that
she had been raped by the
accused four (4) times
between the months of
February and March of that
year (1984). After receiving
such information, Maria Zena
wanted her daughter to
immediately undergo physical
examination; however, Wilma,
apparently traumatized by her
experience, was too weak to
go with her for such
examination and frequently
suffered from fainting spells. It
was only on 30 April 1984 that
Maria Zena was able to bring
Wilma to the police to report
the matter and to file the
complaint. After the report to
the police, they were referred
to the P.C. Crime Laboratory
at Camp Crame where Wilma
underwent physical
examination. 17
Dr. Dario Gajardo, the
physician who conducted the
internal examination of Wilma,
submitted a report of his
examination dated 6 May
1984. The medical report
showed, among others, the
following findings:
There is a scanty
growth of pubic
hair. Labia majora

are full, convex and

gaping which pale
brown, slightly
hypertrophied labia
minora presenting
in between. On
separating the
same is disclosed
an elastic, fleshlytype hymen with
deep lacerations at
3, 8 and 9
o'clock. ... 18
The medical report also
showed that "there was (sic)
no external signs of recent
application of any form of
trauma." 19 All these findings
led him to conclude that
Wilma is "in a non-virgin state
physicially." 20 Later, on the
witness stand, Dr. Gajardo
would further testify that
Wilma, on inquiry, revealed
that the first rape happened in
the month of February 1984,
but that he could not tell the
approximate period or age of
the lacerations. 21
Armed with this medical
report, Maria Zena and Wilma
went back to the police where
a sworn statement of Wilma
was taken and the complaint
for rape against the accused
was filed before Third
Assistant Fiscal Rodolfo M.
Alejandro on 12 May 1984. 22
The evidence for the defense
consisted of the testimony of
the accused himself and his
brother, Amado Rio. The
accused's defense was
anchored on alibi and he
substantially testified as
follows: that contrary to the
statements made by the
witnesses for the prosecution,
he was not asked to leave
their house in April 1984, the
truth being that he left in the
month of January 1984 or
about a month before the
333

Legal Ethics

alleged first rape on Wilma

was committed because,
contrary to an alleged
employment agreement
between brother and sister,
his sister, Maria Zena, had not
paid him any salary as helper
in their house; that from the
month of January 1984, up to
24 March 1984 when the rape
charged in the complaint was
allegedly committed, he was
in their hometown in Kambalo,
Cahidiocan, province of
Romblon; that at the time of
his arrest, he was informed of
the criminal charge of rape on
his niece filed against him in
court; that from January 1984
up to the time of his arrest on
6 May 1984, he had stayed in
the house of his uncle,
Francisco Rio, and had never
left the place during the whole
period.
The accused vehemently
denied the rape and
conjectured that his sister
could have fabricated the
charge because he left her
house due to her nonpayment of his salary as
helper. The brother of the
accused in the person of
Amado Rio corroborated the
defense of alibi of the
accused. 23
On rebuttal, the prosecution
presented Nemesia B. Merca,
the Election Registrar of the
Municipality of Muntinlupa,
who brought with her a Voter's
Affidavit which was executed
on 31 March 1984 by one
Ricardo Rio and was
subscribed and sworn to on 31
March 1984 before Tessie
Balbas, Chairman of Voting
Center No. 37-A of Bayanan,
Muntinlupa, Metro Manila. On
cross-examination, Registrar
Merca admitted that she does
not know the accused

personally but that the xerox

copy of the Voter's Affidavit
that she brought to court was
copied from a book containing
about 60 voter's affidavits of
said precinct. 24
After comparing the signature
appealing in the Voter's
Affidavit with the penmanship
appearing on a letter 25dated
12 December 1985 written by
the accused to his brother,
Amado Rio and on the
envelope of said letter, 26 the
trial court ruled that the
writing characteristics on the
presented documents are the
same, especially the rounded
dot over the letter "i"
appearing in the aforementioned mentioned
documents. It was, therefore,
satisfied that the Voter's
Affidavit was indeed prepared
by the accused in Bayanan,
Muntinlupa, Metro Manila, on
31 March 1984, before Tessie
Balbas and that this piece of
evidence completely belies
the defense of the accused as
corroborated by his brother,
Amado, that he was in
Romblon continuously from
the month of January 1984 up
to the time that he was
arrested on 6 May 1984. 27
Thus, the trial court found the
accused-appellant guilty of
the crime of rape. The
dispositive portion of the
decision reads as follows:
WHEREFORE,
finding the abovenamed accused
guilty of the crime
charged in the
information beyond
reasonable doubt
the Court hereby
sentences him to
suffer the penalty of
reclusion perpetua,
with the accessory
334

Legal Ethics

penalties of the law,

to indemnify Wilma
Phua in the sum of
P15,000.00,
Philippine currency,
and to pay the
costs.
SO ORDERED.
The theory of the defense at
the trial level was grounded
on alibi. The accused claimed
that at the time of the alleged
commission of the crime of
rape he was in Romblon. This
claim was corroborated by the
accused's brother, Amado Rio.
However, this claim was, as
aforestated, rebutted by the
prosecution's submission of
the voter's affidavit executed
by the accused in Muntinlupa,
Metro Manila on 31 March
1984 when appellant claimed
he was in Romblon.
Upon careful examination of
the voter's affidavit, the Court
is convinced, as the trial
court, that the affidavit was
indeed executed by the
accused himself and the date
appearing therein must be
presumed correct and
genuine.
Alibi is inherently a weak
defense, easy of fabrication
especially between parents
and children, husband and
wife, and other relatives and
even among those not related
to each other. For such
defense to prosper, the
accused must prove that it
was not possible for him to
have been at the scene of the
crime at the time of its
commission. 28
In the present case, where
nothing supports the alibi
except the testimony of a
relative, in this case the
accused's brother Amado, it
deserves but scant
consideration. 29 Moreover,

the Court notes the fact that

while the accused-appellant
had another brother and sister
living in Manila besides the
complainant's mother, those
two never came to his aid.
Were the accused the
innocent man he claims to be,
these siblings would have
readily helped in his defense.
The testimony of his other
brother Amado alone cannot
raise the necessary doubt to
acquit him as against the
evidence presented by the
prosecution.
Furthermore, it would be hard
to believe that a female,
especially a twelve-year old
child, would undergo the
expense, trouble and
inconvenience of a public trial,
not to mention suffer the
scandal, embarrassment and
humiliation such action
inevitably invites, as wen as
allow an examination of her
private parts if her motive
were not to bring to justice
the person who had abused
her. A victim of rape will not
come out in the open if her
motive were not to obtain
justice. 30
It is harder still to believe that
the mother of a child of twelve
will abuse her child and make
her undergo the trauma of a
public trial only to punish
someone, let alone a brother,
for leaving her without the
services of an unpaid helper
were it not with the aim to
seek justice for her child.
Nobody in his right mind could
possibly wish to stamp his
child falsely with the stigma
that follows a rape.
On appeal, appellant's counsel
de oficio changed the theory
of the defense. The new
theory presented by counsel
de oficio is that Wilma Phua
335

Legal Ethics

consented when accusedappellant had sexual

intercourse with her on 24
March 1984. It was stressed
by counsel de oficio that the
rape occurred on 24 March
1984 and that, allegedly, it
was the fourth time accused
had abused complainant. This
allegation as well as the fact
that complainant failed to lock
the door to the bathroom
could only have been due to
the fact that there was
consent. The charge was filed,
according to defense
counsel de oficio, only
because the complainant's
mother caught them. 31
This theory of the defense on
appeal that there had been
consent from the complainant,
fails to generate doubt as to
the accused's guilt, for it
would be an incredulous
situation indeed to believe
that one, so young and as yet
uninitiated to the ways of the
world, would permit the
occurrence of an incestuous
relationship with an uncle, a
brother of her very own
mother.
The Court notes the sudden
swift in the theory of the
defense from one of total
denial of the incident in
question, by way of alibi, to
one of participation, that is,
with the alleged consent of
the complainant. This new
version could only be
attributed by the Court to the
fact that counsel on appeal is
different from the counsel in
the trial court. Although the
Solicitor General has
suggested that this sudden
shift be interpreted as an
afterthought by the accused
or a desperate effort to get
himself acquitted, 32 the Court
deems it more likely that this

shift was caused by

counsel de oficio's preparation
of the appellant's brief without
examining the entire records
of the case. If the appointed
counsel for the accused, on
appeal, had read the records
and transcripts of the case
thoroughly, he would not have
changed the theory of the
defense for such a shift can
never speak well of the
credibility of the defense.
Moreover, the rule in civil
procedure, which applies
equally in criminal cases, is
that a party may not shift his
theory on appeal. If the
counsel de oficio had been
more conscientious, he would
have known that the sudden
shift would be violative of
aforementioned procedural
rule and detrimental to the
cause of the accusedappellant (his client).
The Court hereby admonishes
members of the Bar to be
more conscious of their duties
as advocates of their clients'
causes, whether acting de
parte or de oficio, for "public
interest requires that an
attorney exert his best efforts
and ability in the prosecution
or defense of his client's
cause." 33 Lawyers are an
indispensable part of the
whole system of administering
justice in this
jurisdiction. 34 And a lawyer
who performs that duty with
diligence and candor not only
protects the interests of his
client; he also serves the ends
of justice, does honor to the
Bar and helps maintain the
respect of the community to
the legal profession. This is so
because the entrusted
privilege to practice law
carries with it correlative
duties not only to the client
336

Legal Ethics

but also to the court, to the

bar and to the public. 35
While a lawyer is not
supposed to know all the
laws, 36 he is expected to take
such reasonable precaution in
the discharge of his duty to
his client and for his
professional guidance as will
not make him, who is sworn to
uphold the law, a transgressor
of its precepts. 37
The fact that he merely
volunteered his services or
the circumstance that he was
a counsel de oficio neither
diminishes nor alters the
degree of professional
responsibility owed to his
client. 38 The ethics of the
profession require that
counsel display warm zeal and
great dedication to duty
irrespective of the client's
capacity to pay him his
fees. 39 Any attempted
presentation of a case without
adequate preparation
distracts the administration of
justice and discredits the
Bar. 40

Returning to the case at bar,

even if we consider the
sudden shift of defense theory
as warranted (which we do
not), the Court is just as
convinced, beyond reasonable
doubt, that the accusedappellant is guilty of the crime
as charged. His conviction
must be sustained.
WHEREFORE, the decision of
the trial court finding the
accused-appellant Ricardo Rio
guilty beyond reasonable
doubt of the crime of rape and
sentencing him to the penalty
of reclusion perpetua with all
the accessory penalties of the
law, is hereby AFFIRMED. The
Court, however, increases the
amount of indemnity to be
paid by the accused-appellant
to Wilma Phua to thirty
thousand pesos (P30,000.00)
in line with prevailing
jurisprudence on this matter.
Costs against accusedappellant.
SO ORDERED.

337